source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mary Patricia MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2584.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.
    Rehearing Denied Nov. 14, 2006.
    Mary P. Martin, Brooksville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the motion for post-conviction relief pursuant to rule 3.850 because the motion was brought more than two years after appellant’s judgment and sentence became final. The filing of an unsuccessful petition for belated appeal does not toll the rendition of a judgment and sentence for purposes of calculating the two-year window. See Jones v. State, 922 So.2d 1088 (Fla. 4th DCA 2006).

AFFIRMED.

PALMER, MONACO and LAWSON, JJ., concur.


author: WHATLEY, Judge.

text:
    Steven and Tina KRANIAS, Petitioners, v. Dimitrios TSIOGAS, a/k/a Jimmy Tsiogas, Pogoni Land Trust, LLC, Individually and as Trustee, Pogoni Investments, LLC, Pogoni Management, LLC, and Epicurus, LLC, Respondents.
    No. 2D06-2269.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2006.
    Rehearing Denied Nov. 28, 2006.

      Marcus A. Castillo of Haas & Castillo, P.A., Clearwater, for Petitioners.
    Timothy W. Weber and Mark P. Stopa of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Respondents.
   WHATLEY, Judge.

The Petitioners, Steven and Tina Krani-as, seek certiorari review of two discovery orders. The first order requires them to provide a privilege log or documents upon which they rely to support an allegation in their second amended complaint that certain property deeds are fraudulent, and the second order requires them to disclose a letter sent to them by their attorney. We conclude that the circuit court departed from the essential requirements of the law in ordering the Petitioners to produce the documents because they are privileged, and we grant their petition for writ of certiorari. City of Oldsmar v. Kimmins Contracting Corp., 805 So.2d 1091, 1093 (Fla. 2d DCA2002).

The circuit court’s order requiring the Petitioners to produce either a privilege log or documents upon which they rely to support their allegation in the complaint concerning the property deeds is overbroad. In Bishop v. Polles, 872 So.2d 272, 274 (Fla. 2d DCA 2004), this court examined the following interrogatory:

Please identify with specificity and particularity each and every document or evidentiary object that the Plaintiff or Plaintiffs attorneys, investigators or agents have in their possession, or reasonably believe may be in their possession, which may contain information pertaining to or evidencing any of the matters raised in the Complaint or pertaining to or evidencing any act or omission on the part of Bebe Schulman, M.D., which the Plaintiff or Plaintiffs attorneys contend contributed to any injury to Plaintiff or the Plaintiffs damages. With respect to each document or object identified, please identify by name, business and residence, occupation, employer, and last known whereabouts, the present custodian thereof or such persons as the Plaintiff, Plaintiffs attorneys, investigators and agents reasonably believe might possess the document or object, or a copy thereof. This request specifically includes, but is not limited to, all documents or exhibits that the Plaintiff or Plaintiffs attorneys might conceivably offer as evidence at trial.

In Bishop, 872 So.2d at 274, this court held that, although a party is entitled to the discovery of items that the other party intends or reasonably expects to use at trial, the above interrogatory goes beyond this entitlement and requests items that the petitioners may conceivably offer as evidence during trial. Therefore, this court concluded that the interrogatory was overbroad and improperly sought information protected by the attorney work product privilege. Id.

As in Bishop, the request for production in this case is overbroad, because it improperly requires the Petitioners to produce documents which potentially pertain to their claim but may not be offered as evidence at trial. See Northup v. Acken, 865 So.2d 1267 (Fla.2004). Therefore, the circuit court erred in ordering the Petitioners to produce either a privilege log or all documents which they believe support their claim.

The second discovery order requires the production of a two-page letter sent to the Petitioners by their attorney, Lee Haas, which discussed issues pertaining to quitclaim deeds. Haas was a witness to the signatures on the quitclaim deeds. The Petitioners contend that the circuit court erred in ordering them to disclose this letter, because the letter is protected by the attorney-client privilege. The circuit court based its holding on section 90.502(4)(d), Florida Statutes (2002), which provides that the attorney-client privilege does not apply when the “communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning the execution or attestation of the document.”

We conclude that the circuit court erred in ordering the production of this letter based on section 90.502(4)(d), because this exception to the attorney-client privilege does not apply here. There has been no argument that the Petitioners either did not intend to sign or were not competent to sign the quitclaim deeds that conveyed property from a land trust to the Petitioners. The attorney-client privilege is not waived as to communications between an attorney and a client when such communications pertain to the preparation of a document merely because the attorney later acts as a witness to the parties’ signatures on that document.

Accordingly, we grant the petition for writ of certiorari, quash both discovery orders, and remand this case for further proceedings consistent with this opinion.

Petition for writ of certiorari granted.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . We do not address the Respondents' argument that the letter is not subject to the attorney-client privilege based on other exceptions, because the record before us is insufficient to make such findings.


author: BROWNING, C.J.

text:
    Anthony Monroe HOOD, Roxie I. Hood, Appellants, v. UNION PLANTERS BANK, Appellee.
    No. 1D04-2184.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Rehearing Denied Nov. 20, 2006.
    Anthony Monroe Hood, Pro se, Appellant,

      Roxie I. Hood, Appellant, no appearance.
    Susan Minor, Esq., of Shapiro & Fish-man LLP, Boca Raton, for Appellee.
   BROWNING, C.J.

We dismiss the instant appeal for lack of jurisdiction. Appellant Anthony Hood has no standing to appeal this foreclosure because he was not one of the parties named below, and made no effort to intervene. See, e.g., Stas v. Posada, 760 So.2d 954, 955 (Fla. 3d DCA 1999); Barnett v. Barnett, 705 So.2d 63 (Fla. 4th DCA 1997). Appellant Roxie Hood has not filed any documents associated with this appeal and, in fact, never filed a notice of appeal in this case. Because Anthony Hood cannot bring this appeal, and Roxie Hood has not actually appealed, we hereby dismiss the entire appeal.

DISMISSED.

KAHN, and DAVIS, JJ., concur.


author: CANADY, Judge.

text:
    Larry W. NOUGHTON and Karolyn Noughton, Appellants, v. W. Ross HOOKER, individually; Platinum Contracting, Inc., a Florida corporation; and Butler Manufacturing Co., a Missouri corporation authorized to do business in the State of Florida, Appellees.
    No. 2D05-1444.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2006.
    Karl C. Landsteiner of Karl C. Landsteiner, P.A., .Fort Myers, for Appellants.
    Richard M. Marchewka, Fort Myers, for Appellees W. Ross Hooker and Platinum Contracting, Ine.
    Kim E. Howard of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Ap-pellee Butler Manufacturing Co.
   CANADY, Judge.

The plaintiffs, Larry W. Noughton and Karolyn Noughton, appeal a trial court order dismissing for failure to prosecute their complaint against defendants W. Ross Hooker, Platinum Contracting, Inc., and Butler Manufacturing Co. The Nough-tons raise three points on appeal. We address only one point, which we conclude requires reversal of the trial court’s order.

In June 1999, the Noughtons filed a complaint against the defendants, alleging breach of contract. On February 19, 2003, the defendants filed motions to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). On March 14, 2003, the Noughtons filed a showing of good cause, claiming that they had been attempting to depose a representative of Butler since September 2002.

While the motions to dismiss for failure to prosecute were pending, the parties continued to engage in discovery. They also participated in mediation, which proved to be unsuccessful.

On June 11, 2004, the defendants noticed for hearing their motions to dismiss for failure to prosecute. On July 12, 2004, the trial court held a hearing on the motions. On September 15, 2004, the trial court issued an order finding that there was no record activity during the one-year period from February 12, 2002, to February 19, 2003, but that an evidentiary hearing would be necessary to determine if the Noughtons established good cause to preclude dismissal under rule 1.420(e) and to determine if there was activity occurring after February 19, 2003, that would constitute an abandonment of defendants’ motions to dismiss. On January 10, 2005, the trial court held another hearing. On February 16, 2005, the trial court entered an order, finding that there was no record activity from “February 12, 2002[,] through February 19, 2003[,] and no good cause has been shown for this failure to prosecute.” The trial court dismissed the action without prejudice.

On appeal, the Noughtons argue that granting the defendants’ motions to dismiss for failure to prosecute was error because the defendants abandoned their motions by participating in discovery and mediation. In making this argument, the Noughtons rely on City of Miami v. Katz, 498 So.2d 635 (Fla. 3d DCA 1986).

In Katz, the hearing on the motion to dismiss for failure to prosecute was held seven months after the motion was filed. Id. at 636. In the interim, the plaintiff had “actively prosecuted the claim through completion of discovery and setting the case for trial.” Id. The court held that “[w]here no timely notice of hearing is scheduled on a motion to dismiss prior to the resumption of action which furthers prosecution of the case, the nonmoving party is entitled to assume that the motion has been abandoned.” Id. The Third District affirmed the trial court’s denial of the motion to dismiss for failure to prosecute. Id.

The defendants claim that this case is distinguishable from Katz because here discovery was not complete and the case was not set for trial. This argument is not supported by the record. At the hearing, the Noughtons’ counsel stated that “[b]ut for the fact that [one of the defendants] hasn’t filed an answer, the case will be at issue, it is ready to be tried.” In addition, the holding in Katz does not require the case to be ready for trial but instead focuses on the “resumption of action which furthers prosecution.” Id. at 636. Therefore, the defendants’ attempt to distinguish Katz is unavailing.

The Katz court relied on three cases. In Pollock v. Pollack, 116 So.2d 761 (Fla.1959), the supreme court addressed the abatement statute from which rule 1.420(e) was adopted and held that it was not self-executing but required a party to seek dismissal under it. In Equity Capital Co. v. 601 West 26 Corp., 223 So.2d 762 (Fla. 3d DCA 1969), the Third District held that the trial court should not have dismissed an action for failure to prosecute because the defendants did not move for dismissal under rule 1.420(e) before the plaintiff resumed activity after one year of no activity. The court held that “[t]he moving party must seek dismissal prior to resumption of affirmative action toward prosecution of the case.” Id. at 763. In Fields v. Fields, 291 So.2d 663 (Fla. 1st DCA 1974), the First District placed the burden on the court to schedule a hearing on its own notice or motion to dismiss for failure to prosecute. The court held that where the court serves a notice of intention to dismiss and no hearing is held on that notice, no timely order is entered, and “the parties continue to file pleadings and take depositions, they are entitled to rely upon the court’s inaction and to assume that the notice or motion of the court has been abandoned.” Id. at 665.

The holding in Katz is consistent with the idea that “[ljitigants have an affirmative obligation to move them cases to resolution and not sit back and rely on the trial court to set their hearings for them.” Sewell Masonry Co. v. DCC Constr., Inc., 862 So.2d 893, 899 (Fla. 5th DCA 2003).

Because the defendants effectively abandoned their motions to dismiss for failure to prosecute by engaging in discovery and participating in mediation, we conclude that the trial court abused its discretion in granting the motions to dismiss for failure to prosecute. See Katz, 498 So.2d at 636. Accordingly, we reverse the trial court’s order granting the defendants’ motions to dismiss and dismissing the Noughtons’ complaint without prejudice.

Reversed and remanded.

CASANUEVA and DAVIS, JJ., Concur.

      . The Noughtons claim that the breach of contract cause of action accrued no later than February 1999. The statute of limitations would therefore have run by February 2004, before the trial court entered the order dismissing the complaint. See § 95.11(2)(b), Fla. Stat. (Supp.1998).


author: DAVIS, Judge.

text:
    Patrick SLUYTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1501.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2006.
    Rehearing Denied Nov. 20, 2006.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin and John M. Klawikofsky, Assistant Attorneys General, Tampa, for Appellee.
   DAVIS, Judge.

Patrick Sluyter appeals his judgment and sentence for two counts of sexual battery. Because the trial court improperly prevented Sluyter from presenting an insanity defense, we reverse and remand for a new trial.

Sluyter was charged by information with two counts of sexual battery on a child less than twelve years of age. After examination by court-appointed experts, Sluyter filed his notice of intent to rely on an insanity defense based on a steroid psychosis. In response, the State filed a motion in limine, seeking to exclude the doctors’ testimony related to such a defense. The trial court granted the State’s motion. Following a jury trial at which he was convicted of both charges, Sluyter was sentenced to two life sentences.

The insanity test in Florida is the modified version of the M’Naghten rule.

In Florida, the test for insanity as a defense to a criminal charge is whether at the time of the offense the defendant had a mental infirmity, disease, or defect and, as a result, did not know what he was doing or did not know what he was doing was wrong.

Fisher v. State, 506 So.2d 1052, 1054 (Fla. 2d DCA 1987) (citation omitted). The burden is on the defendant to present evidence that shows his insanity. Milburn v. State, 742 So.2d 362, 363 (Fla. 2d DCA 1999); Johnson v. State, 408 So.2d 813, 815 (Fla. 3d DCA 1982).

Sluyter presented evidence that, due to diminished sexual libido, he had been prescribed Halotestin by his treating physician. Sluyter also proffered the testimony of Dr. Frederick Schaerf, a practicing psychiatrist who was appointed by the court to examine Sluyter. Dr. Schaerf testified that, in his opinion, Sluyter met the test for insanity:

Well, I strongly believe that he meets the Florida definition of insanity. That, No. 1, he is suffering from a mental infirmity or defect or disease, and that is the Halotestin intoxication.
... And so I also believe because of that Halotestin intoxication, he did not know what he was doing at that moment because it was such a driven sexual behavior. And although afterwards he’ll say that it was wrong, at that specific moment he could not tell right from wrong.

However, despite this specific testimony, the trial court denied Sluyter the opportunity to present an insanity defense to the jury-

We begin with the proposition that “[a] party is entitled to present evidence upon the facts that are relevant to his theory of the case, so long as that theory has support in the law.” Zamora v. State, 361 So.2d 776, 779 (Fla. 3d DCA 1978).

In the instant case, Sluyter’s theory, that he was legally insane at the time of the offenses due to involuntary Halotes-tin intoxication, finds support in the law. In Brancaccio v. State, 698 So.2d 597 (Fla. 4th DCA 1997), the Fourth District quoted approvingly from an article collecting cases on the defense of involuntary intoxication: “ ‘Generally speaking, an accused may be completely relieved of criminal responsibility if, because of involuntary intoxication, he was temporarily rendered legally insane at the time he committed the offense.’ ” Id. at 599 (quoting Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 (1976)). In Miller v. State, 805 So.2d 885, 887 (Fla. 2d DCA 2001), this court followed Brancaccio, stating:

[W]here the intoxication is involuntary, it typically has been raised in an attempt to prove an insanity defense rather than an intoxication defense. The definition of insanity has been expanded to include those situations in which a person could not distinguish right from wrong as the result of an involuntarily-induced intoxicated state.

The State argues, however, that Slu-yter’s proffered evidence was properly excluded because it would not have demonstrated that Sluyter met this test for insanity. It is the State’s position that Sluyter’s intoxication was voluntary and that his actions indicated that he knew the difference between right and wrong. However, the record reveals testimony from which the jury could have reached the opposite conclusion.

The State’s argument that Slu-yter’s intoxication was voluntary, not involuntary, finds no support in the law. Where the intoxicating dose of medication has been prescribed or administered by a physician, any resulting intoxication is considered to be involuntary. Hassman, supra, § 7(a); see also Boswell v. State, 610 So.2d 670 (Fla. 4th DCA 1992) (concluding that a defendant who was under the influence of Prozac and Xanax as prescribed by a doctor was entitled to an instruction on involuntary intoxication). In the instant case, Sluyter was prescribed Halotestin for a medical condition. There was no indication that he took the wrong dose or that he took the drug improperly. Thus, Gray v. State, 731 So.2d 816 (Fla. 5th DCA 1999), which is cited by the State, has no application to this case since the defendant there ingested illegal nonprescription drugs.

The State also argues that Sluyter’s intoxication was voluntary because he voluntarily ingested alcohol while taking the Halotestin, resulting in intoxication. However, Dr. Schaerf s testimony provides evidence from which the jury could have found otherwise. He opined: “And were it not for the Halotestin, it would have never happened, in my opinion. That it never happened before, would never happen again.” The doctor’s use of the term “Hal-otestin intoxication” does not invalidate the doctor’s opinion regarding Sluyter’s sanity. The doctor went on to say that it was the Halotestin that “put him in the mental state where he ended up not being able to appreciate what he was doing.” Accordingly, because the drugs ingested here were prescription drugs prescribed by a physician and because Halotestin, not alcohol, caused the intoxication, Sluyter’s resulting intoxication must be considered involuntary.

Furthermore, although the State argues that Sluyter’s actions indicate that he knew the difference between right and wrong, the record offers evidence contrary to that contention. The portion of the record cited by the State as demonstrating that Sluyter knew the difference between right and wrong is a quote taken from Dr. Schaerf s report in which Dr. Schaerf gave Sluyter’s explanation of the offense: “He woke up with a recollection of his daughter touching him and the patient touching his daughter.” Also, “[h]e told his daughter it was wrong and told her it cannot be discussed.” These comments clearly referred to Sluyter’s reactions afterwards, not his awareness of the wrongfulness of the events at the time they were occurring. Moreover, Dr. Schaerf specifically testified that he believed that Sluyter met the Florida test for insanity because he did not know what he was doing at the moment of the offense: “[A]t that specific moment he could not tell right from wrong.” Accordingly, the record does not support the State’s argument that the evidence was properly excluded on this basis.

Although the State presented evidence that may have contradicted Dr. Schaerf s opinion regarding Sluyter’s sanity, the trial court erred in not allowing Sluyter to present his evidence and argue his theory of defense to the jury. See Bosivell, 610 So.2d 670. When a defendant has competent evidence to support his theory of defense, the trial court denies the defendant his due process rights guaranteed by the constitution when he is prohibited from presenting that defense to the jury. Washington v. State, 737 So.2d 1208, 1221 (Fla. 1st DCA 1999). Because Dr. Schaerf s testimony specifically provided Sluyter with a basis to present an insanity defense, the trial court erred in precluding the doctor from testifying and in denying Sluyter the opportunity to argue his only defense.

Reversed and remanded for a new trial.

CASANUEVA and WALLACE, JJ., Concur.


author: WARNER, J.

text:
    William RUGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4372.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Dec. 6, 2006.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm William Ruger’s convictions for second degree murder with a weapon, grand theft, and two counts of uttering a forgery. He claims that the court erred in denying "his Nelson challenge, in rejecting his peremptory challenge to a juror, in denying a motion for mistrial based upon improper impeachment of his character, and by allowing the jury to convict him of an enhanced felony without finding the use of a weapon element beyond a reasonable doubt. On all issues we affirm.

Ruger was charged with the murder of Clifford Morrison, who was found dead in his home. Morrison had sustained a stab wound to the chest and blunt force trauma. The principal witness against Ruger was Naomi Smith, who pleaded guilty to second degree murder for her involvement in Morrison’s death. Smith testified that she had known Ruger for over three years, having met him in Buffalo, New York, while she was working as a prostitute. The prosecutor asked her how she got together with Ruger and Smith answered, “[F]rom my understanding he had just recently got out of prison.” The defense objected and moved for a mistrial. The trial court denied the motion for mistrial, but gave a curative instruction.

Smith then revealed that their relationship began with drugs and sex but evolved into a romance. Once they became romantically involved, Smith quit working as a prostitute because Ruger took care of her. However, in order to support the both of them, Ruger worked as a male prostitute.

In 2001, they moved to Florida and the two lived in a series of hotels. Eventually, as Ruger was running out of money, Smith began working as a stripper and the two spent their money on crack cocaine, which they used every day. One evening, Ruger told Smith that he had met a man (Morrison) at a gay bar while posing as a male prostitute. Morrison took Ruger back to his house. Ultimately, Morrison paid Rug-er to work around his house. Six or seven days later, Morrison was killed when Rug-er went to collect the money Ruger claimed Morrison owed him. When Morrison did not have the money Ruger expected, Ruger beat him until he became limp. Ruger then obtained a kitchen knife and stabbed Morrison in- the chest. Smith helped Ruger clean up the scene. Before leaving the house, Ruger took Morrison’s checks, credit cards, and wallet. He later took Morrison’s vehicle. Smith and Ruger tried to cash Morrison’s checks without success. However, they were able to withdraw money from an ATM machine and used it to stay in a hotel and smoke crack cocaine. Ultimately, the police arrested both of them. On cross-examination, Smith acknowledged that her initial statement to the detectives was substantially different from her testimony at trial.

After hearing the evidence, including Smith’s detailed testimony, the jury convicted Ruger of second degree murder, two counts of uttering a forged instrument, and grand theft. He appeals his convictions.

Ruger first claims that the court reversibly erred in failing to grant his motion to discharge appointed counsel, because his allegations of ineffective representation at the Nelson hearing went unre-butted. Assuming, without deciding, that the proceedings were legally inadequate, any failings in the court’s Nelson inquiry were .mooted by his expressions of satisfaction with his counsel after the jury retired to deliberate. See Scull v. State, 533 So.2d 1137, 1140-41 (Fla.1988).

In selecting the jury, defense counsel exercised a peremptory challenge on an African-American juror. When asked by the state to provide a rfice-neu-tral explanation for the challenge, defense counsel mentioned the juror’s body language as indicating that she was not being open and honest with counsel in her answers. The trial court immediately determined that, although the reason was race-neutral, the strike was not genuine because other jurors were exhibiting the same type of body language and defense counsel did not strike those jurors. In conducting the three-step inquiry under Melbourne v. State, 679 So.2d 759 (Fla.1996), one relevant circumstance to the “genuineness” inquiry is a finding that the asserted reason for the challenge was equally applicable to unchallenged jurors. Id. at 764 n. 8. Here, the court made such a finding. Furthermore, defense counsel’s alternate reason for the challenge — that he was getting “bad vibes” from the juror — is also insufficient to justify the strike. “[T]he case law is clear that a ‘feeling’ about a juror is not a valid, neutral reason to exercise a strike, absent support in the record.” Daniel v. State, 697 So.2d 959, 961 (Fla. 2d DCA 1997). We conclude that the court did not abuse its discretion in denying the peremptory challenge.

During trial, Ruger’s counsel objected to the testimony by Smith that she had met Ruger after he had “just recently got out of prison.” The court gave a curative instruction but denied the motion for mistrial, which Ruger claims is error.

“A ruling on a motion for mistrial is within the sound discretion of the trial court.” Cole v. State, 701 So.2d 845, 853 (Fla.1997). “A motion for mistrial should be granted only where it is necessary to ensure that the defendant receives a fair trial.” Power v. State, 605 So.2d 856, 861 (Fla.1992). In Cole, our supreme court held that a witness’ statement that he “knew some history” on the defendant, which apparently referred to the defendant’s prior criminal history, was not so prejudicial as to require reversal. 701 So.2d at 853. The court emphasized that the reference was isolated and inadvertent, and was not focused upon. Id.

A case closely analogous to the instant case is Ferguson v. State, 417 So.2d 639 (Fla.1982). There, the witness testified that the defendant knew the person who allegedly orchestrated the killings because “my first time in prison, all three of us was together.” Id. at 642. The trial court overruled a general objection and denied a motion for mistrial. The supreme court observed that the statements concerning the prior imprisonment of a defendant “may be erroneously admitted yet not be so prejudicial as to require reversal.” Id. The supreme court approvingly cited Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978), for the proposition that any prejudice arising from the admission of testimony indicating a defendant’s prior incarceration could have been corrected by an instruction to the jury to disregard the testimony. Thus, the court in Fergtison held that the testimony was not so prejudicial as to warrant a reversal.

In this case, Ruger’s trial counsel conceded that Ms. Smith’s comment was not anticipated by the state. The comment was brief, isolated, and inadvertent. It was hardly more prejudicial than the tawdry evidence of prostitution and drug use about which Smith also testified. The trial court sustained the objection and gave a curative instruction, which was more than occurred in Ferguson. Moreover, the comment was cumulative of other evidence. Morrison’s mother was allowed to testify without objection that her son told her he had hired someone who had just gotten out of jail. Accordingly, the trial court did not abuse its discretion in denying the motion for a mistrial.

Finally, Ruger claims that the court committed fundamental error because although the court instructed the jury based upon the standard jury instructions, the instructions merely required the jury to “find” that he used a weapon in order to find him guilty of second degree murder with a weapon. Ruger maintains that the trial court’s instructions allowed the jury to find the existence of this weapon enhancement element on a burden of proof less than the “beyond a reasonable doubt” standard. We think this contention of error is meritless. The general instruction on reasonable doubt provides, in pertinent part: “The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the Information, through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.” (Emphasis added). This instruction tells the jury to apply the same burden of proof to all aspects of the case which the state is required to prove. Considering the instructions as a whole, they are not error, let alone fundamental error.

For the foregoing reasons, we affirm the convictions and sentences.

KLEIN and GROSS, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: NORTHCUTT, Judge.

text:
    Tanya McGLADE, Appellant, v. STATE of Florida, Appellee. Linda McGlade, Appellant, v. State of Florida, Appellee.
    Nos. 2D06-2936, 2D06-2943.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2006.

      James Marion Moorman, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellants.
    Colleen M. Glenn of Law Office of Kent & Glenn, P.A., Bradenton, for Appellants.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Ap-pellee.
   ORDER GRANTING POSTTRIAL RELEASE

NORTHCUTT, Judge.

Once again, we are called upon to correct the error of a circuit judge in regard to Tanya and Linda McGlade’s application for release during the appeals of their criminal convictions. On October 13, 2006, we set aside the judge’s order denying the McGlades’ application, and we directed him to release them on reasonable conditions. On October 19, the judge issued an order declining to do so. For the reasons that follow, we vacate that order.

After being convicted and sentenced for practicing midwifery without a license, a third-degree felony, the McGlades moved for posttrial release pursuant to Florida Rule of Criminal Procedure 3.691. That rule specifies that such applications are to be considered under the principles established by the Florida Supreme Court in Younghans v. State, 90 So.2d 308 (Fla.1956). Under rule 3.691(b) and Florida Rule of Appellate Procedure 9.140(h)(3), an order denying posttrial release must set forth the factual bases and reasons for the denial.

The circuit judge held a hearing on the McGlades’ motion, at which he took evidence and heard arguments by counsel for the McGlades and the State. Thereafter, on July 18 the judge issued an order declining to release the McGlades. The order set forth the following findings: the McGlades have significant ties to the community; the McGlades have appeared for every court appearance; Tanya McGlade has no prior criminal record and Linda McGlade has only one prior misdemeanor; if the McGlades are incarcerated during their appeals, they will have served most of their sentences by the time the appeals are concluded.

Although those findings supported the McGlades’ request for posttrial release, in his July 18 order the circuit judge denied the McGlades’ application because he concluded that they cannot present reasonably arguable or fairly debatable grounds for appeal. After the judge denied their motion for rehearing, the McGlades sought review of the July 18 order under rule 9.140. On October 13, we determined that the judge was mistaken in his view that the appeals presented no arguable grounds for relief. Therefore, because all of the judge’s other findings favored releasing the McGlades, we concluded that the judge had abused his discretion when denying the McGlades’ application. We directed the judge to order their release on reasonable grounds.

Instead, on October 19 the circuit judge issued an order that recited additional facts regarding the depth of the McGlades’ spiritually based belief that they had done nothing wrong. He concluded:

There are no reasonable conditions of release, conditions that the Court can effectively monitor, that can guarantee the safety of the public and that assure this Court that they will refrain from participating in future home births. As such, the Court will continue to deny the motion for post-trial release.

This order was misguided in four important respects:

First, the circuit judge’s supposed fear that the McGlades’ release would pose a danger to the public that could not be prevented by reasonable conditions is at odds with the fact that they were permitted to remain free throughout the pretrial and trial proceedings without incident. To be sure, the issues of pretrial release and posttrial release are different. But this primarily has to do with such concerns as the increased risk of flight that flow from the conviction itself or that became apparent during the trial. See Younghans, 90 So.2d at 310. And even those differences do not invest a judge with unfettered power to deny posttrial release. Rather, he remains duty-bound to consider and grant or deny the application in his sound discretion. See Coolley v. State, 720 So.2d 598 (Fla. 2d DCA 1998). “The exercise of a sound judicial discretion in this respect means that ‘the adjudication is to be governed by a given standard of judicial action,’ and such discretion implies ‘judgment directed by circumspection,’ to be exercised in the light of the facts and circumstances of each particular case.” Younghans, 90 So.2d at 309-310 (internal citations omitted).

As was observed in Younghans and countless times before and since, a judge’s exercise of discretion cannot be arbitrary or capricious. “The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Here, nothing in the record of the hearing on the McGlades’ application for posttrial release suggests that their beliefs are any more fervent now than they have always been. The same is true of the trial testimony relied upon by the circuit judge in his latest order. Indeed, after presiding over that very trial, this very judge permitted the McGlades to remain free following their convictions by the jury until their sentencing hearing six weeks later. The judge’s newfound belief that no release conditions could protect the public from the McGlades is palpably illogical — a hallmark of judicial capriciousness.

Second, the circuit judge’s estimation that he is incapable of devising release conditions sufficient to protect the public is fatally tardy under rule 3.691. That rule and the Younghans decision on which it is based embody the supreme court’s determination that decisions regarding posttrial release must be reasoned. An important safeguard against arbitrariness is the requirement that when denying posttrial release a judge must state the factual bases and reasoning for the denial. As the supreme court put it, “[i]t is axiomatic that the exercise of judicial discretion should never be arbitrary, capricious or unreasonable; and where the discretion is exercised in favor of denying to a person a basic and fundamental right, the reasons for so doing should be sound and they should be clearly stated.” Younghans, 90 So.2d at 310.

The argument that the McGlades would pose a danger to the public if released pending their appeals was made by the assistant state attorney at the initial hearing on the McGlades’ application. The circuit judge, charged with the clear and unmistakable duty to state the facts and reasons supporting his denial of the application, impliedly rejected the argument when he failed to make any mention of this factor in his July 18 order. Now that it has been determined that the judge abused his discretion based on the facts and reasons stated in that order, he may not simply cling to his ruling by positing additional reasons for it. Otherwise, the requirement that a court justify its ruling in the first place, and the important purpose that requirement serves in preventing judicial capriciousness, would be defeated.

The third infirmity in the October 19 order stems from the fact that the decision whether to release the McGlades was no longer the circuit judge’s to make. Hand in hand with its purpose of preventing arbitrary rulings on motions for post-trial release, the requirement that a court set forth the facts and reasons supporting a denial facilitates appellate review of the ruling. See Coolley v. State, 720 So.2d 598, 599 (Fla. 2d DCA 1998) (observing that meaningful review of order denying posttrial release was not possible due to inadequacy of factual findings contained in the order). This court relied on the facts and reasons set forth in the circuit judge’s initial order denying the McGlades’ application, including the judge’s implicit rejection of the State’s argument that the McGlades’ release would endanger the public. This court’s October 13 decision established the law of the case regarding the issues that were presented or that could have been presented in its review of the matter. Dep’t of Transp. v. Juliano, 801 So.2d 101 (Fla.2001); Silva v. U.S. Sec. Ins. Co., 734 So.2d 429 (Fla. 3d DCA 1999). As such, the decision governs any further proceedings below unless or until there is a change in the circumstances under which that decision was made. Id. By his October 19 order — and its underlying presumption that he had any further say in the matter — the circuit judge failed in his duty to conform his conduct to that well-established principle.

Finally, fourth, having received a clear directive from the district court of appeal exercising appellate jurisdiction over the matter before him, the circuit judge was legally obliged to follow it; indeed, he was powerless to do otherwise. Hoffman v. State, 613 So.2d 405, 406 (Fla.1992), superseded by rule on other grounds as stated in In re Amendment to Florida Rules of Criminal Procedure—Capital Postconviction Public Records Production, 683 So.2d 475 (Fla.1996); Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So.2d 825 (Fla.1975); Rinker Materials Corp. v. Holloway Materials Corp., 175 So.2d 564 (Fla. 2d DCA 1965).

This court, faced with recalcitrance of the sort exhibited by the circuit judge in this case, is inherently empowered to take any action necessary to effectuate its directives. Blackhawk, 328 So.2d at 827; Posner v. Posner, 257 So.2d 530 (Fla.1972); Straley v. Frank, 650 So.2d 628 (Fla. 2d DCA 1994). This includes the power to do directly that which the errant judge has refused to do. Posner, 257 So.2d at 535; Wright v. Lewis, 870 So.2d 179 (Fla. 4th DCA 2004). Moreover, by its terms rule 3.691(a) provides that a person convicted of any but a capital offense may be released pending appeal at the discretion of either the trial or appellate court. We would not lightly invoke our authority under either of these principles. But it is our duty to ensure the fair and orderly functioning of judicial processes established by or on authority of the Florida Constitution, which all judges of this state are sworn to uphold. When, as here, a judge chooses to disregard an obligation of his office, he harms the parties in the case, disserves the residents of his circuit, and undermines the constitution that was adopted for the benefit of all citizens of Florida. Under such circumstances, we do not hesitate to act.

Therefore:

1. The order of Circuit Judge Edward Nicholas dated October 19, 2006, is vacated.

2. The Circuit Court for the Twelfth Judicial Circuit shall take no further action respecting any matter relating to the post-trial release of Tanya McGlade or Linda McGlade unless or until directed to do so by this court.

3. The portion of this court’s October 13, 2006, order that directs the circuit court to order Tanya McGlade and Linda McGlade released is withdrawn. Said order is reaffirmed in all other respects.

4. Pursuant to Florida Rule of Criminal Procedure 3.691, the applications of Tanya McGlade and Linda McGlade for posttrial release in Twelfth Judicial Circuit Cases 2005-CF-1639A and 2005-CF-1639B are granted, provided that they shall remain in custody until further order of this court specifying the date and conditions of their release.

5. The Honorable Paul E. Logan, Judge of the Twelfth Judicial Circuit, is appointed as this court’s commissioner to recommend appropriate reasonable conditions to be imposed upon the posttrial release of Tanya McGlade and Linda McGlade. The commissioner, in his discretion, may rely on the record created heretofore and may additionally take such evidence and hear such arguments as he deems necessary. He shall report his recommendations in writing to this court no later than November 3, 2006.

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


text:
    Kevin SHARPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1373.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Dec. 5, 2006.

      Kevin Sharpe, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the denial of appellant’s motion for postconviction relief from his conviction for burglary with a battery. The charge arose from an incident in which the appellant grabbed his wife, from whom he was separated, and choked her to unconsciousness. He claims that the trial court erred in refusing to grant him leave to amend his motion. In his initial motion, he alleged ineffective assistance of counsel for failure to call witnesses who could provide evidence which would tend to prove that he had consent to be on the premises at the time of the incident. He failed to allege the availability of the witnesses and requested leave to amend, pursuant to Nelson v. State, 875 So.2d 579 (Fla.2004). The trial court denied the motion, concluding that availability did not cure the other legal insufficiency of the motion. In particular, the trial court noted that under section 810.015, Florida Statutes (2002), even if appellant had consent for the initial entry, such consent was withdrawn once he committed the act of battery. Therefore, appellant has not shown that he was prejudiced by the absence of these witnesses. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

WARNER, SHAHOOD and MAY, JJ„ concur.


text:
    Sarah SLICKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1647.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.
    Rehearing Denied Nov. 22, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

The State accused Sarah Slicker of committing a lewd or lascivious molestation, a first-degree felony, when she disrobed in front of a young boy. A jury convicted Slicker of a lesser included second-degree felony, lewd or lascivious exhibition. However, the trial was tainted by the erroneous exclusion of relevant defense evidence. Therefore, we reverse Slicker’s conviction and remand for a new trial.

Slicker acknowledged that she had removed her clothes in the boy’s presence. At the time of the incident, Slicker was twenty-one years old. She had been babysitting since her pre-teens, had worked at her church nursery and as a camp counsel- or, and was starting a youth ministry at her church. She had recently graduated from college with a bachelor’s degree in preschool primary education, and she planned to pursue an advanced degree.

About three months before the incident, Slicker agreed to serve as nanny to the four-year-old son and eighteen-month-old daughter of a busy professional couple. At trial, Slicker recounted that she accepted the job despite some misgivings. In addition to the long hours she worked caring for these children, she helped in her father’s business, assisted her grandmother, watched a neighbor’s house and pets, and tried to keep longstanding weekly appointments to baby-sit for other families. During this time, Slicker testified, she became increasingly exhausted and overstressed by her efforts to meet the demands of the nanny job while honoring her other commitments.

By all accounts, the boy was rather active and something of a handful. Slicker testified that on the afternoon in question she was tending the children while their parents were out. She and the boy were sitting on a couch watching a video, when he began nagging her to take off her clothes. Slicker testified that, stressed and worn out, she made a snap decision that it would just be quicker to capitulate and get it over with than to keep arguing with this demanding child.

To convict Slicker of either the lewd or lascivious molestation offense or the lesser included lewd or lascivious exhibition offense, the State was required to prove that she acted with a lewd or lascivious intent. §§ 800.04(5), (7), Fla. Stat. (2003). This is defined as “a wicked, lustful, unchaste, licentious, or sensual intent[.]” Fla. Std. Jury Instr. (Crim.). The jury was also instructed on the offense of exposing sexual organs in violation of section 800.03, which required proof of “an unlawful indulgence in lust or a wicked, lustful, unchaste, licentious or sensual intent[,]” and the offense of committing an unnatural and lascivious act in violation of section 800.02, which required proof of a lascivious intent described as “lustful, normally intending to excite a desire for sexual satisfaction.” Fla. Std. Jury Instr. (Crim.). Obviously, then, Slicker’s state of mind was an essential element of the State’s case. Indeed, it was the only disputed issue at trial.

The State attempted to prove that Slicker acted with the requisite intent by circumstantial evidence, essentially arguing that her action spoke for itself. Slicker contended that she acted during a momentary and isolated lapse in judgment owing to her physical and mental fatigue. To support her defense, Slicker wanted to present witnesses who had observed her deterioration during the months she worked as this family’s nanny. She proffered the testimony of three lay witnesses who had known her for many years. These witnesses described a change in Slicker’s physical and mental condition occurring after she began the job. They also recounted Slicker’s comments during this period about the stress she was feeling while trying to juggle her obligations.

When proffering this evidence, Slicker argued that it was relevant and admissible to show why she acceded to the child’s request and to negate any inference that she did so with a lewd or lascivious intent. The State successfully urged the trial court to exclude the testimony on two grounds.

For one thing, the State argued that the evidence was inadmissible hearsay. This was incorrect. Insofar as the witnesses would have related their personal observations, their testimony would not have been hearsay. See § 90.801(l)(e), Fla. Stat. (2003) (defining hearsay as an out-of-court statement admitted to prove the truth of the matter asserted). On the other hand, the witnesses’ testimony about Slicker’s statements regarding the stress and pressure she felt after taking the nanny position would have been hearsay. But it was not inadmissible as such, because it fell within the following exception to the hearsay rule:

A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health,' when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.

§ 90.803(3)(a). Because Slicker’s state of mind was an issue and the evidence was offered to explain her subsequent conduct, the testimony should not have been excluded on hearsay grounds.

The State’s primary argument against admitting this evidence was that it tended to prove Slicker’s diminished capacity, which is not a recognized defense in Florida. See Chestnut v. State, 538 So.2d 820 (Fla.1989). In Chestnut, the supreme court observed that diminished capacity is “shorthand for the proposition that expert evidence of mental abnormalities is admissible on the question of whether the defendant in fact possessed a particular mental state which is an element of the charged offense.” Id. at 822. “When a court rejects the doctrine of diminished capacity, it is saying that psychiatric evidence is inadmissible on the mens rea issue....” Id. at 823. In that case, the court affirmed the exclusion of expert testimony regarding the defendant’s abnormal mental condition, which had been offered to show that he could not have formed the specific intent necessary for premeditated murder.

In this case, Slicker offered only lay testimony, not expert testimony, and it is more properly characterized as state-of-mind evidence. Moreover, the evidence regarding Slicker’s stress and fatigue was not offered to prove that she suffered a psychiatric abnormality, and it was susceptible to lay understanding. See Chestnut, 538 So.2d at 823 (explaining that human experience provides an understanding for the effects of common conditions upon state of mind without resort to the “esoter-ics of psychiatry”) (quoting Bethea v. United States, 365 A.2d 64, 68 (D.C.1976)). As the supreme court later explained in Bunney v. State, 603 So.2d 1270, 1272 (Fla.1992), Chestnut drew a distinction between evidence of “commonly understood conditions,” which is admissible, and evidence of “relatively esoteric conditions,” which is not admissible absent an insanity defense.

The distinction applies to this case. Slicker did not attempt to introduce expert testimony that she suffered a mental abnormality. Rather, she offered lay testimony bearing on her then-existing mental and emotional state, which was relevant to her intent at the time of the offense. As such, the evidence was relevant and admissible.

The State has not argued that the exclusion of this evidence was harmless, and we would not find it to be so. The parents who employed Slicker testified that they did not observe any changes in their nanny and that what they noticed, they were told, was normal for her. But they had known Slicker only three months. The defense witnesses, however, noticed dramatic changes, and they had known Slicker for many years. The excluded evidence went to an essential element of the State’s case and to the heart of Slicker’s defense. See Rivera v. State, 561 So.2d 536, 539 (Fla.1990) (stating that error occurs when evidence tending to support the theory of defense is excluded). As the State argued in closing, “it’s the totality of all these circumstances where you can find your intent.” In order to decide whether Slicker acted with the necessary lewd intent, the jury should have been informed of the totality of the circumstances in which she acted.

Accordingly, we reverse and remand for a new trial.

SILBERMAN and LaROSE, JJ„ Concur.


author: TAYLOR, J.

text:
    KINGS GOURMET MARKET, INC., Appellant, v. Valerie HERTZ-KUSZ, Appellee.
    No. 4D05-4278.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Rehearing Denied Dec. 7, 2006.
    Charles M-P George and C. Richard Fulmer, Jr. of George, Hartz, Lundeen & Fulmer, Coral Gables, for appellant.
    Robert Garven, Coral Springs, and Ted DiSalvo of Kogan & DiSalvo, Boca Raton, for appellees.
   TAYLOR, J.

Kings Gourmet Market (Kings) appeals the trial court’s order granting an additur to the plaintiffs damages in this slip-and-fall case. We affirm, concluding that the trial court did not abuse its broad discretion in granting an additur for future non-economic damages.

Before plaintiff was injured from her fall in the grocery store and underwent knee replacement surgery, she was a very active, athletic woman, who regularly jogged in the mornings and bicycled in the afternoons. Since the accident and numerous surgeries and treatments, she can no longer engage in these physical activities and now uses a cane to walk. As the trial court found, ample evidence was presented to support an award for plaintiffs loss of capacity for enjoyment of life. See Republic Services of Florida, L.P. v. Poucher, 851 So.2d 866, 870 (Fla. 1st DCA 2003) (stating that a trial court’s order granting an additur is reviewed for a clear abuse of discretion); Aurbach v. Gallina, 721 So.2d 756, 758 (Fla. 4th DCA 1998) (stating that a trial court’s determination regarding ad-ditur may be reversed on appeal only where there is a clear abuse of discretion); see also Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999) (stating that in reviewing a trial court’s ruling on a motion for new trial based on the verdict being inadequate or excessive, the appellate court must “recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial court committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.”).

We find no merit in the remaining points on appeal and affirm the judgment of the trial court in all respects.

Affirmed.

STEVENSON, C.J., and WARNER, J., concur.


text:
    Mary J. ROGERS, Appellant, v. James CYRUS, Appellee.
    No. 1D06-4394.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.
    Mary J. Rogers, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 29, 2006, the Court has determined that the appeal is untimely. The appellant’s notice of appeal seeking review of the lower tribunal’s February 15, 2006, order was filed on August 11, 2006, well beyond the 30-day time period within which review must be sought. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. Any remedy available to the appellant lies with the lower tribunal rather than with this Court. Cf. Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998).

ALLEN, BENTON, and HAWKES, JJ„ concur.


text:
    Willie James BILLUE, Appellant, v. LIBERTY CORRECTIONAL INSTITUTION, Florida Department of Corrections, Appellee.
    No. 1D05-5738.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.

      Willie James Billue, pro se, Appellant.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee; Rosa Carson, General Counsel, Department of Corrections for Appellee.
   PER CURIAM.

Appellant, Willie James Billue, appeals the trial court’s denial of his petition for writ of habeas corpus. Because Appellant did not file his petition in the sentencing court, the trial court lacked jurisdiction to consider his petition. See Johnson v. State, 933 So.2d 651 (Fla. 1st DCA 2006) (citing Crockett v. Singletary, 723 So.2d 911 (Fla. 1st DCA 1999)). We therefore affirm the trial court’s denial of Appellant’s petition without prejudice for him to file a proper postconviction motion in the sentencing court.

AFFIRMED.

WOLF, LEWIS and THOMAS, JJ., concur.


text:
    Leroy MASON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3797.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Leroy Mason, Lake Butler, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant Leroy Mason appeals the trial court’s summary denial of his motion for rehearing and reply, which the trial court treated as a newly filed motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, but write to point out that appellant has raised the identical challenge to the legality of his habitual violent felony offender sentence for second degree murder in at least two prior rule 3.800(a) motions to correct illegal sentence, as well as the third motion to correct underlying the subject motion for rehearing and reply.

While this appears to be his first appeal following the denial of his successive rule 3.800(a) challenges in the trial court on the identical issue, his abuse of judicial procedure frustrates the ability of the circuit court to use its available resources to consider the claims of others. Continuation of this abuse will likely result in future imposition of sanctions by the trial court, and this court, if appropriate. See Thurston v. State, 920 So.2d 1229 (Fla. 4th DCA 2006); Martin v. Circuit Court, Seventeenth Judicial Circuit, 627 So.2d 1298 (Fla. 4th DCA 1993).

STONE, POLEN and HAZOURI, JJ., concur.


text:
    Steve HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3423.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Steve Hampton, Lowell, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s filing a timely and sufficient rule 3.850 motion alleging, if he can, that he does not actually qualify for sentencing as a habitual felony offender or as a prison releasee reoffender. Bover v. State, 797 So.2d 1246, 1251 n. 5 (Fla.2001); Adlington v. State, 840 So.2d 354 (Fla. 4th DCA), rev. denied, 859 So.2d 513 (Fla.2003); Macaluso v. State, 912 So.2d 694, 695-96 (Fla. 2d DCA 2005).

KLEIN, TAYLOR and MAY, JJ., concur.


text:
    Thomas J. MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4448.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Thomas J. Morgan, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Thomas Morgan seeks review of an order that denied his motion for postconviction relief. See Fla. R.Crim. P. 3.850. We affirm the trial court’s denial of relief as to the eight points presented, but write to certify conflict associated with one claim.

In his fourth point, Morgan alleges ineffective assistance of trial counsel regarding counsel’s advice that Morgan reject a favorable plea offer. Morgan alleges that counsel assured him a win at trial, or at worst, a conviction for a reduced offense. This court affirmed the summary denial of a similar claim in Gonzales v. State, 691 So.2d 602 (Fla. 4th DCA), rev. denied, 700 So.2d 685 (Fla.1997). We certify conflict with the Third District’s decisions in Gomez v. State, 832 So.2d 793 (Fla. 3d DCA 2002), and Sharpe v. State, 861 So.2d 483 (Fla. 3d DCA 2003), on this point.

Affirmed.

GUNTHER, WARNER and HAZOURI, JJ., concur.


author: PALMER, J.

text:
    M.T., Mother of S.T., R.T., and A.T., Children, Appellant, v. D.K. and K.K., Appellees.
    No. 5D06-1057.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2006.
    Steven J. Guardiano, Daytona Beach, for Appellant.
    Rhoda B. Goodson and Kelly V. Parsons of Cobb Cole, Daytona Beach, for Appel-lee.
   PALMER, J.

M.T. (mother) appeals the trial court’s order terminating her parental rights to her three minor children. Our review of the record reveals support for the trial court’s finding that clear and convincing evidence was submitted that M.T. failed to substantially comply for a period of twelve months with the case plan in effect at the time of the trial. Accordingly, we affirm the trial court’s termination order.

AFFIRMED.

THOMPSON and LAWSON, JJ., concur.


text:
    F.T., Father of S.T., R.T., and A.T., Children, Appellant, v. D.K. and K.K., Appellees.
    No. 5D06-618.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2006.
    Theresa Anderson of Abeles & Anderson, Debary, for Appellant.
    Rhoda B. Goodson and Kelly V. Parsons of Cobb Cole, Daytona Beach, for Appel-lee.
   PALMER, J.

F.T. (father) appeals the trial court’s order terminating his parental rights to his three minor children. Our review of the record reveals support for the trial court’s finding that clear and convincing evidence was submitted that F.T. failed to substantially comply for a period of twelve months with the case plan in effect at the time of the trial. Accordingly, we affirm the trial court’s termination order.

AFFIRMED.

THOMPSON and LAWSON, JJ., concur.


text:
    L.B., Mother of I.C., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES et al. Appellee.
    No. 5D06-2132.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2006.
    Lauren Zimmerman, of Lauren Zimmerman P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee, Department of Children and Family Services.
    Angela M. Fortier, of Legal Aid Society of OCBA, Orlando, for Appellee, Guardian ad Litem Program.
   PER CURIAM.

The mother, L.B., appeals the order of the trial court granting the non-offending father’s motion for sole custodial responsibilities and terminating the court’s jurisdiction. In view of the concession of error by the Department of Children and Families, we reverse, and remand this case to the trial court for an evidentiary consideration of the Motion to Close the Case filed by the Department after proper notice to L.B.

REVERSED and REMANDED.

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


text:
    Joseph BENDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5519.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2006.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Frierson, 926 So.2d 1139 (Fla.2006).

BARFIELD, PADOVANO, and POLSTON, JJ., concur.


text:
    Deshay TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1849.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2006.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Foy v. State, 717 So.2d 184 (Fla. 5th DCA 1998).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    Derek WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3501.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2006.
    Derek Williams, Avon Park, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Bostic v. State, 768 So.2d 534 (Fla. 4th DCA 2000).

GRIFFIN, TORPY and EVANDER, JJ., concur.


author: ALTENBERND, Judge.

text:
    Wendell Lee GLANCY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3848.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Wendell Lee Glancy appeals an order denying his motion for posteonviction relief after an evidentiary hearing on two of six grounds. We conclude that Mr. Glancy has established that his counsel provided deficient performance as alleged in ground 4 and that he was prejudiced as a result. We therefore reverse and remand for a new trial.

Mr. Glancy was convicted after a jury trial of burglary with a battery and sentenced to thirteen years in prison. When the circuit court denied Mr. Glancy’s motion for postconviction relief, it attached to its order the entire trial transcript. Our record thus contains a complete account of the trial.

According to the evidence presented at trial, a man broke into the home of the victim shortly after 2 a.m. and tried to sexually assault her. She fought off the intruder, who ran away, jumping over her fence and leaving his shoes behind. The State’s key witness was the victim of the burglary. She testified that Mr. Glancy lived in her neighborhood and that she knew him through his contact with her sons. Although she testified at trial that she knew Mr. Glancy was the perpetrator, on the night of the crime the police actually discovered Mr. Glancy not through the victim’s identification, but by the use of a tracking dog who went from the scene of the crime to Mr. Glancy’s residence. There was no other forensic evidence presented at trial that clearly linked Mr. Glancy to the crime. Specifically, the State did not present evidence to establish that the shoes that were left at the scene of the crime belonged to Mr. Glancy. Moreover, in a taped interview of Mr. Glancy that was played to the jury, Mr. Glancy described a potential motive the victim may have had for blaming him for the crime.

During the trial, Mr. Glancy’s counsel asked only minimal questions of the jurors during voir dire and then failed to follow up when potential jurors answered in a manner that suggested possible bias; she waived opening statement; she elicited bad character evidence regarding Mr. Glancy and did nothing to try to remedy the damage; she made no defensive motions; she presented testimony that was harmful to Mr. Glancy’s case; and she made a short and perhaps even damaging closing argument. One or two of these shortcomings individually might be attributed to a strategy that was not patently unreasonable. However, the decision to elicit damaging character evidence against Mr. Glancy, and to thereafter take no action to remedy the disclosure, so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. See Cabrera v. State, 766 So.2d 1131, 1133 (Fla. 2d DCA 2000) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Specifically, during cross-examination of the victim, counsel for Mr. Glancy asked, “Why didn’t you like Mr. Glancy?” To which the victim replied, “He gave my children pot. He gave my children booze. Uni, he gave them cigarettes. And he was well over the age of 18, and my children were only 14 at that time.” Counsel simply continued her cross-examination. Thereafter, counsel elicited testimony that the doors through which the perpetrator entered were broken into before. Counsel asked the victim, “Who broke into them before?” The victim replied, “I believe [Mr. Glancy]. Exactly the week before my attack.” Counsel pursued this line of questioning, and the victim proceeded to explain that for two years someone had been breaking into her home, stealing her underwear, and leaving dirty magazines behind. The implication, of course, was that this unknown perpetrator was Mr. Glancy.

Undeterred by the responses of the victim, counsel for Mr. Glancy pursued a similar tactic in the cross-examination of the victim’s son. This allowed the son to explain that his mother did not like Mr. Glancy because he had been “in and out of prison.”

This type of evidence, commonly referred to as Williams rule or “bad character” evidence, has been described as “inherently prejudicial.” See, e.g., Acevedo v. State, 787 So.2d 127, 130 (Fla. 3d DCA 2001). Trial counsel’s decision in this case to permit this evidence repeatedly during her own cross-examination of not one, but two State witnesses, and to take no action to try to alleviate the damage, was “outside the wide range of professionally competent assistance.” See Strickland, 466 U.S. at 690,104 S.Ct. 2052.

Although a trial counsel’s decision to elicit or to fail to exclude such evidence may not always result in the type of prejudice that is necessary to merit the granting of postconviction relief and the setting aside of a final judgment, here we conclude that Mr. Glancy has established that he was prejudiced by counsel’s action and is entitled to a new trial. There is a reasonable probability that but for counsel’s unprofessional errors the result of Mr. Glan-cy’s proceeding would have been different. See Cabrera, 766 So.2d at 1134 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). We therefore reverse the order denying the motion for postconviction relief and remand with directions to provide Mr. Glancy a new trial.

Affirmed in part, reversed in part, and remanded with directions.

CASANUEVA and STRINGER, JJ., Concur.

      . We note that the circuit court properly denied grounds 2, 5, and 6. As to grounds 1 and 3, which were summarily denied, we would have required an evidentiary hearing on these issues except for the relief granted on ground 4. Ground 1 involved the failure to call potential alibi witnesses. Ground 3 involved a failure to present evidence that Mr. Glancy had filed a claim of grand theft auto against the victim's son the day before this event.

      . The failure of counsel to further develop the evidence surrounding that motive formed the basis of ground 3 of Mr. Glancy's motion, which was summarily denied. Our reversal on ground 4 renders the propriety of the court's decision on ground 3 moot.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    M.A.T., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5056.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

M.A.T. appeals an order adjudicating him delinquent for burglary of a dwelling and grand theft. We affirm without further discussion the adjudication and order of probation. However, on our own motion, we strike the “Order as to Parent(s)/Legal Guardian for Legal Services and Costs, Restitution, Community Service, Counseling and Drug Court.” This order was imposed against M.A.T.’s aunt. The record reveals, however, that at the time of adjudication and on the date of the offense, M.A.T. was in the custody of his grandmother, who was his “legal guardian.” Thus there was no basis to impose these costs against the aunt. See § 985.2311, Fla. Stat. (2004). More important, the aunt resided out of state. She was never served with notice of these proceedings or otherwise made a party or participant in this action. The trial court had no personal jurisdiction over the aunt. We therefore remand with directions to vacate this order.

Adjudication affirmed; order on costs against third party remanded with instructions to vacate order.

CASANUEVA and VILLANTI, JJ., Concur.

      . We note that counsel for M.A.T. filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in this case. We requested a merits brief regarding this cost order. Counsel noted that she did not represent the aunt, nor could she represent the aunt in her capacity as an assistant public defender appointed to represent M.A.T. This is further evidence that the aunt’s interests were not represented in this proceeding, despite the entry of a significant judgment against her.


author: THREADGILL, EDWARD F„ Senior Judge.

text:
    Herman Lee BORDERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5515.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F„ Senior Judge.

Herman Borders appeals his conviction and sentence for possession of cocaine. We affirm Borders’ conviction without comment. However, we strike the imposition of $373 in costs of investigation and remand for further proceedings because the State failed to document its request for those costs. Hall v. State, 932 So.2d 1169 (Fla. 2d DCA 2006); Howard v. State, 920 So.2d 764 (Fla. 2d DCA 2006). On remand, the costs may be reimposed if the State properly documents the costs. See Hall, 932 So.2d at 1169; Howard, 920 So.2d at 765.

Conviction affirmed; investigative costs award stricken; remanded with instructions.

STRINGER and LaROSE, JJ., concur.


text:
    Virginia WALDROP, Appellant, v. LAFAYETTE COUNTY, Appellee.
    No. 1D06-3159.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.
    Virginia Waldrop, pro se, Appellant.
    George W. Blow, III, Live Oak, for Ap-pellee.
   PER CURIAM.

Having considered the appellant’s response filed on September 5, 2006, the appeal is hereby DISMISSED for lack of jurisdiction. See Fla. R.App. P. 9.030(b)(1); Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (reaffirming the traditional test of finality). The order on appeal, which granted a motion to strike and struck the appellant’s pleading filed April 27, 2006, is neither a final order nor an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130. This dismissal is without prejudice to the appellant’s right to file a timely appeal when a final order is entered. In light of the dismissal of this appeal, all pending motions are denied as moot.

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


text:
    Felton EPPS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-2454.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Felton Epps, DeFuniak Springs, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We grant certiorari review of a trial court’s order prohibiting Epps from filing further pro se motions. He complains that the court entered the order without giving him notice and without issuing an order for him to show cause why he should not be prohibited from appearing pro se.

Before prohibiting further pro se filings, the court must give a pro se litigant notice and an opportunity to show cause why sanctions should not be imposed. State v. Spencer, 751 So.2d 47 (Fla.1999).

To achieve the best balance of a litigant’s right of access to courts and the need of the courts to prevent repetitious and frivolous pleadings, it is important for courts to first provide notice and an opportunity to respond before preventing that litigant from bringing further attacks on his or her conviction and sentence.
Further, providing notice and an opportunity to respond through the issuance of an order to show cause also serves to generate a more complete record. If the litigant is thereafter denied further pro se access to the courts, the appellate courts will have an enhanced ability to determine whether the denial of access is an appropriate sanction under the circumstances.

Id. at 48-49.

The record reflects that Epps did not have notice and an opportunity to respond. The order in this case states that it granted the state’s motion for an injunction on the same day the state’s motion was filed.

We do not accept the state’s suggestion that Epps had adequate notice by the order and opportunity to respond by way of a motion for rehearing. A motion for rehearing is not a sufficient, meaningful opportunity to be heard. To be fair or meaningful, the opportunity to be heard must be provided “before rights are decided.” See Peoples Bank of Indian River County v. State, Dep’t of Banking & Fin., 395 So.2d 521, 524 (Fla.1981) (citation omitted). To satisfy procedural due process, an opportunity to be heard must be meaningful and complete and “not merely colorable or illusive.” Rucker v. City of Ocala, 684 So.2d 836, 841 (Fla. 1st DCA 1996) (citation omitted).

We recognize that in Filmore v. State, 935 So.2d 1282 (Fla. 4th DCA 2006), this court upheld an order granting the state’s motion for an injunction to prohibit the defendant in that case from filing further pro se motions. However, Filmore did not reply to the state’s motion despite adequate time to do so. Therefore, this court concluded the procedure satisfied Spencer because the defendant had notice and sufficient opportunity to respond, but failed to do so.

Therefore, the petition for writ of certio-rari is granted, we quash the trial court’s order, and remand for further proceedings.

STEVENSON, C.J., STONE and KLEIN, JJ., concur.


author: SHAHOOD, J.

text:
    GOSSETT & GOSSETT, P.A., Appellant, v. Arlene MERVOLION, n/k/a Arlene Flori, Keith Allen Scalf, and Hydraulic Associates, Inc., a Florida corporation, Appellees.
    No. 4D05-3835.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.

      Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for appellant.
    Herbert B. Dell of Herbert B. Dell, Fort Lauderdale, for appellee Arlene Mervolion n/k/a Arlene Flori.
   SHAHOOD, J.

This is an appeal by Gossett & Gossett, P.A., from the Final Judgment Enforcing Charging Lien in an amount less than the amount owed by the client/appellee, and denying recovery of contractually incurred attorney’s fees. Appellee, Arlene Mervo-lion n/k/a Arlene Flori (“Flori”), cross-appeals the final judgment. We affirm in part, reverse in part, and remand.

Flori received a demand letter from her live-in boyfriend, Keith Sealf, concerning her mortgage on her Davie home. The letter, written by Scalfs attorney, threatened that he was going to foreclose a second mortgage he held on the house they jointly occupied with their minor daughter unless she paid him a sum certain within ten days. Flori’s lawyer, Gos-sett & Gossett, P.A. (“appellant”), sent a reply stating that Flori would not refinance or pay the claimed amount.

Flori thereafter signed a retainer agreement with appellant. Flori agreed to pay $1,000 down with an additional $4,000 soon after. Flori also agreed to pay appellant $300 per hour for legal services and gave appellant a charging lien on proceeds from the litigation as well as on any and all real property involved in the litigation, to secure payment.

After the retainer agreement was signed, appellant prepared and filed an eight-count petition seeking relief against Sealf and his company, Hydraulic Associates, Inc. Flori later retained alternate counsel and discharged appellant.

Flori and Scalf proceeded to trial and a final judgment was entered by the trial court. The trial court ruled that the Davie home was jointly owned property which was to be sold. The proceeds from the sale were to be evenly divided after a credit to Flori of her $75,000 special equity and after a credit to Scalf of his $28,000 special equity. The court also reserved jurisdiction over the subject matter of the parties to the case.

A contract for the sale of the Davie home was signed by a buyer on September 20, 2004 for the amount of $625,000. Thereafter, Flori and Scalf sold the Davie home.

After trial, a final judgment enforcing the charging lien was entered in an amount less than that contractually billed, but in an amount determined by the court to be a “reasonable fee.” The trial court also denied the request of appellant for attorney’s fees incurred in the foreclosure of the lien, and further denied the request of appellant for attorney’s fees against Flori and her new attorney under section 57.105, Florida Statutes.

Appellant initially urges that it was error for the trial court to have reviewed the charges to the client and determined that the client owed less than she was billed when she had never previously questioned the charges. We agree.

The court received into evidence testimony that appellant billed a total of 68.4 hours to Flori and that Flori never questioned the statement from appellant. Nevertheless, the court found that appellant “reasonably expended 57.4 hours in prosecuting the underlying action before being replaced.”

A charging lien is contractual in nature and is to be based upon the amount agreed with the client, not an amount to be determined by the trial court. Matter of Armando Gerstel, Inc., 43 B.R. 925 (Bankr.S.D.Fla.1984), aff'd in part, rev’d in part on other grounds, 65 B.R. 602 (S.D.Fla.1986); Matter of Innkeepers of New Castle, Inc., 671 F.2d 221 (7th Cir.1982) (where attorney fee contract specifically stated that the fee was to be fifty percent of any net recovery, it was error to use a “reasonable fee” standard in lieu of the valid fee contract as the basis for determining the extent of the lien). While the trial court recognized these decisions, it “nevertheless has reviewed the statements for legal services received in evidence and” made specific findings of fact in reducing the total number of hours billed from 68.4 hours to 57.4.

Here, the trial court found a reasonable hourly rate of $300 and that appellant reasonably expended 57.4 hours. However, the court’s finding of 57.4 hours is a reduction from the 68.4 hours billed by appellant. The court does not explain the appropriateness of this reduction in hours expended.

We reverse as to this issue and remand with directions to the trial court to enter an amended final judgment based on the contractually agreed-to fees.

Appellant next argues the trial court erred in refusing to award appellant fees for the supplemental petition to collect fees owed by appellee.

Appellant argues that the phrase “necessary to institute suit for the collection of fees and advances due to us by you” in the retainer agreement means that the client will be obligated to pay fees to the law firm if the law firm has to take any legal action to collect fees incurred by the client pursuant to the retainer agreement. We agree.

Here, the law firm had to take legal action by filing a supplemental petition to enforce its charging lien; therefore, Flori was contractually obligated to pay the fees incurred by appellant in bringing the supplemental petition.

The retainer agreement Flori signed provided:

8 Fees for Enforcing this Agreement.
8.1 In the event it is necessary to institute suit for the collection of fees and advances due to us by you, you will pay, in addition to any judgment for such fees and advances, all costs and expenses necessitated thereby, including reasonable attorney’s fees for the suit. Furthermore, in the event of any lawsuit as a result of any provision hereof for the interpretation hereof or otherwise or in any way arising out of our relationship as attorney and client, and if we are the prevailing party, then we shall be entitled to collect from you all costs and expenses necessitated by me in such litigation, including reasonable attorney’s fees.

The trial court denied appellant fees under this section “because the court construes ‘necessary to institute suit for the collection of fees’ as involving something different than a supplemental action to enforce a charging lien.”

The trial court’s interpretation of a contract is a matter of law subject to a de novo standard of review. Leisure Resorts, Inc. v. City of W. Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003). In construing a contract, the intention of the parties is ascertained from the language used in the instrument and the object to be accomplished and unless clearly erroneous, the construction placed upon a contract by the trial judge should be affirmed. Rylander v. Sears Roebuck & Co., 302 So.2d 478, 479 (Fla. 3d DCA 1974).

In this case, the language of the contract is clear that by appellant’s filing of a supplemental petition to enforce its charging lien, it met the requirement of “necessary to institute suit for the collection of fees and advances due to us by you.” Similar language was used in a retainer agreement in Berryer v. Hertz, 522 So.2d 510 (Fla. 3d DCA 1988). In Berryer, the appellate court held that the attorney/defendant in a malpractice action not only could counterclaim for the balance of his fee pursuant to the original retainer agreement, but also was entitled under the agreement to attorney’s fees incurred in defending the case and prosecuting the counterclaim. Id. at 511.

We accordingly hold the trial court erred as to this issue by denying appellant attorney’s fees for having to bring the supplemental petition. We, therefore, reverse and remand with directions to the trial court to enter an amended final judgment after conducting an evidentiary hearing to determine reasonable attorney’s fees for appellant having to bring the supplemental petition.

Appellant’s third claim of error is that the trial court erred in refusing to allow it attorney’s fees pursuant to section 57.105, Florida Statutes. We affirm the trial court’s final judgment as to this issue as well as all issues raised by appellee on cross-appeal without further discussion.

Affirmed in Part; Reversed in Part, and Remanded.

GUNTHER, J., and LEWIS, TERRY P., Associate Judge, concur.


author: ROTHENBERG, Judge.

text:
    Laurance COSTANZO, Appellant, v. Laura COSTANZO, Appellee.
    No. 3D05-2205.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Carl A. Cascio, for appellant.
    Feiler & Leach and Michael B. Feiler, Coral Gables, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Laurance Costanzo (“Mr. Costanzo”) appeals from a non-final order denying without prejudice his Renewed Motion for Dissolution of Final Judgment of Injunction and Protection Against Domestic Violence (“Renewed Motion to Dissolve”). We affirm.

In April 2002, Laura Costanzo (“Ms. Costanzo”), who is Mr. Costanzo’s sister, filed a Petition for Injunction for Protection Against Domestic Violence (“Initial Petition”), pursuant to section 741.30, Florida Statutes (2002). Following an eviden-tiary hearing, the trial court entered a Final Judgment of Injunction for Protection Against Domestic Violence (“Injunction”) in October 2002. The Injunction prohibited Mr. Costanzo, for an indefinite period of time, from 1) having any contact with Ms. Costanzo; 2) contacting or having any third party contact anyone “connected with [Ms. Costanzo’s] employment or school to inquire about Ms. Costanzo”; and 3) coming within 500 feet of Ms. Cos-tanzo’s residence or place of employment.

On January 19, 2005, Ms. Costanzo filed a Motion for Order to Show Cause, alleging that Mr. Costanzo violated the terms of the Injunction by contacting her employer and other authorities. On February 10, 2005, Mr. Costanzo filed a Renewed Motion to Dissolve, arguing that “there are no valid grounds to support the continuing enforcement of the Injunction.”

A hearing was held on May 6, 2005, addressing Mr. Costanzo’s Renewed Motion to Dissolve and Ms. Costanzo’s Motion for Order to Show Cause. During the hearing, the trial court stated that it was denying Mr. Costanzo’s Renewed Motion to Dissolve. At the conclusion of the hearing, Ms. Costanzo’s attorney stated, “Last thing for housekeeping: In the interim, I’m assuming that the order — the Motion to Dissolve is denied without prejudice pending the evidentiary hearing?” In response, the trial court stated, “Yes. Okay.”

On May 24, 2005, the trial court entered an order granting Ms. Costanzo’s Motion for Order to Show Cause, providing that it will “schedule an evidentiary hearing on this matter at a later date.” On August 8, 2005, the trial court entered an order denying Mr. Costanzo’s Renewed Motion to Dissolve without prejudice to refile at a later date, and additionally “prohibited [Mr. Costanzo] from initiating contact with any State or Federal officials in connection with any ongoing investigation in connection with [Ms. Costanzo].”

In this non-final appeal, Mr. Cos-tanzo contends that the trial court erred in denying his Renewed Motion to Dissolve as Ms. Costanzo did not establish in her Initial Petition that she was entitled to a domestic violence injunction. In support of this contention, he raises two arguments. First, he argues that Ms. Costan-zo does not fall within the protections of section 741.30(l)(e), Florida Statutes (2002), as he and Ms. Costanzo were not living together at the time the Initial Petition was filed and have not lived together for numerous years. We disagree. Not only has this argument been previously rejected by this court, see Rosenthal v. Roth, 816 So.2d 667, 667-68 (Fla. 3d DCA 2002)(holding that a sister was properly granted a permanent domestic violence injunction against her brother, even though they had not resided with each other for more than forty years, where an argument between the siblings escalated into physical violence), it is contrary to Florida statutory law. Section 741.30(l)(e), Florida Statutes (2002), provides that a “cause of action for a[] [domestic violence] injunction may be sought by family or household members. ...” (Emphasis added). Moreover, section 741.28(3), Florida Statutes (2002), provides that “ ‘Family or household member’ means ... persons related by blood .... With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.” (Emphasis added). As Mr. and Ms. Cos-tanzo are brother and sister, they are related by blood, and because they have resided together in the past, Ms. Costanzo was entitled to seek and obtain a domestic violence injunction against Mr. Costanzo and be afforded the protections provided in section 741.30(l)(e), Florida Statutes (2002).

Second, Mr. Costanzo asserts that the allegations contained in the Initial Petition are insufficient to state a cause of action for an injunction for protection against domestic violence. To state a cause of action, the petitioner must allege sufficient facts demonstrating that he or she is a “victim of domestic violence” or “has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence ....” § 741.30(l)(a), Fla. Stat. (2002). “Domestic violence” is defined, in part, as “any assault, ... battery, ... or any criminal offense resulting in physical injury ... of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. (2002). The Initial Petition sufficiently asserts that Ms. Cos-tanzo was a “victim of domestic violence” and that she had “reasonable cause to believe” that she was “in imminent danger of becoming the victim of any act of domestic violence,” in that Mr. Costanzo 1) verbally threatened to harm her by stating, “You’re going to disappear and no one is going to know when, how, where or why”; 2) verbally threatened to harm her by stating, “I’m going to throw acid in your face and disfigure you”; and 3) verbally threatened and physically harmed her when he placed her in a headlock and stated, “should I paralyze you now or later.”

Mr. Costanzo also argues that a permanent injunction cannot be extended unless the moving party presents evidence that establishes that there has been an additional act of violence or that he or she has a continuing reasonable fear that an act of domestic violence is likely to occur or reoccur in the future. Although Mr. Costanzo’s statement of the law is generally correct, see Sheehan v. Sheehan, 853 So.2d 523, 525 (Fla. 5th DCA 2003)(holding that “in order to obtain an extension of a domestic violence injunction, the moving party must present evidence from which a trial court can determine that a continuing fear exists and that such fear is reasonable, based on all the circumstances”), his argument is inapplicable as Ms. Costanzo did not file a motion to extend the Injunction, but instead, Mr. Costanzo filed a motion to dissolve the Injunction.

Finally, contrary to Mr. Costanzo’s assertion, he was not denied an opportunity to present evidence on his Renewed Motion to Dissolve. During the May 6, 2005 hearing, Mr. Costanzo admitted that he had contacted Ms. Costanzo’s employer. Based on his admission, the trial court found that Mr. Costanzo violated the Injunction; ordered him to show cause why he should not be held in contempt of court and/or in indirect criminal contempt for violating the Injunction; and denied the Renewed Motion to Dissolve without prejudice, “pending the evidentiary hearing.” However, before the trial court was able to schedule and conduct an evidentiary hearing, Mr. Costanzo filed his non-final appeal challenging the trial court’s order denying his Renewed Motion to Dissolve without prejudice. We, therefore, conclude that it was Mr. Costanzo’s actions, not the trial court’s refusal to conduct an evidentiary-hearing, which has precluded the trial court from considering any additional evidence Mr. Costanzo may wish to present.

We decline to address the remaining issues raised by Mi*. Costanzo in this non-final appeal as we find them to be without merit.

Affirmed.