text:
    Joyce H. FREEMAN and William Freeman, Appellants, v. BELLSOUTH TELECOMMUNICATIONS, INC. and Panhandle Boring & Trenching, Inc., Appellees.
    No. 1D06-2653.
    District Court of Appeal of Florida, First District.
    March 16, 2007.
    Rehearing Denied April 23, 2007.

      Wm. Jemison Mims, Jr., Christopher M. Vlachos, and Troy A. Rafferty of Levin, Papantonio, Thomas, Mitchell, Echsner, <& Proctor, P.A., Pensacola, for Appellants.
    John R. Hargrove, W. Kent Brown, Paula J. Phillips, Mark R. Boyd, and Carol A. Gart of Gordon Hargrove & James, P.A., Fort Lauderdale, for Appellees.
   PER CURIAM.

Appellants, Joyce and William Freeman, plaintiffs below, appeal a final judgment the trial court entered against them after granting the motion for directed verdict filed by appellee BellSouth Telecommunications, Inc. Because there was sufficient evidence to permit the jury to decide whether BellSouth was on constructive notice of the dangerous condition that resulted in the injury in this case, we reverse and remand with instructions to the circuit court to reinstate the verdict and enter final judgment for the Freemans.

On January 3, 2000, after they finished exercising at an elementary school track, Joyce Freeman and her daughter were unable to start their car, so Mrs. Freeman began walking to a convenience store to call her husband for assistance. It was dark as she walked along a grassy right-of-way, and she fell into an open manhole containing about seven feet of water. She was briefly trapped in the water-filled lower chamber but was finally able to find the vertical tunnel and wedge herself into it with her head above water. She spent two hours in the hole, calling for help, until her husband and daughter found her and summoned the fire department to extract her from the hole.

A jury found Mrs. Freeman to have been 22 percent negligent and awarded her $149,587 and her husband $15,000. The jury found BellSouth, the owner of the manhole and the easement around it, to have been 78 percent negligent, and appel-lee Panhandle Boring & Trenching, Inc., which repaired and maintained BellSouth’s manholes in Escambia County, not negligent. The trial court granted BellSouth’s post-trial motion for directed verdict, concluding that the Freemans had failed to prove that BellSouth had constructive notice that the manhole cover had been removed, which was an essential element of the plaintiffs’ case. This was error as a matter of law. See, e.g., Flagstar Co., Inc. v. Cole-Ehlinger, 909 So.2d 320, 322 (Fla. 4th DCA 2005) (observing that the standard of review of a ruling on a motion for directed verdict is de novo).

The trial court correctly found Joyce Freeman to be a public invitee on the right-of-way. See Luke v. Indian River County, 639 So.2d 1093, 1094 (Fla. 4th DCA 1994). As such, BellSouth owed her a duty to maintain the premises in a reasonably safe condition, and to warn of any concealed peril that BellSouth should have known of through the exercise of reasonable care. BellSouth was required to eliminate any dangerous conditions of which it had actual or constructive notice. City of Milton v. Broxson, 514 So.2d 1116 (Fla. 1st DCA 1987). Constructive knowledge may be proven by circumstantial evidence showing “defects which have been in existence so long that they could have been discovered by the exercise of reasonable care, and repaired.” City of Jacksonville v. Foster, 41 So.2d 548, 549 (Fla.1949). Accord Castano v. City of Miami, 840 So.2d 412 (Fla. 3d DCA 2003).

The record discloses sufficient evidence that BellSouth had constructive notice that the manhole cover had been dislodged. It is evident from a photograph of the manhole area taken the night of Freeman’s fall that the lid had been off for some time. The thick grass and weeds growing both over the edge of the cover where it lay dislodged, and down into the hole, are distinguishing features of the photograph that provided the jury with a basis for inferring that the cover had been off the hole for more than a brief period of time. See Hannewacker v. City of Jacksonville Beach, 419 So.2d 308, 311 (Fla.1982); Leon v. City of Miami, 312 So.2d 518 (Fla. 3d DCA 1975).

Joyce Freeman testified that there were “vines” in the hole that she tried to use to pull herself out, but they did not support her weight. What in the dark may have appeared to be vines may have been the grass and weeds growing into the manhole that are evident in the photograph. Although BellSouth attempted to impeach Freeman by showing she had not mentioned “vines” in her deposition, Freeman’s credibility was an issue for the jury. Anthony Kent, employee of Panhandle Boring, testified that he had been on two previous work orders to replace the displaced manhole cover at this same site. Although Panhandle Boring’s Greg Jackson only produced one work order, from June 1998, when a bush hog had knocked the lid off, and Kent was unable to say when the other visit had occurred, Kent’s credibility was also an issue for the jury. Mary Forrest of BellSouth testified that BellSouth had no policy or procedure for inspecting any of its 1800 manholes in the county.

This evidence combined to raise an issue of fact regarding whether the manhole cover had been off the manhole for a long enough time to put BellSouth on constructive notice of the need to take action. See, e.g., City of Tampa v. Johnson, 114 So.2d 807 (Fla. 2d DCA 1959) (affirming the trial court’s denial of the city’s motion for directed verdict, because the jury could reasonably have deduced that the worn condition of the manhole cover had existed for a long enough time as to charge the city with constructive notice); Miami-Dade County v. Hoyos, 874 So.2d 639, 640 (Fla. 3d DCA 2004) (affirming the trial court’s denial of the county’s motion for directed verdict, stating that whether the county had constructive notice of the defective manhole cover is “best left to a jury when there is evidence presented in support of the existence of such notice”).

REVERSED and REMANDED.

BROWNING, C.J., WEBSTER, and PADOVANO, JJ., concur.

      . At oral argument, BellSouth stipulated that if this court were to reverse on appeal, Bell-South would abide by the original jury verdict and abandon its motion for remittitur.

      . Section 334.03(23), Florida Statutes (2000), defines "road” as "a way open to travel by the public, including, but not limited to, a street, highway, or alley. The term includes associated sidewalks, the roadbed, [and] the right-of-way[.]”


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    Thomas SPIOCH, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 5D04-2338.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.
    Rehearing Denied April 25, 2007.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant/Cross/Appellee.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.
   SAWAYA, J.

Thomas Spioch appeals the order denying in part his rule 3.850 motion alleging ineffective assistance of counsel. We affirm in part and reverse in part.

Following a jury trial, Spioch was convicted of four counts of sexual activity with a minor in a custodial relationship, one count of attempted sexual activity with a minor in a custodial relationship, and twenty-three counts of lewd and lascivious assault on a minor. The trial court granted Spioch’s motion for a new trial on the five sexual activity counts. The State appealed and this court affirmed. State v. Spioch, 675 So.2d 712 (Fla. 5th DCA 1996).

The trial court had deferred sentencing until after the appeal. After remand from this court, the State entered a nolle prose-qui of the five counts relating to sexual activity with a minor, which left the twenty-three counts of lewd and lascivious assault on a minor. At the sentencing hearing, the trial court stated that it had gone through the transcript and that the victim had actually testified to only twenty-one instances of lewd and lascivious acts. The trial court indicated that it would not score the remaining two convictions, counts 27 and 28. The State objected for the record. Later, without objection by the State, the trial court withheld adjudication on counts 27 and 28 and sentenced Spioch to time served in jail on those two counts. Spioch was adjudicated guilty on the remaining twenty-one lewd and lascivious counts. The applicable guidelines permitted sentence was twenty-seven years to life; Spioch was sentenced to the statutory maximum of fifteen years for each count, to be served consecutively.

Spioch appealed that sentencing order. In Spioch v. State, 742 So.2d 817 (Fla. 5th DCA 1999), this court reversed, agreeing with Spioch that victim injury points were improperly assessed. The State appealed to the supreme court, which reversed this court’s holding and affirmed the trial court’s sentence. State v. Spioch, 802 So.2d 1140 (Fla.2001).

In April 2003, Spioch filed the instant rule 3.850 motion alleging six grounds of ineffective assistance of trial counsel. A hearing was held that prompted the court to conclude that grounds one, two, four, five, and six should be denied. As to ground three, which alleged that Spioch’s counsel was ineffective because he failed to make a sufficient motion for judgment of acquittal regarding thirteen counts of lewd and lascivious assault on a minor, the trial court partially granted the relief requested. Specifically, the trial court concluded that because there had been no testimony supporting the charges included in counts 21, 22, 23, 24, 25, and 26, Spioch’s counsel was ineffective for having failed to properly move for a judgment of acquittal on those counts. The trial court further concluded that count 20 of the information did not allege sufficient elements to define a crime, and thus Spioch’s counsel was ineffective for failing to argue the improper nature of the count. The trial court ordered a new trial as to each of these counts.

Spioch appeals, claiming that as to the counts the trial court did vacate, the proper remedy is acquittal rather than a new trial. He also claims that each ground alleged in his motion entitled him to relief. We believe Spioch is right only as to ground three and that he is also correct that the proper remedy for the vacated counts is acquittal.

Ground three of Spioch’s motion asserted that his counsel was ineffective for failing to properly move the trial court for a judgment of acquittal on thirteen lewd and lascivious counts because his motion was simply a bare-bones motion for judgment of acquittal. Specifically, counsel moved for a directed verdict with the following argument:

With respect to the rest of it, we just move for a Directed Verdict on lewd and lascivious acts on the basis that the State just simply failed to prove their case with any kind of competent evidence other than general testimony that it happened twenty times, over a period between March the 1st until September of the next year. I would think that’s (inaudible) for a conviction on separate counts of lewd and lascivious behavior.

During the trial, the trial court denied this motion, finding that the State had made a prima facie case. Against the record of this alleged failure to properly move for a judgment of acquittal, Spioch asks that his counsel’s performance be weighed in accordance with the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and found wanting.

In Strickland, the court held that in order to obtain postconviction relief on the basis of ineffective assistance of trial counsel, a defendant must show: (1) that counsel’s performance was deficient; and (2) that the deficient performance prejudiced the defense. As to the first prong, the defendant must establish “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. As to the second prong, the defendant must establish that “counsel’s errors were so serious as to deprive the defendant of a fair trial,” that is, a trial the result of which is reliable. Id. The defendant must establish a reasonable probability that, but for the deficient performance, the result would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id, at 694,104 S.Ct. 2052.

We agree with Spioch that his counsel’s motion was inadequate because it did not sufficiently set forth the grounds upon which relief was requested. See Woods v. State, 733 So.2d 980 (Fla.1999) (holding the claim of improper denial of a motion for judgment of acquittal had not been preserved for appeal by a boilerplate motion without specific grounds); Patterson v. State, 391 So.2d 344 (Fla. 5th DCA 1980) (holding a bare-bones motion for directed verdict will not permit a defendant to raise every possible claimed insufficiency in the evidence); see also Fla. R.Crim. P. 3.380(b) (requiring that a motion for judgment of acquittal “fully set forth the grounds on which it is based”).

Spioch’s rule 3.850 motion challenges thirteen of the lewd and lascivious counts — five because the lewd acts were subsumed in the sexual activity counts, one because of an error in the charging document charging count 20, and seven because the evidence at most supported only attempted acts. The trial court vacated the convictions for counts 20 through 26 (count 20 because of an error in the charging document and counts 21 through 26 because the evidence showed only attempts, not completed acts).

The trial court is correct that the child’s testimony regarding incidents of attempted fondling would not support convictions for the completed acts. The trial court only excluded six counts for this reason. Spioch argues that the correct number is seven. Our review of the record leads us to conclude that Spioch is correct and the trial court should have vacated seven counts, not six. As for count 20, this count merely alleged that Spioch “did then and there handle or fondle a child ... in a lewd, [illegible single word — probably “lascivious”] contrary to Section 800.04(1), Florida Statutes.” The trial court correctly held that this count did not allege sufficient elements to define a crime and as such defense counsel was ineffective for failing to argue the improper nature of the count. When the conviction on this count is subtracted, a total of eight lewd and lascivious counts would have to be vacated.

As to Spioch’s argument that defense counsel should have moved to dismiss the five counts of lewd acts that occurred when the sexual activity occurred, Spioch contends that these five offenses merged into the sexual activity counts and that double jeopardy prevented convictions for both. Because the evidence showed only that the fondling occurred in conjunction with the acts of sexual activity with a minor in a custodial relationship, and was not shown to be sufficiently discrete to be deemed a separate offense, we believe that Spioch is again correct. See Gisi v. State, 909 So.2d 531, 533 (Fla. 2d DCA 2005) (reversing two of three convictions for the fondling that preceded intercourse on each of four occasions because “[t]he constitutional guarantee against double jeopardy prohibits multiple convictions for lewd and lascivious acts that are not sufficiently discrete to be deemed separate offenses”). Therefore, defense counsel was ineffective for failing to move to dismiss five counts charging lewd and lascivious acts as those counts should have been dismissed on double jeopardy grounds. Thus, in addition to the seven convictions vacated because they were unsupported by the evidence and count 20, another five counts would have to be vacated on double jeopardy grounds, for a total of thirteen.

We conclude that counsel’s failure to properly move for a judgment of acquittal regarding the thirteen counts we have discussed is an error so serious that counsel was not functioning as the counsel guaranteed Spioch by the Sixth Amendment. Moreover, this error deprived Spioch of a fair trial. We also conclude that the proper remedy is acquittal rather than retrial. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (holding that if either the trial or the appellate court determines that the evidence is insufficient to sustain a conviction, the proper remedy is acquittal and not a new trial); Santiago v. State, 874 So.2d 617 (Fla. 5th DCA 2004) (concluding that where the evidence is insufficient to support a conviction, the appropriate remedy is discharge, not a new trial). Accordingly, we remand this case to the trial court for resentencing. The remainder of the order under review is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and EVANDER, JJ., concur.

      . The State has cross-appealed from the order granting in part Spioch’s 3.850 motion. We affirm as to those issues.

      . Spioch also appealed the denial of his motion to correct sentencing error. Spioch alleged that the trial court erred in ordering a new trial on counts 20 through 26. We agree and reverse that order.


author: MONACO, J.

text:
    STATE of Florida, Appellant, v. Xiomara Aracely LEBRON, Appellee.
    No. 5D06-1035.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.
    Rehearing Denied April 25, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellee.
   MONACO, J.

The sole issue on this appeal is whether the trial court erred in dismissing the State’s charges against Xiomara Lebrón for vehicular homicide pursuant to section 782.071, Florida Statutes (2004). Because we conclude that the State presented at least a prima facie case, we reverse.

The State initiated this proceeding by filing an information against Ms. Lebrón charging her with two counts of vehicular homicide. The charging affidavit, filed by the investigating officer from the Florida Highway Patrol, indicated that at approximately 4:55 p.m. on a weekday Ms. Lebrón was driving her car in the middle northbound lane of SR 423 in Orange County at 81 miles per hour in a 55 mile per hour zone. Ms. Lebrón approached a slower moving vehicle in the same lane, and anticipating Ms. Lebron’s approach, the slower moving vehicle began to enter into the right outside lane to allow her to move past. At the same time, Ms. Lebrón also began to move to the right outside lane in an apparent attempt to pass the slower moving vehicle. The nearly simultaneous movements of the vehicles kept Ms. Le-bron’s vehicle behind the slower moving vehicle as the distance between them quickly decreased. When Ms. Lebrón was then forced to take quick evasive action, she veered sharply to the left causing her to lose control of her vehicle. Her vehicle began to rotate counter-clockwise and traveled into the grass median. The vehicle continued to rotate in the median and upon reaching the opposite embankment became airborne. Ms. Lebron’s vehicle traveled into the southbound lanes directly in the path of Lionel Otero. The left front of Ms. Lebron’s vehicle struck the left front of Mr. Otero’s vehicle. As a result, both Mr. Otero and Olga Otero, a passenger in his vehicle, sustained fatal injuries.

When the State charged Ms. Lebrón with vehicular homicide, she filed a motion to dismiss the charges pursuant to Florida Rules of Criminal Procedure 3.190(c)(4). The crux of the motion was that the undisputed facts did not establish a prima facie case of guilt against her. The only disputed fact in the cause, according to Ms. Lebrón, was the speed of her vehicle at the time she lost control of it. The motion indicated that the driver of the slower vehicle in front of Ms. Lebrón had related in a sworn statement that he did not recall if he signaled prior to making his lane change to the right. The passenger in the slower vehicle stated in a sworn statement that she did not believe the driver of that vehicle signaled prior to beginning the lane change. The facts demonstrated that when both vehicles noticed they were going into the right lane at the same time they both attempted to correct back to the middle lane, however, Ms. Lebrón over corrected and lost control of her vehicle. The driver of the slower vehicle indicated that apart from Ms. Lebron’s speed he did not notice anything erratic about her driving patterns. In addition, the motion claimed that no witnesses testified that Ms. Lebrón was driving in an aggressive manner prior to the crash and no other pre-crash violations were indicated apart from her speed.

The State filed a traverse noting that the driver of the slower vehicle stated that traffic on the day of the accident was mediocre to moderate. According to the State:

The defendant was speeding at least 27 miles per hour over the speed limit during rush hour while attempting to weave around other traffic, therefore, she could reasonably foresee that driving in such a manner and under such conditions was likely to cause death or great bodily harm.

The State argued that the accident was caused by the combination of Ms. Lebron’s speeding and attempting to weave in and out of traffic during rush hour. The State also suggested that because Ms. Lebrón regularly traveled this particular route to work at approximately 5:00 p.m., her familiarity with the conditions would mean that she knew that during rush hour, traffic would be “moderate to heavy.” Finally, the State pointed to section 316.084(2), Florida Statutes (2005), which provides that a driver of a vehicle may overtake and pass another vehicle on the right side only under conditions permitting such movement in safety.

At the hearing on the motion to dismiss defense counsel pointed to the arresting officer’s testimony that apart from her speed, there was no other improper or unlawful driving and that the traffic at that time was moderate. In other words, according to the defense, but for the simultaneous nature of the lane change, even given the speed, this accident would probably not have occurred. Moreover, the defense argued the term “rush hour traffic” was irrelevant because the driver of the slower vehicle had testified that there were no vehicles immediately to his right, left, in front of or behind him except for Ms. Lebrón. Finally, defense counsel indicated that the reason the driver of the slower vehicle believed that Ms. Lebrón didn’t pass to the left was because the left hand lane immediately became a merge lane to the middle lane.

The trial court thereafter entered an order granting Ms. Lebron’s motion to dismiss. The court noted that vehicular homicide cannot be proven without also proving the elements of reckless driving or that the defendant was driving with a willful, wanton disregard for safety. In addition, a defendant must reasonably foresee that the manner and conditions under which he or she was driving could cause death or great bodily harm. The court indicated that because the courts of Florida have thus far decided that speed alone is insufficient to establish reckless driving, then speed alone cannot, accordingly, support vehicular homicide.

When a defendant moves to dismiss a charge pursuant to Florida Rules of Criminal Procedure 3.190(c)(4), the State is required to show only a prima facie case, since the purpose of the motion is to allow a pretrial determination of the law of the case when material facts are not in dispute. The standard of review of a trial court’s order in this connection is de novo. See State v. Williams, 918 So.2d 400 (Fla. 2d DCA 2006). The State, however, is entitled to the most favorable construction of the evidence and all inferences should be resolved against the defendant. Only when the most favorable construction to the State would not establish a prima facie case of guilt should a rule 3.190(c)(4) motion to dismiss be granted. See State v. Pasko, 815 So.2d 680 (Fla. 2d DCA), review denied, 835 So.2d 268 (Fla.2002).

Vehicular homicide, pursuant to section 782.071, Florida Statutes (2004), is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. In D.E. v. State, 904 So.2d 558, 561 (Fla. 5th DCA 2005), this court discussed “vehicular homicide.”

Vehicular homicide is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. See § 782.071, Fla. Stat. (2003). By definition, the crime cannot be proved without also proving the elements of reckless driving. See State v. Del Rio, 854 So.2d 692, 693 (Fla. 2d DCA 2003). Reckless driving is defined as driving with a willful or wanton disregard for safety. See Lewek v. State, 702 So.2d 527, 530 (Fla. 4th DCA 1997); § 316.192(1), Fla. Stat. (2003). “Willful” means “intentional, knowing, and purposeful,” and “wanton” means “with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.” See W.E.B. v. State, 553 So.2d 323, 326 (Fla. 1st DCA 1989)....

As set out by the Florida Supreme Court in McCreary v. State, 371 So.2d 1024 (Fla.1979), the degree of culpability required to find reckless driving is less than that required for culpable negligence (the standard for manslaughter), but more than a mere failure to use ordinary care.

Although a person does not have to foresee the specific circumstances causing the death of a victim in order to be guilty of vehicular homicide, the person must have reasonably foreseen that the same general type of harm might occur if he or she knowingly drove a vehicle under circumstances that would likely cause death or great bodily harm to another.

D.E., 904 So.2d at 561. The analysis first involves a determination of what the circumstances were at the time the defendant was driving. Once the circumstances are understood, the analysis concludes by asking if it was reasonably foreseeable under those conditions that death or great bodily harm could occur.

A number of appellate courts in Florida have held that speed alone is insufficient as a basis for reckless driving. See, e.g., House v. State, 831 So.2d 1230 (Fla. 2d DCA 2002); W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989); Hamilton v. State, 439 So.2d 238 (Fla. 2d DCA 1983). The origin of this maxim seems to have been obscured by time. This court, however, has never directly said that speed alone is not enough. When confronted with the issue, we, as most other appellate courts of this state, have found that speed was not alone in what amounted to reckless driving. Perhaps it is because excessive speed for the prevailing conditions is rarely without other circumstances. Even Hamilton, the most recent progenitor of this line of cases, found that excessive speed was accompanied by other circumstances so that in combination it amounted to reckless driving.

In any event, in the present case, we are once again not compelled to hold that speed alone is enough. We arrive at this conclusion because of the posture in which this case finds itself. This is an appeal from an order granting a motion made by Ms. Lebrón pursuant to Florida Rules of Criminal Procedure 3.190(c)(4). In order to survive this motion, the State, given the benefit of a view of the evidence and inferences most favorable to it, is required to make out only a prima facie case. See Brinkley v. State, 874 So.2d 1199 (Fla. 5th DCA 2004); State v. Patel, 453 So.2d 218 (Fla. 5th DCA 1984). It does not have to show guilt beyond a reasonable doubt, nor produce evidence sufficient to sustain a conviction. See State v. Bonebright, 742 So.2d 290 (Fla. 1st DCA 1998).

Given this rather low bar, we conclude that the trial court erred in granting the motion. The State traversed the motion with specific evidence that Ms. Lebrón had operated her automobile at an excessive rate of speed at a time and under circumstances when traffic conditions might well make her operation of the vehicle reckless. In addition, her decision to attempt a pass of the slower vehicle on the right may have been improper in view of section 316.084(2), previously noted. Thus, at least for the purposes of the motion to dismiss, we think the State made out a prima facie case.

REVERSED and REMANDED.

PALMER and TORPY, JJ., concur.

      . The charging affidavit noted that Ms. Le-brón had a restriction for corrective lenses on her driver's license and would normally wear contact lenses to correct her eyesight. On the morning of the crash she may not have been wearing a contact lens in her right eye because she was suffering from a case of pink eye. As this matter was not argued to the trial court, however, we do not consider it here.


author: PER CURIAM.

text:
    Carlton Tyrone THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2183.
    District Court of Appeal of Florida, First District.
    March 21, 2007.
    Rehearing Denied April 19, 2007.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the circuit court’s denial of his 3.850 motion for post-conviction relief. We find merit in appellant’s argument that the circuit court erred when it granted appellant an evidentiary hearing, but failed to make findings of fact and conclusions of law respecting the evidence and argument presented at said hearing. We affirm, without comment, as to each of appellant’s other claims on appeal.

In the 3.850 motion, filed below, appellant alleged his trial counsel was ineffec-five for failing to request an accomplice jury instruction. The circuit court granted appellant an evidentiary hearing on this claim. However, the order denying appellant’s motion for postconviction relief contains no findings of fact or conclusions of law regarding the substance of appellant’s ineffective assistance of counsel claim.

“If an evidentiary hearing is required, the court shall ... determine the issues, and make findings of fact and conclusions of law with respect thereto.” Fla. R.Crim. P. Rule 8.850(d). In the instant case, the trial court erred by failing to make any findings of fact — either orally or in writing. See Dillbeck v. State, 882 So.2d 969, 972 (Fla.2004); see also Jones v. State, 740 So.2d 520, 524 (Fla.1999) '(“[T]he trial court’s failure ... to make findings of fact and conclusions of law violated Florida Rule of Criminal Procedure 3.850(d).”). Due to the trial court’s failure, this Court may not reach the merits of appellant’s postconviction claim. Rather, we remand this case to the circuit court to make the needed findings. See, e.g., Kornegay v. State, 826 So.2d 1081, 1081 (Fla. 1st DCA 2002).

This matter is AFFIRMED in part; and REMANDED in part with directions. On remand, the circuit court is directed to make factual findings and draw legal conclusions regarding appellant’s claim that counsel was ineffective for failing to request an accomplice liability jury instruction.

HAWKES, THOMAS, and ROBERTS, JJ., concur.

      . The record in this case clearly contains competent, substantial evidence upon which the circuit court could have relied in denying appellant’s claim; however, the existence of the previously cited precedent compels us to remand this case to the circuit court so that it may make the required findings.


author: PALMER, J.

text:
    HIGHTOWER GEOTECHNICAL SERVICES, INC., Appellant/Cross-Appellee, v. HBE-FLORIDA CORPORATION, et al., Appellee/Cross-Appellants.
    No. 5D05-2755.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.
    Rehearing Denied April 25, 2007.

      Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, Rosanne P. Perrine of the Law Office of Rosanne Perrine, Ponte Vedra Beach, Harold S. Lippes of Lippes & Bryan, P.A., Jacksonville, and Dudley B. Birder, Jr., of Birder & Donsky Law Offices, P.A., Gainesville, for Appellant/Cross-Appellee.
    Cheryl L. Worman and F. Eugene Atwood, Jr., of Rogers Towers, P.A., Jacksonville, for Appellee/Cross-Appellants.
   PALMER, J.

Hightower Geotechnical Services, Inc. (Hightower) appeals the final judgment entered by the trial court arising out of litigation between the parties involving a construction contract. Appellees filed a cross-appeal. Determining that the trial court improperly entered a judgment for certain amounts against Hightower, we reverse and remand for entry of an amended final judgment.

Hospital Building and Equipment Company (HBE) is a general contractor that was hired by HBE-Florida to construct an addition onto an Adam’s Mark Hotel. Hightower is a subcontractor who entered into a subcontract with HBE to perform chemical grout stabilization around the construction site.

During the course of construction, problems arose with Hightower’s work. As a result, Hightower was removed from the job. HBE refused to pay two of Hightower’s invoices based on the alleged unsatisfactory work. HBE also hired a different subcontractor to complete the work which was originally to be performed by High-tower.

Hightower filed a complaint against HBE and HBE-Florida seeking to establish and foreclose a construction lien on the hotel property and for breach of contract. HBE filed a counter-claim alleging a breach of contract claim against High-tower.

At trial, Hightower stated it was paid $238,075.20 for its work but contended that it was due additional monies, including re-tainage and unpaid contract sums. HBE claimed, among other things, that it was entitled to recover from Hightower the money it spent to complete the project.

After conducting a bench trial, the trial court concluded that Hightower was owed $5,375.10 for services performed in the last phase of the contract. The court also found that HBE was entitled to recover damages incurred by it in completing the last phase of the work. As a result, a net judgment was entered in favor of HBE.

On appeal, Hightower argues that the trial court erred in denying its motion to amend the final judgment to add an award for unpaid retainage. We find no error in the trial court’s factual conclusion that Hightower was not entitled to recover the retainage because the reasonable value of the work it performed did not exceed the amount it was paid plus the $5,375.10 awarded to it in the final judgment.

However, we conclude that the trial court did err in awarding HBE the money it expended in completing the project after Hightower was removed from the job. No evidence was presented that HBE expended more money to complete the work than it would have paid Hightower if it had properly completed the work. Since HBE was not required to pay Hightower for any of the work it performed on the last phase (except the $5,375.10 for unrelated work during that phase), it could not properly charge Hightower for the money it paid another subcontractor to complete that phase. To do so would improperly allow HBE to receive the work performed on the last phase at no cost. See Mnemonics, Inc. v. Max Davis Assoc., Inc., 808 So.2d 1278 (Fla. 5th DCA 2002) (holding that an award of damages for breach of contract is intended to place the injured party in the position he or she would have been had the breach not occurred).

Accordingly, we reverse the final judgment and remand this case to the trial court for the entry of a judgment in favor of Hightower in the amount of $5,375.10 and for such other relief as is warranted by this opinion.

In closing, we note that Hightower has filed a motion with this court seeking an award of appellate attorney’s fees pursuant to the provisions of section 713.29 of the Florida Statutes on its claim for foreclosure of a construction lien. We provisionally grant that motion and direct the trial court to determine whether Hightower is entitled to prevail on its claim for foreclosure of its construction lien and, if so, to determine the reasonable amount of appellate fees to be awarded.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and EVANDER, JJ., concur.

      . It appears from the record that the only reason Hightower did not prevail on its construction lien claim was because it did not receive a net judgment in its favor. However, it is possible that other grounds existed to deny that claim, but were not articulated by the trial court because of its entry of a net judgment in favor of HBE.


text:
    TECHNICAL MARINE SERVICE INC., Appellant, v. PLANNING SYSTEMS INCORPORATED, Appellee.
    No. 1D05-5054.
    District Court of Appeal of Florida, First District.
    March 26, 2007.
    Rehearing Denied April 26, 2007.
    Bruce P. Anderson, Destín, for Appellant.
    Bill R. Hutto and Larry A. Bodiford of Hutto, Nabors, Bodiford & Warn, Panama City, for Appellee.
   PER CURIAM.

We conclude that the order appealed in this case is not final and that it is otherwise not appealable as a nonfinal order. Accordingly, we dismiss the appeal. The order disposes of only one count of the complaint. Because the remaining count involves the same transaction and the same parties, the order does not fully resolve the controversy in the trial court. See RSH Constructors, Inc. v. Rose Creek Assocs., Ltd., 527 So.2d 967 (Fla. 1st DCA 1988).

ALLEN, PADOYANO, and LEWIS, JJ., concur.


text:
    Robert THOMPSON, Appellant, v. CONE DISTRIBUTING, INC. and Wausau Insurance Company, Appellees.
    No. 1D06-1690.
    District Court of Appeal of Florida, First District.
    March 26, 2007.
    Rehearing Denied April 20, 2007.
    David G. Sullivann, Tallahassee; Bill McCabe, Longwood, for Appellant.
    Tara L. Said of the Law Office of Amy L. Warpinski, Jacksonville, for Appellees.
   PER CURIAM.

The appellant, Robert Thompson, appeals an order of the Judge of Compensation Claims denying benefits for two work related accidents occurring on June 16, 2001, and August 7, 2001. The appellant correctly argues that no competent substantial evidence exists in the record to support the finding that there is a medical relationship between the appellant’s work place injury and his undisclosed prior injury. Therefore, the Judge of Compensation Claims erred in concluding that the appellant’s petitions for benefits were barred by the Martin v. Carpenter, 132 So.2d 400 (Fla.1961), defense. Accordingly, we reverse and remand for further proceedings.

REVERSED.

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


text:
    David GLABMAN, M.D., David Glabman, M.D., P.A. and Pronational Insurance Company, Appellants, v. Jose DE LA CRUZ and Esther De La Cruz, as Personal Representatives of the Estate of Nancy De La Cruz, deceased minor, Appellees.
    No. 3D05-911.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.

      Stephens, Lynn, Klein, Lacava, Hoffman & Puya, Fort Lauderdale; Hicks & Kneale and Dinah S. Stein and Gary Magnarini, Miami, for appellants.
    Grossman Roth Olin Meadow Cohen Yaffa Pennekamp & Cohen and Jay Cohen, Coconut Grove; Podhurst Orseck and Joel D. Eaton, Miami, for appellees.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

This appeal arises out of a medical malpractice case brought by Jose De La Cruz (“Jose”) and Esther De La Cruz (“Esther”), as personal representatives of the Estate of Nancy De La Cruz (“Nancy”), deceased minor, against David Glabman, M.D., David Glabman, M.D., P.A., and Pronational Insurance Company (collectively “Glabman”). The jury returned a verdict in the amount of $8,000,000 on behalf of the De La Cruz family. All post-trial motions, including a post-trial motion for remittitur, were denied. This timely appeal follows. We reverse as to damages only and remand with instructions.

On August 26, 1999, Esther took her teenaged daughter Nancy to see their family physician, Dr. Galinsky. Dr. Galinsky was on vacation and Dr. Glabman, who shared office space with Dr. Galinsky, agreed to see Nancy. Aside from emotional and mental health issues, Dr. Glab-man diagnosed Nancy with rheumatoid arthritis. On or about September 2, 1999, Dr. Glabman performed follow-up lab work which yielded abnormal lab results. He testified at trial that he recommended to Esther that Nancy be taken to a rheuma-tologist. Esther denied she was told to take her daughter to a rheumatologist or that she was informed of the abnormal lab results.

On October 13, 1999, Esther took Nancy to see Dr. Glabman without an appointment because Nancy was extremely ill. Dr. Glabman recommended that Esther take Nancy along with portions of her medical records for emergency care. She was admitted to Jackson Memorial Hospital on the same day and placed in an intensive care unit. Her admitting diagnosis was depression and anorexia and she was subsequently diagnosed with pneumonia. On October 18,1999, she was evaluated by a rheumatologist who immediately diagnosed her with systemic lupus erythe-matosus, commonly known as lupus. Nancy died on October 21, 1999, from complications from her lupus.

Jose and Esther filed a wrongful death action for medical malpractice against the doctors and hospital, including Jackson Memorial Hospital and Dr. Glabman. At trial, counsel for the De La Cruz family put Jose on the stand and elicited highly emotional testimony from him which caused him, the court personnel, and the trial judge to cry. A motion for mistrial was denied. The jury returned an $8,000,000 verdict, which was $2,000,000 more than what plaintiffs’ counsel argued to the jury during closing would be a reasonable award for pain and suffering. Dr. Glabman was found to be eighty percent negligent. The trial court denied motions for new trial or remittitur. Dr. Glab-man contends on appeal that a remittitur is warranted as the damages are so excessive they could only be the result of undue emotion and sympathy.

This court is very mindful that a trial judge’s decision to grant or deny re-mittitur “comes to us properly boxed in the wide discretion of the trial court ... carefully wrapped in presumption of correctness and securely tied with the strong cord of a jury verdict.” Smith v. Goodpasture, 179 So.2d 240, 240-41 (Fla. 2d DCA 1965). Furthermore, when reviewing a trial court’s decision to deny a motion for remittitur, the law has afforded the trial court “considerable deference ... in the matter because of the unique vantage point which the trial court has to personally observe the witnesses and jury.” Rety v. Green, 546 So.2d 410, 418 (Fla. 3d DCA 1989). The appellate court must use an abuse of discretion standard to review a trial judge’s refusal to grant a new trial or remittitur. See Lassitter v. Int’l Union of Operating Eng’rs, 349 So.2d 622, 627 (Fla.1977); see also Winn-Dixie Stores, Inc. v. Robinson, 472 So.2d 722, 725 (Fla.1985).

It is well established that, despite the fact that a jury verdict is higher or lower than the reviewing court believes it ought to have been, the court should decline to interfere with the verdict. See Lassitter, 349 So.2d at 627. However, the court may order a remittitur or new trial if it believes “the amount is so great or small as to indicate that the jury must have found it while under the influence of passion, prejudice or gross mistake.” Lassiter, 349 So.2d at 627; see Harbor Ins. Co. v. Miller, 487 So.2d 46 (Fla. 3d DCA 1986) (jury award so excessive as to be evidence that it was based on emotion and sympathy); Odoms v. Travelers Ins. Co., 339 So.2d 196, 198 (Fla.1976); see also Florida Patient’s Comp. Fund v. Von Stetina, 474 So.2d 783, 790 (Fla.1985) (“[m]ere sympathy cannot sustain a judgment”).

This court is not unsympathetic to the tragic facts of this case. But, after careful review of the record, we are compelled to reverse the jury verdict on damages as they are so excessive that they could only have been a product of passion and emotion based on Jose’s emotional testimony rather than the result of- the record presented. Therefore, this cause is to be remanded for reconsideration of appropriate damages. The verdict is to be “reduced to the highest amount which the jury could have properly awarded.” Rety, 546 So.2d at 420 (citing Lassitter, 349 So.2d at 627). On remand, the trial court must follow the appropriate statutory procedures, set forth in section 768.74, Florida Statutes (2006), when ordering remittitur. See § 768.74, Fla. Stat. (2006); Waste Mgmt., Inc. v. Mora, 940 So.2d 1105 (Fla.2006); Moreno v. Diaz, 943 So.2d 1011 (Fla. 3d DCA 2006);. Philon v. Reid, 602 So.2d 648 (Fla. 2d DCA 1992) (trial court must order a remittitur and only allow for a new trial on damages if the parties refuse to accept the court’s changes in the amount), abrogation on other grounds recognized, Ketchen v. Dunn, 619 So.2d 1010 (Fla. 2d DCA 1993). We affirm the verdict in all other respects.

Reversed as to damages only and remanded with instructions.

      . Jackson Memorial Hospital settled its lawsuit and all other defendants were dismissed from the case except Dr. Glabman.

      . Esther was awarded $2,000,000 for past pain and suffering and $2,000,000 for future pain and suffering. Jose was awarded $2,000,000 for past pain and suffering and $2,000,000 for future pain and suffering.


text:
    Marcus PARRISH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-160.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Marcus Parrish, Crawford, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the circuit court’s denial of appellant’s rule 3.800(a) motion to correct illegal sentence. Appellant was convicted of one count of sale of cocaine and one count of possession of cocaine with intent to sell and was sentenced as a habitual felony offender. In his rule 3.800(a) motion, he argues that the HFO sentence imposed by the court violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We have previously held that Apprendi and Blakely do not apply to recidivism statutes such as our HFO statute, section 775.084, Florida Statutes. McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004) and cases cited. In addition, even if Apprendi and Blakely did apply, the error in not having a jury make the finding that appellant is a habitual felony offender would be harmless. Galindez v. State, 955 So.2d 517, 2007 WL 471164 (Fla. Feb. 15, 2007).

Affirmed.

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


author: BROWNING, C.J.

text:
    Christine Lashay ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1840.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Rehearing Denied April 24, 2007.
    Nancy A. Daniels, Public Defender, and Steven A. Been, Laura Anstead, and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Appellant seeks reversal of her convictions and judgment of second-degree murder. She alleges that the trial court reversibly erred by failing to conduct a hearing on Appellant’s competence under Florida Rule of Criminal Procedure 3.210 on the authority of Robertson v. State, 699 So.2d 1343 (Fla.1997), receded from on other grounds in Delgado v. State, 776 So.2d 233 (Fla.2000); Hill v. State, 473 So.2d 1253 (Fla.1985); and Burns v. State, 884 So.2d 1010 (Fla. 4th DCA 2004). We agree and reverse.

Hill, Robertson, and Bums hold that it is the independent duty of the trial judge to grant a competency hearing under Florida Rule of Criminal Procedure 3.210 when there is evidence that a defendant may be incompetent to stand trial, not that he or she is incompetent (however, of course, it is also the duty of defense counsel, not exercised here).

The facts reveal this is the case here. The trial judge first appointed a Dr. Bing-ham to inquire about Appellant’s competency to stand trial; he concluded that Appellant had an overall I.Q. of 58 and was mentally retarded and incompetent to stand trial. After receipt of Dr. Bing-ham’s evaluation, the trial court ordered another evaluation of Appellant’s competency to stand trial by a Dr. Larson. Dr. Larson conducted an examination and opined that Appellant, 14 years of age at the time of examination (13 at the time of the homicide), was functioning on a third-grade level with an I.Q. of 69, rather than 58, as concluded by Dr. Bingham. However, Dr. Larson also opined that Appellant was within the mildly retarded range and that Appellant “earned a verbal I.Q. score of 66, a performance I.Q. of 69 and a full scale I.Q. score of 65.” Of the two tests that Dr. Larson conducted, one indicated that Appellant was mildly retarded, and the other indicated that her intelligence was low, but not in the retarded range. He concluded that she might be mentally retarded, but more likely than not she functioned above the retarded range. Following the submission of Dr. Larson’s written report, Appellee moved for a third examination by a Dr. Haga. Dr. Haga’s bottom-line conclusion was that Appellant’s “true intellectual ability probably falls within the borderline category more so than in the mild mentally retarded category,” and in his opinion did not meet “the diagnostic criteria for mental retardation.” All of these opinions were presented to the trial court in writing.

The trial court, after receipt of these written reports, on two occasions scheduled competency hearings, but for unknown reasons a hearing was never held. Appellant’s attorney can be faulted for not ensuring that a hearing be held, but this does not relieve the trial court from its superior and independent duty under Robertson, Hill, and Bums to conduct a hearing sua sponte. We conclude from this record that the evidence of Appellant’s mental state required the trial court sua sponte to conduct a competency hearing of Appellant. The opinions of the three experts conflicted, and they could be properly assessed only by a hearing to “sort out” their conflicting opinions and determine Appellant’s competency by non-hearsay testimony.

Accordingly, we REVERSE and REMAND with instructions that the trial judge conduct a hearing on Appellant’s competency to stand trial under Rule 3.210 and deal with Appellant in a manner consistent with the determination made at such competency hearing.

DAVIS and LEWIS, JJ. concur.


text:
    David GIRARD, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-1139.
    District Court of Appeal of Florida, First District.
    April 5, 2007.
    David Girard, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition to invoke all writs jurisdiction is denied.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


author: MAY, J.

text:
    John J. BOSWELL, individually and as Trustee, Appellant, v. Yonas ZEGEYE and Hirut Seleshi, Appellees.
    No. 4D06-2660.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Alen R. Tomlinson of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellant.
    Alfred A. LaSorte, Jr., and Matthew R. Chait of Shutts & Bowen LLP, West Palm Beach, for appellees.
   MAY, J.

The seller appeals a partial summary judgment that determined he was not entitled to a one million dollar deposit as liquidated damages for the buyers’ breach of an agreement for the sale of real property. The outcome of the appeal is determined by whether Lefemine v. Baron, 573 So.2d 326 (Fla.1991) applies. We hold that it does not and reverse.

On June 23, 2005, the buyers agreed to purchase the seller’s home for $5,750,000. The buyers paid an initial deposit of $275,000 with the balance due at the August 15, 2005 closing. The contract provided “for liquidated damages of all deposits in full settlement of any claims for failure to perform this contract.”

When the buyers were unable to close, the parties entered into Addendum No. 2 on August 13, 2005. This Addendum extended the closing date to November 15, 2005; required the buyers to pay an additional $725,000 deposit; and allowed disbursement of the $275,000 initial deposit to the seller. It also permitted the buyers to occupy the property beginning August 13, 2005, until the closing date of November 15, 2005. In exchange, the buyers agreed to pay an “Occupancy Fee” of $28,750 per month starting September 13, 2005, and became responsible for the maintenance and utility fees.

The Addendum provided that the “deposit shall be a deposit held under the Contract and not a security deposit arising out of the occupancy of the Property.” The default section provided:

A default in any of Purchaser’s obligations under this Addendum No. 2 shall be a default in the Contract. In the event Purchaser fails to make any payment due to Seller pursuant to this Addendum No. 2, the Contract shall be in default and Seller shall have the right to terminate the occupancy by giving notice to Purchaser at the Property and all other rights and remedies which may be available under Florida law.

The buyers failed to pay some of the occupancy fees, maintenance/utility fees, and the requisite monies at closing. The parties then extended the closing date to November 30, 2005. Once again, the buyers failed to close.

The seller evicted the buyers from the home seven-and-a-half months later. He then filed suit against the buyers for damages resulting from the buyers’ occupancy of the home. The buyers filed an amended answer and counterclaim.

Count three of the buyers’ counterclaim requested return of the million dollar deposit. Relying on Lefemine, the buyers filed a motion for partial summary judgment. They argued that the deposit constituted an impermissible, unenforceable penalty. The trial court agreed and entered a partial summary judgment, ordering the seller to return the one million dollar deposit to the buyers within fifteen days.

The seller moved for rehearing and argued the ruling was contrary to the intention of the parties. The trial court agreed to rehear the matter if the seller deposited the one million dollars into the trust account of the buyers’ attorney. The seller did not deposit the monies and filed this non-final appeal.

The seller argues that Lefemine does not apply because the default provision of the Addendum did not provide the seller with an option to pursue actual damages in lieu of, or in addition to, the liquidated damages for breach in the contract for sale of the property. The buyers argue the language of the Addendum modified the contract to provide the very sort of option that Lefemine prohibits.

This appeal requires us to review the language of the contract and to determine whether Lefemine applies. We undertake de novo review of trial court orders interpreting contracts. Tiny Treasures Acad. & Get Well Ctr., Inc. v. Stirling Place, Inc., 916 So.2d 991, 993 (Fla. 4th DCA 2005) (quoting Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003)).

In Lefemine, the Supreme Court of Florida reviewed a contract that permitted the seller an option to either retain the security deposit as liquidated damages or bring an action at law for actual damages. 573 So.2d at 328. The court held that the forfeiture clause “constituted a penalty as a matter of law because the existence of the option negated the intent to liquidate damages.” Id. at 330.

We find Lefemine inapplicable for the following reasons. First, Lefemine reiterated this state’s long-standing policy of disallowing penalty provisions for breach of a real estate contract. See, e.g., Poinsettia Dairy Prods. v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936); Southern Menhaden Co. v. How, 71 Fla. 128, 70 So. 1000 (1916). Those policy concerns are inapplicable to a new agreement entered into to resolve a dispute after a breach has occurred. Here, the buyers entered into a new agreement with a larger deposit to extend the closing date and avoid loss of their initial deposit. Second, the Lefemine contract did not include the rental of the subject property pending the closing. And third, the default provision in the Addendum simply provided alternative remedies for the buyers’ breach of the rental and maintenance/utility fee provisions.

We therefore reverse the partial summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.

Reversed and Remanded.

STONE and FARMER, JJ., concur.


author: SHAHOOD, J.

text:
    Jerry David CORIE and Genie H. Corie, together as Husband and Wife, and Coalition for Property Rights, Inc., a Florida nonprofit corporation, Petitioners, v. CITY OF RIVIERA BEACH; Riviera Beach City Council; Riviera Beach Community Redevelopment Agency; and Michael Brown, Mayor of the City of Riviera Beach, and Norma Duncombe, Ann Iles, James Jackson, Vanessa Lee, and Elizabeth Wade, Members of the Riviera Beach City Council, all in their official capacities, Respondents.
    No. 4D06-3571.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.

      Valerie A. Fernandez and Steven Geoffrey Gieseler of Pacific Legal Foundation, Coral Gables, for petitioners.
    Bradley G. Harper of Olds & Stephens, P.A., West Palm Beach, for respondents.
   SHAHOOD, J.

In this petition for writ of prohibition, Jerry David Corie and Genie H. Corie, husband and wife, and Coalition for Property Rights, Inc. (petitioners), plaintiffs below, seek relief barring Palm Beach County Circuit Court Judge Diana Lewis (Judge Lewis) from continuing to preside over a lawsuit they filed against the City of Riviera Beach in connection with prospective eminent domain proceedings. We grant the petition.

The City of Riviera Beach is presently involved in an effort to use the power of eminent domain to seize private property deemed blighted for private redevelopment. Petitioners sued the city and other related defendants (collectively, the city), seeking (1) an injunction against the city’s expenditure of public money to further this redevelopment scheme, and (2) a declaratory judgment that the city’s action violates Florida law.

Their motion to disqualify Judge Lewis alleged that her father, Philip D. Lewis (Mr. Lewis), deeded to himself, as trustee of the Philip D. Lewis Trust, property which is located in the city’s Community Redevelopment Area, the target of the redevelopment plan. At various times the property has been on the list of those parcels to be taken and at other times it has not been on the list, but either way the plan will significantly impact the monetary value of Mr. Lewis’s property; e.g., if it is not taken, redevelopment of surrounding properties likely will result in a significant increase in the value of Mr. Lewis’s property. Thus, Mr. Lewis has an interest in the instant action, and his familial relationship with Judge Lewis gives rise to petitioners’ well-grounded fear that they may not receive a fair hearing from Judge Lewis. In a written order, Judge Lewis denied the motion without stating any reason.

When the technical requirements are met, rule 2.330(f), Florida Rules of Judicial Administration, requires a judge to enter an order granting disqualification if the motion to. disqualify is “legally sufficient.” The motion is legally sufficient if it shows the party’s well-grounded fear that the party will not receive a fair trial. See Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). It is not a question of what the judge feels, but the feeling in the mind of the party seeking to disqualify and the basis for that feeling. See Wargo v. Wargo, 669 So.2d 1123, 1124 (Fla. 4th DCA 1996). However, it is the burden of the party seeking disqualification to show-that party has a well-grounded fear of not receiving a fair trial. See Adkins v. Winkler, 592 So.2d 357 (Fla. 1st DCA 1992).

Petitioners argue that their motion and affidavits demonstrate precisely the kind of well-grounded fear that entitles a party to disqualify a trial judge: the presiding judge’s father owns property the value of which will be significantly affected by the outcome of this case. The case presents a potential for the judge’s father to benefit, and perhaps also the judge herself, depending on the provisions of the trust, by an increase in the value of the property in question.

Besides the fear of not receiving a fair trial or hearing because of some specifically described prejudice or bias of the judge, which is a ground listed in rule 2.330(d)(1), rule 2.330(d)(2) lists the following as a separate ground:

(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

Fla. R. Jud. Admin. 2.330(d)(2) (emphasis added). Clearly, Judge Lewis is related to Mr. Lewis by consanguinity within the third degree, and arguably Mr. Lewis is interested in the result.

Petitioners also make reference to section 38.02, Florida Statutes, and Florida Code of Judicial Conduct Canon 3E. Section 38.02, Florida Statutes (2006) (emphasis added), provides in part as follows:

In any cause in any of the courts of this state any party to said cause, or any person or corporation interested in the subject matter of such litigation, may at any time before final judgment, if the case be one at law, and at any time before final decree, if the case be one in chancery, show by a suggestion filed in the cause that the judge before whom the cause is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto, or is interested in the result thereof.... If the truth of any suggestion appear from the record in said cause, the said judge shall forthwith enter an order reciting the filing of the suggestion, the grounds of his or her disqualification, and declaring himself or herself to be disqualified in said cause.

Canon 3.E(l)(e) (emphasis added) provides in pertinent part as follows:

E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(c) the judge knows that he or she individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding!.]

The comment to Canon 3E provides that “a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.” (Emphasis added.)

The city’s strongest argument is that petitioners’ motion was legally insufficient for (1) failure to allege a direct pecuniary or direct property interest and (2) failure to allege a right or privilege in the subject matter of litigation whereby liability or pecuniary gain must occur on event of suit. Compare State v. Chillingworth, 95 Fla. 699, 116 So. 633, 634-35 (1928) (“ ‘The interest which disqualifies a judge is a direct pecuniary or a direct property interest or one which involves some individual right or privilege in the subject-matter of the litigation whereby a liability or pecuniary gain must occur on the event of the suit.’ ”) (quoting 33 C.J. 992). If the instant litigation affects Mr. Lewis’s property, it will do so only indirectly; neither liability nor pecuniary gain must necessarily and directly result from this lawsuit.

Nevertheless, we hold, pursuant to Canon 3.E(l)(c), in that her father has “an economic interest in the subject matter in controversy” that “could be substantially affected by the proceeding,” the trial judge should have disqualified herself from further consideration of this proceeding. This is confirmed by the comment to Canon 3E, which provides that “a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.”

Based on the foregoing, we grant the petition for writ of prohibition and direct the Chief Judge of the Fifteenth Judicial Circuit to have this case reassigned to a successor judge.

Petition Granted.

TAYLOR and MAY, JJ., concur.


text:
    Juan J. RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-89.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.

      Juan J. Rodriguez, Clermont, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Juan Rodriguez, appeals the summary denial of his rule 3.850 amended motion for postconviction relief. We affirm, without comment, as to all issues except one and six, which we reverse and remand for either an evidentiary hearing or attachment of records that conclusively refute the allegations.

The State charged Rodriguez with three counts of armed sexual battery. After jury selection, Rodriguez accepted a plea offer wherein the State would drop two of the charges and amend the final count to the lesser-included offense of attempted sexual battery. In exchange, Rodriguez agreed to a ten-year prison term as a habitual felony offender with a five-year minimum mandatory sanction as a prison releasee reoffender. Rodriguez did not appeal the conviction or the sentence but did seek timely relief in a rule 3.850 motion and a subsequent amended motion.

Claims of ineffective assistance of counsel, raised in a sworn rule 3.850 motion, may be summarily denied if legally insufficient or if portions of the record that conclusively refute the factual allegations are attached. See Rose v. State, 617 So.2d 291, 296 (Fla.1993), cert. denied, 510 U.S. 903, 114 S.Ct. 279, 126 L.Ed.2d 230 (1993). In order to demonstrate ineffective assistance of counsel, the movant must show counsel’s performance was deficient beyond reasonable professional standards and there is a reasonable probability counsel’s deficient performance affected the outcome of the proceeding or rendered it fundamentally unfair. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Provenzano v. State, 616 So.2d 428, 430-31 (Fla.1993). Where the movant entered a plea, the prejudice prong requires the movant to allege he would not have entered the plea but instead would have gone to trial as charged. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Cousino v. State, 770 So.2d 1258 (Fla. 4th DCA 2000).

Issue one of the amended motion alleged ineffective assistance of counsel where the attorney supposedly told Rodriguez that the State possessed DNA or hair-sample evidence that implicated Rodriguez in the crime. It appears the lab report does not contain such evidence, though it also appears clear that the facts of the crime would have been such that no similar DNA should have been found in or on the victim. While the State contends the lack of evidence should have been expected by the defense or that the eventual conviction, for attempted sexual battery, does not need evidence of a completed crime, this does not get to the heart of the allegation. If the attorney falsely informed Rodriguez of inculpatory evidence, where the attorney knew none existed, then Rodriguez’s decision to accept a plea may not have been voluntary. See generally Cottle v. State, 733 So.2d 963, 967 (Fla.1999) (ineffective assistance of counsel for failing to properly convey a plea offer); Wilson v. State, 901 So.2d 885 (Fla. 4th DCA 2005) (failure to inform defendant of viable defense prior to accepting plea). An evidentiary hearing could determine whether the attorney did provide such false information and whether Rodriguez would have accepted the plea had he known the true state of the evidence.

Issue six presented another allegation of ineffective assistance of counsel, wherein Rodriguez claims his attorney failed to inform him of potential impeachment evidence concerning the victim. Specifically, Rodriguez claims a detective overheard the victim and her friend talk in Spanish about getting their stories straight prior to a deposition. Supposedly, had Rodriguez known such evidence existed, he would have forgone a plea and gone to trial on three counts of armed sexual battery. The record before this Court does not conclusively refute the allegation, though the State contends Rodriguez admitted he knew of “favorable information” prior to entering his plea. This general response is not supported by the record on appeal and thus does not conclusively refute Rodriguez’s direct, sworn allegation that he was not aware of this evidence prior to imposition of his sentence after plea. The allegation is otherwise legally sufficient; thus, we must remand for record attachments or an evidentiary hearing as to whether the attorney failed to inform Rodriguez of this evidence and whether a reasonable person would have forgone the plea deal based upon this knowledge.

Based on the record presented to this Court, we affirm as to issues two, three, four, five, and seven, but reverse as to issues one and six. Upon remand, the lower court shall either attach portions of the record that conclusively refute the allegations of error or hold an evidentiary hearing.

Affirmed in Part, Reversed in Part, and Remanded with Instructions.

FARMER, GROSS and MAY, JJ., concur.


author: HAZOURI, J.

text:
    Willie MANSFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-347.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.

      Paul Morris of Law Offices of Paul Morris, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Willie Mansfield, appeals from his conviction for burglary of a structure with a battery, grand theft, and battery. The evidence showed that Mansfield walked into the lobby of the corporate offices of Bennett Auto Supply in Broward County and, finding no one at the reception desk, entered an office located in the reception area but separate and distinct from the reception desk. From that office, Mansfield took a laptop computer and then left the building. Darryl Smith, an employee of Bennett Auto Supply, had been using the office but was momentarily absent from that office when Mansfield entered it. As Smith was returning to the office, he saw Mansfield walk out with the laptop. Smith proceeded to chase after Mansfield in order to retrieve the laptop. When Smith tried to stop Mansfield, an altercation ensued during which Smith was bitten on the hand by Mansfield. Another employee called the police, and Mansfield was arrested.

Mansfield raises six issues on appeal, three of which merit discussion. He first argues that his motion for judgment of acquittal on the burglary charge, should have been granted because the area where the burglary took place was open to the public. “[I]f a defendant can establish that the premises were open to the public, then this is a complete defense.” Miller v. State, 733 So.2d 955, 957 (Fla.1998) (citations omitted) (emphasis in original). However, the jury instruction for burglary states in pertinent part: “A person may be guilty of this offense if he or she entered into or remained in areas of the premises which he or she knew or should have known were not open to the public.” Fla. Std. Jury Instr. (Crim.) 13.1. Generally, determining whether an area is open to the public is a question of fact for the jury to decide. See Johnson v. State, 786 So.2d 1162, 1164 (Fla.2001). Although in some cases, it has been held that there was no evidence which showed that a reasonable person would conclude that a particular area was not open to the public, see, e.g., Savage v. State, 832 So.2d 807 (Fla. 2d DCA 2002), in this case a question of fact was raised. Therefore, the trial court properly denied the motion for judgment of acquittal.

Mansfield also asserts that the trial court erred in denying his motion for judgment of acquittal on the charge of grand theft because the state failed to prove the essential element of value. We agree. In order to prove grand theft, the state must prove that the value of the laptop was greater than $300. § 812.014(2)(c)l, Fla. Stat. (2005). Section 812.012(10)(a)l, Florida Statutes (2005), defines “value” as “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.”

In Gilbert v. State, 817 So.2d 980 (Fla. 4th DCA 2002), this court cited I.T. v. State, 796 So.2d 1220 (Fla. 4th DCA 2001), in which this court adopted a two-pronged test for determining whether the evidence adduced at trial to prove the value of the stolen property is sufficient to withstand a motion for judgment of acquittal. First, the court must ascertain whether the person testifying is competent to testify to the value of the property. Id. at 1221. This court explained:

“With regard to the first prong ... an owner is generally presumed as competent to testify to the value of his stolen property. The apparent rationale for this rule is that an owner necessarily knows something about the quality, cost, and condition of his property.” [Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983) ] (citation omitted). Mere ownership, however, is insufficient, and the witness must have personal knowledge of the property. Id.

I.T., 796 So.2d at 1221-22.

Second, if the person is competent, the court must ascertain whether the evidence adduced at trial is sufficient to prove that the property was worth over $300 at the time of the theft. Id. Absent direct testimony of the market value of the property, proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.

Gilbert, 817 So.2d at 982.

The witness in this case and his testimony meet neither of the prongs. The employee, Smith, did not own or buy the laptop. He just used it. He did not testify about the condition of the computer, other than that it worked. As to the second prong, Smith did not testify as to the value at the time of the theft. He testified only that the original invoice fdr the laptop indicated that the cost was $1900 at the time of its purchase five years earlier. This testimony was based upon his seeing the purchase invoice, not through his personal knowledge of the cost. He did not testify as to its depreciation since its purchase.

In Doane v. State, 847 So.2d 1015 (Fla. 5th DCA 2003), during a burglary, two computer monitors, two central processing units, two keyboards, a scanner, a printer, and a 35 mm Nikon camera were taken from the victim’s office. The victim testified that he paid $1588 for one of the computers and $320 for the scanner at least three years before. The victim explained that the other computer was purchased by his property manager and he could not recall how much it was other than it was “several thousand dollars.” Id. at 1017. It cost him more than $3000 to replace the computers, but he did not buy the identical models. The district court found that although the testimony was competent, it was insufficient to prove that the property was worth over $300 at the time of the theft. The state did not offer direct testimony of the market value, the manner in which it had been used, its general condition and quality, or its depreciation percentage. “Furthermore, as computer equipment can become obsolete very quickly, the value of the stolen equipment was not ‘so obvious as to defy contradiction.’” Id. at 1018 (citation omitted).

Because the state failed to prove beyond a reasonable doubt the value of the laptop was greater than $300, the conviction for grand theft is reversed and we remand with directions to enter a judgment for petit theft.

Finally, Mansfield argues and the state concedes that double jeopardy precludes his conviction for both burglary with a battery and misdemeanor battery. Because we affirm Mansfield’s conviction for burglary with a battery, the misdemeanor battery conviction must be vacated.

Affirmed in Part, Reversed in Part and Remanded.

WARNER and POLEN, JJ., concur.


author: ORFINGER, J.

text:
    Beatrice A. HENDERSON, Appellant, v. DEPARTMENT OF HEALTH, BOARD OF NURSING, Appellee.
    No. 5D06-977.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.

      Beatrice A. Henderson, Ormond Beach, Pro Se.
    Philip Monte, Assistant General Counsel, Department of Health, Tallahassee, for Appellee.
   ORFINGER, J.

Beatrice A. Henderson, a licensed practical nurse (LPN), appeals a final order of the Department of Health, Board of Nursing (“Board”), sanctioning her for unprofessional conduct in violation of section 464.018(l)(h), Florida Statutes (2001), and Florida Administrative Code Rules 64B9-8.005(2) and 64B9-8.005(15). On appeal, Ms. Henderson contends that she was denied due process; disputes the Administrative Law Judge’s (“ALJ”) findings that she engaged in unprofessional conduct by (1) administering medications or treatments in a negligent manner and (2) practicing beyond the scope of her license, educational preparation or nursing experience; and submits that her punishment was “cruel and unusual.” We affirm.

The Board filed an administrative complaint against Ms. Henderson, alleging that she had engaged in unprofessional conduct in violation of section 464.018(l)(h). The complaint asserted that Ms. Henderson administered medications or treatments in a negligent manner when she gave two ten-milligram doses of morphine to a patient when only six to eight milligrams had been prescribed by the patient’s physician. The complaint further alleged that Ms. Henderson administered the doses of morphine without the supervision of a registered nurse or physician, thus, practicing beyond the scope of her license, educational preparation, or nursing experience.

Ms. Henderson denied the allegations and requested a formal hearing before the Division of Administrative Hearings (“DOAH”). After the formal hearing, the ALJ issued a Recommended Order, concluding that there was clear and convincing evidence that Ms. Henderson had engaged in unprofessional conduct by (1) administering medications or treatments in a negligent manner and by (2) practicing beyond the scope of her license, educational preparation or nursing experience. The ALJ recommended that Ms. Henderson be placed on probation for a period of two years, and that she be required to pay a fine in the amount of $350. After the Board adopted the findings of fact, conclusions of law, and the penalty recommended by the ALJ, this appeal followed.

Ms. Henderson argues that she was deprived due process because of the delay between initiation of the proceedings and a formal hearing. Specifically, Ms. Henderson argues that “[w]hat has happened to [her] is a travesty of justice, it is an abuse of power, it is NO Due Process. It is a stonewalling and cover-up.” She further alleges that:

There has been no due process, in a timely manner; I have suffered from the false accusations, loss of my career as a hospital Medical Surgical Nurse, benefits, time lost over five years, fear and anxiety, loss of confidence and skills, emotional and financial punishment and being humiliated, and spoken of in such harsh terms as Ms. Strade did at the Hearing. A person should not have to endure this.

In a non-criminal case, the respondent must show that she was prejudiced by the delay to demonstrate a due process violation. See Gordon v. Savage, 383 So.2d 646, 649 (Fla. 5th DCA 1980). That was not done here. While the delay in reaching a final resolution is regrettable, Ms. Henderson has not demonstrated any prejudice.

As to her due process claim, the Florida Supreme Court set forth the applicable standards in Keys Citizens for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 948 (Fla.2001):

The basic due process guarantee of the Florida Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” Art. I, § 9, Fla. Const. The Fifth Amendment to the United States Constitution guarantees the same. As this Court explained in Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla.1991), “[procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue.” Procedural due process requires both fair notice and a real opportunity to be heard. See id. As the United States Supreme Court explained, the notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (citations omitted). Further the opportunity to be heard must be “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); accord Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (stating that procedural due process under the Fourteenth Amendment of the United States Constitution guarantees notice and an opportunity to be heard at a meaningful time and in a meaningful manner).
The specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding. See Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997); see also Mullane, 339 U.S. at 313, 70 S.Ct. 652, 94 L.Ed. 865 (stating that notice and opportunity for hearing need only be appropriate to the nature of the case). As the Supreme Court has explained, due process, “unlike some legal rules, is not a technical concept with a fixed content unrelated to time, place and circumstances.” Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Instead, “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Here, the Board followed the procedures set forth in Keys Citizens and sections 456.073 and 120.569, Florida Statutes, which govern administrative proceedings. Ms. Henderson received notice of the allegations against her. After Ms. Henderson denied the charges, she asked for and received a formal hearing, wherein she was given a meaningful opportunity to respond to the charges. We conclude that Ms. Henderson received all due process protections to which she was entitled.

Ms. Henderson next assails the ALJ’s factual findings. In her Initial Brief, Ms. Henderson’s “facts” significantly differ from the ALJ’s findings. Thus, it appears that she is challenging the ALJ’s findings of fact, which were incorporated into the Board’s final order.

All parties to a formal hearing before the DOAH have the right to file exceptions to an ALJ’s recommended order within fifteen days of its issuance. See § 120.57(l)(b), (k), Fla. Stat. (2005). A party cannot raise issues on appeal that were not properly excepted to or challenged before an administrative body. See Comm’n on Ethics v. Barker, 677 So.2d 254, 256 (Fla.1996); Couch v. Comm’n on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993) (holding that appellant had waived his right to challenge recommended order’s findings of fact because he did not file exceptions to hearing officer’s findings of fact). Because Ms. Henderson failed to challenge the factual findings before the Board, she cannot do so now for the first time on appeal. See, e.g., Kantor v. Sch. Bd. of Monroe County, 648 So.2d 1266 (Fla. 3d DCA 1995) (holding that terminated school employee could not argue on appeal matters that were not properly excepted to or challenged before school board, and, thus, were not preserved for appellate review).

Even if considered on the merits, Ms. Henderson’s challenge to the ALJ’s findings of fact would fail, as the findings are supported by competent, substantial evidence. “[A] reviewing court may set aside agency action only when it finds that the action is dependent on findings of fact that are not supported by substantial competent evidence in the record, material errors in procedure, incorrect interpretations of law, or an abuse of discretion.” Malave v. Dep’t of Health, Bd. of Med., 881 So.2d 682, 683 (Fla. 5th DCA 2004); see § 120.68(7), Fla. Stat. (2005). When factual findings are reviewed, the court must not substitute its judgment for that of the agency in assessing the weight of the evidence or resolving disputed issues of fact. See § 120.68(10), Fla. Stat. (2005).

Finally, Ms. Henderson submits that her punishment was “cruel and unusual.” In Criminal Justice Standards & Training Commission v. Bradley, 596 So.2d 661, 663 (Fla.1992), the court recognized that a primary function of professional disciplinary boards is to determine the appropriate punishment for misconduct of the professionals regulated. In the instant ease, it was determined that Ms. Henderson engaged in two instances of unprofessional conduct in violation of section 464.018(l)(h) and Florida Administrative Code Rules 64B9-8.005(2) and 64B9-8.005(15). As punishment, the Board imposed a fine of $350 and placed Ms. Henderson on probation for two years. Ms. Henderson claims that this punishment was “cruel and unusual.” This argument lacks merit as the two-year probationary period and $350 fine is well within the range of penalties provided by the Board’s disciplinary guidelines for violating section 464.018(l)(h). See Fla. Admin. Code R. 64B9-8.006(3)(p) (providing that first-offense penalty for unprofessional conduct, in violation of section 464.018(l)(h) ranges from a $250 fine to a $500 fine and probation).

Having carefully reviewed the record and finding no reversible error, we affirm the Board’s order.

AFFIRMED.

THOMPSON and TORPY, JJ., concur.

      . In addition, Ms. Henderson argues that she "[has] been told that [she] was a victim of reverse discrimination.” Ms. Henderson did not raise any claim of reverse discrimination below. As a result, this claim cannot be raised on appeal. See Worster v. Dep’t of Health, 767 So.2d 1239, 1240 (Fla. 1st DCA 2000) (reiterating that in appeal from administrative proceeding, party cannot argue on appeal matters that were not properly excepted to or challenged before agency).

      . Matters not excepted to or raised properly before a licensing board may still be raised where an appellant can show excusable neglect or fundamental error. See, e.g., Shaker Lakes Apartments Co. v. Dolinger, 714 So.2d 1040 (Fla. 1st DCA 1998) (excusable neglect); Fla. Dep’t of Corrs. v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987) (fundamental error). Ms. Henderson does not raise either issue in the instant appeal.


text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, and Florida Statewide Advocacy Council, Appellants, v. Margaret ROSA, Appellee.
    No. 1D06-2853.
    District Court of Appeal of Florida, First District.
    April 17, 2007.
    John S. Derr and Joshua E. Laws of John S. Derr, P.A., Tallahassee, for Appellants.
    Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Appellee.
    Richard E. Johnson as counsel for Ami-cus Curiae National Employment Lawyers Association, Florida Chapter.
   PER CURIAM.

AFFIRMED. Florida Dept. of Education v. Garrison, 1D06-2312, 954 So.2d 84, 2007 WL 1146455 (Fla. 1st DCA April 19, 2007).

ALLEN, WEBSTER and ROBERTS, JJ., concur.


text:
    Alexander D. WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2594.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2007.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant

      Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Stevens v. State, 409 So.2d 1051 (Fla.1982).

PLEUS, C.J., ORFINGER and EVANDER, JJ., concur.


text:
    D.W.A., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2816.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2007.
    James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See State v. Polanco, 658 So.2d 1123 (Fla. 3d DCA 1995).

PLEUS, C.J., ORFINGER and EVANDER, JJ., concur.


text:
    Michael D. GEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0566.
    District Court of Appeal of Florida, First District.
    April 19, 2007.

      Bill White, Public Defender, Fourth Judicial Circuit, and Thomas E. Townsend, Jr., Assistant Public Defender, Yulee, for Petitioner.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Michael D. Gee petitions for a writ of prohibition, contending that his right to a speedy trial under the Interstate Agreement on Detainers, section 941.45, Florida Statutes, (IAD) was violated. We have jurisdiction, see Bogue v. Fennelly, 705 So.2d 575 (Fla. 4th DCA 1997).

Gee, then an inmate in a Georgia prison, made a request for return to Nassau County for disposition of certain felony charges pending against him there. The request complied with the IAD and was received and filed by the clerk of the circuit court on July 5, 2006, and the State Attorney acknowledged receipt of the request on July 13, 2006. Article 111(a) of the IAD, which controls this proceeding, provides for trial to be held within 180 days of receipt of the request by the clerk of the court and the State Attorney and thus the speedy trial time expired on January 9, 2007, at the latest. Gee’s defense counsel filed a motion to dismiss on speedy trial grounds on January 16, 2007, and after a hearing, the motion was denied.

In the trial court, the state argued that it was entitled to the “window of recapture” set forth in Florida Rule of Criminal Procedure 3.191(p). Under that rule subdivision, the defendant must file a “notice of expiration of speedy trial time” and, within five days thereafter, the court shall hold a hearing. If it finds the defendant is correct, the state shall have ten days to bring the defendant to trial. Without a proper “notice of expiration of speedy trial time” the defendant is not entitled to discharge on speedy trial grounds. State v. McCullers, 932 So.2d 373 (Fla. 2d DCA 2006).

Petitioner argues that he filed his motion to dismiss in reliance on the IAD and therefore rule 3.191 does not apply. However, cases such as Vining v. State, 637 So.2d 921 (Fla.1994) and State v. Garza, 807 So.2d 790 (Fla. 2d DCA 2002) indicate otherwise. In light of those cases, we find that rule 3.191, or at least subdivision (p) thereof, applies to a party seeking to invoke his or her speedy trial rights under the IAD in this state. The correctness of this conclusion is bolstered by the fact that the IAD itself contains no procedural provisions for enforcement of the act’s right to speedy trial in the circuit court.

The circuit court did not err in denying Gee’s motion to dismiss on these facts. The petition for writ of prohibition is therefore denied.

PETITION DENIED.

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