author: WARNER, J.

text:
    BDO SEIDMAN, LLP, Appellant, v. Charles W. BEE, Appellee.
    No. 4D07-2.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.
    Rehearing Denied Jan. 18, 2008.

      Elliot H. Scherker, David A. Coulson, Elliot B. Kula and Pamela A. DeBooth of Greenberg Traurig, P.A., Miami, for appellant.
    James D. Wing and Frances F. Guasch of Holland & Knight LLP, Miami, for ap-pellee.
   WARNER, J.

In a suit over retirement benefits under a partnership agreement, the trial court refused to enforce an arbitration agreement, finding that the appellee did not sign the agreement. Because the appellee relied on the agreement in filing his claim and had signed previous agreements with identical arbitration provisions, we hold that the appellee was bound by the provisions. In accordance with controlling New York law, we also hold that the composition of the arbitration panel did not make the arbitration provision unconscionable as alleged by the appellee. We reverse.

This action arises out of Charles Bee’s complaint filed against his former employer, BDO Seidman, LLP (“BDO”), a national accounting firm, in which Bee claimed entitlement to retirement compensation under the firm’s Amended Partnership Agreement. Bee had been a partner with the firm for over twenty years.

As a partner, Bee was a party to various partnership agreements. Bee alleged that the 2000 Partnership Agreement was the last agreement he personally signed. In 2003, as a result of a major leadership change in the firm, several top partners resigned. Several partners associated with the old regime, including Bee, entered into a separate employment agreement with BDO, referred to as the Understanding, in which the terms of compensation for Bee’s remaining years with the partnership were set. The Understanding included an arbitration provision.

Thereafter, the Partnership adopted an Amended Partnership Agreement in March 2004. The provisions of this agreement and previous agreements dictated compensation paid to a partner upon retirement or termination. Its provisions applied to any partner who had not terminated his or her relationship with the partnership prior to the adoption of the agreement and superseded prior partnership agreements. Section 14.8 of the Amended Partnership Agreement, as well as the 2000 Partnership Agreement, provided for arbitration of all disputes under the agreement. It established an arbitration panel consisting exclusively of other BDO partners. However, the parties were to agree on the members:

Any dispute or controversy shall be considered and decided by an arbitration panel consisting of two (2) members of the Board of Directors (other than the Chief Executive Officer) selected by the Board of Directors and three (3) Partners from the Partnership’s practice offices who are not members of the Board of Directors. The members of the arbitration panel shall be mutually agreed to by the Board of Directors and the parties to the controversy or dispute, provided that no member of the panel shall be from an office in which any complaining Partner was located at the time of the filing of the complaint, nor be otherwise involved in the controversy or dispute.

The agreement further provided that “its validity, construction, administration and effect, shall be governed by and construed in accordance with the laws of the State of New York.”

Six months later the chairman of the board and chief legal counsel demanded that Bee resign and told him that BDO would not indemnify him for prior tax work performed by Bee which was being challenged by the government as illegal tax planning. If he resigned, BDO would provide him the retirement benefits under the partnership. Bee, however, thought this was an attempt to deprive him of compensation under the Understanding, and he refused to resign.

BDO sent Bee a letter stating that the board of directors voted to rescind the Understanding and to terminate his partnership interest for cause. He sought arbitration of his dispute with BDO under the Understanding and recovered a sizea-ble award from the arbitration panel. However, the arbitration panel determined that it did not have jurisdiction of matters involving the Amended Partnership Agreement, as the two were separate agreements with different arbitration provisions.

Bee then filed the instant action against BDO seeking retirement compensation, attaching a copy of the Amended Partnership Agreement to the complaint. Bee alleged that BDO breached the Amended Partnership Agreement by expelling him without any contractually-permitted cause and in violation of the implied covenant of good faith and fair dealing. He further alleged that if BDO had not wrongfully expelled him, he would have retired no earlier than his sixtieth birthday and would have been entitled to receive retirement benefits for the rest of his life, as calculated in accordance with the terms of the Amended Partnership Agreement. He alleged that he was not bound by the arbitration agreement in the Amended Partnership Agreement, because it was unconscionable as the panel was comprised solely of BDO partners.

When BDO moved to compel arbitration, Bee claimed that he had not signed the agreement. The benefits he claimed were available under prior versions of the partnership agreement. At the hearing, however, BDO’s attorney noted that the same arbitration provision was included in prior partnership agreements which Bee admits he signed. His lawyer admitted as much and told the court that “the real issue goes simply to the identity of the panel. That’s the problem.” Bee stipulated that he was willing to submit his claim to arbitration if neutral and disinterested arbitrators were to preside.

The trial court denied the motion to compel. The court found that Bee had not signed the Amended Partnership Agreement, and it would not require him to arbitrate under that agreement. The court did not find that the agreement was unconscionable because of panel bias based upon the agreement alone. The court would require further evidence of actual bias. Because Bee agreed to arbitrate, the court ordered arbitration before a neutral panel of arbitrators to be agreed upon by the parties or, if they could not agree, to be appointed by the court.

BDO appeals this order as a non-final appealable order. Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) permits appeals of non-final orders determining “the entitlement of a party to arbitration.” Here, the court’s non-final order did not exactly determine the entitlement of a party to arbitration, as Bee agreed that he would submit to arbitration. However, the court did not enforce the arbitration clause but permitted an arbitration proceeding outside of the agreement. As the essence of the court’s ruling is to deny BDO’s motion to compel arbitration under the agreement, we conclude that the order is appealable under the rule.

In reviewing the denial of a motion to compel arbitration, the trial court’s factual findings are reviewed under a competent, substantial evidence standard. See Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla. 4th DCA 2005). “However, the standard of review applicable to the trial court’s construction of an arbitration provision, and to its application of the law to the facts found, is de novo.” Id. See also Chapman v. King Motor Co. of S. Fla., 833 So.2d 820, 821 (Fla. 4th DCA 2002) (a trial court’s decision on the validity of an arbitration agreement is a matter of contract interpretation subject to de novo review). As the trial court determined that the arbitration agreement was not enforceable because Bee failed to sign the Amended Partnership Agreement, we review de novo whether this prevents the arbitration clause from being enforced.

The court must consider three elements to determine a party’s entitlement to arbitration: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitral issue exists; and (3) whether the right to arbitration was waived.” Marine Envtl. Partners, Inc. v. Johnson, 863 So.2d 423, 426 (Fla. 4th DCA 2003). The trial court’s ruling that Bee did not agree to arbitration goes to the first element, i.e., whether there is a “valid written agreement” to arbitrate.

In this case the parties both rely on and maintain that the Federal Arbitration Act (FAA) provides the standards for determining the arbitrability of this dispute. We will therefore apply federal law in determining whether a valid arbitration agreement exists.

The FAA provides:

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2. Although the act requires that an agreement to arbitrate must be in writing, “no signature is needed to satisfy the FAA’s written agreement requirement.” Caley v. Gnlfstream Aerospace Corp., 428 F.3d 1359, 1369 (11th Cir.2005). However, “there must be sufficient proof that the parties actually agreed to arbitrate.” Neiman v. Backer, 167 A.D.2d 403, 404, 561 N.Y.S.2d 811 (N.Y.App.Div.1990).

As well, under state law contract principles, a contract may be binding on a party even without that party’s signature where assent may be shown by the acts or performance of the party. See Consol. Res. Healthcare Fund I, Ltd. v. Fenelus, 853 So.2d 500 (Fla. 4th DCA 2003). “Even if parties do not sign a contract, they may be bound by the provisions of the contract, if the evidence supports that they acted as if the provisions of the contract were in force.” Sosa v. Shearform Mfg., 784 So.2d 609, 610 (Fla. 5th DCA 2001). A non-signatory’s consent to a contract can be manifested by both a party’s words and actions. Am. Rock Salt Co., LLC v. Norfolk S. Corp., 180 F.Supp.2d 420, 422 (W.D.N.Y.2001).

A party may not rely on a contract to establish his claims while avoiding his obligation under the contract to arbitrate such claims. See Blinco v. Green Tree Servicing LLC, 400 F.3d 1308, 1312 (11th Cir.2005). In Blinco, the court held that a non-signatory was bound to the arbitration clause of a contract where her claims derived from her status under the contract. Id. The court applied the doctrine of equitable estoppel, recognizing that a party should be estopped “from claiming the benefits of a contract while simultaneously attempting to avoid the burdens that contract imposes.” Id.See also HRH Constr. LLC v. Metro. Transp. Auth., 33 A.D.3d 568, 569, 823 N.Y.S.2d 140 (N.Y.App.Div.2006) (“A nonsignatory to an agreement containing an arbitration clause that has knowingly received direct benefits under the agreement will be equitably estopped from avoiding the agreement’s obligation to arbitrate.”); InterGen N.V. v. Grina, 344 F.3d 134, 146 (1st Cir.2003) (“[EJstoppel has been limited to ‘cases [that] involve non-signatories who, during the life of the contract, have embraced the contract despite their non-signatory status but then, during litigation, attempt to repudiate the arbitration clause in the contract.’ ”).

After the Amended Partnership Agreement came into existence, Bee continued to work for BDO, thus evincing his acquiescence to the terms of the agreement. Bee sued claiming benefits under the Amended Partnership Agreement. Florida Rule of Civil Procedure 1.130(a) provides that “contracts ... shall be incorporated in or attached to the pleading.” Moreover, rule 1.130(b) provides, “Any exhibit attached to a pleading shall be considered a part thereof for all purposes.” He thus claimed benefits under the agreement whose arbitration clause he seeks to repudiate in this appeal. In his complaint he did not allege that the contract was invalid; he alleged that the arbitration clause was unconscionable. Even if Bee now claims the benefits he seeks derive from the prior partnership agreement, that agreement also had an identical arbitration clause. By his own conduct in seeking benefits under the contract, he is estopped from denying the validity of the agreement. The trial court erred in determining that the arbitration agreement was invalid for want of Bee’s signature.

In the trial court Bee sought to avoid arbitration before the panel as set forth in the arbitration agreement. The arbitration agreement provides that the panel shall consist of two members of the board of directors and three other partners, none of whom can be from the office of the complaining party. The parties are required to agree on the members of the panel. This very arbitration agreement has been upheld in other courts against a claim of unconscionability. See Frishberg v. BDO Seidman, L.L.P., No. 04-10481 (Minn.Cir.Ct. Jan. 5, 2005); BDO Seidman, LLP v. Bloom, 799 N.Y.S.2d 159, 2004 WL 2659987 (N.Y.Sup.Ct.2004); Greenwald v. Weisbaum, 6 Misc.3d 281, 785 N.Y.S.2d 664 (N.Y.Sup.Ct.2004); Hottle v. BDO Seidman, LLP, 268 Conn. 694, 846 A.2d 862 (2004); Jehle v. BDO Seidman, L.L.P., No. 012-10118 (Mo.Cir.Ct. May 30, 2002); Waite v. BDO Seidman, LLP, No. 01-4009-C (Mass.Super.Ct. Jan. 2, 2002); Sowan v. BDO Seidman, LLP, No. DV99-2676-B (Tex.Dist.Ct. July 12, 1999); Selznick v. BDO Seidman, Index No. 507/95 (N.Y. Sup.Ct. June 12, 1995); Brown v. BDO Seidman, No. 91-9343-NO (Mich.Cir.Ct. Dec. 18, 1992); Pioso v. Abernathy, No. 90-CV-002739 (Wis.Ct.App. Aug. 28, 1990). However, the following cases have not upheld the BDO arbitration provision: Buhrer v. BDO Seidman, LLP, 2003 WL 22049503 (Mass.Super.Ct. July 07, 2003); BDO Seidman v. Miller, 949 S.W.2d 858 (Tex.App.1997); Romer v. BDO Seidman, No. 1995-7807 (N.Y.Sup.Ct. Feb. 9, 1996).

Although Bee claimed that a panel of partners of the firm would be inherently biased against him, the trial court did not hold that the arbitration agreement was unconscionable. The trial court believed that it would need more information to determine that there was particular bias against Bee. On appeal, however, Bee argues that the trial court’s denial of BDO’s motion to compel arbitration may be upheld because the arbitration agreement, with its panel composition, is unconscionable.

Whether an arbitration agreement is unconscionable is a question of state law. Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 264 (Fla. 2d DCA 2004). The Amended Partnership Agreement provides that it is governed by and construed in accordance with New York law. We enforce the provision pursuant to its terms, even if it would be otherwise unenforceable under Florida law. See Gilman + Ciocia, Inc. v. Wetherald, 885 So.2d 900 (Fla. 4th DCA 2004). . However, New York law on unconscionability analysis is similar to Florida’s analysis.

Under New York law, unconscionability requires a showing that a contract is both procedurally and substantively unconscionable when made. Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 253, 676 N.Y.S.2d 569 (N.Y.App.Div.1998); accord Bellsouth Mobility LLC v. Christopher, 819 So.2d 171, 173 (Fla. 4th DCA 2002). Bee did not raise procedural un-conscionability in the trial court, and he makes no argument of procedural uncon-scionability as to the earlier partnership agreements. Therefore, we conclude that he has failed to show that the contract was procedurally unconscionable.

The substantive prong entails an examination of the substance of the agreement in order to determine whether the terms unreasonably favor one party:

Substantively, courts consider whether one or more key terms are unreasonably favorable to one party. There is no general test for measuring the reasonableness of a transaction but we have recently provided this guidance: “[a]n unconscionable contract [is] one which ‘is so grossly unreasonable or unconscionable in the light of the mores and business practices of the time and place as to be unenforcible [sic] according to its literal terms.’ ”

Sablosky v. Edward S. Gordon Co., 73 N.Y.2d 133, 138, 538 N.Y.S.2d 513, 535 N.E.2d 643 (N.Y.1989) (citations omitted). With respect to the provision of arbitrators, under New York law, “parties may not complain merely because the arbitrators named were known to be chosen with a view to a particular relationship to their nominator or to the subject-matter of the controversy.” Astoria Med. Group v. Health Ins. Plan of Greater N.Y., 11 N.Y.2d 128, 136, 227 N.Y.S.2d 401, 182 N.E.2d 85 (N.Y.1962). “[I]t has long been the policy of New York courts to interfere as little as possible with the freedom of consenting parties, ‘[t]herefore, strange as it may seem ... a fully known relationship between an arbitrator and a party, including one as close as employer and employee ... will not in and of itself disqualify the designee.’” Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 82 N.Y.2d 47, 603 N.Y.S.2d 404, 623 N.E.2d 531, 534 (1993). The Westinghouse court found the designation of an employee of one of the parties as the arbitrator of disputes not to be substantively unconscionable.

Relying on Westinghouse, the court in Greenwald v. Weisbaum, 6 Misc.3d 281, 785 N.Y.S.2d 664 (N.Y.Sup.Ct.2004), upheld the validity and enforceability of the BDO arbitration provision. The court noted:

The arbitration provision safeguards the arbitration proceeding by requiring the panel to consist primarily of non-Board Members and that no member can be from the same office as the complaining partner, nor be otherwise involved in the controversy or dispute. Additionally, since every partner of BDO may be compelled in the future to arbitrate a dispute before such a panel, this dramatically illustrates that there is certainly a reasonable expectation that the arbitration will not be unfair.

Id. at 670. The Connecticut Supreme Court also came to the same conclusion in Hottle v. BDO Seidman, LLP, 268 Conn. 694, 846 A.2d 862 (2004), applying New York law. Both cases distinguished an earlier case of Cross & Brown Co. v. Nelson, 4 A.D.2d 501, 167 N.Y.S.2d 573 (N.Y.App.Div.1957), on which Bee relies. We agree that Cross is distinguishable on its facts, if not completely discarded by subsequent case law. In short, New York law supports the conclusion that the arbitration provision is not substantively unconscionable.

The trial court declined to find that the panel was biased, as it needed more factual information. The trial court ruled appropriately, as an arbitration award can always be challenged based upon the “evident partiality” of the arbitrators. See § 682.13(1)(b), Fla. Stat.; 9 U.S.C. § 10(a)(2).

The trial court erred, however, in rejecting the arbitration provision contained in the agreement in favor of its own method of selecting the panel. Because there was a valid agreement containing an arbitration clause which the trial court did not find was unconscionable, BDO was entitled to enforce the arbitration clause, as written, of its contract.

We reverse and remand for the trial court to compel arbitration pursuant to the terms of the contract.

KLEIN and GROSS, JJ., concur.

      . When deciding whether the parties agreed to arbitrate a certain matter, courts generally should apply ordinary state-law principles that govern the formation of contracts. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In Global Travel Marketing, Inc. v. Shea, 908 So.2d 392, 397 (Fla.2005), the Florida Supreme Court approvingly quoted from Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987), for the proposition that in interpreting arbitration provisions state law should apply if that law arose to determine the validity of contracts generally.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James HOOTEN, Appellant, v. AAA COOPER TRANSPORTATION/CRAWFORD & COMPANY, Appellees.
    No. 1D06-5489.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2007.
    W. Marc Hardesty, of Hardesty, Tyde, Green & Ashton, P.A., Jacksonville, for Appellant.
    Kristy J. Gavin, of Gobelman, Love, Gavin, Wasilenko & Broughan, L.L.C., Jacksonville, for Appellees.
   PER CURIAM.

Appellant, the claimant, was injured in an industrial accident on May 13, 1997. He appeals a final order of the Judge of Compensation Claims (JCC) denying his motion for attorney’s fees. Appellees, the employer/semcmg agent, cross-appeal the JCC’s award of permanent total disability (PTD) supplemental benefits, penalties, interest, and attorney’s fees and costs related to that award. Because competent, substantial evidence and Florida law support the JCC’s finding no entitlement to an attorney’s fee based on, and related to, Appellant’s having been voluntarily administratively accepted as PTD, effective January 28, 2001, we AFFIRM that ruling. Given the parties’ agreement that the subject of PTD supplemental benefits was not even scheduled for consideration at the hearing in question and, thus, was not properly before the JCC for a ruling, we agree that the JCC abused his discretion in sua sponte making this award. Accordingly, we REVERSE the award of PTD supplemental benefits, penalties, interest, and the attorney’s fees and costs relating to that award, and REMAND this case.

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


author: LaROSE, Judge.

text:
    Felix VANN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-674.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2007.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Felix Vann entered an open plea to sale of a controlled substance 'within 1000 feet of a church, possession of cocaine, and possession of drug paraphernalia. The trial court sentenced him as a habitual felony offender (HFO) to fifteen years in prison. Mr. Vann argues that the trial court erred in imposing an HFO sentence because the State did not serve its written HFO notice until after he entered his plea. Mr. Vann failed to preserve this issue for appeal. Accordingly, we affirm his conviction and sentence.

Section 775.084(3)(b)(2), Florida Statutes (2004), the HFO statute, provides that “[w]ritten notice shall be served on the defendant and the defendant’s attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant” (emphasis added). The supreme court has held that “‘the State shall serve notice on the defendant either before he enters a plea of guilty or nolo contendere, or, in the event he enters a plea of not guilty and submits to trial, prior to the imposition of sentence.’” Ashley v. State, 614 So.2d 486, 490 (Fla.1993) (some emphasis added) (quoting Inmon v. State, 383 So.2d 1103, 1104 (Fla. 2d DCA 1980)).

Although Mr. Vann’s plea agreement reflects that he was aware that the maximum possible sentence was thirty years, that he might receive an HFO sentence, and that an HFO sentence might make him ineligible for gain time, he received legally insufficient notice because the State did not timely provide him with notice of its actual intention to seek an HFO sentence.

What [the defendant] could be sentenced to, and what the State actually intends to seek as a sentence, are two different things. In the context of timely notice of habitualization, it is not sufficient notice to [the defendant] to say what the State could do; the law requires that [the defendant] be given timely written notice of what the State actually intends to do.

Akers v. State, 890 So.2d 1257, 1260 (Fla. 5th DCA 2005). Failure to follow this bright-line procedural rule ordinarily calls for resentencing without the HFO designation. Akers, 890 So.2d at 1258-60; Ashley, 614 So.2d at 491.

However, Mr. Vann did not object at sentencing, nor did he file a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b)(2). Consequently, he failed to preserve the issue as required by Florida Rule of Appellate Procedure 9.140(b)(2)(A)(d) and section 924.051(3), Florida Statutes (2004). We affirm the conviction and sentence without prejudice to any right Mr. Vann may have to file a motion for postconviction relief.

Affirmed.

DAVIS, J., and ST. ARNOLD, JACK R., Associate Judge, Concur.

      . Section 924.051 (the Criminal Appeal Reform Act) took effect July 1, 1996. Ch. 96-248, § 9, at 257, Laws of Fla. Prior to the Act, no contemporaneous objection was required to preserve for appeal the lack of compliance with the section 775.084(3)(a) notice requirement. See, e.g., Ashley, 614 So.2d at 490 (reasoning that notice was a purely legal matter requiring no factual determination).


text:
    Javier ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-816.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

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

GUNTHER, STONE and GROSS, JJ., concur.


text:
    Keith Errol HOGARTH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6427.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Keith Errol Hogarth, pro se, Appellant.
    Bill McCollum, Attorney General, Giselle Lylen Rivera and Elizabeth F. Duffy, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order denying his petition for writ of habe-as corpus which was treated as a rule 3.850 motion. Because the trial court’s order was issued while the appellant’s direct appeal of judgment and sentence was pending, we reverse.

The trial court erred in ruling on the appellant’s motion for postconviction relief while the appellant’s case was the subject of a pending direct appeal. See McDaniel v. State, 789 So.2d 1223, 1224 (Fla. 1st DCA 2001). Instead, the trial court should have dismissed the motion with leave to refile after the direct appeal was final. See Matthews v. State, 889 So.2d 893 (Fla. 2d DCA 2004).

Accordingly, the trial court’s order is reversed and the cause remanded to the trial court with instructions to dismiss the appellant’s motion for lack of jurisdiction without prejudice.

REVERSED AND REMANDED.

POLSTON, HAWKES, and THOMAS, JJ., concur.


text:
    Daniel WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2402.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Daniel Williams, pro se, Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Anne C. Conley, Charmaine M. Millsaps, and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order summarily denying his claim that counsel was ineffective for failing to timely and properly object to an expert witness reading from a medical publication during her direct testimony and his claim that counsel was ineffective for failing to object to the State having first and last closing arguments. We affirm the trial court’s denial of the second claim without further discussion. However, with respect to Appellant’s first claim, the trial court failed to attach portions of the original record to support its factual finding that Appellant was not prejudiced by counsel’s failure to object to the expert witness’s testimony. Thomas v. State, 707 So.2d 1189 (Fla. 1st DCA 1998). Accordingly, we reverse this portion of the trial court’s order and remand for attachment of record portions that conclusively refute this claim or for an evidentiary hearing.

AFFIRMED in part, REVERSED in part, and REMANDED.

ALLEN, DAVIS, and BENTON, JJ., concur.


text:
    David E. JACKSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D07-2748.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.

      David E. Jackson, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the denial of a petition for writ of habeas corpus under Sheley v, Florida Parole Commission, 720 So.2d 216 (Fla.1998). Because the facts of this case are substantially similar to Mathis v. Florida Parole Commission, 944 So.2d 1182 (Fla. 1st DCA 2006), we grant the petition for writ of certiorari.

The Florida Parole Commission issued a warrant charging petitioner with violating the terms of conditional release supervision. The hearing examiner found petitioner guilty of violating a special condition of supervision by driving alone without the approval of his conditional release officer. Based on that finding, the Parole Commission revoked petitioner’s conditional release. Neither the hearing examiner’s disposition recommendation nor the Parole Commission’s revocation order contained a finding that petitioner’s action constituted a willful violation of a substantial condition of conditional release supervision. In Mathis, this court held that absent such a finding, the circuit court could not have reviewed the proceedings and determined that they were supported by competent substantial evidence and, because the circuit court did not apply the correct law, it could not have observed the essential requirements of the law. Accord Houck v. Fla. Parole Comm’n, 953 So.2d 692 (Fla. 1st DCA 2007).

Accordingly, we grant the petition for writ of certiorari, quash the circuit court’s order and remand for further proceedings.

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


text:
    B.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3676.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant correctly argues that the trial court committed fundamental error in failing properly to advise appellant of his right to assistance of counsel at the plea and disposition hearings. Florida courts have held repeatedly that fundamental error occurs if a juvenile enters an uncounseled plea in a delinquency proceeding and the trial court fails to conduct a thorough inquiry into the juvenile’s comprehension of the right to counsel pursuant to Florida Rule of Juvenile Procedure 8.165. State v. B.P., 810 So.2d 918 (Fla.2002); State v. T.G., 800 So.2d 204, 213 (Fla.2001); C.K. v. State, 909 So.2d 602, 604 (Fla. 2d DCA 2005); M.Q. v. State, 818 So.2d 615, 617-18 (Fla. 5th DCA 2002); P.L.S. v. State, 745 So.2d 555, 557 (Fla. 4th DCA 1999). Accordingly, we reverse and remand with directions that the trial court hold a new plea hearing after either appointing counsel for appellant or obtaining a waiver of counsel following a thorough inquiry in accordance with rule 8.165.

REVERSED and REMANDED with directions.

WEBSTER, PADOVANO, and POLSTON, JJ., concur.


text:
    Clarence E. WALLESKE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5453.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Clarence E. Walleske, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied on the merits. Petitioner’s motion to supplement the record is denied.

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


author: KELLY, Judge.

text:
    Russell Arbin ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-382.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2007.
    Russell Arbin Rogers, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Russell Arbin Rogers appeals the order striking his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 in case number CF01-8234 and striking claim one of his rule 3.850 motion filed in case number CF01-08027. We reverse the order and remand for further proceedings.

In November 2001, Rogers committed a series of robberies. Evidence seized as a result of a traffic stop led to his eventual arrest, after which Rogers confessed. Rogers was convicted of the robberies in three separate cases. Rogers filed rule 3.850 motions in each case alleging various claims of ineffective assistance of counsel. The first motion was filed in case number CF01-8028. In it Rogers asserted, among other things, that counsel was ineffective for failing to file a motion to suppress his confession. After an evidentiary hearing, the postconviction court rejected Rogers’ claim finding that it was refuted by the record. The court stated that the transcript of Rogers’ plea hearing indicated that Rogers’ attorney had filed a motion to suppress the confession, the motion was scheduled to be heard the morning Rogers entered his plea, and Rogers knew that by entering a plea he was giving up his right to a hearing on the motion. Rogers appealed the denial of his motion, and this court affirmed. See Rogers v. State, 940 So.2d 433 (Fla. 2d DCA 2006) (table decision).

Rogers also filed a rule 3.850 motion in case number CF01-8027. In that motion he asserted that counsel in that case was ineffective for failing to file a motion to suppress his confession. After getting a response from the State, the postconviction court ordered an evidentiary hearing. Before the evidentiary hearing, the State filed a “Request To Take Judicial Notice And Motion To Strike Claim I of Defendant’s Motion For Post Conviction Relief.” The State asked the court to take judicial notice of all three of Rogers’ cases and argued that Rogers’ claim regarding trial counsel’s failure to move to suppress his confession had been previously raised and denied in case number CF01-8028. Thus, according to the State, Rogers’ claim was successive and he was collaterally estopped from raising the issue. At the hearing on the motion, the State expanded its argument contending that the court should strike as successive the rule 3.850 motion Rogers filed in case number CF01-8234. The postconviction court agreed and granted the State’s motion. This was error.

Rogers’ motions were not successive. As used in rule 3.850, a second or successive motion “has ... been interpreted to mean a motion stating substantially the same grounds as a previous motion attacking the same conviction or sentence under the Rule.” McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983). Because Rogers’ motions in case numbers CF01-8027 and CF01-8234 attacked different convictions than did his motion in case number CF01-8028, they were not successive.

Nor did the doctrine of collateral estoppel preclude Rogers from raising the issue of counsel’s failure to move to suppress his confession. Collateral estoppel “‘bars relitigation of the same issues between the same parties in connection with a different cause of action.’” Cook v. State, 921 So.2d 631, 634 (Fla. 2d DCA 2005) (quoting Topps v. State, 865 So.2d 1253, 1255 (Fla.2004)), review denied, 936 So.2d 565 (Fla.2006). For the doctrine of collateral estoppel to apply to bar relitigation of an issue, the identical issue must have been actually litigated in the prior proceeding. Id. The record indicates that in case number CF01-8028, Rogers entered a plea and acknowledged during the plea colloquy that he was giving up his right to a hearing on the motion to suppress. This refuted Rogers’ factual assertion that counsel had not moved to suppress his confession. Thus, the legal issue of whether counsel’s performance was deficient for failing to move to suppress Rogers’ confession was never actually litigated in case number CF01-8028. Accordingly, Rogers was not collaterally estopped from raising this issue in case number CF01-8027.

Because the trial court mistakenly concluded that Rogers’ claims were either successive or were barred by the doctrine of collateral estoppel, we reverse the trial court’s order granting the State’s motion to strike. On remand, the trial court is directed to continue in accordance with the “Order to Show Cause” entered on January 25, 2005, in case number CF01-8027 and “Order on the Defendant’s Motion for Postconviction Relief’ entered on April 6, 2005, in case number CF01-8234. We express no opinion regarding the propriety of the trial court’s prior rulings on any of Rogers’ claims and will address those issues if Rogers chooses to appeal from any final order subsequently entered in those cases.

Reversed and remanded.

LaROSE, J., and DAKAN, STEPHEN L., Associate Senior Judge, concur.


text:
    Ronald Bliss SELLERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6048.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2007.
    Ronald Bliss Sellers, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, BENTON, and THOMAS, JJ., concur.


text:
    Walter Lee BOREM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5801.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2007.
    Walter Lee Borem, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, BENTON, and THOMAS, JJ., concur.


text:
    Chavis R. ZEIGLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5780.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2007.
    Chavis R. Zeigler, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, BENTON, and THOMAS, JJ., concur.


author: PADOVANO, J.

text:
    Connie ANDREW and William Andrew, individually, and Connie Andrew as Personal Representative of the Estate of Dustin Andrew, deceased, Appellants, v. SHANDS AT LAKE SHORE, INC., a Florida corporation, and The University of Florida Board of Trustees, Appellees.
    No. 1D06-4995.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2007.
    Rebecca Bowen Creed of Mills & Creed, Jacksonville; Alan E. McMichael of Stripling McMichael Stripling, Gainesville; Jon M. Herskowitz of The Herskowitz Law Firm, Miami, for Appellants.
    Eric P. Gibbs of Hannah, Estes & Ingram, P.A., Orlando; Susan L. Kelsey of Anchors, Smith, Grimsley, Ft. Walton Beach, for Appellees.
   PADOVANO, J.

This is an appeal from a final order dismissing a wrongful death complaint against a hospital. The trial court held that the hospital was protected by sovereign immunity because the doctor who was alleged to have been negligent in the care and treatment of the patient was employed by the state. We conclude that immunity afforded to the doctor as a state employee did not inure to the benefit of the hospital. Accordingly, we reverse.

The plaintiffs, Connie and William Andrew, filed a medical negligence suit against Shands at Lake Shore, Inc., a private hospital, and the University of Florida Board of Trustees, an agency of the State of Florida. They alleged that the defendants were liable for the wrongful death of their fifteen-year-old son, Dustin. The medical negligence at issue was attributed to a radiologist who was employed by the Board of Trustees but working at Shands under a joint venture between the two.

As alleged in the complaint, the plaintiffs brought Dustin to the emergency room at Shands at Lake Shore on August 21, 2002. He was suffering from abdominal pain and he had been passing blood in his urine. A radiologist ordered a CT scan but, according to the complaint, he failed to identify a suspicious mass that turned out to be a malignant tumor. The tumor metastasized and ultimately caused Dustin’s death.

The operative allegation of the complaint is that the radiologist failed to exercise reasonable care in examining the CT scan and that this failure delayed effective treatment of the tumor. The radiologist was not named as a defendant, but the plaintiffs alleged that Shands was liable for his negligence, because he was working as an agent for Shands under its direct control and supervision.

The relationship between Shands at Lake Shore and the University of Florida Board of Trustees is outlined in the complaint. The University of Florida College of Medicine, acting through the Board of Trustees, employs physicians who are then assigned to work at Shands. As a part of this arrangement, Shands pays a sum of money to the College of Medicine every year to cover the costs of the physicians’ salaries. This staffing arrangement is exclusive, at least with respect to the radiologists who are working at the hospital. The only radiologists who are allowed staff privileges at Shands are those who are employed by the College of Medicine.

The University owns the building and leases it to Shands at Lake Shore for use as a hospital. Shands retains control over the medical services provided at the hospital and in this respect it has potential liability for the negligence of the doctors working on the hospital staff. The plaintiffs alleged in the complaint that the radiologist who failed to identify Dustin’s malignant tumor was at all times working within the course and scope of his employment by the joint venture between Shands at Lake Shore and the University of Florida Board of Trustees.

Shands moved to dismiss the complaint for failure to state a cause of action. The motion was based on section 768.28(9)(a), Florida Statutes (2002), which provides that an employee of the state is immune from liability for ordinary negligence, under the doctrine of sovereign immunity. The radiologist was not named as a defendant, but the statute also provides that the “exclusive remedy” for an injury caused by a state employee is to file suit against the governmental entity as an employer. Based on this language, Shands maintained that it was not liable to the plaintiffs because it had not employed the radiologist, and that the plaintiffs’ only recourse was to sue the Board of Trustees. The trial court agreed and dismissed the claim against Shands with prejudice.

This court has jurisdiction to hear an appeal from the order, even though the case is still pending between the plaintiffs and the Board of Trustees. Because the order disposes of the entire case as to an individual party it is immediately appeal-able as a partial final judgment. See Fla. R.App. P. 9.110(k); Mang v. Country Comfort Inn, Inc., 559 So.2d 672 (Fla. 3d DCA 1990). Whether the complaint was properly dismissed is a question of law. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla.2002); Aguila v. Hilton, Inc., 878 So.2d 392 (Fla. 1st DCA 2004). The dismissal order in this case is based on the interpretation of a statute, which is also a question of law. See State v. Burris, 875 So.2d 408 (Fla.2004); Dep’t of Revenue v. Lockheed Martin Corp., 905 So.2d 1017 (Fla. 1st DCA 2005). We therefore review the order of dismissal by the de novo standard.

Florida courts have adhered to the principle that a statute must be interpreted according to its plain meaning. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). Hence, we begin by considering the full text of the statute.

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, such officer, employee, or. agent shall be considered an adverse witness in a tort action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

§ 768.28(9)(a), Fla. Stat. (2002) (emphasis added).

The radiologist would be immune under this statute, and, as between the radiologist and the Board of Trustees, the plaintiffs’ exclusive remedy would be to sue the Board. However, it does not follow to conclude, as the trial court did, that the plaintiffs have no action against a third party who may have been jointly responsible for the radiologist’s conduct. The statute does not address the potential liability of third parties. To hold that the plaintiffs have no cause of action against a third party, in this case a private hospital, would require us to read language into the statute that is simply not there.

The argument for dismissing Shands at Lake Shore would be more appealing if we were to read the phrase “exclusive remedy” in isolation. However, we must consider the meaning of this phrase in the context of the entire statute. See Heart of Adoptions, Inc. v. J.A., 963 So.2d 189 (Fla.2007) (related provisions of a statute must be read together to achieve a consistent whole); Horowitz v. Plantation General Hosp. Ltd. Partnership, 959 So.2d 176 (Fla.2007) (the court must look not only to the words themselves, but also the context in which they are used). The phrase “exclusive remedy” is used in section 768.28(9)(a) to clarify the point of the statute: that an injured plaintiff may not sue a public employee but must instead sue the agency responsible for the employee’s conduct. It is not used in a more expansive way to foreclose the potential liability of third parties who would not, in any event, derive immunity from the state.

The protection afforded by sovereign immunity is, by definition, limited to the sovereign. It does not exist for the benefit of private enterprise. The object of section 768.28(9)(a) is to give immunity to state employees and to make it clear that legal responsibility lies only with the State itself under its limited waiver of sovereign immunity. This purpose would be subverted entirely if the statute could be construed in such a way as to effectively transfer the protection intended for a public employee to a private company responsible for the employee’s conduct. A private enterprise (Shands of Lake Shore) would have the immunity that is designed to protect the state, and the state (the University Board of Trustees) would be exposed to liability under its limited waiver of sovereign immunity.

Our conclusion that section 768.28(9)(a) does not effectively immunize a private company that is responsible for the conduct of a state employee is supported by the decision in Jaar v. University of Miami, 474 So.2d 239 (Fla. 3d DCA 1985), a case that is nearly identical. There the University of Miami was jointly responsible for the conduct of a doctor who served on the faculty of the College of Medicine and worked for the Public Health Trust of Dade County. The court held that the doctor was immune and that the Trust was liable to the extent of the sovereign immunity waiver but noted that the immunity afforded to the doctor by section 768.28(9)(a) did not extend to the University of Miami. As the court explained,

[T]he sovereign immunity which limits the liability of the Trust shields the doctors. On the other hand, the immunity which attaches to an agent does not revert to its principal. The University receives no sovereign immunity protection from the doctors’ relationships to the trust.

Jaar, 474 So.2d at 245.

The court in Jaar also considered the function of sovereign immunity in its analysis. Quoting from a passage in Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958), the court noted that “[t]he legislative purpose in enacting sovereign immunity statutes is to protect the public from ‘profligate encroachments on the public treasury.’” Jaar, 474 So.2d at 245. Because the University of Miami is a private educational institution, the court reasoned, any liability it incurs for the negligence of its agents has no effect on the public treasury.

Shands at Lake Shore argues that Jaar is not controlling, because the cause of action in that case arose before section 768.28(9)(a) was amended to add the “exclusive remedy” provision. This argument is not supported by the opinion itself, but rather by extra record materials obtained from the clerk of the circuit court in Miami. The version of the statute cited in the Jaar opinion is the same as the one we are relying on in this case. We are not persuaded that the court was interpreting the wrong statute. Nor would that change our view here, in any event. As we have explained, the phrase “exclusive remedy” when considered in the context of the entire statute, merely emphasizes that liability lies with the public employer and not the public employee.

For these reasons, we conclude that section 768.28(9)(a), Florida Statutes, does not foreclose a claim of liability against Shands at Lake Shore for the conduct of a public employee working under its supervision and control. The order dismissing the complaint on this ground is reversed, and the action may proceed in the trial court against both of the original defendants.

Reversed.

WEBSTER and POLSTON, JJ., concur.

      . Our decision is based solely on our interpretation of section 768.28(9)(a), Florida Statutes, but we share the broader concerns recently expressed in University of Florida Board of Trustees v. Morris, 32 Fla. L. Weekly D1803, - So.2d -, 2007 WL 2141805 (Fla. 2d DCA July 27, 2007) (Altenbernd, J. concurring) about the staffing of private companies with public employees. As Judge Al-tenbernd stated, "[t]he idea that the govern-merit can now enter into favorable leases and contracts based at least in part on the government’s ability to expand its umbrella of sovereign immunity to favor some private enterprises over others is an idea that warrants very close scrutiny.” We agree. Sovereign immunity belongs to the government. It is not a device that can be manipulated to limit the liability of a private enterprise.


author: PER CURIAM. BROWNING, C.J.,

text:
    Jose TEJEDA, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3825.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2007.
    Jose Tejeda, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

BARFIELD and DAVIS, JJ., Concur.

BROWNING, C.J., Dissents With Separate Opinion.

BROWNING, C.J.,

dissenting.

I dissent as to ground I alleging that Appellant’s counsel was ineffective for failure to pursue a motion to suppress his inculpatory statement made after inadequate Miranda warnings.

Florida case law requires that an evi-dentiary hearing be held here, as a motion to suppress Appellant’s inculpatory statement would have been granted, contrary to the trial court’s determination, had it been asserted. In Almeida v. State, 737 So.2d 520, 526 (Fla.1999), the Florida Supreme Court held that if, at any point during a custodial interrogation, a suspect asks a clear question concerning his or her right to counsel, the officer must stop the interview and make a good faith effort to give a simple and straightforward answer. Here, Appellant alleged that he asked the offi-eers, “Wouldn’t it be better if I wait for my lawyer?” Based on the pertinent case law, this was a clear question concerning his rights. The officer’s alleged response of “No not necessarily ... it wouldn’t make a difference ... it would be better if you just confess” does not constitute a good faith effort to give a simple and straightforward answer. See State v. Soto, 954 So.2d 686, 688 (Fla. 4th DCA 2007) (holding that an officer’s response of “[d]own there after you get booked” to a defendant’s query about making a phone call to a lawyer was an evasive answer to a request for counsel); Isom v. State, 819 So.2d 154, 155 (Fla. 2d DCA 2002) (holding that an officer’s answer of “No” was improper in response to a suspect asking, “I need a lawyer cause I was hitch-hiking?”). Cf. Chaney v. State, 903 So.2d 951, 952 (Fla. 3d DCA 2005) (holding an officer’s response of “Do you think you need a lawyer?” correctly informed the defendant that it was up to the defendant whether or not he needed representation). The only argument I have heard for affirmance, that Appellant’s motion was deficient for failure to allege Appellant did not advise his counsel of the Miranda violation, is specious at best. It is counsel’s duty — a fundamental one — to investigate a charge for a Miranda violation. Otherwise, the performance of a lawyer cannot be assessed on a post-conviction motion other than on the basis of his actions following representations from a client. I cannot accept such a premise, nor do the precedents authorize one.

I would REVERSE and REMAND for an evidentiary hearing on ground I and concur as to all other issues.


text:
    STATE of Florida, DEPARTMENT OF REVENUE on behalf of Melinda DOUGLAS, Petitioner, v. John N. RAWLS, Respondent.
    No. 1D07-2830.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2007.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Petitioner.
    Steven P. Glazer, Crawfordville, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is GRANTED. See State of Florida, Dep’t of Revenue ex rel. Chambers v. Travis, No. 1D07-2833, 971 So.2d 157, 2007 WL 4372795 (Fla. 1st DCA Dec. 17, 2007).

ALLEN, DAVIS, and BENTON, JJ, Concur.


text:
    Richard BENDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3401.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2007.

      Richard Bender, pro se, Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See West v. State, 818 So.2d 637 (Fla. 1st DCA 2002); State v. Dehart, 913 So.2d 616 (Fla. 2d DCA 2005).

PADOVANO, LEWIS, and THOMAS, JJ., concur.


author: GRIFFIN, J.

text:
    LEGAL EXPERTS, PL, Appellant, v. Robin TRYZBIAK and Sydney Tryzbiak, et al., Appellees.
    No. 5D07-1924.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.
    Gary E. Doane, of Legal Experts, PL, Orlando, for Appellant.
    William E. Ruffier, of Dellecker Wilson King McKenna & Ruffier, A Limited Liability Partnership, Orlando, for Appellees.
   GRIFFIN, J.

Legal Experts, P.L., a professional liability company for attorney Gary E. Doane [“Doane”], appeals the trial court’s order, which compelled Doane to deliver a former client’s file to new counsel for the client and to bear the costs of copying that file.

Doane had represented Robin Tryzbiak [“Plaintiff’] for a period of time in the suit underlying this dispute. Doane eventually withdrew from his representation of Plaintiff, and Plaintiff retained Attorney William E. Ruffier to represent her in the suit.

On March 2, 2007, Doane sent Ruffier a letter. In this letter, Doane said that he was asserting a lien for his fees and costs against Plaintiff, secured by his file in her case. In relevant part, Doane’s letter went on to state:

I wish you the best of luck and you are welcome to the original file upon my receipt of the following—
The signed Closing Statement.
A letter from you agreeing to protect my fees and costs incurred to date. As I am agreeable to being paid these amounts when the case closes, you may insert that into your letter.
However, be advised that until there is an adequate provision for the payment of my lien for fees and costs the file is not leaving my office.

(Emphasis added.) On March 19, 2007, Ruffier sent Doane a letter, in which he confirmed that he had agreed to protect Doane’s fees and costs. He also asked to be provided with the “closing statement” that Doane wanted signed. By about April 26, 2007, that too had been signed and sent to Doane.

On May 1, 2007, Doane’s paralegal sent Ruffier’s paralegal a letter, accompanied by two invoices. In relevant part, this letter stated:

Please find enclosed two invoices from American Reprographics for copies of [Plaintiffs] file. The invoices for the services rendered total $2,436.02. Please forward payment with the courier when picking up the file.

The appendices attached to the appellate briefs do not explain why Doane copied Plaintiffs file after promising the original file. However, in his initial brief, Doane asserts:

Attorney Ruffier requested a copy of the file from [Doane]. He was advised that he was free to copy the file or that a copy would be made and provided to him at his expense. He elected for [Doane] to provide the copy and the file was delivered to a copy service. Upon return from the copy service the bill was provided to attorney Ruffier. He refused to pay it. [Doane] refused to provide the copy to him until he paid the bill.

In the Answer Brief, Ruffier contends that the above quoted statement is untrue and that he never requested a copy. He wants the original file.

On about May 2, 2007, Plaintiff filed a motion to compel the case file from Doane. That same day, Ruffier’s paralegal called Judge Nelson’s judicial assistant for available motion hearing times. The judicial assistant told Ruffier’s paralegal to call defense counsel and coordinate the hearing date. Ruffier’s paralegal coordinated a hearing time with counsel for the defendants in the underlying suit, but even though the motion and hearing concerned only Doane, she apparently made no effort to coordinate the hearing time with Doane. Ruffier’s paralegal informed Judge Nelson’s judicial assistant that defense counsel agreed to a 10 a.m., May 4, 2007, hearing time.

After 5 p.m. that same day, Ruffier’s office faxed Doane’s office a copy of the Notice of Hearing. Doane claims that he did not receive the motion and notice till May 3, 2007. On the morning of May 3, 2007, Ruffier’s paralegal called Doane’s office and confirmed that the Notice of Hearing had been received. That afternoon, Doane’s office called Ruffier’s office and said that he had a conflict with the hearing time. Ruffier refused to cancel the hearing.

On May 4, 2007, at 9:18 a.m., Doane faxed to Judge Nelson an “Objection to Hearing on Motion to Compel File from Former Attorney.” The hearing on the motion proceeded ex parte, and it is not clear whether Judge Nelson was aware of Doane’s objection prior to the hearing. In any case, that same day, the trial court issued an order granting Plaintiffs motion to compel the file and requiring Doane to “deliver [Plaintiffs] entire file to William E. Ruffier no later than Friday, May 4, 2007 at 4:00 p.m.” The court ruled “[t]hat the costs to copy the file shall be the responsibility of Gary Doane.” Doane subsequently delivered to Ruffier the copy of the case file. Doane also filed a motion for rehearing, but before the trial court issued an order on Doane’s motion for rehearing, Doane filed this appeal.

Based on the record before us, we have no quarrel with the substance of the appealed order, but we are bound to agree with Doane that he was not given adequate notice of the hearing on the motion to compel and was deprived of his opportunity to be heard on his claim that Ruffier requested a copy of the file and agreed to pay for it. Absent consent of counsel or some exigent circumstances not present here, twenty-four hours’ notice of a hearing on a contested issue is insufficient to meet the demands of procedural due process or the requirements of Florida Rule of Civil Procedure 1.090(d).

Rule 1.090(d) provides that “[a] copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing.” “While there are no hard and fast rules about how many days constitute a ‘reasonable time,’ the party served with notice must have actual notice and time to prepare.” See Klinker v. Klinker, 712 So.2d 850 (Fla. 5th DCA 1998). See also Crepage v. City of Lauderhill, 774 So.2d 61, 64 (Fla. 4th DCA 2000); Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996). Accordingly, we vacate the appealed order and remand for a hearing after reasonable notice to both affected parties.

Order VACATED and REMANDED.

THOMPSON and PLEUS, JJ., concur.

      . Specifically, in his March 19, 2007 letter, Ruffier wrote:
      I do need the complete file to effectively represent [Tryzbiak] in this case, and have told you that I am willing to protect your costs and your fee. As I understand you have filed a lien in the case, and we would certainly have that heard before distributing any funds recovered.
      In a letter dated March 21, 2007, Doane acknowledged receipt of Ruffier’s March 19, 2007 letter.

      . Doane agrees that he received the signed closing statement from Plaintiff.


author: PLEUS, J.

text:
    The STERITECH GROUP, INC., Appellant, v. Cassandra E. MacKENZIE, Appellee.
    No. 5D07-1607.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.

      Victor L. Chapman and R. Steven Ruta, of Barrett, Chapman & Ruta, P.A., Orlando, for Appellant.
    William G. Osborne, of William G. Osborne, P.A., Orlando, for Appellee.
   PLEUS, J.

The Steritech Group, Inc. (“Steritech”) appeals a trial court order denying its motion to compel arbitration. Steritech argues that the trial court erred in finding that Cassandra MacKenzie was not party to an arbitration agreement and that her claim did not present an arbitrable issue. We agree and reverse.

In 1997, David MacKenzie executed an Amended and Restated Shareholder Agreement (“Shareholder Agreement”) with Steritech. The Shareholder Agreement contained the following arbitration clause:

Arbitration. If any controversy or claim arising out of this Agreement cannot be settled by the parties, it shall be settled by arbitration in accordance with the rules of the American Arbitration Association then in effect....

Six weeks later, David and Cassandra MacKenzie executed an Acknowledgment and Agreement for Division of Marital Property (Acknowledgment). The Acknowledgment provided that Mrs. Mac-Kenzie could not become a legal owner of Steritech stock upon divorce or separation. Instead, the Acknowledgment granted Steritech the right to repurchase the shares at market value in the event of an involuntary transfer of marital property. Specifically, the Acknowledgment states:

1. Acknowledgement of Options. The Spouse [Cassandra MacKenzie] hereby joins as a party to the Agreement for the purpose of acknowledging and agreeing to be bound by the grants of the purchase option in the Shares ... first to the Corporation, then to the other Shareholders, in the event Shares are involuntarily transferred to Spouse as a result of divorce or separation.
2. Determination of Purchase Price. The purchase price to be paid to the Spouse for the affected stock or for any proportionate interest held by the Spouse in the affected Shares and the terms of payment shall be determined in accordance with Sections 2.6, 2.7 and 2.8 of the Agreement.

The Acknowledgment expressly references 2.6-2.8, the provisions dealing with formulae for valuation. Section 2.6 entitled, “Determination of Purchase Price,” explicitly provides that any disagreements concerning calculations giving rise to the Purchase Price as determined by the corporation’s Treasurer “shall be submitted to arbitration in accordance with Section 6.7.” However, section 2.3, regarding triggering dates, is not referenced in the Acknowledgment and would have to be interpreted from the original contract. Steritech argues that the Acknowledgment makes Cassandra MacKenzie a party to the original Shareholder Agreement, including the arbitration clause therein. We agree.

The dispute between Steritech and Cassandra MacKenzie is whether Steritech paid her the appropriate value for her interest in her husband’s shares. In 2003, David and Cassandra MacKenzie separated and executed an agreement regarding division of marital property, which recognized that Cassandra MacKenzie was enti-tted to one-half the value of the stock. However, the final dissolution judgment was not entered until 2005. Under the terms of the Acknowledgment, Steritech’s right to repurchase is triggered when there is an involuntary transfer of shares. Following the dissolution, when Steritech learned of the 2003 agreement, it informed David MacKenzie that 2003 was the triggering date for the buy back provision. Accordingly, Steritech repurchased the shares and paid Cassandra MacKenzie the value from 2003, which was $230,025.73 less than the value on the date of final dissolution.

Cassandra MacKenzie sued for conversion based on the theory that Steritech wrongfully retained the $230,000.00. Ster-itech sought to compel arbitration and the trial court denied the motion. Steritech argues that Cassandra MacKenzie became a party to the Shareholder Agreement by signing the Acknowledgment. Additionally, Steritech argues that the dispute over the triggering date for its right to repurchase and the corresponding value of the shares is an arbitrable issue.

“This court reviews de novo a trial court’s ruling on a motion to compel arbitration.” Avid Eng’g, Inc. v. Orlando Mkt., Ltd., 809 So.2d 1, 3 (Fla. 5th DCA 2001). A ruling on a motion to compel arbitration is a question of law whereby the court must consider: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Id.

The first question on review of a motion to compel arbitration is whether an agreement to arbitrate exists. Id. Steritech argues that because Cassandra MacKenzie signed the Acknowledgment that referenced the Shareholder Agreement, she is bound by the arbitration clause in the Shareholder Agreement. Because the language of the Acknowledgment clearly states that Cassandra MacKenzie joined the Shareholder Agreement, she is a party to that agreement and is bound by the mandatory arbitration clause therein.

An agreement to arbitrate, arising out of a contractual obligation, is essentially a question of law regarding the construction of that contract. Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999). This means, as with any contract, only those parties who agree to be bound are included in an arbitration agreement. See Liberty Commc’ns v. MCI Telecomms. Corp., 733 So.2d 571, 575 (Fla. 5th DCA 1999) (“Courts are powerless to compel arbitration in the absence of a contract in which both parties have agreed to submit their grievances to arbitration.”). It is not necessary for a party to be a signatory to a contract to be bound by its terms, but ordinary contract law governs such a situation. Id. It is well established law that when a court is interpreting a contract, clear and unambiguous terms should be given their plain meaning. Transamerica Ins. Co. v. Ruthin, 218 So.2d 509, 511 (Fla. 3d DCA 1969). Where there is no facial ambiguity, a provision of a contract should be read according to the common understanding of the terms. Bradley v. Sanchez, 943 So.2d 218, 221 (Fla. 3d DCA 2006).

In the instant case, the language of the Acknowledgment is clear and unambiguous. It states that Cassandra MacKenzie “hereby joins as a party to the Agreement.” (emphasis added). The plain meaning of the language “joins as a party” is that Cassandra MacKenzie joined the Shareholder Agreement just as her husband did six weeks earlier. The Shareholder Agreement contains a mandatory arbitration clause which bound Cassandra MacKenzie at the time she “join[ed] as a party to the [Shareholder] Agreement.” Although the remainder of the clause says: “for the purpose of acknowledging and agreeing to be bound by the grants of the purchase options,” this language does not make the Acknowledgment ambiguous or unclear. It does not limit the extent to which Cassandra MacKenzie joins the Shareholder Agreement; it merely states her reasons for doing so.

Because the Acknowledgment signed by Cassandra MacKenzie clearly states that she joined the Shareholder Agreement as a party, she is bound by the terms of the Shareholder Agreement, including the arbitration provision. Accordingly, Cassandra MacKenzie agreed to arbitrate any claims that arise out of the Shareholder Agreement and her interest in the shares.

The second question we must ask when considering a motion to compel arbitration is whether an arbitrable issue exists. Avid Eng’g, Inc., 809 So.2d at 3. Both “Florida and federal courts construe the scope of arbitration provisions in favor of arbitrability.” Liberty Commc’ns v. MCI Telecomms., 733 So.2d 571, 574 (Fla. 5th DCA 1999) (internal citations omitted). Steritech argues that Cassandra Mac-Kenzie’s claim for conversion is an arbitra-ble issue. She responds that because the cause of action sounds in tort, rather than contract, the cause does not arise out of the Acknowledgment or Shareholder Agreement and is not arbitrable. However, because the common law tort action is sufficiently connected to the contract, Cassandra MacKenzie’s claim presents an ar-bitrable issue.

We have previously recognized that “an agreement to arbitrate in a contract ... does not necessarily mandate arbitration of a subsequent and independent tort action based upon common law duties.” Episcopal Diocese of Cent. Fla. v. Prudential Secs., Inc., 925 So.2d 1112, 1115 (Fla. 5th DCA 2006). The test to determine whether a tort claim falls within a contractual arbitration clause is to ask “whether the tort claim, as alleged in the complaint, arises from and bears such a significant relationship to the contract between the parties as to mandate application of the arbitration clause.” Id. (citing Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999) (internal quotations omitted)).

Following Episcopal Diocese, we again considered the scope of arbitration clauses in Beazer Homes Corp. v. Bailey, 940 So.2d 453 (Fla. 5th DCA 2006). In Beazer, we recognized “that tort claims based on duties that are dependent on the existence of a contract are normally arbitrable” and that “a dispute arises from a contract if it at least raises an issue that requires reference to or construction of some portion of the contract for resolution.” Id. at 461. Thus, it does not matter whether the cause of action is based on statute or common law — -if it is sufficiently connected to and “growing out of a contract which covers the dispute,” then it is subject to arbitration. Id. at 461-62.

In this case, the disputed issues are the proper valuation of the shares owned by David MacKenzie and the triggering date for the company’s right to repurchase Cassandra MacKenzie’s interest. Those issues grow out of a contract that covers the dispute because the contract provides a definition of triggering events in section 2.3 and provides formulae for determining the purchase price in sections 2.6 and 2.7. Both of those questions require reference to the Shareholder Agreement. Accordingly, this is a case where “the tort claim, as alleged in the complaint, arises from and bears such a significant relationship to the contract between the parties as to mandate application of the arbitration clause.” Episcopal Diocese, 925 So.2d at 1115.

REVERSED.

GRIFFIN and THOMPSON, JJ., concur.

      . Waiver of the right to compel arbitration is not an issue in this case. Filing of a motion to stay and compel arbitration is not sufficient participation in a lawsuit to constitute waiver. See, e.g., Hubbard Constr. Co. v. Jacobs Civil, Inc., 969 So.2d 1069 (Fla. 5th DCA 2007).


author: MONACO, J.

text:
    David Eugene GREENE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-365.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

David Eugene Greene appeals the final order of the trial court committing him to the custody of the Department of Children and Families after a jury determined that he was a sexually violent predator pursuant to the Jimmy Ryce Act, otherwise referred to as the Sexually Violent Predator Civil Commitment Act. We affirm.

Mr. Greene first argues that the Act does not apply to him because he was not in custody for a sexually violent offense at the time the petition for commitment was filed. Mr. Greene had, in fact, been convicted of a sexually violent offense in 1995, for which he was placed on community control. He subsequently violated community control and was sentenced to prison. Mr. Greene was released from prison in December of 1998. The effective date of the Jimmy Ryce Act was January 1, 1999, about one month after his release. In August of 1999, Mr. Greene was convicted of stealing an automobile and was sent back to prison. At the conclusion of this prison term the State commenced commitment proceedings and Mr. Greene was transferred to the custody of the Department of Children and Families for secure confinement pending the completion of the Jimmy Ryce commitment action. A jury thereafter found him to be a sexually violent predator, the trial court rendered its final order, and this appeal ensued.

Mr. Greene asserts that section 394.925, Florida Statutes (1999), does not apply to him. That statute reads as follows:

Applicability of act — This part applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.

The issue raised by Mr. Greene appears to have been answered contrary to the argument he makes before us by the Third District Court of Appeal in Ward v. State, 936 So.2d 1143 (Fla. 3d DCA), review granted, 939 So.2d 96 (Fla.2006). After an exhaustive review of section 394.925, our sister court concluded that section 394.925 authorizes the State to seek involuntary civil commitment of a person: (1) who had been convicted of a sexually violent offense before the effective date of the Jimmy Ryce Act and had been totally confined as a result; and (2) who was later placed in total confinement after the effective date of the Act because of a subsequent conviction of a non-sexually violent crime. The Court thereafter certified the following question to the Florida Supreme Court:

WHETHER A PERSON WHO WAS NOT IN CUSTODY ON JANUARY 1, 1999, IS ELIGIBLE FOR CIVIL COMMITMENT UNDER THE JIMMY RYCE ACT IF THAT PERSON WAS SENTENCED TO TOTAL CONFINEMENT AFTER JANUARY 1, 1999, BUT THE QUALIFYING CONVICTION OCCURRED. BEFORE JANUARY 1,1999.

We agree with the majority opinion in Ward and likewise certify this question to the Florida Supreme Court as one of great public importance. We do so in part because Hale v. State, 891 So.2d 517 (Fla.2004), cert. denied, 546 U.S. 828, 126 S.Ct. 39, 163 L.Ed.2d 75 (2005), strongly suggests that the Ward majority arrived at the correct conclusion. See also Moore v. State, 909 So.2d 500 (Fla. 5th DCA 2005).

Mr, Greene next challenges the constitutionality of that part of the Jimmy Ryce Act that allows hearsay testimony to be admitted in the jury proceedings required by the statute based on the Confrontation Clause of the United States Constitution. See § 394.9155(5), Fla. Stat. (2006). We answered this question contrary to Mr. Greene’s position in Masters v. State, 958 So.2d 973 (Fla. 5th DCA), review denied, 966 So.2d 967 (Fla.2007), and see no reason to recede from our ruling.

We have reviewed the other matters raised by Mr. Greene and have determined that none are meritorious. Accordingly we affirm.

AFFIRMED.

ORFINGER and LAWSON, JJ., concur.

      . §§ 394.910-.932, Fla. Stat. (2006).


text:
    Daniel CLIATT, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-813.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Cliatt was adjudicated guilty of five first degree felonies, seven second degree felonies, and one third degree felony. The felonies occurred between October 1, 2004 and April 23, 2005. His Criminal Punishment Code scoresheet of 880.1 total sentence points created a lowest permissible prison sentence of 53.25 years. Pursuant to section 921.0024(2), Florida Statutes (2004), the trial court was authorized to sentence Cliatt to life imprisonment:

The lowest permissible sentence is the minimum sentence that may be imposed by the trial court absent a valid reason for departure.... If the total sentence points are greater than or equal to 363, the court may sentence the offender to life imprisonment....

Instead, the trial court sentenced Cliatt to a composite sentence of seventy years imprisonment followed by life probation. This composite sentence was achieved by Cliatt being sentenced to thirty years on each of the first degree felonies and either ten or fifteen years on the second degree felonies with some of the sentences running consecutive and some of the sentences running concurrent. Except as to the third degree felony, life probation was imposed on each count.

Because the trial court did not exercise its discretion to impose life imprisonment, it could not impose a sentence in which the total of the incareerative term and the probationary term exceeded the maximum sentence for a particular offense. Carter v. State, 920 So.2d 735 (Fla. 5th DCA 2006).

On remand, the trial court may restructure its sentence to try to achieve its original sentencing goal; provided, that absent an intervening event which would justify a greater sentence, the new sentence shall not be a more severe sentence than the sentence originally imposed. Blackshear v. State, 531 So.2d 956 (Fla.1988).

REVERSED and REMANDED for Re-sentencing.

PLEUS, MONACO and EVANDER, JJ., concur.


text:
    Michael A. ANGLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-3755.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.
    Michael A. Anglin, Indiantown, pro se.
    No Appearance for Respondent.
   MONACO, J.

The instant petition for belated appeal filed by Michael A. Anglin is dismissed without prejudice to his filing of an appeal once the trial court disposes of his motion made pursuant to rule 3.850, Florida Rules of Criminal Procedure, with finality. See Edler v. State, 673 So.2d 970 (Fla. 1st DCA 1996). It is clear from the record that the trial court has not yet entered a final appealable order for this court to consider. Once the trial court renders a final appeal-able order on grounds one and two of Mr. Anglin’s motion for relief in accordance with rule 3.850, Mr. Anglin will have 30 days from the rendition of that order to appeal any unfavorable ruling. See Leger v. State, 818 So.2d 697 (Fla. 5th DCA 2002).

PETITION DISMISSED.

GRIFFIN and LAWSON, JJ„ concur.


text:
    Waynard DUAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0132.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2007.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Office of the Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

Appellant Waynard Duan argues that his jury conviction for extortion, pursuant to section 836.05, Florida Statutes (2006), should be reversed because the statute does not apply to conduct which injures only the victim’s mental well being. We hold that the trial court did not err by denying the appellant’s motion for acquittal and instructing the jury that “[a] threat to a person’s mental well-being can constitute a threat of injury to a person within the meaning of extortion. An injury to a person is not required to be a physical injury.”

I. BACKGROUND

Mrs. Bailey testified she first met appellant in December 2005, through a mutual friend, Troy Kelley. The three worked together for America Online and became friends, meeting socially after work or on the weekends. After several months, Mrs. Bailey confided in appellant and Mr. Kelley that her husband, Robert Bailey, was physically abusive; Mrs. Bailey testified she remembered telling appellant and Mr. Kelley details of the abuse, and that she was scared of her husband. In February 2006, Robert Bailey was arrested on domestic violence charges. His trial was scheduled for May 30, 2006. Appellant and Mr. Kelley were subpoenaed as witnesses.

Subsequently, in March 2006, Mrs. Bailey explained she and Mr. Kelley had a “falling out.” She testified Mr. Kelley confessed he had feelings for her, and told her he wanted to be more than friends; she refused. Their conversation escalated into a heated argument, and ultimately she demanded he leave. Mrs. Bailey testified that after their argument things between them remained tense. She no longer socialized with either Mr. Kelley or the appellant.

A week before her husband’s trial, Mrs. Bailey received a phone call at home, just before midnight. She recognized appellant’s voice as the caller. Appellant told her he knew of several witnesses subpoenaed to testify at the trial, and that he would make sure her husband was acquitted unless she agreed to pay him $2,500. The two arranged to meet in the early morning hours of May 24, 2006, in the parking lot of a grocery store in Duval County. Mrs. Bailey recorded the meeting, which was played for the jury. On the tape, appellant reasserted his threat to make sure Robert Bailey got out of jail; he stated that if Mrs. Bailey did not pay him the $2,500, he and the other witnesses would “walk in there and say we don’t know anything.” Mrs. Bailey is also heard on the tape, pleading with appellant: “It’s not what I want. It’s what’s right. Plain and simple. It’s what’s right. He abused me for four ... years. I cried on my way home every day wondering if he was going to beat me again. It’s not what I want. It’s what’s right.”

At the end of their meeting, Mrs. Bailey told appellant she needed a few days to think about his offer. Later that day, Mrs. Bailey met with the Assistant State Attorney and Officer Brian Welch, and turned over the recorded conversation. The State subsequently filed the charges for extortion.

At the conclusion of the State’s case, appellant moved for a judgment of acquittal, arguing the State failed to prove each element of extortion. Specifically, he asserted there was no evidence he physically threatened the victim, that he implied harm to her property, or otherwise that he threatened to reveal a secret or damage her reputation; rather, the evidence only showed the victim suffered a mental injury, or an injury to her emotional well-being. Appellant argued the victim’s mental injury was insufficient to meet the elements of extortion, set forth in section 836.05, Florida Statutes.

In response, the State conceded that there was no evidence appellant threatened to reveal a secret about the victim, nor was there evidence appellant threatened to reveal information which would damage the victim’s reputation. Similarly, the State conceded there was no evidence that appellant threatened injury to Ms. Bailey’s property. Finally, and significantly, the State conceded there was no evidence that appellant threatened physical injury. The State argued, however, that the case law supports the conclusion that the crime of extortion encompasses threats which cause the victim mental or emotional injury. Ultimately, the trial judge agreed, and denied appellant’s motion.

During the conference on jury instructions, appellant renewed his objection to the court’s earlier ruling that “injury to the person,” as that phrase is used in the extortion statute, does not contemplate a mental injury. The trial court denied appellant’s objection. Accordingly, the jury was instructed as follows:

Waynard Yinn Duan, the defendant in this case, has been accused of the crime of extortion. To prove the crime of extortion, the State must prove the following four elements beyond a reasonable doubt: (1) Waynard Yinn Duan made a verbal communication to Daina Marie Bailey; (2) by such communication Waynard Yinn Duan unlawfully threatened an injury to the person of Daina Marie Bailey; (3) the threat was made maliciously; (4) the threat was made with the intent to extort money or any pecuniary advantage.
A threat to a person’s mental well-being can constitute a threat of injury to a person within the meaning of extortion. An injury to a person is not required to be a physical injury.

The jury returned a verdict finding appellant guilty of extortion as charged in the information. He was sentenced to one year in prison. Appellant presently appeals his judgment and sentence.

II. ANALYSIS

In this appeal, appellant asserts the trial court erred in denying his motion for judgment of acquittal, because section 836.05, Florida Statutes, does not include threats of injury to the victim’s mental or emotional well being for the purpose of extorting money or other pecuniary gain. Section 836.05, Florida Statutes, provides:

Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace,, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree.

§ 836.05, Fla. Stat. (2006) (emphasis added).

Accordingly, to prove extortion, “it is incumbent upon the prosecution to show that there was a malicious threat of injury against a person, which was communicated ... for the purpose of compelling that person to commit an act or to refrain from acting against his will.” Dudley v. State, 634 So.2d 1093, 1094 (Fla. 2d DCA 1994). “Neither the actual intent to do harm nor the ability to carry out the threat is essential to prove that extortion occurred.” Id.

Moreover, while generally a claim of extortion cannot be predicated on a threat to do an act which a person has a lawful right to do, one may not threaten to undertake an otherwise legal act to his own pecuniary advantage. See Berger v. Berger, 466 So.2d 1149 (Fla. 4th DCA 1985). Thus, in this case, to the extent appellant had a legal right, and indeed an obligation, to testify at Robert Bailey’s trial, he may not threaten to testify falsely in order to extort money from the victim, Mrs. Bailey.

On appeal, the State presented two theories which, it contends, support the jury’s verdict. First, it argues there is evidence, construed in a light most favorable to the State, that appellant threatened physical injury to Mrs. Bailey. Indeed, there is an argument that appellant knew Robert Bailey’s history of physical abuse, and that his threat to ensure Mr. Bailey’s release from prison could cause Mrs. Bailey physical injury. Nonetheless, in the hearing on the motion for judgment of acquittal, the State conceded appellant did not threaten physical injury, and thus waived the right to raise it on appeal. Moreover, the jury was instructed that “injury to the person” includes physical and mental injury, and it is impossible to tell from the verdict form on which theory the jury relied in convicting appellant. Second, the State asserts the trial court properly construed section 836.05 to include injury to the victim’s mental or emotional well being. This second argument has merit.

Appellant contends this court is obligated, pursuant to section 775.021, Florida Statutes, to strictly construe section 836.05 in his favor. Section 775.021(1) requires that the provisions of the criminal code “be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (2006). Thus, appellant contends, the trial court should have ruled that section 836.05 only contemplates a physical injury, and does not include injuries to the victim’s mental or emotional well being. Still, Florida courts have consistently held that, while criminal statutes must be strictly construed, “they are not to be construed so strictly as to emasculate the statute and defeat the obvious intention of the legislature. In other words, such strict construction is subordinate to the rule that the intention of the lawmakers must be given effect.” State ex rel. Washington v. Rivkind, 350 So.2d 575, 577 (Fla. 3d DCA 1977).

Within section 836.05, there is evidence the Legislature intended the crime of extortion to encompass threats to mental or emotional well being. In particular, the statute expressly prohibits threats to divulge information which would damage the victim’s reputation, or which would expose the victim to disgrace, as well as threats to reveal private secrets. These types of threats, carried out, could certainly cause the victim mental or emotional stress. As the State asserts, their inclusion suggests the Legislature intended to criminalize conduct or threats of psychological injury for the purpose of securing money or other pecuniary gain. As further evidence of the Legislature’s intent, the phrase “injury to the person” is not further modified as a “bodily injury” or “physical injury” to the person, and thus includes both physical and mental injuries.

It appears this is a case of first impression in Florida. Accordingly, no Florida court has ruled that section 836.05 excludes threats which cause the victim only a mental or emotional injury. This issue has been considered in other jurisdictions, with mixed results. In State v. Simmons, 114 R.I. 16, 327 A.2d 843 (1974), the Supreme Court of Rhode Island ruled that Rhode Island’s extortion statute, which makes it a crime to maliciously threaten an injury to the person of another, contemplates only the “peril of actual bodily harm.” Id. at 845. The court held the statute “does not include danger to reputation alone.” Id. However, Simmons is distinguishable from the instant case, namely because Florida’s extortion statute expressly includes threats to the victim’s reputation.

In contrast, several other jurisdictions have ruled that extortion statutes do encompass psychological injury. It appears the most recent case to reach the issue is State v. Galusha, 164 Vt. 91, 665 A.2d 595 (1995). In that case, the Vermont Supreme Court reversed a trial court order dismissing extortion charges against the defendant, Harold Galusha, on grounds that the defendant did not threaten to physically injure his victim. As in Simmons, the court was asked to decide whether Vermont’s extortion statute, and the phrase “injury to the person,” includes injury other than physical harm. Id. at 596. The supreme court noted it was constrained by the maxim that penal statutes should be construed in a manner most favorable to the accused. Id. Nonetheless, the court held,

[T]he legislative intent in enacting extortion statutes is to prevent the use of fear (a mental state) to compel a victim to submit to the extortionist’s will.... If the legislature had intended “injury to the person” to mean only bodily injury, it would have used the term bodily or physical injury.

Id. at 597; see also Commonwealth v. Miller, 385 Mass. 521, 432 N.E.2d 463, 467 (1982) (holding that where the defendant threatened to reveal his sexual relationship with the victim to her parents, and to disclose revealing photos of the victim, “the victim would have suffered a blow to her reputation of such magnitude as to cause her severe mental anguish which would constitute injury to the person.... Simply stated, an injury to a person’s reputation is an injury to the person.”).

Conclusion

Therefore, we hold that Florida’s extortion statute, section 836.05, does encompass injuries, such as the one in this case, where appellant threatened the victim and caused her emotional distress. As in Ga-lusha, appellant used Mrs. Bailey’s fear of her husband and his continued abuse to compel her to pay appellant $2,500. No Florida case suggests that this conduct is not included under section 836.05. Rather, the language of the statute itself suggests that threats to cause mental or psychological injuries are generally prohibited under the statute.

AFFIRMED.

WEBSTER, PADOVANO, and POLSTON, JJ., concur.


text:
    Reginald C. HAWKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1160.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2007.
    Reginald C. Hawkins, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the lower tribunal’s order denying motion to correct sentence, rendered on or about May 16, 2006, in Gadsden County Circuit Court case number 99-85CFA, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

BARFIELD, KAHN, and POLSTON, JJ., concur.


text:
    Raymond J. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2203.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2007.
    Raymond J. Carter, pro se, Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Raymond J. Carter, appeals the trial court’s summary denial of his postconviction relief motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the order as to the trial court’s denial of appellant’s claim that defense counsel was ineffective for failing to call Mary Peeples as a witness because the claim is conclusively refuted by the record. However, appellant’s remaining claims, which are facially sufficient, are not conclusively refuted by record attachments. See Peede v. State, 748 So.2d 253, 257 (Fla.1999) (“To uphold a trial court’s summary denial of claims raised in a rule 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.”).

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for an evidentiary hearing or for the court to attach those portions of the record that conclusively refute the remaining claims.

BROWNING, C.J., BARFIELD, and DAVIS, JJ., concur.


text:
    Daniella P. CHACOA, Appellant, v. Benjamin M. MAHON, Appellee.
    No. 1D07-3139.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2007.
    Nancy Faggianelli, and Erin Kinney of Carlton Fields, P.A., Miami, for Appellant.
    Benjamin M. Mahon, pro se, Appellee.
   PER CURIAM.

Appellant, who sought an injunction for protection against domestic violence in the trial court, now seeks review of that portion of the trial court’s order granting her petition which required her to attend a batterer’s intervention program. Because the plain language of section 741.30, Florida Statutes (2007), does not authorize a trial court to order a petitioner for an injunction for protection against domestic violence to attend a batterer’s intervention program, we vacate that portion of the trial court’s order that did so, and remand with directions that the trial court strike from its order that portion which required appellant to attend a batterer’s intervention program.

VACATED IN PART and REMANDED, with directions.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Jilla UNDERWOOD, Appellee.
    No. 1D07-4463.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2007.

      G. Alan Howard and Robert M. Dees of Milam Howard Nicandri Dees & Gillam, P.A., Jacksonville, for Appellant.
    James M. Messer of Messer Law Firm, P.A., Pensacola, for Appellee.
   PER CURIAM.

Upon consideration of the parties’ joint motion for reversal based on confession of error, the final summary judgment being appealed herein is reversed, and the matter is remanded to the lower tribunal for further proceedings. See Florida Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815 (Fla.2007).

REVERSED and REMANDED.

BARFIELD, KAHN, and POLSTON, JJ., concur.


text:
    Jeffrey M. SUCATO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4820.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2007.
    Jeffrey M. Sucato, pro se.
    Bill McCollum, Attorney General; C. Bowen Robinson and Philip W. Edwards, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the lower tribunal’s order denying petitioner’s motion for postconviction relief, rendered on or about May 1, 2007, in Suwannee County Circuit Court case number 2001-187-CF, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BARFIELD, KAHN, and POLSTON, JJ., concur.