text:
    James D. STONE, Appellant, v. PALMS WEST HOSPITAL, Gerald T. Turgeon, D.O., Gerald T. Turgeon, D.O., P.A., Shakhar Sharma, M.D., Rahul A. Patel, M.D., and Palm Beach Primary Care Associates, Inc., Appellees.
    No. 4D05-4042.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.

      Rebecca Mercier-Vargas and Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Joseph Johnson of Babbitt, Johnson, Osborne & LeC-lainche, P.A., West Palm Beach, for appellant.
    Arthur J. England, Jr. and Edward G. Guedes of Greenberg Traurig, P.A., Miami, and Bruce M. Ramsey and Kera E. Hagan of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., West Palm Beach, for appellee Palms West Hospital.
    Gail Leverett Parenti of Parenti & Par-enti, P.A., Miami, and William A. Bell, General Counsel, Florida Hospital Association, Tallahassee, for Amicus Curiae Florida Hospital Association.
   PER CURIAM.

James Stone sued Gerald T. Turgeon, D.O., Gerald T. Turgeon, D.O., P.A., Shak-har Sharma, M.D., Rahul A. Patel, M.D., Palm Beach Primary Care Associates, Inc., and Palms West Hospital (among others not relevant to this appeal) for medical malpractice. The trial court entered final summary judgment in favor of Palms West, concluding that there was no jury question regarding the apparent agency of the physicians who treated Stone at the hospital. We reverse.

Stone sued Palms West based on, inter alia, a theory of apparent agency based on the negligence of on-call physicians Tur-geon, Sharma, and Patel.

Palms West filed a motion for partial summary judgment asserting that it was not liable for the acts of its on-call physicians, because a hospital is not liable for the acts of physicians merely because they have staff privileges. Palms West additionally asserted that there was no evidence, whether statements or conduct, demonstrating that it represented to Stone that Turgeon, Sharma, and Patel were its agents.

Palms West attached several documents in support of its partial summary judgment motion. Among them was an affidavit from Palms West’s Director of Physician Relations, Glennda Williams, setting forth the relationship between the hospital and the physicians from Palms West’s point of view:

3. The above-referenced physicians were not agents or employees of Palms West Hospital. These physicians were engaged in the private practice of their medical specialties, and were based in their private offices, but they did have medical staff privileges at Palms West Hospital. Also, from time to time, they would have an obligation to respond to emergency department call on a rotational basis.
4. None of the above-referenced physicians had offices at the Hospital and they were not Hospital-based physicians. None of these physicians, nor anyone associated with Palms West Hospital, have the authority to represent to patients that these physicians were agents or employees of the Hospital.
5. Palms West Hospital did not compensate these physicians for professional services, and did not bill patients for these physicians’ services.
6. Patients, including those admitted through the emergency department, were provided with, and were required to sign, a document entitled “Conditions
of Admission and Authorization for Medical Treatment,” which advised patients that the physicians providing services to them were independent contractors and not employees or agents of the Hospital. The medical chart relating to James D. Stone’s admission of May 17, 2000 indicates that he signed such a document, a copy of which is attached hereto as Exhibit “A.”
7.Palms West Hospital had no contractual relationship with these above-referenced physicians or their professional associations.

Also filed with the trial court were the depositions of many of the individuals involved in Stone’s care and treatment at Palms West. In his deposition, Stone, who is legally blind, testified that after being seen by his doctor for numbness in his extremities, he became incontinent and his doctor instructed him to go to the nearest hospital, which happened to be Palms West.

In his deposition, Stone indicated the following regarding his interaction with Palms West:

PLAINTIFF: When you advised the hospital personnel that your doctors were Dr. Phillips and Dr. Stone, were you informed that those doctors in essence did not belong to this hospital, Palms West Hospital?
STONE: Yeah.
PLAINTIFF: Did the personnel at Palms West Hospital tell you that they had their own doctors who could come in and treat you?
STONE: Yes, I did.
PLAINTIFF: And the doctors that they called in to see you that you were told were the hospital’s own doctors, were they Dr. Sharma and Dr. Turgeon?
STONE: Yes.
PLAINTIFF: Did you have any say-so as to the assignment by the hospital of Dr. Sharma and Dr. [Turgeon].
STONE: When I went in, that was the ones that I got.
PLAINTIFF: So what the hospital told you was that your doctors are not allowed to come in and see you at Palms West Hospital but instead they had their own doctors who they would call in to see you and treat you; is that correct?
STONE: Yes.
Additionally, Stone’s mother testified regarding her son’s interaction with Palms West during her deposition:
DEFENDANT: Did you talk to the nursing staff there?
STONE: Yeah, when I first got in, I told them that Dr. Stone told me to bring him to the emergency room, and she said that Dr. Stone did not come to that hospital, and she said that she would have to give him their doctor, and then they took him in the back and I went in to triage, I think is what they call it when they take you to another room and they ask you questions, and I guess — I think that’s the nurse that talks to you there.

Stone also filed a reply and memorandum of law in opposition to Palms West’s motion for partial summary judgment. He asserted that summary judgment was inappropriate because there were genuine issues of material fact regarding whether Turgeon, Sharma, and Patel were apparent agents of Palms West. Stone also filed an affidavit in opposition to summary judgment. The affidavit contained the following attestations:

4. Upon my arrival I informed the hospital personnel that my neurologist was Dr. Reed Stone. They informed that Dr. Stone did not belong to Palms West but that Palms West had their own doctors who would treat me. Palms West provided Drs. Turgeon, Patel and Shar-ma to treat me who I believed were employed by Palms West. Based upon these representations I relied upon Palms West to provide me with doctors who were competent and capable of treating me, including my neurological needs.
5. Upon being admitted to Palms West Hospital, someone in the hospital flipped the page over and placed the signature page of the Conditions of Admission and Authorization for Medical Treatment in front of me and instructed me to sign it. I was never given the opportunity to read the paper I was asked to sign nor was its content explained to me.
6. I believed that the doctors who provided care for me, including Dr. Tur-geon, Dr. Sharma and Dr. Patel, were working for the hospital. I thought their offices were located in the hospital.
7. I did not have the opportunity to choose which doctor was assigned to treat me during my stay at Palms West Hospital. I relied on the hospital to not only provide me with medical care, but also to select appropriate physicians to provide me such care.

The trial court held a hearing on Palms West’s motion for partial summary judgment, at which it considered the affidavits and depositions provided by the parties. Thereafter, the trial court entered an Order Granting Partial Summary Judgment in Favor of Defendant, Palms West Hospital. The trial court made the following findings and reached the following conclusions relevant to this appeal:

The facts presented to this Court were that these physicians have medical staff privileges at Palms West Hospital, subject to the medical staff by-laws, but they were engaged in private practice of their medical specialties based in their private offices and were not hospital-based physicians and did not have any contractual relationship with the hospital.
It is well-established that a hospital is not liable for the actions of non-employed physicians merely because they have staff privileges to treat the patient within the facility. Insinga v. LaBella, 543 So.2d 209 (Fla.1989); Liberatore v. NME Hospitals, Inc., 711 So.2d 1364 (Fla. 4th DCA 1998); Cedars Medical Center, Inc. v. Ravelo, 738 So.2d 362 (Fla. 3d DCA 1999); Reed v. Good Samaritan Hospital Association, Inc., 453 So.2d 229 (Fla. 4th DCA 1984). An exception to this rule applies to hospital-based physicians, who are under contract with the hospital to provide professional services, i.e. emergency department, anesthesiology, radiology and pathology physicians, when the hospital, by words or conduct causes or allows a patient to believe that a physician is an agent of and had authority to act for the hospital and the patient justifiably relied upon that belief in accepting treatment from that physician and in such a case the hospital may be liable for the physician’s negligence under the theory of apparent agency. See: Irving v. Doctors Hospital of Lake Worth, 415 So.2d 55, 55-59 (Fla. 4th DCA 1982), rev. denied, 422 So.2d 842 (Fla.1982) and Cuker v. Hillsborough County Hospital Authority, 605 So.2d 998 (Fla. 2d DCA 1992).
In Irving, Cuker and other cases in which Florida appellate courts have held that there was an issue of fact on the agency vis-á-vis independent contractor issues the courts were dealing with hospital-based physicians who had a contract with the hospital to provide medical services to patients at the hospital. In distinguishing the law applicable to hospital-based/contract physicians and private physicians who have privileges at the hospital, the court in Reed stated as follows:
The Irving case, supra, on its facts, makes it abundantly clear that it was concerned with the negligence of the emergency room physician who was paid a salary by the hospital and possessed of no private patients. This same vital distinction is constant throughout the cases cited by appellant. In the instant case, the child’s estate presented no evidence from which it could be concluded that the physician with staff privileges was either an agent or an employee of the hospital. Thus, there only remains the question of vicarious liability on the part of the hospital for the negligence of an independent contractor.
We, therefore, hold, in accord with the Supreme Court case of Wilson v. Lee Memorial Hospital, 65 So.2d 40 (Fla.1953), and our own Irving case, supra, that under the facts presented here, the hospital is not vicariously liable for the tortious acts of an independent contractor such as a physician in private practice to whom it has merely granted staff privileges.
Id.
With regard to these agency issues, the Court also accepts as uncontroverted facts that, for the reasons stated in the affidavit of the Plaintiff, Mr. Stone believed that these physicians were working for the hospital. Even if the apparent agency exception was applicable to the physicians involved in this case, Florida courts have held that apparent authority does not arise from either the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent. Instead ‘apparent authority’ exists only where the principal creates the appearance of an agency relationship. Izquierdo v. Hialeah Hospital, Inc., 709 So.2d 187 (Fla. 3d DCA 1998). See also Lensa Corporation v. Poinciana Gardens Association, Inc., 765 So.2d 296 (Fla. 4th DCA 2000); Taco Bell of California v. Zappone, 324 So.2d [121] (Fla. 2d DCA 1975).
* * *
Accordingly, this Court finds no material issue of disputed fact requiring resolution by the jury ...

Following a motion for rehearing, the trial court entered final summary judgment in favor of Palms West.

The standard of review applicable to trial court rulings on motions for summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Aberdeen, 760 So.2d at 130. “All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.” Reeves, 821 So.2d at 321.

Generally, a hospital may not be held liable for the negligence of independent contractor physicians to whom it grants staff privileges. See Insinga v. La-Bella, 543 So.2d 209, 212, 214 (Fla.1989); Public Health Trust of Dade County v. Valcin, 507 So.2d 596, 601 (Fla.1987). However, “[u]nder certain circumstances ... a hospital may be held vicariously liable for the acts of physicians, even if they are independent contractors, if these physicians act with the apparent authority of the hospital.” Roessler v. Novak, 858 So.2d 1158, 1162 (Fla. 2d DCA 2003). However,

It is well-settled that a hospital’s granting of staff privileges to a particular health care provider, without more, is insufficient as a matter of law to create a jury question on whether the hospital impliedly represented to the public that the health care provider was the hospital’s apparent agent.

Jones v. Tallahassee Mem’l Reg'l Healthcare, Inc., 923 So.2d 1245, 1247 (Fla. 1st DCA 2006)(internal citations omitted).

As for apparent agency,

An apparent agency exists only if all three of the following elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation. Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla.1995). Apparent authority does not arise from the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent himself. Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998). Rather, apparent authority exists only where the principal creates the appearance of an agency relationship. Id.

Roessler, 858 So.2d at 1161-1162. Furthermore, “[t]he reliance of a third party-on the apparent authority of a principal’s agent must be reasonable and rest in the actions of or appearances created by the principal.” Lensa Corp. v. Poinciana Gardens Ass’n, 765 So,2d 296, 298 (Fla. 4th DCA 2000). In other words:

In those cases where it can be shown that a hospital, by its actions, has held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be liable for the physician’s negligence.

Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 59 (Fla. 4th DCA 1982). Overall, “[t]he existence of an agency relationship is normally one for the trier of fact to decide.” Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003); see also Roessler, 858 So.2d at 1162 (“The question of a physician’s apparent authority to act for a hospital is often a question of fact for the jury.”).

The parties relied primarily upon six cases in presenting their arguments on appeal either supporting or refuting the presence of a jury question concerning apparent authority under the circumstances of this case. Although all six cases are instructive on the issue confronted by this Court, we find one to be particularly useful in resolving the issue of apparent agency in this case, Jones v. Tallahassee Memorial Regional Healthcare, Inc., 923 So.2d 1245 (Fla. 1st DCA 2006), rev. dismissed, 935 So.2d 500 (Fla.2006).

In Jones, the physician was an employee of an anesthesiology group that served as a pool of staff physicians at the hospital, the physician was required to abide by medical staff rules and regulations, the physician was required to be on call, the physician was required to wear a name badge bearing the hospital’s name, and the physician was required to identify himself to patients as a member of the hospital’s medical staff. Id. at 1246, 1247. The appellate court found a jury question regarding apparent agency, and wrote:

Even if all of this evidence arose only as a result of TMH granting Giralt and Johns staff privileges at its hospital, and was therefore construed as being insufficient as a matter of law to raise any issue of material fact as to whether the two men were TMH’s apparent agents, the ambiguity in this record as to whether TMH or Mosley chose Giralt as the anesthesiologist for Mosley’s surgical procedure added a layer of factual uncertainty relative to the apparent agency claim which precluded entry of summary judgment on that claim as a matter of law.

Id. at 1247-1248.

Based on Jones, the hospital liability and apparent agency principles discussed in cases cited in this opinion, and the facts of this case, we conclude that Stone presented a jury question regarding apparent agency. Elements (b) and (c) of an apparent agency claim as set forth in Roessler are satisfied because “[t]he fact of seeking medical treatment in a hospital emergency room and receiving treatment from a physician working there is sufficient” to satisfy these elements of reliance and detriment based on Orlando Regional Medical Center v. Chmielewski, 573 So.2d 876, 879-880 (Fla. 5th DCA 1990), abrogated on other grounds, Boulis v. Fla. Dep’t of Transp., 733 So.2d 959 (Fla.1999). As such, this case hinges on element (a) of an apparent agency claim, whether Palms West purportedly made a representation indicative of an apparent agency relationship so as to suggest a jury question.

We turn to a consideration of element (a) of Stone’s apparent agency claim. Although Stone testified in his deposition regarding some subjective beliefs about the employment statuses of his treating physicians, including that he thought their offices were in the hospital, the alleged representations made by hospital personnel are not afflicted by this shortcoming because their meaning is objectively plain so that those representations could support a jury finding of apparent agency. Because the alleged basis of apparent agency in this case is objective rather than subjective, we continue the analysis of Stone’s apparent agency theory. The plaintiff contends that this is not a case about a hospital merely granting staff privileges to physicians. Rather, both Stone and his mother testified that personnel representing Palms West told them that because his doctors did not have staff privileges at the hospital he would be provided with the hospital’s doctors. Allegedly, the hospital subsequently selected those doctors, without any input or choice exercised by Stone, and provided Stone with medical care and treatment through those doctors. Such alleged conduct by a hospital was found to be a factor supporting a jury question in both Jones and Cuker. As such, this is a case about staff privileges plus a factual uncertainty regarding whether an affirmative representation and conduct by the principal imbued the doctors that treated Stone with apparent authority. Therefore, the evidence presented on summary judgment points to a jury question regarding apparent agency.

In sum, we conclude that the trial court erred by entering final summary judgment where the parties presented conflicting evidence giving rise to a jury question regarding apparent agency. Consequently, this case is reversed and remanded for further proceedings consistent with this opinion.

Reversed and Remanded.

GUNTHER, FARMER, JJ., and KRATHEN, DAVID H., Associate Judge, concur.

      . Palms West did not rely on the Conditions of Admission and Authorization for Medical Treatment form in support of its motion for summary judgment. As such, the trial court only considered Stone's affidavit to the extent that it addresses other issues and did not base its decision on summary judgment on the consent form.

      . Jones v. Tallahassee Mem'l Reg’l Healthcare, Inc., 923 So.2d 1245 (Fla. 1st DCA 2006); Roessler v. Novak, 858 So.2d 1158 (Fla. 2d DCA 2003); Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187 (Fla. 3d DCA 1998); Cuker v. Hillsborough County Hosp. Auth., 605 So.2d 998 (Fla. 2d DCA 1992); Orlando Reg’l Med. Ctr. v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990), abrogated on other grounds, Boulis v. Fla. Dep’t of Transp., 733 So.2d 959 (Fla.1999); Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Timothy KELLY, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-2783.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.

      Timothy Kelly, pro se, Petitioner.
    Beverly Brewster, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, a prisoner, was resentenced. The resentencing court failed to award more than 1000 days worth of prison credit to which petitioner was entitled. Petitioner asked the Department of Corrections (DOC) to grant the prison credit. The DOC denied the request, explaining that it was without authority to change petitioner’s sentence, stating to petitioner: “If you feel you are entitled to additional credit, you must address your concerns to the sentencing.court.” Rather than filing the appropriate postconviction motion in the sentencing court, petitioner filed a petition for writ of mandamus in a different lower tribunal, seeking to have that court order the DOC to grant the prison credit. For filing the petition for writ of mandamus, an order issued imposing a lien against petitioner’s prison trust account pursuant to section 57.085, Florida Statutes. Petitioner then filed a Motion for Review of Filing Fee Imposed, in which petitioner requested that the lower court confirm that petitioner’s action was a collateral criminal proceeding and reverse the lien.

The lower court issued an order denying mandamus (on the basis that the lower court had no authority or jurisdiction to review the sentence imposed by another circuit court) and denying petitioner’s request for reversal of the lien (on the basis that petitioner’s action was not similar to Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003)). Petitioner then filed a petition for writ of certiorari in this Court, in which petitioner, who has since received the requested relief from the sentencing court, challenges only the lower court’s refusal to remove the filing fee lien from petitioner’s prison trust account.

Although petitioner was advised by DOC that petitioner needed to seek relief from the court that imposed sentence, and although the petitioner failed to heed that advice and instead filed a petition for writ of mandamus in another lower court, we are unable to say that petitioner’s sentence would not have been directly affected had petitioner’s mandamus petition been successful. We therefore grant the petition for writ of certiorari as to the challenge to the lien order, quash the lower court’s April 21, 2005, order imposing the filing fee lien, and remand with instructions for reimbursement of all monies removed from the prisoner’s trust account pursuant to the lien.

We once again invite the Florida Supreme Court to recede from Schmidt due to its unintended fiscal consequences on the courts and the taxpayers. See McGee v. State, Fla. Dep’t of Corr., 935 So.2d 62, 64 (Fla. 1st DCA 2006)(citing Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973) (explaining that district courts may state their reasons for advocating change but are “bound to follow the case law set forth by this Court.”)).

DAVIS and LEWIS, JJ., concur.

BROWNING, C.J., concurs in result only.


author: RAMIREZ, J.

text:
    Salvador MENDOZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-109.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.

      Bennett H, Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and LAGOA, JJ.
   RAMIREZ, J.

Salvador Mendoza appeals his convictions and sentences for multiple counts. We affirm Mendoza’s convictions and sentences, but reverse his conviction for possession of a firearm during the commission of a felony because his conviction for attempted first degree murder was enhanced due to the use of a firearm.

Mendoza and his two co-defendants, Juan Reyes and Ezequiel Reyes, were charged with conspiracy to commit armed robbery; attempted first degree murder of a law enforcement officer (Officer Edgar Rivera); aggravated battery of a police officer; attempted second degree murder (Intern Pablo Muniz); shooting a deadly missile; resisting an officer with violence; fleeing or attempting to elude a marked police car at high speed; and burglary of an occupied dwelling. The jury found Mendoza guilty as charged as to all of the counts except the attempted second degree murder of the intern who was in the police car. As to this count, the jury found Mendoza guilty of aggravated assault.

The trial court sentenced Mendoza to fifteen years as to conspiracy to commit robbery, shooting a deadly missile, burglary of a dwelling, and fleeing a police officer. As to the attempted first degree murder of a law enforcement officer count, the trial court sentenced Mendoza to life imprisonment. As to the aggravated battery of a law enforcement officer count, the trial court sentenced Mendoza to thirty years in prison and as to aggravated assault and resisting arrest with violence counts, the trial court sentenced Mendoza to five years. The trial court ordered all of the sentences to run consecutive with each other. As to the possession of a firearm in the commission of a felony count, the trial court adjudicated Mendoza guilty and suspended entry of sentence.

Mendoza first argues that the show-up identification violated his rights. The test for determining the legality of an out-of-court identification procedure is two-fold: “(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all of the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable mis-identifieation.” Grant v. State, 390 So.2d 341, 343 (Fla.1980). On appeal, we must interpret the evidence and all reasonable inferences in a light most favorable to sustain the trial court’s conclusions. See Smith v. State, 719 So.2d 1018, 1021 (Fla. 3d DCA 1998); Glas v. State, 329 So.2d 341, 343 (Fla. 3d DCA 1976). Here, the trial court found that the identification was not unnecessarily suggestive and did not give rise to a substantial likelihood of irreparable misidentification under the totality of the circumstances. We affirm this conclusion.

Mendoza next claims that his counsel was ineffective and that this Court should order a new trial. A claim of ineffectiveness of trial counsel is ordinarily not cognizable on direct appeal, but rather must be raised in a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987). The limited exception to the general rule is when both the deficient performance of counsel and the prejudice to the defendant are apparent on the face of the record. This exception is rarely applied. Id. See also Rios v. State, 730 So.2d 831, 832 (Fla. 3d DCA 1999). We conclude that this case does not fall under the limited exception because neither the deficiency of the performance of counsel nor prejudice to the defendant is apparent on the face of the record.

Finally, Mendoza claims that his attempted first degree murder of a law enforcement officer and conspiracy to commit armed robbery convictions were enhanced when the jury made a specific finding that a firearm was used during the commission of the crimes. He argues that his conviction for possession of a firearm during the commission of a felony should be vacated, even though the trial court suspended sentence.

We have not been provided with a sentencing transcript so we cannot discern the reason the trial court suspended the sentence on the possession of a firearm count. However, when a defendant is convicted of a felony in which the conviction is enhanced due to use of a firearm, the double jeopardy clause bars both a conviction and sentence for the crime of possession of a firearm during the commission of a felony. Cleveland v. State, 587 So.2d 1145 (Fla.1991); Allen v. State, 643 So.2d 87, 89 (Fla. 3d DCA 1994); Cruz v. State, 593 So.2d 312, 314 (Fla. 3d DCA 1992).

We agree with Mendoza that his attempted first degree murder conviction was enhanced. As the State correctly concedes, Mendoza’s conviction for possession of a firearm during the commission of a felony should thus be reversed.

As to the attempted first degree murder charge, first degree murder is a capital felony pursuant to section 782.04(1), Florida Statutes (2002). It is reduced as an attempt to a first degree felony pursuant to section 777.04, Florida Statutes (2002). It is then reclassified to a life felony for use of a firearm pursuant to section 775.087(l)(a), Florida Statutes (2002).

As to the conspiracy to commit armed robbery charge, if an offender carries a weapon during the commission of a robbery, the robbery constitutes a first degree felony pursuant to section 812.13(2)(b), Florida Statutes (2002). Section 777.04, Florida Statutes (2002), reduces the first degree felony from a conspiracy to a second degree felony. The second degree felony is then reclassified to a first degree felony for use of a weapon or firearm pursuant to section 775.087(l)(a), Florida Statutes (2002).

The judgment in this case indicates that the attempted first degree murder is a life felony. The court evidently enhanced the conviction from a first degree felony to a life felony due to the jury’s finding that a firearm was used. The judgment, however, does not indicate that the conspiracy to commit armed robbery sentence was enhanced. The judgment indicates that the conviction constitutes a felony of the second degree and not a first degree felony that results from the use of a weapon or firearm.

We therefore reverse Mendoza’s conviction for possession of a firearm, but affirm Mendoza’s remaining convictions and sentences.

Reversed in part and affirmed in part.


author: CORTINAS, Judge.

text:
    Maria J. SOMARRIBA and Yasel Diaz, Petitioners, v. Javed S. ALI and Isaac A. Velazquez, Respondents.
    No. 3D06-2154.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.

      Bailey & Dawes, Coconut Grove, and Guy B. Bailey, Jr., and Cheryl Riess, for petitioners.
    Luis E. Ordonez, Miami, and Emomoti-mi S. Brisibe; and Isaac A. Velazquez, Coral Gables, for respondents.
    Before CORTINAS and ROTHENBERG, JJ„ and SCHWARTZ, Senior Judge.
   CORTINAS, Judge.

Petitioner, Maria J. Somarriba (“Somar-riba”), seeks a writ of certiorari quashing an order granting Isaac A. Velazquez’s (“Velazquez”) motion for a protective order barring Somarriba from taking his deposition. Respondents Javed Ali (“Ali”) and Velazquez were ordered to respond to the petition, but declined to do so. We grant the petition and quash the order.

Somarriba is the plaintiff in a personal injury lawsuit against defendant Ali, involving a motor vehicle collision in August 2003, which allegedly caused Somarriba to suffer cervical and lumbosacral spinal trauma. A significant part of Ali’s defense in the lawsuit is that a prior automobile accident in March 2000 (“the 2000 accident”) actually caused Somarriba’s injuries.

In order to rebut Ali’s defense, Somarri-ba subpoenaed Velazquez, the attorney who represented her in the lawsuit concerning the 2000 accident. Somarriba sought to depose Velazquez regarding the facts and circumstances surrounding her injuries in the 2000 accident. However, Velazquez moved for a protective order in response to the subpoena, arguing that he had no recollection and, therefore, was incompetent to testify. Subsequently, the trial court granted Velazquez’s motion for a protective order and this petition for certiorari follows.

“An order denying discovery is not ordinarily reviewable by certiora-ri.... ” Expert Installation Serv., Inc. v. Fuerte, 933 So.2d 1231, 1233 (Fla. 3d DCA 2006) (quoting Medero v. Fla. Power & Light Co., 658 So.2d 566, 567 (Fla. 3d DCA 1995)). However, we have found that an order prohibiting the taking of a material witness’ deposition inflicts the type of harm that can not be remedied on final appeal. See, e.g., Expert Installation, 933 So.2d at 1233; Medero, 658 So.2d at 567; Criswell v. Best W. Int’l, Inc., 636 So.2d 562, 563 (Fla. 3d DCA 1994)(finding that the order denying discovery could not be adequately reviewed on final appeal because it would be impossible to know how the information elicited would have affected the outcome of the case). Most recently, in Expert Installation, we reaffirmed the importance of taking oral testimony and found that the trial court erred in granting a protective order prohibiting the taking of a material witness’ deposition. Expert Installation, 933 So.2d at 1233.

Here, we find no recognized ground for prohibiting Somarriba from deposing Velazquez and, in not responding to the instant petition, respondents have failed to offer any. Velazquez’s testimony may be critical to rebut the disputed cause of Somarriba’s injuries. Additionally, on final appeal it would be difficult for us to determine how his testimony would have affected the outcome of this case. Accordingly, we conclude that the trial court departed from the essential requirements of law and quash the order before us.

Certiorari granted.

      . Notably, it is well-settled that the fact that a person is a lawyer does not necessarily disqualify him as a witness. See Hoyas v. State, 456 So.2d 1225 (Fla. 3d DCA 1984); Sec. Trust Co. v. Grant, 155 So.2d 805 (Fla. 3d DCA 1963). Here, Velazquez can testify as to matters regarding Somarriba’s injuries in the 2000 accident because Somarriba voluntarily waived the attorney client privilege. See Hoyas, 456 So.2d at 1228.


text:
    Nickalist Mares LANG, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3697.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.
    Nancy A. Daniels, Public Defender, and John B. Kelly, III, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant’s conviction for possession of a firearm by convicted felon and the overall sentence imposed are affirmed. However, because appellant was not charged with or proven to have been in actual possession of the firearm — as required by section 775.087(4), Florida Statutes (2005) — we reverse the three-year mandatory minimum sentence imposed pursuant to that statute, and remand with directions to strike that portion of the sentence. See Cook v. State, 816 So.2d 267 (Fla. 1st DCA 2002). Appellant need not be present for resentencing. See Irons v. State, 851 So.2d 798 (Fla. 2d DCA 2003).

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.


text:
    Martin KENDRIGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3131.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Martin Kendrigan, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order denying appellant’s Florida Rule of Criminal Procedure 3.800(a) motion, which sought additional jail credit. Appellant is entitled to credit for time served in jail from the' date of his arrest for the new offenses if the new offenses constituted the basis for the revocation of probation in the instant cases. Louis v. State, 797 So.2d 1281, 1282 (Fla. 4th DCA 2001); Thompson v. Wainwright, 447 So.2d 383 (Fla. 4th DCA 1984); Pauldo v. State, 390 So.2d 125, 126 (Fla. 4th DCA 1980); Gordon v. State, 379 So.2d 1022 (Fla. 1st DCA 1980). See also Voulo v. Wainwright, 290 So.2d 58 (Fla.1974) (explaining that a defendant cannot be on parole and in jail at the same time). If this is the case, appellant should receive credit from the date of his arrest for the new offenses through the date of sentencing following revocation of probation in these cases.

On remand, if the new offenses were not the basis for revocation, the trial court must attach record evidence showing that appellant was not in jail on both the new charges and the violation charges at the same time. See Diggs v. State, 727 So.2d 346, 347 (Fla. 1st DCA 1999); Davis v. State, 543 So.2d 437 (Fla. 2d DCA 1989). See also Lavrich v. State, 633 So.2d 1177, 1178 (Fla. 4th DCA 1994).

WARNER, POLEN and GROSS, JJ., concur.


text:
    Clayton E. LINKOUS, Appellant, v. Brenda J. LINKOUS, Appellee.
    No. 1D06-0575.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.
    John H. Adams and Charles P. Hoskin of Emmanuel, Sheppard and Condon, Pensacola, for Appellant.
    Ross A. Keene of Beroset & Keene, Pensacola, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order finding that there was a valid contract between the parties. We affirm the trial court’s order as to the validity of the contract, the finding that Appellant breached the contract, and the award of arrearages. We reverse only the trial court’s grant of specific performance. Specific performance is an appropriate remedy only when there is no adequate remedy at law. Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005). Because Appellee has an adequate remedy at law through a cause of action for breach of contract, specific performance is not an appropriate remedy in this case. See City of Cocoa v. Sullivan Packing Co., 167 So.2d 750, 752 (Fla. 2d DCA 1964).

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    SUMMERVILLE DEVELOPMENT, INC., & G.C. Homes, Inc., Appellants, v. Manuel DORTA-DUQUE, Appellee.
    No. 3D05-1999.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.

      Colson Hicks Eidson, and Joseph M. Matthews, and Enid Duany Mendoza, Coral Gables, for appellants.
    Josephs Jack, and Susan S. Lerner, Miami, for appellee.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Summerville Development, Inc. and G.C. Homes, Inc. appeal the trial court’s order granting a new trial in the underlying breach of contract action. We affirm, finding no abuse of discretion in light of the improper comments made before the jury during the trial proceedings.

During the course of the trial, the attorney for G.C. Homes, a plaintiff below, made a number of improper comments in the presence of the jury. She also referred during closing arguments to settlement negotiations that occurred at the onset of trial. In the presence of the jury, Pedro Garcia-Carrillo, the founder of G.C. Homes, gave an impromptu outburst. The jury subsequently returned a verdict in G.C. Homes’ favor. The trial court ordered a new trial, finding that G.C. Homes’ attorney improperly had referred to events that occurred prior to trial. Additionally, the trial court heard post-trial testimony that the outburst by Garcia-Carrillo was orchestrated. This misconduct by trial counsel was discovered after the verdict was received.

We find no abuse of discretion in any of the trial court’s rulings. See Philip Morris, Inc. v. French, 897 So.2d 480, 490 (Fla. 3d DCA 2004) (citations omitted) (stating that the standard of review of an order granting a new trial is abuse of discretion). A new trial is warranted when comments affect the jury’s ability to judge the evidence fairly. See Davidoff v. Segert, 551 So.2d 1274, 1275 (Fla. 4th DCA 1989). The nature of the improper comments made in this case were egregious and may have likely swayed the jury.

Accordingly, because we find that the trial court did not abuse its discretion, we affirm the trial court’s order granting a new trial and find all other arguments raised in this appeal to be meritless.

Affirmed.


text:
    Richard BUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1217.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.

      Richard Button, Malone, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s Motion for Rehearing and substitute the following corrected opinion for our slip opinion issued September 6, 2006.

Richard Button appeals an order summarily denying his motion alleging ineffective assistance of counsel. We affirm in part and reverse in part. Appellant Button was indicted for first degree murder and robbery with a deadly weapon, alleged to have occurred in February 1997. The victim was beaten to death in Button’s apartment and found on the side of a road in Loxahatchee, Palm Beach County, Florida. On November 8, 2000, after a jury trial, Button was convicted of both charges. The trial court sentenced Button to life imprisonment on both counts. This court per curiam affirmed Button’s judgment and sentence on appeal without opinion. Button v. State, 819 So.2d 783 (Fla. 4th DCA 2002).

Button then filed a timely motion pursuant to Florida Rule of Criminal Procedure 3.850 in November 2003, alleging eleven grounds for post-conviction relief. The trial court properly denied ten of the eleven claims. We find that the denial of claim six warrants reversal.

In his sixth claim Button alleges that trial counsel was ineffective for withdrawing a motion for an ex parte order to gather potentially exculpatory information. Defense trial counsel hired a private investigator that learned that the victim was a confidential informant and had provided the police with information regarding drug sales in the area. The investigator discovered that those involved in the drug sales may have killed the victim as retribution for giving information to the police.

Defense counsel filed a motion during the trial for leave to discover information the Palm Beach County Sheriffs Office compiled regarding the victim’s status as a confidential informant. The motion asked that any order granted be ex parte, as the defense did not want the state to obtain the information unless counsel decided to use it at trial. At the hearing on the motion the court found that the defendant was entitled to receive any information from the sheriffs office that would be exculpatory to Button’s case. However, the court noted that the state was also entitled to the information and did not grant an ex parte order.

Although Button alleged that counsel withdrew the motion for an ex parte order, the record shows, as the state suggested, that counsel did not withdraw the motion during trial. Button amended his claim to argue that counsel was ineffective for arguing that the state was not entitled to receive the evidence. Button asserts that the failure to obtain this evidence prejudiced his case as the information could have supported his defense theory that someone else was in his apartment and killed the victim.

The circuit court accepted the amendment of claim six and then summarily denied the claim. In denying Button’s assertion, the court found that Button was unable to overcome the presumption that defense counsel’s actions were reasonable trial strategy.

The circuit court’s summary denial of this claim was improper. A trial court cannot deny a motion for post-conviction relief by finding that defense counsel’s decision was tactical or trial strategy without first holding an evidentiary hearing. Erlsten v. State, 842 So.2d 967, 969 (Fla. 4th DCA 2003) (citations omitted). See also Wiggins v. State, 790 So.2d 1137, 1138 (Fla. 4th DCA 2001) (stating “[i]f counsel made a tactical decision to abandon the alibi defense, an evidentiary hearing is required to determine whether that was a reasonable strategic choice”) (citations omitted).

The summary denial of claim six is therefore reversed and remanded to the circuit court for an evidentiary hearing in order to determine whether defense counsel’s actions at trial were tactical.

STEVENSON, GUNTHER and POLEN, JJ., concur.


text:
    Ricardo Lopez JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1663.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.
    Ricardo L. Johnson, Chipley, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, Ricardo Lopez Johnson, appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. Finding no merit in his arguments, we affirm. In so doing, we take the additional step of barring Johnson from filing any further pro se pleadings in this case.

Johnson has appeared in this court thirty-three times in his three cases. When his appearances here on his 1995 case reached double digits, this court issued a show cause order, asking Johnson to explain his reason for again abusing the legal process. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring courts “to first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence”). Johnson responded to this court’s show cause order with approximately six different arguments, none of which stands up to legal scrutiny, and it has become clear that Johnson is again abusing the legal system with his pro se filings.

Thus, we hold that Johnson is barred from future pro se filings in this court concerning Eighteenth Judicial Circuit Court case number 95-3079-CFA on the basis that his pleadings have become an abuse of process. As this court first said ten years ago, “Even Herman Melville had to come to an ending in Moby Dick.” Johnson v. State, 680 So.2d 1101, 1102 (Fla. 5th DCA 1996); see Carter v. State, 931 So.2d 1045, 1045 (Fla. 4th DCA 2006) (“Appellant’s repeated filing of frivolous appeals is diminishing this court’s ability to consider legitimate claims.”); Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”); see also Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (finding Britt’s pro se filings were “frivolous, an abuse of process, and a waste of the taxpayers’ money”).

The Clerk of this court is directed not to accept any further pro se filings concerning this case from Ricardo Lopez Johnson; any additional pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); see, e.g., Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

SAWAYA, PALMER, and TORPY, JJ., concur.

      . This court ultimately banned Johnson from further pro se filings in his 1988 case for abuse of process. Johnson v. State, 652 So.2d 980, 980 (Fla. 5th DCA 1995).


author: POLEN, J.

text:
    David WAITHE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-819.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 2006.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, David Waithe, appeals a final order of judgment and restitution, entered as the result of a conviction for violation of probation. Waithe previously served time for four separate violations of probation. At the sentencing hearing for the instant violation, the trial court noted that the record indicated that Waithe should receive credit for 568 days time served. The State disagreed with this amount, arguing that Waithe should receive credit only for the time served for this particular violation of probation. Defense counsel objected, arguing that Waithe should receive credit for all time served on this and the previous violations. The trial court agreed with the State and sentenced Waithe to two years in prison, with credit for time served of 73 days. We disagree with the trial court’s determination and reverse and remand for resen-tencing.

Section 921.161(1), Florida Statutes, provides, in relevant part: “[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.” § 921.161(1), Fla. Stat. “The award of jail time credit is mandatory under section 921.161, Florida Statutes, unless the record clearly shows that the defendant waived his or her entitlement to such credit.” Briggs v. State, 929 So.2d 1151, 1153 (Fla. 5th DCA 2006). The credit for time served includes any portion of jail time served for prior violations of probation. See Tomiuk v. State, 663 So.2d 681 (Fla. 5th DCA 1995) (“jail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control”).

We reverse and remand for re-sentencing. On remand, the trial court shall conduct a sentencing hearing to determine the appropriate amount of time served that will be credited against Waithe’s original two-year sentence.

KLEIN and MAY, JJ., concur.


text:
    FAMILY NURTURING CENTER OF FLORIDA, INC., Appellant, v. FAMILY SUPPORT SERVICES OF NORTH FLORIDA, INC., Appellee.
    No. 1D06-4506.
    District Court of Appeal of Florida, First District.
    Nov. 9, 2006.
    Daniel H. Thompson and Kelly A. O’Keefe of Berger, Singerman, P.A., Tallahassee, for Appellant.
    John E. Duvall and Amy R. Harrison of Ford & Harrison LLP, Jacksonville, for Appellee.
   PER CURIAM.

DISMISSED. Dep’t of Ins. v. Ass’n of Ins. Agents, 813 So.2d 981 (Fla. 1st DCA 2002); Vey v. Bradford Union Guidance Clinic, Inc., 399 So.2d 1137 (Fla. 1st DCA 1981).

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


author: CASANUEVA, Judge.

text:
    D.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3330.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

D.R. appeals from an adjudication of delinquency following her plea to misdemeanor possession of marijuana in which she reserved the right to contest the denial of her dispositive motion to suppress. She claims that the State failed to present sufficient evidence to establish that the police officer had a reasonable suspicion to perform a stop, during which he observed a baggie of marijuana in her mouth. We agree and reverse.

D.R. and her cousin, who was pushing a baby in a stroller, were walking in the center of the street in D.R.’s grandmother’s neighborhood, an area lacking sidewalks. Two officers coming from an unspecified police operation encountered the two girls. The officers wore clothing that identified them as police. They drove their unmarked car alongside D.R. and her cousin with the intent to advise them not to walk in the middle of the street but to use the side of the road. D.R., apparently noticing that the occupants of the car were law enforcement officers, began running away from the vehicle while shouting “POLICE!” The officers gave chase on foot, calling out to D.R. to stop and return to them, which she did. As they were speaking with her, one officer smelled the odor of marijuana on D.R. and observed a baggie of marijuana in her mouth, which he required her to remove.

Both parties agree that this case is controlled by Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), which held that a person’s presence in an area known for heavy narcotics trafficking, coupled with his or her unprovoked flight upon noticing the police, is a pertinent factor in determining whether an officer has reasonable suspicion to conduct a Terry stop. See also E.B. v. State, 866 So.2d 200, 203 (Fla. 2d DCA 2004) (observing that the record did not contain sufficient facts to suggest that the area where the juvenile was stopped was a high crime area). The parties also agree that D.R.’s flight was unprovoked. But D.R. challenges the State’s contention that it proved that her unprovoked flight occurred in a “high crime area.”

Thus, the issue is whether the State’s evidence was legally sufficient to establish one of the two Wardlow factors: the suspect’s presence in a high crime area. It is not our function to reweigh the evidence but only to determine whether it is sufficient to establish the required element. In doing so we do not demand empirical studies or statistical data.

The critical testimony in the dispositive motion to suppress concerned a Tampa residential neighborhood. Prior to offering his conclusion that the neighborhood was a known high crime or narcotics area, the arresting officer, a member of the Tampa Police Department’s Narcotics Squad, testified: “I haven’t worked over in that area for awhile but there’s multiple narcotic complaints that go out there.” No other evidence was offered by the State in direct examination. The evidence adduced established only that the officer’s knowledge of the area was not current and that an undetermined number of narcotics arrests took place there at some unknown time. This vague and presumptively stale evidence failed to confirm that crime or narcotics transactions were prevalent in the neighborhood at the time this officer encountered D.R.

On cross-examination, the officer provided no details regarding the number of arrests in the neighborhood: “I don’t normally work that area so I wouldn’t have any knowledge of my personal arrests but if you did an address ... you’d be able to see several times.” When pressed for statistics on the number of criminal incidents, the officer offered nothing except to “make a phone call for you and get that for you if you really need it.”

The officer’s testimony about his knowledge of the area was unsupported by any facts shared with the court that would suggest that the suspect’s unprovoked flight occurred in a high crime area; there was no testimony about the “relevant characteristics” of the location that would determine “whether the circumstances [were] sufficiently suspicious to warrant further investigation.” Wardlow, 528 U.S. at 124, 120 S.Ct. 673. The burden of proof rests with the State, and the officer’s testimony suggests strongly that more detailed evidence about the current status of the neighborhood could have been provided. As it was, however, the officer’s out-of-date conclusion, unreinforced by specific, contemporary information, was legally insufficient to satisfy the Fourth Amendment. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

We reverse D.R.’s adjudication of delinquency and remand with instructions to dismiss the case and discharge her.

FULMER, C.J., and NORTHCUTT, J., Concur.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Although arrest statistics or information provided by regular police departmental briefings might be sufficient, we do not decide the nature or type of evidence necessary to establish an area as a high crime area, as that issue is not before us. We hold here only that there was no competent evidence to prove this requirement in this case.


text:
    Jonathan WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3676.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.
    Jonathan Wright, pro se, Appellant.

      Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant’s allegation that his sentence is illegal where he did not affirmatively elect to be sentenced under the 1984 guidelines is facially sufficient, we reverse.

On January 10, 1985, the appellant was sentenced for two counts of attempted second-degree murder, four counts of armed robbery, and three counts of attempted armed robbery that he committed on January 6, 1984. Wright v. State, 487 So.2d 1176, 1177 (Fla. 1st DCA 1986). In determining the appellant’s sentence, the trial court applied the sentencing guidelines adopted by the Florida Supreme Court on October 1, 1983, and enacted by the legislature on July 1, 1984. The appellant’s sentencing guidelines scoresheet indicated a recommended sentencing range of 17 to 22 years. Id. at 1177. The trial court, however, provided eight reasons for departing from the guidelines and sentenced the appellant to forty years’ imprisonment for each armed robbery count, thirty years’ imprisonment for each attempted second-degree murder count, and fifteen years’ imprisonment for each armed robbery count. Id. On direct appeal, the appellant challenged the validity of the trial court’s reasons for departure as well as the application of the 1984 guidelines to his sentence because his offenses were committed before the guidelines were adopted by the legislature. Id. This court held that the application of the 1984 guidelines was proper and upheld the trial court’s reasons for imposing a departure sentence. Id.

The appellant filed the instant rule 3.800(a) motion alleging his sentence is illegal because he did not affirmatively elect to be sentenced under the 1984 guidelines where his offenses occurred pri- or to July 1, 1984. The trial court denied his motion as successive without record attachments, and this timely appeal followed.

In 1989, the Florida Supreme Court held that the 1984 sentencing guidelines were unconstitutional before the legislature adopted them on July 1, 1984. Smith v. State, 537 So.2d 982, 987 (Fla.1989). As a result, a person sentenced after the effective date of the guidelines for an offense committed before the effective date has the option of electing sentencing under the current guidelines or the pre-guidelines law. Id.; Kunkel v. State, 765 So.2d 244 (Fla. 1st DCA 2000). In Kwnkel, this court-held that an appellant who had received a departure sentence under the 1984 guidelines before July 1, 1984, was entitled to relief under Smith. Id. at 245. Although the term of the departure sentence was within the statutory maximum existing before the 1984 guidelines, the appellant “was not given the opportunity to elect to be sentenced under the pre-sentencing guidelines law, pursuant to which he would be eligible for parole.” Id. Under Kunkel, the appellant has stated a facially valid claim for relief. Nothing in the record on appeal suggests that this court has decided the issue of whether the appellant should have been given the option of affirmatively electing sentencing under the 1984 guidelines. See Thomas v. State, 707 So.2d 1189 (Fla. 1st DCA 1998).

The appellant’s first direct appeal occurred in 1985, four years before Smith was decided. Wright, 487 So.2d at 1176. In that case, this court affirmed the appellant’s sentence finding that the 1984 guidelines were procedural in nature and not subject to ex post facto restrictions. Id. at 1177. However, the court did determine that victim injury points were improperly calculated on the appellant’s scoresheet and remanded for correction of the score-sheet. Id. Upon remand, the trial court corrected the appellant’s scoresheet but left the original departure sentence in place. The sentence was affirmed without opinion on the appellant’s second appeal. Wright v. State, 503 So.2d 897 (Fla. 1st DCA 1987). Because each of these appeals occurred before Smith was decided, neither could properly be said to have resolved the specific issue the appellant raised in the instant motion.

Because the appellant’s motion raises a facially sufficient claim that is not refuted by the record, we reverse and remand for attachment of record portions showing that the appellant’s claim has been addressed on the merits, attachment of record portions showing that the appellant affirmatively elected to be sentenced under the 1984, or resentencing.

REVERSED and REMANDED with directions.

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


author: BENTON, J.

text:
    Catherine GARRIS, Appellant, v. THOMASVILLE-THOMAS COUNTY HUMANE SOCIETY, INC., Appellee.
    No. 1D05-5811.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.

      Rob McNeely and Cynthia A. McNeely of the McNeely Law Firm, Tallahassee, for Appellant.
    Brian S. Duffy, Mary L. Wakeman and Brandice D. Dickson of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellee.
   BENTON, J.

Catherine Garris appeals dismissal of claims she brought against Thomasville-Thomas County Humane Society, Inc. (Humane Society), a Georgia corporation, not for profit. The trial court ruled that it lacked jurisdiction over the person of the Humane Society. We reverse and remand for further proceedings.

The first amended complaint stated claims for intentional infliction of emotional distress, conversion, breach of bailment, and, in connection with events that allegedly transpired when Mrs. Garris visited the Humane Society and questioned an employee about her dogs’ demise, assault and battery. She urged the circuit court to assume jurisdiction over the Humane Society under three separate provisions of Florida’s long arm statute, maintaining that the circuit court had general jurisdiction under section 48.193(2), Florida Statutes (2005), as well as specific jurisdiction under sections 48.193(l)(f)(l.) and (g), Florida Statutes (2005). Unwilling to submit to the court’s jurisdiction on any basis, without a special appearance to litigate the jurisdictional question, the Humane Society filed its motion to dismiss and to quash the service of process, attaching affidavits supporting its position. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989).

The Humane Society maintained that the circuit court lacked personal jurisdiction over it because it was neither a resident nor a citizen of Florida, but was instead incorporated and located in Georgia, had no office in Florida, and had no representatives or agents resident in Florida. The Humane Society also argued that it dealt with Ms. Garris only when she was in Georgia, except by telephone when, although she was in Florida, she was speaking to a Humane Society employee in Georgia. As to the foregoing factual matters, there was no dispute.

Ms. Garris did dispute the Humane Society’s arguments — and its factual assertions in support — that the Humane Society did not engage in business activities in Florida, did not conduct substantial activities in Florida, did not advertise in a manner that would subject the Humane Society to jurisdiction in Florida, and did not perform any other act that would bring it within the jurisdiction of Florida courts, consistently with traditional notions of fair play and substantial justice.

The trial court conducted an evidentiary hearing limited to the jurisdictional question, at which the plaintiff assumed the burden to prove a basis for jurisdiction. See id. at 502-03. See also Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1141 (Fla. 2d DCA 2006) (“Once the court determines that the facts are sufficient to bring the defendant within the reach of the long-arm statute, the court must also consider whether the defendant has sufficient minimum contacts with the state so that the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice. This requires the court to determine whether the defendant has availed itself of the privilege of doing business in Florida or has committed acts with an effect in Florida such that it would anticipate being haled into Florida courts.”) (citation omitted).

After the hearing on jurisdiction, the trial court entered an amended final judgment determining that the court lacked personal jurisdiction, and, on that basis, granting the motion to dismiss and to quash the service of process. Specifically with regard to the issue of general jurisdiction, the trial court concluded that the evidence was insufficient to establish that the Humane Society purposefully availed itself of any privilege in Florida or engaged in any activity in Florida, except for insubstantial and isolated contacts.

We review a ruling on a motion to dismiss for lack of personal jurisdiction de novo. See Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002). Foreign corporations may be subject to the jurisdiction of Florida courts, even as to claims arising from activity and effects occurring outside Florida, where they are also “engaged in substantial and not isolated activity within this state[.]” § 48.193(2), Fla. Stat. (2005). See, e.g., Travel Opportunities of Fort Lauderdale, Inc. v. Walter Karl List Mgmt., Inc., 726 So.2d 313, 315 (Fla. 4th DCA 1998) (“[I]t is not necessary for a defendant to have a physical presence in a state for jurisdiction to attach.”).

A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

§ 48.193(2), Fla. Stat. (2005). Jurisdiction under this section does not require that the claim arise from activity or effects within Florida, nor that there be any “connexity” between the claim and the defendant’s activities in Florida. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (“Jurisdiction in [certain] circumstances may not' be avoided merely because the defendant did not physically enter the forum State.”); Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 85 (Fla. 2d DCA 2003) (“This section [48.193(2) ] ‘does not require connexity between a defendant’s activities and the cause of action.’ ”) (quoting Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 620 (Fla. 4th DCA 1999)).

The Humane Society’s raison d’etre is the welfare and control of animals in Thomas County, Georgia, and it accomplishes its purposes in part by placing animals for adoption, on a continuous and systematic basis, including not incidentally with Florida residents. Everybody who adopts an animal from the Humane Society assumes certain undertakings, notably to see that the animal is spayed or neutered, failing which the Humane Society reserves the right to repossess the adopted animal. The Humane Society must approve the veterinarian who operates on the animal, and has approved several veterinarians in Florida. • (The Humane Society reimburses veterinarians it has approved for spay and neuter procedures they perform on animals, including animals it places for adoption.) Many Georgia residents who adopt animals take them to Tallahassee for spaying or neutering because these services are dramatically less expensive when done by certain providers in Tallahassee.

The Humane Society also sends newsletters to its Florida members, solicits donations from Floridians, and has ongoing relationships with several Florida animal aid organizations, including arrangements under which it regularly transfers animals to them for adoption in Florida. While most of the animals the Humane Society places for adoption come from Thomas County, some come from Florida.

To determine whether jurisdiction exists over the person of a non-resident defendant, courts apply a two-part test. See, e.g., Dean v. Johns, 789 So.2d 1072, 1075 (Fla. 1st DCA 2001); Price v. Point Marine, Inc., 610 So.2d 1339, 1341 (Fla. 1st DCA 1992). A Florida court must first determine “that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute.” Dean, 789 So.2d at 1075 (quoting Execur-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000)). Section 48.193(1), Florida Statutes (2005), provides for specific jurisdiction over a nonresident, while section 48.193(2) provides for the courts’ general jurisdiction over persons not resident in Florida “engaged in substantial and not isolated activity within” Florida. § 48.193(2), Fla. Stat. (2005). If the allegations meet a statutory test and the plaintiff can establish the facts required by the test the long arm statute prescribes, “the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Dean, 789 So.2d at 1075.

When, as here, the question whether a Florida court has “general” jurisdiction over the person of a nonresident defendant arises under section 48.193(2), these separate inquiries merge. “[I]f the defendant’s activities meet the requirements of section 48.193(2), [constitutional due process] minimum contacts [are] also satisfied.” Id. at 1077. It has also been said, however, that the “minimum contacts” necessary for “general jurisdiction” are “significantly more than [the] mere minimum contacts” required as a predicate for “specific jurisdiction” over a nonresident defendant. Provident Nat’l Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir.1987).

No state’s courts can exercise jurisdiction over nonresident corporations except in keeping with the requirements of federal due process laid down in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. The International Shoe court explained that “there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.”- Id. at 318, 66 S.Ct. 154. The Court also explained that the criteria for determining jurisdiction are not “mechanical or quantitative,” but that whether due process is satisfied depends upon the “quality and nature of the activity.” Id. at 319, 66 S.Ct. 154.

A single, fortuitous contact with the forum state is not enough. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295-99, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (holding out-of-state wholesaler and retailer could not be haled into court to defend in a state with which their only connection was a single automobile accident involving a car they sold outside the state). But purposeful, ongoing contacts with Florida were held to support jurisdiction in Woods, where a resident of Belize injured in an aircraft accident in Costa Rica sued the aircraft’s owner, a Belizean corporation (Nova), in Broward county. Woods, 739 So.2d at 619-21.

Where a nonresident defendant has a cognizable connection with the forum state, a second question must be addressed: whether requiring the defendant to appear in the forum state would work a substantial injustice or amount to an imposition that could not reasonably have been foreseen. See Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154 (holding state court’s assertion of personal jurisdiction must comport with “ ‘traditional notions of fair play and substantial justice’ ”) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). See also Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); State ex rel. Weber v. Register, 67 So.2d 619, 621 (Fla.1953).

Here, on the second Thursday of every month, a representative of the Humane Society has appeared, with one or more animals, on “Pet of the Week,” a television program WCTV Channel 6 broadcasts in an area that includes both Tallahassee and Thomasville. The television studio is in Leon County, Florida, and a representative of the Humane Society brings the animals into Florida to film the segment. The purpose is to inform the viewing audience (in Florida and Georgia) that the animal on the show is available for adoption and to urge viewers to contact the Humane Society to adopt the animal (and other animals) from the Humane Society. The executive director of the Humane Society testified that its mission is to see that animals are adopted — not just by Georgia residents — and that the Humane Society is “not specifically seeking Florida residents, but we’re seeking anyone who would be willing to adopt the animal in the TV station that serves Thomasville as well.” The Humane Society has continuously and systematically “marketed animals for adoption” to Floridians in this manner by participating in this television program (at no cost to the Humane Society) for many years.

The Humane Society also advertises ant-mals for adoption on Petfinder.com. Florida residents adopt animals from the Humane Society at least eight to ten times per year. The Humane Society also accepts animals from Florida residents any time they are surrendered to the Humane Society. The Humane Society maintains a website on which it advertises that it “accepts all animals and there is no charge to leave an animal.”

As part of the adoption process, the Humane Society requires adopters to execute a “Sterilization Contract,” which requires the spaying or neutering of the newly adopted pet before it reaches six months of age. In this connection, a “sterilization deposit” must be paid to the Humane Society as part of the adoption fee. Although the adopter may select the veterinarian to perform the procedure, any veterinarian selected must be approved by the Humane Society. Once the approved veterinarian does the work, the veterinarian bills the Humane Society, and the Humane Society reimburses the veterinarian directly (if not always in full). Certain veterinarians in Florida are approved and reimbursed on a regular basis.

For Thomas County residents who cannot afford to pay for spaying or neutering a dog or cat acquired from sources other than the Humane Society, the Humane Society provides “spay/neuter gift certificates,” as long as it has the funds. The executive director testified that Animal Aid in Tallahassee is a popular choice for recipients of these certificates because its veterinarians perform the procedures for the amount of money the Humane Society contributes, whereas the same procedures can cost up to three times as much in Thomasville. On average, the Humane Society reimburses Animal Aid in Tallahassee for ten to twenty of these procedures per month.

The Humane Society asks the Leon County Humane Society some three or four times a year to take animals it can no longer keep. In addition, the Humane Society lets the Leon County Humane Society know whenever it receives bobcats or polydactyl cats — cats with six or more digits on a single paw. Big Dog Rescue is another Florida-based rescue group to which the Humane Society regularly turns asking that Big Dog Rescue take large dogs (and possibly other animals) whenever the Humane Society anticipates the necessity of euthanizing them otherwise. The Humane Society systematically and continuously transfers polydaetyl cats, bobcats and large dogs to Floridians for adoption in Florida.

The Humane Society mails newsletters to its members, of whom nine per cent are Florida residents, two to four times a year. The newsletters include invitations to fundraisers and solicitations for donations, and Floridians sometimes respond. The Humane Society also sends invitations to its members for special fundraising events four or five times a year. See Obermaier v. Kenneth Copeland Evangelistic Ass’n, Inc., 208 F.Supp.2d 1288, 1291 (M.D.Fla. 2002) (finding general jurisdiction based on fact that defendant “solicits contributions from Florida residents using local television stations in Naples, Florida as well as internet websites [and] sends mail into Florida in response to donations by Florida residents”).

The Woods court recounted that Nova was in the business of farming shrimp in Belize for export to the United States, that it dealt with a Florida broker, that eighteen per cent of its sales were made to shrimp importers in Florida; and that Nova purchased supplies from Florida through a separate company that transported them to Belize. The court found that Nova’s contacts with Florida were continuous and systematic, and justified a Florida court’s exercise of general jurisdiction. See id. at 620.

This “continuous and systematic” contacts standard was the standard enunciated by the Supreme Court in Helicopteros [Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984),] as sufficient to fulfill the due process requirements of minimum contacts when asserting general jurisdiction. Because section 48.193(2) requires this high threshold, if the defendant’s activities meet the requirements of section 48.193(2), minimum contacts is also satisfied.

Id. (citation omitted). But Nova did not own property in Florida, was not registered to do business in Florida, did not advertise in Florida, and did not maintain an address, telephone listing, or bank account in Florida. See id. at 619. The Woods court relied, however, on the fact that Nova’s activities affecting Florida were not “haphazard or fortuitous,” and ruled that “[w]hile any one of these activities alone may not be deemed sufficient, considered collectively, they establish personal jurisdiction.” Id. at 621.

As in Woods, the connection between the Humane Society and Florida is neither haphazard nor fortuitous. In the present case, too, the connection is based on substantial activities the defendant purposefully directed toward Florida residents. The Humane Society did not merely place some product in the stream of interstate commerce, nor is it unreasonable or unfair to require the Humane Society to cross, not the Gulf of Mexico or the Pacific Ocean, but the state line, to defend in a jurisdiction where it regularly does business. Cf. Asahi Metal Indus. Co. v. Superior Court of Cal, 480 U.S. 102, 106-16, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).

The Humane Society purposefully avails itself of a variety of privileges under Florida law, in drawing on various Florida resources to accomplish its goals. In order to place animals for adoption, it directs significant, systematic, continuous, substantial, and not isolated activities toward residents of Florida, targeting the populous Florida “market.” The Humane Society’s contacts with Florida are continuous, ongoing, and systematic, not isolated, sporadic, or haphazard. Given these contacts, there is nothing unforeseeable, unfair, or unjust about requiring the Humane Society to respond to the process of a Florida court. The lower court erred in declining to exercise its general jurisdiction over the Humane Society pursuant to section 48.193(2), Florida Statutes (2005), in dismissing the complaint, and in quashing service of process.

Reversed and remanded.

KAHN and LEWIS, JJ., concur.

      . The trial court seems to have confused the document (referred to in the order under review as an "Animal ID”) that she attached to her complaint as part of her claim that a bailment had been created with the document (referred to as a "Sterilization Contract”) that the Humane Society required people to execute when adopting pets:
      Similarly, the Animal ID invoices were entered into evidence by the Plaintiff show[ing] nothing more than the adoptions took place in Georgia. Plaintiff asserts that the Animal ID invoices are continuing contracts with Florida adopters such that the Defendant retains the right to demand the return of the adopted animal at any time and, therefore, has continuing contracts with multiple Florida residents. The court declines to view the invoices as contracts. As such, Plaintiff's argument fails.
      In fact, there is no contention for jurisdictional purposes "that the Animal ID invoices are continuing contracts” and the evidence about written agreements (Sterilization Contracts) by which numerous Floridians undertook to have adopted animals spayed or neutered was undisputed.

      . Ms. Garris alleged the Humane Society eu-thanized two dogs she had left at its animal shelter in Thomasville, in hopes that it would find somebody suitable to adopt them. Her complaint alleged that she (herself a former volunteer at the animal shelter) had been given to understand that the Humane Society operated a "no-kill" facility, and that she had been assured by employees of the shelter that she would be called if the dogs could not be adopted, in which case, she was told, she could reclaim the dogs; but that she was never contacted, and that the dogs were eu-thanized without her knowledge or consent.
      In the posture the case reaches us, we offer no opinion on the viability of any of these claims. These questions can be taken up on remand. In the proceedings that gave rise to the appeal, the trial court decided only that minimum contacts did not exist, pretermitting consideration of defense contentions that no claim had been stated on which relief could be granted, ruling:
      The purpose of the hearing today is not to determine whether there is merit to any of the claims or whether the claim states a cause of action in any of these claims but whether or not the Court has jurisdiction over any of these matters.

      Well, I'll grant the motion to dismiss on the jurisdictional grounds, so there’s no need for the Court to address the other grounds.
      Similarly, we do not decide whether claims asserted as bases for specific jurisdiction state causes of action, nor any other issue pertaining only to specific jurisdiction. Cf. Godfrey v. Neumann, 373 So.2d 920, 922 (Fla.1979) (holding "that by committing a tort in Florida a nonresident establishes sufficient 'minimum contacts’ with Florida to justify the acquisition of [specific] in personam jurisdiction over him”).
      Because we decide no question of "specific jurisdiction,” we need not consider, even on a "tipsy coachman” theory, whether claims for relief have been adequately stated. See generally Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999); Am. Overseas Marine Corp. v. Patterson, 632 So.2d 1124, 1127 (Fla. 1st DCA 1994) (explaining that specific jurisdiction "requires a causal connection between the defendant’s activities in the forum state and the plaintiff's cause of action”). We conclude rather that, because the Humane Society directed substantial and not isolated activities toward Florida systematically and continuously, Florida has general judicial jurisdiction over the Humane Society.

      . Ms. Garris has never sought to obtain personal jurisdiction over any officer or employee of the Humane Society. See generally Doe v. Thompson, 620 So.2d 1004, 1006 (Fla.1993) ("While Southland Corporation, which operates businesses in Florida, could be haled into court because of its minimum contacts, its chief executive officer is not [simply] by virtue of his position subject to personal jurisdiction.”).

      . Ms. Garris originally appealed the trial court's final judgment on the motion to dismiss her complaint and quash the service of process, but we determined that the order appealed was not final, and relinquished jurisdiction for the trial court to enter a final order. The trial court then entered an amendment to the final judgment, stating that, although the order of dismissal had been a final judgment, it had not specified that the cause was dismissed. The court added a sentence to the original order, dismissing the cause in its entirety based on the asserted lack of personal jurisdiction, and the appeal proceeded from this amended final judgment.

      . We disagree with the trial court's analysis. The trial court made findings of fact, which are binding on us (unless without substantial support in competent evidence of record, see, e.g., ante note 1), although the trial court’s conclusions of law are subject to de novo review. All of the contacts the Humane Society had with Florida, taken together, establish substantial and not isolated activity within Florida.

      . The southern boundary of Thomas County is also the Florida state line. Given that cats and dogs do not respect political boundaries, the Humane Society's policy of accepting animals for adoption from Florida residents is a rational one.

      . Section 48.193(2) was held to confer jurisdiction in a medical malpractice case a Florida patient brought against a physician who resided in Alabama and had treated her there. See Dean v. Johns, 789 So.2d 1072, 1074-75 (Fla. 1st DCA 2001). But cf. Bachman v. Med. Eng’g Corp., 81 Or.App. 85, 724 P.2d 858 (1986). We catalogued the doctor’s activities involving Florida:
      [The defendant] has treated over 3,200 Florida patients, is licensed to practice medicine in Florida, subjects himself to Florida regulation for the practice of medicine in Florida (including continuing medical education requirements), regularly consults with Florida physicians by telephone, renders reports to Florida physicians for use in treating Florida patients in Florida, and owns rental property in Florida.

        Dean, 789 So.2d at 1078. The Dean court determined that the doctor’s activities amounted to substantial and not isolated contacts with Florida, explaining that substantial and not isolated activity occurred whenever there was " ‘continuous and systematic general business contact’ with Florida.” Dean, 789 So.2d at 1077 (quoting Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 620 (Fla. 4th DC A 1999)). But see generally Burnham v. Superi- or Court of Cal., 495 U.S. 604, 610 n. 1, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) (“It may be that whatever special rule exists permitting 'continuous and systematic' contacts, to support jurisdiction with respect to matters unrelated to activity in the forum applies only to corporations, which have never fitted comfortably in a jurisdictional regime based primarily upon 'de facto power over the defendant's person.' International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).”) (citation omitted).

      . In connection with "marketing” in Florida, both parties cite Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80 (Fla. 2d DCA 2003), where parents of a camper, all Florida residents, asserted jurisdiction over the summer camp their daughters attended in North Carolina alleging, among other things, that one of them had been tortiously injured there. See id. at 83. Camp Illahee, a North Carolina corporation, successfully argued that the court lacked personal jurisdiction because it was located in North Carolina, had no offices or employees in Florida, and did not advertise in Florida by newspaper, radio, or television. The only activity in Florida or directed to Florida residents occurred once a year when the owners of Camp Illahee conducted "reunion and video shows” in the homes of "camp families.” Id.

      The Camp Illahee case is readily distinguishable from the present case. Minimal contact on annual visits to Florida contrasts starkly with the Humane Society's monthly advertising to thousands of television viewers, not to mention the Floridians who received the Humane Society’s mailings. The present case more closely resembles Gorman v. Grand Casino of Louisiana, Inc.-Coushatta, 1 F.Supp.2d 656, 659 (E.D.Tex.1998) (predicating long arm jurisdiction on "a pervasive, systematic, and continuous local advertising campaign”). More importantly, the plaintiff in the present case relies not just on the Humane Society’s marketing to Floridians, but also on a plethora of other contacts.

      . We reject the analysis the order under review set out in connection with television advertising and direct mail:
      The court also finds the Plaintiff's assertions that Defendant's advertising on WCTV subjects it to jurisdiction unpersuasive. [The executive director] testified that the Defendant's intent is to advertise to Georgia residents and to advertise that animals are available for adoption in Georgia. Similarly, the Defendant’s mailings into Florida to its established members is not purposeful availment of any privilege in Florida. The Plaintiff has failed to show that the Defendant’s acts rise to the level of anything other than isolated activities and, therefore, this court cannot exercise general jurisdiction over the Defendant.
      The executive director’s testimony was clear that there was no effort to limit the advertising to Georgians or to exclude Floridians.

      . Here, as in Obermaier v. Kenneth Copeland Evangelistic Ass'n, Inc., 208 F.Supp.2d 1288, 1292 (M.D.Fla.2002), ''internet use by Florida residents was both intended and reasonably foreseeable. These contacts with Florida are such that the defendant should reasonably anticipate being haled into court in Florida,” particularly here, where they occur in the context of so many other contacts. Because of the other contacts, we ''need not decide ... whether standing alone the Web site maintained by the defendant is sufficient to satisfy a finding of general jurisdiction.” Mieczkowski v. Masco Corp., 997 F.Supp. 782, 788 (E.D.Tex.1998).

      . This rate has likely increased since the Humane Society began bringing animals to a Petco store in Tallahassee, offering them for adoption to Florida residents. Whether this practice began before or after the filing of the complaint is not entirely clear, however. For jurisdictional purposes, a court may consider contacts that occur after the cause of action arises. See Dean, 789 So.2d at 1077-78 (considering activity of the defendant in the "period of years prior to the plaintiff's filing of the complaint”) (quoting Woods, 739 So.2d at 621).

      .All told, the Humane Society may pay for dozens of spay or neuter procedures in Florida each month. The monies the Humane Society pays for veterinary services in Tallahassee amounts to hundreds of dollars every month. The trial court found and concluded:
      Specifically, the court finds Plaintiff’s argument unavailing that Defendant’s reimbursement to Florida veterinarians subjects it to the jurisdiction of the state. First, the Defendant did not perform the subject veterinary services. Second, the Defendant had no control over where the services were performed; rather, the individual adopters chose for themselves where the services were to be performed. Third, the Defendant derived no benefit from performing the ministerial act of reimbursement.
      While we disagree with the trial court’s analysis in this regard, we are mindful of the Court's holding in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), "that purchases and related trips, standing alone, are not a sufficient basis for a State's assertion of jurisdiction.”
      [W]e hold that mere purchases, even if occurring at regular intervals, are not enough to warrant a State's assertion of in person-am jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions. Nor can we conclude that the fact that Helicol sent personnel into Texas for training in connection with the purchase of helicopters and equipment in that State in any way enhanced the nature of Helicol’s contacts with Texas. The training was a part of the package of goods and services purchased by Helicol from Bell Helicopter. The brief presence of Helicol employees in Texas for the purpose of attending the training sessions is [not] significant....

        Id. at 418, 104 S.Ct. 1868 (footnote omitted). We assume that veterinary services should be treated like the training services purchased in Texas in Helicópteros, and we do not rest our holding on these purchases of services alone or on the trips into Florida that they necessitate. On the other hand, their numerosity and regularity underscore the broad interdependence between the Humane Society and an array of Floridians in various capacities. Taken as a whole, the Humane Society’s activities within Florida availed it of multiple privileges under Florida law and "constitute[d] the kind of continuous and systematic general business contacts the Court found to exist in Perkins [v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952)].” Id. at 416, 104 S.Ct. 1868.
      In Helicopteros, no products of Helicol ever reached a single Texas resident. In the present case, the Humane Society’s "products” (the animals it places for adoption), regularly reach Florida residents. In Helicópteros, Hel-icol did not solicit business in Texas. In the present case, the Humane Society solicited business in Florida (adoptions) by going on a program that was broadcast in Florida every month for many years; representatives traveled to Florida, with the Humane Society’s animals, to tape the show. Helicol made no effort to sell products or services within Texas. The Humane Society also solicited donations by mailing newsletters and invitations to fundraisers, nine per cent of which went to Florida residents.

      . In Helicopteros, 466 U.S. at 408, 104 S.Ct. 1868, the Court stated the rule as follows:
      Even when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum State, due process is not offended by a State’s subjecting dle corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation.

        Id. at 414, 104 S.Ct. 1868 (footnote omitted).


author: WOLF, J.

text:
    Gerald Kenneth COLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3071.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.

      Dale C. Carson, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

The appellant challenges an order denying his petition to seal criminal records. He claims the trial court abused its discretion by denying his petition to seal. We agree and hold that the trial court abused its discretion by denying the appellant’s petition to seal without hearing evidence on the issue or providing a reason based on the facts and circumstances for its denial.

The appellant was charged with lewd or lascivious molestation. Following a jury trial, he was acquitted of the charge. The appellant petitioned the court to have his record sealed pursuant to section 943.059, Florida Statutes (2005). The court held a hearing on the appellant’s petition. The appellant asserts, and the State concedes, that no evidence was introduced at the hearing. Furthermore, the trial court’s order did not state any factual basis for denying the appellant’s petition. The order provided:

The court having heard arguments of the State Attorney and of counsel for defense, and being fully advised in the premises, it is thereupon ordered and adjudged that the aforesaid motion shall be and the same is hereby denied. Done and ordered in open court at Jacksonville, Duval County, Florida, this 25th Day of May 2005.

As evidenced by the order above and the State’s concession, the trial court did not exercise its discretion based upon factors other than the offense for which the appellant was acquitted pursuant to section 943.059, Florida Statutes. Godoy v. State, 845 So.2d 1016, 1017 (Fla. 3d DCA 2003) (“the exercise of discretion contemplates that the court will make its decision based on consideration of all the facts and circumstances, rather than deciding the petition solely on the nature of the charge”) (citing Anderson v. State, 692 So.2d 250, 254 (Fla. 3d DCA 1997)) (holding that the petition was not properly denied where the trial court’s stated reason for denying the petition was that the defendant was afforded a break in the criminal justice system because he received a withhold of adjudication and early termination of probation). See also State v. D.H.W., 686 So.2d 1331, 1336 (Fla.1996) (holding that, in reviewing the petition, the court is to weigh the policy of public access to records against the long-standing public policy of providing a second chance to criminal defendants who have not been adjudicated guilty); Johnson v. State, 336 So.2d 93, 95 (Fla. 1976) (finding a petition may be denied by the trial court only if there is a good reason based on the facts and circumstances of the individual case); Oymayan v. State, 765 So.2d 812, 814 (Fla. 1st DCA 2000) (concluding the sole fact that the defendant committed a series of criminal acts rather than an isolated, single incident is an insufficient reason to preclude ex-pungement of the records).

Without adducing evidence at the hearing or stating any reason for denying the appellant’s request in its order, it appears the trial court had no factual basis to support the denial of the appellant’s request to seal his records. Therefore, the trial court abused its discretion by not basing its decision on the facts and circumstances of the appellant’s case. Accordingly, we remand the case to the trial court with instructions to either grant the appellant’s petition or provide the reason, based on all the facts and circumstances, for denying the petition.

REVERSED AND REMANDED.

PADOVANO and THOMAS, JJ„ concur.