author: FLETCHER, J.

text:
    Juan Leal ESQUIVEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1200.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill Kramer Traína, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   FLETCHER, J.

Juan Leal Esquivel appeals from an upward departure sentence imposed without written reasons. We reverse and remand with instructions.

Esquivel was convicted by a jury of four counts of sexual battery with a deadly weapon (Counts 1-2 and 7-8 of the Information), four counts of kidnapping (Counts 3-6), two counts of committing a lewd or lascivious act (Counts 9-10), one count of aggravated assault (Count 11), and one count of armed burglary (Count 12). He was sentenced to a term of life in state prison for Counts 1-8 and 12; a term of 15 years in state prison for Counts 9 and 10; and a term of 5 years in state prison for Count 11. All sentences were to run consecutively.

On January 27, 2004, Esquivel filed a motion to correct this sentence pursuant to Florida Rule Criminal Procedure 3.800(a). After a hearing on February 21, 2006, the court granted Esquivel’s motion to dismiss Count 11 and vacated the sentences previously imposed on Counts 1-10 and 12. The state advised the trial court that concurrent life sentences could be imposed for counts 1-8 and 12, and fifteen years for counts 9-10. The state requested departure and the sentences to run consecutively-

The trial court orally announced the following reasons for departing from the guidelines: the victim was physically attacked in the presence of one or more members of the victim’s family; the victim was especially vulnerable due to age; the offense created a substantial risk of death or great bodily harm to many persons; the offense was one of violence and was committed in a manner that was especially heinous, atrocious or cruel; and the victim suffered extraordinary emotional trauma and was treated with particular cruelty. Based on these reasons, the court sentenced the defendant to a term of life imprisonment for Counts 1-8 and 12, and 15 years in state prison for Counts 9 and 10. Again, all sentences were to run consecutively. The trial court, however, failed to enter a written order setting forth the court’s reasons for departing from the sentencing guidelines as required under Section 921.0016(l)(c), Florida Statutes (2005), and Florida Rule of Criminal Procedure 3.703(d)(30)(A), both of which require that written reasons for departure or a written transcription of orally stated reasons be filed within seven days. After an appeal to this court, the trial court filed, on June 8, 2006, a transcript of the sentencing proceeding containing the court’s reasons for the upward departure. The transcript, however, was not signed by the trial court.

Esquivel contends that the trial court’s failure to enter signed, written reasons in support of its upward departure requires that the departure sentence be reversed and the case remanded for sentencing within the guidelines. Current case law, however, has drawn a clear distinction between a complete failure to file written reasons for departure and technical procedural errors, generally late filings, which do not prejudice defendants. See and compare Matchett v. State, 791 So.2d 1087 (Fla.2001); Pressley v. State, 921 So.2d 736 (Fla. 1st DCA 2006); Butler v. State, 765 So.2d 274 (Fla. 1st DCA 2000); with Mandri v. State, 813 So.2d 65 (Fla.2002); Maddox v. State, 760 So.2d 89 (Fla.2000); Beck v. State, 817 So.2d 858 (Fla. 5th DCA 2002); Weiss v. State, 720 So.2d 1113 (Fla. 3d DCA 1998), approved 761 So.2d 318 (Fla.2000.) The latter cases suggest that nonfundamental sentencing errors are subject to the harmless error rule.

In a case in which the trial court filed its written reasons for departure four months after sentencing and only upon the defendant’s motion to correct the sentence pursuant to Florida Rule of Criminal Procedure 3.800(b), the Fifth District analyzed the situation:

“The defendant in this case does not argue that the reasons for departure are invalid. His sole argument is that a piece of paper was not filed timely. The defendant is not challenging the reasons for the departure sentence, but only the procedure of how it was imposed. If the reasons given for departure were invalid, then the defendant would be entitled to the relief requested. However, after a review of the complete record on appeal there is no evidence of harm that has been suffered by this defendant. The rules of procedure were neither designed to nor intended to be an escape device from justice.”

Beck, 817 So.2d at 862.

In Carridine v. State, 721 So.2d 818 (Fla. 4th DCA 1998), after orally announcing reasons for a departure statement and having a guidelines scoresheet prepared listing the grounds justifying the departure, the trial court inadvertently failed to signed the prepared scoresheet. Some time later, upon the defendant’s motion to correct the sentence for failure to timely file written reasons for departure, the trial court ruled it was treating the matter as a scrivener’s error and signed the score-sheet. On appeal, however, the Fourth District Court of Appeal reversed. The appellate court sympathized with the trial court’s belief that such a clerical error should be correctable, but felt bound by prior supreme court precedent which appeared to call for strict adherence with sentencing procedural requirements. The Carridine court, however, did not have the benefit of the supreme court’s subsequent pronouncements with regard to application of the harmless error rule.

In the instant case, the defendant does not challenge the reasons for the departure sentence. Nor is he stating that he was in any way prejudiced by the fact that the transcription of the orally stated reasons was untimely filed without the sentencing judge’s signature. The defendant simply argues that the court must strictly adhere to the requirements of the statute and rule regardless of the absence of any prejudice to him. We believe this issue has been resolved by the more recent case law discussed above. We, therefore, reverse and remand to the trial court with instructions that it either sign the transcription of the orally stated reasons for departure or resentence the defendant within the guidelines.

Reversed and remanded with instructions.

      . Section 921.0016(l)(c) states:
      "A state prison sentence which varies upward or downward from the recommended guidelines prison sentence by more than 25 percent is a departure sentence and must be accompanied by a written statement delineating the reasons for the departure, filed within 7 days after the date of sentencing. A written transcription of orally stated reasons for departure from the guidelines at sentencing is permissible if it is filed by the court within 7 days after the date of sentencing.
      While Florida Rule of Criminal Procedure (d)(30)(A) provides:
      "If a sentencing judge imposes a sentence that departs from the recommended guidelines sentence, the reasons for departure shall be orally articulated at the time sentence is imposed. Any departure sentence must be accompanied by a written statement, signed by the sentencing judge, delineating the reasons for departure. The written statement shall be filed in the court file within 7 days after the date of sentencing. A written transcription of orally stated reasons for departure articulated at the time sentence was imposed is sufficient if it is signed by the sentencing judge and filed in the court file within 7 days after the date of sentencing. The sentencing judge may also list the written reasons for departure in the space provided on the guidelines scoresheet and shall sign the scoresheet.”


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    A.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1686.
    District Court of Appeal of Florida, Second District.
    June 6, 2007.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

A.P., a fifteen-year-old girl, challenges the trial court order adjudicating her delinquent and committing her to a moderate risk placement. Because the record reveals that the trial court did not ensure that A.P. made a knowing and voluntary waiver of conflict-free counsel pursuant to Forsett v. State, 790 So.2d 474 (Fla. 2d DCA 2001), we reverse and remand for further proceedings.

The delinquency petition was based on the allegation that A.P. had battered her stepfather. At the commencement of the plea colloquy, the public defender representing A.P. informed the court in the presence of A.P. that he might have a conflict of interest representing A.P. because the public defender’s office had represented the victim, A.P.’s stepfather, on a prior domestic battery charge. The public defender then requested a Forsett inquiry, pursuant to which the defendant may voluntarily waive such a conflict if the following three requirements can be independently proven: (1) the defendant is aware of the conflict, (2) the defendant understands that the conflict could affect his or her defense, and (3) the trial court has informed the defendant of the right to obtain other conflict-free counsel. Id. at 475; see also Larzelere v. State, 676 So.2d 394, 403 (Fla.1996); Thomas v. State, 785 So.2d 626 (Fla. 2d DCA 2001); Lee v. State, 690 So.2d 664, 667 (Fla. 1st DCA 1997).

After the trial court questioned the public defender further about the nature of the prior representation and established that the public defender’s office had, in fact, represented A.P.’s stepfather on an unrelated domestic battery charge, the trial court conducted the following inquiry:

THE COURT: [A.P.], do you understand what [your public defender] just related?
[A.P.]: Yes, sir.
THE COURT: Okay. Has anybody forced you or threatened you to have [your public defender] continue as your lawyer?
[A.PJ: No, sir.
THE COURT: All right. I find that the juvenile has freely and voluntarily waived any conflict.

Applying the three-part Forsett test to the above, it can be seen that while A.P. was made aware that there was a conflict, there is no indication that she understood how this conflict could affect her defense or that she had the right to obtain conflict-free counsel. Because the three elements of the Forsett test were not independently proven, we conclude that the trial court erred in finding that A.P. voluntarily waived her counsel’s conflict of interest.

Furthermore, A.P.’s involuntary waiver cannot be deemed harmless. “The assistance of counsel is among those ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ ” Lee, 690 So.2d at 668 (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

Having concluded that the trial court erred in finding that A.P. voluntarily waived her right to conflict-free counsel, we reverse and remand for further proceedings.

Reversed and remanded.

FULMER, C.J., and SALCINES, J., Concur.

      . The fact that the public defender who represented A.P. in this case was not the same public defender who had represented the victim does not eliminate the conflict. See Rodriguez v. State, 767 So.2d 621 (Fla. 4th DCA 2000); Valle v. State, 763 So.2d 1175 (Fla. 4th DCA 2000).


author: ALTENBERND, Judge.

text:
    Eddie LEE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-4558.
    District Court of Appeal of Florida, Second District.
    June 6, 2007.
    Eddie Lee, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

In his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(e), Eddie Lee contends that his appellate counsel was ineffective for failing to argue on direct appeal that the instruction given to the jury on the offense of burglary constituted fundamental error. We agree that appellate counsel rendered ineffective assistance when he neglected to raise this issue. We therefore grant the petition, reverse Mr. Lee’s attempted burglary conviction, vacate the sentence imposed thereon, and remand for a new trial.

Mr. Lee was charged by information with burglary of a dwelling and misdemeanor battery. He was convicted, after jury trial, of attempted burglary of a dwelling, a lesser-included offense, and battery. The judgment and sentences were affirmed. Lee v. State, 911 So.2d 110 (Fla. 2d DCA 2005) (table decision). The testimony at trial established that the victim of the battery, Kaisha Herron, was visiting the residence of Catherine Wright. Ms. Wright’s son, at Mr. Lee’s request, relayed several messages to Ms. Herron requesting that she come outside of the apartment so that Mr. Lee might speak with her. Ms. Herron refused to come out. Mr. Lee apparently entered through the front door. None of the occupants gave him permission to enter. Once inside the apartment, Mr. Lee pushed and kicked Ms. Herron. Ms. Wright testified she had known Mr. Lee and his family for years and that he had been friends with her son, but he was not welcome in her home.

Without objection, the trial court instructed the jury that in order to convict on the crime of burglary the State must prove that “[a]t the time of entering the structure, Eddie Lee had a fully formed, conscious intent to commit the offense of burglary in that structure.” (Emphasis added.) Five years prior to the filing of the notice of appeal from the judgment and sentences in this case, this court had held that a circular burglary instruction such as the one given in the present case constituted fundamental error. Bernhardt v. State, 741 So.2d 1230, 1230 (Fla. 2d DCA 1999). However, because the correct burglary instruction was read to the jury and the trial transcript strongly suggested that the erroneous written instruction was not provided to the jury, we affirmed Mr. Bernhardt’s attempted burglary conviction without prejudice to his seeking relief through a sworn Florida Rule of Criminal Procedure Rule 3.850 motion. Id. Other district courts have held that the circular burglary instruction constitutes fundamental error. Lawrence v. State, 746 So.2d 1252, 1253 (Fla. 5th DCA 1999); Harrison v. State, 743 So.2d 178, 178 (Fla. 3d DCA 1999). In fact, the Fourth District in Bruce v. State, 879 So.2d 686, 687-88 (Fla. 4th DCA 2004), held that appellate counsel was ineffective for failing to argue on direct appeal that a circular burglary instruction almost identical to the one given in the present case was fundamental error.

We note that in Freeman v. State, 787 So.2d 152 (Fla. 4th DCA 2001), the court considered whether the exact instruction given in the present case rose to the level of fundamental error. The Freeman court held that it did not because, although the trial court instructed the jury that “at the time of entering the structure Kenneth Freeman had a fully-formed, conscious intent to commit the offense of burglary in the structure,” the trial court used the proper wording when it completed the burglary instruction to the effect that “[e]ven though an unlawful entering or remaining in the structure is proved, if the evidence does not establish that it was done with the intent to commit theft, the defendant must be found not guilty.” Id. at 153. The error was not fundamental because the latter portion of the burglary instruction “made it clear that the jury had to find an intent to commit theft along with an unlawful entry.” Id. at 154. In the present case, as well as the initial circular instruction, the jury was also instructed that “[e]ven though an unlawful entering or remaining in a structure is proved, if the evidence does not establish that it was done with the intent to commit an offense, the defendant must be found not guilty.” Unlike, in Freeman, the jury here was never instructed that the State had to prove that Mr. Lee committed a named offense such as theft inside the structure. Instead, in completing the burglary instruction, the trial court advised that the State had to prove Mr. Lee committed an “offense” inside the structure. The use of the word “offense” does not exclude the offense of burglary. Thus, this latter part of the burglary instruction did not remedy the initial circular portion of the instruction. We also note that, during deliberations, the jury requested an explanation of the difference between trespassing and burglary. The jury was then instructed to review the specific pages of the written jury instructions.

Had appellate counsel raised the issue of the fundamental error in the burglary instruction, we would have been compelled to reverse Mr. Lee’s conviction for attempted burglary. However, because a new appeal would be redundant in this case, we reverse Mr. Lee’s attempted burglary conviction, vacate the sentence on said conviction, and remand for a new trial.

Petition granted.

SALCINES and LaROSE, JJ., Concur.


author: LaROSE, Judge.

text:
    SOURCETRACK, LLC, a Nevada Limited Liability Company; Best Products, LLC, a Nevada Limited Liability Company; MV Venture Partners V, LLC, a Delaware Limited Liability Company; and Amherst Technologies, LLC, a Nevada Limited Liability Company, Appellants, v. ARIBA, INC., and Tradex Technologies, Inc., Appellees.
    No. 2D05-4908.
    District Court of Appeal of Florida, Second District.
    June 6, 2007.

      Kenneth P. McDuffie and Mary A. Pal-ma of Nall & Miller, LLP, Atlanta, GA, and Aubrey O. Dicus, Jr., and Mark P. Stopa of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellants.
    John R. Blue, Sylvia H. Walbolt, and Thomas J. Roehn of Carlton Fields, P.A., Tampa, and John Eichhorst and Jason M. Skaggs of Howard Rice Nemerovski Cana-dy Falk & Rabkin, San Francisco, CA, for Appellees.
   LaROSE, Judge.

SourceTrack, LLC, and some of its investor members (collectively SourceTrack) appeal a final judgment entered in favor of Ariba, Inc. (Ariba) and Tradex Technologies, Inc. (Tradex). SourceTrack - raises four issues on appeal. We write to address SourceTrack’s first issue, a challenge to the trial court’s ruling on a motion in limine. We find it unnecessary to address in detail SourceTrack’s remaining issues. We affirm.

Relevant Facts

SourceTrack was a nascent internet provider of purchasing services for businesses. In late 1999, it licensed from Tra-dex software necessary to conduct its business. The software licensing agreement (SLA) prevented SourceTrack from assigning or transferring its license rights without Tradex’s consent. In March 2000, Ariba acquired Tradex through a stock acquisition. Tradex became an Ariba subsidiary but ceased to operate. Its employees became Ariba employees. Tradex survived as a shell corporation.

No written document formally assigned the SourceTrack SLA with Tradex to Ari-ba. But, after Ariba acquired Tradex, SourceTrack dealt directly with Ariba on matters relating to the SLA. SourceTrack treated Ariba as a party to the SLA, made payments under the SLA to Ariba, and subsequently acknowledged that Ariba was a party to the SLA. Tradex did not object to this course of dealing.

In late 2000, SourceTrack began merger discussions with another company, Al-liente. Alliente asked Ariba to assign the SLA to Alliente. Ariba never consented to such an assignment. Nevertheless, negotiations between SourceTrack and Alliente continued, albeit without success. Financially strapped, SourceTrack ceased operations in April 2001.

In September 2001, SourceTrack sued Ariba and Tradex on various theories, including breach of contract and tortious interference. Prior to trial, Ariba and Tradex filed a motion in limine seeking to prevent SourceTrack from presenting any evidence or argument that Ariba had not obtained Tradex’s rights under the SLA. The trial court granted the motion.

Issue

SourceTrack argues that the trial court erred in granting the motion in limine. According to SourceTrack, the ruling was tantamount to granting a partial summary judgment in favor of Tradex and Ariba. SourceTrack contends that the trial court erroneously based its ruling on an equitable assignment or an equitable estoppel theory. In SourceTrack’s view, the in-limine ruling eviscerated its key claims and unduly prejudiced it throughout the month-long jury trial. After deliberating for approximately ninety minutes, the jury rendered a verdict rejecting each of Sour-ceTrack’s claims.

Analysis

As far as our record reflects, SourceTrack did not raise in the trial court its contention that the in-limine ruling im-permissibly granted a partial summary judgment. Consequently, SourceTrack waived the argument for appeal. See Watson v. State, 633 So.2d 525, 526 (Fla. 2d DCA 1994); Shofner v. Giles, 579 So.2d 861, 862 (Fla. 4th DCA 1991). Moreover, absent a transcript of the hearing on the motion in limine, we must affirm a ruling that is not fundamentally erroneous on its face. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); In re Read, 555 So.2d 869, 871 (Fla. 2d DCA 1989).

Unquestionably, there was no written assignment of the SLA from Tradex to Ariba. It is equally undisputed that after Ariba acquired Tradex, Tradex ceased to operate. Thereafter, SourceTrack dealt exclusively with Ariba concerning the SLA, paid Ariba under the SLA, and acknowledged that Ariba was a party to the SLA. SourceTrack argues, however, that Ariba and Tradex offered no evidence of their intent to assign the SLA and relied solely on SourceTraek’s dealings with Ari-ba to establish an equitable assignment. The extensive record before us reflects no trial court error.

A court may find an equitable assignment where necessary to effectuate the parties’ plain intent or to avoid injustice. Giles v. Sun Bank, N.A., 450 So.2d 258, 260 (Fla. 5th DCA 1984). “No particular words or form of instrument is necessary to effect an equitable assignment and any language, however informal, which shows an intention on one side to assign a right ... and an intention on the other to receive, if there is a valuable consideration, will operate as an effective equitable assignment.” Id. Giles found an equitable assignment in the context of an employment agreement where “[a]ll parties ... treated the arrangement as an assignment.” Id. at 261. We find ample record support for the trial court’s finding of an equitable assignment of the SLA. Source-Track’s dealings with Ariba reflected its understanding that Ariba now held the SLA. These dealings, to which Tradex did not object, coupled with Tradex’s cessation of operation, support the conclusion that Ariba and Tradex intended that Ariba would acquire rights under the SLA.

Because the record supports the granting of the motion in limine under an equitable assignment theory, we need not decide SourceTrack’s equitable estoppel argument. However, the parties have confused this theory somewhat in their arguments to us. Thus, we take the opportunity to explain its application. Essentially, Ariba and Tradex argue that SourceTrack treated Ariba as a party to the SLA and was estopped to claim that Ariba was a stranger to the SLA. Sour-ceTrack argues that it did not act fraudulently or misrepresent any material fact upon which Ariba and Tradex relied. Ar-iba and Tradex contend that fraud or misrepresentation are not necessary to establish equitable estoppel.

Both positions miss the mark as applied to our record. Equitable estoppel requires that: (1) the party against whom estoppel is sought made a representation about a material fact that is contrary to a position it later asserts, and (2) the party seeking estoppel detrimentally relied on that representation. See Watson Clinic, LLP v. Verzosa, 816 So.2d 832, 834 (Fla. 2d DCA 2002).

Estoppel is designed to prevent fraud and injustice. 22 Fla. Jur.2d Estop pel and Waiver §§ 31, 74 (2007). In contrast, waiver is the intentional relinquishment, express or implied, of a known right. Thomas N. Carlton Estate, Inc. v. Keller, 52 So.2d 131, 133 (Fla.1951). Although closely related, the doctrines of estoppel and waiver frequently are confused. Id. at 132-33. Waiver operates to “estop” one from asserting that upon which he otherwise might have relied, but it is not a true estoppel. Arbogast v. Bryan, 393 So.2d 606, 608 (Fla. 4th DCA 1981). Waiver does not require detrimental reliance. See Fireman’s Fund Ins. Co. v. Vogel, 195 So.2d 20, 24 (Fla. 2d DCA 1967); Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098, 1104 (Fla. 5th DCA 2006); Taylor v. Kenco Chem. & Mfg. Corp., 465 So.2d 581, 587 (Fla. 1st DCA 1985). None of the parties articulated precisely these distinctions. Yet, it is semantically more correct to view SourceTrack’s conduct toward Ariba, as reflected in the record, as a waiver of its right to assert that there was no assignment of the SLA.

Conclusion

The trial court did not abuse its discretion in granting the motion in limine. Further, its rulings on SourceTrack’s proposed jury instructions and on the claims of the investor members were correct. Accordingly, we affirm.

Affirmed.

KELLY and CANADY, JJ., concur.

      . In addition to challenging the ruling on the motion in limine, SourceTrack argues that the trial court erroneously refused to give special jury instructions it requested. As a whole, the given jury instructions fairly stated the applicable law; the trial court's refusal to give SourceTrack’s requested instructions was not an abuse of discretion. See Barbour v. Brink-er Fla., Inc., 801 So.2d 953, 959 (Fla. 5th DCA 2001). Similarly, the trial court committed no error in granting a directed verdict on SourceTrack's individual members’ claims against Ariba. The members failed to establish injury to them that was unique and distinct from any injury suffered by Source-Track. See Checkers Drive-In Rests., Inc. v. Tampa Checkmate Food Servs., Inc., 805 So.2d 941, 944 (Fla. 2d DCA 2001); Braun v. Buyers Choice Mortg. Corp., 851 So.2d 199, 203 (Fla. 4th DCA 2003).

      . SourceTrack urges us to review the trial court’s ruling de novo. Generally, however, we review rulings on motions in limine for an abuse of discretion. See Dessaure v. State, 891 So.2d 455, 466 (Fla.2004) (citing State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992)); Golden Yachts, Inc. v. Hall, 920 So.2d 777, 780 (Fla. 4th DCA 2006).


author: PER CURIAM.

text:
    D. STEPHENSON CONSTRUCTION, INC., a Florida corporation, Petitioner, v. Fidel MENDIGUREN and Fidel Mendiguren for and on behalf of Empire Finishes, Inc., Respondent.
    No. 4D07-524.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    John H. Pelzer and Robin F. Hazel of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for petitioner.
    Charles M. Kramer and Romney C. Rogers of Rogers, Morris & Ziegler LLP, Fort Lauderdale, for respondent.
   PER CURIAM.

Petitioner, D. Stephenson Construction, Inc., seeks a writ of certiorari to quash a trial court order which granted respondent, a minority shareholder, the right to inspect corporate records under section 607.1602(2), Florida Statutes (2006). A shareholder may inspect the types of records specified by section 607.1602(2) only if the requirements of subsection (3) are met. Section 607.1602(3) provides:

(3) A shareholder may inspect and copy the records described in subsection (2) only if:
(a) The shareholder’s demand is made in good faith and for a proper purpose;
(b) The shareholder describes with reasonable particularity his or her purpose and the records he or she desires to inspect; and
(c) The records are directly connected with the shareholder’s purpose.

Id. (emphasis added).

A five-minute motion calendar hearing was held on respondent’s claim for inspection of records where the court heard the argument of counsel but no evidence was presented. The court then entered an order granting the claim for inspection of records without making any findings or providing any reasoning for its decision.

We grant the petition and quash the trial court’s order. The order causes harm that cannot be remedied on appeal because it requires disclosure of “cat out of the bag” material, i.e., confidential corporate records. See Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla.1999). See also Eugene J. Strasser, M.D., P.A. v. Bose Yalamanchi, M.D., P.A., 669 So.2d 1142 (Fla. 4th DCA 1996); Picerne Dev. Corp. of Fla. v. Tasca & Rotelli, 635 So.2d 149 (Fla. 4th DCA 1994).

Petitioner alleges that respondent seeks the records for improper purposes which may harm the corporation. See § 607.1602(6), Fla. Stat. (2007) (providing that a corporation may deny a request for inspection under subsection (2) if the demand was made for an improper purpose). The trial court made no findings on petitioner’s claim that the requests were made for an improper purpose.

The trial court’s order departs from the essential requirements of law because it contains no findings regarding the elements that must be established under section 607.1602(3) before a shareholder request for inspection under section 607.1602(2) may be granted. Collier Anesthesia, P.A. v. Worden, 726 So.2d 342 (Fla. 2d DCA 1999). In Collier, the second district held:

Since the pleadings disputed the issue as to whether an accounting right existed, the trial court was first required to find that the [shareholders] were entitled to an accounting by meeting the criteria found in section 607.1602(3), Florida Statutes (1997), before granting the motion to inspect corporate records. The trial court erred by granting the [shareholders’] motion to inspect, which in essence was a motion for an accounting, without first determining that the [shareholders] have a right to an accounting.

Id. at 344.

Just as in Collier, the pleadings in this case disputed the respondent’s entitlement to the broad scope of corporate records requested. The face of the pleadings does not establish respondent’s right to the requested records. See Bartolucci v. Bartolucci, 399 So.2d 448 (Fla. 5th DCA 1981) (finding that, although right to an accounting was not determined, the pleadings on their face established the shareholder’s right to an accounting).

Many of the requested records do not appear to be “directly connected” to respondent’s alleged proper purpose of “stock valuation.” See Jewelers Int’l Showcase, Inc. v. Mandell, 529 So.2d 1211 (Fla. 3d DCA 1988) (holding that where a stockholder’s primary purpose is to determine value of stock, generally only tax returns, general ledger of corporation, profit and loss statements, and corporate stockbooks are the sole relevant records which the corporation must produce for inspection).

Respondent alleged in its response to this court that the records are necessary to assess an alleged $500 tax liability, but the requested records do not on their face appear directly connected to this alleged purpose either. Neither the letter requesting the records, nor the complaint for inspection of the records, contains any explanation as to why the records are necessary for the stated purpose of stock valuation. Cf. Computer Solutions, Inc. v. Gnaizda, 633 So.2d 1100, 1101-02 (Fla. 3d DCA 1994) (denying certiorari relief from order compelling inspection where the request for inspection was supported by an affidavit from shareholder’s accountant explaining why particular records needed to be inspected). The alleged tax liability is conspicuously absent from the letter demanding to inspect the records in this case.

Before ordering inspection of the records under section 607.1602(2), the trial court was required to find that the elements of section 607.1602(3) were established. Accordingly, we quash the trial court’s order granting the request and remand for further proceedings consistent with this opinion.

We decline to address the merits of petitioner’s argument that respondent has improperly joined two causes of action seeking relief in different capacities, i.e., derivatively on behalf of a corporation and individually as a shareholder. Fla. R. Civ. P. 1.110(g); Dep’t of Ins. of State of Fla. v. Coopers & Lybrand, 570 So.2d 369 (Fla. 3d DCA 1990). It does not appear from the record that petitioner raised this argument below. All other claims of error are moot.

Petition Granted; Remanded for Further Proceedings.

STONE, SHAHOOD, HAZOURI, JJ., concur.


text:
    Morris WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-91.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.

      Morris Williams, Immokalee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Morris Williams (Defendant) appeals an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse in part.

Defendant was charged with trafficking in 200 grams or more but less than 400 grams of cocaine; two counts of resisting with violence; and possession of less than 20 grams of cannabis. After the denial of his motion to suppress, he entered a negotiated guilty plea. The written agreement provided that if the court accepted his plea, his sentence would be a life sentence, mitigated to seven years as a habitual violent felony offender (HVFO) upon his surrender for sentencing without an arrest. At his plea hearing, after telling him the maximum sentence he faced for each charge, the judge explained that if he appeared as agreed for his sentencing, his sentence for count I would be seven years as a HVFO, with a seven-year mandatory minimum; for counts II and III, it would be five years; and for count IV, time served. No fine was mentioned in the written agreement or during the colloquy in which Defendant’s plea was accepted.

Thereafter, Defendant appeared for sentencing pursuant to the agreement. He was sentenced to time served for the last count, a misdemeanor, as agreed, but he was sentenced concurrently to seven years for each of the other three counts. On the trafficking count he was sentenced as an HVFO with a seven-year mandatory minimum, as well as under section 893.135(l)(b). On the other two counts, he was sentenced as an HVFO and with a five-year mandatory minimum as a Prison Releasee Reoffender (PRR). The sentence also included a $100,000 fine for the trafficking count.

The sole issue which Defendant raised on direct appeal was whether the trial court erred by failing to affirmatively offer him an opportunity to withdraw his guilty plea before imposing a sentence more severe than that contemplated by the plea negotiations, an issue which had not been preserved for appeal by a motion to withdraw the plea.

Following this court’s affirmance of the direct appeal, Defendant timely filed the instant motion for postconviction relief, raising eight grounds, the sixth of which was ineffective assistance of counsel for failing to object to the imposition of a more severe sentence than the one contemplated by the negotiated plea. He sought to withdraw his plea and proceed to trial.

In his memorandum of law, Defendant claimed the fine was illegal, citing Floyd v. State, 739 So.2d 1241 (Fla. 2d DCA 1999) (reversing summary denial of rule 3.800(a) motion challenging imposition of $10,000 fíne for violation of section 893.135(l)(b)l.a., Fla. Stat. (1991), because defendant was sentenced under section 775.084, which does not authorize any fines, and directing the trial court to strike the fine on remand), limited by Baker v. State, 941 So.2d 419 (Fla. 2d DCA 2006).

The Second District has limited its opinion in Floyd. In Baker, it concluded that the fine imposed in Floyd actually was the $10,000 discretionary fine allowed under section 775.083, which is not allowed if a habitual sentence is imposed. Baker, 941 So.2d at 420. However, the court found that the mandatory fine required by section 893.135 was lawfully imposed in addition to a term of imprisonment pursuant to section 775.084. Id. at 421. We agree with the state, therefore, that the $100,000 fine imposed here was not illegal.

Nevertheless, the fact that the fine was mandatory does not detract from Defendant’s claim that he should have been allowed to withdraw his plea because it did not contemplate the imposition of such a fine, or the longer than anticipated sentences and PRR minimum mandatory terms imposed for counts II and III. It is a basic principle that the defendant should be granted an opportunity to withdraw his plea if the court imposes a sentence exceeding the negotiated sentence. Goins v. State, 672 So.2d 30, 32 (Fla.1996); Hall v. State, 765 So.2d 282 (Fla. 4th DCA 2000); Green v. State, 784 So.2d 1244 (Fla. 2d DCA 2001).

Accordingly, we reverse and remand for further proceedings with respect to ground six of the motion. We affirm without discussion the summary denial of the other seven grounds for relief.

Affirmed in part, Reversed in part, and Remanded.

GUNTHER, POLEN and FARMER, JJ., concur.


author: STONE, J.

text:
    Jeffry SCHWENN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3680.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.

      Jeffry Schwenn, Blountstown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Schwenn appeals the trial court’s summary denial of his rule 3.850 motion for post-conviction relief.

In a sixty-seven page motion, Schwenn raised multiple claims of ineffective assistance of counsel. The state, in its response, argued that the trial court should deny relief, on technical grounds, primarily the length of the motion, without prejudice to re-file the motion. The state suggested that the court should instruct Schwenn to review rule 3.850(c), which requires a brief statement of facts. The state argues that Schwenn’s sixty-seven page motion exceeded even the limits for an appellate brief.

The trial court order denied post-conviction relief for the reasons stated in the response. It, thus, appears to deny relief because of the length of the motion. We reverse.

Schwenn argues that, as rule 3.850 does not contain a page limit for motions, the trial court should have ruled upon the merits of his motion. Nothing in rule 3.850 contains a similar limitation to that contained in rule 3.851, which explicitly imposes a seventy-five page limit to a motion for collateral relief after a death sentence is imposed. See Fla. R.Crim. P. 3.851(e)(1).

Patently, Florida Rule of Appellate Procedure 9.210, imposing a fifty page limit to appellate briefs, does not apply to a rule 3.850 motion. However, the question remains whether the trial court has discretion to impose a page limit on such a motion.

In Gidney v. State, 925 So.2d 1076 (Fla. 4th DCA 2006), we upheld the dismissal of Gidney’s motion without prejudice for Gid-ney to re-file a sufficient claim where his motion and memoranda of law were “excessively verbose.” Id. at 1077. However, the circumstances here are clearly not as egregious as those in Gidney. Gidney filed a memoranda of law that did not number the pages, and the court estimated that it exceeded 250 pages. Id. Furthermore, Gidney also filed a 176-page initial brief, a twenty-two page supplement to the initial brief, a 51-page second supplement to the initial brief, and additional documents with this court. Id. at 1077 n. 1. Schwenn’s motion, by contrast, is typed, with fourteen point font and one inch margins and apparently contains a reasoned discussion of the relevant case law. Schwenn was also sentenced to nine consecutive life sentences. In Gidney, on the other hand, the appellant entered into a plea, and his claims were uncomplicated.

While Schwenn’s motion may not rise to the excessive level of Gidney, we conclude that a trial court has authority to place reasonable page limitations on such filings. In its response to this court s show cause order, the state notes that six pages of the motion were a discussion of the standard of review and claims four and five may be redundant.

In Henry v. State, 937 So.2d 563 (Fla.2006), the supreme court recognized that district courts “may impose reasonable page limits on petitions for extraordinary writs.” Id. at 575-76; see also Basse v. State, 740 So.2d 518 (Fla.1999). In Basse, the Second District struck a petition below and ordered the petitioner to file an amended petition that did not exceed fifty pages, citing to rule 9.210(a)(5). Id. at 519. Basse filed a petition for writ of prohibition in the Florida Supreme Court, arguing that rule 9.210(a)(5) applies only to appellate briefs, and there is no page limitation for extraordinary writs. Id.

The Basse court recognized that there was no page limitation in the rules for extraordinary writs, but stated that a lower court could impose a reasonable page limit on a petition for extraordinary writ. Id. The court agreed that rule 9.210(a)(5) could serve as a reasonable benchmark from which a district court could derive its fifty page limit. Id. at 520. The court also held that the petitioners must be given an opportunity to show good cause for filing a longer petition, just as longer briefs may be permitted by courts. Id.

We can discern no reason why rule 9.210(a)(5) cannot also be used as a benchmark for a trial court’s restricting a post-conviction motion to fifty pages absent a showing of good cause for filing a longer motion. We conclude that, here, the trial court’s alternatives, if the motion was excessive, were to dismiss Schwenn’s motion with leave to amend, or issue an order to show cause why the motion should not be dismissed without prejudice.

In Bryant v. State, 901 So.2d 810 (Fla.2005), the circuit court entered an order striking Bryant’s 3.851 motion. When Bryant re-fíled his 3.851 motion, the circuit court determined that it did not have jurisdiction over the motion because it was untimely filed. Id. at 816. The supreme court noted that trial courts can strike or dismiss post-conviction motions when they fail to comport with pleading requirements, but that a trial court, when dismissing, should grant the party leave to amend. Id. at 818. If a motion is dismissed or stricken with leave to amend, then the amendment would relate back to the original motion and would be timely. See id.

We do not decide, here, whether Schwenn’s motion meets a test for allowing extended pages. Rather, we conclude that it was an abuse of discretion to deny relief without considering the merits of the motion. The proper procedure is to order the movant to show cause why the motion should not be dismissed for abuse of a reasonable page limit or to dismiss the motion without prejudice to amend. Accordingly, we reverse the order and remand for the trial court to either resolve the motion, as filed, on the merits or to consider the alternatives provided above.

GUNTHER and HAZOURI, JJ., concur.


author: FARMER, J.

text:
    MHM SERVICES, INC., Appellant, v. Lanard PERRY, Appellee.
    No. 4D06-2572.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Rehearing Denied June 29, 2007.

      Scott L. Cagan of Katz, Barron, Squite-ro, Faust, Fort Lauderdale, and Lee Calli-garo of Epstein, Becker & Green, PC., Washington, D.C., for appellant.
    Jennifer Daley and William R. Amlong of Amlong & Amlong, P.A., Fort Lauder-dale, for appellee.
   FARMER, J.

The issue raised on appeal presents an important question concerning the statute requiring nonbinding arbitration in pending civil actions. We affirm the decision under review.

A terminated employee sued his former employer for unpaid compensation relating to different agreements at different times for commissions and bonuses. The employee was hired as the Regional Marketing Coordinator. In the first agreement he claimed he was to be paid commissions of .5% on revenues and .5% on net profits for contracts sold. In the second agreement, made one year after he assumed his position, he claimed he was to be paid additional commissions for recruiting.

So in his complaint initiating the action against his former employer, he divided his claims into two counts. Count I was based on the first agreement; count II was based on the second agreement.

In due course the trial court entered an order requiring nonbinding arbitration under section 44.103(2), Florida Statutes (2006). The arbitrator found in favor of the employee on count I and awarded $4,500 plus prejudgment interest. On count II, the arbitrator found in favor of the employer and awarded nothing.

The arbitrator’s decision was filed on January 17th. Nine days later, on January 26th, the employee filed a notice accepting the arbitrator’s decision on count I, together with a notice of voluntary dismissal as to the remaining claim (count II) of the complaint. His notice specified that his acceptance of the arbitrator’s decision as to count I was “without prejudice” as to claim II which was dismissed. One day later the employer filed a motion for judgment on the arbitrator’s award but did not demand a jury trial on any issue.

The employee thereupon also moved for the entry of judgment on the award. The employer filed a memorandum opposing the dismissal of the remaining claim and sought final judgment against the employee. The employer argued that the attempted voluntary dismissal of the remaining claim was a “nullity” and that it was entitled to judgment on the arbitrator’s decision in its favor as to count II.

The trial judge held a hearing and heard extensive argument from both sides. In the end the court emphasized that after the arbitrator’s decision the employer did not timely request a trial on the only claim remaining. The court further stated that it felt bound by our decision in Broward Yachts Inc. v. Denison, 871 So.2d 954 (Fla. 4th DCA 2004), to allow the voluntary dismissal to stand while entering judgment on count I in accordance with the arbitrator’s decision. The court also noted that if the employee should refile the claim in count II, the employer was free to interpose its argument that the claim would be barred by the doctrine of res judicata or collateral estoppel but saw no need to determine that issue under the circumstances then existing.

We agree with the trial judge’s analysis. Neither side demanded a trial as to the claim represented by the second count within 20 days of the arbitration decision. Both sides accepted the arbitrator’s decision as to the first count, and so that claim was decided by the arbitration and was no longer subject to litigation. Nonbinding arbitration under section 44.103 is meant to be just that — nonbinding. The employer’s argument would effectually make it binding on the employee. The right to trial in a court on civil claims is of constitutional dimensions, with litigants having both the right to access to the courts and to trial by jury. They also have the right by prior agreements to waive litigation and submit specified claims to arbitration. Their right to make such agreements, however, does not mean that binding arbitration can be required over their objection when prior agreement is lacking. Statutes such as this may serve the public interest, but they cannot be construed to weaken these constitutional rights of litigants.

Before the expiration the 20-day period, the employee removed the only remaining claim from the court by voluntary dismissal. It is true that rule 1.420(a) does not allow partial voluntary dismissals of less than the whole action. But in this instance, with both sides accepting nonbinding arbitration on the first claim, the only claim left in the action was the second claim. The whole action had thereby devolved into only a single claim. In this circumstance there is no violence to the ban on partial voluntary dismissals.

We also agree with the trial judge that our decision in Broivard Yachts tilted in favor of the employee. There was enough difference in the two separate claims that it could not be said that a decision on one of them ipso facto disposed of the other. We used comparable reasoning in Broward Yachts where we said:

“In the present case the claims were discrete. Although the second agreement referred to the first agreement, the agreements involved entirely separate subjects. Their only relationship was, as we noted above, that if respondents breached the first agreement, they could be liable for greater damages under the second agreement. There is no result which could obtain from the trial involving the second agreement, which would affect the liability or damages under the first agreement.”

871 So.2d at 956.

Affirmed.

GUNTHER and STONE, JJ„ concur.


author: SHAHOOD, J.

text:
    B.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2163.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

This is an appeal by B.H., a child, from his judgment and conviction on the charge of possession of more than twenty grams of cannabis. The issue involved is whether the trial court erred in denying appellant’s motion to suppress. We affirm.

At the hearing on the motion to suppress, the State called Captain Greg Kirk, a twenty-five year veteran at the Fort Pierce Police Department. He testified that the area where he arrested appellant is “notorious for prostitutes being picked up there.”

While on duty in plain clothes and driving an unmarked police car he noticed a known prostitute by the name of Miss Donner waive her hand at a station wagon that was making a right hand turn. The car ignored her and continued to drive. Kirk called in to get a marked unit to stop Donner and do a field interrogation on her. Before the marked unit got there, Kirk observed appellant and a black male walking north when Donner approached them for a brief conversation. All three then walked north and a grey Dodge pulled up to them. Appellant jumped into the backseat of the car along with Donner. Two black males occupied the front seats and they traveled north. After traveling about three hundred yards, the car pulled into a driveway and Donner exited in a furtive manner.

The car then did a very quick u-turn in the driveway and Kirk decided to stop them, so he turned on his blue lights. The car continued to roll but did not stop. While the car rolled, Kirk observed appellant in the back seat lying over and the right front passenger looking back like something was going on.

When the car eventually stopped, Kirk got out and started to approach the driver’s side door when Officer Darren Mace arrived. Kirk continued to the driver’s side and directed Officer Mace to the other side of the car. While talking to the driver, Kirk observed that appellant was out of the car and heard Officer Mace ask if there were any guns or drugs in the car to which appellant replied yes. The appellant directed the officer to look underneath the front seat. Drugs were found and appellant said that they were his.

Kirk testified that he had probable cause that the driver committed two, three, or four traffic infractions and drove in an erratic manner. While no ticket was given, the driver did receive a warning.

The State next called Officer Mace to testify. Officer Mace testified that he asked the two individuals he was questioning whether there was anything that he needed to know about and appellant stated that “I don’t wanna get anybody in trouble, but I have some weed underneath my, my seat.”

The State rested and the defense called appellant to testify. On cross-examination, appellant admitted that the driver of the car drove the wrong way when exiting the parking lot. He also admitted that he did holler at the girl.

In denying the motion to suppress, the court found:

The Court finds and concludes there was reasonable suspicion for law enforcement to stop and search the vehicle in which the Child was a passenger because the Commander observed a known prostitute get into the car with the Child in the back seat and then saw the prostitute’s head go down on the Child. No evidence was presented by the defense to rebut or refute that testimony.

The stopping of a motorist is reasonable where a police officer has probable cause to believe a traffic violation has occurred. See Whren v. United States, 517 U.S. 806, 819, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Holland v. State, 696 So.2d 757, 759 (Fla.1997); Petrel v. State, 675 So.2d 1049, 1050 (Fla. 4th DCA 1996). The test is whether a police officer could have stopped the vehicle for a traffic violation. See Petrel, 675 So.2d at 1050.

In this case, Kirk testified that he observed the vehicle which appellant was in to have gone the wrong way on a one-way street. Appellant admitted that the driver pulled out of the driveway going the wrong way. It is a noncriminal traffic infraction to drive in the opposite direction upon a roadway so designated for one-way traffic. § 316.088(2), Fla. Stat. (2005). Kirk testified that he had probable cause that the driver committed a traffic violation. Kirk also said that the car was driving in an erratic manner, committing two, three, or four traffic infractions. This was sufficient to stop the vehicle.

In this case, based on the officers’ testimony, as well as that of appellant, the probable cause test was met. While it may not be sufficient to allow a “known prostitute” to ride in a car, there was sufficient testimony regarding the traffic violation to affirm the trial court’s denial of the motion to suppress. See Lowery v. State, 766 So.2d 417, 417 (Fla. 4th DCA 2000) (“This court may affirm a trial court decision deemed ‘right for a different reason’ under the ‘tipsy coachman’ rule.”).

Affirmed.

GROSS and MAY, JJ., concur.


text:
    Keith PRIDE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2656.
    District Court of Appeal of Florida, First District.
    June 6, 2007.
    Keith Pride, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    Marcus L. COLSTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3413.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Carratelli v. State, 915 So.2d 1256 (Fla. 4th DCA 2005); Jenkins v. State, 824 So.2d 977 (Fla. 4th DCA 2002).

WARNER, KLEIN and HAZOURI, JJ., concur.


author: FULMER, Chief Judge.

text:
    Ceon GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2448.
    District Court of Appeal of Florida, Second District.
    June 13, 2007.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Chief Judge.

Ceon Gordon appeals from his conviction for trafficking in cocaine. Because the record and the parties’ briefs indicate that the facts surrounding Gordon’s participation in the alleged offense are virtually identical to those surrounding Tony Person, who was tried together with Gordon, see Person v. State, 950 So.2d 1270 (Fla. 2d DCA 2007), and because the application of the relevant law is the same, see id., without further discussion we reverse Gordon’s judgment and sentence with instructions that he be discharged.

Reversed and remanded with instructions.

DAVIS and LaROSE, JJ., Concur.


text:
    Tony B. JOBE, Former Husband, Appellant, v. Beverly J. JOBE, n/k/a Beverly J. Sassano, Former Wife, Appellee.
    No. 1D07-0732.
    District Court of Appeal of Florida, First District.
    June 13, 2007.
    Tony B. Jobe, pro se, Appellant.
    J. Ladon Dewrell, Ft. Walton and William J. Ritchie of Pleat & Perry, P.A., Destín, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order issued on March 9, 2007, this case is hereby dismissed without prejudice to the appellant’s right to appeal upon entry of a final order. See Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002).

LEWIS, POLSTON, and ROBERTS, JJ., concur.


text:
    Catherine THOMAS, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and C & N of Palm Beach, Appellees.
    No. 4D07-531.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Catherine Thomas, Delray Beach, pro se.
    No brief filed for appellees.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

KLEIN, SHAHOOD and HAZOURI, JJ., concur.


text:
    Carla IENCO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 3D06-2355.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.
    Carla lenco, in proper person.
    Louis A. Gutierrez, Senior Attorney, for appellee.
    Before COPE, C.J., and FLETCHER and LAGOA, JJ.
   PER CURIAM.

Affirmed. See North Miami General Hospital, Inc. v. Plaza, 432 So.2d 723 (Fla. 3d DCA 1983).


author: SCHWARTZ, Senior Judge.

text:
    Michael Vander WYDEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1374.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.
    Michael F. Vander Wyden, for appellant.
    Bill McCollum., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

After appellant pled to several serious charges, he was given a bottom-of-the-guidelines sentence of two years in state prison followed by ten years probation. He now challenges the sentence claiming that the trial court should have entered a downward departure and that it incorrectly failed to consider sentencing treatment under the Youthful Offender Act. We lack even the authority to consider the trial court’s failure to downward depart. See Jorquera v. State, 868 So.2d 1250, 1252-53 (Fla. 4th DCA 2004); Winther v. State, 812 So.2d 527 (Fla. 4th DCA 2002); Patterson v. State, 796 So.2d 572, 573-74 (Fla. 2d DCA 2001), review denied, 817 So.2d 849 (Fla.2002). In any event, on the merits, neither an abuse of the trial court’s discretionary decision not to downward depart nor a failure to consider the Youthful Offender Act as an available sentencing option, as was the case in Blackmon v. State, 616 So.2d 587 (Fla. 1st DCA 1993), has been demonstrated. The sentence under review is therefore affirmed.

Affirmed.


author: GROSS, J.

text:
    PANTON & CO. REALTY, INC., a Florida corporation, Appellant, v. Brad T. WOOD, Merle Wood & Associates, Inc., a Florida corporation, and 17th Street Realty, Inc., a Florida corporation, Appellees.
    No. 4D06-1497.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Bruce S. Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, and Michael P. Hamaway of Mombach, Boyle & Hardin, Fort Lauderdale, for appellant.
    Mike Pfundstein of Mike Pfundstein, P.A., Fort Lauderdale, for appellees.
   GROSS, J.

Panton & Co. Realty, Inc. appeals from an adverse summary final judgment granted on claims arising from two separate real estate transactions. Finding issues of material fact that preclude summary judgment, we reverse.

The first transaction involved a residence purchased by John Roth. Viewing the facts in the light most favorable to Panton, appellee Brad Wood struck a deal with Panton to split the real estate commission from the Roth sale 50/50. At the time, Brad Wood had an inactive real estate license, although he held himself out to Panton as a licensed real estate associate. Through his brother Merle, Wood procured Roth as a client. Using the stationary of appellee, 17th Street Realty, Inc., a licensed broker who employed his girlfriend, Brad Wood confirmed the fee splitting deal in writing and admitted that he expected to receive compensation. After the Roth transaction closed, 17th Street Realty directed Panton to make the entire commission check payable to appel-lee Merle Wood & Associates, Inc., a yacht brokerage business owned by Merle. Following these directions, Panton paid $91,875 to Merle Wood & Associates.

The second transaction involved the sale of Merle Wood’s home. Using his brother Brad as a go-between, Merle Wood engaged Panton to be the listing agent. Although no fee splitting arrangement is in writing, appellees contend that Panton agreed with Brad Wood to split its commission 50/50 with 17th Street Realty. Panton denied the existence of any such agreement. The sale of Merle Wood’s home generated a fee of $104,000 to the listing agent. The transaction closed, but this commission was held by an escrow agent.

The escrow agent commenced an inter-pleader action. 17th Street Realty cross-claimed against Panton, alleging a breach of the oral agreement with Brad Wood; Panton crossclaimed against 17th Street Realty contending that it was entitled to the full $104,000 commission on the Merle Wood sale. Also, Panton filed a third party claim against Brad Wood and Merle Wood & Associates seeking return of the commission previously paid on the Roth transaction, alleging that Brad Wood was not a licensed real estate sales associate. Panton contended that Brad Wood’s failure to comply with the licensing requirements of section 475.41, Florida Statutes precluded Brad Wood from receiving any commission on the Roth or Wood transactions.

The trial court granted appellees’ motions for summary judgment, holding that Brad Wood’s actions did not violate section 475.41 as a matter of law.

The instant litigation turns on the application of section 475.41, Florida Statutes (2002), which reads:

No contract for a commission or compensation for any act or service enumerated in § 475.01(3) is valid unless the broker or sales associate has complied with this chapter in regard to issuance and renewal of the license at the time the act or services was performed.

A person “operates” as a broker if he commits a single act described in Chapter 475 as “constituting or defining a broker.” § 475.01(3), Fla. Stat. (2002). A person acts as a broker if, inter alia, he holds out to the public by an oral representation that he is engaged in selhng the real property of others or directs or assists in the procuring of prospects, “for a compensation or valuable consideration directly or indirectly paid or promised expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration.” § 475.01(a), Fla. Stat. (2002).

Viewing the facts in the light most favorable to Panton, we find issues of material fact when applying section 475.41 to these transactions. Brad Wood held himself out to Panton as a licensed real estate agent. He took part in procuring a buyer and a seller who engaged Panton for real estate transactions. His participation in the real estate deals was for compensation or with an intent to receive compensation. One view of the evidence is that 17th Street Realty was but a straw man in both transactions.

We therefore reverse the partial final judgment entered on March 15, 2006, and remand for further proceedings.

SHAHOOD and TAYLOR, JJ., concur.


text:
    M.G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3552.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm appellant’s conviction and disposition, but remand to the trial court to correct an apparent scrivener’s error in the': Disposition Order. Appellant was found guilty after an adjudicatory hearing; he did not plead nolo contendere.

STONE, POLEN and GROSS, JJ., concur.


text:
    Keith TRIBBLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1537.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    See also, 948 So.2d 52.
    Keith Tribble, San Luis Obispo, California, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion for additional jail credit for time served in jail in another state. Appellant filed the motion seeking additional credit following our decision in Tribble v. State, 948 So.2d 52 (Fla. 4th DCA 2007). We write to clarify that a trial court may, but is not required to, award credit for time served in jail in another state when the defendant was incarcerated there based solely on Florida charges. Kronz v. State, 462 So.2d 450 (Fla.1985) (holding that the jail credit statute applies to Florida jails only and not to jails in other states, but courts have discretion to award credit when the defendant is incarcerated in another state based solely on Florida charges). The rule of Gethers v. State, 838 So.2d 504 (Fla.2003), applies to time served in jail in another Florida county only, not to time served in jail in another state.

Here, appellant is clearly not entitled to additional jail credit, because the records he identified show that he was incarcerated in another state on unrelated charges. Hopping v. State, 650 So.2d 1087 (Fla. 3d DCA 1995) (holding that “[w]hen a prisoner is incarcerated in another state on charges unrelated to a Florida charge, detainer, or warrant, that prisoner is not entitled to credit for time served in the other state”) (citation omitted).

GUNTHER, FARMER and KLEIN, JJ., concur.


text:
    Simon SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3776.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Simon Scott, seeks review of the trial court’s sentencing order. The court’s original sentence was vacated, and appellant was resentenced after the decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), were rendered. At resentencing, the trial court found that appellant was not entitled to be sentenced under the holdings in Apprendi and the case clarifying it, Blakely.

Appellant acknowledges that this court’s decisions in Garcia v. State, 914 So.2d 29 (Fla. 4th DCA 2005), Hamilton v. State, 914 So.2d 993 (Fla. 4th DCA 2005), Thomas v. State, 914 So.2d 27 (Fla. 4th DCA 2005), and Brown v. State, 940 So.2d 498 (Fla. 4th DCA 2006), are contrary to his position. We certified conflict in those cases with the First District Court of Appeal in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005). Appellant urges this court to reconsider those decisions or certify conflict with Isaac.

We decline to reconsider our decisions in the above cases. However, we certify conflict with the opinion in Isaac to the extent that it holds Apprendi and Blakely are to be applied in resentencing in cases where convictions were final prior to those cases.

Affirmed; Conflict Certified.

GROSS and MAY, JJ., concur.


author: WARNER, J.

text:
    Alonzo CANN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4710.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Rehearing Denied July 12, 2007.
    Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

Appellant was tried and convicted of sexual battery on a person less than twelve years of age and lewd or lascivious molestation. In this appeal he contends that the court erred by denying his request to permit the child to testify in the presence of the jury; in allowing Williams rule evidence which shows only propensity to commit a sex crime against a child, specifically challenging the constitutionality of the statute allowing such evidence; by denying his right to introduce evidence through cross-examination; and by denying his motion for mistrial for improper prosecutorial argument. We affirm on all issues.

Cann’s wife was walking to her bedroom when she heard a noise that she recognized as one Cann would make when the two of them engaged in intercourse. She opened the door to see her seven-year-old granddaughter, C.C., lying on her back on the bed with Cann, pants down around his ankles, bent over the child, his body moving up and down. C.C.’s pants were also pulled down. Their groin areas were touching. The wife screamed, and Cann pleaded, “It’s not what you think.”

The wife called the police, and they interviewed C.C. Cann was charged, and the case proceeded to trial. During trial the child testified on closed circuit television to the facts of the incident in graphic detail and admitted that this had occurred on more than one occasion. She also testified that he would make her touch his penis, including with her lips, and he would make her look at pornographic pictures of girls and boys doing the same thing.

The child’s aunt, now in her twenties, testified that when she was about the same age as C.C., Cann attempted to have sexual intercourse with her, although she never told her mother about it. This evidence was introduced as Williams rule evidence. Over objection as to relevance, the aunt also testified that Cann grabbed her breasts and tried to untie her bathing suits. Again over objection, the state introduced into evidence a letter the aunt had written to her mother when the aunt was fourteen, describing the abuse by Cann. The aunt also testified that Cann told her that he had received the letter but had not given it to the mother because of her ill health at the time.

As part of his defense, Cann presented expert witnesses who attempted to discredit the wife’s testimony due to her depression and psychological issues. Cann called one expert to criticize the method and manner in which C.C. was interviewed to cast doubt on C.C.’s testimony. The state offered rebuttal expert testimony to Cann’s defense. The jury convicted Cann of both charges, and the court sentenced him to life in prison for the sexual battery and a concurrent sentence of thirty years for lewd and lascivious molestation. He appeals.

Prior to trial, the court determined that C.C.’s testimony could be presented by closed circuit television to avoid trauma to C.C. from having to testify in front of Cann and in the jury setting. The trial court received a report indicating that the child would suffer emotional trauma should she be required to testify in court. At trial, Cann requested that C.C. be required to testify in the presence of the jury instead of by closed circuit television. He offered that he would exit the courtroom and observe her testimony through closed circuit television. He wanted the jury to observe her demeanor while testifying. The court denied the motion, agreeing with the state that the jury would still be able to observe her demeanor over the television.

Section 92.54, Florida Statutes, authorizes the court to allow a child to testify outside of the courtroom by closed circuit television if the court determines that testifying in court would result in at least moderate emotional or mental harm to the child. Through this procedure, the jury is permitted to see the child witness while she or he testifies. In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Court determined that such a procedure did not violate the Confrontation Clause. However, in Craig the defendant objected to the procedure because he would not be face-to-face with the child witness.

Here, Cann does not assert a right to face-to-face confrontation but instead asserts the right to have the witness testify in the jury’s presence. As the Court explained in Craig,

[T]he right guaranteed by the Confrontation Clause includes not only a “personal examination,” [Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 39 L.Ed. 409 (1895) ], but also “(1) insures that the witness will give his statements under oath-thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and] (3) permits the jury that is to decide the defendant’s fate to observe the demean- or of the witness in making his statement, thus aiding the jury in assessing his credibility.” [California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ].
The combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is rehable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.

Id. at 845-46, 110 S.Ct. 3157. However, in approving the Maryland statute which permitted the child to testify over closed circuit television, the court found that Maryland preserved all elements of the confrontation right except the defendant’s right to face-to-face confrontation:

Maryland’s statutory procedure, when invoked, prevents a child witness from seeing the defendant as he or she testifies against the defendant at trial. We find it significant, however, that Maryland’s procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation-oath, cross-examination, and observation of the witness’ demeanor-adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition.... We are therefore confident that use of the one-way closed circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause.

Id. at 851-52, 110 S.Ct. 3157. Thus, the Court found that the essential elements of the Confrontation Clause were satisfied with such an arrangement, except for the presence of the defendant. We conclude that this means that closed circuit television is a permissible substitute for in-court testimony to permit the jury to observe the demeanor of the witness in making its credibility determinations. In this case, Cann’s argument conflicts with Maryland v. Craig in that he contends that the similar Florida procedure violates the Confrontation Clause when it prevents the child from live testimony in front of the jury.

Here, a psychologist determined that the child would suffer considerable trauma from both testifying in court and testifying in the presence of the defendant Cann. Moreover, the trial court made the requisite finding of the necessity of the use of the closed circuit television procedure. Notably, Cann does not assert a right of face-to-face confrontation with C.C., but rather only seeks to have C.C. testify in the courtroom. Craig supports the constitutionality of the procedure used, and the trial court did not abuse its discretion in denying the defendant’s motion to require C.C. to testify in the presence of the jury.

During trial the state introduced the testimony of C.C.’s aunt as Williams rule evidence and pursuant to section 90.404(2)(b). Section 90.404(2)(b)l. provides: “In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” Cann does not argue that the court erred in admitting the aunt’s testimony regarding Cann’s attempt to have intercourse with her when she was about the same age as C.C. He does, however, object to the admission of evidence that Cann later grabbed her breasts and attempted to untie her bathing suit when she was older, as well as those of her friends. The state argued at trial that this evidence was admissible pursuant to the statute, because similarity was no longer a criterion for admissibility of such evidence in child abuse cases. However, the state was wrong.

In McLean v. State, 934 So.2d 1248 (Fla.2006), the court held section 90.404(2)(b) constitutional and reconciled it with section 90.403 which requires the court to weigh the probative value of evidence with its prejudice. The court explained that similarity of the prior acts continued to be relevant in making that calculation. The court explained:

[T]he similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403.
The similarity of the collateral act of molestation and charged offense is a critical consideration for the trial court in conducting an appropriate weighing under section 90.403. The trial courts are gatekeepers in ensuring that evidence of prior acts of child molestation is not so prejudicial that the defendant is convicted based on the prior sexual misconduct.

Id. at 1259.

It then articulated a nonexclusive list of factors a court should consider in determining whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice including:

(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances.

Id. at 1262.

Based upon McLean, we conclude that the evidence of incidents of Cann grabbing the breasts of C.C.’s aunt when she was a teenager and his attempting to untie her bathing suit had no similarity to the charged crime, and none of the factors enunciated in McLean would support its admission. Nevertheless, we conclude that introduction of the evidence was harmless, as the crucial evidence of the similar sexual attack when the aunt was the same age as C.C. was admissible. The evidence of appellant grabbing breasts and trying to undo the bathing suit was brief. While Cann also complains of the aunt’s additional testimony regarding her subsequent life history, he did not object to most of this evidence. Therefore, no reversible error occurred.

Later in the trial, the state elicited a spontaneous statement made by Cann when he was arrested. The defense then tried on cross-examination to introduce a tape of a controlled call made by the wife to Cann prior to his arrest. The call was made in an attempt to get Cann to make incriminating statements. However, the state did not introduce the tape, and the rule of completeness does not require its admission. See Hoffman v. State, 708 So.2d 962 (Fla. 6th DCA 1998).

Finally, Cann complains of improper prosecutorial closing argument. Any error committed by the state was corrected in its subsequent argument and was harmless beyond a reasonable doubt.

For these reasons, we affirm Cann’s conviction and sentence.

GROSS and TAYLOR, JJ„ concur.

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


text:
    Andre HILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1044.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Andre Hill appeals his jury conviction for robbery with a firearm and concomitant life sentence, arguing that the trial court erred in denying his motion for judgment of acquittal. We affirm.

The charges arose from an armed robbery of a man on a bicycle. The victim identified Hill’s cousin as the man who stole his money at gunpoint and identified Hill as the driver of the getaway car. Hill contends that the state’s evidence is entirely circumstantial and that there is no evidence to overcome his explanation for his conduct, which, he argues, is a reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187, 189 (Fla.1989).

Shortly after the robbery, Officer Gilroy was searching for the described vehicle when he observed a car matching the description with two males in the front seat. The police car and the suspects’ car were traveling in opposite directions; the driver accelerated when he realized he was looking at a law enforcement officer. A chase began. Gilroy radioed the investigating officer with a description and got confirmation that the car matched the one described by the victim. The officer activated his lights in an effort to stop the speeding suspects, but they did not stop. Eventually, the car came to a dead end and a fence, forcing it to halt. Both occupants exited the passenger side; the passenger immediately escaped through a gap in the fence. Gilroy testified that Hill next exited the vehicle with his hands raised before he took off running through the same gap in the fence.

Hill admitted that he was the driver of the car on the night of the robbery and described watching his cousin, the co-defendant, pull out a gun while robbing the victim. He told the jury that he had stopped the car at his cousin’s behest. Hill stated that he did not get out of the car, remaining in the car about twenty feet away, unable to hear the conversation because the windows were closed. Hill claimed that he did not know what his cousin was going to do.

The cousin got back into the car and directed Hill to “mash the gas” and take off. Questioned about his elusive maneuvers fleeing from police, Hill said that he thought there must have been an arrest warrant out for him because of an unpaid bill with a bondsman who had bonded him out on a misdemeanor charge just days before the incident, and he was trying to avoid arrest. Hill contends that he was surprised by his cousin’s actions and had done nothing to encourage, incite, or participate in the robbery. The defense rested its case and renewed its motion for judgment of acquittal.

Hill’s defense theory was that he could not be held responsible as a principal for his cousin’s actions because there was no proof that he had done anything beyond drive the car, and only circumstantial evidence of his intent.

The day of sentencing, Hill’s attorney renewed the motion for judgment of acquittal, on the same grounds as argued at trial, claiming the state failed to provide evidence inconsistent with Hill’s hypothesis of innocence.

Our review of the motion for judgment of acquittal is de novo. Smith v. State, 949 So.2d 253 (Fla. 4th DCA 2007). Hill was tried and convicted as a principal to the robbery. “In order to be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” Staten v. State, 519 So.2d 622, 624 (Fla.1988). Hill admitted driving the car, and there is direct evidence of his actions to assist. However, the case turns on whether Hill intended that the crime be committed. Hill contends that there is no direct evidence of the requisite specific intent, only circumstantial.

In ruling on a motion for judgment of acquittal, it “is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state.” Law, 559 So.2d at 189 (emphasis in original).

Although it could well be argued that this is not a circumstantial evidence case, we conclude that, in any event, there is substantial evidence inconsistent with innocence and indicative of guilt. We recognize that mere knowledge that an offense is being committed does not equate to participation with criminal intent, and mere presence at the scene, including driving a perpetrator to and from the crime, or a display of questionable behavior after the fact, is not, alone, sufficient to establish participation. See West v. State, 585 So.2d 439 (Fla. 4th DCA 1991); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972). Here, however, the evidence is that Hill watched his cousin rob the cyclist, waited for him to get back in the car, and took off, ultimately fleeing the police in a high speed car chase, followed by flight on foot.

Although the Second District, in Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980), reversed a defendant’s conviction as a principal for a robbery committed by his brother, finding the evidence insufficient despite a high speed chase, there is a significant difference. The Pack court found the state failed to refute the defense theory that he had simply driven his brother to a store and waited in the car while his brother went inside and, unbeknownst to him, robbed it. In that case, there was no evidence that the driver/principal knew that his brother was committing a robbery. Id. at 1200. Here, Hill watched as his cousin pulled out the gun and robbed the victim, waited for the gunman to get back in the car, and took off with his cousin, the fruits of the crime, and the gun.

The state is not required to conclusively rebut every possible variation of events which could conceivably be inferred from the evidence. We deem Hill’s conduct, on its face, to be inconsistent with a claim of innocence. Whether Hill’s flight was evidence of his intent to participate in the crime, or was simply out of fear of arrest on a possible warrant for not paying a bondsman on a misdemeanor charge, was a proper question for the jury.

GUNTHER and FARMER, JJ., concur.

      . In cross-examination by the state, the victim acknowledged stating in a deposition that Hill might have also gotten out of the car, but we do not consider the disputed fact in our analysis.


text:
    John Alan SWAIT, Appellant, v. Tracy Lynette SWAIT, Appellee.
    No. 4D06-4132.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Chester G. McLeod, Pembroke Pines, for appellant.

      No appearance for appellee.
   SHAHOOD, J.

John Alan Swait (“appellant”) filed a supplemental petition for modification of alimony. Tracy Lynette Swait (“appel-lee”) filed an amended motion to dismiss appellant’s petition for lack of prosecution pursuant to rule 1.420(e), Florida Rules of Civil Procedure (2006). The trial court granted appellee’s motion. We reverse and remand with directions to the court to reinstate appellant’s supplemental petition.

“Although dismissals for lack of prosecution pursuant to rule 1.420(e) of the Florida Rules of Civil Procedure are without prejudice, and not res judicata, they are final for purposes of appellate review.” Hunnewell v. Palm Beach County, 925 So.2d 468, 469 (Fla. 4th DCA 2006). “The abuse of discretion standard is triggered only if the trial court must make a determination of good cause.” Id. (quoting Metro. Dade County v. Hall, 784 So.2d 1087, 1090 n. 4 (Fla.2001)). Here, we review the trial court’s construction of a rule of civil procedure using the de novo standard. Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla.2006).

Rule 1.420(e), Florida Rules of Civil Procedure (2006), provides:

In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person ... may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice ... the action shall be dismissed by the court.... Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

The language requiring notice and a sixty-day grace period was added in the 2005 Amendment to the rule. The newly amended rule became effective January 1, 2006. See In re Amendments to The Florida Rules of Civil Procedure, 917 So.2d 176, 177 (Fla.2005). Regarding the 2005 Amendment, the Committee Notes to rule 1.420(e) provide: “Subdivision (e) has been amended to provide that an action may not be dismissed for lack of prosecution with-, out prior notice to the claimant and adequate opportunity for the claimant to recommence prosecution of the action to avert dismissal.” This court recognized in Hunnewell that the amendment sets out a new procedural framework. 925 So.2d at 469 n. 1.

“Under the prior version of the rule, the defending party could file a motion to dismiss without notice if there had been no record activity in the case for one year.” Philip J. Padovano, Florida Civil Practice § 12.3 (2007 ed.). Judge Padovano explains the new procedure as follows:

As a prerequisite to filing a motion to dismiss under this rule, the defending party must serve notice on the claimant that there has been no record activity in the case for ten months. The claimant then has sixty days to take some action to advance the progress of the case. If there is no record activity during the sixty-day period following service of the notice, the defending party may then file a motion to dismiss for failure to prosecute.

Id. (emphasis supplied).

The new rule does not change that the minimum period of inactivity required pri- or to a motion to dismiss for lack of prosecution is one year. However, notice is now a prerequisite to the motion. “[E]ven if the absence of record activity has continued for more than a year, an action cannot be dismissed under the amended rule without the required notice and opportunity to re-commence prosecution.” Bruce J. Ber-man, Florida Civil Procedure ¶ 420.5[3] (2007 ed.).

Appellee’s motion to dismiss, the hearing on that motion, and the trial court’s order all occurred in 2006, after the effective date of the amended rule. The amended rule applies in the present case. See Erickson v. Breedlove, 937 So.2d 805, 806 n. 1 (Fla. 5th DCA 2006)(applying pre amendment version of the statute where all relevant events at the trial court level took place prior to effective date of the amendment); Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So.2d 422, 424 n. 2 (Fla. 2d DCA 2006)(same).

The last record activity prior to appel-lee’s motion to dismiss for lack of prosecution was appellee’s motion for extension of time to file response to pleadings. Eleven months passed. The appropriate action for appellee to take under the rule once ten months had passed was to serve appellant with notice that no action had occurred within a ten-month period. Appellant would then have sixty days to take appropriate action to avert dismissal. Instead, appellee skipped the notice requirement and went directly to filing the motion to dismiss for lack of prosecution. We hold that it was error for the trial court to grant appellee’s motion.

Based on the foregoing, we reverse and remand for the trial court to reinstate appellant’s supplemental petition for modification of alimony.

Reversed and Remanded.

GROSS and MAY, JJ., concur.