author: BARFIELD, J. THOMAS, J.,

text:
    CSX TRANSPORTATION, INC., Appellant, v. John L. DEEM, Appellee.
    No. 1D05-4387.
    District Court of Appeal of Florida, First District.
    July 13, 2006.
    Homer H. Humphries, Jr., and Ronald R. Oberdier, of Humphries & Oberdier, P.A., Jacksonville, for Appellant.
    Walton G. Bondurant, Jr., of Bondurant Law, P.C., Portsmouth, VA; Suzanne Bass, Jacksonville; and Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   BARFIELD, J.

The appellant challenges the trial court’s denial of its motion to dismiss a suit on the ground of forum non conve-niens. In Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla.1996), the Florida Supreme Court adopted the federal standard for application of the common law doctrine of forum non conve-niens, involving a four step analysis. The court first determines that an alternative forum is available. If so, the court then considers all the relevant private interests, weighing in the balance the strong presumption against disturbing the plaintiffs initial choice of forum. If the private interests are substantially in balance, the court then considers whether the balance of public interests favors trial in the alternate forum, and if so, the court must ensure that the plaintiff will be able to bring suit in the alternative forum without undue inconvenience or prejudice. This standard was codified in Florida Rule of Civil Procedure 1.061, which also provides: “The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.”

In the case at issue, the plaintiffs injury occurred in West Virginia, but the defendant’s principal place of business was located in Jacksonville, Florida. The availability of an alternate forum was demonstrated. However, after considering the relevant private interests, including the fact that numerous witnesses were located in Jacksonville and in West Virginia, the trial judge determined that the balance of interests did not favor disturbing the plaintiffs initial choice of forum. The evidence supports denial of the motion to dismiss on grounds of forum non conveniens, and the appellant has not demonstrated that the trial judge abused his discretion in denying the motion. The order is therefore AFFIRMED.

BROWNING, J., concurs; THOMAS, J., dissents with written opinion.

THOMAS, J.,

Dissents.

I respectfully dissent. In my view, the trial court reversibly erred when it denied Appellant’s motion to dismiss based on forum non conveniens. This case is based on an alleged slip-and-fall accident on an icy sidewalk in West Virginia, where the critical eyewitnesses and most of the other relevant witnesses are from West Virginia and neighboring states. While some potential witnesses are located in Jacksonville, the crux of the factual allegations and Appellee’s medical claims will be resolved primarily based on out-of-state testimony and evidence. By denying Appellant’s motion, limited state public resources will be expended to try a federal law case based on an incident occurring in another state.

As the majority states, the applicable test for application of the common law doctrine of forum non conveniens was described in Kinney System, Inc. v. Cont’l Ins. Co., 674 So.2d 86, 93 (Fla.1996). In my view, neither the private nor the public interests, as analyzed under Kinney, favor Jacksonville as the proper forum.

In considering private interests, the “strong presumption against disturbing plaintiffs’ initial forum choice” diminishes where the plaintiff has chosen a foreign forum that is not convenient for the plaintiff. Value Rent-A-Car, Inc. v. Harbert, 720 So.2d 552, 555 (Fla. 4th DCA 1998) (explaining that a Georgia resident who chose to file suit in Florida, the corporation’s principal place of business, was not entitled to the strong presumption against disturbing his initial choice). Here, Appel-lee, a West Virginia resident, chose to file suit in Florida, a forum that is not convenient for him; thus Appellee is not entitled to a strong presumption in favor of Florida as his initial forum choice. Without this strong presumption, the private interests clearly favor dismissal and resolution in a forum such as West Virginia, where the most significant evidence and witnesses are located.

Because the private interests at stake favor dismissal, I believe that the public interests need not be considered here. See Value Rent-A-Car, 720 So.2d at 555. Even if considered, though, the applicable public interests further support dismissal because scarce judicial resources will be used to resolve a case best heard in another state. This was the essence of the supreme court’s concern in Kinney and the reason it chose to adopt the federal forum non conveniens doctrine: “We ourselves must continually ask the legislature for an expansion of judicial funding to meet the ever-increasing crush of litigation now coming into our courthouses.” Kinney, 674 So.2d at 88. While the legislature, the executive branch and the supreme court have worked together in recent years to ensure that adequate judicial resources exist to meet Florida’s growing caseloads, adding essentially out-of-state disputes to these caseloads is inconsistent with both the public policy of this state and the rationale in Kinney.

Because I believe the trial court reversibly erred in denying Appellant’s motion, I respectfully dissent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stephanie S. HICKOX, Appellant, v. Michael S. TAYLOR and Michelle L. Taylor, Husband and Wife; Michael Dees, and Gordon D. Dees and Sharon W. Dees, Husband and Wife, Appellees.
    No. 1D06-1238.
    District Court of Appeal of Florida, First District.
    July 13, 2006.
    Christal L. Fish of Hayden & Facciolo, P.A., Fernandina Beach, and Calvin E. Hayden, of Hayden and Facciolo, P.A., Jacksonville, for Appellant.
    Wesley R. Poole, of Poole & Poole, P.A., Fernandina Beach, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 30, 2006, as well as the appellees’ reply thereto, the Court has determined that it lacks jurisdiction to review the order on appeal.

The appellant has sought review of an Order Granting Plaintiffs’ Motion for Partial Summary Judgment. However, because the order merely grants a motion for summary judgment and fails to actually enter judgment, it is not a final appealable order. Compare McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001), with Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). The appeal is also untimely. Although the appellant’s motion for rehearing of the order on appeal was served within ten days of the filing of the order pursuant to Florida Rule of Civil Procedure 1.530(b), the motion was unauthorized because it sought rehearing of a nonfinal order. Wagner v. Bieley, Wagner & Assocs., Inc., 263 So.2d 1 (Fla.1972). Thus, the motion for rehearing failed to delay rendition of the underlying order and the appellant’s notice of appeal, which was filed more than 30 days after the order was filed, was consequently untimely. Fla. R.App. P. 9.020(h). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

In light of the dismissal, the appellant’s motion for extension of time to file the initial brief, filed on May 17, 2006, is denied as moot.

BENTON, POLSTON, and THOMAS, JJ., concur.


text:
    WESTERN AND SOUTHERN FINANCIAL GROUP, Appellant, v. Karen HOWE, as the Personal Representative of the Estate of Stephen Howe, Appellee.
    No. 1D06-1529.
    District Court of Appeal of Florida, First District.
    July 13, 2006.
    Linda G. Bond of Rumberger, Kirk & Caldwell, P.A., Tallahassee, for Appellant.
    Daniel Stewart, Milton, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 17, 2006, the Court has determined that the order on appeal is not a final order. Specifically, because the Commission on Human Relations reserved jurisdiction over the determination of the precise remedy in this case, it appears that the administrative adjudicatory process has not yet been concluded. See Hill v. Division of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997) (stating that an administrative order’s “finality depends on whether it has brought the administrative adjudicative process to a close”). Moreover, the Commission’s anticipation of the filing of either a Joint Stipulation of Settlement or a Notice of Failure of Settlement following settlement negotiations indicates the agency’s continued involvement in the matter. Accordingly, the order is not final and this Court lacks jurisdiction to review the order on appeal. Fla. R.App. P. 9.030(b)(1)(C); 9.110(a)(3). The appeal is hereby dismissed for lack of jurisdiction.

In light of this dismissal, the appellant’s motion filed on April 19, 2006, seeking to supplement the record on appeal, is DENIED as moot.

KAHN, C.J., WEBSTER, and HAWKES, JJ., concur.


author: DANAHY, PAUL W., Senior Judge.

text:
    E.A.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3391.
    District Court of Appeal of Florida, Second District.
    July 14, 2006.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   DANAHY, PAUL W., Senior Judge.

We review the order of the trial court which found E.A.B. guilty of, and withheld adjudication for, the delinquent acts of improper exhibition of a dangerous weapon and culpable negligence with actual injury. We reverse the order because the State failed to rebut E.A.B.’s prima facie case of self-defense and, accordingly, failed to carry its burden to prove the delinquent offenses beyond a reasonable doubt.

The record of the adjudicatory hearing shows that, on November 15, 2003, the following chronology of events occurred.

Several teens, including E.A.B. and her brother, the alleged victim, had gathered and were talking outside the apartment residence of the latter two. E.A.B. was fifteen; her brother, the victim, was sixteen and described as taller, heavier, and stronger than E.A.B. An argument began between the two and he pushed her. She turned and went into their residence to avoid him. He followed her inside where those outside could hear sounds of a commotion with yelling and crashing inside. A physical altercation between them occurred first in the living room, then in a hallway where he got her in a headlock. She broke free, leaving blood spots in both areas, and fled into the small kitchen where she could go no further. There, with her right hand, she grabbed a plastic handled steak knife with a five-inch blade for use, she said, only to protect herself should he follow to further injure her.

She said that she “feared for her life” or that he would inflict further injury on her such as, “bruises or broken bones.” She stood there in the kitchen with her right elbow at her side and her forearm extended holding the knife with the blade pointed upward. Her efforts to avoid him by retreating to the kitchen, however, were to no avail. He said that he could see from outside the kitchen that she was standing there holding the knife. Despite that, he followed her into the kitchen and, as he moved toward her, she stood her ground without moving. As he moved forward he grabbed her right wrist with his left hand. His hand slipped from her wrist which caused her arm to move forward resulting in the knife cutting him once in his upper left chest. He backed into the living room. She immediately dropped the knife and, as she went to aid him, he punched her in her left eye injuring her.

Other than her brother, the alleged victim, the State’s principal witness was the police officer who arrived at the home to investigate the incident. He found E.A.B. sitting on the front steps shortly after the trauma and violence had occurred. He said that she appeared “deadpan” and that when he asked her what happened, her version of the events was essentially as we have outlined them. He did not ask her whether she had been in fear of her life, whether the stabbing had been an accident, whether she had acted in self-defense or whether she was sorry her brother had been injured. Despite the lack of such questions by the officer, the officer testified, when asked by the prosecutor whether she had made such statements, that she did not offer any statements about those matters. The officer further said that he inspected the interior of the home and found it “pretty well disturbed” with blood in the living room, hallway and kitchen.

The second officer to arrive at the home had been to the hospital where he observed, but did not speak with, E.A.B.’s brother, the victim, who was treated and released. At the home this officer observed E.A.B. with an injury to her face. Photographs taken at some later date showing her swollen left eye were admitted in evidence.

At the close of the adjudicatory hearing E.A.B. moved the court for a judgment of dismissal pursuant to Florida Rule of Juvenile Procedure 8.110(k). She argued that while she had presented a prima facie case of self-defense, the State had failed to rebut this hypothesis of innocence. In response the State argued, as it does here, that she failed to establish her defense, but that even if she did so, the testimony of the investigating officer was sufficient to rebut her theory of defense.

E.A.B.’s motion tests the legal sufficiency of the State’s case, including the evidence presented to establish her theory of defense, and the State’s evidence presented to rebut that defense. Thus, as we do with a motion for judgment of acquittal in a criminal trial, we review the issue raised by its functional equivalent, a motion for dismissal in a juvenile proceeding, de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002); I.M. v. State, 917 So.2d 927, 929 (Fla. 1st DCA 2005).

We agree that E.A.B. presented a prima facie ease of self-defense. Given the events that had just occurred, she was objectively afraid of further injury from her brother. Under our law, even if it were possible to flee from the home she occupied with her brother, she was under no duty to do so. Rather, under the “castle doctrine,” she had a limited duty to retreat within their home to the extent she reasonably could without increasing her own danger of great bodily harm. Once she had gone into the kitchen, where she could go no further, she was entitled to stand and use the force she did to prevent further injury to herself, even if it were likely to, as it did, cause injury to her brother. See Weiand v. State, 732 So.2d 1044 (Fla.1999).

The State argues that the testimony of the investigating police officer was sufficient to rebut E.A.B.’s theory of self-defense, and that further, it carried its burden to prove the offenses charged. A study of the officer’s testimony, however, reveals that he presented no competent evidence inconsistent with the testimony she presented to establish her prima facie case of self-defense. Rather, his testimony amounted to little more than responses to questions posed by the prosecutor to elicit answers E.A.B. never gave to questions the officer never asked her. We conclude that this testimony was inadequate, and legally insufficient to rebut E.A.B.’s case of self-defense. Accordingly, the State failed to meet its burden to disprove her defense beyond a reasonable doubt. See Sneed v. State, 580 So.2d 169, 170 (Fla. 4th DCA 1991); see also W.E.P. v. State, 790 So.2d 1166 (Fla. 4th DCA 2001). In Fowler v. State, 921 So.2d 708, 711 (Fla. 2d DCA 2006), this court cited with approval the following quote from Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984):

While the defendant may have the burden of going forward with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove that the defendant did not act in self-defense beyond a reasonable doubt.
[W]hen the State’s evidence is legally insufficient to rebut the defendant’s testimony establishing self-defense, the court must grant a motion for judgment of acquittal.

The State failed in its burden to rebut E.A.B.’s prima facie case of self-defense. Because this is so, the State failed to prove beyond a reasonable doubt that E.A.B. committed the charged offenses. In sum, the trial court erred when it denied E.A.B.’s motion for judgment of dismissal. We reverse the order and remand with instructions to dismiss the State’s petition for delinquency.

NORTHCUTT and SALCINES, JJ., Concur.


author: DAVIS, Judge. WALLACE, Judge,

text:
    Russell Owen INSKO, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1221.
    District Court of Appeal of Florida, Second District.
    July 14, 2006.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Russell Insko appeals his judgment and sentence for lewd or lascivious conduct. We affirm.

Insko was tried by jury on the charge of lewd or lascivious conduct by a person over eighteen on a person under sixteen pursuant to section 800.04(6)(a)(2) and (b), Florida Statutes (2001). The jury returned a verdict of guilty but also found Insko to be under eighteen years of age. Insko appealed, alleging that the trial court erred in allowing evidence related to prior bad acts to be submitted to the jury. This court agreed, reversed the judgment and sentence, and remanded the matter for new trial. Insko v. State, 884 So.2d 812 (Fla. 2d DCA2004).

On remand, Insko moved to dismiss the charge, arguing that the State could not prosecute the original charge because the jury had acquitted him of the offense of lewd or lascivious act by a person eighteen or older on a person under sixteen. Insko maintained that the only charge the State could prosecute at the new trial would be lewd or lascivious act by a person under eighteen on a person under sixteen. Since he was thirty-five years of age, he argued that the charge should be dismissed as the State could not prove each of the elements.

The trial court determined that the age of the accused was not an element of the offense, that the State could proceed to trial on the charge of lewd or lascivious act on a person under sixteen, and that if the jury returned a verdict of guilty, it would be limited to the sentence provided for in section 800.04(6)(c) — the lesser punishment specified for an offender under the age of eighteen. Accordingly, the trial court denied Insko’s motion to dismiss. Insko then entered a negotiated no contest plea, reserving his right to appeal the trial court’s decision. The trial court found that the ruling on the motion to dismiss was dispositive.

Section 800.04(6)(a) defines lewd or lascivious conduct. Subsection (b) provides that if the offender is eighteen years or older, the offense is a second-degree felony punishable by a maximum sentence of fifteen years. Subsection (c) provides that if the offender is under eighteen, the offense is a third-degree felony with a maximum sentence of five years. Our reading of the wording and structure of the statute alone would lead us to conclude that the age of the offender is a sentencing consideration rather than an element of the offense itself. As such, a jury finding would be necessary to impose the more severe sentence. See Whalen v. State, 895 So.2d 1222 (Fla. 2d DCA 2005). In this case, because the jury at the original trial inexplicably found Insko to be under the age of eighteen, the trial court would be limited to the lesser sentence should Insko be convicted on retrial.

The instructions given to the jury at the first trial provided:

The punishment provided by law for the crime of lewd or lascivious conduct is greater depending on the age of the defendant. Therefore, if you find the defendant is guilty of lewd or lascivious conduct, you must determine by your verdict whether at the time of the offense: (a) the defendant was eighteen years of age or older; (b) the defendant was under the age of eighteen years.

The jury was then given the following verdict form:

We the jury, find as follows as to Count I of the charge: (check only one)
_A. The defendant is guilty of Lewd or Lascivious Conduct (Solicit) (defendant eighteen years of age or older) as charged.
_B. The defendant is guilty of Lewd or Lascivious Conduct (Solicit) (defendant under eighteen years of age).
_C. The defendant is guilty of Assault.
_D. The defendant is not guilty.

The jury marked selection “B.” Insko did not appeal this finding. The wording of the verdict form suggests that finding Insko to be under eighteen would make the conviction a lesser included offense; however, the jury instructions advised the jury that the only lesser included offense was assault.

Based on the instruction given to the jury and the verdict form, it appears that the jury did find Insko guilty of the offense as defined by section 800.04(6)(a) and then found Insko to be under eighteen, perhaps as a “jury pardon” or because the State failed to prove his age. See State v. Baker, 456 So.2d 419 (Fla.1984). However, why the jury did what it did is not determinative of the issue that we must resolve. Because we conclude that Insko’s age is not an element of the crime but rather is a potential sentencing enhancement, the State may proceed on remand to again try Insko on the charge of lewd or lascivious conduct on a person under the age of sixteen.

This conclusion is supported by the finding of the Fourth District in Desbonnes v. State, 846 So.2d 565 (Fla. 4th DCA 2003). The appellant in that case also was charged with lewd or lascivious conduct by a person over eighteen on a person under sixteen. The trial court gave an instruction regarding the appellant’s age that was identical to the one given in this case. At trial, the appellant had objected to the instruction and had asked that the jury not be given the option of finding him guilty of the “lesser” offense. On appeal, he argued that since the State had failed to prove his age and since the age of the offender was an element of the offense, his conviction should be reversed. He suggested that the trial court erred in giving the instruction and that the error resulted in his conviction.

The Fourth District determined that the age of the offender was not an element of the offense and affirmed the conviction. In doing so, the court cited Jesus v. State, 565 So.2d 1361 (Fla. 4th DCA 1990), in which the court determined that the age of the offender charged with sexual battery under section 794.011, Florida Statutes, was not an element of the offense but was a factor to consider when imposing sentence. The Desbonnes court reasoned by analogy that if such was the case for sexual battery, the same would be true for the age of the offender in a lewd or lascivious conduct prosecution.

We acknowledge the persuasive argument Insko makes on appeal that Desbonnes has implicitly been quashed by Glover v. State, 863 So.2d 236 (Fla.2003), where the Supreme Court of Florida quashed the Fourth District’s decision in Jesus, 565 So.2d 1361, concluding that the age of the offender is an element of the offense in a sexual battery prosecution. Insko argues that, by analogy, the age of the offender also should be considered an element of the offense in the prosecution of a lewd or lascivious conduct charge. We disagree. Glover is distinguishable in that it is dealing with a different statute and does not specifically address the holding in Desbonnes.

Based on our plain reading of the statute, we choose to follow the determination made in Desbonnes, which concludes that the age of the offender is not an element of the offense of lewd or lascivious conduct. Accordingly, we affirm the trial court’s denial of Insko’s motion to dismiss. However, we certify the following question to the Supreme Court of Florida as one of great public importance:

IN LIGHT OF THE RULING IN GLOVER v. STATE, 863 So.2d 236 (Fla. 2003), IS THE AGE OF THE OFFENDER AN ELEMENT OF THE OFFENSE OF LEWD OR LASCIVIOUS CONDUCT UNDER SECTION 800.04(6), FLORIDA STATUTES?

Affirmed; question certified.

CANADY, J., Concurs in majority opinion and in concurring opinion.

WALLACE, J., Concurs with opinion.

WALLACE, Judge,

Concurring.

I concur fully in the majority opinion and the certification of the question. I write separately to outline two additional grounds upon which I believe Insko’s judgment and sentence may be affirmed. First, Insko is estopped to argue that he may not be retried and convicted of the third-degree felony offense of lewd or lascivious conduct by a person less than eighteen years of age under section 800.04(6)(a)(2) and (c), Florida Statutes (2001). Second, the trial court properly denied Insko’s motion to dismiss the charge because a dismissal of the charge would have been an improper deviation from the mandate in Insko’s prior appeal. In that case, we reversed and remanded for a new trial. I will briefly discuss each of these issues.

ESTOPPEL

Following his initial conviction in the trial court, Insko did not challenge the jury’s verdict on the ground that he could not be convicted of the third-degree felony offense of lewd or lascivious conduct because he was eighteen years of age or older at the time of the offense. On the contrary, Insko accepted the benefit of the verdict that limited his maximum sentence to five years instead of fifteen years. Likewise, Insko did not argue on his prior appeal that he could not be convicted of lewd or lascivious conduct by a person under eighteen years of age upon a person under sixteen years of age because he was actually eighteen years of age or older at the time of the offense. Instead, Insko argued that errors in the admission of evidence at his trial required a new trial. This court agreed, and we reversed Insko’s conviction and remanded his case for a new trial as he requested. And of course, at a new trial, Insko could not properly be convicted of the second-degree felony offense of which he had previously been acquitted.

Under these circumstances, In-sko is now estopped to assert that he may not be retried for the third-degree felony offense of lewd or lascivious conduct upon a person under sixteen years of age in violation of section 800.04(6)(a)(2) and (c). I concede that Insko — who was thirty-three years of age at the time of the incident — appears not to qualify for sentencing under the third-degree felony version of this offense. But the general principle of estoppel applied by the First District in McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971), is equally applicable here:

“The broad general rule that a party will not be allowed to maintain inconsistent positions is applied frequently with respect to positions in legal proceedings. Thus, the general rule is that a party cannot occupy inconsistent positions in the course of a litigation. It may be also laid down as a general proposition that where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it is to the prejudice of the party who has acquiesced in the position taken by him.”

Id. at 409-10 (quoting 12 Fla. Jur. Estop-pel and Waiver § 51). This general principle of estoppel has been applied in other criminal cases in analogous circumstances. See, e.g., Battles v. State, 919 So.2d 621 (Fla. 1st DCA 2006); McMillan v. State, 701 So.2d 1214 (Fla. 3d DCA 1997); McKee v. State, 450 So.2d 563 (Fla. 3d DCA 1984); King v. State, 373 So.2d 78 (Fla. 3d DCA 1979).

THE REQUIREMENT THAT THE TRIAL COURT COMPLY WITH OUR MANDATE

The second additional ground upon which Insko’s judgment and sentence may be affirmed stems from the requirement that the trial court comply with this court’s mandate in Insko’s first appeal. This court’s mandate in Insko’s prior appeal reversed his judgment and sentence and remanded for a new trial. After remand, Insko moved for the trial court to dismiss the charge instead of conducting a new trial. The circuit court was correct to deny Insko’s motion because to grant the motion would have required it to deviate from our mandate.

The trial court’s role in carrying out an appellate court’s mandate is purely ministerial. See Rodriguez v. State, 924 So.2d 985, 986 (Fla. 2d DCA 2006) (citing Straley v. Frank, 650 So.2d 628, 628 (Fla. 2d DCA 1994)). Absent permission to do otherwise, “a trial court utterly lacks the power to deviate from the terms of an appellate mandate.” Mendelson v. Mendelson, 341 So.2d 811, 813-14 (Fla. 2d DCA 1977). A trial court may not alter or evade a district court’s mandate; instead, it must carry out the district court’s command. See Russell v. State, 627 So.2d 576, 577 (Fla. 2d DCA 1993).

On Insko’s first appeal, the mandate from this court did not reverse and remand with a general instruction for further proceedings. On the contrary, our remand instruction was specific and unambiguous. We directed the trial court to conduct a new trial. In light of our specific directive, the trial court would have had no authority to deviate from our mandate by dismissing the case. See Collins v. State, 680 So.2d 458, 459 (Fla. 1st DCA 1996). The requested dismissal of the charge against Insko was not based on any intervening events — e.g., the expiration of the time limit for speedy trial — but instead on circumstances that were known to the parties and this court at the time of Insko’s first appeal. Cf. Sales v. State Farm Fire & Cas. Co., 902 F.2d 933, 935 (11th Cir. 1990) (stating that mandate from appellate court ordering a new trial does not preclude the trial court from entering a summary judgment if all of the appropriate requirements are met); United States v. Curtis, 683 F.2d 769, 771-72 (3d Cir.) (holding that appellate court’s decision on initial appeal reversing and remanding case for new trial was not law of the case that would bar trial court from dismissing indictment based on claim of double jeopardy where double jeopardy issue was not argued on first appeal), cert. denied, 459 U.S. 1018, 103 S.Ct. 379, 74 L.Ed.2d 512 (1982). Because the trial court lacked the authority to deviate from our mandate, it properly denied Insko’s motion to dismiss the charge against him.

CONCLUSION

To summarize, Insko accepted without complaint the benefit of the fluke in the jury’s verdict that limited his maximum sentence to five years instead of fifteen years. He asked for a new trial, and this court granted his request. Under these circumstances, Insko must take “Yes” for an answer. Therefore, even if the offender’s age is an element of the offense of lewd or lascivious conduct under section 800.04(6), Insko’s judgment and sentence should still be affirmed.

      . Although there is some argument made as to whether the State properly proved Insko's age at the trial, the record before this court is silent as to this issue.

      . In the opinion disposing of Insko’s first appeal, Judge Northcutt specifically noted that Insko was charged with a second-degree felony under section 800.04(6)(a)(2) and (b) but was found guilty of a third-degree felony under section 800.04(6)(c). Insko v. State, 884 So.2d 312, 313 n. 1 (Fla. 2d DCA 2004). And Insko has obviously been aware at all relevant times of his age on the date of the offense.


text:
    Dennis William McLAUGHLIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3745.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2006.
    David LaCroix, Brooksville, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Our careful review of the record in the instant case leads us to conclude that the state failed to establish that the defendant committed a willful and substantial violation of his probation.

REVERSED.

SAWAYA, J., SHARP, W., Senior Judge, and HEDSTROM, E.E., Associate Judge, concur.


text:
    Terry Lee HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1107.
    District Court of Appeal of Florida, Second District.
    July 19, 2006.
   PER CURIAM.

Terry Lee Hartley challenges the post-conviction court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without comment, the postconviction court’s denial of claim one and reverse the postconviction court’s denial of the remaining two claims.

In claims two and three, Hartley alleged ineffective assistance of trial counsel. Ineffective assistance of counsel claims are cognizable in rule 3.850 motions, and neither the postconviction court’s order nor the State’s response, on which it was based, attached any portions of the record conclusively refuting Hartley’s claims. See Wilson v. State, 693 So.2d 616 (Fla. 2d DCA 1997). Accordingly, we reverse the postconviction court’s denial of claims two and three and remand for further proceedings. If the postconviction court again summarily denies Hartley’s claims, it must attach those portions of the record that conclusively refute them. See rule 3.850(d).

Affirmed in part; reversed in part; and remanded.

NORTHCUTT, CASANUEVA, and CANADY, JJ., Concur.


text:
    William H. CONGER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3024.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant entered a no contest plea to a grand theft charge. The trial court accepted the plea, adjudicated appellant guilty, and sentenced him to five years in prison. Subsequently, as a result of appellant’s complaints, appellant’s trial counsel filed a motion to withdraw the plea. The motion failed to allege any specific grounds to support it and, accordingly, was denied by the trial court. Appellant appeals, alleging that he received ineffective assistance of counsel when his prior counsel filed an insufficient motion to withdraw plea.

Ineffective assistance of counsel claims are not cognizable on direct appeal unless the ineffectiveness is apparent on the face of the record. Barber v. State, 901 So.2d 864 (Fla. 5th DCA 2005). It is not apparent on its face that appellant was actually prejudiced by his trial counsel’s filing of a “shell” motion to withdraw plea. Accordingly, the judgment and sentence are affirmed without prejudice to appellant to seek post-conviction relief.

AFFIRMED.

THOMPSON, MONACO and EYANDER, JJ., concur.


text:
    William CONROY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3589.
    District Court of Appeal of Florida, Second District.
    July 21, 2006.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Amanda Lea Colon, Assistant Attorney General, Tampa, for Ap-pellee.
   DANAHY, PAUL W., Senior Judge.

This case involves a sentencing error which requires our reversal. We do so because the trial court failed to timely correct the error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

William Conroy pleaded guilty to two counts of child neglect before Circuit Judge Jack Espinosa, Jr., at a hearing on July 25, 2003. Sentencing did not take place until April 30, 2004, when a sentencing hearing was conducted before Circuit Judge Wayne S. Timmerman. There is nothing in the record to suggest that Judge Espinosa could not have conducted the sentencing hearing.

Conroy filed a 3.800(b)(2) motion with the trial court on February 18, 2005, contending that he was prejudiced because (1) his plea was accepted by one judge and he was sentenced by another and (2) he was sentenced under an incorrectly scored and inaccurately calculated Criminal Punishment Code (CPC) scoresheet on count one, and under the wrong sentencing guidelines on count two. The trial court granted Conroy’s motion and entered its order on April 25, 2005. This was error.

Rule 3.800(b)(2) requires the trial court to “resolve this motion in accordance with the procedures in subdivision (b)(1)(B),” which states, “[wjithin 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days the motion shall be considered denied.”

The trial court’s order was entered sixty-seven days after the motion was filed. Therefore, although the State correctly conceded error in the court and the court attempted to correct the error, it was without jurisdiction to do so on April 25, 2005. Hansell v. State, 879 So.2d 646 (Fla. 1st DCA 2004). Moreover, while the sixty-day period may be extended for good cause, it cannot be extended after it has already run. McGuire v. State, 779 So.2d 571 (Fla. 2d DCA 2001).

The State concedes that Conroy is entitled to be resentenced using the correct scoresheets and guidelines. Further, we agree with Conroy that, without a showing of necessity, it is error to permit sentencing by a judge “other than the one that presided at the trial or plea hearing.” Madrigal v. State, 683 So.2d 1093, 1096 (Fla. 4th DCA 1996). Accordingly, we remand this case to the trial court for a resentencing hearing using the correct scoresheets and guidelines before the same judge who accepted the plea unless the record demonstrates the necessity of a substitute judge.

Sentence vacated and case remanded for resentencing.

ALTENBERND and WALLACE, JJ„ Concur.


text:
    Edward L. STEWART, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1929.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.

      Edward L. Stewart, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner seeks a belated appeal of the judgment and sentence rendered on 3 October 2005 in Brevard County Circuit Court case number 05-2003-CF-031367. In response to an order to show cause, the State reported that it contacted the assistant public defender assigned to represent petitioner. The attorney stated that petitioner had several cases pending against him; some of the cases were consolidated and others were tried separately. The attorney recalls that the petitioner did not want to appeal this case. Although petitioner initially did not want to appeal the disposition in this case, the attorney stated the petitioner may have changed his mind. This contention is buttressed' by the Bre-vard County register of actions which shows an order granting petitioner’s motion for insolvency for appellate purposes issued 26 April 2006 in this case. Thus, the State concedes that petitioner is entitled to a belated appeal. Therefore, the petition for belated appeal is granted. Upon issuance of the opinion in this cause, a copy shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). Upon receipt, the clerk of the lower court shall certify a copy to this court in compliance with Florida Rule of Appellate Procedure 9.040(g).

PETITION GRANTED.

PLEUS, C.J., THOMPSON and PALMER, JJ., concur.


author: PALMER, J.

text:
    Brandon SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1389.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    Elaine A. Barbour, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   ON MOTION FOR REHEARING

PALMER, J.

Brandon Smith (defendant) has filed a motion seeking rehearing of the opinion issued by this court on May 15, 2006. We grant the motion, withdraw our previous opinion, and substitute this opinion in its stead.

The defendant, who is charged with committing the crime of first-degree murder, petitions this court for a writ of habe-as corpus or, in the alternative, a writ of mandamus, claiming that the trial court erred in failing to comply with the provisions of section 907.041 of the Florida Statutes (2005) and rule 3.132 of the Florida Rules of Criminal Procedure before refusing to reinstate his pretrial release. We agree and accordingly grant the defendant’s request for mandamus relief. See Dicolla v. State, 763 So.2d 1286 (Fla. 5th DCA 2000). See also Daniels v. Jenne, 847 So.2d 1081 (Fla. 4th DCA 2003)(hold-ing that defendant was entitled to receive collateral relief when trial court denied his motion to reinstate pretrial release based solely on defendant’s violation of a condition of his pretrial release without making any findings to show that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial). Accord Buhbut v. Bieluch, 835 So.2d 1222 (Fla. 4th DCA 2003).

Accordingly, we direct the trial court to conduct an expedited evidentiary hearing to determine whether reasonable conditions of pretrial release would protect the community and assure the defendant’s presence at trial.

PETITION GRANTED.

SAWAYA and TORPY, JJ., concur.


author: ORFINGER, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. O.C., A Child, Respondent.
    No. 5D06-1197.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.

      Ralph J. McMurphy, Wildwood, for Petitioner.
    No Appearance for Respondent.
   ORFINGER, J.

In this juvenile delinquency proceeding, the Department of Children and Families (“DCF”) seeks certiorari review of the trial court’s order committing O.C., a child, to DCF for the purposes of restoring competency. For the reasons stated below, we grant the petition for writ of certiorari, quash the order of commitment, and remand for further proceedings.

From what we can learn from the limited record before us, O.C. was charged with a delinquent act. During the proceedings, the trial court found that O.C. was incompetent to proceed due to mental retardation, but was not presently a danger to himself or others. The court entered an order committing O.C. to DCF for restoration of competency. The court determined that O.C. did not meet the criteria for secure placement in a DCF training program for mentally retarded children. Instead, the trial court ordered that O.C. be placed in a community treatment program, as permitted by section 985.223(6)(a), Florida Statutes (2005), which the court found to be the least restrictive, most appropriate type of program available for O.C., consistent with the needs of public safety.

DCF then filed the instant petition for writ of certiorari, arguing that O.C.’s commitment to DCF is contrary to the provisions of section 985.223. DCF argues that according to section 985.223(l)(b), the trial court is required to make findings of fact based on an evaluation by not less than two and not more than three experts. DCF asserts that in this case, although the trial court’s order refers to written reports, there was only one report, that of a Dr. Legum. Therefore, DCF asks this Court to quash the order of commitment to DCF, as it is in contravention to the requirements of section 985.223(l)(b).

Certiorari is the appropriate remedy to review a trial court order committing an incompetent juvenile who has been accused of delinquent acts. See, e.g., Dep’t of Children & Family Servs. v. A.A.ST.M., 706 So.2d 367 (Fla. 5th DCA 1998). The standard of review is whether the trial court’s order departs from the essential requirements of law. See, e.g., Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000) (“For an appellate court to review a nonfinal order by petition for certiorari, the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment.”).

We conclude that the trial court departed from the essential requirements of the law in ordering O.C.’s placement with DCF. The record does not reflect that the trial court complied with procedural requirements of the statute, which requires all determinations of competency be made at a hearing based upon the evaluation of not less than two and not more than three experts. § 985.223(l)(b), Fla. Stat. (2005). Because the trial court’s findings are not supported by the reports of at least two experts, the order departs from the essential requirements of the law. Accordingly, we grant the petition for writ of certiorari, quash the order of commitment, and remand for further proceedings.

PETITION FOR WRIT OF CERTIO-RARI GRANTED; ORDER OF COMMITMENT QUASHED.

THOMPSON and LAWSON, JJ., concur.

      . This Court ordered O.C. to show cause why the writ should not be granted, but no response was filed.


text:
    Michael E. GLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1100.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    Michael E. Glover, Raiford, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the denial of Michael E. Glover’s motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Absent prejudice or manifest injustice, which has not been shown to exist here, an imperfect plea colloquy does not create reversible error. See Freber v. State, 638 So.2d 140 (Fla. 4th DCA 1994); Williams v. State, 534 So.2d 929 (Fla. 4th DCA 1988).

AFFIRMED.

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


author: SALCINES, Judge.

text:
    Carlton Kent McADORY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3856.
    District Court of Appeal of Florida, Second District.
    July 21, 2006.

      Summer G. Vecchioli of The Fleming Law Group, P.A., St. Petersburg, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Carlton Kent McAdory appeals his convictions for trafficking in cocaine and for possession of cocaine. We affirm the judgment and sentence for trafficking in cocaine without further comment, but reverse the judgment and sentence for possession of cocaine.

The vehicle McAdory was driving was stopped by the Pinellas County Sheriffs Office as part of a sting operation involving a confidential informant. Located in the vehicle was an envelope containing more than twenty-eight grams of cocaine. When McAdory was searched he was found to have crack cocaine weighing less than one gram in the brim of the hat he was wearing, an additional amount of crack cocaine weighing less than one gram in a pocket of his pants, and two rocks of crack cocaine weighing less than one gram in the niche of the driver’s door handle. McAdory was convicted of both trafficking in cocaine and possession of cocaine.

When two crimes are degree variants of the same underlying crime, conviction for both violates double jeopardy. See Gibbs v. State, 698 So.2d 1206, 1209 (Fla. 1997). The underlying crime in both trafficking in cocaine and simple possession of cocaine is the possession of an illegal drug. Id. Dual convictions for trafficking and for simple possession of the same type of drugs, found at the same time, even though found in different locations, cannot stand. See Charneco v. State, 917 So.2d 378, 379 (Fla. 2d DCA 2005); Howard v. State, 916 So.2d 824, 825 (Fla. 2d DCA 2005); see also Johnson v. State, 712 So.2d 380 (Fla.1998). Accordingly, we reverse the judgment and sentence for simple possession of cocaine. We affirm the judgment and sentence for trafficking in cocaine.

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

ALTENBERND and SILBERMAN, JJ., Concur.


author: SILBERMAN, Judge.

text:
    PHILIP MORRIS USA, INC., a foreign corporation, Appellant, v. Ronald J. ARNITZ, Appellee.
    No. 2D05-826.
    District Court of Appeal of Florida, Second District.
    July 21, 2006.

      Daniel F. Molony of Shook, Hardy & Bacon, Tampa; William P. Geraghty of Shook, Hardy & Bacon, Miami; and Gary L. Sasso, John R. Blue, Joseph H. Lang, Jr., and Henry G. Gyden of Carlton Fields, P.A., Tampa, for Appellant.
    Charles P. Schropp and Amy S. Farrior of Schropp, Buell & Elligett, P.A., Tampa, and Howard M. Acosta and Charles M. Schropp, St. Petersburg, for Appellee.
   SILBERMAN, Judge.

In this tobacco litigation, Philip Morris USA, Inc. (Philip Morris), appeals a final judgment in favor of Ronald J. Arnitz (Ar-nitz) on his claim alleging strict liability for design defects in Philip Morris brand cigarettes. We affirm the final judgment in all respects and write to explain our determination that the trial court did not err in admitting evidence of and instructing the jury on comparative negligence.

Arnitz began smoking cigarettes in the early 1960s, when he was fourteen or fifteen years old. Beginning in the 1970s, Arnitz made numerous unsuccessful attempts to quit smoking. In 2000, he was diagnosed with lung cancer and emphysema. He was unable to quit smoking until he began chemotherapy treatments, and he last smoked in August 2000. The medical testimony that Arnitz presented reflected that his more than thirty-five-year smoking history caused his lung cancer and emphysema.

Arnitz filed his original complaint on June 6, 2000, and filed his amended complaint on June 30, 2000, against Philip Morris and other defendants whom Arnitz subsequently dropped from the lawsuit. The amended complaint asserted claims for negligence, strict liability, and “conspiracy to commit actual fraud.” At issue here is the strict liability claim, which alleged design defects in Philip Morris brand cigarettes.

At trial, Arnitz identified three design defects. First, Arnitz presented evidence that Philip Morris used additives or flavo-rants to overcome the body’s natural defenses to inhaling smoke, thus making the cigarettes easier to inhale. Second, Arnitz presented evidence that Philip Morris used as many as 110 to 115 total additives and that some additives changed the form of the nicotine to freebase nicotine; freebase nicotine is absorbed into the cells much faster and can lead to greater nicotine addiction. Third, Arnitz presented evidence that the use of “flue-cured” tobacco, i.e., tobacco that had been exposed to toxic exhaust fumes from propane heaters, increased by as much as ten times the level of carcinogenic tobacco-specific nitrosa-mines in the tobacco.

In the amended complaint, Arnitz alleged as follows:

At all times material, the ordinary consumer, including the plaintiff, did not in the exercise of ordinary diligence know of the likelihood of, the severity of, or the risks from defendants’ tobacco products, which risks are outlined above. However, plaintiff admits he shares comparative fault with defendants and seeks an apportionment of damages.

Arnitz points out on appeal that this allegation reflects that “while Arnitz knew that smoking posed some health risk, he and other consumers did not know of the increased, risk posed by the defects in the product.” Thus, Arnitz proceeded on the theory that he was partially at fault and that the jury should apportion an appropriate percentage of responsibility to him.

On July 1, 2004, Arnitz filed his notice that he was dropping the conspiracy to defraud claims. On July 6, 2004, Philip Morris filed its notice that it was withdrawing certain affirmative defenses, including its affirmative defense of “comparative fault and/or comparative negligence.” Then, on July 22, 2004, Philip Morris filed its motion to strike Arnitz’s references in his pleadings to comparative negligence and apportionment of fault. Judge William P. Levens, who was not assigned to try the case, conducted a hearing on Philip Morris’s motion on August 4, 2004. He granted Philip Morris’s motion to strike references to comparative fault and apportionment of damages in Arnitz’s reply to the affirmative defenses. Judge Levens denied Philip Morris’s motion to strike Ar-nitz’s “self-limiting admission of fault and apportionment of damages” in the amended complaint and left it to the trial judge to determine whether Arnitz should be free to raise the issue at trial.

On September 2, 2004, Philip Morris filed a motion entitled “Defendant Philip Morris USA Inc.’s Motion in Limine to Exclude Plaintiffs Argument and Evidence of Comparative Fault, and Admit Evidence Regarding Plaintiffs Awareness of the Risks of Smoking and Plaintiffs Smoking Decisions.” In it, Philip Morris argued that Arnitz should not be allowed to introduce evidence of comparative fault because Philip Morris had withdrawn that affirmative defense. However, in the same motion it argued that it should be able to present evidence of Arnitz’s awareness of the risks of smoking to rebut his design defect claim. Philip Morris argued that it was necessary to show that Arnitz was aware of the dangers of smoking to prove that its cigarettes were not “dangerous to the extent beyond that which would be contemplated by the ordinary consumer,” citing Cassisi v. Maytag Co., 396 So.2d 1140, 1144 (Fla. 1st DCA 1981). Philip Morris contended that this evidence could be introduced, subject to a limiting instruction that the jury not consider the evidence as fault on the part of Arnitz.

The trial judge, Judge Sam D. Pendino, heard this motion on October 4, 2004, two days before the beginning of jury selection. Judge Pendino denied the motion and agreed with Arnitz that because he pleaded comparative fault he could present evidence on the issue, even though Philip Morris had withdrawn that defense. Judge Pendino stated, “I can understand if you want to drop your affirmative defense of comparative fault, but to preclude them from presenting whatever case they want to present would not be equitable. They can argue comparative fault in any aspect of a case, particularly if they plead it.” Further, the judge stated, “I just don’t think that I can tell the plaintiff how they should present their case. They want to admit a certain amount of fault, I’m going to let them.”

Later that day, while the court was considering a host of other motions in limine, Arnitz announced that he would be dropping his failure to warn claims and negligence claims entirely; thus, Arnitz was going to proceed to trial solely on the strict liability design defect claim.

In light of these changed circumstances, Philip Morris moved for reconsideration of the trial court’s ruling on its motion to preclude Arnitz from introducing evidence of comparative fault. The trial court stated that “if the Defense could use it [comparative fault] in a strict liability case, so can the Plaintiff.” After the parties presented case law supporting the proposition that a defendant could raise comparative negligence in a strict liability case, the trial court denied Philip Morris’s motion for reconsideration.

A fourteen-day trial ensued, at which both parties presented evidence regarding Arnitz’s comparative fault. The trial court instructed the jury on comparative fault. The jury found that Philip Morris placed “Marlboro or Benson & Hedges cigarettes on the market with a defective design which was a legal cause of loss, injury or damage to” Arnitz. The jury awarded a gross award of $600,000 but assigned sixty percent of the responsibility for the damages to Arnitz and forty percent to Philip Morris. Thus, the trial court entered a final judgment for Arnitz in the amount of $240,000.

On appeal, Philip Morris contends that a plaintiff cannot inject comparative fault into a lawsuit and that comparative fault is strictly an affirmative defense for the defendant to raise. We recognize at the outset that comparative fault is generally raised as an affirmative defense. See Florida Patient’s Compensation Fund v. Tillman, 487 So.2d 1032, 1035 (Fla.1986) (recognizing that comparative negligence is a defense); see also Fla. R. Civ. P. 1.110(d) (stating that “contributory negligence” is an affirmative defense). Furthermore, the Florida Supreme Court has recognized that a defendant is entitled to raise comparative negligence as a defense in a strict liability case alleging a design defect if based on grounds “other than failing to discover or guard against a defect” and that “lack of ordinary due care could constitute a defense to strict tort liability.” West v. Caterpillar Tractor Co., 336 So.2d 80, 90 (Fla.1976); see also Standard Jury Instructions — Civil Cases (No. 02-2), 872 So.2d 893, 897 app. cmt. 5 (Fla. 2004) (“Comparative negligence is a defense to strict liability claims if based on grounds other than the failure of the user to discover the defect or to guard against the possibility of its existence”). Thus, comparative negligence can be raised as a defense in a case alleging a design defect in cigarettes, unless the defendant claims that the plaintiffs fault is in not discovering the alleged defects in the cigarettes. Here, the alleged defects are that the tobacco was flue cured and that the additives made the cigarettes more inhaleable and more dangerous. Although Arnitz assert ed that he did not know of these alleged defects, he acknowledged some comparative fault because he knew generally of the hazards of smoking, he should have quit smoking, and perhaps he did not try hard enough to quit.

The fact that comparative negligence may be raised as an affirmative defense does not mean that a defendant can determine how a plaintiff shapes his theory of the case. Arnitz points out on appeal that even though he “acknowledged partial responsibility for his smoking-related injuries, Philip Morris claims to have had the right to censor the presentation of Arnitz’ case and to suppress truthful testimony in order to prevent Arnitz’ acceptance of partial responsibility from reaching the jury.” Philip Morris argues that Bryant v. Fiadini, 405 So.2d 1341 (Fla. 3d DCA 1981), is the “only published Florida appellate decision on point” and that Bryant “compels the conclusion that the trial court committed legal error in permitting Arnitz to force comparative fault into this case” after Philip Morris had waived that defense. The facts in Bryant, however, are distinguishable from the facts here.

In Bryant, the tenants filed a negligence action against their landlord and his insurer for injuries the tenants sustained during a fire in their apartment. The defendants raised the comparative negligence of the tenants for placing a portable heater too close to the bed linens that caught fire. At the charge conference, the tenants requested a jury instruction, which the trial court refused to give, on negligence per se based on an alleged fire code violation. Also at the charge conference, the defendants withdrew the comparative negligence defense and obtained a ruling that the trial court would not instruct the jury on comparative negligence. The jury returned a defense verdict of no liability.

• On appeal, the Third District stated that “[a] defendant has a right to waive any defense.” Id. at 1343. The court determined that the trial court had properly refused to instruct the jury on comparative negligence when the defendant had withdrawn the defense at the charge conference. Nothing in the Bryant opinion indicates that the plaintiffs had pleaded comparative fault in their complaint, and Bryant does not address whether a plaintiff may acknowledge, in its complaint, its own comparative fault.

Here, although Philip Morris had withdrawn its affirmative defense of comparative negligence, Arnitz had pleaded comparative fault in his amended complaint. Arnitz’s theory of his case was that although he was aware of health risks associated with smoking cigarettes and, therefore, was partly to blame for having smoked despite knowing those risks, he was unaware of the design defects in Philip Morris’s cigarettes that made them even more dangerous. We agree with Arnitz that if a plaintiff chooses to plead his own comparative fault, a defendant should not be able to control the plaintiffs theory of his case and preclude the plaintiff from accepting some responsibility for his injuries.

Philip Morris contends that Martinello v. B & P USA, Inc., 566 So.2d 761 (Fla. 1990), also supports its position. There, the court determined that the plaintiff was not precluded from asserting its attractive nuisance theory. The defendant had admitted that the injured child was an invitee, not a trespasser, thus making the doctrine of attractive nuisance inapplicable. The supreme court determined that the plaintiff was entitled to try the case on his attractive nuisance theory, which was an “all-or-nothing claim,” and

not have the jury treat [the child] as an invitee where a partial recovery was possible through comparative negligence. In this case, the trial court and the Fourth District Court of Appeal permitted the defendant, rather than the plaintiff, to choose the theory under which this case was to be tried. We find that the plaintiff must be allowed that choice in these circumstances.

Id. at 764.

Here, Phillip Morris asserts that it must be allowed the choice in which defenses it raises. However, as recognized in Martinello, Arnitz, as plaintiff, must be allowed to choose the theory under which his case is tried. Arnitz admitted that he was partly responsible for his injuries because he continued to smoke after he became aware of the health risks associated with smoking; but he also contended that Philip Morris brand cigarettes had a design defect that made them even more dangerous and that he and other consumers were unaware of this increased health risk. We conclude that the trial court did not err in allowing Arnitz to present his theory of the case to the jury and, based on the pleadings, in instructing the jury on comparative negligence.

Further, Philip Morris argues that Arnitz’s design defect claim is barred by federal preemption principles. Arnitz contended that Philip Morris brand cigarettes had a design defect because Philip Morris placed additives in its cigarettes to make them more inhaleable than natural tobacco; Philip Morris flue cured the tobacco, heightening the cancer risk; and some of the additives Philip Morris used changed the nicotine to freebase nicotine. We conclude that federal law does not preempt the design defect claim. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 523, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (plurality opinion) (recognizing that the 1969 Federal Cigarette Labeling and Advertising Act “does not generally preempt ‘state-law obligations to avoid marketing cigarettes with manufacturing defects or to use a demonstrably safer alternative design for cigarettes’ ” (quoting Brief for Respondents 14)); Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 940 (Fla. 2000) (quoting Cipollone, 505 U.S. at 524-25, 112 S.Ct. 2608, for the proposition that the 1969 Act does not “ ‘pre-empt petitioner’s claims that rely solely on respondent’s testing or research practices or other actions unrelated to advertising or promotion’ ”); Ferlanti v. Liggett Group, Inc., 929 So.2d 1172, 1174 (Fla. 4th DCA 2006) (holding “that to the extent appellant’s claims are based on a design defect in the cigarettes smoked by the decedent, her claims are not barred by the doctrine of conflict preemption”); see also Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076 (Fla. 2d DCA 2000) (holding that failure to warn and conspiracy to commit fraud claims were preempted for acts after 1969 but determining that strict liability design defect claim survived motion for summary judgment).

For the foregoing reasons, we affirm the final judgment in the amount of $240,000 in favor of Arnitz.

Affirmed.

KELLY and CANADY, JJ., Concur.


author: STRINGER, Judge.

text:
    KEL HOMES, LLC, Appellant, v. Michael and Tonia BURRIS, individually, Appellees.
    No. 2D06-595.
    District Court of Appeal of Florida, Second District.
    July 21, 2006.

      Jeffrey Sanford Kaufman of Kaufman, Englett & Lynd, P.A., Orlando, for Appellant.
    Kelly A. Greene of Kelly A. Greene, P.A., Kissimmee, for Appellee.
   STRINGER, Judge.

Kel Homes, LLC, appeals from the trial court’s order that denied its motion to dismiss the Burrises’ complaint based on the arbitration provision in Kel Homes’ contract with them. We affirm the trial court’s determination that the count for specific performance is not within the scope of the arbitration provision of the contract. However, we reverse the trial court’s determination that the count for fraud in the inducement is not within the scope of the arbitration provision, and we remand for further proceedings concerning the validity of the arbitration provision.

In June 2004, the Burrises entered into a contract for the construction of a residence in Polk County with Kel Homes. After Hurricanes Charley, Frances, and Jeanne hit Polk County, Kel Homes attempted to terminate the contract pursuant to the “acts of God” provision of the contract. Upon receiving the termination letter, the Burrises filed suit, seeking specific performance in one count and damages for fraud in the inducement in a separate count. Kel Homes moved to dismiss both counts, relying upon the arbitration provision in the parties’ contract. The trial court denied this motion as to both counts on this basis, essentially finding that neither count came within the scope of the arbitration provision. However, the trial court did agree that the fraud in the inducement count failed to state a cause of action due to lack of facts and gave the Burrises leave to amend. This is the order that Kel Homes appeals.

At issue in this case is the proper interpretation of two separate provisions of the contract between Kel Homes and the Bur-rises, which appear on their face to conflict as to what claims come within the scope of the arbitration provision. These provisions state, in pertinent part:

24. Arbitration Agreement. It is hereby agreed that any and all claims, disputes and controversies by or between the Buyer and Seller arising from or related to the subject home identified herein, or to any defect in or to the subject home or the real property on which the subject home is situated, or the sale of the subject home by the Seller, including, without limitation, any claim for breach of contract, neglect or intentional misrepresentation or nondisclosure in the inducement, execution or performance of any contract, including this arbitration agreement, and breach of any alleged duty to good faith and fair dealing, shall be submitted to binding arbitration by and pursuant to the rules of Construction Arbitration Services, Inc. (hereinafter “CAS”) in effect at the time of the request for arbitration.
28. Default. If the Buyer fails to perform according to the terms of this agreement, including the failure or refusal to close or execute and deliver such documents to procure a mortgage, upon which this agreement is conditioned, then this agreement shall be deemed breached by the Buyer and the Seller shall be relieved of all obligations hereunder and shall be entitled to retain all deposits (initial and/or additional) paid and/or payable by the Buyer, as liquidated damages, consideration for the execution of this agreement and in full settlement of any and all claims; whereupon, all parties shall be relieved of all obligations here under. In the event of Seller’s default, the buyer’s sole and exclusive remedy shall be limited to either a suit for specific performance (but not monetary damages) or the return of the deposit. The Seller’s inability to perform under the terms of the contract as a result of conditions or events beyond the Seller’s reasonable control and beyond reasonable cost limits, shall preclude the Buyer’s remedy of specific performance. A condition precedent to the Buyer filing suit for specific performance shall be: (i) Buyer shall have been in full and complete compliance with all of the terms of this agreement and shall have tendered all payments due hereunder; (ii) Buyer shall have provided the Seller with written notice of Seller’s default and shall have allowed Seller a reasonable period of time to cure such default; and, (iii) Buyer shall have notified Seller, in writing, that Seller has failed to cure the default within [a] reasonable period of time not to exceed 30 days.

(Emphasis added.) The issue is how to read these provisions so as to give effect to both.

Count for Specific Performance

As to the count for specific performance, Kel Homes argues such action falls within the scope of the arbitration provision because the term “suit” as used in paragraph 28 should be read to mean “arbitration.” This argument is based on the general proposition that courts favor arbitration and will interpret ambiguities liberally in favor of arbitration. The Bur-rises, on the other hand, contend that a “suit” is not an “arbitration” and that the contract plainly says that they can file a “suit” for specific performance. Thus, according to the Burrises, their claim for specific performance does not fall within the scope of the arbitration provision. The Burrises are correct on this point for several reasons.

First, the parties do not dispute the general proposition that “words in a contract are presumed to have been used with their ordinary and customary meaning.” Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995) (quoting Pottsburg Utils., Inc. v. Daugharty, 309 So.2d 199, 201 (Fla. 1st DCA 1975)). As the Burrises properly point out, the word “suit” is ordinarily understood to mean a proceeding in a court of law. Black’s Law Dictionary defines “suit” as “[a] generic term, of comprehensive signification, referring to any proceeding by one person or persons against another or others in a court of law.” Black’s Law Dictionary 1434 (6th ed. 1990). By contrast, “arbitration” is defined as “[a] process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard.” Black’s Law Dictionary 104 (6th ed. 1990). Thus, it is clear that the terms “suit” and “arbitration” are not generally understood to have the same meaning, and the term “suit” would not normally be interpreted to encompass an arbitration proceeding.

Kel Homes relies on this court’s decision in Fewox v. McMerit Construction Co., 556 So.2d 419 (Fla. 2d DCA 1989), for the proposition that the term “suit” includes arbitration proceedings. However, the underlying rationale of Fewox does not support the application of its holding to this case.

In Fewox, a dispute arose between property owners, their contractor, and the contractor’s surety on a performance bond. The contract between the property owners and the contractor required them to resolve their dispute through arbitration. The parties did so, and the contractor’s surety paid the arbitration award. The property owners then sought an award of their attorney’s fees against the surety pursuant to section 627.428, Florida Statutes (1987), which allows for an award of attorney’s fees upon rendition of a judgment against any insurer, and section 627.756, which applied section 627.428 to “suits” brought by property owners against a surety.

In holding that the term “suit” in section 627.756 should be construed to include arbitration proceedings, the court noted that the parties had chosen to resolve their dispute through arbitration rather than through an action in a court of law. In holding that it would be inequitable to deny the property owner’s their attorney’s fees under this set of facts, this court stated:

The legislative policy underlying section 627.428 is served by requiring insurers to pay attorney’s fees to a prevailing insured or beneficiary, regardless of whether the insurers contest coverage through arbitration or in the trial courts. To hold otherwise would be to allow insurers to.avoid paying attorney’s fees in contested coverage cases merely by choosing arbitration.

Id. at 423-24. Thus, this court did not hold that the term “suit” included arbitration proceedings in all cases, or even that that was a commonly understood meaning of the term “suit.” Rather, this court held that public policy required the term “suit” as used in this statutory section to be extended to include arbitration proceedings to further legislative intent.

Given the context of the Fewox case, its holding cannot be extended, as Kel Homes suggests, to mean that the term “suit” in its contract with the Burrises includes arbitration. The court in Fewox did not construe the term “suit” to encompass arbitration because the words had the same meaning. Instead, it did so to further both legislative intent and public policy in the context of disputes between insurers and their insureds. Such public policy considerations do not exist in this case. Accordingly, the holding in Fewox cannot support an interpretation here that would equate the terms “suit” and “arbitration.”

Second, the use of different terms in paragraphs 24 and 28 tends to indicate that a different meaning was intended. As a general proposition, the use of different language in different contractual provisions strongly implies that a different meaning was intended. See, e.g., Leisure Resorts, Inc. v. City of W. Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003) (“[SJophisticated lawyers must be presumed to know how to use parallel construction and identical wording to impart identical meaning when they intend to do so.”); Campbell v. Campbell, 489 So.2d 774, 777 (Fla. 3d DCA 1986); cf. State v. Bradford, 787 So.2d 811, 819 (Fla.2001) (“the legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended”).

Here, the use of the term “arbitration” in paragraph 24 and the use of the different term “suit” in paragraph 28 is strong evidence that two different meanings were intended. Had Kel Homes and the Burris-es intended paragraph 28 to mean “arbitration for specific performance,” the paragraph should have referenced “petitioning for arbitration” rather than “filing suit.” The fact that a different term was used in each paragraph militates against Kel Homes’ argument that both paragraphs should be interpreted to mean the same thing.

Third, it is a general principle of contract interpretation that a specific provision dealing with a particular subject will control over a different provision dealing only generally with that same subject. Island Manor Apartments of Marco Island, Inc. v. Div. of Fla. Land Sales, Condos. & Mobile Homes, 515 So.2d 1327, 1330 (Fla. 2d DCA 1987); Suncoast Bldg. of St. Petersburg v. Russell, 105 So.2d 809, 810 (Fla. 2d DCA 1958).

Here, paragraph 28 deals specifically with actions upon default by either party, and it specifically permits the buyer to “file” a “suit for specific performance” upon the seller’s default. Paragraph 24 deals more generally with any dispute arising out of the contract, whether it be for breach of the contract or otherwise, and it requires arbitration. Because the action here involves a default by Kel Homes and an action seeking specific performance, the specific provision of paragraph 28 which allows for a “suit” in the case of Kel Homes’ default controls over the more general dispute resolution provision of paragraph 24 that requires arbitration.

In its brief, Kel Homes argues that an interpretation that allows for a suit for specific performance in case of its default renders the provisions of paragraph 24 meaningless. It points out that the court should strive to interpret conflicting provisions of a contract in such a way so as to give meaning to both provisions. See, e.g., Sims v. Clarendon Nat’l Ins. Co., 336 F.Supp.2d 1311, 1319 (S.D.Fla.2004); Seabreeze Rest., Inc. v. Paumgardhen, 639 So.2d 69 (Fla. 2d DCA 1994). However, allowing a suit for specific performance under paragraph 28 does not render the provisions of paragraph 24 meaningless. This court can give both provisions meaning, as is amply reflected in this case. Paragraph 28 permits the Burrises to file a suit solely upon a breach by Kel Homes and solely for the remedy of specific performance. Paragraph 24 requires the parties to arbitrate any and all disputes other than those seeking specific performance for Kel Homes’ breach, such as the Burris-es’ claim for fraud in the inducement. Accordingly, the interpretation proposed by the Burrises gives meaning to both provisions and does not render any portion of the contract meaningless.

Kel Homes also argues that an interpretation that would allow for a suit for specific performance while requiring the fraud count to be arbitrated would be an absurd result. However, the parties may enter into any contract they desire, and they are bound by the language of that contract. Sassano, 664 So.2d at 1004; Sec. First Fed. Sav. & Loan Ass’n v. Jarchin, 479 So.2d 767, 770 (Fla. 5th DCA 1985). This is. true no matter how disadvantageous that language later proves to be for one party or the other. Jarchin, 479 So.2d at 770.

Here, the result is not absurd. It simply requires Kel Homes to defend different types of actions in different forums. Regardless of how disadvantageous Kel Homes believes this construction of the contract to be, it is bound by the language of the contract. That language permits a suit for specific performance upon allegations of its breach of the contract.

For all of these reasons, the trial court properly denied Kel Homes’ motion to dismiss the specific performance count of the Burrises’ complaint. Accordingly, we affirm on this count.

Count for Fraud in the Inducement

As to the count for fraud in the inducement, however, we must reverse the trial court’s order dismissing this count with leave to amend and remand for further proceedings because this count clearly falls within the scope of the arbitration provision.

Paragraph 24 of the contract states that “any and all claims, disputes and controversies ... including, without limitation, any claim of ... negligent or intentional misrepresentation or nondisclosure in the inducement ... shall be submitted to binding arbitration.” Unlike the situation with the specific performance count, no other provision of the contract references any other possible forum for resolving such a claim. Accordingly, under the clear terms of the contract, the Burrises’ claim for fraud in the inducement must be arbitrated. Therefore, we reverse the denial of Kel Homes’ motion to dismiss on this count.

Validity of the Arbitration Agreement

In this appeal, the Burrises contend that if any count is found to fall within the scope of the arbitration provision, it would be improper for this court to simply order the parties to arbitration because there has been no determination that the arbitration agreement is valid and enforceable. We agree and remand for further proceedings as to the validity of the arbitration agreement.

When presented with a motion to compel arbitration or a motion to dismiss in favor of arbitration, the trial court must consider three questions: (1) Whether a valid written agreement exists which contains an arbitration clause; (2) Whether an arbitrable issue exist; (3) Whether the right to arbitration has been waived. Alexander v. Minton, 855 So.2d 94, 95 (Fla. 2d DCA 2003); Pulte Home Corp. v. Smith, 823 So.2d 305 (Fla. 2d DCA 2002). When a party challenges the validity of the entire contract containing the agreement to arbitrate, the issue of the validity of the contract itself is one for the arbitrators. Buckeye Check Cashing, Inc. v. Cardegna, — U.S. -, 126 S.Ct. 1204, 1208, 163 L.Ed.2d 1038 (2006); Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755, 760 (Fla. 2d DCA 2005); Medident Constr., Inc. v. Chappell, 632 So.2d 194, 195 (Fla. 3d DCA 1994). However, when a party specifically challenges only the validity of the arbitration clause, the issue of the validity of the arbitration clause must be determined by the trial court before any referral to arbitration is proper. Buckeye Check Cashing, Inc., 126 S.Ct. at 1208; Alphagraphics Franchising, Inc. v. Stebbins, 617 So.2d 463, 464 (Fla. 4th DCA 1993).

In this case, in response to Kel Homes’ motion to dismiss, the Burrises argued that the arbitration provision itself was invalid. They contended that the arbitration provision did not conform to the requirements of the Florida Arbitration Code because it provided for arbitration to be conducted in accordance with the rules of Construction Arbitration Services, Inc., rather than in accordance with the Florida Arbitration Code and because it included a provision that the rules of CAS would apply over those of any “inconsistent state or local law, ordinance or judicial rule.” In response, Kel Homes argued that the contract was not subject to the Florida Arbitration Code, but rather was a contract affecting interstate commerce that was subject to the Federal Arbitration Act.

Florida courts have generally refused to enforce arbitration agreements that do not comply with the Florida Arbitration Code or that seek to apply the law of a different state or forum. See, e.g., Avid Eng’g, Inc. v. Orlando Marketplace Ltd., 809 So.2d 1, 3 (Fla. 5th DCA 2001) (“[T]he jurisdiction of the courts cannot be invoked to compel arbitration unless an agreement to arbitrate complies with the Florida Arbitration Code.”); Knight v. H.S. Equities, Inc., 280 So.2d 456 (Fla. 4th DCA 1973) (refusing to enforce an arbitration agreement between Florida parties that required the application of New York law because that law conflicted with the Florida Arbitration Code); but see Post Tensioned Eng’g Corp. v. Fairways Plaza Assocs., 412 So.2d 871 (Fla. 3d DCA 1982) (noting that an arbitration provision requiring compliance with the rules of the American Arbitration Association was enforceable because those rules merely expressed the method to be used rather than the substantive law to be applied). Thus, if the Burrises’ arguments are correct, the arbitration provision would be unenforceable and their claim for fraud in the inducement could properly proceed in court. However, if the arbitration provision falls under the Federal Arbitration Act, as asserted by Kel Homes, the provision would be enforceable as written. See Riverfront Props., Ltd. v. Max Factor III, 460 So.2d 948 (Fla. 2d DCA 1984) (stating that a foreign choice-of-law provision that would render an arbitration provision unenforceable under the Florida Arbitration Code would nevertheless be enforceable if the contract fell under the Federal Arbitration Act).

The Burrises’ argument on this point was made almost as an afterthought at the hearing. They cited no case law and, other than raising this as a possible issue, did not provide significant argument to the trial court. Kel Homes’ response to this argument at the hearing was equally off the cuff and essentially told the trial court to “look at the contract.” Nothing in the trial court’s oral ruling or written order addresses this issue. Moreover, the record on appeal is not sufficiently developed for this court to make a ruling on the validity of the arbitration provision. Accordingly, we remand for further proceedings on this issue. See § 682.03(1), Fla. Stat. (2005) (“If the court shall find that a substantial issue is raised as to the making of the agreement or provision [to arbitrate], it shall summarily hear and determine the issue.”).

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

FULMER, C.J., and WHATLEY, J., Concur.

      . The Burrises' original complaint also contained a third count seeking damages for breach of contract. At the hearing on Kel Homes’ motion to dismiss, the Burrises withdrew this count of the complaint; thus, this count is not before us and is not affected by this opinion.