author: HAZOURI, J.

text:
    Timothy BIGGINS, Appellant, v. FANTASMA PRODUCTIONS, INC. OF FLORIDA, Freelance Productions Inc., Chosen Sound & Lighting, Inc., and the City of Pompano Beach, Appellees.
    No. 4D05-3834.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Mark L. Zientz and Andrea Cox of Law Offices of Mark L. Zientz, P.A., Miami, for appellant.
    Eric G. Belsky of Johnson, Leiter & Belsky, P.A., Fort Lauderdale, for appellee Chosen Sound & Lighting, Inc.
   HAZOURI, J.

Timothy Biggins appeals a final summary judgment entered in favor of Chosen Sound & Lighting, Inc. We reverse.

Biggins filed a four-count complaint against Chosen Sound, Fantasma Productions, Inc. of Florida, Freelance Productions, Inc., and the City of Pompano Beach, alleging negligence against each defendant arising from an accident in which Biggins received serious injuries after falling from a “Genie” lift used for rigging cables in preparation for a George Benson concert at the Pompano Beach Amphitheatre. Fantasma filed a motion for summary judgment on grounds that it enjoyed immunity as a general contractor under the Workers' Compensation Act. The trial court granted Fantasma’s motion. Biggins voluntarily dismissed his case against Freelance and reached a settlement with the City of Pompano Beach. Chosen Sound was the only defendant remaining in the suit and is the only -defendant involved in this appeal.

Biggins’s allegations against Chosen Sound were that it: failed to provide him with sufficient equipment, assistance, and supervision to safely perform his job; negligently ordered Biggins to perform work beyond the scope of his duties, responsibilities, and experience; failed to warn Big-gins regarding the dangerous condition of the Genie lift when it knew or should have known of the danger; and created a hazardous environment by attempting to construct the stage and lighting without sufficient equipment or supervision.

Biggins testified at his deposition that he was hired by Backstage Productions to do lighting and electrical set-ups. Backstage was employed to provide workers for the George Benson concert at the Pompano Beach Amphitheatre in November 1999. Biggins was asked to work as a “rigger” at the concert, although he had only assisted other riggers in the past. Biggins testified that a rigger is a person who is responsible for hanging equipment from the ceiling while on a lift. Backstage did not train Biggins on the use of lifts.

Biggins testified that he was working as an electrician for Backstage at the concert when an employee for Chosen Sound'directed him to find a lift to go up and hang cable. Biggins could not locate “safety legs” for the lift. Safety legs are designed and used to stabilize the lift. Biggins testified that the Chosen Sound employee directed him to go up in the lift, even though there were no safety legs.

Biggins went up on the lift by himself. After realizing he could not rig cables from the location where the lift was positioned, he started to bring the lift down. As he was bringing the lift down, the lift became unstable and fell over causing Biggins to fall approximately 14 to 20 feet, sustaining serious injuries.

Chosen Sound filed two motions for summary judgment. The first alleged that Chosen Sound did not owe Biggins a legal duty because it did not own the Genie lift involved in the accident. The second motion for summary judgment claimed Chosen Sound had immunity from suit under the Workers’ Compensation Act.

In entering the summary judgment for Chosen Sound, the trial court granted both motions for summary judgment stating: “The Court finds that there are no genuine issues of material fact which would preclude Summary Judgment under the facts of this case.”

“The standard of review of an order granting summary judgment is de novo.” Mobley v. Gilbert E. Hirschberg, P.A, 915 So.2d 217, 218 (Fla. 4th DCA 2005) (citing Volusia County v. Aberdeen at Ormond Beach L.P., 760 So.2d 126, 130 (Fla.2000)). The party moving for summary judgment has the burden of proving the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). “If the evidence raises any issue of material fact, if it is conflicting, if it -will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (citations omitted).

We dispense "with the first basis for the granting of the summary judgment, i.e., that there was no genuine issue of material fact that Chosen Sound owed a legal duty to Biggins. A review of the record reveals that there are genuine issues of material fact concerning whether Chosen Sound owed a legal duty to Big-gins and whether that duty was violated, thereby precluding summary judgment.

We also conclude that the trial court erred in granting Chosen Sound’s motion for summary judgment based upon its conclusion that Chosen Sound was entitled to workers’ compensation immunity.

Section 440.10(l)(b), Florida Statutes (1999), provides:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

Biggins claims Chosen Sound was not entitled to workers’ compensation immunity because Chosen Sound was a subcontractor standing in a horizontal relationship to Biggins’s employer, Backstage, which was another subcontractor under the same general contractor (Fantasma). See § 440.10(l)(e), Fla. Stat. (1999) (providing that a subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exelusiveness-of-liability provisions of s. 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor).

Chosen Sound concedes that it was not Biggins’s statutory employer pursuant to section 440.10(l)(b), Florida Statutes (1999), however, Chosen Sound claims that it is entitled to workers’ compensation immunity because Biggins was Chosen Sound’s borrowed servant under section 440.11, Florida Statutes (1999). Although it is not clear in the trial court’s order whether it granted summary judgment on the basis of workers’ compensation immunity pursuant to section 440.10(l)(b), it would nonetheless be error to do so in this case because Chosen Sound was not Big-gins’s statutory employer.

Biggins contends that Chosen Sound is not immune from liability under the borrowed servant (special employee) doctrine. “[T]here is a presumption that the employee is not a borrowed servant, but instead continues to work for and be an employee of the general employer.” Sagarino v. Marriott Corp., 644 So.2d 162, 165 (Fla. 4th DCA 1994) (citing Shelby Mut. Ins. Co. v. Aetna Ins. Co., 246 So.2d 98 (Fla.1971)). To overcome this presumption, a party must establish the following elements: (1) there was a contract for hire, either express or implied, between the special employer and the employee; (2) the work being done at the time of the injury was essentially that of the special employer; and (3) the power to control the details of the work resided with the special employer. Sagarino, 644 So.2d at 165 (citing Shelby Mut. Ins. Co., 246 So.2d at 101, n. 5). The first factor, whether there was an express or implied contract, is the critical element. Derogatis v. Fawcett Mem’l Hosp., 892 So.2d 1079, 1081 (Fla. 2d DCA 2004) (citing Horn v. Tandem Health Care of Fla., Inc., 862 So.2d 938, 940 (Fla. 2d DCA 2004)). The remaining two factors are indicia of such a contract. Id.

Factor One: Existence of a Contract

To satisfy the first factor, the special employer must establish that there was a contract for hire, either express or implied, between the special employer and the employee. The special employer must show also that there was a “deliberate and informed consent by the employee” to the contract. Sagarino, 644 So.2d at 165 (citing Shelby Mut. Ins. Co., 246 So.2d at 101, n. 5). This court requires the special employer to show “a ‘definite arrangement between the general and special employer and the employee’s knowledge thereof.’ Sagarino, 644 So.2d at 165 (citing Pepperidge Farm, Inc. v. Booher, 446 So.2d 1132, 1132 (Fla. 4th DCA 1984) (emphasis added), approved, 468 So.2d 985 (Fla.1985)).

In the instant case, there is no evidence of an express contract between Chosen Sound and Backstage, or between Chosen Sound and Biggins. The record indicates that Chosen Sound had only one express contract with respect to the concert, a contract with Fantasma to supply sound and lighting equipment to the concert site.

Moreover, there is no conclusive evidence that an implied contract for hire existed between Biggins and Chosen Sound. Citing deposition testimony of representatives from Fantasma, Chosen Sound, and Backstage, Chosen Sound argues that the evidence shows that Big-gins’s temporary employment with Chosen Sound arose out of a “definite arrangement” between Chosen Sound and Backstage, whereby Chosen Sound:

was hired by the promoter to provide the sound and lighting equipment and the technicians to supervise its setup and operation for the concert, while Backstage Productions was hired for the express purpose of providing the physical labor necessary to complete these and other specific tasks. Furthermore, all of the parties to this arrangement were clearly aware of the interrelated (if not interdependent) work they were to perform at the concert, inasmuch as they had done so together many times in the past.

However, the parties’ awareness of interrelated functions at the concert does not automatically establish the existence of an implied in fact contract between Chosen Sound and Backstage. Despite the testimony cited by Chosen Sound, there is no conclusive evidence that Chosen Sound and Backstage had any arrangement, albeit formal or informal, whereby Backstage provided employees to Chosen Sound for assistance with setting up for the concert. Rather, Backstage contracted with Fantasma to provide Fantasma with stagehands. If anything, Backstage employees like Biggins worked with Chosen Sound, for Fantasma.

Further, there is no conclusive evidence that Biggins gave “deliberate and informed consent” to employment with Chosen Sound. See Sagarino, 644 So.2d at 165 (citing Shelby Mut Ins. Co., 246 So.2d at 101, n. 5). Biggins testified that he was unaware of any relationship between Backstage and Chosen Sound. He testified that only a representative from Backstage had the authority to fire him, although he recognized that another subcontractor on the job could report inadequate work and ask him to be removed as a worker.

Chosen Sound argues that Biggins’s knowledge and consent to his special employment was implied by his acceptance of direction from Chosen Sound. See Rumsey v. E. Distrib., Inc., 445 So.2d 1085, 1086 (Fla. 1st DCA 1984) (citing 1C Larson, Law of Workmen’s Compensation § 48.00 (1982)) (recognizing that “the requisite consent to employment ‘may be implied from the employee’s acceptance of the special employer’s control and direction’ ”). Biggins testified that he knew the work he was doing was the work Chosen Sound was supposed to be doing, and that his job with Backstage was simply to “follow the instructions of whoever was in charge of the lighting and electrical on any given job.” However, Biggins’s acceptance of direction from Chosen Sound does not establish that he consented to a contract for hire. See Austin v. Duval County Sch. Bd., 657 So.2d 945, 950 (Fla. 1st DCA 1995) (explaining that employee’s acceptance of direction from another employer is insufficient to demonstrate the employee knowingly entered into a contract of hire with that employer).

Thus, Chosen Sound failed to establish conclusively that an express or implied contract for hire existed between Chosen Sound and Biggins, or that Biggins consented to employment with Chosen Sound. It is clear from Biggins’s testimony that summary judgment is inappropriate because a trier of fact could conclude either that Biggins consented to this employment, or that he did not consent. See Smith v. Greg’s Crane Serv., Inc., 576 So.2d 814, 815-16 (Fla. 4th DCA 1991) (holding that summary judgment on the issue of whether an injured worker is a borrowed servant is inappropriate where “the undisputed facts could support two conclusions or inferences by the trier of fact”).

Factor Two: Work is Essentially that of Special Employer

The second prong of the borrowed servant test considers whether the work being done at the time of the injury was essentially that of the special employer. Sagarino, 644 So.2d at 165 (citing Shelby Mut. Ins. Co., 246 So.2d at 101, n. 5). Biggins claims that Chosen Sound’s only responsibility was to provide sound and lighting equipment to the concert site. However, this claim is contradicted by the evidence, as Chosen Sound points out. George Perley of Fantasma testified that “the lighting and sound company provides a crew to operate that equipment and supervises the setup.” Robert Hardtke of Chosen Sound testified that the lighting technician’s responsibilities include “setting up the gear for the band.” Further, Biggins confirmed that the work he was performing was essentially that of Chosen Sound.

Accordingly, Chosen Sound established that Biggins was performing work that was essentially the responsibility of Chosen Sound.

Factor Three: Power to Control Details of Work

The third factor of the borrowed servant test asks whether the special employer had the power to control the details of the work performed. Sagarino, 644 So.2d at 165 (citing Shelby Mut. Ins. Co., 246 So.2d at 101, n. 5). Chosen Sound argues here that the evidence shows conclusively that Chosen Sound had control over the work Biggins was performing at the time of the accident. Chosen Sound relies on Biggins’s testimony that he would “follow the instructions of whoever was in charge of the lighting and electrical on any given job,” and that he was directed by Chosen Sound “the entire time [he] was there.” Garrett Jones, a lighting technician for Chosen Sound, testified that Big-gins was helping him set up the lighting equipment at the time of the accident, he was supervising Biggins the entire time, and he never saw Biggins performing any functions unrelated to the setup of the lighting equipment.

However, as Biggins correctly argues, direction of the work to be performed and roles in assisting the employee’s performance are insufficient to prove control. See Gen. Crane, Inc. v. McNeal, 744 So.2d 1062, 1064-65 (Fla. 4th DCA 1999) (concluding that the special employer’s direction of the work to be done, and its employees’ roles in assisting the borrowed servant are insufficient to prove control by the special employer). Further, the record does not establish that Chosen Sound controlled Biggins’s day-to-day activities, compensated him for work performed, or had the power to terminate his employment. Rafael Niemtsehik, a manager with Backstage, testified that a Backstage crew chief organizes the workers and instructs the employees to perform specific tasks. When another subcontractor on the site needs labor, the subcontractor speaks with the crew chief who then designates qualified employees for the task. The testimony of Perley from Fantasma and Jones from Chosen Sound corroborates Niemtschik’s testimony. Perley testified that the Backstage crew chief directs the stagehands. Jones testified that Backstage’s crew chief is responsible for making sure the workers know their assignments and is in charge of the workers.

Therefore, Chosen Sound did not establish conclusively that it had the power to control the details of Biggins’s work. Further, the evidence concerning the roles of Chosen Sound and Backstage in directing Biggins’s work gives rise to conflicting inferences, which precludes summary judgment. See Smith, 576 So.2d at 815-16.

Help Supply Services Company

Chosen Sound argues that because Backstage is a “help supply services company” under section 440.11(2), Florida Statutes (1999), then Chosen Sound is entitled to workers’ compensation immunity under section 440.11(1), Florida Statutes (1999), without regard for the three-part borrowed servant analysis. See, e.g., Derogatis, 892 So.2d at 1081 (citing § 440.11(2), Fla. Stat. (2000); Horn, 862 So.2d at 939-^40; Sagarino, 644 So.2d at 165) (advising that “[a] special employer may be immune from suit on the basis of the common law special employment relationship that is premised on the borrowed-employee doctrine or on the basis of the statutory special employment relationship”). Section 440.11(2), Florida Statutes (1999), provides: ‘

The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer’s business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer. The employer shall be liable for and shall secure the payment of compensation to all such borrowed employees as required in s. 440.10, except when such payment has been secured by the help supply services company.

A “help supply services company” is defined by OSHA Standard Industry Code Industry Number 7363, as:

Establishments primarily engaged in supplying temporary or continuing help on a contract or fee basis. The help supplied is always on the payroll of the supplying establishments, but is under the direct or general supervision of the business to whom the help is furnished.

Sagarino, 644 So.2d at 165.

There is no evidence that conclusively establishes that Backstage is a help supply services company. While Backstage might arguably be “primarily engaged in supplying temporary or continuing help on a contract or fee basis,” whose employees are always on its payroll, but “under the direct or general supervision of the business to whom the help is furnished,” the case law suggests that Backstage does not meet the definition of a help supply services company, on the facts of this case. Each of the cases cited by Chosen Sound interprets section 440.11(2) to apply to companies hiring workers through temporary employment agencies or employee leasing companies. Further, in each of these cases, the employer had an express contractual arrangement with the company supplying the employees. See, e.g., Folds v. J.A. Jones Constr. Co., 875 So.2d 700 (Fla. 1st DCA 2004); Watson v. Job Corp., 840 So.2d 367 (Fla. 3d DCA 2003); Caramico v. Artcraft Indus., Inc., 727 So.2d 348 (Fla. 5th DCA 1999); Maxson Constr. Co. v. Welch, 720 So.2d 588 (Fla. 2d DCA 1998). In dicta, this Court has commented that the definition of a help supply services company should be limited to situations involving day labor pools. Sagarino, 644 So.2d at 165. Here, there is conclusive evidence that Backstage and Chosen Sound had no express contractual relationship. Also, there is no conclusive evidence that Backstage is a day labor pool, a temporary employment agency, an employee leasing company, or a help supply services company, for that matter. See Derogatis, 892 So.2d at 1083 (refusing to affirm summary judgment in favor of alleged special employer absent conclusive evidence that a company contracting with a hospital to provide laparoscopic surgical equipment and corresponding support services qualified as a help supply services company).

We reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

STONE and SHAHOOD, JJ., concur.

      . Section 440.10(l)(e), Florida Statutes, has since been amended to provide that these subcontractors are protected by the exclusiveness-of-liability provisions of section 440.11 provided that: "1. The subcontractor has secured workers’ compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees in accordance with paragraph (b); and 2. The subcontractor’s own gross negligence was not the major contributing cause of the injury.” See § 440.10(l)(e), Fla. Stat. (2006).

      . The trial court does not indicate the basis for its grant of summary judgment in its order, or in the hearing transcript.


source: Caselaw Access Project

author: LEWIS, TERRY P., Associate Judge.

license: Public Domain

text:
    Peter MADERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2800.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   LEWIS, TERRY P., Associate Judge.

The appellant pled no contest to charges of trafficking in MDMA, conspiracy to traffic in MDMA, and delivery of MDMA, reserving his right to appeal the trial court’s denial of his motion to dismiss. The motion asserted that, on the undisputed facts, he was entrapped as a matter of law. We agree and reverse.

Both the appellant and the appellee have raised certain procedural deficiencies in the motion and in the traverse, none of which were raised below and none of which will be considered here. Instead, we focus on what allegations were not specifically denied by the State, and thus were admitted for purposes of the motion to dismiss, and whether those facts constitute entrapment as a matter of law. See State v. Patlon, 443 So.2d 346, 348 (Fla. 2nd DCA 1983).

The State argues that because it denied that the Defendant lacked a predisposition to commit the crime, a material issue of fact was in dispute and thus, the motion was properly denied. This argument, however ignores the distinction between a subjective and objective theory of entrapment. In the former, a predisposition to commit the crime will defeat the affirmative defense of entrapment. In the latter, predisposition is not an issue. Rather, the question is whether the conduct of law enforcement was so egregious as to violate the due process rights of the defendant. See Munoz v. State, 629 So.2d 90, 99 (Fla.1993); State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985); Curry v. State, 876 So.2d 29, 30 (Fla. 4th DCA 2004).

The facts alleged in the motion that were not specifically denied by the state include the following: The defendant was 37 years old with absolutely no criminal history, unknown to law enforcement officers, and gainfully employed in lawful activity at the time the confidential informant first approached him. The defendant became romantically interested in the Cl and she led him to believe that she was similarly interested in him. She first brought up the topic of illegal drug use and continually asked the defendant if he knew where to buy drugs or if he could obtain drugs for her. The defendant repeatedly told her that he did not use or sell illegal drugs, and that, being new to the area, he did not know anyone who used or sold drugs.

The Cl made promises of an intimate relationship, to include sexual relations, if the defendant would assist her in obtaining drugs. She discussed her personal medical problems with the defendant and played on his sympathy, indicating that she needed the drugs to cope with the pain and the stress of cancer. The Cl was herself a convicted drug trafficker who had recently received a below guidelines suspended sentence and probation. Unbeknownst to the defendant at the time, the Cl was involved in similar transactions with several other individuals, whom she also pretended to befriend.

The facts in this case are remarkably similar to those in Curry, 876 So.2d at 30, in which we found the conduct of law enforcement so egregious as to constitute a violation of due process and thus, objective entrapment. The conduct in that case was described as follows:

The record demonstrates that the Cl approached Curry sometime before the detective was involved with any investigation. The Cl encouraged a romantic relationship with Curry involving sexual activity. The Cl also gave Curry money to help pay her mortgage. When the Cl asked her to help him sell cocaine, she said no. It was only after an abundance of phone calls from the Cl, and later the detective, that she acquiesced. The Cl provided the cocaine and repeatedly met with Curry at her place of employment. In sum, there was no crime without the Cl’s prodding and improper conduct, which rose to the level of egregious. For this reason, Curry’s due process rights were violated. The trial court should have found entrapment as a matter of law and granted the motion to dismiss.

Id. at 31.

Similarly, in this case, there would have been no crime without the Cl’s prodding and improper conduct. At the time, the Defendant was gainfully employed at a lawful occupation, had no prior criminal history, and was not even suspected of criminal activity. The Cl was used here, not to detect crime, but to manufacture it. Thus, as in Curry, we find that the Defendant’s due process rights were violated by this egregious conduct and that he was objectively entrapped as a matter of law.

Accordingly, the judgment and sentence are hereby reversed with directions to set them aside and grant the motion to dismiss.

Reversed and Remanded.

FARMER and SHAHOOD, JJ., concur.


text:
    Mark LINDSEY and Laurie Ann Lindsey, Appellants, v. BELL SOUTH TELECOMMUNICATIONS, INC., Hennessy Industries, Inc., and Liberty Mutual Fire Insurance Company, Appellees.
    No. 4D05-4277.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Robert Garven, Coral Springs, for appellants.
    Wendy F. Lumish and Cristina Alonso of Carlton Fields, P.A., Miami, for Appel-lee-Hennessy Industries, Inc.
   LEWIS, TERRY P., Associate Judge.

This is an appeal of a final summary judgment entered in favor of the Appellee Hennessy Industries, Inc. (“Hennessy”), the manufacturer of a tire changing machine. The appellants claim that the machine was defective and that the defect was a legal cause of injury to appellant Mark Lindsey. Because there were disputed issues of material fact, we hold that the trial court erred in entering summary judgment.

In his work as a vehicle mechanic, Mark Lindsey used a tire changing machine manufactured by the appellee. The machine worked by using a rim clamp to dismount the tire from the rim as the machine rotated the tire. It was supposed to be able to handle tires with a rim diameter of up to 20 inches.

However, Lindsey had problems using the machine on 19 inch or 19.5 inch tires. Specifically, the machine did not have the power to break the bead on those tires and roll the tire off the rim. The machine would just turn the wheel a few inches and stop. The appellant discovered that by inserting a tire iron in the spoke of the tire to help it along, he could get the machine to rotate and remove the tire from the rim. Lindsey’s employer had received complaints from other employees about the difficulty of changing 19 and 19.5 inch tires with the machine, and had received reports that some assistance was needed to help the machine along. The employer did not know of any other employees using a tire iron for this purpose, but he was aware of a vendor doing so.

On May 7, 2001, Lindsey was using the bar to help the tire along when the bar slipped and he almost fell over. He felt a stabbing pain in his low back, filled out a report with his employer and then went to the hospital. He was diagnosed with a herniated disk at L4-5 and L5-S1 and required a laminectomy at two levels. The appellants assert that it was a jury question as to whether this injury was caused by the negligent design or manufacture of the machine. We agree.

A trial court order granting summary judgment is reviewed de novo. St Fort v. Post, Buckley, Schuh & Jernigan, 902 So.2d 244, 248 (Fla. 4th DCA 2005). A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom summary judgment is sought. Moore v. Morris,- 4.75 So.2d 666, 668 (Fla.1985). Movants for summary judgment in a negligence case face an especially high burden. See St. Fort, 902 So.2d at 248; Deese v. McKinnonville Hunting Club, Inc., 874 So.2d 1282, 1286 (Fla. 1st DCA 2004).

Hennessy argues that summary judgment was proper for two reasons: (1) appellants presented no record evidence that the product was defective when it was sold; (2) assuming the product was defective, the record evidence established that the injury was not caused by the defect, but was solely attributable to Lindsey’s misuse or modification of the machine via the tire iron.

As to the first point, there was clearly record evidence to support a conclusion that the machine was defective, i.e., that it would not perform as represented. Hennessy argues, however, that such malfunction could be attributable to a number of factors other than negligent design or manufacture of the product, including improper use of the machine, improper maintenance, or simply worn out parts. That is true, but it misses the point. It was Hennessy’s burden, in moving for summary judgment, to conclusively show from the record evidence that the product was not defective. The record evidence did not show conclusively that the defect in the product at the time of injury, as described by the appellant, was not present when it left the control of the manufacturer, and was attributable to some other factor.

Nor can we agree that the record evidence shows conclusively that any negligence on the part of the appellant, i.e., misuse or modification of the product, was the sole legal cause of his injury. Proximate causation consists of both cause in fact and foreseeability. Deese, 874 So.2d at 1287. As the Florida Supreme Court has explained:

The issue of proximate cause is generally a question of fact concerned with “whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” McCain, 593 So.2d at 502; see also Florida Power & Light Co. v. Periera, 705 So.2d 1359, 1361 (Fla. 1998). This Court has stated that “harm is ‘proximate’ in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question.” McCain, 593 So.2d at 503.

Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1116 (Fla.2005). “[0]ne who is negligent is not absolved of liability when his conduct ‘sets in motion’ a chain of events resulting in injury to the plaintiff.” Gibson v. Avis Renh-A-Car Sys., Inc., 386 So.2d 520, 522 (Fla.1980) (quoting Sardell v. Malanio, 202 So.2d 746, 747 (Fla.1967)).

Hennessy argues that Lindsey’s action in using the metal bar to help the tire along was an intervening cause of the injury. “A negligent actor ... is not liable for damages suffered by an injured party ‘when some separate force or action is the active and efficient intervening cause’ of the injury.” Goldberg, 899 So.2d at 1116 (quoting Gibson, 386 So.2d at 522). It is only when an intervening cause is completely independent of, and not in any way set in motion by, the tortfeasor’s negligence, however, that the intervening cause will relieve a tortfeasor from liability. Deese, 874 So.2d at 1282.

The key question is one of foreseeability. As the Florida Supreme Court in Goldberg stated:

The proper question is whether the individual’s conduct is “so unusual, extraordinary or bizarre (i.e., so ‘unforeseeable’) that the policy of the law will relieve the [defendant] of any liability for negligently creating this dangerous situation.” Salas, 511 So.2d at 547.

899 So.2d at 1116.

The circumstances under which a court may resolve proximate cause as a matter of law are extremely limited. St. Fort, 902 So.2d at 250. If reasonable people could differ as to whether the facts establish proximate causation (i.e., whether the specific injury was genuinely foreseeable or an improbable freak occurrence), the issue must be left to the fact finder. Goldberg, 899 So.2d at 1116; St. Fort, 902 So.2d at 250.

This is not one of those rare cases where only one reasonable inference is possible. A jury could easily find that Lindsey’s actions were set in motion by Hennessy’s negligence and were not any sort of bizarre or freakish reaction to the stalling of the machine.

Accordingly, the final summary judgment is reversed and the case remanded for further proceedings consistent with this opinion.

Reversed and Remanded.

GUNTHER and SHAHOOD, JJ., concur.


author: GRIFFIN, J.

text:
    Carl D. MEINTZER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2649.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.
    Carl D. Meintzer, Jr., Jasper, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Carl Meintzer, Jr., appeals the summary denial of his Rule 3.850 motion for post-conviction relief. We conclude that the trial court lacked jurisdiction to enter the appealed order and that it must be vacated.

Meintzer was charged in Orange County Case No. 48-2002-CF-005651 with attempted second degree murder and aggravated battery. After a jury trial, he was found guilty of aggravated battery and was sentenced on April 2, 2003, to eight years incarceration followed by five years probation. His judgment and sentence were affirmed on appeal. Meintzer v. State, 865 So.2d 659 (Fla. 5th DCA 2004).

Meintzer later filed a petition alleging ineffective assistance of appellate counsel, which was granted on May 11, 2006 (Case No. 5D06-210). The new appeal is currently pending in this court. (Case No. 5D06-1896).

Meintzer filed his 3.850 motion for post-conviction relief on January 21, 2005, before this court granted the petition alleging ineffective assistance of appellate counsel. However, the trial court did not enter an order denying the 3.850 motion until June 15, 2006, after this court allowed the second appeal.

The trial court is divested of jurisdiction upon the filing of a notice of appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court. See Daniels v. State, 712 So.2d 765 (Fla.1998) (trial court lacks jurisdiction to rule on 3.850 motion during pendency of direct appeal); Cross v. State, 930 So.2d 863 (Fla. 2d DCA 2006); Carter v. State, 929 So.2d 1161 (Fla. 5th DCA 2006) (where defendant received belated appeal of sentence, trial court lacked jurisdiction to rule on 3.850motion attacking the same sentence); Johnson v. State, 657 So.2d 11 (Fla. 2d DCA 1995) (trial court lacks jurisdiction to consider the merits of a Rule 3.850 motion while the direct appeal of the defendant’s judgment and sentence is pending). Because Meintzer is attacking the same judgment in the pending appeal and in his Rule 3.850motion, the trial court lacked jurisdiction to rule on the 3.850 motion once the belated appeal was granted and the circuit court had notice of the new appeal. It does not matter that defendant filed the 3.850motion before this court granted his petition alleging ineffective assistance of appellate counsel, since the trial court did not rule on the 3.850 motion until after this court had reacquired appellate jurisdiction over the case. We surmise that the trial judge assigned must not actually have been aware of the pending belated appeal even though the clerk of the circuit court had been given notice by this court. Rather than complete work on the pending Rule 3.850 motion, the trial court should have abated the 3.850 motion until we dispose of the current appeal. If we ultimately reverse the judgment, the 3.850 motion would become moot.

The State acknowledges that once this court granted the second direct appeal, the trial court was divested of jurisdiction to rule on the post-conviction motion. However, the State suggests that this court should dismiss the appeal for lack of jurisdiction, reasoning that, since the trial court’s order is a nullity, any decision that affirms or reverses the trial court’s order is also a nullity.

In Daniels, the supreme court held that an order entered without jurisdiction is a nullity, and consequently, a decision by the appellate court that affirms or reverses the trial court’s order is also a nullity. However, that holding was in reference to a district court decision that had affirmed a void order on the merits. The supreme court remanded the case with specific instructions to the district court to vacate the order. Accord Merrill v. State, 909 So.2d 519 (Fla. 5th DGA 2005) (where this court vacated an appealed order which was a nullity). In Carter, this court vacated the void order and then dismissed the appeal.

ORDER VACATED; APPEAL DISMISSED.

SAWAYA and EVANDER, JJ, concur.


author: PLEUS, C.J.

text:
    Kevin GALSTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-270.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.

      R.L. Dorough, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, C.J.

Kevin Galston appeals his conviction for driving while his license was permanently revoked, in violation of section 322.341, Florida Statutes (2005). He argues that because he was not driving on a “highway” as defined in section 322.01(38), Florida Statutes (2005), the trial court erred both in the denials of his motions to dismiss and for judgment of acquittal. He also argues that the trial court improperly modified the standard jury instruction defining the term “highway” by adding language from section 633.021(12), Florida Statutes (2005). We agree and reverse.

In April 2005, a Florida Fish and Wildlife Commission officer observed Galston fishing and then driving on the premises of the Richloam State Fish Hatchery, which was closed to the public during a construction project. He was charged with driving while license permanently revoked and fishing without a license. He does not appeal his conviction for fishing without a license.

Galston filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), alleging that the “construction site upon which the Defendant was driving was not open to the public for purposes of vehicular traffic.”

At a hearing on this motion, the court allowed testimony from two defense witnesses. Richard Stout, the manager of the fish hatchery, testified that prior to January 2004, the hatchery had been open to the public for purposes of vehicular traffic. However, when construction began in January 2004, the hatchery property was closed to the public. The construction company erected no trespassing signs prohibiting entry by the general public at the only entrance to the property.

Stout also testified that during construction, vehicular traffic could travel to the hatchery office and to two residences located within the hatchery property. We disagree with the State’s position that this evidence establishes that the hatchery property was “open to the public for the purposes of vehicular traffic.”

Scott Watson, construction manager of the project at the hatchery, testified that construction began in 2004 and was scheduled to be completed in June 2006. The construction company posted signs at the entrance to the property designating the property as a construction site and requiring all visitors to check in at the office. Watson testified that Galston was employed by the construction company as a pipe foreman on the project, but he was unsure as to whether Galston was on the job at the time he was stopped, which was a Saturday about 12:10 p.m.

The prosecutor urged the court to consider section 633.021(12), Florida Statutes (2005), which stated:

“Highway” means every way or place of whatever nature within the state open to the use of the public, as a matter of right, for purposes of vehicular traffic and includes public streets, alleys, roadways, or driveways upon grounds of colleges, universities, and institutions and other ways open to travel by the public, notwithstanding that the same have been temporarily closed for the purpose of construction, reconstruction, maintenance, or repair. The term does not include a roadway or driveway upon grounds owned by a private person.

(Emphasis added). Apparently relying on this statute, the court denied Galston’s motion to dismiss, noting testimony that the location was a “public access road” with a “temporary stop for construction.”

At trial, Officer Mark Bashard testified that on April 30, 2005, he observed Galston fishing and then driving on a fishery pathway. Galston did not have a fishing license or a driver’s license. Galston told Bashard he was off work and was heading home. Bashard confirmed that the following signs were posted at the property entrance: “Visitors must sign in at the trailer,” “No Trespassing” and “No Fishing.”

Galston moved for judgment of acquittal on the ground that the evidence showed only that Galston was driving in a closed construction area that was not open to the public. The court ruled that the issue of whether the road was open or closed to the public was for the jury to decide.

The defense called fishery manager Stout and construction manager Watson. Consistent with their testimony in the hearing on the motion to dismiss, they indicated that the fishery property had been closed to the public since construction began in January 2004. When construction began, the contractor erected signs indicating that it was a closed construction site.

The trial court announced that it had crafted a special instruction defining the term “highway” as follows:

Highway means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel, notwithstanding that the same has been temporarily closed for the purpose of construction, reconstruction, maintenance or repair.

Defense counsel objected to the instruction on the ground that it did not correctly state the law. The jury found Galston guilty as charged by driving while his license was permanently revoked and fishing without a license.

On appeal, Galston argues that the trial court erred by denying his motion to dismiss because the court erroneously relied on the definition of the term “highway” contained in section 633.021(12), Florida Statutes (2005). Galston argues that the correct definition of the term “highway” is contained in section 322.01(38), Florida Statutes (2005). That subsection states:

(38) “Street or highway” means the entire width between the boundary lines of a way or place if any part of that way or place is open to public use for purposes of vehicular traffic.

A de novo standard applies for reviewing the denial of a motion to dismiss pursuant to Rule 3.190(c)(4). State v. Massey, 873 So.2d 494 (Fla. 5th DCA 2004). That rule allows the defendant to file a motion to dismiss if “[tjhere are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.”

The State filed a demurrer stating that it “denies the facts as alleged by the defendant in paragraphs ... 3 ... of defendant’s motion.” This denial was not specific, and therefore was not sufficient to dispute Galston’s factual allegations. Rule 3.190(d) states and State v. Kalogeropolous, 758 So.2d 110, 112 (Fla.2000), holds that Rule 3.190(d) requires the State to specifically deny factual allegations and if necessary, add additional material facts that meet the minimal requirement of a prima facie case.

The State argues that Galston waived this issue by arguing that “it appears technically that the motion to dismiss should have been denied on the demurrer and the traverse.... ” However, Galston qualified that argument, stating “the parties apparently agreed to take testimony and allowed the court to rule on the motion to dismiss. Nothing in the testimony of Richard Stout or Scott Watson contradicted Galston’s allegation that the area in question was a closed construction site and not a road open to the public. Both testified that the area was closed to the public and had signs posted at the entrance designating the area as a closed construction site.

Despite the undisputed allegations and testimony that the road was closed to the public, the trial court relied on section 633.021(12), Florida Statutes (2005), and found that the area was a highway that was temporarily closed for construction. This was error because section 633.021(12) does not apply. The term “highway” in section 322.341 is specifically defined in section 322.01(38). Under this definition, the trial court should have granted Gal-ston’s motion to dismiss because the State failed to specifically deny his allegation that the area was closed to the public or allege additional facts showing that the area was open to the public. Kalogeropo-lous.

The definition of the term “highway” in section 633.021(12) is significantly different from the one found in section 322.01(38). While both refer to ways and places for “use of the public” or “public use,” section 633.021(12) broadens the application of the term to such ways and places even if they are “temporarily closed for construction, reconstruction, maintenance or repair.” Section 633.021(12) is in the insurance code, not the criminal code. In Abreu v. Lloyd’s, London, 877 So.2d 834 (Fla. 3d DCA 2004), the Third District Court noted the “broad scope” of this definition, applying it to construe the ambiguous policy term “open highway” liberally in favor of coverage. Id. at 835.

The definition in section 633.021(12) does not apply in the instant case because the Legislature expressly limited its use to the term “highway” “as used in this chapter,” meaning Chapter 633. § 633.021, Fla. Stat. (2004) (emphasis added). In similar fashion, the Legislature expressly directed that the definition of “highway” found in section 322.01(38) shall be used to define the term “highway” as used in section 322.341. Thus, the Legislature expressly prohibited the use of the definition in section 633.021(12) to define the term “highway” in section 322.341.

Even if the definition in section 322.01(38) was ambiguous or incomplete, the rule of lenity precludes the trial court’s application of the section 633.021(12) definition. Any ambiguity in a criminal statute must be construed in favor of the defendant. § 775.021(1), Fla. Stat. (2006).

In essence, the trial court added language from section 633.021(12) to the definition in section 322.01(38). This additional language broadened the definition of “highway” to favor the State and prejudice the defendant. Such action violated the expressly stated directives of the Legislature regarding the use of such definitions and violated the rule of lenity. Accordingly, the trial court should have granted Galston’s motion for judgment of acquittal. The evidence at trial was undisputed that the area in which Galston was driving was closed to the public.

The State cites to State v. Tucker, 761 So.2d 1248 (Fla. 2d DCA 2000), for the proposition that the question of whether a highway is open to public use by vehicles is one of fact to be resolved by the jury. In Tucker, the appellate court reversed the dismissal of a felony driving while license suspended charge. The defendant argued that he had not committed a crime because he was in a private parking lot. The appellate court disagreed, noting that prior cases had held that the definition of the term “highway” in section 322.01(38) included parking lots open to public use by vehicles even though they were private. Consequently, the court concluded that a material fact issue remained “as to whether the parking lot was a place open to public use for purposes of vehicular traffic.” Id. at 1249.

The instant case is distinguishable, both factually and legally. Factually, there is no dispute in the instant ease that the road was closed to public use. Galston alleged that it was closed and his witnesses testified that it was closed. The issue in the instant case was not the factual issue of whether the road was open but the legal issue of whether the definition of the term “highway” should include roads “temporarily closed for construction, reconstruction, maintenance or repair.” Thus, Tucker does not control.

Finally, Galston argues that the trial court erred in modifying the standard jury instruction to add the language in section 633.021(12), because the resulting instruction was an incorrect statement of the law. While a trial court is free to modify the standard instructions to fit the facts of a particular case, it is not free do so if such modification would materially change the applicable law. Carpenter v. State, 785 So.2d 1182, 1200 (Fla.2001).

The trial court relied on State v. Lopez, 633 So.2d 1150 (Fla. 5th DCA 1994), as authority to allow it to modify the standard instruction on the definition of the term “highway.” Lopez did not involve a jury instruction, nor does it support the trial court’s definition. Instead, Lopez simply held that the definition of the term “highway” found in section 322.01(38) included parking lots in “malls, industrial parks and similar areas” because those areas were “heavily traveled” and “open to the public” even though they were privately owned. Id. at 1151. Thus, Lopez did not expand the definition in section 322.01(38). It simply applied it to the facts of that case.

Accordingly, we reverse and remand with instructions to discharge Galston on the charge of driving while his license was permanently revoked.

REVERSED AND REMANDED.

LAWSON and EVANDER, JJ., concur.

      . This section has been renumbered as section 633.021(13), Florida Statutes (2006).

      . We have considered the State's argument that Galston failed to renew his motion for judgment of acquittal at the close of the evidence, implying that the argument was not preserved for appeal. However, it is no longer necessary for a defendant to renew a motion for judgment of acquittal at the close of the evidence. It is sufficiently preserved if made at the close of the State's case. Brooks v. State, 762 So.2d 879, 895 n. 18 (Fla.2000).


author: SAWAYA, J.

text:
    Hector RIVERA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2606.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.
    Hector Rivera, Daytona Beach, pro se.
    No Appearance for Respondent.
   SAWAYA, J.

Hector Rivera entered a plea and was sentenced on July 15, 2001. He did not file a direct appeal. Now, in his sworn petition for belated appeal, Rivera alleges that when the trial judge informed him of his right to appeal, he immediately requested his attorney to “file the necessary appeal notice.” He states, under oath, that he “has just recently discovered that counsel never timely filed his notice of appeal.” Our records establish, however, that Rivera is well aware that this is an untrue statement. In fact, Rivera has known for more than three years that there was no direct appeal, as shown by his appeal of the denial of his rule 3.850 motion from June 2003. Rivera v. State, 879 So.2d 642 (Fla. 5th DCA 2004). Rivera’s failure to take a direct appeal was stated in that sworn motion and reiterated in his pro se brief filed here in this court. The trial court also noted this fact in its order of denial.

We also note that Rivera’s petition is untimely by three years. The time for making a belated appeal request expired in August 2003. Because he knew there was no direct appeal, Rivera clearly does not fit into the two-year time limit exception stated in Florida Rule of Appellate Procedure 9.141(c)(4)(A) (allowing exception to time limit if petitioner “was unaware an appeal had not been timely filed or was not advised of the right to an appeal” and the petitioner “should not have ascertained such facts by the exercise of reasonable diligence”).

Faced with these facts, this court issued an order to Rivera to show cause why he should not be sanctioned for perjury based upon the conflicting allegations he made in 2003 and 2006. This court has now received the unsworn response. Among other excuses, Rivera blames the prisoner who helped him prepare his petition. However, he admits that he did sign the factually incorrect belated appeal petition.

In light of the patent evidence of perjury, and to protect the sanctity of the court proceedings, this court not only denies Rivera’s petition, but also imposes the sanction of section 944.279(1), Florida Statutes, which states in pertinent part:

A prisoner who is found by a court to have ... knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The court shall issue a written finding and direct that a certified copy be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09.

Accordingly, we direct the Clerk of this court to forward a certified copy of this opinion to the Tomoka Correctional Institution for the consideration of disciplinary procedures pursuant to section 944.279(1), Florida Statutes (2005), and request that a copy of the disposition report be forwarded to this court and the attorney general’s office.

We conclude by emphasizing that “[tjhis court receives many petitions for belated appeal, yet the allegations petitioners have to make are very minimal. Petitioners should not be allowed to cavalierly lie to this court-” Svoboda v. State, 932 So.2d 545, 546 (Fla. 5th DCA 2006). We have not suffered dishonesty lightly in the past, Nixon v. State, 921 So.2d 819 (Fla. 5th DCA 2006); Miller v. State, 917 So.2d 261 (Fla. 5th DCA 2005), and we will not relax our intolerance now.

PETITION DENIED.

GRIFFIN and MONACO, JJ„ concur.


author: PER CURIAM.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. A.C. and J.B., Sr., Parents of S.B., etc., Appellee.
    No. 5D06-1846.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.
    Jodi Abramowitz, of Department of Children Family Services, Daytona Beach, for Appellant.
    No Appearance for Appellee.
    Thomas Wade Young, Orlando, for Guardian ad Litem Program.
   PER CURIAM.

The Department of Children and Family Services appeals from an order denying its petition to terminate appellees’ parental rights. The record reflects that DCF presented substantial evidence which, if fully accepted by the trial judge, would clearly have supported the granting of its petition. However, it is the role of the fact-finder to resolve conflicts in the evidence and to weigh the credibility of witnesses. AD. v. Dep’t of Children & Families, 837 So.2d 1078, 1080 (Fla. 5th DCA 2003). An appellate court cannot question the trial court’s assessment of the witness’ credibility nor substitute its judgment for the trier of fact. Declet v. Dep’t of Children and Families, 776 So.2d 1000, 1001 (Fla. 5th DCA 2001).

AFFIRMED.

PLEUS, C.J., LAWSON and EVANDER, JJ., concur.


text:
    Marvin DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3893.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.
    Marvin Davis, Bushnell, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Petitioner, a prisoner appearing pro se, seeks a writ of habeas corpus, claiming he is entitled to immediate release because a prison sentencing specialist has incorrectly determined his tentative release date. Petitioner claims that he was sentenced to 15 years incarceration in May 1991, with jail credit of 146 days. Petitioner therefore claims that the sentence should have fully expired in the year of 2006. However, Petitioner’s sentence has been extended to the year 2009 by DOC and the Florida Parole Commission, which Petitioner contends is an alteration of a judicially-imposed sentence without legal authority.

Petitioner admits that he was placed on control release in 1994 and conditional release in 2004, and both his control release and conditional release were revoked, in 1998 and 2005, respectively. Upon return to prison, DOC is allowed to forfeit gain time that was earned prior to being placed on control release or conditional release. See §§ 947.141(6), 948.06(7), Fla. Stat. (2006); see also Frederick v. McDonough, 931 So.2d 1005 (Fla. 3d DCA 2006). Moreover, the time that Petitioner spent on control release and conditional release does not have to be credited against the sentence when petitioner is returned to prison. See Rivera v. Singletary, 707 So.2d 326 (Fla.1998) (parole commission has broad authority to grant or deny releasee credit for time spent on conditional release); Gay v. Singletary, 700 So.2d 1220 (Fla.1997) (releasee not entitled to credit towards sentence for time spent under control release supervision). Therefore, a 15-year sentence that was imposed in 1991 could well exceed the year 2006, as petitioner was not in prison for that entire 15-year period.

The tentative release date for Petitioner is November 9, 2009, as evidenced by the sentencing specialist’s report attached to the petition, so Petitioner has not shown a clear entitlement to immediate release. As he has not shown a clear entitlement to immediate release, Petitioner should pursue his administrative remedies before seeking relief in the courts. See Fisher v. Moore, 789 So.2d 431 (Fla. 4th DCA 2001) (no error in dismissing habeas petition which claimed that DOC and Parole Commission improperly structured consecutive sentences, where defendant had failed to exhaust administrative remedies); Reed v. Moore, 768 So.2d 479 (Fla. 2d DCA 2000) (petition for writ of mandamus or habeas corpus regarding eligibility for gain time was properly denied where available administrative remedies had not been exhausted).

PETITION DENIED.

GRIFFIN, PALMER and TORPY, JJ., concur.


author: CANADY, Judge.

text:
    FLORIDA INSTITUTE FOR NEUROLOGIC REHABILITATION, INC., Appellant, v. Una MARSHALL and Russell Lieux, as co-personal representatives of the Estate of Michael Lieux, deceased, Appellees.
    No. 2D05-2393.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.

      Sylvia H. Walbolt, Robert E. Biasotti, and Christopher J. Kaiser of Carlton Fields, P.A., St. Petersburg, for Appellant.
    Shea Moxon of Swope, Rodante P.A., Tampa, for Appellees.
   CANADY, Judge.

The Florida Institute for Neurologic Rehabilitation, Inc. (FINR) appeals a judgment in a wrongful death case arising from the death of Michael Lieux (Lieux), who was a resident of FINR’s facility in Har-dee County for the long-term care of brain-injured individuals. Lieux’s death occurred shortly after he was subdued and held in a prone position on the floor by FINR’s employees who used a physical restraint technique called “therapeutic containment.” In the wrongful death action brought by Lieux’s parents, the appel-lees, Una Marshall and Russell Lieux, as co-personal representatives of their son’s estate, the jury awarded damages of $2.5 million to each of Lieux’s parents for their past mental pain and suffering sustained as a result of their son’s death. The jury rejected the parents’ claim for punitive damages.

FINR raises several issues concerning evidentiary rulings of the trial court as grounds for reversing the judgment and ordering a new trial. First, FINR argues that the trial court erred in permitting the jury to consider evidence of the medical examiner’s opinion that the manner of Lieux’s death was homicide. Second, FINR argues that once the medical examiner’s opinion that the death was a homicide had been admitted, the trial court erred in excluding testimony by law enforcement officials that Lieux’s death was not a homicide. Third, FINR contends the trial court erred in permitting the plaintiffs to present certain evidence of FINR’s alleged negligence at other times. Fourth, FINR contends that the trial court erred in excluding certain medical records regarding Lieux from other facilities where Lieux had been a resident.

In considering the issues raised by FINR, we apply an abuse of discretion standard. “Rulings on evidentiary matters generally are within the sound discretion of the trial court. Discretion is abused only where no reasonable person would view the matter as the trial court did.” Ramirez v. State, 810 So.2d 836, 852 n. 51 (Fla.2001) (citation omitted). The trial court’s exercise of discretion in admitting or excluding evidence “must be viewed in the context of the entire trial.” Jimenez v. Gulf & W. Mfg. Co., 458 So.2d 58, 59 (Fla. 3d DCA 1984).

To prevail in its appeal, FINR must not only establish that the trial court abused its discretion but also show that the trial court’s error was harmful. An appellate court may “set aside or reverse a judgment, or grant a new trial on the basis of [improperly] admitted or excluded evidence” only “when a substantial right of the party [appealing] is adversely affected.” § 90.104(1), Fla. Stat. (2006). In order for an appealing party to be successful in a challenge to a judgment based on “the improper admission or rejection of evidence,” the appellate court must conclude “after an examination of the entire case ... that the error complained of has resulted in a miscarriage of justice.” § 59.041, Fla. Stat. (2006). In a civil case, an error is reversible — that is, harmful error — where “it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed.” Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979).

We conclude that FINR has failed to establish that the trial court committed any error which requires reversal of the judgment. Without further comment, we reject FINR’s third point — concerning evidence of negligence at other times — and its fourth point — concerning medical records from other facilities — as grounds for reversal. For the reasons we explain below, we conclude with respect to FINR’s first and second points that the trial court did not abuse its discretion either in allowing the introduction of evidence of the medical examiner’s opinion concerning the manner of death or in excluding evidence of the opinion of law enforcement officials.

1. The Medical Examiner’s Opinion that the Manner of Death was Homicide

Prior to trial, FINR filed a motion in limine seeking the exclusion of evidence concerning the medical examiner’s opinion that the manner of Lieux’s death was homicide. The trial court denied the motion.

At trial, evidence concerning the medical examiner’s opinion was presented by way of the medical examiner’s testimony and the introduction of the amended death certificate. The evidence concerning the medical examiner’s opinion related not only to the manner of death but also to the cause of death. No objection was made by FINR with respect to the evidence concerning the cause of death. According to both the amended death certificate and the medical examiner’s testimony, the manner of Lieux’s death was “[h]omicide” and the cause of his death was “[p]ositional asphyxia.” In describing how the injury occurred, the amended death certificate stated: “Inappropriate restraining techniques.”

FINR argued in its motion in li-mine — as it does on appeal — that the opinion evidence concerning the manner of death fell within the scope of section 90.403, Florida Statutes (2003), which provides that “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury.” FINR cites Spradley v. State, 442 So.2d 1039 (Fla. 2d DCA 1983), for the proposition that “when a defense of accidental death is asserted, a medical examiner’s testimony that the death was a ‘homicide’ deprives the defendant of a fair trial.” FINR further contends that “when the Polk County Medical Examiner testified that Lieux’s death was a ‘homicide,’ the case was essentially over.” FINR’s position on this issue is based on its assertion that “ ‘[h]omieide’ is a highly charged word that is commonly understood to mean that a crime has been committed.” Thus, according to FINR, the admission of the evidence of the medical examiner’s opinion that the manner of Lieux’s death was a homicide was likely to lead the jury to believe that FINR — through its employees — had committed a crime. FINR contends that “[b]y telling the jury the death was a ‘homicide,’ [the medical examiner] told them that the death was not an ‘accident’ as FINR claimed.”

In common parlance, homicide means “a killing of a human being through human agency.” Webster’s Third New International Dictionary 1083 (1993); see also 7 Oxford English Dictionary 332 (2d ed.1989) (defining homicide as “[t]he action, by a human being, of killing a human being”). The legal meaning of homicide is no different. “ ‘The legal term for killing a [human being], whether lawfully or unlawfully, is “homicide.” There is no crime of “homicide.” ’ ” Black’s Law Dictionary 751 (8th ed.2004) (quoting Glanville Williams, Textbook of Criminal Law 204 (1978)). The existence of the legal categories of excusable homicide, see § 782.03, Fla. Stat. (2003), and justifiable homicide, see § 782.02; Fla. Std. Jury Instr. (Crim.) 7.1, makes clear that the term homicide does not denote criminality. The categories of justifiable and excusable homicide have long existed in the law. See William Blackstone, 4 Commentaries *177-78 (“Now homicide, or the killing any human creature, is of three kinds; justifiable, excusable, and felonious. The first has no share of guilt at all; the second, very little; but the third is the highest crime against the law of nature, that man is capable of committing.”). It is thus well established in the law — as well as in common usage— that homicide does not entail criminality.

It is thus also well established — both in common parlance and legal usage — that a homicide may be accidental. Indeed, a noncriminal homicide is noncriminal ordinarily because it is accidental. The human agency that precipitates the killing of a human being may be exercised by accident. “[B]y accident” is a central element in the definition of excusable homicide. § 782.03.

FINR’s argument regarding the use of the term homicide exploits a difference between the broad meaning of the term accident in its common and legal usage and its narrower meaning in the terminology used by medical examiners for classifying the manner of death. In describing the manner of death, a medical examiner chooses from five distinct categories: natural, accident, suicide, homicide, or undetermined. It is inherent in this classification scheme that the different classifications are mutually exclusive. Under this scheme, the meaning of homicide is the same as it is in common and legal usage, while the meaning of accident is more restrictive than in common and legal usage.

The primary definition of accident is “[a]n unintended and unforeseen injurious occurrence.” Black’s Law Dictionary 15 (8th ed.2004). Under the manner of death classification system, the manner of death is by accident when the death results from such an injurious occurrence and no human agency other than the agency of the deceased is involved. Accidents thus fall into two subcategories: (1) occurrences involving no human agency; and (2) occurrences involving the unintentional agency of the deceased.

If the death is through human agency— whether intentional or by accident — of a person other than the deceased, it is classified a homicide. The fact that a death is placed in the homicide category does not indicate that the death was the product of an intentional act.

Despite its well-established meaning, the term homicide certainly may be misunderstood as referring exclusively to deaths caused by a criminal act — namely, murder or manslaughter. See A Dictionary of Modern Legal Usage 406 (2d ed.1995) (stating that “homicide refers not to a crime (as is commonly thought), but to the lawful or unlawful killing of a person”); People v. Perry, 229 Ill.App.3d 29, 170 Ill.Dec. 823, 593 N.E.2d 712, 716 (1992) (recognizing that “opinion as to homicide” offered by forensic pathologist “might be construed as prejudicial, since a layperson might equate the word homicide with murder”). But the fact that the use of the term homicide carries with it some potential for misinterpretation does not mean that FINR has presented a persuasive argument regarding the medical examiner’s opinion on the manner of death. The existence of some potential for misinterpretation of a particular word is not sufficient to require that a jury be precluded from seeing or hearing that word.

Under section 90.403, the potential for misinterpretation must create a “danger of unfair prejudice, confusion of issues, [or] misleading the jury” that “substantially outweigh[s]” the “probative value” of the evidence which has the potential for misinterpretation. “In applying the balancing test [under section 90.403], the trial court necessarily exercises its discretion.” State v. McClain, 525 So.2d 420, 422 (Fla.1988). The trial court’s determination will often require a careful consideration of the full context in which the disputed evidence would be evaluated by the jury. “ ‘The court must weigh the proffered evidence against the other facts in the record and balance it against the strength of the reason for exclusion.’ ” Id. (quoting C. Ehrhardt, Florida Evidence § 403.1 at 100-03 (2d ed.1984)). “Indeed, the same item of evidence may be admissible in one case and not in another, depending upon the relation of that item to the other evidence.” Id. (citing E. Cleary, McCormick on Evidence § 185 (3d ed.1984)).

FINR’s argument relies on our decision in Spradley, a criminal case involving a charge of manslaughter. In Spradley, the defendant argued that the trial court had erred in admitting the victim’s death certificate, “which indicated that his death, though resulting from [a] gunshot wound, was caused by a ‘homicide,’ to the exclusion of three other listed possible causes— ‘accident,’ ‘suicide,’ and ‘undetermined.’” 442 So.2d at 1043. The defendant also argued that the trial court erred in permitting the “testimony of the medical examiner ... regarding how he arrived at the conclusion that the death was not caused by an ‘accident.’ ” Id. The Spradley court agreed with the defendant on both points and reversed the defendant’s manslaughter conviction.

The Spradley court’s decision on both points was based on two independent grounds. First, the court held that evidence of the medical examiner’s opinion was inadmissible because a “sufficient predicate” had not been established for that opinion. Id. The court reasoned that the medical examiner had rendered the contested opinion despite the fact that “at the time he performed the autopsy he did not have any knowledge about either the shooting incident or the investigation surrounding the incident.” Id. Second, the court held that the medical examiner’s opinion that the death was a homicide and not an accident “effectively eliminated appellant’s viable defense of excusable homicide, thereby implying in very clear terms for the jury that the appellant was guilty of one of the degrees of homicide.” Id. The court concluded that this was improper because “[a] witness ... cannot offer an opinion as to the guilt or innocence of an accused person.” Id. Although the Sprad-ley opinion contains scant detail concerning the context of the opinion evidence, it is apparent from the court’s discussion of this issue that the court understood the opinion that the death was caused by a homicide and not by an accident as clearly “implying” that the death had been caused by a criminal act.

The Spradley court’s conclusion that an opinion concerning the defendant’s guilt should have been excluded is consistent with the “basic proposition” stated by the supreme court in Martinez v. State, 761 So.2d 1074, 1079 (Fla.2000), “that a witness’s opinion as to the guilt or innocence of the accused is not admissible” in a criminal proceeding. The Martinez court explained that although section 90.703, Florida Statutes (1997) — which provides that opinion testimony regarding “an ultimate issue to be decided by the trier of fact” is not objectionable — “would appear to allow opinion testimony of the defendant’s guiltf,] ... such testimony is precluded on the authority of section 90.403” because “its probative value is substantially outweighed by unfair prejudice to the defendant.” Id.

Neither of the two rationales for the decision in Spradley provides a basis for reversal of the judgment against FINR. The first rationale — concerning the predicate for the opinion evidence — was not presented by FINR as a basis for reversal. We acknowledge that the second rationale — concerning the implication that a crime was committed — might be applied in a civil case. An opinion that a defendant in a civil case was guilty of a crime for the same conduct at issue in the civil case might raise a concern of unfair prejudice similar to the concern at issue in Spradley. But that rationale is inapplicable in the instant case because the context in which the opinion evidence was presented made clear that the classification of Lieux’s death as a homicide implied neither criminality nor intentionality.

As FINR itself acknowledges, the court in Spradley does not purport to articulate a per se rule regarding the impermissibility of an expert opinion that a death was a homicide. Instead, Spradley must be understood as addressing a particular circumstance — the implication that a crime was committed — requiring exclusion of an expert opinion that a death was a homicide. This view concerning Spradley is consistent with case law that has recognized the appropriateness of expert testimony that a death was a homicide. See Lambrix v. State, 494 So.2d 1143, 1148 (Fla.1986) (rejecting argument that medical examiner’s “use of the word ‘homicide’

... constituted an expression of opinion as to appellant’s guilt or innocence” and concluding that medical examiner “never expressed an opinion as to appellant’s guilt or innocence nor can such an inference be drawn from his testimony”); Huck v. State, 881 So.2d 1137, 1150 (Fla. 5th DCA 2004) (“[W]e conclude that the trial court did not abuse its discretion in allowing the medical examiner to testify regarding the cause and manner of death [homicide] of the victim.”); see also State v. Scott, 206 W.Va. 158, 522 S.E.2d 626, 632 (1999) (“Because the term ‘homicide’ is neutral and pronounces no judgment, we do not find that [the medical examiner’s] testifying that [the victim’s] manner of death was homicide removed any defense available to [the defendant].”).

In the instant case — unlike Spradley— the context makes clear that the medical examiner’s opinion that homicide was the manner of death did not imply that a crime had been committed. The possible misinterpretation of homicide by the jury was averted by this instruction to the jury: “The word homicide means death at the hands of another. It does not imply that any crime has been committed.” The danger of misunderstanding was also remedied by the medical examiner’s testimony explaining the meaning of homicide. The medical examiner testified that the medical definition of “homicide” is “death at the hands of another.” The medical examiner further testified he was not expressing an opinion that Lieux’s death was manslaughter. He explained that in using the term “homicide,” he was employing a “medical classification” and “not a legal classification.” The medical examiner further explained that in making the medical classification of “homicide,” he expressed no view concerning “the intent of the folks that had something to do with the personf’s] dying.”

The instruction to the jury and the medical examiner’s testimony provided more than adequate protection from the danger that the term homicide might be misinterpreted by the jury as implying that a crime had been committed. See Hines v. State, 276 Ga. 491, 578 S.E.2d 868, 873-74 (2003) (holding that there was no reversible error in allowing medical examiner to testify that death was a homicide where the “medical examiner testified the [homicide] classification had nothing to do with the defendant’s intent and meant only that ‘but for the actions of another individual’ the decedent would not be dead”).

The term homicide has an established meaning — in common parlance, as well as in legal and medical usage — that neither denotes nor connotes criminality. The fact that some homicides are caused by criminal conduct and that the term homicide may be misunderstood does not justify precluding use of the term — at least where the meaning of the term is made clear to the jury.

In weighing the probative value of the evidence against the potential for unfair prejudice, the trial court very reasonably concluded that the opinion evidence should not be excluded. The expert opinion of the medical examiner concerning the manner of death — establishing that some human agency was involved in bringing about the death — had significant probative value on the issue of negligence. Given the jury instruction and the medical examiner’s testimony concerning the meaning of homicide, any potential for unfair prejudice, confusion of issues, or misleading the jury was negligible. In such circumstances, the trial court clearly did not abuse the discretion it exercised under section 90.403 in allowing the use of the term homicide.

2, Evidence Concerning the Opinion of Law Enforcement Authorities

In its initial brief, FINR argues that it should have been permitted to present the testimony of law enforcement officials that the death of Lieux was not a homicide. Although FINR proffered evidence that law enforcement officials had made no arrest and had concluded that no crime was committed in connection with Lieux’s death, there was no proffer of evidence that the law enforcement authorities had determined that Lieux’s death was not a homicide. As we have discussed above, concluding that a death was not caused by criminal conduct is not equivalent to concluding that the death was not a homicide. But since FINR has chosen to use homicide in the nonstandard sense of a death caused by a criminal act, we will address the merits of FINR’s argument on this point rather than treating the issue as unpreserved.

On its merits, FINR’s argument is lacking. FINR cites no authority in support of its contention that the trial court should have permitted evidence that the law enforcement authorities who investigated the death of Lieux had determined that no criminal charges were warranted. The fact that no criminal charges were brought against FINR or its employees in connection with the death of Lieux is irrelevant to the plaintiffs’ negligence claims against FINR. And the admission of the medical examiner’s expert opinion concerning the manner of death in no way opened the door to introducing the opinion of law enforcement officials on the entirely different question of whether a crime had been committed.

The general rule is that evidence of a prior acquittal in a criminal case is inadmissible in a civil case in which the conduct underlying the criminal charge is at issue. See Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174, 176 (1947) (holding in wrongful death case that “[t]here was no error in refusing [admission into evidence of] the verdict and judgment of acquittal in the criminal case where appellant was acquitted on a charge of murder growing out of this same homicide”). The opinion of law enforcement authorities concerning the innocence of the defendant in a civil case is similarly inadmissible. See Eggers v. Phillips Hardware Co., 88 So.2d 507, 508 (Fla.1956) (holding in civil case that it was “error to allow the investigating officers to testify that they did not arrest the defendant”). Accordingly, the trial court did not abuse its discretion in excluding the opinion evidence of the law enforcement authorities.

Conclusion

The judgment against FINR is therefore affirmed.

Affirmed.

NORTHCUTT and KELLY, JJ., Concur.

      . See § 768.21(4), Fla. Stat. (2003) (providing under Wrongful Death Act that "[e]acli parent of an adult child may ... recover for mental pain and suffering if there are no other survivors”).

      . Section 406.1 l(2)(a), Florida Statutes (2003), sets forth the authority of the medical examiner “to determine the identification of or cause or manner of death of the deceased or to obtain evidence necessary for forensic examination.”

      . It is not clear why FINR considered categorizing the death as an accident to be the key to its defense of the case. It is obvious that an accident may be caused by negligence. It appears that classification of the manner of death as natural would have been most consistent with FINR’s contention that it was not negligent.

      . Suicide — unlike homicide — is by definition intentional.

      . An exception from the general rule is established by section 772.15, Florida Statutes, for civil actions brought under chapter 772, the Civil Remedies for Criminal Practice Act.


author: CASANUEVA, Judge.

text:
    Darrell W. MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4660.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Darrell W. Matthews appeals from the trial court’s order revoking his probation. His first contention is that the court should have ordered a Nelson hearing when he expressed dissatisfaction with his counsel. We reject this argument because it is clear that Mr. Matthews articulated only generalized unhappiness with his attorney and never requested that his appointed counsel be discharged for specific acts of incompetence. In such a case, a trial court does not abuse its discretion when it fails to order a Nelson hearing. Augsberger v. State, 655 So.2d 1202, 1204-05 (Fla. 2d DCA 1995).

Mr. Matthews’ second argument is that the court erred when it revoked his probation on the ground that he failed to perform community service hours as ordered. We agree. The deficiency in the order revoking Mr. Matthews’ probation on the basis of his failure to perform community service hours derives from his original probation order’s omission of defined times for his commencement and completion of the condition. This court has consistently held that such a violation will not be deemed willful and substantial if the performance parameters have not been spelled out and sufficient time remains in the probationary period for the probationer to complete the requirement. See Bowser v. State, 937 So.2d 1270, 1272 (Fla. 2d DCA 2006); Bryant v. State, 931 So.2d 251, 253 (Fla. 2d DCA 2006); Shipman v. State, 903 So.2d 386, 387 (Fla. 2d DCA 2005).

Although we agree that the court erred in that regard, we also hold that the State presented competent, substantial evidence demonstrating by the greater weight of the evidence that Mr. Matthews committed the new law violations of possession and delivery of cocaine. That fact in itself was a sufficient basis on which to revoke his probation. See Hawkins v. State, 884 So.2d 496, 496-97 (Fla. 2d DCA 2004) (“Because the remaining violations of probation, which include new law violations, are substantial, we affirm the revocation of probation.”).

Accordingly, we affirm the order revoking the defendant’s probation but remand for the trial court to strike any reference to a violation of condition 27.

ALTENBERND and VILLANTI, JJ., Concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973) (establishing a procedure that a trial court must follow when a defendant indicates a desire to represent himself).


text:
    Corbblin BUSH, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D05-4970.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2006.
    Corbblin Bush, pro se, Appellant.
    Rosa H. Carson, General Counsel, and Chris Korn, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Appellant’s argument that the circuit court erred in dismissing his petition for writ of mandamus is without merit and is rejected; however, because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2005), the circuit court improperly imposed a lien upon Appellant’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom., McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash that portion of the circuit court’s January 27, 2005, order on indigen-cy imposing a lien as a result of Appellant’s filing of the petition for writ of mandamus. The circuit court should direct the reimbursement of any funds that have been withdrawn from Appellant’s account to satisfy the improper lien order.

This appeal is AFFIRMED as to the challenge to the order by which the circuit court dismissed mandamus, but is REVERSED as to the challenge to that portion of the indigency order which imposed a lien.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Kimberly CLARIDY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2852.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2006.

      Kimberly Claridy, pro se, for Appellant.
    Charlie Crist, Attorney General, Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the summary denial of her 3.850 motion for postconviction relief. In her motion, appellant presents six grounds for relief. On appeal, she argues that the trial court should have granted her relief on all six grounds. This Court affirms, without comment, the trial court’s denial of appellant’s motion as to all grounds except one. We write only to address Ground Six of appellant’s motion for postconviction relief.

In Ground Six, appellant alleges that her plea was involuntarily entered because the terms of her plea agreement required her to plead to an illegal sentence. The trial court summarily denied appellant’s claim under Ground Six. In doing so, the court stated that the same issue had been raised in a previous 3.800 motion, which the trial court had summarily denied. The trial court went on to note that this Court had reversed the summary denial of the 3.800 motion and remanded “for the trial court to either attach documentation conclusively refuting the appellant’s claim, or to grant the appellant the relief requested.” Claridy v. State, 911 So.2d 856 (Fla. 1st DCA 2005). Ultimately, the trial court held that because the 3.800 motion was still before the trial court, pursuant to the actions of this Court, this issue was not properly brought in a rule 3.850 motion.

The trial court appears to have determined that it lacked jurisdiction to hear appellant’s claim relating to Ground Six, because it was pending in the 3.800 case. Had the 3.800 motion been pending in this Court at the time the 3.850 motion was heard, then the trial court would have been entirely correct in its ruling. See Betts v. State, 829 So.2d 977 (Fla. 1st DCA 2002). However, this Court’s opinion regarding the 3.800 motion was issued on September 22, 2005. Accordingly, by January 31, 2006, when the trial court issued its order in the instant case, jurisdiction relating to this issue had reverted back to the trial court. Therefore, the trial court had jurisdiction to address the merits of the 3.800 claim in the context of the current 3.850 challenge.

Because the trial court erred in summarily denying appellant’s Ground Six claim for relief, we REVERSE and REMAND to the trial court with directions to address appellant’s Ground Six claim on the merits.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

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


text:
    Alander UPSHAW, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5577.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2006.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Petitioner.
    Charlie Crist, Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the June 8, 2006, judgment and sentence in Leon County Circuit Court case number 2004-CF-2450, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). Inasmuch as petitioner’s request for a belated appeal is unopposed by the state, the clerk is directed to issue mandate forthwith.

ERVIN, ALLEN, and WOLF, JJ., concur.


text:
    Ramon AGUILAR, Appellant, v. James R. McDONOUGH, Department of Corrections, Appellee.
    No. 1D05-5220.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2006.
    Ramon Aguilar, pro se, Appellant.
    Charlie Crist, Attorney General, and Rosa Carson, General Counsel, Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

Appellant seeks review of the order denying his motion for relief from judgment in which he sought a refund of filing fees withdrawn from his prison account and removal of the liens for filing fees and costs. Because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes, the trial court improperly imposed two liens upon appellant’s prison account for payment of court costs and fees. See Lopez v. McDonough, 935 So.2d 47 (Fla. 1st DCA 2006); Rutledge v. McDonough, 931 So.2d 171 (Fla. 1st DCA 2006).

Accordingly, we quash the two lien orders. Upon remand, the trial court shall ensure reimbursement of any funds withdrawn from appellant’s account to satisfy the improper lien orders, and order removal of the liens.

ERVIN, ALLEN, and WOLF, JJ., concur.


text:
    Demeshio WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4476.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2006.
    Demeshio Ward, pro se, Petitioner.
    Charlie Crist, Attorney General, and Sheron L. Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about January 30, 2006, denying petitioner’s motion to correct illegal sentence in Duval County Circuit Court case number 16-1996-CF-14145-AXXX-MA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

ERVIN, ALLEN, and WOLF, JJ., concur.