author: BEACH, ROBERT, Associate Senior Judge.

text:
    Stephen J. OLDOCK and Laurie A. Oldock, Appellants, v. DL & B ENTERPRISES, INC. and Jose Aguilar, Appellees.
    No. 2D06-3494.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2007.
    Seth V. Alhadeff and Andrew M. Green-idge of Bressler, Amery <& Ross, P.C., Miramar, for Appellants.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee DL & B Enterprises, Inc.
    No appearance for Appellee Jose Aguilar.
   BEACH, ROBERT, Associate Senior Judge.

Stephen and Laurie Oldock appeal the dismissal of their suit for personal injury damages against DL & B Enterprises. We reverse and remand for further proceedings.

On September 26, 2005, the Oldocks, who are Florida residents, filed their complaint against DL & B in the Twentieth Judicial Circuit Court in Collier County, Florida. The complaint alleged that Stephen Oldock was injured while visiting at DL & B’s North Carolina premises in 2003 by a forklift which was negligently operated by an employee of DL & B. The complaint further alleged that DL & B’s principal place of business was in North Carolina but that it “engages in substantial and not isolated activity within the State of Florida” which subjected it to jurisdiction under Florida’s long-arm statute, section 48.193(2), Florida Statutes (2003). The complaint stated that Stephen Oldock was employed by King Farms, Inc., a Florida corporation engaged in buying fresh produce from DL & B and reselling it in Florida.

DL & B filed a Motion to Dismiss and Transfer based on section 47.011, Florida Statutes (2005), which governs venue but states specifically that it does not apply to actions against nonresidents. The Oldocks filed an opposition to the motion and a hearing before Judge Daniel R. Monaco was scheduled for February 16, 2006. There is no transcript of the hearing, but the clerk’s minutes reflect that DL & B withdrew its motion to dismiss and moved to amend. The minutes reflect that Judge Monaco denied the motion to amend.

On April 3, 2006, DL & B filed an amended motion raising lack of personal jurisdiction and forum non conveniens. The amended motion to dismiss was supported by the affidavit of Linda Wilson, an officer of DL & B. The affidavit stated that DL & B “does not engage in substantial activities in Florida ... does not advertise or transport goods into the State of Florida ... [and] does not have any agents or offices in the State of Florida.” The Oldocks filed a response in opposition to the amended motion contending principally that DL & B had waived its personal jurisdiction defense by basing its original motion on lack of venue. Stephen Oldock also filed an affidavit stating that “DL & B sold almost all of its produce to King Farms, Inc. ... derived the bulk of its income from its dealing with King Farms Inc. and shipped approximately one third of its produce into Florida on a regular basis.” The affidavits of Wilson and Ol-dock clearly conflict.

A hearing was conducted before Judge Lawrence D. Martin on July 7, 2006, at which no testimony was taken. On September 12, 2006, the trial court rendered its Order of Final Dismissal Nunc Pro Tunc and Termination of Action, holding that the trial court did not have personal jurisdiction over DL & B. The Oldocks complain here that Judge Martin had no authority to allow DL & B to file its amended motion after Judge Monaco had denied the motion to amend. However, any ruling by the trial court denying DL & B’s motion to amend was interlocutory, and it is well established that a trial court may consider and modify interlocutory orders at any time until final judgment is entered. Oliver v. Stone, 940 So.2d 526, 528 (Fla. 2d DCA 2006).

We reverse and remand the trial court’s Order of Final Dismissal because the court did not conduct a limited eviden-tiary hearing to resolve the disputed issues of fact raised by the conflicting affidavits filed by the parties. In Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla. 1989), the court stated that “in cases such as this, the trial court will have to hold a limited evidentiary hearing in order to determine the jurisdiction issue.” This court recently followed the admonition in Venetian Salami in Resource Healthcare of America, Inc. v. McKinney, 940 So.2d 1139 (Fla. 2d DCA 2006). We stated:

When a nonresident defendant moves to dismiss a complaint for lack of long-arm jurisdiction and files an affidavit “or other sworn proof,” the burden is placed on the plaintiff to prove by affidavit or other sworn proof the basis upon which jurisdiction may be obtained.... If the affidavits conflict, the trial court should hold a limited evidentiary hearing to resolve the disputed issues of fact and to determine the jurisdiction issue. Venetian Salami, 554 So.2d at 503. Once the court determines that the facts are sufficient to bring the defendant within the reach of the long-arm statute, the court must also consider whether the defendant has sufficient minimum contacts with the state so that the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice. Id. This requires the court to determine whether the defendant has availed itself of the privilege of doing business in Florida or has committed acts with an effect in Florida such that it would anticipate being haled into Florida courts.

Id. at 1140-41.

Reversed and remanded for further proceedings consistent with this opinion.

NORTHCUTT, C.J., and FULMER, J., Concur.


source: Caselaw Access Project

author: BENTON, J.

license: Public Domain

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant/Cross-Appellee, v. Earl MANNING and Mary Powell Manning, Appellees/Cross-Appellants.
    No. 1D06-5317.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.
    G. Alan Howard and Robert M. Dees of Milam,. Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, and John A. Unzicker, Jr., and Michelle Hendrix of Vernis & Bowling of NW Fla., P.A., Pensacola, for Appellant/Cross-Appellee.
    J. Nixon Daniel, III and Terrie L. Didier of Beggs and Lane, Pensacola, for Ap-pellees/Cross-Appellants.
   BENTON, J.

Citizens Property Insurance Corporation (Citizens) appeals the summary judgment entered against it in the wake of Hurricane Ivan’s destruction of its insureds’ house on September 16, 2004. The record left no doubt that wind contributed to the total loss of the Mannings’ home, but was unclear as to what damage wind alone caused. On the basis of Florida Farm Bureau Casualty Insurance Co. v. Cox, 967 So.2d 815, 2007 WL 2727072 (Fla. Sept. 20, 2007), a decision that came down after the trial court ruled, we reverse and remand for further proceedings.

The trial court awarded the Mannings policy limits under both the policy’s wind damage to dwelling provision and under a separate provision for debris removal. At least as regards the dwelling coverage, the trial court relied upon the interpretation of the 2004 version of Florida’s Valued Policy Law (VPL), § 627.702(1), Fla. Stat. (2004), then extant, ruling that Citizens owed the face amount of the policy because wind had contributed to a total loss of their house. On the authority of- the' supreme court’s recent decision in Florida Farm Bureau, we reverse this ruling and remand for further proceedings. See also Ceballo v. Citizens Prop. Ins. Corp., 967 So.2d 811, 2007 WL 2727092 (Fla. Sept. 20, 2007).

The judgment under review rests on a factual premise-that wind contributed to the total loss of the Mannings’ house— that is not in genuine dispute, and on a legal premise — that the VPL required payment of policy limits on that account — that our supreme court has now repudiated. See Fla. Farm Bureau, 967 So.2d at 820 (holding that the VPL “does not establish any requirement for an insurer to pay for excluded or noncovered perils” identified by a windstorm policy as such). The policy controls, not the VPL. Here Citizens’ policy excludes coverage for loss caused directly or indirectly by “water damage,” which includes “flood, surface water, waves, tidal water, storm surge, wave wash, or total wave, overflow of a body of water, or spray from any of these, whether or not driven by wind/’ and, except in certain circumstances,' even wind-driven rain. The policy also contains an anti-concurrent cause clause, providing that losses to which excluded perils contribute are “excluded regardless of any other cause or event contributing concurrently or in any sequence.” The record before us does not identify which damage to the house was done by wind alone, or the amount of any such damage.

Conceding that the supreme court’s decision in Florida Farm Bureau undercuts the stated rationale for summary judgment in the present case, the Mannings argue that summary judgment should nevertheless be affirmed, because the record contains no evidence showing that damage from any excluded peril exceeded what the Mannings’ flood insurance has paid them. See, e.g., Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”). They acknowledge that the burden rests with the insured, as an initial matter, to prove coverage for a claim under an insurance policy. See East Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So.2d 673, 678 (Fla. 3d DCA 2005); see also Exhibitor, Inc. v. Nationwide Mut. Fire Ins. Co., 494 So.2d 288, 289 (Fla. 1st DCA 1986) (“In a suit to recover under an insurance policy, the insured must prove that the loss did occur and that it was within the coverage of the policy.”). They contend they met their burden — and that the record establishes a prima facie showing beyond dispute; that the burden then shifted to Citizens to prove what portion of the Mannings’ loss, if any, arose from a cause or causes excluded from coverage under the policy; and that there is no proof that any damage they sustained is attributable to an excluded cause, except for the water damage for which the flood insurer paid. See East Fla. Hauling, 913 So.2d at 678; Exhibitor, 494 So.2d at 289.

Because the record does not establish that wind alone caused damage that exceeded the deductible, however, the Man-nings’ “tipsy coachman” argument must fail. The record does contain an uncontro-verted engineer’s affidavit to the effect that wind, wind-driven rain, and storm surge combined to destroy the Mannings’ home (and other evidence values the house at considerably more than the sum of the face amount of Citizens’ policy and the flood insurance proceeds), but the record is devoid of evidence establishing the amount of damage caused solely by wind. The Mannings never even alleged that the amount of damage attributable to wind alone exceeded the policy deductible. Since the record does not establish this threshold fact, it is not clear that the Man-nings are entitled to recover anything or that the burden to prove an exclusion will ever shift to Citizens.

On motion for summary judgment, “if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied.” Cohen v. Vining, 917 So.2d 1013, 1014 (Fla. 1st DCA 2006) (quoting Jones v. Directors Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991)). Because the Mannings failed to make a prima facie showing of coverage under the windstorm policy as construed in conformity with Florida Farm Bureau, they did not demonstrate the essential prerequisite to summary judgment, the absence of any genuine issue of material fact.

Finally, we also reverse the trial court’s award under the supplemental provision of the policy providing coverage for debris removal. The trial court awarded the Mannings policy limits for debris removal, even though the costs they incurred (and for which they sought reimbursement) were less. The Mannings correctly concede that, under Ceballo, they are not entitled, under any circumstances, to recover more than the debris removal expenses they actually incurred. See Ceballo, 967 So.2d at 813.

Reversed and remanded for further proceedings.

HAWKES and THOMAS, JJ., concur.

      . The Fourth District had concluded in Mierzwa v. Fla. Windstorm Underwriting Ass’n, 877 So.2d 774 (Fla. 4th DCA 2004), disapproved in Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815, 2007 WL 2727072 (Fla. Sept. 20, 2007), that the 2004 version of the VPL required that, "if the insurance carrier has any liability at all to the owner for a building damaged by a covered peril and deemed a total loss, that liability is for the face amount of the policy,” 877 So.2d at 775-76, any contribution by excluded perils notwithstanding. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (holding that, absent interdistrict conflict, a trial court must follow any district court’s decision on the same point). We later adopted this view as our own. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 943 So.2d 823 (Fla. 1st DCA 2006), quashed, 967 So.2d 815, 2007 WL 2727072 (Fla. Sept. 20, 2007). See also Citizens Prop. Ins. Corp. v. Ueberschaer, 956 So.2d 483, 487-88 (Fla. 1st DCA 2007) (holding that the 2004 version of the VPL trumped. Citizens’ enabling legislation, requiring Citizens to pay policy limits where wind contributed to the total loss of a structure, even if wind did not cause the entire loss).

      . Citizens does argue that there "is a question of fact whether the amount of wind damage, if any, exceeded the deductible.”

      . The engineer's affidavit explicated his opinion that, while wind undoubtedly contributed to the destruction of the house, wind acted in combination with other forces, and that the precise effects of wind alone were difficult, if not impossible, to ascertain from the rubble:
      It is an arduous task to determine the failure mode of a structure when it lies in front of you. It is bordering on clairvoyance to state with certainty a particular mode of failure when you don't even have the ability to examine the structure because it has been removed.
      We all understand that a hurricane is a very complex and violent set of variables and is highly unpredictable at best. Therefore I am not prepared to say with any degree of certainty that the failure of this structure was due to a single source. To the contrary, I think this failure was caused by a whole series of events that will never be established for certain. I also think that to rule out the effects of hurricane force winds contributing to failure of this structure is simplistic and naive.


author: HAWKES, J.

text:
    James MITCHELL, Appellant, v. XO COMMUNICATIONS and Wausau/Liberty Mutual Insurance Company and XO Communications and Travelers Insurance Company, Appellees.
    No. 1D06-5476.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.
    Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, and Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquas-to, P.A., Tallahassee, for Appellant.
    Tara L. Sa’id of Law Office of Amy L. Warpinski, Jacksonville, for Appellees XO Communications and Wausau/Liberty Mutual Insurance Company; Jennifer S. Haley-Gleason of Harbsmeier, Dezayas, De-Bari, Haley-Gleason & McCall, LLP, Tallahassee, for Appellees XO Communications and St. Paul-Travelers.
   HAWKES, J.

Claimant, James Mitchell, appeals the Judge of Compensation Claims’ (JCC) order denying his claims for permanent total disability and permanent total supplemental disability benefits. Claimant argues that many of the JCC’s findings regarding his ability to work, and the permanent impairment ratings (PIR) attributable to his compensable injury, are not supported by competent, substantial evidence. Claimant’s argument is flawed. A decision in favor of the party without the burden of proof is not required to be supported by competent, substantial evidence.

Claimant has the burden to prove entitlement to permanent total disability benefits. See McDevitt Street Bovis v. Rogers, 770 So.2d 180, 181 (Fla. 1st DCA 2000). Accordingly, Claimant must present evidence the JCC finds persuasive. It is well-settled that a JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves. See Bass v. Gen. Motors Corp., 637 So.2d 304, 306 (Fla. 1st DCA 1994).

However, a JCC may not accept only a portion of a physician’s PIR rating, see Allen v. Protel, Inc., 852 So.2d 916, 920 (Fla. 1st DCA 2003), nor make medical findings which contradict undisputed medical testimony. See Urban v. Morris Drywall Spray Textures, 634 So.2d 718 (Fla. 1st DCA 1994).

Here, the JCC made numerous findings of fact from the physicians’ testimony. For instance, the JCC found Dr. Gonzalez testified Claimant had a 14% psychological PIR, all of which was attributable to the workplace accident. The JCC accepted Dr. Gonzalez’ testimony and PIR. However, in her conclusions of law, she stated that “at least a portion” of Dr. Gonzalez’ rating was attributable to complaints other than Claimant’s workplace accident. Additionally, the JCC found Dr. Fiore opined Claimant had an 8% PIR for his right knee injury attributable to the workplace accident, and Claimant was not capable of doing even sedentary work. The JCC then stated she believed Dr. Fiore’s conclusion was based on the erroneous assumption that Claimant’s unrelated neurological injuries were related to his workplace accident.

From the record, it is not clear whether the JCC was rejecting testimony or misstating testimony in reaching her conclusions of law. Because the JCC’s final order is inconsistent in its findings of fact and conclusions of law, we REVERSE the final order and REMAND for additional proceedings.

KAHN and PADOVANO, JJ., concur.


author: PER CURIAM.

text:
    Michael D. ROGERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4288.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.

      Steven P. Glazer, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General; Philip W. Edwards and C. Bowen Robinson, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus was previously denied by unpublished order without prejudice to further proceedings in the trial court. We now provide the following opinion to set forth our reasoning for this ruling.

Michael Rogers is charged with capital sexual battery pursuant to section 794.011(2)(a), Florida Statutes, in the Circuit Court for Wakulla County. After his arrest he was ordered held without bail. The state sought to show that the proof of guilt was evident or the presumption great, thus precluding release under Article I, section 14 of the Florida Constitution. The defense moved for pretrial release on reasonable conditions and the court and the parties agreed to a consolidated hearing on the motions. The defense presented the expert testimony of mental health professionals who opined that Rogers’ risk of re-offending was low to moderate. The state’s witnesses were investigators who described the evidence against the defendant. The trial court concluded that the state had not met its burden and that the defendant was entitled to pretrial release. Bail was set at $500,000.

Rogers petitions for a writ of habeas corpus, arguing that the amount of bail is far in excess of his ability to pay and therefore tantamount to no bail. However, no evidence was presented at the hearing regarding the defendant’s financial circumstances or ties to the community. Counsel made certain representations to the court regarding his client’s finances but these statements were not competent evidence. Neal v. State, 697 So.2d 908 (Fla. 2d DCA 1997). In the absence of a record which demonstrated that the amount of bail was beyond the ability of this defendant to meet, we concluded the habeas corpus petition must be denied and so ordered.

We acknowledge cases such as Camara v. State, 916 So.2d 946 (Fla. 3d DCA 2005) where the court granted habeas corpus and remanded for an additional hearing in similar circumstances. We find this to be an inappropriate use of the writ and decline to employ it or to follow Camara to the extent it suggests granting of the petition is the proper procedure when the case is in this posture.

PETITION DENIED WITHOUT PREJUDICE.

WOLF, BENTON and HAWKES, JJ„ concur.


text:
    Lisa VIVIAN f/k/a Lisa Schembari, Appellant, v. Giovanni SCHEMBARI, Appellee.
    No. 4D07-1041.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2007.
    Tracy Belinda Newmark of The New-mark Law Firm, P.A., Hollywood, and Cynthia L. Greene of Law Offices of Greene Smith McMillan, P.A., Miami, for appellant.
    Steven M. Swickle of Swickle & Swickle, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

This case presents yet another difficult issue regarding a primary custodial parent’s efforts to relocate with the minor children following a dissolution of marriage. The trial court denied the mother’s petition, and she now appeals, arguing abuse of discretion and failure to properly apply the statutory factors. We disagree and affirm.

The marriage in this case was dissolved in 2004, following a six-year marriage resulting in two minor children of the parties. The mother was the primary residential parent, with shared parental responsibility with the father, who had liberal contact and access with the children.

Then the mother remarried, and her new husband’s job was relocated to Huntsville, Alabama. The mother petitioned the court to allow her to move there with the children, but the trial court denied relief, citing to the factors in section 61.13001(7), Florida Statutes (2006).

We affirm the order of the circuit court denying the former wife’s petition to relocate to Alabama. Substantial competent evidence supports the trial court’s findings concerning the statutory factors contained in section 61.13001(7). This court may not reweigh the evidence to make value judgments that are appropriate for the trial judge. See Botterbusch v. Botterbusch, 851 So.2d 903, 904-05 (Fla. 4th DCA 2003). We also find no error in the trial court’s questioning of the former wife. See § 90.615(2), Fla. Stat. (2006). The court’s questions pertained to considerations required by section 61.13001(7).

STONE, POLEN and GROSS, JJ., concur.


author: HAZOURI, J.

text:
    Catherine AVERSANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4931.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2007.
    Donnie Murrell, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Catherine Aversano, appeals from her conviction and sentence for one count of grand theft over $20,000, but less than $100,000. We reverse and remand for a new trial.

The allegations in this case arose out of a series of events following the impact of hurricanes Frances and Jean on South Florida in the fall of 2004. After her home suffered extensive damage, Aversano was forced to temporarily relocate to a rental home. After she moved out of her home, she allowed a third-party to temporarily store restaurant equipment in her garage because the garage was not severely damaged from the storms. The parties had no agreement concerning how long the equipment would remain. Aversano contacted the third-party to remove his equipment from her garage when her contractor was ready to begin repairs on her home. At one point, Aversano contacted an attorney, James Blackburn, who advised her to send the third-party a registered letter directing him to remove his equipment by a certain date. She sent the letter, but the third-party never retrieved it from the post office after receiving notice of the letter. Then, Blackburn advised her to hire a process server to personally serve the letter on the third-party, which she did. Blackburn advised Aversano that once served, the third-party would have until the deadline provided in the letter to remove his property. Blackburn advised Aversano further that she could dispose of the equipment after the deadline. The third-party did not retrieve his equipment by the deadline and Aversano sold it to an auctioneer.

Aversano was charged with one count of grand theft over $20,000, but less than $100,000, and one count of dealing in stolen property. Defense counsel moved for a judgment of acquittal, arguing in part that Aversano could not be convicted of both grand theft and dealing in the same stolen property pursuant to section 812.025, Florida Statutes (2005). The trial court denied the motion for judgment of acquittal. The jury found Aversano guilty of both counts. However, the trial court adjudicated Aver-sano guilty of grand theft only, and sentenced her to one year in county jail followed by twelve years probation.

Aversano argues that the trial court erred by not instructing the jury that it could find her guilty of grand theft, or dealing in stolen property, but not both, under section 812.025. She argues further that the trial court erred by allowing the jury to find her guilty of both counts. Finally, she argues that her trial counsel rendered ineffective assistance by failing to request a good faith or advice of counsel instruction, and instead requesting an instruction on bailment. We agree.

We address the ineffective assistance of counsel claim first. To succeed on an ineffective assistance of counsel claim, a defendant must satisfy two elements. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

With rare exceptions, ineffective assistance of counsel claims should be raised in a motion for post-conviction relief because they are generally fact-specific. See Gore v. State, 784 So.2d 418, 438 (Fla.2001). “Only in cases where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal.” McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004) (citations omitted).

Aversano acknowledges that ineffective assistance of counsel claims are generally not cognizable on direct appeal, but contends that the ineffective assistance is apparent on the face of the record. We agree.

It is apparent on the face of the record that the performance of Aversano’s trial counsel was deficient for failing to request a specific instruction on either the good faith defense or the advice of counsel defense, which were central to her case. At trial, Blackburn testified that he advised Aversano that she had the legal right to sell the property after the deadline for removal contained in her notice to the third-party. This testimony was unrefut-ed. Florida recognizes the good faith defense. See Alfaro v. State, 837 So.2d 429, 432 (Fla. 4th DCA 2002). Florida also recognizes the advice of counsel defense, but it applies only to a specific intent crime. See State v. Franchi 746 So.2d 1126, 1127 (Fla. 4th DCA 1999) (citation omitted). Grand theft is a specific intent crime; however, dealing in stolen property is not. See Reese v. State, 869 So.2d 1225, 1227 (Fla. 2d DCA 2004) (citations omitted).

The state responds that ineffective assistance of counsel is not apparent on the face of the record because the decision not to request the instructions was strategic, and therefore, necessitates a factual inquiry. In Occhicone v. State, 768 So.2d 1037 (Fla.2000), the Florida Supreme Court recognized that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Id. at 1048. However, we agree with Aversano’s contention that it is patently unreasonable to fail to request an instruction that provides a legal defense to undisputed facts. See Mathis v. State, 31 Fla. L. Weekly D2639, *4, — So.2d -, -, 2006 WL 3017251 (Fla. 1st DCA October 25, 2006) (stating “even if appellant’s trial counsel would have categorized his decision as a strategic one, arguing that the jury should find appellant not guilty because he was acting in self-defense and then failing to request an instruction on that theory was patently unreasonable”).

Prejudice to Aversano from trial counsel’s failure to request one or both of these instructions is also apparent on the face of the record, as that failure essentially deprived her of a defense. Aversano never denied the property belonged to Burns, and she never denied selling it. Thus, her only defense was that she had a good faith belief, based on advice of counsel, that she had a right to act as she did.

Forget v. State, 782 So.2d 410 (Fla. 2d DCA 2001), cited by Aversano, is instructive. In Forget, the Second District found on direct appeal that the defendant’s trial counsel rendered ineffective assistance where trial counsel failed “to request the jury instruction that would have required the State to establish Forget’s knowledge of the presence of cocaine residue in the pipe” found in his pocket. Id. at 413. Forget argued that his trial counsel “effectively admitted both charges against him by admitting that Forget was guilty of possession of the pipe and failing to request a jury instruction regarding knowledge of the cocaine residue in the pipe.” Id.

Similarly, in the instant case, trial counsel admitted in- opening statement that Av-ersano took the property and sold it. He put Aversano on the stand and she admitted having the property and selling it. Trial counsel again admitted in closing that it had occurred. However, the jury was never instructed on the viable defenses of good faith and advice of counsel, which were supported by undisputed evidence presented at trial.

Because it is apparent on the face of the record that Aversano has satisfied both prongs of Strickland, we reverse and remand this case for a new trial. We do not reach Aversano’s claim that trial counsel was ineffective for requesting a special instruction on bailment.

Since we are reversing for a new trial, we also address Aversano’s argument that the trial court erred in failing to instruct the jury that it could convict Aver-sano of either grand theft or dealing in stolen property, but not both. Section 812.025 provides:

Notwithstanding any other provision of law, .a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

§ 812.025, Fla. Stat. (2006) (emphasis added). Both counts charged in the instant case involved the same restaurant equipment. There is no dispute that the alleged offense was “one scheme or course of conduct.” In construing section 812.025, the Florida Supreme Court stated:

Section 812.025 allows the State to charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts, but the trier of fact must then determine whether the defendant is a common thief who steals property with the intent to appropriate said property to his own use ... or whether the defendant traffics or endeavors to traffic in the stolen property. The linchpin of section 812.025 is the defendant’s intended use of the stolen property. The legislative scheme allows this element to be developed at trial and it is upon this evidence that the trier of fact- may find the defendant guilty of one or the other offense, but not both.

Hall v. State, 826 So.2d 268, 271 (Fla.2002). The Hall court found the legislative scheme so clear and compelling that it held a defendant could not plead guilty to both dealing in stolen property and grand theft when both arose out of the same scheme or course of conduct because the charges are inconsistent.

Because the trial court did not instruct the jury on its obligation under Hall to “determine whether the defendant is a common thief who steals property ... or whether the defendant traffics ... in stolen property,” the court committed fundamental error. See Toson v. State, 864 So.2d 552, 555 (Fla. 4th DCA 2004) (concluding “the convictions of both grand theft and dealing in stolen property constitute fundamental error that may be raised for the first time on appeal”); Stewart v. State, 420 So.2d 862, 863 (Fla.1982) (holding that “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict”). That determination by the jury is the “linchpin” element that must be decided by the trier of fact when both theft and dealing in stolen property are charged. Hall, 826 So.2d at 271.

Therefore, Hall and a plain reading of the statute make it clear that the state was not entitled to have a jury convict Aversa-no of both counts and then have the trial court adjudicate her guilty of grand theft, which in this case is a second-degree felony. Although dealing in stolen property is also a second-degree felony, grand theft carries a higher offense severity rating at sentencing. See § 921.0022(2),(3)(e) & (f), Fla. Stat. (2005) (categorizing second-degree grand theft as a level six offense severity ranking and second-degree dealing in stolen property as a level five offense severity ranking). The statute does not permit this option. To conclude otherwise would make the language of the statute, which permits the trier of fact to return a verdict on one or the other but not both, meaningless.

Reversed and Remanded with Directions.

STONE and STEVENSON, JJ., concur.

      . Aversano did not request this instruction below.


author: STEVENSON, J.

text:
    PALAZZO LAS OLAS GROUP LLC, Appellant, v. CITY OF FORT LAUDERDALE, Florida, a Florida Municipal Corporation; Fort Lauderdale Community Redevelopment Agency, a Florida entity; Jim Naugle; Dean Trantalis, Christine Teel; and Cindi Hutchinson, Appellees.
    No. 4D06-2130.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2007.

      W. Kent Brown, John R. Hargrove and Albert L. Frevola of Gordon Hargrove & James, P.A., Fort Lauderdale, for appellant.
    Robert H. Schwartz and Alain E. Boi-leau of Adorno & Yoss LLP, Fort Lauder-dale, for appellees.
   STEVENSON, J.

In this appeal, Palazzo Las Olas Group, LLC (“Palazzo”) challenges an order dismissing its twelve-count complaint against the City of Fort Lauderdale, the Fort Lauderdale Community Redevelopment Agency (“CRA”), the mayor, and several commissioners, wherein Palazzo sought declaratory and injunctive relief and damages. The trial court dismissed Palazzo’s complaint, with prejudice, after concluding that Palazzo’s sole remedy was the filing of a petition for certiorari, challenging the City Commission’s decision to deny site plan approval of a project that had been the subject of a detailed request for proposals and extensive negotiations and dealings between Palazzo and the City. We disagree that Palazzo’s sole remedy lies in certiorari and, having concluded that the allegations of the complaint are at least minimally sufficient to state a cause of action with respect to all counts save VI (mandamus) and XII (specific performance), we affirm in part and reverse in part the order on appeal.

In November 2003, the Fort Lauderdale City Commission (“Commission”) denied site plan approval for a redevelopment project on Las Olas Boulevard. Palazzo timely filed a petition for certiorari, challenging the Commission’s decision. The petition for certiorari was resolved in favor of the City and no appeal was taken.

Simultaneous with the filing of the petition for certiorari, Palazzo filed a civil complaint. The amended version of that complaint named as defendants the City of Fort Lauderdale, the CRA, Mayor Jim Naugle, and Dean Trantalis, Christine Teel, and Cindi Hutchinson — City Commissioners and members of the CRA. The Amended Complaint is more than fifty pages and alleges in great detail the circumstances surrounding the City’s determination to redevelop the Central Beach area, which includes Las Olas Boulevard, and the communications and negotiations between Palazzo and the City regarding the redevelopment.

More specifically, the Amended Complaint alleged the following:

(1) a detailed request for proposals (RFP) for the development of a mixed-use “urban beach village” was issued by the City in 2001;

(2) Palazzo’s proposal was accepted by the City in August of 2001;

(3) the language and specificity of the RFP were such that, upon the award of the same to Palazzo and its acceptance, a contract existed between Palazzo and the City for the redevelopment of the Las Olas lot in accordance with the terms of the RFP;

(4) it was “understood” that Palazzo “would require relief from potentially applicable building-dimension or location limitations, and the RFP made it clear that such relief would be forthcoming”;

(5) from August 2001 through the fall of 2003, the City and Palazzo spent countless hours addressing the details of the project, with Palazzo making several modifications at the City’s request;

(6) in the summer of 2002, the City allowed Palazzo to begin the permitting process;

(7) in fall of 2002, the City approved the lease of a portion of the lot to Palazzo so Palazzo could construct a sales center;

(8) Palazzo constructed the sales center, began marking the residential units, and produced nearly $100 million in pre-sales;

(9) by March 2003, the City’s Development Review Commission and the City Planning and Zoning Board had approved Palazzo’s site plan;

(10) in late 2002 and early 2003, as a consequence of a changing political climate, the Mayor and two newly-elected commissioners “undertook efforts to derail the Project,” including efforts by the May- or to delay the Commission’s vote on the site plan until after the elections;

(11) “[t]he City, the Agency [CRA], the Mayor and certain Commissioners purposely and in bad faith routinely confused and switched their respective roles in accomplishing a grossly improper objective”;

(12) in November 2003, a hearing was held and the Commission denied site plan approval for the project;

(13) “[a]lthough from the beginning the City indicated that ... [certain building] limitations would not apply and that any needed relief would be granted, and although the City ordered Palazzo to design a project that would not comply with such limitations, finally the City turned around and used the same non-compliant features that it ordered to be included in the first place as a basis for attacking the Project”; and

(14) Palazzo “had spent over two years and more than $5,000,000 ... in good faith reliance on the City’s actions.”

■ ■ The complaint asserted twelve causes of action.

Count I sought a declaratory judgment that (1) as a consequence of the City’s actions and communications with Palazzo, the City was contractually required to approve the site plan and/or equitably es-topped from denying site plan approval and (2) the City’s actions in denying site plan approval were void as they were in violation of the Sunshine Law. Additionally, in count I, Palazzo sought an injunction precluding the City from denying it site plan approval. Count II alleged that an enforceable contract had arisen as a consequence of the RFP and the subsequent approvals and negotiations and that the City and CRA had breached the same, seeking specific performance of the contracts and agreements and more than $40 million in damages. Counts III and IV, asserting equitable and promissory estop-pel, respectively, alleged justifiable reliance on the City’s actions and agreements and sought to estop the City from denying Palazzo site plan approval and damages. Count V sought declaratory and injunctive relief pursuant to section 163.3215, Florida Statutes, which precludes local governments from acting in a manner contrary to their Comprehensive Plan. Count VI sought a writ of mandamus compelling the City to approve Palazzo’s site plan and execute the necessary development documents. Counts VII, VIII, and IX, asserted against all defendants, alleged interference with contract, interference with an advantageous business relationship and conspiracy and sought damages. Count X alleged the City’s and CRA’s actions were sufficient to support the imposition of a contract implied in law and that the City and CRA had been unjustly enriched by Palazzo’s sharing of confidential and proprietary information concerning redevelopment of the lot. Count XI sought the imposition of a constructive trust with respect to the “confidential, trade secret, and proprietary information and expertise shared by Palazzo.” Finally, count XII sought specific performance of the sales center lease.

The defendants filed a motion to dismiss. Their principal argument was that the Amended Complaint was subject to dismissal in its entirety since the exclusive remedy available to Palazzo, the developer/applicant, was to file a petition for writ of certiorari seeking review of the Commission’s denial of site plan approval. Additional arguments in support of dismissal were made with respect to a number of the counts.

The trial court dismissed the twelve-count complaint in its entirety, save that portion of count I alleging a violation of the Sunshine Law. In so doing, the court reasoned that all of Palazzo’s common law claims derived from quasi-judicial actions, and more specifically, the Commission’s denial of Palazzo’s site plan, and consequently, the filing of a petition for certiora-ri was its exclusive remedy. With respect to count VI, seeking a writ of mandamus, the trial court made the additional finding that such claim was subject to dismissal as mandamus is a remedy designed to coerce or command the performance of a ministerial act and, despite Palazzo’s claims to the contrary, the Commission’s approval of the site plan was not merely a ministerial act. And, finally, the trial court concluded that counts VII through IX, alleging interference with a contract, interference with an advantageous business relationship, and conspiracy, could not survive because, as a matter of law, the alleged actions “do not arise to the level of bad faith, malicious purpose or a manner exhibiting wanton and willful disregard of human rights, safety or property,” i.e., the level of bad faith necessary to avoid section 768.28(9)’s sovereign immunity. In the order, the trial court found that, with the exception of count I’s allegations concerning the Sunshine Law, Palazzo could not amend its claims so as to state a cause of action. When Palazzo indicated it would not amend count I, a final order of dismissal with prejudice was entered. This appeal followed.

In its order of dismissal, the trial court cited Webb v. Town Council of Town of Hilliard, 766 So.2d 1241, 1243 (Fla. 1st DCA 2000), for the proposition that “[l]ocal government decisions pertaining to building permits, site plans, special zoning exceptions, and other development orders generally are deemed quasi-judicial in nature, thus subject to certiorari review.” Relying upon this proposition of law, the trial court then concluded that those aggrieved by a local government’s decision regarding a permit, site plan, or other development order are limited to certiorari review and are foreclosed from bringing any additional civil claim against the government entity based upon its conduct and actions during the permitting process. While we agree that Palazzo could only obtain a reversal of the Commission’s actual decision denying it site plan approval via a petition for writ of certiorari, we do not believe that this bars the pursuit of other civil remedies.

First, during .certiorari, proceedings seeking to challenge the denial of the site plan, the issues that can be addressed are extremely limited. In such a proceeding, the circuit court would be limited “to determining] (1) whether the agency afforded procedural due process; (2) whether the agency observed the essential requirements of law; and (3) whether competent, substantial evidence supported the agency’s findings and judgment.” See, e.g., Powell v. City of Sarasota, 953 So.2d 5, 6 (Fla. 2d DCA 2006). Consequently, the circuit court could never reach issues concerning whether the City had contractually agreed to waive certain permitting requirements as alleged by Palazzo or whether, based upon the City’s actions, the City was equitably estopped from denying site plan approval. Cf. Citrus County v. Fla. Rock Indus., Inc., 726 So.2d 383, 387 (Fla. 5th DCA 1999) (holding “common law issues” concerning whether County was estopped from denying permit because of its acquiescence over the years, the permit applicant’s good faith reliance on actions of County, and the permit applicant’s commitment of resources had no place in administrative permitting process or in cer-tiorari review of decision denying permit).

Second, much of what underlies Palaz-zo’s civil claims, and particularly counts I and III, is an allegation that as a consequence of the City’s own actions it is now estopped from denying site plan approval. Florida’s courts have long recognized that local government entities must deal fairly with their citizens and that, in the absence of fair dealing, the doctrine of equitable estoppel may be invoked. Thus, in Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976), where the City initially granted a zoning change to the petitioners, but, following a political change, spent three years delaying and attempting to rescind the change, our supreme court wrote:

Every citizen has the right to expect that he will be dealt with fairly by his government. “Unfair dealing” by a municipality can also serve as the basis for the invokement of equitable estoppel. While a City Commission certainly possesses the prerogative of deciding .to defer action on such a proposal over a long period of time, it must assume the attendant responsibility for the adverse effect it knows or should know its deliberate inaction will have upon the parties with whom it is dealing.

Id. at 18 (citations and footnote omitted). See also Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 573 (Fla. 2d DCA 1975) (“A citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form of words or deeds....”); City of N. Miami v. Margulies, 289 So.2d 424, 425 (Fla. 3d DCA 1974) (stating “[a]ll governments derive their power from the people” and “[i]n return for vesting that power in the government the people should be able to expect stability and fair play from their government”).

Consistent with these principles, there are Florida cases suggesting that a civil suit will lie against a governmental entity where it has engaged in alleged unfair dealing. In Sundstrom v. Collier County, 385 So.2d 1158 (Fla. 2d DCA 1980), the owner of real property obtained a building permit and spent money to commence work on the project. Thereafter, the zoning board issued a stop-work order. The property owner failed to timely seek cer-tiorari review and, instead, filed a petition for writ of mandamus. The trial court dismissed the petition with prejudice as a consequence of the owner’s failure to timely seek review of the order via the filing of a petition for writ of certiorari. The appellate court agreed that mandamus was not the appropriate remedy, but nonetheless reversed the dismissal with prejudice because the owner should have been afforded the opportunity to “state a cause of action in equity for equitable estoppel, declaratory relief, or an injunction.” Id. at 1159. And, Florida Rock Industries, 726 So.2d at 383, Town of Largo v. Imperial Homes Corp., 309 So.2d at 571, and Town of Longboat Key v. Mezrah, 467 So.2d 488 (Fla. 2d DCA 1985), each involved the circumstance where a property owner/applicant brought a civil action for declaratory relief and/or an injunction, asserting that the governmental entities’ prior conduct was such that it was estopped from taking the complained-of action. And, in Florida Rock Industries, the property owner simultaneously filed a petition for writ of certiorari, seeking review of the order on its application for determination of vested rights, and a civil complaint, seeking declaratory relief and alleging equitable estoppel. 726 So.2d at 386.

Having considered the above authorities and principals and the limitations of certio-rari review, we hold that while any direct challenge seeking to overturn the Commission’s decision denying site plan approval had to be sought via the filing of a petition for writ of certiorari, this did not preclude Palazzo from bringing a civil suit, wherein it sought relief on matters beyond those appropriately addressed during the certio-rari proceeding. The trial court thus erred in dismissing Palazzo’s Amended Complaint for this reason.

The only other grounds referenced by the trial court in the order dismissing the Amended Complaint with prejudice concern count VI and counts VII through IX. Count VI seeks a writ of mandamus compelling the City to approve the site plan and execute the necessary development documents. The trial court dismissed the claim as such a cause of action lies to compel the performance of a ministerial act and the act of approving or denying the site plan is not a ministerial act. We agree and thus affirm the dismissal with prejudice as to count VI.

Counts VII through IX assert claims for tortious interference with a contract, tortious interference with an advantageous business relationship, and conspiracy, respectively. The defendants insisted the claims could not stand (1) because they were predicated upon the Commissioners’ actions in voting at a public meeting and such actions constituted the exercise of quasi-judicial powers and were thus absolutely immune, see Penthouse, Inc. v. Saba, 399 So.2d 456, 458 (Fla. 2d DCA 1981), and P.C.B. Partnership v. City of Largo, 549 So.2d 738 (Fla. 2d DCA 1989), and (2) because section 768.28(9)000 (a), Florida Statutes, affords government officers, agents, and employees immunity from suit un..less their actions are taken in “bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property” and the complaint failed to adequately allege such bad faith or malicious purpose. The trial court found that, as a matter of law, the complaint’s allegations did not rise to the requisite level of bad faith or malicious purpose. We have reviewed the complaint’s allegations and find them minimally sufficient to allege the kind of bad faith and malicious purpose necessary to seek to impose individual liability. The defendants’ alternative claim that counts VII through IX must fail as they are predicated upon the Commissioners’ actions in voting at a public meeting is also insufficient to support the dismissal of the counts as the claims are not predicated solely upon the act of voting.

Finally, apart from the specific findings in the trial court’s order of dismissal, we have considered whether the allegations of the Amended Complaint are sufficient to state each of the twelve alleged causes of action and all the arguments advanced by the defendants in their motion to dismiss. With the exception of count XII, seeking specific performance of the sales center lease, we find the allegations of the Amended Complaint are minimally sufficient to state the alleged causes of action. In their motion to dismiss, the defendants insisted the allegations of count XII fail to state a cause of action because the count fails to allege a breach of the lease. In its response, Palazzo contended it did allege such a breach, i.e., that the City breached the lease by “threatening] to stop honoring the lease’s terms” and “threatening] to shut down the ... sales center”; that the prevention or hindrance of performance is a breach of the contract, see Sharp v. Williams, 141 Fla. 1, 192 So. 476, 480 (1939); and that the City’s derailing of the project and threats hindered or prevented it from performing its contractual obligation to pre-sell condominium units. The fact of the matter, though, is that count XII does not actually allege that the City’s threats have interfered with or prevented its performance of its contractual obligations under the lease. Rather, count XII alleges only that “[i]f the City shut down Palazzo’s sales center, Palazzo would suffer additional lost condominium presales.” Thus, as written, count XII is deficient and subject to dismissal. Such dismissal, though, should not have been with prejudice.

In sum, having reviewed the allegations of the Amended Complaint and all grounds advanced by the defendants in favor of dismissal, including those not specifically discussed herein, we reverse the dismissal with prejudice of counts I through V and of counts YII through XI. The dismissal of count XII is affirmed, but the order of dismissal should be amended to reflect that such dismissal is without prejudice. And, finally, the dismissal with prejudice of count VI, purporting to state a cause of action for mandamus, is affirmed. We recognize that certain counts may be vulnerable to judgment on the pleadings or summary judgment, but we do not reach those issues in review of a dismissal for failure to state a cause of action. The order appealed is thus affirmed in part, reversed in part, and the matter remanded for further proceedings.

HAZOURI and MAY, JJ., concur.

      . Our reversal as to counts X, XI and XII may be of little practical import as Palazzo has indicated on appeal that it does not intend to pursue such claims absent the discovery of additional information.


author: WARNER, J.

text:
    Christopher PERAZA, Petitioner, v. Rick BRADSHAW, Sheriff of Palm Beach County, and the State of Florida, Respondents.
    No. 4D07-3870.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2007.
    Kevin R. Anderson of Anderson & Welch, L.L.C., West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for respondent State of Florida.
   WARNER, J.

Petitioner Christopher Peraza requests that this court issue a writ of habeas corpus to release him from custody and reinstate bail for his probation violation case. A first appearance judge had set bail which was later revoked by the original sentencing judge. We hold that the sentencing judge had authority to revoke bail set by a first appearance judge. Therefore, we deny the writ.

Peraza was placed on drug offender probation for the crimes of possession of cocaine and marijuana. While on probation, Peraza was arrested on April 25, 2007, for trafficking in oxycodone. He was brought before a first appearance judge on the same date, and the judge released him under a supervised recognizance program. Before his release from jail was complete, his probation officer prepared and filed an affidavit of violation of probation. An arrest/notiee to appear form was prepared by the Department of Corrections and signed by the probation officer. Pursuant to the arrest report, Peraza was brought before another first appearance judge the next day. That judge set a bond of $5,000, and Peraza was released. He was not returned to the judge who committed him to probation.

Five months later, Peraza came for a preliminary violation of probation hearing before the judge who had committed him to probation. That judge sua sponte revoked the bond because Peraza was arrested for trafficking in drugs while he was already on probation for a drug charge. From that order, Peraza petitions for relief.

Probation is an act of grace to a defendant convicted of a crime. See Kaduk v. State, 959 So.2d 817 (Fla. 4th DCA 2007). When a defendant violates probation, that defendant is not in the same position as a defendant arrested for the commission of a crime for which he or she is deemed innocent until proven guilty beyond a reasonable doubt. As such, there is no constitutional right to bail pending a revocation of probation. See Genung v. Nuckolls, 292 So.2d 587 (Fla.1974); McCarthy v. Jenne, 861 So.2d 99 (Fla. 4th DCA 2003).

Because this was an arrest for a probation violation rather than a new crime, we conclude that Florida Rule of Criminal Procedure 3.131 does not apply. Rule 3.131(a) starts with the premise that a person charged with an offense is entitled to pretrial release on reasonable conditions. Probationers are not entitled to pretrial release, and thus they are not entitled to all of the protections of rule 3.131.

To allow a probationer to obtain a bond from a first appearance judge, who has little, if any, knowledge of the case, would deprive the judge or court which imposed the sentence from determining, in its discretion, the appropriate release provisions pending a final hearing on the probation. Because the probationer is only on probation as an act of grace of the sentencing court, the sentencing court has the discretion to grant or deny bail pending the revocation hearing. A first appearance judge has the authority to set bail only pending a further hearing before the sentencing court. See § 948.06(4), Fla. Stat. (2006) (where probationer is arrested, taken before a court in the county in which he or she is arrested and denies a violation of probation, the court may release the probationer with or without bail “to await further hearing”).

Peraza was already on probation for drug charges, and he was arrested for another drug offense in direct violation of the terms of his probation. This was no technical violation of the conditions of his probation. We think it is well within the discretion of the sentencing court to refuse his continued release. The trial court did not abuse its discretion in determining not to continue Peraza on bail.

STEVENSON and GROSS, JJ., concur.


author: WALLACE, Judge. ALTENBERND, Judge,

text:
    Patricia BYERS and Steven Byers; and Todd Miles, individually, and as Personal Representative of the Estate of Todd Byers, deceased, Appellants, v. The RADIANT GROUP, L.L.C., Appellee.
    No. 2D06-4437.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2007.
    Jeffrey Lee Gordon of Maney & Gordon, P.A., Tampa; and Deborah L. Appel, Tampa, for Appellants.
    Thomas A. Valdez and Robert Santa Lucia of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellee.
   WALLACE, Judge.

The plaintiffs in a premises liability action appeal a summary final judgment in favor of the landowner. Because the resolution of the dispositive liability questions in this case depends on the determination of disputed issues of material fact, we reverse the summary final judgment and remand for further proceedings.

I. THE FACTUAL BACKGROUND

Shortly before midnight on September 14, 2003, Todd Byers (Todd) drove his automobile into the parking lot of the Radiant Food Store located on State Road 54 in Pasco County. The Radiant Food Store is a convenience store and retail fuel outlet. The store also houses a sandwich shop. Todd was accompanied by his brother, Steven Byers (Steven); Steven’s wife, Patricia Byers (Patricia); and an acquaintance, Julie Barilleaux.

Steven left the car and went into the store to purchase milk. Inside the store, he remembered that his brother was going fishing the next morning with a friend. For this reason, he ordered two sandwiches for Todd and his companion to take with them on their fishing trip. After Steven had paid for the milk and sandwiches, he returned to Todd’s vehicle.

As the Byers party was pulling out of their parking space, they encountered another vehicle that had just entered the store’s parking lot. The second vehicle was occupied by Timothy Hahn, Eddie Prince, Courtney Bryant, and Ryan Gobel. As a result of a driving-related issue, some of the occupants of the two vehicles exchanged words. Next, some members of the Hahn party removed baseball bats from the trunk of their vehicle, and the conflict rapidly escalated. A brawl in the parking lot between some members of the Byers party and some members of the Hahn party ensued. Todd, Steven, and Patricia each had some degree of involvement in the brawl. However, a review of the record discloses substantial issues of fact concerning the nature and extent of Patricia’s participation.

This unfortunate incident came to a tragic end when Timothy Hahn twice drove his vehicle directly into Todd and Patricia, pinning them against the store’s wall. Todd died at the scene as a result of his injuries, and Patricia was seriously injured. Hahn was subsequently convicted of murdering Todd and attempting to murder Patricia.

II. THE CIRCUIT COURT’S RULING

Patricia and the personal representative of Todd’s estate filed a negligence action against Hahn and The Radiant Group, L.L.C., the store’s owner (the Owner). Steven asserted a claim for loss of consortium. After the action was at issue, the Owner moved for summary judgment. The circuit court granted the motion. The circuit court ruled that when Todd and Patricia “changed their actions from customers to instigators of violence, they lost their status as business invitees and became uninvited licensees or trespassers.” The circuit court concluded that the Owner did not breach any of the limited duties that it owed to Todd and Patricia as uninvited licensees or trespassers. Based on this reasoning, the circuit court dismissed with prejudice the action against the Owner. On appeal, Steven, Patricia, and the personal representative of Todd’s estate challenge the circuit court’s ruling.

III. THE STANDARD OF REVIEW

Review of a summary judgment is de novo, requiring a two-pronged analysis. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). First, a summary judgment is proper only if there is no genuine issue of material fact, viewing every possible inference in favor of the party against whom summary judgment has been entered. Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000). Second, if there is no genuine issue of material fact, a summary judgment is proper only if the moving party is entitled to a judgment as a matter of law. Aberdeen at Ormond Beach, 760 So.2d at 130.

IV. ANALYSIS

A. The Owner’s Argument

If the liability of a possessor of land is predicated on an alleged defective or dangerous condition on his or her property, the extent of the duty of care that the possessor of land owes to a visitor to the property depends on whether the visitor is an invitee, licensee, or trespasser. Here, the Owner concedes that Todd and Patricia were initially invitees on the store’s premises. However, the Owner asserts that after the occupants of the Byers vehicle had completed their purchases at the store, they “purposely and intentionally stayed on the [Owner’s] property to engage in a confrontation and physical brawl.” Based on this assessment of the record, the Owner argues that “the [circuit] court was undeniably correct in ruling that the Byers had exceeded the scope of their invitation and devolved from invitees to uninvited licensees or trespassers.” We disagree with the Owner’s argument because the material disputed issues of fact before the circuit court at summary judgment precluded the circuit court from making such a ruling.

B. A Visitor’s Change in Status

The status of a visitor to land possessed by another may change from one of the three categories to another. See, e.g., Brant v. Matlin, 172 So.2d 902, 904 (Fla. 8d DCA 1965) (holding that the status of a social guest who was invited to the defendant’s home to attend the bar mitzvah of the defendant’s son changed from that of a licensee to an invitee when the defendant and his wife asked the guest to remain at the home after the event had concluded to take care of the house and to act as a governess for their children while the defendant and his wife went on vacation). The issue of the visitor’s status as an invitee, licensee, or trespasser is to be determined as of the time that the visitor is injured. See Fla. E. Coast Ry. Co. v. Pickard, 573 So.2d 850, 855 (Fla. 1st DCA 1990); Brant, 172 So.2d at 904.

An invitee may lose his status and become a licensee or trespasser by going to a part of the premises that is beyond the scope of his or her invitation. See Sears, Roebuck & Co. v. McClain, 167 F.2d 130, 131 (5th Cir.1948) (apparently applying Florida law); Hickory House, Inc. v. Brown, 77 So.2d 249, 252 (Fla.1955); Dunlop v. Reynolds, 204 So.2d 754, 755 (Fla. 2d DCA 1967); Dougherty v. Hernando County, 419 So.2d 679, 681 (Fla. 5th DCA 1982). See generally W. Page Keeton et al., Prosser and Keeton on Torts § 61, at 424-25 (5th ed. 1984); Restatement (Second) of Torts § 332 cmt. 1 (1965). Similarly, “an invitee ceases to be an invitee after the expiration of a reasonable time within which to accomplish the purpose for which he is invited to enter, or to remain.” Restatement (Second) of Torts, supra; see Keeton et al., supra, at 425.

C. Analysis

In this case, Patricia and Todd did not exceed the scope of their invitation by going to a part of the premises that was off-limits to customers of the store; the store’s parking lot was an area designated for use by customers. Moreover, Patricia and Todd did not remain on the store premises for an unreasonable amount of time after they had completed their business at the store. As soon as Steven returned to Todd’s vehicle with the milk and sandwiches, their party prepared to leave. It was at that point that the ill-fated episode in the parking lot began.

The circuit court did not rule that Patricia and Todd lost their status as invitees by entering a part of the store’s premises that was off-limits to customers. Nor did the circuit court find that Patricia and Todd remained on the premises after the expiration of a reasonable amount of time to conclude their business. Instead, the circuit court concluded that Patricia and Todd forfeited their status as invitees solely because of their behavior on the property, i.e., when they became “instigators of violence.” We find no support in Florida law for the proposition that a store patron can lose his status as an invitee and become an uninvited licensee or trespasser merely because he or she engages in a violent act or acts against other customers on the store’s premises. Indeed, to the extent that Florida case law addresses this issue at all, it is to the contrary.

A person who is injured during a brawl with another person’s assailant may still retain his status as an invitee on the premises where the brawl occurred. Hardy v. Pier 99 Motor Inn, 664 So.2d 1095 (Fla. 1st DCA 1995). In Hardy, a hotel patron witnessed a stranger stab the patron’s friend. Id. at 1096. The patron then “brawled” with the stranger in the hotel parking lot, sustaining a serious stab wound. Id. The patron filed an action for damages against the hotel, the assailant, and a security guard who was on duty at the hotel when the incident occurred. Id. The circuit court entered a summary judgment in favor of the hotel and the security guard, and the patron appealed. Id. at 1097.

On appeal, the First District reversed the summary judgment that had been entered in favor of the hotel. Id. at 1098. The district court’s opinion addressed the issue of the foreseeability of the criminal attack by the assailant rather than the patron’s status as an invitee, a licensee, or a trespasser. Id. at 1097-98. Nevertheless, the First District’s analysis assumed that the hotel patron’s status as an invitee did not change after he “brawled” with a stranger in the parking lot. Thus the result in Hardy is consistent with the conclusion that we reach in this case.

We acknowledge the possibility that the commission of a particular act of violence on premises owned or occupied by another might cause an invitee to forfeit that status and to become an uninvited licensee or a trespasser. For example, if a person entered a convenience store to buy milk and decided on the spur of the moment to rob the store, that person might be deemed a trespasser rather than an invitee from the moment that the robbery began. Cf. Iber v. R.P.A. Int’l Corp., 585 So.2d 367, 369 n. 4 (Fla. 3d DCA 1991) (stating in dicta that a woman who slipped on a piece of fruit and fell at the entrance to an office building could not “recover for her unfortunate encounter with the [overripe] mango if she had been entering the building to commit an armed robbery”); Hansen v. Cohen, 203 Or. 157, 276 P.2d 391, 392, 394 (1954) (holding that a parking lot patron who was assaulted by the lot attendant in a dispute over gambling winnings lost his status, as an invitee and became a trespasser after he had paid the attendant and offered “to throw dice with him for a wager of his fifty cents change”), reh’g denied en banc, 203 Or. 157, 278 P.2d 898 (1955). That said, the extreme circumstances that characterize the foregoing hypothetical are not present in the undisputed facts available to us from the record.

V. CONCLUSION

Despite the presence of numerous issues of disputed fact, the circuit court decided this case on a motion for summary judgment. We have reviewed the circuit court’s legal conclusion based on the limited facts in the record that appear to be undisputed. In the current posture of this case, we are compelled to hold that Patricia and Todd did not — as a matter of law— lose their status as invitees and automatically become uninvited licensees or trespassers merely because they participated in a brawl with other customers in the store’s parking lot. The issue of whether Todd and Patricia’s behavior in the parking lot caused either of them to lose their status as invitees and the related issue of whether the Owner may assert a partial or complete defense to liability based on that behavior may raise additional questions of fact and law that can only be resolved at a trial.

For these reasons, we reverse the final summary judgment and remand this case to the circuit court for further proceedings.

Reversed and remanded.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I agree that there are disputed issues of fact in this case that deprive the trial court of the power to enter a summary judgment declaring that one or all of the Byers party were trespassers at the time they were injured. However, if a jury ultimately determines that a plaintiff in this action intentionally chose to remain on the property to engage in a public brawl, not as a matter of self-defense but simply to use violence to resolve a private disagreement, the jury should receive an instruction based on section 768.075(4), Florida Statutes (2003). I am inclined to believe that, as a matter of tort law, the jury should also be instructed that an intentional choice to remain on property for the purpose of committing or attempting to commit a felony exceeds the scope of the invitation of the convenience store and is legally sufficient to transform that plaintiff from an invitee at this convenience store into an uninvited licensee or a trespasser.

The plaintiffs’ theory in this case is that the store employees had actual knowledge that the Hahn party had initiated a verbal altercation with the Byers party and that they knew or should have known the altercation had the potential to escalate into a physically violent situation. Although the store employees eventually called 911, the plaintiffs believe that reasonable store employees would have taken earlier steps to call the police or otherwise defuse the situation. They claim that a significant period of time, approximately twenty minutes, elapsed between the initial altercation and the ultimate fatal fracas. Thus, they theorize that an earlier response by the store employees would have prevented the death and injuries arising from the final fight. Although this theory is generally supported by case law, it only applies if the plaintiffs were invitees at the time of the incident. See Levitz v. Burger King Corp., 526 So.2d 1048, 1049 (Fla. 3d DCA 1988).

Radiant admits that the Byerses were initially invitees but contends that the Byerses exceeded the scope of their invitation by affirmatively choosing to remain on the property to engage in a brawl with the Hahn party. By exceeding the scope of the invitation, Radiant maintains that the Byerses became either uninvited licensees or discovered trespassers to whom its employees owed no duty except to keep from willfully and wantonly injuring them, or intentionally exposing them to danger. See Post v. Lunney, 261 So.2d 146, 147 (Fla.1972).

The majority is correct that the evidence in the record at this time presents many disputed issues of fact. The majority opinion, however, emphasizes those facts that establish the Byerses as invitees. I think it is useful to understand the disputed facts about the brawl that caused the trial court to conclude that it could decide as a matter of law that the Byerses had become trespassers. While the trial court’s ruling was not legally correct, there is a very legitimate issue as to whether the Byerses had ceased to be invitees at the time they were injured. Thus, the disputed facts as they currently exist in this record warrant a more complete description.

As may be expected, the details of this event vary depending upon the perspective of the different eyewitnesses. Generally, however, the record reflects that the physical altercation between the Hahns and the Byerses came about as a result of a traffic dispute. The Byerses claim that they were in the process of pulling out of a parking spot at the convenience store when the Hahn vehicle pulled into an adjacent spot driving approximately 30 m.p.h. According to the Byerses, the two cars nearly collided as a result. In response, Todd Byers began yelling obscenities and making obscene gestures.

It is unclear what happened next. Courtney Bryant, a member of the Hahn party, claims that the fight began because Todd Byers, who was driving the Byers vehicle, opened his door, stuck one foot out, reached under his seat, and claimed to have a gun. If this is true, it is unclear why any member of the Hahn party chose to exit their vehicle.

Patricia and Steve Byers claim that the fight began when Eddie Prince went to the trunk of the Hahn car, pulled out a bat, and approached the Byers vehicle. When Eddie Prince approached the Byers car, it appears that all four members of the Byers party were still within the vehicle. Rather than remaining in their car or departing the premises, the Byerses exited their vehicle, at which point Todd Byers was attacked by Eddie Prince. In the ensuing fight, Todd Byers ultimately obtained control of the baseball bat. He then repeatedly beat Eddie Prince with the bat. Todd Byers then began beating the Hahn vehicle with the bat. Timothy Hahn was in the driver’s seat at that time, and he stepped on the car’s accelerator, throwing Todd Byers up against the wall of the store. This resulted in Todd Byers’ death.

Patricia Byers’ situation was significantly different; she exited the Byers vehicle after her brother-in-law, Todd Byers, at which point she claims she was immediately attacked by Courtney Bryant, a woman from the Hahn party. Patricia Byers claims that Courtney Bryant grabbed her by the hair and shoulders and pushed her to the ground and that she was unable to detach herself from this fight until she was aided by a compatriot. Immediately thereafter, Patricia Byers approached Todd Byers, who by that time was beating the hood of the Hahn vehicle with the baseball bat. She attempted to pull him away from the fight and tried to convince him to leave the parking lot. It was at this point that she too was hit by the car driven by Timothy Hahn.

I admit that Florida case law has limited discussion of the types of conduct that can transform a business invitee into an uninvited licensee or trespasser. We have discussed conduct that exceeds the scope of the invitation by straying outside what Prosser refers to as the “area of invitation.” See W. Page Keeton et al., Prosser and Keeton on Torts § 61, at 424 (5th ed. 1984). Thus, Florida cases have held that “[i]f a person, though on the premises by invitation, goes to a place not covered by the invitation, the owner’s duty of care owed to that person as invitee ceases forthwith.” IRE Fla. Income Partners, Ltd. v. Scott, 381 So.2d 1114, 1117 (Fla. 1st DCA 1979); see Cmty. Christian Ctr. Ministries, Inc. v. Plante, 719 So.2d 368, 370 (Fla. 4th DCA 1998).

Florida case law, however, has not extensively discussed the types of conduct within an area of invitation that can transform an invitee into a trespasser. The legislature, however, has enacted section 768.075(4), which prevents a property owner from being held liable under a negligence theory to an individual who is injured while committing or attempting to commit a felony. Cf. Iber v. R.P.A. Int’l Corp., 585 So.2d 367, 369 n. 4 (Fla. 3d DCA 1991) (noting the importance of considering a business visitor’s subjective purpose as “no one would think that Ms. Iber could recover for her unfortunate encounter with the mango if she had been entering the building to commit an armed robbery”). I conclude that the jury in this case should be instructed on this statute.

In this case, there is significant evidence that would support a theory that Todd Byers was engaged in the commission of a felony at the time he was killed. See, e.g., § 784.045, Fla. Stat. (2003) (defining aggravated battery). However, whether Mr. Byers was committing aggravated battery at the time he was killed depends on whether his use of force was justifiable. See § 776.012, Fla. Stat. (2003) (delineating the circumstances in which an individual can justifiably use force against another in self-defense); § 776.031 (delineating the circumstances in which an individual can justifiably use force against another in defense of others). But see § 776.041 (restricting the circumstances in which an individual, who was the aggressor, can justify the use of force as self-defense or defense of others).. Accordingly, the application of section 768.075(4) to Mr. Byers’ claim presents a jury issue.

It is less clear whether the evidence would support a finding that Patricia Byers was committing or attempting to commit a felony at the time of her injuries. If she was not committing a felony, it is unclear whether her participation in the brawl was sufficient to deprive her of the status of invitee. Cf. Hardy, 664 So.2d 1095 (holding that patron did not lose his invitee status when he became engaged in a brawl in order to defend his friend who had just been stabbed by a stranger). In' other jurisdictions, it is well recognized within tort law that, without entering restricted territory, a business invitee can exceed the scope of the invitation implied by a business that is open to the public when the business invitee intentionally engages in unreasonably dangerous conduct. See, e.g., Barry v. S. Pac. Co., 64 Ariz. 116, 166 P.2d 825, 828 (1946) (noting that appellant was a “licensee as long as he remained upright and used the pathway as a place to walk and cross the tracks. When he lay down between the tracks and went to sleep, he was a trespasser”); Bird v. Clover Leaf-Harris Dairy, 102 Utah 330, 125 P.2d 797, 798 (1942) (holding that when plaintiff, who was initially an invitee, failed to “use the owner’s premises in the usual, ordinary, and customary way ... he became ... at best a mere licensee”); Page v. Town of Newbury, 113 Vt. 336, 34 A.2d 218, 220 (1943) (noting that “one entering [as an invitee or licensee] may become a trespasser by committing active and positive acts not included in the terms of his license or authority to enter”); see also Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330, 333 (1982) (noting that the duty owed to a business invitee, as defined in the Restatement Second of Torts § 332 (1965), “may be diluted or extinguished if the invitee engages in explicitly or impliedly • unpermitted activities”). In other words, intentionally dangerous conduct by the business invitee is not a matter of comparative negligence vis-á-vis the business owner’s duty to invitees, but a circumstance that transforms the invitee into an uninvited licensee or trespasser to whom the business owner owes a substantially reduced duty. In Florida this tort law is partially incorporated into section 768.075(4), which prevents proprietors from being held liable to an individual who is injured while committing or attempting to commit a felony. See also 62 Am.Jur.2d Premises Liability § 108 (2007); cf. Iber, 585 So.2d at 369 n. 4. This issue has not been thoroughly briefed, and the trial court should be allowed to further consider this legal issue on remand.

Finally, the timing of the events occurring during this altercation may prove critical in determining the status of Patricia or Todd Byers and the moment at which that status may have changed. It is possible that the Byerses maintained their status as invitees up and until a time at which the jury could conclude the store employees had a duty to intervene and protect the Byerses from members of the Hahn party, even if the Byerses thereafter engaged in conduct that exceeded the scope of their invitation. This, too, raises a difficult issue, not briefed in this appeal, regarding what point in time is critical in determining when a person’s status on property changes. — at the time the duty to the invitee is breached or at the time the injury actually occurs.

      . The materials that the parties relied on at the hearing on the appellee’s motion for summary judgment were voluminous. They included affidavits, photographic and documentary evidence, excerpts from the testimony taken at the criminal trial of one of the participants in the events at issue, and numerous depositions given by the parties and witnesses. The accounts offered by the parties and witnesses concerning the incident that occurred at the Radiant Food Store on September 14-15, 2003, are not completely consistent and frequently conflict about significant details. The limited account of the events at the store offered in this opinion is based on facts that do not appear to have been in dispute.

      . Courtney Bryant's account of how Todd sustained his injuries was slightly different. In her version, Todd was standing on the hood of the Hahn vehicle, beating the windshield with a baseball bat. When Hahn drove forward, Todd was thrown from the vehicle into the store’s wall.

      . For a discussion of the three categories of visitors to land possessed by another and the duty of care owed to a visitor to the property resulting from the applicable category, see Wood v. Camp, 284 So.2d 691 (Fla.1973); Post v. Lunney, 261 So.2d 146 (Fla.1972); and Lukancich v. City of Tampa, 583 So.2d 1070 (Fla. 2d DCA 1991). See also § 768.075, Fla. Stat. (2003) (limiting the liability of "[a] person or organization owning or controlling an interest in real property, or an agent of such person or organization” to persons under the influence of alcohol or controlled substances, to trespassers, and to persons who attempt to commit or who commit a felony on the property). If the liability of a possessor of land to a visitor is predicated on the possessor’s active conduct or affirmative negligence rather than the condition of the property, then the principles of ordinary negligence apply in determining the issue of liability. See Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967, 968 (Fla.1977); Hix v. Billen, 284 So.2d 209, 210 (Fla.1973).

      . Steven’s loss of consortium claim is derivative of Patricia’s liability claim. See Gates v. Foley, 247 So.2d 40, 45 (Fla.1971); Commercial Clean-Up Enters., Inc. v. Holmquist, 597 So.2d 343, 344 (Fla. 2d DCA 1992). Accordingly, the question of whether Steven’s status on the store’s premises changed from that of an invitee to that of an uninvited licensee or trespasser is not material to a determination of the issue under review.

      . We have not overlooked section 768.075(4), which provides:
      A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for negligence that results in the death of, injury to, or damage to a person who is attempting to commit a felony or who is engaged in the commission of a felony on the properly.
      Notably, the circuit court did not rule that either Patricia or Todd had attempted to commit or had committed a felony on the store’s premises. Accordingly, section 768.075(4) does not provide support for the circuit court’s decision.

      . In circumstances where section 768.075(4) is applicable, the visitor’s status as an invitee, licensee, or trespasser on the property appears to be immaterial.


text:
    Robert MUMMA II and High-Spec, Inc., a dissolved Florida corporation, Appellants, v. Barbara Mck. MUMMA and Lisa Mumma Morgan, as Co-Executrixes of the Estate of Robert M. Mumma, deceased, and as Co-Trustees of the Residuary Trust under the last will of Robert M. Mumma, deceased and High-Spec, Inc., a dissolved Florida corporation, Appellees.
    No. 4D06-1206.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2007.
    Rehearing Denied Oct. 24, 2007.
    Robert C. Buschel and Jenessa M. Stearns of Rothstein Rosenfeldt Adler, Fort Lauderdale, and The Hodkin Kope-lowitz Ostrow Firm, P.A., (withdrawn as counsel after filing of brief), Eric J. Wiener, Harrisburg, PA, and Ira Hatch, Vero Beach, for appellants.
    James L.S. Bowdish and Jennifer L. Williamson of Crary, Buchanan, Bowdish, Bovie, Beres, Elder & Williamson Chartered, Stuart, for appellees.
   On Motion for Rehearing

WARNER, J.

We deny the motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.

When this court last considered this case in Mumma v. Mumma, 780 So.2d 1001 (Fla. 4th DCA 2001), we reviewed the trial court’s order on final accounting of the dissolution of a family corporation. We found no error in the final accounting, but we reversed for the assessment of interest on the award of damages to the estate of Robert Mumma, Sr. against Robert Mumma, Jr. and the assessment of attorney’s fees. In discussing the interest issue, we explained in our opinion, “After allocating the various debts pursuant to that court’s findings, Robert, Jr. owed High Spec $221,658.39, fifty percent of which belonged to appellees as one of High Spec’s two shareholders.” Id. at 1003 (emphasis supplied). We then reversed for calculation of interest on the damages.

Although our reversal was limited to the assessment of interest on the amount of the damages as set forth in our opinion and the determination of attorney’s fees, on remand Robert, Jr. attempted to inject multiple other issues in the case, all of which the trial court rejected, and we find to be without merit. However, the estate convinced the court that we had never determined how to calculate the interest. The trial court ultimately calculated interest on the original amount of the judgment, $639,887.67, without offsetting the debt owed to Robert, Jr. by the corporation, also found in the original final judgment.

This recalculation was beyond the directions on remand. We had already stated in our opinion the amount of the award as “$224,658.39, fifty percent of which belonged to appellees as one of High Spec’s two shareholders.” Had the appellees wished to challenge the calculation of damages, or the method of offsetting the liability of the corporation to Robert, Jr., they should have done so in the prior appeal. Having failed to do so, our remand instructed that the trial court should calculate prejudgment interest upon the damage award from the time of its liquidation in 1993. Thus, appellees were entitled to interest on fifty percent of $224,658.39, the net amount owed, from 1993.

Reversed and remanded for the court to award interest in accordance with the instructions in this opinion.

KLEIN and HAZOURI, JJ., concur.


text:
    Lakeary HECK, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1052.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2007.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Lakeary Heck was tried by jury and found guilty of attempted robbery with a firearm, attempted premeditated first degree murder, and attempted first degree felony murder, adjudicated guilty of all three crimes, and sentenced for the attempted robbery and attempted premeditated murder. Heck has appealed, arguing that double jeopardy principles require vacation of his conviction for attempted felony murder and that his Prison Releas-ee Reoffender (“PRR”) sentence must be reversed as the predicate was established through hearsay. We agree with Heck’s claim that one of the murder convictions must be vacated, but reject his argument concerning the propriety of the PRR sentence.

Heck’s convictions arose from the robbery of a convenience store and the shooting of its clerk. Where, as here, there is a single death, dual convictions for attempted premeditated first degree murder and attempted first degree felony murder cannot stand. See Gordon v. State, 780 So.2d 17, 25 (Fla.2001); Jackson v. State, 868 So.2d 1290 (Fla. 4th DCA 2004); Tucker v. State, 857 So.2d 978, 979-80 (Fla. 4th DCA 2003). The trial court sought to avoid the double jeopardy problem by entering judgment for both convictions and withholding the imposition of sentence for the attempted felony murder conviction. Allowing the dual convictions to stand and simply withholding the imposition of sentence for one of the offenses is not, however, sufficient to cure the double jeopardy violation as it is “the record of appellant’s conviction [that] constitutes the violation of double jeopardy.” Florida v. State, 855 So.2d 109, 111 (Fla. 4th DCA 2003) (on reh’g) (rejecting claim that any double jeopardy concerns were rendered harmless where defendant was not sentenced for one of convictions), overruled' on other grounds, 894 So.2d 941 (Fla.2005); see also Coughlin v. State, 932 So.2d 1224, 1226 (Fla. 2d DCA 2006) (stating that correcting an alleged double jeopardy violation would require vacation of the underlying conviction, not just the sentence). Heck insists that to cure the double jeopardy problem one of his murder convictions must be vacated — the remedy traditionally resorted to by Florida’s courts. See Coughlin, 932 So.2d at 1226; Jackson, 868 So.2d at 1290; Deangelo v. State, 863 So.2d 374 (Fla. 1st DCA 2003); Tucker v. State, 857 So.2d at 980.

The State argues, though, that vacation is not an appropriate remedy because it places the State at risk and results in an unfair windfall to the defendant if one of the convictions is vacated and, then, at some subsequent point in time, the remaining conviction is overturned. To illustrate its point, the State cites the circumstances in State v. Cameron, 914 So.2d 4 (Fla. 4th DCA 2005). There, six people died because the defendant, who was under the influence of alcohol and driving at a high rate of speed, crashed his boat into theirs. A jury found the defendant guilty of six counts of manslaughter while operating a vessel under the influence of alcohol (BUI) and six counts of manslaughter with an unlawful blood alcohol level (UBAL). Because the dual convictions for each vic: tim violated double jeopardy some of the convictions were vacated and the defendant was sentenced on three counts of BUI and three counts of UBAL. On appeal, the three BUI convictions were overturned and, ultimately, the three vacated convictions could not be resorted to in order to punish the defendant for three of the deaths.

To avoid this potential problem, the State suggests that rather than vacate one of the findings of guilt and/or conviction, it is appropriate to “merge” the two findings of guilt into a single judgment of conviction and to then impose a single sentence. As pointed out by the State, this procedure had been utilized in a number of other jurisdictions. See State v. Howard, 221 Conn. 447, 604 A.2d 1294 (1992); Green v. State, 856 N.E.2d 703 (Ind.2006); State v. Howard, 30 S.W.3d 271 (Tenn.2000); State v. Addison, 973 S.W.2d 260 (Tenn.Crim.App.1997). While we are not unsympathetic to the State’s concerns, adopting the “merger” procedure it advances is not as simple or workable as the State suggests. What comes to mind is the treatment to be afforded such a “merged” judgment of conviction during subsequent sentencing proceedings. Section 921.0021(2), Florida Statutes, defines a “conviction” as “a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.” See also Fla. R.Crim. P. 3.704(d)(6). That same statute defines a “prior record” as “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.” § 921.0021(5), Fla. Stat. These terms are utilized in determining the number of points attributable to the defendant under a Criminal Punishment Code score sheet. The procedure advocated by the State calls for the entry of a single judgment of conviction that reflects the jury’s findings of guilt for both offenses, i.e., premeditated murder and felony murder. Under chapter 921’s definitions, a “conviction” is defined as a jury’s findings of guilt. Thus, despite the entry of a single judgment of conviction, the record will still reflect two “convictions,” thus placing the defendant in the position of being assessed points on his score sheet for both the premeditated murder and the felony murder. While this problem (and others that are sure to arise) can certainly be addressed, it must be addressed by the legislature. Thus, at this juncture, we decline the State’s invitation to resolve the double jeopardy concerns by entering a single judgment of conviction that reflects and “merges” the jury’s findings of guilt for both crimes. Rather, as we have traditionally done, we remand the matter to the trial court with directions that one of Heck’s murder convictions be vacated.

As for Heck’s PRR sentence, the State relied upon a “Certification of Records” from a DOC records custodian and the accompanying pages of DOC computer print-outs to establish the predicates for PRR sentencing. Heck objected to the admission of the report on hearsay grounds. His objection was overruled. Heck insists the trial court was wrong in overruling his hearsay objection. We have already decided this issue adversely to Heck and decline to revisit the matter. See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), review granted, 956 So.2d 458 (Fla.2007); see also Carswell v. State, 947 So.2d 692 (Fla. 4th DCA 2007); Montero v. State, 947 So.2d 634 (Fla. 4th DCA 2007). As we did in Yisrael, we certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA), review denied, 920 So.2d 628 (Fla.2005).

After considering all issues raised, including any not expressly addressed in this opinion, we affirm Heck’s PRR sentence, but remand this case to the trial court with instructions that one of Heck’s murder convictions be vacated.

SHAHOOD, C.J., and WARNER, J., concur.