author: ERVIN, J.

text:
    Jon JOHNSON, Appellant, v. Frank SWERDZEWSKI, D.D.S., Appellee.
    No. 1D05-4882.
    District Court of Appeal of Florida, First District.
    July 31, 2006.

      Samantha Boge and Charles W. Dodson of Dodson & Boge, LLP, Tallahassee, for Appellant.
    Mary K. Simpson and Vikki R. Shirley of Huey, Guilday, Tucker, Schwartz & Williams, P.A., Tallahassee, for Appellee.
   ERVIN, J.

This is an appeal from a judgment notwithstanding verdict (JNOV) entered in a dental malpractice action. We reverse and remand with directions that the verdict for appellant/plaintiff Jon Johnson be reinstated.

On June 5, 2001, appellant sought treatment from the appellee/defendant dentist Dr. Frank Swerdzewski for relief of a toothache caused by a chipped lower-left molar. During an anesthetic injection, a piece of needle broke off in appellant’s gum tissue. Following several unsuccessful attempts to extract the needle, Johnson was referred to Shands Hospital in Gaines-ville, Florida, where, after two surgeries, the broken needle was finally removed. Thereafter, Johnson sued Dr. Swerdzewski for dental malpractice. At the close of plaintiffs ease, the defendant moved for directed verdict, contending that Johnson had perpetrated a fraud on the court by providing discovery answers that he admitted at trial were untrue. Upon the motion’s denial, it was renewed at the close of all the evidence, and again denied. A verdict was thereafter returned by the jury awarding Johnson extensive compensatory and non-compensatory damages. Following trial, the court entered JNOV for Dr. Swerdzewski on the same evidence previously submitted, finding that Johnson had perpetrated a fraud on the court by providing false testimony during pretrial discovery and at trial that impugned the integrity of the court.

In its order, the trial court cited five examples supporting the JNOV:

1. Appellant’s false testimony at trial of drooling sensation and speech problems following the first surgical attempt to remove the broken needle, while never disclosing such symptoms during pretrial discovery.
2. Appellant’s testimony that he had experienced numbness in his mouth as a result of this claimed injury, despite his failure during discovery to disclose such problem in the face of clear and unambiguous inquiries asking him to list the nature and the extent of his injuries or damages suffered.
3. Appellant’s misrepresentation during two depositions that a treating dental practitioner at Shands Hospital had not made any recommendations to him concerning his leaving the broken needle in its place, whereas at trial appellant acknowledged that what he had testified to during discovery was not true; that Dr. Dolwick had in fact recommended the needle not be surgically removed.
4. During trial, appellant admitted that he had never told Dr. John Spence, a medical practitioner from whom he had received treatment for unrelated back problems, he was suffering headaches related to the dental procedure, despite his misrepresentation during discovery that he had complained to the physician of such condition.
5. In his answers to interrogatories, appellant failed to list all physicians who had treated or examined him in the past ten years by not identifying Drs. Knowles, Stripling, Spence, and Guy, and that such omissions had a significant effect on the outcome of the case in that some of the non-diselosed practitioners had treated the claimed injuries which resulted from the purported act of malpractice.

We cannot agree that appellant’s inconsistent pretrial representations, even if intentional, required the entry of the JNOV. The eases relied upon by the trial court in support of its judgment, e.g., Distefano v. State Farm Mutual Automobile Ins. Co., 846 So.2d 572 (Fla. 1st DCA 2003); Baker v. Myers Tractor Services, Inc., 765 So.2d 149 (Fla. 1st DCA 2000); Metropolitan Dade County v. Martinsen, 736 So.2d 794 (Fla. 3d DCA 1999); Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 1998); and Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998), are procedurally and factually distinguishable from the present case. In all of the cases, except Martin-sen, the actions were generally disposed of by orders granting pretrial motions for dismissal and involve the imposition of sanctions resulting from the party’s fraudulent conduct. Such orders are governed by the standard of abuse of discretion. See Distefano, 846 So.2d at 574.

In contrast, the test to be applied to a JNOV is as follows:

When, after the entry of a jury verdict, the trial court grants a motion for judgment in accordance with the mov-ant’s prior motion for directed verdict, the ruling constitutes a deferred decision on the earlier motion for a directed verdict. Whitman v. Red Top Sedan Service, Inc., 218 So.2d 213 (Fla. 3d DCA 1969); Reams v. Vaughn, 435 So.2d 879 (Fla. 5th DCA 1983). Accordingly, our task in reviewing the propriety of an order granting such a motion is identical to that where an ordinary motion for directed verdict is involved. Presented with such a motion, the court must view all of the evidence in a light most favorable to the non-movant, and, in the face of evidence which is at odds or contradictory, all conflicts must be resolved in favor of the party against whom the motion has been made. Reams v. Vaughn, 435 So.2d 879 (Fla. 5th DCA 1983); Stenback v. Racing Associates, Inc., 394 So.2d 1128 (Fla. 4th DCA 1981). Similarly, every reasonable conclusion which may be drawn from the evidence must also be construed favorably to the non-movant. Reams; Stenback, supra. Only where there is no evidence upon which a jury could properly rely, in finding for the plaintiff, should a directed verdict be granted. Ligman v. Tardiff, 466 So.2d 1125 (Fla. 3d DCA 1985); Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979). It goes without saying that a motion for directed verdict should be treated with special caution, and this is especially true in negligence cases where the function of a jury to weigh and evaluate the evidence is particularly important since reasonable people can draw various conclusions from the same evidence. Benton v. School Board of Broward County, 386 So.2d 831 (Fla. 4th DCA 1980); Hernandez v. Motrico, Inc., supra.

Collins v. Sch. Bd. of Broward County, 471 So.2d 560, 563 (Fla. 4th DCA 1985), dismissed, 491 So.2d 280 (Fla.1986); approved, Irven v. Dep’t of Health & Rehab. Servs., 790 So.2d 403, 406, n. 2 (Fla.2001).

It is important to emphasize that our review is not confined to an order dismissing a plaintiffs case based upon such party’s fraudulent conduct, which is controlled by the abuse of discretion standard. Because this appeal is from the entry of a JNOV, our review is far less deferential to a trial court’s discretionary ruling. Given the presumption of liberality accorded to the non-movant against whom a JNOV is sought, we cannot possibly conclude that there is no evidence upon which the jury could properly rely in finding for Johnson. For example, appellant’s complaints of speech difficulties, muscles that did not react properly when he smiled or talked, and loss of feeling and taste on the left side of his face and cheek were corroborated by Dr. James Green, an oral surgeon at Shands Hospital who specializes in the treatment of injuries to the nerves in a patient’s mouth and jaw. In an effort to determine whether Johnson had any feeling in the area of his mouth where he had described his symptoms, testing was performed approximately one and one-half years after the incident in question. A needle was inserted into multiple spots on appellant’s face, deep enough to cause bleeding, with no reaction on appellant’s part. His tongue was similarly tested with similar results. Appellant experienced no feeling on the left side of his tongue where the needle was inserted. Testing further revealed that appellant was unable to distinguish between sharp and dull pain in the gum tissue in the front portion of his mouth on the left side of the floor of his mouth.

Although it is true that appellant never described before trial any specific symptoms of drooling following the broken needle incident, medical testimony corroborated his trial testimony that the “sensation” of drooling was consistent with the type of injuries he had suffered. In fact, appellant’s testimony both at trial and during discovery was not inconsistent in relating that he had suffered numbness and loss of sensation following the incident.

The most significant omission and the one about which the trial court appeared to be most concerned was Johnson’s failure to list pretrial the names of four healthcare providers who had treated him during the previous 10 years. Under vigorous cross-examination, appellant admitted that he had falsely omitted their names. Despite the obvious inconsistencies between his pretrial and trial testimony, it does not appear that appellee was hampered in his defense of the malpractice claim. Appellee identified all four of the non-disclosed practitioners on his trial witness list, and it appears from the record that the pretrial information appellant provided may have aided in their discovery.

More than a year and a half before trial, appellant replied during his deposition that he had been treated by an unidentified dentist in Marianna, Florida, whose office, appellant correctly stated, was located on Kelson Avenue. The defense subsequently discovered the dentist’s name to be Dr. Henry Knowles. At the same deposition, appellant inaccurately identified Dr. “Lansing” as providing him dental care, but truthfully answered that his practice was situated on Third Avenue in Marianna, Florida. The defense later discovered the dentist was in fact Dr. Michael Stripling, whom appellant thereafter identified in his answers to one of appellee’s sets of interrogatories. In regard to the third practitioner omitted, Dr. John Spence, the trial court apparently overlooked the fact that when appellant was first deposed, he had correctly identified Dr. Spence as prescribing pain medication for a lower lumbar condition. Finally, although appellant never provided the defense with any information regarding medical care by Dr. Guy, it appears that appellee admitted into evidence as an exhibit a copy of a single medical record from that physician who had examined Johnson on one occasion in regard to Johnson’s application for Social Security disability benefits, an examination altogether unrelated to the condition arising from the malpractice claim. Under the circumstances, we find no support in the record for the lower court’s conclusion that the “failures to disclose treating physicians and dentists were significant as some of these doctors treated the injuries claimed by the plaintiff.”

In our judgment, the trial court did not properly heed the more exacting test to be applied to a motion for JNOV, rather than that for a motion to dismiss imposed as a sanction for false and misleading conduct by one of the parties to a lawsuit. Once the trial court had earlier exercised its discretion to deny appellee’s motions for directed verdict and to submit the case to the leavening scrutiny of the jury, its discretion lessened and the credibility assessment of appellant’s testimony was then assigned to the six-member jury panel. By granting the extreme sanction of dismissal of the cause after the jury had returned a verdict for appellant, the court essentially assumed the role of a seventh juror by making a credibility determination contrary to that reached by the jury, which, in deciding the case for appellant, may have determined that the inconsistencies in the appellant’s testimony were not intentional, or, if intentional, that they were not so significant as to undermine the effectiveness of the defense, which clearly brought to its attention the omissions from appellant’s answers to pretrial discovery.

In reaching its verdict, the jury properly exercised its function as a deliberative body to assess the believability of the witness and the weight to be accorded to his testimony. Fla. Std. Jury Instr. (Civ.) 2.2(a). Given the circumstances under which this case was tried, we conclude the following admonitory comments by the Fourth District in Cross v. Pumpco, Inc., 910 So.2d 324, 328 (Fla. 4th DCA 2005), are equally applicable to the case at bar: “Except in the most extreme cases, where it appears that the process of trial itself has itself been subverted, factual inconsistencies, and even false statements, are well managed through the use of impeachment and traditional discovery sanctions.”

REVERSED and REMANDED.

BENTON and BROWNING, JJ., concur.

      . In Martinsen, the defendant sought dismissal of the action at trial based on plaintiff's untruthful answers during discovery. The trial court reserved ruling on the county’s motion, and, following the jury verdict in plaintiffs favor, denied the motion to dismiss and entered judgment for plaintiff. In reversing, the Third District concluded that the trial court had abused its discretion by denying the motion to dismiss due to the fraudulent representations of the plaintiff in her sworn pretrial answers.

      . We note that appellant stated he had been diagnosed with bipolar disorder.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Howard McGEE, Appellant, v. STATE of Florida, FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D04-4473.
    District Court of Appeal of Florida, First District.
    July 31, 2006.

      Howard McGee, pro se, Appellant.
    Rosa Carson, General Counsel; Judy Bone and Barbara Debelius-Enemark, Assistant General Counsels, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from the circuit court’s dismissal of Appellant’s petition for writ of mandamus in which Appellant sought to reinstate his lost gain time. We deny on the merits Appellant’s petition for reinstatement of his gain time, but we must reverse the circuit court’s order imposing a lien on Appellant’s prison account based on the holding in Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Under Schmidt, the circuit court erred when it ordered Appellant to pay filing fees and imposed a lien on his prison account. See Cason v. Crosby, 892 So.2d 536, 537-38 (Fla. 1st DCA 2005).

We write only to address the impact of Schmidt on cases such as this. In Schmidt, the supreme court held that any action which could conceivably reduce a litigant’s prison time, should the prisoner litigant prevail, is a collateral criminal proceeding; thus, the litigant is exempt from the filing fee requirement and lien provisions contained in section 57.085, Florida Statutes (2001).

After Appellant violated his parole, the Department of Corrections forfeited Appellant’s gain time pursuant to section 944.28(1), Florida Statutes (2001), which authorizes gain time forfeiture for parole revocation, without notice or hearing. Despite the clear authority of the Department, Appellant filed this action below, alleging that the Department was without the authority to forfeit his previously earned gain time. Gain time is a matter of grace that an inmate does not have a vested right to receive without a legislative enactment. See Waldrup v. Dugger, 562 So.2d 687, 694-95 (Fla.1990). Appellant’s argument is completely without merit as a matter of law and, in fact, is frivolous. Had Appellant made an argument such as this in a civil case, he could have been sanctioned under section 57.105, Florida Statutes (1999):

Specifically, the 1999 version [of section 57.105] authorizes an award of attorney’s fees “on any claim or defense at any time during a civil proceeding or action,” if the claim “was not supported by the material facts necessary to establish the claim,” or “would not be supported by the application of then-existing law to those material facts.” ... Significantly, the 1999 version of section 57.105, “applies to any claim or defense, and does not require that the entire action be frivolous.”

Albritton v. Ferrera, 913 So.2d 5, 8 (Fla. 1st DCA 2005) (citations and footnote omitted).

Before the enactment of section 57.085, Florida Statutes (2001), challenges to prisoner disciplinary actions were treated as civil petitions, not collateral criminal proceedings. Because Appellant’s petition is now considered a collateral criminal proceeding under Schmidt, Appellant cannot be sanctioned under section 57.105 for filing a meritless claim. He is also not required to bear any of the costs imposed on the courts and the public for filing his action.

The legislature passed section 57.085, Florida Statutes (2001), the Prisoner Indi-gency Statute, to reduce frivolous prisoner litigation. The preamble to Florida’s Prisoner Indigency Statute does not cite any specific examples of civil inmate lawsuits to which it applies, only that the law is enacted because

frivolous inmate lawsuits congest civil court dockets and delay the administration of justice for all litigants, and ... each year self-represented indigent inmates in Florida’s jails and prisons file an ever-increasing number of frivolous lawsuits at public expense against public officers and employees,....

Ch. 96-106, preamble, Laws of Fla. Although the legislature has not chosen to clarify its intent in passing the Prisoner Indigency Statute or to address the supreme court’s decision in Schmidt, it is clear that since this decision, frivolous actions such as Appellant’s continue to consume precious judicial resources. Here, a circuit judge was required to review Appellant’s frivolous claim. In addition, three judges of this court were required to consider Appellant’s claim. Public taxpayers must solely bear the costs of these actions.

This court has previously expressed its concern with Schmidt by certifying several questions to the supreme court. Burgess v. Crosby, 870 So.2d 217, 218-19 (Fla. 1st DCA 2004); Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006), rev. granted sub nom. McDonough v. Cox, 924 So.2d 809 (Fla.2006); Gillam v. McDonough, 31 Fla. L. Weekly D1079, — So.2d -, 2006 WL 994068 (Fla. 1st DCA Apr. 18, 2006); Yasir v. McDonough, 31 Fla. L. Weekly D1459, — So.2d -, 2006 WL 1419271 (Fla. 1st DCA May 25, 2006). To certify another question here would neither facilitate finality nor be a wise use of limited judicial resources. We do however recommend that the supreme court recede from its holding in Schmidt due to its unintended fiscal consequences on the courts and the public. See Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973) (explaining that district courts may state their reasons for advocating change but are “bound to follow the case law set forth by this Court.”).

Accordingly, Appellant’s petition is DENIED as to the challenge to the order by which the trial court denied mandamus, but is GRANTED as to the challenge to the lien orders, and those orders are hereby QUASHED.

HAWKES and THOMAS, JJ., concur; VAN NORTWICK, J., concurs in result only.


text:
    Christopher M. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1329.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2006.
    Christopher M. Smith, Milton, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Newton v. State, 603 So.2d 558 (Fla. 4th DCA 1992).

GRIFFIN, THOMPSON and EVANDER, JJ., concur.


text:
    David W. RUTH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1251.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2006.
    Luke Newman, Law Office of Bernard F. Daley, Jr., Tallahassee, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hope v. State, 766 So.2d 343 (Fla. 5th DCA 2000); Washington v. State, 895 So.2d 1141 (Fla. 4th DCA 2005).

THOMPSON, LAWSON and EVANDER, JJ., concur.


text:
    Mark A. SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1877.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2006.
    Mark Sanchez, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Jones v. State, 838 So.2d 659 (Fla. 5th DCA 2003); Alterisio v. State, 704 So.2d 164 (Fla. 5th DCA 1997).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    Gregory L. DUMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2603.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2006.
    Gregory L. Dumas, East Palatka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Scott v. Dugger, 634 So.2d 1062 (Fla.1993); Hough v. State, 679 So.2d 1300 (Fla. 5th DCA 1996).

PLEUS, C.J., GRIFFIN and LAWSON, JJ., concur.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. David Joseph SZEMPRUCH, Appellee.
    No. 2D05-1594.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2006.
    Rehearing Denied Aug. 2, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    Michael Schneider, Naples; and John S. Mills of Mills & Carlin, P.A., Jacksonville, for Appellee.
   BY ORDER OF THE COURT.

Upon consideration of Appellee’s motion for rehearing, rehearing en banc, or certification, the motion is granted to the extent that the opinion dated January 27, 2006, is hereby withdrawn and the attached opinion is substituted therefor. In all other respects, the motion is denied.

DAVIS, Judge.

The State challenges the trial court order granting David Joseph Szempruch’s Florida Rule of Criminal Procedure 3.800(c) motion to mitigate his sentences on two counts of grand theft and one count of forgery to which he entered negotiated no contest pleas. Because the State failed to preserve the issues it now raises on appeal, we affirm.

After accepting Szempruch’s pleas and conducting a thorough plea colloquy, the trial court sentenced him pursuant to the plea agreement to three concurrent terms of forty-two months’ prison and imposed restitution in the amount of $55,000 to be paid within five years of his release from prison. Subsequently, Szempruch moved to mitigate his sentence. Following a hearing, the postconvietion court granted the motion and resentenced Szempruch to three consecutive one-year terms of community control, followed by probation.

On appeal, the State argues (1) that the postconviction court erred in modifying the sentence because the original sentence was imposed pursuant to a negotiated plea and (2) that Szempruch failed to present sufficient evidence below to support a downward departure sentence. Had the State preserved below either of the arguments it now raises on appeal, we would have been forced to reverse.

As to the State’s first argument, in State v. Brooks, 890 So.2d 503 (Fla. 2d DCA 2005), this court reversed in a similar situation. In that case, in exchange for Brooks’ plea, the State agreed to a downward departure sentence and a reduction of the charge. Subsequently, upon Brooks’ rule 3.800(c) motion to mitigate, the postconviction court modified the sentence, converting the remainder of the in-carcerative portion of the sentence to probation.

In reversing the modified sentence in Brooks, this court quoted the Fifth District’s opinion in State v. Swett, 772 So.2d 48, 52 (Fla. 5th DCA 2000), as follows:

“The sentence was part of a quid pro quo and the defendant cannot accept the benefit of the bargain without accepting its burden.” To allow a defendant to use a rule 3.800(c) motion to evade a negotiated plea “would discourage the state from entering into plea bargains in the future.”

Brooks, 890 So.2d at 505. Additionally, this court noted that “[a]s part of the negotiated plea, Brooks and the State agreed to a reduced charge and to specific downward departure sentences.” Id. We note that in that case, the Assistant State Attorney preserved the issue for appeal by specifically arguing at the hearing on the motion to modify that the trial court could not reduce the sentence because it was imposed pursuant to a negotiated plea agreement. Id. at 504.

Here, pursuant to his negotiated plea agreement, Szemprueh received the lowest permissible sentence and the State nolle prossed two counts of organized fraud and two counts of forgery brought against Szemprueh under a separate case number. As such, Szemprueh definitely accepted the benefit of his bargain. Accordingly, based on this court’s opinion in Brooks, it was error for the trial court to modify Szempruch’s original sentence. We conclude, however, that the State did not preserve this error for appeal.

Additionally, the State argues on appeal that the evidence presented below did not support the trial court’s decision to depart downward in modifying Szempruch’s sentence. At the hearing on the motion, counsel for Szemprueh suggested to the trial court that the need for restitution outweighed the need for incarceration. See § 921.0016(4)(e), Fla. Stat. (2005) (stating that where “[t]he need for payment of restitution to the victim outweighs the need for a prison sentence,” a departure sentence is justified). Szemprueh presented the testimony of a real estate agent who did not receive her commission from a real estate closing because Szemprueh had misappropriated a portion of the funds held in his escrow account for the closing. The agent, who was not named as a victim in the information, testified that since Szem-pruch had lost his license to practice law, he would not be in a position to commit such an act again and that she would rather see him out working and paying restitution than sitting in prison. She did not testify, however, as to any particular need for the restitution that she might have. This was the only victim testimony presented by Szemprueh to support his request for a downward departure. This testimony did not constitute competent, substantial evidence that the need for restitution of a victim of Szempruch’s outweighed the need for a prison sentence. See Demoss v. State, 843 So.2d 309, 312 (Fla. 1st DCA 2003) (“The test is the victim’s need, not the victim’s desire or preference.”); see also State v. White, 755 So.2d 830 (Fla. 5th DCA 2000); State v. Bleckinger, 746 So.2d 553 (Fla. 5th DCA 1999). However, again we must conclude that the State did not preserve this issue for appeal.

As Szemprueh correctly points out on appeal, the State failed to object below to the modification to a downward departure sentence on any specific grounds. At first blush, this may not have been fatal to the preservation issue because the State did make it clear to the trial court that it opposed modifying Szempruch’s sentence to a below guidelines sentence and that it would be appealing. See State v. Barnes, 753 So.2d 605, 607 (Fla. 2d DCA 2000) (finding issue preserved where “State asserted its objection to departing downward from the guidelines sentence” before the trial judge imposed sentence). However, at the conclusion of the hearing, the trial court directly asked the prosecutor, “[Ojther than the fact that’s not what you want, is there any legal reason why I can’t do that?” The prosecutor responded, “Well, I suppose there’s no legal reason, but we appeal that.” By this concluding remark, counsel waived any legal issues as to the mitigation of the negotiated plea and the sufficiency of the evidence in support of the downward departure. Due to the State’s failure to preserve either of these issues, we must affirm Szempruch’s sentence, even though the trial court may have erred in imposing it. See Fla. R.App. P. 9.140(e) (“A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal .... ”)

Affirmed.

STRINGER and WALLACE, JJ., Concur.

      . We note that if the defense attorney had failed to preserve the issue of the trial court's failure to follow the plea agreement in imposing sentence, he would have had the opportunity to correct the error by filing a motion pursuant to rule 3.800(b). However, no such opportunity is afforded the State.


author: RAMIREZ, J.

text:
    Irving WEISS, Appellant, v. MASHANTUCKET PEQUOT GAMING ENTERPRISE, Appellee.
    No. 3D05-1458.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.
    Kirkpatrick & Escribano, and John E. Kirkpatrick, for appellant.
    Kamen & Orlovsky, and Donald A. Or-lovsky, South West Palm Beach, for appel-lee.
    Before COPE, C.J., and RAMIREZ, and SUAREZ, JJ.
   RAMIREZ, J.

Irving Weiss appeals the denial of his motion to vacate a default final judgment entered in favor of appellee, Mashantucket Pequot Gaming Enterprise (“MPGE”). We reverse because the court entered judgment against Weiss without due service of process.

On March 1, 2002, MPGE filed a complaint to domesticate a foreign judgment. MPGE attempted substitute service on Weiss by serving his wife, Shelly Weiss, at her residence on March 6, 2002. At the time, Weiss was incarcerated and resided at the South Dade Federal Detention Center. Nine days after Shelly Weiss received service, Weiss was released, and he returned to his marital home. Weiss and his wife did not answer the complaint. Weiss died on August 8, 2002. On April 3, 2003, the court entered the default final judgment against Weiss.

Shelly Weiss was then appointed the personal representative of Weiss' estate. On April 6, 2005, she moved to vacate the entry of the default judgment. MPGE did not contest the invalidity of service of process. Instead, MPGE contended that the motion should be denied because Shelly Weiss waited too long to file the motion and she did not establish that Weiss lacked actual knowledge of the proceeding. The court subsequently denied the motion to vacate.

We find that the trial court improperly entered a default judgment against Weiss because the substitute service upon Shelly Weiss was ineffective. Del Conte Enters., Inc. v. Thomas Publ’g Co., 711 So.2d 1268 (Fla. 3d DCA 1998). Florida law is clear that substitute service must be made at the place a person actually lives at the time of service. Section 48.031(1)(a), Florida Statutes (2005), states that a person must be served at his or her usual place of abode. According to Shurman v. Atlantic Mortgage & Inv. Corp., 795 So.2d 952 (Fla.2001), a prisoner’s “usual place of abode” is prison at time of service, and the trial court cannot gain jurisdiction over him by serving the prisoner’s wife at the prisoner’s former marital residence. Because Weiss resided at the South Dade Federal Detention Center when his wife received substitute service at the couple’s home, service is ineffective.

Furthermore, it is of no consequence that the prisoner in Shurman was a state prisoner and Weiss was a federal detainee. Florida law overwhelmingly favors a person’s usual place of abode as being where the person is actually living at the time of service. See State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145 (1940). In Heffernan, the Florida Supreme Court stated,

‘Going one step further, “usual place of abode” is the place where the defendant is actually living at the time of the service. The word abode means one’s fixed place of residence for the time being when the service is made. Thus, if a person has several residences, he must be served at the residence in which he is actually living at the time service is made.'

Id. See also Shurman, 795 So.2d at 954. Thus, Weiss should have received service of process at the South Dade Federal Detention Center.

Additionally, the fact that Shelly Weiss moved to vacate the entry of the default final judgment approximately two years after the entry of the default final judgment is irrelevant. A judgment entered without due service of process is void. See Del Conte Enters., Inc. v. Thomas Publ’g Co., 711 So.2d 1268 (Fla. 3d DCA 1998). Florida Rule of Civil Procedure 1.540(b)(4) permits motions for relief from void judgments to be filed at any time. Thus, the fact that Shelly Weiss moved to vacate over one year after the entry of the judgment is irrelevant.

Accordingly, because there was no valid service of process on Weiss, the default final judgment is void. We therefore reverse the entry of the default final judgment against Weiss and instruct the trial court to vacate the default final judgment entered against him.

Reversed and remanded with instructions.


text:
    Francis VALDES, Appellant, v. In re ESTATE OF Amado Luis VALDES, Appellee.
    No. 3D04-2031.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.
    Nancy C. Wear; Judith A. Frankel, Miami Beach, for appellant.
    Richard B. Rosenthal, Miami; Berman & Berman and Paul F. Berman, for appel-lee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ON MOTION FOR REVIEW

PER CURIAM.

Valdes appeals an order granting her attorney’s fees and costs. We have jurisdiction. See Fla. R.App. P. 9.400(c) (permitting “review of orders rendered by the lower tribunal” for costs and attorney fees); See also Stabinski, Funt & De Oliveira, P.A. v. Alvarez, 490 So.2d 159, 160 (Fla. 3d DCA 1986), review denied, 500 So.2d 545 (Fla.1986) (interpreting Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), as applying “only to fees imposed ancillary to the primary action against a non-client either under common law principles or ... pursuant to statutory authorization”) (citations omitted).

Because the trial court did not include specific findings for the amount awarded, we reverse. In an order granting attorneys’ fees, the trial court must set forth its specific findings as to “the hourly rate” and “the number of hours reasonably expended.” Rowe, 472 So.2d at 1151. We therefore reverse.

Reversed.


text:
    Jerry Neil ALFRED, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2194.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.

      Roy D. Wasson, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
    Before COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Jerry Neil Alfred appeals his conviction for the offense of second degree murder with a firearm. We affirm.

Defendant-appellant Alfred was charged with second degree murder following the shooting of victim Peter Delgado. At trial the State’s witnesses included Tina Crews, Delgado’s girlfriend, who witnessed the initial altercation between Alfred and Delgado, and Carmen Font, who heard Crews’ statements about the shooting immediately following the incident.

Alfred argues that he was prejudiced by Font’s testimony as to Crews’ reaction immediately after the shooting because the testimony included the use of inflammatory terms. We affirm on this issue because the point was not preserved below. The transcript indicates that the comment about which Alfred complains was not objected to. Even if the comment had been objected to, the witness’ testimony was proper under Lay v. Kremer, 411 So.2d 1347, 1348 (Fla. 1st DCA 1982). Witness Font simply repeated the exact words of witness Crews.

Alfred also argues that he was unfairly hampered in his cross-examination of Font regarding what he believes was an unfairly suggestive photo line-up pursuant to which Font identified him. Assuming for purposes of discussion that the trial court did err in limiting the cross-examination of Font, the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Witness Font knew Alfred well, had known him for three to four years and identified him in court. This is not a case of witness identification of a stranger nor a case in which any irregularity in the photo line-up (assuming such occurred) could plausibly have had any effect on the witness’ identification of defendant.

Finally, the defendant claims he was prejudiced by the trial court’s rulings regarding a part of Crews’ testimony. We do not agree. The transcript shows that the trial court sustained defendant’s objection to Crews’ statement that she told the victim to “leave these kids [including defendant] alone because they were dangerous.” The trial court also instructed the jury to disregard that statement. The determination that the curative instruction was sufficient and the denial of defendant’s motion for mistrial were within the trial court’s discretion. See Goodwin v. State, 751 So.2d 537, 546-47 (Fla.1999).

Affirmed.


text:
    Eduardo SANTANA, Appellant, v. DEPARTMENT OF JUVENILE JUSTICE, Appellee.
    No. 3D05-311.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.

      Eduardo Santana, in proper person.
    M. Linville Atkins, Assistant General Counsel, Department of Juvenile Justice, (Tallahassee), for appellee.
    Before COPE, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See § 447.401, Fla. Stat. (2004); Taylor v. Pub. Employees Relations Comm’n, 878 So.2d 421 (Fla. 4th DCA 2004).


author: WARNER, J.

text:
    Roy C. SHERMER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3226.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Rehearing Denied Aug. 24, 2006.
    Valerie Masters, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assis-taut Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his multiple convictions for capital sexual battery and lewd and lascivious molestation, involving four different victims. He contends that the trial court erred in denying his motion to sever the counts as to each victim. We agree that the court erred in failing to sever certain counts, and that the error was not harmless. We therefore reverse.

The appellant, Roy Shermer, was charged by amended information with three counts of capital sexual battery and four counts of lewd and lascivious molestation. Counts one and two charged sexual battery and lewd and lascivious molestation involving S.J., a ten-year-old female, during a period from January 1, 1999 to September 13, 2002. Counts three and four charged the same two crimes involving nine-year-old F.S. during a period from January 1, 2000 to September 13, 2002. Counts five and six alleged sexual battery and lewd and lascivious molestation involving nine-year-old Ang. G., also between January 1, 2000 and September 13, 2002. Count seven charged lewd and lascivious molestation involving And. G., Ang. G’s twin, during the same period.

Shermer babysat for S.J. and F.S. According to S.J.’s testimony, the acts of abuse to her sometimes happened when F.S. was present and sometimes when she was alone with Shermer. These incidents occurred at Shermer’s house over a period of time. The incidents involving F.S. all occurred in the presence of S.J. and at Shermer’s house. S.J. was also present when the incidents involving Ang. G. and And. G. took place. However, these incidents occurred at the twins’ residence and F.S. was not present.

Shermer moved to sever the charges as to each victim. He contended that the alleged acts involved different children, occurred in different places and took place over a long period of time. The court denied the motion, determining that because S.J. was present during all of the incidents of abuse of the other victims, her presence made joinder appropriate. In addition, the court also noted that the other incidents may be admissible as Williams rule evidence in each trial, thus making joinder appropriate. The court erred in this ruling.

Florida Rule of Criminal Procedure 3.150(a) sets forth the standard for joinder of offenses in an indictment or information:

Two or more offenses that are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses ... are based on the same act or transaction or on 2 or more connected acts or transactions.

Under Florida Rule of Criminal Procedure 3.152(a)(2), a court shall grant a severance of charges on motion of a defendant upon a showing that such severance is necessary to achieve a fair determination of the defendant’s guilt or innocence on each offense. Additionally, rule 3.152(a)(1) provides that a defendant shall have a right to severance of the charges upon a timely motion when two or more offenses are improperly charged in a single information.

Our supreme court has explained:

“[T]he rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in both or all instances.” Courts may consider “the temporal and geographical association, the nature of the crimes, and the manner in which they were committed.” However, interests in practicality, efficiency, expense, convenience, and judicial economy, do not outweigh the defendant’s right to a fair determination of guilt or innocence.

Wright v. State, 586 So.2d 1024, 1029-30 (Fla.1991) (quoting Garcia v. State, 568 So.2d 896, 899 (Fla.1990)) (citations omitted).

The “connected acts or transactions” requirement set forth in rule 3.150(a) requires that the charges joined for trial must be considered in an episodic sense. Garcia v. State, 568 So.2d 896, 899 (Fla.1990). Furthermore, there must be a “meaningful relationship” between or among the charges before they may be tried together. Ellis v. State, 622 So.2d 991, 999 (Fla.1993). Thus, “the crimes in question must be linked in some significant way.” Id. at 1000. The court further explained that crimes linked in an episodic sense generally fall into two categories: first, those that occurred during a crime “spree” interrupted by no significant period of respite; and second, situations in which one crime is causally related to the other, even though there may have been a significant lapse of time between the crimes. Id.

In Crossley v. State, 596 So.2d 447, 449-50 (Fla.1992), the supreme court explained the competing interests at stake when the court evaluates a motion to sever charges:

The justifications for the consolidation of charges are convenience and the preservation of the courts’ valuable resources. However, practicality and efficiency cannot outweigh the defendant’s right to a fair trial. The danger in improper consolidation lies in the fact that evidence relating to each of the crimes may have the effect of bolstering the proof of the other. While the testimony in one case standing alone may be insufficient to convince a jury of the defendant’s guilt, evidence that the defendant may also have committed another crime can have the effect of tipping the scales. Therefore, the court must be careful that there is a meaningful relationship between the charges of two separate crimes before permitting them to be tried together.

(citation omitted).

Shermer relies on Roark v. State, 620 So.2d 237 (Fla. 1st DCA 1993), which held that “in child sexual molestation cases, motions to sever should be granted where offenses occurred at different times and places, involving different victims.” Id. at 239. In Roark, the defendant was the uncle of the two victims, C.B. (9 years old) and E.B. (11 years old). C.B. testified that the defendant had put his finger inside her when they were covered with a blanket while watching television, and that, on another occasion, he had put his finger in her butt. E.B. testified that the defendant had touched her breasts and private parts over her clothes. The first district held that the misconduct involving C.B. was not linked in an episodic sense to the act involving E.B., and that it was error not to sever offenses that “were related only in that they were sex offenses occurring within the same seven-month period, the victims were related to each other, and the defendant allegedly was guilty.” Id. at 239.

In Ghent v. State, 685 So.2d 72 (Fla. 1st DCA 1996), the defendant was charged with two counts of sexual battery committed upon R.B., a child under 12 years of age, and one count of sexual battery committed upon G.C., also under 12 years of age. The trial court denied the defendant’s motion to sever the count related to G.C. from the counts related to R.B. The defendant was alleged to have had anal sex with R.B., his girlfriend’s minor son, on two separate occasions — once in his truck and once in the bedroom of his home. On a different occasion, when R.B.’s cousin, G.C., was visiting R.B. at the defendant’s home, the defendant followed G.C. into the bedroom and inserted his penis into G.C.’s anus. The first district noted that the relevant facts were “substantively indistinguishable” from those in Roark. Id. at 73. The court further reasoned that “the offenses were related only in that they were sex offenses occurring during the summer of 1993, two of the incidents occurred in a similar fashion at appellant’s place of residence, the victims were related, and appellant allegedly was guilty.” Id. at 73-74. Thus, the court explained, “we cannot say that the acts involving R.B. were linked in an episodic sense to the misconduct involving G.C.” Id.

Similarly, in Ellis v. State, 534 So.2d 1234, 1236 (Fla. 2d DCA 1988), the second district concluded that acts committed against two of the victims were not connected in an episodic sense to the act allegedly committed against a third victim where the evidence showed the “acts were related only in that they were sex offenses occurring within the same two month period in defendant’s home, the victims knew each other, and the defendant was allegedly guilty.”

In this case, some of the acts involving S.J. and F.S. are connected in the temporal sense, because F.S. testified that S.J. was present at each time when she was abused by Shermer. In fact, Shermer would perform an act of abuse on F.S. and then do the same to S.J. However, some of the acts of abuse to S.J. were committed when F.S. was not present. The charges against Ang. G. and And. G. are tied together in a temporal or episodic sense, because they were committed at the same time and in the same place. However, these charges are not tied to those involving F.S. Thus, as in Ellis and Roark, the charges were related only because the victims knew each other, they involved similar conduct, and the defendant was allegedly guilty of all. This is insufficient to justify a denial of severance.

The trial court denied the motion to sever, believing that the commonality between the various counts provided a sufficient basis to refuse severance. However, that is not the test. To deny severance there must be a temporal or episodic connection. At the very least there was no such connection between the events involving F.S. and the twins. Thus, the court abused its discretion in failing to sever the counts involving the twins from the remaining counts of the information.

With respect to the counts involving S.J., we find that the trial court should have severed these from the remaining counts in the information as well. The counts involving S.J. were broadly drafted and encompassed a lengthy time period. While F.S. was present for some of the acts that could have formed the basis for Shermer’s convictions on these charges, the jury also could have convicted Shermer on these counts based solely upon acts that occurred out of F.S.’s presence.

The state argued that severance was unnecessary because the testimony would have been admissible as Williams rule evidence. However, “the standard for determining whether offenses are properly consolidated for trial is vastly different from the standard of when evidence of a second collateral crime may be introduced.” Roark, 620 So.2d at 240. In Roark, the court explained that the standards were different because “[w]hen collateral crime evidence is introduced, evidence of the separate crime may not become a feature of the trial.” Id. Moreover, the very danger of concern in Crossley, that evidence of one crime may “tip the scales” of guilt on the other crimes, is present in this case.

The error was not harmless. The accumulation of evidence of other similar crimes would be harmful to the jury’s deliberation. In Roark the court rejected the contention that joinder could be harmless in child sexual abuse cases, because generally evidence of other crimes would be admissible as Williams rule evidence. It said:

If it was determined that misjoinder would constitute harmless error in all familial sexual battery cases where the misjoined offenses would be admissible as collateral crime evidence, then the distinctive legal standards concerning each would begin to blur. Prosecutors and courts could be improperly inclined to join offenses in the interest of time and efficiency.

Id. at 240. Further, the testimony of the children was not entirely consistent. The jury may have been inclined to give credence to inconsistent testimony, because it was “corroborated” by the inclusion of the other charges.

Shermer was entitled to severance, and we reverse and remand for a new trial on the severed charges. However, we conclude that joinder is permissible as to the charges relating to the twins.

Reversed and remanded.

GROSS and HAZOURI, JJ., concur.


author: SHARP, W., Senior Judge.

text:
    Juliette A. HOLLER, Appellant, v. Evelio DE HOYOS, Elin V. Satory De Hoyos, et al., Appellees.
    No. 5D04-2912.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Shawn G. Rader and Matthew T. Black-shear, of Lowndes, Drosdick, Doster, Kan-tor Reed, P.A., Orlando, for Appellant.
    Thomas V. Infantino, of Infantino Ber-man, Winter Park, for Appellee.
   SHARP, W., Senior Judge.

Holler appeals from a final judgment on costs in favor of Evelio and Elin De Hoyos, appellees. This is another appellate proceeding involving these parties. The source of these appeals is a declaratory judgment action filed by the De Hoyoses against their neighbors, the Hollers, and the City of Winter Park to determine the status of a piece of property located between the parties’ homes. The Hollers eventually prevailed on their affirmative defenses.

The issue in this appeal is whether the trial judge failed to tax costs against the De Hoyoses for the Hollers’ expert witness, Ross Payne, a real estate attorney and senior underwriter at the Attorneys’ Title Services Fund. After conducting a hearing regarding this witness only, on July 7, 2004, the judge ruled the Hollers failed to establish their entitlement to taxation of costs attributed to Payne’s services.

The Hollers contend that Payne was instrumental to their case. He filed six or seven affidavits and testified at hearings and at trial. He established the root of title and explained why other deeds did not qualify as roots of title. They contend the court, therefore, abused its discretion in refusing to award any costs for this expert witness.

The De Hoyoses respond that there was no abuse of discretion in this award because Payne’s services were more similar to legal services than expert witness services.

The evidence at the July hearing may have provided support for the trial court’s finding, or it may have demonstrated reversible error. However, this cannot be determined by an appellate court without the transcript. Holler has not provided us with the transcript of the hearing or a substitute. Thus, we have no recourse but to affirm. See Pearce v. Pearce, 773 So.2d 1286 (Fla. 5th DCA 2000) (absent a transcript or stipulation of facts, the record lacks a basis to reverse the trial court’s decision); McMullan v. McMullan, 761 So.2d 410 (Fla. 5th DCA 2000) (claims relating to factual determinations made by the trial court were not subject to appellate review where appellant failed to provide this court with a transcript of the proceedings below or a stipulated statement of the facts); Hirsch v. Hirsch, 642 So.2d 20 (Fla. 5th DCA 1994) (failure to provide appellate court with either transcript or proper substitute for a transcript is generally fatal because, in the absence of a transcript, the appellate court is unable to evaluate allegations that error exists in the trial court’s findings but instead must presume such findings are correct).

AFFIRMED.

THOMPSON and MONACO, JJ., concur.

        .Holler v. De Hoyos, 898 So.2d 1216 (Fla. 5th DCA 2005) (imposing sanctions against Elin De Hoyos for failing to attend mediation); De Hoyos v. Holler, 907 So.2d 1178 (Fla. 5th DCA 2005) (appeal); De Hoyos v. Holler, 928 So.2d 1236 (Fla. 5th DCA 2006) (appeal of costs judgment).

      . The De Hoyoses filed suit against Roger Holler and his wife Juliette. Roger Holler died in February 2004.

      . In another final judgment, the court awarded the Hollers costs totaling $25,330.22. That judgment has been affirmed. De Hoyos v. Holler, 928 So.2d 1236 (Fla. 5th DCA 2006).


author: KELLY, Judge.

text:
    Mark W. HESSELTON, Appellant, v. Beth A. HESSELTON, Appellee.
    No. 2D05-6149.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Sean A. Costis of Zacur & Graham, P.A., St. Petersburg, for Appellee.
   KELLY, Judge.

Mark Hesselton (the husband) appeals from the order denying his verified motion to quash service of process and to dismiss the petition for dissolution of marriage filed by his wife, Beth Hesselton (the wife). He argues that the petition is deficient because it fails to allege a factual or legal basis for personal jurisdiction over him. We agree. The husband is a resident of Massachusetts, has never lived in Florida, and has not submitted himself to the jurisdiction of Florida courts. Therefore, the trial court erred in declining to quash service of process on him. See Anderson v. Anderson, 845 So.2d 307 (Fla. 2d DCA 2003) (holding that the wife’s petition for dissolution failed to allege sufficient material facts to permit the court to establish a basis to exercise personal jurisdiction under the long-arm statute over the nonresident husband).

Because the court does not have jurisdiction over the husband, it cannot adjudicate issues concerning alimony and property rights; however, because the wife is a Florida resident, it does have jurisdiction to dissolve the parties’ marriage. See Latta v. Lotto, 654 So.2d 1043, 1044 (Fla. 1st DCA 1995); see also Hurlock v. Hurlock, 703 So.2d 535, 536 (Fla. 4th DCA 1997). Thus, the court correctly denied the husband’s motion to dismiss the petition.

Accordingly, we reverse the portion of the trial court’s order finding that it has personal jurisdiction over the husband and denying the motion to quash service of process on him. We affirm the denial of the husband’s motion to dismiss the petition and remand for further proceedings solely to address the dissolution of the parties’ maxriage.

Affirmed in part, reversed in part, and remanded for further proceedings.

DAVIS and WALLACE, JJ„ Concur.


text:
    James TERRY, Petitioner, v. James R. McDONOUGH, Secretary of the Department of Corrections, Respondent.
    No. 1D05-5825.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2006.
    James Terry, pro se, Petitioner.
    Rosa Carson, General Counsel of the Department of Corrections, Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of certiorari addressed to the Order Denying Petitioner’s Complaint for Writ of Mandamus and Order Denying Supplement Petition for Modification of Clerk’s Certificate of Indigence, James Terry seeks removal of a hen placed on his inmate trust account. This court has jurisdiction to review the final order of the trial court pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B). See Higueras v. Crosby, 924 So.2d 18, 19 (Fla. 1st DCA 2005) (explaining that a “petitioner has an adequate remedy by raising” a challenge to an order imposing a lien on an inmate trust account “on appeal from a final order in the circuit court case”). We quash the order in part.

In Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), the Florida Supreme Court held that a challenge, such as the one in this case, to a disciplinary report which results in the loss of gain time is a “collateral criminal proceeding” excluded from the prisoner indigency statute (section 57.085, Florida Statutes). Id. at 367. In Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005), this court explained that, as a consequence, no lien is authorized on an inmate account when the action involves the loss of gain time. Id. at 537. The Department of Corrections argues that, due to recent changes to sections 28.246(4) and 57.082(5), Florida Statutes, liens on inmate accounts are now authorized. However, this argument was rejected by this court in Wagner v. McDonough, 927 So.2d 216, 217 (Fla. 1st DCA 2006).

Accordingly, the order under review is quashed insofar as the order upholds the lien, and the case is remanded with directions that the trial court order the Department of Corrections to dissolve the lien and direct reimbursement of any funds that have been withdrawn to satisfy the lien.

Reversed and remanded.

ERVIN, BENTON, and BROWNING, JJ., concur.

       Review of the indigency order by certiorari is proper because the whole case is before the court on review of a final order of the lower tribunal. See Flowers v. McDonough, 932 So.2d 617, 617 (Fla. 1st DCA 2006) (reviewing by certiorari a final order of the trial court denying petition for writ of mandamus on the merits and removing a lien imposed on the petitioner’s inmate account); McCaskill v. McDonough, 933 So.2d 650, 650 (Fla. 1st DCA 2006) (same). However, when the case concludes in the lower tribunal on grounds other than the merits, review is proper by appeal of the order concluding the case. See Lopez v. McDonough, No. 1D05-4433, 935 So.2d 47, 2006 WL 2056418 (Fla. 1st DCA July 26, 2006) (explaining that when the lower court dismissed the petitioner’s petition for writ of mandamus because the issue was moot, review of an indigency order in the case was properly obtained by appealing the order dismissing the petitioner’s mandamus petition); see also Green v. Moore, 777 So.2d 425, 426 (Fla. 1st DCA 2000) (explaining that "review of a circuit court order regarding a prisoner disciplinary matter [i]s properly by certiorari;” however, when "the circuit court proceeding is concluded on grounds other than the merits,” "the proper method to review the circuit court's decision” is by appeal, rather than certiorari).


text:
    Matthew W. LOUGHLIN, Appellant/Cross-Appellee, v. Kim LOUGHLIN, Appellee/Cross-Appellant.
    No. 5D05-3063.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Henry J. Martocci, Rockledge, for Appellant/Cross-Appellee.
    Andrea L. Cain and Richard D. West of West, Green & Associates, PL, Orlando, for Appellee/Cross-Appellant.
   PER CURIAM.

The trial court entered a non-final order in this dissolution action specifying that Husband’s visitation with the parties’ children be supervised, that Husband submit to drug testing, and that Husband obtain an evaluation from a psychologist to assess his parenting abilities and to determine whether he has substance abuse or other problems which could harm the children. We agree with the trial court’s conclusions and affirm its order except to the extent that the order authorizes the release of Husband’s medical and psychological records. As explained in Attorney ad Litem for D.K. v. Parents of D.K., 780 So.2d 301 (Fla. 4th DCA 2001):

In a dissolution proceeding where custody is disputed, a party does not waive confidentiality of mental health treatment and make his or her mental health an “element of his claim or defense” simply by requesting custody. McIntyre v. McIntyre, 404 So.2d 208, 209 (Fla. 2d DCA 1981). Only in situations where calamitous events such as an attempted suicide occur during a pending custody dispute have courts found that the mental health of the parent is sufficiently at issue to warrant finding no statutory privilege exists. See Miraglia v. Miraglia, 462 So.2d 507 (Fla. 4th DCA 1984); Critchlow v. Critchlow, 347 So.2d 453 (Fla. 3d DCA 1977). Otherwise, the courts have instructed that the more appropriate method of securing the necessary information regarding the parent’s psychological state to aid in determining the best interest of the child is to require an independent psychological or psychiatric examination of the parent or parents. In this way, the trial court obtains essential information without interfering with the psychotherapist/patient confidentiality privilege. See Leonard v. Leonard, 673 So.2d 97 (Fla. 1st DCA 1996); Schouw v. Schouw, 593 So.2d 1200 (Fla. 2d DCA 1992).

Id. at 309.

Accordingly, we affirm the order under review with the exception of paragraph 10, which authorizes the release of the “medical, social, psychiatric, and psychological history” of Husband to the evaluating psychologist.

AFFIRMED in part; REVERSED in part and REMANDED.

MONACO, TORPY and LAWSON, JJ., concur.


text:
    Paul T. NEWELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2568.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.

      James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The appellant, Paul Newell, asserts that the trial court violated the constitutional proscription against double jeopardy by convicting him of: (a) attempted voluntary manslaughter with a weapon, and aggravated battery with a deadly weapon; and (b) sexual battery in two different counts. We affirm.

The issue involving attempted voluntary manslaughter and aggravated battery is governed by the principles announced in State v. Florida, 894 So.2d 941 (Fla.2005). The facts of the present case reflect that while the two offenses arose out of the same general act, they are separate offenses because they do not require identical elements of proof, are not degree variants of the same core offense, and aggravated battery with a deadly weapon is not always subsumed within the offense of attempted voluntary manslaughter. See § 775.021(4) Fla. Stat. (2001). See also Bradley v. State, 901 So.2d 924 (Fla. 5th DCA 2005); Davis v. State, 892 So.2d 1084 (Fla. 2d DCA 2004), review dismissed, 894 So.2d 969 (Fla.2005); Gutierrez v. State, 860 So.2d 1043 (Fla. 5th DCA 2003), review denied, 906 So.2d 1058 (Fla.2005).

The issue involving the convictions for two counts of sexual battery is governed by the principles announced by this court in Cabrera v. State, 884 So.2d 482 (Fla. 5th DCA 2004). There, we held that in order for crimes to be considered to have occurred in more than one criminal episode, there must be such a sufficient temporal break between the two acts as to allow the offender to reflect and form a new criminal intent for each offense. Here, the conversation between Mr. New-ell and the victim provided a temporal interval sufficient to allow for reflection, and double jeopardy is not offended. See also State v. Paul, 934 So.2d 1167, 2006 WL 1699524 (Fla. June 22, 2006).

AFFIRMED.

THOMPSON, MONACO and EVANDER, JJ., concur.


author: MONACO, J.

text:
    Elliott O. PIETRI, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1846.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Elliott Pietri, appeals the judgment and sentence imposed by the trial court as a result of his conviction of burglary. He asserts that the trial court erred in refusing his request to present the testimony of a person offered as an expert on eyewitness identification, and in allowing the prosecution to present the testimony of a police officer concerning the description that the child-victim gave to the officer of the man who broke into her house. We affirm.

The trial court did not abuse its discretion in excluding the evidence offered by the eyewitness identification expert. The expert proposed to testify that he believed that many factors influenced the ability of the child-victim to make an accurate identification, including her age, the lighting, the passage of time, and the character of a photo lineup. The trial court concluded that the testimony would not aid the trier of fact, and amounted to little more than an application of common sense. More specifically the trial court found:

He didn’t say anything that would ... aid anybody. He said what we all know; the more you know a person, the better chance you have of identifying them accurately ... The rest of it was, you know, lighting, that type of stuff, kids may not make a good — and that’s something that everybody in the world knows about this.

Applying the law established by our Supreme Court in Johnson v. State, 438 So.2d 774 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984), and confirmed in McMullen v. State, 714 So.2d 368 (Fla.1998), and Simmons v. State, 934 So.2d 1100, 2006 WL 1299617 (Fla. May 11, 2006), we find no error. As in those cases, the facts to be established by the expert in the present case amounted to testimony concerning the general problems associated with witness identification, and common factors that could lead to a false identification. In the context of the present case, these matters did not require special knowledge, and the testimony was properly excluded.

We conclude, as well, that the testimony of the police officer concerning the description given by the child-victim was properly admitted under the facts of this case as impeachment. See § 90.608, Fla. Stat. (2005). To the extent that the testimony was used substantively, we conclude that the error was harmless beyond a reasonable doubt. See Puryear v. State, 810 So.2d 901 (Fla.2002). Accordingly, we affirm.

AFFIRMED.

THOMPSON and EVANDER, JJ., concur.

      . The expert in McMullen and Simmons is the same person whose testimony was proffered by the appellant in the present case.


author: PLEUS, C.J.

text:
    Wallace B. HINSHAW, Jr., Appellant, v. WACHOVIA BANK, N.A., f/k/a First Union National Bank, Appellee.
    No. 5D05-785.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Sharon Lee Stedman, Orlando, for Appellant.
    John H. Pelzer and Stephen M. Teplin of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for Appel-lee.
   PLEUS, C.J.

Given the absence of a timely challenge to the arbitration award or presentation of a viable issue to the trial court which had not been submitted to arbitration, the trial court was correct in confirming the arbitration award and entering final judgment in favor of Wachovia. §§ 682.12, 682.13, 682.15, Fla. Stat. See A-1 Roofing v. Select Contracting, Inc., 865 So.2d 601 (Fla. 3d DCA 2004). See also Meade v. Lumbermen’s Mutual Cas. Co., 423 So.2d 908 (Fla.1982).

Hinshaw also challenges the separate, post-judgment order awarding Wa-chovia attorney’s fees and costs. However, Hinshaw’s failure to direct a timely notice of appeal to this final, distinct order precludes appellate review. See Mendoza v. Mendoza, 842 So.2d 1020 (Fla. 5th DCA 2003); Miller v. Nassofer, 484 So.2d 619 (Fla. 5th DCA 1986). See also Bove v. Ocwen Financial Corp., 763 So.2d 347 (Fla. 4th DCA 1998).

AFFIRMED.

GRIFFIN and LAWSON, JJ., concur.


author: WEBSTER, J.

text:
    ALL IN THE FAMILY MOVING & STORAGE, INC., Appellant, v. Donald and Meredith LATKA, Appellees.
    No. 1D05-3073.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2006.
    Kathryn S. Robbie, Jacksonville, and Adam J. Kohl of Law Offices of Adam J. Kohl, Jacksonville, for Appellant.
    Michael S. Drews of Law Offices of Michael S. Drews, Jacksonville, for Appellees.
   WEBSTER, J.

Appellant common carrier seeks review of a final judgment, entered following a jury trial, awarding appellees damages sustained in connection with an interstate move of appellees’ belongings and attorney’s fees incurred in this litigation. We affirm both awards. We write only to explain briefly the basis for our determination that the trial court correctly awarded attorney’s fees to appellees.

The parties agree that the issue of appellant’s liability for damages is controlled by 49 U.S.C. § 14706 (2000), generally known as the Carmack Amendment to the Interstate Commerce Act. They agree further that the issue of appellees’ entitlement to attorney’s fees is controlled by 49 U.S.C. § 14708 (2000). They disagree, however, as to whether appellees are, in fact, entitled to fees pursuant to section 14708. It is undisputed that (1) section 14708(a) required appellant to offer to shippers of household goods like appellees “arbitration as a means of settling disputes ... concerning damage or loss to the household goods ... (2) section 14708(b)(2) required appellant to provide appellees “adequate notice of the availability of neutral arbitration, including a concise easy-to-read, accurate summary of the arbitration procedure, any applicable costs, and disclosure of the legal effects of election to utilize arbitration,” before the household goods were tendered to appellant; (3) appellant complied with none of those requirements; and (4) appellees were unaware they had a right to arbitration until more than a year after they had filed their initial complaint.

Appellant contends that appellees are not entitled to attorney’s fees pursuant to section 14708 because that section applies only in cases where the shipper (here ap-pellees) has demanded arbitration. They rely principally on Collins Moving & Storage Corp. of South Carolina v. Kirkell, 867 So.2d 1179, 1183-84 (Fla. 4th DCA 2004). Appellees respond that they are entitled to fees because, by its plain language, section 14708 applies to “any court action to resolve a dispute between a shipper of household goods and a carrier,” provided that no decision resolving the dispute through arbitration was rendered within the time limitation set out in the section. They rely principally on Campbell v. Allied Van Lines, Inc., 410 F.3d 618 (9th Cir.2005), a decision which acknowledges, but reaches the opposite conclusion from, Collins.

We find it unnecessary to choose between Collins and Campbell because the pertinent facts of this case distinguish it from both of those cases. Unlike those cases, here it is undisputed that appellant never told appellees they were entitled to arbitrate the matter if they so desired, and that appellees were unaware of that right until well after they had commenced this action. Given these facts, we believe that the issue of appellees’ fee entitlement is controlled by the reasoning in Ward v. Allied Van Lines, Inc., 231 F.3d 135 (4th Cir.2000). In Ward, the court held that, because the carrier failed to inform the shippers of the availability of arbitration (and the shippers were, therefore, unaware of that right), the fee provisions of the statute were triggered. Although the language of the statute construed in Ward is somewhat different from that of the statute which applies here, the underlying rationale is not — a carrier cannot ignore its statutory obligation to inform the shippers of their right to arbitration and then argue that the shippers are not entitled to attorney’s fees after successfully litigating their claim in court because they did not resort to the arbitration they were unaware they had any right to.

AFFIRMED.

ERVIN and THOMAS, JJ., concur.


text:
    James Ira DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3200.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2006.

      Bill Salmon, Gainesville, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to this Court’s order of June 27, 2006, the appeal is hereby dismissed for lack of jurisdiction. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

DISMISSED.

ERVIN, WEBSTER, and THOMAS, JJ., CONCUR.


text:
    Kevin L. THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0924.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2006.
    Kevin L. Thomas, pro se, Petitioner.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. We reinstate the appeal in case number 1D05-2649. Jurisdiction in that proceeding is relinquished to the trial court for a period of 30 days with directions to consider the appointment of the Public Defender if petitioner so qualifies.

ALLEN, DAVIS, and THOMAS, JJ., concur.


author: THOMPSON, J.

text:
    Johnny C. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-213.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.

      Johnny C. Johnson, St. Petersburg, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Johnny C. Johnson appeals the summary denial of his rule 3.800(a) motion to correct sentence filed in Marion County. He alleges he is entitled to additional jail credit because he was arrested and held in Polk County on an outstanding Marion County warrant. He contends that, when he was sentenced in Marion County, he was not given credit for the time he served in Polk County on the Marion County warrant. We find merit in Johnson’s argument, and reverse with directions.

Johnson alleged that he was arrested on 27 February 2005 in Polk County on a Marion County warrant. Johnson claimed he also had pending warrants in Polk County. After final disposition of the Polk County charges, Johnson was transported to the Department of Corrections (“DOC”) and, on 18 August 2005, was transported from DOC to Marion County to resolve the outstanding warrant. In Marion County, he was sentenced to serve 26 months’ incarceration with credit for 110 days’ time served. Johnson claimed he is entitled to additional credit for his time in Polk County custody before his transfer to Marion County.

The record in this rule 3.800(a) proceeding shows that a warrant for Johnson’s arrest was issued in Marion County on 22 July 2002 for violation of probation. Johnson was not formally arrested in Marion County on the VOP charge until 19 August 2005, after he was transferred there from state prison. Records from the Polk County Sheriffs Office indicate that he was held on a Marion County VOP charge, and that Marion County had issued a detainer. It appears that Johnson was arrested on the Marion County warrant as well as on Polk County charges.

Had Johnson been arrested in Polk County solely on the Marion County warrant, he would have been entitled to credit on his Marion County sentence for the time that he was held in custody in Polk County. Likewise, if his sentence in Marion County was ordered to be served concurrently with the Polk County sentence, then he would be entitled to the same credit on his Marion County sentence for the time he was held in Polk County. See Elkins v. State, 884 So.2d 499 (Fla. 5th DCA 2004).

Although Johnson used the word “de-tainer” in his rule 3.800(a) motion, he clearly stated that he was arrested in Polk County on the Marion County warrant. Relying upon the “detainer” language in Johnson’s motion, the trial court correctly noted that a detainer cannot provide the basis for additional jail credit. However, if Johnson was arrested in Polk County on the outstanding Marion County warrant, that is different from the situation where a foreign jurisdiction merely issues a detain-er.

Johnson correctly cites Gethers v. State, 838 So.2d 504 (Fla.2003), which distinguished between a warrant and a de-tainer. The supreme court in Gethers stated that, when a defendant is deemed to be in custody on warrants from more than one jurisdiction, he is entitled to credit for time served in both jurisdictions if the sentences are concurrent. Id. at 507. Therefore, the trial court here should have either granted the additional credit or refuted defendant’s claim by attaching a copy of Johnson’s Marion County sentence, showing that it was not ordered to be served concurrently with the Polk County sentence.

In Elkins, 884 So.2d 499, this court reversed an order denying a rule 3.800(a) motion when it was clear on the record that defendant was arrested in Polk County on an Osceola County warrant. As in this case, it appears that Elkins was also arrested on Polk County charges. In remanding the case to the trial court, this court cautioned that, if defendant had been sentenced on the Polk County charges, defendant would only be entitled to the Polk County jail credit on his Osceola County sentence if his Osceola County sentence was ordered to be served concurrently with the Polk County sentence.

Because the trial court did not conclusively refute Johnson’s claim that he was arrested in Polk County on the Marion County warrant and therefore entitled to additional credit, we reverse the order denying relief and remand the case for further consideration of Johnson’s claim.

REVERSED and REMANDED.

PLEUS, C.J. and PALMER, J., concur.


text:
    Jessie B. THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1566.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Jessie B. Thomas, Wildwood, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

Thomas filed a petition for writ of habe-as corpus on May 5, 2006. He is seeking relief that is not appropriate for a writ of habeas corpus relief. Johnson v. State, 589 So.2d 456 (Fla. 5th DCA 1991). It is not the purpose of the writ to determine sufficiency of the evidence nor the adequacy of a defense nor the justice of a detention on the merits, but only to determine whether the person is legally imprisoned or restrained of liberty.

In this case, Thomas fails to assert an illegal detention and there are other adequate remedies. Moore v. State, 784 So.2d 617 (Fla. 5th DCA 2001). In essence, he seeks to attack his plea as being coerced and involuntary or makes claims his counsel should have raised or preserved. Claims of involuntary pleas and ineffective assistance of trial counsel must be raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Thomas’ two year time limit for filing such a motion has not yet run and will not do so until Monday, September 11, 2006.

We deny the petition without prejudice to file a motion seeking relief pursuant to Florida Rule of Criminal Procedure 3.850.

Petition for Writ of Habeas Corpus DENIED Without Prejudice.

PALMER and TORPY, JJ., SHARP, W., Senior Judge, concur.


text:
    Steven WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2046.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Steven Williams, Jr., Jasper, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

Steven Williams appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Williams’s notice of appeal was untimely, his appeal must be dismissed.

The trial court rendered an order denying Williams’s rule 3.850 motion on February 7, 2006. On February 17, 2006, Williams filed a motion for rehearing, which was denied on May 2, 2006. On June 6, 2006, some thirty-four days after the order denying his motion for rehearing was rendered, Williams filed his notice of appeal. Because the notice of appeal was filed more than thirty days after the order denying rehearing, this Court does not have jurisdiction to consider this appeal. See Fla. R. Crim. P. 8.850(g); Fla. R. App. P. 9.110(b).

In response to our order to show cause why this appeal should not be dismissed, Williams asserts that he did not receive the denial order until May 7, 2006, and due to various institutional constraints on the availability of law library time and the fact that the copying machine was broken, he was unable to file the notice of appeal sooner. These claims cannot create jurisdiction to consider his appeal. However, they can be raised in a petition seeking a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

APPEAL DISMISSED.

PALMER, ORFINGER and LAWSON, JJ., concur.

      . This notice was "filed” on June 5, 2006, when the defendant delivered the notice to an agent of the Department of Corrections, under the "mailbox rule.” See Haag v. State, 591 So.2d 614 (Fla.1992).


text:
    Anthony POPP, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2101.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Howard H. Babb, Jr., Public Defender, and Alan Craig Bushnell, Chief Assistant Public Defender, Ocala, for Petitioner.
    No Appearance for Respondent.
   THOMPSON, J.

Anthony Popp seeks a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). Popp’s counsel states in the unsworn petition that Popp requested an appeal immediately after he was convicted of felony traffic charges. However, due to construction and renovation of counsel’s office, the notice of appeal was not filed as requested. Because the petition was not sworn to as required by Florida Rule of Appellate Procedure 9.141(c)(3)(F), we deny the petition because it is facially insufficient. See Abbot v. State, 929 So.2d 723, 723 (Fla. 5th DCA 2006); Cosby v. State, 911 So.2d 275, 275 (Fla. 5th DCA 2005). The denial is without prejudice to Popp to file a facially sufficient sworn petition.

Petition for Belated Appeal DENIED.

SAWAYA and LAWSON, JJ., concur.


text:
    Carl PIGFORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3570.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.

      Carl Pigford, Madison, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

Carl Pigford appeals the summary denial of his rule 3.850 motion for postconviction relief, in which he alleges that his trial counsel was ineffective. We affirm the rulings of the trial court in all respects save one. With respect to the claim in which Mr. Pigford contends that his defense counsel was ineffective in failing to request that the jury be instructed in accordance with Chicone v. State, 684 So.2d 736 (Fla.1996), we conclude that he is entitled to an evidentiary hearing.

Mr. Pigford was convicted by a jury of sale of cocaine, possession of cocaine with intent to sell or deliver, possession of less than 20 grams of cannabis, possession of Alprozolam, and possession of a medicinal drug without a prescription. He was thereafter sentenced to 15 years in prison. The evidence at trial indicated that on March 29, 2002, law enforcement officers executed a search warrant at a residence using a “knock and announce procedure.” See Florida Statutes § 933.09 (2002). Once inside, the officers found Mr. Pigford in the master bedroom of the residence. He had on his person $1,065 in cash, but no drugs. The detectives found a driver’s license and social security cards on the dresser in the bedroom, but none bore Mr. Pigford’s name. Contraband drugs were found under a carpet in the master bathroom, and a small amount of contraband in the bedroom itself. No lease or other documentary evidence was introduced to demonstrate that Mr. Pigford actually lived on the premises. During the trial Mr. Pigford attempted to demonstrate through cross-examination of witnesses that his fingerprints were not found on any of the drugs, and that no other evidence linked him to the drugs.

Mr. Pigford argues that his attorney was ineffective because he failed to request that the jury be instructed in accordance with Chicone. In that case the Supreme Court held:

While the existing jury instructions [for possession of a controlled substance] are adequate in requiring “knowledge of the presence of the substance,” we agree that, if specifically requested by a defendant, the trial court should expressly indicate to jurors that guilty knowledge means the defendant must have knowledge of the illicit nature of the substance allegedly possessed.

Id. at 745-746. The “guilty knowledge” element consists of knowledge of both the presence of, and the illicit nature of the substances possessed. See Chicone; see also Scott v. State, 808 So.2d 166 (Fla.2002). Thus, Mr. Pigford asserts that because “guilty knowledge” was at the time of his trial an essential element of the offense of possession of proscribed substances, and because that element had to be proven by the State beyond a reasonable doubt, he was prejudiced by the defense counsel’s failure to request that the knowledge instruction be given.

The trial court addressed and rejected this claim on the merits, holding in pertinent part:

At trial, [Mr. Pigford] chose not to testify and did not present any evidence. [Mr. Pigford] acknowledged to the Court that he had not intended to present any evidence or any witnesses on his own behalf. Through cross-examination, the defense emphasized that [Mr. Pigford’s] fingerprints were not found on the drugs, and that no leases or identifications were found establishing [that Mr. Pigford] lived at the searched residence. The defense also attacked the adequacy of the methods used in chemically testing the drugs. The defense did not attempt to dispute [Mr. Pigford’s] knowledge of the nature of the drugs, and Defendant cannot shoiv the instruction in question would have furthered his defense. Under the facts of this case, [Mr. Pigford] does not show he received ineffective assistance of counsel regarding the failure to request the jury instruction.

Prior to May 13, 2002, the State was required to prove beyond a reasonable doubt in cases in which possession of illegal drugs was charged that the defendant (1) possessed a certain controlled substance; (2) that the substance was one of the prohibited substances; and (3) that the defendant had knowledge of the presence of the substance. See generally Peterson v. State, 816 So.2d 152 (Fla. 4th DCA 2002). The Supreme Court of Florida noted that the “guilty knowledge” requirement of the third element includes “knowledge of both the presence of, and the illicit nature of, the substance possessed, and the jury should be instructed on both.” Garcia v. State, 901 So.2d 788, 793 (Fla.2005) (citing to Scott). The Florida standard jury instructions in place at the time failed to capture the “illicit nature” requirement within the definition of “possession of a controlled substance”. See Scott, 808 So.2d at 172, n. 7.

The Florida Legislature when made aware of the holding in Chicone enacted section 893.101, Florida Statutes, by which it declared that “knowledge of the illicit nature of the substance is no longer an element of the offenses of possession for offenses committed after May 13, 2002.” See Gordon v. State, 858 So.2d 359, 360 n. 1 (Fla. 1st DCA 2003). As with the defendant in Gordon, however, Mr. Pig-ford was alleged to have committed the offenses in the instant case on March 29, 2002, prior to the enactment of section 893.101. As the statute cannot be applied retroactively, knowledge of the illicit nature of the substance was an essential element of the possession offenses charged against Pigford. See Id.; Garcia, 901 So.2d at 793.

The trial court’s order did not address whether or not Mr. Pigford was prejudiced by the fact that his defense counsel failed to ensure that the jury was instructed on the knowledge element of the offense of possession of a proscribed substance. In particular, the trial court’s conclusion that Mr. Pigford “cannot show the instruction in question would have furthered his defense,” fails to account for the fundamental tenet of jurisprudence that “an inherent and indispensable requisite of a fair and impartial trial [is] that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.” State v. Delva, 575 So.2d 643, 644 (Fla.1991) (citing Gerds v. State, 64 So.2d 915, 916 (Fla.1953)). Moreover, had the instruction been requested by defense counsel, it would probably have been error for the trial court not to give it. See Scott (holding that where a Chicone instruction is requested by the defendant, it is error to fail to give such an instruction, “even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance” at the trial).

We hold, therefore, that the trial court has failed to show conclusively that the appellant is not entitled to relief on this claim. See generally Fla. R.App. P. 9.141(b)(2)(D). Accordingly, we reverse the order of the trial court with respect to this claim, and remand for an evidentiary hearing or such other relief as is consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

PLEUS, C.J., and TORPY, J„ concur.


text:
    ASTRO AIR, INC., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D05-2650.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2006.
    Craig A. Boudreau, West Palm Beach, for Appellant.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Gomez v. Unemployment Appeals Comm’n, 884 So.2d 1033 (Fla. 2d DCA 2004).

ERVIN, BENTON, and BROWNING, JJ., concur.


author: VILLANTI, Judge.

text:
    Chantrala BRITT, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as subrogee of Russell Whelpley, and Russell Whelpley, individually, Appellees.
    No. 2D05-5021.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2006.
    Chantrala Britt, pro se.
    Samuel Bookhardt III of Vance, Lotane & Bookhardt, P.A., Cocoa, for Appellees.
   VILLANTI, Judge.

Chantrala Britt appeals a judgment on the pleadings granting State Farm Mutual Automobile Insurance Company and Russell Whelpley $107,207.71 in their suit against- Britt for negligent operation of a motor vehicle. Based on our review of the pleadings, we conclude that the court should not have granted judgment on the pleadings, and we therefore reverse.

In this case, the pleadings consist of a complaint filed by State Farm as subrogee of Whelpley and Whelpley, individually, and a letter filed by Britt with the trial court. State Farm and Whelpley rightly refer to this letter as Britt’s answer to the complaint. The complaint alleged that Britt owned and operated a motor vehicle in such a manner that resulted in an accident with Whelpley. Britt’s pro se answer alleged that she had never been in a car accident, her car was never in an accident, she never had any contact with Whelpley, and this was a case of mistaken identity.

To grant judgment on the pleadings, a trial court must find that, based on the pleadings, the movant is entitled to judgment as a matter of law. Tanglewood Mobile Sales, Inc. v. Hachem, 805 So.2d 54, 55 (Fla. 2d DCA 2001). “It is improper to enter a judgment on the pleadings if factual questions remain to be resolved.” Id. And, in considering a motion for judgment on the pleadings, the trial court is precluded from relying on matters outside the pleadings such as requests for admissions, interrogatories, answers to interrogatories, depositions, affidavits, stipulations, and any other documents permitted to be considered by Florida Rule of Civil Procedure 1.510. Hart v. Hart, 629 So.2d 1073, 1074 (Fla. 2d DCA 1994); see also Forbes v. Gimbel, 539 So.2d 18, 19 (Fla. 1st DCA 1989) (noting that requests for admissions are matters of discovery not properly considered in granting judgment on the pleadings).

Review of the pleadings in this case reveals major disputed issues of fact— whether there ever was a car accident involving Britt and Whelpley and, if so, whether Britt was liable. Therefore, the court erred by granting judgment on the pleadings in favor of State Farm and Whelpley. See Martinez v. Fraxedas, 678 So.2d 489, 491 (Fla. 3d DCA 1996); J & J Util. Co. v. Windmill Village by the Sea Condo. No. I Ass’n, 485 So.2d 36 (Fla. 4th DCA 1986). We reverse the trial court’s final judgment on the pleadings and remand for further proceedings.

Reversed and remanded.

SILBERMAN and KELLY, JJ., Concur.


author: WHATLEY, Judge.

text:
    T.B.S., Appellant v. STATE of Florida, Appellee.
    No. 2D05-5055.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2006.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

T.B.S. appeals the order adjudicating him delinquent for committing felony criminal mischief by smashing the windows of the victim’s car. He argues that the State did not prove that the monetary value of the damage was $1000 or greater. We agree and reverse.

While the monetary value of damage caused by an act of criminal mischief is not an element of the offense, it affects the severity of the crime. A conviction or adjudication of felony criminal mischief must be supported by proof that the defendant caused at least $1000 worth of damage. § 806.13(l)(b)(3), Fla. Stat. (2005).

The only evidence of the monetary value of the damage to the victim’s car was the victim’s testimony that based on an estimate she had obtained, the damage was $1000. The defense objected to this testimony, but the trial court overruled the objection. Also, at the close of the evidence the trial court denied the defense’s motion to dismiss for failure to prove the $1000 threshold. The trial court ruled that based on the photographs of the damaged car, the description of the damage, and the victim’s testimony, the damage exceeded $1000.

The trial court erred in overruling defense counsel’s objection to the victim’s testimony because it constituted inadmissible hearsay. See R.A.P. v. State, 575 So.2d 277 (Fla. 1st DCA 1991) (holding that victim’s testimony, which was properly objected to, as to amount of damages was inadmissible hearsay because it was based on estimates he received from body repair shops). Accordingly, the trial court erred in relying on the victim’s estimate of the value of the damage to her car in ruling that the damage exceeded $1000.

However, a trial court may conclude “that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met_” A.D. v. State, 866 So.2d 752, 753 (Fla. 2d DCA 2004) (citing Clark v. State, 746 So.2d 1237 (Fla. 1st DCA 1999)). Accord S.P. v. State, 884 So.2d 136, 138 (Fla. 2d DCA 2004) (“We recognize that in some circumstances, the fact-finder can infer from life experience and from the self-evident nature of the repairs that a statutory damage threshold has been met.”).

The trial court articulated no life experience or other basis that would constitute sufficient evidence to support its finding that the damage to the victim’s car exceeded $1000. The victim testified that five of her ear windows, including the windshield and the back window, were smashed. That testimony was sufficient for the trial court to infer that the damage exceeded $200, the threshold for an adjudication of first-degree misdemeanor criminal mischief. § 806.13(l)(b)(2), Fla. Stat. (2005).

Accordingly, we reverse T.B.S.’s felony conviction and remand with instructions to enter an order adjudicating him delinquent for first-degree misdemeanor criminal mischief.

Reversed and remanded with instructions.

SILBERMAN, J., and DANAHY, PAUL W., Senior Judge, Concur.