author: THOMPSON, J.

text:
    Eugene Fitzgerald BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2393.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2007.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Eugene Fitzgerald Barnes was found guilty of attempted second-degree murder and sentenced to 25 years’ imprisonment. We affirmed per curiam his conviction, sentence, and the denial of his rule 3.850 motion in Barnes v. State, 873 So.2d 337 (Fla. 5th DCA 2004), and Barnes v. State, 925 So.2d 1038 (Fla. 5th DCA 2006). In Barnes v. State, 932 So.2d 589 (Fla. 5th DCA 2006), we held that appellate counsel was ineffective for failing to raise the forcible felony exception instruction issue and granted a belated appeal. 932 So.2d at 590-91. On appeal, Barnes argues the instruction was fundamentally erroneous.

At trial, the court instructed the jury on the justifiable use of deadly force, but delivered the forcible felony exception instruction:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. Eugene Fitzgerald Barnes was attempting to commit, committing or escaping after the commission of Attempted Murder and/or Aggravated Battery....

The victims, Kenneth Brown and Queen Gordon, testified against Barnes. They knew Barnes since childhood. Brown and Gordon fell asleep in a car in front of her brother’s house. After they woke up, Barnes pulled up, blocked their ear with his, drew a gun, got out of the car, and began shooting Brown. Brown and Gordon escaped, but Brown sustained eight gunshot wounds and was hospitalized. Brown testified he did not have a firearm in his possession or in the car.

Barnes’s story varied in most respects. According to Barnes, he had not seen Gordon and Brown in awhile, and pulled over to talk with them. When Barnes pulled up and opened his car door, Brown “came up with a gun and fired a shot at [him].” Barnes panicked and returned fire with an Uzi that he happened to have lying on his seat. Barnes had not exited his car when Brown fired; he had only one foot out of the car. When Brown fired, Barnes got out of his car, ducked behind the car door, and reached over the door to shoot back in self-defense. He did not know how many times he fired. After “blindly” firing an unknown number of shots, he ran around his car, asked Brown why he was shooting at him, jumped back into his car, and left. His car was not disabled, and he was not injured. Barnes’s discussion of self-defense included this observation: “If a friend of yours goes up to you and splashed a cup of water in your face and you had one in your hand you would do the same thing, you would splash that cup of water. You would.”

Barnes notes that Florida courts deem the forcible felony exception instruction to be fundamentally erroneous when the defendant is not charged with a separate forcible felony and claims self-defense. See Blanton v. State, 956 So.2d 480, 481-82 (Fla. 5th DCA 2007); Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006); Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004); Barnes v. State, 868 So.2d 606 (Fla. 1st DCA 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). The mere fact that the self-defense claim borders absurdity is irrelevant. See Gilchrist v. State, 938 So.2d 654, 656-57 (Fla. 4th DCA 2006); Bevan v. State, 908 So.2d 524, 525 (Fla. 2d DCA 2005); Bates v. State, 883 So.2d 907, 907-08 (Fla. 2d DCA 2004).

The State acknowledges the case law against its position; nevertheless, it argues that several cases hold that the erroneous instruction does not cause fundamental error if the evidence adduced at trial does not support a self-defense instruction. See Sutton v. State, 929 So.2d 1105, 1107 (Fla. 4th DCA 2006), receded from on other grounds in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), rev. granted, 956 So.2d 458 (Fla.2007); Thomas v. State, 918 So.2d 327, 330 (Fla. 1st DCA 2005); Hickson v. State, 917 So.2d 939, 940-41 (Fla. 4th DCA 2005); Berrios v. State, 781 So.2d 455, 457 (Fla. 4th DCA 2001); but see Flynn v. State, 947 So.2d 1229, 1230 (Fla. 2d DCA 2007) (declining to answer whether court agreed with Sutton and Thomas analyses); Ortiz v. State, 942 So.2d 1013, 1015 (Fla. 2d DCA 2006) (same). Therefore, the State argues, if Barnes was not entitled to an instruction on self-defense as a matter of law, we should affirm. When the shooting occurred, Barnes had a duty to retreat in most situations before he could employ deadly force. Until October 2005, Florida required a person to retreat in most situations before deadly force could be employed. See § 776.013, Fla. Stat. (2005); Smiley v. State, 966 So.2d 330 (Fla.2007); Jenkins v. State, 942 So.2d 910, 914 (Fla. 2d DCA 2006). The State argues that, under Sutton, 929 So.2d 1105, and Thomas, 918 So.2d 327, Barnes was obligated to drive away, rather than return fee.

However, this case is distinguishable from Thomas, 918 So.2d 327, and Sutton, 929 So.2d at 1107. Thomas beat the defendant while unconscious, went to a ear to obtain a firearm, and shot the two assailants whom he knew to be unarmed. 918 So.2d at 328. As a result, he was not entitled to a self-defense instruction as a matter of law, so the forcible felony exception instruction did not cause fundamental error. Id. at 330. The Sutton court reached the same result after noting that the defendant could not establish his life was in imminent danger and that he could not have safely retreated. 929 So.2d at 1107. In that case, the court observed:

[Tjhere was no evidence adduced to indicate that [the victim] was in possession of a weapon, [or] that [the victim] was going to retrieve a weapon inside the house or that Sutton was in imminent danger.... [Sutton’s] own statement reflects that each time he fired the handgun after the warning shot it was not in self-defense but due either to his inability to control the trigger or his stumbling over stones....

Id.

Berrios, 781 So.2d 455, is also instructive. There, the court held that it was unreasonable for the defendant to resort to deadly force when he could simply drive away. However, the court relied on the fact that the victim approached the defendant with “a knife and not a firearm” to find the defendant’s use of deadly force to be unreasonable. Id. at 457. Here, Barnes testified that Brown first opened fire, and that Barnes panicked and returned fire in self-defense. Whether a person in his position may have felt he could not safely retreat under fire, like the reasonableness of his belief that his use of deadly force was necessary, was a question for the jury. See Wilson v. State, 765 So.2d 950, 951 (Fla. 5th DCA 2000); see also Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002).

The most closely analogous case is Ortiz, 942 So.2d 1013, where the court considered the same instruction and rejected the State’s suggestion that the defendant was not entitled to a self-defense instruction under Sutton and Thomas. Id. at 1014. There, the defendant and the victim fought each other with knives. Id. Then, “[the defendant] reached into his car, retrieved a gun, and fired it at [the victim].... [The defendant] testified that he did so because he thought [the victim] was getting ready to throw his knife.... ” Id. Ortiz’s testimony “that he believed he was at risk of great bodily harm when he used the pistol” provided sufficient support for a jury to find that he acted in justifiable self-defense. Id. Therefore, the court could not agree that the defendant was not, as a matter of law, entitled to a self-defense instruction. Id. at 1015. Defendants are entitled to instructions on their theories of defense where any evidence supported their theories. Thus, although the defendant’s theory and supporting evidence were questionable, he was entitled to a legally adequate self-defense instruction. Id. We agree with that reasoning.

Accordingly, we reverse Barnes’s conviction and sentence. As we did in Sloss v. State, 965 So.2d 1204 (Fla. 5th DCA 2007); Blanton, 956 So.2d at 482; Slattery v. State, 32 Fla. L. Weekly D305, — So.2d -, 2007 WL 186947 (Fla. 5th DCA Jan. 26, 2007), and Zinnerman v. State, 942 So.2d 932, 933 (Fla. 5th DCA 2006), we certify the following question as a matter of great public importance to the Florida Supreme Court:

DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME?

REVERSED and REMANDED; QUESTION CERTIFIED.

PALMER, C.J., and SAWAYA, J., concur.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Charles Wayne NASH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5216.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2007.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles Wayne Nash, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

In this Anders appeal, Charles Wayne Nash challenges the order of revocation of his probation and resulting sentences for two counts of fraudulent use of a credit card more than twice during a six-month period, one count of criminal use of personal identification information, and fifteen counts of forgery. These judgments resulted from the revocation of Mr. Nash’s probation after he was originally convicted and placed on probation for all of the above charges.

Following a thorough review of the record on appeal, we conclude there are no meritorious, substantive grounds to support this appeal. However, we remand this cause for correction of a scrivener’s error in one of Mr. Nash’s written judgments. Mr. Nash’s order of revocation of probation correctly notes that he was originally placed on probation for the eighteen third-degree felonies identified above. The order revokes Mr. Nash’s probation and adjudicates him guilty of each of the eighteen felonies. Because these felony convictions resulted from two separate felony informa-tions originally filed in two separate cases, two written judgments were prepared (one for each case number). The written judgment for case number CF02-177 correctly reflects convictions and sentences for one count of fraudulent use of a credit card, one count of criminal use of personal identification, and eleven counts of forgery. However, the written judgment for case number CF02-218 incorrectly reflects a conviction and sentence for petit theft, in addition to the correct convictions and sentences for one count of fraudulent use of a credit card and four counts of forgery. The conviction and sentence for petit theft was a scrivener’s error and must be stricken. This cause is affirmed in all other respects.

Affirmed and remanded with instructions.

DAVIS and LaROSE, JJ„ Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: CANADY, Judge.

text:
    Aida DEL VALLE, Petitioner, v. Trina TOLSON, Respondent.
    No. 2D06-5270.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2007.
    George R. Baise Jr. of George R. Baise Jr., P.A., Bradenton, and Perry Tanksley, Sarasota, for Petitioner.
    Trina Tolson, pro se.
   CANADY, Judge.

Aida Del Valle seeks certiorari review of an interlocutory order entered by the circuit court in a civil appellate proceeding, contending that the order is inconsistent with the provisions of a local rule of court. This certiorari petition presents the same issue we have addressed in Jimenez v. Rateni, 967 So.2d 1075 (Fla. 2d DCA 2007). For the same reasons that we granted relief in Jimenez, we grant Del Valle’s petition and quash the circuit court’s interlocutory order.

Petition granted.

WHATLEY and CASANUEVA, JJ„ Concur.


author: LaROSE, Judge.

text:
    FIRST FLORIDIAN AUTO & HOME INSURANCE COMPANY, Appellant, v. Tscharner MYRICK, Appellee.
    No. 2D06-4642.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2007.
    Rehearing Denied Dec. 11, 2007.

      Andrew P. Rock of Kingsford & Rock, P.A., Maitland, for Appellant.
    William F. Merlin, Jr., Mary E. Kes-tenbaum, and Kristin Demers-Crowell of Merlin Law Group, P.A., Tampa, for Ap-pellee.
   LaROSE, Judge.

First Floridian Auto & Home Insurance Company (First Floridian) appeals the trial court’s final judgment awarding attorney’s fees and costs to Tscharner Myrick under section 627.428, Florida Statutes (2003). First Floridian argues that the fee award was improper because Ms. Myr-ick’s insurance claim was resolved through the appraisal process. We disagree and affirm the trial court’s final judgment.

In September 2002, after cracks developed on her home’s exterior, Ms. Myrick filed an insurance claim with First Floridian. Within a month, it became apparent to all that the damage resulted from sinkhole activity, a covered loss under Ms. Myrick’s policy. First Floridian accepted coverage. Ms. Myrick submitted a $104,000 proof of loss and, through her public adjuster, questioned the scope of First Floridian’s proposed remediation plan. On January 3, 2003, First Floridian tendered a $49,706 check to Ms. Myrick for compaction grouting, cosmetic damages, landscaping, and engineering monitoring. First Floridian did not respond to the public adjuster’s inquiries. But, in its letter accompanying its January 3 check, First Floridian reminded Ms. Myrick of the appraisal provision in her policy. That provision provided, in part, as follows:

6. Mediation or Appraisal. If you and we fail to agree on the amount of loss, either may:
b. Demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the “residence premises” is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.

First Floridian did not request additional information from Ms. Myrick and did not invoke the appraisal process.

In early March 2003, Ms. Myrick sued for breach of contract because First Floridian failed to pay the amounts she believed were owed. In its answer and contrary to its earlier position, First Floridian asserted that the claim was not covered. After almost four months of litigation, First Floridian invoked the appraisal provision of the policy. Ms. Myrick did not object; she agreed to stay the lawsuit pending completion of the appraisal process. The parties’ Joint Stipulation to Stay Action Pending Appraisal provided that “[t]he parties ... agree that the Court shall retain jurisdiction over any matters within its jurisdiction under Florida law, including, but not limited to, issues of policy interpretation, coverage, entitlement to and amount of attorney’s fees and costs, if applicable.”

The parties completed the appraisal process in March 2004; the appraisal award was $102,500, minus a $500 deductible. First Floridian paid this amount one month later. Ms. Myrick accepted the payment. She then filed motions to confirm the appraisal award and to determine entitlement to attorney’s fees and costs. Over First Floridian’s objection, the trial court confirmed the award and later entered its final judgment awarding $39,037.60 in fees and costs to Ms. Myrick under section 627.428.

The legislature enacted section 627.428 to discourage an insurer from contesting a valid claim and to level the playing field so that the insurer’s economic power does not overwhelm the insured. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 684 (Fla.2000). “[T]he purpose of section 627.428 is to penalize an insurance company for wrongfully causing its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it.” Bassette v. Standard Fire Ins. Co., 803 So.2d 744, 746 (Fla. 2d DCA 2001). An insurer will owe attorney’s fees to its insured where coverage is disputed and the insured prevails whether by judgment or a confession of judgment. Id. Payment made after suit is filed operates as a confession of judgment. Id.; Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218 (Fla.1983); Travelers Indem. Ins. Co. of Ill. v. Meadows MRI, LLP, 900 So.2d 676, 679 (Fla. 4th DCA 2005).

First Floridian argues that Ms. Myrick’s lawsuit was unnecessary; she could have made further inquiry, provided additional information for First Floridian’s consideration, or initiated the appraisal process. First Floridian suggests that Ms. Myrick filed a lawsuit primarily to obtain attorney’s fees. First Floridian relies principally on Nationwide Property & Casualty Insurance v. Bobinski, 776 So.2d 1047 (Fla. 5th DCA 2001). In Bobinski, however, the insurer made initial payments and invoked the appraisal process. Later, the insurer tendered additional payments pursuant to the results of the appraisal. Id. at 1048. Only after conclusion of the appraisal process did the insureds file suit to confirm the appraisal award and obtain attorney’s fees. Id. Appealing the $12,000 fee award, the insurer argued that the fees were improper because the insureds did not file suit before the insurer paid the appraisal award. Id. The Fifth District agreed and reversed the fee award. Id. at 1049. It concluded that the insured “filed suit solely in order to obtain attorney’s fees.” Id. at 1048.

Bobinski does not support First Floridian’s position. We cannot conclude that Ms. Myrick filed her lawsuit for any improper purpose. After all, Ms. Myrick initially submitted a proof of loss in the amount of $104,000, an amount significantly higher than the amount First Floridian was willing to pay. Through her public adjuster, she questioned the scope and method of the proposed remediation plan. First Floridian did not respond. First Floridian did not request additional information from Ms. Myrick and did not invoke the appraisal process prior to suit. When Ms. Myrick filed her lawsuit, First Floridian raised a coverage defense for the first time. First Floridian continued with litigation for several months before it invoked the appraisal process. That process resulted in Ms. Myrick receiving substantial additional sums.

First Floridian can find no solace in Travelers, 900 So.2d 676. There, the Fourth District rejected the same argument made by First Floridian — that the underlying lawsuit was filed to generate attorney’s fees. Id. at 678. In Travelers, the insured filed suit long before the appraisal was completed rather than after payment was already made. “[T]he suit and any accompanying legal work ... was not merely a means to an end.” Id. The insured needed the involvement of the judicial system to address coverage issues and to ensure that its rights were fully protected through the appraisal process. Id. The same is true here, especially where First Floridian was now asserting a coverage defense. This position presented Ms. Myrick in the unenviable probability that she would have to battle her insurer not only over the amount of her claim but also as to whether her policy afforded coverage.

The prospect of an attorney’s fee award under section 627.428 should prompt insurers to process and pay claims timely. We recognize also that the appraisal process provides a mechanism to resolve claims promptly and discourages insureds from racing to the courthouse to file needless lawsuits. Nonetheless, given First Floridian’s handling of Ms. Myrick’s claim, we can find no error in the trial court’s final judgment.

Affirmed.

NORTHCUTT, C.J., and SALCINES, J., Concur.

      . 627.428 Attorney’s fee.—
      (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary's attorney prosecuting the suit in which the recovery is had.


author: PER CURIAM.

text:
    Johnnie Quilma BULLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1917.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2007.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Johnnie Quilma Bullock appeals from his convictions for grand theft, robbery, armed robbery with a firearm, and second degree murder. We affirm the convictions, but remand with respect to a minor issue regarding costs. The State concedes that all costs were waived and agrees that any costs reflected in the sentencing documents should be stricken. Therefore, we remand with directions that the sentencing documents be corrected, as necessary, to delete all costs.

AFFIRMED; REMANDED WITH DIRECTIONS.

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


author: WOLF, J.

text:
    Mark MIZELLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1870.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2007.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant raises two issues concerning his sentencing for 200 counts of possession of child pornography. We find one has merit: Whether the trial court reversibly erred by failing to award appellant credit for time served on probation for counts 122-200, the counts for which the trial court had sentenced appellant to probation.

In State v. Summers, 642 So.2d 742, 744 (Fla.1994), the supreme court held: “[U]pon revocation of probation credit must be given for time previously served on probation toward any newly-imposed probationary term for the same offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense.”

In Bragg v. State, 644 So.2d 586 (Fla. 1st DCA 1994), this court reiterated the supreme court’s holding in Summers. Specifically, this court stated:

If the trial court includes probation as part of a sentence upon revocation of probation, the trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense.

Id. at 587. Accordingly, as appellant argues and the State concedes, appellant was entitled to credit for time served in counts 122-200.

We, therefore, reverse and remand for the trial court to give appellant credit for time previously served on probation for counts 122-200. Appellant need not be present for the ministerial function of entering an order complying with the dictates of this opinion.

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

POLSTON and THOMAS, JJ„ concur.


text:
    Timothy Levi JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0655.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2007.
    Nancy Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm appellant’s judgment and sentence but remand for correction of scrivener’s errors contained in the written judgment. The judgment erroneously lists Appellant’s first offense as “home invasion robbery with firearm” under section 812.135(2)(a), the 2005 version, when the correct statutory citation and title of the offense is “home invasion robbery” under section 812.135(2)(a), Florida Statutes (2003). The judgment also incorrectly lists the title of appellant’s other offense as “aggravated assault with firearm,” when the proper title is “aggravated assault.” As the correction of these errors is purely ministerial, there is no need for a hearing, and the defendant need not appear.

AFFIRMED and REMANDED with instructions.

DAVIS, LEWIS and ROBERTS, JJ., concur.


author: THOMAS, J.

text:
    William Chance DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5147.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2007.
    Nancy A. Daniels, Public Defender; David A. Davis and David P. Gauldin, Assistant Public Defenders, Tallahassee, Attorneys for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the order below revoking his probation, asserting that the trial court’s order is based in part on an alleged violation supported only by hearsay. This court has repeatedly held that sentencing errors such as the error raised here must be preserved by contemporaneous objection or by motion filed pursuant to rule 3.800(b), Florida Rules of Criminal Procedure. See Simmons v. State, 965 So.2d 857 (Fla. 1st DCA 2007); Griffin v. State, 958 So.2d 1000 (Fla. 1st DCA 2007); Woodard v. State, 946 So.2d 1186 (Fla. 1st DCA 2006); Brown v. State, 935 So.2d 593 (Fla. 1st DCA 2006); Telfair v. State, 903 So.2d 257 (Fla. 1st DCA 2005); Evans v. State, 895 So.2d 1292 (Fla. 1st DCA 2005). Cf. Aponte v. State, 896 So.2d 836 (Fla. 1st DCA 2005) (holding that fundamental error regarding trial court’s loss of jurisdiction to consider defendant’s probation violation may be raised and considered for the first time on appeal). As we noted in Evans, we are precluded from considering this issue on appeal under Maddox v. State, 760 So.2d 89, 98 (Fla.2000).

AFFIRMED.

WOLF and POLSTON, JJ., concur.


text:
    Raymond STEPHENS, Appellant, v. LORAL AMERICAN BERYLLIUM COMPANY and CNA Claimplus, Appellees.
    No. 1D06-6092.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2007.
    Keith A. Mann of Mann Legal Group, Sarasota; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.

      Hermes Eraclides of Eraclides, Johns, Hall, Gelman, Eikner & Johannessen, L.L.P., Sarasota; Cindy R. Galen, Sarasota, for Appellees.
   PER CURIAM.

We reverse on the authority of Huff v. Loral American Beryllium Co., 967 So.2d 244 (Fla. 1st DCA 2007) and remand this case for the entry of an order finding the appellant’s claim of beryllium sensitivity to be compensable and awarding him appropriate medical benefits.

KAHN, PADOVANO, and HAWKES, JJ., concur.


text:
    Arcadio RIOS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1064.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2007.
    Michael Rayne of the Law Offices of Michael Rayne, Tallahassee, for Petitioner.
    Arcadio Rios, pro se.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   CORRECTED OPINION

PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about October 31, 2006, in Gadsden County Circuit Court case number 06-198CFD, 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). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent him on appeal.

PETITION GRANTED.

BARFIELD, DAVIS, and LEWIS, JJ., concur.


text:
    Natasha LANG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1657.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2007.
    Natasha Lang, pro se, Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Natasha Renee Lang is hereby afforded a belated appeal from judgment and sentence entered in case number 01-2002-CF-4245-A in the Circuit Court in and for Alachua County. Upon issuance of mandate, a copy of the opinion shall be transmitted to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court shall appoint counsel for the appeal if petitioner qualifies for such an appointment.

WEBSTER, DAVIS, and LEWIS, JJ., concur.


text:
    George IVEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4017.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Hall v. State, 826 So.2d 268 (Fla.2002).


text:
    Jason SLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-11.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Grice v. State, 967 So.2d 957 (Fla. 1st DCA 2007).

GRIFFIN, THOMPSON and PLEUS, JJ., concur.


text:
    J.A.E., a child, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1250.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See J.G. v. State, 915 So.2d 274, 276, (Fla. 4th DCA 2005); Smith v. State, 754 So.2d 889 (Fla. 5th DCA 2000).

GRIFFIN, THOMPSON and PLEUS, JJ., concur.


text:
    Jason CURBEAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1964.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

MONACO, LAWSON and EVANDER, JJ., concur.


text:
    Michael BASSETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2390.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.
    Michael Bassett, Mayo, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003).

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    Darrell Scott HARLAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-744.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Paey v. State, 943 So.2d 919 (Fla. 2d DCA 2006), review denied, 954 So.2d 28 (Fla.2007).

PLEUS, MONACO and EVANDER, JJ., concur.


text:
    Deadrian Leon BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-951.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 373 So.2d 898 (Fla.1979).

GRIFFIN, MONACO and EVANDER, JJ., concur.


text:
    Mercedes MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-994.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.

      James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Bennett v. State, 858 So.2d 1251 (Fla. 5th DCA 2003).

SAWAYA, MONACO and EVANDER, JJ., concur.


text:
    Marlo COBB, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-985.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 373 So.2d 898 (Fla.1979).

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


text:
    Ronald Richard LOWERY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4883.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2007.
    Ronald Richard Lowery, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

VAN NORTWICK, LEWIS, and THOMAS, JJ., concur.


author: WHATLEY, Judge.

text:
    William S. WILSON, Appellant, v. FEDERATED NATIONAL INSURANCE COMPANY, Appellee.
    No. 2D06-5050.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2007.
    Matthew R. Danahy of Danahy & Murray, P.A, Tampa, for Appellant.
    Anne D. Ogden of Bazinsky Korman Baker Professional Association, Plantation, for Appellee.
   WHATLEY, Judge.

William S. Wilson appeals the partial final order dismissing his complaint against Federated National Insurance Company with prejudice. We reverse.

Wilson insured his home and personal property through a policy of insurance issued by Federated. After his home was damaged by Hurricane Charley and he was unsuccessful in obtaining full payment from Federated for the amount of the loss estimated by Federated’s own adjusters, Wilson filed a complaint against Federated alleging breach of contract and seeking a declaratory judgment.

Federated filed an answer and affirmative defenses, asserting as one of its affirmative defenses its right to invoke the appraisal clause of the insurance policy. One month later, it did so in a letter to Wilson. Wilson responded that he believed appraisal was not appropriate and that Federated had waived its right to appraisal. After more correspondence between the parties in which they maintained their positions regarding the appraisal process, Federated filed a motion to compel appraisal. Over Wilson’s objections, the trial court granted the motion and stayed the litigation. The appraisal process resulted in an award to Wilson of $75,718.48, which was almost ten times more than the amount Federated had attempted to pay Wilson initially.

Wilson filed a motion to lift the stay, and he filed the appraisal award with the circuit court. He then filed a motion to confirm the appraisal award and for entry of final judgment. In the meantime, Federated attempted to pay Wilson the amount it contended was the balance owed on the appraisal award. Wilson rejected these attempts because he claimed the amount was insufficient to satisfy the appraisal award and because he maintained that the award was null and void due to Federated’s alleged waiver of its right to demand appraisal. Federated ultimately deposited the amount into escrow with the clerk of court.

The circuit court heard and denied Wilson’s motion to confirm the appraisal award and for entry of final judgment. Several days later, Federated filed a motion for partial final judgment of dismissal on the ground that all monies due and owing pursuant to the appraisal award were in escrow with the clerk of court and there remained no outstanding issues concerning the two counts of Wilson’s complaint. However, it was not until the day its motion was heard that Federated deposited into escrow the amount that Wilson claimed remained due on the appraisal award. The circuit court heard Federated’s motion, as well as Wilson’s second motion to confirm appraisal and for entry of final judgment. It granted Federated’s motion for partial final order of dismissal with prejudice without comment and did not address Wilson’s motion.

In this appeal, Wilson argues that Federated waived its right to enforce the appraisal provision of the insurance policy by participating in the litigation before moving to compel appraisal. While Federated filed the motion to compel appraisal four months after it filed its answer and affirmative defenses, Federated had invoked the appraisal process in correspondence sent to Wilson one month after filing its answer. During that one month, minimal discovery was conducted. Under these circumstances, we cannot say that the circuit court abused its discretion in ordering that the parties participate in the appraisal process.

However, the circuit court did abuse its discretion in denying Wilson’s motion to confirm the appraisal award and to enter final judgment thereon. Wilson was compelled to file suit against Federated when Federated refused to pay what even its own adjusters determined to be the amount of Wilson’s loss. Then, after the appraisal process resulted in an award to Wilson of significantly more than the adjusters had estimated, Federated continued to fail to pay the full amount of his loss. Federated finally filed the balance into escrow on the day its motion for partial final judgment was heard. Under these circumstances, the appropriate course of action was not to dismiss Wilson’s complaint with prejudice, but to confirm the appraisal award and enter final judgment thereon. See Allstate Ins. Co. v. Suarez, 833 So.2d 762 (Fla.2002); Travelers Indem. Ins. Co. v. Meadows, 900 So.2d 676 (Fla. 4th DCA 2005). Cf. Federated Nat’l Ins. Co. v. Esposito, 937 So.2d 199 (Fla. 4th DCA 2006) (holding that court erred in confirming appraisal award and entering judgment because insurer timely participated in appraisal and paid award without necessity for court intervention). Accordingly, we reverse the partial final order of dismissal and remand with directions that the circuit court confirm the appraisal award and enter final judgment thereon.

Reversed and remanded.

NORTHCUTT, C.J, and KELLY, J., Concur.

      . Federated’s first adjuster's final estimate placed the replacement cost value at $18,339.72, and Federated sent Wilson three checks marked "paid in full” that totaled $7,857.90. Federated’s second adjuster placed the replacement cost value at $40,048.60, but that amount was not revealed by Federated until discovery.


text:
    Brannen YUTZY and Yutzy Tree Service, Inc., Appellants/Cross-Appellees, and Alyson M. Rixner and Diane Rixner, Cross-Appellees, v. Bradley Dean FOURAKER, Appellee/Cross-Appellant.
    No. 2D06-3075.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2007.
    Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene and Buchsbaum, P.A., Hollywood, for Appellants/Cross-Appellees Brannen Yutzy and Yutzy Tree Service, Inc.
    No appearance for Cross-Appellees Rix-ner.
    George A. Vaka and Nancy A. Lauten of Vaka, Larson & Johnson, P.L., Tampa, for Appellee/Cross-Appellant Fouraker.
   PER CURIAM.

Brannen Yutzy and Yutzy Tree Service, Inc. (defendants below) appeal the trial court’s order that granted Bradley Dean Fouraker (plaintiff below) a new trial. Fouraker cross-appeals the trial court’s denial of his motion for a directed verdict on the issues of permanency and indivisible injury. We affirm without comment the order granting a new trial and the denial of the motion for directed verdict. For the benefit of the trial court and the parties on remand, we note that the grounds for the trial court’s decision to grant a new trial require a new trial on all issues.

Affirmed.

ALTENBERND, CASANUEVA, and WALLACE, JJ., Concur.


author: STEVENSON, J.

text:
    Joseph ALGIE & Stephanie Algie, Appellants, v. LENNAR CORPORATION, a Foreign Corporation, Appellee.
    No. 4D06-3650.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Rehearing Denied Jan. 2, 2008.

      Richard B. Rosenthal of the Law Offices of Richard B. Rosenthal, P.A., Miami, and Samuel M. Yaffa of Yaffa & Yaffa, P.A., Delray Beach, for appellants.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellee.
   STEVENSON, J.

After Joseph Algie slipped and fell over a ledge or step while being led on a tour at a model home, he and his wife sued Len-nar Corporation, alleging negligent construction and failure to warn of a dangerous condition. The liability and damages issues were bifurcated and the jury returned a no liability verdict in favor of Lennar. The Algies have appealed, arguing that the trial court’s failure to strike a juror “for cause” compels reversal. We agree.

During voire dire, plaintiffs’ counsel asked the venire whether they had ever felt that an injury sustained by themselves or a family member shouldn’t have happened, could have been prevented and was someone else’s fault, whether anyone had been in an accident and felt the need to sue, or whether they felt the plaintiffs were doing something wrong in bringing the lawsuit. The record reflects no verbal response to any of these questions. Shortly thereafter, the following exchange took place:

Counsel: One of the things that the judge has mentioned on a couple of occasions is, again, this was a tripping accident. Does anybody have, again, one of those beliefs, those opinions that if somebody tripped, they’ve got to be partly at fault? They didn’t see what they were walking on, they caught their foot, they’re clumsy. Anyone think that just because they fell, they should carry some of the responsibility? Anyone at all? Okay, [later exchanges between the court and counsel indicate that about a half dozen or so of the prospective jurors tentatively raised their hands] ... [T]ell me what your thoughts are about someone falling.
Juror: Well, I have a big operation, about 350 employees, and there are trips and things like that. And, you know, there’s a part of it that’s awareness of where you are, your surroundings. So I believe in that. I believe that.
Counsel: Do you believe that the awareness is in every situation where someone may fall, whether they’re one of your employees or a relative?
Juror: Yes.
Counsel: So there’s always that little factor in any trip and fall that you believe the person who actually is injured carries a percentage of the fault?
Juror: Yes.
Counsel: And when you go back into the jury room at the time of deliberations in this case, that is something that you’re going to carry with you, no matter what happens? If, in fact, Joseph fell, he’s already partly responsible for lack of awareness, without you knowing anything?
Juror: I guess you’re right.
Counsel: I mean, that’s something I have to overcome. I’m starting out already with that little burden behind this defense. Would that be fair to state? Juror: To a certain extent.

Later, Lennar’s counsel directed the following questions to that same juror:

Counsel: Okay. You were asked a few questions by [plaintiffs’ counsel] about how you feel relative to someone claiming that they tripped and fell. You were asked a question along the lines of does anyone feel that someone necessarily bears some fault in a trip and fall, and you were among a half dozen or so people that, some tentatively, raised their hands.
Juror: Yes.
Counsel: You were asked questions along that line. Let me ask you, you’ve been told a couple times, and will hear it again if you’re picked as a juror in this case, but you have to base your deliberation on what you hear in this case, what you hear and what you see, and the law that Judge Moe gives you at the end. Can you do that?
Juror: I believe I can, yes.
Counsel: The issues are going to be simple in this case. They’re going to be was Lennar at fault, and if so, was Mr. Algie at fault, and the percentage. That’s really what you as a prospective juror’s role might be. Can you answer these questions fairly?
Juror: Yes.
Counsel: Look at what people say, look at pictures, listen to him?
Juror: Yes.
Counsel: And you don’t think you’ll have any problem serving fairly if, in fact, you’re chosen?
Juror: No.

After all the jurors were questioned, the plaintiffs sought to strike this juror for cause, citing the questions and answers wherein he indicated that, in any slip and fall, the person who falls bears some percentage of fault and his acknowledgment that the plaintiff was automatically a little behind. Lennar’s counsel insisted that the answers had been given in response to leading questions and that, when pressed, the juror indicated he could be fair. The trial court denied the strike and that ruling gives rise to the instant appeal.

“A juror is considered competent if the juror can ‘lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.’ ” White v. State, 964 So.2d 1278, 1290 (Fla. 2007) (quoting Ault v. State, 866 So.2d 674, 683 (Fla.2003)). “When a party seeks to strike a potential juror for cause, the trial court must allow the strike when ‘there is basis for any reasonable doubt’ that the juror had ‘that state of mind which w[ould] enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.’ ” Carratelli v. State, 961 So.2d 312, 318 (Fla.2007) (quoting Singer v. State, 109 So.2d 7, 23-24 (Fla.1959)). “A juror who initially expresses bias may be rehabilitated during the course of questioning”; however, “doubts raised by initial statements are not necessarily dispelled simply because a juror later acquiesces and states that he can be fair.” Lewis v. State, 931 So.2d 1034, 1039 (Fla. 4th DCA 2006). Courts must consider the totality of a juror’s responses. Id. Any “ambiguities or uncertainties” concerning a juror’s impartiality must be resolved in favor of excusing the juror. Carratelli, 961 So.2d at 318.

Applying these principles to the instant case, we find that the trial court abused its discretion in denying the plaintiffs’ request to strike the juror in question for cause. The juror’s assertion that, in every slip and fall case, the person who falls is at least partially responsible and that this would factor into his decision and would be something that the plaintiff would have to overcome clearly calls into question the juror’s ability to render an impartial verdict. Moreover, while the juror subsequently stated he believed he could be fair, the juror never recanted or receded from his earlier expressed view. Indeed, he was never asked whether he could set aside his belief and simply consider whether the plaintiff was comparatively negligent under the “reasonably prudent man” standard.

Accordingly, the judgment in favor of defendant Lennar is reversed and the matter remanded for a new trial.

Reversed and Remanded.

STONE and HAZOURI, JJ., concur.


author: BELANGER, ROBERT E., Associate Judge.

text:
    Guadalupe OLIVAS and The Hertz Corporation, Appellants, v. Shane PETERSON, Christian Rawden, State Farm Mutual Automobile Insurance Company and Gator Entertainment, Inc., Appellees.
    No. 4D06-3327.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      David F. Cooney and Warren B. Kwav-nick of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for appellants.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and Gregg A. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauder-dale, for appellee Shane Peterson.
   BELANGER, ROBERT E., Associate Judge.

This case arose out of a traffic accident involving a Hertz rental vehicle driven by appellant Guadalupe Olivas and another vehicle in which appellee Shane Peterson was a passenger. Liability and damages were highly contested.

The jury awarded Peterson $1 million in past non-economic damages and $4 million in future non-economic damages. The amount of non-economic damages the jury awarded was more than double the $2.25 million figure suggested by Peterson’s counsel during closing argument. Hertz and Olivas filed a motion for new trial, or in the alternative, for remittitur. They claimed that the verdict was grossly excessive, and argued that the maximum amount that could reasonably be supported by the evidence would be $250,000.00 for intangible damages. The trial court denied the motion for a new trial, but remitted the total judgment to $2.25 million — the amount Peterson requested in closing argument. Peterson filed a notice of accepting the remittitur. The trial court entered an amended final judgment in accordance with the remitti-tur. Hertz and Olivas appeal the amended final judgment.

Section 768.043(1), Florida Statutes, provides, in pertinent part: “If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.” (emphasis added).

In Waste Management, Inc. v. Mora, 940 So.2d 1105, 1109 (Fla.2006), our supreme court held that “a ‘party adversely affected’ under section 768.043 is the party complaining about the amount of the trial judge’s additur or remittitur which is ordered in lieu of a new trial because of the jury verdict’s excessiveness or inadequacy.” The supreme court rejected the Second District’s conclusion that the term “party adversely affected” was limited to the party who actually suffers the remitti-tur or additur. Id. at 1108. The court specifically disagreed with the proposition that only a party who receives “less in damages” can be affected by a remittitur, or only the party who has to pay more in damages can be affected by an additur. Id. As the court explained, “a defendant who has a jury award in an excessive amount of damages against the defendant can be a party adversely affected by a trial judge’s remittitur that is too little to cure the excessiveness.” Id. Consequently, “only when the parties agree with the trial court’s amount of remittitur or additur will the remittitur or additur be enforced in lieu of a new trial.” Id. at 1109.

In the present case, Hertz and Olivas argue on appeal that they did not, and still do not, agree to the amount of the remitti-tur. As such, they claim that they are entitled to a new trial on damages under Mora.

We reject Peterson’s contention that this issue is not preserved. For preservation purposes, all that should be required is that it is clear on the record that the trial court fixed an additur or remittitur to which the party did not consent. See Brant v. Dollar Rent A Car Sys., Inc., 869 So.2d 767 (Fla. 4th DCA 2004). In this case, neither Hertz nor Olivas ever agreed with the amount of the remittitur ordered by the trial court. To the contrary, Hertz and Olivas immediately disagreed with the remitted amount and the trial court’s analysis in arriving at that amount. In their post-trial motions, Hertz and Olivas argued that a new trial was the only truly appropriate remedy, but failing that, a remittitur of non-economic damages to $250,000.00 should be granted. That requested relief makes clear that the remitted sum of $2.25 million was not agreeable to appellants. See Concept, L.C. v. Gesten, 662 So.2d 970, 974 (Fla. 4th DCA 1995) (“That appellants, given the option, would not have accepted the remittitur is adequately manifested by this appeal.”-); Shalhub v. Andrews Roofing & Improvement Co., 530 So.2d 1052 (Fla. 3d DCA 1988) (holding that the trial court erred by not affording the option of accepting a remittitur or having a new trial on damages, and remanding for the trial court to enter an order giving the option); Stuart v. Cather Indus., Inc., 327 So.2d 99 (Fla. 4th DCA 1975) (a trial judge is not permitted to reduce the verdict of a jury by ordering a remittitur, without permitting the plaintiff to have the option of a new trial).

Because Hertz and Olivas did not, and do not, agree to the amount of the remitti-tur, they are entitled as a matter of law to a new trial on damages. See Mora; § 768.043, Fla. Stat. Accordingly, the damages award is reversed, and the case remanded for a new trial on damages. We have considered the additional issues raised on appeal and conclude such issues are either without merit or rendered moot by our disposition.

SHAHOOD, C.J., and STEVENSON, J., concur.


text:
    Carnell LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-417.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Richard L. Rosenbaum of Arnstein & Lehr, LLP, and Michael Hursey, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Carnell Lewis timely appeals an order revoking his sex offender community control. Having considered all issues raised, we affirm the trial court’s revocation of Lewis’s community control. We remand the case to the trial court, however, for the entry of a written order of revocation specifying the conditions violated. See Riley v. State, 884 So.2d 1038 (Fla. 4th DCA 2004).

Affirmed and Remanded.

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    VILLAGE OF TEQUESTA, Appellant, v. Brenda HALE, Appellee.
    Nos. 4D07-475, 4D07-693.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    George P. Roberts, Jr. of Roberts, Reynolds, Bedard & Tuzzio, P.A., West Palm Beach, for appellant.
    Richard E. Johnson and Andrea L. Rei-no of the Law Offices of Richard E. Johnson, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Gerard v. Dep’t of Transp., 472 So.2d 1170 (Fla.1985); Zamora v. Fla. Atl. Univ., Case No. 4D06-3043, 969 So.2d 1108, 2007 WL 3274376 (Fla. 4th DCA Nov.7, 2007).

WARNER, GROSS, JJ., and CHUMBLEY, DOUGLAS J„ Associate Judge, concur.


text:
    Ray WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2142.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Williams appeals an order denying his rule 3.170(£) motion to withdraw his plea which he alleged was involuntary because his lawyer failed to advise him that he could have prevailed on a motion to suppress. The denial of the motion was without a hearing or the attachment of any records showing he was not entitled to relief. We remand under Simeton v. State, 734 So.2d 446 (Fla. 4th DCA 1999) for attachments of portions of the record which would conclusively show there was no merit to Williams’s argument that he was on private property and therefore improperly arrested for having an open container, or in the alternative, an evidentiary hearing.

KLEIN, TAYLOR and HAZOURI, JJ., concur.


text:
    Richard MATYJASIK, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3052.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Richard Matyjasik, Immokalee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Richard Matyjasik appeals from an order that summarily denied his motion pursuant to rule 3.800(a), Fla. R.Crim. P. (2007). The circuit court did not find that appellant’s claim was facially insufficient, nor did it attach records which conclusively refuted the claim. See Sheffield v. State, 903 So.2d 1009, 1011 (Fla. 4th DCA 2005) citing (Anderson v. State, 627 So.2d 1170 (Fla.1993)). We therefore reverse and remand for further proceedings.

SHAHOOD, C.J., FARMER and MAY, JJ., concur.


text:
    Lester MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3505.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Lester Moore, Cross City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant alleged in his rule 3.800(a) motion that his two consecutive sentences are illegal because the convictions for burglary of a dwelling and grand theft arose from the same criminal episode. We reverse because the order denying his motion states no reasons for the denial and there are no records attached which would refute the claim.

Reversed.

STONE, KLEIN and TAYLOR, JJ., concur.


text:
    Howard H. WITCHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3654.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Howard Witchel, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant demonstrated no illegality in the trial court’s imposing consecutive sentences in this case, where the sentences were not enhanced. See § 921.16(1), Fla. Stat. (2000); § 921.0024(2), Fla. Stat. (2000); § 775.021(4), Fla. Stat. (2000); Almendares v. State, 916 So.2d 29 (Fla. 4th DCA 2005) (explaining that generally, judge may sentence defendant either concurrently or consecutively; the exception precluding consecutive sentencing under various enhancement statutes for offenses occurring in a single criminal episode does not apply if the defendant was not sentenced pursuant to a sentencing enhancement statute).

GUNTHER, POLEN and HAZOURI, JJ., concur.


text:
    Raymond FREEMAN, Petitioner, v. Jim RUTHERFORD, as Sheriff of Duval County, Florida, Respondent.
    No. 1D07-5495.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2007.
    Raymond Freeman, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

VAN NORTWICK, LEWIS, and THOMAS, JJ., concur.


text:
    Carolyn SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1753.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.
    Carolyn Smith, Ocala, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Carolyn Smith entered a nolo contende-re plea to two felony counts and was sentenced to twenty years incarceration. She filed a Notice of Appeal “seeking to appeal the sentence,” but then voluntarily dismissed her appeal. Eleven months after her sentencing hearing, Smith filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that her trial counsel was ineffective because he failed to call favorable witnesses and because he misled her as to the consequences of her plea.

The trial court treated Smith’s motion as a motion filed pursuant to Florida Rule of Criminal Procedure 3.170(l) and denied the motion as untimely. Rule 3.170(l) permits a defendant who pleaded guilty or nolo contendere, without expressly reserving the right to appeal a legally dispositive issue, to file a motion to withdraw that plea within thirty days after rendition of the sentence.

The State concedes that the trial court erred. The failure to file a timely Rule 3.170(Z) motion does not prevent an involuntary plea claim from being raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Youngblood v. State, 930 So.2d 852 (Fla. 2d DCA 2006); see also Barnhill v. State, 828 So.2d 405 (Fla. 5th DCA 2002). On remand, the trial court is to treat Smith’s motion as a motion filed pursuant to Rule 3.850.

REVERSED and REMANDED.

PLEUS, TORPY and EVANDER, JJ., concur.


text:
    Benjamin SAENZ, Appellant, v. PATCO TRANSPORT, INC., et al., Appellee.
    No. 5D07-646.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.
    Bill J. McCabe, Longwood, and Chadwick J. Lawrence, Kissimmee, for Appellant.
    M. Jennifer Moorhead, of Hassell, Moor-head & Carroll, Daytona Beach, for Appel-lee.
   PER CURIAM.

Benjamin Saenz appeals an order dismissing his personal injury action with prejudice. The trial court dismissed the action after finding that Saenz’ repeated attempts during discovery to conceal material facts related to his medical condition and work history amounted to a fraud on the court. Dismissal for fraud is only warranted “where ‘it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.’ ” Gehrmann v. City of Orlando, 962 So.2d 1059, 1061 (Fla. 5th DCA 2007) (quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998)). Whether Saenz’ false discovery responses rise to a level justifying dismissal under this standard presents a close question. However, a “trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court.” Id. at 1062. Having carefully considered the record and the arguments of each party, we find no abuse of discretion in the trial court’s decision.

AFFIRMED.

PALMER, C.J., PLEUS'and LAWSON, JJ., concur.


text:
    Earle P. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2557.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.
    Earle P. Clark, Monticello, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Clark filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) in sixteen different cases. He alleged that his sentencing hearing was procedurally defective and that his plea was involuntary. Neither of these claims is cognizable in a Rule 3.800(a) motion. See Hope v. State, 766 So.2d 343 (Fla. 5th DCA 2000); Abdullah v. State, 679 So.2d 846 (Fla. 5th DCA 1996). Furthermore, as the trial court observed, the claims would be untimely if raised pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

SAWAYA, MONACO and EVANDER, JJ., concur.


author: FULMER, Judge.

text:
    Daniel TAPIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2008.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Daniel Tapia challenges the sentences he received in two cases after the trial court revoked his probation. We affirm the revocation but reverse the sentences and remand for resentencing.

Tapia argues that his sentences of 43.9 months’ imprisonment imposed in cases 02-14791 and 03-719 were illegal and must be corrected to no more than 364 days because Tapia had successfully completed youthful offender boot camp in those cases. The State concedes error, and cites Bloodworth v. State, 769 So.2d 1117 (Fla. 2d DCA 2000), and Blaxton v. State, 868 So.2d 620 (Fla. 2d DCA 2004), as controlling authority.

We agree that resentencing is required. Because Tapia was placed on probation after successful completion of the youthful offender boot camp in 2004, upon revocation of that probation the trial court was limited to imposing any sentence that it might have originally imposed as a condition of probation. See § 958.045(5)(c), Fla. Stat. (2002); Blaxton.

Reversed and remanded.

LaROSE, J„ and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    Alonzo P. NEWSOME, Petitioner, v. Robert BUTTERWORTH, Secretary, Department of Children and Family Services, Respondent.
    No. 2D07-4467.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.
    Rehearing Denied Dec. 21, 2007.
    Alonzo P. Newsome, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. We note however that section 394.915(2), Florida Statutes (2006), “has been interpreted to mandate [an adversarial probable cause hearing] within five days of a request by a detainee whose [prison] sentence has expired.” Melvin v. State, 804 So.2d 460, 462 (Fla. 2d DCA 2001) (citing State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000); Valdez v. Moore, 745 So.2d 1009 (Fla. 4th DCA 1999)). The supreme court cited Valdez and Kobel with approval in State v. Goode, 830 So.2d 817, 829 n. 12 (Fla.2002), noting that the Valdez court determined that the release of the detainee is the appropriate remedy where the trial court fails to timely hold an adversarial probable cause hearing. Accordingly, we conclude that the petitioner is entitled to an adversarial probable cause hearing should he, through counsel, file a request for one.

Petition denied.

NORTHCUTT, C.J., and ALTENBERND and LaROSE, JJ„ Concur.


text:
    David E. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2151.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.
    Rehearing Denied Dec. 4, 2007.
   PER CURIAM.

Affirmed. See Collie v. State, 710 So.2d 1000, 1008 (Fla. 2d DCA 1998) (holding that procedural requirements of section 775.21, Florida Statutes (Supp.1996), do not violate constitutional ex post facto clauses); Fletcher v. State, 699 So.2d 346, 347 (Fla. 5th DCA 1997) (holding that sexual predator registration requirements are regulatory in nature and do not constitute punishment subject to constitutional ex post facto challenges).

FULMER, CASANUEVA, and LaROSE, JJ., Concur.


text:
    Oliver Derrick BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2378.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the sufficiency of the evidence to support one of his four convictions, and he also challenges the imposition of consecutive habitual felony offender sentences. Although the evidence was sufficient to support the conviction, the appellant correctly notes that the consecutive sentences are contrary to the restrictions on enhanced sentencing as announced in cases such as Hale v. State, 630 So.2d 521 (Fla.1994), for offenses which occur during a single criminal episode. The challenged conviction is affirmed, but the four sentences are vacated and the case is remanded for resentencing.

ALLEN, WEBSTER, and VAN NORTWICK, JJ., concur.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Harold L. JACKSON and Delores T. Jackson, husband and wife, Appellees.
    No. 1D07-0669.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.
    G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, for Appellant.
    Steven J. Baker of Steven J. Baker, P.A., Pensacola, for Appellees.
   PER CURIAM.

We REVERSE and REMAND this case for further proceedings. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815 (Fla.2007); Citizens Prop. Ins. Corp. v. Manning, 966 So.2d 486 (Fla. 1st DCA 2007).

BROWNING, C.J., KAHN and ROBERTS, JJ., concur.


text:
    Michael EASON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3497.
    District Court of Appeal of Florida, Fifth District.
    Nov. 20, 2007.
    Michael Eason, Milton, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980).


text:
    B.R., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-588.
    District Court of Appeal of Florida, Fifth District.
    Nov. 20, 2007.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Sylvester v. State, 766 So.2d 1223 (Fla. 5th DCA 2000).

PLEUS, MONACO and EVANDER, JJ., concur.


text:
    Juan BERNABE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3341.
    District Court of Appeal of Florida, Fifth District.
    Nov. 20, 2007.

      James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Daniels v. State, 491 So.2d 543 (Fla.1986); Gillespie v. State, 910 So.2d 322 (Fla. 5th DCA 2005).

THOMPSON, TORPY and LAWSON, JJ., concur.


text:
    Michael D. BALLARD, Appellant, v. Gail S. BALLARD, Appellee.
    No. 5D07-1321.
    District Court of Appeal of Florida, Fifth District.
    Nov. 20, 2007.
    Barry Rigby, Orlando, for Appellant.
    Linda C. Hankins, of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Acker v. Acker, 904 So.2d 384 (Fla.2005).

ORFINGER, MONACO and TORPY, JJ., concur.


author: HAZOURI, J. WARNER, J., KLEIN, J.,

text:
    Mark FREEMAN, M.D., and Raphael Rodriguez, M.D., Appellants, v. Blossom COHEN and Abraham Cohen, Medical Protective Company of Fort Wayne, Indiana, and Family Medical Center, Inc., et al., Appellees.
    Nos. 4D06-4039, 4D06-4306.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    Rehearing Denied Jan. 2, 2008.

      Richard H. Willits of Richard H. Willits, P.A., Lake Worth, for appellant Mark Freeman, M.D.
    Anna D. Torres of Powers, McNalis, Torres & Teebagy, West Palm Beach, for appellant Raphael Rodriguez, M.D.
    Jeffrey M. Scott, Tallahassee, for Ami-cus Curiae Florida Medical Association.
    Brian R. Hersh and Andrew M. Tes-chner of Law Office of Brian R. Hersh, and Alvin N. Weinstein of Weinstein, Bavly & Moon, P.A., Miami, for appellees Blossom and Abraham Cohen.
    Michele I. Nelson of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., West Palm Beach, and David Van Dyke and Brian A. Schroeder of Cassiday Schade, LLP, Chicago, IL, for appellee Medical Protective Company of Fort Wayne, Indiana.
   HAZOURI, J.

Appellants, Mark Freeman, M.D. (Dr. Freeman) and Raphael Rodriguez, M.D. (Dr. Rodriguez), appeal the trial court’s order granting appellees, Blossom and Abraham Cohen’s (the Cohens), motion to enforce a settlement with appellee, Medical Protective Company of Fort Wayne, Indiana (Med Pro). We affirm.

On February 3, 1999, the Cohens filed suit against Humana Medical Plans, Inc. (Humana), Dr. Freeman, Mark Freeman, M.D., P.A., Dr. Rodriguez, Raphael Rodriguez, M.D., P.A., and Family Medical Center, Inc. (Family Medical). The suit alleged medical negligence by Dr. Freeman and Dr. Rodriguez, which resulted in injury to Mrs. Cohen. The Cohens ultimately withdrew their claims against Mark Freeman, M.D., P.A., Raphael Rodriguez, M.D., P.A., and Family Medical. After mediation, all of the claims against Humana were settled and the case against Humana was dismissed with prejudice. The only remaining defendants were Dr. Freeman and Dr. Rodriguez.

Med Pro insured both physicians and Walk-In Family Medical Center of Boyn-ton Beach, Inc. (Walk-In), each with policy limits of $225,000 per occurrence. The insurance policies were effective January 1, 1998. Section 627.4147(l)(b)l., Florida Statutes (2002), required the policies to include:

a clause authorizing the insurer or self-insurer to determine, to make, and to conclude, without the permission of the insured, any offer of admission of liability and for arbitration pursuant to s. 766.106, settlement offer, or offer of judgment, if the offer is within the policy limits. It is against public policy for any insurance or self-insurance policy to contain a clause giving the insured the exclusive right to veto any offer for admission of liability and for arbitration made pursuant to s. 766.106, settlement offer, or offer of judgment, when such offer is within the policy limits. However, any offer of admission of liability, settlement offer, or offer of judgment made by an insurer or self-insurer shall be made in good faith and in the best interests of the insured.

§ 627.4147(1)(b)1., Fla. Stat. (2002); see also § 627.4147(3), Fla. Stat. (2002) (stating “[t]his section shall apply to all policies issued or renewed after October 1, 1985”). The policies contain a clause that provides: “The Company is authorized to compromise any claim hereunder without the consent of the Insured, including any offers for admission of liability, arbitration, settlement or judgment, unless such offer and compromise is in excess of the applicable limits of liability under this policy.”

After mediation and several communications between the Cohens and Carol Lo-bacz (Lobacz), a Med Pro adjuster, the Cohens agreed to settle the claim against Dr. Freeman and Dr. Rodriguez for $335,700. The Cohens signed the settlement proposal and general release.

At around the same time the Cohens accepted the settlement offer, Dr. Freeman sent a letter to Lobacz releasing Med Pro “from any financial malpractice insurance obligations in [his] defense or settlement thereof’ and stating that Med Pro no longer had authority to negotiate settlement regarding Dr. Freeman in the Cohen case. Later, Dr. Freeman sent Lobacz another letter stating that he was cancel-ling his policy with Med Pro, and as of that date Med Pro no longer had authority to negotiate a settlement on his behalf in accordance with paragraph 7 of the policy. That paragraph states in pertinent part: “This policy may be cancelled by the Insured by mailing to the Company or any of its authorized representatives, written notice, stating when thereafter the cancellation shall be effective.”

After being informed that Med Pro settled the malpractice claim, Dr. Freeman filed a motion for leave to file a counterclaim against the Cohens. Med Pro petitioned to intervene, asserting that it held settlement discussions with the Cohens, the Cohens agreed to settle the matter for a sum certain within the policy limits, and Dr. Freeman sought to block the settlement contrary to the terms of the policy and Florida law. The trial court granted both Dr. Freeman’s motion and Med Pro’s petition.

Dr. Freeman then filed a counterclaim for declaratory relief asserting in part that there was a dispute as to whether the Cohens settled their claim, that he did not authorize settlement, and that the requirements of section 627.4147, Florida Statutes (2003), were not satisfied. Med Pro filed a complaint for declaratory judgment requesting the court permit it to either settle with the Cohens or terminate its obligations to Dr. Freeman and the Cohens. The trial court stayed the medical malpractice action.

The Cohens filed a motion to enforce the settlement with Med Pro. The Cohens’ motion also sought dismissal of Med Pro’s complaint for declaratory judgment or alternatively summary judgment in that action. The Cohens argued that as a matter of law Dr. Freeman had no right to veto the settlement under section 627.4147(1)(b)1., Florida Statutes. The trial court granted Dr. Freeman leave to amend his counterclaim and file a cross-claim for declaratory relief against Med Pro. In these pleadings, Dr. Freeman asserted he cancelled his policy, Med Pro was without authority to settle the case, Med Pro did not settle the case in good faith, and that the procedural requirements of section 627.4147 were not met.

The trial court denied the Cohens’ motion after a hearing. The record does not indicate the basis for denial. The Cohens appealed the denial of their motion to enforce the settlement to this court in case number 4D04-2208. The majority opinion in Cohen v. Freeman, 914 So.2d 449 (Fla. 4th DCA 2005) (“Cohen I”), concluded that the trial court’s initial decision to decline to enter a judgment of enforcement of settlement was correct due to “procedural irregularities” in the motion to enforce settlement, but that it was:

without prejudice to appellants for filing a clear motion directed to that subject only, giving proper notice of the hearing on that motion, and presenting evidence or a written stipulation to the trial court establishing the settlement and the terms thereof. Upon compliance with these procedural requirements, appellants will be entitled to immediate enforcement of their settlement by appropriate judgment.

Id. at 450.

The majority opinion also rejected Dr. Freeman’s objections to the settlement and allegations of bad faith on the part of Med Pro, concluding these arguments were insufficient as a matter of law to prevent the Cohens and Med Pro from settling the medical malpractice action. Id. at 450 (citing Shuster v. S. Broward Hosp. Dist. Phys. Prof'l Liab. Ins. Trust, 591 So.2d 174 (Fla.1992); § 627.4147(1)(b)1., Fla. Stat. (2005)). The majority noted that Dr. Freeman “does not claim, that the settlement prejudiced any counterclaim he had previously asserted in the malpractice action; nor does he claim that the settlement subjects him to a judgment above policy limits.” Cohen, 914 So.2d at 450. The majority went on to conclude that “[t]he pending bad faith claims by the doctor may not be used to delay or impair the entitlement of the settling parties to immediate enforcement of their settlement.” Id.

Upon remand, the Cohens filed a new motion for judgment enforcing settlement, attaching a copy of a stipulation between the Cohens and Med Pro. The stipulation of settlement provided in paragraph 4 that the parties to the settlement did not discuss how the settlement amount of $335,700 would be allocated among the various insurance policies issued by Med Pro to Dr. Freeman, Dr. Rodriguez, and Walk-In. Med Pro filed an identical motion.

Thereafter, the trial court held two hearings on the motion to enforce settlement. After a dispute arose over a witness at the second hearing, the trial court continued the hearing. Before the hearing, the Cohens filed a petition for mandamus in this court, claiming they were entitled to have the trial court enforce the settlement agreement without further delay based on this court’s decision in Cohen I. This court denied the petition, concluding:

Cohen v. Freeman, 914 So.2d 449 (Fla. 4th DCA 2005), does not preclude the trial court from conducting an evidentia-ry hearing on the nature and extent of the settlement agreement and its terms. The opinion rejects Dr. Freeman’s claim that he had the right to control the malpractice litigation.

Cohen v. Humana Med. Plans, Inc., 922 So.2d 1106, 1106 (Fla. 4th DCA 2006) (“Cohen II”). After an evidentiary hearing, the trial court granted the Cohens’ motion to enforce the settlement with Med Pro in the amount of $335,700. This appeal followed.

Although Dr. Freeman, Dr. Rodriguez, and the Florida Medical Association, as amicus curiae, (collectively “the doctors”), attempt to raise several arguments on appeal, their arguments boil down to one; that this court improperly construed section 627.4147 and Shuster in Cohen I, thus, depriving the doctors of their right to a jury trial. We disagree.

In Rogers v. Chicago Insurance Co., 964 So.2d 280, 281-82 (Fla. 4th DCA 2007), this court explained:

Rogers [, a medical doctor,] filed suit against his insurance company, claiming that it had failed to exercise good faith in its conduct of the presuit investigation and settlement. He alleged violations of both the presuit investigation procedure pursuant to section 766.106 and violation of the duty of good faith settlement in the best interests of the insured under section 627.4147. Rogers alleged that if Chicago [, the insurance company,] had properly investigated the claim, it would have discovered that the suit was completely defensible. Rogers alleged that as a result of Chicago’s settlement of the claim, it refused to renew his policy of insurance, causing Rogers to pay substantially more in premiums. Chicago moved to dismiss, claiming that neither statute provided a private right of action and that Chicago’s settlement within the policy limits precluded an action against it under the holding of Shuster v. South Broward Hospital District Physicians’ Professional Liability Insurance Trust, 591 So.2d 174 (Fla.1992). The trial court agreed and dismissed Rogers’ complaint, ....

This court affirmed the dismissal of Rogers’s amended complaint:

We conclude that the statutory language, requiring that any settlement be in the best interests of the insured, means the interests of the insured’s rights under the policy, not some collateral effect unconnected with the claim. For example, the insured may have a counterclaim in the malpractice lawsuit for services rendered, which should not be ignored. Nor should the insurer be able to settle with the claimant and leave the doctor exposed to a personal judgment for contribution by another defendant in the same case. By including the language that any settlement must be in the best interest of the insured, the legislature was merely making it clear that, although it was providing that an insured cannot veto a settlement, the power to settle is not absolute and must still be in the best interests of the insured under Boston Old Colony [Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla. 1980) ] and Shuster.

Id. at 284 (footnote omitted).

In addition to our holding in Rogers, Shuster makes it clear that higher insurance premiums and damages to the insured’s reputation are not examples of bad faith by the carrier in settlement of the covered claim within policy limits. 591 So.2d at 177 (concluding “in contrast to the right to settle a claim within the policy limits without considering the impact of higher premiums or damage to the insured’s reputation, we do not believe the language of the contract would indicate nor do we believe it would have been the intent of the parties, that the insured give up his or her right to a counterclaim by entering into the agreement”) (emphasis added). Shuster’s teaching was known to the Legislature when it adopted section 627.4147(1)(b)1. The bad faith exception left open by the statute is for the exceedingly rare instance when the settlement “defeats the very purpose for which the policy was procured.” Shuster, 591 So.2d at 177. The policy’s purpose was indemnification and a defense of covered claims, not to protect the insured from increases in insurance premiums or damage to his reputation from a paid claim. Therefore, the only bad faith action available to the insured when the carrier settles a claim against the insured within policy limits is one alleging prejudice to a pending counterclaim of the insured or exposure of the insured to additional damages above policy limits arising from the same covered claim being settled.

Therefore, we hold, as we did in Cohen I, that Dr. Freeman and Dr. Rodriguez’s bad faith arguments are insufficient as a matter of law to prevent the Cohens and Med Pro from settling the malpractice action. See Cohen I, 914 So.2d at 449-50.

Affirmed.

WARNER and KLEIN, JJ., concur specially with opinions.

WARNER, J.,

concurring specially.

I concur in the majority opinion, because Dr. Freeman was attempting to prevent the settlement from occurring. He was interfering with the insurance company’s right to settle this malpractice action without the permission of the insured, as set forth in section 627.4147(1)(b)1., Florida Statutes. This is distinguishable from Rogers v. Chicago Insurance Co., 964 So.2d 280 (Fla. 4th DCA 2007), in which I dissented, where the doctor sued for damages for violation of section 627.4147 after a settlement was consummated.

I continue to adhere to my dissent in Rogers, but it is factually inapposite to the issue in this case. Judge Klein seeks to bolster the majority opinion in Rogers in his concurring opinion. He worries about the dilemma an insurance company may have in a case where a doctor objects to a settlement. This dilemma does not render the express statutory language “absurd.” If there is a problem with the statute as written, then it is up to the legislature, not the courts, to revise its provisions.

KLEIN, J.,

concurring specially.

I agree entirely with the majority opinion. I am writing in response to Dr. Freeman’s argument that this decision will deprive him of a bad'faith remedy after this settlement is concluded. In Rogers v. Chicago Insurance Co., 964 So.2d 280 (Fla. 4th DCA 2007), the doctor objected to his medical malpractice insurer making a settlement in a case he believed was defensible. The insurer settled anyway, and in his suit for damages Dr. Rogers alleged that as a result of the settlement he had to pay substantially more for malpractice coverage. We held he had no cause of action, based on the principle that courts do not interpret statutes literally if it would lead to an “unreasonable or ridiculous conclusion.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). I am writing to explain why I think such an interpretation of the statute would lead to “unreasonable or ridiculous” results.

If we allow doctors to sue for damages such as increased malpractice insurance premiums, where the insurer settles over the doctor’s objection, it would, in my opinion, bring an abrupt end to the settlement of all malpractice cases whenever the doctor objects. Consider the present case, in which Dr. Freeman has $225,000 policy limits. If he, when an insurer settles a claim over his objection, can sue for damages for having to pay higher premiums or inability to obtain malpractice insurance, the damages could easily exceed the policy limits. Under these circumstances no insurer would settle, because if it did it could be exposed to unlimited damages. The only safe course of action would be for an insurer to accede to the doctor’s wishes and not settle, because then its liability would not exceed the policy limits.

That is precisely what has occurred in this case. The claimant and the insurer agreed on an amount to settle in June, 2003, for this 1995 incident, but, because Dr. Freeman sued, the claimant is still waiting for her money. Insurance companies must be able to control risk, and the only way they can control risk, and not expose themselves to unlimited types or amounts of damages, is to not settle if the doctor objects. I cannot imagine why a medical malpractice insurer would even write coverage in Florida under that scenario.

There is another problem with allowing this cause of action. Assume that the insurer settles with the claimant over the objection of the doctor, and the doctor then sues for increased premiums, inability to get insurance, loss of hospital staff privileges, all of which could directly result from the settlement. If such a case were to go to trial, how does a jury resolve the issue? Does it balance the merits of settling the malpractice claim against the collateral effect of the settlement on the economic well being of the doctor? Those two things are no more comparable than apples and oranges. How does a jury value one over the other?

And what about the claimants who have been injured through malpractice? In the present case the claimant may well have relied on the fact that Dr. Freeman had malpractice insurance. Dr. Freeman, however, not only objected to any settlement and filed this lawsuit to stop a settlement, but also tried to cancel his insurance, after the incident, retroactive to before the incident. In other words, Dr. Freeman took the position that he could cancel his insurance after the incident and leave himself without insurance coverage for the incident. I assume that Dr. Freeman, like many South Florida doctors, has made himself judgment proof and purchased low limits primarily to cover the costs of defending claims. Otherwise why would Dr. Freeman cut off his nose to spite his face?

Considering all of the problems our legislature has grappled with involving medical malpractice and insurance, I cannot imagine that it could have intended to expose insurers to new unspecified damage claims when it enacted the statute. Although I recognize that the principle of not literally interpreting a statute where it would lead to an absurd result should be used sparingly, we were correct in applying that principle in Rogers and here.

      . Walk-In is the correct name of the Family Medical Center.

      . The statute was amended in 2003. It applies "to all policies issued or renewed after October 1, 2003.” § 627.4147(3), Fla. Stat. (2003). However, the subsection in question is unchanged. See id.; § 627.4147(1)(b)1., Fla. Stat. (2003).

      . These policies were claims-made policies in which coverage was effective if the negligent act or omission was discovered and brought to the insurer's attention within the policy term.

      . Dr. Freeman and Dr. Rodriguez's separate appeals have been consolidated.


text:
    Marvin JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1962.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Marvin Johnson, Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This case is reversed and remanded for further review of appellant’s June 26, 2006, rule 3.800(a) motion. As the state recognizes, that motion was not successive to the motion that was disposed of by the trial court’s order of March 2006.

GUNTHER, GROSS and HAZOURI, JJ., concur.


text:
    Shirley A. WILSON, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, and Marshalls of MA, Inc., Appellees.
    No. 4D07-1060.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    Shirley A. Wilson, Fort Lauderdale, pro se.
    Louis A. Gutierrez, Tallahassee, for ap-pellee Unemployment Appeals Commission.
   PER CURIAM.

Appellant Shirley A. Wilson appeals the Unemployment Appeals Commission’s af-firmance of the referee’s findings of fact in her unemployment case determining she was ineligible for unemployment benefits. “On appeal, the Commission’s order is entitled to a presumption of correctness and the burden is on the appellant to demonstrate error.” Leedham v. State Unemployment Appeals Comm’n, 950 So.2d 475, 476 (Fla. 4th DCA 2007). “A denial of benefits is warranted when the employee’s actions are in willful or wanton disregard of the employer’s interest as is found in deliberate violation of a standard of behavior which the employer has the right to expect of his or her employee.” Id. at 477.

We affirm.

POLEN, KLEIN and MAY, JJ., concur.


text:
    WHITNEY INFORMATION NETWORK, INC., Petitioner, v. COUNCIL OF BETTER BUSINESS BUREAUS, INC., Better Business Bureau of West Florida, Inc., Better Business Bureau of Northwest Florida, Inc., Better Business Bureau of Central Florida, Inc., Better Business Bureau of Northeast Florida, Inc. and Better Business Bureau of Southeast Florida and the Caribbean, Respondents.
    No. 4D07-1164.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Steven N. Lippman, Shawn L. Birken and Matthew S. Sackel of Rothstein Ro-senfeldt Adler, Fort Lauderdale, for petitioner.
    Nancy C. Ciampa, Charles M. Rosenberg and Michael A. Shafir of Carlton Fields, P.A., for respondents.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

Following this court’s decision dismissing the petition for writ of certiorari in Whitney Information Network v. Council of Better Business Bureaus, 957 So.2d 119 (Fla. 4th DCA 2007), petitioner sought review in the Florida Supreme Court. (SC07-1146). The Supreme Court granted petitioner’s Unopposed Motion to Remand, treating it as a motion to relinquish jurisdiction, and relinquished jurisdiction for this court to reconsider the decision in this case in light of our subsequent decision in Power Plant Entertainment, LLC v. Trump Hotels & Casino Resorts, 958 So.2d 565 (Fla. 4th DCA 2007) (en banc).

We have considered the petition and conclude that there is no departure from the essential requirements of law, or a showing of irreparable harm in this case.

SHAHOOD, C.J., FARMER and KLEIN, JJ., concur.


text:
    William PLUMMER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1194.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    William Plummer, Jr., Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

William Plummer, Jr. seeks review of an order that disposed of his rule 3.800(a) motion. We remand for resentencing in connection with one point.

The trial court agreed with Plummer that the violent habitual offender and related mandatory minimum portion of his sentence should be stricken with respect to LT 04-11634. Brooks v. State, 837 So.2d 1125 (Fla. 4th DCA 2003). In so doing, the court did not determine that a resen-tencing hearing was required. We remand for the trial court to conduct a de novo sentencing hearing. See Ross v. State, 901 So.2d 252 (Fla. 4th DCA 2005); see also Tumblin v. State, 965 So.2d 354 (Fla. 4th DCA 2007); Granatino v. State, 965 So.2d 361 (Fla. 4th DCA 2007).

STONE, STEVENSON and TAYLOR, JJ., concur.


text:
    Ronald V. KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4062.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    Ronald V. Kelly, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Kelly filed a rule 3.850 motion which is facially insufficient to state any proper claims for relief under the rule. The court, on recommendation by the state, denied the motion without prejudice to Kelly filing an amended motion in full compliance with rule 3.850. A dismissal of a rule 3.850 motion with leave to amend is non-final and non-appealable. Williams v. State, 884 So.2d 374 (Fla. 2d DCA 2004); Lee v. State, 939 So.2d 154 (Fla. 1st DCA 2006).

Dismissed.

GUNTHER, POLEN and KLEIN, JJ., concur.


text:
    Ronald ROSS, II, Appellant, v. STATE of Florida, Unemployment Appeals Commission, and Euromarket Designs, Inc., Appellees.
    No. 4D07-3231.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    Ronald Ross, II, Riviera Beach, pro se.
    No appearance required for appellees.
   PER CURIAM.

Appellant filed a response in compliance with our August 22, 2007, order, which we treat as an amended notice of appeal, as well as appellant’s initial brief. We summarily affirm pursuant to Florida Rule of Appellate Procedure 9.315(a).

POLEN, FARMER and STEVENSON, JJ., concur.


author: POLEN, J.

text:
    Kurtis BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-419.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Kurtis Barnes timely appeals the revocation of probation for possession of cocaine with intent to deliver and sentence of fifteen years in Florida state prison.

Barnes argues that the amendment of the date of the crime, coming as it did in the middle of the hearing, was substantial and prejudicial. Barnes claims he is entitled to a new hearing as his right to a fair hearing was violated. We affirm on that issue but remand with instructions to enter a written order specifying the conditions of probation which Barnes was found to have violated and which conforms to the court’s oral declarations. See Moss v. State, 617 So.2d 473 (Fla. 4th DCA 1993); Madoses v. State, 511 So.2d 1132 (Fla. 4th DCA 1987); Jordan v. State, 489 So.2d 224 (Fla. 2d DCA 1986).

Affirmed and Remanded with instructions.

KLEIN and MAY, JJ., concur.


text:
    James C. WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3824.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2007.
    James C. Williamson, pro se, Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In the case before us, Appellant filed a petition for writ of habeas corpus below, then subsequently filed a motion to voluntarily dismiss the same petition. The trial court granted Appellant’s motion to voluntarily dismiss, but later denied the petition on the merits. We reverse.

The effect of a voluntary dismissal is to completely remove from the trial court’s consideration the power to enter an order, equivalent in all respects to a deprivation of jurisdiction. See Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 69 (Fla.1978). Accordingly, once Appellant moved to voluntarily withdraw his petition and the case was dismissed by the trial court, the court was without jurisdiction to render its subsequent order denying Appellant’s petition. Appellant’s petition should hereby be treated as dismissed without prejudice, and he is free to refile his petition for writ of habeas corpus if he so chooses, so long as no other procedural bars exist. See McKelvey v. Kismet, Inc., 430 So.2d 919, 921 (Fla. 3d DCA 1983).

The trial court’s order denying Appellant’s petition for writ of habeas corpus is REVERSED.

WOLF, POLSTON, and THOMAS, JJ., concur.