author: SCHWARTZ, Senior Judge.

text:
    Martha D. ECHEZARRETA, Appellant, v. Eduardo ECHEZARRETA, Appellee.
    No. 3D06-2108.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.
    Steven N. Abramowitz, for appellant.
    llene F. Tuckfield, for appellee.
    Before GREEN and SHEPHERD, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The mother, who, in a Miami-Dade County dissolution judgment of October 9, 2003, had been granted primary physical, residence of the couple’s twelve and thirteen year-old daughters, appeals from orders (a) denying her application to relocate with the children to Daytona Beach and (b) temporarily granting custody of the children to the father so they could continue to attend school in Miami-Dade County. We affirm both orders.

I.

On the relocation issue, we reject the claim that, under the then-prevailing law, the mother had the right to relocate even without the permission of the court. See Fredman v. Fredman, 917 So.2d 1038 (Fla. 2d DCA 2006); Shafer v. Shafer, 898 So.2d 1053 (Fla. 4th DCA 2005); Fabre v. Levine, 618 So.2d 317 (Fla. 1st DCA 1993), review denied, 629 So.2d 132 (Fla.1993); Hill v. Hill, 548 So.2d 705 (Fla. 3d DCA 1989), review denied, 560 So.2d 233 (Fla.1990). In our judgment, this rule does not apply to this case both because (a) the parties’ marital settlement agreement, incorporated into the judgment of dissolution, specifically stated that the issue of shared parental responsibility would be governed by section 61.13, Florida Statutes (2003), which includes the then-controlling relocation statute, § 61.13(2)(d), Fla. Stat. (2003); Lancaster v. Briley, 932 So.2d 549 (Fla. 1st DCA 2006); Jensen v. Jensen, 904 So.2d 635 (Fla. 4th DCA 2005), and (b) both parties, including the appellant herself by explicitly moving for permission to relocate, invoked the jurisdiction of the court to consider and rule upon the issue. See Fredman, 917 So.2d at 1038. On the merits, we find no abuse of discretion or error of law in the trial court’s denial of that permission. See Shafer, 898 So.2d at 1058; Adams v. Shiver, 890 So.2d 1199 (Fla. 1st DCA 2005); Van Asten v. Costa, 874 So.2d 1244 (Fla. 4th DCA 2004).

II.

Although we agree with the thrust of the appellant’s argument that a change in custody cannot be employed to punish the custodian either for failing to abide by the obligation meaningfully to “share parental responsibility,” see Burckle v. Burckle, 915 So.2d 747 (Fla. 2d DCA 2005); Decker v. Lyle, 848 So.2d 501 (Fla. 2d DCA 2003); Landingham v. Landingham, 685 So.2d 946 (Fla. 1st DCA 1996); State ex rel. Tilden v. Utreva, 386 So.2d 1 (Fla. 3d DCA 1980); see also Cecena v. Chambers, 938 So.2d 646 (Fla. 2d DCA 2006), or for other assumed wrongdoing, see Rose v. Ford, 861 So.2d 490 (Fla. 4th DCA 2003); Meixner v. Meixner, 785 So.2d 600 (Fla. 3d DCA 2001); Andrews v. Andrews, 624 So.2d 391 (Fla. 2d DCA 1993); see also Rahall v. Cheaib-Rahall, 937 So.2d 1223 (Fla. 2d DCA 2006), we hold, on the particular facts of this case— in which the mother enrolled the children in school in Delray Beach less than a week after the permission to relocate had been denied — that it was within the court’s discretion to require a change in custody to the father on an interim basis so that they could be — as they now have been — enrolled in school at their former home. See Bini v. Bini, 828 So.2d 470 (Fla. 5th DCA 2002).

We caution, as did the trial court, that the ruling we now approve is only temporary and is not to be construed as affecting in any way the requirements necessary to justify a modification of the custody provision of the final judgment. See Wade v. Hirschman, 903 So.2d 928, 935 (Fla.2005); Bazan v. Gambone, 924 So.2d 952 (Fla. 3d DCA 2006), review denied, No. SC06-892, 944 So.2d 344 (Fla.2006); Gutierrez v. Medina, 613 So.2d 528 (Fla. 3d DCA 1993).

Affirmed.

      . Under the now-applicable statute, § 61.13001, Fla. Stat. (2006), which became effective on October 1, 2006, ch. 2006-245, § 2, at 2721, Laws of Fla., the relocation of children is always open to judicial scrutiny.

      . The court stated:
      [A]s soon as she gets on her feet and back in Miami, I’ll entertain a motion for a transfer of the children back to the former wife.... As soon as that is accomplished and you are back to the status quo again. And it is the intent of the Court to get back to the status quo, but that is as soon as Mrs. Echezaretta acts.

      . If the mother decides to return to Miami-Dade County so that the children may continue to attend their present school, it may, at the least, be very difficult for the father to establish the prerequisites for a change of primary physical residence. See Bryant v. Bryant, 882 So.2d 1066 (Fla. 5th DCA 2004); Mehler v. Mehler, 555 So.2d 1295 (Fla. 3d DCA 1990); Zugda v. Gomez, 553 So.2d 1295 (Fla. 3d DCA 1989); see also Muniz v. Muniz, 789 So.2d 370, 379-80 (Fla. 3d DCA 2001)(Schwartz, C.J., dissenting in part).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    S.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-1953.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.
    Albert W. Guffanti, Miami, and David S. Molansky, for appellant.
    Mercedes E. Scopetta; Karla Perkins, Miami, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

S.M. appeals a final judgment of dependency of her two children. We reverse, finding that the orders are not supported by substantial competent evidence. T.G. v. Dep’t. of Children & Families, 927 So.2d 104 (Fla. 1st DCA 2006).

At best, the record in this case demonstrates a single incident of corporal discipline, as testified to by the child. Section 39.01(30)(a)4, Florida Statutes (2005), states that corporal discipline may be considered excessive or abusive when it results in a physical injury, including “temporary disfigurement” or “[significant bruises or welts.” Here, there was no evidence that the child had bruises of such significance or that he had any temporary disfigurement. The trial court did not make any finding to this effect. See J.C. v. Dep’t. of Children & Families, 773 So.2d 1220 (Fla. 4th DCA 2000). Reasonable corporal discipline of a child by a parent or legal custodian for disciplinary purposes is not in itself abusive under the statute when it does not result in harm to the child. § 39.01(2), Fla. Stat. (2005); L.M.C. v. Dep’t. of Children & Family Services, 934 So.2d 623 (Fla. 2d DCA 2006); T.G., 927 So.2d at 106; A.A. v. Dep’t. of Children & Families, 908 So.2d 585 (Fla. 5th DCA 2005). The marks on one child’s body were, as admitted by the child’s un-contradicted testimony, inflicted in accidents, or by a cousin. There is no evidence in the record at all as to any abuse of the other child. Neither child required medical attention nor is there evidence that the children are likely to be harmed. J.C. Hence, there is no evidence to support the judgment in this case.

Reversed and remanded.


author: PLEUS, C.J.

text:
    Chad Adrian WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3308.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 2006.
    Paul E. Bross, of Bross, Bross, Thomas & Mays, LC., Merritt Island, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, C.J.

The defendant appeals from his conviction and sentence for sexual battery on a person less than 12 years of age by a person 18 years of age or older. He raises two points, neither of which we find meritorious.

First, the trial court did not abuse its discretion in denying the defendant’s motion for a continuance made after the State, on the eve of trial, was permitted to add as a witness the victim’s mother, whose recent whereabouts were just discovered. The trial court allowed the defense to depose the witness and a transcript of her deposition testimony was prepared before she testified at trial. The defense may have been inconvenienced by the court’s decision to allow the witness to testify, but inconvenience does not transcend into undue prejudice which the defendant was required to show for reversal. See Randolph v. State, 853 So.2d 1051 (Fla.2003); Fennie v. State, 648 So.2d 95 (Fla.1994).

Second, the defendant’s claim that fundamental error occurred in connection with the prosecutor’s opening and closing argument is likewise unconvincing. Many of the unobjected-to comments during closing, wherein the defendant argues the prosecutor impermissibly vouched for the credibility of the victim, were permissible argument that, based on the circumstances surrounding her testimony, the witness was worthy of belief. See Miller v. State, 926 So.2d 1243 (Fla.2006). Other argument amounted to fair comment on the evidence. The unobjected-to arguments whereby the prosecutor improperly embellished the State’s case are not the type of egregious remarks which rise to the level of fundamental error, particularly given that the jury was explicitly instructed that opening and closing argument do not themselves constitute evidence. Compare Ruiz v. State, 743 So.2d 1 (Fla.1999).

AFFIRMED.

LAWSON and EVANDER, JJ., concur.


text:
    Franklin James NUNE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3111.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 2006.
    Franklin J. Nune, Jr., Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We review the summary denial of Appellant’s rule 3.800(a) motion. We reverse because the trial court did not attach record support to refute Appellant’s claim that his sentence on the third-degree felony in Marion County case number 04-2524 was illegal.

Although Appellant’s sentences on the second-degree felonies were proper because they fell within the statutory maximum, Appellant’s sentence of 80.325 months on the third-degree felony exceeded the statutory maximum for that offense. Therefore, the sentence was illegal unless his Criminal Punishment Code score authorized the sentence. The scoresheet, however, includes 80 points for penetration that Appellant asserts is a fact that was not established in compliance with Appren-di and its progeny.

On remand the court shall either subtract 40 points from Appellant’s score-sheet and resentence him accordingly or attach portions of the record that refute his claim.

REVERSED and REMANDED.

PALMER, TORPY and EVANDER, JJ., concur.

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

      . Appellant argues that 40 contact points are not appropriate either, but we reject that argument. Appellant’s guilty plea to unlawful sexual activity with a minor includes the ac-knowledgement that contact occurred. See § 794.05(1), Fla. Stat. (2006); Hindenach v. State, 807 So.2d 739 (Fla. 4th DCA 2002) (where defendant pled nolo contendere to DUI causing serious bodily injury, he waived his right to a jury finding on whether the victim injury was severe).


author: BROWNING, C.J.

text:
    Robert Carter CONNELL and Connell & Son, Inc., Appellants, v. Mary RIGGINS as Guardian of the Person and Property of Caleb Riggins, Appellee.
    No. 1D05-4064.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2006.

      Raymond L. Roebuck and Breña B. Huffman, of the Roebuck Law Office, Jacksonville, for Appellants.
    Steven R. Browning, Norwood S. Wil-ner, and Gregory H. Maxwell, of Spohrer, Wilner, Maxwell & Matthews, P.A., Jacksonville, for Appellee.
   BROWNING, C.J.

Robert Carter Connell, the defendant in the trial court, appeals from a final judgment entered in favor of the plaintiff, Caleb Riggins, in the third trial arising from a vehicular accident involving Mr. Connell and Mr. Riggins. Mr. Connell contends that the trial court reversibly erred by, inter alia, applying Florida comparative negligence law to the issue of liability and damages in this case; using information in the hearsay State of Georgia Department of Public Safety driver’s manual, in effect, to instruct the jury that Mr. Connell was negligent per se; and allowing surprise testimony by Mr. Riggins’ motor vehicle accident reconstruction expert (Thomas Feiereisen) and argument based on this expert’s prejudicial testimony. Concluding that these three rulings constitute reversible error, we are constrained to reverse the final judgment and remand for a new trial.

The accident in question occurred on November 20, 1998, around 3:40 p.m. when a four-ton Ford 350 pickup truck driven by Mr. Connell struck the compact-size Plymouth Horizon hatchback automobile driven by Mr. Riggins at a busy intersection in St. Marys, Georgia. The collision left Mr. Riggins severely injured, and he sued Mr. Connell and Mr. Connell’s employer, Con-nell & Sons, Inc. (which owned the pickup truck and is no longer in operation), in the Duval County Circuit Court.

Choice of Law

A key issue in the trial court was whether to apply Florida comparative negligence law rather than Georgia law to the issue of negligence and damages. This choice-of-law matter is a legal question subject to our de novo review. See Collins Moving & Storage Corp. of S.C. v. Kirkell, 867 So.2d 1179, 1181 (Fla. 4th DCA 2004); Henry v. Windjammer Barefoot Cruises, 851 So.2d 731, 734 (Fla. 3d DCA 2003), receded from on other grounds, Tananta v. Cruise Ships Catering & Servs. Int’l, N.V., 909 So.2d 874, 882 (Fla. 3d DCA 2004) (en banc). Florida courts apply the “significant relationship” test to decide which state’s laws apply to various elements of trials. See Bishop v. Fla. Specialty Paint Co., 389 So.2d 999 (Fla.1980). As a general principle:

The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in s. 6.

Id. at 1001 (quoting Restatement (Second) of Conflict of Laws, § 145(1) (1971)). Section 6 of this Restatement (Second) sets out the following factors as material considerations in choice-of-law decisions in all areas of the law:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Bishop, 389 So.2d at 1001 n. 1 (quoting Restatement (Second) of Conflict of Laws, § 6 (1971)).

In Bishop, the Supreme Court of Florida rejected the strict application of the long-held, inflexible lex loci delicti rule, adopted the Restatement (Second) of Conflict of Laws (1971) test from sections 145-146, and held that in a conflict-of-laws situation, consideration should be given to four main factors: 1) “the place where the injury occurred,” 2) “the place where the conduct causing the injury occurred,” 3) “the domicil, residence, nationality, place of incorporation and place of business of the parties,” and 4) “the place where the relationship, if any, between the parties is centered.” See id. at 1001. The Bishop court noted that the analysis set forth in the Restatement (Second) does not abandon the “place of injury” rule completely. In fact, the supreme court quoted section 146 of the Restatement (Second) of Conflict of Laws (1971), which expressly addresses “personal injuries” and states:

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

The Bishop court noted that, under most circumstances, the state where the injury occurred will be “the decisive consideration in determining the applicable choice of law.” See 389 So.2d at 1001; State Farm Mut. Auto. Ins. Co. v. Olsen, 406 So.2d 1109, 1111 (Fla.1981) (holding that Illinois law controlled under the “significant relationship” test in a personal injury lawsuit, where Illinois was the site of an automobile accident involving an uninsured Illinois motorist and a fatally injured Florida resident who was insured under a Florida policy of automobile liability insurance, and Illinois had a paramount interest in the rights of its citizens who were subject to subrogation by an insurer on any uninsured motorist coverage it paid).

Determining which state’s negligence law applies is pivotal to the outcome of this case. Under Florida’s “pure” comparative negligence scheme, liability is apportioned according to each party’s percentage of negligence. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973) (abolishing doctrine of contributory negligence). In contrast, Georgia’s “modified” comparative negligence law protects a defendant from judgment altogether if the defendant’s negligence is equal to, or less than, the plaintiffs negligence. See DeVooght v. Hobbs, 265 Ga.App. 329, 593 S.E.2d 868, 873 (2004); Whelan v. Moone, 242 Ga.App. 795, 531 S.E.2d 727, 730 (2000) (finding no error in trial court’s instructing jury that if it found plaintiffs negligence was less than defendant’s, then plaintiff would not be precluded from recovery of damages, but jury would be required to reduce amount of damages otherwise awarded to plaintiff in proportion to plaintiffs negligence compared to defendant’s negligence).

In the third and most recent trial, Mr. Connell filed a motion to apply Georgia law to all issues of negligence and damages. Mr. Riggins argued that while Georgia law should be applied to issues relating to the parties’ conduct, Florida law should be applied to the issues of comparative negligence and the apportionment of damages. The parties agree that Bishop sets forth the appropriate analysis for resolving the choice-of-law question. It is undisputed that the only two states involved in this litigation are Georgia and Florida. Sections 145 and 146 of the Restatement (Second) of Conflict of Laws (1971) provide that the “significant relationship” question must be determined with respect to “the particular issue under consideration”; this “does not require the court to evaluate the recited contacts with a view to determine which state’s local law should be applied to all issues in the case as a whole.” See Stallworth v. Hospitality Rentals, Inc., 515 So.2d 413, 415 (Fla. 1st DCA 1987) (emphases in original).

In resolving the significant relationship question, we, like the Bishop court, look to section 145(2)(a)-(d) of the Restatement (Second) of Conflict of Laws (1971), which sets out Factors (a) through (d) in determining the types of “[cjontacts to be taken into account.” As to the first two factors, “the conduct causing the injury” occurred in Georgia, which is also “the place where the injury occurred.” The third factor deals with residency, the place of incorporation, and the place of business. Mr. Riggins and his family are Georgia residents. Mr. Connell, a Florida resident, was an employee of a now-defunct Jacksonville, Florida-based company but was driving in Georgia at the time of the accident as a result of his ongoing commute from Florida to a work project on a naval base in Georgia. The fourth factor is “the place where the relationship, if any, between the parties is centered.” The record disclosed no prior contact or relationship between the parties up to and until their motor vehicles collided in Georgia, injuring Mr. Riggins. Mr. Riggins filed this lawsuit in the Florida trial court.

“In an action for a personal injury, the local law of the state where the injury occurred,” ie., Georgia, “determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state” — Florida is the only other state with any relationship to this case— “has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.” Restatement (Second) of Conflict of Laws § 146 (1971); Murphy v. Thornton, 746 So.2d 575, 575-76 (Fla. 1st DCA 1999). Therefore, in this negligence litigation, as Georgia was the site of the accident, its local law determines the parties’ rights and liabilities respecting the issues of negligence and damages unless Florida has a more significant relationship to this case upon a proper consideration of the relevant factors set forth in section 6 of the Restatement (Second) of Conflict of Laws (1971).

In its written order concluding that Florida has the more significant relationship to this case with respect to the apportionment of damages, the trial court acknowledged Factors (a) through (g), supra, from section 6 of the Restatement (Second) of Conflict of Laws (1971) but did not find Factors (a) (“the needs of the interstate and international systems”) or (e) (“the basic policies underlying the particular field of law”) to be especially pertinent. As to Factor (b), “the relevant policies of the forum,” the court cited statutory law from the chapter on “Negligence” expressing Florida’s policy of loss allocation:

(2) EFFECT OF CONTRIBUTORY FAULT. — In an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.

§ 768.81(2), Fla. Stat. (2001); see Y.H. Inv., Inc. v. Godales, 690 So.2d 1273, 1277 (Fla.1997) (construing section 768.81, Florida Statutes, as “a legislative policy choice to apportion liability for damages based upon a party’s fault in causing the damage”). Addressing Factor (c), “the relative policies of other interested states” and the other states’ “relative interest ... in the determination of the particular issue,” the trial court noted that Georgia’s courts have indicated that state’s public policy is established by the Georgia Legislature, not by the courts. See Borden v. Johnson, 196 Ga.App. 288, 395 S.E.2d 628, 629 (1990). In Georgia, the “equal to or greater than” bar to plaintiffs has been codified in the following statute:

If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.

Ga.Code. Ann. § 51-11-7; see Whelan, 531 S.E.2d at 730; Underwood v. Atlanta & W. Point R.R. Co., 105 Ga.App. 340, 124 S.E.2d 758, 772-73 (construing identical language in predecessor statute), aff'd in part and reversed in part, 218 Ga. 193,126 S.E.2d 785 (1962). The first sentence in this statute embodies Georgia’s contributory negligence rule, whereas the second sentence sets forth the comparative negligence rule. See id. This provision has been construed by the Georgia courts to require that a plaintiff prove that he or she was less negligent than the defendant in order to recover. See id.; accord Neiswonger v. Janies, 196 Ga.App. 607, 396 S.E.2d 553, 555 (1990) (noting that a plaintiff is denied recovery under Georgia law only where plaintiffs negligence is equal to, or greater than, defendant’s negligence); Maulding v. Atlanta Transit Sys., Inc., 101 Ga.App. 11, 112 S.E.2d 666, 668 (1960). Balancing Florida’s and Georgia’s respective interests on the issue of fault and damages, the trial court concluded that Florida “has a strong public policy of requiring defendants to respond in damages according to their percentage of fault.” The court determined that Georgia “either has the same policy or it has no policy at all on the issue.” The Georgia Court of Appeals’ decision in Whelan, 531 S.E.2d at 730, indicates that the “equal to or greater than” bar is Georgia’s “judicially engrafted component of the comparative negligence rule,” a modified comparative negligence rule that protects a plaintiff who is at fault, but less so than the defendant, thereby mitigating the harsh effects of the pure contributory negligence doctrine. See Godales, 690 So.2d at 1275. The trial court concluded that the application of Florida’s pure comparative negligence rule would not adversely affect the Georgia resident, Mr. Riggins, in the instant case. The court determined that Florida has the greater interest in having a Florida jury resolve comparative negligence issues in a case pending in Florida, where a Florida defendant may be liable. See Wal-Mart Stores, Inc. v. Budget Rent-A-Car Sys., 567 So.2d 918 (Fla. 1st DCA 1990). The court concluded that “Florida’s interest clearly outweighs that of Geo[r]gia in applying its rules to this case.”

As to Factor (d), the court noted that Mr. Connell had shown no justifiable expectations that he actually had, or could have been expected to have, regarding the apportionment of damages. Rather, the court found that Mr. Connell’s “justified expectations are the same as any other Florida defendant in a negligence action being tried in Florida.”

Applying Factors (f) and (g),“certainty, predictability, and uniformity of result” and “ease in the determination and application of the law to be applied,” respectively, the trial court remarked that Georgia’s own courts have acknowledged that their decisions involving the rules for loss allocation “have been somewhat confusing.” Underwood, 124 S.E.2d at 773; see Willis v. Jones, 89 Ga.App. 824, 81 S.E.2d 517, 518 (1954) (noting that decisions on question of plaintiffs and defendant’s negligence, and effects thereof, have been “confusing and conflicting”). The trial court stated that “under Georgia’s rules of decisions where there is a conflict in an older case and a later case, the older case takes precedence.” To support this dubious proposition, the court cited Smith v. Maynard, 214 Ga. 764, 107 S.E.2d 815, 818 (1959), which, from our reading, simply does not so hold. Concluding that this historic confusion or conflict in Georgia’s case law interpreting the law of negligence and damages placed the trial court “in the untenable position of having to cho[o]se between two diametrically opposed yet arguably correct interpretations of Georgia law,” the court opted for Florida law in an effort to find clarity in the expression of the rule.

Georgia is where Mr. Riggins’ injuries occurred, where the conduct causing the injury occurred, where Mr. Riggins resides, and where Mr. Connell was working pursuant to contract work at the time of the collision. The Florida Supreme Court’s reasoning in Bishop and Olsen begins with the assumption that the law of Georgia (the site of the collision and injuries) should be applied. See Bishop, 389 So.2d at 1001 (noting that conflicts theory set out in Restatement (Second) of Conflict of Laws does not completely reject “place of injury” rule, and “[t]he state where the injury occurred would, under most circumstances, be the decisive consideration in determining the applicable choice of law”); Olsen, 406 So.2d at 1111. The only Florida connections relate to Mr. Connell’s home residence, the place of business of Connell & Son, Inc., and the location of the circuit court where the lawsuit was filed. As a matter of law, Florida does not have a more significant relationship than Georgia to the occurrence and to the parties. See Barker v. Anderson, 546 So.2d 449, 450 (Fla. 1st DCA 1989) (affirming Florida trial court’s determination that Georgia law applied to issues of negligence and joint and several liability in action arising out of automobile accident, even though plaintiff and defendant were Florida residents, where accident occurred in Georgia, third-party defendant had contacts with Georgia, and defendant alleged that intersection where collision occurred was unreasonably hazardous). Having carefully considered the myriad factors and underlying policies in the Restatement (Second) of Conflict of Laws (1971), sections 6, 145, and 146, we conclude that the trial court reversibly erred by applying Florida law to the issues of negligence and damages in this case.

Jury Instruction Relying on Hearsay Driver’s Manual

Shortly before the collision with Mr. Riggins’ automobile, Mr. Connell, who had the right-of-way, was approaching the intersection with a flashing yellow caution signal ahead. Mr. Riggins was on the crossroad, which had a flashing red traffic signal. Over a hearsay objection, the trial court read to the jury Plaintiffs Proposed Jury Instruction 9, as follows:

I further charge you that Caleb Riggins had no duty to yield the right-of-way if you find that Caleb Riggins, after stopping and looking, did not see Mr. Con-nell’s truck as Caleb Riggins entered the roadway. Every person driving in Georgia is under a duty to know and obey the rules established by the Georgia Department of Public Safety. These rules provide that a driver approaching a flashing yellow caution light must slow down and exercise caution before proceeding through the intersection.

In closing argument, defense counsel had cited certain traffic safety statutes and had argued to the jury that “the Georgia Legislature makes traffic laws” and “is the lone entity in the state that can make a law as to what drivers should do.” Defense counsel urged the jury to distinguish between the definitive statutes (requiring individuals to proceed through flashing yellow lights with caution) and any rule in a driver’s manual published by “some safety board” that might require additionally that drivers slow down when approaching a flashing yellow caution light.

A trial court’s ruling on a jury instruction is reviewed for an abuse of discretion. See Berman Bros., Inc. v. Hart, 915 So.2d 689, 690 (Fla. 1st DCA 2005); Howell v. Winkle, 866 So.2d 192, 197 (Fla. 1st DCA 2004). Mr. Connell contends that the trial court abused its discretion by giving the jury instruction based on the rule in the Georgia Department of Public Safety’s hearsay driver’s manual. Mr. Connell notes that in our opinion issued in the appeal after the first trial, we expressly agreed with Mr. Connell’s position that the driver’s manual should not have been admitted into evidence for the purpose given in the instruction. See Connell v. Riggins, 820 So.2d 1076 (Fla. 1st DCA 2002); Sikes v. Seaboard Coast Line R.R. Co., 429 So.2d 1216, 1220-21 (Fla. 1st DCA 1983) (characterizing the written Florida Driver’s Handbook, a public document, as “a classic example of hearsay” that was erroneously admitted into evidence under the “public records and reports” exception). Mr. Riggins correctly notes in response that during the third trial, no attempt was made to introduce the driver’s manual itself into evidence. Although this is true, Mr. Connell counters that the challenged instruction, which is based on information from the inadmissible driver’s manual, misinformed and misled the jury regarding the applicable standard of care, rising to the level of prejudicial error.

Under Georgia statutory law expressly addressing a flashing yellow caution signal, “[w]hen a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past such signal only with caution.” Ga.Code Ann. § 40-6-23(2). Although “with caution” is not defined in the statute, it “must entail, at a minimum, keeping a proper lookout for other vehicles approaching the intersection.” Lewis v. Ready, 247 Ga.App. 747, 544 S.E.2d 502, 504 n. 8 (2001). Whereas the statutory standard of care allows a driver such as Mr. Connell to proceed “with caution” through the intersection with a flashing yellow traffic signal, the instruction read to the jury and taken from the driver’s manual rule effectively indicated that a driver in Mr. Connell’s position “must slow down and exercise caution” before passing through the intersection. This instruction improperly allowed the jury to find that Mr. Connell was required under Georgia law to slow down. This instruction permitted the jury to conclude that, even if Mr. Connell otherwise exercised caution before proceeding through the intersection where he collided with Mr. Riggins’ car, Mr. Con-nell failed to meet the standard of care if he did not slow down as he approached the flashing signal. The posted limit on the section of four-lane road on which Mr. Connell was driving immediately before the accident was 55 m.p.h. The jury heard some evidence indicating that Mr. Connell was driving at approximately the posted speed as he approached the intersection; and that he did not slow down until just moments before the crash, when he suddenly observed Mr. Riggins’ automobile and slammed on his truck brakes, leaving a 58-foot pre-impact skid mark. Because the instruction given misinformed the jury on the applicable standard of care and prejudiced the defense, the trial court abused its discretion.

Accordingly, we REVERSE the final judgment and REMAND for a new trial.

WOLF and WEBSTER, JJ„ concur.


text:
    James A. MATHIS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-1135.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2006.

      James A. Mathis, pro se, Petitioner.
    Susan Schwartz, Assistant General Counsel, Tallahassee, for Respondent.
   BROWNING, C.J.

Petitioner seeks certiorari review of the denial of his habeas petition under Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997), aff'd, 720 So.2d 216 (Fla.1998). Because it is not clear that the law was followed, we grant the petition, quash the order below, and remand for proceedings consistent with this opinion.

Petitioner was sentenced to life imprisonment, and released on parole in 1998. In 2004, he was arrested for trespass, to which he pled nolo contendere. As a result, he was charged with violating his parole by committing a new law offense and by changing his residence without first obtaining permission from his parole officer. Petitioner defended his parole revocation by presenting evidence that he absented himself from his residence and spent one night only on posted public property because his life was in danger. The hearing officer entered a recommended order providing that Petitioner be reinstated to parole. The record is silent as to whether or not the hearing officer based his recommendation on a determination that the violation was not willful, or whether he was merely making a policy recommendation to the Parole Commission. Nonetheless, the Parole Commission revoked Petitioner’s parole. Petitioner sought habeas relief, which was denied by the trial court on the reasoning that he had not shown that the Parole Commission abused its discretion or denied him due process of law.

On review of the petition for cer-tiorari, this Court must determine “whether the circuit court afforded due process and whether the court observed the essential requirements of law.” Richardson v. Fla. Parole Comm’n, 924 So.2d 908, 910 (Fla. 1st DCA 2006) (citations omitted). Only a willful violation of a substantial condition of parole or probation will justify revocation of parole or probation. See Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). These findings are factual in nature. See Ellis v. Fla. Parole Comm’n, 911 So.2d 831, 832 (Fla. 1st DCA 2005). Therefore, they must be made by the hearing officer. Accordingly, when reviewing parole revocation proceedings, the circuit court must determine whether the record contains competent substantial evidence to support the factual findings of the hearing officer. See Richardson, 924 So.2d at 911.

Because it is not clear from either the hearing officer’s records or the Parole Commission’s order of revocation of parole whether Petitioner’s violations of probation were found to be willful, the trial court could not have reviewed the proceedings here and determined that they were supported by competent substantial evidence in the record. Because the trial court could not apply the correct law, it could not have observed the essential requirements of law. Accordingly, we GRANT the certiorari petition, QUASH the trial court’s order denying the petition for ha-beas corpus, and REMAND with instructions that the trial court quash the Parole Commission’s order of revocation, and that the proceedings be remanded for a factual determination by the hearing officer of whether Petitioner’s violations were willful.

KAHN and DAVIS, JJ., concur.


text:
    Steven NIXON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5444.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2006.
    Steven Nixon, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this appeal is dismissed for lack of jurisdiction. This dismissal is without prejudice to appellant’s right to file a petition for belated appeal. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Jerry DOTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5750.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2006.
    Jerry Doty, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. This disposition is without prejudice to petitioner seeking to reinstate his appeal in case number 1D06-3069.

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


author: FULMER, Chief Judge.

text:
    Phillip DESMOKE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1089.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2006.
    See also, 912 So.2d 1284.

      Phillip Desmoke, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Chief Judge.

Phillip Desmoke challenges his sentence for aggravated stalking. His sole argument on appeal is that the trial court sentenced him to five years of imprisonment rather than the scoresheet calculation of 50.175 months. His argument fails because the scoresheet calculation gives the lowest permissible sentence in months; the court is permitted to sentence the defendant to any time period between the lowest permissible sentence and the statutory maximum. See § 921.0024(2), Fla. Stat. (2000). Aggravated stalking is a third-degree felony, § 784.048(4), Fla. Stat. (2000), for which the maximum permissible sentence is five years, § 775.082(3)(d), Fla. Stat. (2000). There was therefore no error in the sentence imposed by the trial court.

Affirmed.

CASANUEVA and DAVIS, JJ., Concur.


author: PER CURIAM. BENTON, J.,

text:
    V.B., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1905.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2006.
    Nancy A. Daniels, Public Defender; M.J. Lord, Assistant Public Defender; and David H. Abrams, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Felicia A. Wilcox and Betty Cheramie, Assistant Attorneys General, Tallahassee, for Appel-lee.
   PER CURIAM.

V.B., a juvenile, appeals from an order imposing restitution, contending that the order violated her right to protection against double jeopardy. We agree and reverse.

V.B. entered a plea of nolo contendere to a charge of trespass of a conveyance on August 3, 2005, and agreed to pay restitution, with the amount to be determined within 90 days. In the disposition order, the trial court scheduled the restitution review for August 29, 2005. At the later hearing, the state announced that “there’s no restitution been ordered in this case,” and the judge confirmed that she would take V.B. off the docket. The Juvenile Delinquency Minutes from the August 29 hearing state: “No restitution on this case.”

Four months later, the state moved for relief under Florida Rule of Juvenile Procedure 8.270(b)(1), alleging that the prosecutor had erroneously announced at the August 29, 2005, hearing that the state was not seeking restitution, because it mistakenly believed V.B.’s brother was responsible for payment of restitution. The trial court granted the motion and, after a subsequent restitution review in April 2006, entered an order directing V.B. to pay the victim $1,200.00. This was error.

We review this issue de novo. See State v. Paul, 934 So.2d 1167 (Fla. 2006). The trial court erred as a matter of law in ordering restitution after the court had accepted the state’s representation at the original restitution review that it would not seek restitution. Once the court has entered an order setting the amount of restitution, jeopardy attaches, notwithstanding that its entry was the result of faulty information, thereby precluding the court from modifying the amount. See Ely v. State, 855 So.2d 90 (Fla. 2d DCA 2003); J.C. v. State, 632 So.2d 1092 (Fla. 2d DCA 1994).

Although the court below did not enter a formal written order, it clearly appears from our review of the record that the court accepted the state’s announcement of no restitution and that the proceeding then terminated. Cf Dolinger v. State, 779 So.2d 419 (Fla. 2d DCA 2000) (despite the trial court’s failure to enter a written order revoking the defendant’s probation, the appellate court ruled that the transcript clearly revealed the defendant had admitted the violations, and the lower court’s oral revocation order was based on these admissions; thus, the case was remanded with directions to the trial court to enter a written revocation order). Accord Bridgewater v. State, 668 So.2d 1092 (Fla. 1st DCA 1996).

At the August 29, 2005, proceeding, the state did not request to present evidence during a later hearing; indeed, the state candidly admitted in its motion for relief that it believed V.B.’s brother would be held accountable for the payment of restitution, rather than V.B. At the close of the hearing, jeopardy attached, and the court could not later impose an additional obligation.

This case is analogous to Strickland v. State, 681 So.2d 929 (Fla. 3d DCA 1996), wherein the court ordered the defendant to pay $835 in restitution for the victim’s medical expenses, and concluded the hearing. An hour later, another hearing was convened at which the state presented evidence of the victim’s dental expenses and lost wages, and the court ordered Strickland to pay those additional costs as well. The Third District reversed and remanded, observing that at the first hearing

[n]o indication was given by the state that there were any further expenses. No request was made for the court to retain jurisdiction to determine at a later time the amount of restitution Strickland would be obligated to make. It is clear from the record that everyone took the $835 figure as the final amount. Thus, once the sentencing hearing was over, Strickland’s sentence was final and the state lost its ability to request restitution for the additional items.

Id. at 930.

The order of restitution is REVERSED and the case is REMANDED with directions to the trial court to enter a written order of no restitution.

ERVIN and DAVIS, JJ., Concur; BENTON, J., Concurs in Judgment with Opinion.

BENTON, J.,

concurring in judgment.

Florida Rule of Juvenile Procedure 8.270 appears in Part II of the rules, which is devoted to “DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS PROCEEDINGS.” Florida Rule of Juvenile Procedure 8.270(b)(1) does not pertain to delinquency proceedings — governed by Part I of the juvenile procedure rules — and does not authorize the state to seek the relief it sought and obtained here.

Florida Rule of Juvenile Procedure 8.135 (“Correction of Disposition or Commitment Orders”), the rule that does apply in delinquency proceedings, contains a specific limitation that the order under review failed to heed: “Motions may be filed by the state under this subdivision only if the correction of the error would benefit the child or to correct a scrivener’s error.” Fla. R. Juv. P. 8.135(b).

      . This provision authorizes relief based upon "[mjistake, inadvertence, surprise, or excusable neglect.”

      . The prohibition against double jeopardy applies in juvenile adjudications. See Lisak v. State, 433 So.2d 487 (Fla.1983); Williams v. State, 742 So.2d 496 (Fla. 1st DCA 1999).


text:
    P.S., Mother of C.S., a minor child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 1D06-2793.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2006.

      James R. Goff, Esq., Northwest Florida Legal Services, Inc., Pensacola, for Appellant.
    Katie George, Chief Legal Counsel, Richard D. Cserep, Assistant District Legal Counsel, Department of Children & Families, Pensacola, and Wendie Michelle Cooper, Guardian ad Litem Program, Orlando, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s order terminating her parental rights respecting C.S. Appellee concedes that the trial court’s order was in error on this point. In light of appellee’s concession and request that the matter be remanded for further proceedings, we reverse and remand to the trial court.

Appellee filed a Petition for Involuntary Termination of Parental Rights alleging that sections 39.806(l)(c) and (e), Florida Statutes, provided grounds for terminating the parental rights of both appellant and the father. With respect to the father, appellee also included an allegation that section 39.806(l)(g), Florida Statutes, provided an additional ground for termination. In terminating the parental rights of the father, the trial court’s order relies upon section 39.806(l)(f), Florida Statutes. Appellee concedes that section 39.806(l)(f), was not pled in the Department’s original petition for termination or argued by the appellee at the termination hearing. Additionally, appellee concedes that the petition for termination was never amended to include this ground. Appellee asserts that, under the facts of this case, it was error for the trial court to terminate the father’s parental rights based upon section 39.806(l)(f). See R.S. v. Department of Children and Families, 872 So.2d 412, 412 (Fla. 4th DCA 2004); see also In the Interest of A.D.J., 466 So.2d 1156, 1163 (Fla. 1st DCA 1985) (recognizing the principle in the context of permanent commitment).

Appellee goes on to state that the termination of appellant’s parental rights can not stand given the nature of the order against the father. As support for this proposition, appellee relies upon the requirements set forth in section 39.811(6), Florida Statutes. This statute identifies a list of circumstances which will permit the severing of one parent’s rights without severing the parental rights of the other parent. According to appellee, at least one of these circumstances must be present for such a termination of rights to occur. See § 39.811(6), Fla. Stat. Continuing down this line of reasoning, appel-lee notes that because section 39.811(6), Florida Statutes, does not permit a court to terminate parental rights as to only one parent based upon section 39.806(l)(c) or (e), Florida Statutes, the trial court could not have relied upon either of the Department’s stated grounds for terminating appellant’s parental rights in this ease.

Because the state is conceding error on this point and appellant has not filed a reply brief objecting to appellee’s concession, we reverse and remand to the trial court for reconsideration of whether appellant’s parental rights may be terminated in this case.

REVERSED and REMANDED.

WEBSTER, POLSTON, and HAWKES, JJ., concur.


author: MAY, J.

text:
    Steven Michael ZERBE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3099.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Jan. 24, 2007.

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

The defendant appeals his convictions and sentences on one count of lewd and lascivious molestation and one count of child abuse. He has raised several issues, two of which we find have merit: (1) the denial of the defense motion for judgment of acquittal and (2) the admission of collateral act evidence. We reverse his convictions and remand the case to the trial court to vacate the conviction on the child abuse count and to conduct a new trial on the lewd and lascivious molestation count.

The defendant was a karate instructor; he operated his studio out of an old one-room schoolhouse. The students were both male and female and ranged in age from young children to adults. The schoolhouse was located in a wooded area and did not have indoor plumbing. The port-o-lets behind the schoolhouse were often turned over. As a result, the students used the wooded area and buckets as bathroom facilities.

Around Easter, a five-year-old female student was changing her clothing for class when her grandmother entered the dressing area and observed the child with her pants down around her ankles and the karate instructor standing nearby. She asked her granddaughter why her pants were down. The child replied that her instructor had told her to pull them down. The child and grandmother remained at the studio for the activities that evening without further discussion of the incident. When the grandmother took the child home, she called the child’s mother and told her what had happened.

This call prompted the child’s mother to contact the parents of an eleven-year-old girl, who also attended class at the studio. Those parents in turn questioned their daughter, who initially had nothing to report, but then told them that the instructor pestered her to go to the bathroom. Subsequently, she told her parents about an incident that occurred approximately six months earlier.

According to the eleven-year-old, she was standing on the back porch of the schoolhouse and needed to use the bathroom. She did not want to go into the woods. The instructor told her it would be easier for her if she could urinate from a standing position. He told her to remove her pants and stand with her legs apart, at which point he touched her genital area. On another occasion, when the young girl did not have to use the bathroom, the instructor squeezed her stomach and said that maybe she could go then. These incidents involving the eleven-year-old are the basis of the molestation count.

The eleven-year-old child also told her parents that the instructor repeatedly told her to go to the bathroom, which annoyed her. It is these repeated requests that are the subject of the child abuse count. Throughout the trial, and specifically in closing argument, the State limited the child abuse count to these facts; it did not include the touching incidents as part of the child abuse count.

Prior to trial, the State filed a “Notice of Intention to Use Hearsay Statement of Child Victim Pursuant to Florida Statute 90.803(23).” The Notice related to the use of statements made by the five-year-old to her grandmother, her mother, her father, and the detective. The defense moved to exclude those statements and argued the five-year-old was incompetent to testify. After a hearing on the matter, the trial court found the five-year-old competent and available to testify. The court further found sufficient safeguards of reliability because the statements could be corroborated by the grandmother’s testimony.

The State then filed a “Notice Pursuant to Florida Statute 90.404(2)(a) and/or (b).” The State argued that the collateral act evidence (the incident with the five-year-old) was relevant because of the similarities of the two incidents: 1) the same location; 2) the same relationship between the defendant and the girls; 3) both girls were Caucasian and under the age of eleven; 4) the same form of touching; and 5) the incidents focused on the defendant’s insistence that the girls go to the bathroom.

In its opening statement, the State did not refer to the incident involving the five-year-old. When the State called the five-year-old’s grandmother to the stand, the trial court failed to give a limiting instruction. Shortly thereafter, the court held a sidebar conference and instructed the jury that it would receive “evidence of other crimes allegedly committed by [the defendant] ... [the defendant] is not on trial for any alleged offense against [the five-year-old].” (Emphasis added). The next morning, the defense advised the court that the limiting instruction had referred to the collateral acts as crimes, and requested that the jury be properly instructed. Specifically, the defense requested the court not to use the words “crime” or “wrongful”. The trial court then told the jury it misread the instruction and re-instructed them as follows:

The evidence you are about to receive concerning evidence of other acts committed by the defendant will be considered by you only for the purposes of corroborating the testimony of [the victim] and you should consider it only as it relates to the issue of corroborating. And [the defendant] is not on trial for any acts involving the [five-year-old] child.

(Emphasis added).

The defense moved for a judgment of acquittal at the close of the State’s case. With regard to the child abuse count, defense counsel argued there was absolutely no evidence that the defendant intended to cause mental injury to the child or that any mental injury had in fact occurred. The trial court denied the motion. The defense renewed the motion at the close of the defense case.

During closing arguments, the five-year-old’s statements were prominent. The State recounted the grandmother’s testimony. The defense argued that the eleven-year-old had fabricated the story.

The jury found the defendant guilty of the two counts charged. The jury also answered a special interrogatory requested by the State to avoid a perceived double jeopardy issue. The question was: “Did [the defendant] commit the crime [of child abuse] without engaging in conduct that was lewd or lascivious?” The jury responded in the negative.

Immediately after the jury was discharged, the State raised the double jeopardy issue with the trial court. The State was concerned that the jury’s answer to the special interrogatory meant that the defendant did not commit child abuse outside of the lewd or lascivious act for which he was charged with molestation. Therefore, it posited the defendant’s right against double jeopardy would be violated if the court sentenced the defendant on the child abuse count. To avoid the problem, the State did not include the child abuse count on the defendant’s scoresheet. Subsequently, however, the State reversed its position and advised the court that it could sentence the defendant for both offenses. Nevertheless, the State did not ask the court to do so.

The trial court denied the defense motion for new trial and adjudicated the defendant guilty on the molestation count. The court sentenced the defendant to ninety months in prison followed by fifteen years of sex offender probation and found him to be a sexual predator. The court also adjudicated him guilty of child abuse but did not sentence him on that count. The trial court denied the defense motion for rehearing.

The defendant first argues the trial court erred when it denied his motion for judgment of acquittal on the child abuse count. The State responds that the statute does not require proof of an actual injury.

Generally, “an appellate court will not reverse a conviction that is supported by competent, substantial evidence.” Johnston v. State, 863 So.2d 271, 283 (Fla.2003). However, a judgment of acquittal is proper if the State fails to prove á prima facie case of guilt when the evidence is viewed in the light most favorable to the State. Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001). We review court rulings on motions for judgment of acquittal de novo. Johnston, 863 So.2d at 283.

The legislature defined child abuse, in part, as “[a]n intentional act that could reasonably be expected to result in ... mental injury to a child.” § 827.03(l)(b), Fla. Stat. (2002). The term “mental injury” is defined as “an injury to the intellectual or psychological capacity of a child as evidenced by a discernable and substantial impairment in the ability to function within the normal range of performance and behavior.” § 39.01(43), Fla. Stat. (2002); see DuFresne v. State, 826 So.2d 272, 277-78 (Fla.2002). The offense of child abuse under subsection (b) does not require proof of actual injury; rather, the offense includes any act that is done intentionally that could reasonably be expected to cause mental injury. Clines v. State, 765 So.2d 947, 948 (Fla. 5th DCA 2000).

To survive a motion for judgment of acquittal, the State must establish a prima facie case. The State chose to proceed on the child abuse count solely on the allegation that the defendant pestered the victim about going to the bathroom. In closing argument, the State specifically restricted the count to these facts and advised the jury that the count had nothing to do with the touching. The question then becomes whether the evidence established a prima facie case for child abuse as defined by the applicable statutory subsection. We hold it does not.

We find this case similar to King v. State, 903 So.2d 954 (Fla. 2d DCA), review denied, 908 So.2d 1058 (Fla.2005). There, the court reversed a school administrator’s conviction for child abuse based on the paddling of an eight-year-old child. The Second District concluded that as a matter of law, “the injuries inflicted during the paddling did not constitute felony child abuse.” Id. at 955. We find the same to be true here. There simply was no evidence that the defendant’s repetitive requests for the child to go to the bathroom was done intentionally or “could reasonably be expected to cause mental injury.” We find that as a matter of law, these facts taken in the light most favorable to the State, are insufficient to establish a prima facie case of child abuse. We therefore reverse the defendant’s conviction on that count.

The defendant’s second argument concerns the trial court’s admission of collateral act evidence. The defendant argues the trial court abused its discretion in admitting evidence of the incident with the five-year-old because it was not similar to the crime charged, occurred during different time frames, and was extremely prejudicial. The State suggests the evidence was relevant and corroborated the victim’s testimony. Alternatively, the State suggests any error was harmless.

“A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Dessaure v. State, 891 So.2d 455, 466 (Fla.2004). The same standard applies to rulings on admitting collateral act evidence. LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001). However, this wide discretion is limited “by the rules of evidence.” Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

In child molestation cases, “evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” § 90.404(2)(b)l., Fla. Stat. (2001). To be admissible, the State must present clear and convincing proof that the collateral act occurred. McLean v. State, 934 So.2d 1248, 1262 (Fla.2006). The defendant’s due process rights are protected by the requirement that the trial court balance the relevance of the evidence to a material issue and the danger of unfair prejudice. Id. at 1259; §§ 90.402, 403, Fla. Stat. (2002).

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

Id. at 1262. The trial court should also assess whether the evidence is cumulative and whether it becomes a feature of the trial. Id. Lastly, the trial court must give appropriate cautionary instructions at the time the evidence is admitted and during its final instructions to the jury. Id.

The threshold question is whether there is clear and convincing evidence that the defendant committed the collateral act. Here, the evidence concerning the five-year-old was in conflict; it cannot be said that it was clear and convincing. Second, that evidence did not tend to prove or disprove any fact concerning the molestation charge. Third, there was no need to lay out the sequence of events giving rise to the charged crime after the testimony concerning the molestation charge had been elicited earlier in the trial.

Fourth, the acts were not sufficiently similar. While both events occurred at the karate school the charged crime involved a touching while the collateral act involved the defendant’s observation of a young child partially undressed. Fifth, the events took place five-and-a-half months apart with the collateral act occurring subsequent to the charged crime. Sixth, the probative value was outweighed by the prejudicial effect of the collateral act evidence.

And last, the mandated cautionary instruction was improper. The first instruction referenced other crimes allegedly committed by the defendant. Since this was not an accurate representation of the facts, the next morning, the court instructed the jury a second time. While correcting an error from the day before, the second instruction again called attention to the collateral act evidence.

This analysis causes us to conclude that the trial court abused its discretion in admitting the collateral act evidence in this case. We cannot say that this error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We therefore reverse the defendant’s convictions and remand the case to the trial court for a new trial on the lewd and lascivious molestation count and to vacate the conviction for child abuse.

Reversed and Remanded.

POLEN and KLEIN, JJ., concur.

      . The testimony was in conflict as to whether the grandmother followed the instructor into the changing area when the instructor entered or simply saw her granddaughter exit the dressing area with the instructor behind her.

      . The Information merely tracked the language of the child abuse statute and did not include the facts giving rise to the charge. See § 39.01(43), Fla. Stat. (2002).

      . The State also argues that the defendant failed to preserve the issue. We disagree. The issue was raised in a pre-trial hearing, and defense counsel twice objected to the admission of the evidence. See § 90.104(1), Fla. Stat. (2005).


author: WARNER, J.

text:
    Jesus A. ARIAS, Appellant, v. AFFIRMATIVE INSURANCE COMPANY, Appellee.
    No. 4D05-4595.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Allen R. Seaman of Law Offices of Allen R. Seaman & Associates, P.A., West Palm Beach, for appellant.
    Alicia Lyons Laufer of Rubinton & Laufer, LLC, Hollywood, for appellee.
   WARNER, J.

The trial court granted an ore tenus motion for judgment on the pleadings based upon the terms of the insurance policy on which appellant sought declaratory relief. Appellant claimed that under the policy he was not required to appear for an examination under oath for purposes of his PIP claim for benefits. The court construed the provisions against appellant’s contention. Because we conclude that the policy did not require such an examination, we reverse.

According to the complaint, appellant, Jesus Arias, sustained injuries requiring medical care as a result of a motor vehicle accident. He notified his insurance company, Affirmative, of his loss and submitted a request for PIP benefits. Affirmative requested that Arias appear for an examination under oath to be transcribed by a court reporter. After correspondence between Arias’ counsel and the insurance company, Affirmative continued to demand the examination under oath. Arias then agreed to be present for an examination under oath but objected to the presence of a court reporter or otherwise recording the statement, contending that the policy did not contain such a requirement. Eventually, Arias and his counsel appeared to give a non-recorded statement under oath, but the insurance company failed to appear.

After Affirmative finally refused to provide PIP benefits, Arias filed a declaratory judgment action claiming that the wording of the policy did not require Arias to submit to a recorded statement under oath as a condition precedent to his entitlement to benefits. He further maintained that Affirmative’s refusal to accept Arias’ offer to give a non-recorded statement under oath acted as a waiver of Affirmative’s right to obtain an examination under oath. Arias made other claims, but those are not relevant to our disposition of this appeal.

The Personal Auto Policy in this case, which is subtitled Personal Injury Protection and Property Damage Liability, is divided into two parts. The first consists of the Personal Auto Policy and provides liability protection. Within its provisions is the following:

PART B-DUTIES AFTER AN ACCIDENT OR LOSS
We have no duty to provide coverage under this policy unless there has been full compliance with the following duties:
A. We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.
B. A person seeking any coverage must:
1. Cooperate with us in the investigation, settlement or defense of any claim or suit.
2. Promptly send us copies of any notices of legal papers received in connections with the accidents or loss
3. Submit, as often as we reasonably require
a. To physical exams by physicians we select. We will pay for these exams
b. To examination under oath and subscribe the same

(emphasis added).

An endorsement, entitled “Personal Injury Protection Coverage — Florida,” provides that with respect to coverage provided by the endorsement, the provisions of the policy apply “unless modified by the endorsement.” (emphasis added). The endorsement includes the following:

III. Duties After an Accident or Loss Part E is replaced by the following: DUTIES AFTER AN ACCIDENT OR LOSS
A person seeking Personal Injury Protection Coverage must:
C.Promptly give us written proof of claim, under oath if requested. Such proof shall include:
1. Full details of the nature and extent of the injuries and treatment received and contemplated; and
2. Any other information which may assist us in determining the amount due and payable.

(emphasis added). While this section states that it replaces Part E, the original policy only contains Parts A, B, and C and there is no Part E. However, Part B of the policy covers the insured’s duties after a loss.

At a hearing on discovery, the trial court reviewed the policy and invited the insurance company to make an ore tenus motion for judgment on the pleadings to “cut to the chase” as the trial court termed it. The company complied, and the trial court granted the motion, determining that the policy required an examination under oath which could be recorded by a court reporter. Arias appeals.

The construction of an insurance contract involves a question of law, and an appellate court applies a de novo standard of review. Discover Prop. & Cas. Ins. Co. v. Beach Cars of West Palm, Inc., 929 So.2d 729, 732 (Fla. 4th DCA 2006). As we said in Southeastern Fire Insurance Co. v. Lehrman, 443 So.2d 408, 408-09 (Fla. 4th DCA 1984):

Courts should resort to complex rules of construction to determine coverage or the applicability of exclusions only when the language used in the policy is ambiguous or otherwise susceptible of more than one meaning. Absent such factors courts should apply the plain meaning of words and phrases used in a policy of insurance.

See also Great Am. Ins. Cos. v. Souza, 855 So.2d 187 (Fla. 4th DCA 2003).

The policy under review does not provide for an examination under oath for purposes of PIP claims. Although the liability provision of the policy requires examinations under oath as part of the duties of a “person seeking coverage,” that section is replaced by a different section in the PIP coverage. Pursuant to that section, “Duties After an Accident or Loss,” the PIP claimant must “promptly give us written proof of claim, under oath if requested.” (emphasis added). No examination under oath is required by the policy. The policy is clear and unambiguous on what is required of the PIP claimant, and the insurance company cannot insist on something not within the terms of the policy.

The trial court looked to the wrong provision of the policy in granting judgment on the pleadings. We therefore reverse and remand for further proceedings.

Reversed and remanded.

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


author: SUAREZ, J.

text:
    C.W., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-143.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.

      Marc Anthony Douthit, Miami, for appellant.
    Karla Perkins, Miami, Department of Children and Family Services, for appel-lee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

C.W. (the “father”) appeals the order adjudicating his daughter (the “child”) dependent. We reverse.

The father argues that the adjudication of dependency must be reversed because there is no competent substantial evidence that the child is at substantial risk of imminent harm. We agree.

The father and mother lived with the father’s ten-year-old niece and the child, their own infant daughter. The niece was removed from the home when the police discovered that the mother subjected her to severe corporal punishment which left scars on her body. The Department of Children and Family Services (“DCF”) initially left the child at issue with the parents because there was no evidence that she had been abused. After an adjudicatory hearing, the court found that the father had failed to protect his niece from severe physical abuse at his wife’s hands. The court found that the child was at substantial risk of imminent abuse due to the father’s failure to protect the niece from the wife’s excessive corporal punishments and declared the child dependent. This appeal by the father followed.

A child who is “dependent” is one who has been abused, abandoned, or neglected, or who is found by a court “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” § 39.01(14)(f), Fla. Stat. (2006). Children who have not been abused may still be found to be at substantial risk of imminent abuse and declared dependant by a court due to abuse inflicted upon a sibling. See In re M.F., 770 So.2d 1189, 1194 (Fla.2000). However, for the court to make such a finding, the evidence must demonstrate a nexus between the abuse of one sibling and the prospective abuse to another sibling:

Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child.

G.R. v. Dep’t of Children & Family Servs., 937 So.2d 1257, 1262-63 (Fla. 2d DCA 2006); see, e.g., O.S. v. Dep’t of Children & Families, 821 So.2d 1145 (Fla. 4th DCA 2002).

In the instant case, there is no evidence in the record to establish the required nexus between the father’s failure to protect his niece from the mother’s abuse, and a substantial risk of imminent harm to the child. DCF presented no evidence that the father suffered from any mental or emotional condition, drug addiction, or any other mental or emotional problem which would make it highly probable that in the future he would abuse or neglect the child. The father was not accused of directly abusing his niece, and there was no allegation that either parent had abused the child. Although there was some evidence that the father eventually found out that the mother had hit the niece, he was never accused of inappropriately disciplining her himself. Such evidence, without the required nexus, is simply too tenuous and speculative to support an adjudication of dependency based on prospective abuse. See C.M. v. Dep’t of Children & Family Servs., 844 So.2d 765 (Fla. 2d DCA 2003) (insufficient nexus between evidence that father physically abused his stepchildren, and prospective abuse of his natural children, where there was no evidence that the father had a psychological or substance abuse problem that would cause him to act uncontrollably, and he had never harmed his biological children); J.B.P.F. v. Dep’t of Children & Families, 837 So.2d 1108 (Fla. 4th DCA 2003) (insufficient nexus between evidence that mother and her boyfriend handcuffed older son and poured a bottle of hot sauce in his mouth, and risk of prospective abuse of younger daughter with no discipline problems); D.H. v. Dep’t of Children & Families, 769 So.2d 424 (Fla. 4th DCA 2000) (insufficient nexus between father’s single act of kicking stepdaughter in the head, and imminent abuse of natural daughter); Eddy v. Dep’t of Children & Family Servs., 704 So.2d 734 (Fla. 5th DCA 1998) (insufficient nexus between father’s prior sexual abuse of his nephews, and prospective sexual abuse of his natural female child).

The adjudication of dependency as to the father is therefore reversed.

Reversed.

      . The mother is not a party to this appeal.

      . A trial court’s adjudication of dependency is affirmed on review if it applies the correct law and its factual findings are supported by competent substantial evidence. G.R., 937 So.2d at 1260.


author: STONE, J.

text:
    Kenneth Patrick SUTHERLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1009.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Jan. 18, 2007.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Sutherland appeals his second conviction for sexual battery on a child under twelve by a perpetrator eighteen or older. We affirm, but write to address Sutherland’s contention that the trial court erred in allowing similar acts evidence.

After Sutherland’s first conviction, we reversed and remanded for a new trial. Sutherland v. State, 849 So.2d 1107 (Fla. 4th DCA 2003) {Sutherland I). In relevant part, our opinion provides:

The primary issue raised in this case of familial sexual battery on a child under 12 has to do with the admission of “similar acts” evidence. The victim of the abuse, who was an adult by the time charges were brought, was allowed to testify to having sexual relations with defendant, the victim’s former step-father, for many years after she had long passed the age of 12 and most after she reached her majority. Additionally the court admitted 28 photographs and one videotape of sexual acts between defendant and the victim, all of which (except one) occurred after she became an adult and thus were not crimes. The court also admitted evidence of later sexual relations between the adult victim and defendant in the presence of her friends. As well, the court admitted the testimony of an adult girl friend of the victim to the effect that defendant had bragged that he taught the victim every thing she knows about sex. Defendant argues that all of this similar acts evidence became the central feature of the trial and effectually supplanted the charge on trial, namely sexual battery on a child under 12 by a perpetrator over 18. He thus contends the evidence was inadmissible and that he is entitled to a new trial. We agree and reverse.

Id. at 1107-08 (footnote omitted).

In this appeal, Sutherland contends that the law of the case precluded introduction of similar acts evidence after the victim turned twelve. We disagree with this interpretation of Sutherland I. Clearly, the problem in Sutherland I was that similar acts evidence became the central feature of the trial.

Our supreme court has recently explained:

[T]he similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403.
In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive....
* * *
Further, in accord with our precedent, the trial court must guard against allowing the collateral-crime testimony to become a feature of the trial.

McLean v. State, 934 So.2d 1248, 1259-62 (Fla.2006).

Here, the only physical evidence introduced of similar acts was two photographs, apparently taken when the victim was at least nineteen. The victim testified the photographs depicted the same types of sex that happened between her and Sutherland when she was under twelve. The focus of the victim’s testimony in this trial related the acts that occurred before she was twelve, any acts occurring after she was twelve being essentially highlighted by the defense on cross-examination. Additionally, although the trial court allowed introduction of Sutherland’s admission that he taught the victim everything she knew about sex, this testimony was made in the context of the victim being seven years old when Sutherland began having sex with her. Further, the acts occurring after the victim turned twelve were not a central feature of the victim’s friend’s testimony in this trial.

Consequently, we find the evidence and testimony in this trial did not suffer from the infirmities we found in Sutherland I. In this case, the limited physical evidence and testimony regarding acts occurring after the victim was twelve did not become a central feature of the trial.

Therefore, Sutherland’s conviction is affirmed. As to all other issues, we find no reversible error or abuse of discretion.

SHAHOOD and HAZOURI, JJ„ concur.

      . See, e.g., State v. McBride, 848 So.2d 287 (Fla.2003) (emphasis in original) (The law of the case "doctrine requires that 'questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.’ ”).


author: PER CURIAM. FARMER, J.,

text:
    REBECCA J. COVEY, P.A., Appellant, v. AMERICAN IMPORT CAR SALES, d/b/a Jumbo Auto and Truck Sales, a Florida corporation, and SouthTrust Bank, N.A., a national association, Appellees.
    No. 4D05-3311.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rebecca J. Covey of the Law Offices of Rebecca J. Covey, P.A., Fort Lauderdale, for appellant.
    David W. Langley of David W. Langley, P.A., Plantation, for appellee SouthTrust Bank.
   PER CURIAM.

Rebecca Covey of Rebecca J. Covey, P.A. appeals the trial court’s order granting a judgment lien on settlement funds in favor of SouthTrust Bank, N.A. and contends that she was entitled to disbursement of these funds based on a charging lien. We agree with Covey’s contention and reverse.

Diana Stevens sought representation from Rebecca Covey of Rebecca J. Covey, P.A. regarding a defective vehicle. Stevens entered into a retainer agreement with Covey setting forth the terms and rates of representation.

Stevens, through Covey, then filed suit against American Import Car Sales, d/b/a Jumbo Auto and Truck Sales, and later (in a Second Amended Complaint), South-Trust Bank, N.A. The suit involved the allegedly defective vehicle purchased from Jumbo and financed by SouthTrust. The claims against Jumbo were for Florida Deceptive and Unfair Trade Practices Act violations, fraud in the inducement, and conspiracy to defraud. The claims against SouthTrust were for conspiracy to defraud.

Subsequently, Covey, on behalf of Stevens, offered a settlement to Jumbo. The settlement amount was $35,000, including attorney’s fees and costs amounting to $30,000. Jumbo’s insurer authorized acceptance of the offer. Thereafter, the trial court granted Jumbo’s Motion to Compel Settlement, requiring Stevens to execute release documents. The trial court’s order compelling settlement was affirmed on appeal. See Stevens v. Am. Import Car Sales, 877 So.2d 880 (Fla. 4th DCA 2004).

SouthTrust was granted final summary judgment on Stevens’s claims, but remained a party to the proceedings to prosecute its counterclaims. SouthTrust prevailed on its counterclaims in a final judgment. SouthTrust was awarded $4,012.59 in damages. In a separate final judgment, SouthTrust was awarded $18,155 in attorney’s fees. These judgments were affirmed on appeal. See Stevens v. Southtrust Bank, N.A., 876 So.2d 1213 (Fla. 4th DCA 2004) (table).

Thereafter, SouthTrust filed a Motion to Impress Lien on Settlement Funds. The funds were being held by Jumbo’s insurer, One Beacon Insurance, which was to be responsible for paying the settlement on behalf of Jumbo. SouthTrust sought to recover the funds to satisfy the final judgments entered against Stevens.

Stevens then filed a Motion for Disbursement of Interpleaded Funds. Covey sought the disbursement of the entire $35,000 settlement to her in satisfaction of the attorney’s fees incurred by Stevens. Covey asserted that SouthTrust’s interest in the money was secondary to her attorney’s fees charging lien, because the judgments in favor of SouthTrust were obtained after the commencement of her services representing Stevens. Covey attached an affidavit of attorney’s fees indicating that the attorney’s fees incurred by Stevens at the time of the settlement were $49,000.

SouthTrust filed a response to Covey’s motion for disbursement. SouthTrust asserted that Covey was not entitled to a charging lien because she did not produce a positive outcome for Stevens where she obtained $35,000 in settlement with Jumbo but incurred in excess of $50,000 in adverse judgments resulting from the claims against SouthTrust.

The trial court granted SouthTrust’s motion to impress lien and ordered that the $35,000 settlement funds be deposited in the court registry. Covey then filed a notice of charging lien in the amount of $135,435.58.

Following a hearing, the trial court entered an Order Granting Lien on Funds in Court Registry. The trial court made the following findings:

1. SouthTrust Bank holds prior Judgments against Plaintiff, Diana Stevens, in the amounts of $4,021.59 for damages, dated June 3, 2002, and $18,155.00 for attorney’s fees, dated June 3, 2002, which Judgments, with interest through May 3, 2005, total $27,988.86. The Court has further awarded on this date additional attorney’s fees to SouthTrust Bank in the amount of $24,992.50, which brings its total claim against Diana Stevens to $52,981.36. The Court finds that said amount constitutes a valid and enforceable lien against the interpleaded funds in the amount of $35,000.00 presently held in the Court Registry. SouthTrust Bank’s Motion to Impress Lien on Settlement Funds is granted as to that amount.
2. The Court further finds that Plaintiffs counsel did not properly perfect a charging lien against the interpleaded funds because the law of the State of Florida requires that there must be a positive result for the client in order for an attorney to impose a charging lien. Plaintiffs counsel did not create such a fund. The net result of the lawsuit brought by counsel was a net loss for the Plaintiff and the Plaintiff did not recover anything. The Court finds that there cannot be a lien where nothing was recovered on behalf of the Plaintiff.

This appeal involves the interaction between the charging lien sought by Covey and the judgment lien obtained by South-Trust. This Court has described charging liens as follows:

A charging lien is the right of an attorney to have the expenses and compensation due him for his services in a suit secured to him in the judgment, decree or award for his client. The lien attaches to the judgment but relates back and takes effect from the time of the commencement of the services.

Miles v. Katz, 405 So.2d 750, 752 (Fla. 4th DCA 1981); see also Cole v. Kehoe, 710 So.2d 705, 706 (Fla. 4th DCA 1998)(same). There are four requirements for a valid charging lien:

(1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorney’s fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice.

Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla.1986). It is uncontested that the first two elements necessary for a valid charging lien were established through the retainer agreement entered into between Stevens and Covey. The second two elements were not explored as issues in the trial court or on appeal.

On appeal, Covey contends that the trial court erred by impressing a judgment lien and finding it superior to her charging lien. Covey maintains that she had an enforceable charging lien against the settlement proceeds because the settlement constituted a positive recovery for Stevens. According to Covey, because she became entitled to her lien when Stevens signed the retainer agreement and SouthTrust’s judgments were not obtained until later, the charging lien was superior and vested at the time of the settlement.

SouthTrust contends that the trial court did not err by impressing a judgment hen against the settlement proceeds and finding this lien superior to any supposed charging lien. The sole argument advanced by SouthTrust is that Covey did not have a valid charging lien because she did not obtain a positive result for Stevens. SouthTrust maintains that although Stevens was to receive settlement proceeds of $35,000 from Jumbo, the counterclaims against SouthTrust and related attorney’s fees and interest resulted in an adverse judgment of approximately $52,000, resulting in an approximately $17,000 net loss to Stevens.

The parties cited several cases in support of their contentions, four of which are especially illustrative and instructive regarding the interaction between charging liens and judgment liens. The first case is Miles v. Katz, 405 So.2d 750 (Fla. 4th DCA 1981). In Miles, an attorney entered into a contingency fee agreement with a corporation regarding a mortgage foreclosure action. Id. at 751. A former employee then obtained a judgment against the corporation, after which the corporation was successful in the mortgage foreclosure action, resulting in a favorable judgment of $22,000. Id. The attorney claimed he held a charging lien against the proceeds of the judgment, but the trial court concluded that the employee’s judgment was superior to the charging lien. Id. at 751, 752. This Court reversed and wrote:

The attorney fee lien has priority over judgments obtained against the client subsequent to the commencement of the attorney’s services. It is only inferior to judgments entered prior to the commencement of the services.... This result allows the attorney who created the funds to be paid for his services.

Id. at 752.

The second case is Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88 (Fla. 3d DCA 1987). In Litman, a man obtained a money judgment in a breach of contract action through the efforts of a firm. Id. at 90. The man’s brother, an attorney who claimed to have a contract to provide legal services in the contract action, asserted a right to the funds, and the man retained another firm to represent him in the case involving his brother. Id. The man succeeded in the action involving his brother, but refused to pay the firm that represented him in the action. Id. The firm sought the imposition of a charging lien, and the man contended that the firm was not entitled to a charging lien because it had merely preserved the positive result obtained by the firm which represented him in the contract action. Id. The Third District reviewed the status of the law and noted that: “It is not enough, however, to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.” Id. at 91-92. The court then concluded:

If, then, the attorney has obtained a favorable judgment or settlement for the client which results in what the law recognizes as proceeds, the attorney has merely to assert timely a claim of lien in the case to become entitled to a determination by the court, sitting without a jury, of the amount of attorney’s fees due. Finally, we reject Bernard Lit-man’s contention that Fine Jacobson merely preserved that which had been recovered by Podhurst Orseck. Bernard Litman was not entitled to the interpleaded funds, even though they originated from the initial breach of contract action, until Seymour Litman’s claim of entitlement was favorably resolved through the efforts of Fine Jacobson. Thus, Fine Jacobson produced for Bernard Litman a second positive judgment, against which their charging lien can be enforced.

Id. at 93-94 (internal citations omitted).

The third case is Rochlin v. Cunningham, 739 So.2d 1215 (Fla. 4th DCA 1999). In Rochlin, an attorney agreed to represent a woman in a paternity action against the man believed to be the father of her child. Id. at 1216. After nine months, the woman dismissed the attorney and retained another attorney who proceeded to settle the action. Id. This change in attorneys resulted from a situation in which the man offered child support in excess of the guidelines and the attorney advised the woman to hold out for more, the relationship between the man and woman soured for purposes of settling the action, and a new attorney was hired and settled the case for the sum initially offered by the man. Id. at 1216-1217. This Court reflected on Litman’s discussion of positive judgments and concluded that the original attorney was not entitled to a charging lien:

The fact that the final settlement agreement included some terms that were negotiated by appellant does not mean that she produced a positive judgment for Cunningham. The record shows that no settlement was reached while appellant represented Cunningham mainly because of the advice concerning the child support. Based on this record, we hold that the unresolved settlement agreement did not constitute a positive result as contemplated by Litman and Cole.

Id. at 1217.

The fourth and final case is Leiby Taylor Steams Linkhorst & Roberts, P.A. v. Wedgewood Air Conditioning, Inc., 801 So.2d 127 (Fla. 4th DCA 2001). In Leiby Taylor, a company retained a law firm to represent it in a business dispute and subsequently retained Leiby Taylor as co-counsel. Id. at 128. The company entered into a settlement with one of the parties to the business dispute in the amount of $12,000 and both parties agreed to pay their own attorney’s fees. Id. The settlement proceeds were paid into the original law firm’s trust account, and Leiby Taylor filed a notice of charging lien against the settlement proceeds. Id. The original law firm then asserted a retaining lien against the settlement proceeds. Id. at 129. This Court concluded, based on Miles, that Leiby Taylor’s charging lien related back to the date that it was retained as co-counsel and attached to the settlement proceeds because Leiby Taylor actively participated in the creation of the funds (so that the charging lien was superior to the original firm’s passive retaining lien). Id. at 130.

Based on these cases, we reach the following conclusions. A charging lien attached (through relation back) at the time Stevens entered into the retainer agreement with Covey based on Leiby Taylor. She was never discharged as Stevens’s attorney, so Rocklin is inapposite and the charging lien remained of full force and effect. Under Miles, this charging lien was superior to the judgment lien entered in favor of SouthTrust because SouthTrust did not obtain its judgments against Stevens until after Covey commenced her representation of Stevens. The existence and superiority of Covey’s charging lien is not altered by the fact that although she obtained a positive recovery through settlement with Jumbo she also exposed Stevens to a negative judgment resulting from SouthTrust’s counterclaims. As demonstrated in Litman, there can be multiple, separate recoveries, and an attorney is entitled to attorney’s fees for any positive recovery which the attorney produced through her legal services. As such, Covey asserted an enforceable charging lien against the settlement proceeds which were the fruits of her legal efforts, and the trial court erred by granting a judgment lien to SouthTrust where the judgments were entered after the commencement of Covey’s services and attachment of the charging lien.

In sum, we conclude that the trial court erred by granting SouthTrust’s motion for a judgment lien on the settlement funds. Covey possessed a valid and superior charging lien that attached prior to the entry of SouthTrust’s judgments, because she obtained a positive recovery for Stevens through the settlement with Jumbo regardless of the negative results of the separate judgments in favor of South-Trust. We reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

GUNTHER, J., and DAMOORGIAN, DORIAN K., Associate Judge, concur.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring specially.

In my opinion, this attorney’s charging lien is superior to the claimed judgment lien of SouthTrust on the client’s recovery for the same reason that a purchase money security interest would be superior to a pre-existing judgment lien attaching eo in-stante to the buyer’s acquisition of goods. See § 679.1031(l)(b), Fla. Stat. (2006) (“ ‘Purchase-money obligation’ means an obligation of an obligor incurred as ... value given to enable the debtor to acquire rights in ... the collateral _”), and § 679.324(1), Fla. Stat. (2006) (“a perfected purchase-money security interest in goods ... has priority over a conflicting security interest in the same goods”); cf. In re Alphatech Systems Inc., 317 F.3d 1267 (11th Cir.2003) (because creditor failed to properly perfect its purchase money security interest within 16 days of the delivery date, it did not gain priority over another creditor’s prior perfected security interest).

This is not a temporal — first-in-line-first-in-right — -thing. It is founded on the simple fact that without the labor of the lawyer there would be no settlement proceeds to which the Bank’s judgment lien could have attached. The fact that the client must use his share of the recovery to satisfy his debt to the Bank may weaken the client’s claim to be the prevailing party for purposes of recovering attorney’s fees from the Bank. Yet it has absolutely no effect on the client’s obligation to pay his own lawyer for effecting the recovery in the first place. On that basis I concur in the reversal.

      . Covey's client, Diana Stevens, passed away during the pendency of this appeal. This Court granted Covey's motion to substitute Rebecca J. Covey, P.A. for Stevens in this appeal in order to contest the trial court order impacting the recovery of attorney’s fees.

      . "A judgment lien ... is a[g]eneral lien which attaches to [a]ny property currently owned or subsequently acquired by the judgment debtor.” County of Pinellas v. Clearwater Fed. Sav. & Loan Ass’n, 214 So.2d 525, 527 (Fla. 2d DCA 1968).