author: BENTON, J.

text:
    Christopher BESSEY, Appellant, v. Frances DIFILIPPO and Jo Difilippo, Appellees.
    No. 1D06-0774.
    District Court of Appeal of Florida, First District.
    March 16, 2007.
    James H. Daniel, Jacksonville, for Appellant.
    Gail A. Stafford of the Law Office of Gail A. Stafford, Jacksonville and Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellees.
   BENTON, J.

Christopher Bessey, plaintiff below, appeals an order awarding him only part of the taxable costs he sought, even though judgment had been entered in his favor in the single-count negligence action he brought against Frances and Jo Difilippo. Section 57.041(1), Florida Statutes (2005), does not authorize reduction or apportionment of costs on grounds that the plaintiff recovered-on the only count sued on-less than all of the damages the complaint prayed for. The statute does not leave the award to the trial court’s discretion, but entitles the party in whose favor judgment is entered to an award of all taxable costs, as a matter of law. See Tacher v. Mathews, 845 So.2d 332, 334 (Fla. 3d DCA 2003) (“The award of these costs is not discretionary.”). Accordingly, we reverse and remand for the award of all taxable costs reasonably and necessarily incurred in prosecuting the lawsuit.

I.

Mr. Bessey sued Jo Difilippo, as the driver, and Frances Difilippo, as the owner, of a car he claimed hit his stopped car from the rear. The complaint alleged that the accident caused bodily injury which resulted in pain and suffering, disability, disfigurement, mental anguish, loss of capacity to enjoy life, hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money in the future, and aggravation of a previously existing condition; and alleged that his injuries and losses were permanent or continuing and that he would suffer losses and impairment in the future. Although the defendants initially denied liability, they admitted negligence on the day before trial, while continuing to “deny that Mr. Bessey suffered a permanent injury as a result of the accident and [to] deny the damages claimed by Mr. Bessey.” The only issues left for the jury to decide were “causation, damages, [and] personal injuries.”

Several doctors who treated Mr. Bessey testified at trial regarding the cause and extent of his injuries, and gave their opinions as to whether any injuries he sustained had permanent effects. Other witnesses testified about the effect injuries attributed to the automobile accident had on Mr. Bessey’s ability to work and on his future earning capacity. Dr. Edward Franco, a radiologist, testified that an MRI revealed that Mr. Bessey had a disc protrusion between the sixth and seventh vertebrae and that the normal, cervical, lordotic curvature was absent, limiting his range of motion and leading to muscle spasms. Dr. Franco testified that the disc protrusion was the result of trauma of the kind an automobile accident might cause.

Dr. Manley Kilgore, a neurologist, testified that he diagnosed Mr. Bessey with post-traumatic headaches, neck and back strains and sprains and neck muscle spasms. He testified that he believed these symptoms were a result of the automobile accident and that Mr. Bessey’s injuries would continue to affect him for the rest of his life. Dr. Kilgore assigned a fifteen per cent permanent impairment rating of the body as a whole. A chiropractor, Dr. Stephen Alexander, also testified that Mr. Bessey suffered from back and neck strains and sprains of a type an accident might cause. He testified that Mr. Bessey’s back problems would continue and could be expected to flare up from time to time for the rest of his life. Dr. Alexander assigned Mr. Bessey a thirteen per cent permanent impairment rating of the body as a whole.

On the other hand, Dr. John Von Thron, the defendants’ independent medical examiner, testified that Mr. Bessey did not appear to have muscle spasms in his neck and that MRI scans and x-ray films disclosed spurring on his neck vertebrae, indicating arthritis. He testified that the automobile accident did not cause the spurring, which had developed gradually over a long period of time, and that arthritic degeneration could cause disc herniation. He testified that he did not believe that Mr. Bessey sustained a permanent injury as a result of the automobile accident and that he did not think the disc protrusion was the cause of Mr. Bessey’s pain in any event. On the basis of this testimony, defense counsel argued that the effects of the accident were minor, and also contended that there were many jobs Mr. Bessey could do that would pay him more than he was making, so that the jury should not award anything for loss of earnings.

II.

The jury returned a verdict awarding Mr. Bessey $14,523.72 for past medical expenses, but found no permanent injury and awarded nothing for future expenses. After the ensuing judgment was affirmed by this court, Bessey v. Difilippo, 932 So.2d 195 (Fla. 1st DCA 2006), Mr. Bessey filed a motion to tax costs pursuant to section 57.041, Florida Statutes (2005), seeking costs in the amount of $29,857.79 as the “party recovering judgment.” Opposing the motion to tax costs, the defendants argued that section 57.041, Florida Statutes, incorporated the “prevailing party” standard, and that Mr. Bessey had not prevailed on the significant issues at trial, which they identified as the permanency of the injury, future medical expenses, future earnings, and future pain and suffering.

After the hearing on the motion to tax costs the court entered an order awarding Mr. Bessey partial costs in the amount of $6,176.78. The trial court ruled that Mr. Bessey “prevailed on the issue of past medical expenses and therefore that the Plaintiff would be entitled to costs if his costs can be tied into that issue,” but also ruled “on the other hand that costs that went to other issues like permanent injury, on those issues the Plaintiff did not prevail and therefore would not be entitled to costs.”

III.

The present case is similar to Liebling v. Fla. Energy Mgmt., Inc., 619 So.2d 441 (Fla. 2d DCA 1993), and a similar result should obtain. In a negligence action stemming from an automobile accident, the jury found for the Liebling plaintiff and awarded $1,237.39 for property damage, while finding that Mr. Liebling did not meet the threshold requirements for any award for bodily injuries. 619 So.2d at 442. Final judgment was entered in his favor for property damage only. See id. On appeal, the court reversed an award of costs to the defendants with directions that the trial court award Mr. Liebling his taxable costs on remand. See id. at 443. “This was a one-count complaint upon which the jury found FEM solely negligent. Even though the jury found that the threshold requirement for bodily injury was not met ... the fact remains that Liebling is the prevailing party in this case and, as such, is entitled to his taxable costs.” Id. (citing section 57.041(1), Florida Statutes (1991), and Hendry Tractor Co. v. Fernandez, 432 So.2d 1315, 1316 (Fla.1983)).

A negligence action also arose out of a car accident in Wright v. Caruana, 640 So.2d 197, 198 (Fla. 3d DCA 1994). The Wright court ruled that the plaintiff should have been awarded her costs pursuant to section 57.041(1), Florida Statutes, because she was “clearly the prevailing party,” although the jury found her fifty per cent liable and the judgment was reduced accordingly. Id. at 198-99. Even under a “prevailing party” standard, therefore, the case law clearly establishes Mr. Bessey’s entitlement to taxable costs in the present case. But “prevailing party” is not the statutory standard for cost awards.

Approving a Third District decision, the Florida Supreme Court ruled that “a plaintiff in a multieount personal injury action who recovers money judgment on at least one but not all counts in the cause of action, is the ‘party recovering judgment’ for purposes of section 57.041(1), Florida Statutes ..., and therefore is entitled to recover costs.” Hendry Tractor Co., 432 So.2d at 1316. Our supreme court stated unequivocally: “The statute expressly demands that the party recovering judgment be awarded costs. This unambiguous language need not be construed. Rather, it should be applied as is to the given situation.” Id. The court noted that the net judgment was in favor of the Fernandezes, that “[a]s a general rule costs follow the outcome of the litigation,” and that the statute should be construed in light of its title, “Costs: recovery from losing party.” Id. (Emphasis supplied.)

It is undisputed that the Fernandezes were granted recovery on their claim of negligence but not on their strict liability/breach of warranty claim. The fact that their recovery could have been more lucrative than it actually was does not, by any stretch of the imagination, render their ultimate monetary judgment of $101,600.00 a losing proposition.

Id. at 1316-17. The court explained that, for Hendry Tractor Company to recover any costs, it logically followed that the Fernandezes would have to be considered losing parties, even though they had recovered a money judgment. Here, too, Mr. Bessey recovered a money judgment and ought not be considered the losing party.

The present case differs dramatically from Folta v. Bolton, 493 So.2d 440 (Fla.1986), where Mr. Folta brought multiple medical malpractice claims against Tarpon Springs Hospital and several of its employees. Id. at 441. The complaint stated five separate, distinct and severable claims against the hospital. “Each claim involved different acts or conduct occurring at different times, by different persons, allegedly agents or servants of the hospital, resulting in different injuries.” Id.

The court understandably concluded that the multiple claims in Folta did not state alternative theories for a single injury, but were instead five, wholly independent claims. “[E]ach claim [wa]s an independent cause of action for which a separate suit could have been maintained.” Id. at 443. Remarking that, if each claim- had been filed and tried separately, Tarpon Springs Hospital would clearly have been entitled to attorney’s fees in each suit in which it prevailed, the court concluded that the result should not be different when the same claims were aggregated into a single suit. See id. The present case is unlike Folta because it involves only one, not multiple, distinct and severable claims. The court’s decision in Folta had to do, moreover, not with costs, but with attorney’s fees. In providing that “[t]he party recovering judgment shall recover all his or her legal costs and charges ...,” section 57.041(1) contemplates full recovery of all taxable costs from the losing party.

IV.

Here, a single count alleged a single tort. When judgment was entered against the Difilippos, Mr. Bessey became the “party recovering judgment,” within the meaning of section 57.041(1), Florida Statutes (2005), and was thus entitled to an award of all taxable costs reasonably and necessarily incurred in maintaining suit.

The order awarding only partial costs is reversed, and the matter is remanded for the award of all taxable costs.

WEBSTER and VAN NORTWICK, JJ., concur.

      . Joseph Perry, an economist, testified to Mr. Bessey's impaired earning capacity as the result of limitations caused by the back injury, explaining his current employment situation and the possible effects on his future earning capacity. William Joseph Gray, a rehabilitation consultant, also testified regarding Mr. Bessey’s various employment options and to his potential loss of income. But an expert witness for the defense, Gilbert Spruance, a vocational evaluator and rehabilitation counselor, testified that he evaluated and interviewed Mr. Bessey and concluded that there were many jobs Mr. Bessey could perform in which he could potentially earn more than he was currently earning.

      . The trial court eventually entered final judgment on June 30, 2005, in the amount of $3,384.60, which was the amount of the jury verdict reduced by the amount of collateral source (personal injury protection) benefits Mr. Bessey received.

      . Because the Liebling plaintiff had turned down a $5001 settlement offer, Florida Energy Management, Inc., filed a motion to tax costs and impose sanctions pursuant to Florida Rule of Civil Procedure 1.442. Liebling v. Fla. Energy Mgmt., Inc., 619 So.2d 441, 442-43 (Fla. 2d DCA 1993). Mr. Liebling filed his own motion to tax costs, pursuant to section 57.041. The trial court granted Florida Energy Management’s motion and awarded it costs, but offset costs Mr. Liebling incurred before the defendants made their offer of settlement. See id. The appellate court reversed the award made pursuant to Rule 1.442.

      . The Wright plaintiff had not accepted a defense settlement offer of $4000, before a trial at which the jury returned a verdict in his favor for only $2040. Wright v. Caruana, 640 So.2d 197, 198 (Fla. 3d DCA 1994). The trial court awarded costs to the defendants because the award was more than twenty-five per cent less than the settlement offer. See id. The appellate court reversed because Mr. Wright had not been given thirty days in which to accept the settlement offer. See id. at 198-99 (citing section 768.79(1)(a), Florida Statutes (Supp.1990), and section 768.79(1)(a), Florida Statutes (Supp.1986)).

      . The prevailing party is determined case by case or, less commonly, count by count (or claim by claim): Our attention has been drawn to no case in which a court has subdivided claims or counts to decide the prevailing party's identity. Under this traditional approach, Mr. Bessey either won or lost on the single count (and claim) he stated. Plainly he won. The jury having found that his injuries were caused by the accident (for which liability had been conceded), he recovered judgment for past medical bills. That he did not recover all of the damages he sought does not negate the fact that he "recover[ed] judgment.” § 57.041(1), Fla. Stat. (2005).

      . While section 57.041(1), Florida Statutes (2005), provides that the "party recovering judgment” is entitled to costs, a party may recover attorney's fees as the “prevailing party,” if statute or contract so provides. See, e.g., Prosperi v.Code, Inc., 626 So.2d 1360, 1362 (Fla.1993); Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). We acknowledge that our supreme court said in obiter dicta: “Although section 57.041 provides for costs to 'the party recovering judgment’ and section 768.56 provides for 'prevailing party' attorney fees, we concede that the same principles should be applied under each provision.” Folta v. Bolton, 493 So.2d 440, 442 (Fla.1986). The court was deciding entitlement to attorney's fees, however, and no question concerning costs was before it. As to costs, our supreme court held in Hendry Tractor Co. v. Fernandez, 432 So.2d 1315, 1316 (Fla.1983): “The statute expressly demands that the party recovering judgment be awarded costs. This unambiguous language need not be construed.” See generally Puryear v. State, 810 So.2d 901, 905 (Fla.2002) ("[Tjhis Court does not intentionally overrule itself sub silentio.”). See also State v. Jett, 626 So.2d 691, 693 (Fla.1993) (“[Ujnambiguous [statutory] language is not subject to judicial construction....”).
      It is also true that some district courts have applied the "prevailing party” standard to costs as well as attorney's fees. See Granoff v. Seidle, 915 So.2d 674, 677 (Fla. 5th DCA 2005) (“This court ... has stated that '[t]he 'party recovering judgment’ under section 57.041, and the ‘prevailing party’ under section 57.105 are governed under the same principles.' ”) (quoting Hall v. Humana Hosp. Daytona Beach, 733 So.2d 596, 597 n. 3 (Fla. 5th DCA 1999)); Spring Lake Improvement Dist. v. Tyrrell, 868 So.2d 656, 658 (Fla. 2d DCA 2004) ("Costs under [section 57.041] are governed by the 'prevailing party' standard as articulated in Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992).”). We conclude, however, that these decisions cannot be squared with Hendry Tractor Co. and decline to follow them. We certify conflict with Granoff and Spring Lake Improvement Dist.

      . Mr. Fernandez, injured in an accident involving a Hendry Tractor post hole digger, brought a personal injury action, together with his wife, against Hendry Tractor Company and, under Florida’s alternative pleading rules, stated alternative causes of action for the same injuries in two counts: breach of warranty (strict liability) and negligence. Hendry Tractor Co., 432 So.2d at 1315. The jury found Hendry Tractor Company liable on the negligence count, but not liable on the strict liability count, and a final judgment was entered in the Fernandezes’ favor. The trial court awarded a portion of the costs to the Fernandezes and awarded a portion of the costs (those related to the breach of warranty (strict liability) count) to Hendry Tractor Company, then offset the awards. The Fer-nandezes appealed. See id. at 1315-16.
      The Third District reversed, holding that the Fernandezes alone were entitled to costs, and certifying a question of great public importance. In these circumstances, the Florida Supreme Court agreed that parties who were awarded judgment on only one of two counts were entitled to recover taxable costs under section 57.041, Florida Statutes. See id. at 1316.

      . Tarpon Springs Hospital prevailed on three and possibly four of the claims. See Folta, 493 So.2d at 441. Mr. Folta sought attorney's fees under section 768.56, Florida Statutes, which provides for an award of fees to the prevailing party in a medical malpractice action. He argued that he was the prevailing party because he had prevailed on at least one of the five claims, but the trial court ruled that he was not entitled to an award of attorney’s fees. See id. at 442. The Florida Supreme Court held:
      [I]n a multicount medical malpractice action, where each claim is separate and distinct and would support an independent action, as opposed to being an alternative theory of liability for the same wrong, the prevailing party on each distinct claim is entitled to an award of attorney’s fees for those fees generated in connection with that claim. We reach this conclusion after considering the instant case in light of our decision in Hendry Tractor Co. v. Fernandez, 432 So.2d 1315 (Fla.1983).

        Id. The court acknowledged that, in Hendry Tractor Co., it had held that a plaintiff in a multicount personal injury action who prevailed on one theory of liability, but lost on another, was entitled to recover costs pursuant to section 57.041. But the court rejected Mr. Folia’s reliance on Hendry Tractor Co. as misplaced, explaining that Folta was distinguishable because, inter alia, the plaintiff in Hendry Tractor Co. had pleaded two different theories of liability for injuries that arose out of a single set of circumstances, as permitted by Florida's alternative pleading rule, theories that complemented each other and were best presented together. See id. at 442-43.

      . The court below denied some costs on the ground that they were not recoverable under the Uniform Guidelines for Taxation of Costs in Civil Actions. See In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So.2d 612, 616-17 (Fla.2005). On remand, the court need not revisit these rulings, which were not appealed. See Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 915 & n. 2 (Fla.2001) (explaining that ’’[t]he general rule is that only taxable costs are to be included in any cost judgment,” and ”[t]he Uniform Guidelines for Taxation of Costs in Civil Actions are used in assessing ... costs under chapter 57”).


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Jose Alfredo GUARDIOLA, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4492.
    District Court of Appeal of Florida, Second District.
    March 16, 2007.

      Rudolph C. Campbell, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

This appeal proceeds pursuant to our decision in Guardiola v. State, 884 So.2d 140 (Fla. 2d DCA 2004) (Guardiola I), in which we granted Jose Guardiola a new appeal of his judgment and sentence for aggravated battery with a firearm due to ineffective assistance of appellate counsel in his initial appeal. In this new appeal, Guardiola presents two issues: (1) that the trial court erred in failing to instruct the jury on excusable and justifiable homicide and (2) that the trial court erred in denying Guardiola’s Apprendi challenge to his sentence. Because we find no merit in either issue, we affirm.

Guardiola was originally charged with attempted murder in the second degree, aggravated assault, and shooting into an occupied vehicle. Following a trial, the jury found Guardiola guilty of aggravated battery with a firearm (a lesser-included offense of the attempted murder charge) and the remaining two offenses (as charged). His direct appeal was affirmed by this court. Guardiola v. State, 837 So.2d 976 (Fla. 2d DCA 2002) (table decision). He then filed a petition alleging that his appellate counsel was ineffective for failing to argue error when the trial court did not instruct on excusable and justifiable homicide. This court denied in part and granted in part the relief sought. Guardiola I, 884 So.2d at 142.

Specifically, this court authorized a new appeal of the aggravated battery with a firearm conviction. Id. at 141. The court determined that appellate counsel’s failure to “raise the issue that the trial court committed fundamental error in failing to instruct the jury on the definitions of excusable and justifiable homicide ... constituted deficient performance that undermined confidence in the correctness and fairness of the result of the appeal.” Id. This court emphasized that “our decision to permit Mr. Guardiola to file a new notice of appeal is no guaranty that we will ultimately determine that he is entitled to relief. Whether this case is controlled by Damoulakis [v. State, 814 So.2d 1204 (Fla. 2d DCA 2002),] or whether this court should recede from Damoulakis are issues that we can consider at a later time.” Id. Upon consideration of this issue, we conclude that Damoulakis does not support reversal of Guardiola’s conviction on direct appeal.

In Damoulakis the jury was instructed on, among other things, attempted manslaughter, a third-degree felony, as a lesser of attempted second-degree murder with a deadly weapon. 814 So.2d at 1205-06. The defendant was convicted of aggravated battery as a lesser, a second-degree felony, which is a greater offense than the attempted manslaughter. Id. at 1206. In Guardiola’s trial, however, the jury was instructed only on attempted second-degree murder and aggravated battery as a lesser. The verdict form did not include attempted manslaughter. Because attempted manslaughter was not given as a lesser in Guardiola’s case, the Damoulakis opinion is not applicable.

Guardiola also contends that the trial court erred by denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Based on Guardiola’s use of a firearm, Guardiola’s sentence was enhanced to twenty-five years in prison. His motion alleged that the sentence was erroneous because it was enhanced based on a fact not presented to the jury, contrary to the holding of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”). The verdict form listed three interrogatories regarding the firearm use. The jury specifically found that Guardiola possessed and discharged a firearm during the commission of the aggravated battery.

Accordingly, we affirm Guardiola’s judgment and sentence for aggravated battery with a firearm.

Judgment and sentence affirmed.

FULMER, C.J., and WALLACE, J., Concur.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Guardiola acknowledges that the trial court did not instruct on attempted voluntary manslaughter and argues error in this regard. At trial, Guardiola’s counsel was asked if he was requesting any additional lessers and he responded, “No, Judge.” Therefore, the record reflects that the attempted manslaughter instruction was not requested, and we conclude that the trial court did not commit fundamental error in failing to give it.


author: PER CURIAM.

text:
    B.H., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3746.
    District Court of Appeal of Florida, First District.
    March 21, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The juvenile appellant challenges adjudications of delinquency for loitering and prowling, fraudulent use of a credit card, criminal use of personal identification information, grand theft, possession of cannabis, and possession of paraphernalia. We reverse all adjudications except those for the last two of these offenses.

We agree with the appellant’s argument that there was an insufficient evidentiary basis for the adjudication for loitering and prowling. See B.A.O. v. State, 932 So.2d 301 (Fla. 2d DCA 2006); C.H.S. v. State, 795 So.2d 1087 (Fla. 2d DCA 2001). We likewise agree that, when alerted to the possibility that the state had committed a discovery violation potentially affecting the prosecutions for fraudulent use of a credit card, criminal use of personal identification information, and grand theft, the trial court erred by failing to conduct an inquiry pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971). A thorough review of the record fails to demonstrate that the Richardson error was harmless beyond a reasonable doubt. Because the appellant’s remaining arguments on appeal are without merit, the delinquency adjudications for possession of cannabis and possession of paraphernalia are affirmed, but the other adjudications are reversed.

ALLEN, KAHN, and DAVIS, JJ., concur.


text:
    GREEN TREE SERVICING, LLC, f/k/a Conseco Finance Servicing Corporation, Appellant, v. Barbara GENAUX and the Unknown Tenants in Possession, Appellee.
    No. 1D07-0288.
    District Court of Appeal of Florida, First District.
    March 21, 2007.
    Donna S. Biggins of Penson & Padgett, P.A., Tallahassee, for Appellant.
    Kris B. Robinson, Lake City, for Appel-lee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order dated February 16, 2007, this appeal is hereby DISMISSED as premature. The instant order merely denied a motion for summary judgment, which is not an appeal-able final order. Better Government Ass’n of Sarasota County, Inc. v. State, 802 So.2d 414, 415 (Fla. 2d DCA 2001). The appellant’s motion to relinquish jurisdiction, filed on February 22, 2007, is hereby denied. Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995).

ALLEN, DAVIS, and BENTON, JJ., concur.


author: SUAREZ, J.

text:
    INSTRUMENTACION, LTDA., Appellant, v. PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, Appellee.
    No. 3D06-3098.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.

      Rasco Reininger Perez Esquenazi & Vigil and Steve Reininger, Coral Gables, for appellant.
    Morgan, Lewis & Bockius and Robert Brochin, Miami, for appellee.
    Before COPE, C.J., and SUAREZ and LAGOA, JJ.
   SUAREZ, J.

Instrumentación, Ltda. (“Instrumenta-ción”) appeals an order denying its motion to dismiss Philips Electronics North America Corporation’s (“Philips”) suit for lack of personal jurisdiction. We reverse and remand for a limited evidentiary hearing.

Instrumentación contends that the trial court should have dismissed Philips’ suit because Florida courts lack personal jurisdiction over the foreign company. Philips asserts jurisdiction exists under Florida’s long-arm statute and a forum selection clause that requires the parties to resolve their disputes in Miami courts.

Instrumentación, a Colombian company, and Philips’ predecessor Hewlett Packard (“HP”), located in Miami, entered into a distribution Agreement (the “Agreement”) for the resale of HP products in Colombia in 1999. The Agreement contains a forum selection clause requiring that any lawsuit regarding any claim or dispute arising out of the Agreement or any other claim must be brought exclusively in Miami-Dade County courts and governed by Florida law. In October, 2001, Instrumentación sued Philips in Colombia regarding the parties’ commercial agency relationship under contracts between 1965 and 2000. While that suit was still pending, Philips filed the instant suit against Instrumenta-ción in September, 2005, for breach of contract and declaratory judgment in Miami-Dade County circuit court. Philips alleges Instrumentación breached the Agreement by filing suit in Colombia and seeks declaratory judgment regarding the agency relationship between the parties. Instrumentación filed a motion to dismiss for lack of personal jurisdiction, arguing: 1) Florida’s long-arm statute does not apply; 2) Instrumentación has insufficient minimum contacts with Florida; and 3) the Agreement’s forum selection clause is unenforceable. The trial court denied the motion to dismiss following legal argument.

A plaintiff initially bears the burden of pleading facts to satisfy Florida’s long-arm statute. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). The burden then shifts to the defendant to contest the complaint’s jurisdictional allegations, or to claim that there are insufficient federal minimum contacts by way of affidavit or other sworn proof. Venetian, 554 So.2d at 502. If the sworn proof properly contests the jurisdictional facts, the burden shifts back to the plaintiff to refute the defendant’s evidence through its own affidavit or other sworn proof. Venetian, 554 So.2d at 502. A court may resolve the jurisdictional issue based on the affidavits so long as the affidavits can be harmonized. However, if the affidavits conflict, the trial court must conduct an evidentiary hearing to resolve the disputed facts. Venetian, 554 So.2d at 503. Personal jurisdiction over a foreign corporation is reviewed de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000).

In its complaint, Philips asserts jurisdiction over Instrumentación in Florida on three bases: (1) Instrumentación is engaged in substantial, non-isolated activity-in Florida, (2) Instrumentación breached a contract in Florida by failing to perform acts required by the contract to be performed here, and/or (3) Instrumentación contractually agreed to submit itself to the jurisdiction of Florida courts as provided in the Agreement’s forum selection clause. Instrumentación supported its motion to dismiss for lack of personal jurisdiction with affidavits including that of its general manager, Rafael Eduardo Camacho. Camacho’s affidavit states that Instrumentacion’s principal place of business is Colombia, that it does not operate, conduct, engage in or carry on business ventures in Florida, and that it has never entered into a contract with anyone, including Philips, requiring it to perform any acts in Florida. Philips countered with an affidavit of Gabriel Buigas, HP’s Vice-President and Deputy General Counsel. According to Buigas, resellers’ sales/management teams attended meetings in Florida for training and planning with HP. HP conducted other management activities in Florida under the Agreement, including accepting purchase orders, issuing invoices, and credit and collection efforts. Buigas states that In-strumentación was aware it was negotiating and conducting business transactions through HP’s Miami office, and that the relationship involved numerous routine contacts with HP’s Miami office.

Philips and Instrumentación have presented conflicting sworn statements regarding their business relationship and In-strumentacion’s contacts with Florida. It was, therefore, incumbent on the trial court to hold an evidentiary hearing to resolve these factual disputes before reaching a determination regarding its personal jurisdiction over Instrumentación. Therefore, we reverse and remand for a limited evidentiary hearing on whether the court may exercise personal jurisdiction over Instrumentación. Belz Investco Ltd. P’ship v. Groupo Immobiliano Cababie, S.A., 721 So.2d 787 (Fla. 3d DCA 1998).

Reversed and remanded with directions.


author: WARNER, J.

text:
    Leaita NASH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4057.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2007.
    Rehearing Denied April 18, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

In appealing her conviction for trafficking in cocaine, appellant contends that the trial court fundamentally erred in reading a jury instruction which left out the word “knowingly” in instructing the jury on trafficking in cocaine when knowledge was an element of the crime. Under the circumstances of this case, we conclude that fundamental error occurred and reverse for a new trial on the trafficking charge but affirm the convictions for possession of marijuana and possession of drug paraphernalia.

In instructing the jury on trafficking, the court deviated from the standard instruction. The standard instruction reads:

To prove the crime of Trafficking in Cocaine, the State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) knowingly [possessed] a certain substance.
2. The substance was [cocaine] [a mixture containing cocaine].
3. The quantity of the substance involved was 28 grams or more.
4. (Defendant) knew that the substance was [cocaine] [a mixture containing cocaine].

See Fla. Std. Jury Instr. (Crim.) 25.10 (emphasis added).

In this case, the trial court instructed the jury as follows:

To prove the crime of Trafficking in Cocaine, the State must prove the following four elements beyond a reasonable doubt:
1. LEAITA NASH possessed a certain substance.
2. The substance was cocaine or a mixture containing cocaine.
3. The quantity of the substance involved was 28 grams or more.
4. LEAITA NASH knew that the substance was cocaine or a mixture containing cocaine.

This same instruction was also submitted to the jury in writing. After being so instructed, the jury found Nash guilty of trafficking in cocaine, as well as the remaining charges. From her conviction and sentence, Nash appeals.

On appeal, Nash argues that the trial court fundamentally erred by leaving the word “knowingly” out of the standard jury instructions on trafficking and instead merely instructing the jury that the element was “Leaita Nash possessed a certain substance.” Nash maintains that this instruction violated the principle set forth in Garcia v. State, 901 So.2d 788, 793 (Fla.2005), wherein our supreme court stated “[t]he guilty knowledge element includes knowledge of both the presence of, and the illicit nature of, the substance possessed, and the jury should be instructed on both.”

The failure to give a jury instruction on an element of a crime is fundamental error if the element was disputed at trial. Garcia, 901 So.2d at 793 (Fla.2005); Reed v. State, 837 So.2d 366, 369 (Fla.2002). Conversely, “[flailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” State v. Delva, 575 So.2d 643, 645 (Fla.1991).

In Garcia, the defendant was acquitted of trafficking but convicted of the lesser-included offense of possession. The defendant did not object to the failure to include the element of “knowledge of the illicit nature of the substance” in the jury instruction on the lesser-included offense of possession. 901 So.2d at 790. After discussing the historical evolution of the law regarding knowledge in drug possession cases, the court held that “[w]hen an essential element of a crime is in dispute at trial, such as the knowledge of the illicit nature of the substance in a possession case, the failure to instruct the jury on that element is fundamental error.” Id. at 793. The Garcia court provided the following rationale for its holding:

When read together, [State v.] Medlin, [273 So.2d 394 (Fla.1973) ] Chicone, and Scott [v. State, 808 So.2d 166 (Fla.2002)] stand for the proposition that “guilty knowledge” is an element of the offense of possession and must be proven beyond a reasonable doubt. The guilty knowledge element includes knowledge of both the presence of, and the illicit nature of, the substance possessed, and the jury should be instructed on both.

Id. at 793 (emphasis in original). Thus, Garcia made clear that a defendant had to knowingly possess the substance as well as have knowledge of its illicit nature.

The trafficking statute itself makes knowledge of the possession an element of the crime. Section 893.135(1)(b)1., Florida Statutes, provides that a person “who is knowingly in actual or constructive possession of’ the prescribed amount of cocaine is guilty of a first degree felony (emphasis added). This is different than the statute governing possession offenses which do not amount to trafficking, which provides that “it is unlawful for any person to ... possess” the proscribed drugs. See, e.g., § 893.13(1)(a), Fla. Stat. Thus, the Legislature has made guilty knowledge of possession an element of the crime of trafficking. Even the statutory overruling of Chicone v. State, 684 So.2d 736 (Fla.1996), in section 893.101, went only to the element of knowledge of the illicit nature of the substance, not knowledge of its possession.

In this case, the instruction given to the jury, which did not instruct on knowledge of possession, is fundamental error under Garcia. Nash’s knowledge of the presence of the cocaine, in particular, was hotly disputed. Furthermore, we reject the state’s argument that other parts of the instruction prevent this error from constituting fundamental error.

Because the trial court failed to instruct the jury that the state was required to prove that Nash knowingly possessed the cocaine, the instruction was fundamental error. We therefore reverse and remand for a new trial.

Reversed and remanded.

STEVENSON, C.J., and TAYLOR, J. concur.

      . The precise holding of Garcia is limited to cases tried before the effective date of section 893.101, Florida Statutes. See Garcia, 901 So.2d at 793 n. 2.


text:
    OMNI NATIONAL BANK, Appellant, v. GEORGIA BANKING COMPANY, Cash Out Mortgage Corp., d/b/a Florida Bancorp, a Florida corporation and Colonial Bank, N.A., a national banking association., Appellees.
    No. 3D06-1334.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.
    Carlton Fields and Nancy C. Ciampa and Niall McLachlan, Miami, for appellant.
    Phillips, Cantor & Berlowitz and Jeffrey B. Shalek and Gary S. Phillips, Hollywood, for appellees.
    Before COPE, C.J., SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Defendant, Omni National Bank (“Omni”), appeals from an order denying its motion to intervene in the action filed by Georgia Bank Company (“GBC”) against Cash Out Mortgage Corp. (“Cash Out”) and Colonial Bank, N.A. (“Colonial”) and from the default judgment entered in favor of GBC against Cash Out. We reverse and remand.

Cash Out was in the business of locating individuals needing to borrow money to purchase real property and matching them with lending institutions willing to lend money. GBC filed suit against Cash Out alleging that, between May, 2005 and October, 2005, Cash Out defrauded GBC and stole over $900,000, which GBC claims was transferred into one or more Cash Out accounts at Colonial. GBC sought to impose a constructive trust and obtain a temporary injunction, which was granted. The court froze the Cash Out account.

Omni, another lending institution, moved to intervene also claiming ownership to the Cash Out funds at Colonial. In its Motion to Intervene, Omni alleged that Cash Out fraudulently obtained advances of more than a million dollars from Omni and diverted that money to the Cash Out account in question. The trial court denied Omni’s motion to intervene, granted a default judgment in GBC’s favor, and directed Colonial to deliver the funds to GBC. This appeal follows.

“[AJnyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” Fla. R. Civ. P. 1.230. In order for a party to intervene, its interest “must be in the matter in litigation, and of such a direct and immediate character that the interve-nor will either gain or lose by the direct legal operation and effect of the judgment.” Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla.1992). The intervenor must accept the record and pleadings as they exist in the litigation and the intervenor may not raise any new issues. Nat’l Wildlife Fed’n, Inc. v. Glisson, 531 So.2d 996, 998 (Fla. 1st DCA 1988) (citing Williams v. Nussbaum, 419 So.2d 715 (Fla. 1st DCA 1982)); see also Coast Cities Coaches, Inc. v. Dade County, 178 So.2d 703 (Fla.1965).

Omni accepted the pleadings as they existed and did not attempt to raise any new or competing claims in the litigation. The existing issue was ownership over the money in the Colonial account. Omni asserted that it was defrauded by Cash Out and claims that the money in the account belongs to Omni as it is money diverted by Cash Out from Omni. Riviera Club v. Belle Mead Dev. Corp., 141 Fla. 538, 194 So. 783 (1940)(intervenor cannot raise any new claims but must argue how the issues before the court relate to the intervenor); United States v. State, 179 So.2d 890, 893 (Fla. 3d DCA 1965)(an in-tervenor cannot contest the plaintiffs claim but may assert the intervenor’s right to the property in question). Therefore, Omni has timely and properly brought this motion to intervene. We reverse the trial court’s order and remand.

We also reverse the default judgment entered by the trial court. The default judgment was entered subsequent to the trial court’s denial of Omni’s rightful motion to intervene and to participate in the litigation.

Reversed and remanded.


author: STONE, J.

text:
    Daniel BATISTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4315.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2007.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

The issue on appeal is whether the trial court erred in denying a motion for an evidentiary hearing following the state’s unilateral termination of Batista’s pre-trial intervention (PTI). We affirm.

After Batista was charged, he entered into a deferred prosecution agreement placing him in a PTI program. The terms of the agreement allowed the state attorney, during the period of deferred prosecution, to revoke or modify the conditions of Batista’s deferred prosecution by:

(1) Changing the period of deferred prosecution.

(2) Prosecuting him for this offense if he violated any of these conditions.

(3) Voiding this agreement should it be determined that he had a prior record of adult criminal felony convictions.

The agreement required Batista to submit to random drug testing, maintain his employment, pay his supervision costs, refrain from possessing or carrying weapons, and avoiding drugs and ingesting intoxicants in excess. If Batista complied with all conditions, no criminal prosecution would be instituted for the charged offense. Upon signing the agreement, Batista admitted guilt.

The state’s motivation for revoking Batista’s participation in the PTI program is not disclosed in the record.

Batista sought a “full” evidentiary hearing to require the state to prove that he had “willfully and materially” violated PTI. Batista claimed a right to such a hearing based on principles of due process, the applicable Florida Statute providing for PTI, and principles of contract law. Batista also negotiated a plea with the state, and at the plea hearing, the following exchange occurred:

[DEFENSE COUNSEL]: Now, this was a violation of PTI.[] Our office just filed a motion for evidentiary hearing on the violation; we also have a resolution of the case, but I would like to ask that the motion be heard by the court to see if he willfully and substantially violated this PTI.
THE COURT: ... I don’t do these here....
THE COURT: ... [Recognized that another judge] granted evidentiary hearings to force the State to prove their basis for a PTI violation.
[DEFENSE COUNSEL] Yes, sir.
THE COURT: I, in fact, do not believe that you’re entitled to one.

Following rejection of his motion, Batista accepted the plea agreement, adding that he would like to reserve the right to appeal the denial of his motion, to which the trial court responded, “okay.”

We recognize that denial of a hearing on a matter concerning termination of pre-trial intervention is not a dispositive order and, thus, not appealable under Florida Rule of Appellate Procedure 9.140(b)(2) (A)(i).

As this court recognized in Pena v. State, 913 So.2d 1203, 1204 (Fla. 4th DCA 2005),

In this context, an “issue is legally dis-positive ‘only if, regardless of whether the appellate court affirms or reverses the lower court’s decision, there will be no trial of the case.’ ” Levine v. State, 788 So.2d 379, 380 (Fla. 4th DCA 2001) (quoting Zambuto v. State, 731 So.2d 46, 46 (Fla. 4th DCA 1999)).
[T]he denial of the motion to participate in Drug Court is not a legally dispositive order to the extent necessary to confer jurisdiction in this court. Even if this court reversed and remanded for the court to grant Pena’s entry into the program, a trial may still yet be necessary if, for some reason, Pena opts out of the program and re-enters the regular criminal justice system. See generally Mullin v. Jenne, 890 So.2d 543 (Fla. 4th DCA 2005). There is no great expectation or guarantee that reversal would absolutely foreclose the possibility of a future trial on this specific charge.

Here, it cannot be said that reversal would result in dismissal of the charges or require a conclusion that the state could not prevail at trial. Rather, the sole result would be a hearing at which the state might well demonstrate, by whatever standard is deemed applicable, that there was a reason for its revocation. There is nothing in this record, or even a claim, to the contrary. We also note that this is not a case in which the state and court agree that the issue is dispositive.

Nevertheless, as the trial court authorized the reservation of the right to appeal, and, as we noted in Pena, since courts may not be in agreement as to the jurisdiction issue, and as it may be reviewable by petition, we address the merits.

PTI programs are a creation of the legislature. State v. Board, 565 So.2d 880, 881 (Fla. 5th DCA 1990). Section 948.08, Florida Statutes, allows certain first offenders or persons convicted of not more than one non-violent misdemeanor or third-degree felony to be placed in PTI. There are two types of diversionary programs; the first excludes drug and prostitution crimes, and the second concerns those charged with drug, prostitution and other related offenses. Batista was entered into the first type of PTI program, notwithstanding that one of his charges was drug possession.

The Florida statute clearly grants the state attorney the right to make a final determination as to whether the prosecution will continue. § 948.08(5)(c), Fla. Stat. (2004). We reject Batista’s due process claims, which rely primarily on out-of-state opinions, most of which arise under other circumstances, such as those involving violations of probation or parole, or rely on the specific wording of PTI statutes different from that found in Florida’s.

The Florida Supreme Court has recognized that a decision regarding admission to a PTI program is at the sole discretion of the state, is a prosecutorial function, and is non-reviewable. Cleveland v. State, 417 So.2d 653, 653 (Fla.1982). In Virgo v. State, 675 So.2d 994 (Fla. 3d DCA 1996), the Third District held that termination from such a program is also non-reviewable.

In State v. Rubel, 647 So.2d 995 (Fla. 2d DCA 1994), the Second District reversed a trial court’s dismissal of charges against a defendant after his termination from a PTI program. There, however, Rubel knew why the state terminated his participation in the program.

In Board, the Fifth District held that the trial court’s grant of specific performance resulting in reinstatement of a defendant to pre-trial intervention status was outside its authority. 565 So.2d at 881. There, the court recognized that the statute, section 948.08, explicitly recognizes the state’s right to determine whether to resume prosecution of the charges against a defendant.

Batista argues that the state attorney has waived its right to unfettered discretion by agreeing to the PTI terms. It is undisputed that “[a] plea agreement is a contract and the rules of contract law are applicable to plea agreements.” Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998). Likewise, a “PTI agreement is in the nature of a contract.” State v. Dempsey, 916 So.2d 856, 859 (Fla. 2d DCA 2005). See also U.S. v. Hicks, 693 F.2d 32, 33 (5th Cir.1982).

We have recognized, with regard to enforcing plea agreements, “[wjhen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Spencer v. State, 623 So.2d 1211, 1213 (Fla. 4th DCA 1993)(citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)); see also State v. Vixamar, 687 So.2d 300 (Fla. 4th DCA 1997).

Here, although the state says Batista breached the PTI terms, the nature of the breach does not appear in the record. However, we note that at no time, either before the trial court or this court, has Batista asserted that he did not breach PTI terms.

We can discern no basis in the statutory scheme, or in the PTI agreement, to require that every time the state elects to terminate PTI and resume prosecution, the state has the burden of proof to prove, in an evidentiary hearing, that its reasons for electing to terminate PTI are valid.

Rather, the statute explicitly recognizes the state’s discretion and, unlike in drug PTI, judicial involvement in the decision to admit or to terminate is patently not contemplated by the statute.

We also cannot ignore the state’s argument that forcing the state to prove that the defendant committed a willful, material, and substantial breach at an evidentiary hearing, would all but certainly discourage prosecutors from offering PTI to otherwise eligible offenders. This in turn would no doubt burden an already overloaded criminal docket.

We also note that a trial court may have authority, to insure fundamental fairness, to require the state to explain its decision to terminate PTI where a defendant states, under oath, that there has been no violation of PTI terms. However, we do not reach that issue, as it is not before us.

We certify conflict with State v. Gorayeb, 510 So.2d 1168 (Fla. 3d DCA 1987) (reversing for hearing to determine whether the defendant breached PTI).

Therefore, the judgment and sentence are affirmed.

SHAHOOD and HAZOURI, JJ., concur.

      . Other than this statement, the record is silent as to why Batista’s PTI agreement was terminated.

      . Were there such a requirement, also missing is an indication of what standard to apply: beyond doubt, preponderance, satisfy conscience of court, a scintilla, clear and convincing. Given the clear degree of discretion involved, it would seem that any reason would be sufficient. See Hicks, 693 F.2d at 34.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. Belkis MOLINA, Appellee.
    No. 3D06-156.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.

      Anthony C. Musto, Fort Lauderdale, for appellant.
    Roberta Fulton Fox and Myron M. Gold, Miami, for appellee.
    Before COPE, C.J., and GREEN and LAGOA, JJ.
   PER CURIAM.

The Department of Children and Families (the “Department”) appeals an order of the Public Employees Relations Commission which directed that appellee Belkis Molina be reinstated to her position as family services counselor for the Department. We affirm based on our conclusion that the order is supported by competent substantial evidence. See Glenn v. Dep’t of Prof'l Reg., 410 So.2d 935 (Fla. 3d DCA 1982); § 120.68(10), Fla. Stat. (2006).

“When an agency terminates the employment of a career service employee on certain stated grounds, the agency must affirmatively prove the essence of the allegations by a preponderance of the evidence.” Dep’t of Agric. & Consumer Servs. v. Edwards, 654 So.2d 628, 631 (Fla. 1st DCA 1995) (citation omitted). In this case the hearing officer found that the agency’s proof fell short. We are not permitted to re-weigh the evidence. Glenn, 410 So.2d at 935.

Affirmed.


text:
    T.L., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-2040.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.
    Kevin Coyle Colbert, Miami, for appellant.
    Hillary S. Kambour; Karla Perkins, Miami, for appellee.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See F.B. v. State, 852 So.2d 226 (Fla.2003); T.P. v. Department of Children and Family Servs., 935 So.2d 621 (Fla. 3d DCA) 2006.


text:
    Terrance RIDGEWAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1817.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.

      Bennett H. Brummer, Public Defender, and Maria E. Lauredo and Colleen B. Ward, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Jill Kramer Traína, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Rogers v. Singletary, 698 So.2d 1178 (Fla.1996); Harris v. State, 687 So.2d 29 (Fla. 5th DCA 1997); Mincey v. State, 684 So.2d 236 (Fla. 1st DCA 1996), cause dismissed, 735 So.2d 1286 (Fla.1999).


text:
    S.B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-2281.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.
    S.B., in proper person.
    Karla Perkins; Hillary Kambour, for ap-pellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Jimenez v. Dep’t of Health & Rehab. Servs., 669 So.2d 340 (Fla. 3d DCA 1996).


text:
    WACHOVIA BANK, Appellant, v. Danny Carl BRANNON, Appellee.
    No. 1D06-5940.
    District Court of Appeal of Florida, First District.
    March 22, 2007.
    Matthew G. Brenner and Gregory S. Slemp of Lowndes, Drosdick, Doster, Kan-tor & Reed, P.A., Orlando, for Appellant.
    David Luther Woodward of The Law Offices of David Luther Woodward, P.A., Pensacola, for Appellee.
   PER CURIAM.

AFFIRMED. See Golden Palm Hospitality, Inc. v. Stearns Bank Nat'l Ass’n, 874 So.2d 1231 (Fla. 5th DCA 2004).

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


author: GRIFFIN, J.

text:
    The LANDING GROUP OF TAMPA, INC., Appellant, v. Stefan R. KIFNER and Tammy Kifner, Appellees.
    No. 5D06-789.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.
    Brett Wadsworth, of Brett Wadsworth, P.A., Tampa, for Appellant.
    Daniel J. Webster, of Daniel J. Webster, P.A., Daytona Beach, for Appellee.
   GRIFFIN, J.

The Landing Group of Tampa, Inc. [“Landing Group”] appeals the trial court’s Second Amended Final Judgment, which found Landing Group liable to Stefan Kif-ner and Tammy Kifner [“Kifners”] for attorney’s fees and costs. We affirm.

In 2003, the Kifners contracted with Landing Group to build a horse barn on their property in Volusia County. The contract price for the construction was $29,869. Additionally, the Kifners asked Landing Group to obtain sealed plans showing the work to be performed, which increased the total contract price to $30,369. In constructing the barn, Landing Group apparently made mistakes that resulted in increased project costs. The relationship between the parties deteriorated and Landing Group walked away from the job site with approximately 5% of the work uncompleted. Landing Group subsequently recorded a lien on the Kif-ners’ property in the amount of $41,123. The Kifners tendered $26,250.00 to Landing Group as payment for the construction services rendered. Landing Group rejected this proposed settlement.

In 2004, the Kifners filed a complaint against Landing Group, in which they brought an action “pursuant to Section [713.31], Florida Statutes, to discharge a willfully exaggerated and fraudulent Claim of Lien and for damages, including punitive damages, court costs, clerk fees and attorney’s fees.” In response, Landing Group filed a counterclaim containing seven counts. The first six of these counts were brought in the alternative and essentially sought $41,320.60 in contract or restitution damages for the construction work that Landing Group had performed. In the seventh count, Landing Group brought an action to foreclose the construction lien it had recorded on the Kifners’ property.

The trial court thereafter issued an order referring the parties to non-binding arbitration. In the arbitration award that was subsequently issued, the Arbitrator found that Landing Group’s “claim of lien is excessive and unjustified and is therefore unenforceable.” The Arbitrator also found that Landing Group was entitled to $30,369 before deducting the setoffs he awarded to the Kifners. The arbitration award rendered a net judgment in favor of Landing Group in the amount of $22,930 and provided that any issue relating to interest, costs and attorneys’ fees would be determined by the judge.

Neither party filed a Motion for Trial de Novo within twenty days following October 3, 2005, the date that the award was served on the parties. On December 20, 2005, the trial court issued an order in which it confirmed the arbitration award, discharged Landing Group’s lien on the Kifners’ property, and retained jurisdiction to consider the Kifners’ motion for an award of attorney’s fees, interest, court costs and entry of final judgment. On about February 14, 2006, the trial court issued a Final Judgment with Instructions to Clerk, in which it said that Landing Group was entitled to recover, “subject to this Court’s further Orders on Attorney’s Fees,” the amount of “$22,930.00, less Plaintiffs Costs of $978.32, for a net Judgment at this time of $21,951.68.” In this order, the court again reserved jurisdiction “for consideration of an award of attorney’s fees and costs to the prevailing party.” (Emphasis omitted).

Subsequently, the trial court found that the Kifners were entitled to $28,090.50 in fees. After setting off from this sum the amount that Landing Group was entitled to recover, the trial court awarded the Kifners a net judgment of $6,138.82. On appeal, Landing Group contends that the award of costs and attorneys’ fees was error because the arbitrator’s award did not specify which party prevailed on each claim.

In Moser v. Barron Chase Securities, Inc., 783 So.2d 231 (Fla.2001), the plaintiff brought a claim against the defendant, which proceeded through arbitration and then to the circuit court for confirmation of the award. On appeal, the issue was whether “the trial court lacked authority to grant attorney’s fees to Moser for successfully prosecuting her claim in arbitration, because the award did not explicitly specify that she prevailed on her statutory claim.” Id. at 233. In coming to its conclusion that the trial court had a sufficient basis from which to award fees, the court said:

We hold today that where a party brings claims in arbitration based upon several theories, one or more of which provide for the recovery of attorney’s fees, the arbitration award must specify the theory under which the claimant prevailed, or otherwise clearly indicate whether the claimant has 'prevailed on a theory that would permit the trial court to award fees.

Moser, 783 So.2d at 236-37 (emphasis added); see also Kesler v. Chatfield Dean & Co., 794 So.2d 577 (Fla.2001); Kirchner v. Interfirst Capital Corp., 732 So.2d 482 (Fla. 5th DCA 1999) (“Although the arbitrator must indicate that the one seeking attorney’s fees prevailed on a cause of action authorizing fees, this indication may be either direct or indirect.”). Here, although the arbitrator failed to expressly tag the prevailing party on the claims that permit an award of fees, the award clearly indicates that the Kifners were the prevailing party.

Landing Group also claims that the trial court’s award of costs and attorney’s fees was improper because the Kifners failed to move for fees within thirty days of the binding decision. The arbitration award was filed on October 3, 2005, and on December 20, 2005, the trial court issued an order, confirming the arbitration award and discharging Landing Group’s lien on the Kifners’ property. On December 16, 2005, the Kifners filed a Motion to Tax Costs and Attorney Fees. Landing Group contends that the expiration of twenty days after entry of the arbitration award, filed October 3, 2005, started the clock on the thirty-day window for filing a fees motion under Florida Rule of Civil Procedure 1.525. We cannot credit this contention.

Under section 44.103(2), Florida Statutes (2006), a court “may refer any contested civil action filed in a circuit or county court to nonbinding arbitration.” If a request for trial de novo is not made within twenty days, “the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court, and for which judgments execution shall issue on request of a party.” § 44.103(5), Fla. Stat. (2006); Fla. R. Civ. P. 1.820(h).

Florida Rule of Civil Procedure 1.525 provides that “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” Fla. R. Civ. P. 1.525 (2006). The traditional test for “determining the finality of an order, judgment, or decree is whether the order in question marks the end of the judicial labor in the case, and nothing further remains to be done by the court to fully effectuate a termination of the cause as between the parties directly affected.” Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983) (citing Hotel Roosevelt Co. v. City of Jacksonville, 192 So.2d 334, 338 (Fla. 1st DCA 1966)); see also Chan v. Brunswick Corp., 388 So.2d 274 (Fla. 4th DCA 1980)(“The pronouncement of a court may be characterized as final and appeal-able if the judicial labor required or permitted to be done has been accomplished.”).

The Kifners point out that Landing Group never argued below that the arbitration award became the judgment, and that, for this reason, the Kifners’ motion for fees and costs was filed too late. The Kifners also urge that Landing Group’s argument that the award became the final judgment is inconsistent with the statutory language specifying that the trial court had the authority to enter orders and judgments as required to carry out the terms of the arbitrator’s decision.

We agree that under Rule 1.525, the trigger for the thirty-day deadline to file a motion for fees and costs is “the judgment.” The arbitration award is not a judgment, as the trial court still must “enter such orders and judgments as are required to carry out the terms of the decision.” § 44.103(5), Fla. Stat. (2006); Fla. R. Civ. P. 1.820(h).

AFFIRMED.

ORFINGER and LAWSON, JJ., concur.

      . The Kifners were not obligated to pay any part of this sum until all work had been completed.

      . The facts of Moser suggest that the arbitration in that case was voluntary and binding. Moser, 783 So.2d at 232. For this reason, Florida's Supreme Court interpreted applicable arbitration code provisions in reaching its decision in Moser. Id. at 233-37. Section 682.02 of Florida Statutes indicates that the code only governs voluntary arbitrations. Separate provisions apply to non-binding, court-ordered arbitration. See § 44.103, Fla. Stat. (2006); Fla. R. Civ. P. 1.820.
      However, despite this distinction, the cited conclusions of law from Moser apply here. The parties in this case never filed a motion for trial de novo, and so the arbitration decision became final and binding on the parties. Thus, it stands to reason that a trial court ruling on fees and costs in light of an award arising from an arbitration that was voluntary and binding is in the same position as a trial court awarding fees and costs in light of a court-ordered arbitration award that has become final, and thus also binding.

      . The 2005 version of Rule 1.525 provided that “[a]ny party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” (Emphasis added). This court interpreted the 2005 version of Rule 1.525 to mean that the thirty-day mark established a deadline for serving motions for attorney's fees and costs, and that motions for attorney’s fees and costs filed before the judgment were timely. Martin Daytona Corp. v. Strickland Constr. Servs., 941 So.2d 1220, 1225 (Fla. 5th DCA 2006). In other words, this court interpreted the 2005 version of the rule to have the same meaning as the 2006 version of the rule.


author: ORFINGER, J.

text:
    Kenneth W. WELCH, Appellant, v. Dedra D. WELCH, Appellee.
    No. 5D06-1616.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.

      Richard Feinberg, Indialantic, for Appellant.
    No Appearance for Appellee.
   ORFINGER, J.

Kenneth W. Welch (the “former husband”) appeals the trial court’s final judgment dissolving his marriage to Dedra D. Welch (the “former wife”). The former husband claims that the trial court erred in granting the former wife permanent periodic alimony. We agree and reverse.

The parties’ eleven-year marriage produced four children. The former wife, who was thirty-one years old and in good health at the time of the final hearing, was a stay-at-home mom and home schooled the parties’ children. The former wife had previously worked as a registered nurse, but allowed her license to lapse after filing the dissolution action. The former wife testified that to work again as a registered nurse, she would have to take twenty-five hours of continuing education courses, an eight-hour CPR course, a refresher course that lasts several months, and her state boards. She testified that the only reason that she could not re-enter the workforce was her desire to home school the children. The former wife also testified as to the parties’ standard of living during the marriage. She agreed that they had lived well beyond their means and that she had been forced to file for bankruptcy after running up thousands of dollars in credit card debt.

The former husband, who was thirty-five years old and in good health at the time of the final hearing, testified that he was employed as a program manager for Harris Corporation, earning a net income of approximately of $5,300 per month. He testified that during the marriage, he reluctantly agreed to home school the children, but, in light of the dissolution of the parties’ marriage, felt that continued home schooling was no longer appropriate.

The final judgment ordered the former husband to pay $1,734.34 in child support each month in accordance with the child support guidelines. That sum is not challenged on appeal. The trial court also ordered him to pay permanent alimony in the amount of $1,350 per month. On appeal, the former husband argues that awarding permanent periodic alimony was error.

From its inception to the time of the filing of the petition for dissolution, the parties’ marriage lasted eleven years. Florida courts have held that eleven-year marriages fall within the grey area between short-term and long-term marriages. See, e.g., Reynolds v. Reynolds, 668 So.2d 245 (Fla. 1st DCA 1996); Gregoire v. Gregoire, 615 So.2d 694 (Fla. 2d DCA 1992). In grey-area marriages, there is no presumption for or against permanent alimony. Escudero v. Escudero, 739 So.2d 688, 693 (Fla. 5th DCA 1999) (citing Zeigler v. Zeigler, 635 So.2d 50 (Fla. 1st DCA 1994)).

The purpose of permanent periodic alimony is to “provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.” Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). In deciding whether to award permanent periodic alimony, the two primary elements that a trial court should consider are the needs of the spouse requesting alimony and the ability of the other spouse to pay. Id. Alimony should be based on a review of the factors set forth in section 61.08, Florida Statutes. Zeigler, 635 So.2d at 53.

As its sole basis for the permanent alimony award, the trial court found:

The parties mutually agreed that the [former wife] would not work and stay at home and home school the children and that is what has occurred during the marriage. The parties agree that it is in the best interest of the children that the [former wife] remain a stay at home [sic] mother and home school the children. The Court finds that although the [former husband] does have some reservations about home school, he ultimately agreed with the decision to home school the children.

Having carefully reviewed the record, we conclude that the trial court’s finding that “the parties agree that it is in the best interest of the children that [former wife] remain a stay at home [sic] mother and home school the children” is not supported by competent substantial evidence. While there was clearly an agreement to that effect during the marriage, there was no such agreement after the parties separated. Although the former wife’s goal of home schooling her children is laudable, many things change as a result of a marriage ending, and this may be one of them.

While several Florida courts have given great deference to marital agreements that one spouse stay at home and take care of the children, we believe that section 61.08 requires the trial court, at a minimum, to consider the enumerated factors when making an alimony award, and also allows the court to “consider any other factor necessary to do equity and justice between the parties.” An agreement to home school the children is a factor the court can consider in making an alimony award, but alone should not trump the other factors set forth in section 61.08.

The trial judge’s sole reason for granting permanent periodic alimony to the former wife was the parties’ pre-separation marital agreement that the former wife be a stay-at-home mom. Because we conclude that the trial court erred by placing exclusive emphasis on the former wife’s desire to home school the children, we reverse the award of permanent alimony and remand for further consideration. In all other respects, we affirm the final judgment.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GRIFFIN and LAWSON, JJ., concur.

      . See Byers v. Byers, 910 So.2d 336 (Fla. 4th DCA 2005); Bender v. Bender, 363 So.2d 844 (Fla. 1st DCA 1978).


author: VAN NORTWICK, J.

text:
    James W. FORT, Former Husband, Appellant, v. Cynthia FORT n/k/a Cynthia Taylor, Appellee.
    No. 1D06-2795.
    District Court of Appeal of Florida, First District.
    March 26, 2007.

      Cynthia Stump Swanson, Gainesville, for Appellant.
    Robert W. Bauer of Clayton-Johnston, P.A., Gainesville, for Appellee.
   VAN NORTWICK, J.

James W. Fort, the former husband, appeals an order dismissing, without prejudice, his motion to enforce a modification of a final judgment of dissolution. Although we conclude that the trial court erred to the extent it ruled that it lacked subject matter jurisdiction, we affirm pursuant to the “tipsy coachman” rule because the former husband’s petition failed to state a cause of action. See Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999).

The former husband filed a petition styled “Petition to Enforce Modification of Final Judgment of Dissolution of Marriage” in the family law division of the circuit court. By this petition the former husband sought to prevent Cynthia Fort, the former wife and appellee, from obtaining a portion of his pension from the United States Coast Guard even though the parties’ final judgment of dissolution had awarded the former wife 50% of the former husband’s pension benefits. The former husband alleged that the parties had orally agreed that the former wife would forego the pension as awarded to her as a property distribution in the judgment of dissolution in return for the continued payment of child support. The matter was assigned to a family law division general magistrate who entered a report that recommended the petition be dismissed without prejudice based upon lack of subject matter jurisdiction. The general magistrate based her recommendation upon, among other things, the following findings:

7. The issue in this case is one of equitable distribution of property, and therefore, the General Magistrate does not have jurisdiction over this matter as a family law case.
8. The General Magistrate does not have jurisdiction over the matter as a breach of contract action because the authority granted to her by the Order of Referral is under the Florida Family Law Rules of Procedure, and not the Florida Civil Law Rules of Procedure.

The circuit court adopted the recommendations of the general magistrate and dismissed the action without prejudice for lack of jurisdiction. In the order of dismissal, the circuit court ruled as a matter of law that the parties did not have the authority to modify a final judgment by agreement or otherwise. The trial court found “the former Husband more correctly identifies this as an ‘oral agreement’ to modify two issues addressed in the Final Judgment.” Nevertheless, the trial court ruled that the existence and enforceability of any oral agreement to modify a property distribution “is a civil matter and not subject to the jurisdiction of the General Magistrate or this Court arising from the family law case at hand.”

A party’s property rights, if determined by a final judgment of dissolution of marriage, are fixed as a matter of law by the judgment, unless there is a reservation of jurisdiction. § 61.14, Fla. Stat. (2005); Encarnacion v. Encamacion, 877 So.2d 960 (Fla. 5th DCA 2004); Harman v. Harman, 523 So.2d 187 (Fla. 2d DCA 1988); Brandt v. Brandt, 525 So.2d 1017 (Fla. 4th DCA 1988); compare Hulse v. Hulse, 873 So.2d 542 (Fla. 1st DCA 2004). In the case on appeal, there was no reservation of jurisdiction over the distribution of property by the final judgment of dissolution. Thus, the award to the former wife of a property interest in the Coast Guard pension was fixed as of the date of the dissolution judgment. Since the petition here solely concerned the property settlement, the former husband’s petition was appropriately dismissed because it failed to state a cause of action.

The trial court erred, however, to the extent it ruled that it lacked subject matter jurisdiction. As the Fourth District explained in Partridge v. Partridge, 790 So.2d 1280, 1284 (Fla. 4th DCA 2001), “[sjubject matter jurisdiction is ‘the power of the court to adjudicate the class of cases to which the particular case belongs.’ ” (quoting VL Orlando Bldg. Corp. v. AGD Hospitality Design & Purchasing, Inc., 762 So.2d 956, 957 (Fla. 4th DCA 2000), quoting Crill v. State Road Dep’t, 96 Fla. 110, 117 So. 795, 798 (1928)). A circuit court has the power to adjudicate claims for modification of a final judgment of dissolution; the claim here simply lacks a basis in law. Further, to the extent that the circuit court order can be read as premising the dismissal on the lack of jurisdiction because the case was filed in the family division, the circuit court also erred. As in Partridge, the former husband’s claim does not raise an issue of subject matter jurisdiction, but rather divisional jurisdiction within the circuit court. See In the Interest of Peterson, 364 So.2d 98, 99 (Fla. 4th DCA 1978)(“AU circuit court judges have the same jurisdiction within their respective circuits.... The internal operation of the court system and the assignment of judges to various divisions does not limit a particular judge’s jurisdiction.”); Maugeri v. Plourde, 396 So.2d 1215, 1217 (Fla. 3d DCA 1981)(“We think it appropriate to comment that every judge of the circuit court possesses the full jurisdiction of that court in his of [sic] her circuit and that the various divisions of that court operate in multi-judge circuits for the convenience of the litigants and for the efficiency of the administration of the circuits’ judicial business.”).

Accordingly, we hold that the petition was properly dismissed, although not for the reason that the circuit court lacked jurisdiction. See Dade County School Bd. v. Radio Station WQBA. Our affirmance is without prejudice to the filing of an amended complaint for breach of an oral contract and motion to transfer the case to the civil division.

AFFIRMED.

WOLF and LEWIS, JJ., concur.

      . Even though the order under review dismissed the action “without prejudice,” it is clear from the order that judicial labor was at an end as to the former husband's petition. Thus, the order is cognizable on appeal. See Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451 (Fla. 1st DCA 1993).

      . If an action is filed in the incorrect division, the proper remedy is to transfer the case to the correct division, subject to the payment of any filing fee and subject to the requirements of any local administrative rule. The former husband's petition for enforcement is not styled as a complaint for breach of oral contract and does not seek damages for breach of oral contract. Thus, the action in its present form cannot be transferred to the civil division without substantial revision. Further, below the former husband failed to request a transfer to the civil division and cannot raise this issue for the first time on appeal. See Garcia-Roque v. Roque-Velasco, 855 So.2d 668 (Fla. 3d DCA 2003).


text:
    Charles ASHE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2717.
    District Court of Appeal of Florida, First District.
    March 26, 2007.
    Charles Ashe, pro se, Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of the appellant’s second claim without further discussion. Barrs v. State, 883 So.2d 846 (Fla. 1st DCA 2004). However, because the state did not file written notice of its intent to sentence the appellant under the habitual offender statute prior to the appellant’s entering an open plea of guilty, we reverse the trial court’s summary denial of the first claim.

The appellant entered an open plea to robbery. Although the state announced its intent to seek habitual offender sentencing it did not timely file written notice as required by Section 775.084(3)(b)2, Florida Statutes (2003), and Ashley v. State, 614 So.2d 486 (Fla.1993). The appellant contends that his plea was involuntary because he was sentenced as a habitual offender even though the state failed to file the requisite written notice of its intent to seek habitualization. The trial court denied this motion because the appellant had actual verbal notice of the state’s intent.

Actual verbal notice of intent to seek habitualization does not cure failure to file written notice of intent to seek habitualization where an open plea of guilty is entered. See Gray v. State, 829 So.2d 986 (Fla. 1st DCA 2002); Pitts v. State, 805 So.2d 1087 (Fla. 5th DCA 2002). However, on remand, the trial court should consider State v. Blackwell, 661 So.2d 282 (Fla.1995) where the Florida Supreme Court held that a written plea agreement acknowledging potential habitualization signed by the defendant cures a failure to file written notice.

We reverse the trial court’s denial of the appellant’s motion and remand for attachments demonstrating the appellant had prior written notice of the state’s intent to habitualize or for an evidentiary hearing.

AFFIRMED in part, REVERSED in part, and REMANDED.

KAHN, POLSTON, and THOMAS, JJ., concur.


text:
    Timothy WATKINS, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-0042.
    District Court of Appeal of Florida, First District.
    March 28, 2007.
    Timothy Watkins, pro se, Appellant.
    Bill McCollum, Attorney General, Sherry Anita Toothman, Assistant Attorney General, Holly N. Simcox, Assistant Attorney General, Office of the Attorney General, Tallahassee; James R. McDonough, General Counsel and Sean T. Garner, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

Appellee, Department of Corrections (DOC), concedes that the circuit court erred by imposing a lien on the prison trust account of appellant, Timothy Watkins, in connection with his successful petition for writ of mandamus challenging DOC’s failure to correctly award him with credit for time served. This was a collateral criminal proceeding under Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). See Kelly v. Fla. Dep’t of Corrs., 941 So.2d 521 (Fla. 1st DCA 2006). Accordingly, we reverse and remand with directions to the lower court to remove the lien and reimburse Watkins for any funds withdrawn from his account to satisfy the lien. See Turner v. McDonough, 949 So.2d 1106 (Fla. 1st DCA 2007).

REVERSED.

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


text:
    Leslie BYRANT, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4434.
    District Court of Appeal of Florida, First District.
    March 28, 2007.
    Leslie Byrant, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Leslie By-rant, Jr., is hereby afforded a belated appeal from judgment and sentence in case number 16-2003-CF-10357 in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

PETITION GRANTED.

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


text:
    Emerson DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5203.
    District Court of Appeal of Florida, First District.
    March 28, 2007.
    Emerson Davis, pro se, Petitioner.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Emerson Davis is hereby afforded a belated appeal of the order denying postconviction relief rendered on October 5, 2005, in Gadsden County Circuit Court case number 88-944CFA. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

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


text:
    Cromwell A. ROBERTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6589.
    District Court of Appeal of Florida, First District.
    March 28, 2007.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Cromwell Roberts is hereby afforded a belated appeal from judgment and sentence in case number 2006-CF-1971 in the Circuit Court for Leon County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

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


text:
    Bien Venida TAYLOR, Appellant, v. Andrew J. TAYLOR, Appellee.
    No. 1D07-0447.
    District Court of Appeal of Florida, First District.
    March 28, 2007.
    Tara S. Rosenblum, Legal Services of North Florida, Inc., Tallahassee; Gareth D. Getzin, Legal Services of North Florida, Inc., Panama City, for Appellant.
    Patrick J. Faucheux, Esquire, Panama City, for Appellee.
   PER CURIAM.

Upon appellee’s concession of error, the order resetting hearing on petition for injunction, entered January 2, 2007, is hereby reversed, and this proceeding is remanded for the lower court to conduct an evidentiary hearing.

REVERSED and REMANDED.

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


author: GROSS, J.

text:
    Jeff MANCHEC, Executive Aviation, LLC, a Delaware Limited Liability Company, and Aero Propulsion, Inc., a Florida corporation, Appellants, v. Veronique MANCHEC and John Manchec, a/k/a Jean-Marie Manchec, Appellees.
    No. 4D05-3514.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.

      Mark D. Cohen and Denise L. Baker of Mark D. Cohen, P.A., Hollywood, for appellants Jeff Manchec and Executive Aviation, LLC, a Delaware Limited Liability Company.
    Mark F. Booth of Rogers, Morris & Ziegler LLP, Fort Lauderdale, for appel-lee, Veronique Manchec.
   GROSS, J.

Jeff Manchec appeals a final judgment that determined that his former stepmother was entitled to set aside Manchec’s father’s transfer of an airplane to him under the Uniform Fraudulent Transfer Act, Chapter 726, Florida Statutes (2006). We affirm, finding no errors in the admission of evidence and concluding that the evidence supported the trial judge’s ruling.

John and Veronique Manchec were divorced in 2001. Incorporating a marital settlement agreement, the final judgment required John to pay child support and to cover certain of the children’s expenses. At the time of the settlement agreement, John filed a financial affidavit stating that his gross income was $4,750 per month.

Shortly after the divorce final judgment, John acquired a Piper Seneca PA-34-200T airplane valued at $120,000. Although he originally titled the airplane in his name, two days before a September 2002 contempt hearing for failure to pay child support, John formed Executive Aviation, LLC, and transferred ownership of the airplane to it. John was the sole owner and manager of Executive Aviation, LLC; the airplane was the company’s only asset. At the contempt hearing, the trial judge held John in contempt for non-payment of child support, setting a purge amount of $19,429.81. John paid the purge amount to secure his release from jail.

In three transactions, between April 2003 and December 2003, John transferred all of his ownership interest in Executive Aviation to Jeff Manchec, his son from a previous marriage. Jeff paid no money for his interest in the company. As consideration for the airplane, Jeff pledged to his father a 25% share of all proceeds to be derived in the future from the sale of an aeronautical invention. The invention was not on the market. The Federal Aviation Administration had not yet given the approval necessary to bring the product to market.

In December 2004 the circuit court entered an order finding that John owed Veronique $33,072.12 in unpaid child support and $6,252.92 in child related expenses, retroactive to 2002. John took the position that he did not have the assets to pay his child support obligations.

In early 2004, Veronique learned of the airplane owned by Executive Aviation. In April, 2004, she filed a petition to avoid the fraudulent transfer of the airplane under Chapter 726; she named John, Jeff, and Executive Aviation as party defendants. Veronique alleged that John fraudulently transferred his ownership interest in Executive Aviation to Jeff.

At a July, 2005 trial, John did not appear. Jeff was the only witness to testify. The court found him less than credible, observing that there were “times in the testimony ... where I felt that he was being evasive with the court.” Under Chapter 726, the court found that the transfer of the airplane was fraudulent as to Veronique.

We find no error in the trial court taking judicial notice of financial affidavits that John had filed in his divorce action. The affidavits were relevant on the issue of whether John was insolvent at the time Executive Aviation transferred the airplane to Jeff. See § 726.106(1), Fla. Stat. (2006). The affidavits in the court file were the type of matter that may be judi-dally noticed. See § 90.202(6), Fla. Stat. (2006). The court gave Jeff an opportunity to present information as to the propriety of taking judicial notice and to the nature of the matter to be noticed. See § 90.204(1), Fla. Stat. (2006). The affidavits had been attached to Veronique’s motion for summary judgment heard earlier, so that Jeff was not surprised by the information. That John claimed insolvency as the reason he failed to pay child support was not an issue in dispute.

Jeff next claims that the trial court erred in finding that his promise to pay 25% of future royalties from the aeronautical invention was an “unperformed promise” within the meaning of section 726.104(1), Florida Statutes (2006). The statutory framework is this: the transfer of the airplane was fraudulent as to Vero-nique’s child support claim if John “made the transfer ... without receiving a reasonably equivalent value in exchange for the transfer” and John “was insolvent ... or became insolvent as a result of the transfer.” § 726.106(1), Fla. Stat. (2006). “Value is given for a transfer ... if, in exchange for the transfer, ... property is transferred or an antecedent debt is secured or satisfied, but value does not include an unperformed promise made otherwise than in the ordinary course of the promisor’s business to furnish support to the debtor or another person.” § 726.104(1), Fla. Stat. (2006).

In the light most favorable to Vero-nique, the prevailing party below, John was insolvent at the time of the transfer of his Executive Aviation ownership interest or he became insolvent as a result of the transfer. The financial affidavits John filed in the divorce case established that his debts were greater than his assets. See § 726.103(1), Fla. Stat. (2006). Also, because John was “generally not paying his debts as they became due,” he was presumed to be insolvent. § 726.103(2), Fla. Stat. (2006).

As to the second aspect of the section 726.106(1) equation, Jeff gave no money or property in exchange for the $120,000 airplane. The promise of 25% of the future royalties of the invention was an “unperformed promise” within the meaning of section 726.104(1); there had been no sales of the invention, no projected sales and Jeff was a less than credible proponent of the invention’s prospects for generating future revenue. Moreover, distribution of the invention required FAA approval, which was, at best, uncertain. The potential of future royalties was uncertain and unfixed, two qualities that render an “unperformed promise” insufficient to qualify as “value given for a transfer” under section 726.104(1).

We find no merit as to the remaining issue and affirm the judgment of the trial court.

WARNER and TAYLOR, JJ., concur.

      . This case does not fall under the exception to the “unperformed promise’’ rule, in that Jeff's promise of future royalties was not a promise to furnish support for his father or "another person.” § 726.104(1), Fla. Stat. (2006).


author: SHAHOOD, J.

text:
    Idris CHRISTIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3559.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Idris Christie, appeals his conviction and sentence for carjacking and simple battery, a lesser included offense of aggravated battery. Appellant raises two issues in this appeal. As his second issue, appellant argued that the trial court erred in sentencing him as a prison releasee reoffender (“PRR”) based on a “Crime and Time Report.” We affirm.

At the sentencing hearing, the State called Diane Crowter, a latent fingerprint examiner for the Martin County Sheriffs Office. She identified appellant as the one she saw fingerprinted. She also identified the “Crime and Time Report” to be of appellant; it was admitted into evidence without objection. Based on this report, the State asked appellant to be considered a PRR. The court sentenced appellant to the Department of Corrections (“DOC”) and designated him a PRR.

Appellant cites to Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), which found that an affidavit, from a DOC records management analyst, stating the last release date of the defendant was inadmissible. The court found that the document was not admissible as it failed to identify the official records on which it relied, it did not state that it was a true and correct representation of any record, and it did not say where or in whose custody any original official or business records were kept. Id. at 869. However, the court in Gray distinguished an affidavit from a computer printout such as the one presented in this case:

We are not concerned here with duly authenticated “Crime and Time Reports,” like the computer printout that came in evidence in Desue v. State. “Computer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product.” In appropriate circumstances, a printout may also be admissible as a properly certified copy of an official public record.

910 So.2d at 869 (citations omitted).

In Desue v. State, 908 So.2d 1116, 1117 (Fla. 1st DCA 2005), the State introduced a “Crime and Time Report” under the business records exception to the hearsay rule. The court found that the printout fell under the business records exception because the DOC records custodian had testified in that case that the printout was an “official document copied from DOC records, that an inmate’s admit and release dates are recorded at or near the time the inmate is jailed or released, as the case may be, and that the records of inmates’ release dates are kept in the ordinary course of DOC’s business.” Id. The court also noted that a DOC report may also be an official public record admissible under section 90.803(8), Florida Statutes. Id. at 1117 n. 2.

Section 90.803(8), Florida Statutes (2003), provides in part:

Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness.

§ 90.803(8), Fla. Stat. (2003). Although Crowter did not testify as to the manner of preparation, reliability, and trustworthiness of the report, it was self-authenticating under section 90.902, Florida Statutes (2003).

Section 90.902, Florida Statutes (2003), allows public records that are self-authenticating to be admitted into evidence absent the testimony of a custodian. Here, the document was a certified copy. When a certified copy of a document is offered instead of the document itself, authentication is controlled by section 90.902(4). In order for a certified copy to be self-authenticating under section 90.902(4), it must be certified by the custodian of the document (“certified as correct by the custodian or other person authorized to make the certification”) and that the copy is correct and that the person has custody of the original (“actually recorded or filed in a public office”). § 90.902(4), Fla. Stat. (2003); Gray, 910 So.2d at 869. The document admitted contained a certification with a signature, stating:

CERTIFIED TO BE TRUE AND CORRECT COPY OF DOCUMENT AS SAME APPEARS IN OFFICIAL RECORDS OF DEPARTMENT OF CORRECTIONS.

Based on the foregoing, the “Crime and Time Report” was a properly admitted self-authenticating public record.

We hold the first issue raised by appellant to be without merit and affirm as to that issue. We affirm the second issue for the reasons expressed.

Affirmed.

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