text:
    Charles Alexander REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-907.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Lyons v. State, 837 So.2d 540 (Fla. 4th DCA 2003).

STONE, FARMER and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    S.A., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3236.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

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

POLEN, KLEIN and GROSS, JJ., concur.


author: GREEN, J.

text:
    J.L.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2604.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.

      Bennett H. Brummer, Public Defender and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Richard L. Polin, Bureau Chief, and Erik M. Figlio, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   GREEN, J.

J.L.S. appeals his delinquency adjudication for trespass in a school safety zone in violation of Section 810.0975(2)(b), Florida Statutes (2005), on the basis that this statute is facially unconstitutional for over-breadth, vagueness, and substantive due process. We find no constitutional infirmity to- this statute on these grounds and affirm.

I.

J.L.S., a juvenile and student at Douglas MacArthur High School North, was spotted walking through Miami Central High School’s (“Central”) safety zone at 7:25 a.m. on a school day by a police officer. On two prior separate occasions, J.L.S. had been warned not to return to Central’s school safety zone. J.L.S. was arrested and a petition of delinquency was filed charging him with one count of trespass within a school safety zone in violation of Section 810.0975(2), Florida Statutes and one count of resisting arrest without violence in violation of Section 843.02, Florida Statutes (2005).

J.L.S. moved to dismiss the petition for delinquency on thé' grounds that Section 810.0975(2)(b) of the statute was unconstitutional on its face. After a hearing on the motion, the trial court denied the same. J.L.S. then pled no contest to both charges in the petition, but reserved his right to appeal the- denial of his dispositive motion to dismiss. J.L.S. was adjudicated delinquent and placed on probation with certain special conditions.

On this appeal, J.L.S. seeks our de novo review of his facial constitutional challenges to Section 810.0975(2)(b) of the statute. That section provides that:

During the period from 1 hour prior to the start of a school session until 1 hour after the conclusion of a school session, it is unlawful for any person to enter the premises or trespass within a school safety zone or to remain on such premises or within such school safety zone when that person does not have a legitimate business in the school safety zone or any other authorization, license, or invitation to enter or remain in the school safety zone. Any person who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

J.L.S. essentially argues that this section is facially unconstitutional because it is impermissibly overbroad, vague, and violates substantive due process.

A. OVERBREADTH

J.L.S. first argues that Section 810.0975(2)(b), is impermissibly overbroad because: (1) it restricts a substantial amount of constitutionally protected conduct such as freedom of speech, peaceable assembly with others for political or social purposes, or freedom to move about freely; (2) in the absence of a scienter requirement, it prohibits entirely innocent activities such as leisurely walking or driving about in the school zone; and (3) it is not narrowly tailored to effectuate its purpose of protecting school aged children. We disagree.

Initially, we recognize that both the First Amendment to the United States Constitution and Article 1, Section 4, of the Florida Constitution protect the rights of individuals to express themselves in many ways. See Wyche v. State, 619 So.2d 231, 233 (Fla.1993). “The Constitutions protect not only speech and the written word, but also conduct intended to communicate.” Id. The rights of individuals to associate with whom they please and to assemble with others for political or social purposes are also protected by these constitutional provisions. Id.

A statute is deemed to be over-broad if it seeks to control or prevent activities properly subject to regulation by means which sweep too broadly into an area of constitutionally protected freedom. See Firestone v. News-Press Publ’g Co., Inc., 538 So.2d 457, 459 (Fla.1989). Any restrictions on first amendment rights must be supported by a compelling governmental interest, and must be narrowly drawn to insure that there is no more infringement than is necessary. Id.

The doctrine of overbreadth permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially “because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” Sult v. State, 906 So.2d 1013, 1019 (Fla.2005) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)). In other words, the issue of overbreadth is one of the few exceptions to the traditional rules that courts will not consider factual questions beyond the scope of the case at hand. See Schmitt v. State, 590 So.2d 404, 411-12 (Fla.1991). “ ‘Hypothetical consequences’ are considered in the case of allegedly overbroad statutes precisely because this is the only way to give effect to the constitutional right of free speech.” Id. at 411.

The deleterious result of overbroad statutes often is described as a “chilling effect.”... The overbreadth doctrine and its requirement of considering hypothetical consequences is intended to eliminate this chilling effect and thus allow for the free, unhindered exercise of constitutional rights.

Id. at 412 (citations omitted). It is said, however, that in the arena of free speech and expression, the overbreadth doctrine is an unusual remedy which is to be used sparingly, particularly where the challenged statute is primarily meant to regulate conduct and not merely pure speech. Id.

In the instant case, J.L.S.’s own conduct is clearly proscribed by Section 810.0975(2)(b), and we recognize that he has standing to challenge this statute for facial overbreadth. We nevertheless cannot conclude that this statute is substantially overbroad and therefore facially unconstitutional. This statute is designed to primarily regulate conduct (i.e. trespass within a school safety zone) rather than pure speech. We believe that any applications of this statute that violate the First Amendment can be remedied through as-applied litigation.

Initially, we note that J.L.S. bears the burden of demonstrating from both the text of the statute and from actual facts that substantial overbreadth exists. See Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). On the record before us, we find that J.L.S. has not met that burden. J.L.S. argues that the statute is impermissibly overbroad because it impedes the right of speech, association, movement, and peaceful political and/or social assembly within the designated school zone. Under the plain language of this statute, however, a person is not in violation if that person (1) has legitimate business in the school zone, or (2) otherwise has authorization, license, or invitation to enter or remain in the school zone. J.L.S. has made no'showing that persons seeking to engage in constitutionally protected speech or assembly rights within the school safety zone would have no authorization to do so. Moreover, J.L.S. cannot establish as a matter of law that the enforcement of this statute against individuals like himself, who have received notices baring them from school safety zones, have first amendment rights to return to exercise expressive or associational rights. The fact that a person may be exercising first amendment rights while violating otherwise proper restrictions upon his or her entry to a public facility does not insulate that person from prosecution for trespass. See Downer v. State, 375 So.2d 840, 844-45 (Fla.1979). The United States Supreme Court has definitively stated that the First Amendment is not implicated in such an instance:

Neither the basis for the barment sanction (the prior trespass) nor its purpose (preventing future trespasses) has anything to do with the First Amendment. Punishing its violation by a person who wishes to engage in free speech no more implicates the First Amendment than would the punishment of a person who has (pursuant to lawful regulation) been banned from a public park after vandalizing it, and who ignores the ban in order to take part in a political demonstration. Here, as there, it is [a defendant’s] nonexpressive conduct this entry in violation of the notice-barment rules not his speech, for which he is punished as a trespasser.

Hicks, 539 U.S. at 123, 123 S.Ct. 2191. A state is not forbidden under the United States Constitution' from controlling the use of its own property for its own lawful nondiscriminatory purposes. See Downer v. State, 375 So.2d at 844-45.

The purpose of this statute is clearly the protection of school children. We note, and J.L.S. certainly does not dispute, that this is a compelling governmental interest. The proscriptions of the statute, with few notable exceptions, apply to all persons who enter school safety zones, not just those who seek to engage in First Amendment activities. There has been no demonstration in this record that this statute would prohibit a “substantial” amount of protected speech in relation to its otherwise legitimate applications. See Hicks, 539 U.S. at 124, 123 S.Ct. 2191 (“That this is not surprising since the overbreadth doctrine's concern with ‘chilling’ protected speech ‘attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from “pure speech” toward conduct.’ ”) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). Nevertheless, since any application of Section 810.0975(2)(b) which violates the First Amendment can be remedied through as-applied litigation, we decline to use the “strong medicine” of overbreadth to invalidate this entire statute.

B. VAGUENESS

J.L.S. next argues that Section 810.0975(2)(b) is facially unconstitutional because it is impermissibly vague. Specifically, he asserts that this section requires that a person have “legitimate business” or “other authorization, license, or invitation to enter or remain” in the safety zone during the relevant time frame. He argues, however that the undefined phrases “legitimate business” or “other authorization, or license”, or invitee status are vague and do not provide fair notice to an ordinary person of the proscribed conduct. He posits, for example, that since the physical boundaries of a school’s safety zone are not readily apparent, the average person may be unaware of the fact that he or she is entering or remaining in a school’s safety zone in violation of this statute.

Unlike the overbreadth challenge, however, before we undertake an analysis of this statute for a vagueness infirmity, we must first ascertain whether J.L.S. has standing to raise this challenge by examining his conduct in the record before us. See State v. Brake, 796 So.2d 522 (Fla.2001); Dickerson v. State, 783 So.2d 1144 (Fla. 5th DCA 2001). That is because the traditional rule is that a person to whom a statute may constitutionally be applied lacks standing to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court. See Sieniarecki v. State, 756 So.2d 68, 75 (Fla.2000). “If the record demonstrates that the [defendant] engaged in some conduct clearly proscribed by the plain and ordinary meaning of the statute, then he cannot successfully challenge it for vagueness nor complain of its vagueness as applied to the hypothetical conduct of others.” Id. We are thus compelled to examine J.L.S.’s conduct in this case before analyzing other hypothetical applications of this statute raised by him. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

We conclude that J.L.S. lacks standing in this case to raise a facial vagueness challenge to the statute with respect to the hypothetical conduct of others because his own actions fell within the statute’s proscriptions. That is to say that at the time of his arrest, J.L.S. was committing a trespass after warning. He knew that he was in the school’s safety zone at a proscribed hour and that his authorization to enter and/or remain in the safety zone had previously been revoked. Thus, not only is this statute not unconstitutional as applied in this case, but the appellant also lacks standing to raise a facial vagueness challenge. See Sieniarecki; Dickerson. We therefore do not labor further on this issue and proceed to his final issue on appeal.

C. SUBSTANTIVE DUE PROCESS

J.L.S. lastly asserts that Section 810.0975(2)(b) may be used to punish entirely innocent activities and as such is violative of substantive due process. We again disagree.

The basic test for substantive due process, as enunciated by the Florida Supreme Court, is whether the challenged statute bears a reasonable or rational relation to a permissible legislative objective and is not discriminatory, arbitrary, or oppressive. See Lasky v. State Farm Ins. Co., 296 So.2d 9, 15-16 (Fla.1974); State v. Saiez, 489 So.2d 1125, 1125-1129 (Fla.1986). The Court has further explained that:

It therefore becomes necessary for us to examine the objectives of the Legislature in enacting this statute in order to determine whether the provisions of the act bear a reasonable relation to them. In doing so, we do not concern ourselves with the wisdom of the Legislature in choosing the means to be used, or even with whether the means chosen will in fact accomplish the intended goals; our only concern is with the constitutionality of the means chosen.

Lasky, 296 So.2d at 15-16.

The obvious legislative objective of Section 810.0975(2)(b), as pointed out by the State is the protection of school children from harmful or negative persons such as drug dealers, gang members, or pedophiles. This, we think, without question, is a legitimate exercise of the government’s regulatory or police power for the safety of the community. The government’s interest in protecting school children is both legitimate and compelling. Moreover, we find both the geographical and temporal restrictions imposed by the statute to bear a rational or reasonable relation to the legislative goal of the statute. The fact that some otherwise innocuous activity might be curtailed during the operational time of this public safety statute does not thereby render it unconstitutional. See United States v. Salerno, 481 U.S. 739, 748, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“we have repeatedly held that the Government’s regulatory interest in community safety, in appropriate circumstances, outweigh an individual’s liberty interest”); see also e.g., People v. Parker, 208 Misc. 978, 138 N.Y.S.2d 2, 8 (N.Y.City.Mag.Ct.1955) (“Defendant’s argument is based on the false premise that any regulation of society which is made for the general welfare is invalid if it prohibits a person from doing what he would otherwise have a right to do. That the rights of the individual are subservient to the welfare of the general public is uniformly recognized by the courts.”); Arizona v. Starr, 57 Ariz. 270, 113 P.2d 356 (1941) (law forbidding persons from loitering on school premises or within 300 feet thereof while children attended school was proper exercise of state’s police power for protection of school children); Phillips v. Mun. Court of Los Angeles, 24 Cal.App.2d 453, 75 P.2d 548, 549 (1938) (“the mere fact that some innocent people may desire to loiter near a public school does not deprive the Legislature of its power to prohibit loitering at such a place if the safety of school children require such legislative action.”).

Thus, because we find that the enactment of Section 810.0975(2)(b) was a legitimate exercise of the State’s police power for the safety of school children, we can find no constitutional violation of substantive due process.

CONCLUSION

Based upon all of the foregoing, we find no constitutional infirmity to the challenged statute. Accordingly, we affirm the order under review.

      . The statute also is inapplicable to residents or persons engaged in the operation of a licensed commercial business within the school safety zone. See § 810.0975(3).


author: CORTIÑAS, Judge. ROTHENBERG, Judge LAGOA, Judge

text:
    Glenna FISHER, Appellant, v. Frank PEREZ, Appellee.
    No. 3D05-519.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.

      Kubicki Draper and Sharon C. Degnan, Fort Lauderdale, for appellant.
    Neufeld, Kleinberg & Pinkiert and David Kleinberg and Antoinette R. Appel, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   CORTIÑAS, Judge.

Appellant, Glenna Fisher (“Fisher”), and Appellee, Frank Perez (“Perez”), were involved in a car accident on the Palmetto Expressway. Perez allegedly suffered various injuries in the accident and filed suit against Fisher. The lawsuit proceeded to trial where the focus was whether Perez’s injuries were caused by the accident or were instead the result of a pre-existing degenerative condition. The trial was scheduled to last three days, commencing on November 29, 2004. Fisher planned to call only one witness, Dr. Piper, to testify as an expert. Dr. Piper was disclosed as Fisher’s expert witness, and Perez had taken a brief discovery deposition of Dr. Piper. Dr. Piper was not subpoenaed to attend trial; however, defense counsel confirmed Dr. Piper’s attendance by phone during the lunch recess of the first day of trial. Later that same afternoon, defense counsel unexpectedly received a fax from Dr. Piper’s office, explaining that Dr. Piper was suffering from complications from a recent back surgery, was partially paralyzed, highly medicated, and, as such, unable to testify the following day. Immediately upon receipt of this fax, defense counsel alerted the trial court to the situation. The trial court indicated that the issue would be discussed after the jury was sent home. When the court re-addressed the issue, defense counsel requested that the trial court grant a mistrial or continuance due to Dr. Piper’s unavailability. The trial court denied the motions, but asked defense counsel to provide more information the following day.

Defense counsel renewed his motions the following morning and explained that although he was unable to reach Dr. Piper, he had spoken to Dr. Piper’s office manager who explained that Dr. Piper had “a relapse” the weekend before trial and was put on medication. Despite this, Dr. Piper was still planning to work the week of the trial. However, when he came into work on Monday, his staff noticed that he was too medicated to treat patients and sent him home Monday afternoon.

The trial court then inquired whether Dr. Piper’s deposition testimony could be used in place of live testimony, and defense counsel explained that Dr. Piper had modified his opinion since the time of his deposition testimony based on new information about Perez. This modified opinion was recorded in an unsworn addendum report. Perez’s counsel ultimately waived objection to the admissibility of the addendum report, and also agreed to allow Dr. Piper’s curriculum vitae into evidence. Over Fisher’s objection, the trial court denied the motions for continuance and mistrial, although defense counsel indicated he would continue to try to reach Dr. Piper and arrange a video deposition.

Rule 1.460 of the Florida Rules of Civil Procedure states that

[a] motion for continuance shall be in writing unless made at a trial and, except for good cause shown, shall be signed by the party requesting the continuance. The motion shall state all of the facts that the movant contends entitle the movant to a continuance. If a continuance is sought on the ground of nonavailability of a witness, the motion must show when it is believed the witness will be available.

Fla. R. Civ. P. 1.460.

In addition to the requirements in Rule 1.460, a party seeking a motion for continuance must show “(1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice.” State v. J.G., 740 So.2d 84, 85 (Fla. 3d DCA 1999) (citing Geralds v. State, 674 So.2d 96, 99 (Fla.1996)).

In support of the trial court’s denial of the motion for continuance, Perez contends that these technical requirements were not met and that the motion for continuance was legally insufficient. We disagree.

The motion at issue here was made during trial and it was therefore proper to make the motion orally. See Fla. R. Civ. P. 1.460. At all times, Dr. Piper’s whereabouts were known and he remained willing to testify when physically able. Cf. Safeway Ins. Co. v. Saxon, 452 So.2d 60 (Fla. 3d DCA 1984)(affirming denial of motion for continuance where the defendant’s whereabouts were unknown at the time the motion was before the trial court). There is no suggestion in the record that defense counsel attempted to hide or misrepresent the situation. Cf. Barclay v. Rivero, 388 So.2d 321, 322 (Fla. 3d DCA 1980)(affirming denial of motion for continuance where expert witness failed to appear, expert was noticed for the wrong trial date, and appellants’ counsel was aware expert had a surgery scheduled the afternoon of trial but represented to the court that the surgery was an emergency). Instead, defense counsel disclosed to the court all the information he had, limited as it was, as soon as he obtained it.

The trial court directed defense counsel to read into the record the faxed letter he received from Dr. Piper’s office. This letter stated that although it was uncertain when Dr. Piper would return to work, it would not be earlier than December 5th. Defense counsel stated that he had attempted to contact the doctor overnight to determine whether the doctor would be able to go off his medication long enough to testify in a video deposition. Although he was only able to reach the doctor’s office manager, defense counsel presented the information he had gathered overnight to the court the following morning.

Defense counsel also indicated his intent to submit an affidavit from Dr. Piper’s office manager explaining Dr. Piper’s unavailability. Given the unexpected nature of Dr. Piper’s unavailability and the fact that the trial court did not address the motion for continuance until sometime after 5:00 p.m., with trial commencing the following morning at 9:30 a.m., it appears defense counsel did everything possible to investigate Dr. Piper’s unavailability and provided the court with sufficient facts to grant the motion for continuance.

Lack of Affidavit

Perez makes much of the fact that Fisher’s motion for continuance was not supported by affidavit or sworn testimony. However, given the sudden nature of Dr. Piper’s unavailability and the time constraints within which defense counsel was working, it is understandable that there would be a few hours delay in submitting affidavits. Further, it should be noted that the 1967 Authors’ Comment to Rule 1.460 acknowledges that the rule does not require affidavits to support a motion for continuance. Fla. R. Civ. P. 1.460 Authors’ Comment-1976; see also Myers v. Siegel, 920 So.2d 1241, 1244 (Fla. 5th DCA 2006)(reeognizing that the rule does not require affidavits).

Lack of Subpoena

Next, Perez contends that defense counsel’s failure to subpoena Dr. Piper shows that defense counsel failed to use due diligence to secure his appearance. However, there has been no case explicitly stating a subpoena is the only way to satisfy the due diligence requirement. See, e.g., Photo 60 of Miami Int’l v. Roundtree, 541 So.2d 687, 688 (Fla. 3d DCA 1989)(reversing denial of continuance with no mention of whether expert witness was subpoenaed); Taylor v. Inst. for Medical Weight Loss, 863 So.2d 398, 399 (Fla. 4th DCA 2003)(same).

Due Diligence

Although we view a subpoena as evidence of due diligence, we realize that a subpoena would not have changed Dr. Piper’s availability. Dr. Piper was unavailable because of a sudden and unforeseeable medical complication. Even if under subpoena, Dr. Piper likely would not have been present to testify in court, and even if he was physically present, Dr. Piper likely would not have been able to testify competently due to the medication he was taking. Thus, the lack of a subpoena had no practical effect on Dr. Piper’s availability.

Having decided that the presence or absence of a subpoena, though relevant, is not determinative, we must look at what actions defense counsel actually took to ensure Dr. Piper’s presence. Defense counsel contacted Dr. Piper on the Wednesday before Thanksgiving Day, approximately one week before trial, and the doctor confirmed he would be present. Defense counsel again contacted' Dr. Piper during lunchtime the Monday after Thanksgiving Day to ensure Dr. Piper’s presence at trial the following day. Again, Dr. Piper assured defense counsel he would be present. Both of these conversations occurred well after Dr. Piper’s back surgery. Given these assurances, it is clear that defense counsel did not have any reason to doubt that Dr. Piper would appear at trial. Cf. Davenport v. State, 914 So.2d 1004 (Fla. 3d DCA 2005)(affirming denial of motion for continuance where witness’ nonappearance was known prior to the start of trial). Thus, it is clear that counsel used due diligence in securing Dr. Piper’s appearance at trial. Cf. Geralds, 674 So.2d at 99 n. 7 (affirming denial of motion for continuance where counsel failed to subpoena the witness, counsel failed to list the witness on his witness list, and counsel waited until the State rested its case before making any effort to locate the witness).

Substantially Favorable Testimony and Material Prejudice

Likewise, defense counsel sufficiently explained what Dr. Piper would testify to and why his testimony was important. Dr. Piper was Fisher’s only witness on the critical issue at trial, namely causation, and his testimony was intended to rebut the opinion of Perez’s experts that the shoulder injury was caused by the accident. A strong preference exists in law for live testimony. See, e.g., Silverman v. Millner, 514 So.2d 77, 79 (Fla. 3d DCA 1987)(reversing denial of motion for continuance where the unavailable defendant’s testimony was “necessary for a fair and adequate presentation of his case”); Jean v. Sanitation Inc., 596 So.2d 1245, 1247 (Fla. 4th DCA 1992)(noting that this court’s decision in Silverman turned on the unforeseeability of defendant’s illness and the need for the party’s own live testimony); LoBue v. Travelers Ins. Co., 388 So.2d 1349, 1351 (Fla. 4th DCA 1980)(noting that the right to present evidence and call witnesses is perhaps the most important due process right of a party litigant). Live testimony was especially important in this case because Dr. Piper had changed his opinion between the time of his deposition and the addendum report.

In his deposition, Dr. Piper stated that the shoulder injury was permanent and was caused by the car accident, but then acknowledged that the injury could have been pre-existing and that his opinion would change if Perez’s medical history differed from what was told to him. In the addendum report, Dr. Piper stated that his deposition was compatible with his opinion, but then stated that Perez did not require further surgical treatment, was fully employable, and that it was unlikely the injury was caused by the car accident. Without Dr. Piper’s live testimony, the jury might not have understood what Dr. Piper’s opinion was, or why he changed his mind. Further, the deposition was not taken for trial purposes nor was it videotaped. Thus, the jury could make no assessment of Dr. Piper’s credibility. See LoBue, 388 So.2d at 1351 (“Nor did [the deposition] serve as an adequate substitute for the live appearance of the physician upon which the jury could make a valid determination of credibility in a trial which was largely a contest of experts.”).

Also problematic is the fact that the deposition taken by Fisher’s counsel was very short, and defense counsel asked very few questions of his own witness. Defense counsel did not ask any questions about the doctor’s credentials or his experience with the type of injury at issue. In addition, defense counsel did not ask Dr. Piper to define and explain the medical terms he used during the deposition. The trial judge himself noted that although the deposition contained the expert’s findings, “[h]e did not expound as to what matters specifically led to his findings.” Finally, defense counsel planned to use Dr. Piper to rebut the testimony of Perez’s experts. Not only would Dr. Piper’s testimony have been substantially favorable to Fisher, it was the only evidence Fisher planned to present on the issue of causation. Fisher’s entire case rested on Dr. Piper’s testimony and was materially prejudiced by the trial court’s unwillingness to accommodate Dr. Piper’s unforeseen medical emergency.

While a trial judge ordinarily has great discretion in ruling on matters during the course of a trial, such rulings must comport with fairness and due process. See Silverman, 514 So.2d at 78. Denials of motions for continuances in the face of a sudden unexpected medical emergency of either counsel, a party, or a witness have resulted in reversals on appeal in this and other courts. In Silverman, we found an abuse of discretion where the trial court required defense counsel to proceed to trial using deposition testimony of his client, taken by another attorney, when his client was suddenly hospitalized after suffering a stroke less than two days before trial. Id. Likewise, in Jean, the Fourth District reversed a trial court’s denial of a continuance where the plaintiff, who lived in Haiti, was seriously injured in a car accident on his way to the airport to catch his flight to attend trial. Jean, 596 So.2d at 1245-47. Although the accident happened nearly a week before trial, counsel did not find out about the accident until one day before trial, citing Haiti’s antiquated phone system and the fact that his client does not own or live near a telephone. Id. at 1246.

Although both Silverman and Jean involved the live testimony of a party, the live testimony of Fisher’s sole medical expert was just as crucial in this case where the primary issue being litigated was causation. In fact, the Fourth District has recognized the importance of an expert in a case similar to the one at bar. See LoBue, 388 So.2d at 1351. Here, Dr. Piper was the only expert witness who did not think the injury was caused by the accident, and who did not think the injury was permanent. Just as the Fourth District concluded in LoBue that the expert’s “testimony was essential to appellant’s case,” Dr. Piper’s testimony was essential here. Id. Additionally, just as “[t]he bare-boned discovery deposition of the physician taken by the appellees and presented in part to the jury did not include all of the essential testimony sought to be presented by the live testimony of the witness,” Dr. Piper’s deposition here is similarly lacking. Id. Here, defense counsel read the deposition and addendum report to the jury. Fisher’s counsel then focused on only the few lines from the deposition containing Dr. Piper’s opinion that the shoulder injury was causally related. The trial court then denied any opportunity for defense counsel to redirect by reiterating the changed opinion contained in the addendum report.

We are also guided by our holding in Photo 60. In Photo 60, we held that the trial court’s denial of defendant’s request to extend the lunch recess by one hour to accommodate an expert witness was reversible error. 541 So.2d at 687. In that case, three medical experts testified for the plaintiff that the plaintiff suffered permanent injuries. Id. at 688. The defendant planned to call only one expert witness to contradict their diagnoses. Id. As such, this court found that “[b]y refusing to extend the lunch recess even one hour, the trial court deprived the jury of the only evidence and testimony essential to Photo 60’s defense.” Id.

Here, in requesting the continuance, defense counsel did not only seek to postpone the trial until Dr. Piper was well enough to testify live. Alternatively, defense counsel requested that he be given a day to get in touch with Dr. Piper directly, make arrangements for Dr. Piper to go off his medication long enough to record a deposition, and then be permitted to use this videotaped deposition at trial. As already noted, defense counsel had little time to contact Dr. Piper, the doctor treating Dr. Piper, or anyone else. Although we can understand the trial judge’s hesitancy to postpone a trial, a one-day recess would have allowed defense counsel time to .perpetuate the testimony of his sole medical expert without undue delay in the trial court’s schedule.

Because Dr. Piper was Fisher’s only medical expert, his testimony would have been used to rebut the opinion of Perez’s experts, his deposition was inadequate to convey his opinion to the jury, and his unavailability was sudden and unexpected, we find the trial court abused its discretion in denying Fisher’s motion for continuance and we thereby reverse the decision of the trial court and remand for a new trial.

Reversed and remanded.

ROTHENBERG, Judge

(specially concurring opinion).

I concur with both Judges Cortiñas and Lagoa that a new trial is mandated and agree with the analysis performed by each. I would grant a new trial based upon the trial court’s failure to grant Fisher’s motion for a continuance and plaintiffs counsel’s improper statements in closing argument, and would conclude that each of these errors, standing alone, warrants reversal.

LAGOA, Judge

(specially concurring).

I concur in the result but write separately to note that I would not reverse and remand based solely on the trial court’s denial of Fisher’s motion for continuance, which was requested midway through trial. Instead, I believe a new trial is necessary based on the other issues raised on appeal.

As stated in Judge Cortiñas’s opinion, during the afternoon of the first day of trial, defense counsel received a fax from Dr. Piper’s office explaining that Dr. Piper was suffering a relapse from back surgery, was partially paralyzed, highly medicated, and unable to testify the next day. Dr. Piper was the defense’s sole expert witness. Upon learning of Dr. Piper’s sudden and unexpected unavailability, defense counsel immediately moved for a continuance and/or mistrial. Plaintiffs counsel vehemently objected, and argued that Dr. Piper’s deposition testimony and addendum report were sufficient evidence of his expert opinion. The trial court denied the defense motions.

Prior to presenting Dr. Piper’s deposition testimony to the jury, defense counsel sought permission from the trial court to inform the jury of Dr. Piper’s illness and why he would not be testifying live. The trial court denied defense counsel’s request.

Following the trial court’s ruling, Dr. Piper’s deposition testimony was read to the jury. After the testimony was read to the jury, defense counsel made an extensive proffer regarding Dr. Piper’s testimony if he had been able to testify at trial.

During rebuttal closing, counsel for Perez, Mr. Kleinberg, knowing that Dr. Piper was unavailable due to a sudden illness, and knowing that the defense had been prevented from making the jury aware of the reasons for Dr. Piper’s unavailability, argued the following to the jury:

He [Perez] didn’t complain fast enough. And he’s going to get up here and play nitty picky with a board certified orthopedic surgeon who says degenerative doesn’t mean-he’s reading from some little piece of paper he found on the damn Internet. It means this. I’ve got medical journals here. Where’s Dr. Piper to come in and say any of that?
⅜ ⅜ ⅜ ⅜
I didn’t try to hide anything. I brought in every single medical record. This man didn’t get upset. I never—

Simply put, Plaintiffs counsel intentionally misled the jury regarding the reason Dr. Piper did not present live testimony at trial. Defense counsel promptly and correctly objected and moved for a mistrial. The trial court sustained the objection without providing a curative instruction and denied the motion for mistrial. Given the highly inflammatory and prejudicial nature of the statement, the motion for a mistrial should have been granted. Taken together, these issues warrant reversal and a new trial.

We review the denial of a motion for new trial for abuse of discretion. See Salnave v. Pub. Health Trust of Dade County, 624 So.2d 282 (Fla. 3d DCA 1993); Jones v. Airport Rent-A-Car, Inc., 342 So.2d 104 (Fla. 3d DCA 1977). “If the issue has been properly preserved, the legal standard for trial courts to use in deciding motions for new trial based upon counsel’s improper argument is whether the comment was highly prejudicial and inflammatory.” Hagan v. Sun Bank of Mid-Florida, N.A., 666 So.2d 580, 585 (Fla. 2d DCA 1996)(disapproved of on other grounds by Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000)).

It is well settled that statements by counsel in closing argument which accuse opposing counsel of hiding evidence and fraudulently preventing the presentation of relevant evidence constitute reversible error. See generally Wall v. Costco Wholesale Corp., 857 So.2d 975 (Fla. 3d DCA 2003)(reversal required because of comments made by defense counsel regarding the plaintiffs failure to call her daughter to testify where defense counsel knew daughter was estranged from parents); Hernandez v. Home Depot U.S.A., Inc., 695 So.2d 484, 485-86 (Fla. 3d DCA 1997)(reversal required because trial court excluded testimony of plaintiffs expert that defendant had created an unsafe condition and defense counsel, after successfully arguing for the exclusion of the proffered evidence, in closing argument, “whipsawed the plaintiff for not producing that very testimony”); George v. Mann, 622 So.2d 151, 152 (Fla. 3d DCA 1993)(“Defense counsel repeatedly referred to Mrs. George’s ‘lawsuit pain,’ and argued that she had ‘set up’ the entire lawsuit, implying that she was a liar and was perpetrating a fraud upon the court. Defense counsel also argued to the jury that Mrs. George had concealed evidence and violated discovery orders. This line of argument, even if not objected to, constitutes reversible error”); Emerson Elec. Co. v. Garcia, 623 So.2d 523 (Fla. 3d DCA 1993)(new trial ordered where plaintiffs counsel accused defense counsel of fraud, hiding evidence, and putting up roadblocks to discovery).

I find that given Plaintiffs counsel’s specific knowledge of the reason for Dr. Piper’s absence, his opposition to informing the jury as to that reason, and his vehement argument to the trial court that Dr. Piper’s deposition testimony and addendum report were sufficient evidence of his expert opinion, any argument by Plaintiffs counsel implying that defense counsel was hiding evidence by failing to bring in Dr. Piper to testify was both egregious and prejudicial to Fisher. See Johnnides v. Amoco Oil Co., 778 So.2d 443 (Fla. 3d DCA 2001). Indeed, this Court has in the past characterized such an argument as “disingenuous” and “misleading” and has repeatedly disapproved of this type of approach to lawyering and litigation. See Hernandez, 695 So.2d at 486.

Additionally, because this matter is being returned to the trial court for a new trial on all issues, I believe it appropriate to address the final issue raised by Fisher. A new trial is also warranted based on the trial court granting a directed verdict against the defendant, Fisher, on the issue of negligence. Perez’s testimony differed substantially from Fisher’s and therefore the issue of negligence should have been submitted to the jury. At trial, Perez testified that when the accident occurred he was driving in the slow lane, in stop- and-go traffic. Perez’s deposition testimony, which was also read at trial, contained a different version of the accident. In his deposition, Perez claimed that he was traveling at approximately 45 miles per hour; that prior to the impact he did not slow down or stop his vehicle; and that there were moving vehicles directly in front of him. Fisher, however, testified in her deposition that there was slight traffic on the road at the time of the accident and that Perez, although he did not slam on his brakes, came to a sudden complete stop in a moving lane. At trial, Fisher testified similarly although she also testified that she had seen Perez slowing down previous times, before the accident occurred.

In Florida, there is a presumption of negligence which attaches to the driver of a rear vehicle in a rear-end collision. Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 572-73 (Fla.2001); Eppler v. Tarmac America, Inc., 752 So.2d 592, 594 (Fla.2000). “However, if the stop is not expected, i.e., ‘abrupt and arbitrary’ in a place not reasonably expected ... then the presumption is rebutted, and the [plaintiff] is not entitled to a directed verdict.” See Hunter v. Ward, 812 So.2d 601, 603 (Fla. 1st DCA 2002); accord, e.g., Wright v. Ring Power Corp., 834 So.2d 329, 331 (Fla. 5th DCA 2003).

In this case, Fisher’s testimony that Perez came to a sudden and complete stop, in a moving and immediately open lane of traffic, created a question of fact as to whether the stop was at a time and place reasonably to be expected. If the stop was not expected and was in a place not reasonably expected then the presumption of negligence was rebutted. Accordingly, Perez was not entitled to a directed verdict on the issue of negligence. The issue of negligence, dependent upon the conflicting testimony of the parties, should instead have been submitted to the jury. See Nathanson v. Houss, 717 So.2d 114, 116 (Fla. 4th DCA 1998)(“A directed verdict cannot stand where there is any competent evidence to support the non-movant’s position.”); cf. Cheng v. Sirichoke, 745 So.2d 1152 (Fla. 3d DCA 1999)(con-flicting testimony as to traffic conditions on busy urban expressway at time of collision precluded summary judgment in favor of preceding driver).

      . Evidence regarding Dr. Piper's credentials was not perpetuated in deposition testimony.

      . The following exchange occurred:
      MR. KNIGHT: I'm sorry. I just thought of it now. I would like to be able to tell the jury why Dr. Piper is not going to be testifying here live.
      THE COURT: Just I. mean—
      MR. KNIGHT: Briefly.
      THE COURT: No.
      MR. KNIGHT: Judge, I'm being forced to use the Plaintiff's discovery depo already, and now you’re going to — I told them we're going to hear him live. He's unavailable because he has a medical condition. They've got to hear that he has a medical condition. I told them they would hear from Dr. Piper. I will not be going to be able to prove that stuff from my opening because I’m being handcuffed. I would, at least, like to tell them why he's not going to be here.
      THE COURT: No. Just like other witnesses appear by way of deposition. No.
      Anything further?
      MR. KLEINBERG: I think the standard instruction "you are to consider this as though the person were present”.
      THE COURT: Sure.
      MR. KNIGHT: Judge, that's completely prejudicial to the defense.
      THE COURT: No. As to why he’s not here, that's not relevant.

      . Defense counsel made the following proffer: MR. KNIGHT: And then I would like to make the proffer. If Dr. Piper would have testified, number one, he would have been able to give his background education and experience, which is unable to be done here. He would be able to talk about his extensive experience with labral tears and these kind of injuries. He would have given definitions and talked extensively about chondromalacia, synovitis, about degeneration, about the cause of labral tears, about the causes of chondromalacia. He would have testified regarding permanency and the fact that even with this surgery there was no functional impairment but only an anatomical impairment. He would have testified that in an accident such as this, in the way that was described by the Plaintiff, there’s no way that within reasonable degree of medical certainty that a — that this action described by the Plaintiff would have caused the labral tear. He would had [sic] then gone on to talk about the kind of things that do cause labral tears and chon-dromalacia. He would have discussed the various records that he relied on for his review, including Dr. Linan, Dr. Rosenzweig. He would had [sic] been available to rebut many of the things that Dr. Rosen-stein said during this case, including some pretty far fetched opinions regarding chon-dromalacia, degeneration, and other things. He would have commented on future surgery. He would have commented on the need — the lack of a need for future surgery or future treatment. He would have commented on the fact that this patient has gotten back to normal which is the common course for most people that have labral tears that have had surgery. And overall, ' he would have just talked about his opinions regarding the causation and whether or not this injury was related. I think that pretty much covered it.


author: ROTHENBERG, Judge. COPE, C.J.

text:
    Tamara GARCIA, Appellant, v. Nilo HERNANDEZ, Appellee.
    No. 3D05-2574.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.

      Henry M. Bugay, for appellant.
    Stratton Feinstein and Brett Feinstein and Darryl C. Dungan, for appellee.
    Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   ON MOTION FOR REHEARING AND/OR CLARIFICATION

ROTHENBERG, Judge.

We deny the appellee’s motion for rehearing, grant the appellee’s motion for clarification, withdraw this court’s previous opinion dated November 15, 2006, and issue this opinion in its stead.

The wife, Tamara Garcia, appeals from portions of a final judgment of dissolution of marriage. We reverse and remand for entry of a final judgment consistent with this opinion.

The parties in this dispute were married for twelve years, and are the parents of a child who was eleven years old when the final judgment granting dissolution of their marriage was entered in 2005. At the hearing on the husband’s amended petition for dissolution of marriage, the husband, Nilo Hernandez, requested that the marital home be sold and the proceeds partitioned. The husband also sought a special equity in the marital home. In contrast, the wife sought the exclusive use and possession of the marital home until their minor child reaches the age of majority.

At the hearing, it was undisputed that in October 1992, the parties, in contemplation of marriage, decided to purchase a house for $27,000.00 which was completely uninhabitable. However, due to the husband’s negative credit history, the house was purchased by the wife and the husband’s sister. Although the house was not titled in the husband’s name, he contributed $8,000 for the down payment, whereas the wife contributed $1,000. After the property was acquired, the husband contributed approximately $23,000 to purchase materials that were used to renovate the house. In addition, both the husband and the wife spent months personally renovating the house, expending numerous hours of their personal labor. Upon completing the renovations, the parties and the wife’s minor son moved into the house. Thereafter, the parties - married in September 1993 and had a child the following year. Throughout the marriage, the entire family lived in this house until the husband moved out when the parties separated. Following the separation, the wife continued to live in the house with the parties’ minor child and her child from a previous relationship, who was approximately seventeen years old at the time of the hearing. After the husband filed his petition for dissolution of marriage, the husband’s sister transferred her interest in the house to the husband.

At the time of the hearing, the wife was working as a manicurist in the marital home, earning approximately $1,400 per month, with $100 per month in expenses. In addition, the wife rents an efficiency in the marital home for $500 per month, and with the rental proceeds she is able to pay the entire mortgage payment. On the other hand, a few weeks before the final hearing, the husband lost his job with the State of Florida, where he was earning approximately $26,000 per year, after his employer received an anonymous phone call indicating that the husband had not disclosed certain information on his employment application.

In the final judgment, the trial court ordered that the wife be the child’s primary residential parent. In calculating the husband’s child support obligation, the trial court found that the wife netted $1,300 per month, and imputed minimum wage to the husband. The trial court ordered that the husband pay $231.75 per month in child support.

The trial court also found that prior to and throughout the marriage, the parties have lived in the same house, and that this house was marital property. The trial court, however, found that the husband was entitled to a special equity based on the funds he contributed to purchase the marital home, the funds he contributed to purchase materials to renovate the marital home, and his personal labor in renovating the marital home, which the husband calculated at $17,000. The trial court, however, failed to consider the undisputed evidence that the wife also contributed numerous hours of labor in renovating the marital home, and that she contributed $1,000 for the down payment. Based on the husband’s contributions, the trial court awarded the husband a fifty percent special equity in the wife’s share of the marital home, which was worth $240,000 at the time of the final hearing, and ordered that the house be sold and the proceeds distributed accordingly.

Based upon the value of the home, prior to the calculation of the special equity, each party would be entitled to $105,404.30 upon the sale of the home and satisfaction of the mortgage. However, after computing the husband’s special equity, the husband’s share would increase to $158,106.45, while the wife’s share would decrease to $52,702.15. The trial court also ordered the wife to pay one-half of the husband’s existing credit card balance of $5,980.96. Thus, upon the sale of the marital home, which 1) was purchased in contemplation of the parties’ marriage; 2) was purchased by the wife and the husband’s sister, not the husband; 3) the parties renovated pri- or to and during the marriage; 4) the parties raised their minor child in; 5) the parties and their child lived in for approximately thirteen years; and 6) was worth $240,000, the wife will receive $49,711.67, from which she will have to support herself, the parties’ minor child, and another child from a prior relationship with a monthly income, including child support, of approximately $1,500. Conversely, the husband will receive $161,096.93 from the sale and partition of the house.

In this appeal, the wife contends that the trial court erred in not addressing her request for exclusive use and possession of the marital home, and by ordering that the marital home be sold. We agree.

Although the trial court’s final order does not address the wife’s request for exclusive use and possession of the marital home, it is clear that the trial court denied her request as it ordered the parties to sell the marital home and distribute the proceeds. “[A]s a general rule, absent special circumstances, the primary residential parent should be awarded exclusive use and possession of the marital home until the youngest child reaches majority.” Martinez v. Martinez, 573 So.2d 37, 43 (Fla. 1st DCA 1990); see also Edgar v. Edgar, 668 So.2d 1059, 1061 (Fla. 2d DCA 1996)(“Where children are involved, the wife is entitled to exclusive possession of the marital home until the minor children reach majority.”); Dehler v. Dehler, 648 So.2d 819, 820 (Fla. 4th DCA 1995)(“The general rule is that absent compelling financial reasons, the custodial parent should be awarded the exclusive use and possession of the marital home until the minor children reach majority or become emancipated, or the former wife remarries.”); Cruz v. Cruz, 574 So.2d 1117, 1117-18 (Fla. 3d DCA 1990)(holding that “trial court should have allowed the wife to remain in the marital home until the youngest child reaches the age of majority, rather than having the home sold at the present time”).

In the instant case, the trial court did not specifically address the wife’s request for exclusive use and possession of the marital home, and made no findings that “special circumstances” or “compelling financial reasons” existed that would justify its denial of the wife’s request for exclusive use and possession of the marital home until the minor child reaches the age of majority. Moreover, a review of the record reflects that the trial court could not have made such a finding as the record is devoid of any evidence to support that conclusion. Although the husband demonstrated that he was unemployed on the date of the final hearing, he presented absolutely no evidence to suggest that he was incapable of obtaining gainful employment. In contrast, the wife, who works from the marital home as a manicurist, nets only $1,300 per month, and receives $231.75 in child support. We, therefore conclude that it would be wholly unreasonable to deny the wife, who is the custodial parent of the parties’ minor child, the exclusive possession of the marital home and to require a sale of the marital home under the circumstances presented herein. The minor child will be forced to move from the only house she knows, while the wife will be forced to support the minor child, herself, and another child from a previous relationship on approximately $1,500 per month. This especially makes no sense when the rental income produced by the efficiency in the marital home completely covers the current monthly mortgage payment. As the husband has not presented any special circumstances which would negate the general rule that the custodial parent be awarded the use and possession of the marital home until their minor child reaches majority and in fact, there are compelling reasons for awarding the use of the home to the wife and minor child, we reverse the portion of the final judgment ordering that the marital home be sold, and remand for entry of a final judgment awarding the wife exclusive use and possession of the marital home until the minor child reaches the age of majority.

The wife also contends that the trial court erred in awarding the husband a special equity in the marital home. Based on the circumstances of this case, we agree.

In the instant case, the husband had the burden of establishing a special equity in the marital property as he was the party who was seeking the special equity. See Escudero v. Escudero, 739 So.2d 688, 692 (Fla. 5th DCA 1999). As the property was acquired in the wife’s name, a rebuttable presumption arises that the funds contributed by the husband were intended as a gift to the wife. In explaining the acquisition of the marital property, he testified as to the amounts he contributed, and he explained that the property was acquired in the wife’s name and his sister’s name, not in his name and the wife’s name, due to his credit history. Moreover, the undisputed evidence demonstrated that the parties were living together when the property was purchased, that the property was purchased in contemplation of their marriage, and that both parties contributed (and thus commingled) their non-marital assets to purchase the home they intended to live in, and in fact did live in for the entire duration of their twelve year marriage. In addition, it is undisputed that both parties contributed their labor in the remodeling of the home. Thus, the husband’s testimony was insufficient to rebut the presumption that the contributions he made were intended as a gift to the wife. Therefore, we reverse the portion of the trial court’s order awarding a special equity in the marital home to the husband.

Finally, as stated earlier, we have reversed and remanded for entry of a final judgment awarding the wife exclusive use and possession of the marital home until the minor child reaches the age of majority. Therefore, upon remand, pursuant to section 61.077, Florida Statutes (2005), the trial court is to determine whether the husband is entitled to setoffs or credits upon the sale of the marital home. However, the trial court, as it did in the final judgment being appealed, is to give the wife the right of first refusal to purchase the property from the husband.

Reversed and remanded for entry of a final judgment consistent with this opinion.

FLETCHER, J., concurs.

COPE, C.J.

(concurring in part and dissenting in part).

I agree with the majority on reversal of the equitable distribution award.

I respectfully disagree on the issue of exclusive use and. occupancy. Further, the analysis of exclusive use and occupancy should be re-done in light of our change in the equitable distribution award.

The problem here is that the former husband was fired from his job shortly before the final hearing, as explained in the majority opinion. Since the former husband had not obtained a new job at the time of the final hearing, the trial court imputed minimum wage to him for purposes of the child support award. The child of the marriage was born in 1994, so the period of exclusive use and occupancy will run another five years — to 2012.

Under Delgado v. Delgado, 920 So.2d 661 (Fla. 3d DCA 2005), an order for exclusive use and occupancy is appropriate only if the former husband has sufficient resources with which to obtain adequate living accommodations. It is not appropriate to leave a large amount of equity tied up in the marital home ($240,000 in this case) through 2012 if the husband does not have the resources to obtain reasonable alternative housing. All the trial court has imputed to the husband at this point is minimum wage and there are no other significant assets of the marriage apart from the marital home.

Because our reversal on the equitable distribution award changes the economics regarding the parties’ respective shares of the home, we should remand for a new hearing on the issue of exclusive use and occupancy. At that time, the court can make a more reliable determination regarding the parties’ respective incomes and income earning potential, and based on that information, enter an appropriate order on the former wife’s request for exclusive use and occupancy.

      . In addition to the monthly mortgage payment, property taxes and homeowner’s insurance on the house are approximately $400.00 per month.

      . At his previous employment, the husband was earning approximately $26,000 per year, which equates to approximately $12.50 per hour based on a forty hour work week. At the time of the final hearing, Florida’s minimum wage was $6.15 per hour. There is no evidence in the record to suggest that the husband is not capable of earning more than minimum wage.

      .The trial court also noted that even though there was no evidence that the wife made the anonymous phone call to the husband's employer, she had threatened to do so.

      . Assuming that the husband would have successfully rebutted the presumption that his contributions were a gift to the wife, the husband would not be entitled to a special equity for his personal labor where the wife equally contributed her labor in renovating the house. See generally Shelow v. Shelow, 550 So.2d 43, 44 (Fla. 3d DCA 1989)("We reverse the special equity award on the settled law that a husband’s labor in constructing a home during the course of the marriage does not, alone, entitle him to a special equity in the jointly owned marital home.”).


author: ALTENBERND, Judge.

text:
    Richard EVETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-6118.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Richard Evett appeals the order revoking his probation and the prison sentences imposed as a result of the revocation. Mr. Evett argues and the State concedes that the written order of revocation fails to accurately recite the trial court’s findings in open court. The written order of revocation lists violations of conditions two, four, and twenty-seven. The trial court orally pronounced a violation only of condition two, and not of conditions four and twenty-seven.

This error, however, was not preserved in the trial court either at the revocation hearing or by subsequent motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b). The supreme court has specifically held that such an error in an order revoking probation is not a fundamental error. See Thomas v. State, 763 So.2d 316 (Fla.2000). Accordingly, we affirm the order on appeal.

Affirmed.

SALCINES and KELLY, JJ„ Concur.


text:
    Robert SIRMONS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-6072.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm and remand for the entry of a written probation revocation order. See Greene v. State, 919 So.2d 684, 685 (Fla. 2d DCA2006).

DAVIS, VILLANTI, and LaROSE, JJ., Concur.


text:
    Todd OOSTERINK, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1374.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.
   ALTENBERND, Judge.

Todd Oosterink appeals the postconviction court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Mr. Oosterink alleges that his trial counsel, Jeffrey Levkoff, was ineffective when he advised him to plead guilty to a charge of trafficking in heroin. Allegedly, his trial counsel informed him that the decision to impose a twenty-five-year mandatory minimum sentence was discretionary with the trial judge. He claims that he would not have pleaded guilty if he had understood that the trial court had no discretion but to impose the twenty-five-year sentence.

The postconviction court summarily denied this motion, claiming that it involved an issue that had been raised on direct appeal from a motion to withdraw plea under rule 3.170(f). Although the postcon-viction court is correct that an issue that could or should have been raised on direct appeal is generally not cognizable under rule 3.850, this case has an interesting twist. The trial court denied the initial motion to withdraw the plea under rule 3.170(f), relying on the transcript of the plea colloquy. The trial court expressly ruled:

Well, I have here a record of taking a plea with a complete colloquy. You may have a 3.850, you may very well have that on counsel, but as far as the plea, it seems to me clear that he understood, that he went over it, and I have no basis for setting it aside. So I’m going to deny that motion.

Thus, the order that we affirmed on appeal had expressly reserved the issue of ineffective assistance of counsel for post-conviction consideration. Given the closeness of this issue in this case and the trial court’s decision to defer a full evidentiary hearing on ineffectiveness of counsel to a postconviction proceeding, we conclude that the motion under rule 3.850 is not barred by the earlier proceedings.

Reversed and remanded.

SILBERMAN and CANADY, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    George B. COPELAND, Appellant, v. ALBERTSON'S INC., CT Corporation System, Registered Agent in Florida for Albertson’s, Inc., and Michael Flannigan, Daniel R. Yovack, Robert J. Hansen, James A. Golden, Robert S. Heslin, Stanley Gilbritch, Michael L. Clardy, and Jonathan C. Bronson, Appellees.
    No. 2D05-2867.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.

      George B. Copeland, pro se.
    Cici Culpepper Berman of Fowler White Boggs Banker P.A., Tampa, for Appellees.
   NORTHCUTT, Judge.

George Copeland sued Albertson’s, Inc., and a number of its employees seeking compensation for injuries he suffered as a result of the defendants’ alleged intentional torts and negligence. The circuit court entered summary judgment in favor of all the defendants. Copeland challenges that judgment, contending that he was not given sufficient notice of one of the defendants’ two grounds. The defendants respond that even if that were true, the judgment was properly entered because the circuit court was right for the wrong reason. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999). We review a summary judgment de novo. See Fayad v. Clarendon Nat'l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005). For several reasons, the summary judgment was erroneous as a matter of law. We reverse and remand for further proceedings.

The events that led to Copeland’s lawsuit began when he entered an Albertson’s grocery store and, brandishing a knife, robbed a clerk and fled the premises. When other employees were alerted to the robbery, they left the store to search for the robber and apprehend him. The employees caught Copeland in the parking lot of a discount store next to the Albertson’s. What happened then is a matter of dispute. Essentially, the employees claim that Copeland threatened them with his knife and that they merely attempted to restrain him and protect themselves. Copeland maintains that the employees attacked him with shopping carts, jumped on him, and punched and kicked him. Everyone agrees that police officers arrived within several minutes and arrested Copeland.

Copeland was tried on a number of criminal charges stemming from the incident, and was convicted of armed robbery and aggravated assault. He then filed the civil lawsuit at issue here, claiming that the individual employees committed the intentional torts of assault and battery, and that Albertson’s was negligent for various reasons, including the hiring and training of its employees. Eventually, the defendants moved for summary judgment. Their motion asserted that there was no evidence to support Copeland’s causes of action. The defendants filed Copeland’s deposition in which he stated that he was in an alcohol-induced blackout during the incident and could not recall anything about it. He could not point to any particular conduct that would support his claims nor could he specifically identify the batterers.

In their memorandum in support of summary judgment, the defendants raised a completely different argument: they asserted that Copeland’s claims were barred by section 776.085, Florida Statutes (2000). That statute provides a defense to a civil action for damages based on personal injury if the injury was sustained “by a participant during the commission or attempted commission of a forcible felony.” The statutory defense is established “by evidence that the participant has been convicted of such forcible felony, or attempted forcible felony....” § 776.085(1).

Neither the order granting summary judgment nor the final summary judgment itself stated the legal basis for the court’s ruling. The defendants acknowledge that they argued that judgment was appropriate under section 776.085. Therefore, we will presume that the judgment was granted either on the ground asserted in the motion, lack of evidence, or on the basis of the statute, or both.

Insofar as the judgment was founded on the section 776.085 defense, it was procedurally defective in two respects. First, the defendants did not plead an affirmative defense based on the statute. A defendant cannot present evidence of a statutory defense unless that defense is pleaded. See Protective Cas. Ins. Co. v. Killane, 459 So.2d 1037, 1038 (Fla.1984) (holding that the trial court correctly denied a proffer on the statutory seat belt defense because it was not properly pleaded); Tobias v. Osorio, 681 So.2d 905, 908 (Fla. 4th DCA 1996) (stating that in order for a lounge serving alcohol to be entitled to a jury instruction on the statutory defense in section 562.11(l)(b), it must have raised the defense in a responsive pleading).

Moreover, even if the defendants had pleaded the defense, they did not mention it in their motion for summary judgment. Florida Rule of Civil Procedure 1.510 requires that a motion for summary judgment set forth the “substantial matters of law to be argued” and be served to the opposing party “at least 20 days before the time fixed for the hearing.” This rule is intended to eliminate surprise and to give the parties “a full and fair opportunity to argue the issues.” H.B. Adams Distrib. Inc. v. Admiral Air of Sarasota County, Inc., 805 So.2d 852, 854 (Fla. 2d DCA 2001). The defendants first alluded to this defense in their memorandum served on March 31, 2005, just five days before the summary judgment hearing noticed for April 4, 2005. Thus, the memorandum did not give Copeland timely notice that the statutory defense would be argued at the hearing or an opportunity to file any documents in opposition to that theory. We note that Copeland raised these issues in his motion for rehearing, which the court denied.

In an attempt to sidestep these procedural problems, the defendants argue that the summary judgment can be affirmed because it was right for the wrong reason. See WQBA 731 So.2d at 644-45; Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (“Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.”). The defendants posit that even if we accept Copeland’s argument that the defense was improperly raised, we should affirm nevertheless because the statute is a total bar to his claims. They point to the fact that Copeland was convicted of two forcible felonies, armed robbery and aggravated assault, and that he was escaping the crime scene when he was allegedly battered. See § 776.085(1). Copeland’s affidavit in opposition to the defendants’ motion pointed out that he was acquitted of the aggravated battery charges concerning Michael Clardy and Jonathan Bronson, two of the employees who pursued him to the discount store parking lot and allegedly battered him with shopping carts. The robbery and assault convictions were based on Copeland’s acts inside the Al-bertson’s store.

The defendants, as the movants for summary judgment, bore the burden of proving conclusively that Copeland could not prevail. Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995). The evidence they presented in support of their motion consisted of Copeland’s deposition, which did not in any way address the section 776.085 defense, and a copy of his criminal judgment. Because the section 776.085 defense is applicable only to injuries the plaintiff sustains in the “commission or attempted commission” of a forcible felony, Copeland’s conviction for aggravated assault against the clerk inside the store did not support the defense. The conviction for robbery might support the defense, but at the time of the summary judgment the defendants had not submitted evidence that would prove this. Cf. Gonzalez v. Liberty Mut. Ins. Co., 634 So.2d 178, 179 (Fla. 3d DCA 1994) (noting the record supported the court’s finding that the participant was attempting to commit a forcible felony when the victim shot him). Moreover, Copeland filed the transcript of defendant Robert Hansen’s sworn testimony at Copeland’s criminal trial, which cast doubt on the theory that the robbery conviction supported the section 776.085 defense. Hansen testified that during the pursuit, Copeland took a handful of money, threw it on the ground and screamed “there’s your money, leave me alone.” Thus, even though Copeland was unaware that the defendants would raise the section 776.085 argument, his filings in opposition to the motion actually raised a question of fact concerning the defense. See § 812.13(3)(a), Fla. Stat. (2000). Summary judgment is improper if the record reflects even the slightest possibility that a material issue of fact may exist. See Fatherly v. Cal. Fed. Bank FSB, 703 So.2d 1101, 1102 (Fla. 2d DCA 1997). Therefore, the summary judgment cannot be sustained based on the section 776.085 defense.

The defendants also contend that the summary judgment can be upheld based on the ground raised in their motion, i.e., that Copeland could not prove his case because he could not remember the incident. This assertion ignored the fact, established in Copeland’s complaint, that there were numerous witnesses to this incident. Additionally, Copeland filed transcript excerpts from his criminal trial in which witnesses testified about the employees hitting Copeland. In any event, a summary judgment motion is not a proper vehicle for determining whether a plaintiff can actually prove his cause of action; rather it is designed to test whether the record conclusively shows that the claim cannot be proved as a matter of law. See Jennaro v. Bonita-Fort Myers Corp., 752 So.2d 82, 83 (Fla. 2d DCA 2000). Again, the defendants failed to meet their burden of proof on this ground for summary judgment and the judgment cannot be sustained on this theory.

We reverse the summary judgment and remand for further proceedings. We note that under rule 1.190 a party may seek leave of court to amend its pleading. If on remand the defendants are permitted to amend their pleadings to assert the section 776.085 defense, Copeland may wish to review section 776.085(4), which provides penalties for a convicted and incarcerated party if the defense is proved.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.

      . Copeland’s affidavit in opposition to the motion was served before the defendants’ memorandum that asserted the section 776.085 defense. The defendants’ motion stated that the acts giving rise to Copeland’s claims in the civil suit "resulted in his conviction by jury of armed robbery and aggravated assault.” The referenced portion of the affidavit addressed that assertion.


text:
    Michelle SPENCE-JONES, Petitioner, v. The STATE of Florida ELECTIONS COMMISSION and the Honorable Erroll H. Powell, Administrative Law Judge, State of Florida, Division of Administrative Hearings, Respondents.
    No. 1D07-0104.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Carlos L. de Zayas of Lydecker, Lee, Behar, Berga & De Zayas, L.L.C., Miami, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. Campbell v. Lungstrum, 732 So.2d 437 (Fla. 1st DCA 1999).

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


text:
    Michael Frank MERRIGAN, Appellant, v. Jennifer Lee MERRIGAN, Appellee.
    No. 2D05-5178.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2007.

      Melinda A. Delpech of Melinda A. Del-pech, P.A., Sarasota, for Appellant.
    No appearance for Appellee.
   ALTENBERND, Judge.

Michael Frank Merrigan (the Husband) appeals a final judgment of dissolution of marriage that was entered based upon the report and recommendation of a general magistrate. The judgment was entered without compliance with the appropriate rules of procedure and in a manner that did not accord with due process. We therefore reverse the judgment and remand for further proceedings.

Jennifer Lee Merrigan (the Wife), filed a pro se petition for dissolution of marriage on April 5, 2005. In her petition, she waived any claim to alimony but sought equitable distribution of assets and liabilities. She also sought sole parental responsibility for the two young children of the marriage. She requested limited, supervised visitation, claiming that the Husband had extreme anger toward her. In early May, the Husband filed a pro se answer admitting the marriage was irretrievably broken but denying the Wife’s allegations concerning equitable distribution, child custody, and child support. In his answer, he indicated that he intended to file a counterpetition within a few weeks. He explained that he was not serving the Wife because she had not disclosed her current address in her filings. On July 1, 2005, the court entered an order referring the “petition for dissolution of marriage and all other matters related thereto” to the general magistrate and scheduling “a hearing on the above-referenced matters” for thirty minutes on August 24, 2005. Thereafter, the Husband filed his counterpetition for dissolution of marriage, and the Wife answered the counterpetition on July 26, 2005.

Both parties appeared pro se at the hearing on August 24, 2005, which served as an abbreviated trial on the petition. The hearing was digitally recorded, and our record contains a transcript of that hearing. Although the Wife had filed a financial affidavit, it was completely blank as to the family’s assets and liabilities. The Husband had not filed a financial affidavit. Neither party provided any documentary evidence. The general magistrate asked each party pointed questions about their assets, debts, income, and what they each wanted with respect to custody and visitation for the two young children of the marriage. The Husband was unemployed, had no source of income, and reported he was disabled due to depression. Both parties expressed concerns about the fitness of the other party as a parent. The general master learned that a custody or psychological evaluation had been ordered in a separate domestic violence proceeding between the parties, but the evaluation was not complete. At one point, the Husband specifically requested that the general magistrate delay a decision on these matters until more information was available.

Despite the summary process leading to the hearing and the dearth of information on the critical issues at the hearing, the general magistrate recommended entry of a final judgment of dissolution of marriage. The recommended final judgment required the Husband to pay child support of $472 per month, declared that there were no marital assets to distribute, and divided approximately $8000 in debts between the parties. Based upon hearsay information provided by a law enforcement officer at the hearing, the recommended judgment awarded the Wife “temporary sole parental responsibility” of the children and prohibited any contact between the Husband and children “pending the outcome of the custody evaluator’s findings.”

Within ten days of the general magistrate’s order, the Husband filed an “objection” to the magistrate’s decision, objecting because the financial affidavits had never been completed and both marital assets and debts had been overlooked. The Husband claimed that he was unaware that the hearing was intended to be a final hearing. Nine days later, without a hearing, the trial court entered the proposed final judgment, reciting that the parties had not filed “exceptions” to the magistrate’s order. There is no indication that the trial court deemed the Husband’s objection to be facially insufficient. His objection was actually filed in the court file prior to the filing of the magistrate’s proposed final judgment, and it is likely that the trial court simply overlooked the document. In conjunction with the entry of the “final” judgment containing a “temporary” custody award, the trial court also entered an order appointing a custody evaluator, as if the case were still pending. At this point, the Husband hired a lawyer and filed this appeal.

The procedures followed in this case and the resulting outcome are troublesome on many levels. Although the notice of hearing provided to the parties was done on a form intended to conform to the requirements of Florida Rule of Family Law Procedure 12.490 regarding hearings before a general magistrate, the notice did not fairly apprise the Husband that the hearing would result in a final judgment. It is doubtful that setting a hearing on the “petition for dissolution of marriage and all other matters related thereto” complies with the requirement of rule 12.490(b)(3) that the order state “with specificity the matter or matters being referred.” This notice also failed to comply with the procedures required by Florida Rule of Family Law Procedure 12.440(a) for setting a trial or final hearing. This alone merits reversal. See Masiello v. Masiello, 850 So.2d 650 (Fla. 2d DCA 2003). Indeed, in this case it appears that the matter was not ready for a trial given the lack of appropriate financial information and the court’s attempt to defer a final decision on custody.

Further, the “temporary” custody provisions in the final judgment denied the Husband any contact with the children when that relief was not specifically requested in the Wife’s petition, and the Wife had actually requested that the Husband receive limited, supervised visitation. This too is error. See Ryan v. Ryan, 784 So.2d 1215 (Fla. 2d DCA 2001). It is unclear how the trial court envisioned that it would conduct a subsequent hearing and enter a permanent custody decision after it had entered the final judgment.

We recognize that trial courts are struggling to develop efficient procedures to adequately process pro se dissolution of marriage cases. In some instances, procedures- nearly as streamlined as those employed in this case might prove sufficient to identify and perhaps resolve specific cases when the parties appear with limited issues and are amenable to a speedy resolution. However, the procedures in this case were clearly insufficient to provide appropriate notice and an opportunity to be heard on the significant contested issues of child custody, child support, and equitable distribution. Accordingly, we reverse the final judgment of dissolution of marriage and remand for further proceedings. On remand, if the remaining issues are not yet ripe for resolution, the parties may seek appropriate temporary relief from the circuit court.

Reversed and remanded.

VILLANTI, J., and HAYES, HUGH D., Associate Judge, Concur.

      . The file contains a clerk’s default that was entered a few days before the answer was filed. It was never set aside, but no one ever attempted to enforce it in this divorce involving children.


text:
    Mark KAIGLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5520.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2007.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   On Remand from the Supreme Court of Florida

PER CURIAM.

This case is before us on remand following the decision of the Florida Supreme Court in Kaigler v. State, 944 So.2d 340 (Fla.2006), quashing and remanding the decision of this court in this case, Kaigler v. State, 913 So.2d 1254 (Fla. 2d DCA 2005). Pursuant to the holding in Tillman v. State, 934 So.2d 1263 (Fla.2006), we reverse Kaigler’s convictions, for resisting an officer without violence and battery on a law enforcement officer and direct the trial court to grant Kaigler’s motion to dismiss as to these charges.

Reversed and remanded.

FULMER, C.J., and WHATLEY and CANADY, JJ„ Concur.


author: FARMER, J. MAY, J.,

text:
    TRAVELBIZ SOLUTIONS, INC., Appellant, v. CLICK INTERCONNECT, INC., Appellee.
    No. 4D05-4332.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 2007.

      Michael I. Santucci of the Law Offices of Michael I. Santucci, P.A., Fort Lauderdale, for appellant.
    Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, and Scott W. Leeds of Leeds, Colby, Paris, Spence, Hoffman & Valori, P.A., Miami, for appel-lee.
   FARMER, J.

This dispute involves a transaction between a shareholder and the company whose shares he held. The critical question was whether the funds represented an investment or a loan. No single document reliably established the one or the other, and there was conflicting testimony from the principal actors. In the circumstances then existing — the height of the “dot com” bubble — the funds could plausibly have represented either one. At the end of a bench trial, the trial judge held that the transaction might have been nominally a loan but repayment depended on the company obtaining the larger financing it needed, which had not occurred by the time of trial and is now unlikely. Substantial competent evidence supports the finding.

Affirmed.

GUNTHER, J., concurs.

MAY, J., dissents with opinion.

MAY, J.,

dissenting.

I respectfully dissent. I would agree with the majority had the trial court actually found that the money lent constituted an investment rather than a loan. The fact remains that the trial court specifically found, and articulated in its final order, that the “$37,500 payment made by Tra-velbiz Solutions, Inc. to Click Interconnect, Inc. was a loan.” Having made that decision, I believe the trial court erred when it failed to impose a reasonable time for payment of the loan. See Sharp v. Machry, 488 So.2d 133, 135 (Fla. 2d DCA 1986) (“[WJhere a debt is due and the happening of a future event is fixed on merely as a convenient time for payment, but the future event does not happen as contemplated, the law implies a promise to pay within a reasonable time.”) (quoting 17 Am.Jur.2d Contracts § 339 (1964)). I would reverse.


author: POLEN, J.

text:
    Daniel Paul PERLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1398.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 2007.

      Daniel Paul Perley, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant, Daniel Paul Perley, appeals a judgment and sentence for one count of escape and two counts of resisting an officer without violence. Perley raises fourteen issues in this appeal, but we write to address only two of the issues in this opinion. Perley argues the trial court erred in allowing the State to present two separate theories of escape when only one count of escape was charged in the information, and in denying his motion for arrest of judgment on the conviction for escape. We agree with Perley’s arguments, reverse his escape conviction and remand for a new trial on a single count of escape.

Perley was the passenger in a car detained as part of a routine traffic stop. When Perley was asked to show his identification, he did not immediately comply. The officer became concerned about the placement of Perley’s hands and began to walk around to the passenger door. At this point, Perley jumped out of the car, allegedly shoved the officer and began running away. The officer caught Perley and a struggle ensued. Perley broke away and the officer pursued him. After the officer caught Perley and he was placed in the back of a police car, Perley began complaining of chest pains. Perley was taken to the hospital and while there, attempted to escape but was caught. Perley was charged with one count of escape, but at trial, the State informed the jury it could convict him of either instance of escape.

“It is a basic tenet of constitutional law that due process is violated when an individual is convicted of a crime not charged in the charging instrument.” Castillo v. State, 929 So.2d 1180, 1181 (Fla. 4th DCA 2006). “So-called technical deficiencies in a charging instrument are waived if the defendant does not raise them before the state rests its case.” Id. Perley waived this issue below, as no objection to the charging information was ever raised. However, even if waived below, if the defect constitutes fundamental error, it can be raised for the first time on direct appeal. Id. “A criminal information is fundamentally defective ‘only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy.’ ” Felton v. State, 919 So.2d 557, 559 (Fla. 5th DCA 2005) (quoting Smartmays v. State, 901 So.2d 278 (Fla. 5th DCA 2005)). “The overriding concern is whether the defendant had sufficient notice of the crimes for which he is being tried.” McMillan v. State, 832 So.2d 946, 948 (Fla. 5th DCA 2002).

The information was not fundamentally defective in and of itself. Count two of the information fully laid out the elements of escape, even though it did not include any factual specifics surrounding the escape which would have clarified the charge. However, while the information itself is not fundamentally defective, we find the trial court fundamentally erred in allowing the jury to deliberate on two separate instances of escape where Perley was only charged with one count of escape. The State contends that the two instances of escape merely constitute different theories of the crime, and argue that it was perfectly acceptable for it to move forward on dual theories at trial. We disagree with the State’s argument. While the presentation of dual theories of a crime is allowable, this occurs when a defendant is charged with the commission of one crime, and the State presents two scenarios or bases supporting the commission of the crime. See Mackerley v. State, 777 So.2d 969 (Fla.2001). In this case, the State charged Perley with one count of escape, but presented evidence of two entirely separate incidents, separated by both time and place. By allowing the State to tell the jury it could convict Perley for either instance of escape, the trial court compromised the jury’s ability to render a unanimous verdict.

The State’s actions make the unanimity of the jury’s verdict questionable, as some members of the jury could have determined that one incident constituted escape, while others on the jury could have determined that the other incident constituted escape, rather than agreeing unanimously that the same incident constituted escape. “As a state constitutional matter, a criminal conviction requires a unanimous verdict in Florida.” Robinson v. State, 881 So.2d 29, 30 (Fla. 1st DCA 2004). “Where a single count embraces two or more separate offenses, albeit in violation of the same statute, the jury cannot convict unless its verdict is unanimous as to at least one specific act.” Id. at 31. “Where it is reasonable and possible to distinguish between specific incidents or occurrences ... then each should be contained in a separate count of the accusatory document.” State v. Dell'Orfano, 651 So.2d 1213, 1216 (Fla. 4th DCA 1995).

While these cases deal with situations in which the charging instrument gives an “either/or” scenario, as opposed to this case in which the charging instrument simply lays out the elements of the crime, the effect on jury unanimity is the same. The State could have charged Perley with both instances of escape, but chose not to do so. The State cannot then present evidence as to both alleged escapes and inform the jury it can convict for either one, thereby making it difficult, if not impossible, to determine which incident the jury convicted Perley for, or if the jury reached an unanimous decision. Therefore, we reverse Perley’s conviction for escape, and remand.

Perley also argues that the trial court erred in denying his motion for arrest of judgment. The main thrust of the motion was whether the count of escape was properly charged. It follows from our analysis above and our reversal of Perley’s conviction for escape that the trial court erred in denying the motion for arrest of judgment on this issue.

Perley also argues that the trial court erred in instructing the jury that a traffic stop constituted a lawful execution of a legal duty, as this impermissibly removed a disputed issue from the jury’s consideration. We disagree with Perley’s argument; however, as we are remanding for a new trial, we wish to point out that Per-ley’s charge of escape actually arose from the officer’s arresting him for an alleged battery of a police officer, not from the traffic stop. Therefore, the trial court should have instructed the jury on whether an arrest incident to a battery of a police officer was a lawful execution of a duty, rather than a traffic stop. Although Per-ley was acquitted of the battery at trial, the trial court can still instruct the jury on this point.

We reverse Perley’s conviction for escape and affirm his convictions for resisting an officer without violence. We remand for a new trial on a single count of escape, for which the State must elect on which of the two incidents it is proceeding.

WARNER and GROSS, JJ., concur.