text:
    Drew C. HARTLEY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-1167.
    District Court of Appeal of Florida, First District.
    June 9, 2006.
    Drew C. Hartley, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The instant petition for writ of mandamus presents a challenge to a circuit court order which requires petitioner to comply with section 57.085, Florida Statutes, in order to proceed with his petition filed in that court. Even if petitioner is correct that his circuit court case is a “collateral criminal proceeding,” he must be certified as indigent under section 57.081 in order to obtain a waiver of the circuit court’s filing fee. Schmidt v. Cru soe, 878 So.2d 361, 367 n. 7 (Fla.2003); Small v. Crosby, 877 So.2d 911 (Fla. 4th DCA 2004). The circuit court order on indigency, however, is neither appealable nor reviewable by extraordinary writ because any error can be remedied on appeal from a final order. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Steele v. Crosby, 920 So.2d 117 (Fla. 1st DCA 2006). The petition for writ of mandamus is therefore denied without prejudice.

PETITION DENIED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


source: Caselaw Access Project

author: COPE, C.J.

license: Public Domain

text:
    Juan SUAREZ, Appellant, v. SABERLO FAMILY LIMITED PARTNERSHIP, Appellee.
    No. 3D04-1398.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 2006.
    Rehearing Denied Feb. 12, 2007.
    Pedro F. Martell; Alayon & Associates, Coral Gables, and Richard A. Alayon; Paul Morris, Miami, for appellant.
    Albert D. Rey, Miami, for appellee.
    Before COPE, C.J., and FLETCHER and RAMIREZ, JJ.
   COPE, C.J.

This is an appeal of a final order dismissing a second amended complaint for specific performance with prejudice. We conclude that the trial court erred by declaring the contract illusory, and remand for further proceedings.

The plaintiff Juan Suarez (“Buyer”) entered into a contract with the defendant Saberlo Family Limited Partnership (“Seller”) to purchase vacant land. The contract contained a Feasibility Study provision. This provision stated, in part:

(1) Feasibility Study: Buyer will, at Buyer’s expense and within 30 days from Effective Date (“Feasibility Study Period”), determine whether the Property is suitable, in Buyer’s sole and absolute discretion, for - use....
Buyer will deliver written notice to Seller prior to the expiration of the Feasibility Study Period of Buyer’s determination of whether or not the Property is acceptable. Buyer’s failure to comply with this notice requirement will constitute acceptance of the Property as suitable for Buyer’s intended use in its “as is” condition. If the Property is unacceptable to Buyer and written notice of this fact is timely delivered to Seller, this Contract will be deemed terminated as of the day after the Feasibility Study period ends and Buyer’s depos-ites) will be returned after Escrow Agent receives proper authorization from all interested parties.

(Emphasis added).

According to the second amended complaint, the Buyer and Seller thereafter agreed that the Buyer would accept the property in “as is” condition. On April 9, 2003, the Buyer notified the Seller in writing that the Buyer was ready, willing and able to close at any time upon satisfaction of the requirements set forth on the title insurance commitment. On April 15, 2003, the Seller sent a letter to the Buyer stating that the contract was not a valid agreement and that the agreement was not executed by the general partner as required by law. Thereafter the Buyer sent two additional letters demanding a closing but the Seller did not do so.

The Buyer filed this action for specific performance. The trial court dismissed the second amended complaint with prejudice on the theory that the contract was illusory. The Buyer has appealed.

The trial court was troubled by the fact that the parties had left a blank space in the portion of the Feasibility Study paragraph where the Buyer should have stated the intended use of the property. In the trial court’s view, leaving the blank space allowed the Buyer an unfettered right to cancel the contract within the thirty-day period. The court ruled that the contract was illusory and lacking in mutuality.

We must respectfully disagree with the trial court’s analysis. The contract allowed a thirty-day period for the Feasibility Study. Prior to the expiration of the Feasibility Study period, the Buyer had to advise the Seller whether or not the property was acceptable. If the Buyer failed to give the notification prior to the end of the Feasibility Study period, then the Buyer’s failure to comply “constitute[d] acceptance of the Property as suitable for Buyer’s intended use in its ‘as is’ condition.”

The parties appear to agree that leaving the blank in the Feasibility Study provision rendered the contract illusory until that condition was satisfied or waived. See Pan-Am Tobacco Corp. v. Dept. of Corrections, 471 So.2d 4, 5 (Fla.1984); Pick Kwik Food Stores, Inc. v. Tenser, 407 So.2d 216, 218 (Fla. 2d DCA 1981); Parker v. Weiss, 404 So.2d 820, 821 (Fla. 1st DCA 1981). For present purposes we assume, but need not decide, that is so.

The second amended complaint sufficiently alleges both an explicit and implicit waiver of the Feasibility Study provision. It is alleged that the Buyer agreed with the Seller that the Buyer would accept the property in its “as is” condition. This is an allegation of an explicit waiver. The second amended complaint also attached three letters in which the Buyer demanded a closing. Such a demand to close constitutes an implicit waiver.

The trial court reasoned, however, that the Seller had canceled the contract in its April 15 letter, which was before the expiration of the Feasibility Study period, and that such cancellation was legally effective to terminate the contract. We must respectfully disagree. The second amended complaint alleges that (a) the Buyer and Seller agreed that the Buyer would take the property as is, and (b) the Buyer sent the April 9 letter requesting a closing. Either of those acts was sufficient to waive the Feasibility Study provision, and both are alleged to have taken place prior to the April 15 letter in which the Seller attempted to cancel the contract. The attempted cancellation came too late. We conclude that the waiver of the Feasibility Study provision removed any issue that the contract was illusory or lacked mutuality. See Mangus v. Porter, 276 So.2d 250, 252 (Fla. 3d DCA 1973).

For the stated reasons, we reverse the dismissal order and remand for further proceedings consistent herewith.

       There is no indication in the second amended complaint, nor has anyone argued, that any of the issues involved in the title insurance commitment had anything to do with the Feasibility Study provision.


author: FLETCHER, Judge.

text:
    Ana ROSS, etc., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 3D05-1626.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 2006.
    Rehearing and Rehearing En Banc Denied Jan. 25, 2007.
    Downs Brill Whitehead & Sage, Pembroke Pines; Ralph O. Anderson, Davie, for appellant.
    Fowler White Boggs Banker and Hala A. Sandridge and D. Finn Pressly, Tampa; Floyd B. Faglie, Tallahassee, for appellee.

      Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   FLETCHER, Judge.

Ana Ross is the personal representative of the estate of her husband Alexander Ross who sustained fatal injuries in a two-car collision with a car driven by Richard Rebollida, an employee of Equity Financial Corporation. Alexander Ross remained in a coma for several weeks before he died from his injuries.

Pursuant to Florida’s participation in the Medicaid program, the Agency for Health Care Administration [Agency] paid $168,691.58 of Alexander Ross’ medical expenses. In return, the Agency received an automatic lien for the full amount of the medical expenses paid on behalf of Alexander Ross, as provided by Section 409.910(6)(c), Florida Statutes (2002). The Agency filed its lien with the court, putting the personal representative, Ana Ross, on notice of the state’s right to full compensation for the medical expenses it paid on behalf of the decedent, Alexander Ross.

During this time the personal representative brought a wrongful death action against Richard Rebollida and Equity Financial Corporation, which action she settled with the employer for $900,000. The decedent’s uninsured/underinsured policy provided an additional $25,000.

Having received $925,000 in settlement proceeds the personal representative attempted to allocate the sum among the survivors, the attorneys and the Agency, allocating for the Agency an amount that satisfied just 25% of the total Medicaid lien. The trial court granted the allocation with the exception that the court ordered payment to the Agency of the full amount of the Medicaid lien of $168,691.58. This appeal followed.

Contrary to the personal representative’s contention, she does not have the right to allocate the settlement funds in such a manner that the Agency receives less than the full amount of its expenditures for medical assistance. Strafford v. Agency for Health Care Admin., 915 So.2d 643 (Fla. 2d DCA 2005) (“Following a settlement, the court is required to segregate an amount sufficient to repay the Agency’s expenditures for medical assistance and shall order this amount to be paid directly to the Agency.”). The Wrongful Death Act does not alter this requirement. Englich v. Agency for Healthcare Admin., 916 So.2d 994 (Fla. 4th DCA 2005).

Accordingly the trial court’s allocation order is affirmed.

      . We note that pursuant to Section 409.910(1 l)(f)(l), Florida Statutes (2002), Medicaid is to be fully reimbursed unless full reimbursement would take away more than half of a third party benefit. Such is not the case here.


author: WELLS, Judge.

text:
    F.H., a juvenile, Petitioner, v. Dale DOBULER, Superintendent Miami-Dade Regional Juvenile Detention Center and the State of Florida, Respondents.
    No. 3D06-2234.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2006.

      Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for respondents.
    Before RAMIREZ, WELLS, and CORTIÑAS, JJ.
   WELLS, Judge.

F.H. petitions for a writ or habeas corpus seeking release from secure detention following commitment and pending placement in a high-risk residential program. The State argued below, and the trial court apparently agreed, that séetion 985.215(10)(c) of the Florida Statutes permits a child to be held in secure detention without meeting statutory detention criteria. In J.W. v. Leitner, 801 So.2d 295, 296 (Fla. 2d DCA 2001), the Second District Court of Appeal rejected this argument, stating:

The State argues that section 985.215(10)(c), Florida Statutes (2001), governs the detention of children awaiting placement in a high-risk residential program and authorizes secure detention regardless of whether the child meets detention criteria. We disagree. Section 985.215(10)(c) reads: “If a child is committed to a high-risk residential program, the child must be held in detention care until placement or commitment is accomplished.” (Emphasis added.) “Detention care” is not synonymous with “secure detention.” See § 985.03(19) (defining three types of detention care, one of which is secure detention). Thus, section 985.215(10)(c), by its terms alone, does not mandate or even authorize secure detention. We reach our conclusion that secure detention may only be utilized if detention criteria are met by reading subsection (10)(c) within the context of other subsection (10) provisions.

We agree with this assessment. Apparently so does the State which responds to the instant petition by arguing only that a more restrictive placement than that indicated by F.H.’s risk assessment may be ordered under section 985.215(2)(j), Florida Statutes (2005), which provides for such a deviation when: “the court shall state, in writing, clear and convincing reasons for such placement.” § 985.215(2)(j), Fla. Stat. (2005).

On the State’s concession that no written order has been provided, and its reliance on only section 985.215(2)(j) as supporting the temporary placement at issue, we grant the petition for writ of habeas corpus and order the trial court to either enter a written order in accordance with section 985.215(2)(j) or order F.H.’s release from secure detention to an appropriate level of detention, by 5:00 p.m. on the second business day following the date of this opinion. See D.B. v. State, 848 So.2d 1219, 1219-20 (Fla. 3d DCA 2003) (where trial court failed to state any clear and convincing reasons for a more restrictive placement than that indicated by the risk assessment that “[t]he court may revisit the issue if there is a basis to do so”).

This opinion shall take effect immediately notwithstanding the filing of any motion for rehearing.

Petition granted.


author: PER CURIAM. SHEPHERD, J. FLETCHER, Judge SCHWARTZ, Senior Judge

text:
    Simon LANGDON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2791.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.
    Opinion Granting Clarification Jan. 17, 2007.
    Simon F. Langdon, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michele Samaroo, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

On June 11, 2004, appellant pled guilty to violation of probation and was sentenced to ten years in state prison with credit for time served from March 22, 2004 until appellant’s plea. Appellant filed this Rule 3.800(a) motion alleging entitlement to credit for eighteen months served on a prior violation of probation plea. The trial court denied relief without attaching records. While the State’s appendix appears to refute appellant’s factual allegations, we nevertheless must reverse and remand for attachment of records conclusively showing that the appellant is not entitled to any relief or an evidentiary hearing. See Fut-rell v. State, 932 So.2d 642 (Fla. 4th DCA 2006).

Reversed and remanded for further proceedings.

FLETCHER and SHEPHERD, JJ., concur.

SCHWARTZ, Senior Judge, dissents.

ON MOTION FOR CLARIFICATION

SHEPHERD, J.

We grant the State’s timely motion for clarification pursuant to Florida Rule of Appellate Procedure 9.330(a). Our original opinion reversed the trial court’s summary denial of defendant’s motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.800(a) because the trial court did not attach to its order portions of the transcript conclusively demonstrating that defendant waived entitlement to credit for time served in prison. See Langdon v. State, 947 So.2d 460 (Fla. 3d DCA Oct. 4, 2006); Friss v. State, 881 So.2d 38 (Fla. 5th DCA 2004)(“It is not the defendant’s burden to attach portions of the record showing entitlement to relief, but it is the trial court’s responsibility to attach portions conclusively refuting the claim.”); see also Futrell v. State, 932 So.2d 642 (Fla. 4th DCA 2006); McClain v. State, 629 So.2d 320, 321 (Fla. 1st DCA 1993)(“A trial court’s failure to attach portions of the record refuting the allegations of a rule 3.850 motion cannot be remedied on appeal by the state’s attempt to furnish material refuting the prisoner’s claims.”); Lundy v. State, 912 So.2d 671 (Fla. 3d DCA 2005).

However, Rule 3.800(a) “does not contemplate an evidentiary hearing.” Re-naud v. State, 926 So.2d 1241, 1242 (Fla. 2006). We therefore remand for further proceedings. If the trial court again summarily denies the motion, it shall attach portions of the record showing conclusively that appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).-

Reversed and remanded for further proceedings.

FLETCHER, J., concurs.

FLETCHER, Judge

(concurring).

Here I am caught between two jurisprudential philosophies, the first of which would require our following the law as commanded while the second would have us act in defiance of the law based on “common sense.”

It was Florida Justice Glenn Terrell who wrote “When the law and common sense are in conflict the law must yield.” Apparently, the dissent agrees. I cannot join with Justice Terrell as law as a body is uncommon sense, having been forged, molded, and refined for generations, each adding its hard-earned lessons to the progress of law. While I understand one’s desire to function based on one’s own “common sense,” I distrust common sense as it is only too often wrong. The classic example of common sense in error is the belief once held that the sun circles the earth — which made common sense as the earth was “obviously” a stable platform on which one could safely stand and watch the sun rise and set.

The highly regarded jurist Jeremy Bentham, might agree with the dissent, having quipped “The law is the science of being methodically ignorant of what everybody knows.” Whatever. I choose the law over somebody else’s common sense. Hence, I concur with Judge Shepherd’s opinion.

SCHWARTZ, Senior Judge

(dissenting).

The only issue raised by Langdon’s motion for Rule 3.800(a) relief concerns the failure of the trial court to award him credit for time served from the date of his initial arrest for two counts of burglary with an assault or battery in 2000, rather than the March 22, 2004, date when he was last taken into custody for a second violation of probation which he admitted and for which he was sentenced on June 11, 2004. On this appeal from the denial of that motion, the state, pursuant to our order to file a response, has submitted the transcript of the plea colloquy which contains the following:

DEFENSE: All credit time served.
CORRECTIONS: Credit for time served, Judge?
THE COURT: He gets credit time served since the last book in (sic) date which is March 22nd, 2004.

Thus, it is clear that as a part of the plea bargain, Langdon agreed to the March 22, 2004, date and waived his right to credit for the time previously served. It is a moral certainty, therefore, that the order below denying relief was entirely correct and should be (summarily) affirmed. Instead, the Court reverses. It does so for the overwhelming reason that the trial court did not itself physically “attach” to the order portions of the record showing that he is not entitled to relief. See Fla. R.Crim. P. 3.850(d); Fla. R. App. P. 9.141(b)(2)(D).

There are many reasons why this result is very wrong. First, our duties extend to and are limited to the obligation to render a correct disposition of the particular case before us, not to act as a code enforcement officer searching a record with the Florida rules in hand in order to find and correct any deviation and to punish the violator— in this case, the trial judge himself — by reversing his ultimate decision. See Hall v. State, 444 So.2d 1019,1020 (Fla. 3d DCA 1984)(“Our function is to determine the result of this and every other appeal in accordance with the demands of essential justice to all litigants in the cause. That high purpose is not achieved if a reversal is employed in a criminal case solely to discipline an attorney for misconduct which did not affect the outcome of the trial or the substantial rights of the defendant.”). Such a task lies far beyond our resources and, much more important, far above our poor power to affirm or reverse. The triviality and sheer lack of common sense in doing so in this particular instance is emphasized by the majority’s observation that

nothing in the rules of criminal or appellate procedure precludes the trial court from attaching or incorporating a response from the State which provides the necessary documents.

Op. at 461 n. 2. In other words, the trial court may avoid being reversed the next time by simply detaching the plea colloquy from our files and attaching it to its subsequent order.,

I had also believed, however, that courts should (a) avoid legal wheel-spinning, see State v. Rucker, 613 So.2d 460, 462 (Fla.1993)(condemning legal “churning”), (b) not require the performance of useless or meaningless acts, Dines v. Fla. Unemployment Appeals Comm’n, 730 So.2d 378 (Fla. 3d DCA 1999); see Costarell v. Fla. Unemployment Appeals Comm’n, 916 So.2d 778 (Fla.2005), (c) deny legal effect to technical missteps which affect no one’s substantial rights, Goodwin v. State, 751 So.2d 537 (Fla.1999), and, (d) most pointedly in this case, refuse to require that “the parties and the lower court do the long way what we ourselves should do the short.” Mizell v. State, 716 So.2d 829, 830 (Fla. 3d DCA 1998); State v. Bodden, 756 So.2d 1111 (Fla. 3d DCA 2000). The Court’s opinion is contrary to all of these principles — not to mention the even more significant ones that afford trial court orders a presumption of correctness which it is the duty of the appellant to overcome rather than the trial court to justify, and that mere “harmless error” cannot justify reversal. §§ 59.041, 924.051(7), Fla. Stat. (2006). That it is not only unwise, but unnecessary, to do any of these things is shown by Sweeney v. State, 944 So.2d 474, 2006 WL 3421802 (Fla. 4th DCA Case no. 04D06-4205, opinion filed, Nov. 29, 2006), in which the court held:

Under rule 3.800(a), Appellant challenges the minimum mandatory portion of his 1991 sentence for attempted murder of a law enforcement officer. The lower court dismissed the motion under the belief the issue had been litigated in various rule 3.850 motions or on direct appeal. The lower court failed to attach any document supporting this conclusion and our records reveal none. From the face of the record, Sweeney is not entitled to the relief he seeks. Thus the lower court should have denied relief on the merits and not dismissed the case as procedurally barred. Remand for such an order would be a waste of judicial resources and thus we choose to affirm on the merits. See generally Richardson v. State, 918 So.2d 999, 1004 (Fla. 5th DCA 2006) (refusing to remand where the trial court improperly denied a petition, where dismissal was the proper disposition).

(Emphasis added). Likewise, in Harvester v. State, 817 So.2d 1048, 1049 (Fla. 2d DCA 2002), the court stated:

[A] reversal is often a very inefficient method to address an order that may be deficient only because it has failed to attach one or more essential documents. A reversal often does not result in a new order from the trial court for several months. If the trial court again denies the postconviction motion, invariably the defendant files another appeal. That appeal is often assigned to a new panel of judges who often repeat work performed by the first panel.
In many appeals, this court could determine whether the trial court’s initial order was correct merely by obtaining a few more documents from the trial court record. This ease is a good example of such an appeal. Accordingly, we take this opportunity to announce that when the trial court’s order denying a post-conviction motion references attachments that are not actually attached or requires this court to review an identifiable document from the trial court record that is not attached to the order, this court will exercise its discretion by either relinquishing jurisdiction to the trial court for thirty days for the preparation of an amended order or by ordering the trial court to supplement the record with the necessary records.

(Emphasis added).

In support of its contrary decision, the Court offers only a quotation of the ipse dixit in McClain v. State, 629 So.2d 320, 321 (Fla. 1st DCA 1993), that

[a] trial court’s failure to attach portions of the record refuting the allegations of a rule 3.850 motion cannot be remedied on appeal by the state’s attempt to furnish material refuting the prisoner’s claims.

Op. at 461. Well, why not?

In sum, the majority conclusion is so far opposed to my ideas of what modern decision-making should be about that I would like to express myself in a more emphatic manner. Unfortunately, however, it would be undignified and I am too old to picket the Court. I can only dissent.

      . Although the appellant here raises a Rule 3.800(a) rather than a Rule 3.850 claim, we believe the procedural requirements are essentially the same here. See Fla. R.App. P. 9.141 (b)(2)(A)-(D).

      . We note that nothing in the rules of criminal or appellate procedure precludes the trial court from attaching or incorporating a response from the State that provides the necessary documents. See Futrell, 932 So.2d at 643. Cf. McClain, 629 So.2d at 321.

      . We pause to acknowledge the ear appeal of the dissent. If persuasiveness were the test, we would be tempted to "plead guilty” and succumb. Unfortunately, carefully crafted criminal and appellate rules adopted by the Florida Supreme Court constrain we lesser mortals who serve on this court. While not "too old to picket” in our humble opinion, see infra p. 464, we suggest only to our esteemed senior colleague in the dissent that the proper place to protest in this case is to a court to our north.

      . (A healthy belief although wrong as the Inquisition was in full swing and its CEO did not take kindly to contrary views.)

      . b. 1748; d. 1832.

      . Bentham still attends University College London. (He is well preserved for his years.)

      . It is important to point out that the ten-year sentence imposed for this violation of probation (he had been given eighteen months in prison followed by three more years of probation on an earlier one) would have made little sense if it did not include a waiver of credit for the time served from the initial arrest in 2000, as the law otherwise requires. Fulcher v. State, 875 So.2d 647 (Fla. 3d DCA 2004), case dismissed, 890 So.2d 1114 (Fla.2004).

      . Almost as an aside, I doubt both the wisdom and the theoretical defensibility of requiring, not the clerk, but the court itself — whose rulings are presumptively correct and which is supposed to have no interest in the outcome of the proceeding — to uphold its ruling by mechanically supplying materials in its support.

      . It is doubtful that those humble office appliances — -the stapler, the staple remover and the staple itself — have ever before achieved such lofty significance.

      . What’s more, if the trial court does not undertake this awesome responsibility, this Court will specifically order it to do so. See Brown v. State, 946 So.2d 62, 2006 WL 3734380 (Fla. 3d DCA Case no. 3D05-2834, opinion filed, Dec. 20, 2006).

      . I believe that the majority decision is an unfortunate example of the process Cardozo described as follows:
      Judges march at times to pitiless conclusions under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze, convinced as they plunge the knife that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the altar of regularity.

        Doctor v. State, 677 So.2d 1372, 1373 (Fla. 3d DCA 1996)(specially concurring opinion)(quoting Benjamin Cardozo, The Growth of the Law, in Selected Writings of Benjamin Nathan Cardozo 214 (Margaret E. Hall ed. 1947)), approved, 698 So.2d 1224 (Fla.1997).

      . As stated in Gregory v. Gregory, 289 So.2d 468, 469 (Fla. 2d DCA 1974), quoted in Hill v. Hitt, 778 So.2d 967, 969 n. 6 (Fla.2001)(Pariente, J., specially concurring), holding that an omission from the record should be corrected, if possible, on appeal:
      We see no reason why either appellate decision-making or appellate practice should differ in any substantial way from the manner in which cases are determined and presented in the trial courts: with an equally effective determination that, as far as possible, cases are to be determined on their merits.


author: ROTHENBERG, Judge.

text:
    Dania MUÑIZ and Arturo A. Chao, Appellants, v. CRYSTAL LAKE PROJECT, LLC, Appellee.
    No. 3D05-1997.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.

      Arnaldo Velez, Coral Gables, for appellants.
    G. Richard Strafer, for appellee.
    Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiffs, Dania Muñiz and Arturo A. Chao (“Purchasers”), appeal a final judgment denying their claim for specific performance of a contract to convey land entered into with the defendant, Crystal Lake Project, LLC (“Seller”). The Seller cross-appeals the denial of its counterclaim against the Purchasers for breach of contract. We reverse in part, affirm in part, and remand for further proceedings.

On February 1, 2003, the Purchasers visited the Seller’s sales office and were attended by one of the Seller’s sales representatives, Benjamin Cimino (“Mr. Cimi-no”). Mr. Cimino gave the Purchasers brochures depicting various model homes for sale by the Seller. The Purchasers decided to purchase one of the models in the brochures, the “Vizcaya” model, and entered into negotiations with Mr. Cimino regarding the items to be included in the structure to be built by the Seller. Mr. Cimino prepared a purchase and sale agreement for the Vizcaya model with a total purchase price of $269,990.00 (“Agreement”). Mr. Cimino made two copies of the unexecuted Agreement, added to each of the copies hand-written notations indicating additional options to be included in the structure, and gave both copies to the Purchasers for their respective signatures.

The Purchasers executed both copies of the Agreement and simultaneously made a separate list of additional items they believed were to be included on the subject property. The Purchasers gave this additional option list to Mr. Cimino. This list, however, was never added to nor incorporated by reference into either copy of the Agreement. After executing both copies of the Agreement, the Purchasers retained one copy and Mr. Cimino retained the other copy for transmittal to the Seller for signature by the Seller’s authorized officer. The Seller’s authorized officer ultimately executed the second copy. Although the Purchasers on numerous occasions requested a fully executed copy of the Agreement, it was not provided to them.

The copy of the Agreement retained by the Purchasers and not signed by the Seller’s authorized officer, includes hand-written notations to include the following options in the structure: crown molding; washer and dryer; tub enclosure on the second bathroom upper level; and ceramic tile in all areas except the bedroom. The copy of the Agreement executed by the Seller’s authorized officer contained all of the hand-written notations except for the notation “ceramic tile all area but bedroom.”

Construction of the structure on the property commenced soon thereafter. During late 2003 to early 2004, the Purchasers noticed that the structure was not being built according to their expectations and pursuant to the hand-written notations on the Agreement or the additional option list. The Purchasers consequently went to the Miami-Dade County Building and Zoning Department (“County”) to review the plans that had been approved for the subject property. Realizing that the construction of the structure was not in accordance with the building plans nor with their expectations under the Agreement, the Purchasers reported the Seller to the County. A code compliance officer for the County visited the construction site and ordered corrections to be made to the plans. The Seller thereby made corrections to the building plans.

On February 9, 2004, more than a year after execution of the Agreement and after commencement of construction on the subject structure, the Seller’s attorney, Gilbert Contreras (“Mr. Contreras”), wrote the Purchasers .a letter stating that they were in default of the Agreement due to the Purchasers’ improper and unauthorized entry onto the construction premises. Along with the termination letter, Mr. Contreras sent the Purchasers a check in the amount of their deposit money. The Purchasers have never cashed this check.

On March 12, 2004, the Purchasers filed a complaint for specific performance demanding that the Seller convey the property to them as per the terms of the Agreement and concurrently filed a Notice of Lis Pendens.

During the pendency of the litigation, the Seller received a certificate of occupancy for the subject property. Although the Seller had informed the Purchasers of its intent to terminate the Agreement on February 9, 2004, the Seller nonetheless, on June 18, 2004, sent notice to the Purchasers that a certificate of occupancy had been issued on the subject property, and offered a “walk-through” inspection for June 25, 2004 with closing to follow.

The Purchasers attended the “walk-through” inspection, prepared extensive notes on the items they felt were missing from the structure, and proceeded to the scheduled closing. The Purchasers attended the closing with cash in hand, the required financing in place, and indicated their willingness to close on the subject property despite the notations on the “walk-through punch list.” The Seller, however, notified the Purchasers for the first time, that a necessary condition to proceeding with the closing was that the Purchasers dismiss the pending lawsuit with prejudice and dissolve the lis pen-dens. Although the Purchasers agreed to dismiss the lawsuit without prejudice and dissolve the lis pendens, the Seller refused to close pursuant to its alleged inability to convey marketable title unless the lawsuit was dismissed with prejudice. The Purchasers refused to dismiss the lawsuit with prejudice and consequently the sale transaction was not consummated.

Ultimately, the lawsuit was tried non-jury, and the trial court entered a final judgment denying the Purchasers’ request for specific performance finding (1) that at the time the action was commenced, the structure was only partially completed and the sale of an incompletely constructed home was not what the parties contracted for; and (2) that because the terms of the Agreement were not clear, definite, certain and complete in all of their essential terms, specific performance of the Agreement was not warranted. The trial court further found that the lis pendens statutorily expired on March 12, 2005 per section 48.23, Florida Statutes. As to the Seller’s counterclaim for breach of contract, the trial court denied the claim, specifying that the Seller could not invoke a benefit under a contract that it had declared terminated and cancelled. The trial court reserved jurisdiction to award attorneys’ fees and costs upon proper notice and motion.

The Purchasers appeal the denial of their claim for specific performance, arguing that the trial court abused its discretion in refusing to grant specific performance as the structure was substantially built at the time the lawsuit was commenced and completed by the time of trial. The Purchasers further argue that the trial court abused its discretion in denying specific performance of a contract that was clear, definite, certain, and complete in all of its essential terms. We agree with the Purchasers that the trial court abused its discretion in denying their claim for specific performance.

The decision whether to grant or withhold a judgment for specific performance is a matter within the sound discretion of the trial court which will not be disturbed on appeal unless clearly erroneous. Henderson Dev. Co. v. Gerrits, 340 So.2d 1205, 1206 (Fla. 3d DCA 1976). The exercise of this discretion by the trial court, however, must be legally sound and not arbitrary. Humphrys v. Jarrell, 104 So.2d 404, 410 (Fla. 2d DCA 1958). “[T]he right to exercise this judicial discretion does not extend to the power or authority to contravene the legal requirements which must exist to give a litigant grounds upon which he may invoke the remedy.” Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005)(quoting Howard Cole & Co., Inc. v. Williams, 157 Fla. 851, 27 So.2d 352, 356 (1946)). Thus, “if it appears on appeal that the principles of equity justify specific performance, and no provision of law would be violated by enforcing specific performance, a'decree refusing such relief may be reversed.” Witham v. Shepard, 84 Fla. 75, 92 So. 685, 685 (1922). Equity sometimes “requires us to order that something be done which is just and equitable. Put differently, it is the maxim ‘equity will do what ought to be done.’ ” Demorizi v. Demorizi, 851 So.2d 243, 246 (Fla. 3d DCA 2003).

The interpretation of a contract involves a pure question of law for which this court applies a de novo standard of review. Kissman v. Panizzi, 891 So.2d 1147, 1149 (Fla. 4th DCA 2005). In order for a court to grant specific performance, the parties must have entered into an agreement that is definite, certain, and complete in all of its essential terms. Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So.2d 137, 138 (Fla. 3d DCA 1974); see also 3S0 Michigan Ave., Inc. v. Cambridge Hotel, Inc., 183 So.2d 725, 726-27 (Fla. 3d DCA 1966)(“Specific performance will not be enforced where the contract is not definite and certain as to essential terms and provisions and is incapable of being made so by the aid of legal presumption or evidence of established customs”).

In the instant case, the trial court found that the testimony and evidence failed to meet this standard in light of the conflicting versions of the Agreement and the discrepancies relating to the Purchasers’ additional option list. We disagree.

We note that the trial court itself granted the Purchasers’ ore tenus motion to adopt the fully executed copy of the Agreement as the actual purchase and sale agreement between the parties. Thus, there are no conflicting versions of the parties’ agreement. A review of the fully executed Agreement reflects that it is definite, certain, and complete as to the parties, the description of the property, the contract price, and the financing terms thereof. See Reed v. Howell, 96 Fla. 426, 118 So. 208, 208 (1928)(holding that in order to grant specific performance of a land contract, the contract must sufficiently describe the land and the parties to the agreement); see also AerojeGGeneral Corp. v. Kirk, 318 F.Supp. 55, 65 (N.D.Fla.l970)(specifying that in order to grant specific performance of a contract for the sale of land, the contract must be certain and definite as to (1) the description of the property to be conveyed; (2) the purchase price; and (3) the time and terms of payment of the purchase price (applying Florida law)).

The Agreement specifies that “the Seller agrees to sell, and the Purehaser[s] agree[ ] to purchase, that certain parcel of real property legally described as Unit 4, Block 1 of BALANI SUBDIVISION, according to the plat thereof, as recorded in the Public Records of Miami-Dade County[,] Florida....” The Agreement further specifies the purchase price of the property, the deposit money schedule, the mortgage amount to be obtained by the Purchasers, the mortgage financing conditions, and the ability of the Purchasers to obtain options and upgrades at an additional cost.

As to the conflicting versions of the Purchasers’ additional option list, the Agreement specifically states that for purposes of the options and upgrades, “[a]t the time that the Purchaser[s] select[ ] the [ojption or [u]pgrade the Seller and the Purchaser[s] shall execute an Option and Upgrade Agreement establishing the terms and conditions of the Purchaser[s’] selections. The Option and Upgrade Agreement shall be incorporated into this Agreement.” As the “Option and Upgrade Agreement” was not fully executed by both parties as per the terms of the Agreement, nor was it incorporated by reference thereto, it does not form part of the Agreement and consequently, there are no discrepancies relating to the Purchasers’ additional option list. As the essential terms of the Agreement are clear and definite, we conclude that the Purchasers are entitled to a decree of specific performance.

The Seller argues by way of its counterclaim, that the Purchasers are not entitled to specific performance of the Agreement as the Purchasers breached the Agreement (1) by repeatedly trespassing onto the property without written permission from the Seller and (2) by refusing to dismiss their complaint with prejudice, which the Seller claims precluded closing.

A party who fails to comply with his or her contractual commitments is generally not entitled to require the other party to specifically perform the contract, unless noncompliance was excused or waived. Free v. Free, 936 So.2d 699 (Fla. 5th DCA 2006). Regarding the first claim of noncompliance (that the Purchasers trespassed on the property), we conclude that the Seller waived any noncompliance or breach by the Purchasers by obtaining a certificate of occupancy on the subject property, notifying the Purchasers of the receipt thereof, and scheduling a “walk-through” inspection of the subject property to be followed by the closing on June 25, 2004.

We are equally unpersuaded by the Seller’s second contention, that the Purchasers breached the Agreement by failing to dismiss their complaint with prejudice, as the Agreement does not impose such a requirement. The Seller unilaterally inserted this additional condition into the Agreement at the eleventh hour giving the Purchasers no opportunity to receive their benefit of the bargain as contemplated at the time the Agreement was executed. Consequently, we conclude that the Purchasers did not breach the Agreement by refusing to dismiss the lawsuit with prejudice.

The Seller argued below that its title company and the title insurance underwriter refused to issue a title policy on the subject property because in refusing to issue the title policy they were protecting the mortgagee bank’s lien priority and the Purchasers’ interest in the title. However, the record indicates that the Purchasers’ mortgagee bank was aware of the pending lawsuit between the Purchasers and the Seller and that it nonetheless provided the required financing to the Purchasers. Thus, any alleged concern the Seller may have as to protecting the Purchasers’ mortgagee bank is refuted by the fact that the Purchasers received the required financing and showed up to the closing ready, willing, and able to close on the property.

It also seems disingenuous to us that the Seller in not issuing the title policy argues that it is attempting to protect the mortgagee bank and the Purchasers’ interest in the title. The Agreement itself specifies on numerous occasions that “Purchaser[s] understand! ] that, pursuant to this Agreement, the Property is to be purchased on an all cash basis and that Purchaserfs’] obligations hereunder are not contingent in any fashion upon Purchasers] obtaining financing, nor any conditions imposed by such financing....” Regardless of whether the Purchasers’ mortgagee bank provided the required financing or not, the Purchasers had an obligation to close on the subject property or be considered in default. Clearly, at the time the Seller drafted the Agreement and at the time the parties entered into the Agreement, the Seller had no concern for the mortgagee bank or the Purchasers’ interest in the title as the closing was not “contingent, in any way, upon [the Purchasers] obtaining mortgage financing.” If the Seller really was so concerned about protecting the mortgagee bank and the Purchasers’ interest in the title, then the Seller should have contacted the Purchasers prior to scheduling the closing in order to allow the Purchasers to seek legal advice on whether or not the pending lawsuit created a problem for the required financing and the title policy. The Seller, however, did not do so and only at the eleventh hour unreasonably refused to close on the property even though the Purchasers arrived at the scheduled closing with cash in hand and the required financing in place.

The Seller has failed to provide any law that a mortgagee bank does not have priority to the property over the purchaser when it provides financing to the purchaser who is involved in a lawsuit with the seller. Nor has the Seller provided any case law establishing that a pending lawsuit between a purchaser and a seller creates a problem in the title passing between those particular parties. Our review of the case law, however, indicates the contrary result as any “lien” the purchaser may have on the property because of his or her lawsuit with thé seller is automatically resolved when the title passes.

The record further reflects that the Seller’s title company would not issue the title policy because the pending lawsuit and the lis pendens on the property rendered the title of the subject property unmarketable. However, as already noted, the notice of lis pendens statutorily expired on March 12, 2005, and is therefore, a non-issue. As to the pending lawsuit between the Purchasers and the Seller, we conclude that it does not render the title to the subject property unmarketable.

Florida case law specifies that pendency of litigation initiated by a third party seeking specific performance of a pre-existing contract for sale of property renders the seller’s title unmarketable. Chafetz v. Price, 385 So.2d 104, 105-06 (Fla. 3d DCA 1980). In order for the title on the property to become marketable, that third party must dismiss the specific performance lawsuit with prejudice. ■ Id. at 106. Florida case law, however, is silent on whether pending litigation between the seller and the purchaser must be dismissed with prejudice in order to render the title on the subject property marketable.

Other jurisdictions have held that a dispute between a seller and a purchaser, as well as the threat of future litigation between that same seller and purchaser, does not affect the marketability of the title as between those particular parties. The marketability of title between a seller and purchaser is necessarily resolved if title passes. Ingram v. Kasey’s Assocs., 328 S.C. 399, 493 S.E.2d 856, 862 (Ct.App.1997), rev’d on other grounds, 340 S.C. 98, 531 S.E.2d 287 (2000); see also Bart v. Wysocki, 558 So.2d 1326, 1329 (La.Ct.App.l990)(“Title is deemed unmer-chantable only when there are outstanding rights in a third person of a substantial nature against the property, subjecting the vendee to serious litigation.”); Langford Land Co. v. Dietzgen Corp., 352 So.2d 386, 388 (La.Ct.App.l977)(holding that, in seeking to establish that title is unmerchanta-ble, “one must show that third persons (not parties to the action) might thereafter make claims of a substantial nature against the property, and thereby subject the vendee to serious litigation”). We adopt this view and hold that a dispute between the seller and the purchaser, as well as the threat of litigation relating to the seller and purchaser’s transactions, does not affect the marketability of title between those particular parties. Consequently, in this case, as the instant litigation does not involve a third party, we conclude that the current dispute or any potential litigation between the Purchasers and the Seller does not affect the marketability of title to the specific property at issue.

Accordingly, we affirm the trial court’s denial of the counterclaim based upon our conclusions that (1) the Seller waived any noncompliance or breach by the Purchasers resulting from the Purchasers’ unauthorized trespass onto the subject property, and (2) the Purchasers did not breach the Agreement by refusing to dismiss the lawsuit and lis pendens with prejudice.

We further find that although both parties have continuously demanded their respective attorneys’ fees and costs throughout the proceedings, and although the trial court reserved jurisdiction to award attorneys’ fees and costs, neither party is entitled to attorneys’ fees or costs. The Agreement between the parties specifically states that “[e]ach of the parties shall be liable for payment of their respective attorneys’ fees, including attorneys’ fees at appellate proceedings, and costs incurred by each party by virtue of any litigation brought pursuant to this Agreement.” Thus, each party is to bear its own attorneys’ fees and costs.

Accordingly, we reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.

      . Because the Purchasers never received an executed copy of the Agreement until after the lawsuit was commenced, they were unable to attach a fully executed copy thereof to their original complaint. Apparently, it was.not until close to trial that the Purchasers were able to obtain the fully executed version. Purchasers thus moved ore terms during trial to adopt the fully executed copy as the purchase and sale agreement for purposes of their specific performance claim. The trial ■ court granted the ore terms motion and thus, this fully executed copy of the Agreement is the version that constitutes the binding contract between the parties.

      . The trial court correctly found that the Notice of Lis Pendens in this case expired on March 12, 2005. See § 48.23(2), Fla. Slat. (2004)(“No notice of lis pendens is effectual for any purpose beyond 1 year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument ... except when the court extends the time on reasonable notice and for good cause.”).

      . The Seller attempts to emphasize on numerous occasions that the Purchasers, by not filing a claim for breach or anticipatory breach of the contract and only suing for specific performance of the Agreement, placed the trial court in an “untenable” position. However, the Agreement drafted by the Seller specifies that in the event of default by the Seller, the Purchasers are limited to (1) a return of the deposits made or (2) specific performance of the Seller's obligation to substantially complete the building structure. Thus, it seems to us “untenable” that Seller, as the drafter of the Agreement, would even attempt to argue this position as a breach of contract claim is not available to the Purchasers under the Agreement.


author: CORTINAS, Judge.

text:
    Gerard P. DUMORANGE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D05-2946.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Rehearing and Rehearing En Banc Denied Jan. 26, 2007.

      Gerard P. Dumorange, in proper person.
    John D. Maher, Tallahassee, for Appel-lee, Unemployment Appeals Commission.
    Jorge L. Fernandez, City Attorney, and Mimi V. Turin, Assistant City Attorney, for Appellee, City of Miami.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   CORTINAS, Judge.

Gerard P. Dumorange (“Dumorange”) appeals the dismissal of his unemployment compensation appeal by the Florida Unemployment Appeals Commission (“UAC”) as untimely. Dumorange was formerly employed by the City of Miami (“City”) as a police officer. He was discharged from his employment and subsequently filed for unemployment compensation. Dumorange was initially deemed qualified to receive unemployment compensation, but his former employer requested a hearing before an appeals referee. The appeals referee found Dumorange’s discharge was related to misconduct connected with work and denied his claim for unemployment compensation. Dumorange was notified of the denial through correspondence that was mailed on October 19, 2005. This letter was accompanied by a notice explaining that appeals of decisions denying unemployment compensation must be filed within twenty days after the mailing of an adverse decision. Dumorange express mailed his appeal to the UAC on November 14, 2005. The twenty day time period expired on November 8, 2005.

Dumorange does not dispute that his appeal was filed untimely. However, he claims that he was unable to file within twenty days of the denial letter because he was adversely affected by Hurricane Wilma. Dumorange informed the UAC of his situation in his response to their order to show cause why his appeal should not be dismissed. However, the UAC dismissed his appeal as untimely, explaining that he was not specific enough in describing how Hurricane Wilma affected his ability to timely file an appeal.

In this appeal, the UAC and the City take the position that Hurricane Wilma did not impact South Florida beyond October 24, 2005. We find this position to be entirely disingenuous. We take judicial notice of the fact that Hurricane Wilma disrupted the lives of virtually all residents of South Florida and that it was weeks before normalcy was restored. For weeks after Hurricane Wilma, electrical power was lacking in the vast majority of homes and businesses in Miami-Dade County. Because of the power outages, gas station pumps were not operational and gasoline shortages abounded for days.

In fact, this court was forced to close for three days and time limits for appeals were tolled from 5:00 p.m. on Friday, October 21, 2005 through 8:00 a.m. on Thursday, October 27, 2005. In re: Emergency Request to Extend Time Periods under All Florida Rules of Procedure for Third District Court of Appeal, Fla. Admin. Order AOSC05-78 (Nov. 1, 2005) (on file with Clerk, Fla. Sup.Ct.). Time limits were tolled in the county and circuit courts in the Eleventh Judicial Circuit, comprising Miami-Dade County, from 5:00 p.m. on Friday, October 21, through 8:00 a.m. on Monday October 31, 2005. In re: Emergency Request to Extend Time Periods Under All Florida Rules of Procedure for the Eleventh Judicial Circuit, Fla. Admin. Order AOSC05-74 (Nov. 1, 2005)(on file with Clerk, Fla. Sup.Ct.).

As a result of Hurricane Wilma, time limits were tolled for the same period in the Fourth District Court of Appeal, while time limits for county and circuit courts in the Fifteenth Judicial Circuit were tolled until 8:00 a.m. on Monday, November 7, 2005. In re: Emergency Request to Extend Time Periods Under All Florida Rules of Procedure for Fourth District Court of Appeal, Fla. Admin. Order AOSC05-75 (Nov. 1, 2005)(on file with Clerk, Fla. Sup.Ct.); In re: Emergency Request to Extend Time Periods Under All Florida Rules of Procedure for the Fifteenth Judicial Circuit, Fla. Admin. Order AOSC05-88 (Nov. 14, 2005)(on file with Clerk, Fla. Sup.Ct.) Further, time limits for county and circuit courts in the Seventeenth Judicial Circuit were tolled until 8:00 a.m. Monday, November 14, 2005. In re: Emergency Request to Extend Time Periods Under All Florida Rules of Procedure for the Seventeenth Judicial Circuit, Fla. Admin. Order AOSC05-81 (Nov. 8, 2005)(on file with Clerk, Fla. Sup.Ct.).

The Florida Supreme Court also recognized in all of these tolling orders that there may be individual instances where, even despite the tolling, a party or attorney is unable to meet the deadline for filing an appeal. Accordingly, the Florida Supreme Court authorized the lower courts to resolve these claims on a “case-by-case basis where a party demonstrates the lack of compliance with requisite time periods was directly attributable to this emergency situation.” E.g., id. Overall, the Florida Supreme Court issued twenty-two tolling orders as a result of Hurricane Wilma.

Although the UAC is not governed by the Florida Supreme Court’s tolling orders, nor by the individual decisions of this and other courts to accept untimely filed documents in their courts, we find the tolling orders cited above to be conclusive evidence of the fact that Hurricane Wilma continued to impact South Florida well-beyond October 24, 2005, the day it made landfall. We also recognize that, although the tolling orders and decisions of this court to accept untimely filed papers are not binding on the UAC, this court has jurisdiction to compel the UAC to accept an untimely appeal. See Assam v. Fla. Unemployment Appeals Comm’n, 871 So.2d 978, 980 (Fla. 3d DCA 2004)(per curiam).

As the UAC points out, the statute governing appeals to the UAC does not contain a good cause exception. See § 443.151(4)(e), Fla. Stat. (2006). In fact, Rule 60BB-7.006 mandates dismissal of untimely filed appeals. Fla. Admin. Code R. 60BB-7.006. Despite this, courts have carved out a limited exception based on due process. See Guerrero v. Fla. Unemployment Appeals Comm’n, 855 So.2d 266, 269 (Fla. 3d DCA 2003); Finney v. Fla. Unemployment Appeals Comm’n, 587 So.2d 637, 638 (Fla. 4th DCA 1991)(inter-nal citations omitted). Although the majority of appeals to this court from a dismissal of an untimely filed appeal have been affirmed, due process concerns have warranted reversals where the claimant receives his denial letter outside of the time period for appeals or where the untimeliness of the claimant’s appeal was “occasioned by the actions of the Commission.” Assam, 871 So.2d at 980. It appears Florida courts have never decided whether to apply this exception to cases where the untimely filing results from a natural disaster, and not actions taken by the UAC. However, we hold that such a limited expansion of the exception is appropriate based on the facts of the case now before us.

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank, 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). As the Fourth District recently observed, “[i]n an unemployment case, due process requires that the Commission, and the courts, ‘err on the side of .caution’ and afford a liberal opportunity for a pro se employee to demonstrate that his administrative appeal is timely.” . Price v. Unemployment Appeals Comm’n, 889 So.2d 861, 862 (Fla. 4th DCA 2004) (quoting Apolinar v. Fla. Unemployment Appeals Comm’n, 710 So.2d 199, 199 (Fla. 2d DCA 1998)). We find that Hurricane Wilma and its aftermath, including extensive damage, widespread power outages, and fuel shortages, interfered with Dumorange’s opportunity to voice his objections to the denial of his unemployment compensation claim. We further find that the UAC’s dismissal of Dumorange’s appeal constitutes a denial of due process, given Hurricane Wilma’s impact and Du-morange’s diligence in pursuing his appeal as soon as practicable.

We reverse the order of the UAC dismissing Dumorange’s untimely appeal and direct the UAC to adjudicate the appeal.

Reversed.

      . In its brief, the UAC contends the date of filing is November 15, 2005, the date the UAC received Dumorange's appeal. However, the Florida Administrative Code specifically states that "[ajppeals filed by mail shall be considered to have been filed when postmarked by the U.S. Postal Service.” Fla. Admin. Code R. 60BB-5.005(3). The record indicates Dumorange's appeal was postmarked on November 14, 2005.


text:
    ARCH PLAZA, INC.; Hebrew Homes Health Network, Inc.; Hebrew Homes Health Network Foundation, Inc.; and Hebrew Homes Management Services, Inc., Petitioners, v. Bruce PERPALL, as Personal Representative of the Estate of Roseann Perpall, deceased, Respondent.
    No. 3D06-1344.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Rehearing Denied Feb. 13, 2007.
    Freud & Schwartz, Miami, and Michael J. Schwartz, Tallahassee, for petitioners.
    Goldfarb & Gold, Miami, and Belinda A. Paris, for respondent.

      Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

In this petition for writ of certiorari, Arch Plaza, Inc.; Hebrew Homes Health Network, Inc.; Hebrew Homes Health Network Foundation, Inc.; and Hebrew Homes Management Services, Inc. (collectively referred to as “Petitioners”), seek to quash the trial court’s order denying their motion to dismiss a wrongful death action filed against them and Arch Creek Nursing Home, Inc. (“Arch Creek Nursing Home”), by Bruce Perpall, as personal representative of the estate of Roseann Perpall (“Respondent”), based upon the Respondent’s failure to comply with the pre-suit notice requirements of section 400.0233, Florida Statutes (2004).

Roseann Perpall (“Mrs. Perpall”), a resident of Arch Creek Nursing Home, died while under the nursing home’s care. The Respondent, in accordance with section 400.0233(2), Florida Statutes, timely served Arch Creek Nursing Home with pre-suit notice of his intent to initiate a lawsuit against it for the wrongful death of Mrs. Perpall. The pre-suit notice was addressed solely to Arch Creek Nursing Home. Thereafter, the Respondent filed a wrongful death complaint against Arch Creek Nursing Home and the Petitioners, based upon violations of Mrs. Perpall’s nursing home resident’s rights and negligence under chapter 400 of the Florida Statutes.

The Petitioners moved to dismiss the complaint, arguing that the Respondent, by notifying only Arch Creek Nursing Home of the intended lawsuit, failed to comply with the mandatory pre-suit notice requirement of section 400.0233(2), which requires that the Respondent “notify each prospective defendant by certified mail; return receipt requested, of an asserted violation of a resident’s rights provided in s. 400.022 or deviation from the standard of care.” Additionally, the Petitioners argued that dismissal was warranted due to the Respondent’s failure to give each of them the mandatory pre-suit notice prior to the running of the two-year statute of limitations.

In response, the Respondent argued that by sending the pre-suit notice to Arch Creek Nursing Home, he had complied with the pre-suit notice requirements as to all five-named defendants since (1) Arch Creek Nursing Home was sold to Arch Plaza, Inc. prior to Mrs. Perpall’s admission to the nursing home and are thus, the same entity; and (2) Arch Creek Nursing Home, Arch Plaza, Inc., and the other three-named defendants are all owned by the same person, Russell Galbut, have the same registered agent, and have the same registered -principal place of business. The Respondent asserted that pre-suit notice pursuant to.section 400.0233(2) of the nursing home statute is analogous to section 766.106(2), Florida Statutes, the medical malpractice pre-suit notice provision, and therefore, Florida Rule of Civil Procedure 1.650, which specifies that medical malpractice pre-suit notice to any prospective defendant operates as notice to any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice, applies. He argued that since Arch Creek Nursing Home received pre-suit notice and the Petitioners bear a legal relationship to Arch Creek Nursing Home, notice to Arch Creek Nursing Home operates as notice to the Petitioners.

The trial court, in denying the Petitioners’ motion to dismiss, agreed with the Respondent’s reasoning, and concluded that since

[i]t appears that Russell Galbut was the owner of the business formerly known as Arch Creek Nursing Home, Inc., at the time notice was sent pursuant to Florida Statute 400.0233 as well as the Director of each of the named corporations!,] [i]t would appear to this court that each of the business entities was put on notice of the claim.

In the instant petition for writ of certiorari, the Petitioners claim that the trial court departed from the essential requirements of the law in (1) denying their motion to dismiss and (2) relying on the law pertaining to the medical malpractice pre-suit notice requirements and on Florida Rule of Civil Procedure 1.650 when it interpreted the pre-suit notice requirements of chapter 400 of the Florida Statutes. We must, therefore, determine whether pre-suit notice to a prospective defendant pursuant to section 400.0233(2), the nursing home statute, should be treated similarly to section 766.106(2), the medical malpractice pre-suit notice statute, which according to Florida Rule of Civil Procedure 1.650, shall operate as notice to any other prospective defendant who bears a legal relationship to the prospective defendant receiving notice.

The medical malpractice pre-suit notice requirement, found in section 766.106(2), Florida Statutes (2004), specifies that:

[P]rior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence.

§ 766.106(2), Fla. Stat. (2004) (emphasis added). Florida Rule of Civil Procedure 1.650 expands pre-suit notice to a prospective defendant regarding claims of medical malpractice, to operate as notice to that defendant and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice. Florida Rule of Civil Procedure 1.650 states:

(a) Scope of Rule. This rule applies only to the procedures prescribed by section 766.106, Florida Statutes, for presuit screening of claims for medical malpractice.
(b) Notice.
(1) Notice of intent to initiate litigation sent by certified mail to and received by any prospective defendant shall operate as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice. The notice shall make the recipient a party to the proceeding under this rule.

Fla. R. Civ. P. 1.650(a), (b)(1); see also Kukral v. Mekras, 679 So.2d 278, 285 (Fla.1996)(holding that since non-noticed defendant bears a legal relationship to the prospective defendant who received pre-suit notice, separate notice to the non-noticed defendant was not necessary).

The policy underlying the medical malpractice pre-suit statutory scheme is “to require the parties to engage in meaningful presuit investigation, discovery, and negotiations, thereby screening out frivolous lawsuits and defenses and encouraging the early determination and prompt resolution of claims.” Univ. of Miami v. Wilson, 948 So.2d 774, 2006 WL 1687685 (Fla. 3d DCA June 21, 2006); see also Kukral, 679 So.2d at 280 (specifying that section 766.106(2) “was intended to address aTegitimate legislative policy decision relating to medical malpractice and established a process intended to promote the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding”).

Florida courts have consistently construed the medical malpractice pre-suit statutory scheme “liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses.” Kukral, 679 So.2d at 284; Wilson, 948 So.2d at 777; Apostolico, 871 So.2d at 286. “Presuit notice and screening requirements are ‘not intended to deny access to the courts on basis of technicalities.’ ” Apostolico, 871 So.2d at 286 (quoting Fort' Walton Beach Med. Ctr., Inc. v. Dingler, 697 So.2d 575, 579 (Fla. 1st DCA 1997)). The pre-suit notice and screening statute should instead be construed in a manner that favors access to the courts.1 Consequently, in interpreting the pre-suit notice requirements of section 400.0233 we must not unduly restrict the access to the courts guaranteed by the Florida Constitution in carrying out the legislative purpose of screening out frivolous lawsuits.

The policy underlying the pre-suit notice requirement of section 400.0233(2), to require the parties to engage in meaningful pre-suit investigation so as to avoid frivolous lawsuits and to encourage early settlement, is the same as the policy considerations of the medical malpractice pre-suit notice provision. See Senate Staff Analysis and Economic Impact Statement, Long-Term Care, S.B. 1202, 2001 Sess., at 3 (Fla.2001); see also Thompson v. Kindred Nursing Ctrs. East, LLC, 211 F.Supp.2d 1345, 1355 (M.D.Fla.2002) (“[T]he overall intent of the Florida legislature in requiring the pre-suit conditions in Fla. Stat. § 400.0233(2) ... appears to be a desire for a reasonable investigation giving rise to a good-faith belief that grounds exist for the claim so as to avoid frivolous lawsuits.... ”).

Both sections 400.0233(2) and 766.106(2), Florida Statutes, are worded substantially the same. Section-' 400.0233(2), Florida Statutes (2004), states:

Prior to filing a claim for a violation of a resident’s rights or a claim for negligence, a claimant alleging injury to or the death of a resident shall notify each prospective defendant by certified mail, return receipt requested, of an asserted violation of a resident’s rights provided in s. 400.022 or deviation from the standard of care.

§ 400.0233(2), Fla. Stat. (2004) (emphasis added). Section 766.106(2) states that:

[PJrior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence.

§ 766.106(2), Fla. Stat. (2004) (emphasis added).

Because both section 400.0233(2), the nursing home pre-suit notice provision, and section 766.106(2), the medical malpractice pre-suit notice provision, (1) are worded substantially the same; (2) have the same purpose and policy considerations, to allow pre-suit screening so as to avoid frivolous lawsuits and to promote pre-suit settlement; and (3) neither statute’s intent is to deny access to the courts or to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, we conclude that the trial court properly analogized the medical malpractice pre-suit statutory scheme and Florida Rule of Civil Procedure 1.650 in interpreting the pre-suit notice requirements of section 400.0233.

We therefore conclude that pre-suit notice under section 400.0233(2) to any prospective defendant operates as notice to any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice. Consequently, as the Petitioners bear a legal relationship to the defendant receiving pre-snit notice, Arch Creek Nursing Home, the Respondent properly complied with the pre-suit notice requirement of section 400.0233(2) and the Petitioners’ motion to dismiss was properly denied. As we have concluded that notice to Arch Creek Nursing Home operated as notice to the Petitioners, the statute of limitations is not implicated as notice was well within the time provided.

Petition denied.


text:
    Jeffery JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1544.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Rehearing and Rehearing En Banc Denied Jan. 30, 2007.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

The defendant, Jeffery Jackson, appeals from his conviction and sentence for first degree murder. Based on the cumulative effect of the errors committed during the trial, we reverse and remand for a new trial.

The defendant was charged with the first degree murder of Anthony Brown. At trial, the State’s theory of the case was that Mr. Brown and- the defendant were friends, that the defendant went to Mr. Brown’s home to rob him of his cash and jewelry, and that when Mr. Brown resisted the defendant’s attempt to rob him, the defendant killed Mr. Brown. In contrast, the defendant claimed that he did not go to Mr. Brown’s home to rob him, but instead went there to purchase cocaine, and while there, Mr. Brown made sexual advances towards him. He claimed that when he rebuffed the advances, Mr. Brown became angry and attacked him with a knife. After being attacked, he stabbed Mr. Brown in self-defense.

During its case-in-chief, the State presented the testimony of witnesses who acknowledged that Mr. Brown was a homosexual. In addition, these witnesses portrayed Mr. Brown as a peaceful, friendly man who would invite friends and neighbors over for barbecues and card games, and that as a result of the card games he often had large amounts of cash at home. These witnesses also testified that Mr. Brown was not a drug dealer/

Following the State’s presentation of its case, the defendant testified that Mr. Brown was a drug dealer who had sold drugs to him on numerous occasions. On one occasion, Mr. Brown, who was a homosexual, told the defendant that if he would expose his penis, he would give him more drugs. The defendant agreed, but when Mr. Brown attempted to grab his penis, the defendant left. The defendant claimed that on the evening of the stabbing, he had hoped to exchange a gold bracelet for crack cocaine since he did not have any money. Mr. Brown accepted the gold bracelet and allowed the defendant to smoke the cocaine in his bedroom. After smoking the cocaine, Mr. Brown gave him more crack cocaine, but the defendant decided to leave when Mr. Brown began fondling- himself. This angered Mr. Brown, who stated, “I been giving you dope this time, last time, and it’s time for you to do something for me.” When the defendant still attempted to leave, Mr. Brown came at him with a knife, cutting the defendant’s hand as he tried to defend himself. The defendant then ran to the kitchen and grabbed two knives, at which point, both men struggled, and eventually Mr. Brown fell to the floor. The defendant claims that because the doors were locked, he began to search Mr. Brown’s bedroom for the keys, finding in addition to the keys, money and crack cocaine, which he took with him when he left the house. When the defendant’s father saw that the defendant had been injured and the defendant told him that he had been robbed, the defendant’s father called the police. When questioned by the police, the defendant initially told the police the same story that he had told his father, but after realizing that the police did not believe him, he told them that he had stabbed Mr. Brown in self-defense. The defendant testified that he had initially lied to his father and the police because he thought that the police would not believe him due to his extensive criminal history.

During his direct examination, the defendant admitted that he has thirteen prior felony convictions, and that eight of the thirteen felonies are for grand theft. The State objected to the defendant’s testimony regarding the nature of his prior convictions on relevancy grounds, and the trial court sustained the objection. The State, however, withdrew its objection to the testimony and the jury was permitted to consider it. The defense then asked the defendant whether any of his prior grand theft convictions involved the use of a weapon and whether he had ever threatened or harmed anyone during the commission of the grand thefts. The State objected to these questions, the trial court sustained the objection, and the defendant was not permitted to answer these questions.

Pursuant to the trial court’s ruling on the State’s motion in limine, the defense was precluded from calling witnesses, other than the defendant, who would testify that Mr. Brown was a drug dealer. The defense’s proffer reflected that two witnesses would have testified that Mr. Brown was a drug dealer who sold drugs from his home.

During closing argument, the State argued as follows:

[H]e wants you to believe that the only way he knew Anthony was as his drug dealer. There is no evidence whatsoever, other than what the defendant said in this case, and I submit to you everything that he tells you is unbelievable.... There is no evidence, other than what he said, that Anthony Brown ever sold this defendant any drugs.

In charging the jury on the laws applicable to the case, the trial court gave the following instruction on the justifiable use of deadly force in self-defense:

A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent:
Imminent death or great bodily harm to himself, or the imminent commission of aggravated battery against himself.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. Jeffery Jackson was attempting to commit, or committing a murder and/or robbery;....

The jury found the defendant guilty of first degree murder, the trial court adjudicated the defendant guilty, and he was sentenced to life in prison.

In this appeal, the defendant contends that the trial court erred in not permitting him to testify as to the nature and circumstances surrounding his thirteen prior felony convictions where his credibility was a material issue at trial. We agree.

In Lawhome v. State, 500 So.2d 519 (Fla.1986), the Florida Supreme Court explained:

[WJhile the impeaching party may only inquire as to the existence of convictions and their number (or, if the matter be denied, may show the convictions by documentary evidence) the party presenting the testimony of the witness may delve into the nature or circumstances of the convictions for the purpose of rehabilitating the witness by attempting to diminish the effect of the disclosures.

Id. at 522; see also McArthur v. Cook, 99 So.2d 565, 567 (Fla.1957)(“If the witness so desires he may of his own volition state the nature of the crime and offer any relevant testimony that would eliminate any adverse implications; for example, the fact that he had in the meantime been fully pardoned or that the crime was a minor one and occurred many years before.”); Williams v. State, 730 So.2d 777, 778 (Fla. 3d DCA 1999)(holding that on direct examination of defendant, he is entitled to explain the nature and circumstances of his prior conviction in order to rehabilitate himself prior to being impeached by the State during cross-examination).

In the present case, during the defendant’s direct examination, he testified that he has thirteen prior convictions, and that he initially lied to the police because he did not think that they would believe him due to these convictions. The defendant’s defense to the charges was self-defense and his credibility was a critical aspect of the case. The jury was specifically instructed that in weighing the testimony of a witness, one of the factors they should consider was whether the witness had ever been convicted of a crime. Thus, the nature of the defendant’s prior felony convictions, which would have included the fact that the defendant had never used a weapon, threatened, or harmed anyone during the commission of these felonies, was relevant, and therefore, the trial court erred in precluding the defendant’s testimony. See Lawhorne, 500 So.2d at 522; Williams, 730 So.2d at 779 (holding that the trial court’s error in not allowing defendant to testify on direct examination as to nature and circumstances of prior convictions was not harmless error where “credibility of the defendant” was “critical to the deliberations of the jury”).

The defendant also contends that the trial court abused its discretion in precluding him from calling witnesses who would have testified that Mr. Brown was a drug dealer where this evidence would have corroborated his claim that he went to Mr. Brown’s home to purchase cocaine, not to rob him, and where the trial court permitted the State to call witnesses who testified that Mr. Brown was not a drug dealer. We agree.

We are mindful that pursuant to section 90.404(1), Florida Statutes (2004), evidence of a victim’s character is “inadmissible to prove action in conformity with it on a particular occasion.” In the instant case, however, the defense did not seek to introduce evidence that Mr. Brown was a drug dealer as an attack upon his character. The defense sought to elicit this testimony to corroborate the defendant’s testimony that he did not go to Mr. Brown’s home to rob him, but instead went there to purchase drugs, and while he was there, Mr. Brown attacked him after he rebuffed his sexual advances. See Villella v. State, 833 So.2d 192, 196-97 (Fla. 5th DCA 2002)(holding that it was error to exclude corroborative evidence where evidence was vital to defendant’s defense).

Further, even if the evidence was inadmissible pursuant to section 90.404(1), we conclude that because the State opened the door during its case-in-chief by calling witnesses who testified that Mr. Brown was not a drug dealer, it was error to preclude the defense from eliciting testimony to the contrary. See Barone v. State, 841 So.2d 653, 655 n. 2 (Fla. 3d DCA 2003)(“The ‘opening the door’ concept permits the admission of otherwise inadmissible evidence to ‘qualify, explain or limit’ previously admitted evidence.”)(quoting Ramirez v. State, 739 So.2d 568, 579 (Fla.1999)). Moreover, this error was further compounded when the State argued during closing argument that “[tjhere is no evidence, other than what he said, that Anthony Brown ever sold this defendant any drugs,” as this statement unfairly left the jury with the impression that the defendant was unable to produce a single witness who could confirm that Mr. Brown was a drug dealer.

Thus, we cannot say that precluding the defendant from introducing this relevant evidence was harmless where (1) the defendant’s defense in this case was self-defense and that defense was predicated upon the defendant’s claim that he went to Mr. Brown’s house to purchase cocaine from him, not to murder or rob him; (2) the defendant’s credibility, which was weakened by the number of his prior convictions, was further weakened by his inability to present testimony regarding the nature of those felonies; (3) the State was permitted to introduce evidence that Mr. Brown was not a drug dealer; and (4) the State in its closing argument inferred that the defendant could not produce the very evidence that the trial court precluded him from introducing.

The final issue raised on appeal is that the forcible felony exception to the self-defense instruction given by the trial court was error with regard to the first degree premeditated murder as this portion of the instruction may not be given absent an independent forcible felony. The defense properly concedes that it was not error to provide this instruction with regard to first degree felony murder as the underlying felony was robbery, a forcible felony. We decline to address this issue in light of our conclusion that the cumulative effect of the errors previously addressed requires a new trial. We direct the trial court, however, to consider our recent opinion in Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), regarding when the jury may be properly instructed on the forcible felony exception to self-defense.

Reversed and remanded for a new trial.


author: SUAREZ, J.

text:
    Franizy JEAN-MARIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2570.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 13, 2007.

      Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Olga L. Villa, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   SUAREZ, J.

The defendant appeals a final judgment of conviction and sentence for armed burglary, possession of an altered firearm, and carrying a concealed firearm. We affirm the conviction and sentence for armed burglary and possession of an altered firearm and vacate the conviction and sentence for carrying a concealed firearm.

On March 19, 2003, in the evening, Miami-Dade Robbery Intervention Unit Detectives observed a car driving with its right front headlight out in the area of Northeast 160th Street. The detectives’ vehicle turned behind the subject vehicle and activated its emergency equipment to effect a stop. When the subject’s car came to a stop, the passenger door opened, the defendant jumped out of the car and ran east-bound through an alley. A detective ran after him on foot. The defendant did not stop when ordered numerous times to do so, but only looked back at the detective who was wearing a polo shirt and vest with the word “police” written all over them. The defendant continued running away from the detective, and dove head first over a fence into the backyard of a residence. The detective followed him into the backyard with a flashlight. The detective yelled for the defendant to “stop,” as he saw him reach with his hand to the front of his body and throw a firearm up against the fence. The defendant continued to run toward the gate, the detective chasing after him. The detective eventually apprehended him in the front of the yard. The gun was discovered approximately three to four feet inside the fenced property and three feet from the house. It was later learned that the gun was stolen in March of 2002. The serial numbers had been scratched off the gun. The defendant was charged with carrying a concealed firearm, unlawful possession, sale, or delivery of a firearm with an altered or removed serial number and armed burglary.

At trial, an employee of a pawn shop testified that the gun found in the yard by the detective was the same gun which had been in the possession of the pawn shop until it was stolen in March of 2002. It was never shown that the defendant was the one who had stolen the gun. At the close of the State’s case, the defendant moved for judgment of acquittal on grounds that the State failed to prove the crime of armed burglary because the requisite intent to commit the offense of carrying a concealed firearm when entering the property had not been demonstrated, and the predicate crime of resisting an officer without violence was legally insufficient. The trial judge denied the motion. The jury found the defendant guilty of carrying a concealed firearm, possessing a firearm with a removed or altered serial number and armed burglary. He was sentenced to five years for carrying a concealed firearm, 364 days for possession of a firearm with an altered serial number and fifteen years for armed burglary, to run concurrent with a ten-year minimum mandatory. He now appeals the convictions and sentences.

The defendant contends that the trial judge erred in denying his motion for judgment of acquittal in that the State failed to prove the requisite intent for carrying a concealed firearm and that the charge of resisting an officer without violence was legally inadequate. As such, since intent to commit an offense therein is a precondition to a finding of guilt under the burglary statute, the burglary conviction cannot stand. The State responds that there was sufficient evidence to show that the defendant intended to commit the crime of carrying a concealed firearm when he entered the victim’s property, that the facts are legally adequate to prove resisting an officer without violence and thus, the elements under the burglary statute have been satisfied. § 810.02(b)(1), Fla. Stat. (2002).

In reviewing an order denying a motion for judgment of acquittal, the standard of review is de novo to determine, as a question of law, the sufficiency of the evidence to support a particular criminal charge. Lynch v. State, 293 So.2d 44 (Fla.1974); Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001). The appellate court must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State, to establish, as a matter of law, that the evidence is legally adequate to support the charge. Lynch, 293 So.2d at 45.

First, the defendant argues that the act of throwing the firearm up against the fence demonstrated that he did not have the intent to commit the crime of carrying a concealed firearm when he entered the backyard. The facts show that the defendant ran from his car, dove into a backyard residence and kept running away from the detective without allowing him to view his firearm until he attempted to dispose of it before reaching the front gate. Because he kept running with the firearm concealed, the defendant was continuing to commit the act of carrying the concealed firearm. The defendant intended to conceal the gun while he was running away prior to entering the backyard; he continued to intend to conceal it when jumping over the fence to enter the property; and the intent remained with him until he overtly raised his arm to let go of the gun. Lints v. State, 643 So.2d 689 (Fla. 5th DCA 1994)(possession of firearm continuing offense); Bailey v. State, 637 So.2d 333 (Fla. 2d DCA 1994)(same). We find that sufficient evidence of intent was presented to constitute the offense of carrying a concealed firearm, and as such, the defendant demonstrated the requisite intent to satisfy the intent-to-commit-a-erime element for the offense of armed burglary.

Second, the defendant raises as error the denial of his motion for judgment of acquittal and the ensuing guilty verdict for resisting an officer without violence as legally insufficient since the defendant did not possess the intent to commit the offense when he entered the backyard of the residence, and therefore it cannot serve as a precondition to a finding of guilt under the burglary statute.

“The language of the burglary statute, as drafted by the Legislature, requires both an entry and the requisite intent to commit a crime [therein].... Thus, while the actual penetration into any interior or enclosed area may constitute an entry, ... an intent to ... commit an unauthorized act therein after entry has occurred must also be established to satisfy the intent required to commit a crime.” Drew v. State, 773 So.2d 46, 52 (Fla.2000). In order to prove that a defendant is guilty of obstructing an officer without violence, the state must prove that the defendant fled with knowledge of the officer’s intent to detain him and that the officer was justified in making the detention due to his founded suspicion that the defendant was engaged in criminal activity. Cf. D.M. v. State, 681 So.2d 797 (Fla. 2d DCA 1996). Although “ ‘[Slight, standing alone, does not constitute obstructing an officer nor does it give rise to a well-founded suspicion of criminal activity ... an individual may be guilty of unlawfully obstructing an officer if he flees while knowing of the officer’s intent to detain him and the officer is justified in making a stop....’” Mosley v. State, 739 So.2d 672 (Fla. 4th DCA 1999). Even if the original pursuit by officers lacks reasonable suspicion or probable cause, the resultant totality of the circumstances may provide adequate grounds to support the denial of a motion for judgment of acquittal. In Mosley, officers pursued the defendant, who had been standing with a group of people on the street, as he ran away from them after they had yelled, “Stop. Hollywood Police.” During the pursuit, which initially was invalid, the defendant dropped his cocaine pipe, which was recovered by one of the officers. The Fourth District found that, at that point in time, the officers had probable cause to arrest him. They continued to yell, directing him to stop. Mosley held that “[h]is flight, in conjunction with probable cause for arrest, was sufficient to establish the guilt of the charge [resisting an officer without violence],” Mosley, 739 So.2d at 675, and that the trial court properly denied a motion for judgment of acquittal. The facts presented for review are strikingly similar. If, arguendo, the Miami-Dade Robbery Detective, who was chasing the defendant after he ran from the vehicle in which he was a passenger, initially did so without a founded suspicion of criminal activity, at the point in time when the detective saw the defendant throw his gun away, there was probable cause for his arrest for carrying a concealed firearm. The fact that the defendant continued to flee after, once again, being commanded to stop, establishes that he ran, knowing of the officer’s intent to detain him. Because the officer was then justified in making the stop, the trial court was correct in denying the motion for judgment of acquittal. Mosley; Calliar v. State, 714 So.2d 1134 (Fla. 1st DCA 1998)(motion for judgment of acquittal for resisting without violence properly denied; evidence that defendant dropped screwdriver and wirecutters after chase with knowledge of officer’s intent to detain coupled with officer’s reasonable suspicion of criminal activity, sufficient to present to jury), quashed in part on other grounds, 760 So.2d 885 (Fla.1999); Britton v. State, 604 So.2d 1288 (Fla. 2d DCA 1992)(motion for judgment of acquittal for resisting arrest without violence properly denied; evidence that defendant ran into house with the intent to hide from officers sufficient to submit to jury on issue of whether conduct satisfies “intent to commit offense therein” within meaning of burglary statute).

In consideration of the standard of review for a motion for judgment of acquittal — whether the evidence and all reasonable inferences taken in the light most favorable to the State are sufficient to support the charge, see Lynch v. State, 293 So.2d at 44 — we conclude that there was sufficient evidence of intent to convict the defendant of the crime of carrying a concealed firearm, § 790.01(2), Fla. Stat. (2002); cf. Davis v. State, 761 So.2d 1154 (Fla. 2d DCA 2000), and, as a matter of law, the offense of resisting an officer without violence was legally adequate for the jury’s consideration. § 843.02, Fla. Stat. (2002); Mosley; Calliar; Britton. § 810.02(b)(1), Fla. Stat. (2002).

The defendant next contends that the trial court erred when it allowed the State to introduce evidence, over objection, that the gun carried by the defendant had been stolen because the State never proved that the defendant was the one who stole the gun or knew that the gun had been stolen. We find that the trial court did not err in admitting the evidence of the stolen gun as this fact was inextricably intertwined with the carrying a concealed firearm and armed burglary charges before the jury. This testimony was necessary to establish the entire context out of which these crimes arose. § 90.402, Fla. Stat. (2005); Griffin v. State, 639 So.2d 966 (Fla.1994).

[EJvidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence. It is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue ... necessary ... to adequately describe the deed.”

Griffin, 639 So.2d at 968 (citing Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). Moreover, even if the trial judge admitted the evidence erroneously, the error was harmless due to the ample evidence of the defendant’s guilt. Harmon v. State, 527 So.2d 182 (Fla.1988); see West v. State, 579 So.2d 288 (Fla. 3d DCA 1991).

The defendant raises the issue of whether double jeopardy attaches .to his convictions for both armed burglary and carrying a concealed firearm. We agree that the defendant cannot be convicted and sentenced for two crimes involving a firearm that arose out of the same criminal episode and, therefore, double jeopardy barred the defendant from being convicted and sentenced for both armed burglary and carrying a concealed firearm. State v. Stearns, 645 So.2d 417 (Fla.1994); Shaffer v. State, 710 So.2d 79 (Fla. 4th DCA 1998); accord Marion v. State, 526 So.2d 1077 (Fla. 2d DCA 1988).

The convictions and sentences for armed burglary and possession of an altered firearm are affirmed. The conviction and sentence for carrying a concealed firearm is vacated.

Affirmed in part, vacated in part and remanded for re-sentencing.

      . The charge of resisting an officer without violence was nolle pressed by the State.

      . The carrying a concealed firearm statute provides:
      790,01 Carrying concealed weapons.—

      (2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      § 790.01 (2), Fla. Stat. (2002).

      . The resisting an officer without violence statute provides:
      843.02 Resisting officer without violence to his or her person. — Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1),(2),(3),(6),(7),(8), ... in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 ors. 775.083.
      § 843.02, Fla. Stat. (2002).

      .The relevant part of the burglary statute is as follows:
      Burglary.—

      (b) For offenses committed after July 1, 2001, "burglary” means:
      1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter ...
      § 810.02 (b)(1), Fla. Stat. (2002).