author: POLEN, J.

text:
    Charles VAVRUS, Appellant, v. CITY OF PALM BEACH GARDENS, Florida, a municipal corporation, Appellee.
    Nos. 4D04-3182, 4D05-2937.
    District Court of Appeal of Florida, Fourth District.
    April 5, 2006.
    Rehearing Denied May 25, 2006.

      Ernest A. Cox, Jack J. Aiello, and Brian M. Seymour of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellant.
    George P. Roberts, Jr., of Roberts, Reynolds, Bedard & Tuzzio P.A., West Palm Beach, for appellee.
   POLEN, J.

Appellant, Charles Vavrus, timely appeals a final judgment finding in favor of the City of Palm Beach Gardens (“the City”). Vavrus raises four issues-on appeal. For the reasons explained herein, we affirm on each of the issues. Appellee, the City, cross-appeals the trial court’s denial of its claim for a permanent injunction. We affirm the cross-appeal as well.

In December of 1975, Vavrus purchased 4,763 acres of property in Palm Beach County. In March of 1991, pursuant to voluntary petitions filed by Vavrus and adjoining landowners, the City annexed Vavrus’ property into the City boundaries. The City initially filed this action for in-junctive relief when Vavrus refused to recognize the requests and orders of the City code enforcement personnel and continued to clear-cut pine flatwoods on his property. The complaint sought a temporary injunction, a mandatory injunction for reforestation, and an on-site inspection. Upon filing the complaint, the City sought and received a temporary injunction, without bond.

Vavrus filed a motion to dismiss, claiming that the City Code did not apply to his property. His motion to dismiss was denied. He did not appeal the issuance of the temporary injunction directly, but instead filed a motion to dissolve the injunction, which was denied. Vavrus appealed the denial of his motion to dissolve injunction to this court, which affirmed the trial court by PCA on February 2, 2000. Vavrus v. City of Palm Beach Gardens, 756 So.2d 1020 (Fla. 4th DCA 2000).

After his motion to dismiss was denied, Vavrus filed an answer. The operative pleading at trial, Vavrus’ third amended counterclaim, was stated in ten counts, including claims for: (1) declaratory judgment and Right to Farm Act; (2) declaratory judgment regarding repealed code sections; (3) injunctive relief; (4) damages for wrongful issuance of injunction; (5) oppressive pre-condemnation conduct resulting in a taking of agriculture; (6) taking under the Florida Constitution; (7) equal protection under the Florida Constitution; (8) substantive due process under the Florida Constitution; (9) equal protection under federal law; and (10) substantive due process under federal law. The underlying premise throughout the general and specific allegations of the defenses and counterclaim was that the City Code did not apply to Vavrus’ property and, thus, the code enforcement proceedings were unlawful.

Concurrently, the City proceeded with enforcement of its Code through its Code Enforcement Board (CEB), the body having jurisdiction over thé code violations. Before the CEB, Vavrus contended that the City Code did not apply to his property, and thus, there were no violations. After the CEB entered its order finding violations and imposing fines, Vavrus sought review in the Appellate Division of the Circuit Court. The Circuit Court affirmed the Board’s decision by amended opinion on July 15, 2001. Vavrus sought further review, by petition for writ of certiorari, to this court. On November 4, 2002, this court denied certiorari. (4D01-3436). No further appeal was timely lodged.

Prior to trial in the instant case, Vavrus filed a motion to lift the existing temporary injunction. Since an evidentiary hearing was required, it was carried with the case to trial. The case proceeded to a 12-day jury trial on most of the claims (counts 4-10), and then to a bench trial on the remaining equitable claims (counts 1-3). At the close of Vavrus’ evidence, the trial court granted directed verdict to the City on all jury claims except the claim for wrongful temporary injunction. The jury found the temporary injunction was lawfully issued, thus they did not consider the issue of damages.

Thereafter, the trial court conducted a bench trial on the first three counts of Vavrus’ counterclaim and on the City’s claim for a mandatory injunction. On July 16, 2004, the court entered a final judgment in favor of the City on all of Vavrus’ claims. The court denied Vavrus’ motion to lift the temporary injunction. Subsequently, the court entered a final order denying the City’s claim for a mandatory injunction. This appeal and cross-appeal followed.

Vavrus raises four issues on appeal. For the reasons explained herein, we affirm on each of the issues. First, Vavrus argues that the trial court’s speculative opinion about the future use of Vav-rus’ property caused the court to err on legal and evidentiary rulings. This issue is not preserved for appellate review. “[I]n order to preserve for appellate review alleged improprieties of a trial judge, an objection must be made contemporaneously with the prejudicial conduct or comments.” Mathew v. State, 837 So.2d 1167 (Fla. 4th DCA 2003). Nor were the court’s comments here fundamental error. In any event, the comments made by the trial judge outside the presence of the jury did not taint the court’s legal and eviden-tiary rulings throughout the trial.

Second, Vavrus argues that the ⅛ court submitted erroneous jury inste» tions on the wrongful injunction claim. We hold that no reversible error occurred in giving the instruction.

Third, Vavrus argues that the trial court abused its discretion in admitting evidence about the Business Development Board of Palm Beach County (“BDB”) contract and the Scripps project. A trial court’s determination on the admissibility of evidence is subject to an abuse of discretion standard of review. Jones v. State, 908 So.2d 615, 621 n. 2 (Fla. 4th DCA 2005). No abuse of discretion occurred in the admission of this evidence.

Fourth, Vavrus argues that the trial court erred in entering an award of attorneys’ fees and costs in favor of the City. The fee award was based upon an offer of settlement submitted by the City pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 to settle all claims brought by his counterclaim and the fact that no damages were awarded to Vavrus in the Final Judgment on any of his counterclaims. Because we affirm each of the issues Vavrus raises on appeal, we also affirm the entry of the attorneys’ fees order.

The City cross-appeals the trial court’s denial of its claim for a permanent and mandatory injunction. We affirm, but note that nothing precludes raising the issue of a permanent injunction in subsequent proceedings.

SHAHOOD and TAYLOR, JJ, concur.


source: Caselaw Access Project

author: SALCINES, Judge. FULMER, Chief Judge,

license: Public Domain

text:
    GALAXY FIREWORKS, INC., Appellant, v. The Honorable Jeb BUSH, Governor of the State of Florida, and the State of Florida, Appellees. Itzhak Dickstein, Appellant, v. The Honorable Jeb Bush, Governor of the State of Florida, and the State of Florida, Appellees.
    Nos. 2D05-2478, 2D05-2479.
    District Court of Appeal of Florida, Second District.
    April 7, 2006.
    Rehearing Denied May 17, 2006.

      Steven G. Wenzel of Wenzel & Fenton, P.A., Tampa, for Appellants.
    Charles J. Crist, Jr., Attorney General; Christopher M. Kise, Solicitor General; James A. McKee, Deputy Solicitor General; and Samantha B. Hunter, Honors Attorney, Tallahassee, for Appellees.
   SALCINES, Judge.

In a consolidated action below, Galaxy Fireworks, Inc., and Itzhak Dickstein filed an inverse condemnation action against the State of Florida and Jeb Bush, the Governor of the State of Florida. The complaint alleged that Executive Order 98-165 deprived the plaintiffs of the opportunity to sell fireworks for the July 1998 fireworks sales season and that the prohibition constituted a compensable taking. The trial court entered a final summary judgment in favor of the defendants and concluded that there had been no seizing, damage, or destruction of the plaintiffs’ inventories by the State. This consolidated appeal seeks review of the final summary judgment. We reverse and remand for further proceedings.

A summary judgment is proper only when there is an absence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Maggio v. Dep’t of Labor and Employment Sec., 910 So.2d 876, 878 (Fla. 2d DCA 2005). This court reviews de novo an order granting summary judgment, and we must draw every inference in favor of the party against whom the summary judgment was entered. Id. at 878.

In the present case, the trial court’s entry of summary judgment was error. There was a material issue of fact concerning whether Executive Order 98-165 precluded the transportation of the plaintiffs’ supply of fireworks within the state and across the state border. Accordingly, we reverse the final summary judgment in favor of the defendants and remand for further proceedings.

Reversed and remanded.

WHATLEY, J., concurs.

FULMER, C.J., concurs with opinion in which WHATLEY, J., concurs.

FULMER, Chief Judge,

concurring.

I agree with the majority that the trial court erred by concluding that there were no disputes of material fact. I write to point out that the trial court’s conclusion that the Plaintiffs’ property was “incapable of any lawful use” is not supported by the record in this case. Unlike the citrus trees in Department of Agriculture & Consumer Services v. Polk, 568 So.2d 35 (Fla.1990), the Plaintiffs’ inventory of fireworks was not “diseased” or otherwise lacking in marketable value. Further, in my view the law governing business damages in eminent domain proceedings, which the trial court relied on as an alternative basis to grant summary judgment, does not apply to the underlying claim in this case.


author: LEWIS, J.

text:
    Pearlie ROCHELLE, as personal representative of the estate of Clifford E. Jones, Jr., deceased, Appellant, v. STATE of Florida, DEPT. OF CORRECTIONS, Galina Kats-Kagan, Frank McHugh, Joan Nabors, and Alexander Porter, Appellees.
    No. 1D05-1010.
    District Court of Appeal of Florida, First District.
    April 11, 2006.
    Rehearing Denied May 12, 2006.
    Charles Barfield, Esq. of the Law Offices of Charles A. Barfield, Orlando; J. Scott Murphy, Esq., Allen & Murphy, P.A., Maitland, for Appellant.
    John D. Buchanan, Jr., Esq. and Laura Beth Faragasso, Esq., Henry, Buchanan, Hudson, - Súber & Carter, P.A., Tallahassee, for Appellees.
   LEWIS, J.

Appellant, Pearlie Rochelle, appeals an Order Granting Motion for New Trial, or, In the Alternative, Remittitur, an Order Denying Disqualification, and an Order on Plaintiffs Renewed Motion for Sanctions, Including Striking of All Defenses. Appellant raises four issues on appeal, only one of which merits discussion. Appellant contends that the trial court erred in ordering a remittitur because the verdict was not excessive. Although we disagree with this argument, we agree with appellant’s alternative contention that the trial court erred in ordering a new trial on both liability and damages after the remittitur was rejected. We, therefore, reverse the Order Granting Motion for New Trial, or, In the Alternative, Remittitur and remand. We affirm the other orders on appeal without further discussion.

Appellant, as the personal representative of the estate of her son, Clifford E. Jones, Jr. (“the decedent”), a former inmate of the Jackson Correctional Institution (“JCI”), filed suit against appellees as a result of the decedent’s death, which occurred after he had been in JCI’s infirmary. In Count III, the pertinent count for purposes of this appeal, appellant asserted a wrongful death claim against ap-pellee the Department of Corrections (“Department”). Following a ten-day trial, the jury found that the Department, through its medical staff, was negligent in caring for the decedent and that the negligence was the legal cause of the decedent’s death. The jury awarded the decedent’s daughter $3 million in non-economic damages. The Department moved for a new trial or, in the alternative, a remittitur. In the Order Granting Motion for New Trial, or, In the Alternative, Remittitur, the trial court found in' part that the damages award was shocking and was wholly unsupported by the record. The court granted the alternative motion for remittitur in the amount of $250,000 for non-economic damages and $6,200 for funeral expenses but noted that “[i]n the event Plaintiff rejects the remittitur, Defendant’s Motion for New Trial is granted.” This appeal followed.

We begin by rejecting appellant’s argument that the trial court abused its discretion in ordering a remittitur. Given the lack of evidence in this case concerning damages, the trial court was well within its discretion in determining that the verdict was excessive.

We agree, however, with appellant that once a remittitur is rejected, a trial court may order a new trial on damages only. Upon proper motion, it is a trial court’s responsibility to review the amount of a damages award to determine if it is excessive or inadequate in light of the facts and circumstances that were presented to the jury. § 768.74(1), Fla. Stat. (2001). Once a trial court determines that a damages award is excessive, it must order a remittitur. § 768.74(2), Fla. Stat. (2001). “If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.” § 768.74(4), Fla. Stat. (2001) (emphasis added); see also Rowlands v. Signal Constr. Co., 549 So.2d 1380, 1382 (Fla.1989) (noting that a remittitur is proper in cases where liability clearly exists but where the damages award is excessive).

Appellees rely upon Food Lion v. Jackson, 712 So.2d 800 (Fla. 5th DCA 1998), in support of their argument that a new trial on liability and damages is warranted. There, the Fifth District reversed an order granting the appellee’s motion for additur or, in the alternative, a new trial on damages only. 712 So.2d at 801. The Fifth District reasoned that the questions from the jury and the verdict conveyed a strong indication of compromise on the issue of liability when it awarded the appellee medical expenses without considering non-economic damages. Id. at 802. While recognizing that section 768.74(4) prescribes that a trial court order a new trial on damages only when an additur or remitti-tur is rejected, the Fifth District explained that it did not believe that the “legislature intended to preclude a court from ordering a new trial on both damages and liability where the jury compromised the verdict.” Id. at 803; see also Broward County Sch. Bd. v. Dombrosky, 579 So.2d 748, 750 (Fla. 4th DCA 1991) (remanding for a new trial on liability and damages notwithstanding the ordering of an additur because there was some suggestion from the hotly contested evidence of liability that the jury may have compromised on the verdict given the jury’s decision to award a small damages award).

As appellant argues, Jackson is distinguishable from the instant case. Jackson addressed an additur rather than a remittitur. Jury compromise may occur when certain jurors agree to find liability as long as the damages award is small, which may lead to an additur being ordered. However, in a case such as this where a remittitur is ordered because a jury returns an excessive verdict, the concern regarding a possible compromised verdict does not exist. As such, appellees’ reliance upon Jackson for the proposition that a new trial on liability and damages is appropriate in this case is misplaced.

Accordingly, we reverse the Order Granting Motion for New Trial, or, In the Alternative, Remittitur and remand for further proceedings.

AFFIRMED in part; REVERSED in part; and REMANDED.

WEBSTER and DAVIS, JJ., concur.


author: PER CURIAM.

text:
    Eloy FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1670.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Rehearing Denied May 18, 2006.
    Jason M. Wandner, for appellant.
    Charles J. Crist, Jr., Attorney General and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Marshall v. Crosby, 911 So.2d 1129, 1133 (Fla.2005); McCoy v. State, 853 So.2d 396 (Fla.2003); State v. Butler, 655 So.2d 1123 (Fla.1995); Golphin v. State, 838 So.2d 705, 707 (Fla. 5th DCA 2003).


author: WARNER, J.

text:
    STATE of Florida, Petitioner, v. Robert Lee SMILEY, Jr., Respondent.
    No. 4D06-479.
    District Court of Appeal of Florida, Fourth District.
    April 12, 2006.
    Rehearing Denied June 1, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, West Palm Beach, for respondent.
   WARNER, J.

The Legislature enacted section 776.013, Florida Statutes, effective October 1, 2005, to provide for an expanded right of self-defense for individuals. It eliminates the duty to retreat found under Florida common law. Thereafter, in preparation for the first degree murder trial of respondent, Robert Smiley, the court granted his motion for special jury instructions incorporating these statutory changes in the law of self-defense, even though Smiley’s offense pre-dated the effective date of the statute. The state petitions for writ of certiorari, contending that the court departed from the essential requirements of law in that the act’s provisions cannot be applied retroactively. We agree with the state that section 776.013 cannot be applied to crimes committed prior to its effective date.

Robert Smiley was charged with first degree premeditated murder occurring on November 6, 2004. What little appears in the record before us is that Smiley shot the victim who was an occupant of Smiley’s cab. Smiley appears to be making a claim of self-defense. Just before trial, Smiley filed a motion to permit the use of two special jury instructions based upon the newly enacted section 776.013. Those proposed instructions are:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he reasonable [sic] believes it is necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.
A person who unlawfully and by force enters or attempts to enter a person’s occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

The state objected, contending that section 776.013, being a substantive change in the law, should not be applied retroactively to incidents occurring prior to its passage. The trial court concluded, however, that the statute was remedial and should have retroactive application. It therefore granted Smiley’s request.

The state filed this petition for writ of certiorari seeking to quash the order of the trial court permitting the jury instructions. We conclude that we have jurisdiction, as the order permitting this expanded self-defense instruction is highly prejudicial to the state’s presentation of its case and would evade review should Smiley be acquitted at a trial where this instruction is given. See State v. Pettis, 520 So.2d 250 (Fla.1988); State v. James, 867 So.2d 414 (Fla. 3d DCA 2003) (granting certiorari review and quashing order of trial court allowing social guest to use “castle doctrine” self-defense instruction at trial).

Although statutory law allowed a person to use deadly force when necessary to prevent imminent harm to him or herself or to another person, or to prevent the imminent commission of a forcible felony, see section 776.012, Florida common law required a duty to retreat “to the wall” in most cases. See Weiand v. State, 732 So.2d 1044, 1049 (Fla.1999); Pell v. State, 97 Fla. 650, 122 So. 110 (1929). The notable exception to the duty to retreat was the castle doctrine, which did not require a person to retreat when attacked in his or her home. See Weiand. There were exceptions to the castle doctrine. It did not apply to visitors or guests who were attacked by a third person in the home. See State v. James, 867 So.2d 414 (Fla. 3d DCA 2003). Until the court in Weiand receded from State v. Bobbitt, 415 So.2d 724 (Fla.1982), the exception did not protect a co-occupant of a home against an attack by the other co-occupant. In We-iand, the court noted that a majority of jurisdictions did not require the duty to retreat before a person threatened with death or with great bodily harm could use deadly force. Id. at 1049 n. 4. Thus, prior to the legislative enactment, a person was required to “retreat to the wall” before exercising his or her right of self-defense by using deadly force when faced with an attack posing the danger of death or great bodily harm or a forcible felony, except when attacked in his or her own home. Even in the home, the right to use deadly force was not without its limitations.

The Legislature passed Chapter 2005-27 as, “An act relating to the protection of persons and property” to provide for an expanded right of self-defense under Florida law. Its provisions permit a person to use deadly force when a person is attacked in his or her home, as a guest in a home or temporary lodging, or when occupying a motor vehicle, in situations where an intruder is unlawfully and forcibly entering or has entered the residence or vehicle. It abolished the common law duty to retreat when a person uses deadly force in self-defense, if that force is reasonably necessary to prevent imminent great bodily harm or death. It created presumptions to assure that no person would be criminally or civilly liable for the use of such force in compliance with the statutory terms. The Legislature provided for a specific effective date: “Section 5. This act shall take effect October 1, 2005.”

In determining whether this statute may be retroactively applied to a crime committed prior to its effective date, we simply follow well-established principles which were recently summarized in Metropolitan Dade County v. Chase Federal Housing Corp., 737 So.2d 494 (Fla.1999):

Two interrelated inquiries arise when determining whether statutes should be retroactively applied. The first inquiry is one of statutory construction: whether there is clear evidence of legislative intent to apply the statute retrospectively. If the legislation clearly expresses an intent that it apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible.
At the outset, it should be noted that: “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment.... Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” The general rule is that in the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively. Thus, if a statute attaches new legal consequences to events completed before its enactment, the courts will not apply the statute to pending cases, absent clear legislative intent favoring retroactive application.

Id. at 499 (citations omitted). Here, it is clear that the statute attaches new legal consequences to events completed before the enactment of section 776.013 and amendment to section 776.012. Because the incident in question occurred in Smiley’s vehicle, Smiley would have had a duty to retreat prior to the use of deadly force against the victim. After the enactment of the new law, Smiley would have had no duty to retreat. This change would substantially affect the legal consequences attached to Smiley’s conduct.

The legislation provides an effective date of October 1, 2005. Nothing in the legislation indicates an intent to apply the abrogation of the common law retroactively. Indeed, if it did it would run afoul of article X, section 9 of the Florida Constitution, which provides:

Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.

In Raines v. State, 42 Fla. 141, 28 So. 57, 58 (1900), the court explained:

The effect of this constitutional provision is to give to all criminal legislation a prospective effectiveness; that is to say, the repeal or amendment, by subsequent legislation, of a pre-existing criminal statute does not become effective, either as a repeal or as an amendment of such pre-existing statute, in so far as offenses are concerned that have been already committed prior to the taking effect of such repealing or amending law.

See also Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002). Although procedural changes in criminal law may escape the reach of article X, section 9, see Lee v. State, 128 Fla. 319, 174 So. 589 (1937), a substantive change in a statute may be applied only prospectively. Here, the legislative enactment made a substantive change in section 776.012, eliminating any duty to retreat under certain enumerated circumstances, which include the circumstances in this case. Thus, it would violate the constitutional provision to apply it retrospectively. See, e.g., Norman v. State, 826 So.2d 440 (holding that a change of an element of an offense could not be applied retroactively to a crime committed prior to the statute’s enactment).

Smiley argues that the statute is remedial, because it provides for a greater right of self-defense. However, remedial statutes are those governing procedures which do not create new rights or impair vested rights, but instead operate in furtherance of the remedy or confirmation of rights already existing. City of Lakeland v. Catinella, 129 So.2d 133 (Fla.1961); Cunningham v. State Plant Bd. of Fla., 112 So.2d 905 (Fla. 2nd DCA 1959). Because on the facts of this case a person did not have a right of self-defense without the duty to retreat under the common law, the statute created a new right not existing before the statute’s passage. Thus, it is not remedial in the sense that it may be applied retroactively to events occurring prior to its enactment.

For these reasons, we grant the petition and quash the order of the trial court. Smiley is not entitled to jury instructions based upon the expanded right of self-defense contained in sections 776.012 and 776.013.

FARMER and KLEIN, JJ., concur.


author: SHAHOOD, J.

text:
    Cynthia SCHWARTZ, Appellant, v. STATE of Florida, Michael J. Satz, State Attorney of the Seventeenth Judicial Circuit, Appellee.
    No. 4D05-3305.
    District Court of Appeal of Florida, Fourth District.
    April 12, 2006.
    Rehearing Denied May 24, 2006.

      Kenneth E. Cohen and Stewart Valencia of Holman, Cohen & Valencia, Hollywood, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David J. Glantz, Assistant Attorney General, Fort Lauderdale, for appellee.
   SHAHOOD, J.

Appellant, Cynthia Schwartz, was charged criminally with trafficking in cocaine. As part of a substantial assistance plan, appellant entered into a Polygraph Agreement and Stipulation with the state, wherein she agreed to submit to a polygraph test. She also agreed that the test and anything pertaining to the test “shall be received in evidence either on behalf of the State of Florida or on [her] behalf in the [criminal action against her] or any retrial of same.” She waived her constitutional privilege against self-incrimination as it pertained to the results of the test and stipulated that “the focus of the examination in this case is whether or not” she was truthful in her sworn statement to the assistant state attorney concerning the cocaine.

Appellant submitted to the test and did not pass. In anticipation of the results being used against her, she thereafter filed a civil suit against the state asserting that the agreement was unenforceable and sought to permanently enjoin the state from using the test results against her in the criminal action. She also filed a Motion for Entry of Temporary Injunction, which the trial court dismissed.

Any attempt by the trial court, sitting as a court of equity, to preempt the criminal court’s rulings or to otherwise control the proceedings in a criminal court by the issuance of an injunction would have been inappropriate'. It is for the judge in the criminal court to consider appellant’s arguments at the appropriate time and decide whether to invalidate the agreement. See generally Metellus v. State, 817 So.2d 1009, 1014 (Fla. 5th DCA 2002) (holding that a defendant will not be relieved of an obligation that was included as a specific component of a plea agreement that was bargained for and voluntarily entered into by defendant); see also Garcia v. State, 722 So.2d 905 (Fla. 3d DCA 1998) (holding that a party may waive any right to which he is entitled and agreements ■ containing such waivers will not be invalidated if the obligation was a specific component of a plea agreement that was bargained for and voluntarily entered into by the defendant).

Affirmed.

POLEN and KLEIN, JJ., concur.


author: MAY, J.

text:
    Vincent P. IANNAZZO and Edward Schweizer, Appellants, v. Milton E. STANSON, Appellee.
    No. 4D05-1996.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    Rehearing Denied May 26, 2006.
    Steven H. Meyer, Boca Raton, for appellants.
    Seth V. Alhadeff, Lawrence D. Ross and J. Michael Riordan of Bressler, Amery & Ross, Miramar, for appellee.
   MAY, J.

The effect of a valid lis pendens resolves the myriad of issues raised in this appeal. The defendants Iannazzo and Schweizer appeal an order enforcing orders and judgments entered by a New York trial court. They argue the Florida trial court erred in enforcing these orders and judgments because the New York court had neither personal jurisdiction over Schweizer nor in rem jurisdiction over the Florida real estate involved. They raise numerous other issues including whether the Florida court ordered relief beyond that requested. We affirm in all respects except to the extent the trial court enjoined Schweizer from the transfer of assets unrelated to the New York orders and judgments. We reverse and remand the case to the trial court to correct a scrivener’s error and to limit the injunction against Schweizer in accordance with this opinion.

The plaintiff Stanson and the defendant Iannazzo were business partners. Iannaz-zo originally sued the plaintiff in New York seeking to enforce a settlement agreement regarding their business partnerships. The plaintiff counterclaimed for dissolution of their various business partnerships and sought money damages for fraud, breach of fiduciary duty, and unjust enrichment. Part of the dispute involved Iannazzo’s acquisition of real estate in Fort Lauderdale, Florida.

The New York trial court issued extensive findings of fact and an order on November 24, 2003. With respect to the Fort Lauderdale property, the New York court found Iannazzo had purchased the home with partnership funds even though he titled the house in his name alone. The court concluded the Fort Lauderdale property and any proceeds from its sale were partnership assets and were to be treated as such for purposes of an accounting.

The New York court ordered the escrow of certain funds including the proceeds from the sale of the Fort Lauderdale property, determined the plaintiff was entitled to half these funds, and entered a judgment for $927,493. The court ordered Iannazzo to refrain from transferring any assets other than those necessary for ordinary living expenses. Meanwhile, Iannaz-zo used the proceeds from the sale of the Fort Lauderdale property to purchase another home in Boca Raton.

While the New York trial was pending, the plaintiff filed a notice of lis pendens in Palm Beach County, dated October 20, 2003, advising the Boca Raton property was subject to the New York lawsuit. On February 2, 2004, Iannazzo executed a warranty deed conveying the Boca Raton property to Schweizer. On August 10, 2004, the plaintiff recorded the New York money judgment for $927,493 with the clerk of court for Palm Beach County, Florida.

The plaintiff filed the complaint in this case on October 5, 2004, naming Iannazzo and Schweizer as defendants. He sought a constructive trust and equitable lien on the Boca Raton property and an injunction to prevent Iannazzo and Schweizer from transferring or encumbering the Boca Ra-ton property.

The New York court entered two additional orders on February 7, 2005. One order confirmed a special referee’s report in which the referee concluded “the monies used to purchase the Boca Raton property are clearly traceable to the proceeds obtained from the sale of the Fort Lauder-dale property.” The other order appointed a receiver.

In the order confirming the special referee’s report, the New York court concluded “the conduct of Iannazzo in conveying the Boca Raton Property on February 2, 2004 to Schweizer was in clear violation of an order issued by a Justice of this Court.” It then declared “the conveyance of the Boca Raton Property ... from Iannazzo to Schweizer is [] null and void ab initio.” The New York court ordered Iannazzo to provide a deed conveying his right to the Boca Raton property to the receiver.

On March 18, 2005, the plaintiff filed a motion in Florida to enforce the New York orders and judgments. The Florida court determined the New York money judgments of December 22, 2008 and December 15, 2004, and the orders of February 7, 2005, should be enforced in the same manner as a judgment of a court of Florida. Pursuant to the New York order of February 7, 2005, the trial court declared the conveyance of the Boca Raton property from Iannazzo to Schweizer void ab initio. The court “acknowledge^” the New York receiver and ordered Iannazzo to immediately transfer his interest in the property to the receiver. The Florida court enjoined both Iannazzo and Schweizer from interfering with the receiver’s possession of the property and from transferring any assets except those necessary for ordinary living expenses.

Iannazzo and Schweizer raise several issues concerning jurisdiction. They suggest the trial court had no personal jurisdiction over Schweizer and no in rem jurisdiction over the Florida property. While both arguments appear to have independent merit, they are irrelevant to the disposition of this case because the valid lis pendens dictates the result.

“Notices of lis pendens are recorded for two purposes: to protect future purchasers or encumbrancers of the property from becoming ‘embroiled’ in the dispute, and to protect the plaintiff from ‘intervening liens that could impair any property rights claimed and also from possible extinguishment of the plaintiffs unrecorded equitable lien.’ ” Fischer v. Fischer, 878 So.2d 534, 536 (Fla. 4th DCA 2004) (quoting Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla.1993)). The notice provided by a lis pendens “is as efficient against a valid transfer or incumbrance of the property described in it as an injunction would be, and that such a notice binds all parties to the action together with all purchasers from them and all parties under them subsequently to the filing of the same.” Seligman v. N. Am. Mortgage Co., 781 So.2d 1159, 1162 (Fla. 4th DCA 2001) (quoting Peninsular Naval Stores Co. v. Cox, 57 Fla. 505, 49 So. 191 (1909) (citation omitted)). One who purchases property subject to a Us pendens “is bound by the judgment or decree rendered against the party from whom he makes the purchases as much so as though he had been a party to the judgment or decree himself.” Greenwald v. Graham, 100 Fla. 818, 130 So. 608, 611 (1930).

Here, the plaintiff recorded the lis pendens in the proper location, named the parties to the lawsuit, described the property affected, and identified the relief requested. For those reasons, the New York court did not need to exercise personal jurisdiction over Schweizer to declare the transfer to him void. Schweizer took the Boca Raton property in the face of the lis pendens. He is therefore bound by the New York judgments and orders as much so as though he had been a party to them himself. Greenwald, 130 So. at 611.

An out-of-state court may render a judgment affecting property located in Florida so long as the out-of-state court has jurisdiction over the parties to the lawsuit. See Gardiner v. Gardiner, 705 So.2d 1018, 1020 (Fla. 5th DCA 1998); Dusesoi v. Dusesoi, 498 So.2d 1348, 1350 (Fla. 2d DCA 1986). While the New York court did not have in rem jurisdiction over the Boca Raton property, it did have personal jurisdiction over Iannazzo, and Schweizer took the property in the face of a lis pendens. He is therefore bound by the outcome of the New York lawsuit. Greenwald, 130 So. at 611.

Schweizer argues the trial court erred by entering an order that went beyond the New York trial court’s orders and judgments. Specifically, he argues the trial court’s order froze all of his assets. The Florida court ordered both Iannazzo and Schweizer to transfer the Boca Raton property to the receiver and enjoined them from transferring or further encumbering the property. To this extent the order conformed to the relief requested. However, the Florida court also enjoined both Iannazzo and Schweizer from “transferring or conveying any assets except those necessary for ordinary living expenses.” Schweizer’s only connection to this lawsuit was the Boca Raton property. The court erred in enjoining Schweizer from the transfer of any of his assets that were unrelated to this property.

We reverse and remand the case to the trial court to correct the noted scrivener’s error and to limit the injunction accordingly-

Affirmed.

GROSS, J., and IMPERATO, CYNTHIA G., Associate Judge concur.

      . In its order, the Florida court referred to the Uniform Out-of-country Foreign Money-Judgment Recognition Act ("The Recognition Act”). See §§ 55.601-.607, Fla. Stat. (2005). The Recognition Act applies to judgments by a foreign state, meaning any governmental unit other than the United States or a state therein. § 55.602, Fla. Stat. (2005). The proper statute, however, is .the Florida Enforcement of Foreign Judgments Act ("FEF-JA”), sections 55.501-.509, Florida Statutes (2005). However, the requirements for The Recognition Act are the same as the requirements of FEFJA. Thus, compliance with one necessarily satisfies the other. On remand, however, the Florida court should correct the order to reflect the proper statute.


text:
    Robert LEVEILLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2990.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    Rehearing Denied May 26, 2006.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant appeals his convictions of two counts of child abuse and three counts of committing unnatural and lascivious acts. He claims that the court erred in assessing 120 sexual contact points on his criminal punishment scoresheet, because he was acquitted of the greater charge involving sexual contact. We agree and reverse.

Robert Leveille was charged with multiple counts of child abuse and lewd or lascivious battery for contact with a thirteen-year-old child. In particular, counts I, III, VI, and VII charged Leveille with lewd or lascivious battery under section 800.04, Florida Statutes. The jury instructions for counts I and VI provided that the elements that the state had to prove for this crime were: 1) P.B. was between the ages of twelve and sixteen; and 2) “Lev-eille engaged in sexual activity with [P.B.] in which the vagina of [P.B.] was penetrated by an object.” The instructions for counts III and VII provided that the elements for these counts were: 1) P.B. was between the ages of twelve and sixteen; and 2) “Leveille engaged in sexual activity with [P.B.] in which the sexual organ of the defendant penetrated, or had union with the vagina of [P.B.].”

The trial court instructed the jury on the lesser included offense of committing an unnatural and lascivious act with another person, a misdemeanor, pursuant to section 800.02, Florida Statutes. The jury instructions for this offense provided that the elements were:

(1) Robert Leveille engaged in sexual activity with B.B.
(2) The act was unnatural and lascivious.
“Unnatural” means not in accordance with nature or with normal feelings or behavior.
“Lascivious” means lustful, normally tending to excite a desire for sexual satisfaction.

The jury convicted Leveille of this lesser included crime in counts I, III, and VII, and found him not guilty on count VI.

Despite the fact that the jury did not find Leveille guilty of a violation of section 800.04, the trial court assessed “sexual contact” points, because it found that the charged offense included sexual contact. This was error. Section 921.0021(7), Florida Statutes, provides:

(7)(a) “Victim injury” means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for ivhich an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.
(b) Except as provided in paragraph (c) or paragraph (d), ...
2. If the conviction is for an offense involving sexual contact that does not include sexual penetration, the sexual contact must be scored in accordance with the sentence points provided under s. 921.0024 for sexual contact, regardless of whether there is evidence of any physical injury.

(Emphasis supplied). Section 921.0024, Florida Statutes, provides that forty points are to be assessed for victim injury for sexual contact with no penetration. These were the points that the court assessed on Leveille’s scoresheet.

Florida Rule of Criminal Procedure 3.704(d)(9) states, in pertinent part: “victim injury must not be scored for an offense for which the offender has not been convicted.” Despite this prohibition, the trial court determined that the crime charged included a definition of sexual activity which included penetration or contact. See § 800.04(l)(a), Fla. Stat. Nevertheless, the crime of which Leveille was convicted did not require sexual contact, and the jury was never asked to determine factually whether sexual contact occurred. Thus, the jury’s verdict did not constitute a factual determination necessary to support the imposition of additional points for the crimes of which Leveille was convicted. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (holding that the Sixth Amendment prohibits imposition of sentence above the maximum sentence where facts supporting finding for exceptional sentence are neither admitted by the defendant nor found by a jury); see also Behl v. State, 898 So.2d 217 (Fla. 2d DCA 2005).

For these reasons, we reverse the sentence and remand for imposition of a sentence on a corrected scoresheet eliminating the 120 points assessed for sexual contact. We affirm without comment the challenge to appellant’s convictions.

KLEIN and HAZOURI, JJ., concur.


text:
    Beatriz OTANO, Appellant, v. STAR CASUALTY INSURANCE COMPANY, Appellee.
    No. 3D05-2562.
    District Court of Appeal of Florida, Third District.
    April 19, 2006.
    Freud & Schwartz and Michael J. Schwartz, for appellant.
    Mark A. Gatica, for appellee.
    Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
   On Motion For Rehearing and/Or Clarification

PER CURIAM.

We grant the petitioner’s motion for rehearing. The petition for writ of certiorari is denied on the authority of Progressive Express Insurance Co. v. Miami Dade Health & Rehab Services, 922 So.2d 221 (Fla. 3d DCA 2005), and Brass & Singer, P.A. v. United Automobile Insurance Co., 919 So.2d 473 (Fla. 3d DCA 2005). However, as in these cases, we certify conflict with Gedeon v. State Farm Mut. Auto. Ins. Co., 805 So.2d 119 (Fla. 4th DCA 2002).

Rehearing granted; certiorari denied; conflict certified.


author: WALLACE, Judge.

text:
    STATE of Florida, Appellant, v. Don C. VANDERHORS, Appellee.
    No. 2D05-1494.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellee.
   WALLACE, Judge.

The State challenges an order suppressing evidence obtained by the police during the execution of a search warrant. The trial court ruled that the affidavit filed in support of the search warrant was fatally defective because it failed to demonstrate probable cause. After careful consideration of the affidavit, we reverse the suppression order.

On May 20, 2004, Officer Gary Garboski and Officer Selser Pickett of the Tampa Police Department filed an affidavit in support of a requested search warrant. To establish a probable cause basis for the issuance of the warrant, the officers stated the following facts:

5. Between the week of May 9th and the 13th day of May 2004 Affiant’s [sic] met with a Tampa Police Department confidential informant, hereafter referred [to] as Cl, who stated that an unknown black male was keeping and selling crack cocaine from within 1918 West Palmetto Street. Cl is a drug user and has purchased crack cocaine from within this residence in the past. Cl has been working with affiant’s [sic] and has given credible and verified information in the past leading to several successful search warrants where felony arrests were affected and over twenty (20) grams of crack cocaine and money were recovered.
6. To further verify the information given by Cl your affiant’s [sic] caused the Cl to be searched finding no money or illegal controlled substances. The Cl was supplied with a predetermined amount of TPD investigative funds. Af-fiant Garboski went with Cl to 1918 W[.] Palmetto St[.] and watched Cl purchase crack cocaine from an unknown black male at this residence. The substance was given to affiant and field tested positive as crack cocaine. The substance was placed into the TPD property section.
7. For a period of two days your affiant’s [sic] conducted visual surveillance at [1918] West Palmetto Street and observed numerous drug transactions from this residence. This location has also been the target of several citizen complaints reference [sic] narcotic related activity along with a formal complaint that came in through the Tampa Police Department QUAD Hotline. Af-fiant’s [sic] were contacted by Officer Chad Hughes of the Tampa Police Department QUAD squad who had also conducted a controlled purchase of crack cocaine from this residence.

Based on the affidavit, the magistrate issued the warrant on May 20, 2004. The officers executed the warrant the same day. The search resulted in the discovery of cocaine and drug paraphernalia.

In its order granting Vanderhors’ motion to suppress the drug evidence, the trial court concluded that the affidavit failed to demonstrate probable cause because it did not indicate when the confidential informant (Cl) observed the contraband or provide the dates when the controlled buys and surveillance occurred. In reaching this conclusion, the trial court relied on this court’s decisions in Getreu v. State, 578 So.2d 412 (Fla. 2d DCA 1991); Rand v. State, 484 So.2d 1367 (Fla. 2d DCA 1986); and King v. State, 410 So.2d 586 (Fla. 2d DCA 1982).

A search warrant must be based on probable cause supported by an affidavit. Art. I, § 12, Fla. Const. To establish probable cause, the affidavit must set forth two elements: (1) the commission element — that a particular person has committed a crime — and (2) the nexus element — that evidence relevant to the probable criminality is likely to be located at the place searched. Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003). In considering , the sufficiency of the affidavit to demonstrate probable cause, the magistrate must examine the totality of the circumstances. The United States Supreme Court has defined the task of the magistrate as follows:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). On a motion to suppress the fruits of a search in accordance with a warrant, a trial court examines whether the issuing magistrate had a substantial basis for concluding that probable cause existed, and this determination is made by examining the affidavit in its entirety. Garcia v. State, 872 So.2d 326, 329 (Fla. 2d DCA 2004). The trial court should not disturb the issuing magistrate’s determination absent a clear demonstration of an abuse of discretion. State v. Gonzalez, 884 So.2d 330, 333 (Fla. 2d DCA 2004). On "appeal, the trial court’s determination of the legal issue of probable cause is subject to de novo review. Pagan v. State, 830 So.2d 792, 806 (Fla.2002).

The issue before this court is whether the factual allegations in the affidavit were sufficient for the issuing magistrate to find a fair probability that contraband would be found at the residence. The trial court found two fatal omissions in the affidavit: (1) paragraph 5 did not include the date on which the Cl observed contraband in the residence and (2) paragraphs 6 and 7 did not indicate when the controlled buys occurred. In our review of the trial court’s findings, we will first address the omission from paragraph 5 of the date when the Cl observed the illegal activity.

In the cases relied on by the trial court, this court addressed the issue of an affidavit’s lack of a factual basis to show when an informant observed the alleged illegal activity at the dwelling in question. In Getreu, the affidavit alleged that “[d]uring the week of December 6, 1987, confidential informant 87-26 ... did contact your affiant and advised your affiant that a white male known by the confidential informant only as David ... is in possession of approximately eighty-four (84) grams of cocaine, as personally observed by the confidential informant.” 578 So.2d at 413. Although the affidavit pinpointed the date on which the informant spoke to the affi-ant, it did not indicate when the informant saw David in possession of cocaine. Id. at 414. This court held that because the affidavit failed to show when the informant observed David in possession of cocaine, it fell short of the constitutional requirements for determining the existence of probable cause. Id. at 413; see also Rand, 484 So.2d 1367 (holding that an affidavit containing no allegation of when the informants observed the marijuana on appellant’s premises was insufficient); King, 410 So.2d 586 (holding that an affidavit supporting a search warrant must contain the specific time when the informant observed illegal activity).

Although the affidavit in this case states that the affiant met with the Cl “[b]etween the week of May 9th and the 13th,” nothing in paragraph 5 indicates when the Cl saw the contraband within Vanderhors’ residence. Based on the teaching of Ge-treu, Rand, and King, we conclude that the trial court correctly found that the allegations in paragraph 5 did not provide a factual basis for the issuing magistrate to find probable cause. Because we agree with the trial court’s analysis on this point, our focus turns to whether the factual allegations in paragraphs 6 and 7 were sufficient for the issuing magistrate to find a fair probability that contraband would be found in the residence.

In paragraph 6, the officers recounted the events of a controlled buy supervised by Officer Garboski. In paragraph 7, the officers stated that they were contacted by Officer Chad Hughes who had also conducted a controlled purchase of crack cocaine from the residence. On this point, the State argues that the dates of the controlled buys were not essential because one of the buys had to have been made within eleven days before the issuance of the warrant.

To establish the nexus element— that evidence relevant to the probable criminality is likely to be located at the place searched — an affidavit for a search warrant must state the specific time when the illegal activity that forms the basis for probable cause was observed. State v. Jenkins, 910 So.2d 934, 937 (Fla. 2d DCA 2005). The date of the observation is important to the probable cause determination for this reason:

“The length of time between the events relied upon to obtain a search warrant and the date of issuance bears upon probable cause. Generally, as the time period increases there is less likelihood that the items sought to be seized will be found on the premises described in the warrant.”

Haworth v. State, 637 So.2d 267, 267 (Fla. 2d DCA 1994) (citation omitted) (quoting Smith v. State, 438 So.2d 896, 897-98 (Fla. 2d DCA 1983)).

Recently, this court found in Jenkins that an affidavit established that the evidence was still likely to be located at the place to be searched despite the omission from the affidavit of an express statement concerning when the informant found the evidence. 910 So.2d at 938. On May 15, 2002, Jenkins videotaped himself fondling a minor’s breasts. Id. at 936. On May 16, the minor reported Jenkins to the police, Jenkins’ employer notified police that she found a video of Jenkins with the minor on Jenkins’ computer, and the detective submitted the warrant application. Id. at 935-36. Although the affidavit did not indicate when Jenkins’ employer found the video, the fact that the affidavit was filed within one day of the illegal activity made it likely that the video was still on the premises. Id. at 938. This court concluded that the affidavit was sufficient to establish probable cause to issue a warrant for the search of Jenkins’ computer. Id.

The timeline of events in this case is not as straightforward as the timeline in Jenkins. Paragraph 5 establishes that the officers met with the Cl between May 9 and May 13, 2004. Paragraph 6 relates that “[t]o further verify the information given by CP’ the officers performed a controlled buy. Paragraph 7 states that the officers conducted surveillance of the residence for a period of two days and that Officer Hughes had conducted his own controlled buy. The affidavit was filed on May 20, 2004.

The facts alleged in paragraph 7 are insufficient alone to establish that it was likely that the contraband would be found at the residence. Without a reference to a date or time period, the officers’ surveillance and Officer Hughes’ controlled buy could have occurred at any time. Nevertheless, after applying the totality of the circumstances test established by the Supreme Court in Gates, 462 U.S. at 238, 103 S.Ct. 2317, the language in paragraph 6 renders the affidavit sufficient. It is logical to conclude that the “[t]o further verify the information given by Cl” language relates directly to the information provided by the Cl to the officers between May 9 and 13. Reading paragraphs 5 and 6 together, the controlled buy cannot have occurred any earlier than May 9, eleven days before the filing of the affidavit and warrant application. Consistent with Florida Supreme Court precedent, a controlled buy occurring within this time period provides sufficient probable cause to issue a search warrant. See State v. Gieseke, 328 So.2d 16 (Fla.1976) (holding that a controlled buy conducted within ten days of the warrant application alone is a sufficient factual basis from which a magistrate could conclude that contraband remains on the premises). Therefore, given the circumstances described in the affidavit, the issuing magistrate could have concluded that there was a fair probability that contraband would have been found at the searched residence. In reaching this conclusion, we adhere to the principle that the resolution of marginal cases should be largely determined by the strong preference for searches conducted pursuant to a warrant. See Gates, 462 U.S. at 237 n. 10, 103 S.Ct. 2317; Doorbal v. State, 837 So.2d 940, 952 (Fla.2003); State v. Stevenson, 707 So.2d 902, 903 (Fla. 2d DCA 1998).

Because the totality of the circumstances indicates that the affidavit presented the issuing magistrate with probable cause to conclude that contraband would be found at the residence, there was no Fourth Amendment violation and the search warrant was valid. Accordingly, we reverse the trial court’s order granting Vanderhors’ motion to suppress the evidence seized, and we remand for further proceedings.

Reversed and remanded.

DAVIS and SILBERMAN, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Katarina LOIDL, Appellant, v. I & E GROUP, INC., a Florida corporation; and Harald W.J. Loidl, Appellees.
    No. 2D05-3984.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.
    Rehearing Denied April 19, 2006.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers; and Sonja K. Burkard of Burkard Law Firm, P.A., Fort Myers, for Appellant.
    Scott A. Beatty of Henderson, Franklin, Starnes <& Holt, P.A., Fort Myers, for Ap-pellee I & E Group, Inc.
    No appearance for Appellee Harald W.J. Loidl.
   ALTENBERND, Judge.

Katarina Loidl appeals a nonfinal order discharging twenty-seven notices of lis pendens she filed against her husband’s business, I & E Group, Inc. (I & E). She filed these notices while her dissolution of marriage proceeding was pending because she believed her husband, who is the chief executive officer of I & E, had mixed personal and business assets in the company. The trial court discharged the notices primarily because I & E was not a party to the dissolution proceeding. We treat this appeal as a petition for writ of certiorari and deny the same.

I. BACKGROUND

In October 2003, Mrs. Loidl filed a petition for dissolution of her six-year marriage. Mr. Loidl is the CEO and half-owner of I & E. Apparently, Mrs. Loidl became concerned by some unusual transactions involving I & E after the trial court entered a standard- order prohibiting either party from disposing of any asset, marital or nonmarital. She believed that Mr. Loidl was directly or indirectly disposing of marital assets via these transactions.

In June 2005, Mrs. Loidl filed and recorded twenty-seven notices of lis pendens against various real estate properties owned by I & E. I & E immediately filéd an emergency motion to dissolve the notices because it was not a named party to the dissolution of marriage proceeding. Mrs. Loidl then filed a motion to amend her complaint to include I & E. After a hearing on I & E’s motion to dissolve the notices of lis pendens, the trial’ court granted the motion to dissolve and entered an order discharging all twenty-seven notices of lis pendens. It does not appear that the trial court entered an order on Mrs. Loidl’s motion to amend.

II. CERTIORARI REVIEW

There is some debate regarding the method by which an appellate court reviews an order discharging a lis pendens. This court has held that certiorari is the only proper method of review. See James v. Wolfe, 512 So.2d 954 (Fla. 2d DCA 1987); see also Stinnett v. Dodson, 575 So.2d 1350 (Fla. 2d DCA 1991). The First, Fourth, and Fifth District Courts of Appeal have come to the same conclusion. See Hough v. Bailey, 421 So.2d 708 (Fla. 1st DCA 1982); Eurohome DI Soleil, LLC v. Oaks Group, Inc., 912 So.2d 1271 (Fla. 4th DCA 2005); Baghaffar v. Story, 515 So.2d 1373 (Fla. 5th DCA 1987). The Third District, however, has held that such orders are more appropriately reviewed by interlocutory appeal as they are akin to orders on injunctions. See Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988); see also Fla. R.App. P. 9.130(a)(3)(B).

The Third District apparently based its decision on the language in section 48.23(3), Florida Statutes (1987), which states, ‘When the initial pleading does not show that the action is founded on a duly recorded instrument or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and. dissolve injunctions.”

Although the legislature created section 48.23(3) to allow a .trial court to control and discharge a lis pendens as it would grant and dissolve an injunction, the supreme court establishes the jurisdiction of this court over interlocutory orders. See art. V, § 4(b), Fla. Const. Because a lis pendens serves an entirely different function than an injunction and is created without judicial action, we hold. that for purposes of our jurisdiction it would be improper to classify an order on a motion to dissolve a lis pendens as if it were a nonfinal order concerning an injunction.

Unlike an injunction, which is a judicial order mandating or prohibiting a certain action, a notice of lis pendens is merely a notice by a party of pending litigation. The party’s notice does not prohibit alienation of property. The creation of this notice requires no judicial action. The notice is only a cloud on the title that creates a priority for the party that filed the lis pendens if that party prevails in the pending litigation. See Ross v. Breder, 528 So.2d 64 (Fla. 3d DCA 1988); see also David M. Gersten, The Doctrine of Lis Pendens: The Need for a Balance, 59 Fla. B.J. 83 (1995). Thus, if a lis pendens is not the equivalent of an injunction, then an order dissolving a notice of lis pendens cannot be considered to be an order dissolving an injunction.

Additionally, the order itself dissolving a notice of lis pendens is not “injunctive” relief. See Cooper Village, Inc. v. Moretti, 383 So.2d 705 (Fla. 4th DCA 1980). Although such an order may dissolve a party’s notice of pending litigation, it is not an order which directs or precludes the party from taking a certain action outside of the lawsuit. Therefore, it is not properly appealed under rule 9.130(a)(3)(B).

III. A MOTION TO DISSOLVE A NOTICE OF LIS PENDENS DOES NOT SUBJECT THE MOVANT TO THE GENERAL JURISDICTION OF THE TRIAL COURT

The trial court’s final order discharging the notices of lis pendens does not state the reasons for doing so. However, I & E had argued both in its motion to dissolve the notices of lis pendens and at the hearing on the motion that the notices could not be filed against it because it was not a formal party to the action. Where the property owner is not named as a party to the action in the complaint, any lis pendens filed against it is without legal basis and must be dissolved. See Marbin v. Cohen, 789 So.2d 1193 (Fla. 4th DCA 2001) (holding that lis pendens should be discharged against property owner that was not joined in the action below); HOPO Corp. v. Keller, 798 So.2d 889 (Fla. 4th DCA 2001) (quashing trial court’s order denying the motion to dissolve the lis pen-dens filed against HOPO because HOPO had not been joined as a party in the pending dissolution of marriage action); M.G. Marine Supply Corp. v. Foreign Trade, Inc., 537 So.2d 696 (Fla. 3d DCA 1989) (holding lis pendens was fatally defective where burdened property owner was not named in the complaint).

I & E was not a party to the pending dissolution of marriage. It had never been named or joined in that action. Mrs. Loidl did make a motion to amend her complaint to include I & E, but this was filed four days after I & E had filed its motion to dissolve. Since I & E was never added as a party to the dissolution action, the notices of lis pendens filed against it were without legal basis. Therefore, the trial court properly discharged all twenty-seven notices.

Mrs. Loidl argues that I & E subjected itself to the jurisdiction of the trial court by filing a motion to dissolve the lis pen-dens without filing a simultaneous objection to the court’s jurisdiction over its person. She relies on Community Federal Savings & Loan Ass’n of the Palm Beaches v. Wright, 452 So.2d 638, 640 (Fla. 4th DCA 1984), to support her argument. Although the facts in Community Federal are somewhat different, we disagree with its ruling that a motion submitted by a nonparty for protection from activity generated by documents within the lawsuit somehow submits the nonparty to the general jurisdiction of the trial court as to the causes of action pending before that court.

In Community Federal, the Fourth District considered a defendant’s challenge to a default and a foreclosure judgment after the property had already been purchased at foreclosure sale by another person. The new owner appeared in the reopened foreclosure proceeding when the defendant filed a notice of lis pendens against the property that the new owner had purchased at the foreclosure sale. The Fourth District held that the new owner of the property became a party to the underlying action by filing a motion to set aside the notice of lis pendens without challenging the trial court’s personal jurisdiction over it. The Fourth District stated:

While it is true that it is no longer necessary to appear specially to contest the jurisdiction of the court in order to preserve the defense of lack of jurisdiction, it is also true that where some affirmative action is taken it must be coupled with an objection to the jurisdiction of the court over the person or such jurisdictional inadequacy is waived. Green v. Hood, 120 So.2d 223 (Fla. 2d DCA 1960); Fla. R. Civ. P. 1.140(h). Clearly, a motion to set aside a lis pen-dens subjects the movant to the jurisdiction of the court. Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966).

452 So.2d at 640. It is noteworthy that the new owner in Community Federal attended various hearings in the proceeding and may not have been directly affected by the order on appeal. The new owner was not a named party in the style of the appeal, was never identified by name in the opinion, and does not appear to have had counsel on appeal.

Community Federal relies on Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966), to support its holding, but important differences existed in Roth. In both the present appeal and in Community Federal, the party challenging the notice of lis pendens was not a named party in the action pending in the trial court. A different situation existed in Roth, where the party challenging the notice of lis pendens was a named defendant. A distinction should be drawn between these two situations.

When a named defendant files a pleading or initial motion without challenging jurisdiction over its person, it subjects itself to the court’s jurisdiction as it relates to the causes of action pending before the court. It must challenge personal jurisdiction at the outset or risk waiving that defense. See Fla. R. Civ. P. 1.140(h). If the defendant does not raise the issue of personal jurisdiction at the outset, it knows that the court will have the power to enter a judgment on the complaint against it at the conclusion of the lawsuit.

On the other hand, when a nonparty files a motion to protect itself from improper discovery under Florida Rule of Civil Procedure 1.280(c) or from an improper trial subpoena under rule 1.410, it should be obvious that the nonparty has no reason to believe that the court will proceed to enter judgment against it. Cf. Norville v. BellSouth Adver. & Publ’g Corp., 664 So.2d 16 (Fla. 3d DCA 1995) (holding entering judgment against non-party is fundamental error). Likewise, a property owner who has been subjected to an improper notice of lis pendens has received no summons or other judicial process and has not been served with a complaint. It has no reason to expect that it will be haled into court as a party or subjected to a judgment on an undisclosed cause of action when it objects to a cloud upon the title of its land. Such a property owner is not subjecting itself to the court’s general jurisdiction and is under no obligation to challenge personal jurisdiction when it seeks to dissolve a notice of lis pendens. We disagree with Community Federal to the extent that it relies on Roth to hold otherwise.

Although we deny Mrs. Loidl’s petition for writ of certiorari, our ruling does not prevent her from attempting to refile the notices of lis pendens if and when I & E becomes a proper party to the proceedings, or from filing some separate proceeding to protect her interests.

Petition for writ of certiorari is denied.

NORTHCUTT and VILLANTI, JJ., Concur.

      . This case does not involve an order requiring the posting of a bond to maintain a lis pendens. See Panamericano of S.D., Inc. v. Suncoast Bay Dev., Inc., 829 So.2d 1006 (Fla. 2d DCA 2002). Thus, we are not called upon to determine whether that situation requires any different method of review.

      . We distinguish this case from Archer v. Archer, 692 So.2d 1009 (Fla. 4th DCA 1997), where although a lis pendens was filed against a' warehouse held in the name of a corporation, the trial court found that the warehouse was marital property. The corporation did not attempt to intervene in the trial court and did not participate in the appeal. It is unclear from the opinion what result the Fourth District would have reached if the corporation had appeared and objected.


text:
    Milton E. TORRES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5488.
    District Court of Appeal of Florida, First District.
    April 25, 2006.
    Milton E. Torres, pro se, Petitioner.
    Charlie Crist, Attorney General, and J. Andrew Atkinson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    Stuart SUBOTNICK and Anita Subotnick, Appellants, v. WOOLEMS, INC., Appellee.
    No. 4D05-3435.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Rehearing Denied June 5, 2006.
    Amy L. Fischer and F. Malcolm Cunningham, Jr., of The Cunningham Law Firm, P.A., West Palm Beach, for appellants.
    John R. Young of Boose Casey Ciklin Lubitz Martens McBane & O’Connell, West Palm Beach, for appellee.
   PER CURIAM.

Appellants, Stuart Subotnick and Anita Subotnick, appeal the trial court’s order granting Appellee, Woolems, Inc.’s, motion to strike the Subotnicks’ request for attorneys’ fees and costs filed upon the dismissal of Woolems’ complaint for lack of prosecution. We reverse because we find that the Subotnicks’ motion for attorneys’ fees and costs filed pursuant to Florida Rule of Civil Procedure 1.525 was filed within thirty days of this court’s determination that the trial court’s order was final.

As a result of this decision, we hereby direct the trial court to conduct a hearing to determine a reasonable amount of fees and costs.

Reversed.

WARNER, GROSS and HAZOURI, JJ„ concur.


text:
    Kurt D. SCANLON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-40.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Rehearing Denied June 5, 2006.
    Kurt D. Scanlon, Crestview, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s denial of Kurt D. Scanlon’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 as untimely. The certificate of service on Scanlon’s motion shows that he delivered it to prison mail authorities within the two year limitations period of rule 3.850(b). His motion is presumed to be timely filed under the “mailbox rule.” See Fla. R.App. P. 9.420(a)(2); Haag v. State, 591 So.2d 614, 617 (Fla.1992); Denton v. State, 912 So.2d 612 (Fla. 2d DCA 2005).

Therefore we reverse and remand for further consideration of this motion for postconviction relief.

POLEN, FARMER, and KLEIN, JJ„ concur.


text:
    Leonardo T. MORALES, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-697.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Rehearing Denied May 17, 2006.

      Leonardo T. Morales, in proper person.
    Charles J. Crist, Jr., Attorney General, for respondent.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

We deny Leonardo Morales’ (“Morales”) petition for writ of habeas corpus. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Rayvon BOATMAN, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D05-5087.
    District Court of Appeal of Florida, First District.
    April 27, 2006.
    Rayvon Boatman, pro se, Appellant.
    Louis A. Vargas, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 13, 2006, the Court has determined that the notice of appeal was filed more than 30 days after rendition of the order on appeal. See Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed as untimely.

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


text:
    William E. SIEBERT, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D06-0544.
    District Court of Appeal of Florida, First District.
    April 27, 2006.
    William E. Siebert, pro se, Appellant.
    Louis Á. Vargas, General Counsel; Charlie Crist, Attorney General and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellee’s Motion to Dismiss filed on February 28, 2006, as well as the appellant’s response thereto, the Court has determined that the “Order Denying Petitioner’s Motion for Relief’ is not an appealable order. See Bennett’s Leasing, Inc. v. First Street Mortgage Corp., 870 So.2d 93 (Fla. 1st DCA 2003); see also Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

WEBSTER, DAVIS, and LEWIS, JJ., Concur.


text:
    Rodney LOVETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0651.
    District Court of Appeal of Florida, First District.
    April 27, 2006.
    Rodney Lovett, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This appeal is dismissed as untimely without prejudice to appellant’s right to file a sworn petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141.

KAHN, C.J., WOLF, and BENTON, JJ., concur.


text:
    Ricky E. SIMMONS, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0982.
    District Court of Appeal of Florida, First District.
    April 27, 2006.
    Ricky E. Simmons, II, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This appeal is dismissed as untimely without prejudice to appellant’s right to file a sworn petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141.

KAHN, C.J., WOLF, and BENTON, JJ., concur.


text:
    Sergio FUENTES, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0634.
    District Court of Appeal of Florida, First District.
    April 28, 2006.

      Sergio Fuentes, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal is hereby dismissed without prejudice to appellant’s right to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

WEBSTER, DAVIS and LEWIS, JJ., concur.


text:
    Raymond BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-891.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Raymond Brown, Jr., Immokalee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Paccione v. State, 862 So.2d 908 (Fla. 4th DCA 2003); Szuch v. State, 780 So.2d 290 (Fla. 4th DCA 2001). Conflict is certified with King v. State, 911 So.2d 229 (Fla. 2d DCA 2005), and Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003).

STONE, FARMER and MAY, JJ., concur.


text:
    Stephen TAYLOR, Appellant, v. Susan Gasink BATEMAN, Brooks W. Bateman, Jennifer Lynn Mathie and James M. Mathie, Appellees.
    Nos. 4D04-3065, 4D04-3438.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.

      Paul Richard Bloomquist, Tampa, for appellant.
    Charles W. Hall and Mark D. Tinker of Fowler, White, Boggs & Banker, P.A., St. Petersburg, for appellees Jennifer Lynn Mathie and James M. Mathie.
    Richard A. Sherman of Richard A. Sherman, P.A., Fort Lauderdale, for appellees Susan Gasink Bateman and Brooks W. Bateman.
   ON MOTIONS FOR REHEARING, REHEARING EN BANC, AND FOR CLARIFICATION AND A WRITTEN OPINION.

PER CURIAM.

We deny the plaintiffs motions for rehearing and rehearing en banc, but grant the motion for clarification and a written opinion. We withdraw our previously issued opinion and substitute this opinion in its place.

The plaintiff appealed from a defense verdict arising from two separate automobile accidents that were tried together. The plaintiff raised multiple issues, including the exclusion of testimony from the plaintiffs reconstruction expert and resulting prejudice, the use of the defendant’s proposed verdict form, and the denial of his motion for new trial. We affirm on all issues.

First, the trial court properly excluded the plaintiffs reconstruction expert’s testimony concerning the color of each party’s traffic signal before the accident as speculative. See Bryant v. Buerman, 739 So.2d 710, 712 (Fla. 4th DCA 1999). The court allowed the expert to testify on all other matters concerning speed, stopping distances, and reaction times. Further, any prejudice that resulted from plaintiffs counsel’s decision to advise the jury that the expert would be testifying concerning the color of the traffic lights and then being unable to elicit that testimony, lies in his trial strategy not in any error on the part of the trial court.

Second, the verdict was not contrary to the manifest weight of the evidence. Although the plaintiff testified to property damage to his vehicle, counsel chose not to ask for an instruction on those damages, did not include that element of damage on the verdict form, and chose not to request those damages in his closing argument.

Third, this was a multi-day trial involving two separate automobile accidents for which only partial transcripts were provided to this court for review. The piecemeal transcripts deprived this court of the ability to review the record as a whole. Such record omissions are fatal to an appeal. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

Affirmed.

STONE, GROSS, and MAY, JJ„ concur.


text:
    Manohar Singh SURANA, Appellant, v. Ira ELEGANT, Esq., and Buchbinder Elegant, P.A., Appellees.
    No. 3D05-122.
    District Court of Appeal of Florida, Third District.
    May 3, 2006.
    Entin, Della, Fera & Greenberg, Fort Lauderdale, for appellant.
    Stephens, Lynn, Klein, LaCava, Hoffman Puya, Fort Lauderdale, and Sherryll Martens Dunaj, for appellees.
    Before COPE, C.J., and GREEN and SUAREZ, JJ.
   PER CURIAM.

Affirmed. Crosby v. Jones, 705 So.2d 1356 (Fla.1998).


text:
    Steven BEASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-3220.
    District Court of Appeal of Florida, First District.
    May 4, 2006.
    George F. Schaefer, Esquire of the Law Office of George F. Schaefer, San Diego, CA, for Appellant.

      Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See King v. State, 628 So.2d 486, 488 (Fla.1993); Taylor v. State, 640 So.2d 1127, 1133 (Fla. 1st DCA 1994) (“Improper prosecutorial comment is subject to a harmless error analysis, and will give rise to reversal of a conviction only if the comment is so prejudicial that it vitiates the entire trial.”). See also Proctor v. State, 901 So.2d 994, 995 (Fla. 1st DCA 2005) (“[Tjhis court would not be able to address the [scrivener’s] errors because, absent the trial court’s ruling on a rule 3.800(b)(2) motion, these errors were not preserved. See Brannon v. State, 850 So.2d 452, 456 (Fla.2003).”).

KAHN, C.J., WOLF, and BENTON, JJ., concur.


text:
    Edmund Erick MAYE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-0328.
    District Court of Appeal of Florida, First District.
    May 4, 2006.
    Nancy A. Daniels, Public Defender, and Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Edmund E. Maye challenges his judgments of conviction and sentences for several counts of burglary of a dwelling, burglary of an occupied structure, several counts of grand theft, and two counts of criminal mischief. We affirm Maye’s judgments and sentences except that we remand for the trial court to correct a scrivener’s error on Maye’s written judgment in circuit court case 2004CF000635. The judgment incorrectly reflects that Maye pled nolo contendere to the charge of burglary of a dwelling as well as grand theft. The judgment should have reflected that he pled only to one offense, burglary, as reflected in the plea and acknowledgment of rights form executed by the appellant. The judgment of conviction and the sentence entered in circuit court case 2004CF635 therefore are to be corrected.

AFFIRMED AND REMANDED TO CORRECT SCRIVENER’S ERROR.

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


text:
    Harley R. PHILLIPS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Nelco One, Inc., Appellees.
    No. 1D06-1016.
    District Court of Appeal of Florida, First District.
    May 4, 2006.

      Harley R. Phillips, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

Because appellant’s notice of appeal was not timely filed, we are compelled to dismiss this appeal for lack of jurisdiction. However, in light of appellant’s allegation that he was misinformed by staff at the Unemployment Appeals Commission concerning the process for initiating an appeal, this disposition is without prejudice to appellant’s right to seek relief by filing a motion with the Unemployment Appeals Commission requesting that it vacate and reenter the final order at issue. See New Washington Heights Community Development Conference v. Department of Community Affairs, 515 So.2d 328 (Fla. 3d DCA 1987), disapproved on other grounds, Millinger v. Broward County Mental Health Division and Risk Mgmt., 672 So.2d 24 (Fla.1996).

APPEAL DISMISSED.

ALLEN, VAN NORTWICK, and POLSTON, JJ„ Concur.


text:
    DEPARTMENT OF HEALTH, STATE OF FLORIDA, Petitioner, v. Lashawnda WILLIAMS, Respondent.
    No. 1D06-0484.
    District Court of Appeal of Florida, First District.
    May 4, 2006.
    Timothy M. Cerio, General Counsel, Stephen W. Foxwell, Senior Attorney, Department of Health, Tallahassee, for Petitioner.
    Lashawnda Williams, pro se, Respondent.
   PER CURIAM.

As it appears that no appealable order would issue absent this court’s intervention, the petition is granted. See AHCA v. Mt. Sinai Medical Ctr. of Greater Miami, 690 So.2d 689 (Fla. 1st DCA 1997). This matter is remanded to the administrative law judge to issue a recommended order which sets forth findings of fact and conclusions of law pursuant to section 120.57(l)(k).

WEBSTER, DAVIS, and LEWIS, JJ., Concur.


author: VILLANTI, Judge.

text:
    Roberto CARDOZA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1133.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.

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

Roberto Cardoza appeals his convictions for possession of heroin, possession of cannabis, and possession of drug paraphernalia. After the denial of his motion to suppress evidence found subsequent to a search, Cardoza entered pleas of no contest to the charges and reserved the right to appeal the denial of his dispositive motion. We affirm.

We write to address only the State’s argument that this court lacks jurisdiction because the record does not contain a written order denying the motion to suppress. The State relies on State v. Moore, 563 So.2d 115 (Fla. 2d DCA 1990), for this proposition but unlike here, Moore involved an appeal by the State. Thus, Moore is inapposite and cannot support the State’s argument. The State’s right to appeal is set out in Florida Rule of Appellate Procedure 9.140(c)(1). When the State appeals an order suppressing evidence obtained by search and seizure, the order must be “rendered,” which means a filed, written order, for this court to have jurisdiction. See Moore, 563 So.2d at 115.

Because Cardoza, the criminal defendant below, is the appellant, this appeal is governed by Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i). The operative written order in a defendant’s appeal of an order denying a motion to suppress for jurisdictional purposes is the judgment and sentence. Further, rule 9.140(i) states that the appellate court “shall review all rulings and orders appearing in the record necessary to pass upon the grounds of an appeal.” The court’s ruling on the motion to suppress was properly preserved for appeal and is a ruling “appearing in the record necessary to pass upon the grounds of an appeal.” Although it would be preferable for all orders and rulings to be entered in writing, the rule does not require that this occur in order to vest jurisdiction in this court of a defense appeal of an order denying a motion to dismiss.

Affirmed.

FULMER, C.J., and STRINGER, J., Concur.


author: KELLY, Judge.

text:
    Drew C. HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2137.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.
   KELLY, Judge.

Drew C. Hartley challenges the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postcon-viction court dismissed Hartley’s rule 3.850 motion because Hartley has a direct appeal pending in case number 2D03-4825. While the general rule states that a trial court lacks jurisdiction to rule on a post-conviction motion when a direct appeal is pending, if the postconviction motion is unrelated to the matters raised in the direct appeal, the trial court may resolve the postconviction motion. Robertson v. State, 862 So.2d 102 (Fla. 2d DCA 2003).

Although Hartley has an appeal pending in case number 2D03^1825, the appeal is a direct appeal of the trial court’s probation revocation order. In his postconviction motion, Hartley seeks relief from his underlying convictions. Because the two are unrelated, the postconviction court erred by dismissing Hartley’s motion on the ground that it did not have jurisdiction to rule. See id. Accordingly, we reverse the order of the postconviction court and remand for consideration of Hartley’s motion on the merits.

Reversed and remanded.

CASANUEVA and SALCINES, JJ„ Concur.