author: SUAREZ, J.

text:
    Albert MACHTINGER, Aircraft Component Repair, Inc., Ben & Josh Real Estate Holdings Co., Inc., and Avion Technologies, Inc., Appellants, v. INERTIAL AIRLINE SERVICES, INC., Appellee.
    No. 3D06-106.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Morgan, Lewis & Bockius and Christopher J.M. Collings and Robert M. Brochin, Miami, for appellants.
    Podhurst Orseck and Joel D. Eaton; Richard and Richard and Dennis Richard and Laurel W. Marc-Charles and Sydney A. Marks, Miami, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Albert Machtinger, Aircraft Component Repair, Inc., Ben & Josh Real Estate Holdings Co., Inc., and Avion Technologies, Inc. (the “Machtinger defendants”) appeal the order denying their motion to dismiss Inertial Airline Services, Ine.’s (“IAS”) amended complaint for lack of personal jurisdiction. We affirm.

The Machtinger defendants contend that the trial court erred in denying their motion to dismiss for lack of personal jurisdiction. They argue that IAS failed to allege facts to satisfy either Florida’s long-arm statute or constitutional due process requirements. IAS asserts that the trial court correctly found that its allegations satisfy the statutory and constitutional requirements for personal jurisdiction.

IAS filed a complaint against, and obtained jurisdiction over, former IAS president Mark O’Donnell, and former director of technical services and international marketing Boris Masera. IAS added the Machtinger defendants to the suit in the present amended complaint. IAS alleges, among other things, that the Machtinger defendants conspired with O’Donnell and Masera to defraud and steal from IAS. O’Donnell and Masera lived in Ohio and worked in an IAS office in Ohio. In 2001, IAS was acquired by a Florida corporation that operates in Miami. After the acquisition, IAS’s chairman of the board, vice chairman, treasurer, secretary, assistant secretary, and sole director all lived and worked in Florida, and IAS was headquartered in Miami. The Florida officers instituted financial control over IAS by requiring O’Donnell to send all IAS checks payable for more than $5,000 to the Miami office for countersignature by either the IAS director or chairman. O’Donnell and Masera allegedly conspired with the Ma-chtinger defendants to obtain payment for work that the Machtinger defendants were supposed to have completed for IAS, but either did not complete or did not perform at all. As part of this conspiracy, O’Donnell allegedly submitted fraudulent invoices for the work to the IAS Florida headquarters, misrepresented to IAS officers in Florida that the work had been completed, signed IAS checks for payment on the fraudulent invoices, and mailed the checks to Florida to obtain countersignatures. IAS officers in Florida relied on O’Donnell’s fraudulent misrepresentations, countersigned the checks, and forwarded them to the Machtinger defendant payees.

IAS asserts personal jurisdiction over the non-resident Machtinger defendants by alleging that they conspired to commit a tortious act in Florida. The Machtinger defendants moved to dismiss IAS’s amended complaint for lack of personal jurisdiction. After hearing evidence, the trial court entered a detailed order denying the motion to dismiss. The Machtinger defendants appeal this order.

A plaintiff seeking jurisdiction over a non-resident defendant must plead the basis for jurisdiction. A defendant contesting jurisdiction must file affidavits in support of his motion to dismiss. The plaintiff must then support the grounds upon which he claims jurisdiction with affidavits. If the two sets of affidavits cannot be reconciled, the court must hold an evi-dentiary hearing to resolve the factual conflicts and determine the issue of jurisdiction. Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). The appropriate inquiry is whether the tort as alleged occurred in Florida, and not whether the alleged tort actually occurred. Walter Lorenz Surgical, Inc. v. Teague, 721 So.2d 358 (Fla. 1st DCA 1998).

The Machtinger defendants and IAS each filed affidavits in support of their positions on jurisdiction. The affidavits could not be reconciled and the trial court conducted an evidentiary hearing on the Machtinger defendants’ motion to dismiss. Solely for purposes of the motion, the Ma-chtinger defendants admitted that the tor-tious acts that IAS alleged in the amended complaint occurred. Therefore, they admitted that they conspired with O’Donnell to defraud IAS by sending fraudulent invoices to IAS in Florida and that, in furtherance of the conspiracy, O’Donnell fraudulently misrepresented what work had been performed by the Machtinger defendants, and forwarded IAS payment checks to IAS in Florida for the director or chairman to approve and countersign. The Machtinger defendants also admitted for purposes of the motion , that O’Donnell and Masera breached their employment contracts by failing to return IAS property to the IAS office in Florida upon termination of their employment, and these breaches were part of a conspiracy to divert IAS property and customers.

Determining whether long-arm jurisdiction is appropriate is a two-part inquiry. “First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Execu-Tech Bus. Sys. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000) (quoting Venetian Salami, 554 So.2d at 499). The statutory prong of Venetian Salami “is governed by Florida’s long-arm statute and bestows broad jurisdiction on Florida courts.” Execu-Tech, 752 So.2d at 584; § 48.193(l)(b), Fla. Stat. (2005). The constitutional minimum contacts prong of Venetian Salami “is controlled by United States Supreme Court precedent interpreting the Due Process Clause and imposes a more restrictive requirement. A court can exercise personal jurisdiction only if the out of state defendant maintains ‘certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.” Execu-Tech, 752 So.2d at 584 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). A trial court’s order on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002). However, where the trial court’s decision is based on live testimony, the appellate court defers to the trial court’s determination of the facts. Dev. Corp. v. WBC Constr., 925 So.2d 1156, 1160 (Fla. 4th DCA 2006).

We affirm because the Machtinger defendants failed to negate IAS’s allegations that they conspired to commit tortious acts in Florida. The Machtinger defendants stipulated that, in furtherance of their conspiracy with O’Donnell and Masera, O’Donnell made fraudulent misrepresentations via phone calls, faxes, and letters, to IAS officials in Florida. Relying on O’Donnell’s fraudulent misrepresentations, the IAS officials countersigned checks in Florida and forwarded them to the payees, Maehtinger defendants. The question is whether O’Donnell’s fraudulent misrepresentations made in furtherance of the conspiracy constitute tortious acts committed within Florida for the purposes of long-arm jurisdiction. If they do, then Florida has personal jurisdiction over O’Donnell as well as all of the Maehtinger defendants who conspired with him. Wilcox v. Stout, 637 So.2d 335, 337 (Fla. 2d DCA 1994)(holding that, if plaintiff successfully alleges that any member of a conspiracy commits a tortious act in Florida in furtherance of the conspiracy, then all of the conspirators are subject to Florida’s long-arm jurisdiction).

O’Donnell’s fraudulent misrepresentations made from outside Florida by phone, fax, and in writing, directed to IAS officers in IAS Florida headquarters, constitute tortious acts committed within Florida under Florida’s long-arm statute. See Wendt, 822 So.2d. at 1257-58 (holding that a written communication from outside the state directed to a .resident inside the state can constitute the commission of a tortious act under Florida’s long-arm statute). Florida has long-arm jurisdiction because the IAS cause of action for fraud arises out of O’Donnell’s fraudulent misrepresentations that he directed into Florida even though O’Donnell was not physically present in the state at the time he committed those tortious acts. “Commission of a tort for the purpose of establishing long-arm jurisdiction does not require physical entry into the state, rather ‘telephonic, electronic, or written communications into Florida may form the basis for personal jurisdiction under section 48.193(l)(b) if the alleged cause of action arises from the communications.’ ” Fletcher Jones West Shara, Ltd. v. Rotta, 919 So.2d 685, 687 (Fla. 3d DCA 2006) (quoting Wendt, 822 So.2d at 1260). “The plaintiff need only show that the defendant’s contact with the State resulted in ... a tor-tious act.” Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co., 917 So.2d 964 (Fla. 3d DCA 2005); see § 48.193(l)(b), Fla. Stat. (2005); Fletcher Jones, 919 So.2d at 685 (holding that there was personal jurisdiction over an out-of-state seller of a car based on allegations that the seller committed a tort in Florida by advertising and marketing the sale in Florida, contacting the buyer in Florida, making material misrepresentations knowing that the buyer was in Florida and a Florida resident, and where the sales order was executed in Florida).

We also note that the amended complaint sufficiently alleges that the fraud could not have occurred but for O’Donnell’s misrepresentations to IAS officers who reside, work, and control the corporation’s finances in Florida. IAS alleges that the fraudulent misrepresentations were made in Florida, relied upon in Florida, and IAS countersigned and issued the checks from Florida. Therefore, IAS has successfully alleged that a substantial portion of the tortious acts occurred in Florida making personal jurisdiction over O’Donnell proper. See Watts v. Haun, 393 So.2d 54 (Fla. 2d DCA 1981) (holding that jurisdiction was proper where a substantial portion of the tort occurred in Florida).

The Maehtinger defendants argue that there is no personal jurisdiction over them because IAS was not injured in Florida. They contend that IAS is an Ohio corporation that does no business in Florida, and therefore no injury could have occurred here. We disagree. The record contains competent substantial evidence to support the trial court’s findings of fact that IAS’s director, chairman, vice chairman, treasurer, secretary, and assistant secretary all worked and resided in Florida. The court also found that the Florida office instituted financial control over IAS’s funds. O’Donnell knew the fraudulent misrepresentations he directed to IAS in Florida would be relied and acted upon by IAS in Florida, and that IAS would countersign the checks in Florida and disburse the checks from Florida thereby causing injury to IAS in Florida. Deloitte & Touche v. Gencor Indus., 929 So.2d 678, 683 (Fla. 5th DCA 2006) (“[I]t is sufficient to establish the ‘tortious act’ committed in Florida for purposes of jurisdiction that [defendant] sent false reports to Florida, that [defendant] was aware that these reports would be relied on in Florida by [plaintiff] and that they were relied upon in Florida by [plaintiff].”); Tourismart, Inc. v. Gonzalez, 498 So.2d 469 (Fla. 3d DCA 1986) (plaintiff stated a valid cause of action for fraud by alleging that the defendant made false representations to induce plaintiff to sell defendant’s travel agency airline tickets, for which the defendant paid with worthless checks and unauthorized credit card charges).

The Machtinger defendants next argue that IAS failed to satisfy Venetian Salami’s constitutional prong by failing to demonstrate that they had sufficient minimum contacts with Florida to satisfy due process. We disagree. IAS alleges that O’Donnell purposefully directed misrepresentations in furtherance of the conspiracy to IAS officers in Florida, with the intent that the officers rely on the misrepresentations. Directing a conspiracy toward Florida establishes sufficient minimum contacts to satisfy due process. Wendt, 822 So.2d at 1258. “[I]t _can be concluded that [the defendant] could reasonably anticipate being haled into a Florida court to answer for misrepresentations it made to a Florida resident to induce that resident to act.” Fletcher Jones, 919 So.2d at 687.

Florida has personal jurisdiction over O’Donnell because his fraudulent misrepresentations constitute tortious acts in Florida for purposes of the long-arm statute, and the minimum contacts requirements have been met. Therefore, Florida also has long-arm jurisdiction over the Ma-chtinger defendants because O’Donnell’s fraudulent misrepresentations were made in furtherance of the conspiracy. See Wilcox v. Stout, 637 So.2d at 335.

Affirmed.

      . Section 48.193, Florida Statutes (2005), provides:
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
      (b) Committing a tortious act within this state.

      . We stress that this opinion pertains solely to the jurisdictional allegations of whether the tort, as alleged, occurred in Florida. This Court does not address whether the tort, as alleged, actually occurred.


source: Caselaw Access Project

author: STEVENSON, C.J.

license: Public Domain

text:
    Francisco "Frank" ROCA, III, Appellant, v. Julie A. ROCA, Francisco Roca, II and Hilda E. Roca, his Wife, Appellees.
    No. 4D05-2617.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.

      Dirán V. Seropian of Edna L. Caruso, P.A., and James R. Rich of the Law Office of James R. Rich, P.A., West Palm Beach, for appellant.
    Barbara J. Compiani and Jane Kreus-ler-Walsh of Jane Kreusler-Walsh, P.A., and Melinda Penney Gamot of The Gamot Law Firm, P.L., West Palm Beach, for appellee Julie A. Roca.
   STEVENSON, C.J.

In this case, the former husband, Francisco Roca, III, appeals an order dissolving his nearly thirteen-year marriage to Julie A. Roca, challenging virtually every aspect of the order. We agree that errors in the order compel reversal of some aspects of the judgment.

The final judgment of dissolution equally divided the couple’s interest in the former marital residence and characterized $275,000 in loans the husband had taken from a life-long friend and loans the wife had taken from her parents as non-marital liabilities. The lower court imputed $70,000 in annual income to the husband. Based on this imputed income, the court then awarded the wife $1,000 per month in permanent periodic alimony and ordered the husband to pay $1,463 per month in child support. Finally, the lower court ordered the husband to pay $13,175.55 of the wife’s $19,175 in attorney’s fees, citing need and ability to pay and litigation misconduct on the part of the husband.

We begin by addressing the husband’s claim that the trial court erred in treating the $275,000 in loans he took from his friend as non-marital liabilities. The only place the husband specifically addressed the loans during the proceedings below was in his proposed final judgment and, there, he designated the loans as non-marital liabilities. The husband cannot now claim error in the trial court’s treating the loans in the very manner he invited. See Cole v. Cole, 723 So.2d 925 (Fla. 3d DCA 1999) (refusing to consider appellate claim that proceeds from sale of home were non-marital where husband had conceded at trial that proceeds were marital); Harper ex rel. Daley v. Toler, 884 So.2d 1124, 1135 (Fla. 2d DCA 2004) (“[A] party may not ordinarily take one position in proceedings at the trial level and then take an inconsistent position on appeal.”).

We next turn to the former husband’s challenge to the imputation of some $70,000 in income. At the time of the dissolution, the husband was thirty-eight years of age with a degree in criminology. The evidence established that, prior to 2001, he had been employed as the administrator for the public defender’s office and was earning $68,000 annually. Following the election, his employment was terminated. According to the husband, thereafter, he was to be hired by the sheriffs office in an administrative position, paying $75,000 annually, but the candidate lost the election. He then turned down an administrative position with the state attorney’s office, which paid $40,000 annually. Instead, the husband became involved with two MRl businesses that folded. In late 2003/early 2004, the husband and a friend started Imaging Institute. Both the husband and his business partner testified they had not yet earned any salary or income. The company had, however, billed $243,000 and the husband expected to make money. In early 2004, the husband started a second business in which he held a fifty percent interest. The husband testified that, in the next year, he “hope[d] that at least I’ll be making 50, 60-50, $40,000, somewhere in that neighborhood.” In closing arguments, the husband’s counsel represented to the court that the husband had no problem with imputed income in the amount of $50,000.

“[A] court may impute income where a party is willfully earning less and ‘the party has the capability to earn more by the use of his best efforts.’ ” Konsoulas v. Konsoulas, 904 So.2d 440, 444 (Fla. 4th DCA 2005) (quoting Hayden v. Hayden, 662 So.2d 713, 716 (Fla. 4th DCA 1995)). Income may only be imputed at a level “supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages.” Id. And, absent special circumstances, it is error to impute income in an amount higher than that ever earned. See, e.g., Tarnawski v. Tarnawski, 851 So.2d 239 (Fla. 4th DCA 2003).

The $70,000 imputed by the trial court simply is not supported by competent, substantial evidence. See, e.g., Schram v. Schram, 932 So.2d 245, 249-50 (Fla. 4th DCA 2005). The $68,000 the husband was earning at the time his position with the public defender’s office was terminated was the product of working his way up from an investigator, earning $17,000 annually, to administrator. There was no evidence that an administrative position similar to that previously held by the husband (or some other job obtainable by the husband as a consequence of his criminology degree or other skills and experience) and paying $70,000 was available. See Woolf v. Woolf, 901 So.2d 905 (Fla. 4th DCA 2005). The husband’s expectations and hopes regarding future income from his businesses will, likewise, not sustain the imputed $70,000. In reconsidering the amount of income to be imputed to the husband, the trial court may take additional testimony. We hold, however, that the trial court should set the floor for imputed income at $50,000 — the amount invited by the husband during the dissolution proceedings. Cf. Harper, 884 So.2d at 1135.

Our decision regarding the imputed income requires reconsideration of the alimony, child support, and attorney’s fees awards. Thus, we decline to further address the husband’s challenge to the alimony award. With regard to child support, on remand, the husband is free to seek the mandatory reduction set forth in section 61.30(ll)(b), Florida Statutes. We reject the husband’s claim that his conduct during the litigation was insufficient to justify an award of fees to the wife under Rosen v. Rosen, 696 So.2d 697 (Fla.1997). We note, however, that if the trial court should again determine fees are appropriate under Rosen, the court must make findings identifying those fees associated with the misconduct. See Elliott v. Elliott, 867 So.2d 1198 (Fla. 5th DCA 2004); Wilkins v. Wilkins, 546 So.2d 44 (Fla. 4th DCA 1989); Gagnon v. Gagnon, 539 So.2d 1179 (Fla. 1st DCA 1989).

Affirmed in part, Reversed in part, and Remanded.

STONE and POLEN, JJ., concur.


author: PER CURIAM.

text:
    Andrew E. PACHECO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1560.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 10, 2006.

      Andrew E. Pacheco, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Andrew Pacheco appeals the summary denial of a rule 3.850 motion. In his motion, he argued in part that it was error to add 12 points to his Criminal Punishment Code scoresheet for a community sanction violation because the offense committed in case number 02-7205 occurred before he was placed on probation in case number 01-11925.

The records before this court reflect that appellant committed the offense in case number 02-7205 on April 5, 2002. He entered his plea and was placed on probation in case number 01-11925 on July 29, 2002. As a result, case number 02-7205 could not be used to assess points for a community sanction violation for the violation of appellant’s probation in case number 01-11925. See § 921.0024(l)(b), Fla. Stat. (2002); Fla. R.Crim. P. 3.704(d)(16).

Correcting this error would reduce the lowest permissible sentence on appellant’s scoresheet and in turn reduce the maximum sentence he could receive for the third degree felonies that were pending for sentencing. § 921.0024(2), Fla. Stat.

Accordingly, we reverse the denial of appellant’s motion and remand for record attachments that show the state did not rely on case number 02-7205 in assessing 24 total points for community sanction violations. If no records refute this claim, appellant is entitled to resentencing with a corrected scoresheet. The denial of appellant’s remaining claims is affirmed.

GUNTHER, KLEIN and SHAHOOD, JJ., concur.


text:
    Jermaine ATTERBURY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3750.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.

      Jermaine Atterbury, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We withdraw our previous opinion issued June 28, 2006 and substitute the following opinion in its place. This Court’s mandate issued July 14, 2006 is recalled.

Appellant alleges his counsel was ineffective for advising appellant to waive his motion to suppress and plead guilty “because the trial judge was going to deny [the motion] and that would foreclose the state plea offer.” This advice was in spite of the fact that appellant’s confession — the only evidence in the case — was made to police after being given defective Miranda warnings. If not for such advice, appellant contends he would never have waived the motion to suppress or accepted the plea. This claim was facially sufficient. See, e.g., Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005). The state therefore properly concedes that the order denying post-conviction relief should be reversed and remanded either for the attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing.

Reversed and Remanded.

STEVENSON, C.J., GUNTHER and MAY, JJ., concur.


author: STONE, J.

text:
    Kathy C. BOWEN, Appellant, v. J. Thomas BOWEN a/k/a James Thomas Bowen, Appellee.
    No. 4D05-3118.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.

      Richard J. Winkis of Richard J. Winkis, P.A., West Palm Beach, for appellant.
    Michael J. Mortell of Lewis, Mortell & Lewis, LLC, Stuart, for appellee.
   STONE, J.

The wife appeals a final judgment of dissolution of marriage, arguing that the trial court made insufficient findings to support the $1,300 per month imputed income to the wife. See Vitek v. Vitek, 661 So.2d 965, 966 (Fla. 5th DCA 1995) (stating that the imputation of income is “improper in the absence of specific findings of fact supporting it”); Cooper v. Cooper, 639 So.2d 153, 155 (Fla. 2d DCA 1994). We affirm.

In Burkhardt v. Bass, 711 So.2d 158, 160 (Fla. 4th DCA 1998), we recognized that “there is no statutory requirement that mandates any specific set of written findings before a trial court imputes income.” It is sufficient that the trial court make the required findings of voluntary underemployment and income to be imputed, and the order and record enable the appellate court to determine the basis for the trial court’s decision. Id. Beyond that, the issue is whether there is competent, substantial evidence which supports and correlates with the judgment. Id.

Here, there is competent, substantial evidence in the record supporting the amount imputed based on the wife’s earnings history. The wife acknowledged on cross-examination that her earlier testimony as to the $10 per hour she previously made may have been an approximation and that she might, in fact, have earned $12 per hour, as the husband asserted. There was also testimony as to the hours she could work per week. The $1,300 per month accords with maximum figures acknowledged by the wife and is well within her earnings history. Further, the trial court made specific findings of fact that she had voluntarily left her last job and made no attempt to regain employment, although she had the continuing ability to earn.

As to all other issues raised, we also find no reversible error or abuse of discretion.

STEVENSON, C.J. and BATEMAN, THOMAS H., Ill, Associate Judge, concur.


text:
    Femesha FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-531.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Foster was convicted under section 859.01, Florida Statutes, of poisoning food or water. She contends that the undefined term “poison” is vague and that the statute is, therefore, unconstitutional on its face and as applied.

The amended information tracks the 2000 version of section 859.01. The statute provides:

Whoever mingles any poison with food, drink, or medicine with intent to kill or injure another person, or willfully poisons any spring, well, or reservoir of water with such intent, shall be guilty of a felony of the first degree....

§ 859.01, Fla. Stat. (2000).

“The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct.” Sieniarecki v. State, 756 So.2d 68, 74 (Fla.2000) (quoting Brown v. State, 629 So.2d 841, 842-13 (Fla.1994)). “The language of the statute must ‘provide a definite warning of what conduct’ is required or prohibited, ‘measured by common understanding and practice.’ ” Id.

Here, there is no statutory definition of poison. However, the legislature’s failure to define a statutory term, taken alone, does not render a provision unconstitutionally vague. See State v. Hagan, 387 So.2d 943, 945 (Fla.1980). “[WJhere a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.” Jones v. Williams Pawn & Gun, Inc., 800 So.2d 267, 270 (Fla. 4th DCA 2001) (citing Plante v. Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 685 So.2d 886 (Fla. 4th DCA 1996); State v. Barnes, 686 So.2d 633 (Fla. 2d DCA 1996)).

We conclude that the term “poison” has a plain and ordinary meaning that is accepted and may be understood by a person of ordinary intelligence, so as to place the person on notice of forbidden conduct.

Webster’s New Collegiate Dictionary defines poison as “a substance that through its chemical action usually kills, injures, or impairs an organism.” Webster’s New Collegiate Dictionary 881 (1980). The American Heritage Dictionary defines poison as “a substance that causes injury, illness or death, especially by chemical means.” American Heritage Dictionary 958 (2d Coll. ed. 1985). The Oxford Encyclopedic English Dictionary defines poison as “a substance that when introduced into or absorbed by a living organism causes death or injury, especially one that kills by rapid action even in a small quantity.” Oxford Encyclopedic English Dictionary 1118 (2d ed. 1995).

Because “poison” has an accepted meaning that can be understood by a person of ordinary intelligence, the cases relied on by Foster, wherein our supreme court and the United States Supreme Court found vague statutory terms constitutionally deficient, are distinguishable. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (finding word “gang” to be unconstitutionally vague where, inter alia, word was not properly defined in the statute, and dictionaries had varied meanings); United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921) (holding statutory language “That it is hereby made unlawful for any person willfully ... to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries” unconstitutionally vague); Brown v. State, 629 So.2d. 841 (Fla.1994) (finding statute containing phrase “public housing facility” unconstitutionally vague); Cuda v. State, 639 So.2d 22 (Fla.1994) (holding terms “improper or illegal,” as used in statute prohibiting financial exploitation of aged or disabled adult, unconstitutionally vague).

Foster’s argument that the statute is vague because it encourages arbitrary and discriminatory enforcement in failing to provide what dosage constitutes poison is also unpersuasive. Our supreme court has recognized, “The legislature cannot be expected to list every possible substance which causes harm when present in sufficient quantities. This would be an impossible standard to meet and is not mandated by our constitution.” State v. Hamilton, 388 So.2d 561, 563 (Fla.1980) (citations omitted).

Foster’s argument regarding unconstitutional application is waived, as it was not raised until her motion for new trial. See Trushin v. State, 425 So.2d 1126, 1129-30 (Fla.1982). In any event, the statute was not unconstitutional as applied in this case. Here, the FBI chemist, Quenzer, testified that Brodifacoum substance was a poison and is commercially available as rat poison. Foster admitted pouring the poison into the victim’s drink, and it was captured on videotape. She testified that she did this, “[n]ot to hurt him, just to make him sick....”

Therefore, the judgment and sentence are affirmed.

STEVENSON, C.J. and BATEMAN, THOMAS H., Ill, Associate Judge, concur.


text:
    Juan E. "J.P." PLANAS, Candidate for Florida House, District 115 Seat, Appellant, v. Juan Carlos "J.C." PLANAS and Lester Sola, Supervisor of Elections Miami-Dade County, Florida, and Sue M. Cobb, Florida Secretary of State, Appellees.
    No. 3D06-2067.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Diaz Reus Rolff & Targ and Robert T. Rigal, Miami, for appellant.
    Meyer and Brooks and Jennifer S. Blohm; Murray A. Greenberg, Miami, and Oren Rosenthal, for appellees.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The judgment below disqualifying appellant as a candidate for state representative is affirmed, although on a different ground than the one stated by the trial court, see Carraway v. Armour & Co., 156 So.2d 494 (Fla.1963) (applying “tipsy coachman” rule), which relied on the argument rejected in Schurr v. Sanchez-Gronlier, 937 So.2d 1166, 2006 WL 2521401 (Fla. 3d DCA Case no. 3D06-2125, opinion filed, September 1, 2006).

We hold that, as a matter of law, by designating a name, “J.P.” Planas, which “ha[d] not been adopted by him ... and under which [he] ha[d] not transacted private and official business,” Division of Elections Opinion 86-06 (May 1, 1986)(cit-ing C.J.S. Elections § 161 (now 29 C.J.S. Elections § 273 (2005))), the appellant did not “aet[ ] in [the] good faith and ... honest purpose,” 26 Am.Jur.2d Elections § 293, at 109 (2004), required of all candidates. Allowing him potentially to succeed through a stratagem clearly intended to deceive and confuse voters with the incumbent, long and widely known as “J.C.” Planas, simply cannot be permitted. See In re Protest of Election Returns, 707 So.2d 1170, 1173 (Fla. 3d DCA 1998) (“Courts cannot ignore fraudulent conduct which is purposefully done to foul the election or corrupt the ballot.” (quoting Bolden v. Potter, 452 So.2d 564, 567 (Fla.1984))), review denied, 725 So.2d 1108 (Fla.1998); see also Kobrin v. Leahy, 528 So.2d 392 (Fla. 3d DCA 1988), review denied, 523 So.2d 577 (Fla.1988).

Affirmed.

       This decision shall take effect and the mandate shall issue immediately without regard to any motion for rehearing.


author: GROSS, J.

text:
    Tara Leigh SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-2859.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Rehearing Denied Oct. 10, 2006.

      Richard F. Della Fera of Entin & Della Fera, P.A., Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique LTtalien, Assistant Attorney General, West Palm Beach, for respondent.
   GROSS, J.

The issue in this case is whether the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars a probation violation charge, after an identical charge was dismissed when the main witness failed to appear. We hold that double jeopardy protection does not apply to a probation violation hearing and deny the petition for writ of prohibition.

Petitioner Tara Scott was placed on 12 months probation on February 22, 2006. On April 18, 2006, the probation officer filed an affidavit alleging that Scott violated her probation by committing a simple battery and resisting an officer without violence.

At the final violation of probation hearing on June 2, 2006, a police officer, who was the state’s main witness to the underlying offenses, failed to appear. The state presented no evidence. No testimony was taken from any witness. Scott’s attorney moved for dismissal. The court granted the motion and, pursuant to section 948.06(l)(g), Florida Statutes (2005), continued Scott on probation “as previously imposed.”

On June 5, 2006, the probation officer filed a second violation of probation affidavit founded on the identical conduct that formed the basis for the April 18 affidavit. The court set a final violation of probation hearing on July 28, 2006. Scott moved to dismiss the second violation of probation affidavit, arguing that the new affidavit violated the prohibition against double jeopardy. The circuit court denied the motion.

In her petition, Scott argues that the pending violation of probation charge is barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. A writ of prohibition is the proper remedy to prevent a prosecution that is barred by double jeopardy principles. See Jackson v. State, 855 So.2d 178 (Fla. 4th DCA 2003).

The Double Jeopardy Clause does not bar a second probation violation proceeding for the same alleged violation, wherein the subject of the earlier proceeding was dismissed by the court without any testimony being taken or evidence offered. As the United States Seventh Circuit has explained:

Probation revocation hearings are not a part of the criminal prosecution which results in imposition of the probationary period. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). A probationer or parolee facing revocation is not entitled therefore to the full panoply of constitutional and statutory rights due a defendant facing a criminal prosecution. Id. at 489, 92 S.Ct. at 2604. See also Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973) (extending due process rights recognized in Morrissey to probationers). In Morris-sey v. Brewer, the Court held that the conditional liberty of a parolee is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. 408 U.S. at 480, 92 S.Ct. at 2600. In Morrissey, the Court outlined the minimum due process rights to which parolees are entitled: the right to notice, limited discovery, opportunity to be present and to offer evidence, confrontation, a neutral and detached hearing body and a written statement of the reasons for the revocation. 408 U.S. at 489, 92 S.Ct. at 2604.

Thompson v. Reivitz, 746 F.2d 397, 399 (7th Cir.1983), cert. den., 471 U.S. 1103, 105 S.Ct. 2332, 85 L.Ed.2d 849 (1985). Thompson declined to extend the due process protections of Morrissey to include “a double jeopardy bar” in a situation similar to the one presented in this case. Id. at 400; accord United States v. Whitney, 649 F.2d 296, 298 (5th Cir.1981); see also Duke v. State, 2 S.W.3d 512, 515-16 (Tex.Crim.App.1999) (holding that double jeopardy does not apply in a probation revocation hearing, which results in “neither a conviction nor an acquittal,” but in “a finding on which the trial court can then exercise its discretion by revoking or continuing probation”); People v. Tanner, 129 Cal.App.4th 223, 28 Cal.Rptr.3d 201, 212 (2005); Jonas v. Wainwright, 779 F.2d 1576, 1577 (11th Cir.1986) (stating that “double jeopardy clause does not apply to parole revocation proceedings”).

The inapplicability of the Double Jeopardy Clause to a probation violation proceeding is demonstrated by the way the clause operates when insufficient evidence has been presented at a criminal trial, as opposed to a probation revocation hearing.

The general rule is that a defendant is not placed twice in jeopardy by being required to defend a second prosecution after successfully overturning a previous conviction because of trial error, or after a mistrial was properly declared. See, e.g., Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (“[RJeversal for trial error ... does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant.”). One exception to this rule is when a conviction is overturned for insufficient evidence, which means “that the prosecution has failed to produce sufficient evidence to prove its case,” Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); in such a case, the reversal on appeal is deemed to be equivalent to an acquittal. See, e.g., Bullington v. Missouri, 451 U.S. 430, 437, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). When a person is acquitted of a crime, the Double Jeopardy clause bars future prosecution based on the same offense; when an individual is convicted, he cannot be twice convicted and punished for the same crime. The Double Jeopardy Clause thus promotes finality, in cases where the defendant was either initially acquitted or convicted. See Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

Unlike the reversal of a criminal conviction for insufficient evidence, the reversal of a violation of probation conviction for insufficient evidence does not “bar a second revocation hearing based on the filing of a new affidavit alleging the same violations.” Reeves v. State, 366 So.2d 1229, 1230 n. 2 (Fla. 2d DCA 1979); see also Robbins v. State, 318 So.2d 472, 473 (Fla. 4th DCA 1975). Double jeopardy protection does not operate in violation of probation proceedings.

The state relies on State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983), a case that supports the conclusion we reach in this case. Jones held that a court’s ruling that a defendant had not violated probation by committing an aggravated battery did not bar a prosecution of the defendant on the same aggravated battery charges. Id. That holding was based on the conclusion that the probation revocation hearing did not trigger double jeopardy protection; the defendant “was not placed in jeopardy in the probation revocation hearing.” Id. at 179. The first district reasoned:

A probation revocation hearing is a sentencing function, not a trial. Jeopardy occurs when a person is put upon trial under an indictment or information sufficient in form and substance to sustain, a conviction before a court of competent jurisdiction, and a jury has been sworn and charged or the court begins to hear the evidence. Since appellee’s probation • revocation hearing concerned only her sentence for a prior offense, she may not be said to have been put in jeopardy for the instant offense.

Id. at 179 n. 2 (internal citations omitted).

Our ruling in this case is based only on the grounds raised in the petition. We do not address any other theory that the defendant might raise to avoid prosecution under the second affidavit. We also note that this decision does not conflict with Gilliam v. State, 801 So.2d 996 (Fla. 4th DCA 2001), where the reference to “the Double Jeopardy Clauses” was dicta. ’

The petition for writ of prohibition is denied.

GUNTHER and STONE, JJ., concur.

      . If a reversal is based on the weight of the evidence, as opposed to the sufficiency of the evidence, the Double Jeopardy Clause does not bar a retrial since "[a] reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Tibbs, 457 U.S. at 42, 102 S.Ct. 2211.


author: COPE, C.J.

text:
    Joe M. FERNANDEZ, Appellant, v. UNION CARBIDE CORPORATION, Appellee.
    No. 3D03-3142.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.

      James L. Ferraro and David A. Jagolin-zer and Jeffrey S. Respler, Miami, for appellant.
    Orrick Herrington & Sutcliffe; Morton D. Dubin, New York, NY; Carlton Fields and Gary L. Sasso, Tampa, and Allison Oasis Kahn, West Palm Beach, for appel-lee.
    Before COPE, C.J., and FLETCHER and RAMIREZ, JJ.
   COPE, C.J.

Plaintiff Joe M. Fernandez appeals a final judgment after jury verdict in favor of defendant Union Carbide Corporation on his claim of asbestosis. We affirm.

The plaintiff, was a drywall installer for many years beginning in 1966. He testified that the only joint compound he ever used was Georgia-Pacific Ready Mix. At the relevant times, some of the compound formulas in the product contained Union Carbide’s Calidria asbestos.

The plaintiff alleged that he breathed asbestos-containing dust by virtue of installing and sanding the joint compound from 1966 to at least 1973. The plaintiff alleged he developed medical problems in 1999 and that he was diagnosed with asbestosis in 2002.

The plaintiff filed an action against numerous defendants, including Union Carbide, in August 2002. As to Union Carbide, the plaintiff alleged that Union Carbide failed to warn regarding the dangers of asbestos, and that Union Carbide manufactured a defective product. The case proceeded to trial, at which the jury returned a verdict in favor of Union Carbide. Fernandez has appealed.

The plaintiff argues that the trial court erred by admitting into evidence certain medical records of the plaintiff which had not been seen by either side prior to trial. This unexpected development occurred when the plaintiff called as a trial witness the records custodian for his general care physician, Doctor Cordoves, in order to authenticate his medical records. During this testimony both parties learned that the plaintiffs chart included some medical records which had never been provided to either side. Specifically, the newly discovered records included an August 23, 2003 report from a pulmonologist, Dr. Icochea (the “Icochea Report”). Apparently Doctor Cordoves referred the plaintiff for an evaluation by Doctor Icochea at around the time of the discovery cutoff. Neither side was aware of this referral and neither side had received Doctor Icochea’s Report.

Doctor Cordoves’ medical file regarding the plaintiff also contained seven post-it notes containing handwritten notes, which had been stapled in the file. The defense objected to the admission of these pieces of notepaper, on the ground that there was no indication who made those notes, or what the notes represented. By the time this issue arose, the records custodian had been excused and had not been asked to identify the handwriting on the notes.

The plaintiffs initial position was that the plaintiffs medical file should be admitted into evidence in its entirety. This included the Icochea Report and the handwritten notes. The trial court ruled that the Icochea Report would be received in evidence, but not the handwritten notes. The court overruled the plaintiffs objection that the rule of completeness required the handwritten notes to be admitted.

During these proceedings, the parties also noticed that Doctor Cordoves’ copy of the Icochea Report was missing its second page. The plaintiff objected that the report should be excluded on that ground. The objection was overruled and the plaintiffs motion for mistrial was denied.

We conclude that the trial court acted within its discretion in admitting the Ico-chea Report into evidence. The trial court reasoned that the Icochea Report was a recent diagnosis of the plaintiffs lung condition. The question whether the plaintiff had asbestosis or some other disorder was a disputed issue in the case. The plaintiffs initial argument was that under the rule of completeness, the Icochea Report should be admitted into evidence only if the handwritten notes in the file were also admitted into evidence.

Turning to the handwritten notes, the plaintiff proffered to the trial court that the handwritten notes were made by Doctor Cordoves. For present purposes we accept that proffer, but the meaning of the notes was never made clear. Doctor Cordoves was the plaintiffs general care physician, not a pulmonologist or other expert in lung disease. Neither side called Dr. Cordoves as a witness or took Dr. Cordoves’ deposition, so there is no explanation what the notes mean. There is nothing on the face of the handwritten notes to link them to Doctor Icochea or the Icochea Report. Two of the notes mention meso-thelioma, yet neither side made any claim, or presented any diagnosis, that the plaintiff suffered from mesothelioma.

Professor Ehrhardt has stated:

Although section 90.803(6) removes the hearsay bar for entries of opinion and diagnosis, not every opinion in a hospital or medical record is automatically admissible in the absence of the expert testifying and being subject to cross-examination. For example, in this situation the court may decide that the probative value of the opinion is outweighed by the danger that the jury will be confused or misled. The danger is particularly significant with respect to complex diagnostic opinions.

Charles W. Ehrhardt, Florida Evidence § 803.6a, at 906 (2006) (footnote omitted).

Under the rule of completeness, “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.” § 90.108(1), Fla. Stat. (2003). See generally Charles W. Ehrhardt, Florida Evidence § 108.1. In this case there was no showing of what the handwritten notes meant, nor is there any indication that the notes bore any relationship to the Icochea Report or any other part of the plaintiffs medical file such that the notes should in fairness be considered contemporaneously. We conclude that the trial court acted within its discretion in excluding the handwritten notes while admitting the Icochea Report into evidence.

During the proceedings, the parties observed that the Icochea Report was missing its second page. It appears that Doctor Icochea had faxed the report to Doctor Cordoves and the second page did not proceed properly through the fax machine. The plaintiff objected to its admission unless the second page was added to the document. The plaintiff had obtained the missing page from Doctor Icochea and requested that it be added.

The trial court ruled that since the Ico-chea Report was being admitted as part of the plaintiffs medical chart from Doctor Cordoves’ office, the report would come into evidence in the form in which Doctor Cordoves had it. Although excluded, the missing second page was made part of the record and is now before us. It contains preliminary matter which did not impinge on the substance of the report. We conclude that the ruling was within the trial court’s discretion or if not, was harmless error.

The plaintiff argues that the trial court erred in allowing the parties’ experts to review the Icochea Report and to testify regarding its meaning. The trial court took the position that since the Icochea Report was in evidence, each side would be allowed to show the report to its expert and each side’s expert would be allowed to comment about the report. The plaintiff did not object to this procedure. In the plaintiffs case, the plaintiff asked its expert, Doctor Mezey, to testify regarding the Icochea Report, and Doctor Mezey did

During the defense case, the defense asked its expert, Doctor Feingold, to testify regarding the Icochea report, and Doctor Feingold did so. At the conclusion of direct examination the plaintiff moved (out of the hearing , of the jury) to strike the doctor’s testimony on the ground that Doctor Feingold gave a different diagnosis on the stand than he had in his pretrial reports. In his pretrial reports Doctor Fein-gold had said his diagnosis of the plaintiffs illness was “Usual Interstitial Pneumoni-tis,” referred to as “UIP.” During trial testimony he used the term “Idiopathic Pulmonary Fibrosis,” referred to as “IPF.” The experts from both sides had testified that those terms were often used interchangeably.

The court responded that under the court’s understanding of the law, the correct remedy would be a mistrial rather than the striking of the testimony. The court then indicated, “Make sure you want what you ask for, because ... I don’t ever take anything under submission and wait to see how things play out.” The plaintiff then asked, and the court agreed, that the plaintiff would first cross-examine Doctor Feingold and then make a decision whether to make a. motion for mistrial. The plaintiff cross-examined Doctor Feingold at length, after which the plaintiff informed the court that the plaintiff would not be moving for a mistrial. Under the circumstances, we see no basis on which to order a new trial.

We have reviewed the plaintiffs remaining claims and find that no reversible error has been shown.

Affirmed.

      . Because the regular records custodian was out on leave, another physician in the office, Doctor Abdul-Ruhman, appeared in the capacity as records custodian.


text:
    Juan Norberto ESPINOSA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-537.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Juan Norberto Espinosa, in proper person.
    Charles J. Crist, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   PER CURIAM.

Juan Norberto Espinosa appeals an order denying his motion to correct sentence filed under Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

As one of his issues, defendant-appellant Espinosa argues that consecutive sentences should not have been imposed on him. The State filed a response in the trial court where it conceded that the defendant was correct with regard to the sentences imposed in Miami-Dade County Circuit Court case number 02-14356. Apparently basing its response on Hale v. State, 630 So.2d 521 (Fla.1993), the State said that consecutive sentences should not have been imposed on counts one and two. The State acknowledged that the sentencing order should be corrected so that the sentence on count two would be concurrent with the sentence on count one. Despite this concession, the trial court did not correct the sentencing order, and instead denied the defendant’s motion in its totality. We reverse the order now before us and remand for the trial court to correct the sentencing order to make count two of circuit court ease number 02-14356 be concurrent with count one. The defendant need not be present.

We concur with the trial court in the denial of the defendant’s remaining claims for relief.

Affirmed in part, reversed in part and remanded for correction of sentencing order.


text:
    Beauford WHITE, a/k/a Beauford Hawkins, a/k/a Beulford Hawkins, a/k/a Beulford White, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-382.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Beauford White a/k/a Beauford Hawkins, a/k/a Beulford Hawkins, a/k/a Beul-ford White, in proper person.

      Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GREEN, SHEPHERD, and LAGOA, JJ.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

On July 12, 2006, in conjunction with our per curiam affirmance of Appellant Beau-ford White’s twelfth pro se motion for post conviction relief, we ordered him to show cause why he should not be prohibited from filing further pro se proceedings with this court concerning his October 26, 1991 conviction and sentence for burglary of an unoccupied dwelling and grand theft in trial court case number F91-38136. See Johnson v. State, 915 So.2d 682 (Fla. 3d DCA 2005). Defendant stipulates that he will not file any further pro se pleadings regarding case number F91-38136. Upon this stipulation, we now prohibit him from filing any additional pro se appeals, pleadings, motions, or petitions relating to this conviction and sentence.

We also ordered defendant to show cause why we should not sanction him pursuant to section 944.28(2)(a), Fla. Stat. (2005) and section 944.279, Fla. Stat. (2005). Defendant avers that he is one year removed from release and was unaware of the frivolous nature of his filings. While we believe that a sanction in this case would be permissible, see Pettis v. State, 931 So.2d 204 (Fla. 5th DCA 2006), we choose, in our discretion, not to employ this measure here where defendant avers that he will cease his vexatious practice.

For the foregoing reasons, we order that henceforth any pleadings or papers filed in this court relating to case number F91-38136 must be reviewed and signed by an attorney licensed to practice law in this state, and the Clerk of the Third District Court of Appeal is directed not to accept any further pro se pleadings from defendant relating to said case.

So ordered.

      . Defendant also uses the monikers "Beau-ford Hawkins”, "Beulford Hawkins", and "Beulford White”.

      . See White v. State, 860 So.2d 431 (Fla. 3d DCA 2003)(table); White v. Moore, 827 So.2d 382, 383 (Fla. 3d DCA 2002); White v. State, 783 So.2d 267, 2001 WL 335882 (Fla. 3d DCA Feb. 21, 2001)(table); White v. Moore, 751 So.2d 587 (Fla. 3d DCA 2000)(table); White v. State, 743 So.2d 525 (Fla. 3d DCA 1999)(table); White v. State, 693 So.2d 987 (Fla. 3d DCA 1997)(table); White v. State, 678 So.2d 1297 (Fla. 3d DCA 1996)(table); White v. Sin-gletary, 668 So.2d 621 (Fla. 3d DCA 1996)(table); White v. State, 657 So.2d 1177 (Fla. 3d DCA 1995)(table); White v. Singletary, 642 So.2d 1377 (Fla. 3d DCA 1994)(table); White v. State, 638 So.2d 955 (Fla. 3d DCA 1994)(ta-ble). Defendant also filed an appeal in case number 98-2625, but voluntarily dismissed the appeal prior to our ruling. White v. State, 727 So.2d 937 (Fla. 3d DCA 1998). Along the way, defendant also filed a petition for habeas relief directly to the Florida Supreme Court, White v. State, 675 So.2d 123 (Fla.1996), and two federal habeas petitions.


text:
    Richard COLLAR, Appellant, v. Lisette MURILLO, Appellee.
    No. 3D05-1943.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Rehearing Denied Sept. 26, 2006.

      Karen J. Haas, Miami, for appellant.
    Lisette Murillo, in proper person.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

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


text:
    Patricio NINO, Appellant, v. STATE of Florida, Appellee.
    No. 3D04-2420.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Patricio Nino, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER and RAMIREZ, JJ.
   COPE, C.J.

Patricio Nino appeals an order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

Defendant-appellant Nino was convicted of kidnapping and attempted sexual battery. This court affirmed, and the appeal became final on direct review in 1999. Nino v. State, 744 So.2d 528 (Fla. 3d DCA), cause dismissed, 751 So.2d 51 (Fla.1999). In 2000 the defendant was resen-tenced under Heggs v. State, 759 So.2d 620 (Fla.2000), resulting in a sentence of 10.59 years on both counts.

On this appeal from the denial his Rule 3.800(a) motion, the defendant argues that the United States Supreme Court decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), forbid the assessment of victim injury points on the defendant’s scoresheet unless there were jury findings regarding victim injury.

We reject the defendant s argument, because the Apprendi and Blakely decisions are not retroactive. See Hughes v. State, 901 So.2d 837, 846 (Fla.2005); Burrows v. State, 890 So.2d 286 (Fla. 2d DCA 2004). The Apprendi and Blakely decisions were announced after the defendant’s convictions and sentences became final on direct review.

We have not overlooked the fact that the defendant was granted postconviction relief under Heggs and was resentenced on August 31, 2000. This postconviction re-sentencing occurred after Apprendi had been announced. That fact makes no difference. See Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005), review granted, 925 So.2d 1030 (Fla.2006). As we did in Galindez, we certify direct conflict with Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), review pending, No. SC05-2047 (Fla. filed Oct. 31, 2005).

Affirmed.

      . The crime date was July 23, 1996.

      . The decision in Apprendi was announced June 26, 2000. The defendant’s August 31, 2000 Heggs resentencing occurred after Ap-prendi but prior to the announcement of Blakely on March 23, 2004. It appears that there was no appeal by either side after the defendant's resentencing on August 31, 2000.


author: SHAHOOD, J.

text:
    Ronald A. CORKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1084.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Rehearing Denied Sept. 25, 2006.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyhdman, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Ronald Corker, was found guilty by a jury of attempted robbery with a firearm while wearing a mask. We affirm appellant’s conviction and sentence. We grant appellant’s Motion to Accept Amended Initial Brief.

As his fourth issue in his amended initial brief, appellant argues that the trial court erred by denying his hearsay objection to the introduction of a letter from the Florida Department of Corrections reflecting his most recent release date from prison. The State offered the letter at sentencing in order to establish appellant’s status as a Prison Releasee Reoffender. We affirm as to this issue based on this court’s recent en banc opinion in Yisrael v. State, No. 4D04-2967, 2006 WL 2355519, 938 So.2d 546 (Fla. 4th DCA Aug.16, 2006).

We affirm as to all other issues raised by appellant without discussion. As in Yisrael we also certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005).

Affirmed.

STEVENSON, C.J., and MAY, J., concur.


text:
    Tyrone L. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4124.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2006.
    Tyrone L. Smith, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and DAVIS, JJ., concur.


text:
    STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Jason TRAUTH, and Luis Llamas, Respondents.
    No. 3D06-1724.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Judson M. Chapman, General Counsel, and Thomas C. Mielke, Assistant General Counsel, for petitioner.
    Michael A. Catalano, Miami, for respondents.
    Before COPE, C.J., and RAMIREZ and ROTHENBERG, JJ.
   COPE, C.J.

The question before us is whether the circuit court appellate division (“appellate division”) may grant certiorari and quash an administrative decision without providing a statement of reasons for doing so. We conclude that the answer is no. The appellate division must issue a reasoned opinion when overturning an administrative order.

The underlying administrative proceedings were separate cases involving the suspension of the driving privileges of respondents Jason Trauth and Luis Llamas. Trauth and Llamas each requested a formal administrative hearing pursuant to section 322.2615, Florida Statutes. The hearing officer upheld the suspension in each case.

Trauth and Llamas each filed a petition for writ of certiorari in the appellate division seeking to overturn the ruling of the hearing officer. Because the two petitions raised the same legal issue, the appellate division consolidated the proceedings.

After oral argument, the appellate division rendered an opinion which states in its entirety:

(PER CURIAM). GRANTED. Petitioner’s motion for appellate attorney’s fees is granted pursuant to Fla. R.App. P. 9.400, the amount to be adjudicated by a duly designated judge of the county court.

Opinion, June 6, 2006.

The Department of Highway Safety and Motor Vehicles filed a motion for clarification requesting a written opinion explaining the reasons for quashing the decision of the hearing officer. In a motion for rehearing or clarification, Trauth and Llamas joined that request. The appellate division denied the motions without explanation.

The Department has filed a petition for writ of certiorari in this court, seeking to quash the decision of the appellate division. The petition is well taken.

The appellate division departed from the essential requirements of law because it quashed the decisions of the lower tribunal' — -in this case, the decisions of the hearing officer' — without any statement of reasons for doing so.

This court has previously explained that the appellate division cannot issue what amounts to a “Per Curiam Reversal,” that is, a reversal without written opinion. In Kates v. Millheiser, 569 So.2d 1357 (Fla. 3d DCA 1990), this court said:

First, it is the responsibility of the appellate courts to guide the trial courts as to questionable procedures or rulings. A per curiam reversal opinion does not give the trial judge any guidance as to how to correct the supposed error which was the basis of the reversal.
Second, to the extent that the reversal relates to evidentiary matters, it fails to place the trial lawyers on notice as to ■ what issues are open for retrial.
Finally, the need for an appellate court to announce the reason for a reversal is essential to the integrity of- the judicial process. It is important for litigants and the public to recognize that determinations develop as the result of a fair and just reasoning process as opposed to perceiving judicial decisions as unjustified and arbitrary. Ultimately, it is the responsibility of the judiciary to maintain the integrity of the legal system by ensuring that the judgment processes in the appellate system involve scholarly and fair deliberations which are open for the public to view. (FN 1) When a case is appealed, the judgment under review is clothed with a presumption of correctness. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 129 (Fla.1978). If the appellate court per curiam affirms the trial court decision, this means that the appellant failed to rebut the presumption of correctness, but still leaves the parties with the knowledge as to why the final judgment was reached.
However, in the situation where an appellate court per curiam reverses a final order or judgment, without an opinion, neither party is apprised of why that particular legal result was reached. Specifically, the parties are entitled to know exactly why the result reached at the trial level, which was presumed to be correct, was set aside by the appellate court.
It is for this reason that we find paramount among the responsibilities of an appellate court, the responsibility of writing opinions in all reversals and remands.' See Whipple v. State, 431 So.2d 1011, 1015 (Fla. 2d DCA 1983) (“We write opinions in all reversals and remands”). In the interests of propriety and fairness, litigants cannot be left to wallow in a sea of confusion as to the rationale supporting a legal result.
(FN1.) As stated by one commentator:
In the broader view, appellate justice can be the last best effort of our government and our law to gain the respect and acceptance of the people. Appellate justice should be a model for the government’s dealings with citizens. Appellate courts are the most dignified and receptive authorities to which individuals can turn to express their legal dissatisfac-tions in a pointed way, with assurance of a direct response. If these courts do not deal justly with litigants, we cannot expect agencies or bureaucracies of lesser sensitivity to legal rights to do so. It is therefore important that justice on appeal be visible to all.
Carrington, Meador & Rosenberg, Preface to Justice on Appeal at v (1976) [emphasis in original].

Id. at 1358. See also City of Kissimmee v. Grice, 669 So.2d 307, 308-09 (Fla. 5th DCA 1996); Campbell v. Vetter, 375 So.2d 4, 5 (Fla. 4th DCA 1979).

The same principles apply here. As they did below, Trauth and Llamas concede that the appellate division should have issued an opinion.

We conclude that the appellate division departed from the essential requirements of law’ such that the granting of certiorari is called for in this case. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889-91 (Fla.2003); City of Kissimmee v. Grice, 669 So.2d at 308-09; Kates v. Millheiser, 569 So.2d at 1358.

For the stated reasons, we quash the decision of the circuit court appellate division and remand the matter for further proceedings consistent herewith.

Certiorari granted.


author: STONE, J. FARMER, J.,

text:
    Jeffrey LISS, Appellant, v. Barbara Ellen LISS, Appellee.
    No. 4D05-2281.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.

      H.T. Maloney and Tonya Ruff Walker of Patterson & Maloney, Fort Lauderdale, for appellant.
    Nancy W. Gregoire and Joel L. Kirschb-aum of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., Fort Lauderdale, for appellee.
   STONE, J.

The former husband petitioned to modify the life insurance provisions of the parties’ settlement agreement incorporated into a 1995 dissolution judgment. The former husband appeals three orders: (1) an April 14th emergency order on the former wife’s emergency motion for relief; (2) an “agreed” order of dismissal entered following an April 20th hearing, and (3) an order denying the former husband’s motion for rehearing with regard to the dismissal entered pursuant to the “agreed” order. We reverse the order of dismissal and order denying rehearing and remand for an evi-dentiary hearing on the merits with respect to the parties’ intent as to the former wife’s interest in maintaining the insurance. Concerning the emergency order, we affirm for reasons unrelated to the ultimate merits, without accepting the trial court’s interpretation of the parties’ agreement.

The former husband asserts that the former wife no longer has an insurable interest in his life. He bases his petition on (1) the fact that one child has become emancipated, reducing his child support obligation, and (2) the former wife has remarried, ending his alimony obligation. The petition alleged that the former wife had procured an insurance policy on his life for $1 million, in addition to a $500,000.00 life insurance policy he continued to maintain as required by their agreement. The former husband’s remaining child support obligation at the time of filing totaled slightly over $31,000.00.

The former wife moved to dismiss for failure to state a cause of action, claiming that she has an insurable interest in his life as provided her by the plain language in the settlement agreement which, once granted, became vested. She also questioned the former husband’s standing to ask the court for what is essentially a declaratory judgment on the issue of her insurable interest.

Subsequent to the former husband’s petition, the former wife filed an emergency motion for relief, asking that the former husband be ordered to execute certain documents required by the insurer in order to reinstate a $1 million policy which lapsed for her non-payment of a premium. The trial court heard the former wife’s emergency motion on a motion calendar the day before the insurance company’s grace period was to expire. Attorneys for both parties were present, as was the former wife; the former husband did not attend.

Order on the former wife’s emergency motion for relief:

At the emergency hearing, the former husband’s attorney relied on the language of the document itself and the reference to the child support/alimony obligation in the life insurance provision. The agreement provides:

The Husband shall maintain, at his sole expense, a life insurance policy providing death benefits to the Wife of $500,000.00 so long as he shall be obligated to pay either alimony and/or child support. To the extent that the Husband’s obligation to pay alimony and/or child support falls below $500,000.00, then he shall have the right to reduce the available coverage to the extent necessary to fully insure the remaining payments of alimony and/or child support. Further, if the Husband chooses not to reduce the death benefit, he may designate any beneficiary he so chooses for the excess. In determining what is necessary, the procedure will be to determine what amount of lump sum (at an interest rate of 6%) will be to amortize the outstanding balance.
By execution of this Agreement, the Husband recognizes the Wife’s insurable interest in his life and authorizes the Wife to secure a policy or policies of life .insurance on the Husband’s life as she deems appropriate.... Any expense attendant to the policies secured by the Wife shall be hers alone.

The former husband’s attorney also stated to the court that “no matter what order you enter right now, there would have to be a determination at some time when there’s a full hearing as to what was the intent of this paragraph in the agreement, unless the court can say there’s no ambiguity at all, what it was intended for.” The former wife’s counsel responded that he did not see the need to hold further hearings and that he was “moving to enforce the terms of the agreement.”

The trial court pronounced its emergency ruling that the former husband sign the documents needed to prevent a termination of the former wife’s $1 million policy. The trial court also decided that the provision of the agreement recognizing the former wife’s “insurable interest” in the former husband’s life was unambiguous, that the former wife’s interest was open-ended, and that it was not modifiable. The court stated:

Looking at the plain language on page 11, there is no evidence required of intent. The language is pretty clear. The husband recognized an insurable interest, and he authorizes the wife to secure a policy or policies. And the word policies sits very strongly with this court. If we were sitting here and she were asking for a second policy, it would be in the same vein as a renewal or a reinstatement because it didn’t limit it to one policy. But if it limited it to one policy, I may have interpreted it differently.
It also says as she deems appropriate, which means it leaves the amount and the kind of insurance up to the wife. It doesn’t have any time deadline on it with regards to tying it to anything. It’s just open-ended insurable interest.

We conclude, however, that in the context of the contract as a whole, the agreement is ambiguous as to any insurable interest in the former husband’s life at such time as the support obligations terminate. “In reviewing the contract in an attempt to determine its true meaning, the court must review the entire contract without fragmenting any segment or portion.” J.C. Penney, Inc. v. Koff, 345 So.2d 732, 735 (Fla. 4th DCA 1977). The life insurance provisions fall in the beginning of the agreement, after alimony and child support, before health insurance and medical bills for both the former wife and children, and quite a bit before equitable distribution. This suggests that the life insurance is not intended as a component of the property distribution scheme, as the former wife suggests, but, instead, is intended solely to protect the support interest. There is no mention of an insurable interest in the equitable distribution scheme.

“The intention of the parties must be determined from an examination of the whole contract and not from the separate phrases or paragraphs.” Lalow v. Codorno, 101 So.2d 390, 393 (Fla.1958). The former husband’s obligation to maintain life insurance is directly tied to his responsibility to provide for his children and the former spouse. There is no reason to assume that the former wife’s interest in procuring life insurance does not flow from the same intention. To automatically accept the interpretation urged by the former wife inserts a property interest into a section devoted to protection of support. Further, an interpretation of the former wife’s insurable interest as limited to protection of support is bolstered by the fact that his original obligation was far in excess of the $500,000.00 he was required to maintain, thereby allowing the former wife an option to procure insurance to protect this excess at her expense.

Accepting the former wife’s construal of her insurable interest creates a situation where she has a greater interest in a windfall she would enjoy at his demise than her interest in his continued life. Generally, this type of “wagering contract is against the public policy of the State of Florida.... ” Knott v. State ex. rel. Guar. Income Life Ins. Co., 136 Fla. 184, 186 So. 788, 790 (1939).

Florida law requires that an individual contracting for insurance on the life of another have an insurable interest, s. 627.404 Fla. Stat. (1979). The obvious purpose of that requirement is to prevent so-called ‘wagering’ contracts. It is assumed that the existence of such an insurable interest will counterbalance any temptation that might otherwise exist for a beneficiary to murder the insured for insurance proceeds. That assumption may be ill-founded, however, if the amount of the proceeds vastly exceeds the value of the insurable interest.

Lopez v. Life Ins. Co. of America, 406 So.2d 1155, 1158 (Fla. 4th DCA 1981). The Lopez court went on to hold that “an insurer has a duty to its insured not to issue a life insurance policy, even to one having an insurable interest, without the knowledge and consent of the insured.” Id. at 1159.

We recognize that, although Florida law is silent on exactly when the insurable interest must exist, in key-man policies it is only necessary that the interest exist at the time the insurance was secured. McMullen v. St. Lucie County Bank, 128 Fla. 745, 175 So. 721, 722 (1937). However, a Texas case tells us that in life insurance, an insurable interest must exist at inception of contract, but must also be continuing. Roberts v. Southwestern Life Ins. Co., 244 S.W.2d 302, 306-07 (Tex.Civ.App.1951). “A policy cannot be beneficially owned by one divorced spouse on the life of the other on the basis of past relationship.” Id. at 307. The situation sub judice is further complicated by the fact that the former wife let her policy lapse. For all intents and purposes, the insurance company’s insistence on the former husband’s signature indicates that her right to reinstate would be determined as of time of re-issuance.

It is not easy to define with precision what will in all cases constitute an insurable interest, so as to take the contract out of the class of wager policies. It may be stated generally, however, to be such an interest, arising from the relations of the party obtaining the insurance, either as a creditor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life.... The natural affection in cases [of family ties] as operating more efficaciously — to protect the life of the insured than any other consideration.

Warnock v. Davis, 104 U.S. 775, 779, 26 L.Ed. 924 (1881). In the case at bar, affection and family ties are not apparent so as to impute an insurable interest to the former wife; any interest she has arises only via the contract.

“Agreed” order on the former wife’s motion to dismiss:

We read the “agreed” order as simply recognizing that the former husband could seek rehearing as to the trial court’s rulings on both the emergency and dismissal by a consolidated argument. We, therefore, review the merits of dismissing the case for failure to state a cause of action. Our standard of review is de novo and is limited to the four corners of the petition, accepting the facts alleged as true with all reasonable inferences drawn in favor of the former husband. Regis Ins. Co. v. Miami Mgmt., Inc., 902 So.2d 966, 968 (Fla. 4th DCA 2005).

The former husband’s petition asserts that the parties’ intent in allowing the additional life insurance was for the purpose of securing the support obligation in excess of the life insurance policy he owned, the agreement is modifiable on this point, the former wife has a $1 million policy on his life, he is uncomfortable with this fact, the former wife has financial motive to do him harm, and the couple’s relationship has been strained and absent affection. Taken as true, the petition states a triable cause of action.

Order denying the former husband’s motion for rehearing:

The former husband filed a detailed motion for rehearing, seeking rehearing of both the emergency motion and the motion to dismiss. The former husband asserted that, in dismissing the case, the court failed to consider the totality of the insurance provisions and the intent of the parties at the time of execution of the agreement. The trial court denied the motion for rehearing, concluding that the former husband was merely re-arguing the case and expressing displeasure with the trial court’s earlier interpretation.

We reverse the order of dismissal and order denying rehearing and remand for an evidentiary hearing on the merits of the petition and to permit evidence with regard to the parties’ intent.

POLEN, J., concurs.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring in reversal.

I agree with the reversal, but I oppose having any evidentiary hearings as to the meaning of the agreement. In my opinion, the meaning and purpose of the parties is clear from the plain text of their agreement as informed by the legal background against which they negotiated it. If it were ambiguous, the public policy of Florida prohibits enforcing the agreement she contends they made.

When parties negotiate an agreement, the existing legal landscape must be understood to inform their purposes. Judges should presume that they sought to do no more than what the law permits and to avoid what the law prohibits. The statutes in Florida manifestly allow only limited insurance on the life of one who has an obligation to support a former spouse by alimony. See § 61.08(3), Fla. Stat. (2005) (“To the extent necessary to protect an award of alimony, [e.s.] the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.”). We have construed section 61.08(3) to allow for such insurance only when there are special circumstances requiring such protection. See Davidson v. Davidson, 882 So.2d 418, 421 (Fla. 4th DCA 2004), rev. denied, 895 So.2d 404 (Fla.2005) (holding that “special circumstances must exist in order to require a former spouse to maintain life insurance for an alimony award.”); see also Moorehead v. Moorehead, 745 So.2d 549, 552 (Fla. 4th DCA 1999) (holding that there must be a demonstrated need to protect the receiving spouse).

The provision for life insurance to protect support of minor children is identical. See § 61.13(c), Fla. Stat. (2005) (“To the extent necessary to protect an award of child support, [e.s.] the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.”). This statute too has been construed to require special circumstances showing that such insurance is necessary. See Cissel v. Cissel, 845 So.2d 993, 995 (Fla. 5th DCA 2003) (holding that trial court’s failure to make any findings necessary to justify requiring husband to maintain life insurance policy as security for child support obligation required remand to determine whether appropriate factors justify such protection); Guerin v. DiRoma, 819 So.2d 968, 970 (Fla. 4th DCA 2002) (holding that trial court failed to make requisite findings to justify ordering father to obtain life insurance policy to secure child support obligation).

In short, Florida law allows life insurance to secure support obligations, but only to the extent necessary to protect the obligation. In this legal context, it is obvious that the parties concluding this agreement understood that her right to purchase separate insurance was effective only while his support obligation continued and then only to make the amount of coverage sufficient if the insurance furnished by him became insufficient.

The public policy of Florida as to insurable interests is stated in yet another statute:

(1) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss.
(2) “Insurable interest”, as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction,- or pecuniary damage or impairment.
(3)The measure of an insurable interest in property is the extent to which the insured might be indemnified by loss, injury, or impairment thereof.

§ 627.405, Fla. Stat. (2005); see also Lopez v. Life Ins. Co. of Amer., 406 So.2d 1155 (Fla. 4th DCA 1981) (relying on the statute in holding that Florida law requires that an individual contracting for insurance on the life of another have an insurable interest); Aetna Ins. Co. v. King, 265 So.2d 716, 718 (Fla. 1st DCA 1972) (when the insured has no insurable interest in the property or the risk insured, the public policy of Florida renders insurance policy invalid on ground that same constitutes a wagering contract). The insurable interest requirement applies to life insurance for the protection of family support obligations. See Robbins v. Jackson Nat’l Life Ins. Co., 802 So.2d 476, 477 (Fla. 2d DCA 2001) (holding that valid orders and agreements in dissolution action provided former wife with insurable interest necessary to purchase policies in question).

The very first sentence of the insurance provision states in clear terms that: “The Husband shall maintain, at his sole expense, a life insurance policy providing death benefits to the Wife of $500,000 so long as he shall be obligated to pay either alimony and/or child suppoH.” [e.s.] Thus the parties agreed that insurance on his life was required or available only while he was obligated to pay spousal and child support. When both forms of support terminated, the purpose for any insurance ended as well. See Hauser v. Hauser, 644 So.2d 554, 555 (Fla. 4th DCA 1994) (order requiring husband to maintain life insurance policy to secure payment of alimony and child support, naming wife, as irrevocable beneficiary, had to be modified to extent that it could be interpreted as requiring husband to support children after they obtained majority or were otherwise capable of self-support, or to confer benefit on wife in addition to her right to alimony).

To construe this agreement as she now contends would be to recognize in her a right to insurance on his life even after she has remarried and their children have become adults. That interpretation would be contrary to section 627.405. It would turn this accord into a War of the Roses pact, giving her the means and the motive to profit from his demise long after any obligation of support had ended. We should not ignore the possibilities for misadventure and the intensified feelings that afflict many divorced former spouses. The implications of her proposed interpretation are too patent to require elaboration.

Thus in light of the clear public policies set forth in the statutes above, even if I thought there were some ambiguity in the insurance provision — and I am confident there is none — I should feel obligated to construe any lack of clarity against allowing her to force him to yield to continuing insurance on his life after all obligations of support have ended. To send this case back to resolve such an ambiguity is to imply the possibility of allowing enforcement when the purpose for it has ended and without an insurable interest. That cannot be right.

      . War of the Roses (1989), directed by Danny DeVito, screenplay by Michael Leeson, starring Michael Douglas and Kathleen Turner. The darkly humorous plot suggests that only with extreme measures may divorce be survivable.


author: MONACO, J.

text:
    Tommie M. SEWARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2359.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.

      Tommie M. Seward, East Palatka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Tommie M. Seward seeks relief pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, arguing that his convictions of sale of cocaine, possession of cocaine with intent to sell or deliver, sale of cocaine and possession of cocaine violate the principles of double jeopardy. The trial court denied relief. We do so as well.

Mr. Seward’s motion for post-conviction relief constitutes an attack on his judgments of conviction, not an attack on his sentences. Moreover, he raises factual issues that are not determinable on the face of the judgment. His argument, therefore, is not cognizable in a rule 3.800(a) proceeding. See Smith v. State, 886 So.2d 336 (Fla. 5th DCA), cause dismissed, 902 So.2d 792 (Fla.2004).

Finally, as to the convictions for sale of cocaine and possession or possession with intent to sell or deliver, we have previously held on the basis of State v. McCloud, 577 So.2d 939 (Fla.1991), that double jeopardy is not offended by convictions for both. See McMullen v. State, 876 So.2d 589 (Fla. 5th DCA 2004).

Accordingly, we affirm.

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.


text:
    Tina WINBUSH, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2059.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2006.

      Nancy A. Daniels, Public Defender; Judith Hall and David P. Gauldin, Assistant Public Defenders, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order revoking the probation of appellant, Tina Winbush. The trial court determined that appellant had violated a special condition of her probation by willfully failing to successfully complete or remain in a drug/alcohol residential treatment program until the provider determined that residential treatment was no longer necessary. We affirm in part, reverse in part, and remand the case for further consistent proceedings.

Appellant first complains that the trial court erred in revoking her probation because the evidence the state presented was based solely on hearsay. We do not agree. Although the rule is clear that a probation-violation order cannot be supported solely by hearsay, see Garey v. State, 747 So.2d 478 (Fla. 1st DCA 2000), the rule is equally clear that such an order may be appropriately grounded on a combination of both hearsay and non-hearsay evidence. See Lacey v. State, 831 So.2d 1267, 1269 (Fla. 4th DCA 2002). In the instant case, while the director of the residential treatment center testified from records maintained by the facility, her testimony in such regard constitutes hearsay because she acknowledged she was not the records custodian. The court’s admission of such testimony does not, however, require reversal of the order in that it was otherwise supported by competent, non-hearsay testimony from appellant’s probation officer who stated that on October 18, 2004, she again specifically instructed appellant with regard to the rules of the program and that failure to comply with the rules could result in a violation of her probation.

We agree, however, that the trial court erred in not allowing the defense to proffer evidence regarding appellant’s competence in understanding the instructions given her that were necessary for her compliance with the special condition of probation. The rule is clear that a trial court errs in denying a request to proffer testimony that is reasonably related to the issues at trial. Wood v. State, 654 So.2d 218, 220 (Fla. 1st DCA 1995). Such refusal, moreover, is deemed reversible error unless the state can show the error was harmless beyond a reasonable doubt. See Pender v. State, 432 So.2d 800 (Fla. 1st DCA 1983).

In the case at bar, the state concedes the trial court “probably” should have allowed the proffer of the testimony of defense witness Gary Watson, a person who had long known appellant, but argues the error was harmless. We cannot agree. In response to defense counsel’s argument that Watson would testify about appellant’s mental capacity to understand and to conform her conduct to the rules of the treatment program, which was relevant to the willfulness of the charged violation, the trial court replied that appellant’s competency had been established by a psychological evaluation performed by a court-appointed expert witness, and, because the proffered testimony was from a lay witness, rather than an expert, the proffer would not be allowed. In this regard, the court abused its discretion.

“It is a well established principle of law in this state that an otherwise qualified witness who is not a medical expert can testify about a person’s mental condition, provided the testimony is based on personal knowledge or observation.” Rivers v. State, 458 So.2d 762, 765 (Fla.1984). Moreover, “witnesses who have known and observed a defendant over an extended period of time may also be competent to testify as to their nonexpert opinion on the defendant’s sanity.” Garron v. State, 528 So.2d 353, 357, n. 3 (Fla.1988). Appellant argues that Mr. Watson would have been prepared to testify that appellant could not read, is mentally slow, and had been placed in special education classes.

In our judgment, the trial court’s exclusion of evidence relevant to appellant’s mental capacity cannot be deemed harmless error. The purpose of such evidence related to the defense that appellant did not willfully violate the special condition of her probation requiring her successful completion of a residential program, because she lacked the mental capacity to comprehend and process the instructions given her. In that the trial court’s exclusion of the proffered testimony was, under the circumstances, harmful, the order of revocation of probation is REVERSED, and the case is REMANDED with directions that a new probation hearing be conducted at which the proffered testimony shall be permitted.

KAHN, C.J., ERVIN and VAN NORTWICK, JJ., concur.