author: TORPY, J.

text:
    Todd L. MOE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2976.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    Rehearing Denied Jan. 8, 2007.
    Flem K. Whited, III, and David H. Fox-man of The Whited Law Firm, Daytona Beach, for Appellant.
    James Russo, Public Defender, and Rigo Armas, Assistant Public Defender, Sanford, Amicus Curiae for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

In this DUI case, the county court has certified to us the following question of great public importance:

UNDER THE CRIMINAL RULES OF DISCOVERY AND THE HOLDING IN STATE V MULDOWNY, [871 So.2d 911 (Fla. 5th DCA 2004) ], CAN THE STATE OF FLORIDA BE REQUIRED TO PRODUCE THE SOURCE CODE FOR THE SERIES 5000 INTOXILYZER?

Under the facts of this case, we answer the question in the negative and, by doing so, approve the ruling of the county court.

Appellant was arrested, tried and convicted of DUI based, in part, on the result of a breath test administered using the Intoxilyzer 5000. The Intoxilyzer 5000 is a machine used to analyze a breath sample to determine a person’s blood-alcohol level. It is manufactured by CMI, Inc., a Kentucky corporation. No challenge has been advanced pertaining to the accuracy of Appellant’s particular test results. The parties stipulated that the machine has been tested in accordance with applicable regulations and that all of the tests revealed that the machine’s test results were within acceptable tolerances.

Through a discovery motion filed pursuant to Florida Rule of Criminal Procedure 3.220, Appellant sought from the State the source code for the Intoxilyzer’s software. Appellant’s stated reason for seeking the production of the source code was to verify whether the machine, in its present configuration, has been substantially modified from a prior, approved version of the machine. When the State failed to produce the source code, Appellant sought an order from the court compelling the State to produce it. After hearing, the lower court denied the motion.

It is without dispute that the State does not have possession of the source code because it is the property of CMI, Inc. It is also without dispute that the code is a trade secret of CMI, Inc. and that CMI, Inc. has invoked its statutory and common law privileges protecting the code from disclosure. Therefore, the State cannot obtain possession of the code.

Appellant acknowledges the general rule that, pursuant to the criminal discovery rules, the State is not obligated to produce information that is not within its possession or control. Appellant urges, however, that the State is obligated to either produce the information or suffer the imposition of sanctions pursuant to the disclosure obligation imposed upon it by section 316.1932(l)(f)4., Florida Statutes (2004), as construed in our decision in State v. Muldowny, 871 So.2d 911 (Fla. 5th DCA 2004). We disagree.

Section 316.1932(1X04., Florida Statutes (2004), which applies to alcohol testing, requires that the State provide “full information concerning the test taken.... ” Nothing in the language of this statute manifests a legislative intent that the State must furnish information that cannot be obtained by it; neither did our decision in Muldowny interpret the statute in this manner. In Muldowny, we held that the lower court did not abuse its discretion when it imposed sanctions because the State had disobeyed a discovery order requiring that it produce the operator’s manual, maintenance manual and schematic for the Intoxilyzer 5000. Muldowny did not address the situation presented here, wherein the lower court, after hearing evidence, concluded that the defendant’s motion to compel production of the information should be denied because the information could not be obtained by the State.

We have considered the remaining points on appeal and find them to be without merit.

AFFIRMED; CERTIFIED QUESTION ANSWERED.

PLEUS, C.J., and MONACO, J., concur.

      . See State v. Wright, 803 So.2d 793 (Fla. 4th DCA 2001); State v. Miranda, 777 So.2d 1173 (Fla. 3d DCA 2001).

      . The statute was subsequently amended to limit the disclosure requirement to enumerated items. The State urges that we should consider the amendment as evidence of what was intended by the Legislature in the original version of the statute. In light of our holding and the narrow question presented here, we find it unnecessary to address this argument.


source: Caselaw Access Project

author: SALCINES, Judge.

license: Public Domain

text:
    Edgar Villafuerte GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1125.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2006.
    Edgar V. Garcia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Edgar Villafuerte Garcia appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Garcia raised three grounds of error. We affirm the denial of grounds one and two without further comment. We reverse the denial of ground three and remand for further proceedings.

In ground three, Garcia asserted that trial counsel rendered ineffective assistance when he failed to utilize peremptory challenges at jury selection to strike potential jurors whose ability to be impartial allegedly was questionable. Garcia’s motion alleged potential prejudice in three jurors and argued how their seating on the jury panel resulted in an unfair trial. See Paredes v. State, 921 So.2d 32, 34 (Fla. 3d DCA 2006). In summarily denying relief on this ground, the trial court found that there was no legal merit to the claim, but did not provide any record attachments to refute Garcia’s claim or to support its ruling.

Accordingly, we reverse that portion of the order denying relief as to ground three. On remand, the trial court may again summarily deny the claim only if it includes record attachments that conclusively refute Garcia’s allegations of ineffective assistance of counsel. Otherwise, an evidentiary hearing will be necessary.

Affirmed in part, reversed in part, and remanded.

FULMER, C.J, and SILBERMAN, J., Concur.


author: NORTHCUTT, Judge.

text:
    G.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4177.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2006.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

We reverse the restitution G.C. was ordered to pay because the State failed to prove a nexus between the victim’s loss and the trespass charges admitted in G.C.’s no contest plea.

G.C. allegedly entered the property of D.B. Construction and took an all-terrain vehicle called a “Gator cart.” He was charged with grand theft of a motor vehicle, § 812.014(2)(c)(6), Fla. Stat. (2004); burglary of a conveyance, § 810.02(4)(b); and trespass on property other than a structure or conveyance, § 810.09(l)(a), (2)(a). Pursuant to a negotiated plea agreement, the State nol prossed the grand theft charge, and G.C. pleaded no contest to trespass in a conveyance, § 810.08(1), as a lesser of the burglary charge, and trespass on property.

The State sought restitution for the loss of the Gator cart, which was apparently never recovered. G.C. objected and argued that there was no nexus between the trespass charges to which he pleaded and damages for the loss of the Gator cart. When established by a preponderance of the evidence, § 775.089(7), Fla. Stat. (2004), restitution is awarded for damage or loss “caused directly or indirectly by the defendant’s offense” and “related to the defendant’s criminal episode,” § 775.089(l)(a). See also § 985.231(l)(a)(6) (allowing court to order restitution “for any damage or loss caused by the child’s offense”). The Florida Supreme Court has explained that restitution awards must be based on “both a ‘but for’ causation requirement and a ‘significant relationship’ requirement.” Schuette v. State, 822 So.2d 1275, 1282 (Fla.2002).

By pleading no contest to trespass, G.C. admitted only to entering or remaining in the vehicle without permission. See § 810.08(1). He did not admit to grand theft, and in the plea deal the State abandoned that charge without securing G.C.’s agreement to pay restitution for the victim’s loss occasioned by the theft of the Gator cart. See § 775.089(l)(b)(2) (“A plea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant to which the defendant did not specifically enter a plea.”).

Therefore, to obtain a restitution award for the loss of the vehicle, the State had to show that the loss would not have occurred but for the trespass. See, e.g., Socorro v. State, 901 So.2d 940, 941 (Fla. 5th DCA 2005) (“[I]f ‘but for’ the criminal episode, damages would not have been incurred by the victim, restitution is proper.”); Davis v. State, 741 So.2d 1213 (Fla. 2d DCA 1999) (reversing restitution for stolen items when defendant pleaded to attempted burglary, not theft, and there was no significant relationship between offense and victim’s loss). Because the State failed to prove the causation or nexus between G.C.’s trespass and the victim’s loss, we reverse the restitution order. In all other respects, we affirm the adjudication of delinquency and order of probation.

Affirmed in part; reversed in part; remanded.

FULMER, C.J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: PER CURIAM.

text:
    Timothy WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4484.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2006.
    Rehearing Denied Jan. 2, 2007.

      Timothy Wilson, pro se, Appellant.
    Charlie Crist, Attorney General, for Ap-pellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of September 8, 2006, we dismiss this appeal for lack of jurisdiction. On May 7, 2002, the trial court entered an order denying the appellant’s motion for postconviction relief. The appellant then filed a timely motion for rehearing that was denied by the trial court on July 1, 2002. Following the denial of the original motion for rehearing, the appellant filed a “Motion for Rehearing Refiled” and a “Motion to Amend Motion for Rehearing.” These motions were not denied by the trial court until July 11, 2006. The appellant filed his notice of appeal on July 25, 2006.

Rules 9.110(b) and 9.140(b)(3) require the appellant to file his or her notice of appeal within thirty days of rendition of the order to be reviewed. Although the rendition of an order is delayed if an authorized and timely motion for rehearing is filed, Fla. R.App. P. 9.020(h), the appellant’s “motion for rehearing refiled” and “motion to amend motion for rehearing” were not authorized, as the defendant had already filed an authorized motion for rehearing that had been denied. See Griffis v. State, 593 So.2d 308 (Fla. 1st DCA 1992) (noting that unless a motion for rehearing is clearly authorized, the motion does not postpone rendition of the order); Johnson v. Johnson, 902 So.2d 241 (Fla. 1st DCA 2005) (noting that for purposes of determining the timeliness of an appeal, a second motion for rehearing is ordinarily unauthorized); cf. Fla. R.App. P. 9.330(b) (“A party shall not file more than 1 motion for rehearing or for clarification of decision and 1 motion for certification with respect to a particular decision.”). Because the notice of appeal was filed more than 30 days after rendition of the order and the unauthorized motions for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b).

In his response to this Court’s order to show cause, the appellant requests that this court grant him a belated appeal. However, a petition for belated appeal must be filed within two years of the order being appealed becoming final, unless the appellant asserts that he was not advised of his right to appeal and should not have discovered the existence of that right through the exercise of due diligence. See Fla. R.App. P. 9.141(c)(4)(A); Snell v. State, 849 So.2d 1139 (Fla. 1st DCA 2003). The order denying the appellant’s motion became final on July 1, 2002, when the trial court denied the appellant’s original motion for rehearing. The appellant’s request for a belated appeal comes more than two years after the order became final, and he has not alleged that he was not advised of his right to appeal. Thus, the appellant is not entitled to a belated appeal.

DISMISSED.

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


text:
    Steven MERCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5152.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Rehearing Denied Jan. 12, 2007.
    Steven Mercer, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, WEBSTER, and POLSTON, JJ., concur.


author: HAWKES, J. ERVIN, J.,

text:
    John BREWER, Appellant, v. LABORFINDERS OF TAMPA, Appellee.
    No. 1D06-0228.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Rehearing Denied Dec. 27, 2006.
    John F. Sharpless, Tampa, for Appellant.

      Jeffrey M. Novell of Hinshaw & Culbertson LLP, Tampa, for Appellee.
   HAWKES, J.

John Brewer (claimant), appeals a workers’ compensation order in which the Judge of Compensation Claims dismissed his petitions for benefits on the ground that a release executed between Brewer and Laborfinders of Tampa, the employer, satisfied all of his workers’ compensation claims. We affirm.

In a claim unrelated to his workers’ compensation case, Brewer executed a document that released Laborfinders “from any and all claims and demands, past, present or future, known or unknown,” which claimant ever had or now has, “from the beginning of the world to the date of the date of these presents, ..., including but not limited to, ... any and all claims ... growing out of, resulting from, or connected in any way to Employee’s employment with [Laborfinders].” This all inclusive language generally bars all claims which matured prior to execution of the release, even those claims unrelated to the litigation that resulted in the release. See Plumpton v. Cont’l Acreage Dev. Co., 830 So.2d 208, 210 (Fla. 5th DCA 2002) (citing Mulhem v. Rogers, 636 F.Supp. 323 (S.D.Fla.1986)). This language is also broad enough to cover petitions for workers’ compensation benefits. Pateo Transport, Inc. v. Estupinan, 917 So.2d 922, 923 (Fla. 1st DCA 2005). Because the release language was unambiguous, the JCC properly excluded parol evidence.

The record indicates that at the time Brewer executed this release, he was represented by workers’ compensation counsel, but failed to inform counsel of the release before it was executed. However, the fact that Brewer did not inform his counsel, and counsel did not advise him in regard to the release is irrelevant. Pursuant to Pateo, the JCC need inquire no further than to determine whether a claimant was represented by counsel when he entered the settlement agreement, not whether he chose to take advantage of counsel’s representation. See id. at 924.

The JCC’s order is AFFIRMED.

WEBSTER, J., concurs.

ERVIN, J., concurs and dissents with opinion.

ERVIN, J.,

concurring and dissenting.

I concur with the majority in affirming all issues raised except that affirming the finding that claimant was represented by counsel at the time the release was executed, which resulted in the conclusion by the judge of compensation claims (JCC) that the validity of the release was controlled by the provisions of section 440.20(ll)(c), Florida Statutes (2003), relating to releases secured through the assistance of counsel, rather than those provided in section 440.20(ll)(b), pertaining to unrepresented claimants, which, unlike subsection (ll)(c) states, among other things, that a JCC shall determine whether the agreement “is clearly for the best interests of the person entitled to compensation.” In contrast, the only judicial approval needed for a settlement agreement signed by a claimant represented by counsel under section 440.20(ll)(c) is as to the amount of attorney’s fees to be paid by claimant to his or her counsel. In my judgment, the JCC erred as a matter of law in interpreting section 440.20(ll)(c) to mean that a claimant must be considered represented in a situation where his earlier retained lawyer was not later involved in either the negotiation or execution of the agreement.

In so concluding, I find nothing in Pateo Transport, Inc. v. Estupinan, 917 So.2d 922 (Fla. 1st DCA 2005), review denied, 932 So.2d 192 (Fla.2006), addressing the issue of whether the provisions of section 440.20(ll)(c) are applicable to a situation as here where an attorney had previously made an appearance on behalf of an employee by filing petitions for workers’ compensation benefits, but otherwise played no role in securing compensation for his client through a settlement agreement. The reason that no such issue was raised in Pateo is first, it appears from a reading of the opinion that no claim for workers’ compensation was pending at the time the parties executed the release, and second, the employee was actively represented by counsel at the time the agreement was signed. As Pateo plainly states, the only issue before the court was whether the terms of a general release clearly and unambiguously barred a claim for workers’ compensation benefits. If this were the only issue raised in the present ease, I would have no hesitation in agreeing to affirm because the language of the release on review is substantially similar to that in Pateo; however, no question was asked in Pateo whether claimant could be considered represented by an attorney, thereby requiring the application of section 440.20(ll)(c).

In order to explain my position sufficiently, I consider it necessary to recite certain facts in addition to those set out in the majority’s opinion. Following his industrial accident of September 24, 2004, claimant, through his attorney, filed the first of two petitions for benefits on April 22, 2005, seeking authorization of three medical procedures recommended by his treating physician. Despite the knowledge of the employer that claimant was represented by workers’ compensation counsel, both executed the agreement on May 19, 2005, without, however, the signature of claimant’s attorney, and it recited that in exchange for the employer’s payment of certain sums over a period of several weeks, claimant would release the employer from “any and all claims.”

Because the JCC considered the language of the release clearly expressed the parties’ agreements, she refused to allow the admission of parol evidence explaining the contract’s terms. She did, however, permit claimant to proffer testimony of what he considered the agreement meant. Claimant testified that approximately two months before the release’s execution he was approached by employer’s regional manager, who offered him $8,000 in exchange for his release of the employer from liability. Claimant rejected the offer, but later submitted a counteroffer, agreeing by letter that in return for the employer’s payment of $15,000 to him, “all matters between the company and myself [would be closed,] save the ongoing work-mans’ comp situation.”

As earlier stated, I am in complete accord with the majority in deciding that the JCC correctly ruled the terms of the agreement were clearly stated, with the result that all additional claims for compensation were barred. The JCC’s decision in this regard does not, however, foreclose the question of whether the claimant could be said to be represented by counsel at the time of the agreement’s execution. If it were determined that he was not represented, despite the lack of ambiguity in the agreement, the JCC is still required to decide whether its provisions “will definitely aid the rehabilitation of the injured worker or otherwise [are] clearly for the best interests of the person entitled to compensation.” § 440.20(ll)(b).

In the present case, not only was the agreement unsigned by claimant’s counsel, but the JCC also found that claimant had not consulted with his previously retained workers’ compensation counsel before signing the release. Despite so finding, she further ruled that because claimant’s attorney had filed a petition for benefits on behalf of his client before the date of the agreement, “claimant was represented by workers’ compensation counsel at the time he signed this agreement,” and, because of such representation, she was only required by section 440.20(ll)(c) to approve any attorney’s fee which claimant might owe to his lawyer. The JCC thereupon concluded, in that the terms of the agreement were unambiguous, and she was not required by subsection (ll)(c) to review the reasonableness of its terms, claimant had released all of his claims, thereby requiring that the two petitions for benefits be dismissed. In that the JCC’s decision is grounded on an interpretation of law, we review that decision by the de novo standard.

In reaching such conclusion, the JCC overlooked the legal effect of the absence of counsel’s signature on the stipulation during the time that claimant was purportedly represented by him. Florida Rule of Judicial Administration 2.060(c) requires that every pleading and other paper of a party represented by an attorney be signed by the attorney, including his or her address, telephone number, and Florida Bar number. Subsection (c) continues that “[i]f a pleading is not signed ..., it may be stricken and the action may proceed as though the pleading or other paper had not been served.” Subsection (d) of the rule permits an unrepresented party to “sign any pleading or other paper.” Thus, a party’s signature on a pleading or other paper while represented by an attorney subjects that document to dismissal. See Colby Materials, Inc. v. Caldwell Constr., Inc., 926 So.2d 1181, 1184 (Fla.2006); Torrey v. Leesburg Reg’l Med. Ctr., 769 So.2d 1040 (Fla.2000).

The legislature is of course presumed to be aware of existing law relevant to the legislation at the time it enacts subsequent statutes. See State v. Dunmann, 427 So.2d 166 (Fla.1983); Oldham v. Rooks, 361 So.2d 140 (Fla.1978). In addition to the pertinence of that statutory presumption, the language of section 440.20(ll)(c) itself, when considered in pari materia with that of section 440.20(ll)(b), does not reasonably imply that claimant could be considered represented by counsel at the time of the agreement’s execution, in regard to facts showing the total lack of a lawyer’s participation in a settlement agreement. This conclusion is supported by the legislative history of section 440.20(11).

Before the creation of subsection (c), the JCC had the responsibility of reviewing and approving all proposed lump-sum settlements as to both represented and non-represented claimants for the purpose of ensuring that they had reached the point of maximum medical improvement, that attorney’s fees were within the percentages permitted by law, and that the settlement submitted was in their best interests. See § 440.20(ll)(b), Fla. Stat. (2000). Included within the 2001 amendments was the addition of subsection (c), which provides in part: “[W]hen a claimant is represented by counsel, the claimant may waive all rights to any and all benefits under this chapter by entering into a settlement agreement releasing the employer and the carrier from liability for workers’ compensation benefits in exchange for a lump-sum payment to the claimant.” The subsection additionally excuses the parties from submitting any information in support of the agreement, “except as needed to justify the amount of the attorney’s fees.”

The provisions of section 440.20(ll)(c) stand in sharp contrast to those in section 440.20(ll)(b), which continue to provide that an agreement of an unrepresented claimant to a lump-sum amount in exchange for the E/C’s release from liability for future claims after he or she has attained maximum medical improvement is subject to “such investigations as [the JCC] considers necessary” for the purpose of deciding whether the agreement is in the best interests of the person entitled to compensation.

Because of the differences in the language of the two statutes, I am firmly convinced that the legislature, by creating the 2001 amendments, did not intend for the term “represented” to encompass agreements in which a claimant’s attorney of record was not involved. The provision of attorney’s fees for represented employees under subsection (c), and the absence of such provision under subsection (b) as to unrepresented claimants, reasonably implies the legislative intent that attorneys actively participating in the preparation of the agreement should receive a fee for their services in achieving a settlement agreement on behalf of their clients. The absence of language in subsection (c), formerly provided in section 440.20(ll)(b), Florida Statutes (2000), as to both represented and unrepresented claimants, which had required the JCC to review the terms of an agreement for the purpose of deciding whether it was in the employee’s best interests, further reflects the legislative intent that subsection (c) was designed in part to delegate such responsibility to counsel, in consultation with his or her client, rather than to the discretion of a judge.

Because I conclude that a claimant whose attorney was completely uninvolved in the negotiation or execution of a settlement agreement cannot be reasonably characterized as a person represented by counsel under the terms of section 440.20(ll)(c), I am of the opinion that the provisions of section 440.20(ll)(b), pertaining to nonrepresented claimants, are applicable, thereby requiring that the JCC review the agreement for the purpose of determining, among other things, whether it would aid in claimant’s rehabilitation or is clearly in his best interests.

      . A second petition was filed on August 9, 2005.

      . Although the letter was not submitted as part of the proffer, claimant’s attorney used a copy of the letter to refresh claimant’s recollection by reading its contents into the record.

      . Florida Administrative Code Rule 60Q-6.103(l)(d) similarly provides all documents filed with the Office of the Judges of Compensation Claims shall contain the name of the attorney representing the party and his or her Florida Bar number. Moreover, in regard to the procedure applicable to settlement agreements in particular, the provisions of rule 60Q-6.123(l)(a)l. should be taken into proper account, stating that joint petitions for settlement must be accompanied by the settlement petition signed by "all attorneys of record and the employee or claimant.”

      . The above provisions are currently retained in section 440.20(1 l)(b), Florida Statutes (2003), only as to unrepresented claimants.

      . See ch. 2001-19, § 17, Laws of Fla.

      .I note that the JCC's order implicitly found that the agreement was not in claimant’s best interests, because she otherwise observed that if she had determined the release to be ineffective, she would find the accident compen-sable and would award impairment and other benefits.


author: TAYLOR, J.

text:
    AVATAR DEVELOPMENT CORPORATION, a Florida corporation, Appellant, v. Adelina DeANGELIS, Appellee.
    No. 4D06-173.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Rehearing Denied Jan. 24, 2007.
    John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.
    J. Alfredo De Armas of Alvarez, Armas & Borron, P.A., Coral Gables, for appellee.
   TAYLOR, J.

Avatar Development Corp. appeals a post-judgment order granting appellee Adelina De Angelis’s motion for a writ of execution as to the prejudgment interest amount calculated eight months after the final judgment. We reverse, because the prejudgment interest was waived when it was not calculated and included as a sum certain in the original final judgment nor requested to be calculated by rehearing or amendment within ten days of the order.

On March 23, 2005, the trial court entered a final judgment in favor of Adelina De Angelis in a lawsuit related to the construction of a new home. After discussing the awardable damages, the court stated:

Since these are liquidated damages she is also entitled to prejudgment interest. On the $386,927 claim, prejudgment interest runs from April 9, 2003, when the Defendant declared her in default and terminated the contract. On the $138,073 claim, prejudgment interest runs from June 11, 2003, which was the date the Defendant resold the property. The Court finds in favor of the Plaintiff as set forth above, for which let execution issue.

At the time the final judgment was entered by the order, the trial court did not address the applicable interest rates or calculate the actual amount of prejudgment interest for appellee. Appellee did not request a rehearing or move to amend the order to calculate a sum certain for prejudgment interest within ten days of the order, pursuant to Fla. R. Civ. P. 1.530.

On April 29, 2005, Avatar timely appealed in case number 05-1842 and filed a supersedeas bond covering everything except the prejudgment interest. On December 12, 2005, appellee filed a motion for a writ of execution on the amount that was not superseded by the bond, that is, the prejudgment interest. Over Avatar’s objection, the trial court granted the motion and entered an order which calculated the amount of prejudgment interest as $50,088.49 on the larger award and $16,443.93 on the smaller award. The court applied a 6% interest rate for the 2003 periods and a 7% interest rate for the 2004 periods in arriving at these totals. The court permitted execution on these amounts unless the supersedeas bond was increased within ten days. Avatar appealed, arguing that the trial judge lost jurisdiction to set the prejudgment interest amount and that prejudgment interest was waived when it was not calculated and included as a sum certain in the original final judgment.

In McGurn v. Scott, 596 So.2d 1042, 1045 (Fla.1992), the Florida Supreme Court was faced with a final judgment that had reserved jurisdiction to award prejudgment interest. The court held that the plaintiff was deemed to have waived any matter reserved for future adjudication, with the exception of attorney’s fees and costs. McGum is arguably distinguishable, in that there the trial court did not rule on the prejudgment interest question at all. Here, however, the court purported to award prejudgment interest but simply failed to calculate the amount.

In McGurn, the court noted that under Florida Rule of Appellate Procedure 9.600(b), the district court may in its discretion direct the trial court to address matters improperly reserved if the district court decides that it is equitable to do so. Thus, De Angelis could have requested that we relinquish jurisdiction to permit the trial court to undertake the interest calculation in Case No. 05-1842. However, he elected not to do so. Our mandate issued on June 30, 2006, thus foreclosing that option. See also Home Ins. Co. v. Crawford & Co., 890 So.2d 1186 (Fla. 4th DCA 2005) (applying McGum to find a waiver where the trial court purported to reserve jurisdiction to award prejudgment interest and plaintiff did not move for rehearing or move on appeal for a relinquishment of jurisdiction).

Emerald Coast Communications, Inc. v. Carter, 780 So.2d 968, 969-70 (Fla. 1st DCA 2001) is more directly on point. In that case the final judgment awarded prejudgment interest but “simply failed to calculate the amount of interest and express it as a sum certain.” Id. The court recognized that the determination of the prejudgment interest was “a matter of simple mathematical computation.” Id. However, the court held that the failure to perform the calculation and express the prejudgment interest was an error that should have been corrected by the plaintiffs timely motion for rehearing under Florida Rule of Civil Procedure 1.530(b). By failing to move for rehearing to correct the error the plaintiff had waived its right to the prejudgment interest. Id.

Appellee argues that Emerald Coast is distinguishable because there the trial court did not award prejudgment interest in the final judgment, but instead reserved jurisdiction to award prejudgment interest. This is a distinction without a difference. The bottom line is that no sum certain was expressed in the final judgment. The amount of a final judgment must be plain on its face and not require further calculations to be performed prior to execution of the judgment. When an order for final judgment leaves the determination of prejudgment interest for future adjudication, a party should move for rehearing to correct the error in order to secure a prejudgment interest award. See also Home Ins. Co., 890 So.2d at 1190 (Fla. 4th DCA 2005) (following Emerald Coast).

Reversed.

STEVENSON, C.J., and WARNER, J., concur.


text:
    FRED STEVENS TREE COMPANY, Appellant, v. Scott HARRISON, AMS Staff Leasing and Aspen Administrators, Appellees.
    No. 1D05-3203.
    District Court of Appeal of Florida, First District.
    Nov. 28, 2006.
    Rehearing Denied Dec. 22, 2006.
    V. Julia Luyster of Bernstein, Chack-man & Liss and Edward F. Holodak, Hollywood, for Appellant.
    Jane-Robin Wender of Wender & Associates, P.A., Delray Beach, for Appellee Scott Harrison.
    William E. Gregory, Miami, for Appellee AMS Staff Leasing.
   PER CURIAM.

In this workers’ compensation appeal, Fred Stevens Tree Company (Fred Stevens) appeals an order of the Judge of Compensation Claims (JCC) determining that it, and not AMS Staff Leasing (AMS), was the employer of the claimant, Scott Harrison, and therefore required to pay all the benefits associated with Harrison’s claim for benefits. The claimant argues that AMS was estopped from denying that claimant was its employee based on the course of dealing of the parties. The JCC erroneously declined to consider whether the doctrine of equitable estoppel could be applied to estop AMS from denying that Harrison is its employee. Accordingly, we reverse and remand for further proceedings.

Fred Stevens, a tree cutting service business, entered into an employee leasing agreement with AMS. Under this agreement, AMS employed the individuals working for Fred Stevens and leased them back to Fred Stevens. AMS processed the employee applications, paid payroll, and provided workers’ compensation and employer liability insurance for the benefit of Fred Stevens. Their agreement required Fred Stevens to provide AMS with all employment paperwork prior to any new hire beginning work. Further, the agreement provided that if the paperwork was not provided prior to start, the new hire would not become an employee of AMS and therefore would not be covered by workers’ compensation insurance.

Harrison executed his employment papers prior to starting work on May 10, 2004. The same day he began working for Fred Stevens, he fell from a ladder while trimming a tree and sustained serious injury. Fred Stevens faxed to AMS the claimant’s application and other paperwork after the accident had occurred. AMS terminated its relationship with Fred Stevens and denied coverage for claimant, asserting that Fred Stevens had failed to adhere to the contract provision which required it to inform AMS of each new hire prior to having the employee begin work. Petitions for benefits were filed against AMS and Aspen Administrators and Fred Stevens, which did not maintain workers’ compensation insurance.

Fred Stevens submitted evidence that, beginning with the first employee leased, Fred Stevens routinely forwarded to AMS employment applications by fax on Tuesdays with the payroll documents. If the employee had begun work before that Tuesday, AMS paid the employee for the days worked before the receipt of the faxed application. In the case of these numerous employees, Fred Stevens paid the entire contracted fee to AMS, which included the rate of pay for the employees and workers’ compensation premiums as well as the fee for utilizing AMS services. AMS never charged Fred Stevens a lesser amount which might have reflected that AMS was not providing workers’ compensation coverage during the days those employees worked prior to the receipt of the initial employment paperwork. The evidence is undisputed that AMS never objected to the procedure by which Fred Stevens provided new employee information with its Tuesday transmission of payroll. The parties acted in accordance with this course of dealings for a year and a half, until Harrison’s accident. At that point AMS advised Fred Stevens that it was enforcing a strict interpretation of the terms of its leasing agreement and terminated the agreement. The JCC ruled that, under the terms of the leasing agreement, AMS and its carrier had no obligation to provide workers’ compensation coverage for Harrison and that the doctrines of waiver and estoppel could not be used affirmatively to extend or create coverage for the claimant.

This court has recognized that the doctrine of equitable estoppel may be applied to establish an employment relationship in a workers’ compensation case. See Specialty Employee Leasing v. Davis, 737 So.2d 1170, 1172-73 (Fla. 1st DCA 1999). The elements necessary to establish equitable estoppel are: “(1) a representation as to a material fact that is contrary to a later-asserted position; (2) rebanee on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.” Id. at 1172 (quoting Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981)). Claimant argues that AMS’ course of dealings with Fred Stevens, under which AMS consistently accepted employment applications after the employee commenced work, with Fred Stevens and treated such employees as the employee of AMS for all purposes, constitutes a representation of a material fact on which Fred Stevens relied and, thus, may constitute a factual basis for the application of equitable estoppel. Because the JCC declined to reach this issue below, we do not reach it on appeal. The JCC’s rubng that estoppel did not apply in this case was correct insofar as it could be perceived as a ruling that equitable estoppel may not be used to create insurance coverage. Criterion Leasing Group v. Gulf Coast Plastering & Drywall, 582 So.2d 799, 800 (Fla. 1st DCA 1991). As explained above, however, as recognized in Davis, 737 So.2d at 1172-73, equitable es-toppel may be a basis for finding that claimant was AMS’ employee. Because the JCC declined to consider whether that doctrine can be invoked in this case, we reverse for further proceedings.

On remand, the JCC shall determine whether, under the facts of this case, AMS is estopped to deny that Harrison was its employee. The JCC shall also address whether the determinative issue in this case is whether, as Fred Stevens argues, the leasing agreement should be reformed by virtue of the course of dealings of the parties. If that issue is determinative, the JCC would lack jurisdiction to resolve this dispute and the case must proceed in circuit court. U.S. Home Corp. v. Parker, 404 So.2d 170 (Fla. 1st DCA 1981); compare Tampa Bay Area NFL Football, Inc. v. Jarvis, 668 So.2d 217, 218 (Fla. 1st DCA 1996)(“Although a judge of compensation claims lacks jurisdiction to resolve disputes which encompass only private contractual rights, ... the judge may address contractual rights and obligations which impact an award of compensation benefits.”).

Accordingly, the cause is REVERSED and REMANDED for further proceedings consistent with this opinion.

ERVIN, KAHN, and VAN NORTWICK, JJ., concur.

      . On appeal, Fred Stevens also argues that AMS wrongfully terminated the employee leasing agreement. This was not an issue raised below, however, and we decline to consider it for the first time on appeal.

      . Additionally, the record indicates that Fred Stevens brought a declaratory judgment action in circuit court seeking an interpretation of the parties' employee leasing agreement.


text:
    Anthony J. WILSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 2D05-4102.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 8, 2007.

      Anthony J. Wilson, pro se.
    Bradley R. Bischoff, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Anthony J. Wilson petitions this court for a writ of certiorari to review the circuit court’s denial of his habeas corpus petition in which he contested the revocation of his conditional release by the Florida Parole Commission (“Commission”). We grant the petition.

The circuit court, sitting in its appellate capacity, is required to review the record considered by the Commission prior to entering its final order. Welsch v. State, 823 So.2d 310, 311-12 (Fla. 2d DCA 2002). In this case, however, the Commission failed to provide the complete record to the circuit court for its review, as it is required to do. Id.; see also Williams v. Fla. Parole Comm’n, 625 So.2d 926, 940 (Fla. 1st DCA 1993). As a result, the circuit court relied solely on the Commission’s revocation order in denying Wilson’s habeas petition. In denying the petition without full and accurate information, the circuit court violated Wilson’s procedural due process rights, and thus departed from the essential requirements of law.

Accordingly, we grant the petition for writ of certiorari and quash the order. On remand, the circuit court’s consideration of Wilson’s petition for habeas corpus relief will require the Commission’s response, which should contain all records contained in Wilson’s file and considered by the Commission when it revoked Wilson’s conditional release.

Petition granted, order quashed, and cause remanded with directions.

CASANUEVA and STRINGER, JJ„ and DANAHY, PAUL W., Senior Judge, Concur.


text:
    LRB HOLDING CORPORATION, Leo Benitez, P.A. & Leo Benitez, Appellants, v. BANK OF AMERICA, N.A., Appellee.
    No. 3D06-387.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 12, 2007.
    Benitez & Associates, and Leo Benitez, and Lizette Benitez, for appellants.
    Liebler, Gonzalez & Portuondo, Miami, and Juan A. Gonzalez, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Leo Benitez, Leo Benitez, P.A., and LRB Holding Corporation, (collectively “LRB”), appeal an adverse summary judgment. We affirm.

LRB executed a $300,000 promissory note and mortgage, on a commercial loan, with Nationsbank, the predecessor of the appellee, Bank of America (“Bank”). The note provided that LRB was required to make payments on the 16th of each month. LRB made numerous late payments, in-eluding a late payment for May 2005. On June 24, 2005, the Bank sent LRB a notice of its intent to accelerate the note.

The Bank demanded full payment of the note by July 8, 2005. LRB failed to pay the note in whole, and instead sent a late payment for the June 2005 payment. The Bank sent LRB a reservation of rights letter advising LRB that the note remained in default despite receipt of the June 2005 payment on July 6, 2005. The Bank then filed suit against LRB for breach of the promissory note, breach of a commercial guaranty, and foreclosure of the mortgage.

Both parties filed cross-motionfe for summary judgment. The trial court granted the Bank’s motion for summary judgment on the breach of a promissory note, and the two counts of breach of a commercial guaranty, but denied the Bank’s motion for summary judgment on the foreclosure count. This appeal follows.

On appeal, LRB contends that the trial court erred in entering summary judgment because it cured any default by paying the May 2005 payment before the Bank sent its notice to accelerate. LRB also contends that the Bank’s previous acceptance of LRB’s late payments estops the Bank from declaring a default on the mortgage without giving LRB notice. We disagree.

In Florida, an acceleration clause in a mortgage confers a contract right upon the note or mortgage holder which he or she may elect to enforce upon default. David v. Sun Fed. Sav. & Loan Ass’n, 461 So.2d 93 (Fla.1984); Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970). Here, the note’s acceleration clause provided that upon default, the lender may declare the entire unpaid principle balance and all accrued unpaid interest immediately due without notice. The note also declared that the borrower would be in default for failure to make the payment on time. The payments were due on the 16th of each month.

According to the note’s terms, not only was LRB in default of the mortgage because it failed to make the May 2005 payment until June 23, 2005, but LRB was also already late for the June 16, 2005 payment. In fact, out of the first eighty-four payments that were due prior to the Bank accelerating the note, LRB made its payment at least ten days after the due date thirty-nine times. The bank could have declared LRB in default any of the previous thirty-nine times that LRB did not make its payment on time.

The record supports the trial court’s determination that LRB did not cure the default by making the May 2005 payment. See Bare Necessities, Inc. v. Estrada, 902 So.2d 184, 185 (Fla. 3d DCA 2005). Therefore, we conclude that the Bank had the right to find LRB in default.

We also reject LRB’s second argument that the Bank’s prior acceptance of LRB’s late fees waived the Bank’s right to enter a default without notice. Although the Bank previously accepted LRB’s late payments, the note specifically provided that the lender may delay or forgo enforcing its rights or remedies under the note without losing them, and that the Bank could enter a default without providing the borrower notice. It was LRB’s repeated failure to make timely payments that led to the Bank’s decision to accelerate the note.

The trial court did not abuse its discretion in rejecting LRB’s waiver/affirmative defenses argument. Tompkins v. Jim Walter Homes, Inc., 656 So.2d 963 (Fla. 5th DCA 1995) (where mortgagee did not engage in misleading conduct, the trial court did not err in rejecting affirmative defenses); August Tobler, Inc. v. Goolsby, 67 So.2d 537 (Fla.1953)(absent notice requirement in contract, notice was accomplished by filing suit); Gus’ Baths v. Lightbown, 101 Fla. 1205, 133 So. 85 (1931) (acceptance of past late payments does not act as a bar to acceleration).

Accordingly, we affirm because the trial court properly found there were no issues of material fact, and did not err in entering summary judgment. Tompkins, 656 So.2d at 963.

Affirmed.


author: MONACO, J.

text:
    Wendy A. MOORE, Appellant, v. Dorothy M. PERRY, Appellee.
    No. 5D05-1956.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.
    Rehearing Denied Jan. 5, 2007.
    Jessica J. Reeksiedler of Thompson & Associates, P.A., Maitland, and Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Appellant.
    R. David Ayers, Jr., of Ayers & Ayers, Winter Park, for Appellee.
   MONACO, J.

This appeal raises an issue concerning the propriety of a grant of an additur in a personal injury action growing out of an automobile accident. Because we find that the trial court abused its discretion in granting the additur, we reverse.

The appellee, Dorothy Perry, filed a personal injury action against the appellant, Wendy A. Moore, as a result of an automobile accident caused when Ms. Moore’s vehicle rear-ended one driven by Ms. Perry. Ms. Perry sought damages for bodily injury, medical expenses, and loss of earnings, as well as, damages for the aggravation of a previously existing condition. Ms. Moore conceded liability, and the case proceeded to trial solely on the issue of damages. The jury found that Ms. Perry suffered no permanent injuries as a result of the accident, but awarded her $7,250 for past medical expenses, $8,000 for future medical expenses, and $2,300 for past lost earnings. It awarded her no damages for future lost earnings or lost earning capacity-

Ms. Perry filed a motion for additur pursuant to section 768.043, Florida Statutes (2005), pointing out that although she incurred $43,166.90 in medical bills, the jury only awarded $7,250 for that element of damages. She posited that although it might be proper for the jury not to award damages resulting from medical attention to a heart condition from which she had long suffered, there was still $10,582.99 in bills that she thought should have been compensated. She claimed, therefore, that the verdict was contrary to the manifest weight of the evidence and inadequate as a matter of law.

Eventually the trial court entered an order granting Ms. Perry’s motion for ad-ditur in the amount of $10,582.99 or new trial. The order is conclusory in nature and does not state the reasons for the court’s action. At the hearing on the motion, however, the trial judge stated that while the jury could “disagree” with the amount associated with Ms. Perry’s heart condition, “there should have been no conflict” with respect to the remaining $17,832.99 in past medical expenses. Ms. Moore appeals.

There are two statutes that address the subject of additur and remittitur. The older statute, section 768.043, Florida Statutes (2005), was adopted in 1977, and addresses remittitur and additur with respect to cases arising out of the operation of motor vehicles. The more recent statute, section 768.74, Florida Statutes (2005), was adopted in 1986, and extended the capacity of a trial judge to order remittitur or additur in any case where the trier of fact determines that liability exists on the part of a defendant and renders a verdict awarding money damages to a plaintiff. The statutes are substantially similar. See Smith v. Dep’t of Ins., 507 So.2d 1080, 1092 n. 10 (Fla.1987).

Section 768.043 provides generally that in cases arising out of the operation of a motor vehicle, when the trier of fact determines that liability exists on the part of a defendant and a verdict is rendered which awards money damages to a plaintiff, it is the responsibility of the court, upon proper motion, to review the amount of such award and determine if the amount is “clearly excessive or inadequate in light of the facts and circumstances” that were presented at trial. If the court finds that the amount awarded is clearly inadequate, it should order additur. If the party adversely affected does not agree to the addi-tur, it must be granted a new trial on the issue of damages only.

In determining whether an award is clearly inadequate a trial court is required by section 768.043(2) to consider, among other things, whether the trier of fact “ignored the evidence” or “misconceived the merits of the case relating to the amounts of damages recoverable.” In addition, the court must determine whether the trier of fact took improper elements of damages into account, or arrived at the amount of its award by speculation or conjecture, or awarded an amount that was not reasonably related to the quantum of damages proved.

In the present case we are not favored with findings by the trial judge as contemplated by the statute, but we do know from comments made in open court that the judge found that there should have been no conflict on the jury’s part with respect to medical bills not associated with Ms. Moore’s heart condition. On this basis the trial judge ordered the additur in question.

The standard of review of an order granting additur is abuse of discretion. See Republic Servs. of Florida, L.P. v. Poucher, 851 So.2d 866 (Fla. 1st DCA 2003). Simply put, a trial court has broad discretion in ruling on a motion for addi-tur. See Terry Plumbing & Home Servs., Inc. v. Berry, 900 So.2d 581, 584 (Fla. 3d DCA 2004), review denied, 914 So.2d 952 (Fla.2005); Davis v. Caterpillar, Inc., 787 So.2d 894 (Fla. 3d DCA 2001), review dismissed, 817 So.2d 845 (Fla.2002); see also Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999). Regardless of whether relief is ordered in this connection because the verdict is either excessive or inadequate, or is simply contrary to the manifest weight of the evidence, an appellate court must employ the reasonableness test in determining whether the trial court abused its discretion. See Beauvais v. Edell, 760 So.2d 262, 270 (Fla. 4th DCA 2000), review denied, 780 So.2d 912 (Fla. 2001); see also Trujillo v. Uniroyal Tire Co., 753 So.2d 1256 (Fla.2000).

In the present case the medical testimony was in sharp conflict as to the effect, if any, of the accident on Ms. Perry. Dr. Smith, for example, who testified on behalf of Ms. Perry, opined that the accident may have caused a herniated disk causing neck and arm pain, but that Ms. Perry had a long-standing preexisting arthritic condition in the lower back. Dr. Wright, who was Dr. Smith’s associate, and Dr. Gizaw, another of Ms. Perry’s treating physicians, both noted that Ms. Perry had been afflicted by preexisting arthritic degeneration throughout her entire cervical and lumbar spine. Dr. Uric-chio, a defense medical expert, gave testimony that was perhaps the most damaging to plaintiff’s case. He testified that he could not identify any significant orthopedic or other permanent medical problem suffered by Ms. Perry as a result of the accident. Dr. Uricchio, testifying on behalf of Ms. Moore, was of the opinion that all of Ms. Perry’s disk and spinal problems shown on x-rays and MRI’s were preexisting and the result of a degenerative process at all levels. Thus, there was ample room for the jury to attribute certain of the medical bills to the accident, and to find that others were not causally related.

Moreover, the jury was specifically instructed that if it found that there was an aggravation to an existing disease or physical defect, it should determine what portion of Ms. Perry’s injuries resulted from the aggravation, and make provision in the verdict only for that aggravation. Consequently, the jury, if it chose to do so, could have awarded damages for an aggravation of those preexisting conditions. The jury, however, found that no permanent injuries resulted from the' accident, and thus inferentially found that no aggravation to a preexisting condition resulted. As it was privileged to do, the jury then apportioned the medical bills between those that it found to be caused by Ms. Moore, and those that were not. Given the divergent quality of the evidence, the jury’s determination should not have been disturbed.

The case of Ortlieb v. Butts, 849 So.2d 1165 (Fla. 4th DCA 2003), bears some similarity to the instant case. There, the defendant, Ortlieb, rear-ended a vehicle driven by Carmen Butts while she was stopped at a stop sign. The jury returned a verdict finding defendant 75% negligent and Ms. Butts 25% negligent. After considering contradictory medical testimony concerning the cause and extent of the plaintiffs damages, it awarded Ms. Butts $10,000 in past medical expenses, and determined that she had sustained no permanent injury as a result of the accident. Ms. Butts moved for a new trial or additur, alleging that the jury ignored the unrefut-ed evidence presented at trial that established she incurred $21,244.74 in medical expenses. The trial court granted additur in the amount of $21,000 because the “jury inappropriately failed to consider unrebut-ted evidence as to the medical expenses.” Defendant then appealed the order of ad-ditur, and Ms. Butts appealed the denial of an earlier motion for directed verdict on liability. The Fourth District Court stated:

Where there is undisputed evidence supporting an award of damages and the jury failed to make such an award, it is error for the trial court to deny motion for additur. [Cite omitted]. On the other hand, where the evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence, it is error for the trial court to veto the jury verdict by granting a motion for additur. [Cite omitted].

Butts, 849 So.2d at 1166-67. Notably, in Butts, the Fourth District reversed the order of additur as well as the denial of a directed verdict, and directed entry of a judgment in favor of Ms. Butts for the full amount of the jury verdict, because it concluded that the jury could have determined that Butts’ jaw problems were not caused by the accident at all, but were the result of other conditions. That is to say, the appellate court reasoned that the jury’s verdict in Butts was consistent with the “conflicting” evidence. Cf, Russell v. KSL Hotel Corp., 887 So.2d 372 (Fla. 3d DCA 2004).

Here, as well, the jury reached a verdict that was consistent with the conflicting evidence concerning Ms. Perry’s medical condition and concluded that not all of the claimed medical expenses were caused by the accident. The jury could reasonably have related part of the past medical expenses to age-related, preexisting degeneration, consistent with the defense evidence. It has often been said that a trial judge should not sit as a seventh juror with veto power over the jury’s verdict. See Adams v. Wright, 403 So.2d 391, 393 (Fla.1981); Butts. Because a reasonable jury could have returned a verdict of $7,250.00 for past medical expenses, the trial court’s final judgment granting additur must be reversed.

There are other assertions made by Ms. Moore in this appeal, but none are meritorious. Accordingly, we reverse the order granting additur and remand with instructions for entry of a judgment consistent with the jury’s verdict.

REVERSED and REMANDED with instructions.

PLEUS, C.J. and SAWAYA, J., concur.

      . A procedural morass thereafter ensued. It would add nothing to the holding to recite it in detail.


author: PLEUS, C.J.

text:
    Dean M. GAST, Appellant, v. MAK ENTERPRISES OF GAINESVILLE, etc., et al., Appellees.
    No. 5D06-502.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.
    Rehearing Denied Jan. 4, 2007.
    Dean M. Gast, Daytona Beach, pro se.
    Mark O. Cooper, of O’Neill, Liebman & Cooper, P.A., Orlando, for Appellee.
   PLEUS, C.J.

We reverse the final summary judgment entered in favor of the appellees on the appellant’s claim for fraud and conspiracy arising out of the repair of his motor vehicle’s air conditioning system.

The appellees, as movants for summary judgment, had the burden of proving conclusively the non-existence of any genuine issue of material fact. Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303 (Fla. 5th DCA 2003). The evidence and affidavits are required to be examined in a light most favorable to the non-movant and if the slightest doubt exists, summary judgment is improper. Id. As explained in Chhabra v. Morales, 906 So.2d 1261 (Fla. 4th DCA 2005), if the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the trier of fact.

In the appellant’s supplemental affidavit, he averred that he inspected the parts removed from his vehicle by an independent repair shop and personally compared the dimensions of the removed parts to the dimensions of the parts which the ap-pellees averred they had purchased and installed in repairing his vehicle. The dimensions differed and the appellant maintains this creates a material issue of fact as to whether the appellees had in fact replaced the parts.

The appellees’ challenge to this supplemental affidavit, that it did not constitute admissible evidence because the appellant did not adequately allege that the parts he measured were in fact those removed from his vehicle, is without merit. The appellant stated in his supplemental affidavit that he had requested that the parts removed from his automobile be delivered to him and he confirmed in his deposition that he had the parts which were removed from his vehicle.

The disparity in the dimensions of these parts creates an inference that the parts asserted to have been installed by the appellees were not in fact installed. The appellees as movants for summary judgment failed to prove conclusively the absence of any genuine issue of material fact and therefore summary judgment was improvidently entered.

REVERSED AND REMANDED.

SAWAYA and MONACO, JJ., concur.


author: EVANDER, J.

text:
    Tomas Tolosa ARINO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-451.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.
    Rehearing Denied Jan. 4, 2007.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Appellant was convicted of driving while his license was revoked as an habitual traffic offender, in violation of section 322.34(5), Florida Statutes (2003). Appellant contends the trial court erred by denying his motion to bifurcate. We disagree and affirm appellant’s conviction.

Prior to the commencement of his jury trial, appellant requested that the trial court divide his trial into two proceedings. The purpose of the first proceeding, as requested by appellant, would be to determine whether appellant was driving upon Florida’s highways while his license was suspended. If found guilty in the first proceeding, the second proceeding would be utilized to determine whether appellant had been designated an habitual traffic offender pursuant to section 322.264, Florida Statutes (2003). Appellant strenuously argued that a failure to bifurcate would be unduly prejudicial because the jury would be informed of his prior criminal activity— thereby destroying his presumption of innocence.

Appellant’s proposed bifurcation would have been improper. Driving while license suspended, as prohibited by section 322.34(2) is not a lesser included offense of driving while license revoked as an habitual traffic offender. State v. Harvey, 693 So.2d 1009 (Fla. 4th DCA 1997). A bifurcated proceeding would have wrongly forced the state to try to prove a crime which it had not charged nor which was a lesser included offense of the crime charged.

Additionally, bifurcation would have provided little benefit for appellant. The state would still have been permitted to introduce a certified copy of appellant’s driving record. § 322.201, Fla. Stat. (2003). See also Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002), rev. denied, 839 So.2d 697 (Fla.2003).

The Department of Motor Vehicles’ designation of appellant as an habitual traffic offender was an essential element of the crime charged. Therefore, it was appropriate for the state to present evidence on this element. Arnett v. State, 843 So.2d 340 (Fla. 1st DCA 2003). See also Syder v. State, 921 So.2d 871 (Fla. 4th DCA 2006) (bifurcation improper where defendant was charged with possession of a firearm by a convicted felon).

AFFIRMED.

ORFINGER and LAWSON, JJ., concur.


text:
    Isaiah STARR, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3064.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      Isaiah Starr, South Bay, pro se.
    No Appearance for Appellee.
   EVANDER, J.

We affirm the trial court’s denial of appellant’s motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853.

On August 10, 2000, appellant pled nolo contendere to one count of kidnapping a child under thirteen years of age and one count of sexual battery with a deadly weapon or physical force. He was sentenced to twenty years in the Department of Corrections, followed by ten years of probation on each count. The sentences were concurrent. Appellant’s conviction was affirmed by this court. Starr v. State, 793 So.2d 972 (Fla. 5th DCA 2001).

Appellant subsequently filed a motion seeking DNA testing of a condom. The condom had been found in the vicinity of the area where the victim had been assaulted.

Section 925.11(l)(a)2., Florida Statutes (2006), permits a person who has entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006, to petition a court to “order the examination of physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced that may contain DNA (deoxyribonucleic acid) and that would, exonerate that person.” (emphasis added) Here, the record supports the trial court’s conclusion that DNA testing of the condom would not, regardless of the results, exonerate appellant. The sexual assault occurred in an outdoor area near a public park and there was no suggestion in the record that the victim’s assailant had used a condom.

AFFIRMED.

PLEUS, C.J. and LAWSON, J., concur.


author: FLETCHER, J. ROTHENBERG, J.,

text:
    The STATE of Florida, Appellant, v. Eddie SIMMONS, Appellee.
    No. 3D05-1437.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.

      Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellee.
    Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   FLETCHER, J.

Pursuant to mandate from the Florida Supreme Court, the trial court held an evidentiary hearing to determine whether the identity of a confidential informant used by the State herein was required to be disclosed, and whether the State was able to produce the informant. Eddie Simmons was charged with selling cocaine on April 4, 2002 to an undercover officer and was further charged with the intent to sell, manufacture, or deliver cocaine on April 5, 2002, as well as being charged with possession of a firearm by a convicted felon.

APRIL h, 2002

The informant’s interaction with the April 4 events leading to the charge of that date was limited to the informant’s pointing out the drug sale location (a house), and the informant’s greeting the drug seller at that house just prior to the “hand to hand” transaction. The trial court found that “[t]he informant had an ample opportunity to observe the person who sold drugs” to the undercover police officer. As Simmons’ defense to the April 4 charge was misidentification, the trial court concluded that the informant was a material witness on the issue of the identity of the drug seller, thus the informant’s identity had to be disclosed.

APRIL 5, 2002

With a search warrant in hand, on April 5, 2002, the police returned to the house where they found additional cocaine, a firearm, and Simmons. Additional charges on Simmons resulted. His defense to these charges was that he was present in the house as a guest when the drugs and firearm were found, but he had no knowledge of them or possessory interest in them.

Simmons sought disclosure of the confidential informant’s identity in relation to these charges, as well as the April 4 charge. Simmons argued that the informant’s expected testimony (that it was not Simmons who sold the cocaine on April 4) would bolster his assertions as to April 5 (that he was a guest and had no control over the seized items).

THE TRIAL COURT’S RULING
“The Court finds that the informant is a material witness on the issue of the identity of the drug seller, that the defense of misidentification is a bona fide defense, that disclosure of the informant’s identity is required due to the defense asserted, and that the State is not able to produce such person. The Court dismisses the information.... ”

We agree with the trial court’s dismissal of the April 4 charge. We cannot agree with the trial court’s dismissal of the charges as to April 5.

The United States Supreme Court, in Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), discussed fundamental fairness in relation to the prosecutorial privilege to withhold from disclosure confidential informants’ identities: “Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.”

The Florida Supreme Court, in Simmons v. State, 887 So.2d 1283, 1284 (Fla. 2004), citing Roviaro stated: “This privilege, however, must yield where the informant’s identity is ... essential to a fair determination of the cause at issue.” Agreeing that the informant’s identity is essential to a fair determination of the April 4 charge, we affirm the trial court’s dismissal of the charge related to April 4.

However, as to the charges related to April 5 we reverse the dismissals. The informant was not involved with these charges. A misidentification on April 4 would not be a defense to the charges of April 5. The trial court thus abused its discretion by dismissing the April 5 charges.

Affirmed in part; reversed in part; and remanded for further proceedings consistent herewith.

COPE, C.J., concurs.

ROTHENBERG, J.,

concurring in part and dissenting in part.

We have for review in this consolidated appeal the trial court’s dismissal of two separate informations: one charging Eddie Simmons (“Simmons”) in case number 02-9992 with the sale, manufacture, delivery and/or possession of cocaine on April 4, 2002; and the other, charging Simmons in case number 02-9991 with possession with intent to sell, manufacture, and/or deliver cocaine and unlawful possession of a firearm by a convicted felon on April 5, 2002. The first offense is based upon the purchase of cocaine by Detective Pacheco from an individual he claims is the defendant, and the remaining offenses are based upon evidence seized pursuant to the execution of a search warrant the following day at the house where the detective purchased the drugs. The majority concludes that the trial court erred in dismissing the charges against Simmons in case number 02-9991, the April 5th, offenses. I agree. I disagree, however, with the majority’s conclusion that the trial court did not err in dismissing the charges regarding the April 4th drug transaction charged in case number 02-9992.

PROCEDURAL HISTORY

When Detective Pacheco purchased cocaine on April 4, 2002, he was accompanied by another individual. Simmons’ defense to this case (02-9992) is one of misidentifi-cation. He claims he is not the person who sold cocaine to the detective. His defense in case number 02-9991 is that he was merely a guest in the residence when the search warrant was executed and the cocaine and firearm were seized. Simmons filed a sworn motion in both cases seeking an order to require the State to disclose the identity of the individual who accompanied the detective on April 4th, when the detective purchased the cocaine. In this motion, Simmons claimed that the witness would substantiate his defense of misidentification in case number 02-9992, which would in turn buttress his claim in case number 02-9991 that, although he was present in the house on April 5th when the search warrant was executed, he was merely there as a guest and had no dominion or control over the items seized.

The State argued that disclosure was not required as the individual who accompanied Detective Pacheco when he purchased the drugs on April 4th was not involved in the transaction nor involved in the procurement of the search warrant and was not present when it was executed. The trial court concluded that disclosure of “the confidential informant” was required based upon Simmons’ defense of misidenti-fication. When the State was unable to produce the individual in question for an in-camera hearing because the police had failed to obtain either his identity or other identifying information, and his whereabouts was unknown, the trial court dismissed the charges in both cases. The State appealed and this court reversed, finding that the disclosure of the “identity of an informant who is a mere witness to, but a non-participant in a criminal episode” is not required merely because the defendant raises a misidentification defense. State v. Simmons, 887 So.2d 355, 359 (Fla. 3d DCA 2003). This court, however, noted and certified conflict with McCray v. State, 730 So.2d 817 (Fla. 2d DCA 1999). Simmons, 887 So.2d at 359.

The Florida Supreme Court accepted jurisdiction based upon the certification of conflict. However, due to the inadequacy of the record before it, the Court quashed this court’s decision with instructions to remand to the trial court for further factual development to enable a determination to be made whether, as a matter of law, disclosure of the informant’s identity is required and whether he could be produced. Simmons v. State, 887 So.2d 1283 (Fla.2004).

The trial court conducted a hearing in accordance with this ruling. Based upon the testimony of the witnesses, the trial court dismissed the charges finding that the informant was a material witness whose identity the State was required to disclose and that, although the failure of the police to obtain any contact information regarding the person in question was not in bad faith, “the decision not to obtain such information was a deliberate choice that has prejudiced the defendant in the preparation of his defense.”

THE EVIDENCE

Officer Cabrera of the Miami Police Department testified that the individual in question, who he referred to as a “crackhead,” had a street nickname of “Coco” and that he frequented the area where Officer Cabrera worked off-duty. Officer Cabrera testified that “Coco” approached him and informed him that people were selling drugs from a particular house. Based on this information, he set up a time and place for “Coco” to meet with Detective Pacheco, an undercover officer. Prior to the meeting, Officer Cabrera related this information to Detective Pacheco. Officer Cabrera did not obtain any additional information from “Coco,” did not know his true name or where he lived, and had no further contact with him.

Detective Pacheco met with “Coco,” who agreed to accompany him to the house in question. When they approached the house, a man whom the Detective identified as the defendant, Eddie Simmons, was standing in the front doorway. Detective Pacheco and “Coco” proceeded to the front door. “Coco” said “hi” to the defendant and the detective asked the defendant if he had any “hard,” a term referring to crack cocaine. After Detective Pacheco and Simmons conversed, Simmons went inside the house briefly, returned, and handed the detective two cocaine rocks in plastic bags. Simmons then told Detective Pacheco that for future buys he should knock at the window at the back of the house and that he would “take care of him.” After Simmons showed Detective Pacheco the window, Detective Pacheco and “Coco” left. Detective Pacheco explained that he did not feel that it was necessary to ask “Coco” any questions regarding his identity or where he lived because “Coco” was not involved in the transaction (he did not make any of the arrangements, was not an active participant, and did not have any conversations with the defendant other than to say “hi” as they were approaching) and he did not intend to use him in the future. Furthermore, the conversations between Detective Pacheco and Simmons were in English and the detective claims that “Coco” knew very little English. Detective Pacheco testified that he never anticipated that, under the circumstances, “Coco” would become a necessary witness in the case.

The trial court found the testimony of the officers to be credible and “that their failure to obtain the informant’s contact information was not in bad faith in an effort to subvert a possible future defense of misidentification.” As the trial court’s factual findings are supported by substantial competent evidence, they must be sustained. Connor v. State, 803 So.2d 598, 607-08 (Fla.2001).

While the trial court concluded that the failure to obtain the informant’s contact information was not in bad faith, it con-eluded that because the decision to not obtain this informatipn was a “deliberate choice that has prejudiced the defendant in the preparation of his defense,” dismissal of the charges is required. As this determination rests upon a purely legal issue, whether the trial court correctly applied the law to the facts, we review that determination de novo. Connor, 803 So.2d at 605-06.

LEGAL ANALYSIS

Our analysis must begin with recognition of well-settled Florida law which grants the State a limited privilege to withhold the identity of its confidential informants. See State v. Hassberger, 350 So.2d 1, 2 (Fla.1977); State v. Diaz, 678 So.2d 1341, 1344 (Fla. 3d DCA 1996); State v. Zamora, 534 So.2d 864, 867 (Fla. 3d DCA 1988). This privilege, however, must yield “ ‘[wjhere the disclosure of an informer’s identity, or the contents of his communication, [1] is relevant and helpful to the defense of an accused, or [2] is essential to a fair determination of a cause.’ ” Diaz, 678 So.2d at 1344 (quoting Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). The burden is on the defendant to establish why either or both of these exceptions should be invoked. Diaz, 678 So.2d at 1344.

Simmons argues that he has satisfied his burden as to both exceptions and thus, the failure of the State to disclose the identity of the informant requires dismissal of all of the charges levied against him. Simmons claims that the informant would testify that Simmons is not the individual who sold the drugs to Detective Pacheco. At this point, his claim is nothing more than a bare assertion, a claim based solely upon speculation. Simmons does not allege that he knows this individual or that he has had any contact with him other than the encounter in question, a contact wherein the informant merely stood nearby but had no involvement in the conversation or transaction. The record does not reflect, nor is there any evidence to suggest, that the informant has ever purchased drugs at that location. However, despite the con-clusory nature of Simmons’ claim, we conclude that he would be entitled to an in-camera hearing to determine whether his claim is in fact true and whether the informant would in fact substantiate his defense of misidentification. The issue which must, therefore, be resolved, is whether dismissal is mandated as a matter of law when an in-camera hearing cannot be held due to law enforcement’s failure to obtain the identity or contact information of the individual in question.

Simmons relies upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623,1 L.Ed.2d 639 (1957), Miller v. State, 729 So.2d 417 (Fla. 4th DCA 1999), McCray v. State, 730 So.2d 817 (Fla. 2d DCA 1999), State v. Fuentes, 563 So.2d 96 (Fla. 3d DCA 1990), State v. Zamora, 534 So.2d 864 (Fla. 3d DCA 1988), and State v. Jones, 247 So.2d 342 (Fla. 3d DCA 1971), in support of his proposition that disclosure of the informant is mandated, and that law enforcement’s failure to obtain the informant’s identity and contact information warrants dismissal of the charges. A review of these cases, however, does not suggest such a finding.

In Roviaro, the Supreme Court of the United States provided that:

The principal issue is whether the United States District Court committed reversible error when it allowed the Government to refuse to disclose the identity of an undercover employee who had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged. For the reasons hereafter stated, we hold that, under the circumstances here present, this was reversible error.

Roviaro, 353 U.S. at 54-55, 77 S.Ct. 623 (emphasis added). The Court in Roviaro specifically noted that the informant assisted law enforcement in setting up the drug transaction and played a prominent role in it; the informant might be able to provide testimony to support a defense of entrapment; the informant was the only witness who might be able to testify as to the defendant’s knowledge or lack of knowledge of the contents of the package; the Government relied upon the defendant’s conversation with the informant, which took place in the informant’s ear, as evidence inculpating the defendant without providing the defendant with the ability to confront that evidence; and the informant was the sole participant other than the defendant. Roviaro is distinguishable, and therefore, inapplicable to the instant case. In the instant case, the State is not refusing to disclose the informant’s identity; the informant did not play an active role in the drug transaction; the State does not intend to introduce any evidence or information obtained from the informant; the drug transaction was conducted between the detective and a man the detective claims was Simmons, not between the informant and Simmons; and the informant was not involved with or even present when the search warrant was executed the day following the drug transaction.

Likewise, in Jones, the informants were active participants. This court noted that the trial court found that the State “knew or should have known that the said witnesses possessed firsthand information material to the charges contained in the Information and would, therefore, be material witnesses for either the State or the defendant.” Jones, 247 So.2d at 343. Unlike Jones, the informant in the instant case was merely a “tipster” who played no active role. Detective Pacheco testified that he did not obtain “Coco’s” contact information because he never anticipated that “Coco” would be a material witness as 1) Coco was not an active participant and not involved in the drug transaction; 2) the conversations between the detective and Simmons were in English and “Coco” knew very little English; and 3) he did not intend to use “Coco” in the future. Thus, neither of the elements present in Jones is present in this case. The informant was not an active participant and the officers did not know and had no reason to believe he could become a material witness. In fact, the trial court in the instant cases found the officers’ testimony to be credible, found no bad faith on their part, and concluded that the failure to obtain the informant’s contact information was not done in “an effort to subvert a possible future defense of misidentification.”

In Fuentes, this court reversed the trial court’s dismissal of the charges, which was granted based upon the State’s inability to produce the informant. This court concluded that dismissal was not warranted, even though the informant was present during the drug negotiations and transactions, as he was not an active participant and the State’s conduct in failing to maintain contact with the informant was “more accurately described as negligence, rather than deliberate ignorance.” Fuentes, 563 So.2d at 97 (citations omitted).

Similarly, in Zamora, this court specifically noted that this was not a Roviaro situation which requires disclosure of an informant where the defendant is charged with selling or delivering illegal drugs to the informant, Zamora, 534 So.2d at 869 (citing Roviaro, 353 U.S. 53, 77 S.Ct. 623), or where the State calls the informant as a witness at trial, Zamora, 534 So.2d at 869 (citing State v. Hassberger, 350 So.2d 1 (Fla.1977)), or where the informant executes the affidavit upon which a search warrant is issued for the search of the defendant’s home, Zamora, 534 So.2d at 869 (citing Baker v. State, 150 So.2d 729 (Fla. 3d DCA 1963)).

The State’s reliance on McCray is also misplaced. In McCray, the Second District Court of Appeal merely held that the trial court had erred in denying the defendant’s motion to compel disclosure of the confidential informant without conducting an in-camera hearing. McCray, 730 So.2d at 818.

Miller, cited to by Simmons, actually supports a finding contrary to his position. In Miller, the Fourth District Court of Appeal did not hold that dismissal was required due to the State’s failure to produce a confidential informant. The appellate court reversed and remanded based upon the trial court’s failure to conduct an in-camera hearing. In doing so, the Fourth District specifically noted that:

The fact that the confidential informant was present during the drug transaction does not automatically compel his disclosure, see State v. Carnegie, 472 So.2d 1329, 1330 (Fla. 2d DCA 1985), nor does the failure of the state to disclose the identity of a confidential informant upon court order automatically entitle a defendant to dismissal of the charges. See State v. Banks, 656 So.2d 590 (Fla. 2d DCA 1995). There must be a determination as to the necessity for disclosure, government misconduct, and prejudice to the accused. See id.

Miller, 729 So.2d at 420. More importantly, the informant in Miller was an active participant. He is the one who allegedly purchased the drugs from the defendant, and disclosure of a confidential informant is required where the defendant is charged with selling or delivering illegal drugs to a government informant. Roviaro, 353 U.S. 53, 77 S.Ct. 623.

The United States Supreme Court specifically limited its holding in Roviaro to the particular facts of the case. Roviaro, 353 U.S. at 64, 77 S.Ct. 623. In Roviaro, the informant helped set up the transaction and played a prominent part in it; the informant and the defendant were alone and unobserved during the crucial occurrence for which the defendant was indicted; the government introduced at trial the informant’s conversation with the defendant without the defendant having the ability to cross-examine the informant; the informant was the sole participant, other than the defendant, in the transaction; and a government witness testified that the informant had told him/her that he did not know the defendant and had never seen him before. None of those factors are present in the instant cases.

The issue is one of due process, whether the failure to preserve potentially exculpatory or useful evidence deprives the defendant of due process, requiring dismissal of the charges against the defendant. “The dismissal of a [criminal] charge is the most severe sanction a court can impose for the destruction of evidence; it is to be used with the greatest caution and deliberation.” State v. Thomas, 826 So.2d 1048, 1049 (Fla. 2d DCA 2002) (citing State v. Westerman, 688 So.2d 979 (Fla. 2d DCA 1997)); see also State v. Gomez, 915 So.2d 698, 700 (Fla. 3d DCA 2005). When dealing with potentially exculpatory or useful evidence which is not preserved or is permanently lost, “courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.” California v. Trombetta, 467 U.S. 479, 486, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)(citing United States v. Valenzuela-Bernal, 458 U.S. 858, 870, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)).

While the State has a constitutional duty to preserve evidence, the United States Supreme Court has specifically held that the

duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Trombetta, 467 U.S. at 488-89, 104 S.Ct. 2528 (footnote omitted and emphasis added).

Additionally, where the destroyed evidence is determined to have been potentially useful, as opposed to materially exculpatory evidence, a due process violation requires a showing of bad faith on the part of the State. Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Gomez, 915 So.2d at 700.

Regarding the April 4th drug transaction, Simmons claims that he is not the individual who sold the drugs to the undercover detective and alleges that the individual who was present during the transaction, if produced, would testify consistent with this defense. This claim, however, is nothing more than pure speculation and perhaps wishful thinking by the defendant. He does not claim that he and this individual knew each other, does not assert that they have had any dealings with each other, and has not provided any information in support of his claim. We can only, therefore, conclude that the evidence may have been potentially useful. Thus, pursuant to Youngblood, bad faith on the part of the State must be shown. As the trial court found no bad faith, it was error to dismiss the charges. Specifically, the trial court stated in its Order Granting Defendant’s Motion to Dismiss the Information in both cases as follows:

The court found the testimony of both Officer Cabrera and Detective Pacheco to be credible, and further found that their failure to obtain the informant’s contact information was not in bad faith in an effort to subvert a possible future defense of misidentifieation.

It was error to dismiss the charges against the defendant absent bad faith, especially since under the circumstances herein presented, the State did not have a constitutional duty to identify the witness or otherwise “preserve” him as a witness, as law enforcement could not have anticipated that he might have played a significant role in the defendant’s defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Gomez, 915 So.2d at 700. The witness did nothing more than identify a house where drugs were being sold. He did not offer any information as to the individual(s) selling drugs at that location, did not say that he had ever purchased drugs at that location, and was not involved in the drug purchase by the undercover detective other than to accompany him to the house. Thus, even if we were to conclude that the witness possessed exculpatory evidence, that fact clearly was not apparent at the time. I would, therefore, find that based upon the facts presented and the trial court’s finding of no bad faith by the State, that the failure to identify and to preserve “Coco” as a witness does not deprive the defendant of due process requiring the dismissal of the charges against him.

I,therefore, join with the majority in concluding that the trial court erred in dismissing the charges in case number 02-9991, for the reasons stated in both this concurrence and the majority opinion, but respectfully dissent regarding the majority’s failure to find that the trial court also erred in dismissing the charges in case number 02-9992, for the reasons stated in this dissent.

      . Simmons v. State, 887 So.2d 1283 (Fla. 2004), rev’g 887 So.2d 355 (Fla. 3d DCA 2003).

      . "Rulings as to the necessity of providing the names and addresses of witnesses for the defendant to have a fair trial are rulings which must of necessity rest upon the broad discretion of the trial court.” State v. Jones, 247 So.2d 342, 343 (Fla. 3d DCA 1971).