author: CORTIÑAS, Judge.

text:
    The STATE of Florida, Petitioner, v. Lionel Anthony STYLES, Respondent.
    No. 3D07-1147.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.

      Bill McCollum, Attorney General, and Lisa A. Davis, Assistant Attorney General, for petitioner.
    Thomas W. Risavy, Coral Gables, for respondent.
    Before RAMIREZ, CORTIÑAS and ROTHENBERG, JJ.
   CORTIÑAS, Judge.

The State of Florida seeks certiorari review in the present petition of the trial court’s order suppressing a photographic array by which the victim identified the Defendant. To invoke the certiorari jurisdiction of this court, a petitioner must demonstrate a departure from the essential requirements of the law which results in a material injury for which there is no adequate remedy on appeal. Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004). Here, the State has established all three of these elements. Thus, we grant the State’s petition for writ of certiorari.

We find that the trial court departed from the essential requirements of law when it suppressed the out-of-court identification based on the photographic array. Florida law is clear that there is a two-part test for the suppression of an out-of-court identification. Grant v. State, 390 So.2d 341 (Fla.1980)(adopting the two-part test established by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). First, the trial court must determine that the police employed an “unnecessarily suggestive procedure in obtaining the out-of-court identification.” Grant, 390 So.2d at 343; see also Thomas v. State, 748 So.2d 970, 981 (Fla.1999)(referring to the inquiry as whether the police employed an inherently suggestive procedure). Then, upon finding the procedure unnecessarily suggestive, the trial court must examine the totality of the circumstances to determine whether “the suggestive procedure gave rise to a substantial likelihood of irreparable mis-identification.” Thomas, 748 So.2d at 981. In examining the totality of the circumstances, the trial court must consider:

(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.

Grant, 390 So.2d at 343 (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). However, “[i]f the police did not use an unnecessarily suggestive procedure, then the court need not consider the second part of the test.” Thomas, 748 So.2d at 981.

Here, the Defendant argued that both the victim’s in-court identification and the victim’s out-of-court identification should be suppressed. The State has conceded the inadmissibility of the in-court identification and, as such, it is not at issue in the present petition. As to the out-of-court identification, the Defendant contended that the photographic array used was suggestive in that the Defendant was pictured in a yellow shirt, thereby drawing attention to his picture. Also, the Defendant claimed that the detective who conducted the photographic array advised the victim that his assailant was in fact pictured in the photographic array.

After an evidentiary hearing during which two detectives and the victim testified, the trial court engaged in a dialogue with the prosecutor regarding the admissibility of both the in-court identification and the out-of-court identification. The State conceded that the in-court identification should be suppressed but argued that the out-of-court identification is properly admissible at trial. At that point, both the prosecutor and the trial judge discussed the factors in the second prong of the suppression test described above and whether each factor weighed in favor of or against suppressing the out-of-court identification. The Defendant then argued that based on the victim’s admitted difficulty in being able to describe his assailant, the detectives conducting the photographic array needed to ensure that they did nothing to suggest an identification to the victim. The Defendant further argued that he was the only individual pictured in the photographic array wearing light colored clothes, and that the Defendant’s bright yellow shirt drew attention to his picture. The Defendant argued that this was especially true where the victim stated that the Defendant’s picture popped out.

The trial court then issued an order which first discussed the multi-factor totality of the circumstances test and summarily concluded that the photographic array was suggestive. As reasons for suppressing the out-of-court identification, the trial court explained that the victim testified that he consumed eight alcoholic drinks the night of the incident and that he purposely avoided looking at his assailants during the incident, that the testimony of the two detectives that they received a description of the assailants from the victim was inconsistent with the victim’s testimony that he gave no description, that the two detectives’ testimony was inconsistent with each other in the description they received, that the victim was presently unable to identify his assailants, and that the photographic array “was impermissibly suggestive and unnecessarily drew attention to the defendant.”

The trial court erred in this analysis. The trial court should have first determined whether the photographic array was unnecessarily suggestive, an inquiry which is wholly separate and apart from the reliability of the identification, and then, only if the array is deemed unnecessarily suggestive, should the trial court have examined the factors listed above to determine whether, given the totality of the circumstances, the suggestiveness created a likelihood of misidentification. Here, the trial court failed to determine the suggestiveness of the photographic array apart from the reliability of the identification and, therefore, departed from the essential requirements of the law.

The trial court order states that the array was “impermissibly suggestive and unnecessarily drew attention to the Defendant,” however, the evidence was insufficient to support the trial court’s conclusion that the photographic array was suggestive. Courts have previously refused to suppress photographic arrays as suggestive based on the clothing the defendant is wearing in the photograph used. The Florida Supreme Court has held that photographic arrays can consist of photographs that differ in background color, clothing, hair color, and pose, and that these differences alone do not make the arrays suggestive. Lewis v. State, 572 So.2d 908 (Fla.1991); see also Green v. State, 641 So.2d 391, 394 (Fla.1994)(finding that photographic array was not suggestive even though the defendant was pictured with a darker background than the other photographs). Additionally, in Johnson v. State, 438 So.2d 774, 777 (Fla.1983), the Florida Supreme Court upheld the use of a photographic array where the defendant was the only individual pictured with a suntan and blonde hair and the defendant’s prison uniform was a lighter blue than the other photographs. Id. The court explicitly stated “we do not find that the complained-of items made the line-up im-permissibly suggestive” and noted that the victim did not indicate that the identification was influenced by the differences between the photographs. Id.

Courts outside of Florida have also reached the same result. For example, in United States v. Carter, 410 F.3d 942 (7th Cir.2005), the Seventh Circuit considered this very issue and concluded that the fact that the defendant was wearing a white shirt did not unnecessarily draw attention to his photograph in the array. Id. at 948-49. In Carter, as here, there was no evidence that the color of the shirt influenced the victim’s identification, other than the defendant’s supposition that it might have. Id. Similarly, in Carter, there was more than one photograph depicting a white shirt, while here there was more than one photograph depicting a bright colored shirt. Id. Specifically, the Defendant was wearing a yellow shirt, another individual was wearing a blue-green shirt, and a third individual was wearing a bright blue shirt with a white undershirt. The other three individuals are wearing black shirts, which is actually what the detectives testified the victim described the Defendant as wearing at the time of the incident. The victim’s testimony indicates that he was not drawn to the Defendant’s picture because of the yellow shirt, but instead that the Defendant’s picture popped out because the victim recognized him. In fact, the detective testified that the victim was advised not to pay attention to the clothing the individuals in the photograph were wearing. During the evidentiary hearing, the victim testified that he was “unequivocal” in his identification of the Defendant.

The Defendant’s second contention, that the detectives indicated that the assailant’s photograph was contained in the array, is contradicted by the testimony of the detective and the victim. Nevertheless, this statement alone is insufficient to support classifying the procedure as suggestive and suppressing the identification. Green, 641 So.2d at 394. Even if the detective had told the victim that his assailant was pictured in the array, he did not tell him which picture to choose. Id. (finding that photographic array was not suggestive where the police told the victim “[w]he have six pictures we want you to look at. We have a suspect within these six pictures. You can take as long as you want ... and if you can’t identify him, fine”); Evans v. State, 781 So.2d 493, 493 (Fla. 3d DCA 2001)(“ ‘[although police indicated the suspect was in the photo lineup ... there is no indication that officers directed [the victim’s] attention to any particular photograph.’ ” (quoting Green, 641 So.2d at 394)).

Here, certiorari relief is appropriate in this case because the trial court’s error results in material injury that cannot be remedied on direct appeal. Although certiorari is an extraordinary writ, it is well-established that certiorari is the proper avenue by which the State may seek review of erroneous pre-trial orders in criminal cases because the State has no right to appeal in the event that the Defendant is acquitted. See State v. Pettis, 520 So.2d 250, 253-54 (Fla.1988); State v. Richards, 843 So.2d 962, 968 (Fla. 3d DCA 2003). “ ‘[A] pre-trial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review.’ ” State v. Davis, 857 So.2d 349, 350 (Fla. 2d DCA 2003)(quoting Pettis, 520 So.2d at 253). The improper suppression of an out-of-court identification, especially where an in-court identification is not possible, causes material injury to the State’s prosecution. See State v. Cecil, 533 So.2d 884, 886 (Fla. 3d DCA 1988)(reeognizing that the erroneous exclusion of a victim’s testimony materially injures the prosecution); see also Carter, 410 F.3d at 947 (recognizing eyewitness’ identification of the defendant through a photographic array is “a key piece of the evidence supporting the government’s case”). Thus, we grant the State’s petition for writ of certio-rari and quash the trial court’s April 17, 2007 order.

Certiorari granted; order quashed.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Michelle DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3124.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Michelle Davis, seeks by this appeal to have the judgment and sentence rendered by the trial court corrected to reflect accurately the terms of her negotiated plea. The State agrees, as do we.

Ms. Davis pled guilty to a charge of kidnapping in exchange for a ten-year prison sentence. The parties stipulated that she did not possess a firearm during the commission of the offense. The judgment and sentence has already been corrected a number of times. Unfortunately, however, it still reflects that Ms. Davis was convicted of kidnapping with a firearm. Additionally, the judgment incorrectly designates the kidnapping offense to which she pled as a life felony, rather than a first degree felony punishable for a term of years not exceeding life. See § 787.01(2), Fla. Stat. (2003). Although the trial court apparently ordered the judgment and sentence to be corrected, it still reads incorrectly.

Accordingly, we reverse the judgment, affirm the sentence of 10 years incarceration, and remand the matter to the trial court for correction of the judgment in accordance with the plea agreement and this opinion. As this amounts to the correction of a scrivener’s error, Ms. Davis need not be present when this is accomplished. See Firsher v. State, 834 So.2d 921 (Fla. 3d DCA), review denied, 859 So.2d 514 (Fla.2003).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SAWAYA and LAWSON, JJ., concur.


author: PER CURIAM.

text:
    Beatrice STEDING, Appellant, v. AMERICAN GENERAL FINANCE, Appellee.
    No. 5D07-326.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.

      J.C. Rich, Deland, for Appellant.
    Glenn J. Paul, of Paul & Elkind, P.A., Deland, for Appellee.
   PER CURIAM.

Beatrice Steding appeals from an order denying her motion to set aside a foreclosure sale pursuant to Florida Rule of Civil Procedure 1.540(b), relating to property she once owned in Volusia County, Florida. Because Steding has not demonstrated that the trial court abused its discretion in denying her motion, we affirm.

“Vacation of a foreclosure sale under rule 1.540(b) requires that the trial judge find ‘(1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.’ ” Cueto v. Mfrs. & Traders Trust Co., 791 So.2d 1125, 1126 (Fla. 4th DCA 2000) (quoting Mody v. Calif. Fed. Bank, 747 So.2d 1016, 1017-18 (Fla. 3d DCA 1999)). Although Steding alleges in her brief that her property sold at auction for a “grossly inadequate” price, there is no record on appeal to demonstrate that this is true. Without a record affirmatively demonstrating some basis to challenge the trial court’s discretionary ruling, we must affirm. E.g., Sroczyk v. Fritz, 220 So.2d 908 (Fla.1969); Mills v. Heenan, 382 So.2d 1317 (Fla. 5th DCA 1980).

AFFIRMED.

SAWAYA, MONACO and LAWSON, JJ., concur.

      . The parties represent that the successful bidders paid $58,300.00 for the property, an amount in excess of the final judgment. Additionally, they represent that the foreclosure was of a second mortgage, and that the winning bidder took the property subject to the existing first mortgage. There is no indication of the overall value of the property, or of the amount of the first mortgage. Therefore, even if the facts recited in the briefs were supported by the record they would fall far short of demonstrating that the auction price was "grossly or startlingly inadequate." Additionally, there is no record basis to support Steding’s allegation of an "irregularity in the sale.”


text:
    BROTHER J. INC. d/b/a A.J. Sports, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 1D06-4879.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.

      Edward T. Bauer, of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Appellant.
    Josefina Tamayo, General Counsel, and Jennifer A. Tschetter, Assistant General Counsel, Department of Business and Professional Regulation, Tallahassee, for Ap-pellee.
   PER CURIAM.

Because a license can be suspended or revoked only on the basis of the licensee’s own misconduct, and the evidence in this case failed to prove such misconduct by Brother J. Inc. d/b/a A.J. Sports, we hold the evidence in this case legally insufficient to support the conclusions of law in the appealed order. See Pic N’ Save Central Fla., Inc. v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 601 So.2d 245 (Fla. 1st DCA 1992). The order is reversed and remanded with directions to dismiss the charges.

REVERSED AND REMANDED.

WOLF, PADOVANO, and POLSTON, JJ., concur.


text:
    Verna JOHNSON, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 1D06-5435.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.

      Carla D. Franklin, Gainesville, for Appellant.
    Elizabeth R. Stevens, Assistant General Counsel, Department of Management Services, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Ms. Johnson, seeks review of a Final Order from Appellee, Florida Department of Management Services, Division of Retirement (“Division”), which determined that Ms. Johnson was not entitled to Deferred Retirement Option Program (“DROP”) or monthly retirement benefits. Appellant contends the Division erred in determining that she was an “employee” of the Caring and Sharing Learning School in concluding she was not entitled to benefits. We conclude the Division erred in making this determination, and therefore, we reverse and remand.

One seeking DROP benefits and retirement benefits must terminate all “employment” with any and all Florida Retirement System (“FRS”) employers for the next calendar month. Fla. Stat. §§ 121.021(11), (39)(a); 121.091(13)(e)(5)(d) (2004). Therefore, whether one is an “employee” of an FRS employer during the next calendar month is a dispositive issue regarding whether that person may receive those benefits. In the Recommended Order, the ALJ expressly declined to determine whether Ms. Johnson was an “employee” in determining she was entitled to benefits. The Division, deciding on a different basis than the ALJ, included in its Final Order that Ms. Johnson was an employee and not entitled to benefits. The Division argues on appeal that even if it was not found by the ALJ, whether one is an “employee” is a conclusion of law, so the Division had authority to modify or reject that conclusion of law in the Final Order.

This Court, however, already decided that whether one is an “employee” in this context is a factual finding, not a conclusion of law. In Tamburello v. State of Fla., Dep’t of Mgmt. Svcs., Div. of Retirement the Division of Retirement made a similar argument to the one alleged in this case: the “employee/independent contractor distinction” is a “mixed question of law and fact infused with policy considerations.” 657 So.2d 32, 33 (Fla. 1st DCA 1995). This Court, however, concluded “the employee/independent contractor issue [is] ... a question of fact, not a question of law or policy” because the “determination is susceptible to ordinary methods of proof and is within the authority of the trier of fact.” Id. Therefore, the Division erred in independently concluding Ms. Johnson was an employee because factual determinations are to be made by the hearing officer and only altered if they lack competent, substantial evidence to support such finding. See § 120.57(1)(l). “When an agency’s construction of a statute or rule necessitates additional fact-finding, the proper procedure is for the agency to remand the case to the hearing officer for that purpose.” Grier v. State, Agency for Health Care Admin., Bd. of Psychology, 704 So.2d 1072, 1075 (Fla. 1st DCA 1997). Accordingly, we reverse and remand this case to the Division with instructions for the ALJ to make the necessary factual finding as to whether Ms. Johnson was an “employee” with the Caring and Sharing Learning School.

REVERSED AND REMANDED WITH INSTRUCTIONS.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    Jerome GAINES, Petitioner, v. FLORIDA PAROLE COMMISSION and The Florida Department of Corrections, Respondents.
    No. 1D06-4172.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.

      Jerome Gaines, pro se, Petitioner.
    Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee; Kathleen Von Hoene, General Counsel, and Marjorie C. Holladay, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondents.
   PER CURIAM.

Jerome Gaines seeks certiorari review of an order of the circuit court denying his petition for writ of mandamus. We conclude that the circuit court did not violate any clearly established principle of law or otherwise depart from the essential requirements of law when it denied relief. Accordingly, we deny the petition for writ of certiorari on the merits as to that issue.

In 1992, Gaines entered a plea to one count of second-degree murder and was sentenced to a term of 20 years’ imprisonment. In April 2000, he was released from the custody of the Department of Corrections (“DOC”) to conditional release supervision, but following the filing of a violation report, the Florida Parole Commission issued a warrant for petitioner’s arrest. Gaines was arrested on February 17, 2001, and was detained at the Dade County Jail pending a hearing on the revocation of conditional release. A revocation hearing was conducted on February 23, 2001, at which Gaines conceded guilt, and offered testimony in mitigation of his conduct. The hearing officer recommended that conditional release be revoked, and on April 4, 2001, the Parole Commission issued its order revoking petitioner’s conditional release and directing his return to DOC custody.

On June 5, 2001, while still housed in the Dade County Jail, petitioner wrote a letter to the Parole Commission, acknowledging that he had received notice of the revocation order and questioning when he would be returned to the custody of DOC. Six days later, on June 11, 2001, officials at the Dade County Jail mistakenly released Gaines. According to Gaines, he asked jail officials why he was being released, was told that there was nothing indicating anything about “probation” in the jail’s paperwork, and he thus assumed that he was a “free man.” He does not allege, however, that he called the Parole Commission’s revocation order to the attention of jail officials. Gaines was ultimately arrested in New York on September 5, 2003, and was shortly thereafter returned to DOC to complete service of his 20-year sentence.

Upon petitioner’s return to DOC custody, an investigation and hearing were conducted by DOC for the purpose of determining petitioner’s entitlement to credit for the time following his mistaken release from custody until his arrest in New York. The hearing team determined that petitioner knew that his conditional release supervision had been revoked and that he would be returned to prison, and that after he was mistakenly released, he fled the state to avoid being returned to prison. Based on these findings, the hearing team recommended that petitioner receive no credit for time spent at liberty. Consistent with that recommendation, DOC has not granted Gaines that credit.

After unsuccessfully pursuing his administrative remedies, Gaines filed his petition for writ of mandamus in the circuit court, seeking an award of credit for the time he spent out of custody following his release. The circuit court granted petitioner’s request for leave to proceed as an indigent below, but pursuant to section 57.085, Florida Statutes, ordered that a lien be placed on petitioner’s inmate trust account for the full amount of filing fees and costs incurred in connection with the circuit court proceedings. Gaines moved to strike the lien, arguing that his claim constituted a collateral criminal proceeding and thus was exempt from the lien provisions of section 57.085, but the circuit court denied that motion. The circuit court thereafter denied mandamus relief, finding that petitioner had failed to establish a clear legal right to the credit sought, and Gaines now seeks certiorari review of the circuit court’s ruling.

The scope of “second-tier” certio-rari review by this court is limited to determining whether the circuit court afforded procedural due process and whether it observed the essential requirements of law. See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202, 1206 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). A ruling constitutes a departure from the essential requirements of law when it amounts to a “violation of a clearly established principle of law resulting in a miscarriage of justice.” See Tedder v. Fla. Parole Comm’n, 842 So.2d 1022 (Fla. 1st DCA 2003). The departure must be more than a simple legal error to justify certiorari relief. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003). Given the narrow scope of review, this court may not reach a different result simply because it is dissatisfied with the result reached by the circuit court. See Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000); Dep’t. Of Highway Safety & Motor Vehicles v. Roberts, 938 So.2d 513 (Fla. 5th DCA 2006); Sylvis v. State, 916 So.2d 915 (Fla. 5th DCA 2005).

Gaines makes no claim that he was deprived of procedural due process below, and the issue before the court is thus whether the circuit court’s ruling on the merits violated a clearly established principle of law, resulting in a miscarriage of justice. The equitable doctrine of granting credit for time erroneously spent at liberty appears to have its modern origins in the Tenth Circuit’s 1930 decision in White v. Pearlman, 42 F.2d 788 (10th Cir.1930). In Pearlman, the prisoner was prematurely and mistakenly “ejected” from the state penitentiary, despite pointing out to the warden that there must have been some mistake, and that his sentence had not expired. Affirming the district court’s granting of habeas corpus relief, the Tenth Circuit held that “where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, ... his sentence continues to run while he is at liberty.” 42 F.2d at 789. In Florida, the rule is commonly stated as follows:

When a prisoner is released or discharged from prison by mistake, he may be recommitted if his sentence would not have expired had he remained in confinement. Unless interrupted by a violation of parole or some fault of the prisoner, the sentence continues to run while the prisoner is at liberty, and the prisoner’s sentence must be credited with that time.

Carson v. State, 489 So.2d 1236, 1238 (Fla. 2d DCA 1986) (citations omitted); see also Waite v. Singletary, 632 So.2d 192 (Fla. 3d DCA 1994); State v. Mendiola, 919 So.2d 471 (Fla. 3d DCA 2005).

This court stated the principle in somewhat different terms in Sutton v. Department of Corrections, 531 So.2d 1009 (Fla. 1st DCA 1988), recognizing that “when a prisoner is released from prison by mistake, his sentence continues to run in the absence of some fault on his part.” See also Drumwright v. State, 572 So.2d 1029, 1031 (Fla. 5th DCA 1991) (citing Pearlman for the proposition that “the sentence of a prisoner who is discharged without contributing fault continues to run while he is at liberty.”). In terms of statutory law, section 944.405(1), Florida Statutes, provides in relevant part that if it is determined that an offender was released in error, DOC may issue a warrant “for retaking the offender into custody until he or she has served the remainder of the sentence or combined sentences,” but the statute is silent with respect to the question of credit for time spent at liberty.

In Pearlman, the court specifically declined to address the issue presented by this case, stating that “[a]s to whether a prisoner, who knows a mistake is being made and says nothing, is at fault, we do not now- consider.” 42 F.2d at 789. DOC is unaware of any Florida case law addressing this question, and our research has likewise disclosed no such case law. Outside of Florida, there appears to be a split in authority on this question. Some jurisdictions hold that a prisoner’s silence when he or she knows or should know that the release is in error does not constitute “fault” because a prisoner does not have an affirmative duty to aid in the execution of his or her sentence. See, e.g., U.S. v. Martinez, 837 F.2d 861 (9th Circuit 1988); Schwichtenberg v. State, 190 Ariz. 574, 951 P.2d 449 (1997). Others, however, appear to consider an inmate’s silence in the face of a knowingly erroneous release, or alternatively, an effort by the inmate to inform the releasing authority of the apparent mistake, to be relevant factors in deciding whether to grant credit for time spent at liberty. See Pugh v. State, 563 So.2d 601 (Miss.1990); Brown v. Brittain, 773 P.2d 570 (Colo.1989); cf. Commonwealth v. Blair, 699 A.2d 738 (Pa.Super.Ct.1997).

In view of the absence of controlling authority on this point, we conclude that the circuit court did not depart from any clearly established principle of law when it determined that Gaines had failed to demonstrate a clear and indisputable legal right to be granted credit for the time he spent at liberty. The record supports DOC’s finding that Gaines knew or should have known that his release was in error, and there is no indication that he either attempted to call that apparent error to the attention of Dade County Jail authorities, or contacted Parole Commission or DOC officials following his release. Given those circumstances, there would appear to be no clear provision in Florida law entitling him to credit for the time he spent at liberty, and it was thus not a departure from the essential requirements of law for the circuit court to so conclude.

However, we agree with petitioner that because his claim below constituted a “collateral criminal proceeding,” the circuit court erred when it imposed a lien on his inmate trust account to recoup filing fees and costs. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003); Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). Accordingly, we vacate the circuit court’s order imposing a lien. On remand, the circuit court is directed to ensure that any funds collected pursuant to the improper lien are reimbursed to petitioner.

Petition for writ of certiorari GRANTED in part and DENIED in part.

PADOVANO and THOMAS, JJ., concur.

BENTON, J., concurs in part; dissents in part with opinion.

BENTON, J.,

concurring in part and dissenting in part.

When jailers release a prisoner prematurely through no fault of the prisoner, the sentence continues to run and the prisoner is entitled to credit accordingly. This is a clearly established principle of Florida law. See Carson v. State, 489 So.2d 1236, 1238 (Fla. 2d DCA 1986) (“[T]he prisoner’s sentence must be credited with that time.”). On this basis, I respectfully dissent from denial of the petition for writ of certiorari seeking review of denial of the mandamus petition Jerome Gaines filed to overturn the Department of Corrections’ (DOC) denial of credit against his sentence for time he was at liberty after he was mistakenly set free. But I concur in vacating the circuit court’s order imposing a lien.

A convict is entitled to finish a sentence he begins serving without arbitrary interruption, even by a prison warden’s unauthorized grant of liberty. See State ex rel. Sitamore v. Kelly, 94 So.2d 726, 727 (Fla.1957) (“[A] ‘convict has a right to pay his debt to society by one continuous period of imprisonment.’ ”) (quoting State ex rel. Libtz v. Coleman, 149 Fla. 28, 5 So.2d 60, 61 (1941)).

When a prisoner is released or discharged from prison by mistake, he may be recommitted if his sentence would not have expired had he remained in confinement. Unless interrupted by violation of parole or some fault of the prisoner, the sentence continues to run while the prisoner is at liberty, and the prisoner’s sentence must be credited with that time.

Carson, 489 So.2d at 1238 (citations omitted). See also State v. Mendiola, 919 So.2d 471, 472 (Fla. 3d DCA 2005) (explaining that the defendant was entitled to credit for time he was released from prison through no fault of his own); Drumwright v. State, 572 So.2d 1029, 1031 (Fla. 5th DCA 1991) (“The sentence of a prisoner who is discharged without contributing fault continues to run while he is at liberty.”); Sutton v. Dep’t of Corr., 531 So.2d 1009, 1009 (Fla. 1st DCA 1988) (“When a prisoner is released from prison by mistake, his sentence continues to run in the absence of some fault on his part.”).

Sentenced to a term of twenty years’ imprisonment in 1992, Mr. Gaines was placed on conditional release supervision on April 1, 2000. The Parole Commission revoked conditional release on April 4, 2001, and ordered him returned to the custody of DOC, effective retroactively to February 17, 2001, the date on which he had been arrested and locked up in the Miami-Dade County Jail, accused of violating certain conditions imposed on his release.

Still in the Miami-Dade County Jail on June 5, 2001, Mr. Gaines wrote a letter to the Parole Commission asking when he was to be returned to the custody of DOC. Six days later, jail officials released him from custody outright, albeit in error. The petitioner did not contribute to his erroneous release. As far as can be told from the record, no warrant was issued by the DOC for his rearrest until June 9, 2003, more than two years after his mistaken release. Less than 90 days later, on September 5, 2003, he was arrested in New York.

DOC held a hearing in October of 2003, pursuant to Florida Administrative Code Rule 33-601.604, to determine whether he was entitled to credit for the time he spent at liberty. The hearing team denied him any credit because they found that he knew that his conditional release had been revoked and that he was supposed to return to prison. But there is no requirement that a mistakenly released prisoner picket outside the jail demanding to be let back in.

The decision in Drumwright, 572 So.2d at 1030, is instructive. There the defendant was sentenced to a term of thirty years’ imprisonment, but a clerical error reflected the sentence as thirty months’ imprisonment. Drumwright was released from prison six months after beginning his sentence. Cognizant that a person sentenced to thirty years’ imprisonment and released after six months would hardly be unaware that the early release was an error, the court ruled that Drumwright was entitled to credit because he did not contribute to his erroneous release. Id. at 1031. Requiring no proof of any attempt to remain in prison despite the mistaken release, the court ruled that, because the error was not his, Drumwright was entitled to credit against his sentence for the time he spent outside prison. See id. at 1030-32.

Today’s decision cannot be squared with controlling authority from our supreme court, see Libtz, 5 So.2d at 61, or with our own precedent. See Sutton, 531 So.2d at 1009. Since Jerome Gaines had “a clear legal right to the performance of a clear legal duty by a public officer, and [showed] that he has no other available legal remedies,” Plymel v. Moore, 770 So.2d 242, 246 (Fla. 1st DCA 2000), the circuit court should have granted his petition for writ of mandamus.

      . Rule 33-601.604, F.A.C., governs DOC’s “determination of credit when inmate is released in error.” The current version of the rule, reflecting amendments made in 2005, expressly provides that "[cjredit will not be applied if it is determined that the inmate was aware of the error and made no attempt to notify the releasing authority.” However, the version of the rule in effect at all times relevant to this proceeding provided only that “[c]redit will be applied if it is determined that the release involved no fault of the inmate.”

      . DOC argues that Mr. Gaines acquiesced in or consented to his release because he left custody knowing his release was a mistake. But the DOC has cited no authority for the proposition that such knowledge would change the result in any way. While the result might differ if a prisoner acquiesced in an interruption of his sentence by agreeing to parole or a conditional pardon, see, e.g., Terrell v. Wiggins, 46 So. 727, 727-29 (Fla.1908); State v. Horne, 42 So. 388, 393-94 (Fla.1906), there as no such agreement here.

      . At the time of the hearing, Rule 33-601.604 required that any inmate released in error prior to the satisfaction of a sentence be interviewed and that the facts surrounding the release be collected. See Fla. Admin. Code. R. 33-601.604(1)-(2) (2003).
      A fact finding due process hearing will be held to determine if the inmate is due credit for the time out of custody. Credit will be applied if it is determined that the release involved no fault of the inmate.

      Fla. Admin. Code R. 33-601.604(3) (2003) (emphasis supplied). By virtue of, e.g., the ex post facto clause, a later version of the rule purporting to make credit depend on whether the inmate was aware of the error and made an attempt to notify the releasing authority has no bearing. See Fla. Admin. Code R. 33-601.604(3) (2007); 31 Fla. Admin. W. 960 (March 11, 2005) (amending the rule).

      . In addition, DOC found that he fled the state, but there is no evidence that his relocation (eventually to New York) contributed to his release or even significantly extended the time he was out of prison: DOC made no attempt to rearrest him until two years later when they finally ■ issued a warrant for his arrest.


text:
    Dwight ROSS, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D06-4670.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.
    Dwight Ross, pro se, Appellant.
    Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, for Appellee.
   PER CURIAM.

Appellant Dwight Ross seeks review of a circuit court order denying his petition for writ of mandamus. He asserts on appeal that the court erred in denying his mandamus petition as untimely, and further, in authorizing the Department of Corrections to place a lien on his inmate account. We affirm the court’s order relating to the merits without further comment. However, we reverse as to the lien and remand the case to the circuit court with instructions. A proceeding which affects a prisoner’s gain-time or length of sentence, is exempt from section 57.085, Florida Statutes. See Cason v. Crosby, 892 So.2d 536, 537 (Fla. 1st DCA 2005) (“Recently, the supreme court in [Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003) ] held that cases such as the instant one, where the prisoner challenges the loss of gain-time, are exempt from section 57.085.”). Therefore, we quash the trial court’s order imposing a lien on petitioner’s inmate account, and remand for entry of an order directing the reimbursement of any funds withdrawn pursuant to the lien.

AFFIRMED in part, REVERSED in part, and REMANDED.

ALLEN, WOLF, and POLSTON, JJ., concur.


author: GRIFFIN, J.

text:
    Mark R. HURLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1691.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2007.

      Mark R. Hurley, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Mark R. Hurley [“Hurley”] appeals the denial of his rule 3.850 motion for postcon-viction relief following an evidentiary hearing in which he asserted seven grounds for his claim that his trial counsel was ineffective.

In 2001, Hurley was convicted by a jury of capital sexual battery and sentenced to life imprisonment without the possibility of parole. This Court affirmed his conviction. See Hurley v. State, 849 So.2d 319 (Fla. 5th DCA 2003). This Court also affirmed the denial of his 3.853 motion for postcon-viction DNA testing. See Hurley v. State, 871 So.2d 246 (Fla. 5th DCA 2004).

On May 10, 2004, Hurley filed the current 3.850 motion for postconviction relief in the trial court. The trial court set grounds I, III, IV and V for evidentiary hearing and summarily denied the rest. At the conclusion of the evidentiary hearing, the trial court denied Hurley the requested relief. We find no error except in the summary denial of ground VI.

In ground VI, Hurley asserted that his trial counsel was ineffective for failing to move for a mistrial or object to portions of the State’s closing argument. The trial court summarily denied this claim, ruling that claims of prosecutorial misconduct must be raised on direct appeal and are procedurally barred from consideration in a 3.850 motion for posteonviction relief.

The trial court was correct that the claims of prosecutorial misconduct in closing must be raised on direct appeal, not as a posteonviction claim. See, e.g., Lamarca v. State, 931 So.2d 838, 851 n. 8 (Fla.2006). However, Hurley’s claim that his trial counsel was ineffective for failing to object to these remarks is properly raised by posteonviction motion. See Bell v. State, — So.2d —, 32 Fla. L. Weekly S307, 2007 WL 1628143 (Fla. June 7, 2007). The trial court erred in refusing to examine it.

REVERSED and REMANDED.

ORFINGER and TORPY, JJ., concur.


text:
    Christopher A. McCLANAHAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2215.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2007.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Christopher A. McClanahan (defendant) appeals his judgments and sentences. He was found guilty of committing the crimes of resisting an officer with violence, assault on a law enforcement officer, trespass, and resisting arrest without violence. The trial court found that the defendant qualified as a prison releasee reoffender (PRR), and he was sentenced to a term of 5 years’ imprisonment on the charge of resisting an officer with violence. On the remaining three counts, all misdemeanors, he was sentenced to time served.

The defendant contends that his convictions for resisting with violence and resisting without violence violate his double jeopardy rights because they both arose from a single criminal episode. The State commendably acknowledges that the instant episode of resisting arrest cannot support the defendant’s two separate convictions. Accordingly, we vacate the defendant’s conviction for resisting arrest without violence. The defendant’s other argument on appeal is without merit and, accordingly, we affirm in all other aspects.

AFFIRMED in part, REVERSED in part, and REMANDED.

PALMER, C.J., MONACO and LAWSON, JJ., concur.


author: CANADY, Judge.

text:
    John C. HOTALING, Appellant, v. Lori A. HOTALING, Appellee.
    No. 2D06-5383.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2007.

      Lorena L. Kiely of Law Office of Lorena L. Kiely, Tampa, for Appellant.
    Ronald W. Young, Tampa, for Appellee.
   CANADY, Judge.

In this case arising from a petition for dissolution of marriage, John C. Hotaling, the husband, appeals a temporary order awarding to the wife, Lori A. Hotaling, custody of the parties’ five-year-old daughter, exclusive use and possession of the marital home, alimony, child support, and expenses pertaining to the marital home and a rental vehicle. We affirm the awards involving custody of the minor child and the exclusive use and possession of the marital home without further comment. However, for the reasons set forth below, we reverse the alimony, child support, and expense awards and strike one of the findings made by the trial court in the temporary order.

I. Background

The husband originally filed a petition for dissolution in February 2006. In March 2006, the trial court entered a temporary order which awarded the wife primary residential care of the parties’ daughter, exclusive use and possession of the marital home, $2000 per month in alimony, and $571.60 per month in child support. The husband was also ordered to pay $166 per month for child care costs and to maintain health insurance coverage for the child.

In August 2006, the parties attempted to reconcile and filed a joint dismissal of the pending dissolution proceeding. Subsequently, however, the wife filed her petition for dissolution on September 22, 2006.

The trial court held a hearing on temporary issues on October 30, 2006. The husband testified that his business earns $15,000 per month, but that after expenses, his take-home pay is $6300 per month. His October 27, 2006, financial affidavit reflects the same gross monthly income and a $5411.10 net monthly income. His listed monthly expenses totaled $6451.78, which included the mortgage, utilities, and telephone, and $416 per month for health insurance for himself, his daughter, the wife, and the wife’s other daughter from a prior relationship. The husband’s affidavit did not include an expense for child care.

The wife testified that she had to rent a vehicle because the husband had not provided a car for her to drive. As of October 30, 2006, she had spent $800 on the rental vehicle since she obtained it in early September 2006. The wife’s financial affidavit reflects no monthly income and monthly expenses totaling $6050. However, the wife’s affidavit did not contain a listed expense for child care. Further, the wife admitted at the hearing that her financial affidavit was no longer completely accurate because some of the expenses only arose when she and the husband were living together.

At the conclusion of the hearing, the trial court entered its temporary order. The wife was awarded temporary exclusive use and possession of the marital home and primary residential care of the parties’ daughter. In seeking temporary child support, the wife sought to have income imputed to the husband, and the trial court noted that, in a prior order, it had determined the husband’s financial affidavit conflicted with his testimony. However, the trial court found that “insufficient evidence has been presented at this time for the Court to find an imputation of income.” The trial court went on to find that the husband’s net monthly income was $5040.13. Nothing in the record explains the discrepancy between the husband’s reported net monthly income of $5411.10 and the trial court’s finding that the husband’s net monthly income was only $5040.13.

The husband was ordered to pay $2000 per month in alimony, $571.60 per month in child support, and $166 per month for child care. The husband was also ordered to continue to temporarily provide health insurance for the parties’ daughter and to maintain the mortgage, insurance, ad valo-rem taxes, electricity, water, basic telephone services for the marital home, and the rental lease on the wife’s rental vehicle. From that order, the husband now appeals.

II. The Temporary Payments Ordered by the Trial Court Exceed the Husband’s Ability to Pay

“[Ajppellate courts are reluctant to disturb the judgment of a trial court in respect to financial awards in marital cases,” but such an award will be reversed where it “is not supported by substantial, competent evidence.” Sokol v. Sokol, 441 So.2d 682, 684 (Fla. 2d DCA 1983).

A financial award which requires one party to pay alimony or marital obligations in excess of that party’s ability to pay constitutes an award which is not supported by substantial, competent evidence. Hence, “a trial court cannot enter a temporary [financial] award that exceeds or nearly exhausts a party’s income” because it would abuse its discretion by doing so. Bolton v. Bolton, 898 So.2d 1084, 1084 (Fla. 4th DCA 2005); see also Barclay v. Barclay, 554 So.2d 1191, 1191-92 (Fla. 2d DCA 1989) (reversing temporary alimony and child support award which required husband to pay $5778 per month in obligations, where husband only made $5666 per month); Fields v. Fields, 533 So.2d 922, 924 (Fla. 2d DCA 1988) (reversing temporary alimony award where it exceeded husband’s net weekly salary); Sokol, 441 So.2d at 685 (reversing alimony, child support, and expense award which left husband with just $328 a month after payment of his obligations because it “simply consumes too large a share of the husband’s presumed ability to earn”); Nicholson v. Nicholson, 372 So.2d 178, 179 (Fla. 2d DCA 1979) (holding alimony award was clearly excessive and constituted an abuse of discretion where it consumed 96% of the husband’s current income).

Here, the husband’s financial affidavit reflected that he earned $6300 per month and that his after-tax earnings were $5411.10 a month. The trial court expressly declined to impute any extra income to him and found that his net monthly income—after a $2000 deduction for the alimony award—was $3040.13. By implication then, the trial court found that the husband’s net monthly income was $5040.13. After deducting the amounts for alimony ($2000), child support ($571.60), and child care ($166), the husband is left with $2302.53 a month.

Yet, the husband’s obligations do not end there. Rather, the husband was also ordered to pay for (1) health insurance for the parties’ daughter at a rate of $104 a month; (2) the mortgage on the marital home (either $2373.78 a month per the husband’s financial affidavit or $1900 a month per the wife’s financial affidavit); (3) property taxes of approximately $300 per month according to the wife’s financial affidavit; (4) utilities and basic telephone service (either $350 or $485 per month depending on which financial affidavit was used); (5) insurance on the marital home for which there was no estimate provided by either party; and (6) the vehicle lease for the wife.

Since the husband would be left with $2302.53 a month after payment of alimony, child support, and child care expenses, he would have a deficit if he paid the mortgage payment as stated in his financial affidavit ($2373.78 a month). Even if the wife’s figure was used ($1900 a month), the husband would be left with only $402.53 a month. If the net monthly income shown in the husband’s affidavit is utilized, the income available to the husband is increased by $370.97. From the amount available to him after paying the alimony, child support, child care expenses, and the mortgage payment, the husband would still be required to pay for property taxes, insurance on the marital home, utilities, basic telephone service, and the cost of the vehicle lease for the wife. Based on these circumstances, we conclude that the trial court abused its discretion by ordering the husband to make payments which exhaust or virtually exhaust his income.

Additionally, the trial court abused its discretion by ordering the husband to pay $166 a month for child care expenses because there is no record evidence to support such an award.

We reject the wife’s argument that because the husband failed to object to the initial temporary awards issued in March 2006, he should be precluded from challenging the temporary awards at issue here. The wife has presented no basis for concluding that the interlocutory order in the prior proceeding has any preclusive effect in this case. We also reject the wife’s argument that the husband was required to seek rehearing of the order on appeal. The husband would have been precluded from doing so because the order on appeal was nonfinal. See Fla. Fam. Law. R.P. 12.530; Fla. R. Civ. P. 1.530; Wagner v. Bieley, Wagner & Assocs., Inc., 263 So.2d 1, 3 (Fla.1972); Preferred Pools & Spas of Naples v. Beachtree Homes, Inc., 825 So.2d 531, 532 (Fla. 2d DCA 2002). Finally, we note that the wife’s assertion that the husband previously paid all sums required is without record support, and in any event, “the previous course of conduct of the parties is not the correct standard for assessing a temporary ... award.” Fields, 533 So.2d at 924.

Accordingly, we reverse the temporary awards relating to alimony, child support, health insurance, child care, expenses for the marital home, and the wife’s rental vehicle. We remand with instructions to redetermine the husband’s financial obligations after further evidentiary proceedings. See Barclay, 554 So.2d at 1192.

III. There Is No Substantial, Competent Evidence Supporting the Trial Court’s Finding That the Husband’s Financial Affidavit Conflicted With His Testimony

Although the husband attacks four of the trial court’s factual findings, we find that three of the findings were based on credibility determinations, which were solely within the province of the trial court. See Sinclair v. Sinclair, 804 So.2d 589, 592 (Fla. 2d DCA 2002). However, the fourth finding — that the trial court had previously determined the husband’s financial affidavit conflicted with his testimony — is not supported by substantial, competent evidence.

In the order on appeal, the trial court stated that “the Court, in the order of March 16, 2006, found that the Husband’s financial affidavit conflicted with his testimony.” However, the March 16, 2006, Temporary Order of Support contains no such finding. Nor does the March 28, 2006, Temporary Order of Custody, Visitation, Exclusive Use and Possession of the Marital Home and Child Support-which was entered after the March 16, 2006, hearing was continued-contain such a finding. Thus, the trial court was mistaken that it had previously determined in the March 16, 2006, order “that the Husband’s financial affidavit conflicted with his testimony.”

More importantly, the husband testified that after business expenses, his take-home pay is approximately $6300 a month, which is the same figure listed on his financial affidavit. Consequently, there is no substantial, competent evidence to support a finding that the husband’s financial affidavit conflicted with his testimony. We therefore strike the statement by the trial court as it pertains to this issue.

Affirmed in part, reversed in part, and remanded with instructions.

STRINGER and KELLY, JJ., Concur.


author: MAY, J.

text:
    LABOR READY SOUTHEAST INC., and James P. Ribar, Appellants, v. The AUSTRALIAN WAREHOUSES CONDOMINIUM ASSOCIATION, Appellee.
    Nos. 4D06-2253, 4D06-2662.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Michael L. Duncan and Kevin M. Eck-hardt, Jacksonville, for appellant Labor Ready Southeast, Inc.
    S. Brian Bull of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, for appellant James P. Ribar.
    David A. Core and Scott C. Gherman of St. John, Core & Lemme, P.A., West Palm Beach, for appellee.
   MAY, J.

This is a consolidated appeal by the owner and tenant of a parcel of property located in Australian Warehouses. The tenant and owner appeal an injunction removing the tenant from the property. We affirm, but write to address the application of rule 1.440 of the Florida Rules of Civil Procedure in this case.

Australian Warehouses is a retail condominium governed by the Australian Warehouses Condominium Association (Association) and the terms and conditions of the Declaration (Declaration). On June 5, 2002, the owner Ribar leased his unit to the tenant Labor Ready, a temporary employment company. The owner allowed the tenant to take possession before providing notice to the Association of his intention to lease the unit, contrary to the explicit terms and conditions of the Declaration.

On August 23, 2002, the owner provided the Association with notice of the lease agreement. The Association disapproved the lease on the same day. On September 10, 2002, the owner requested a substitute lessee from the Association, pursuant to the terms of the Declaration. The Association did not provide a substitute lessee.

In November 2002, the Association filed its complaint. The owner and tenant filed their responsive pleadings to an amended complaint by the end of February 2003. On September 18, 2004, the Association filed a two-count second amended complaint, seeking an injunction requiring the owner to remove the tenant and a nuisance injunction. On July 20, 2005, the Association filed a motion for summary judgment; the owner and tenant filed cross-motions for summary judgment on January 27, 2006, and February 6, 2006, respectively.

On March 9-10, 2006, the court heard the motions for summary judgment and set the case for final hearing on Tuesday, March 14, 2006. The Association ore ten-us requested leave to amend its complaint. The trial court denied the motions for summary judgment.

On March 13, 2006, the tenant filed a motion for continuance of the final hearing date. The owner’s counsel argued to the court that by allowing the Association to amend its complaint, the case was no longer at issue and could not be set for trial, pursuant to rule 1.440. Nevertheless, the trial court granted the Association’s request to file a third amended complaint, granted the tenant’s motion for continuance, and set the final hearing for April 17, 2006. On April 17-18, 2006, the court heard the case and entered final judgment enjoining the owner and tenant.

We find no merit in the issues raised, but write to address the application of rule 1.440 of the Florida Rules of Civil Procedure to the facts of this case.

On appeal, the owner and tenant argue the trial court erred when it set the case for trial on April 17, 2006 after permitting the Association to amend its complaint. They suggest that because their answers and affirmative defenses to the newly amended complaint had not been filed, the case was not at issue, the trial date was premature, and the trial court violated subsection (c) of rule 1.440. We understand the argument, but find the position unpersuasive in its attempt to elevate form over substance given the facts of this case.

Rule 1.440 provides:

(a) An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. The party ... may waive the right to do so by filing a notice for trial at any time after the last pleading is served....
(b) Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial....
(c) If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial....

Fla. R. Civ. P. 1.440.

Here, the tenant and the owner fail to acknowledge the procedural posture of this case. The case began with the Association’s filing of its complaint in November 14, 2002, three-and-a-half years before it was ever set for trial. The case was first at issue on February 27, 2003 by which time the owner and tenant had filed their responsive pleadings. Following years of the cause being at issue, amendments, motions, and a hearing on cross-motions for summary judgment, the trial court set the final hearing for March 14, 2006.

One day prior to the final hearing, the tenant filed a motion to continue because the trial court had set the case for trial without the requisite thirty (30) days notice, pursuant to rule 1.440(c). The trial court granted the continuance and rescheduled the final hearing for yet another month, April 17, 2006. At the same time, the court allowed the Association to amend its complaint to conform the pleadings to the position it had taken during the hearing on the cross-motions for summary judgment.

Despite the technical nature of the amendment, the owner and tenant argued that the amendment prevented the cause from being at issue. The trial court responded: “[i]f you have a technical violation as to what he is going to fix and what he is moving on in the future, you have five days to object to it ... [fjailure to do that will mean that the trial will go forward.” The Association filed the third amended complaint on March 14, 2006. Both the owner and the tenant filed their responsive pleadings by March 28, 2006, twenty (20) days prior to the scheduled hearing date. Neither the owner nor the tenant filed an objection, sought additional discovery, or requested the court to reconsider or continue the April 17th final hearing date. All parties fully participated in the hearing without objection. Importantly, no one argued they were not ready for trial, but simply argued a technical violation of rule 1.440.

The owner and tenant rely on cases emphasizing the mandatory nature of rule 1.440. See, e.g., Genuine Parts Co. v. Parsons, 917 So.2d 419 (Fla. 4th DCA 2006); Bennett v. Cont’l Chems., Inc., 492 So.2d 724 (Fla. 1st DCA 1986). We do not quarrel with those cases or their holdings. However, we point out that none of them involved cases that had been pending and at issue for years before a last minute technical amendment to a complaint. And even in those cases where the case is first at issue, any error “may be waived if the aggrieved party appears at trial and raises no objection to the noncompliance.” Parrish v. Dougherty, 505 So.2d 646, 648 (Fla. 1st DCA 1987).

Here, as in Parrish, the record reflects that both the owner and tenant’s attorneys were prepared to go to trial. The parties had nearly four years to prepare. They had each moved for summary judgment. When the subject of thirty (30) days notice was raised, the trial court acquiesced and provided them a trial date beyond thirty (30) days in compliance with subsection (c) of rule 1.440. It is only because the trial court allowed the Association to amend its complaint to correct technical deficiencies that the owner and tenant can attempt to fashion a hyper-technical violation of rule 1.440. We reject that attempt.

This is not a case where the case had never been at issue. This is not a case where the parties did not have sufficient time to prepare. This is not a case where anyone was prejudiced by the technical amendment to the complaint. In situations where the parties have received actual, timely notice of the trial, they are precluded from arguing prejudice based upon a technical violation. See Abrams v. Paul, 453 So.2d 826, 829 (Fla. 1st DCA 1984).

“[R]ule 1.440 was designed as a safeguard for procedural due process.” Grossman v. Fla. Power & Light Co., 570 So.2d 992, 993 (Fla. 2d DCA 1990) (citing Parrish, 505 So.2d at 647). “[Rjeversal is not required in every case where there has not been strict compliance with rule 1.440. Rather, depending upon the circumstances, the mandatory provision of the rule may be waived.” Id. (citing Parrish, 505 So.2d at 647).

Here, the complaint was filed in 2002. The parties had adequate time to prepare for the hearing and the trial court had provided the parties with the requisite thirty (30) days notice. There was no ambush or violation of the procedural safeguards that Rule 1.440 was designed to protect. There was no error in the trial court’s handling of this trial.

Affirmed.

GUNTHER and FARMER, JJ., concur.


author: TORPY, J.

text:
    The PLUMBING SERVICE COMPANY, Appellant, v. TRAVELER’S CASUALTY & SURETY COMPANY, etc., Appellee.
    No. 5D06-1586.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.
    Thomas P. Malone of Thomas P. Malone, P.A., Orlando, for Appellant.
    Michael C. Sasso and Brian D. Solomon of Michael C. Sasso, P.A., Winter Park, for Appellee.
   TORPY, J.

Appellant was a sub-subcontractor on a public construction project for which Ap-pellee was the payment bond surety. Appellant made a claim under the payment bond, which was eventually settled, culminating in the execution of a release by Appellant in favor of Appellee and others. Thereafter, Appellant brought the instant action claiming that Appellee had acted in bad faith in its handling of Appellant’s claim. Appellee raised the release defensively. The trial court granted summary judgment, having determined that Appellant’s claim had been released. We reverse because the unambiguous language of the release does not include Appellant’s bad faith claim.

On March 14, 2000, the University of Central Florida contracted with Centex Rooney/Construct Two to construct student housing. Appellee issued a payment bond for the use and benefit of claimants on the project. Centex entered into a subcontract with Progressive Plumbing, Inc., for Progressive to perform the plumbing work on the project. Progressive then hired Appellant to perform some of the plumbing work.

After a dispute developed between Appellant and Progressive, Appellant stopped working on the project on or about February 1, 2001. Representatives of Appellant and Progressive met on February 14, 2001, and agreed upon the amount of money due Appellant for the work it had performed. When payment was not made, Appellant sued Appellee on the payment bond.

While that suit was pending, on or about August 14, 2001, Appellant filed a “Civil Remedy Notice of Insurer Violation” against Appellee with the Department of Insurance, pursuant to section 624.155(2), Florida Statutes (2001). The notice alleged, among other things, that Appellee violated sections 624.155(l)(b)l and 3 by: (1) failing to acknowledge claims and act promptly; (2) denying claims without conducting a reasonable investigation; (3) not attempting in good faith to settle claims; and (4) failing to promptly settle claims. Appellee received a copy of the civil remedy notice on August 14, 2001.

On March 5, 2003, Appellant, Appellee and Progressive (who had intervened in the lawsuit) entered into a Settlement Agreement under which the parties agreed that Appellant had a valid claim under the bond and was entitled to recover. Appel-lee agreed to pay Appellant a total of $76,566.40, representing principal, interest, court costs and attorney’s fees. Appellant, in turn, agreed to dismiss the lawsuit upon payment of all specified sums. The Settlement Agreement included the following release language:

5. Progressive Plumbing, Inc. and TRAVELER’S CASUALTY & SURETY COMPANY, as Suecessor-in-Inter-est to Reliance Insurance Company for good and valuable consideration, the sufficiency of which is hereby acknowledged and confessed, hereby release, remise, waive, discharge and satisfy all causes of action whether known or unknown, demands of every kind or character and any and all claims they have or may have whether known or unknown against THE PLUMBING SERVICE COMPANY its employees and/or officers from the beginning of the world through the date hereof. This release specifically includes any and all claims that Progressive Plumbing, Inc. and/or TRAVELER’S CASUALTY & SURETY COMPANY, as Successor-in-Interest to Reliance Insurance Company has attained by assignment from Ashco Enterprises, Inc. d/b/a Metro Staffing Services or any other claims that they may have attained by assignment or otherwise.
6. Upon the payment and clearance of all settlement funds set forth herein-above, [THE PLUMBING SERVICE COMPANY] shall release, remise, waive, discharge, and satisfy all causes of action whether known or unknown, demands of every kind or character and any [sic] all claims that Plaintiff has or may have whether known or unknown against Progressive Plumbing, Inc., Centex Rooney Construction Co., Ine./Construct Two Construction Managers, Inc., a joint venture and TRAVELER’S CASUALTY & SURETY COMPANY, as Successor-in-interest to Reliance Insurance Company their employees and/or officers from the beginning of the world through February 14, 2001 relating solely to the project that is the subject of the above-styled action that is more fully described in paragraph 5 of the Complaint herein. This release shall only be effective upon the payment and clearance of all settlement sums set forth hereinabove otherwise; it is void.

(Emphasis added).

After settling its bond payment lawsuit, Appellant filed the instant action claiming bad faith. The allegations in the lawsuit are similar to those contained in the pre-suit notice. Appellee filed a motion to dismiss the complaint, affirmative defenses, and a motion for summary judgment, all relying, at least in part, on the release contained in the Settlement Agreement. After hearing, the lower court granted the motion, finding that the release was a complete defense to all claims associated with the payment bond, including Appellant’s bad faith claim. This appeal timely followed.

Our disposition of this case turns first on our interpretation of the scope of the release. Here, the release does not specifically mention which of Appellant’s claims are extinguished. Instead, the release uses general release-like language purporting to extinguish “all” claims. However, unlike the release language used by the parties in paragraph 5, which favors Appellant, the seemingly broad release in favor of Appellee in paragraph 6 is limited in temporal scope to a period ending on February 14, 2001. Any claims that accrued after that date, therefore, are unaffected by the release. Accordingly, the second issue we must resolve is whether Appellant s bad faith claim accrued within this temporal window. Based upon the language of the statute creating the cause of action, we conclude that the claim did not accrue until after February 14, 2001.

Section 624.155, Florida Statutes (2001), authorizes persons damaged by certain actions of an “insurer,” including an insurer’s bad faith failure to settle, to file a civil suit against the insurer. As a prerequisite to filing suit, the person alleging damage must first file a notice of violation with the Department of Insurance and send a copy to the insurer. Section 624.155(2)(d), Florida Statutes (2001), allows the insurer to cure any violation within 60 days of the filing of a notice of violation. It provides: “No action shall lie if, within 60 days after filing the notice, the damages are paid or the circumstances giving rise to the violation are corrected.” Based on this language, Appellant’s bad faith claim did not accrue until October 14, 2001. Therefore, it was not extinguished by the release. See Talat Enters., Inc. v. Aetna Cas. & Sur. Co., 753 So.2d 1278, 1284 (Fla.2000) (statutory claim for bad faith never comes into existence until expiration of 60-day window).

REVERSED AND REMANDED.

LAWSON and EVANDER, JJ„ concur.

      . Appellee is the successor to the surety that posted the bond.

      . Although not the basis upon which the trial court granted summary judgment, Appellee argues that it is not an ''insurer” under the statute. It urges that the amendment to the statute in 2005, wherein the legislature expressly excluded certain sureties from the definition of "insurer,” evinces a legislative intent that the statute was never applicable to these sureties. This argument was rejected by our high court in Dadeland Depot, Inc. v. St. Paul Fire & Marine Insurance Co., 945 So.2d 1216 (Fla.2006), which held that the amendment has prospective application only.


text:
    Brian GEHRMANN, Appellant, v. CITY OF ORLANDO, Florida, Appellee.
    No. 5D06-3528.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.
    David R. Heil, of David R. Heil, P.A., Winter Park, for Appellant.
    Martha Lee Lombardy, Assistant City Attorney, Orlando, for Appellee.
   GRIFFIN, J.

Appellant, Brian Gehrmann [“Gehrm-ann”], appeals the order dismissing his personal injury case with prejudice based on fraud. We reverse.

On October 28, 2003, Gehrmann was involved in a collision with a City of Orlando Police Department patrol car. At the time of the accident, Gehrmann, a plumber, was returning from an out-of-town job. He suffered a herniated disc at the L5-S1 level as a result of the accident.

He was treated by several doctors. Gehrmann’s lawyer referred him to Dr. Oliveros on November 3, 2003. In the medical history given to Dr. Oliveros, Gehrmann disclosed previous chiropractic treatment for low back pain as the result of a workplace accident some five years earlier. Gehrmann also informed Dr. Ol-iveros that he had no reoccurring back problems until the current injury. On the patient questionnaire for Dr. Oliveros that Gehrmann completed, he checked “no” to the question asking if he had “similar complaints in the past.”

Gehrmann was later treated by Dr. Broom. At the initial visit, Gehrmann denied any previous injury to his neck or back. The history questionnaire asked, “have you had any history of neck or back pain in the past?” Gehrmann responded negatively.

Gehrmann filed the present negligence suit against Appellee, the City of Orlando [“the City”]. Through its own efforts, the City obtained some worker’s compensation billing records and learned that Gehrmann had two prior incidents in South Florida involving his back, one in 1993 and the second in 1995. Both incidents were workplace events and workers’ compensation claims were filed. In 1993, Gehrmann received three treatments with a chiropractor for a total bill of $304. In 1995, he saw an orthopedic physician one time. The bill was $76.

As a result of this accident, Gehrmann’s deposition was taken twice, once in this case and once in his worker’s compensation case. At the deposition in his workers’ compensation case, the following exchange took place between counsel for the employer and Gehrmann:

Question: Tell me about any treatment with any doctors before October of 2003?
Answer: I don’t recall any doctors, other than a checkup.
Question: Any physical injuries, which required medical attention before October 2003?
Answer: No.
Question: Any other work injuries?
Answer: No.

Similarly, the following exchange occurred between Gehrmann and the City’s attorney in the present case:

Question: Before this accident had you had any other on-the-job accidents?
Answer: Yes.
Question: Things that you filed as a workers’ compensation claim, in other words?
Answer: No.
Question: Nothing else that was actually filed as a comp claim?
Answer: Yes.
Question: But you did have some accidents?
Answer: Yes.
Question: Tell me about the one you had just before this one. We’ll sort of work our way back.
Answer: That was quite a few years ago, maybe 15 years ago.
Question: What happened?
Answer: I had a torch blow up inside a bathtub.
Question: What kind of injuries did you get?
Answer: Burns.
Question: Prior to that accident did you have any other workers’ comp — or work-related accidents, rather?
Answer: No. Other than typical stuff, you know, a little cut here, a little bang, bruise.
Question: Did you have any back problems prior to this accident?
Answer No.
Question: You never hurt your back playing sports at all?
Answer: No.

Also, as part of the discovery process, an independent medical exam was performed on Gehrmann by Dr. Murrah. Gehrmann again denied any prior history of treatment for a back injury, but he acknowledged having occasional back pain prior to the accident. Dr. Murrah noted: “From my review of the radiographic studies, and by the patient’s own account, there were some preexisting back problems which were present at the time of his motor vehicle accident on 10/28/03. He acknowledges intermittent pain although he never sought medical treatment.”

After finishing its discovery, the City filed a motion to dismiss with prejudice for fraud. The City contended that Gehrm-ann had repeatedly failed to disclose the existence of the 1993 and 1995 accidents, the nature of the injuries and the medical treatment sought. The City also pointed out that no record had been found of the chiropractic care “five years earlier” that he had mentioned to Dr. Oliveros. In response, Gehrmann filed an affidavit addressing the incidents in 1993 and 1995. He claimed that he had forgotten those incidents during his deposition because they were minor events and they merely involved being “checked out” by a doctor and did not involve any continuing problems. After the parties presented arguments, the trial court granted the City’s motion and this appeal followed.

“[B]ecause dismissal with prejudice for fraud on the court is such an extreme remedy; the fraud must be demonstrated by clear and convincing evidence.” Arzuman v. Saud, 843 So.2d 950, 952 (Fla. 4th DCA 2003). Thus, a party moving to dismiss for fraud on the court must satisfy a stringent standard. Dismissal for fraud is appropriate where “ ‘it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.’ ” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998); see also Amato v. Intindola, 854 So.2d 812, 814-15 (Fla. 4th DCA 2003) (quoting and applying Cox); Hogan v. Dollar Rent A Car Sys., Inc., 783 So.2d 1211, 1212 (Fla. 4th DCA 2001) (dismissal for fraud appropriate where misrepresentations were made “to intentionally thwart defendants from conducting discovery”) (citation omitted); Rios v. Moore, 902 So.2d 181, 183 (Fla. 3d DCA 2005) (dismissal for fraud on the court should be “ ‘cautiously and sparingly exercised and only upon the most blatant showing of fraud, pretense, collusion or other similar wrongdoing’ ”) (citation omitted). The clear and convincing evidence necessary to succeed on a motion to dismiss for fraud on the court must demonstrate that the plaintiff “committed knowing deception intended to prevent the defense from discovery essential to defending the claim.” Amato, 854 So.2d at 816.

Cox and Ruiz v. City of Orlando, 859 So.2d 574 (Fla. 5th DCA 2003), are the leading cases in this district governing the dismissal of civil lawsuits based on fraud. In Cox, we tried to define a narrow remedy:

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994).

Id. at 46. In Ruiz, we acknowledged that Cox had not been applied as narrowly or cautiously as this Court intended. Ruiz, 859 So.2d at 576. We also said:

Except in the most extreme cases, where it appears that the process of trial has itself been subverted, factual inconsistencies, even false statements are well managed through the use of impeachment and traditional discovery sanctions.

Id.

The circuit court decided to dismiss Gehrmann’s complaint with prejudice because of discrepancies between his discovery responses and the evidence developed by the City in its investigation of his claim. No witnesses testified at the hearing on the motion to dismiss. In our view, there is simply no factual basis to conclude that Gehrmann gave inaccurate answers with the intent to defraud and no legal basis to consider that the inaccuracies in his testimony rise to the level that would support dismissal. The decision to deprive a party of his right to have his case determined by a jury should be made only on a clear showing of egregious conduct. This is a case where allegations of inconsistency, non-disclosure, even falseness, can be brought to the jury’s attention through cross-examination or impeachment.

REVERSED and REMANDED.

TORPY, J., and GRAHAM, R. S., Associate Judge, concur.


text:
    Marcelo LUQUE and Aracelly Luque, Appellant, v. ALE HOUSE MANAGEMENT, INC., etc., Appellee.
    No. 5D06-2918.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.

      Carlos R. Diez-Arguelles, of Martinez, Manglardi, Diez-Arguelles & Tejedor, Orlando, for Appellant.
    Lamar D. Oxford, of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Ap-pellee.
   GRIFFIN, J.

Marcelo Luque [“Luque”] and Aracelly Luque [“Mrs. Luque”] appeal the trial court’s order granting summary final judgment in favor of Ale House Management Inc., etc. [“Ale House”] and its order denying Luques’ Motion for Rehearing.

Ale House operates the Orlando Ale House, where Luque was a regular customer. On January 31, 2003, Luque went to the Orlando Ale House after work. While there, he was served and drank several beers. Around 11 p.m., Luque left. On his way home, a car suddenly came out of a subdivision and cut in front of him. Luque swerved to avoid it. An accident resulted and Luque was severely injured. Luque was taken to the hospital, and routine tests showed that he had a blood alcohol content of 0.135.

That same year, the Luques filed suit against Universal Underwriters, GEICO, and others relating to the injuries he suffered in the accident. As part of the discovery in that suit, the Luques were deposed in March of 2004. Later, on December 12, 2005, the Luques filed this separate action against Ale House. The Luques’ suit against Ale House claims that Ale House breached its duty to Lu-que under section 768.125, Florida Statutes, when it knowingly sold him a substantial amount of alcohol on January 31, 2003.

On April 11, 2006, Ale House filed a motion for summary judgment. In its written motion, Ale House asserted that the sole cause of Luque’s accident was the unforeseeable negligence of another driver; that section 768.36, Florida Statutes relieved it of any liability; and that the Luques were attempting to perpetrate a fraud on the court. It reiterated these points at the hearing. Additionally, Defendant argued at the hearing that section 768.125 was enacted for the protection of the public, not the drunkard, and, thus, the drunkard could not bring an action under the statute.

After a hearing on the motion, the trial court entered the summary judgment based on the conclusion that section 768.125 did not create a cause of action. The Luques filed a motion for rehearing of the trial court’s summary judgment order. They argued both the Florida Supreme Court and this Court recognize that a cause of action exists based on the facts of this case. Additionally, they objected to the trial court’s decision to rest its holding on a ground not argued by the Ale House. The trial court denied the Luques’ motion for rehearing.

The first count of the Luques’ complaint against Ale House was titled “VIOLATION OF FLORIDA STATUTE § 768.125 BY [DEFENDANT].” In support of this count, the Luques alleged that Ale House’s owners, managers, and employees knew that Luque was habitually addicted to the use of alcohol. They asserted that, by knowingly serving Luque a substantial amount of alcohol on January 31, 2003, Ale House breached its duty under section 768.125, Florida Statutes to not sell or furnish alcohol to persons known to be habitually addicted to that substance.

Ale House did not argue, either in its written motion or at the hearing below, that section 768.125 failed to provide any cause of action against those serving alcohol. Nonetheless, in granting Ale House’s motion for summary judgment, the trial court reasoned that “the sole basis alleged for [Ale House’s] liability in this case is section 768.125. As section 768.125 does not provide a cause of action, Mr. Luque’s claim against [Ale House] fails. Because Mr. Luque’s claim fails, so too does his wife’s claim for loss of consortium.”

Originally, under Florida common law, “a commercial vendor of alcoholic beverages was not liable to either the purchaser or to third persons injured as a result of the consumption of those beverages.” Publix Supermarkets v. Austin, 658 So.2d 1064, 1066 (Fla. 5th DCA 1995). The Florida Supreme Court modified this rule by its decision in Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963). Davis held that “violation of the statute prohibiting the sale of alcohol to minors (see section 562.11) could give rise to civil liability” through a negligence per se theory. Publix Supermarkets, 658 So.2d at 1066; see also Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042, 1045 (Fla.1991). “As a judicial trend developed extending liability towards vendors of alcoholic beverages, the Florida Legislature intervened in 1980 and enacted section 562.51,” which is now codified in section 768.125. Publix Supermarkets, 658 So.2d at 1066. The statute limited the expanded liability of those who provide alcohol. Id. at 1046-1047.

Section 768.125, Florida Statutes (2003), provides:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

Thus, section 768.125 “effectively codified the original common law rule absolving vendors from liability for sales but provided exceptions for sales to those who were not of a lawful drinking age or to a person habitually addicted to alcoholic beverage use.” Ellis, 586 So.2d at 1046.

In Ellis, Florida’s supreme court outlined the legal developments in liability just discussed, and then went on to discuss what causes of action remained against the seller of alcohol under section 768.125. The Ellis court said:

In summary, the above case law has established that, although limited by the provisions of section 768.125, there is a cause of action against a vendor for the negligent sale of alcoholic beverages to a minor that results in the injury to or death of the minor or a third party. While we have not expressly addressed a case involving a habitual drunkard, we find that the same law applies because:
(1) it is an express exception to the statute limiting a vendor’s liability, and (2) it is also a sale of alcohol to a class of persons who lack the ability to make a responsible decision in the consumption of alcohol.

Id. at 1047 (emphasis added).

The problem with the trial court’s reasoning is that it ignores the fact that section 768.125 presupposes the existence of a cause of action against sellers of alcohol. In “limiting” or modifying the underlying action, section 768.125 now delineates the elements that a party must establish in bringing a civil action against sellers of alcohol. It was error to conclude that because the section does not create a cause of action, it does not define one either. The trial court erred when it granted summary judgment on the ground that an action brought under section 768.125 cannot state a cause of action.

Ale House urges that we should affirm the judgment in their favor even if we conclude that the trial court’s basis for the judgment was erroneous. Ale House urges that one or more of the several grounds that were asserted in the motion for summary judgment and argued at the hearing, but not relied on by the trial court, would support the judgment in its favor. Of these, only one appears to have potential. Ale House contends that Lu-que’s intoxication was not a cause-in-fact of the accident that injured him because the accident was entirely caused by the independent negligence of a third party, and that drunk or sober, nothing Luque did or could have done would have altered the outcome. For this proposition, Ale House relies on the deposition testimony of Lu-que himself.

It may well be that lack of causation will prove to be the basis for a judgment in favor of Ale House in this case, either by summary disposition or after trial, but the record is not well enough developed for this purpose. Discovery is not complete and the testimony of Luque is not necessarily dispositive of the section 768.125 claim. There is evidence in the record that Luque was in fact significantly impaired by alcohol at the time of the accident. If the other elements of such a claim under section 718.125 are established and extrinsic evidence shows that intoxication did, in fact, cause or contribute to the accident, the fact that the drunkard himself denied that his intoxication contributed to the accident is not determinative of the claim.

REVERSED and REMANDED.

PLEUS and LAWSON, JJ., concur.

      . In his Complaint, the Luques allege that, as a result of the accident, Luque suffered paralysis from the waist down, three broken fingers, an amputated finger, and a fractured shoulder.

      . In his March 25, 2004 deposition, Mr. Lu-que gave the following testimony:
      Q. All right. And it’s your testimony that at the time you were driving after leaving the Ale House, you did not — you were not impaired or did not feel like your faculties were affected at all by the alcohol?
      A. That’s correct.
      Further, in his March 8, 2006 deposition, he said:
      Q. Okay. Was your — were you affected in any way by the alcohol you had consumed?
      A. In the accident?
      Q. Yes, sir.
      A. I don’t think so. I believe what I did'— you know, I — saw that many, many times, and I have six months in the hospital to see that — that sequence every night, and I don’t think so. I believe what I did the best to avoid the crash.
      Further, Mr. Luque said the following about his accident in his March of 2006 deposition:
      Q. Couldn’t have avoided it?
      A. I don’t think so.
      Q. Whether you’d anything to drink or not, you could not have avoided it?
      A. I don't think so. I would say it was — it was for nowhere.
      Q. It was unavoidable.
      A. It was pretty much unavoidable.
      Q. Regardless whether you had anything to drink or not?
      A. Well, I say I don’t — it doesn’t really have — like I say, I don't believe it would have a lot of to do.
      Q. Okay.
      A. But, you know, a car just get in front of me. They — they—they just come right off of a subdivision without paying attention.


text:
    Scottie B. ASH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1897.
    District Court of Appeal of Florida, First District.
    Aug. 27, 2007.
    Scottie B. Ash, pro se, Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the October 18, 2005, judgment and sentence in Bay County Circuit Court case number 2002-CF-3574-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

DAVIS, POLSTON, and ROBERTS, JJ., concur.


text:
    Tywan L. HENRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1978.
    District Court of Appeal of Florida, First District.
    Aug. 27, 2007.
    Tywan L. Henry, pro se, Petitioner.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the January 31, 2007, order denying motion for postconviction relief in Columbia County Circuit Court case number 2005-179-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

DAVIS, POLSTON, and ROBERTS, JJ., concur.


text:
    Louis M. GRIECO, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2092.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    Louis M. Grieco, Ocala, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The appellant filed an appeal seeking relief which cannot be appropriately granted by this court. First, we note that an order denying a rule 3.800(c) motion to mitigate sentence is not appealable. See Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001). Next, as to the gain time issue, the appellant failed to show that he exhausted his administrative remedies. The proper procedure for seeking this relief is to file a petition for writ of mandamus in the circuit court to review final action by the DOC relating to gain time claims. See Sheley v. Fla. Parole Comm’n, 720 So.2d 216 (Fla.1998); Gaynor v. State, 831 So.2d 1246 (Fla. 5th DCA 2002) (gain time claim cannot be raised in 3.800(a) motion). Accordingly, we dismiss the appeal.

DISMISSED.

PLEUS, MONACO and TORPY, JJ., concur.


author: ORFINGER, J.

text:
    Charlie McCALL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-2247.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    Charlie McCall, Lowell, pro se.
    No Appearance for Respondent.
   ORFINGER, J.

Charles M. McCall petitions for a writ of mandamus to compel the circuit court to award him additional jail credit. McCall filed a previous motion seeking additional jail credit of 72 days pursuant to Florida Rule of Criminal Procedure 3.800(a) for the time that he was held in the State of Washington awaiting extradition to Florida. The circuit court denied his rule 3.800(a) motion. Now, in his mandamus petition, McCall raises the same jail credit issue, and asserts that because the trial court denied the requested credit, he will be imprisoned 72 days past the expiration of his lawful sentence.

Mandamus lies only to compel a lower tribunal to perform a ministerial duty or to exercise its discretion on a pending matter, not to instruct it on how to rule on an issue. See Kloski v. Matecumbe Marina, Inc., 598 So.2d 275 (Fla. 3d DCA 1992). Before this Court can issue a writ of mandamus, a petitioner must show a clear legal right to the relief requested and an indisputable legal duty on the part of the respondent to act. See Bernard v. State, 911 So.2d 1259 (Fla. 5th DCA 2005). Out-of-state jail credit is not mandated under section 921.161(1), Florida Statutes (2006). A sentencing court, in its discretion, may award out-of-state credit if a defendant is held in a foreign jurisdiction solely on a Florida warrant. Consequently, the trial court did not have a ministerial duty to award out-of-state jail credit. See generally Garnett v. State, 957 So.2d 32 (Fla. 2d DCA 2007) (stating that out-of-state jail credit for time spent on fugitive warrant is not credit defendant is entitled to as a matter of law, but instead is an issue that is within inherent discretion of sentencing court).

DENIED.

PALMER, C.J., and TORPY, J., concur.