author: GUNTHER, J.

text:
    SHANDS TEACHING HOSPITAL AND CLINICS, INC. and University of Florida, Board of Trustees, Appellants, v. Adel SIDKY, M.D., Jean Foucauld, M.D., Steven Borzak, M.D., Florida Cardiology Group, P.A., Damien Joy, M.D., Western Surgical Specialists, P.A., and Kim Ambry, as Personal Representative of the Estate of Daniel Williams, deceased, Appellees.
    No. 4D06-680.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.
    Rehearing Denied Sept. 20, 2006.

      Warren B. Kwavnick and Ronald L. Harrop of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for appellants.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellees Adel Sidky, M.D. and Jean Foucauld, M.D.
    James C. Blecke of Deutsch & Blum-berg, P.A., Miami, and Frederick A. Gun-ion, Jr. of Frederick A. Gunion, Jr., P.A., Miami, for appellee Kim Ambry.
   GUNTHER, J.

University of Florida Board of Trustees appeals the denial of its Motion to Dismiss and/or Transfer on the Grounds of Improper Venue. Based on our consideration of the construction of the statutory home venue privilege set forth in Florida Statutes section 768.28(1), we reverse.

Kim Ambry, as the Personal Representative of the Estate of Daniel Williams (her husband), filed suit against Adel Sidky, M.D., Jean Foucauld, M.D., Steven Bor-zak, M.D., Florida Cardiology Group, P.A., Damien Joy, M.D., Western Surgical Specialists, P.A., Shands Teaching Hospital and Clinics, Inc., and University of Florida Board of Trustees. Ambry asserted that jurisdiction was proper in Palm Beach County “because the Defendants are joint tortfeasors and the interests of ‘justice, fairness and convenience’ are best served by maintaining this action in Palm Beach County” and cited Board of County Commissioners v. Grice, 438 So.2d 392 (Fla.1983), and Florida State Lottery v. Woodfin, 871 So.2d 931 (Fla. 5th DCA 2004), in support of this contention.

Ambry alleged the following facts in the complaint. Sidky was Williams’s primary care physician, diagnosed him with severe valvular heart disease in June 2000, continued to treat Williams until November 2000, and never recommended valvular repair.

In July 2003, Williams presented at the Palms West Hospital Emergency Department with gallstones, and Joy planned to perform a cholecystectomy. However, the operation was cancelled because Williams was suffering from unstable angina. Two days later, Foucauld performed a cardiac catheterization and diagnosed Williams with aortic stenosis, aortic insufficiency, and a dilated left ventricle, but did not recommend aortic valve replacement. Borzak, a cardiologist, visited Williams three days later, indicated that Sidky was aware of Williams’s aortic stenosis, and did not recommend aortic valve replacement. Later that day, Joy performed a cholecys-tectomy on Williams and prescribed Cefa-zolin rather than penicillin, the preferred drug to prevent infection in patients with heart disease.

From August 2003 to September 2003, Sidky resumed treating Williams for recurrent chest pain, shortness of breath, and other symptoms, but did not recommend valve replacement surgery because his aortic stenosis was not severe enough to warrant surgery. Williams also saw other specialists during this time period, all of whom were unable to diagnose the cause of his continued symptoms.

On December 11, 2003, Williams visited Shands due to worsening shortness of breath and difficulty eating. A Shands physician diagnosed Williams with congestive heart failure and admitted him to the hospital. On the morning of December 12, 2003, Williams complained of pain throughout his body and was given medication, but was not seen by a physician. Soon thereafter, Williams was found on the floor, unresponsive and hypoxic, and was unable to be resuscitated. An autopsy concluded that Williams died of aortic valve endocar-ditis caused by aortic stenosis.

Counts I-VI of Ambry’s complaint stated negligence causes of action against Sid-ky, Foucauld, Borzak, Joy, and two medical groups for their failure to properly diagnose and treat Williams. Count VII alleged vicarious liability by Shands for the failure of seven of its staff physicians to properly diagnose and treat Williams. Count VIII stated a similar cause of action against Shands for the negligence of its other medical staff. Count IX stated another similar cause of action against Shands for the negligence of its residents. Count X claimed vicarious liability by UF for the negligence of the Shands staff physicians based on an affiliation agreement.

UF filed an answer to Ambry’s complaint. UF denied that the defendants were joint tortfeasors and that venue was proper in Palm Beach County. UF’s Tenth Affirmative Defense alleged that “the proper venue for Plaintiffs action against Defendant, [UF] does not lie in Palm Beach County. Rather, Defendant, [UF] asserts its ‘home venue’ privilege such that venue is only proper in Alachua County, Florida.”

UF simultaneously filed a Motion to Dismiss and/or Transfer on the Grounds of Improper Venue. UF asserted the following in the motion:

2. The Defendant, University of Florida, Board of Trustees is an agency or subdivision of the State of Florida. Consequently, it is entitled to assert a “home venue” privilege, that is, the right to be sued in the county where the agency maintains its principal headquarters, Alachua County. See Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977).
3. Contrary to the allegations of Plaintiffs Complaint, Defendant, [UF] cannot be considered a “joint tortfeasor” with those co-defendants, who reside in Palm Beach County, Florida. Under the provisions of § 766.112(2), Fla. Stat., the doctrine of joint and several liability has been completely abrogated with regard to any claim for damages for personal injury or wrongful death arising out of medical negligence in any case against a Board of Trustees of a State University.
4. Even in the event Defendant, [UF] is considered a “joint tortfeasor” with the remaining defendants, considerations of justice, fairness and convenience, under the circumstances, require transfer of this action to Alachua County, Florida. Plaintiffs claims against the Alachua County Defendants, [UF] and Shands, involve events which are remote in place and time from the acts or omissions which give rise to Plaintiffs claim or cause of action against the Palm Beach County defendants. For example, the alleged negligence of Defendant, [UF] and Shands occurred on December 11 and 12, 2003 in Alachua County. However, Plaintiffs Complaint against the four physicians who reside in Palm Beach County, alleges acts or omissions which occurred between June 29, 2000 and September 30, 2003. See Paragraphs 32 through 39 of Plaintiffs Complaint. Furthermore, Plaintiffs claim against Defendant, [UF] alleges the negligence of seven physicians-employees of [UF]. Furthermore, Plaintiffs claim against Defendant, Shands involves the alleged negligence of a number [of] additional nurses-employees of Defendant, Shands, all of whom reside in Alachua County or its environs. Furthermore, it would entail undue hardship and inconvenience if numerous physicians-employees of [UF] were required to defend this action in Palm Beach County. Plaintiffs claims against Defendant, [UF] and Shands are so intertwined, however, that these claims should be tried together.

UF requested that Ambry’s complaint be dismissed for improper venue, that the case be transferred to Alachua County, or that at least the claims against UF and Shands be severed and transferred to Ala-chua County.

Shands also filed a Motion to Transfer Venue. Shands sought the transfer of venue from Palm Beach County to Alachua County based on Florida Statutes section 47.122, addressing forum non conveniens. Shands requested that the trial court enter an order transferring the case to Alachua County or severing Shands and UF from the case against the Palm Beach County defendants.

Ambry filed a response to Shands and UF’s venue motions. Ambry contended that Board of County Commissioners of Madison County v. Grice, 438 So.2d 392, 394 (Fla.1983), established exceptions to the home venue privilege, including when the action involves joint tortfeasors. Am-bry also maintained that the fact that Shands and UF relied on the statutory home venue privilege rather than the common law home venue privilege was a distinction without significance to the applicability of Grice based on Florida State Lottery v. Woodfin, 871 So.2d 931 (Fla. 5th DCA 2004). Finally, Ambry asserted that severance of the claims against Shands and UF was inappropriate because the effect of the defendants’ care is interrelated.

The trial court held a hearing on the venue motions. Counsel for UF and Shands contended that the joint tortfeasor exception did not apply in the case at bar because under Florida Statutes section 766.112, neither can be considered joint tortfeasors. When asked by the trial court, Ambry’s counsel stated his belief that Florida Statutes section 768.28 is subject to Grice. Counsel for UF and Shands responded:

Point number two, the Court asked the question does the Grice exception for joint tortfeasors apply to a statutory home venue privilege. Well, the answer has unfortunately been addressed adverse to my position in the [Florida State Lottery v. Woodfin] case. It’s a Fifth DCA case, [871 So.2d 931]. In that case, the Court held under a similar home venue provision for the State Lottery Commission that Grice still applied. I think that case is wrongly decided, but that is the case. There is no other case contradicting that so it’s probably binding precedent on this Court.

Following the hearing, the trial court entered an Order on Defendant University of Florida Board of Trustee’s Amended Motion to Dismiss and/or Transfer for Improper Venue. The trial court reached the following conclusions:

This is a medical malpractice action filed by the Plaintiff against [UF] as well as a number of other medical providers, all of whom other than [UF] are located in Palm Beach County, Florida. [UF] has moved to transfer venue or to dismiss based upon its claimed “home venue” privilege pursuant to Florida Statutes Section 766.11 and Florida Statutes Section 768.28. As set forth by the Supreme Court in Board of County Commissioners of Madison County v. Grice, 438 So.2d 392, 394 (Fla.1983), the home venue privilege is not absolute and under certain circumstances the beneficial purposes of this privilege are not furthered. This is specifically true, as in the present case, when there are alleged “joint tortfeasors”. While under statute, [UF] may not be “joint and severally liable” with the remaining defendants, the jury in this case will be required to apportion liability between the respective defendants. Therefore, severance of the lawsuits would not be beneficial and would not minimize expenditure of public funds, manpower, etc. Likewise, the majority of witnesses and Defendants are located in Palm Beach County, and the cost associated with transferring all of those Defendants to Alachua County would not promote fairness, convenience and justice.
Therefore, under the discretion afforded the trial court pursuant to Grice, supra, this Court holds that applying the principles set forth in Grice that circumstances of the current case do not promote the public policy behind the “home venue” privilege and the case is better tried in Palm Beach County. Therefore, the Defendant [UF’s] Motion to Dismiss and/or to Transfer for Improper Venue is hereby denied.

Before turning to the merits of this appeal, we address two preliminary matters. First, we do not reach the issue of whether the case against Shands should be transferred or severed, because Shands’s forum non conveniens motion was not ruled upon by the trial court and Shands presents no appealable order to this Court. Second, we conclude that UF preserved this issue for appellate review by counsel’s comments that the Fifth District case of Woodfin had been decided “adverse to [its] position” and that the case was “wrongly decided.”

We now turn to the merits of this appeal. “It has long been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision maintains its principal headquarters.” Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 363-364 (Fla.1977). “Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.” Id. at 364.

Following Carlile, in Board of County Commissioners of Madison County v. Grice, 438 So.2d 392, 395 (Fla.1983), the Florida Supreme Court explored whether there were exceptions to the common law home venue privilege, and wrote:

[T]he objective of minimizing public expenditures in the operation of the courts is not furthered when the home venue privilege results in multiple lawsuits. We therefore hold, as did the district court that home venue privilege for government entities is not absolute.
We hold further that a trial court has discretion to dispense with the home venue privilege when a governmental body is sued as a joint tortfeasor. The exercise of this discretion must be guided by considerations of justice, fairness, and convenience under the circumstances of the case. In its discretion the trial court may retain the entire case, sever and transfer the cause of action against the entity asserting the privilege if it is severable, or transfer the entire case. The home venue privilege, although not absolute, should be given substantial consideration in this process along with the other circumstances presented and the interests of the other parties.

Id. at 395. In reaching this decision, despite not being asked to review any statutory home venue privilege, the court noted that “[t]here is a modern trend .'.. toward allowing exceptions to such statutory requirements where government bodies are sued as joint tortfeasors.” Id. at 394.

Thereafter, in 2002, the Legislature amended a statutory home venue privilege, Florida Statutes section 768.28(1), to address university boards of trustees:

In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university’s main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.

In this appeal, UF contends that the trial court erred by applying the Grice joint tortfeasor exception to the statutory home venue privilege set forth in section 768.28(1), largely based on the mandatory language of the statute and the fact that no exceptions to the privilege are included in the statutory text. Ambry, Sidky, and Foucauld, the only appellees actively involved in this appeal, maintain that based on Woodfin, the Grice joint tortfeasor exception applies to the statutory home venue privilege set forth in section 768.28(1).

Focusing on whether exceptions to the statutory home venue privilege are provided for in the text of section 768.28(1) does not provide us with any convincing guidance regarding whether the Grice joint tortfeasor exception applies to the privilege. UF contended that because Grice was decided before the university board of trustees amendment to section 768.28(1), the Legislature was aware of the joint tortfeasor exception and could have included it if it was intended to apply, rather than using mandatory language that could be interpreted to foreclose all exceptions to the statutory home venue privilege. On the other hand, the appellees asserted that because the Legislature was aware of the Grice joint tortfeasor exception and other actual and potential exceptions to the common law home venue privilege, it was incumbent on the Legislature to exclude these exceptions in the text of section 768.28(1) if they were not intended to apply. Both the positions of UF and the appellees are viable and the intent of the Legislature is unclear on this basis, so it is apparent that the answer to the statutory conundrum presented by this issue lies elsewhere.

The language of section 768.28(1) includes the following two sentences of importance for resolving the issue presented on appeal:

Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university’s main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.

At first glance, these two sentences seem largely identical in nature in that they both provide for a statutory home venue privilege permitting an action to be brought in the county where the agency has its headquarters or where the cause of action accrued if that county contains an office transacting the customary business of the agency. However, there are two significant differences between the sentences, the distinction between the use of the words “may” and “shall” and the use of the introductory transition “however.”

The distinction between “may” and “shall” has often been discussed in Florida cases. “The word ‘may’ when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word ‘shall.’ ” The Florida Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla.2002). Additionally, regarding “shall”:

The use of the word “shall” is generally mandatory, although it may be merely directory under appropriate circumstances. See Belcher Oil Co. v. Dade County, 271 So.2d 118 (Fla.1972). Its interpretation depends upon the context in which it is found and upon the intent of the legislature as expressed in the statute. See S.R. v. State, 346 So.2d 1018 (Fla.1977). Generally, “shall” is interpreted to be mandatory where it refers to some action preceding the possible deprivation of a substantive right and directory where it relates to some immaterial matter in which compliance is a matter of convenience. See Neal v. Bryant, 149 So.2d 529 (Fla.1962).

Kinder v. State, 779 So.2d 512, 514 (Fla. 2d DCA 2000). Additionally, “however” is a transition employed to contrast. See Laurel Currie Oates, et al., The Legal Writing Handbook 613-614 (3d ed.). As such, the use of “however” in section 768.28(1) indicates that the meaning and operation of each of the two sentences is intended to be different.

As such, although the Legislature did not clearly express its intent regarding the application of exceptions, including the Grice joint tortfeasor exception, to the statutory home venue privilege set forth in section 728.28(1), its intent can be gleaned from the construction of the statute. The first sentence employs the permissive word “may” and was drafted before the Grice joint tortfeasor exception was adopted. The second sentence employs the mandatory word “shall” and was drafted after the Grice tortfeasor exception was adopted. The use of the word “however” as a transition between the sentences indicates that the Legislature recognized that the landscape on which the statutory home venue privilege operates changed with the adoption of the Grice joint tortfeasor exception. Although the state agencies addressed in the first sentence using “may” are not always protected by the statutory home venue privilege, such as potentially when an exception, such as the Grice joint tortfeasor exception, applies, the Legislature made certain to close the door to exceptions left open by the combination of “may” and the subsequent development of the Grice exception when university boards of trustees are defendants. In the second sentence, the Legislature indicates that notwithstanding the fact that the state agencies addressed in the first sentence might potentially lose their statutory home venue privilege where an exception applies, that is not to be the case for university boards of trustees, for which the statutory home venue privilege is always to apply without exception. Consequently, we conclude that the Grice joint tortfeasor exception does not apply to section 768.28(1) based upon the context of the sentences and “the intent of the legislature as expressed in the statute.” Therefore, venue in the case at bar was proper only in Alachua County, so that UF’s venue motion should have been granted.

In reaching this conclusion, we recognize that Woodfin involved a statute that also employed the mandatory language of “shall.” However, that statute, Florida Statutes section 24.110, did not involve two sentences providing home venue privileges yet differentiating between them as in the present case. In the present case, section 768.28(1) not only employs the mandatory construction of “shall,” but it also indicates that this structure exists notwithstanding the permissive construction of “may” in the preceding sentence, a construction which might permit exceptions to the statutory home venue privilege. In closing the door to exceptions to section 768.28(1) for university boards of trustees, the Legislature not only put a lock on the door (“shall”), but added a deadbolt (“however”) to secure the statute against any intruder that might hope to pry open the door just enough to let an exception slide through and upset the statutory home venue privilege.

In sum, we hold that the Grice joint tortfeasor exception does not apply to section 768.28(1) based on the construction of the statute. Consequently, venue in the case at bar for UF is proper only in Ala-chua County, and UF’s venue motion should have been granted. We reverse and remand for further proceedings consistent with this opinion, at which time the trial court should consider whether to transfer the entire action to Alachua County or sever the action into Palm Beach County and Alachua County parts (a matter not considered by this Court). Further, we note that although we are reversing the trial court’s denial of UF’s venue motion, the trial court was bound to follow Woodfin, because Woodfin was the only case addressing the application of the Grice, joint tortfeasor exception to a statutory home venue privilege. See Progressive Express Ins. Co. v. Devitis, 924 So.2d 878, 880 (Fla. 4th DCA 2006) (“[I]n the absence of conflicting decisions, a decision of the district court of appeal is binding in all Florida trial courts.”).

Reversed.

HAZOURI and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jean R. DUTERVIL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1553.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.
    Carey Haughwout, Public Defender, and Marcy K Allen, Assistant Public Defender, West Palm Beach, and Jean R. Duter-vil, Fort Lauderdale, pro se, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s filing a rule 3.850 motion challenging the voluntariness of his plea. See Robinson v. State, 373 So.2d 898 (Fla.1979).

POLEN, FARMER and MAY, JJ., concur.


text:
    William Floyd GAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5141.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2006.

      William Floyd Gay, pro se, Blountstown, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Gay appeals the summary dismissal of two claims advanced in a Rule 3.850 motion for postconviction relief. We affirm the summary dismissal of one of the claims, but reverse and remand the other for further proceedings.

Gay first argues he received ineffective assistance when defense counsel withdrew an objection to a special jury instruction. The trial court found the record conclusively showed that withdrawal of the objection constituted reasonable trial strategy. Accordingly, the trial judge summarily dismissed the claim. We agree and affirm the summary dismissal of this claim.

Gay next argues the trial court erred when it summarily dismissed his claim that counsel interfered with his right to testify. The trial judge attached portions of the record that showed Gay affirmatively chose not to testify. Gay claims, however, that counsel misadvised him that the jury would hear the nature of his prior convictions if he took the stand in his own defense. See Gavins v. State, 587 So.2d 487, 489 (Fla. 1st DCA 1991) (“If the defendant admits the number of prior convictions, the prosecutor is not permitted to ask further questions regarding prior convictions, nor question the defendant as to the nature of the crimes. If, however, the defendant denies a conviction, the prosecutor can impeach him by introducing a certified record of the conviction.”); see also Tyler v. State, 793 So.2d 137, 141 (Fla. 2d DCA 2001) (“Where counsel incorrectly informs a defendant regarding the use of prior convictions as impeachment, specifically, that upon testifying the jury will hear the specific nature of the prior convictions, and the defendant shows that because of the misinformation he did not testify, he has satisfied the deficient performance prong of an ineffective assistance of counsel claim.”). In particular, we note Gay’s quite specific assertion in his motion, “Counsel advised Defendant that if he took the stand the jury would automatically learn of the violent details of his prior conviction.” Gay also argues that this deficient performance of counsel prejudiced his defense. See Oisorio v. State, 676 So.2d 1363, 1364-65 (Fla.1996) (“[I]n order to obtain postconviction relief, a defendant claiming his or her right to testify was violated must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.”). The attached portions of the record do not conclusively rebut this claim. Accordingly, we reverse and remand this matter with instructions to the trial court to either hold an evidentiary hearing or to attach record portions conclusively refuting Gay’s assertion.

AFFIRMED in part, REVERSED and REMANDED in part.

KAHN, C.J., BARFIELD and ALLEN, JJ., concur.


author: BROWNING, J.

text:
    STATE of Florida, Appellant, v. Thomas Deon YOUNG, Appellee.
    No. 1D05-1064.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2006.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Appellant.
    Lloyd L. Vipperman, Jr., Gainesville, for Appellee.
   BROWNING, J.

The State appeals the trial court’s entry of a “judgment of acquittal” adjudicating appellee Thomas Deon Young not guilty as to Count One of the information, which charged him with resisting an officer with violence, contrary to section 843.01, Florida Statutes (2004). We reverse and remand for further proceedings. See Johnson v. State, 433 So.2d 648, 649 (Fla. 2d DCA 1983).

The State’s information additionally charged Young with one count of possession of not more than 20 grams of cannabis, in violation of section 893.03(l)(c) & 893.13(6)(b), Florida Statutes (2004); and one count of possession of paraphernalia for storage, in violation of section 893.147(l)(a), Florida Statutes. The first count states:

WILLIAM P. CERVONE, STATE ATTORNEY for the Eighth Judicial Circuit, prosecuting for the State of Florida, under oath, alleges by information that THOMAS DEON YOUNG, in Ala-chua County, Florida, on or about April 20, 2004, did knowingly and willfully resist, obstruct, or oppose Officer Robert J. Kennedy of the Gainesville Police Department, who was then and there in the lawful execution of a legal duty or legal process, by offering or doing violence to the person of such officer, contrary to Section 843.01, Florida Statutes.(L5)

At the commencement of trial, the State nolle prossed the charge of possession of paraphernalia for storage.

After the State rested, defense counsel moved to dismiss the charge of resisting an officer with violence, on the ground that the information did not state with particularity what specific duty the officer was engaged in at the time of Young’s offense. The defense argued also that the State had failed to make a prima facie case as to that count. After argument of counsel, the trial court entered the challenged ruling. Young then pled guilty to possession of less than 20 grams of marijuana and was sentenced to one year of drug offender probation. The State filed a timely notice of appeal.

The State correctly cites Johnson to support reversal of the trial court’s ruling. In this instance, the trial court’s chosen label for its own ruling is not controlling as to the true classification of its action. See United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); State v. Gaines, 770 So.2d 1221, 1226 (Fla.2000). Although the instant trial court characterized its ruling as a “JOA,” the State correctly notes that it was tantamount to a dismissal, for it was premised on the trial court’s misperception that the State had failed to set forth a legally sufficient charge for Count One, not on the theory that the information was adequate but, on the merits, the State failed to establish a prima facie case for resisting an officer with violence. See State v. James, 626 So.2d 259, 261-62 (Fla. 5th DCA 1993) (noting that despite semantics used in trial court, dismissal of counts based on court’s misperception of pleading defect in State’s information did not constitute acquittal based on evidence). We have jurisdiction pursuant to section 924.07(1)(a), Florida Statutes (2004); Florida Rule of Appellate Procedure 9.140(c)(1)(A); and State v. Robinson, 744 So.2d 1151, 1152 (Fla. 1st DCA 1999).

Count One of the information cites the correct statute, section 843.01, Florida Statutes (2004), which states:

843.01 Resisting officer with violence to his or her person. — Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; parole and probation supervisor; county probation officer; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

In Perry v. State, 861 So.2d 462 (Fla. 1st DCA 2003), we stated that, to prove the charge of resisting an officer with violence, the State must establish the following beyond a reasonable doubt:

1. The defendant knowingly and willfully resisted, obstructed, and/or opposed an officer by offering to do violence or doing violence to the officer;
2. At the time the officer was engaged in the execution of legal process or lawful execution of a legal duty; and
3. At the time the officer was an officer as defined by statute.

Id. at 463. The State’s information is “plain, concise, and definite,” and legally sufficient to satisfy Florida Rule of Criminal Procedure 3.140 (addressing the formats and requirements for indictments and informations) and to afford Young adequate notice of “the essential facts constituting the offense charged.” Fla. R.Crim. P. 3.140(b). The information cites the appropriate statute, alleges all the essential facts constituting the offense charged, and tracks the statutory language. See Fla. R.Crim. P. 3.140(d)(1); see State v. Waters, 436 So.2d 66, 68-69 (Fla.1983). The State correctly notes that Young has not cited (nor has our independent research disclosed) any Florida statute or rule that requires an information charging the crime of resisting an officer with violence pursuant to section 843.01, Florida Statutes, to set forth the exact legal duty in which the officer was engaged at the time of the offense. In fact, Johnson, 433 So.2d at 649, supports the State’s position and is directly contrary to the trial court’s ruling.

The defendant in Johnson initially was charged with resisting arrest by officers with force and violence. Immediately before trial, the State was properly allowed to amend its information to charge that Johnson resisted officers in the lawful execution of a legal duty with violence. Like Young, Johnson argued that the amended information was insufficient because it failed to allege the particular legal duty the officers were performing when Johnson obstructed them. See id. at 649. The Second District Court rejected this argument:

This was not required. The information, couched in the language of the statute, sufficiently expressed the elements of the offense in such a way that the appellant was neither misled nor embarrassed in the preparation of his defense nor exposed to double jeopardy. State v. Dilworth, 397 So.2d 292 (Fla.1981).

Johnson, 433 So.2d at 649. The panel affirmed Johnson’s conviction. See id. at 650.

Although two other opinions address a different statute, the State contends these decisions are analogous to the instant case because of the similarities between section 843.01 and section 784.07(2), Florida Statutes (proscribing the knowing commission of an assault or battery upon a law enforcement officer while the officer is “engaged in the lawful performance of his or her duties,” and reclassifying upward the degree of the assault or battery). In the first opinion, Street v. State, 383 So.2d 900 (Fla.1980), the defendants were convicted of battery upon a law enforcement officer. See id. The Streets argued that section 784.07 failed to provide sufficient warning as to what conduct renders someone liable to prosecution for the felony, as opposed to ordinary battery. This statute has a scienter requirement, such that the accused must know that the victim is a law enforcement officer. The Streets argued that the phrase “engaged in the lawful performance of his duties” is impermissi-bly vague. See id. at 901. The Supreme Court of Florida disagreed, stating that “[a]s a matter of common understanding and practice, the statute conveys sufficiently definite warning as to what is proscribed.” See id.

After the adequacy of this language in section 784.07(2) was recognized in Street, the Fourth District Court in State v. Gavin, 389 So.2d 338 (Fla. 4th DCA 1980), reviewed the trial court’s dismissal of an information charging Gavin with battery upon a law enforcement officer under statutory subsection (2)(b). The dismissal was based on the State’s failure to allege in the information specifically what legal duties the officer was performing at the time of Gavin’s offense. Citing the recent decision in Street, the district court in Gavin deemed the dismissal to be erroneous and reversed and remanded. See 389 So.2d at 338.

This line of decisions supports the State’s position in the trial court and on appeal. The State correctly notes that the specific nature of the officer’s execution of a legal duty under section 843.01 is the proper subject of the proof, not the charge. To that end, the State presented evidence establishing that. Young committed the charged offense. Officer Robert Kennedy, of the Gainesville Police Department, testified that while on patrol around 7:30 p.m. on April 20, 2004, he observed a southbound green car stop at a stop sign. As an eastbound blue car with the right-of-way approached the intersection, the stopped vehicle pulled in front, nearly hitting the blue vehicle and requiring the driver of the blue vehicle to take evasive action to avoid a collision. The officer effected a traffic stop to investigate whether the driver of the green car was impaired and, possibly, to issue a citation. The officer obtained the driver’s license (State’s Exh. “A”), which indicated that the driver was Young. Young was cooperative then. As Officer Kennedy stood close by and observed Young attempting to reach into his own right front pocket, the officer asked if Young was carrying any items of concern, such as a gun, bomb, or hand grenade. Young, appearing nervous, answered that he had a bag of “reefer” in his pocket, which Officer Kennedy asked him to hand over. From his drug training, the officer knew the term “reefer” commonly refers to marijuana or cannabis, and he recognized the substance presented by Young as having the distinct appearance of marijuana (State’s Exh. “B”). ft was a small amount, less than 20 grams.

Officer Kennedy decided to do the following: issue Young a traffic citation for violating the right-of-way; take custody of the drug evidence and issue a criminal citation, or “notice to appear,” for possession of cannabis; inform Young of his court date; place him in the patrol car while the paperwork was prepared; and then let him leave. Young calmed down when the officer said he was not going to take him to jail. Intending to handcuff Young and search his person and vehicle incident to arrest, and to check on a problem with Young’s temporary tag, Officer Kennedy asked him to exit the vehicle and to turn the other way. As the officer tried to handcuff his wrists, Young swung around, pushed him off with both hands fully extended, and attempted to elude his grasp. The push was hard enough to cause the officer to stumble backward a couple of steps. As Young tried to wriggle free, Officer Kennedy grabbed Young’s T-shirt, but Young flailed his arms as the T-shirt came off and he fled into the woods. Officer Kennedy chased Young unsuccessfully and kept his driver’s license. Young eventually was tracked to the address on his driver’s license.

At the end of Officer Kennedy’s testimony, the State rested. Defense counsel argued the information was legally insufficient to place Young on notice of the specific legal duty Officer Kennedy was executing at the time of the offense. Cf. Jaramillo v. State, 659 So.2d 1238 (Fla. 2d DCA 1995) (holding that conviction on charge not contained in State’s information constitutes denial of due process). Alternatively, defense counsel contended the State had not made a prima facie case of resisting an officer with violence. The trial court heard further argument of counsel before adjudging Young not guilty on that count. Given the legal sufficiency of the information and the ample evidence presented by the State, the trial court reversibly erred in adjudicating Young not guilty based on an allegedly deficient charging document. See Johnson, 433 So.2d at 649.

Because the purported “JOA” entered by the trial court is actually a dismissal based on the alleged insufficiency of the information, not a decision on the merits, the State is allowed to appeal the dismissal of Count One, and double jeopardy does not bar further proceedings. See Scott, 437 U.S. at 98-100, 98 S.Ct. 2187; United States v. Kennings, 861 F.2d 381, 384-86 (3d Cir.1988); Gaines, 770 So.2d at 1225-26; James, 626 So.2d at 262. The State notes that double jeopardy principles are inapplicable where Young deliberately sought to terminate the proceeding against him after double jeopardy had attached, and on a basis unrelated to his factual guilt or innocence. See Scott, 437 U.S. at 98-99, 98 S.Ct. 2187. Thus, he has shown no cognizable injury under the Double Jeopardy Clause when the State appeals an erroneous ruling. See id.; Lee v. United States, 432 U.S. 23, 32-34, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); Robinson, 744 So.2d at 1152; James, 626 So.2d at 262. On the other hand, had the trial court entered an actual acquittal of Young on the count in question, the verdict of acquittal would have been final and could not be reviewed “without putting [Young] twice in jeopardy” and thereby violating his constitutional rights. See United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Lee, 432 U.S. at 29-30, 97 S.Ct. 2141; Hudson v. State, 711 So.2d 244, 247 (Fla. 1st DCA 1998).

Accordingly, we REVERSE the trial court’s order and REMAND the case for further proceedings.

ERVIN and BENTON, JJ., concur.


text:
    Solomon John HALL, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2632.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2006.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this criminal appeal, appellant Hall argues that the trial court reversibly erred by curtailing his cross-examination of the victim, Elizabeth Faircloth. Having thoroughly reviewed the evidence in this case, we are persuaded that even if the trial court erred when it upheld an objection to Hall’s cross-examination question, this was harmless error. Accordingly, we AFFIRM Hall’s conviction and sentence.

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


text:
    Travis Tyrone MILLER, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D05-0798, 1D05-0883.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2006.

      Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse the orders revoking Appellant’s concurrent terms of probation. The curfew and weekly reporting requirement were imposed as conditions of release following Appellant’s arrest for alleged probation violations that were subsequently dismissed. Because the curfew and weekly reporting requirement were not conditions of probation, the violation of those conditions may not serve as a basis for probation revocation. Accordingly, we reverse and remand for reinstatement of the concurrent terms of probation.

REVERSED and REMANDED.

DAVIS, POLSTON, and HAWKES, JJ., concur.


text:
    Jynio PHILIUS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1555.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2006.
    Jeffrey Schwarz, of Schwarz & Arriek, P.A., North Miami Beach, for Appellant.

      Charlie Crist, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the trial court’s summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant’s three-year mandatory minimum sentence is not authorized by the statute which he was convicted of violating, we reverse.

The appellant was charged with and pled no contest to violating section 893.13(6)(c), Florida Statutes (2003). Section 893.13(6)(e) states that any person who violates the statute is guilty of a first-degree felony, punishable as provided in sections 775.082, 775.083, or 775.084. However, none of these statutes provide for a three-year mandatory minimum. The trial court based the denial of the appellant’s motion on the fact that section 893.135(l)(k)2.a., Florida Statutes, authorizes the imposition of a three-year mandatory minimum for possession of more than 10 grams of MDMA. However, the appellant was clearly charged and convicted of violating section 893.13(6)(c), which does not contain a mandatory minimum. The fact that the appellant specifically agreed to this sentence in his plea agreement does not prevent him from raising this claim in a postconviction motion. Darling v. State, 886 So.2d 417, 418 (Fla. 1st DCA 2004). Because the appellant’s three-year mandatory minimum sentence is unauthorized by section 893.13(6)(c), Florida Statutes, the trial court erred in denying the appellant’s motion.

We, therefore, reverse the trial court’s order and remand for resentencing. We note that the state may either agree to the resentencing or withdraw from the original plea agreement. Bruno v. State, 837 So.2d 521, 523 (Fla. 1st DCA 2003).

REVERSED and REMANDED.

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


text:
    Gregory Bernard HENDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3210.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2006.
    Gregory Bernard Henderson, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

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


text:
    Von Shear ADAMS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-2225.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2006.
    Von Shear Adams, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

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


text:
    William WHITFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3841.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2006.
    William Whitfield, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, VAN NORTWICK, and BROWNING, JJ., CONCUR.


text:
    Charles WEAVER, Appellant, v. MBM and Travelers Indemnity Company, Appellees.
    No. 1D05-674.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox of Fox & Loquasto, P.A., Tampa; and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Lamar D. Oxford and Michael A. Lowe of Dean, Ringers, Morgan & Lawton, Orlando, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Charles Weaver argues that sections 440.09(4) and 440.105, which allow a judge of compensation claims to determine whether a claimant has committed fraud, are facially unconstitutional because they violate a claimant’s right to equal protection of the law. Essentially, Weaver argues that these statutes deprive claimant of the procedures available to carriers accused of fraud under section 440.105. He also argues that these statutes impose stricter penalties on claimants accused of fraud than on carriers accused of fraud under section 440.105. We find that even if any classification scheme is created by these statutes, such rationally advances the legitimate governmental objective of eliminating fraud. See Medina v. Gulf Coast Linen Servs., 825 So.2d 1018 (Fla. 1st DCA 2002); Sasso v. Ram Prop. Mgmt., 431 So.2d 204 (Fla. 1st DCA 1983). We also find Weaver’s other arguments on appeal lack merit. Accordingly, the order on appeal is AFFIRMED.

KAHN, C.J., BARFIELD and ALLEN, JJ., concur.


text:
    Paul BRANCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5977.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Paul Branch, pro se, Petitioner.
    Charlie Crist, Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Paul Branch is hereby afforded a belated appeal from an October 2004 judgment and sentence in case number 04-77-CF in the Circuit Court in and for Jefferson County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court is directed to appoint counsel for the appeal at public expense if Mr. Branch qualifies for such an appointment.

PETITION GRANTED.

BENTON, PADOVANO, and LEWIS, JJ., concur.


text:
    Sergio FUENTES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0074.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Sergio Fuentes, pro se, Petitioner.

      Charlie Crist, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Sergio Fuentes is hereby afforded a belated appeal from denial of a motion to correct illegal sentence in ease number 2001-CF-5806-AXXX in the Circuit Court in and for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

BENTON, PADOVANO, and LEWIS, JJ., concur.


text:
    Steven Olayemi AKINBEHINJE, Appellant, v. STATE of Florida, BOARD OF NURSING, Appellee.
    No. 1D06-1010.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Michael P. Gennett and Stephen T. Maher of Shutts & Bowen, LLP, Miami, for Appellant.
    Charlie Crist, Attorney General, and Lee Ann Gustafson, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

By motion, the parties to this administrative appeal have informed this Court that a transcript of the proceedings that resulted in the order here on review cannot be produced. Accordingly, we reverse and remand for a hearing de novo. N. Dade Sec. Ltd. v. Dep’t of State, Div. of Licensing, 530 So.2d 1040 (Fla. 1st DCA 1988).

REVERSED.

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


text:
    Rhett K. SHIVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3228.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Janet E. Johnson and Nina R. Price of Price & Johnson, P.A., Jacksonville, for Appellant.
    Charlie Crist, Attorney General, for Ap-pellee.
   PER CURIAM.

As the notice of appeal was not timely filed with the circuit court, this appeal is hereby dismissed for lack of jurisdiction.

DAVIS, POLSTON, and HAWKES, JJ., concur.


text:
    Larry Junior LORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1601.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Larry Junior Lord, pro se, Petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Larry Junior Lord is hereby afforded a belated appeal from judgment and sentence in case numbers 2004-CF-277-C and 2004-CF-4987-A in the Circuit Court in and for Escambia County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(e)(5)(D). The circuit court is directed to appoint counsel for the appeal at public expense if Mr. Lord qualifies for such an appointment.

PETITION GRANTED.

BENTON, PADOVANO, and LEWIS, JJ., concur.


text:
    Rodney P. FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-469.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2006.
    Rodney P. Fisher, Palatka, pro se.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

PLEUS, C.J., ORFINGER, TORPY, JJ., concur.


text:
    Lazaro PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2296.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2006.
    Lazaro Perez, Lowell, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003).

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


text:
    Bethel HANNA, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D06-1071.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2006.
    Bethel Hanna, Vero Beach, pro se.
    No appearance for Appellees.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

THOMPSON, MONACO and EVANDER, JJ., concur.


text:
    Darren Lee MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3592.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2006.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

PALMER, MONACO and EVANDER, JJ., concur.


text:
    Ildiko S. DEAK, Appellant, v. Thomas G. DEAK, Appellee.
    No. 5D06-525.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2006.
    Ildiko S. Deak, Miskolc, Hungry, pro se.
    No appearance by Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

SAWAYA, MONACO and EVANDER, JJ., concur.


author: LaROSE, Judge.

text:
    Ernest BORDERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1557.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2006.
   LaROSE, Judge.

Ernest Borders appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without further comment, the postconviction court’s denial of Mr. Borders’ claim of prosecutorial misconduct. We reverse as to his claim concerning prison and jail credit because the postconviction court did not conclusively refute it.

According to Mr. Borders’ rule 3.850 motion, trial counsel advised him that if he admitted to violating his probation, he would receive a 150.8-month prison sentence with full credit for all prior time served. Allegedly, trial counsel told Mr. Borders that he would serve only a little over two years in prison. Mr. Borders claims he admitted to violating his probation in exchange for a 150.8-month prison sentence, with full credit for the ten years he served prior to violating probation and seventy days of county jail credit. The trial court accepted the admission and sentenced Mr. Borders to 150.8 months in State prison, but failed to provide credit for any prior prison or jail time. Thereafter, the Department of Corrections forfeited Mr. Borders’ gain time under section 944.28(1), Florida Statutes (2005). Mr. Borders filed a motion to establish credit for time served. Although the trial court granted the motion, our record does not indicate the amount of credit given. Evidently, however, the trial court did not award Mr. Borders the full ten years and seventy days of credit.

Misadvice as to gain time or the sentence’s actual length is a cognizable claim of ineffective assistance of counsel. State v. Leroux, 689 So.2d 235, 236 (Fla.1996). A facially sufficient claim of ineffective assistance in the plea process requires alleging that (1) counsel acted defi-ciently, and (2) but for counsel’s deficiency, the defendant would not have pleaded but would have gone to trial. Grosvenor v. State, 874 So.2d 1176, 1182 (Fla.2004). Mr. Borders’ claim is facially sufficient.

In opposition to Mr. Borders’ rule 3.850 motion, the State argued that Mr. Borders refuted his own claim. The postconviction court adopted the State’s reasoning and denied Mr. Borders’ motion. We must disagree with this result.

Nothing in the rule 3.850 motion conclusively refutes Mr. Borders’ claim. Moreover, the postconviction court attached nothing to its order conclusively refuting it. See Jones v. State, 893 So.2d 713, 713 (Fla. 2d DCA 2005). Consequently, we reverse. On remand, the postconviction court should either attach portions of the record conclusively refuting Mr. Borders’ claim or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded with instructions.

WHATLEY and VILLANTI, JJ., Concur.


text:
    Raymond L. JAMES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4729.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2006.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Raymond L. James, Jr., entered pleas of nolo contendere to multiple offenses in the circuit court. He reserved the right to appeal the circuit court’s order that denied his motion to suppress a firearm. The order denying the motion was dispositive of only two of the crimes to which Mr. James pleaded nolo contendere: possession of a firearm by a convicted felon, section 790.23(1), Florida Statutes (2003) (count nine), and possession of a firearm during the commission of a felony, section 790.07(2) (count thirteen).

After a thorough review of the record, we conclude that the trial court properly denied the motion to suppress. The firearm would inevitably have been discovered after the police officers ran the license tag on the stolen vehicle that was occupied by Mr. James and his codefendant when the weapon was exposed. See Fitzpatrick v. State, 900 So.2d 495, 514 (Fla.2005); State v. D.D.D., 908 So.2d 1180, 1183 (Fla. 2d DCA 2005); State v. Bell, 873 So.2d 476, 478 (Fla. 2d DCA 2004). Accordingly, we affirm the judgments and sentences imposed on Mr. James.

Affirmed.

VILLANTI, WALLACE, and LaROSE, JJ., Concur.


author: CORTINAS, Judge.

text:
    William G. AVRICH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1100.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 2006.

      G. Richard Strafer, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN and CORTINAS, JJ.
   CORTINAS, Judge.

The State of Florida (“State”) filed a 37-count criminal information against the defendant. Count 1 charged the defendant with extortion, alleging that the defendant threatened to prevent the victim from trading comic books on eBay and from communicating on the internet, in violation of section 836.05, Florida Statutes (2004). Counts 2-9 charged the defendant with making obscene and harassing telephone calls to the victim where the victim had a reasonable expectation of privacy, in violation of section 365.16(l)(a), Florida Statutes (2004). Counts 10-37 charged the defendant with making threatening and harassing telephone calls to the victim without disclosing his identity, in violation of section 365.16(l)(b), Florida Statutes (2004).

The case proceeded to a trial by jury. After the State rested its case, the defendant moved for a judgment of acquittal, which the trial court denied. The jury found the defendant guilty on all counts, and he was thereafter sentenced. We affirm the convictions and sentences as to Count 1 and Counts 10-37. We reverse the defendant’s convictions and sentences as to Counts 2-9.

We review the trial court’s denial of the defendant’s motion for judgment of acquittal as to Counts 2-9 de novo. See Johnston v. State, 863 So.2d 271, 283 (Fla.2003); State v. Surin, 920 So.2d 1162, 1164 (Fla. 3d DCA 2006). Generally, a conviction will not be reversed on appeal if it is supported by competent substantial evidence. Johnston, 863 So.2d at 283 (citations omitted). “There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Id.

Counts 2-9 charged the defendant with violating section 365.16(l)(a) by making obscene and harassing telephone calls to the victim where the victim had a reasonable expectation of privacy. Section 365.16(l)(a) provides, in pertinent part:

(1) Whoever:
(a) Makes a telephone call to a location at which the person receiving the call has a reasonable expectation of privacy; during such call makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, vulgar, or indecent; and by such call or such language intends to offend, annoy, abuse, threaten, or harass any person at the called number;
is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

§ 365.16(l)(a), Fla. Stat. (2004)(emphasis added).

Originally, section 365.16(l)(a), Florida Statutes (1977), criminalized individuals who, “by means of telephone communication,” made “any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent.” § 365.16(l)(a), Fla. Stat. (1977); State v. Keaton, 371 So.2d 86 (Fla.1979). The requirement that the telephone call be made “to a location at which the person receiving the call has a reasonable expectation of privacy” was added after the Florida Supreme Court held that the 1977 version of section 365.16(l)(a) violated freedom of speech rights guaranteed by the Florida and federal constitutions. Keaton, 371 So.2d at 90.

In Keaton, the Florida Supreme Court addressed whether subsection (l)(a) of the statute was unconstitutionally overbroad. Id. at 88. In holding that the subsection was overbroad and violative of the right to free speech, the Florida Supreme Court focused on the fact that the scope of the subsection was not limited to cases where listeners did not consent to the use of specified language. Id. at 90. The Florida Supreme Court expressed specific concern regarding the failure of section 365.16(l)(a) to protect an unwilling listener’s reasonable expectations of privacy. Id. The court stated:

We do not hold that the state may not proscribe obscene telephone communications regardless of the circumstances. Were section 365.16(l)(a) limited to obscene calls to a listener at a location where he enjoys a reasonable expectation of privacy (such as a home) which calls are intended to harass the listener, the enactment would pass constitutional muster. Because such a statute would assume the existence of a listener who is unwillingly subjected to vulgar or obscene epithets, it would constitute a valid legislative attempt to protect the substantial privacy interests of the listener.

Id. at 92 (emphasis added). The court also stated, “section 365.16(l)(a) could be couched in appropriate terms so as to regulate certain types of harassing speech foisted upon a listener in a place where he might reasonably expect privacy.” Id. at 92 (emphasis added). Following Keaton, the legislature amended section 365.16(l)(a) to add the requirement that the listener be at a location where he or she has a reasonable expectation of privacy. See Gilbreath v. State, 650 So.2d 10, 11 (Fla.1995); § 365.16(l)(a), Fla. Stat. (2004).

In the instant case, the victim conducted a comic book business out of his home, and maintained a business telephone line for his business for the purpose of dealing with the public. The victim testified at trial that all of the calls that he received from the defendant were on his business telephone line, and not on his residential telephone line. The following exchange took place during defense counsel’s cross-examination of the victim:

Q: Any calls by [the defendant], which ran on your home phone?
A: Again, I thank God, no.
Q: Okay. In fact, [the defendant] was calling the number published as a business number ... is that correct?
A: Yes.
Q: Isn’t it true that he always called the number which was published for business, and you chose to forward it to your cell phone.
A: Yes.

On appeal, the defendant contends that his convictions as to Counts 2-9 must be reversed for insufficient evidence because the State failed to prove that the victim enjoyed a reasonable expectation of privacy on his business telephone line. We agree.

Florida courts have consistently held that the constitutional protections of a reasonable expectation of privacy do not extend to an individual’s place of business. Morningstar v. State, 428 So.2d 220 (Fla.1982); Cohen Bros., LLC v. ME Corp., S.A., 872 So.2d 321 (Fla. 3d DCA 2004); Jatar v. Lamaletto, 758 So.2d 1167 (Fla. 3d DCA 2000); Adams v. State, 436 So.2d 1132 (Fla. 5th DCA 1983). An expectation of privacy in a business “is not one which society is willing to protect.” Morningstar, 428 So.2d at 221 (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Hill v. State, 422 So.2d 816 (Fla.1982)).

Based on the record before us, it is evident that the defendant made telephone calls to the victim’s business telephone line, located in the victim’s home where he conducted his business. Although the victim may enjoy a reasonable expectation of privacy in his home, that expectation is not extended to his business. See Morningstar, 428 So.2d at 221 (holding that the constitutional protection of an individual’s reasonable expectation of privacy in his or her home does not extend to a place of business). We find that there was insufficient evidence to satisfy the elements of section 365.16(l)(a) because the defendant only made calls to the victim’s business telephone line. Since the State failed to prove that the defendant made obscene or harassing telephone calls “to a location at which the person receiving the call has a reasonable expectation of privacy,” we reverse the defendant’s convictions and sentences as to Counts 2-9. See § 365.16(l)(a), Fla. Stat. (2004). We affirm on all other issues on appeal.

Affirmed in part; reversed in part; and remanded.


author: MAY, J.

text:
    BROWARD COUNTY, a political subdivision of the State of Florida, Appellant, v. Roberta MEIKLEJOHN, Appellee.
    No. 4D06-9.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.

      Jeffrey J. Newton, Andrew J. Meyers and James D. Rowlee, Fort Lauderdale, for appellant.
    William R. Amlong, Karen Coolman Am-long, and Jennifer Daley of Amlong & Amlong, P.A., Fort Lauderdale, for appel-lee.
   MAY, J.

Broward County appeals a non-final order-granting an employee’s motion for preliminary injunction for reinstatement. The County argues the court erred in entering the injunction because the employee failed to establish irreparable harm. It also argues the court erred in failing to make requisite findings of fact and failing to impose a bond. We agree and reverse.

The employee began working for the County in 1986. She assumed the position of Storekeeper II in the Broward County Aviation Department at the Fort Lauder-dale Airport in March 2000. The Storekeeper II position required the individual to independently perform heavy manual labor and lifting of heavy objects, including bags of cement. The bags originally weighed eighty pounds, but are now packaged in sixty pound increments. The employee had never been able to move them without the assistance of someone else or a mechanical device. The employee- was elected by her peers to act as a County Office of Equal Opportunity [OEO] Counselor, where she acted as a liaison between fellow employees and them supervisors if there was a grievance.

In 2002, the employee complained to her supervisors about sex discrimination in the Aviation Department. Her complaints included: (1) a lack of separate toilet facilities; (2) being passed over for promotion; (3) being told she would never be promoted; (4) disrespectful co-workers; and (5) the County’s refusal to reclassify her job description at her request. In January 2003, the employee was passed over for the position of Contract Grants Administrator III, which required a four-year university degree that she did not possess.

The employee’s supervisors referred her complaint to the OEO. The OEO contacted the employee, but she refused to discuss her complaint. Instead, she filed a complaint with the Equal Employment Opportunity Commission [EEOC], which was dismissed. Because of her refusal to Cooperate with the OEO, she was removed from her liaison position.

In September 2003, the employee sustained a back injury on the job. The worker’s compensation physician released her back to work the next day with a ten-pound lifting restriction. Since her supervisor did not find this to be an acceptable work restriction, the employee was placed on paid medical leave by the Aviation Department until December 2003. At that time, the employee returned to work with a ten to fifteen pound lifting restriction. In March 2004, she was deemed to have reached maximum medical improvement, leaving her with a permanent lifting restriction of no more than thirty pounds.

The employee filed a civil action against the County, alleging violations of the Florida Civil Rights Act of 1992. Subsequently, the employee was again elected as the OEO liaison. However, the OEO refused to place her in that position because she had previously been removed for failing to assist in her own complaint investigation. In August 2004, the employee filed a second complaint with the EEOC. She claimed the County retaliated against her by removing her as the voluntary liaison. The EEOC dismissed the complaint.

From October 2004 to April 2005, the employee was absent from work on approved medical leave for a non-work related condition. Shortly after she took leave, the Aviation Department revised its job description for Storekeeper II to include the requirement of “heavy manual work lifting and moving stock weighing up to 80 lbs.”

A month after she returned to work, the County informed her by letter that since she could not perform the heavy lifting requirement, she would be reassigned to customer service duties inside the airport terminal for forty-five days to allow her to transfer to a new position. She was instructed to register with the Human Resources Staffing Services Section to get assistance with finding a new position. During this period, the employee received the same pay and benefits as a Storekeeper II. Although the employee spoke to two human resource persons in the Aviation Department, she did not register with the Human Resources Staffing Services Section. She directly applied for approximately twenty-five jobs within the County, but she was not interviewed.

After she was transferred to duty inside the airport terminal, the employee filed a third discrimination claim against the County. In July 2005, the employee served an amended complaint, alleging claims for discrimination and retaliation under both the Florida Civil Rights Act of 1992, and Florida’s Whistle-blower’s Act. In addition to seeking to enjoin the County from future discrimination and damages, the employee requested instatement to the position of Contract Grants Administrator III. Alternatively, she requested “instatement to one of the positions for which she was passed over, or to an equivalent position, with the pay grade, benefits and seniority rights attendant to such position, or reasonable front pay as alternative relief.” In September 2005, the County terminated the employee due to her inability to perform an essential job function, as a storekeeper II.

The employee filed a motion for injunc-tive relief. At the hearing, the County argued that loss of employment did not constitute irreparable harm and the employee had an adequate remedy at law in the form of back pay, damages, and reinstatement if she prevailed. The employee responded that the court should adopt a federal standard that presumes irreparable harm when there is a likelihood of success on the merits. The court indicated that it had doubts about the element of irreparable harm, and reserved ruling pending additional briefing.

While acknowledging skepticism of the employee’s claims, the trial court granted the motion for preliminary injunction. It found the employee had satisfied three of the four requisites for injunctive relief. As to irreparable harm, the court adopted the minority federal view that supports a presumption of irreparable harm in discrimination and retaliation cases.

The County argues, and we agree, that the court erred in granting the preliminary injunction. First, the trial court erred in adopting the minority federal view and imposing the presumption of irreparable harm. Second, the court erred in failing to make the requisite findings of fact and in failing to require the posting of a bond. Third, the court erred because without the presumption, the employee was unable to establish the four requirements for issuance of a preliminary injunction.

We first address the court’s reliance on a presumption of irreparable harm. The federal circuits are split on this issue. A minority federal view eliminates the mov-ant’s burden to establish irreparable harm by relying on a presumption of its existence. See, e.g., Middleton-Keirn v. Stone, 655 F.2d 609 (5th Cir.1981); Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir.1988). However, the majority of federal courts still require the movant to establish irreparable harm and do not subscribe to the presumption. See, e.g., De-Novellis v. Shalala, 135 F.3d 58 (1st Cir. 1998); Stewart v. United States Immigration and Naturalization Serv., 762 F.2d 193 (2d Cir.1985); Holt v. Cont’l Group, Inc., 708 F.2d 87 (2d Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1294, 79 L.Ed.2d 695 (1984); Marxe v. Jackson, 833 F.2d 1121 (3d Cir.1987); Moteles v. Univ. of Pa., 730 F.2d 913 (3d Cir.) cert. denied, 469 U.S. 855, 105 S.Ct. 179, 83 L.Ed.2d 114 (1984); EEOC v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir.1981); Ekanem v. Health & Hosp. Corp. of Marion County, 589 F.2d 316 (7th Cir.1978); EEOC v. Pacific Press Publ’g Ass’n, 535 F.2d 1182 (9th Cir.1976).

The County argues that under Florida law, irreparable harm is presumed only when a government entity moves for an injunction to protect the public pursuant to its police power or when the underlying claim involves employment restrictive covenants. The County suggests the trial court erred by adopting the minority federal view, which is inconsistent with Florida law. We agree.

In 1974, the Supreme Court of the United States discussed the issue of irreparable harm for a discharged employee seeking equitable relief. Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974).

‘[T]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies’ ... The Court of Appeals intimated that either loss of earnings or damage to reputation might afford a basis for a finding of irreparable injury and provide a basis for temporary injunctive relief. We disagree.

Id. at 88-89, 94 S.Ct. 937 (citations and footnotes omitted). The Court disapproved of the presumption that had been applied, finding that even if the employee had made a sufficient showing of loss of income and damage to reputation, it would still fall “far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case.” Id. at 91-92, 94 S.Ct. 937.

The same is true in this case. Absent the presumption, the employee failed to establish the requisite irreparable harm warranting the issuance of the preliminary injunction.

In reviewing a trial court’s decision to issue a preliminary injunction, we must first determine whether the motion sets out “clearly, definitely and unequivocally sufficient factual allegations to support the conclusion of irreparable damage necessary to warrant intervention of a court of equity.” Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc., 824 So.2d 226, 228 (Fla. 4th DCA 2002). The second step is to determine whether the moving party proved: “(1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; and (4) that a temporary injunction will serve the public interest.” Id. at 227.

Here, the employee neither alleged nor proved irreparable harm. But for the trial court’s application of a presumption of irreparable harm, the employee was unable to satisfy this requirement for a preliminary injunction. Further, the alleged facts and proof established that she was unable to satisfy an essential function of the Storekeeper II position. Therefore, the employee failed to allege facts and prove that she would likely prevail on the merits of her claim.

The trial court did not seem too impressed either since it spent considerable time telling the employee all the reasons her case should fail. Because, however, she alleged the County retaliated against her by suddenly adding a descriptive weight to the materials she was required to move, the court concluded the employee had a likelihood of prevailing on the merits. Barely convincing a skeptical trial court of a movant’s claims does not support the extraordinary remedy of a preliminary injunction for reinstatement.

There were technical errors in the order as well. First, the order failed to state a factual basis to support each of the four elements of a preliminary injunction. See Fla. R. Civ. P. 1.610(c); City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So.2d 750, 753-54 (Fla. 1st DCA 1994), approved, 659 So.2d 1046 (Fla.1995); accord Aerospace Welding, Inc., 824 So.2d at 227. The order simply stated that the plaintiff “satisfied the necessary criteria for injunctive relief except for the element of irreparable harm.... ” And second, the order failed to include a bond as required by Rule 1.610(b), Florida Rules of Civil Procedure.

Rule 1.610 provides that “[n]o temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” “[T]he court must provide both parties the opportunity to present evidence as to the amount of an appropriate bond” at an evi-dentiary hearing. Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994). Here, the court neither held an evidentiary hearing nor required the posting of a bond.

Because the employee did not prove the requirements for issuance of a preliminary injunction, we vacate the injunction. This eliminates the need for the trial court to correct the other technical deficiencies. The case is remanded to the trial court for further proceedings.

Reversed.

GUNTHER and HAZOURI, JJ., concur.

      . §§ 760.01-.il, 509.092, Fla. Stat. (2005).

      . §§ 112.3187-.31895, Fla. Stat. (2005).


text:
    Israel RENTAS and Nilda Rentas, Appellants, v. DAIMLERCHRYSLER CORPORATION, Appellee.
    No. 4D05-1875.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.

      Alex D. Weisberg and Theodore F. Greene, III, of Krohn & Moss, Ltd., Sunrise, for appellants.
    John J. Glenn, Heatherann M. Solanka, and Benjamin C. Moore of AndersonGlenn, LLC., Boca Raton, for appellee.
   MAY, J.

The plaintiffs appeal the dismissal of their third amended complaint for breach of express and implied warranties. They argue the trial court erred in dismissing the complaint because the Magnuson-Moss Warranty Act [MMWA] provides an independent federal cause of action and also because privity between the manufacturer and consumer is not required to state a cause of action for breach of warranty in Florida. We agree in part and reverse.

The plaintiffs alleged they purchased a used 2002 Dodge Intrepid from Fairbanks Mazda on August 10, 2002. The vehicle had been manufactured by the Daimler-Chrysler Corporation, which issued a written warranty. The vehicle experienced various mechanical problems shortly after the plaintiffs took possession. They alleged the defects were covered by the written warranty issued by the manufacturer. According to the allegations, the plaintiffs brought the vehicle to one of the manufacturer’s authorized dealerships for repairs on several occasions, but the defects were not corrected.

The plaintiffs filed the original complaint and two amended complaints against the manufacturer, alleging breach of the written warranty, breach of an implied warranty, and revocation of acceptance under the MMWA. The trial court dismissed each of these complaints.

The third amended complaint alleged breach of the written warranty and breach of an implied warranty under both the MMWA and the Florida Commercial Code. The plaintiffs attached the 2002 ‘Warranty Information” for Chrysler, Dodge and Jeep cars and trucks to the complaint.

The manufacturer again filed a motion to dismiss and a motion to strike. The trial court granted the motion to dismiss both counts. It found the MMWA does not provide an independent federal cause of action, and it requires application of state law, which in turn requires the plaintiffs to be in privity with the manufacturer to recover. From this dismissal, the plaintiffs appeal.

The plaintiffs argue the plain language of the MMWA creates an independent federal cause of action for a supplier, warrantor, or service contractor’s breach of express and implied warranties. They suggest the MMWA creates a cause of action, establishes a standard for finding a warrantor liable, and allows the consumer to recover attorney’s fees and costs upon prevailing.

The manufacturer claims the MMWA does not create an independent federal basis for warrantor liability, but rather provides federal jurisdiction for some state law claims. It argues that an MMWA claim fails where the underlying breach of warranty claim is not supported by state law. Here, the manufacturer suggests that Florida law requires privity between the manufacturer and the consumer for claims based upon the breach of both the express and implied warranties.

Orders granting motions to dismiss for failure to state a cause of action are reviewed de novo because they involve issues of law. Bell v. Indian River Mem’l Hosp., 778 So.2d 1030, 1032 (Fla. 4th DCA 2001). Thus, we review the four corners of the complaint and the applicable law to determine whether it states a cognizable cause of action.

The MMWA was created to enhance the enforceability of warranties in an effort to protect the consumer. O’Connor v. BMW of N. Am., LLC, 905 So.2d 235, 236 (Fla. 2d DCA 2005). Under the MMWA, “a consumer may bring suit against a warrantor in any state for failure to comply with its obligation under a written warranty or implied warranty.” Mesa v. BMW of N. Am. LLC, 904 So.2d 450, 453 (Fla. 3d DCA 2005). See also 15 U.S.C. § 2310(d)(1) (2003); Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 405 (7th Cir.2004).

To bring a suit under the MMWA, the plaintiff must fit into one of three categories of consumers. A category one consumer is “a buyer (other than for purposes of resale) of any consumer product.” 15 U.S.C. § 2301(3) (2003). A category two consumer is “any person to whom [a consumer product] is transferred during the duration of an implied or written warranty (or service contract) applicable to the product.” Id. A category three consumer is “any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).” Id.

The MMWA defines a “written warranty” as

(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or
(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.

15 U.S.C. § 2301(6). An “implied warranty” refers to an implied warranty arising under state law. 15 U.S.C. § 2301(7).

The plain language of the MMWA provides for a consumer to bring a claim for damages against a warrantor who fails “to comply with any obligation under [the MMWA]” or against a warrantor who fails “to comply with any obligation ... under a written warranty, implied warranty, or service contract.” 15 U.S.C. § 2310(d)(1). As the Seventh Circuit explained, the MMWA imposes minimum standards for certain written warranties and provides a remedy for their breach. Schimmer, 384 F.3d at 405. The MMWA also allows “consumers to enforce written and implied warranties in federal court, borrowing state law causes of action.” Id. Based upon this language, we hold that the MMWA does provide an independent federal cause of action for breach of warranty.

The first step in bringing suit under the MMWA is to determine if a plaintiff is a consumer under the MMWA. Here, the plaintiffs qualify in all three categories. As the purchasers of the vehicle, the plaintiffs are buyers of a consumer product other than for purposes of resale, a category one consumer. 15 § U.S.C. 2301(3). They are category two consumers because the vehicle was transferred to them during the duration of the written warranty. They also qualify as category three consumers as holders of the written warranty.

The next issue is whether privity between the manufacturer and the consumer is required to bring the claims. A written warranty as defined under the MMWA does not require privity. See 15 U.S.C. § 2301(6). Neither subsections 2301(6)(a) nor (b) require the written warranty to have been made between the original manufacturer and the eventual consumer seeking to enforce it. Id. The only limitation is that the buyer with whom the bargain was made must have been “a buyer for purposes other than resale.” Id.

In fact, nothing in the written warranty in this case limits it to the original purchaser. The written warranty begins by stating, “The warranties contained in this booklet are the only express warranties that [the manufacturer] makes for your vehicle. These warranties give you specific legal rights. You may also have other rights that vary from state to state.”

This court and other Florida appellate courts have expressly enforced written warranties in suits brought under the MMWA against manufacturers where privity did not exist between the manufacturer and the vehicle owner. See Fischetti v. Am. Isuzu Motors, Inc., 918 So.2d 974 (Fla. 4th DCA 2005); Cerasani v. Am. Honda Motor Co., 916 So.2d 843 (Fla. 2d DCA 2005), review granted, 925 So.2d 1029 (Fla.2006); Mesa, 904 So.2d 450. In Fis-chetti, this court rejected a manufacturer’s privity argument when it provided a warranty that ran in favor of remote purchasers of the product. 918 So.2d at 976.

The Third District addressed the privity issue in Mesa, where a lessee sued a manufacturer under the MMWA for breach of written and implied warranties. 904 So.2d 450. There, the lessee leased a vehicle from BMW Financial Services, which had recently purchased the vehicle from a BMW dealership. After the BMW dealership was unable to fix certain defects, the lessee filed suit under the MMWA. Id. at 453.

The Third District found the lessee was entitled to enforce the written warranty for two distinct reasons. Id. at 456-57. First, it found the warranty satisfied the “broadly” defined definition of a written warranty under the MMWA. Id. And second, the court found the lessee could enforce the written warranty on state law grounds. Id. at 457.

With respect to the breach of implied warranty claim, the Third District properly found the answer hinged on applicable state law. Id. at 458. Because Florida law requires privity for a breach of implied warranty claim, the plaintiffs claim was barred under the MMWA. Id. The Second District reached the same conclusion in Cerasani, 916 So.2d 843.

Here, the trial court erred when it determined that the plaintiffs had to be in privity with the manufacturer to recover for breach of the express warranty. The third amended complaint stated a cause of action under the MMWA. The trial court was correct, however, in requiring privity for the breach of implied warranty claim. We therefore reverse that part of the order of dismissal concerning the plaintiffs’ claim for breach of express warranty, but affirm the order as it relates to the plaintiffs’ claim for breach of implied warranty.

Reversed in part and Remanded.

STEVENSON, C.J., and SHAHOOD, J„ concur.

      . 15 U.S.C. §§ 2301-2312 (2003).

      . The "Basic Limited Warranty” attached to the third amended complaint stated it lasted for thirty-six months from the date it began or for 36,000 miles, neither of which had occurred.


text:
    Ernesto POUX, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4555.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.
    Ernesto Poux, Jesup, GA, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850(b). With respect to appellant’s apparently timely claim of misadviee as to the sentence-enhancing consequences of his plea, we affirm in light of State v. Dickey, 928 So.2d 1193 (Fla.2006).

WARNER, KLEIN and SHAHOOD, JJ., concur.


author: TAYLOR, J.

text:
    Ivelesse PETERSON, Appellant, v. Vincent DeLUCA, Appellee.
    No. 4D06-833.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.

      Ivelesse Peterson, Margate, pro se.
    No appearance for appellee.
   TAYLOR, J.

Appellant, Ivelesse Peterson, is the former wife of appellee, Vincent De Luca. She has primary custody of the parties’ two minor children. In this appeal she challenges: 1) the trial court’s refusal to hold the former husband in contempt for drinking in front of the children in violation of the dissolution decree; 2) the trial court’s decision to hold her in contempt for denying the former husband visitation; 3) the trial court’s refusal to modify the dissolution decree to require alcohol and/or anger management counseling by the former husband as a condition of visitation; and 4) the trial court’s award of $1,500 in attorney’s fees to the former husband. We affirm, concluding that the trial court acted within its broad discretion in ruling on the contempt motions and in declining to modify the conditions of visitation. See Northstar Invs. & Dev., Inc. v. Pobaco, 691 So.2d 565, 566 (Fla. 5th DCA 1997) (stating that a judgment of contempt will not be overturned unless a clear showing is made that the trial court abused its discretion); Teta v. Teta, 297 So.2d 642, 646 (Fla. 1st DCA 1974) (stating that the trial court has broad discretion in its continuing jurisdiction over visitation orders).

However, the trial court erred in awarding the former husband attorney’s fees. “Any determination regarding an appropriate award of attorney’s fees in proceedings for dissolution of marriage, support, or child custody begins with section 61.16, Florida Statutes (1995).” Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). That statute provides:

(1) The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the costs to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings ....

§ 61.16, Fla. Stat. (2005). “The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Rosen, 696 So.2d at 699.

A trial court cannot award attorney’s fees without making findings as to one spouse’s ability to pay fees and the other spouse’s need to have the fees paid. Gaetani-Slade v. Slade, 852 So.2d 343, 347 (Fla. 1st DCA 2003); Perrin v. Perrin, 795 So.2d 1023, 1024-25 (Fla. 2d DCA 2001); see also Knoff v. Knoff, 751 So.2d 167, 170 (Fla. 2d DCA 2000). In this case, because no evidence was submitted on these matters, the trial court lacked a basis for making any such findings. We therefore reverse the attorney’s fee award to the former husband.

We note that the former husband alleged, as his sole ground for attorney’s fees, that the former wife had engaged in “excessive, frivolous litigation.” We disagree. Although the former wife lost on all issues, the former wife’s positions below were not so lacking in merit as to independently justify an attorney’s fee award against her. See Rosen, 696 So.2d at 700 (courts may consider the merits of the parties respective positions as a factor in deciding attorney fee entitlement).

Affirmed in part and Reversed in part.

FARMER and SHAHOOD, JJ„ concur.


text:
    P.R., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D05-4834.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.
    Roger Ally of the Law Offices of Roger Ally, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tricia D. Brissett, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children and Families.
    Patricia M. Propheter, Orlando, for ap-pellee Guardian ad Litem Program.
   PER CURIAM.

P.R., the mother, appeals the trial court’s order terminating protective supervision and placing her child in the long-term custody of relatives. We agree that the trial court failed to comply with certain statutory requirements in making its determination. The trial court may not order long-term custody unless DCF has submitted a case plan that “describe[s] the responsibilities of the relative” and “does not include reunification with the parents.” See § 39.622(l)-(2), Fla. Stat. (2005). Further, pursuant to section 39.601(9)(f), when the trial court amends a case plan, “[a] copy of the amended plan must be immediately given” to the child’s parents. Lastly, section 39.521(3)(d) requires that “[t]he order terminating supervision by the department shall set forth the powers of the custodian.... ” None of these requirements were met in the instant case. We therefore reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

STEVENSON, C.J., STONE, J., and BATEMAN, III, THOMAS HOWELL, Associate Judge, concur.


author: VAN NORTWICK, J.

text:
    Autumn SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3257.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2006.
    Michael Ufferman, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Autumn Smith appeals an order finding her in violation of probation, arguing that the trial court reversibly erred when it found that a violation of probation had been established based upon proof of the entry of a conviction entered upon a no contest plea contrary to Grizzard v. State, 881 So.2d 673 (Fla. 5th DCA 2004). We affirm.

In Grizzard, the Fifth District held that, although “[a] conviction entered upon a nolo contendere plea, standing alone, can constitute a sufficient basis upon which to revoke probation,” id. at 676 (citation omitted; emphasis added), the defendant “ ‘must be provided an opportunity to be heard on the question of whether he is guilty of the charge to which he pleaded no contest.’ ” Id. (quoting Maselli v. State, 446 So.2d 1079, 1080-81 (Fla.1984)). The Court noted that a plea of nolo contendere does not admit the allegations of the charge, but simply indicates that the defendant does not elect to defend the charge, id., and that, “unlike a guilty plea, is not admissible in a civil proceeding.” Id. at 677.

Appellant argues that the trial court disregarded Grizzard and viewed the conviction based upon her nolo contendere plea as a per se basis to revoke probation. We cannot agree. The trial court, after hearing argument, did say that “[i]f this decision [i.e., Grizzard ] is the law of the land, we’re in deep trouble.” Given the context in which this statement was made, however, we cannot determine from the record whether the trial court was expressing disagreement with the holding in Grizzard or with counsel’s reading of Grizzard. Nevertheless, the record reflects that the appellant, through counsel, was permitted to argue that she did not commit the crime to which she pled nolo contendere and that her plea was one of convenience. Thus, even though the trial court found a violation of probation based upon this conviction, the trial court met the requirements of Grizzard. Accordingly, we affirm.

AFFIRMED.

WOLF, AND BROWNING, JJ., concur.