author: SHEPHERD, J.

text:
    The CITY OF CORAL GABLES, Appellant, v. CORAL GABLES WALTER F. STATHERS MEMORIAL LODGE 7, FRATERNAL ORDER OF POLICE, Appellee.
    No. 3D06-2305.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Rehearing Denied March 6, 2008.

      Bryant, Miller, Olive, P.A., and James C. Crosland and Denise M. Heekin, Samuel S. Heywood, for appellant.
    Phillips & Richard, P.A., and Kathleen Phillips, Miami, for appellee.
    Before WELLS, SHEPHERD and ROTHENBERG, JJ.
   SHEPHERD, J.

The City of Coral Gables (the City) appeals a final order of the Public Employees Relations Commission (the Commission), finding the City committed an unfair labor practice, by seeking to coerce the president and vice president of the appellee Coral Gables Walter F. Stathers Memorial Lodge 7, Fraternal Order of Police (the FOP or the Union), to forego receipt of some $821,000 in pension contributions the City had agreed to repay to its union-represented sworn police officers pursuant to the settlement of a grievance prosecuted by the Union under the parties’ collective bargaining agreement. The City argues the application of an incorrect evidentiary standard by the Commission necessitates reversal of the Commission order. We agree, and, for the additional reasons expressed below, direct the Commission to dismiss the charge. A brief summary of the factual and administrative history of this case is necessary to our decision.

FACTUAL BACKGROUND

This litigation arises out of the skyrocketing cost to the City in recent years of funding its employee pension program. In an effort to stanch the cost, the City negotiated in its 2003-2005 collective bargaining agreement with its police union an employee contribution provision. The provision reads:

ARTICLE 38
RETIREMENT SYSTEM
6. Effective upon ratification of the Agreement, bargaining unit members shall contribute three percent (3%) of their gross pay (excluding uniform allowances) to the City’s retirement plan. Effective October 1, 2004, bargaining unit members shall contribute another two percent (2%) to the City’s retirement plan for a total of a five percent (5%) contribution. The City agrees that contributions will be transferred to the retirement fund no later than seven (7) days after the members receive their paychecks. It is agreed that a re-opener will occur within nin[e]ty (90) days of ratification of this Agreement for the purpose of negotiating a change for the Cost of Living (C.O.L.A.) provision of the retirement plan. It is further agreed that the five percent (5%) contribution mentioned above will be applied to the cost of a mutually acceptable C.O.L.A. improvement. The City of Coral Gables Fraternal Order of Police, Lodge # 7 agrees to equally share the expense of an actuarial study to determine the cost of a C.O.L.A. improvement.

(emphasis added). After ratification, the officers began making their contributions as agreed. However, during the re-opener, the City refused to offer any change in the C.O.L.A. provision of the retirement plan, citing city budgetary constraints and ever-increasing pension costs. In response, the Union filed a grievance pursuant to the collective bargaining agreement, arguing that a C.O.L.A. increase was intended as a quid pro quo for the officers’ retirement plan assistance. On the eve of arbitration of this dispute, the City agreed to settle the grievance by returning the retirement contributions to the officers and halting further deductions.

At the time of the settlement, the parties also were engaged in negotiations for a successor agreement to the 2003-2005 collective bargaining agreement. The Union advanced a first-year wage proposal offer of a zero percent wage increase, but with the elimination of pension contributions. The City rejected this proposal and declared an impasse. Clearly miffed at what it considered to be Union legerdemain in seeking return of the pension contributions, the City apparently was not of a mind to allow the pension contribution component of the 2003-2005 collective bargaining agreement to become a sub silen-tio officer wage increase during the next contract period. Indeed, the City unilaterally withheld payment of the settlement sum to its sworn police officer corps during this time in an effort to fold its obligation to repay into the successor agreement negotiations.

On January 12, 2006, similarly frustrated, the Union initiated an unfair labor practice charge against the City, alleging the City had not complied with the terms of the earlier grievance settlement. On February 16, the City settled this charge by again agreeing to pay and to stop the

officer deductions, apparently forthwith. Coral Gables City Manager David Brown called Union President Eugene Gibbons and asked him to meet him the next morning to receive the reimbursement checks.

The next morning, February 17, Brown and Gibbons met. Union Vice President Randy Hoff accompanied Gibbons. Brown did not bring the checks. According to Gibbons, Brown told him:

I don’t think you know what you’re doing or what you’re getting yourself into.
[H]e went [on] to tell me that if we were to take these checks back, that we were looking at a long future of no raises for at least the next three years, a zero percent wage increase....

According to Gibbons, Brown also expressed that “the City Commission was extremely upset at the FOP’s position[ ] in taking the checks back and that he had been instructed by the Commission to recoup that money one way or another.” Except as to certitude, Brown does not materially dispute Gibbons’ account of the conversation. Gibbons demanded the checks. They were handed over on February 21.

On March 6, 2006, the Union initiated the Unfair Labor Practice Charge, which has become the subject of this appeal. The focus of the charge is the February 17 conversation. The charge alleged that the City, through Brown, violated sections 447.501(l)(a), (c), and (d) of the Florida Public Employees Relation Act, ch. 447, pt. II, Fla. Stat. (2007) (“the Act”), by threatening the FOP with a “zero percent wage increase for the next three years, or imposing some other retaliatory method[,]” if it accepted the reimbursement checks on behalf of its sworn police officer bargaining unit members pursuant to the settlement of the January 12, 2006 unfair labor practice charge.

THE ADMINISTRATIVE PROCEEDING

On May 4, 2006, the parties participated in an administrative hearing convened pursuant to section 120.57(l)(a), Florida Statutes (2006). On June 20, the hearing officer issued a recommended order, in which he concluded the City, through Brown, had made an “unambiguous threat” to the officer corps through its bargaining agent in violation of section 447.501(l)(a), Florida Statutes (2006), which prohibits public employers, their agents, or representatives from “[interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under [the Florida Public Employees Relations Act, chapter 447, part II “the Act”].” The hearing officer rejected as “premature” the Union’s claim under section 447.501(l)(c), Florida Statutes (2006), wherein the Union alleged the City was not bargaining in good faith in pending impasse proceedings in the successor collective bargaining agreement discussions. Finally, the hearing officer rejected the Union’s claim that the City, again through Brown’s action, had engaged in retaliation against the represented police corps in violation of section 447.501(l)(d), Florida Statutes (2006), for the filing by their union bargaining representative of the January 12, 2006 unfair labor practice charge, brought to secure compliance with the earlier grievance settlement. While the hearing officer found the timing of Brown’s statement “suspect” — occurring as it did on February 17, 2006, just one day after the settlement of the January 12, 2006, charge — he nevertheless concluded, “Brown’s threat to retaliate against the employees was motivated by his disagreement with Gibbons’ interpretation of the [collective bargaining] contract and the ramifications stemming from that disagreement, not because the FOP filed the unfair labor practice charge.” (emphasis added).

At the hearing, Brown advanced a softer rendition of the February 17 conversation, stating he simply was seeking to promote labor peace into the future by advising Union leadership about what he felt was “likely to happen” or “may happen” in its future bargaining encounters with the City Commission, if the Union insisted on taking the reimbursement checks. The hearing officer, however, found the statements more than just a friendly warning:

Brown, as the City Manager, was concerned about the long-range effects on labor peace in the City because the FOP was seeking reimbursement of the employees’ pension contributions. In his attempt to maintain labor harmony, Brown’s statements were more forceful than he realizes. Brown’s testimony that he was attempting to emphasize to Gibbons and Hoff that they would “really” be at impasse if the employees to the reimbursement checks is credited.

The hearing officer concluded:

Brown’s unambiguous threat of future wage freezes and that the City would recoup the money the employees paid into the pension fund one way or another was intended to coerce the employees into relinquishing their collective right to the reimbursement checks, which was obtained through concerted, protected activity. Brown’s threat has the foreseeable effect of instilling in the employees a reasonable belief that further participation in protected activity might also result in future adverse employment consequences; thus, the City violated Section 447.501(l)(a), Florida Statutes.

On July 3, 2006, the City filed three exceptions to the hearing officer’s recommended order. First, the City argued that the hearing officer erred in finding a violation of section 447.501(l)(a), because the only “right” with which the City arguably interfered was a contractual right based on the terms of the parties’ settlement of an unfair labor practices charge, which is not a right protected by statute. Second, the City maintained that the record evidence established (and the hearing officer had found) that the City’s actions were not motivated by protected conduct, thus negating one of the essential elements of the section 447.551(l)(a) claim. Finally, the City argued that the hearing officer erred in finding the City had “coerced” the Union because the Union, prior to February 17, voluntarily had proposed for the next collective bargaining agreement the very arrangement which it claimed the City to have coerced.

On August 21, 2006, the Commission issued a final order, which rejected each of the City’s three exceptions and incorporated the hearing officer’s recommended order. Like the hearing officer, the Commission, in its dispatch of the first two exceptions, focused on the “foreseeable effect” of Brown’s statements on the “affected employees” rather than Brown’s motivation in making them. In the Commission’s own words:

Here, the settlement proceeds were a result of the parties’ settlement negotiations concerning a collective bargaining agreement grievance. In that sense, the hearing officer found that Brown’s threat had the foreseeable effect of instilling in the employees a reasonable belief that further participation in the protected activity of filing and pursuing grievances might result in adverse employment consequences. In particular, the hearing officer concluded that it was reasonable for affected employees to believe that the comment by [Brown] concerning the effect of receiving proceeds from a collective bargaining grievance could be recouped unfairly at a later date, resulting in the chilling of a protected right.

The Commission also rejected the City’s third exception, relying on the proposition that “an employer’s motivation and intent ... is a finding of fact within the hearing officer’s province.... ” According to the Final Order, “the hearing officer found that Brown made the threatening remarks [to the Union] for protected activity, filing and then settling a collective bargaining agreement grievance.” Because we conclude the Commission misapplied the law applicable to this case and also fatally misconstrued the hearing officer’s findings, we reverse the order on appeal.

STANDARD OF REVIEW

A threshold issue in this appeal is the standard of review applicable to the Commission’s decision. Generally speaking, whether an individual violated a statute is a question of fact to be determined by the hearing officer based on the evidence and testimony. Gross v. Dep’t of Health 819 So.2d 997, 1003 (Fla. 5th DCA 2002). Courts are not permitted to substitute their judgment for that of the administrative agency as to the weight of the evidence. § 120.68(7)(b), (10), Fla. Stat. (2006).

This general principle of administrative review gives way, however, in two circumstances. First, although courts typically uphold agency decisions that are supported by competent, substantial evidence, “the same standards of review do not apply to an erroneous application of the law to the facts.” LeDew v. Unemployment Appeals Comm’n, 456 So.2d 1219, 1221-22 (Fla. 1st DCA 1984). No deference is due an error of law. Office of Fire Code Official v. Fla. Dep’t of Fin. Servs., 869 So.2d 1233, 1237 (Fla. 2d DCA 2004) (stating that deference to agency decisions “does not require that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency”).

Second, the deference normally afforded agency determinations does not extend to findings of fact that are not expressly supported by competent, substantial evidence. A court must vacate, or, where appropriate, set aside a final order, “if it finds that the final order depends on any finding of fact that is not supported by competent substantial evidence in the record of the proceeding.” § 120.68(10), Fla. Stat. Each of these exceptions to the general principle of administrative review that we customarily follow is applicable to this case.

ANALYSIS

This appeal focuses on the Commission’s determination that the City unlawfully coerced the Union in violation of section 447.501(l)(a) of the Florida Public Employees Relations Act. As previously stated, this provision of the Act prohibits a public employer from “[interfering with, restraining, or coercing” its employees “in the exercise of any rights guaranteed them” by chapter 447, part II. § 447.501(l)(a), Fla. Stat. The “rights guaranteed” public employees are enumerated in section 447.301, Florida Statutes (2006), and include “the right to engage in concerted activities not prohibited by law, for the purpose of collective bargaining or other mutual aid or protection.” § 447.301(3), Fla. Stat. (2006). In support of its section 447.501(l)(a) claim, the Union’s charging document alleges that Brown’s statements at the February 17, 2006 meeting had instilled in the member employees a “reasonable belief’ that protected conduct would henceforth be punished: “Mr. Brown has created the reasonable belief that participation in protected activity may result in adverse employment consequences, and by doing so interfered with, restrained and coerced employees in the exercise[] of their Section 447.301 rights.” (emphasis added).

Contrary to these allegations, however, a successful claim under section 447.501(l)(a) does not hinge on the employee’s “reasonable belief.” Rather, a successful claim under this provision requires proof that the exercise of statutorily protected conduct motivated the employer to make a threatening or coercive decision or a decision against the employee’s interest. Sch. Bd. of Lee County v. Lee County Sch. Bd. Employees, Local 780, AFSCME, 512 So.2d 238, 239 (Fla. 1st DCA 1987). As the court stated in Lee County:

In order to determine whether the evidence sustains a charge alleging an unfair labor practice, when it is grounded upon an asserted violation of protected activity, the following general principles should be considered by the hearing officer and by PERC:
(1) In any such proceeding the burden is upon the claimant to present proof by a preponderance of the evidence that (a) his conduct was protected and (b) his conduct was a substantial or motivating factor in the decision taken against him by the employer.
(2) If the hearing officer determines the decision of the employer was motivated by a non-permissible reason, the burden shifts to the employer to show by a preponderance of the evidence, notwithstanding the existence of factors relating to protected activity, it would have made the same decision affecting the employee anyway[.]

Id. at 241 (quoting Pasco County Sch. Bd. v. PERC, 353 So.2d 108, 117 (Fla. 1st DCA 1977)) (emphasis added). This two-pronged burden shifting test is almost as old as the Florida Public Employees Relations Act itself, and “encompasses all types of activity protected by the Act.” Lee County, 512 So.2d at 241. As with any cause of action, the employee’s failure to prove this essential element constitutes a failure to establish a prima facie case. Brown v. Dep’t of Transp., 30 FPER ¶ 300 (2004).

Rather than focus on this evidentiary standard, however, both the hearing officer and the Commission focused on the effect of Brown’s statement on the Union and its employees. Thus focused, the hearing officer concluded that “Brown’s threat ha[d] the foreseeable effect of instilling in the employees a reasonable belief that further participation in protected activity might also result in future adverse employment consequences; thus, the City violated Section 447.501(l)(a), Florida Statutes.” See supra pp. 61-62 (emphasis added). The Commission followed suit. Misapplying Lee County and a fortiori, its progenitor, Pasco County, the Final Order rendered by the Commission states:

In School Board of Lee County v. Lee County School Board Employees Local 780, AFSCME, 512 So.2d 238 (Fla. 1st DCA 1987), the First District Court of Appeal held that, in proving a violation of Section 447.501(l)(a), Florida Statutes, an employee must show that his or her otherwise protected activity was of a substantial motivating factor in the employer’s decision or action constituting the alleged violation. Here, the settlement proceeds were a result of the parties’ settlement negotiations concerning a collective bargaining agreement grievance. In that sense, the hearing officer found that Brown’s threat had the foreseeable effect of instilling in the employees a reasonable belief that further participation in the protected activity of filing and pursuing grievances might result in adverse employment consequences. In particular, the hearing officer concluded that it was reasonable for affected employees to believe that the comment by the City Manager concerning the effect of receiving proceeds from a collective bargaining grievance could be recouped unfairly at a later date, resulting in the chilling of a protected right. Consequently, the Commission denies the City’s exceptions one and two.

(emphasis added). Applying the same rationale as the hearing officer, the Commission found the City engaged in unfair labor practice. Like the hearing officer, the Commission also did not proceed to consider the second prong of the Pasco/Lee County standard.

Seeking affirmance, the Union argues it is not necessary to adhere strictly to the two-pronged evidentiary standard enunciated by the First District in Pasco County and later reaffirmed in Lee County. As authority for its position, the Union turns not to binding case law, but rather to a twenty-year-old Commission decision, Professional Fire Fighters of Orlando v. City of Orlando, 13 FPER ¶ 18218 (1987), decided just a few days after Lee County. With considerable chutzpah, the Commission in City of Orlando announced that Lee County was “contrary to our decisional law.” City of Orlando, 13 FPER ¶ 18218 at 517. It then sought to distinguish, if not gut, the First District Court of Appeal’s fresh reaffirmance of Pasco County decision stating:

[W]e think the Court’s holding in School Board of Lee County should be limited to its facts and applied only to factual situations where a statement is reasonably susceptible to more than one interpretation. Where the alleged coercive statement is, as here, unambiguous, we believe motive can be imputed from the statement itself and need not constitute a separate element of proof.

City of Orlando, 13 FPER ¶ 18218 at 517 (emphasis added). Because the hearing officer also found that Brown had made “an unambiguous threat” in this case, counsel for the Union argues the Union similarly is entitled to the benefit of what counsel characterizes as “the City of Orlando limitation” to Lee County. The Union suggests the Commission’s “special expertise in addressing labor issues,” and that it has been found to be “uniquely qualified to interpret and apply the policies enunciated in chapter 447[,]” see Cagle v. St. Johns County Sch. Dist., 939 So.2d 1085, 1089 (Fla. 5th DCA 2006), should countenance acquiescence by us in the reasoning of City of Orlando. We decline to acquiesce.

Instead, we conclude the Commission’s decision to retreat from Lee County was plainly improper. First, the “unambiguous statement” exception articulated in City of Orlando, see City of Orlando, 13 FPER ¶ 18218 at 517, is directly contrary to established law. In Lee County, the First District Court of Appeal interpreted section 447.501(l)(a) as requiring a showing that the employer was motivated by protected conduct. The court stated: “In proving a violation of section 447.501(l)(a), an employee must show that his or her otherwise protected activity was a substantial or motivating factor in the employer’s decision or action which constituted the alleged violation.” Lee County, 512 So.2d at 239 (emphasis added). In so doing, the court reaffirmed and emphasized that “the employer’s motivation, a motivation originating in the otherwise protected employee conduct, must remain a critical element in establishing that such a violation occurred.” Id. at 242 (emphasis added). The Commission has ignored this admonition.

More importantly, both the Union and apparently the Commission forget that the role of interpreting the law is reserved for the judiciary. The First District Court of Appeal long ago issued its judicial determination of the applicable legal standard to be applied to the facts of this case. The Commission may not disregard an interpretation of a statute rendered by a court of this state. Costarell v. Fla. Unemployment Appeals Comm’n, 916 So.2d 778, 782 n. 2 (Fla.2005) (stating that agencies must follow judicial interpretations of law even if the appellate court is located in another district). Nor do we accept the Union’s suggestion that we defer to the Commission’s special expertise in addressing labor issues for purposes of this case. See Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir.2007) (“Deference is earned; it is not a birthright.”). Deference is not due to erroneous applications of law to the facts by a quasi-judicial body such as the Commission. See LeDew, 456 So.2d at 1221. Nor is it due to an agency decision rendered by the agency in disregard of its place in this state’s dispute resolution system. Kadia, 501 F.3d at 821.

For all of these reasons, we reverse the order on appeal.

THE REMEDY

In the usual case, when an agency applies an incorrect legal standard, the remedy is to remand the matter to the agency for further fact finding. See, e.g., Lee County, 512 So.2d at 242. However, where the undisturbed findings of the order under review are sufficient to sustain reversal, remand is unnecessary. See, e.g., Bacardi v. Lindzon, 728 So.2d 309, 312 (Fla. 3d DCA 1999) (finding remand un-

necessary where the record and trial court’s order are sufficient to resolve the issue). The latter is the circumstance of this case.

Although it is indisputable on the record of this case that Brown did not want the Union to accept the pension reimbursement checks, he testified the Union had every right to receive the checks:

Q. And you went to this meeting on February 17th, in part, you say, to let [Gibbons] know that you didn’t agree with the union’s interpretation of the collective bargaining agreement, correct?
A. That’s correct.
Q. You didn’t think it was fair that they should get this money back because, in your mind, that’s not what the money was intended for, correct?
A. That’s incorrect.
A. I went down to that meeting to let [Gibbons] know what I thought was going to happen with the labor as a result of the decision he made, and that was it.
Q: Okay, so, according to your testimony, you, as the chief executive officer of the city, had met Mr. Gibbons only one time, went down there to tell him what you thought might happen if he accepted the checks, correct?
A. Yes, ma’am.
Q. And you did tell him, did you not, that you wanted them to be aware of the full ramifications of what they were doing by accepting those reimbursement checks, correct?
A. Yes, ma’am.
Q. Which, you understand, they had a right to accept, correct?
A. Yes, ma am.

According to Brown, his reason for seeking the meeting with Union leadership on February 17 was to attempt to maintain labor harmony at a time when the City was facing at least a pension, if not a full budget crisis, rather than some anti-union animus. The hearing officer agreed with Brown. He found that Brown was motivated by concerns over labor harmony— and not the exercise of a protected right— in raising the specter of impasse to union leadership:

Brown, as the City Manager, was concerned about the long-range effects on labor peace in the City because the FOP was seeking reimbursement of the employees’ pension contributions. In his attempt to maintain labor harmony, Brown’s statements were even more forceful than he realizes. Brown’s testimony [at the evidentiary hearing] that he was attempting to emphasize to Gibbons and Hoff that they would “really” be at impasse if the employees took the reimbursement checks is credited. The City seeking to recoup the money from the employees is consistent with the City Commissioners’ belief that there is a pension crisis and the City’s belief that the purpose of the [five percent employee contributions] was to help fund the pension plan,

(emphasis added).

Thus, regardless of whether Brown’s statements to Union leadership were threatening or coercive, it cannot be doubted that the motivation for those statements was unrelated to the Union’s exercise of a protected right. In fact, recalling that the hearing officer had dismissed the Union’s unfair labor practice charge arising out of the then pending collective bargaining renewal impasse proceedings discussions as “premature,” the most that can be said is that Brown’s February 17 statements at best were related from a legally meaningful standpoint to the Union’s contractual right — at the moment — to receive pension reimbursements checks.

Any shred of remaining doubt about the City’s liability is erased by the recommended order itself. In rejecting the Union’s contention that the City had violated section 447.501(l)(d) of the Act, the hearing officer found that, “Brown’s threat to retaliate against the employees was motivated by his disagreement with Gibbons’ interpretation of the contract and the ramifications stemming from that disagreement, not because the FOP filed the unfair labor practice charge.” (emphasis added). The Commission’s contrary conclusion in the Final Order that the hearing officer “found that Brown made threatening remarks for protected activity, filing and then settling a collective bargaining agreement grievance,” is not supported. See § 120.68(10), Fla. Stat.

The record in this matter — and in particular the hearing officer’s explicit findings of fact regarding Mr. Brown’s motive — settles the question whether the City violated section 447.501(l)(a). In no uncertain terms, the hearing officer concluded that Brown was motivated by concerns other than protected conduct. Because that conclusion is based upon ample and competent evidence, and because the Union did not challenge that conclusion before the Commission, remand for further proceedings is unnecessary.

For the foregoing reasons, we reverse the order of the Florida Public Employee Relations Commission with directions that the unfair labor practice charge brought against the City pursuant to section 447.501(l)(a) of the Florida Statutes be dismissed.

Reversed and remanded with directions.

      . A change of union leadership occurred one year after the negotiation of the 2003-2005 collective bargaining agreement. According to the City, prior union leadership clearly understood and acknowledged that the pension contribution component of the 2003-2005 collective bargaining agreement was unconditional.

      . Section 447.501(l)(c) prohibits public employers, their agents or representatives from "[r]efusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.”

      . Section 447.501(l)(d) prohibits public employers, their agents, or representatives from "[djischarging or discriminating against a public employee because he or she has filed charges or given testimony under [chapter 447, part II].”

      . Article I, section 6 of the Florida Constitution (1885), which guaranteed the right to bargain collectively only to private employees, was amended in 1968 to afford the right to public employees as well. Art. I, § 6, Fla. Const. (1968). After some High Court prodding, see. Dade County Classroom Teachers Ass'n v. Legislature, 269 So.2d 684 (Fla.1972), the implementing legislation for the 1968 amendment was adopted by the state legislature in 1974. See ch. 74-100, § 3, at 135, Laws of Fla. (codified as ch. 447, pt. II, Fla. Stat. (1997)).

      . Remarkably, the Commission seems to have long misapplied the Pasco/Lee County evidentiary standard. See, e.g., IAFP Local 2771, New Smyrna Beach Prof'l Fire Fighters Ass’n v. City of New Smyrna Beach, 10 FPER ¶ 15215 at 436 (1984) (maintaining that an employer violated section 447.501(1)(a) if the effect of the conduct "was ... to instill in employees the reasonable belief that participation in any protected activity might result in adverse employment consequences) (emphasis added). The Commission continues to misapply the standard to this day. See, e.g., Shelby v. City of Miami Beach, 25 FPER ¶ 30161 at 347 (1999) (continuing to approve IAFF Local 2771 long after Lee County, and citing City of Orlando for the proposition that "motive can be imputed” from an unambiguous employer statement and "need not constitute a separate element of proof”). Considering the confusion in the Commission’s decision-making in this area, we do not fault the hearing officer for his recommendation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Pedro MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3758.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    Rehearing Denied March 26, 2008.
    Pedro Martinez, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of Appellant’s Florida Rule of Criminal Procedure 3.800(a) motion. Appellant’s successive motion was barred by collateral estoppel, and Appellant has not shown that application of the procedural bar will result in a manifest injustice. State v. McBride, 848 So.2d 287, 291 (Fla.2003).

Appellant’s motion failed to explain how the “trial transcript” would demonstrate an entitlement to relief. Jackson v. State, 803 So.2d 842 (Fla. 1st DCA 2001). A conclusory allegation that the answer lies somewhere in the “trial transcript” is not enough to satisfy the threshold allegation requirements of rule 3.800(a). Id. at 845.

Appellant has not identified record facts that show he is entitled to relief on his claim that his consecutive habitual felony offender (HFO) sentences violate Hale v. State, 630 So.2d 521, 524 (Fla.1993). Theophile v. State, 967 So.2d 948 (Fla. 1st DCA 2007). In order to establish a sufficient claim of a violation of Hale in a 3.800(a) motion, Appellant must identify, with particularity, non-hearsay record documents and explain how they demonstrate that the crimes arose from a single erimi-nal episode. Lauramore v. State, 949 So.2d 307, 308 (Fla. 1st DCA 2007) (citing Harris v. State, 875 So.2d 735 (Fla. 2d DCA 2004)).

Neither of Appellant’s motions raising this issue has explained how anything in the trial transcript would demonstrate that his convictions for aggravated assault on a law enforcement officer and possession of contraband in prison arose from the same criminal episode. §§ 784.021, .07, Fla. Stat. (1991); § 944.47(l)(a), Fla. Stat. (1991).

As no manifest injustice is apparent, Appellant’s claim is barred by collateral estoppel.

STONE, FARMER and HAZOURI, JJ., concur.


author: FARMER, J.

text:
    Jean MENARD, Appellant, v. UNIVERSITY RADIATION ONCOLOGY ASSOCIATES, LLP, Appellee.
    Nos. 4D06-4901, 4D07-576.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.
    Rehearing Denied April 2, 2008.

      Edward R. Holodak, Hollywood, for appellant.
    Geoffrey D. Ittleman of the Law Offices of Geoffrey D. Ittleman, P.A., Hollywood, for appellee.
   FARMER, J.

In this action to recover unpaid charges for health care services, both sides took the position that the amount owed was fixed by an agreement. The trial judge sided with the health care provider’s view and entered judgment accordingly. Because of a significant error in the process we reverse.

Before litigation began, the clinic’s attorney wrote the patient demanding payment of an unpaid balance of $27,000. When payment was not forthcoming, the clinic filed suit claiming that $77,000 was due, instead of the $27,000 previously demanded. Answering the suit, the patient conceded liability for $27,000.

Later both sides filed motions for summary judgment. In response to the clinic’s motion, the patient sought a deposition of the person at the clinic with the “most knowledge” as to the clinic’s claim. The clinic designated Molina as the person with the most knowledge. At the deposition Molina testified that it was among her duties to make payment plans with patients and that she had done so with this patient.

She explained that the amount billed to an insurance payor for the planned services would have been $90,000, but the patient’s health insurance did not cover the services. They agreed that the amount that patient would pay from his own funds for the same services was $40,000 “no matter what.” They also agreed on a schedule for payments as treatment progressed. As the services progressed the patient paid $13,000 but failed to pay the balance.

In its summary judgment papers, the clinic identified its witness Molina as the person who made the agreement with patient on behalf of the clinic. The clinic argued, however, that the clinic notified the patient’s on his final visit that, because of his failure to pay the balance, he now owed $77,000 instead of $27,000 as agreed. The clinic argued that the patient’s motion for summary judgment should be denied because the patient had been informed that he owed the larger sum.

At the summary judgment hearing, both sides relied on Molina’s deposition testimony, the clinic filing no affidavits. Patient filed an affidavit to support his motion. Patient swore that on three occasions before suit was filed the clinic had demanded the sum of $27,000 and had never mentioned him owing the larger sum. He swore the first time he had ever been told by the clinic that they were claiming $77,000 was with the filing of the suit. He also relied on the presuit letter demanding payment of $27,000 made by clinic’s attorney. He argued that the deposition testimony of Molina — the clinic’s person with the most knowledge — was that he owed only $27,000 as agreed.

He also cited the clinic’s response to his motion for summary judgment. That response openly acknowledges that the clinic did not even create its “policy” demanding the full insurance amount when a patient fails to pay the agreed charge until after this patient had already failed to made payment, thereby tacitly admitting that the larger sum was never actually agreed by the parties at the beginning. He conceded that the clinic was entitled to a final judgment for $27,000.

The trial court denied summary judgment, and the case proceeded to trial. At trial the clinic produced — for the first time — one of its doctors to testify as to the making of the agreement. Patient immediately objected that the clinic should not be permitted to disavow either its designation of Molina as the witness having the most knowledge, or to now adduce changed testimony from that given by Molina. The clinic argued that the doctor was listed in the pretrial list of witnesses. The trial judge overruled the objection and permitted the testimony.

The doctor testified that he had direct knowledge of the agreement and that the parties had agreed at the very beginning before services were begun. He asserted that the patient had agreed to pay the full insurance amount if he failed to pay the lower charge. Ultimately the trial judge entered a final judgment holding the patient liable for the full $77,000 claimed with interest. Patient appeals.

The patient argues that this surprise change in testimony was contrary to the position that clinic had taken since the case was filed. At no time before trial, patient argues, did the clinic ever suggest the parties had actually agreed before services began that he would owe the full amount charged to an insurance payor if he failed to pay. He pointed out that Molina’s testimony at the deposition was clear that the agreement was for a maximum of $40,000. Only after he had defaulted did the clinic increase its demand to the larger sum. Because the larger sum was first raised only then, it is manifest that it was not part of the original understanding and agreement.

The patient contends that the surprise change in testimony by the clinic should be treated no differently than courts treat surprise changes in expert witness testimony. He rests his case on our decisions in Department of Health and Rehabilitative Services v. J.B., 675 So.2d 241 (Fla. 4th DCA 1996), Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993), and Office Depot, Inc. v. Miller, 584 So.2d 587 (Fla. 4th DCA 1991). J.B., Grau and Office Depot all stand for the proposition that it is an abuse of discretion to allow a party at trial to change, in this manner, the substance of testimony given in pretrial discovery.

In J.B. the plaintiff offered Dr. Burke as a witness on economic issues. Defendant took a pretrial deposition in which he specifically asked the witness if he was going to testify at trial about “life care plans.” He responded that he had “received no instruction on that.” A few days before trial, defendant moved to exclude any testimony by Dr. Burke as to life care plans, but the trial court allowed him to do so if plaintiff furnished defense counsel with “the information” by the end of that day. Plaintiff did not furnish the information until just before trial began, but the court permitted the witness to testify anyway, allowing defendant to take an “updated” deposition one evening during trial. In holding that the court had abused its discretion, we relied on Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981), in which the supreme court had recognized the authority of trial judges to exclude testimony on account of violations of pretrial orders. We explained:

“Although Binger dealt with the failure to disclose a witness, its principles have been applied where the presentation of a changed opinion is tantamount to permitting an undisclosed adverse witness to testify. Applying Binger’s logic to the facts in this appeal, we find that the ‘playing field was not level’ and there was, in fact, surprise resulting in prejudice to HRS. Although the court afforded HRS the opportunity to depose one of the witnesses after the first day of the trial, HRS had no opportunity to obtain information or expert opinion to rebut the testimony of the witness and thereby cure the prejudice. The permitting of such testimony caused a disruption of the orderly and efficient trial of the case.” [e.s., c.o.]

675 So.2d at 244. In short, allowing parties at trial to substantially change the essential import of pretrial testimony of any kind without prior disclosure in discovery slants the field of justice to give unfair advantage to the party making such a change.

In Grau the issue also involved new and different testimony by expert witnesses, which the trial judge there thought justifiable because “update” depositions were permitted during trial. Condemning this as “ambush tactics” prejudicing the opposing party, Judge Warner wrote:

“While the trial court does have broad discretion in sorting through witness disclosure and discovery problems, there are limits, and we think one has been surpassed in this case. The trial court not only allowed the plaintiff to disobey its clear pretrial orders, but it appeared more concerned with the prejudice to the plaintiff in disallowing the testimony of these witnesses, than with the prejudice to the defendant in striking their testimony regarding the trial examinations .... ” [c.o.]

626 So.2d at 1060. She further explained:

“Once the trial starts the lawyers are engaged in the unfolding of the evidence they have already collected. That is why there are discovery cutoffs. All the discovery rules and the extensive efforts of parties to discover the other party’s case would he for naught if one side were able to wait until after the trial started to establish key pieces of evidence such as what occurred in this case.... ” [e.s., e.o.]

626 So.2d at 1061. She elaborated that nothing in Binger permits this kind of litigation tactic:

Binger certainly does not require the trial court to admit this testimony. Binger dealt with the failure to disclose a witness, although its teachings have been applied where the presentation of a changed opinion is tantamount to permitting an undisclosed adverse witness to testify. ... [e.s., c.o.]

In closing, she made clear:

Certainly, if prejudice can be cured efficiently, then it should. But the plaintiff takes his own risk in adopting an ambush strategy and should not profit from his own wrongdoing. ... The wrongs of the attorney should not harm the innocent defendant who in good faith engaged in discovery and conducted the trial by the rules, [e.s., c.o.]

626 So.2d at 1062. Again, we held the changes in pretrial testimony were functionally indistinguishable from failing to disclose adverse witnesses.

In Office Depot, which also involved a change of testimony by an expert witness at trial, we said:

“the spirit and purpose of Rule 1.360(b) requires the disclosure of a substantial reversal of opinion such as occurred here, if a party intends to offer that changed opinion at trial. Parties who fail to make such disclosure do so at their peril, depending on the circumstances of the particular case. In this case, allowing the presentation of the changed opinion was tantamount to permitting an undisclosed adverse witness to testify as in Binger.” [e.s.]

584 So.2d at 590-91. In affirming the trial judge’s exclusion of the changed testimony, Judge Anstead closed the opinion with the following warning:

“The trial court’s action here sends out a strong message to those who do not adhere to the code of fair play advanced by Binger. Serious violations of the pretrial disclosure rules may result in the exclusion of important evidence, and may, in extreme circumstances, lead to the grant of a new trial.” [e.s.]

584 So.2d at 591. Our warning, issued more than 15 years ago, has never been withdrawn.

Obviously the testimony permitted in this case does not involve a change in an expert’s opinion. But in some respects, it is even more significant because it involves historical fact: who said what; what did the parties agree. It is conceivable that, given new information, an expert may honestly change an opinion. But historical fact is not — or should not be — mutable in that way. And while the memories of witnesses may fade or simply be indistinct on a given subject or event, the nature of the testimony in this case is not of that kind.

Here the partnership was allowed to designate for itself in pretrial discovery the person acting on its behalf with regard to this patient’s agreement. At no time before trial did the clinic ever suggest that Molina had been designated in error through an honest mistake. Indeed, Molina clearly testified at her deposition that she was in fact the person who concluded the agreement on behalf of the clinic. And she repeated that testimony at trial. In pretrial papers, the clinic continued to proceed on the basis of Molina’s testimony, arguing instead that it should recover the undiscounted sum because it had later informed its patient of that change.

And while the opponent of expert witness opinion testimony might theoretically be able to counter with a newly obtained expert opinion of its own, that is hardly true of testimony as to historical fact unequivocally established under oath in pretrial discovery. When a party in litigation takes the position under oath by its own, competent witness that a certain historical fact directly affecting the claim in suit is true, we are simply unable to imagine how an opposing party relying in its trial preparations on that testimony of historical fact could possibly counter a surprising change in it at trial. The prejudice to the patient is both serious and undeniable.

The clinic’s only real response is that it had disclosed its doctor as a witness in the list of witnesses attached to the pretrial stipulation. We note, however, that in addition to Molina the clinic’s witness list included the names of three doctors but did not designate the actual subject of the testimony expected from any of the doctors. Under the circumstances, it would have been a reasonable inference that the named medical personnel, the physician witnesses, would testify about the medical services performed by the clinic, should that become an issue at trial in proving up the claim.

In Office Depot, we made clear that “the spirit and purpose of rule 1.360(b) requires the disclosure of a substantial reversal of opinion ... if a party intends to offer that changed opinion at trial.” 584 So.2d at 590. We see no reason why the requirement of pretrial disclosure for a change in testimony should be any different for historical fact witnesses. Yet nothing in the witness list even hinted at a change as to the testimony concerning the making of the agreement before services began.

The trial tactics of the clinic should not be tolerated. The clinic’s surprising change in testimony was “tantamount to permitting an undisclosed adverse witness to testify as in Binger.” 584 So.2d at 591. The trial judge’s acceptance of this change improperly tilted the field of justice in favor of the clinic. 675 So.2d at 244. The orderly use of discovery by the patient to discover the other party’s case came to nothing by allowing the clinic to wait until after trial started to change the key piece of evidence as to the making of the agreement in this case. 626 So.2d at 1061. Prejudice is palpable. Discretion was abused.

Ordinarily a new trial might be indicated. In this instance, however, the admissible evidence of the clinic’s own testimony demonstrably made the patient’s motion for summary judgment incontestable The clinic is entitled to recover only the reduced sum of $27,000 to which it had agreed, together with interest and costs. On remand, the trial judge will amend the judgment accordingly.

Two other issues remain. First, we address the trial court’s determination that the homestead exemption is not available under the facts of this case. In First Leasing and Funding of Florida, Inc. v. Fiedler, 591 So.2d 1152 (Fla. 2d DCA 1992), a creditor sought to levy execution on a single-level triplex owned by the judgment debtor, consisting of debtor’s residence and two other units under lease to different occupants. The trial court held that the entire triplex was covered by the homestead exemption, and the creditor appealed. The Second District noted the text of the current constitutional provision:

“There shall be exempt from forced sale under process of any court ... a homestead ... if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family....”

Art. X, § 4(a)(1), Fla. Const. (1968). This differed from the text under the former Constitution of 1885 which provided that the exemption covered the “residence and business house of the owner.” [e.s.] 591 So.2d at 1153. The court noted that in Smith v. Guckenheimer, 42 Fla. 1, 27 So. 900 (1900), the supreme court held that the exemption of a homestead in an incorporated city does not extend to improvements other than the residence or business house of the owner, nor to the land on which they are situated, though such improvements be inseparably attached to or form parts of an indivisible building, which constitutes the residence and business house of the owner. 591 So.2d at 1153. The court also relied on Bankruptcy Court decisions in Florida applying the exemption only to the part occupied by the debt- or but denying it to parts used to produce income. See e.g. In re Radtke, 344 B.R. 690, 693 (Bankry.S.D.Fla.2006) (debtors who rented out portion of property as sites for mobile homes and recreational vehicles were not entitled to Florida homestead exemption for the entire 2.3 acre tract on which their home was located); In re Nofsinger, 221 B.R. 1018 (Bankry.S.D.Fla.1998) (portion used as rental not exempt); In re Aliotta, 68 B.R. 281 (Bankry.M.D.Fla.1986) (where debtor occupied one unit of a fourplex, the homestead exemption should not extend to the entire property).

We follow these holdings. Only that part of debtor’s property used as his residence is exempt from levy and execution. That part leased to other occupants is not exempt. On remand the trial court shall determine whether under local law the entire property may be partitioned or in some other way divided legally (e.g., submitted to condominium ownership). If it cannot be so divided legally, then the entire parcel may be sold at public sale and only debtor’s pro rata share will be exempt.

Second, we also affirm the denial of fees under the offer of settlement. Rivera v. Publix Super Markets, Inc., 929 So.2d 1184 (Fla. 4th DCA 2006) (holding that offer of judgment must state all non-monetary conditions). This case is remanded for judgment accordingly.

WARNER and GROSS, JJ., concur.

      . The papers stated that at the final meeting between the parties in regard to the default in payment:
      "[Molina] communicated to [patient] that if he did not pay the balance due and owing in accordance with the Reduced Rate Offer, that [clinic] would deem that [patient] rejected such Reduced Rate Offer and, thus, demand that [patient] pay the full, non-discounted amount due and owing, all in accordance with the office policy that [clinic] WAS FORCED TO CREATE to deal with the fact that [patient] was the ONLY patient of [clinic] that attempted to avoid making payments ...[e.s.]
      Patient's argument to the trial judge focused on the emphasized part of the above quoted passage to assert that this policy of demanding the full insurance amount was decided only after patient had stopped making periodic payments.

      . Of course, it is beyond legal dispute that in law a party to an agreement will not be heard to make unilateral, prejudicial changes in agreements previously made.

      . We limit our holding to the facts and circumstances of this case. In particular we stress that our decision would not necessarily apply, for example, to a bona fide change by a fact witness as to past memory' — -perhaps having one's memory honestly refreshed — or to a real gap in memory later filled by spontaneous recollection, or the like. In this case, where the clinic itself identified Molina as the partnership witness with the significant knowledge of the making of the agreement, none of these apply. Under the circumstances here, our holding is in the nature of an estoppel, which in fact is the real principle underlying the holdings in J.B., Grau and Office Depot.

      . Because the lower sum of $40,000 for the same services was reached in arms length negotiation by competent parties, each with a strong contrary interest as to the amount to be charged, generally it would seem that the sum they agreed upon would be deemed in law as presumptively a fair and reasonable sum for the health care services in question. Yet the record does not divulge any justification for the clinic to charge an insurance payor more than this presumptively reasonable sum it would charge a patient without insurance for the same services. We do not wish to be understood here as expressing an opinion on the propriety of such a charge.


author: COPE, J.

text:
    Manuel BENITEZ, Appellant, v. Odalis D. BENITEZ, Appellee.
    No. 3D07-1472.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.

      Stephen Rakusin, Fort Lauderdale, for appellant.
    Robert D. Hertzberg; Law Offices Greene, Smith & Associates, P.A., and Cynthia L. Greene, Miami, for appellee.
    Before COPE and RAMIREZ, JJ., and PALMER, Associate Judge.
   COPE, J.

The question before us is whether a provision in a marital settlement agreement waiving the right to modification of alimony means what it says. We conclude that it does, and affirm the order below.

During their proceeding for dissolution of marriage, the parties entered into a Marital Settlement Agreement. The Agreement requires the former husband to pay to the former wife non-modifiable alimony, which terminates upon her remarriage, the death of either party, or after fifteen years, whichever occurs first. Remarriage is defined as a “ceremonial marriage.”

Both parties waived the right to seek modification of alimony. The Agreement included a provision that the former husband

shall not apply to any court for a modification of the aforesaid alimony provision or any judgment or decree into which the provisions of this Agreement shall be incorporated with respect to alimony or spousal support to be paid by the Husband to the Wife whether pursuant to Section 61.14[,] Florida Statutes[,] or any other provision or authority.

The Marital Settlement Agreement was executed by the parties and incorporated into the final judgment of dissolution of marriage in 1999.

In 2007, the former husband filed an Amended Petition for Downward Modification of Alimony. The trial court dismissed the Petition for Modification. The former husband has appealed.

Boiled down, the former husband says that the former wife has additional financial resources which have become available to her and that her alimony should be reduced. The specific theories need not be addressed.

The former husband agreed not to seek modification for any reason. He is in breach of his obligations by moving for modification. The trial court correctly dismissed the petition. See Ferraro v. Ferraro, 891 So.2d 1211, 1212 (Fla. 3d DCA 2005).

Affirmed.


author: MAY, J.

text:
    Larry Ray NEWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4874.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for sale of cocaine within 1,000 feet of a convenience business, possession of cocaine with intent to sell within 1,000 feet of a convenience store, resisting an officer with violence, and possession of marijuana less than 20 grams. He raises four issues. We find no merit in any of them, but write to address the claimed fundamental error in the jury instructions.

The Delray Police Department took part in an undercover narcotics operation at the Regency Inn parking lot nearby the “Food and Spice Store.” While conducting the operation, an undercover law enforcement officer approached the defendant and asked to “buy twenty hard or twenty.” The defendant moved closer to the car and exchanged cocaine for twenty dollars.

At that point, two other officers were alerted that a drug transaction had taken place. They activated their police lights and approached the scene. When the defendant saw one of the officers exit the vehicle, he dropped something and started to run through the parking lot. The officers later found the dropped items, a small amount of crack cocaine in tissue paper and a clear plastic bag containing marijuana. The officers apprehended the defendant as he tried to climb a fence.

The State charged the defendant with sale of cocaine within 1,000 feet of a convenience business, possession of cocaine with intent to sell within 1,000 feet of a convenience store, resisting an officer with violence, and possession of marijuana less than 20 grams. At the charge conference, the parties agreed to all of the instructions, including those for the lesser included offenses.

The trial court instructed the jury on the sale of cocaine within 1,000 feet of a convenience business. The State had to prove: (1) the sale or delivery of a controlled substance, (2) the sale took place on or within 1,000 feet of a convenience business, (3) the substance was cocaine, and (4) the defendant had knowledge of the substance. After correctly defining the four elements for the original charge, the trial court misspoke and advised the jury that the lesser included offense of sale of cocaine did not require proof of the third element instead of the second element. Nevertheless, the trial court correctly defined the element that did not require proof, the proximity to the convenience store.

The court misspoke again when discussing the lesser included offenses to the second charge, possession of cocaine with intent to deliver or sell within 1,000 feet of a convenience store. The court told the jury that the charge was possession with intent to sell within 1,000 feet of a place of worship. The court quickly corrected itself, started over again, and correctly instructed the jury on the elements of the crime charged and the lesser included charges.

Lastly, when the trial court was explaining the verdict form it referred to the possession of marijuana charge as a possession of cocaine charge. This occurred just after the trial court properly instructed the jury on the elements of the possession of marijuana charge. This mistake the trial court did not correct. The jury found the defendant guilty of all four counts.

The defendant now argues the trial court committed fundamental error in its instructions to the jury, and in inserting the word cocaine into its discussion of the verdict form on the possession of marijuana charge. The State responds that (1) the defendant did not object to any of the instructions, (2) the trial court corrected all but the last misstatement, (3) the written instructions and the verdict form were correct, and (4) the jury convicted the defendant of the crimes charged, not the lesser-included offenses where the misstatements were made. The State further suggests that if any error occurred, it did not rise to the level of fundamental error when the record is reviewed as a whole. We agree with the State.

“[Generally speaking, the standard of review for jury instructions is abuse of discretion”; however, discretion, as with any issue of law is strictly limited by case law. Pollock v. CCC Invs. I, LLC, 933 So.2d 572, 574 (Fla. 4th DCA 2006). Because the defendant did not object to the errors he now claims, they must rise to the level of fundamental error to allow for their review. State v. Weaver, 957 So.2d 586, 588 (Fla.2007). Fundamental error is that which reaches “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (quoting State v. Delva, 575 So.2d 643, 644 (Fla.1991)). To determine whether fundamental error occurred “the trial judge’s slip of the tongue [must] be examined in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case to decide whether the ‘verdict of guilty could not have been obtained without the assistance of the alleged error.’” Allen v. State, 939 So.2d 273, 276 (Fla. 4th DCA 2006) (quoting Delva, 575 So.2d at 645).

Here, the first claimed error occurred when the trial court referred to the numbered element that did not have to be proven for the lesser included offense of sale of cocaine. It should have referred to element “two,” but misstated element “three.” Nevertheless, the trial court correctly defined the element that need not be proven, the proximity of the sale to the convenience store. There was no objection, perhaps because the mistake was so innocuous that no one, including the jury, noticed. More importantly, the trial court correctly instructed the jury on the substantive elements of the lesser included offense. We see no harmful, much less fundamental, error in the misnomer.

The second claimed error was in the court’s reference to the 1,000 foot proximity to a “place of worship” instead of a convenience store in instructing the jury on the elements of the lesser included offense of possession with intent to sell. The trial court immediately corrected the error, and correctly re-read the instruction. Once again, there was no objection. The trial court corrected this second misstatement, and asked the jury if they understood the instructions.

The third and final claimed error was the trial court’s reference to cocaine instead of marijuana during its explanation of the jury form. However, this misstatement took place after, the trial court had correctly instructed the jury on the elements of possession of marijuana. Once again, there was no objection. And, the verdict form clearly referred to possession of marijuana less than 20 grams. We cannot say that this slip of the tongue reached “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Delva, 575 So.2d at 644.

Although the trial court’s instructions were not flawless, the court took care in correcting its misstatements and accurately instructed the jury on the elements of the crimes charged and the applicable lesser included charges. The trial court twice asked the jury if they understood the instructions. The defense made no objections to the instructions. Additionally, the prosecutor also went over the elements of the crimes in the closing argument. These imperfections in the court’s instructions to the jury simply do not rise to the level of fundamental error. For this reason, we affirm.

Affirmed.

STONE and STEVENSON, JJ„ concur.


text:
    Rodney R. HEILD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1970.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.

      Rodney R. Heild, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse for further proceedings.

Defendant-appellant Rodney R. Heild filed a rule 3.850 motion alleging that his trial counsel had been ineffective in connection with a motion to suppress evidence which was heard prior to the defendant’s trial. The motion includes other claims as well. The trial court denied the motion in its entirety, saying that the defendant represented himself pro se in his trial proceedings, and therefore could not claim ineffective assistance of counsel. The defendant has appealed.

The defendant’s rule 3.850 motion asserts that he was represented by counsel in his trial proceedings from the start of the case up through and including the hearing on the motion to suppress evidence. We have taken judicial notice of the briefs in the defendant’s direct appeal, this Court’s file number 3D04-1430, where the State’s brief appears to make the same point.

Given the foregoing, the posteonviction record does not conclusively refute the defendant’s claims. See Fla. R.App. P. 9.141(b)(2)(D). We reverse the order now before us and remand the matter for further consideration and entry of an appropriate order on the motion.

Reversed and remanded for further proceedings consistent herewith.


text:
    Javon MASON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1117.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    Javon Mason, in proper person.
    Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS and SALTER, JJ.
   PER CURIAM.

Javon Mason appeals from an order summarily denying his motion to withdraw his plea made pursuant to Florida Rule of Criminal Procedure 3.850(b)(1). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

We reverse the trial court’s summary denial of Mason’s newly discovered evidence claim and remand because the record fails to conclusively refute Mason’s motion for relief. An evidentiary hearing is thus needed to resolve the credibility of Mason’s allegation of actual innocence. See Barrow v. State, 940 So.2d 1235 (Fla. 5th DCA 2006). If an evidentiary hearing is not conducted below, an appellate court must accept the defendant’s factual allegations as true to the extent they are not refuted by the record. McLin v. State, 827 So.2d 948 (Fla.2002); Foster v. State, 810 So.2d 910, 914 (Fla.2002). At the ensuing evidentiary hearing, it will be Mason’s burden to show why neither he nor his trial counsel could not have learned earlier about the co-defendants’ exculpatory testimony through the exercise of due diligence, and what the specific nature of the exculpatory evidence is. Barrow v. State, 940 So.2d 1235 (Fla. 5th DCA 2006). Further, the trial court will have to resolve whether the evidence is of such a character that it would probably produce an acquittal on retrial. Id.

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Antonio MENENDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1750.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.

      Antonio Menendez, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Antonio Menendez appeals the trial court’s order denying his motion to correct illegal sentence. We reverse the order because the trial court incorrectly ruled that the defendant is ineligible for parole, when in fact, he was eligible, as the State concedes.

By indictment, the defendant was charged in case no. 75-9339 with first-degree premeditated murder of a jewelry store owner and robbery of the store. Following the jury’s verdicts of guilty, the trial court adjudicated the defendant guilty and sentenced him to life imprisonment for the robbery and to death for the murder “as authorized by Section 775.082(1) of the Florida Statutes.” On appeal, the Florida Supreme Court affirmed the convictions of first-degree murder and robbery but vacated the sentence of death and remanded to the trial court for resentencing. Menendez v. State, 368 So.2d 1278 (Fla.1979). At resentencing, the trial court again imposed the death penalty. On appeal, the Florida Supreme Court again vacated the death sentence and remanded the case to the trial court with directions to sentence the defendant to life imprisonment without eligibility of parole for twenty-five years. Menendez v. State, 419 So.2d 312 (Fla.1982). Subsequently, on December 28, 1982, the trial court sentenced the defendant to prison for a term of “natural life.”

The defendant then filed the instant motion to correct illegal sentence pursuant to rule 3.800(a), Florida Rule of Criminal Procedure. He claims that his 1982 sentence for a term of natural life is illegal because it amounted to his being sentenced to life imprisonment without the possibility of parole after the completion of the twenty-five year minimum mandatory term. The trial court denied the defendant’s motion in a three-page written order entered on June 7, 2007, and this appeal followed.

We reverse the order on appeal because the trial court incorrectly ruled that the defendant is ineligible for parole. The State concedes that the defendant’s sentences are parole eligible. We thus reverse the order on appeal, remand the case to the trial court, and direct that the trial court amend count one to add the provision for the twenty-five year mandatory minimum without eligibility for parole, as mandated by the Florida Supreme Court in Menendez v. State, 419 So.2d 312 (Fla.1982). The defendant need not be present for the correction of the sentencing order.

Reversed and remanded with instructions.


text:
    Anthony STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-817.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Rehearing Denied April 3, 2008.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Lee v. State, 835 So.2d 1177 (Fla. 4th DCA 2002).

FARMER, STEVENSON and TAYLOR, JJ., concur.


text:
    Arttavis ELLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3268.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    Arttavis Ellis, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. § 812.13(1), Fla. Stat. (1997); see also S.W. v. State, 513 So.2d 1088, 1090 (Fla. 3d DCA 1987) (stating that robbery has all the essential elements of theft, plus the additional element that the stolen property must have been taken by means of force, violence, assault, or putting in fear).


text:
    James WILLIAMS, a/k/a Keith Robinson, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-61.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    James Williams, a/k/a Keith Robinson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: SALTER, J.

text:
    James Edward GIBSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3055.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    James Edward Gibson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). The motion alleges in paragraph five that the appellant is entitled to credit for time served in the total amount of 300 days. In paragraph six, the appellant alleges that the Department of Corrections’ records reflect a credit for time served in the amount of 320 days. The motion, on its face, demonstrates no basis for relief. The trial court’s summary denial was correct.

Affirmed.


text:
    Electo ECHEVARRIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2150.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.

      Electo Echevarria, in proper person.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Defendant-appellant Electo Echevarria was convicted of first-degree murder and other offenses and was sentenced to life in prison. This conviction was affirmed on direct appeal. Echevarria v. State, 929 So.2d 620 (Fla. 3d DCA 2006).

The defendant filed a motion for post-conviction relief. In claim five, the defendant alleged that his counsel was ineffective for failing to call codefendant Pedro Rodriguez, also known as “Pichi,” as a defense witness at his trial. The defendant maintains that Rodriguez would have materially contradicted the testimony of the prosecution’s key witness.

The State responded that Rodriguez had a Fifth Amendment privilege not to testify. The codefendant had been tried separately, and the State asked the trial court to take notice of the fact that the codefen-dant’s appeal to this Court remained pending until a date after the defendant’s trial. See Rodriguez v. State, 905 So.2d 959 (Fla. 3d DCA 2005) (decided June 22, 2005). However, the State’s trial court response did not bring forth any facts demonstrating that the codefendant had asserted his Fifth Amendment privilege at trial. We have taken judicial notice of this court’s file in the codefendant’s appeal, and it appears the defendant testified on his own behalf at trial. We therefore conclude that this particular claim by the defendant is not conclusively refuted. We reverse the order now before us in part and remand for further proceedings on point five only. We affirm the trial court’s order on the remaining issues.

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


author: PLEUS, J.

text:
    Purnima SHETH, Appellant, v. C.C. ALTAMONTE JOINT VENTURE, et al., Appellees.
    No. 5D07-1094.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.

      Purnima Sheth, B.D.S., Longwood, pro se.
    Robert W. Thielhelm, Jr., and Brian C. Blair of Baker & Hostetler LLP, Orlando, for Appellee.
   PLEUS, J.

Dr. Purnima Sheth appeals a final judgment finding that she was liable to C.C. Altamonte Joint Venture (“AJV”) under a guaranty agreement signed in 1994 as part of a lease. Dr. Sheth argues that under the unique facts of this case, her liability as guarantor should have terminated as a matter of law. We agree and reverse.

Dr. Sheth and her husband, Dr. Jiten Sheth, practiced dentistry together at Ora-care Dental, P.A. (“Oracare”). In 1994, Oracare signed a lease with AJV for office space. Along with the lease, the Sheths signed a guaranty agreement, which provided:

For value received, and in consideration of the execution of a certain Lease ... and for the purpose of inducing Landlord to enter into such Lease, the undersigned, jointly and severally, do hereby absolutely and unconditionally guarantee to Landlord, its successors and assigns, the full and prompt payment when due, of all rents, charges and additional sums coming due under said Lease, together with the performance of all damages that may arise or be incurred by Landlord in consequence of Tenant’s failure to perform such covenants and agreements ... and the undersigned further agree to pay all expenses, including attorneys’ fees and legal expenses, paid or incurred by Landlord in endeavoring to collect or enforce the Liabilities or any part thereof and in enforcing this guaranty.
Landlord may, from time to time, without notice to the undersigned: ... (c) extend or renew for any period (whether or not longer than the original period), alter or exchange said Lease or any of the Liabilities,.... No such action or failure to act by Landlord shall affect the undersigned’s liability hereunder in any manner whatsoever....
The undersigned hereby expressly waive: (a) notice of the acceptance of this Guaranty; (b) notice of the existence, creation, amount, modification, amendment, alteration or extension of the Lease or all or any of the Liabilities, whether or not such notice is required to be given to Tenant under the terms of the Lease....

(Emphasis added).

In 1996, the Sheths separated and filed for dissolution of marriage. During the dissolution proceedings, a restraining order was issued, Dr. Sheth was ordered to relinquish all interest in the business, and she began her own practice, leaving her former husband to operate Oracare.

Seven years later, in 2003, Oracare and AJV extended the lease for an additional ten years:

[S]aid Lease Term is hereby extended for ten (10) years commencing April 1, 2004.... Further, all terms, covenants and conditions applicable to the Lease Term will be equally applicable to the Extended Lease Term.

Because Dr. Sheth was no longer affiliated with Oracare, her former husband asked that her name be removed from the lease. Dr. Sheth’s name was removed from the lease, but AJV refused to remove her name from the guaranty agreement. Reflecting this, the extension provided:

6. Name Removal.
Notwithstanding anything in the Lease to the contrary, Landlord and Tenant agree that the name “Purnima J. Sheth” shall be removed from the 12th line of Section 2.3, however the name Purnima J. Sheth D.D.S. shall not be removed from the Guaranty.

In October 2004, Oracare stopped paying rent due to purported problems with the roof. AJV sued Oracare for eviction and damages attributable to its failure to pay rent. Count IV of AJV’s complaint was against Dr. Sheth for her liability under the guaranty agreement. In the dissolution proceedings, the court ordered that because her former husband had failed to have Dr. Sheth’s name removed from the guaranty, he should indemnify Dr. Sheth for any damages resulting from the lease extension and this suit.

After trial on the guarantee agreement, the trial court determined Dr. Sheth was liable as guarantor because she waived notice of modification, amendment, alteration, or extension of the lease; at no time did she personally ask that her name be removed from the guaranty agreement; her former husband signed the portion of the lease extension stating that her name was not to be removed from the guaranty agreement; AJV was not responsible for making sure that Dr. Sheth’s name was removed; and, although the dissolution court held that Dr. Sheth’s former husband was required to indemnify her for any damages resulting from this suit, that order had no bearing on Dr. Sheth’s liability to AJV under the guaranty agreement. This appeal followed.

Because the intention of the parties as evidenced by a contract is a question of law, this Court’s standard of review is de novo. Southern Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319 (Fla. 2005); Berry v. Berry, 550 So.2d 1125, 1126 (Fla. 3d DCA 1989). Under Florida law, a guaranty for a lease can be continuing, but it must expressly state that it is intended to cover future transactions for the guarantor to be liable for extensions and renewals. See Zero Food Storage, Inc. v. Udell, 163 So.2d 303 (Fla. 3d DCA 1964).

The law of Florida has recognized that a contract of guaranty may be continuing in nature. It is said to be continuing in nature if it contemplates a future course of dealing during an indefinite period, or if it is intended to cover a series of transactions or succession of credits, or if its purpose is to give to the principal-debtor a standing credit to be used by it from time to time. Thus, a continuing guaranty covers all transactions, including those arising in the future, which are within the description of contemplation of the agreement.

Fidelity Nat. Bank of South Miami v. Melo, 366 So.2d 1218, 1221 (Fla. 3d DCA 1979). The guaranty agreement endorsed by Dr. Sheth was a continuing guaranty. It states that Dr. Sheth and her former husband unconditionally guarantee the payment of all liabilities under the lease, that the lease can be extended or renewed at any time by the AJV, and that Dr. Sheth and her former husband expressly waive any notice of such alterations to the terms of the lease.

However, this case presents an exception to the general rule of continuing guarantees because the composition of the obligor, Oracare, was fundamentally changed when the Sheths divorced and Dr. Sheth was ordered to leave the practice.

[A]fter a guarantee is given, a change in the obligor from a sole proprietorship to a partnership releases the guarantor unless it appears that the parties to the contract of guarantee intended the contract to be without reference to the composition of the firm. ... [RJelease is based on the theory that a change in the obligation by the substitution of new persons has the effect of making a contract on which the guarantor never intended to become liable.

Powell Mfg. Co., Inc., v. Allbritton, 513 So.2d 1348, 1349 (Fla. 1st DCA 1987) (emphasis added). Nothing in the instant guaranty agreement suggests that the liability would continue without regard to the composition of Oracare. In this case, AJV knew that Dr. Sheth signed the guaranty agreement because she was part of Ora-care and needed to secure a lease for her business. AJV released Dr. Sheth from the lease because it understood that she had no further interest in Oracare, but sought to bind her as guaranty to a lease extension in which she had absolutely no interest. In so doing, AJV did expressly what the theory adopted in Powell Manufacturing was supposed to prevent — it “ma[de] a contract on which the guarantor never intended to become liable.” 513 So.2d at 1349.

Applying the exception in Powell Manufacturing requires consideration of several factors. First, the obligee’s lack of knowledge of a change in the obligor’s business is a factor for whether or not the guarantor should be released. Change in Name, Location, Composition, or Structure of Ob-ligor Commercial Enterprise Subsequent to Execution of Guaranty or Surety Agreement as Affecting Liability of Guarantor or Surety to the Obligee, 69 A.L.R.3d 567, § 4 (2007). In this case, had AJV been unaware that Dr. Sheth was no longer involved in Oracare, this factor would suggest that she should still be bound. However, AJV, as obligee in this case, not only knew that Dr. Sheth no longer had an interest in Oracare, AJV acknowledged that fact by removing her name from the lease. In cases where the obligee had notice of the change in the obligor business before the transaction or default for which the guarantor is sought to be held liable, courts have generally released the guarantor from liability. 69 A.L.R.3d 567 n. 25 (citing Gazette Pub. Co. v. Cole, 164 Ark. 542, 262 S.W. 985 (1924); Friendly v. Nat. Surety Co., 46 Wash. 71, 89 P. 177 (1907)).

Second, the nature of the change of the obligor business is a significant factor. 69 A.L.R.3d 567 at § 5. For example, if the business continued with the same people in charge, same operating structure, same location, but merely changed in form — such as a name change — then the guarantor would still be liable. Id. See also, United Bonding Ins. Co. v. Southeast Reg’l Builders, Inc., 236 So.2d 460, 463-64 (Fla. 1st DCA 1970) (holding that the guarantor was still liable because even though the “business changed from a partnership to a corporation, the terms and provisions of the contract never changed and the same persons performed the work under the contract”). In the instant case, the change in the obligor, Oracare, is much more than a simple formalistic change — Dr. Sheth was no longer part of the professional association. This factor suggests that Dr. Sheth should not be held liable.

Third, a court should consider whether the guarantor participated in the change in the obligor business. 69 A.L.R.3d 567 at § 6. This is an estoppel argument. The idea is that if a guarantor participated in changing a business, that guarantor is es-topped from later arguing that the change released her liability. Frell v. Dumont-Florida, Inc., 114 So.2d 311, 312-13 (Fla. 3d DCA 1959). In this case, Dr. Sheth did not voluntarily participate in any change in the business that would preclude her reliance on that change for liability release. Instead, Dr. Sheth was ordered to walk away from the business and did so.

The fourth factor is whether the guarantor sought to revoke the guaranty. 69 A.L.R.3d 567 at § 7. In Frell, the Third District found it significant that the purported guarantor never sought to disclaim responsibility or revoke the guaranty agreement until the time of suit. 114 So.2d at 313. Although no evidence was presented that Dr. Sheth personally asked that her name be removed from the guaranty agreement, her former husband testified that he requested removal of his former wife’s name but AJV refused despite his “strict objections.” This testimony is bolstered by the fact that the amendment to the lease in 2004 expressly stated:

6. Name Removal.
Notwithstanding anything the Lease to the contrary, Landlord and Tenant agree that the name “Purnima J. Sheth” shall be removed from the 12th line of Section 2.3, however the name Purnima J. Sheth B.D.S. shall not be removed from the Guaranty.

If AJV was unaware that termination of Dr. Sheth’s guarantor liability was desired, there would be no reason to include the second half of that clause.

In addition to the above analysis, we find support in Cadle Co. v. Vargas, 55 Mass.App.Ct. 361, 771 N.E.2d 179 (2002), a similar case in which a former wife was released from liability despite signing a continuing guaranty. In Cadle Co., Ms. Vargas was married to a real estate investor and signed guarantees in order to assist her husband in obtaining loans. Id. at 180. After she and her husband divorced, he obtained further loans from the bank with which Ms. Vargas had signed a guaranty. Id. at 181. Despite the fact that she signed a continuing, line-of-credit guaranty, the appellate court found that the equities favored releasing Ms. Vargas from liability because:

[T]he commercial loan on which the plaintiff seeks to recover was executed without Vargas’ knowledge and over a year after her divorce, at the time of the 1990 note, BayBank knew that Vargas was divorced form the note maker, Bay-Bank did not rely on the guaranties in granting either the 1989 or the 1990 loans, [and] Vargas received no benefit from the 1990 loan.

Id. at 184 (emphasis added).

Here, as in Cadle Co., the equities favor Dr. Sheth’s release. First, AJV extended this lease without Dr. Sheth’s knowledge seven years after her separation from her husband. Second, AJV knew the parties were separated and knew that Dr. Sheth had no further interest in the business prior to extending the lease. As noted above, this change has created a situation involving a contract for which Dr. Sheth never intended to be liable. Third, Dr. Sheth received no benefit from the extension of the lease.

Accordingly, we reverse the final judgment and deny AJV’s motion for appellate attorney’s fees.

REVERSED.

PALMER, C.J. and MONACO, J., concur.


author: LAGOA, Judge.

text:
    P.N., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3185.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 2008.

      Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

P.N., a juvenile, appeals his adjudication of delinquency based upon consumption or possession of an alcoholic beverage on a public or semi-private area in violation of Monroe County ordinance 2.1 — 5(b). Because we find that the State failed to present evidence to find P.N. delinquent of consumption or possession of alcohol, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

While on a patrol boat in an area known as Marvin Key, Officer Shuster, through a pair of binoculars, saw P.N. on the beach holding a Budweiser beer bottle. Upon noticing Officer Shuster, P.N. slid the bottle under his leg. Officer Shuster proceeded to move his patrol boat closer to the shore where P.N. was seated and ordered him to board the boat. While P.N. initially ignored Officer Shuster’s order, he eventually complied, but failed to bring the beer bottle with him as he boarded the patrol boat. Instead, one of P.N.’s peers retrieved the beer bottle for the officer. Officer Shuster testified that the bottle was full of sand and salt water upon his receipt, and he discarded the beer bottle at the end of his shift. At no time did P.N. admit that the beer bottle contained alcohol while in his possession.

The State charged P.N. with possession of alcohol by a minor. At the end of the State’s case, the defense moved for a judgment of dismissal on the ground that the State failed to present any evidence that the beer bottle contained alcohol. The trial court denied the motion and this appeal ensued.

II. STANDARD OF REVIEW

“The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case.” A.P.R. v. State, 894 So.2d 282, 284 (Fla. 5th DCA 2005). As such, in reviewing a trial court’s denial of a motion for judgment of dismissal, a de novo standard of review applies. Id. at 285. While the evidence must be viewed in the light most favorable to the State, if the State fails to present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper. E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003).

III. ANALYSIS

On appeal, P.N. argues that the trial court erred by failing to grant his motion for judgment of dismissal because the State failed to present competent, substantial evidence that P.N. possessed an open container of alcohol. To prove possession, the State must show that the defendant possessed a certain substance, that the substance was illegal, and that the defendant had knowledge of the presence of the substance. See S.C.S. v. State, 831 So.2d 264 (Fla. 1st DCA 2002) (judgment and sentence reversed because the State presented insufficient evidence to establish a prima facie case for possession of alcohol by a minor). To establish a prima facie case that a substance is alcoholic or illegal, a juvenile’s own admission will suffice, as well as testimony of an experienced police officer. See J.B. v. State, 705 So.2d 1376, 1379 (Fla.1998); A.A. v. State, 461 So.2d 165, 166 (Fla. 3d DCA 1984).

Here, the State failed to present any evidence that the contents of the bottle possessed by P.N. contained alcohol. P.N. did not make any statement to law enforcement admitting that the bottle contained alcohol. Moreover, Officer Shuster testified that when the beer bottle was recovered, it was full of sand and salt water. Although Officer Shuster testified that he approached P.N. because he was holding a beer bottle, Officer Shuster did not testify that he saw P.N. drinking from the beer bottle or that the contents of the bottle were alcoholic. As the State conceded during oral argument, it is not illegal for a minor to possess a beer bottle that contains no alcohol.

Accordingly, because the State failed to provide any evidence that the contents of the bottle possessed by P.N. contained alcohol, we reverse the adjudication of delinquency. We decline to address the remaining issue raised on appeal.

Reversed and remanded.

      . Florida Rule of Juvenile Procedure 8.110(k) states:
      If at the close of evidence for the petitioner, the court is of the opinion that the evidence is insufficient to establish a prima facie case of guilt against the child, it may, or on the motion of the state attorney or the child shall, enter an order dismissing the petition for insufficiency of the evidence.


text:
    UTC INDUSTRIES, INC., et al., Appellants, v. PRESIDENTIAL FINANCIAL CORP., et al., Appellees.
    Nos. 3D07-1071, 3D07-473.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 2008.

      Richard J. Burton, Aventura and Peter J. Solnick, for appellants.
    Sivyer Barlow & Watson, Neal A. Sivyer and Edward J. Kuchinski, Tampa, for ap-pellees.
    Before GERSTEN, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

UTC Industries, Inc., Jerome Uffner, Marc Uffner, and Judith Uffner (collectively “Uffner”) appeal the dismissal of their complaint against Presidential Financial Corporation and Presidential Financial Corporation of Florida (“Presidential”). We affirm in part, reverse in part, and remand with instructions.

Uffner was in business with UTC Fabrics, LLC, Lawrence C. Schreiber, Inc., d/b/a Confetti, Lawrence Schreiber, Jo Schreiber, Alan Schreiber, and Paul Schreiber (collectively “Schreiber”). Schreiber sued Uffner claiming breach of a promissory note, theft, and conversion, and sought an injunction. In answering the complaint, Uffner acknowledged the existence of a promissory note and security agreement in favor of Schreiber. According to Uffner, however, the note was subsequently assigned to Presidential in consideration for a loan made to Schreiber, and Presidential thereafter released Uff-ner from any obligation. Uffner also alleged the property and accounts they took belonged to Uffner.

Uffner filed a third party complaint against Presidential for conspiracy to defraud. Uffner alleged that Presidential conspired with Schreiber to wrongfully foreclose on the promissory note and to fraudulently transfer Uffner’s assets. Specifically, Uffner alleged that its assets were disposed of in a commercially unreasonable manner because the property was not properly valued, was offered without competitive bidding only to Schreiber, and was transferred to Schreiber without proper consideration.

The trial court dismissed the third party complaint for failure to allege a claim for indemnity, contribution, or subrogation. Uffner then filed a separate action against Presidential. Presidential moved to dismiss this action on the ground that the conspiracy claim could not stand without allegations of an underlying tort or wrong. The trial court also dismissed the separate action.

On appeal, Presidential contends that both the third party complaint and the separate complaint were properly dismissed. Uffner, however, asserts that their separate complaint sufficiently alleges an underlying tort or wrong to support the conspiracy claim against Presidential. We agree with Uffner.

Turning first to the third party complaint, we affirm the trial court’s dismissal. Before a party may allege any other cause of action against a third party defendant, he or she must first assert a claim for indemnity, contribution, or subro-gation. Fla. R. Civ. P. 1.180(a); Leggiere v. Merrill Lynch Realty/Fla., Inc., 544 So.2d 240 (Fla. 2d DCA 1989). Here, the facts do not give rise to a claim of indemnity, contribution, or subrogation against Presidential. Therefore, the trial court properly dismissed the third party complaint against Presidential.

Turning to the separate action, we determine that the trial court erred in dismissing the complaint. “A civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997).

In the conspiracy claim, Uffner alleges Presidential entered into an agreement with Schreiber to defraud Uffner. The improper valuation and asset transfer to Schreiber, without competitive bidding or proper compensation, was the underlying tort or wrong. The overt act in furtherance of the conspiracy was transferring Uffner’s inventory and customer lists to Schreiber. Uffner also alleged damages resulting from these acts. Therefore, the complaint pleads a claim of conspiracy to defraud against Presidential that is sufficient to overcome dismissal.

Accordingly, we affirm the order dismissing the third party complaint, and reverse the order dismissing the complaint filed in the separate action. Because the claims against the various parties are intertwined, the trial court might consider consolidating the two cases.

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