text:
    The REDLAND COMPANY, INC., Petitioner, v. ATLANTIC CIVIL, INC., a Florida Corporation, f/k/a Florida Rock and Sand Company, Inc., Respondent.
    No. 3D06-2359.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    Lisa S. Walsh; Dresnick & Rodriguez and Pamela I. Perry, Miami, for petitioner.

      Shubin & Bass and Jeffrey S. Bass; Gonzalo R. Dorta, Miami, for respondent.
    Before COPE, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

The Redland Company, Inc. (“Redland”) petitions for a writ of certiorari quashing the trial court’s order compelling production of Redland’s corporate tax returns, corporate general ledgers maintained during the ordinary course of business, and all supporting documents used to prepare the ledgers. Because we find that the order compelling production is overbroad, we grant the writ.

The underlying dispute in this case arises from Redland’s alleged continued violation of a September 1999 settlement agreement entered into by Redland, the Respondent, Atlantic Civil, Inc. (“Atlantic”), and the City of Homestead. The settlement agreement resolved disputes among the parties arising out of quarrying activities at a public lake owned by the City of Homestead. Paragraph six of the settlement agreement contained a restriction prohibiting the removal of fill from the lake to points outside certain boundaries:

6. City and Redland agree that they shall not seek modification of the condition set forth in the DERM Dredge and Fill Permit for the Lake which prohibits removal of fill material from the Lake to points outside of the boundaries of the Villages of Homestead Development of Regional Impact (“the VOH DRI”). Further, Redland, including its successors or assignees, and City agree not to remove or attempt to remove any fill material from the Lake or from any other lake within the boundaries of the VOH DRI to points outside of the boundaries of the VOH DRI. Similarly, the City agrees not to grant permission to Redland or to any other individual or entity to remove fill from the Lake to any location outside of the VOH DRI. Further, City agrees not to allow any person or entity to remove fill form any other location in the VOH DRI to any location outside of the VOH DRI, unless City is required by a court of competent jurisdiction to allow such removal or City is required to review such removal request in a quasi-judicial capacity....

Paragraph five of the settlement agreement also required Redland to provide Atlantic a right of first refusal to sell Red-land certain products including concrete, sand, and similar construction supplies:

5. During the course of its business activities when Redland from time to time needs concrete, sand or other like supplies produced by FRS, it shall provide a verifiable right of first refusal to Florida Rock, to provide such materials to Redland on terms which are as favorable or more favorable to Redland than those available form other supply sources. This is intended to encourage consistent and harmonious relations between Redland and Florida Rock in common and routine business dealings.

Almost immediately after the parties executed the settlement agreement, Redland violated paragraph six of the settlement agreement by removing fill from the lake and hauling it to a location outside of the designated boundaries.

Subsequently, Atlantic filed suit against Redland and the City of Homestead. In its Fifth Amended Complaint, Atlantic alleged claims for breach of contract, unjust enrichment, and sought an accounting and injunctive relief. Specifically, Atlantic claimed that Redland had breached paragraph six of the agreement by “removing or permitting the removal of fill material from points within the VOH DRI to points outside the VOH DRI on numerous occasions” and by making “unauthorized sales, removal, or delivery of City fill outside the permitted area in violation of the [settlement [ajgreement.” Atlantic also alleged that “Redland had repeatedly breached paragraph five (5) of the [sjettlement [ajgreement by failing to provide Plaintiff with a verifiable right of first refusal to ‘provide concrete, sand or other like supplies’ to Redland on terms that are as favorable or more favorable to Redland that those available from other supply sources.”

During the course of discovery, Atlantic propounded a Third Request for Production to Redland. The following requests are at issue:

1. Produce your corporate tax returns along with all company schedules from the year 1997 through the present.
2. Produce your company’s general ledgers maintained during the ordinary course of business covering the years 1997 through the present.
3. Produce all backup invoices, receipts, cancelled checks, check drafts, and all other documents that were used to make the entries and otherwise prepare the general ledger that you are producing pursuant to the foregoing request.

After proceedings below before both the trial court and a special magistrate, the trial court denied Redland’s Objections to the Third Request for Production and denied Redland’s Objections and Exceptions to the Special Magistrates’s Recommendation. The trial court found that items 1-3 of Atlantic’s Third Request for Production were discoverable and ordered their production within ten days. In its order the trial court required Redland to produce a privilege log within the same ten (10) days for review by the court if Redland believed that the discovery was highly confidential. This appeal ensued seeking to quash the order compelling production of these items.

“[CJertiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); see also Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). Although not every erroneous discovery order creates certiorari jurisdiction, certiorari is the proper remedy for overbroad discovery orders “because once discovery is wrongfully granted, the complaining party is beyond relief.” Caterpillar Industrial, Inc. v. Keskes, 639 So.2d 1129, 1129 n. 1 (Fla. 5th DCA 1994); accord Life Care Centers of America v. Reese, 948 So.2d 830, 832 (Fla. 5th DCA 2007); American Medical Systems, Inc. v. Osborne, 651 So.2d 209, 210 n. 1 (Fla. 2d DCA 1995). Such is the case here.

The trial court’s order departs from the essential requirements of the law by requiring overbroad discovery that will cause material injury to Redland and leave them with no adequate remedy on appeal. First, the order requires the production of tax returns, general ledgers, and supporting documentation from 1997 through the present. This time frame request, however, is unreasonably broad given that the settlement agreement, which forms the basis of the breach of contract action was not executed by the parties until September 1999. Second, the challenged order requires the wholesale turnover of documents without regard to the issues framed by the alleged breaches of paragraphs five and six of the settlement agreement, and as such we find that the order is overbroad in that respect as well.

We therefore grant the petition and quash the order below. Our finding, however, is without prejudice for Atlantic to fashion discovery requests that are more narrowly crafted to relate to the alleged breaches of paragraphs five and six of the settlement agreement. Moreover, this opinion should not be construed as a comment on the merits of the underlying claims or whether said requests may be relevant if more narrowly crafted to the alleged breaches.

For reasons stated, we grant the petition and quash the order.

      . Atlantic was formerly known as Florida Rock and Sand.

      . Redland asserted various objections to Atlantic’s discovery including overbreadth objections based upon time and scope.


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    William R. UFER, Sr., and Rex-Douglas Corporation, Appellants, v. STATE AUTO INSURANCE COMPANIES, Appellee.
    No. 4D06-1407.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Rehearing Denied Aug. 27, 2007.
    Frank R. Brady and Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for appellants.
    James G. Salerno and Heather Rogers Barrow of Peterson Bernard, Fort Laud-erdale, for appellee.
   MAY, J.

An insured appeals an order denying its request for attorney’s fees, pursuant to section 627.428, Florida Statutes (1998). It argues the court erred in denying attorney’s fees for its defense of a declaratory judgment action that resulted in a finding of no covérage and entry of summary judgment in favor of the insurer. We disagree and affirm.

The insured is the owner and operator of a Meineke Discount Muffler Shop franchise. In April 1998, Anthony Ostuni, a shop mechanic, was shot and killed during a robbery. The decedent’s wife sought and collected workers’ compensation benefits relying on her husband’s status as an employee of Rex-Douglas. She subsequently filed a wrongful death action against the insured alleging that her husband had been a business invitee of Mei-neke. State Auto issued both a general liability and an umbrella policy to the insured.

State Auto informed the insured that it would defend the wrongful death action under a reservation of rights. State Auto based its reservation on the workers’ compensation exclusion contained within the policy. The reservation of rights letter provided:

We continue to require your complete cooperation and assistance in investigating the loss and resolving the coverage questions. If you are contacted by anyone regarding this claim, are served with any lawsuits or receive any correspondence, please contact the undersigned immediately. You may wish to discuss this matter with your own personal attorney.

State Auto then filed a Petition for Declaratory Judgment against the insured and the plaintiff in the wrongful death action, which it later amended. In its Second Amended Petition for Declaratory Judgment, State Auto claimed the policies did not provide coverage because the decedent was an employee of the insured, who was statutorily immune from suit under the Workers’ Compensation Law, sections 440.01 and 440.11, Florida Statutes (1998). State Auto sought a judicial determination of the single issue of its obligation to provide coverage.

The insured filed an answer with nine affirmative defenses and a counter-petition. In its counter-petition, the insured sought a declaration that it was entitled to both indemnity and a defense under either or both the general liability and/or umbrella policy. The insured also sought attorney’s fees and costs under both policies, pursuant to sections 57.105(2), 86.081, 624.155(3), and 627.428, Florida Statutes (1998).

The insured moved for partial summary judgment on its affirmative defenses and counter-petition as to State Auto. It maintained that State Auto had a duty to defend the insured in the underlying wrongful death action under both policies. State Auto agreed and acquiesced to the entry of a partial summary judgment on the duty to defend pending a ruling on the coverage issue. The trial court entered a partial summary judgment on State Auto’s duty to defend.

The plaintiff filed an answer and affirmative defenses to State Auto’s petition, and the insured filed a reply in avoidance of it. Borrowing State Auto’s argument against the insured that there was no coverage, the insured argued against the plaintiff that her acceptance of workers’ compensation benefits was inconsistent with her position in the wrongful death action that her husband was a business invitee. The insured further argued that the doctrines of judicial estoppel, res judi-cata or collateral estoppel would bar the wrongful death action once there was a declaration that there was no coverage under the policies based on workers’ compensation immunity.

The insured moved for summary judgment on its reply in avoidance of the plaintiffs pleading in State Auto’s declaratory judgment action. The trial court ultimately ruled that the plaintiffs wrongful death claim against the insured was barred by the workers’ compensation statute, section 440.11. On outstanding motions for summary judgment between State Auto and the insured, the trial court granted summary judgment for State Auto on the coverage issue based upon the workers’ compensation exclusion. The plaintiff appealed these judgments, which this court affirmed. Ostuni v. Meineke Discount Muffler Shops, Inc., 948 So.2d 848 (Fla. 4th DCA 2007).

The insured then moved to assess attorney’s fees and costs for its defense of the declaratory judgment action and its prosecution of its counter-petition. State Auto filed an opposition to the motion, arguing that the insured was not the prevailing party. Further, State Auto argued that the partial summary judgment on the duty to defend had been agreed to and merely reflected what State Auto was already doing — providing a defense to the insured. The trial court found that State Auto, not the insured, was the prevailing party and denied the motion for attorney’s fees and costs.

The insured now claims the trial court erred when the court denied the request for attorney’s fees sought under section 627.428(1) because it was forced to defend the declaratory judgment action. State Auto responds that the insured failed to meet the statutory requirements for entitlement to fees under section 627.428(1).

The American Rule on attorney’s fees and costs is that each party pays its own expenses absent a statute or contractual provision authorizing such an award. Pepper’s Steel & Alloys, Inc. v. United States, 850 So.2d 462, 465 (Fla.2003). Section 627.428(1) provides

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

This section “applies in virtually all suits arising under insurance contracts.” State Farm Fire & Cas. Co. v. Palma, 629 So.2d 880, 832 (Fla.1993) (footnote omitted).

Traditionally, section 627.428(1) applied “in first-party cases between an insured and its insurer where judgment is actually entered against the insurer.” Basik Exports & Imports, Inc. v. Preferred Nat. Ins. Co., 911 So.2d 291, 292 (Fla. 4th DCA 2005), review denied, 935 So.2d 1219 (Fla.2006); Ivey v. Allstate Ins. Co., 774 So.2d 679, 684 (Fla.2000).

Here, there were two requests for relief between the insured and the insurer. The first claim was State Auto’s petition for declaratory judgment on the coverage issue. The second claim was the insured’s counter-petition seeking a declaration that State Auto owed a defense of the wrongful death action and that the policies provided coverage.

On the duty to defend, State Auto conceded the issue from the start, providing a defense to the insured under a reservation of rights. It neither questioned nor failed to provide the requisite defense to the insured on the underlying wrongful death claim. Thus, the insured’s request for a declaration on State Auto’s duty to defend was unnecessary and cannot serve as the basis for an award of attorney’s fees. Basik Exports & Imports, Inc., 911 So.2d at 292, 294.

On the coverage issue, State Auto, not the insured, prevailed. The insured’s winning argument against the plaintiff automatically rendered it the losing party against State Auto. Indeed, it was the plaintiffs manipulation of the pleadings in the wrongful death action that gave rise to the controversy. After previously taking the position that the decedent was an employee of the insured and accepting workers’ compensation benefits, the plaintiff alleged the decedent had been a business invitee, which was a truly inconsistent position. Because the insured lost the coverage issue, the trial court correctly denied attorney’s fees and costs to the insured.

Affirmed.

SHAHOOD, C.J., and GROSS, JJ., concur.

      . "Insured” refers to William R. Ufer, Sr., and Rex-Douglas Corporation. Rex-Douglas was doing business as Meineke Discount Muffler Shop. It was initially believed that Ufer, Sr. was an owner, principal, and shareholder in Rex-Douglas. Through discovery, State Auto learned that he neither had an ownership interest nor was an officer, director, or employee of the company as of January 1992.

      . The same trial judge handled both the liability and coverage actions. In addition to insurance defense counsel provided by State Auto, the insured retained private counsel.

      . State Auto had filed similar motions in the underlying wrongful death action, but because the record did not include evidence of the workers’ compensation claim at that time, the trial court denied those motions as premature.

      . If anyone is responsible for the insured’s attorney’s fees, it should be plaintiff’s counsel, who purposefully pleaded inconsistent facts in an effort to create coverage where it did not exist.


author: POLEN, J.

text:
    Elizabeth CINTRON, f/k/a Elizabeth King, Appellant, v. Roger KING, Appellee.
    No. 4D06-3322.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.

      Craig A. Boudreau, West Palm Beach, for appellant.
    No appearance for appellee.
   POLEN, J.

Former wife appeals a final judgment of dissolution of marriage. We find merit in all three of appellant’s points, and reverse and remand with directions to the trial court to modify the final judgment.

Elizabeth Cintron (“former wife”) petitioned for dissolution of her marriage to Roger King (“former husband”), claiming the marriage was irretrievably broken. After a hearing on former wife’s petition in which both parties appeared pro se, the trial court dissolved the marriage and found that other than the ownership of the jointly owned marital home, “the parties have successfully divided up all of their marital assets and debts.” The court gave former husband full credit for all down payment monies, property tax payments, home improvement expenses and homeowner’s insurance premiums tendered by him after former wife vacated the home. Former wife filed a motion for reconsideration and rehearing, but was denied relief.

On appeal, former wife argues (1) that the trial court erred in awarding former husband full credit for the tax payments, home improvement expenses and homeowner’s insurance premiums which he made after she vacated the marital home; (2) that the court erred in awarding former husband a special equity for the down payments on the marital home where there was no finding as to the actual amount of the down payment and no finding regarding additional circumstances to overcome the presumption of a gift; and (3) that reversal is required because the trial court did not identify and value all marital assets and liabilities as required by section 61.075(3)(b), Florida Statutes (2005).

The standard of review of a trial court’s determination of equitable distribution is abuse of discretion. Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003).

(1) Award of 100 percent credit for taxes, home improvement expenses and insurance premiums on marital home

“Generally, if one co-tenant pays an obligation for which all are liable, he is entitled to have the other co-tenant pay his proportionate share.” Whiteley v. Whiteley, 329 So.2d 352, 353 (Fla. 4th DCA 1976) (citation omitted). Whiteley determined that upon partition of the marital home, the wife was entitled to husband’s proportionate share of expenses which she incurred during the pendency of the dissolution, including mortgage payments and “such improvements or repairs as may be made.” Id. In Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975), on which Whiteley relied, this court found that the trial court abused its discretion in not directing that the wife be given credit at the time of sale of the marital home for mortgage interest, taxes, insurance, and repairs which she paid in excess of her one-half interest. Id. at 499. Likewise, in Abella-Fernandez v. Abella, 393 So.2d 40 (Fla. 3d DCA 1981), the court, recognizing that joint tenants share equal obligations in the marital residence and that the tenant meeting those obligations is entitled to one half credit upon the sale or partition of the residence, determined that the husband should be given proportionate credit for mortgage payments, taxes, insurance, utilities and minor repairs. Id. at 40.

In this case, former husband and former wife jointly own the marital residence. Therefore, they are generally said to be jointly responsible for any obligations arising from the home, such as taxes, home improvement expenses and homeowner’s insurance premiums. See Whiteley, 329 So.2d at 353. The trial court, however, granted former husband full credit for these expenses. While the award is not necessarily erroneous since courts have discretion to award a disproportionate share of expenses, see id., the court in this case did not explain why it gave former husband full credit, nor does the record provide justification for a disproportionate award. We therefore reverse and remand with instructions for the trial court to modify the award in accordance with the above authorities or to amend the final judgment to make clear why former husband is entitled to a lopsided award.

(2) Special equity for down payment on the marital home

In Florida, all real property held by tenants by the entireties is presumed to be a marital asset regardless of who paid for it. § 61.075(5)(a)5, Fla. Stat. (2005). In order to overcome the statutory presumption, the party seeking a special equity has the burden of proving that a gift was not intended. Stough v. Stough, 933 So.2d 603, 607 (Fla. 1st DCA 2006); see also Robertson v. Robertson, 593 So.2d 491, 494 (Fla.1991). In the present case, the parties’ home was jointly titled and thus enjoyed the presumption of marital property. See Stough, 933 So.2d at 607. Yet the trial court awarded former husband a special equity for a down payment on the marital home, presumably based upon evidence that former husband made the down payment with his nonmarital assets. This evidence alone was insufficient to prove that former husband did not intend a gift. See Zangari v. Cunningham, 839 So.2d 918, 921 (Fla. 2d DCA 2003) (finding that, standing alone, evidence that one party made the down payment for the parties’ marital home with his nonmarital assets was insufficient to prove that the party did not intend a gift) (citation omitted). Therefore, we find that the trial court abused its discretion in awarding former husband a special equity in the jointly titled marital home because there is no record evidence that he overcame the statutory presumption by demonstrating that a gift was not intended.

As explained by Cattaneo v. Cattaneo, 803 So.2d 889 (Fla. 5th DCA 2002), however, the above does not mean that former wife is necessarily entitled to fifty percent of the value of the down payment. See id. at 891 (stating that trial court must consider the factors of section 61.075(1) factors in making a proper equitable distribution). Thus, we instruct the lower court on remand to reevaluate the equitable distribution of the marital home accordingly.

We also find that the trial court erred in not applying the Landay formula in determining former husband’s special equity. See Landay v. Landay, 429 So.2d 1197, 1199 (Fla.1983). “Landay mandates the formula to be used where non-marital assets are used by a spouse as a portion of the consideration for the entireties’ property.” Whalen v. Whalen, 937 So.2d 775, 776 (Fla. 4th DCA 2006). “[I]n addition to that spouse’s automatic one-half share, the contributing spouse acquires a special equity in the property equal to one-half the ratio which that spouse’s contribution bears to the entire consideration.” Landay, 429 So.2d at 1200. “In other words, the starting place is a fifty/fifty split or automatic half interest. The formula is then used to ‘carve out from the other spouse’s interest in the property his or her special equity.’ ” Whalen, 937 So.2d at 776. The formula is: (.5) (down payment / purchase price) = special equity percentage. Id.

Since the trial court here did not provide a value for the down payment and the final judgment makes no mention of the Lan-day formula, it is unclear whether the court used the formula in determining the special equity. Therefore, we instruct the trial court to utilize the formula should it determine that a special equity for the down payment is still appropriate after reevaluating the equitable distribution of the marital home. When applying the formula, the trial court should attach a value to the down payment and clearly indicate the value in its judgment. See § 61.075(3)(b), (d), Fla. Stat. (2005) (requiring trial court identify and value marital assets and liabilities and make “[a]ny other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities”).

(3) Whether the trial court failed to value assets and liabilities

Lastly, we find that reversal is required because the trial court did not identify and value all marital assets and liabilities as required by section 61.075(3)(b), Florida Statutes (2005). In a contested dissolution such as the one here, the trial court must identify and value all marital assets. § 61.075(3)(b), Fla. Stat. (2005). In this case, the trial court valued the marital home and certain expenses former husband incurred in maintaining the home after the parties’ separation. However, in referring to all other marital assets, the court stated, “Other than ownership of the jointly owned marital residence, the parties have successfully divided up all of their marital assets and debts.” This blanket statement did not satisfy the court’s duties under Chapter 61. Thus, we instruct the trial court on remand to make the necessary statutory findings.

Based on the foregoing, we reverse and remand for the trial court to modify and amend its rulings. The court in its discretion may hear additional testimony on the above matters.

Reversed and Remanded with Instructions.

STEVENSON and TAYLOR, JJ., concur.

      . See also Sheehan v. Sheehan, 943 So.2d 818, 821 (Fla. 4th DCA 2006) (“When a husband and wife are jointly responsible for the mortgage on real property and one spouse pays the entire mortgage during the pendency of the dissolution, as part of the judgment of dissolution, the paying spouse is entitled to credit for half the total payments made.”) (emphasis added); Greenberg v. Greenberg, 602 So.2d 626, 628 (Fla. 4th DCA 1992) (ruling that the trial court erred in failing to credit former wife for one half of payments made on the mortgage, maintenance, and repair expenses of the marital home from the time of the separation until the final judgment) (emphasis added); Benz v. Benz, 557 So.2d 124, 126 (Fla. 3d DCA 1990) (finding spouse who made mortgage and tax payments was entitled to be compensated to one half credit for other spouse's obligation only) (emphasis added); Golden v. Golden, 410 So.2d 945, 946 (Fla. 3d DCA 1982) (determining former husband was entitled to half the amounts he expended for mortgage payments, taxes, insurance, utilities and repairs) (emphasis added).

      . We also note that in finding former husband and his family paid for $13,610.38 in improvements on the marital home, the trial court failed to explicitly determine whether that expense was incurred during or subsequent to the intact marriage; whether the source of funds was the product of marital labor or a gift to one or both parties; or if the improvements were done with the advice or consent of former wife. We direct the court to amend the final judgment to include more detailed findings and make clear whether the home improvement is a marital asset.

      . We can envision a case where there is no issue on appeal as to whether there has been an equitable distribution of marital assets and liabilities. In such a case, it might be permissible for a final judgment to simply note: “the parties have mutually agreed on a division of assets,” notwithstanding the statutory mandate. That is not the case here, and such would no doubt be an exception to the rule.


author: STEVENSON, J. MAY, J.,

text:
    Dallas Ray BALDWIN, Appellant, v. CITY OF FORT LAUDERDALE, a political subdivision of the State of Florida, Appellee.
    No. 4D06-2862.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Rehearing Denied Sept. 4, 2007.
    Charles G. White of Charles G. White, P.A., Miami, for appellant.
    Alain E. Boileau and Dieter K. Gunther of Adorno & Yoss LLP, Fort Lauderdale, for appellee.
   STEVENSON, J.

Dallas Ray Baldwin was arrested by City of Fort Lauderdale police officers following a sting operation. Later, Baldwin sued the City of Fort Lauderdale, alleging he sustained injuries (1) when police severely beat him after he was arrested and handcuffed and (2) when police failed to use an available seat belt to secure him and “through continuous rapid stopping and accelerating” caused him to be “hurled” around the van during transport to jail. The trial court entered final summary judgment in favor of the City on sovereign immunity grounds. We reverse.

Section 768.28(9)(a), Florida Statutes, provides, in relevant part, that the State and its subdivisions shall not be liable for “the acts or omissions of an officer, employee, or agent ... committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Because the case was before the trial court on motion for summary judgment, the City was entitled to judgment in its favor if the only conclusion that could be reached by a reasonable jury was that the police acted in bad faith, with a malicious purpose, or in wanton and willful disregard of human rights, safety, and property. See Willingham v. City of Orlando, 929 So.2d 43, 48 (Fla. 5th DCA 2006). We do not believe this was the case here.

With respect to Baldwin’s attempt to impose liability upon the City for the alleged beating, we believe the matter is appropriate for resolution by a jury. In the City’s answer to the complaint, it claimed the force that was used was reasonable. Moreover, it claimed that the law enforcement officers involved in the arrest disputed in their depositions that they used excessive and unreasonable force, or acted in bad faith, with a malicious purpose, or in wanton and willful disregard of Baldwin’s rights, safety, and property. Therefore, if the jury had the opportunity to hear all of the testimony and facts presented, it might conclude that the law enforcement officers in fact acted reasonably under the circumstances, or it may find the law enforcement officers used excessive force, but not to a degree that constituted bad faith, a malicious purpose, or wanton and willful disregard of human rights, safety, and property. Additionally, the jury may conclude under proper instruction that the conduct of the law enforcement officers did in fact constitute bad faith, with a malicious purpose, which was wanton and willful, and therefore find the City was not liable. Any one of these three scenarios could be a reasonable conclusion arrived at by the jury. See McGhee v. Volusia County, 679 So.2d 729 (Fla.1996); Carestio v. Sch. Bd. of Broward County, 866 So.2d 754 (Fla. 4th DCA 2004).

As for Baldwin’s claim regarding his transport to the jail, the complaint does not allege that police deliberately or intentionally drove in a manner so as to inflict injury upon Baldwin or that the actions of the officers were taken in bad faith or with a malicious purpose, and the evidence offered in support of the City’s motion for summary judgment did not conclusively establish such facts.

Reversed and Remanded.

HAZOURI, J., concurs.

MAY, J., dissents with opinion.

MAY, J.,

dissenting.

I respectfully dissent. The specific allegations in the plaintiffs complaint and the plaintiffs own deposition testimony revealed facts of such an egregious nature that, in my view, they insulate the City from liability under the statutory immunity provided by section 768.28(9)(a), Florida Statutes (2001).

The plaintiffs complaint alleged that City of Fort Lauderdale police officers committed a battery on the plaintiff by use of

excessive force by severely and brutally kicking and beating the Plaintiff in and about his head, body, and extremities as to cause grievous bodily harm and permanent injury. Further, during the transport from the scene of Plaintiffs arrest, he was subjected to further use of excessive force by City of Fort Laud-erdale police officers by their conduct in not placing the available seat belt on the Plaintiff to secure him and despite his existing injuries, and thereafter engaging in a course of conduct by subjecting Plaintiff to be hurled around the transport van through continuous rapid stopping and accelerating of the transport vehicle.

The plaintiff testified that he was hit from the “side or from behind.” Once inside the truck and while handcuffed, “some officers came in the truck and started kicking me, stared [sic] hitting me ... and just continually kicking me in the head....” He was kicked at least twenty times. According to his testimony, when the van began to move, the officers drove in such a manner to cause the plaintiff to be slammed into the walls of the van continuously.

Section 768.28(9)(a), Florida Statutes (2001) provides:

The state or its subdivision shall not be liable in tort for the acts or omissions of an officer, employee or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in any manner exhibiting wanton and wilful disregard of human rights, safety, or property.

(Emphasis added). Here, the only allegations were that the officers severely and brutally beat and kicked the plaintiff while handcuffed and then intentionally drove the vehicle in a manner to cause additional injury to the plaintiff.

The plaintiff chose to proceed against the City only. The plaintiff chose to plead only one count alleging the City was vicariously liable for the severe and brutal treatment of the plaintiff by its officers. The plaintiff chose to proceed on allegations of behavior, supported by the plaintiffs own testimony, that in my view fall within the description of “wanton and wilful disregard of human rights, safety, or property.” This is the level of conduct for which the legislature provided the City with immunity under section 768.28(9)(a), Florida Statutes (2001).

There were no alternative allegations of simple negligence on the part of the officers. Had there been an alternative count for simple negligence, then I would agree with the majority that there were genuine issues of material fact precluding summary judgment. However, under these facts taken in the light most favorable to the plaintiff and the allegations in his complaint, the trial court was correct in entering a summary judgment for the City. I would affirm.

      . It is important to note that the plaintiff did not file suit against the individual officers.


author: PER CURIAM.

text:
    Lynn WEINBERG, Appellant, v. Deborah BORT, Appellee.
    No. 4D07-363.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Rehearing Denied Aug. 31, 2007.

      Lynn Weinberg, Port Lee, NJ, pro se.
    No brief filed for appellee.
   PER CURIAM.

Lynn Weinberg appeals an order entered in the probate of her father’s estate disbursing $50,000 to her sister, Deborah Bort, pursuant to a settlement agreement. She also argues error in some of the other disbursements; however, she has failed to provide this court with a sufficient record in order for this court to determine that the trial court erred. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (without record adequate to demonstrate reversible error, appellate court cannot conclude that trial judge so misconceived the evidence or law as to require reversal); Fla. R.App. P. 9.200.

Further complicating our review is the fact that Weinberg’s brief contains no reference to the record. Finally, her complaints about errors in litigation in New Jersey are not within the jurisdiction of this court. For any and all of the above reasons, we affirm.

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    David SMYLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4850.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    David Smyly, Boca Raton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Clarification

PER CURIAM.

We grant appellee’s motion for clarification, set aside our mandate and withdraw our opinion issued April 11, 2007. We substitute the following opinion to reflect the correct case numbers in the lower tribunal.

Appellant challenges the revocation of his probation, claiming that the trial court erred in denying his motion for discharge under the speedy trial rule. However, Florida Rule of Criminal Procedure 3.191 does not apply to revocation of probation proceedings. See Piz v. State, 826 So.2d 1063 (Fla. 2d DCA 2002); Gonzalez v. State, 447 So.2d 381, 382 (Fla. 3d DCA 1984). We therefore affirm but remand for the trial court to enter a written order of revocation of probation.

Affirmed and remanded.

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    Charles A. CARRICARTE, Michael A. Carricarte, Bruna Carricarte, and, M.E.C., a minor, Appellant, v. Albert L. CARRICARTE, Appellee.
    Nos. 3D07-168, 3D07-158, 3D07-164, 3D07-165.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    Liebler, Gonzalez & Portuondo, P.A., Miami, and William M. Richardson, Jr., for appellant.
    Albert L. Carricarte, in proper person, for appellee.
    Before GREEN, WELLS, and CORTINAS, JJ.
   PER CURIAM.

The Carnearte family appeals orders denying motions to extend an injunction in favor of the sister-in-law and the niece and extending temporary injunctions in the brothers’ favors. We affirm. This case presents an ongoing dispute among family members that has culminated in the entry of various previous injunctions against the appellee, Albert L. Carnearte, in favor of his two brothers, his sister-in-law, and his niece (collectively “appellants”).

Appellants assert that the trial court abused its discretion in denying their request for entry of permanent injunctions. “A trial court is afforded broad discretion in granting, denying, dissolving or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb the trial court’s decision.” Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006). To the extent that they rest on questions of fact, decisions on requests for permanent injunctions “lie within the sound discretion of the trial court and will be affirmed absent a showing of abuse of discretion. This is particularly true where the order relies on live testimony or other evidence that the trial court is singularly well-suited to evaluate.” Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 961 (Fla.2002).

The record demonstrates that the trial judge, who had presided over all of the parties’ previous motions, heard ample evidence to support the decisions in this case. The rulings granting the request for an extension of the injunction in the brothers’ favor, and declining to extend the injunction in the sister-in-law and the niece’s favor, demonstrate that the court considered all the issues and the testimony and tailored the relief as required in the case. There is no basis for us to substitute our judgment for that of the trial court or to conclude that the court abused its discretion in view of the conflicting evidence.

Affirmed.


text:
    Deanna STUART, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Rent Way Incorporated, Appellees.
    No. 1D06-4405.
    District Court of Appeal of Florida, First District.
    July 12, 2007.

      Deanna Stuart, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, and Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Deanna Stuart appeals the Order of the Unemployment Appeals Commission (“Commission”), which affirmed the appeals referee’s ruling. Stuart raises numerous issues on appeal, only one of which merits discussion. Stuart contends that Rent Way Incorporated’s (“Employer”), initial appeal to the appeals referee was untimely. We conclude that the record demonstrates that the Employer’s appeal was untimely and the appeals referee lacked jurisdiction to hear the appeal. Therefore, we reverse with instructions to the Commission to dismiss the Employer’s appeal.

Following the Agency for Workforce Innovation’s (“Agency”) determination that Stuart was entitled to unemployment benefits, the Employer appealed the Agency’s determination to an appeals referee. After the appeals referee reversed the Agency’s determination, Stuart appealed to the Commission. The Commission subsequently affirmed the appeals referee’s decision. This appeal followed. Stuart argues that the Employer’s appeal was untimely because it was filed more than twenty days after the mailing of the Agency’s determination to the parties.

Section 443.151(3)(a), Florida Statutes (2006), provides, “[t]he determination is final unless within 20 days after the mailing of the notices to the parties’ last known addresses, or in lieu of mailing, within 20 days after the delivery of the notices, an appeal or written request for reconsideration is filed by the claimant or other party entitled to notice.” This twenty-day deadline is jurisdictional, and the appeals referee does not have jurisdiction to hear an untimely appeal. See Thurman v. Fla. Unemployment Appeals Comm’n., 881 So.2d 89, 90 (Fla. 1st DCA 2004). The rules place an affirmative duty on the appeals referee to determine the timeliness of the appeal sua sponte. See Fla. Admin Code R. 60BB-5.007(l)-(2)(2006).

The appeals referee failed to include any factual findings concerning the timeliness of the Employer’s appeal, however, the record clearly demonstrates that the Employer filed an untimely appeal 22 days after the Agency issued their determination. The appeals referee was therefore without jurisdiction to hear the Employer’s appeal and the Agency’s determination was final.

Accordingly, we reverse with instructions for the Commission to dismiss the Employer’s appeal as untimely.

REVERSED and REMANDED with instructions.

BROWNING, C.J., BENTON and LEWIS, JJ., concur.


author: THOMPSON, J.

text:
    D.W.G., Father of C.M.G., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-3989.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2007.
    C. Michael Barnette, of Law Office of C. Michael Barnette, Daytona Beach, for Appellant.
    Jodi Abramowitz, of Department of Children and Family Services, Orlando, for Appellee.
    Hillary S. Kambour, Guardian Ad Litem Program, Orlando.
   THOMPSON, J.

D.W.G. appeals a September 2006 dependency order that reunified C.M.G. with the mother and an October 2006 order on judicial review/permanency review and notice of next hearing.

D.W.G. now suggests, and the Department of Children and Families agrees, that the challenged order is not an appeal-able order under Florida Rule of Appellate Procedure 9.130(a)(3). However, this court treats the notice of appeal as a petition for writ of certiorari. See Fla. R.App. P. 9.040(c); S.H. v. Deft of Children & Families, 950 So.2d 1267, 1268 (Fla. 5th DCA 2007); In re 726 So.2d 402 (Fla. 2d DCA 1999); Interest of K.D. & C.M., 679 So.2d 39 (Fla. 2d DCA 1996). Though D.W.G. addresses much of his argument against the October order on judicial review/permanency review and notice of next hearing, he requests primarily that this court reverse the September order of modification of custody/placement. “The standard of review to be applied by an appellate court in considering common law certiorari is whether the trial court’s order departs from the essential requirements of law.” A.P. v. Dep’t of Children & Families, 957 So.2d 686 (Fla. 5th DCA 2007) (citing Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000)).

Finding no departure from the essential requirements of the law, we DENY the Petition.

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


text:
    Charles CATES, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1748.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2007.
    Charles Cates, Century, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Bell v. State, 573 So.2d 10 (Fla. 5th DCA 1990).

GRIFFIN, ORFINGER and MONACO, JJ., concur.


text:
    Craig F. WOEHRLE, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4164.
    District Court of Appeal of Florida, First District.
    July 18, 2007.
    Craig F. Woehrle, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, Department of Corrections; Bill McCol-lum, Attorney General, Joe Belitzky and Warren James Pearson, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

Craig F. Woehrle, an inmate, has petitioned for a writ of certiorari in order to review an order which imposes a lien on his prison inmate trust account. This lien was imposed for satisfaction of court costs incurred when Woehrle filed a petition for a writ of mandamus. By this mandamus petition, Woehrle challenged a disciplinary proceeding which resulted in the loss of gain-time. As the state correctly concedes, because Woehrle was challenging the loss of gain-time, the circuit court proceeding was a collateral criminal proceeding for which an indigency determination is to be made in accordance with section 57.081, Florida Statutes. Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003). Section 57.081 does not authorize imposition of a lien. Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). Accordingly, the petition for a writ of certiorari is granted. The order imposing a lien is reversed, the lien is vacated, and the cause remanded for entry of an order directing the reimbursement of any funds which may have already been withdrawn pursuant to the lien.

REVERSED and REMANDED.

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


author: WELLS, Judge. GREEN, J.

text:
    BANCO LATINO (S.A.C.A.), Petitioner, v. AVTEK ELECTRONICA, C.A., a Venezuelan Corporation, William E. Kimberely, and Hugo Piedrafita, Respondents.
    No. 3D06-1460.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Diaz, Rues, Rolff & Targ and Michael Diaz, Jr., Miami and Vestalia Aylsworth and Carlos F. Gonzalez, for petitioner.
    Lorena Anna Schwartz, for Linda Kelly Kearson, Esq., General Counsel for the Eleventh Judicial Circuit.
    Before GREEN, WELLS, and CORTIÑAS, JJ.
   WELLS, Judge.

Banco Latino, the plaintiff below, seeks review of an order denying a motion for enlargement of time to effect service of process on the defendants pursuant to Rule 1.070Q') of the Florida Rules of Civil Procedure. We treat the instant appeal as a petition for writ of certiorari which we grant.

This petition stems from an action filed in 2004 to collect on a number of promissory notes executed by a Venezuelan corporation and guaranteed by a Venezuelan citizen and a United States citizen. Since the action was filed, Banco Latino has sought and obtained a number of extensions of time to effectuate service while it has endeavored to locate the defendants. Although the record reveals that Banco Latino has made substantial progress in these efforts, in part due to an investigator which it has hired, its most recent motion for an extension was denied wholly without explanation.

Because the record demonstrates “good cause” for further extending the time to effectuate service under Rule 1.070(j), we conclude that the lower court departed from the essential requirements of the law in the denying the most recent motion for an extension. See Fla. R. Civ. P. 1.070(j) (providing that if the plaintiff “shows good cause” for the failure to timely effectuate service, “the court shall extend the time for service for an appropriate period”); Hernandez v. Page, 580 So.2d 793, 794-95 (Fla. 3d DCA 1991) (finding that “good cause” under rule 1.070(j) requires “at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of ‘good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified’ is normally required” (quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir.1985))),

The petition for writ of certiorari is therefore granted and the order denying an extension of time for service of process is quashed.

GREEN, J.

(specially concurring).

I concur in the majority opinion because the plaintiffs pleadings demonstrate concerted efforts to serve the defendants. However, I write separately because our decision should not be construed as carte blanche authority for the petitioner to continue to receive unlimited extensions. The petitioner must continue to demonstrate that it is making substantial progress to locate and serve the respondents.


author: WARNER, J.

text:
    Amado Evarito GARCIA, Appellant, v. Renee STEWART and Woodgate Condominium Association, Inc., Appellees.
    No. 4D06-1815.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Rehearing Denied Aug. 30, 2007.

      Brenda Cox of Brenda Cox, P.A., Boca Raton, for appellant.
    Ronald E. D’Anna and Jennifer J. Kramer of McClosky, D’Anna & Dieterle, LLP, Boca Raton, for appellee Woodgate Condominium Association, Inc.
   WARNER, J.

In Garcia v. Stewart, 906 So.2d 1117 (Fla. 4th DCA 2005), we resolved a claim to monies which were disbursed from the court registry to a condominium association, a non-party, after a foreclosure sale. We directed that those monies be redeposited. Id. at 1123. When the case returned to the trial court, Garcia, the owner of the condominium unit prior to foreclosure and the party entitled to the monies, moved for attorney’s fees against the condominium association in connection with the trial court proceedings involving the disbursement of the funds. The trial court denied the fees and directed the condominium association to redeposit the monies that had been disbursed to it. We affirm and direct that after the monies are redeposited, they shall be disbursed to Garcia.

A second mortgage holder sought to foreclose her mortgage on Garcia’s condominium unit. The Woodgate Condominium Association was originally joined as a party but asserted that its lien for unpaid assessments was superior to that of the second mortgage. In its final judgment, the court dismissed the Association as a party. When a third-party purchased the unit, the surplus proceeds were deposited in the court. The Association moved for disbursement of the proceeds to it because of its lien. The trial court granted the relief, but we reversed. We held that once the Association was dismissed as a party and it filed no pleading to recover on its lien, the court had no subject matter jurisdiction to disburse the money to the Association, concluding its motion to disburse was insufficient to invoke the jurisdiction of the court to determine its right to the funds. Id. at 1122-23. Therefore, the order disbursing the proceeds to the Association was void for lack of subject matter jurisdiction.

On remand, Garcia moved for attorney’s fees against the Association. The trial court determined that, although Garcia was the prevailing party with respect to the trial court proceedings, he had not made a timely request for fees. Therefore the request was denied, although the trial court awarded costs to Garcia. It also required the Association to redeposit the funds which had been disbursed to it together with interest from the date of disbursal. Garcia appeals the denial of his attorney’s fees, and the Association cross-appeals the order requiring it to pay interest on the monies redeposited.

Our prior opinion concluded that the Association ceased to be a party once the final judgment dismissed it, and the trial court had no further subject matter jurisdiction over the lien controversy. Id. Thus, at the time that the motion for disbursement was filed, the Association was a non-party attempting to intervene in the proceedings. If the Association’s attempted intervention would entitle Garcia to seek fees, no statute or contract permits the award in this case. Garcia seeks to justify them under the Declaration of Condominium. However, at the time the Association moved to disburse the proceeds, Garcia was no longer a condominium owner and governed by the provisions of the documents, his interest having been foreclosed. Thus, Garcia has no statutory or contractual basis for a request for fees.

The Association contends that it should not be required to pay interest on the monies it withdrew from the court registry, contending that interest is a fíne or penalty. We disagree. Florida has rejected the analysis that pre-judgment interest serves as a penalty. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 214-15 (Fla.1985). Interest is merely compensation for the use of money. See Reilly v. Barrera, 620 So.2d 1116, 1118 n. 3 (Fla. 5th DCA 1993). Here, the Association had the use of the money for the entire period of time of the first appeal and prevented its disbursement to its rightful owner. We find no error in the order requiring the payment of interest on the disbursed funds.

So that this matter can be finally concluded, we affirm the orders of the trial court and direct upon remand that, if it has not already done so, the Association deposit the monies, including the interest owed, as directed by the trial court. The trial court is then authorized to enter an order disbursing those monies to Garcia. There is no need for another evidentiary hearing on the ownership of the monies, as Garcia is the only party in the proceedings claiming entitlement to the proceeds.

Affirmed.

GROSS and TAYLOR, JJ., concur.


text:
    N.D., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D07-734.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.

      Herscher and Herscher and llene Herscher, Coral Gables, for appellant.
    Karla Perkins, Miami, for appellee.
    Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

As the appellee-Department agrees, the trial court has no authority to determine a disputed issue of paternity in a Chapter 39 proceeding. See E.K. v. Dep’t of Children and Family Servs., 874 So.2d 720 (Fla. 2d DCA 2004). The Final Judgment of Paternity entered below is therefore held for naught and vacated. The alleged father, the appellant N.D., having denied paternity, has no standing to object to an order of dependency or the termination of parental rights. If, however, the mother, the Department or another agency desires to establish that paternity, an appropriate proceeding for support or otherwise must be brought in the family division of the circuit court in which the alleged father has the right to a jury trial. See B.J.Y. v. M.A., 617 So.2d 1061 (Fla.1993).

Vacated and remanded.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Carlye A. BLACKBURNE, Respondent.
    No. 4D07-1162.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.

      John A. Raymaker, Assistant General Counsel, Tallahassee, for petitioner.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

The Department of Children and Families filed a petition for writ of certiorari or in the alternative prohibition, seeking review of an order directing it to transfer the respondent Carlye A. Blackburne to a chapter 916 forensic facility. We grant the petition for writ of certiorari and quash that portion of the order that commits the respondent to the Department of Children and Families to be transferred to a chapter 916 mental health treatment facility for restoration of his competency.

The respondent is currently detained pursuant to a determination that probable cause exists to believe that he is a “sexually violent predator” as defined by section 394.912, of the Florida Statutes (2007). The trial court determined that the respondent was incompetent to proceed with the civil commitment trial under Chapter 394. Rather than placing the respondent in a secure facility upon the finding of probable cause as contemplated by section 394.915(1), the trial court followed the procedure of Chapter 916 applicable to mentally deficient and mentally ill defendants. However, Chapter 916 does not address competency proceedings for convicted felons subject to civil commitment proceedings under section 394.912. Indeed, the respondent does not satisfy the definition of “defendant” as defined by Chapter 916. § 916.106(6) Fla. Stat. (2007); cf. Dep’t of Children & Family Services v. Leons, 948 So.2d 988 (Fla. 4th DCA 2007).

Further, Florida Statutes section 394.917(2) provides that “[a]t all times, persons who are detained or committed under this part shall be kept in a secure facility segregated from patients of the department who are not detained or committed under this part.” Thus, the Florida legislature has prohibited the co-mingling of incompetent defendants with those detained under Chapter 394. For these reasons, we find the trial court’s order deviated from the essential requirements of law, resulting in irreparable injury. We therefore grant the petition, and quash the order of the trial court to the extent it commits the respondent to the Department of Children and Families under section 916.13(1) and directs the transfer of him to a Chapter 916 mental health treatment facility for restoration of his competence to proceed.

Petition Granted.

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

      . This court has not been asked to review the finding of incompetence or to comment on the respondent’s right to be competent during the Jimmy Ryce Act proceedings. Branch v. State, 890 So.2d 322 (Fla. 2d DCA 2004); Camper v. State, 933 So.2d 1271 (Fla. 2d DCA 2006). The second district has recognized that “the Ryce act itself contains no provision concerning a respondent’s right to be competent during the proceeding.” Branch, 890 So.2d at 326.

      . We also note that the respondent has not demonstrated that the secure facility contemplated by section 394.915 is inappropriate.


text:
    David J. LINN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Washington Inventory Service, Inc., Appellees.
    No. 3D06-3081.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.

      David J. Linn, in proper person.
    John D. Maher, Deputy General Counsel, Tallahassee, for appellee.
    Before FLETCHER, CORTIÑAS and ROTHENBERG, JJ.
   PER CURIAM.

David J. Linn appeals from a final order of the Unemployment Appeals Commission reversing a decision from an appeals referee determining that Linn was qualified to receive unemployment benefits. We reverse and remand for reinstatement of the appeals referee’s decision.

Linn was employed by Washington Inventory Service Inc. as director of operations beginning February 26, 1998. In April of 2006, Linn met with his superiors to discuss his concerns with certain business operations which he considered illegal and which were frustrating him. His superiors told him that it may be in his best interest to leave. Linn responded that he should receive a severance package for his many years of service. Thereafter, Linn, with the assistance of counsel, negotiated a severance package. On May 30, 2006, Linn submitted an e-mail stating “As per our agreement, I resign effective May 17, 2006.” His employer did not find this resignation acceptable, and forwarded to him a pre-printed letter of resignation which indicated that he was voluntarily leaving his position and was generally satisfied with his separation benefits package. Linn was advised that his failure to sign the letter would result in his being terminated and the loss of his severance package. Linn signed the letter and received a lump sum severance check.

On his subsequent request for unemployment benefits, Linn was found eligible. His employer challenged the finding, arguing that Linn quit. A telephonic hearing was held before an appeals referee wherein Linn and Washington’s legal and employee relations manager testified. Based on the foregoing factual findings, the referee concluded that Linn “attempted to maintain his employment by bringing] his concerns to the highest levels of authority” and his employer “did not take any steps to assist [Linn] in preserving his employment” nor did the employer take “any steps to look into [his] concerns.” Thus, Linn’s resignation was attributable to his employer. Washington timely appealed the decision to the Commission.

The Commission adopted the referee’s findings of fact, but came to a different conclusion. The Commission’s order states, in pertinent part:

“The record reflects the claimant voluntarily left employment due to some dissatisfaction with changes being implemented by his new supervisor and because of ‘alleged illegal practices of the employer which caused him concern and frustration.’ The referee reasoned that, because the employer exhibited an unwillingness to further address the claimant’s concerns, the claimant demonstrated good cause to quit. While the claimant testified regarding unfair practices and changes with which he did not agree, his testimony regarding the nature of his concerns lacked details and was too general to demonstrate that the employer was engaging in illegal or unfair practices or that the claimant reasonably believed he was being treated unfairly or being required to perform possibly illegal acts.”

R. at 80-81.

In an administrative proceeding, the appeals referee is the trier of fact and, as such, is responsible for weighing the evidence and resolving any conflicts. See e.g., San Roman v. Unemployment Appeals Comm’n, 711 So.2d 93 (Fla. 4th DCA 1998); Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106 (Fla. 5th DCA 1990); McCray v. Dept. of H.R.S., 384 So.2d 980 (Fla. 3rd DCA 1980). “In reviewing whether the record contains competent, substantial evidence to support the appeals referee’s findings, the reviewing court may not make determinations as to credibility or substitute its judgment for that of the referee.” San Roman, 711 So.2d at 95. Whether an employee left work voluntarily and without good cause attributable to the employer is a question of fact within the province of the appeals referee. Benson v. Unemployment Appeals Comm’n, 927 So.2d 49 (Fla. 5th DCA 2006); Shapiro v. Unemployment Appeals Comm’n, 745 So.2d 548 (Fla. 4th DCA 1999). “[A]n employer’s requiring an employee to perform acts which the employee reasonably believes violate the law furnishes the employee with good cause, attributable to the employer, to voluntarily leave employment.” Ayers v. State, Unemployment Appeals Comm’n, 848 So.2d 1239, 1241 (Fla. 4th DCA 2003); see also Gorr v. Sheridan Travels, Inc., 655 So.2d 1310 (Fla. 4th DCA 1995).

Here, based on substantial and competent evidence, the appeals referee found that Linn left his employment for good cause attributable to his employer because he complained of certain practices which he believed to be illegal and they were unattended to. In reaching a contrary conclusion based on the same facts, the Commission has impermissibly reinterpreted or reassessed the evidence and the legal effect of these facts. See Perez v. American Med., Inc., 842 So.2d 285 (Fla. 3d DCA 2003); Tourte v. Oriole of Naples, Inc., 696 So.2d 1283 (Fla. 2d DCA 1997). Accordingly, we reverse the order of the Commission and remand with directions to reinstate the appeals referee’s award of unemployment compensation benefits to the appellant.

Reversed and remanded with instructions.


author: LAGOA, Judge.

text:
    Philip PILEVSKY, etc., et al., Petitioners. v. MORGANS HOTEL GROUP MANAGEMENT, LLC, Respondent.
    No. 3D06-1989.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.

      Coffey Burlington Wright Crockett Schwep Kaplan & Blonsky and Kendall Coffey and Mark Journey, Miami, for petitioners.
    Kozyak Tropin Throckmorton and Michael S. Olin and David P. Milian and Carmen Contreras-Martinez, Coral Gables; Friedman Kaplan Seiler & Adelman, New York City, NY for respondent.
    Before COPE, FLETCHER, and LAGOA, JJ.
   LAGOA, Judge.

Petitioners Philip Pilevsky, SB Realty Corp., Sheila Levine, Jeffrey Levine, Michael Pilevsky, Diana Marrone, Richard Burton, Clark SB II LLC, Clark SB LLC, the Clark Foundation, Jane Clark, the Scriven Foundation, Kevin Moore and Philips SB Associates LLC, ask this Court to grant their petition for writ of certiorari and quash the trial court’s order denying a stay of proceedings. Because we find that these proceedings involve both substantially similar parties and substantially similar issues as are involved in a parallel proceeding before the Supreme Court of the State of New York, we grant the petition for certiorari and quash the trial court’s order denying a stay of proceedings.

I. FACTUAL HISTORY

In 2001, Philips South Beach (“PSB”), opened the Shore Club hotel (“Shore Club”), a hotel/resort property in Miami Beach, Florida. In July, 2002, PSB, the Shore Club’s owner, entered into a management agreement with Ian Sehrager Hotel Management, LCC (“ISHM”), to take over the day-to-day operations at the Shore Club. Respondent Morgans Hotel Group Management LLC (“Morgans”) is the successor in interest to ISHM. Because Morgans owns and manages the Delano Hotel (“Delano”), a nearby hotel/resort property, the parties negotiated contractual provisions that require Morgans not to manage the Shore Club in a manner that benefits the Delano at the Shore Club’s expense. Over time, PSB, and Pilevsky in particular, concluded that Morgans had been managing the Shore Club and the Delano in such a manner as to benefit the Delano in violation of the management agreement.

On January 17, 2006, PSB initiated a nine-count lawsuit against Morgans and affiliated defendants in New York County (“the New York action”). The complaint alleges that Morgans, along with the other defendants, engaged in a “fraudulent scheme to improperly enrich themselves at the expense of the Shore Club,” by both transferring income to the Delano which properly belonged to the Shore Club, and conversely transferring the Delano’s expenses to the Shore Club. PSB claimed that Morgans diverted through various schemes and marketing/ booking practices millions of dollars from the Shore Club to its own benefit. PSB also claimed that Morgans destroyed documentation revealing the scheme. PSB sought a declaration that the managing agreement was terminated, an accounting of the Shore Club’s financial affairs, and damages for breach of fiduciary duty, breach of contract, tortious interference with a business relationship, breach of implied covenant of good faith and fair dealing, unfair competition, and for unjust enrichment.

On April 28, 2006, Morgans initiated a four-count lawsuit in Miami-Dade circuit court against PSB’s owners/principals (“the Florida action”). Morgans alleged that after it had turned the Shore Club into a financially viable hotel, Pilevsky and PSB began a scheme to oust Morgans from its management contract. Morgans alleged that the individual PSB investors have consistently and falsely coveted Morgans’ vendors and accused Morgans of being an unfaithful business partner. Morgans alleges that such accusations have been conjured in an attempt to terminate the management contract. Morgans seeks damages for breach of the management contract and for tortious interference with actual and prospective business and economic relations with Morgans’ vendors. Additionally, Shore Club Holdings LLC, as a minority investor in PSB, seeks to assert derivative claims against PSB’s individual investors for breach of fiduciary duty on behalf of nominal defendant PSB.

PSB sought to stay the Florida action on the ground that the Florida action involves substantially similar parties and substantially similar issues as the New York action, such that resolution of the first-filed New York action will ultimately decide most claims in the Florida action. The trial court denied the stay on the ground that Morgans’ tort claims could not be brought against certain Florida residents in New York.

II. STANDARD OF REVIEW

“Although a trial court has broad discretion to order or refuse a stay of an action pending before it, it is nonetheless an abuse of discretion to refuse to stay a subsequently filed state court action in favor of a previously filed [state] action which involves the same parties and the same or substantially similar issues. This rule is based on principles of comity.” Florida Crushed Stone Co. v. Travelers Indemnity Co., 632 So.2d 217, 220 (Fla. 5th DCA 1994). Comity principles dictate that an action should be stayed, and a trial court departs from the essential requirements of law by failing to grant such a stay, when the first-filed lawsuit involves substantially similar parties and substantially similar claims. Cuneo v. Conseco Servs., LLC, 899 So.2d 1139, 1141 (Fla. 3d DCA 2005).

III. ANALYSIS

We find that the disposition of this appeal is governed by Polaris Public Income Funds v. Einhorn, 625 So.2d 128 (Fla. 3d DCA 1993) and Leslie Fay Retail Outlets, Inc. v. Gallery Manufacturing Corp., 653 So.2d 1106 (Fla. 3d DCA 1995).

In Polaris, this Court stated:

Principles of comity between sovereigns suggest that a court of one state should stay a proceeding pending before it on grounds that a prior-filed case involving substantially the same subject matter and parties is pending in another state’s courts.

Id. at 129. This Court also noted in Polaris that “[t]he pivotal question is whether the Florida action is so similar in parties and issues as to be unnecessarily duplica-tive of the prior filed New York state proceedings.” Id. at 129. We answer that question here in the affirmative. Both the New York and Florida actions involve substantially similar parties and substantially similar issues. Although only PSB is named as plaintiff in the New York action, the only additional parties named as defendants in the Florida action are PSB’s individual investors and officers. Although that difference would require denial of a motion to abate the Florida action, it does not favor denial of a motion to stay. See Sauder v. Rayman, 800 So.2d 355, 358 (Fla. 4th DCA 2001); REWJB Gas Invs. v. Land O’Sun Realty, Ltd., 645 So.2d 1055, 1056-57 (Fla. 4th DCA 1994); Ricigliano v. Peat, Marwick, Main & Co., 585 So.2d 387 (Fla. 4th DCA 1991). Florida courts, including this one, regard forum shopping with displeasure, and that policy would be meaningless if a party could avoid the dictates of comity by simply naming nominal defendants in a second-filed action.

Although the trial court correctly noted that Morgans’ tort claims may not be entirely resolved in the New York action, the issues relating to the management contract — the central issues in both actions — will be resolved by the New York action. Florida law is clear that, “the causes of action do not .have to be identical” to require a stay of the second-filed action. Florida Crushed Stone Co. v. Travelers Indem. Co., 632 So.2d 217, 220 (Fla. 5th DCA 1994). “It is sufficient that the two actions involve a single set of facts and that resolution of the one case will resolve many of the issues involved in the subsequently filed case.” Id. Resolution in the New York action of whether Morgans breached the management contract will undoubtedly resolve Morgans’ inverse claim in the Florida action that PSB’s investors breached first. Moreover, resolution in the New York action of whether Morgans acted to the Shore Club’s detriment in dealing with its vendors will resolve most, if not all, issues in the Florida action relating to whether PSB’s investors tortiously interfered with those same vendors.

Both Morgans and the trial court essentially concede the above points and Morgans must therefore rely on its argument that the derivative claims will not be resolved in the New York action. • The derivative claims, however, hinge upon whether Morgans or PSB’s investors breached the management contract first. A finding in the New York action that Morgans breached the management contract would mean that PSB and its major investors could not have acted improperly toward Morgans by seeking redress for that breach, and the derivative claims asserted by Shore Club Holdings, LLC (an affiliate of Morgans) would be extinguished. Conversely, a finding in the New York action that Morgans acted properly would substantially strengthen the derivative claims by eliminating a dispositive affirmative defense to them.

“While the two cases are not identical, the disposition of the [New York action] will resolve many of the issues raised” in the Florida action. State v. Harbour Island, Inc., 601 So.2d 1334, 1335 (Fla. 2d DCA 1992). Morgans’ “unilateral decision” not to assert its claims as a counterclaim in the New York litigation “should not modify the long-standing principle that subsequently filed” actions should be stayed in favor of a first-filed action in another jurisdiction. Beckford v. General Motors Corp., 919 So.2d 612, 613-14 (Fla. 3d DCA 2006).

The trial court’s concern that Morgans may be unable to obtain personal jurisdiction over two Florida residents in a potential New York counterclaim is not the standard for according deference to a first-filed action. Because many of the issues in the Florida action will be resolved by the New York action, it is necessary to stay the Florida action until such time as the New York action is concluded. See, e.g., Edgar v. Cape Coral Med. Ctr., Inc., 712 So.2d 1209, 1211 (Fla. 2d DCA 1998). To the extent that there are any unresolved issues with regard to those Florida residents, the Florida action may proceed at the conclusion of the New York action.

As the record reveals no valid reason for a departure from the general rule of comity, refusal to stay the Florida action constituted an abuse of discretion. Accordingly, we grant certiorari, quash the order denying the stay, and remand with directions to stay this suit pending disposition of the New York action.

      . This Court has certiorari jurisdiction to review a trial court’s order denying a stay of proceedings. See Polaris Public Income Funds v. Einhorn, 625 So.2d 128 (Fla. 3d DCA 1993).

      . When Morgans assumed management of the Shore Club, a Morgans' affiliate, the Shore Club Holdings LLC invested in PSB.


text:
    Byron WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3241.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals an order denying a motion to withdraw his plea to armed carjacking involving a firearm and resisting without violence. He argues the trial court erred in denying the motion to withdraw his plea prior to sentencing. We agree and reverse.

At age nineteen, the defendant appeared before the trial court to enter a change of plea. During the plea colloquy, the trial court informed the defendant of the charges against him and the possible sentences. The defendant told the court he understood his rights, the charges, and the possible sentences that could be imposed. The defendant also moved for a downward departure sentence as a youthful offender.

At the end of the plea colloquy, the defendant asked to speak with his attorney. After conferring with him, the defendant indicated that he wished to proceed without any questions. On both counts, the defendant entered a plea of no contest. The trial court accepted the plea finding the defendant had entered the plea knowingly, intelligently, and voluntarily.

The court set the sentencing hearing for approximately one month later. The defendant also spoke on his own behalf. When the court inquired why he had committed the crime, the defendant responded: “Your Honor, to tell you the truth, I didn’t carjack this lady. I was just at the wrong place at the wrong time.”

The following discussion then took place.

THE COURT: Can you tell me what that means? You weren’t there at all or you were there?
MR. WRIGHT: I just feel this is in my best interest.
THE COURT: I’m not understanding exactly what you’re saying. It says on April 3rd, 2005, it says a black male, early 20s, about 6 foot 1 approached this victim, pointed a silver colored handgun at her rib cage, and said get out of the car, I don’t want to shoot you, get out of the car. The victim said she was in fear of her life. Then the subject took the keys and he and another black male got into the victim’s vehicle and fled the scene. So were you one of these two men?
MR. WRIGHT: No, Your Honor.
THE COURT: You were not?
MR. WRIGHT: I was not at the scene, Your Honor. I was there.
THE COURT: How many people were there?
MR. WRIGHT: They say it was three black males, Your Honor. I was in the stolen car. I was the passenger in that vehicle.
THE COURT: When the car got stopped, this Monte Carlo?
MR. WRIGHT: Yes, sir.
THE COURT: You’re saying you weren’t there when the car was taken?
MR. WRIGHT: No, sir.
THE COURT: Okay. Nonetheless, it was your decision to enter a plea to this charge.
MR. WRIGHT: Yes, sir.
THE COURT: Knowing that the maximum sentence is life.
MR. KADER [State’s Attorney]: Life.
THE COURT: It’s life imprisonment.
MR. WRIGHT: I understand that, sir.
THE COURT: You chose to enter a plea to a crime that you did not commit?
MR. WRIGHT: Yes, sir.
THE COURT: Why would you do that?
MR. WRIGHT: I feel it’s in my best interest.

Defense counsel explained that the defendant’s mother could verify that he was at home with her that day. He went over to a friend’s house, which is where the stolen car was located. The two men got into the car and that is when they were stopped by the police.

Defense counsel explained that the defendant was afraid of losing at trial. If he lost at trial, the defendant was concerned the trial court would not consider a downward departure sentence as a youthful offender.

The State explained that the victim reported two masked men and a third unmasked individual were involved in the carjacking. The defendant was allegedly the unmasked individual. At this point, defense counsel asked to confer with the defendant.

After conferring with the defendant, defense counsel informed the court that his client was scared. When the trial court asked the defendant if he was satisfied with his counsel’s advice and investigation, he responded affirmatively. The defendant acknowledged that he entered a plea of no contest in a case where he claimed he was not present. He understood that fact when he entered his plea and gave up his right to a trial.

When the defendant informed the court that he entered his plea because he was afraid of being railroaded, the trial court explained:

Railroad has kind of a funny connotation when you talk to a judge about that. Basically, that means to me that you’re going to be, number one, sentenced for something you didn’t do, and number two, the Court is not going to give consideration to everything that you present. I want to assure you that you entered your plea, so I’m assuming you did this. That’s why I asked you these questions about your involvement and why you did it. And since you’ve entered your plea, I have to believe that you did it. That’s one of the things I’m going to consider when I impose sentence is that you committed this crime. If you didn’t commit the crime, then we’re in the wrong place doing the wrong thing here. I want you to know I would consider everything else that’s been presented on your behalf, including what you said and what your mother said in determining an appropriate sentence. But sentence is only imposed when somebody enters a plea and acknowledges their guilt or enters a plea in their best interest which I think is what you’ve done. I guess what I’m asking, sir, is it still your decision to have the Court impoise [sic] sentence as opposed to going to trial?

The defendant responded: “I understand, sir. I’m just kind of confused. I’m just nervous, sir.” The defendant informed the court that he was so confused that he was about to “black out.”

The State requested that the victim be permitted to testify and that sentencing occur immediately rather than delay it any longer. The victim identified the defendant as the man who pointed the gun at her during the carjacking. She said she could identify him because he was not wearing a mask. She had identified him several times before.

After the victim’s testimony, the defendant informed the court that he was confused about what to do, and asked to speak with his mother. The .court told him, “We’ve already gone through this.” The defendant indicated that he “just wanted a chance.” At this point, defense counsel informed the court that she was uncomfortable with the dialogue and did not know whether the defendant wanted to proceed. She told the defendant that she did not know if the court would allow him to withdraw his plea, but if he wanted to, now was the time to do it. She told the defendant that she was concerned about him being confused and the way he was acting.

The trial court observed the defendant to be physically fíne and responding to questions appropriately. The State objected to a youthful offender sentence and requested “at least 20 years with a ten year minimum mandatory.” The defendant then personally told the court he wanted to withdraw his plea. The trial court asked for grounds, and defense counsel stated:

Grounds being, Your Honor, that I think Mr. Wright has reconsidered and is indicating that he did not commit the carjacking. His mom and family are defense witnesses that I had previously listed that indicate that at the time that this was being done he was not there. He admits to being in that car. And that is why he originally indicated he had entered the plea. I think he just — I don’t know. I think he just realized that perhaps he wants to go to trial instead of take the wrap for this.
We’ve had discussions about it regarding the possible penalties and the fact that there is a defense. I have indicated there is a possibility of the youthful offender. I have not promised him that anything could occur. I have told him that this could happen. He has just indicated that he wants to withdraw his plea and has reconsidered that he should go to trial.

The trial court denied the defendant’s ore tenus motion to withdraw his plea. According to the court, nothing had established that the plea was not freely and voluntarily given or that any new information was exposed during the sentencing hearing that was previously unknown or unavailable. The trial court then denied the defendant’s motion for a downward departure sentence as a youthful offender, adjudicated him guilty of carjacking with a firearm and resisting without violence, and sentenced him to twenty years with a ten-year mandatory minimum for the carjacking count and to time served, 459 days, on the resisting without violence count.

The next day, the defendant moved in writing to withdraw his plea and set aside the sentence. He claimed his plea was involuntary because he was confused and was “about to black out.” The defendant filed a second motion to withdraw his plea twenty days later and also moved to mitigate his sentence. The trial court denied both motions.

We review a trial court’s denial of a motion to withdraw a plea under an abuse of discretion standard. Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006) (citing Boule v. State, 884 So.2d 1023, 1024 (Fla. 2d DCA 2004)). The defendant argues that his plea was entered under a misapprehension and therefore involuntarily. The State responds that the trial court properly found the plea was knowingly, intelligently, and voluntarily entered.

“[R]ule 3.170(f) provides that ‘[t]he court may, in its discretion, and shall upon good cause, at any time before a sentence, permit a plea of guilty to be withdrawn.’ ” Tanzi v. State, — So.2d -, -, 32 Fla. L. Weekly S223, S224, 2007 WL 1362862 (Fla. May 10, 2007) (quoting Fla. R.Crim. P. 3.170(f)) (emphasis added). Our supreme court has noted that “this presentence standard is favorable to defendants, and trial courts are encouraged to liberally grant motions made before sentencing.” Id. (citing State v. Partlow, 840 So.2d 1040, 1044-45 (Fla.2003) (Cantero, J., concurring)).

The defendant bears the burden to establish “good cause.” Adler v. State, 382 So.2d 1298 (Fla. 3d DCA 1980). However, when good cause is established, the rule entitles the defendant to withdraw the plea. Tanzi, — So.2d at -, 32 Fla. L. Weekly at S224. And, the “rule should be liberally construed in favor of the defendant.” Id. (quoting Robinson v. State, 761 So.2d 269, 274 (Fla.1999)). “A defendant should be permitted to withdraw a plea ‘if he files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting his rights.’ ” Id. (quoting Robinson, 761 So.2d at 274).

Here, the defendant advised the court of his innocence, the existence of defense witnesses, and his motivation for accepting the plea to improve his chance of being sentenced as a youthful offender. He advised the court that his witnesses would testify that he was elsewhere during the commission of the crime and explained his presence in the car at the time of arrest.

The record reflects the defendant’s emotional demeanor, fear, and indecision concerning the plea he had entered a month before. The defendant had undergone a psychological evaluation and assessment for the Boot Camp program in preparation for requesting the downward departure. In short, he presented good cause to withdraw his plea prior to sentencing.

We emphasize the timing of the defendant’s request. This was not a request made after the defendant had learned of the trial court’s sentence and was simply displeased with the outcome. This is a request made before the trial court had considered the defendant’s request for a departure sentence and imposition of a youthful offender sentence. In fact, the trial court recognized the defendant’s fear and apprehension during the discussion of his motion to withdraw the plea. Under these unique circumstances, we find the trial court abused its discretion in denying the defendant’s motion to withdraw his plea. The conviction and sentence are reversed and the case is remanded to the trial court to vacate the plea and to be set for trial.

Reversed and Remanded.

SHAHOOD, C.J., and GROSS, J„ concur.

      . Admittedly, the victim clearly identified the defendant, but that simply created the factual issue to be decided by the jury.


text:
    Isaac SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4710.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Rehearing Denied Aug. 27, 2007.
    Isaac Smith, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

The Supreme Court of Florida quashed this court’s previous opinion and remanded for reconsideration in light of its decisions in Bates v. State, 887 So.2d 1214 (Fla.2004), and State v. Dickey, 928 So.2d 1193 (Fla.2006). We now affirm.

In this court’s prior opinion, we reversed in part the trial court’s summary denial of Smith’s motion for postconviction relief. We reversed solely as to his second ground, in which he claimed he was prejudiced by the ineffective assistance of his defense counsel for falsely representing to him that his plea would not later be used against him for enhanced sentencing for future crimes.

Under Bates, it appears that the second ground raised in Smith’s motion may have been untimely. In any event, the supreme court decided in Dickey that misadvice about the consequences for a crime not yet committed cannot constitute ineffective assistance of counsel.

Affirmed.

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

      . Smith v. State, 829 So.2d 940 (Fla. 4th DCA 2002), quashed, 957 So.2d 556 (Fla.2007).


text:
    Joseph Christopher GEREMIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4099.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    F; Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Florida v. Nixon, 543 U.S. 175, 186-87, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (reversing Nixon v. State, 857 So.2d 172 (Fla.2003), because Florida Supreme Court erroneously held that “counsel’s failure to obtain the defendant’s express consent to a strategy of conceding guilt ... automatically renders counsel’s performance deficient”); Harvey v. State, 946 So.2d 937, 943-44 (Fla.2006) (noting counsel said nothing more to jury than what defendant said in confession counsel knew would be heard by jury); Davis v. State, 928 So.2d 1089, 1116 (Fla.2005) (holding counsel’s strategic decisions did not constitute ineffective assistance).

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


text:
    Rodrigo BURGUES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2090.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Fla. R.Crim. P. 3.390(a) (stating that except in capital cases judge shall not instruct jury on sentence that may be imposed for offense for which accused is on trial).

GRIFFIN, ORFINGER and TORPY, JJ., concur.

i


author: MONACO, J.

text:
    George A. CRALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2945.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    George A. Crall, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Rule 3.850(d), Florida Rules of Criminal Procedure, reads that “[i]n those instances when the denial is not predicated on the legal sufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the mov-ant is entitled to no relief shall be attached to the order. Here, the appellant, George A. Crall, argues that the trial court erred in summarily denying his post-conviction motion without either holding an evidentia-ry hearing or attaching the pertinent parts of the record to the denial. The State agrees. Accordingly, we remand this matter for the trial court either to attach portions of the record supporting its denial of relief on Mr. Crall’s claim that his trial counsel was ineffective in failing to move to suppress his confession, or to hold an evidentiary hearing. See Eastwood v. State, 895 So.2d 1290 (Fla. 5th DCA 2005); Edwards v. State, 888 So.2d 153 (Fla. 5th DCA 2004).

REVERSED and REMANDED.

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


text:
    STATE of Florida, Appellant, v. Bruce Lenard GILCHRIST, Appellee.
    No. 5D06-2967.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.

      James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Carter, 835 So.2d 259, 262 (Fla.2002) (holding “[t]he trial court is in a better position to identify the probation violator’s motive, intent, and attitude and assess whether the violation is both willful and substantial.”).

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


text:
    Jody Leroy JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3041.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    Jody L. Johnson, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Richardson v. State, 918 So.2d 999, 1003-04 (Fla. 5th DCA 2006) (“[HJabeas corpus petitions that seek to obtain collateral relief regarding claims that could or should have been raised on direct appeal ... should be dismissed.”).

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


text:
    OFFICE OF the PUBLIC DEFENDER; Fourth Judicial Circuit of Florida, Appellant, v. William Rodney MADISON, Appellee.
    No. 1D06-1746.
    District Court of Appeal of Florida, First District.
    July 20, 2007.
    Bill White, Public Defender, and Ward L. Metzger, Assistant Public Defender, Jacksonville, for Appellant.
    Appellee William Rodney Madison, pro se.
   PER CURIAM.

Once the Office of the Public Defender’s representation of an indigent defendant ends, the office must, upon request, surrender any trial transcripts in its possession to the defendant. See Pearce v. Sheffey, 647 So.2d 333 (Fla. 2d DCA 1994) (finding public defender must relinquish transcript to petitioner upon conclusion of underlying appeal); Thompson v. Unterberger, 577 So.2d 684 (Fla. 2d DCA 1991) (finding petitioner entitled to transcripts in possession of his former public defender); see also Davis v. State, 861 So.2d 1214, 1216 (Fla. 2d DCA 2003) (“[Mjandamus is a proper means to compel a public defender to furnish a defendant with such transcripts.”). A public defender, however, is under no legal duty to provide copies of trial transcripts to an indigent defendant while still representing the defendant on direct appeal. Accordingly, we REVERSE the trial court’s grant of mandamus.

KAHN, LEWIS and HAWKES, JJ., concur.


text:
    James A. PITTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0833.
    District Court of Appeal of Florida, First District.
    July 20, 2007.
    James A. Pitts, pro se, Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having received no response, appellee’s motion to dismiss is granted. We dismiss this appeal for lack of jurisdiction. See McDonald v. State, 840 So.2d 371 (Fla. 1st DCA 2003).

BARFIELD, KAHN, and ROBERTS, JJ., concur.


text:
    Eugene LONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2022.
    District Court of Appeal of Florida, First District.
    July 20, 2007.
    Eugene Long, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to this Court’s order of January 18, 2007, the appeal is hereby dismissed for lack of jurisdiction. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

dismissed;

BARFIELD, KAHN, and ROBERTS, JJ., concur.