author: GROSS, J.

text:
    Glenn SMITH, Appellant, v. Neil A. FISHER, M.D., Appellee.
    No. 4D06-4922.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Rehearing Denied Oct. 25, 2007.

      Glenn Smith, Indiantown, pro se.
    Mitchel Chusid and Scott M. Teich of Ritter Chusid Bivona & Cohen, LLP, Boca Raton, for appellee.
   GROSS, J.

We write primarily to address the constitutionality of the Florida Vexatious Litigant Law, section 68.093, Florida Statutes (2005) under Article I, Section 21 of the Florida Constitution. Holding that the statute satisfies the constitution, we affirm.

In 2003, Glenn Smith filed a complaint under 42 U.S.C. § 1983 against Neil A. Fisher, a physician at Martin Correctional Institution, alleging a violation of his Eighth Amendment rights. The complaint was based on the quality of cream that Fisher prescribed for Smith’s “itching condition.”

Fisher moved for an order requiring Smith to provide security pursuant to section 68.093. The motion noted that in the five year period immediately preceding the filing of the complaint in this case, Smith had commenced five or more cases that had been “finally and adversely determined against” him. § 68.093(2)(d)l, Fla. Stat. (2005). Smith responded with a motion that section 68.093 be declared unconstitutional.

Judge Schack conducted a telephonic hearing and found that Smith was a vexatious litigant under “[sjection 68.093(3).” Later, Judge Makemson ordered Smith to furnish $600 in security within 60 days pursuant to section 68.093(3)(b). Smith failed to post the security. Fisher moved to dismiss. After a telephonic hearing, the court dismissed the case on November 28, 2006.

Implicit in Judge Schack’s order is the finding that Smith was unlikely to prevail on the merits of his action. To prevail on a 42 U.S.C. § 1983 claim, a plaintiff must show, among other things, that there was a violation of a right secured by the Constitution or federal law. See, e.g., Skinner v. City of Miami, 62 F.3d 344, 347-48 (11th Cir.1995). A difference of opinion between Smith and a prison medical staff member as to treatment for Smith’s itching skin condition does not give rise to an Eighth Amendment violation. See also Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (“A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.”); see Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981) (finding difference of opinion between inmate and prison medical staff regarding treatment or diagnosis does not, itself, state a constitutional violation); Ledoux v. Davies, 961 F.2d 1536 (10th Cir. 1992) (finding inmate’s belief that he needed additional medication, other than that prescribed by a treating physician, was insufficient to establish a constitutional violation). Actions or inactions involving medical treatment may violate the Eighth Amendment only if they involve “something more than a medical judgment call, an accident, or an inadvertent failure.” Murrell v. Bennett, 615 F.2d 306, 310 n. 4 (5th Cir.1980).

The $600 security required was reasonable on its face, far less than is typically incurred in a civil rights case to cover a “defendant’s anticipated, reasonable expenses of litigation, including attorney’s fees and taxable costs.” § 68.093(2)(c), Fla. Stat. (2005).-

Smith primarily argues that section 68.093 violates Article T, Section 21 of the Florida Constitution, which provides- that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

This case pits the first clause of Article I, Section 21 against the second — leaving the courts at the mercy of every meritless, vexatious lawsuit will cause justice to be administered in all cases with delay. A frivolous case presents no “injury” to be redressed. Requiring defendants to endure lengthy proceedings to resolve meritless lawsuits is not administering justice “without ... delay.” Early in a case, section 68.093 procedure identifies lawsuits likely to be frivolous and subjects them to an expedited process.

“The constitutional right of access to-the courts sharply restricts the imposition of financial barriers to asserting claims or defenses in court. Although courts have upheld reasonable measures, such as filing fees,[] financial preconditions that constitute a substantial burden on a litigant’s right to have his or her case heard are disfavored.” Psychiatric Assocs. v. Siegel, 610 So.2d 419, 424 (Fla.1992) (internal citation omitted), receded from on other grounds by Agency for Health Care Admin. v. Associated Indus, of Fla., Inc., 678 So.2d 1239 (Fla.1996); see Smith v. Dep’t of Health & Rehab. Sens., 573 So.2d 320, 323 (Fla.1991).

In Psychiatric Associates, the supreme court evaluated a statute that required a plaintiff bringing a court action against a participant in a medical review board process “to post a bond sufficient to cover the defendant’s costs and attorney’s fees” before the action could be prosecuted. 610 So.2d at 421. The bond requirement applied in all cases, without consideration of the merits of a plaintiffs claim. Holding that the statute violated Article I, section 21, the court applied two alternative tests to evaluate the statute, drawn from Kluger v. White, 281 So.2d 1 (Fla.1973):

Although courts generally oppose any burden being placed on the right of a person to seek redress of injuries from the courts, the legislature may abrogate or restrict a person’s access to the courts if it provides: 1) a reasonable alternative remedy or commensurate benefit, or 2) a showing of an overpowering public necessity for the abolishment of the right, and finds that there is no alternative method of meeting such public necessity.

Psychiatric Assocs., 610 So.2d at 424; see Cmty. Hosp. of the Palm Beaches, Inc. v. Guerrero, 579 So.2d 304, 305 (Fla. 4th DCA 1991), affd, 610 So.2d 418 (Fla.1992).

Section 68.093 satisfies the second Klu-ger test.

In Mitchell v. Moore, 786 So.2d 521, 527 (Fla.2001), the supreme court equated the Kluger “no alternative method of correcting the problem” test with the “goal-method test used in both substantive due process and equal protection analysis for cases in which a fundamental right is taken.” Under substantive due process goal-method analysis, if a state enacts legislation that infringes fundamental rights, courts will review the law under a strict scrutiny test and uphold it only when it is “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). “Narrowly tailored” means that “the method for remedying the asserted malady must be strictly tailored to remedy the problem in the most effective way and must not restrict a person’s rights more than absolutely necessary.” Mitchell, 786 So.2d at 527. ■

The compelling state interest behind section 68.093 is to prevent vexatious litigation from interfering with the business of the court system. “ ‘Every lawsuit looks to two results — to end a controversy, and to end it justly... Fla. Land Rock Phosphate Co. v. Anderson, 50 Fla. 501, 39 So. 392, 394 (1905) (quoting Hoyt v. City of Danbury, 69 Conn. 341, 37 A. 1051 (1897)). Meritless lawsuits filed by vexatious litigants interfere with the court system’s ability to timely and justly process cases. Such lawsuits generate hours of work for judges and court personnel, so that litigants with legitimate legal matters are delayed. In a frivolous lawsuit, justice delayed is justice denied to a defendant who expends time and money to bring the case to an end.

Concerned about frivolous inmate lawsuits, the legislature passed legislation in 1996 “that sought to limit the ability of prisoners to file numerous lawsuits under indigent status.” Neveils, 25 Nova L.Rev. at 353 (citing Ch. 96-106, Laws of Fla. codified at §§ 57.081, 57.085, 92.351, 95.11, 944.279, and 944.28, Fla. Stat. (2000)). The legislature’s introduction to Chapter 96-106 stated that “state and local governments spend millions of dollars each year processing, serving, and defending frivolous lawsuits filed by self-represented indigent inmates, and ... the overwhelming majority of civil law suits filed by self-represented indigent inmates are frivolous and malicious actions intended to embarrass or harass public officers and employees.” Ch. 96-106, § 1 at 93, Laws of Fla.

Focusing on meritless litigation filed by persons other than prisoners, the business section of the Florida Bar proposed section 68.091 to the legislature. Neveils, 25 Nova L.Rev. at 353. The Senate sponsor of the bill observed that the law was “aimed at those individuals with a propensity for filing harassing civil actions.” Id.

Section 68.093 remedies the problem of meritless litigation in the most effective way and does not restrict the vexatious litigant’s rights more than absolutely necessary. The definition of a “vexatious litigant” is not unreasonably broad; it is a person “who, in the immediately preceding 5-year period, has commenced, prosecuted or maintained, pro se, five or more civil actions in any court in this state [excluding small claims cases], which actions have been finally and adversely determined against such person.” § 68.093(2)(d)l, Fla. Stat. (2005). The bright line of five unsuccessful, pro se civil actions within five years identifies likely abusers of the court system. Where there is smoke, there is fire. The average citizen does not file five, pro se, non-small claims civil lawsuits in a lifetime.

Lawsuits filed by an attorney do not count in the vexatiousness equation; the Code of Professional Responsibility and statutes such as section 57.105, Florida Statutes (2005) adequately screen against frivolous lawsuits when an attorney is involved in the filing decision. By relying on a litigant’s recent history to define vexa-tiousness, section 68.093 is unlike those problematic statutes that restrict access to the courts without any determination “that the [litigant] has ever filed a frivolous or other improper action.” Mitchell, 786 So.2d at 525.

Significantly, the determination that a plaintiff is a vexatious litigant does not shut the courthouse door. A defendant must move for a hearing to establish that a plaintiff is a vexatious litigant who “is not reasonably likely to prevail on the merits of the action against the moving defendant§ 68.093(3)(a), Fla. Stat. (2005). After a hearing, if a court determines that a defendant is both a “vexatious litigant” and “not reasonably likely to prevail on the merits,” the court “shall order the plaintiff to furnish security to the moving defendant in an amount and within such time as the court deems appropriate.” § 68.093(3)(b), Fla. Stat. (2005). If the plaintiff fails to post the required security, “the court shall immediately issue an order dismissing the action with prejudice as to the defendant for whose benefit the security was ordered.” § 68.093(3)(c), Fla. Stat. (2005).

The statute subjects the vexatious litigant’s case to close, up-front scrutiny. The statute has no effect on a case that is likely meritorious. A litigant who meets the statutory test for a “vexatious litigant,” has the chance to present evidence to convince a judge that his lawsuit has merit, that he is “reasonably likely to prevail on the merits,” before being required to post security. This finding is akin to a probable cause determination in a criminal case. If, after hearing evidence, a court finds that a plaintiff is a vexatious litigant unlikely to prevail on the merits, it is not unreasonable to condition the maintenance of the lawsuit upon the plaintiff providing security to compensate the defendant for financial losses that will arise from the litigation. This procedure provides a mechanism, whereby the court system manages a meritless' case' early in litigation, before a defendant has incurred excessive expenses and the court system has expended many court hours handling the case.

Other methods of controlling frivolous lawsuits filed by vexatious litigants are ineffective. The Florida Rules of Civil Procedure operate on the implied assumption that the parties are acting in good faith. Erring on the side of giving a plaintiff his day in court, case law has construed the rules of procedure in a way that makes it difficult to confront the frivolity of a lawsuit early in a case. For example, in Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999), this court affirmed a circuit court order requiring a pro se litigant to file his eleventh amended complaint “through counsel.” By the time of the order on appeal, the case had gone through multiple hearings with four trial judges. Statutes awarding costs and attorney’s fees at the end of a case have little effect on judgment-proof vexatious litigants, who may rely on their indigency to avoid even the filing fees. See Kreager v. Glickman, 519 So.2d 666, 667 (Fla. 4th DCA 1988) (discussing pro se litigant whose litigiousness resulted in a $1.5 million judgment against him, without “deter[ing] his activities in the least”).

Section 68.093 does not present the problems of statutes found to contravene Article I, Section 21. The statute does not restrict any claim, frivolous or legitimate, filed by a person who does not meet the definition of a vexatious litigant. Cf. Mitchell, 786 So.2d at 528. The statute does not deny access to a court before any judicial determination. Cf, id. at 525-26. The statute does not require the posting of security regardless of the merits of the lawsuit. Cf. Psychiatric Assocs., 610 So.2d at 425; Cmty. Hosp. of the Palm Beaches, 579 So.2d at 304 (relying on dissent in Guerrero v. Humana, Inc., 548 So.2d 1187 (Fla. 4th DCA1989)).

For these reasons we hold that section 68.098 satisfies the second Kluger test and affirm.

STONE and POLEN, JJ., concur.

      .The following list is a sample of the lawsuits filed by Smith:
      1. Smith v. State, 765 So.2d 718 (Fla. 4th DCA 2000) (the trial court decision against plaintiff was affirmed);
      2. Smith v. Moody, Warden, Taylor Corr. Inst., 770 So.2d 1233 (Fla. 1st DCA 2000) (cert. denied);
      3. Smith v. Moore, 789 So.2d 348 (Fla.2001) (habeas corpus denied);
      4. Smith v. Moore, Sec’t of Coir., 799 So.2d 1029 (Fla. 1st DCA 2001) (the trial court decision against plaintiff was affirmed);
      5. Smith v. Fla. Dep't of Corr., 799 So.2d 319 (Fla. 1st DCA 2001) (the trial court decision against plaintiff was affirmed);
      6. Smith v. Fla. Dep't of Corr., 833 So.2d 125 (Fla. 1st DCA 2002) (the trial court decision against plaintiff was affirmed);
      7. Smith v. Fla. Dep’t of Corr., 842 So.2d 117 (Fla. 1st DCA 2003) (affirmed);
      8. Smith v. Fla. Dep’t of Corr., 861 So.2d 29 (Fla. 1st DCA 2003) (the trial court decision against Plaintiff was affirmed);
      9. Smith v. Jim Smith, et at., 864 So.2d 405 (Fla. 1st DCA 2003) (the trial court decision against Plaintiff was affirmed).

      . Although no Florida case addresses the constitutionality of the Vexatious Litigant Law, other states have upheld similar statutes against constitutional challenges. See Robin Miller, Annotation, Validity, Construction, and Application of State Vexatious Litigant Statutes, 2006 A.L.R.6th 4 (2006); Deborah L. Neveils, Comment, Florida’s Vexatious Litigant Law: An End To The Pro Se Litigant’s Courtroom Capers?, 25 Nova L.Rev. 343 (2000); Taliaferro v. Hoogs, 236 Cal.App.2d 521, 46 Cal.Rptr. 147 (Cal.App.1965).

      . In Mitchell v. Moore, 786 So.2d 521, 526 (Fla.2001), the supreme court identified three cases holding statutes to be constitutional under Article I, Section 21 because the "right of action at issue had been only marginally limited.” See, e.g., Chapman v. Dillon, 415 So.2d 12 (Fla. 1982) (threshold limits of no-fault statute provide a reasonable alternative to tort action and do not deny access to the courts); Purdy v. Gulf Breeze Enter., Inc., 403 So.2d 1325 (Fla. 1981) (statute requiring reimbursement of insurer for PIP benefits where insured recovers from negligent third party does not deny access to the courts); Pinillos v. Cedars of Lebanon Hosp. Coip., 403 So.2d 365 (Fla.1981) (admissibility of collateral source evidence in medical malpractice actions upheld).

      . We do not believe the “reasonable alternative benefit” test applies to this type of case. That test is appropriate where the legislature has cut off access to the courts for a type of action, but has provided an alternative means for judicial access. See Eller v. Shova, 630 So.2d 537 (Fla.1993) (holding that system of compensation that provided no-fault recovery was a reasonable alternative to the right to sue one's employer for a work related injury); Lasky v. State Fann Ins. Co., 296 So.2d 9 (Fla.1974) (upholding no fault law under Article I, section 21 because right to sue for certain damages was replaced with the ability to recover uncontested benefits and an exemption from tort liability).

      . '‘Security” is defined by the statute as "an undertaking by a vexatious litigant to ensure payment to a defendant in an amount reasonably sufficient to cover the defendant's anticipated, reasonable expenses of litigation, in-eluding attorney’s fees and taxable costs.” § 68.093(2)(c), Fla. Stat (2005). By use of the word "undertaking,” the statute contemplates a bond, cash or otherwise, that could be taxed at the conclusion of the case.

      . Because it was not raised in this case, we do not reach the issue of the constitutionality of that provision of section 68.093(3)(c), authorizing the dismissal of an action “with prejudice.” We leave for another day whether that provision satisfies the "narrowly tailored” requirement of strict scrutiny analysis.


source: Caselaw Access Project

license: Public Domain

text:
    Albert SALEEBY, Appellant, v. ROCKY ELSON CONSTRUCTION, INC., Appellee.
    Nos. 4D06-1535, 4D06-4349, 4D07-5.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Rehearing Denied Oct. 25, 2007.

      Dirán V. Seropian of Edna L. Caruso, P.A., West Palm Beach, Edward Rubinoff and Andrew M. Moss of Kutner, Rubinoff & Moss, P.A., Miami, for appellant.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, for appellee.
   GROSS, J.

Albert Saleeby appeals from an adverse final judgment precluding him, under the Workers’ Compensation Act, from recovering in tort against Rocky Elson Construction Company for injuries he sustained while working on a construction site. For the following reasons, we affirm.

Saleeby was employed by Labor for Hire, a help services supply company, to perform manual labor for various companies. Typically, Saleeby would report to Labor for Hire; if work was available, he would be given a work order indicating the company to which he was assigned and the supervisor to whom he should report. Once at the jobsite, Saleeby typically was instructed, supervised and controlled by the hiring company. Labor for Hire retained the exclusive right to fire Saleeby and was responsible for paying him at the end of each work day. Labor for Hire would then bill its customers, charging them for the hours worked by each Labor for Hire employee, plus amounts designed to cover Labor for Hire’s overhead, inelud-ing the cost of workers’ compensation insurance.

In December 1999, Rocky Elson requested temporary workers. Labor for Hire sent Saleeby and another laborer to a construction site. Once at the jobsite, Rocky Elson’s supervisor directed Saleeby to assist in erecting trusses. Saleeby’s duties included hooking trusses to a crane and holding taglines to prevent the trusses from swinging while in transit. After completing the day’s work, Saleeby and the rest of the construction crew were standing underneath the installed trusses when they collapsed and injured Saleeby.

After collecting workers’ compensation benefits from Labor for Hire, Saleeby filed a negligence complaint against Rocky El-son. Rocky Elson raised the defense of workers’ compensation immunity. At trial, Rocky Elson moved for a directed verdict based upon that immunity. The trial court granted the motion in part, finding Salee-by to be a borrowed servant under section 440.11(2), Florida Statutes (2000) but denied a directed verdict on the issue of whether Rocky Elson’s conduct fell within the intentional tort exception to workers’ compensation immunity. At the conclusion of trial, the jury found Rocky Elson was covered by worker’s compensation immunity.

On appeal, Saleeby argues that the trial court erred in directing a verdict on the borrowed servant issue. We disagree.

Pursuant to section 440.11(1), Florida Statutes (2000), the liability of an employer under the workers’ compensation law “shall be exclusive and in place of all other liability.” The employer’s immunity “is a quid pro quo; the employee forgoes the right to sue in exchange for the employer’s assumption of liability without fault.” Fitzgerald v. S. Broward Hosp. Dist., 840 So.2d 460 (Fla. 4th DCA 2008).

Florida law extends “workers’ compensation immunity to an employer who uses the employees of a ‘help supply services company.’ ” Tu-Lane Invs., Inc. v. Orr, 889 So.2d 961 (Fla. 1st DCA 2004); see § 440.11, Fla. Stat. (2000). “An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer.” § 440.11(2). Employee leasing companies, temporary help services, and labor pools are “help supply services companies]” for purposes of chapter 440. See Caramico v. Artcraft Indus. Inc., 727 So.2d 348, 349 (Fla. 5th DCA 1999).

It is undisputed that Labor for Hire was a help supply services company that sent its employee, Saleeby, to Rocky Elson as a temporary laborer. Rocky Elson personnel supervised, instructed, and controlled Saleeby, who in turn acted in the furtherance of Rocky Elson’s business. Therefore, Saleeby was Rocky Elson’s “borrowed employee” under section 440.11(2) and, as such, he was precluded from recovering against Rocky Elson in tort.

Saleeby microanalysis his employment experience to fashion an argument that he was not a borrowed servant; he contends that no contract arose between Rocky El-son and Labor for Hire, because there was no meeting of the minds between the companies as to the precise job Saleeby was to perform. However, section 440.11(2) does not require this level of precision. To be entitled to immunity, an employer need only “utilize the services” of the employee of a help supply company and the employee must be “acting in furtherance of the employer’s business.” § 440.11, Fla. Stat. (2002). There is no dispute that in this case Saleeby crossed this immunity threshold. He was injured not while performing work, but at the end of the day after his work was completed.

Relying on Coleman v. Mini-Mac Maintenance Service, Inc., 706 So.2d 393 (Fla. 1st DCA 1998), Saleeby argues that “if a borrowed servant engages in tasks beyond that for which he is loaned, the borrowed servant relationship fails.” Our reading of Coleman does not support this broad proposition.

In Coleman, Mini-Mac Maintenance Service cleaned floors for a Food World grocery store. Id. at 394. Mini-Mac was hired to do “scheduled floor cleanup and [was] not under contract to clean up occasional spills.” However, Mini-Mac employees would “sometimes clean up spills that occurred while they were doing routine floor maintenance if specifically asked to do so.” Id. A Mini-Mac employee cleaned up a salad oil spill; later a Food World employee fell in that area. His lawsuit contended that the spill clean up had not been adequate. Mini-Mac argued that its employee would have been a borrowed servant of the grocery store at the time he cleaned up the spill, so that the employee would have been entitled to workers’ compensation immunity as a fellow employer of the injured party. Id.

The first district held that the trial court properly denied summary judgment in favor of Mini-Mac on the immunity issue because questions of fact remained on whether the Mini-Mac mopper was Food World’s borrowed servant. Id. at 395. Unlike this case, involving a help supply services company in the business of providing “borrowed employees” to employers, Coleman concerns a case where it is doubtful that any “borrowed employee” relationship ever arose. Mini-Mac was a garden variety independent contractor grasping at workers’ compensation law to avoid liability. The case holds only that issues of fact surrounded the borrowed servant claim.

On another issue, Saleeby contended at trial that Rocky Elson was subject to tort liability under the intentional tort exception to workers’ compensation immunity. See Bakerman v. Bombay Co., 961 So.2d 259 (Fla.2007). Saleeby complains that the trial court improperly charged on this issue. We find no error in the jury instruction.

The trial court instructed the jury that an employer is liable for an employee’s work-related injuries, notwithstanding workers’ compensation immunity, if a “reasonably prudent person would have understood” that Rocky Elson’s conduct was substantially certain to result in injury. Saleeby argues that to properly instruct the jury the lower court should have used the terminology “the employer should have known.” While the trial court may have not used the exact language contained in Travelers Indemnity Co. v. PCR, Inc., 889 So.2d 779, 783 (Fla.2004), the instruction was sufficient to adequately charge the jury on the relevant law.

Under the Workers’ Compensation Act, immunity is lost if the “employer engaged in conduct which was substantially certain to result in injury.’ ” Id. at 797 (citing Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882 (Fla.1986)). “In order to prove substantial certainty, a plaintiff employee must demonstrate that the employer engaged in conduct that is at least worse than ‘gross negligence.’ ” Feraci v. Grundy Marine Constr., 315 F.Supp.2d 1197, 1205 (N.D.Fla.2004) (citing Turner v. PCR, Inc., 754 So.2d 683, 686 (Fla.2000); McClanahan v. State, 854 So.2d 793 (Fla. 2d DCA 2003)).

Florida adheres to an interpretation of the Workers’ Compensation Act that broadly preserves “immunity in the face of sometimes egregious acts by employers and managers.” Woodson v. Ivey, 917 So.2d 993, 996 (Fla. 5th DCA 2005); see also Byers v. Ritz, 890 So.2d 343, 346-47 (Fla. 3d DCA 2004). In analyzing factual scenarios against the backdrop of broad immunity, Florida courts have held employers immune from suit (1) where a supervisor refused to obtain plastic brushes because of expense, and the refusal led to the severe burning of an employee, see Emergency One, Inc. v. Keffer, 652 So.2d 1233, 1235 (Fla. 1st DCA 1995), and (2) where a supervisor removed a safety switch from a lawnmower, causing the employee to be thrown from the mower and injured. See Mekamy Oaks, Inc. v. Snyder, 659 So.2d 1290, 1291 (Fla. 5th DCA 1995). The jury instruction adequately conveyed the state of the law.

The jury instruction given was consistent with the supreme, court’s rulings on the “substantial certainty” exception to workers’ compensation'immunity. In Turner, 754 So.2d at 691, the supreme court wrote that: Under this objective test, a fact finder must examine the facts of a case to “determine whether a reasonable person would understand that the employer’s conduct was ‘substantially certain’ to result in injury or death to the employee.” Id. at 688; see Travelers Indem. Co., 889 So.2d at 783 (quoting Turner, 754 So.2d at 688). The standard given was not the subjective one rejected in Turner.

[The] intentional tort exception includes an objective standard to measure whether the employer engaged in conduct which was substantially certain to result in injury. This standard imputes intent upon employers in circumstances where injury or death is,objectively “substantially certain” to occur.

Finally, we conclude that the trial court did not abuse its discretion in admitting evidence of Saleeby’s settlement with A-l Roof Trusses Ltd., a previous defendant in this case. A-l Roof Trusses manufactured the trusses involved in the accident. At trial, Saleeby called John Herring, president of A-l Roof Trusses, as an expert witness. Herring opined that the trusses collapsed not due to a manufacturing defect, but because. of the way that they were installed. Herring had first rendered this opinion when he was a defendant with a pecuniary interest in the case.

Section 90.408 excludes evidence of a settlement to prove liability; courts may, however, admit settlement-related evidence if offered for other- purposes, such as proving witness bias or prejudice. See Dosdourian v. Carsten, 624 So.2d 241, 247 n. 4 (Fla.1993) (evidence of a settlement with a codefendant who remained in the case was admissible since “the jury was entitled to weigh the codefendant’s actions [at trial] in light of its knowledge that such a settlement has been reached”). Section 90.408 was enacted to protect against the prejudicial effect that settlement evidence may have on a jury. However, when settlement evidence goes to a witness’s “motivation[ ], interest, and position” the probative value of such proof of bias outweighs the danger of prejudice. See Ehrhardt, Florida Evidence § 408.1, Fla. Stat. (2003 ed.) (citing Dosdourian, 624 So.2d at 241; § 90.403, Fla. Stat. (2006)). A witness’s bias or improper motive is always an important factor to a jury’s credibility determination. See Russ v. City of Jacksonville, 734 So.2d 508, 511 (Fla. 1st DCA 1999).

Here, A-l Roof Trusses had a financial stake in the matter which could have impacted its president’s expert opinion. Evidence of the prior settlement was properly admitted to show potential bias.

We have considered Saleeby’s remaining points and find no error.

Affirmed.

STONE and POLEN, JJ., concur.

      . A 'help supply services company’ is defined by OSHA Standard Industry Code Industry Number 7363, as:
      Establishments primarily engaged in supplying temporary or continuing help on a contract or fee basis. The help supplied is always on the payroll of the supplying establishments, but is under the direct or general supervision of the business to whom the help is furnished.

        See St. Lucie Falls Prop. Owners Ass’n v. Morelli, 956 So.2d 1283, 1285 (Fla. 4th DCA 2007) (citations omitted).

      . Section 440.11, Florida Statutes (2002), states in pertinent part, that:
      (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death ...
      (2) The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer’s business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer. The employer shall be liable for and shall secure the payment of compensation to all such borrowed employees as required in s. 440.10, except when such payment has been secured by the help supply services company.

      . In 2003, the legislature amended section 440.11(1), requiring that a plaintiff-employee prove the existence of the intentional tort exception by "clear and convincing evidence." See Feraci, 315 F.Supp.2d at 1205 n. 11 (citing § 440.11 (l)(b), Fla. Stat. (2003)). Additionally, the legislature changed the substance of the exception by (1) replacing the "substantial certainty” standard with an elevated "virtually certain standard,” and requiring that “the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee.” Id. Section 440.1 l(l)(b), Florida Statutes (2003), does not apply retroactively. Id.

      . In Emergency One, the plaintiff was employed as a detailer cleaning fire trucks. 652 So.2d at 1234. As such, the plaintiff was expected to use a metal-banded detail brush and flammable lacquer thinner to -clean certain places on fire trucks. Id. These places included the battery compartment which housed a live battery bearing warnings about explosions. The battery emitted flammable hydrogen gas. Id. The plaintiff requested that her supervisor purchase plastic brushes in lieu of the metal ones. Her supervisor refused due to the expense, even though the supervisor was aware that electrical arcs had previously extended from the truck’s electrical sources to the metal-banded brushes. Id. While detailing a battery case, the plaintiff employee was severely burned when the metal band on her brush caused an electrical arc that ignited the lacquer thinner she was using.


author: LAGOA, J. GREEN, J.

text:
    The STATE of Florida, Appellant, v. Manuel CASTRO, Appellee.
    No. 3D06-1809.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2007.

      Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Seth J. Marks and Michael Mayer, Certified Legal Interns, for appel-lee.
    Before GREEN, SHEPHERD, and LAGOA, JJ.
   LAGOA, J.

The State appeals from an order denying restitution. We reverse and remand for a restitution hearing.

I. Factual and Procedural History

The appellee, Manuel Castro (“Castro”), was employed at a CVS pharmacy (“CVS”). On March 30, 2006, Castro was arrested after Patrick Fairly, the loss prevention specialist at CVS, found Castro leaving the store with a container full of men’s cologne. When the police arrived at CVS, Castro consented to a search of his car after advising the police that the cologne was inside the car. The cologne was returned to CVS and Castro was arrested. Fairly inventoried the merchandise, and the sworn complaint/arrest affidavit states that the value of the cologne was approximately $2,400. Castro was charged by information with one count of third degree grand theft of property valued at $300 or more but less than $5,000.

On June 5, 2006, the State advised the trial court that it was amending the information to charge second degree grand theft. Castro, however, agreed to plead to the correct amount of restitution without requiring the State to amend the information. The trial court reset the matter for June 19, 2006, in order to allow the parties time to “figure out the amount.”

At the June 19th hearing, Castro asked the trial court to reset the case in order to allow the State additional time to obtain documents from CVS regarding the amount. The trial court reset the matter for July 10, 2006, and stated “come to court clear on it Monday.” At the July 10th hearing, the State advised the trial court that three phone calls to Fairly had been made seeking to “obtain any further documentation from him [as to] the amount” but that Fairly failed to respond. In response, the trial court advised the parties that because Fairly “doesn’t care. I’ll accept probation and no restitution.” The State objected, requested a restitution hearing, and argued that as the result of a subsequent investigation, the estimate for restitution was now $9,700.

The trial court sentenced Castro to two years of probation and, over the State’s objection, waived restitution. Subsequently, the trial court entered an order denying restitution “since the allegation of loss was neither established, reasonable or credible, but rather was inflated, and probably per-jurious.” This appeal ensued.

II. Analysis

Restitution, unlike civil damages, is a criminal sanction. Kirby v. State, 863 So.2d 238, 242 (Fla.2003). “[T]he purpose of restitution is twofold (1) to compensate the victim and (2) to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system.” Id. Although restitution which is ordered pursuant to a defendant’s plea bargain should be liberally construed in favor of making the victim whole, see Hercule v. State, 655 So.2d 1256, 1257 (Fla. 3d DCA 1995), a restitution order pursuant to a plea “is an agreement between the defendant and the state” to which the victim is not a party. Kirby, 863 So.2d at 243 (quoting People v. Bernal, 101 Cal.App.4th 155, 123 Cal.Rptr.2d 622, 627 (2002)). Accordingly, “[w]hile the victim’s wishes concerning restitution are relevant, they are not dispositive — it is the judge, not the victim, who must weigh society’s competing needs.” Banks v. State, 732 So.2d 1065,1069 (Fla.1999).

Florida’s restitution statute requires the trial court to order restitution for damage or loss caused by the defendant’s offense, unless the trial court finds clear and compelling reasons not to do so. The trial court must state on the record its reasons for not ordering restitution. Section 775.089, Florida Statutes (2006), states, in relevant part:

(l)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution.
* ⅜ *
(b) 1. If the court does not order restitution, or orders restitution of only a portion of the damages, as provided in this section, it shall state on the record in detail the reasons therefor.-

(emphasis added).

Section 948.08, Florida Statutes (2006), concerning conditions of a defendant’s probation, also imposes a restitution requirement:

(1) The court shall determine the terms and conditions of probation.... These conditions may include among them the following, that the probationer or offender in community control shall:
(e) Make reparation or restitution to the aggrieved party for the damage or loss caused by his or her offense in an amount to be determined by the court. The court shall make such reparation or restitution a condition of probation, unless it determines that clear and compelling reasons exist to the contrary. If the court does not order restitution, or orders restitution of only a portion of the damages, as provided in s. 775.089, it shall state on the record in detail the reasons therefor.

(emphasis added).

Given the statutory requirements of both sections 775.089 and 948.03 that restitution be imposed absent “clear and compelling reasons” not to do so, we find that the trial court abused its discretion. Here, the trial court’s reason for denying restitution was not a “clear and compelling” reason. First, the trial court stated at the hearing that the victim was not interested in restitution. This is not in and of itself a “clear and compelling” reason as “the victim’s wishes concerning restitution are not relevant.” See Banks, 782 So.2d at 1069. Additionally, the trial court’s error is further compounded by the fact that Castro specifically agreed to restitution as a condition of his plea, and agreed to pay an amount of- restitution higher than that charged by the State in the information.

Moreover, the trial court’s written order finding that the allegation of loss was not “established, reasonable or credible, but rather was inflated, and probably perjurious” is also not supported by the record given that the trial court did not conduct a restitution hearing, and no evidence was presented below from which the trial court could have reached any of these conclusions. See State v. Hitchmon, 678 So.2d 460, 463 (Fla. 3d DCA 1996) (trial court’s order striking restitution condition on ground that victim had several opportunities to substantiate its loss but failed to do so was not supported by record; order reversed for proper restitution hearing).

Accordingly, we reverse the trial court’s order denying restitution and remand the matter to the trial court to conduct an evidentiary hearing on the proper amount of restitution. Any dispute as to the proper amount of restitution shall be resolved by the trial court by the preponderance of the evidence. See Section 775.089(7), Florida Statutes (2006).- See also Hitchmon, 678 So.2d at 463 (Fla. 3d DCA 1996). Moreover, if the trial court decides not to award restitution, it must provide detailed reasons on the record for the denial. See Section 775.089(l)(b)l.

Reversed and remanded.

SHEPHERD, J., concurs.

GREEN, J.

(dissenting).

In this case the State Attorney, on behalf of the victim, CVS Pharmacy, .claimed and sought additional restitution from defendant, Manuel Castro, above and beyond the value of the undamaged merchandise confiscated from him at the time of his arrest. Neither the victim nor the State was able to substantiate the claimed amounts with any evidence despite having-several opportunities to do so. In the absence of any such evidence, the trial court denied restitution pursuant to section 775.089(7), Florida Statutes (2006). The court specifically found that the victim’s claimed additional loss was “neither established, reasonable or credible but rather was inflated, and probably perjurious.”

As I see it, these stated reasons are the most “clear and compelling” reasons for a trial court not to award a request for restitution. § 775.089(l)(a), Fla. Stat. (2006). The Florida legislature certainly never intended for a crime victim to receive an unsubstantiated or unjustified windfall under the guise of restitution. Thus, for the following reasons, I cannot join the majority’s characterization or legal analysis of this case.

I

The facts and proceedings here are straightforward. Manuel Castro was employed as the assistant store supervisor at the victim store, CVS Pharmacy, in Hialeah, Florida. The CVS Loss Prevention Specialist, Patrick Fairley, placed this store under surveillance after receiving an anonymous tip that there was possible theft at the store. On the date in question, Fairley observed Castro leaving the store carrying a grey plastic container with the lid halfway open. Fairley noticed that the container had numerous bottles of men’s colognes. Castro placed the grey container in his car. Fairley called the police.

When the police arrived, they confronted Castro and he consented to a search of his car. The grey container of cologne was found in Castro’s car. Fairley positively identified it as property belonging to CVS. Castro was arrested. The merchandise was then inventoried by Fairley and returned to the store. The value of this merchandise was declared to be approximately $2,400 by Fairley.

On March 30, 2006, the State filed a one count information against Castro charging him with third degree grand theft for stealing merchandise with a value of more than $300 and less than $5,000. After two preliminary hearings, this case was set for a hearing on June 5, 2006, purportedly for the State to amend the information. The State, however, did not amend its information to charge second degree grand theft nor did it advise the Court that it would do so in the future. The defense, however, announced that the State did not need to amend its information and that Castro was willing to accept the State’s plea offer of a withhold of adjudication, and probation with restitution, based upon a correct determination of the restitution amount.

The court reset this case for hearing in two weeks, on June 19, 2006, for the parties to resolve the issue of the restitution amount. At that hearing, the State still did not have any documentation or other evidence from CVS to substantiate its additional claim of loss. Castro disputed the amount of the claimed losses and requested the Court to reset the case for however long the State needed to secure the supporting documents from CVS Pharmacy. The trial court reset this matter for July 10, 2006, for a plea and final determination of the restitution amount. • The Court instructed the parties to come to court clear on the issue of restitution at the July 10th hearing as there would be no further continuances.

Three weeks later, at the July 10 plea and restitution hearing, the State still did not provide any documentation or other evidence from CVS in support of its claimed additional losses. Fairley did not appear. In fact, no CVS representative appeared at this hearing. The defense advised the trial court that Castro had always stood prepared to accept the State’s offer of probation with restitution, but he disputed the amount of the claimed restitution in this case.

In response, the State announced that Fairley never returned any of the State’s repeated telephone calls requesting documentation in support of its additional restitution claim. It was within this context that the trial court denied the State’s request for additional restitution and accepted Castro’s plea of probation. The following exchange occurred:

[State Attorney]: I made three phone calls to the victim Patrick Fairley [phonetic] in this matter. Since that time he hasn’t returned any of my calls. I haven’t been able to obtain any further documentation from him why the amount is what it is. I left a detailed message of what I was asking for and, you know.
[The Court]: He never responded?
[State Attorney]: Never responded.
[The Court]: Then he doesn’t care. I’ll accept probation and no restitution. Swear him in.
[State Attorney]: We would be objecting to that. We would ask it be explored, have a restitution hearing at least.
[The Court]: Your objection is noted. The victim had the opportunity to respond and he didn’t.
[State Attorney]: He responded three times before when calling him, its not that he’s been totally non-responsive. He gave the initial amount, wanted to investigate the amount, since that time he hasn’t responded. I don’t know why he hasn’t called me back. At this time he could be out of the country for all I know.
[The Court]: $2400 for cologne.
[State Attorney]: That was the initial figure, then after subsequent investigation it came to a figure of $9,700.
[Trial Court]: How Much?
[State Attorney]: $9,700, because it was apparently it was originally about 12,000 and then 3,000 of that was recovered, which was coming up with the 9,000 figure. There’s been previous calls a hundred occasions on this, [sic] Recently I haven’t been able to call him. I don’t know if he’s not available or what the deal is. He’s had previous contact. I can’t say that of the record — he hasn’t been silent on the issue, its just recently he’s been silent on the issue.
[Defense Counsel]: Judge, just so you know where we came from on this. He was caught taking some stuff from his place of work and I as his attorney based on what he’s told me it seems like they found other things missing and may have dumped it all on him. I see that with other employers, I am not accusing them of anything, I just wanted to make sure that did not happen either. [The Court]: Was he caught with some cologne?
[Defense Counsel]: Right
[The Court]: $9700 worth? That would keep me in cologne for the next 1,000 years.
[State Attorney]: This was an ongoing problem. I don’t know how long he was 'doing this.
[The Court]: Swear him in

The trial court accepted Castro’s plea to two-years reporting probation with the special condition that he attend a “Values Course.” The trial court then entered its written order denying the State’s request for restitution. The trial court specifically stated in its written order that restitution was denied “since the allegation of loss was neither established, reasonable, nor credible, but rather was inflated, and probably perjurious.” The State appealed.

II

On this appeal, the State first argues that the trial courts had a mandatory obligation to include restitution as part of the criminal sentence in this case and that the trial court failed to justify its denial of restitution with clear and compelling reasons. The State next argues that the trial court prevented the victim from being heard on its claim for additional restitution. Contrary to the majority’s holding, the State’s first argument is without merit as a matter of established law and its second argument is factually belied by the record before us.

As a threshold matter, the prerequisite to the recovery of any restitution is that the victim’s claimed damages or losses be causally connected and bear a significant relationship to the defendant’s offense and that the damages or losses be related to the defendant’s criminal episode. Schuette v. State, 822 So.2d 1275 (Fla. 2002); Glaubius v. State, 688 So.2d 913, 915 (Fla.1997) (“court must find that the loss or damage is causally connected to the offense and bears a significant relationship to the offense.” (emphasis added)). Absent an agreement, a defendant may not be required to pay restitution for unrelated offenses for which s/he has not been charged or convicted. Strickland v. State, 685 So.2d 1365 (Fla. 2d DCA 1996); Barnes v. State, 489 So.2d 1182 (Fla. 2d DCA 1986) (a defendant can’t.be ordered to pay restitution for uncharged offenses). Thus, in this case, there must be proof initially that the cause of the victim’s claimed losses was the theft for .which Castro was charged in the information since Castro has never agreed to pay restitution for any other unrelated thefts at this store at other times. See Strickland. In Strickland the court ordered the defendant to pay as restitution the entire shortfall suffered by the victim’s business. This award was reversed because there was no evidence demonstrating that the entire amount of the loss was caused by the conduct for which the defendant was convicted. “[T]he restitution amount may not exceed the damage the criminal conduct caused the victim.” Gilileo v. State, 923 So.2d 612, 614 (Fla. 2d DCA 2006).

In this case,- the threshold prerequisite cannot be met. The record before us un-disputedly reveals that the stolen cologne was immediately seized from the defendant’s car and returned to the store upon Castro’s arrest. The victim has never claimed that any of the merchandise stolen by Castro on the date in question was not accounted for. Nor has the victim ever claimed that the recovered merchandise, which was immediately inventoried by the store’s loss prevention specialist, was damaged in any way on the date in question. These undisputed'facts alone support the trial court’s denial of restitution. See Thomas v. State, 899 So.2d 1279 (Fla. 2d DCA 2005) (defendant only liable for restitution for unrecovered items); Chapman v. State, 733 So.2d 1055 (Fla. 2d DCA 1999) (defendant not liable for restitution of stolen property found and recovered on defendant’s person upon arrest); Bowman v. State, 698 So.2d 615 (Fla. 2d DCA 1997) (defendant only responsible for value of property recovered as offset by property’s salvage value). Any other conclusion would permit the victim to recover its property, plus the cost thereof — an impermissible double recovery. See Kirby v. State, 863 So.2d 238 (Fla.2003). See also Maurer v. State, 939 So.2d 234 (Fla. 5th DCA 2006) (defendant can’t be ordered to pay restitution in excess of victim’s damages)(defendant not responsible for cost of items as restitution if items can be recovered).

This case is factually similar to Barnes, where the defendant was ordered to pay restitution for all of the shortages sustained by the victim — regardless of the fact that they were not related to Barnes’ charged offenses. The Second District correctly reversed that restitution order because the “damage must bear a significant relationship to the crime charged.” Barnes, 489 So.2d at 1183. The fact that the same victim sustained all of the losses does not alter this result. Barnes. Like Barnes, the record before ns indicates that there certainly may have been an ongoing theft problem at this particular CVS pharmacy. Absent his agreement to the contrary, however, Castro is only responsible for the store’s losses attributable to his charged March 30 theft.

Notwithstanding the foregoing, and the mandatory language of the restitution statutes, an order of restitution must be supported by evidence. The State bears the burden of establishing by a preponderance of the evidence the amount it and/or the victim seeks in. restitution. § 775.089(7), Fla. Stat. (2006); Glaubius, 688 So.2d at 916; Smith v. State, 941 So.2d 479 (Fla. 3d DCA 2006); Gilileo, 923 So.2d 612; Crosby v. State, 637 So.2d 341 (Fla. 2d DCA 1994). Despite three hearings on three separate occasions, neither the State nor the victim came forward with any evidence to support the victim’s claim for additional restitution. In the absence of any such evidence, the trial court properly concluded and stated that the victim’s allegation of loss was not established. Moreover, given the undisputed record fact that all of the merchandise stolen by Castro on the date of the offense was immediately recovered undamaged and returned to the victim, the trial court further properly and insightfully concluded that “any additional claim of losses by the victim were neither reasonable or credible, but rather inflated and probably perjurious.” It is readily apparent that the additional requested restitution was not for the March 30th theft, for which Castro was charged in this case. These are clear, compelling, and commonsensical reasons for denying restitution in this case and are fully supported by the record before us.

The State’s final argument that the victim in this case was somehow deprived of an opportunity to be heard at a restitution hearing is not only fallacious, but does not pass the good faith “wink test” on the record before us. There were at least three noticed hearings over the course of three months scheduled for the purpose of permitting the State to substantiate its restitution request for the victim’s claim of additional losses. Neither the State nor the victim ever stepped forward with supporting documentation at any of those hearings. On the record before us, it certainly cannot be concluded that the trial court’s refusal to continue this matter further at the final hearing on July 10, 2006, constituted an abuse of discretion. Koile v. State, 934 So.2d 1226, 1229 (Fla.2006); White v. State, 817 So.2d 799, 806 (Fla. 2002).

Thus, for all of the foregoing reasons, I believe that the majority’s holding is erroneous as a matter of law and the order entered by the very able, astute and veteran trial judge below should be affirmed.

      . The dissent asserts that the State failed to establish additional claimed damages beyond the $2,400 value of the returned cologne. In reaching this conclusion, the dissent overlooks the fact that Castro specifically agreed that the State did not need to amend its information to charge second degree grand theft, and further agreed to pay restitution in an amount greater than $2,400. The following exchange occurred:
      MR. ELORTEGE: We will plea[d] to the correct restitution. State, you don’t need to amend it.

        THE COURT: You are interested in entering — what is the offer, probation with restitution?
      MR. CLERMONT: Based on the amount it will be withhold [sic] and probation and restitution.
      THE COURT: Whatever the amount of restitution. is that is okay with you?
      MR. ELORTEGE: That is fine. I told the State if it is around five we'll ask for PTI.

      . The standard of review when reviewing a trial court’s determination as to the proper amount of restitution is abuse of discretion. Koile v. State, 934 So.2d 1226, 1229 (Fla.2006).

      . The following transpired:
      [Court]: Why do I have it set for new Information? Are you amending the Information?
      [State]: This was Ms. Bowling’s case. I wasn't aware it was being amended. It is charged as a grand theft third.
      [Court]: Let me see the A-form and Information, please, Thelma.
      [State]: The restitution amount according to Ms. Bowling is a larger amount that [sic] was originally assessed, that will change it to grand theft second.
      [Court]: It is charged as a grand theft third. It is larger than originally thought?
      [State]: Yes.
      [Court]: She was going to amend it to a grand theft second, is that what it is?
      [State]: That is my guess. It looks like she got an amount of 13 thousand 100 hundred [sic].
      [Court]: That is still a third, right?
      [State]: I’m sorry. I can't read his notes. [Court]: Second doesn't begin until 20 thousand.
      [State]: The defense heard, he mentioned 20 thousand.

        [Defense]: She said she thought it was around 20, she didn’t know for sure. Did she have a new Information in the file? [Court]: No. I still see the old third degree grand theft Information. Let me have a report and trial date.

      .Although the trial court did not utter the words "restitution hearing,” it is clear from the record that the court expected the claimed restitution amount to be established at the next hearing, as that was the sole unresolved issue in this'case.
      [State]: If you give us one week.
      [Court]: I will reset it one week and we will figure out the amount. It is more than one week because I won’t be back until the 15th. You want to set it June 16th? [Calendar Clerk]: How about the 19th? [Court]: Reset 6-19. Come back on that day, sir. And we will try to get it resolved. [Defendant]: Okay.

      . The Defense stated:
      [Defense]: Maybe we should pass it for the other prosecutor, the one I talked to about the offer of probation and restitution of $970. My client disputed that amount. He needs to get a little more detail from the victim. I ask to reset it just for how long it takes him [sic] get the documents from the CVS pharmacy.

      . [Defense]: Yes, Judge. I don’t know if the State recalls, but we have an offer we are going to be accepting which was probation, but there was a question as to the exact amount of restitution, and I had asked counsel if he can maybe obtain documents of that before he agreed to it by checking with the victim. It seems to be that its twice as much what my client, thought it should be. He’s going to accept probation, restitution, we just want to get a footing on that restitution.

      . Similarly, in the probation statute cited by the majority, restitution awarded to the aggrieved party as a condition to probation must be for damage or loss caused by the defendant's offense. See op. at 219.

      . Even if the value of the stolen merchandise was greater than $2400, this information would only be relevant to the degree of theft for which Castro was guilty. It would still not entitle CVS to restitution as that merchandise was recovered and returned to the store.

      . Castro has only agreed to be responsible for properly documented losses sustained by the store as a result of this theft on March 30th. Indeed, the very reason why he has always insisted upon supporting documentation at the various restitution hearings below was to ensure that he was not being asked to pay for other losses on other occasions at this store.


author: PER CURIAM.

text:
    Miguel LAGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1336.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2007.

      Mills and Carlin, P.A., and John S. Mills, Jacksonville, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN and RAMIREZ, JJ.
   On Motion for Rehearing

PER CURIAM.

We grant the motion for rehearing, withdraw our prior opinion filed November 15, 2006, and substitute the following in its stead.

The appellant, Miguel Lago, appeals from the denial of his Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence. We treat this appeal as a petition for common law habeas corpus and grant the same.

Lago was convicted and sentenced in 1990 to consecutive sentences for robbery with a firearm and unlawful possession of a firearm while engaged in a criminal offense. Both convictions arose out of the same robbery of the same victim. After an unsuccessful direct appeal and several unsuccessful pro se post-conviction challenges to his convictions and sentences, Lago filed a Rule 3.800 motion to correct illegal sentence in November 2005 on the grounds that his consecutive sentences were violative of his constitutional protection against double jeopardy. See Hall v. State, 517 So.2d 678 (Fla.1988). For the first time since his direct appeal, counsel appeared on behalf of Lago and argued the motion to the trial court. Although raised by Lago in his prior pro se post-conviction motions, this was the first time that Lago had counsel to assist him in raising his double jeopardy claim. The State opposed Lago’s motion on the grounds of “law of the case.” Although the trial court found Lago’s sentence to be “patently illegal,” it denied the motion, on law of the case- grounds. Specifically, the trial court found that:

The defendant, through counsel, has made a compelling case that his sentence is patently illegal.... Additionally, it is plain from the face of the record that the defendant received ineffective assistance of appellate counsel in his direct appeal and that, ... he would have had his sentence on Count II [possession of a firearm during the commission of a felony] vacated had any of his prior filings been deemed to have raised an ineffective assistance claim.
⅝ ⅜ ⅜
Nonetheless, the Court is constrained to deny relief in this case, even though it works, and this Court expressly finds, a manifest injustice in this ease.

Because we agree that Lago’s sentence for possession of a firearm during the commission of a felony is violative of the double jeopardy clause, and thus “patently illegal,” we find that his consecutive sentence for the same to be manifestly unjust. We also agree that the trial court’s denial of Lago’s Rule 3.800 motion was proper on law of the case grounds. This, however, does not preclude us from correcting Lago’s sentencing error. See Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla.1965)(recognizing appellate court’s power to reconsider and correct ruling that has become “law of the case” where adherence to ruling would result in manifest injustice). Where, as here, a manifest injustice has occurred it is the responsibility of the court to correct that injustice, if it can. See Adams v. State, 957 So.2d 1183 (Fla. 3d DCA 2007).

Accordingly, we treat Lago’s appeal as a petition for writ of habeas corpus and grant the same. See Ross v. State, 901 So.2d 252 (Fla. 4th DCA 2005)(habeas corpus relief granted, despite law of the case doctrine, where manifest injustice had occurred). We therefore remand this case with instructions that Lago be resentenced in accordance with this opinion.

Petition granted.

      . Although Hall was good law at the time of Lago's conviction, his appellate counsel did not raise a double jeopardy claim on his direct appeal. This type of failure has since been held to constitute ineffective assistance of appellate counsel, requiring that the possession of a firearm conviction be vacated. See Dixon v. Singletary, 672 So.2d 602 (Fla. 3d DCA 1996).


author: WARNER, J.

text:
    Phu TRAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3933.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.

      Nellie L. King of The Law Offices of Nellie L. King, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant Phu Tran challenges the order of the trial court imposing medroxypro-gesterone acetate (MPA) injections (also known as chemical castration) for a period of five years subsequent to his two consecutive sentences of imprisonment for two separate sexual batteries. The trial court imposed the penalty approximately four months after the sentencing hearing. Because the imposition of the subsequent penalty violates double jeopardy, we reverse.

Tran digitally penetrated two different women while giving them a massage at a nail parlor. He was charged and ultimately convicted of two different sexual batteries. For the first charge, he was sentenced to eight years in prison.

After he was convicted for the second charge, the trial court held a sentencing hearing on May 19, 2005. The trial court orally imposed a sentence of twelve years’ imprisonment, to run consecutive to the eight-year prison term imposed in the pri- or ease. Because this was Tran’s second conviction for sexual battery, at the sentencing hearing the trial court considered whether to order the administration of MPA to Tran pursuant to section 794.0235, Florida Statutes. MPA is a drug which produces what in lay terms is understood as chemical castration. After much discussion, the court determined that it was obligated to impose MPA injections. However/it specifically did not set a duration and reserved ruling pending an evaluation from a “court-appointed expert” that Tran is a candidate for MPA, as provided in the statute. The written sentence did not include any provision for MPA after release from prison.

Approximately four months later, the court held a hearing at which a psychiatrist testified that Tran was a candidate for MPA injections. The doctor testified that she believed Tran should be given MPA indefinitely. After listening to the testimony, hearing argument, and consulting materials provided both by the state and the defense, the trial court ordered that MPA be administered for five years after Tran’s release from prison. From this sentence, Tran appeals.

Although Tran raises multiple challenges to the constitutionality of section 794.0235 and to the procedures used to determine the imposition of MPA in his case, we conclude that the court’s order sentencing Tran to a duration of MPA, which sentence was imposed four months after his sentencing hearing at which the court imposed a prison sentence, constitutes a .violation of double jeopardy. We thus reverse.

Section 794.0235, Florida Statutes, entitled “Administration of medroxyprogester-one acetate (MPA) to persons convicted of sexual battery,” provides in relevant part:

(1) Notwithstanding any other law, the court:
(b) Shall sentence a defendant to be treated with medroxyprogesterone acetate (MPA), according to a schedule of administration monitored by the Department of Corrections, if the defendant is convicted of sexual battery as described in s. 794.011 and the defendant has a prior conviction of sexual battery under s. 794.011.
If the court sentences a defendant to be treated with medroxyprogesterone acetate (MPA), the penalty may not be imposed in lieu of, or reduce, any other penalty prescribed under s. 794.011....
(2)(a) An order of the court sentencing a defendant to medroxyprogesterone acetate (MPA) treatment under subsection (1), shall be contingent upon a determination by a court appointed medical expert, that the defendant is an appropriate candidate for treatment. Such determination is to be made not later than 60 days from the imposition of sentence. Notwithstanding the statutory maximum periods of incarceration as provided in s. 775.082, an order of the court sentencing a defendant to medroxyprogesterone acetate (MPA) treatment shall specify the duration of treatment for a specific term of years, or in the discretion of the court, up to the life of the defendant.

The state contends that the MPA statute is for treatment purposes and does not constitute punishment for double jeopardy purposes. Second, the state argues that even if the statute is for punishment purposes, as long as MPA treatment is ordered at sentencing, the final determination as to the appropriateness of such treatment could be made thereafter without creating a double jeopardy violation.

We reject the state’s contention that the MPA statute is for remedial treatment purposes, as opposed to punishment. The language of the entire statute speaks of MPA in terms of a sentence and a penalty. In the context of civil commitment proceedings for sexually violent predators, the Supreme Court has indicated that “[t]he categorization of a particular proceeding as civil or criminal ‘is first of all a question of statutory construction.’ ” Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (quoting Allen v. Illinois, 478 U.S. 364, 368, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986)). As a matter of statutory construction, it would appear that a sentence to administration of MPA does constitute punishment. Pursuant to the statutory scheme, the administration of MPA is imposed as part of a criminal sentence. Indeed, section 794.0235 is placed within Florida’s criminal code, rather than under Florida’s public health code. Compare §§ 394.910-.931, Fla. Stat. (2006) (Involuntary Civil Commitment of Sexually Violent Predators). Since the legislature has deemed MPA treatment a penalty, we conclude that it is part of the defendant’s punishment and sentence.

The state also contends that the court’s oral order at the sentencing hearing that it would impose the administration of MPA prevents the application of double jeopardy to the subsequent determination of the duration of the drug -administration. We disagree.

“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). This rule applies even if the original sentence was illegal or otherwise erroneous and the correction conforms to applicable law or to the court’s and parties’ intentions at sentencing. Pate v. State, 908 So.2d 613, 614 (Fla. 2d DCA 2005). Moreover, subsequent imposition of new conditions or terms to a sentence or order of probation has been held, to violate a defendant’s constitutional right against double jeopardy. See Justice v. State, 674 So.2d 123, 125-26 (Fla.1996).

The state attempts to distinguish Ashley on the ground that MPA treatment was orally pronounced at sentencing. Although it is true that at sentencing the trial court ordered the administration of MPA to Tran, the court failed to specify the duration of treatment. This is directly contrary to the statute, which requires that the court’s sentencing order “shall specify the duration of treatment for a specific term of years, or in the discretion of the court, up to the life of the defendant.” § 794.0235(2)(a), Fla. Stat.; see also Jackson v. State, 907 So.2d 696, 698-99 (Fla. 4th DCA 2005); Houston v. State, 852 So.2d 425, 428 (Fla. 5th DCA 2003). The trial court could not “reserve ruling” on that issue pending the outcome of the psychiatrist’s determination of whether Tran was an “appropriate candidate” for treatment. By failing to specify a duration of treatment, the trial court’s imposition of MPA treatment at sentencing did not satisfy the mandatory requirements of the MPA statute and was not a valid portion of Tran’s sentence. Once Tran began serving his sentence, the trial court’s subsequent order of MPA injections for a period of five years violated double jeopardy principles because it amounted to a more onerous punishment.

Although the trial court wanted to hear from the expert regarding Tran being a candidate for receiving MPA, the statute does not require expert evidence as to the duration of MPA. Under the statute the duration appears to be within the trial court’s discretion. The duration must be ordered at sentencing, apparently unguided by the presentation of any expert evidence on the appropriateness of MPA for the particular defendant. However, whatever duration is chosen, the sixty-day period for determination that the defendant is an appropriate candidate for MPA coincides with the sixty days in which a trial court has discretion to mitigate a sentence under Florida Rule of Criminal Procedure 3.800(c). Thus, should the court determine either that the defendant is not an appropriate candidate or conclude that the original term ordered is excessive, the court has the opportunity to adjust the sentence during that period.

Because Tran had already begun serving his sentence at the time the trial court ordered Tran to undergo the involuntary administration of MPA, the sentence to MPA violated double jeopardy. We therefore reverse. As a result, we decline to address the other issues raised by Tran, including those challenging the constitutionality of the statute.

KLEIN and HAZOURI, JJ., concur.


text:
    NATIONAL EQUITY RECOVERY SERVICES, INC., Appellant, v. R.O.G. INVESTMENTS, INC., Appellee.
    No. 3D06-1116.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2007.
    Kevin Coyle Colbert, Miami, for appellant.
    No appearance for appellee.
    Before RAMIREZ, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

National Equity Recovery Services, Inc. appeals the denial of its motion for leave to intervene and to disburse excess funds in the underlying mortgage foreclosure action. We are compelled to reverse because there is no appearance in this Court on behalf of parties R.O.G. Investments, Inc., Marvin Hall, and Idriana Rodriguez, and the trial court in this case summarily denied the motion to intervene without the benefit of any argument from counsel or the introduction of any evidence. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)(abuse of discretion lies where a judicial action appears arbitrary and unreasonable); Barnhill v. Florida Microsoft Anti-Trust Litigation, 905 So.2d 195, 199 (Fla. 3d DCA 2005)(abuse of discretion standard governs a review of the denial of a motion to intervene).

Reversed.


text:
    STATE of Florida, Appellant, v. Billy BLACKBURN, Appellee.
    No. 4D07-431.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Rehearing Denied Oct. 25, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   GROSS, J.

Billy Blackburn entered an open no contest plea to battery upon a person over the age of 65 in violation of sections 784.03(1) and 784.08(2)(c), Florida Statutes (2005). Over the state’s objection, the trial court sentenced Blackburn as a youthful offender, withheld adjudication of guilt, and placed him on three years of probation.

The state relies on the language of section 784.08 to argue that the court erred in withholding adjudication. Section 784.08(2)(c) elevates a misdemeanor battery on a victim 65 years of age or older to a third degree felony. Section 784.08(3) provides:

Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld.

Section 948.01, Florida Statutes (2005), is the statute that generally sets forth the sentencing options of probation and community control.

Blackburn points to section 958.04(2)(a), Florida Statutes (2005), which provides that “[i]n lieu of other criminal penalties authorized by law,” a court may place a youthful offender “on probation or in a community control program, with or without adjudication of guilt.”

We hold that the youthful offender statute trumps section 784.08(3) and controls the sentence in this case. “The Youthful Offender Act is a separate statutory scheme for treating young defendants to whom the Act applies.” Mendez v. State, 835 So.2d 348, 349 (Fla. 4th DCA 2003). Where the two sentencing statutes are susceptible of differing constructions, this court must construe the statutes favorably to the accused. See § 775.021(1), Fla. Stat. (2005); State v. Drury, 829 So.2d 287, 289 (Fla. 1st DCA 2002). The youthful offender statute indicates that it is to apply “[i]n lieu of other criminal penalties authorized by law.” The provision in section 784.08(3) concerning adjudication of guilt is one such penalty authorized by law. Had the legislature desired to require adjudication of youthful offenders, section 784.08(3) would have begun: “Notwithstanding the provisions of ss. 948.01 and 958.04.... ” (Emphasis added).

Affirmed.

STONE and POLEN, JJ., concur.


author: . LAWSON, J. THOMPSON, J.,

text:
    NU-VISION, LLC, etc., Petitioner, v. CORPORATE CONVENIENCE, INC., Respondent.
    No. 5D06-3815.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2007.

      Mark S. Reisinger, of Railey & Harding, P.A., Orlando, for Petitioner.
    James S. Toscano and Jennifer R. Dixon, Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Respondent.
   . LAWSON, J.

Petitioner Nu-Vision, LLC, (“Nu-Vision”), seeks certiorari review of an order granting respondent Corporate Convenience’s, (“Convenience”), motion to. discharge a lis pendens placed on real property. Nu-Vision filed its notice of lis pendens in connection with its claim , for specific performance of a purported option to purchase the property from Convenience. Finding that the lis pendens was properly dissolved, we deny certiora-ri.

Convenience owns commercial real estate in Orlando. On December 16, 2004, Nu-Vision tendered ■ a letter to Convenience proposing a thirty-six-month commercial lease and “purchase agreement,” setting forth a scaled purchase price from $950,000 to $1,050,000, depending upon when during the lease period the transaction occurred. Additional terms for the purchase were not included in the letter. Rather, it states that “a contract will follow” if both parties sign the letter.

Both parties signed the letter, and subsequently executed ■ a nineteen-page commercial lease agreement. The lease contained a standard integration clause, reciting that it included all promises, agreements and understandings between the parties and that no additional “covenants, promises, agreements, conditions or understanding, either oral or written exist other than are herein set forth.” The lease, however, only contains one oblique reference to the potential purchase. A paragraph requiring Nu-Vision to make a $15,000 security deposit contains the following sentence: “If building is purchased prior to March 1, 2005 then the $15,000.00 is to be a down payment.” Nu-Vision did not attempt to purchase the property at anytime in 2005.

In 2006, the business relationship between the parties deteriorated. Convenience filed a suit for eviction on July 18, 2006, alleging that Nu-Vision had breached its lease by failing to pay rent, and that Convenience had exercised its right to terminate the lease agreement. In response, Nu-Vision filed an answer and counterclaim, alleging that it had attempted to exercise its purchase option in May 2006, and had met several times with Convenience in an attempt to work out “additional terms and' conditions” for the sale. According to Nu-Vision’s pleading, Convenience orally “agreed to certain terms for the sale” and represented that “it would discuss the terms and conditions of the sale with its attorney and provide a contract” to Nu-Vision. According to the counterclaim, however, Nu-Vision never heard back from Convenience, and then received the eviction complaint.

Based solely upon the December 16, 2004 letter, which Nu-Vision describes as an “option agreement,” Nu-Vision attempts to state a cause of action for specific performance. Alternatively, Nu-Vision’s counterclaim seeks damages for Convenience’s alleged breach of the agreement. In connection with its specific performance claim, Nu-Vision filed a notice of lis pendens to protect its interest in the property and to put others (including potential purchasers) on notice that its claim clouds the property’s title. This is the appropriate use for a lis pendens notice under the statute governing lis pendens in Florida. See § 48.23, Fla. Stat. (2006); Chiusolo v. Kennedy, 614 So.2d 491 (Fla.1993). And, a lis pendens should not be dissolved if the proponent “can establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.” Id. at 492. However, establishing a “fair nexus” between a claim in litigation and the property’s title requires a little more than simply pleading a theoretical nexus.

“To establish a fair nexus requires the showing of a ‘good faith, viable claim.’ ” Bergmann v. Slater, 922 So.2d 1110, 1112 (Fla. 4th DCA 2006) quoting Acapulco Constr., Inc. v. Redavo Estates, Inc., 645 So.2d 182, 183 (Fla. 3d DCA 1994). In this case, Nu-Vision cannot make that showing because the December 16, 2004 letter cannot support an action for specific performance as a matter of law.

For a real estate purchase contract to be enforceable through specific performance it must first be “embodied in one or more written documents or memo-randa signed by the party against whom enforcement is sought.” De Vaux v. Westwood Baptist Church, 953 So.2d 677, 681 (Fla. 1st DCA 2007). Additionally, “the writings must include all of the essential terms of the purchase and sale, and those terms may not be provided by resort to parol evidence.” Id. (citations omitted). We also note that the sufficiency of a complaint in a civil action is a question of law, to be determined from “the four corners of the complaint and the attachments incorporated into the complaint.” Id. We therefore determine questions regarding the sufficiency of a civil cotnplaint pursuant to a de novo standard of review. Id.

In this case, the letter relied upon by Nu-Vision contains nothing more than an address for the property, the names of the parties, and a sliding scale for the purchase price. A document containing only these terms is insufficient to support a claim for specific performance of a commercial real estate sale. Id.; Fox v. Sails at Laguna Club Dev. Corp., 403 So.2d 456, 458 (Fla. 3d DCA 1981); Cohodas v. Russell, 289 So.2d 55, 57 (Fla. 2d DCA 1974). Additionally, “where it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds.” De Vaux, 953 So.2d at 681 (citations omitted). Here, Nu-Vision’s counterclaim alleges that after notifying Convenience of its desire to buy the property, Nu-Vision began negotiations with Convenience as to the terms for sale, and reached some oral understanding as to those terms. However, Nu-Vision also alleges that Convenience never executed a document memorializing whatever oral agreement the parties purportedly reached. Therefore, it is clear from Nu-Vision’s own allegations that the parties did not consummate a written agreement that contained elements both parties deemed to be essential. We note that “[a] lesser degree of certainty is required to afford relief for damages than is necessary to decree specific performance,” Fox, 403 So.2d at 456 (citations omitted), and make no comment as to the viability of Nu-Vision’s claim for damages. However, with respect to the specific performance count, we find that the complaint fails to state a cause of action, and could not therefore support a finding of a “fair nexus” as a matter of law. Because the lis pendens was properly dissolved, Nu-Vision cannot demonstrate any departure from the essential requirements of the law, and certiorari must be denied.

In his dissent, Judge Thompson opines that the “fair nexus” standard does not include any review as to the merits of the lis pendens proponent’s underlying claim. We respect Judge Thompson’s view, and agree that Chiusolo could be read in the manner he suggests. We also recognize that doing so would lead to a different result in this case. In Chiusolo, our Supreme Court held that the proponent of a lis pendens did not need to demonstrate a “substantial likelihood of success on the merits” of his or her claim in order to maintain a lis pendens for the duration of the suit. 614 So.2d at 492. In our view, however, Chiusolo simply left unanswered the question as to the quantum of proof required of a lis pendens proponent to succeed in defending against a motion to dissolve the lis pendens. The Court stated only that “the burden of proof rests on the proponent” and that the “quantum of proof is not as severe as” the substantial likelihood of success on the merits standard necessary to maintain a temporary injunction under Florida law. Id. at 492 n. 2. The Court would not have needed to place the burden of proof on either party if there was nothing to prove — which would be the case if any allegation in a pleading that states a theoretical connection to the title in real property was sufficient to maintain a lis pendens throughout the litigation.

In our view, it would also be contrary to sound public policy to allow a lis pendens proponent to tie up real property belonging to another person when the proponent cannot even make a minimal showing that there is at least some basis for the underlying claim. And, requiring the proponent to show that he or she has a good faith basis to allege the facts supporting a claim, and that the facts alleged would at least state a viable claim, if true, is completely consistent with the policy concerns articulated in Chiusolo.

The Chiusolo court was concerned that “future purchasers or encumbrancers” of real property would be placed at unnecessary risk under a standard requiring the lis pendens to be dissolved where the proponent has a viable claim affecting title to the property, but simply could not make the higher showing of a substantial likelihood of success on the merits at an early evidentiary hearing. Given ■ the low threshold set by the standard articulated in Bergmann and Acapulco Construction, and which we apply here, we see no danger that trial courts will be dissolving lis pendens that are necessary to put others on notice that a claim of possible merit clouds title to property. For these reasons, we have elected to follow the definition of “fair nexus” adopted by the Third and Fourth Districts after Chiusolo, which requires the proponent to demonstrate a good faith, viable claim.

CERTIORARI DENIED.

TORPY, J., concurring.

THOMPSON, J., dissents with opinion.

THOMPSON, J.,

dissenting.

I respectfully dissent. In my view, the Supreme Court’s decision in Chiusolo v. Kennedy, 614 So.2d 491 (Fla.1993), does not leave room for any analysis as to the viability of the claim supporting a notice of lis pendens. Under Chiusolo, a trial court may not discharge a lis pendens if the proponent has alleged a cause of action that, if established, would affect title to the real property subject to the lis pendens. Therefore, I would grant the writ and quash the order on review, and would also certify conflict with Bergmann v. Slater, 922 So.2d 1110 (Fla. 4th DCA 2006), and Acapulco Construction, Inc. v. Redavo Estates, Inc., 645 So.2d 182 (Fla. 3d DCA 1994). These cases add a test regarding viability of the underlying claim to the “fair nexus” analysis which simply does not exist in Chiusolo. Irrespective of arguments regarding the wisdom of Chiusolo, we are bound to follow its express holding.


text:
    Michael K. TOWNSHEND, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1520.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2007.

      Valerie Masters, of Valerie Masters, P.A., West Palm Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Michael K. Townshend was charged by information with one count of racketeering (count 1), ten counts of criminal use of personal identification information (counts 2-11), and six counts of grand theft (counts 12-17). Mr. Townshend was found guilty on all counts, except count 14. He now appeals. Having carefully considered the record, we affirm in all respects except as to counts 10 and 15. As to those counts, we reverse and remand with directions that those convictions be vacated.

To prove fraudulent use of personal identification information, the State must show that the defendant: “(1) willfully and fraudulently [used or possessed] with intent to fraudulently use; (2) another person’s personal identification information; and (3) without that person’s authorization or prior consent.” Sibley v. State, 955 So.2d 1222, 1226 (Fla. 5th DCA 2007); see § 817.568(2)(a), Fla. Stat. (2003). With respect to count 10, the State failed to prove that the alleged victim had not authorized Mr. Townshend to use his personal information. Accordingly, this conviction must be vacated. As to count 15, grand theft, the State failed to present any evidence that Mr. Townshend passed a fraudulently written check, thereby obtaining goods from an office supply store. Consequently, this conviction must be vacated as well.

In all other respects, the convictions are affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

PLEUS, ORFINGER and EVANDER, JJ., concur.

      . § 895.03(3), Fla. Stat. (2003).

      . § 817.568(2)(a), Fla. Stat. (2003).

      .§ 812.014(2)(c)l., Fla. Stat. (2003).


author: LAWSON, J.

text:
    T.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1385.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2007.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

T.H. appeals an order denying his motion to withdraw plea, filed after he was sentenced on the charge of felony battery. The State properly concedes error, and we reverse.

The State originally charged T.H. with aggravated battery (a second degree felony) and felony battery (a third degree felony), for punching another child in the face. On the day of the trial, T.H. and the State entered into a plea agreement calling for T.H. to plead no contest to the felony battery charge in exchange for a one-year probationary sentence and the State’s agreement to nolle pros the aggravated battery count.

After a thorough plea colloquy, the trial court accepted T.H.’s plea, but sentenced him to a significantly longer probationary period than the one agreed to by T.H. and the State. When the trial judge did not impose the agreed sentence, T.H. moved to withdraw his plea, citing Goins v. State, 672 So.2d 30 (Fla.1996). The Court in Goins instructs that when there has been a firm agreement for a specified sentence and the judge determines to impose a greater sentence, the defendant has the right to withdraw the plea. Id. at 31.

The trial judge denied T.H.’s motion, reasoning that because the record reflected that T.H. was at all times aware that the court was not bound to honor the plea agreement, there was no reason to allow T.H. to withdraw his plea based upon his displeasure with the ultimate sentence. Although the trial judge’s basis for denying T.H.’s motion is reasonable, we find it to be inconsistent with the holding in Goins. As stated by the dissent in Goins, the defendant in that case also “knew the judge was not bound by the plea agreement.” 672 So.2d at 33 (Anstead, J., dissenting).

Under Goins, in cases involving an open plea to thé bench, with only a State recommendation, the plea is clearly binding as long as the defendant knows that the judge can give any legal sentence. In those cases, the defendant cannot withdraw his or her plea based upon dissatisfaction with the ultimate sentence. However, where the State enters into a plea bargain involving an “agreed” sentence, the trial court cannot simply take the plea and impose a greater sentence. If, as appears to be the case here, the trial judge has concluded before accepting the plea that he or she is not comfortable with the agreed sentence in a plea agreement case, the court has several options that would not run afoul of the rule in Goins. First, the court could go ahead and take the plea, impose the sentence, and then allow the defendant to withdraw the plea if different from that agreed. Alternatively, the judge could inform the parties before accepting the plea that the plea deal is unacceptable, and explain to the defendant that he or she can either go to trial or enter an open plea to the court. Obviously, if the defendant then decided to enter an open plea to the court, that plea would be binding-and could not be withdrawn based upon displeasure with the sentence. Another alternative would be for the trial judge to allow the parties to negotiate a new deal. For example, in this case, the trial judge could have indicated that he would not accept a plea agreement with such a short term of probation, but allow the parties time to negotiate and tender a new plea deal that increased the probationary sentence.

As the State has properly conceded in this case, however, given that T.H. entered his plea with a firm agreement from the State as to the sanction to be imposed, the trial court was required to allow T.H. to withdraw his plea after imposing a greater sentence.

REVERSED AND REMANDED.

PLEUS and EVANDER, JJ., concur.

      . T.H. and another juvenile both punched the victim, who suffered a broken nose. Despite T.H.’s contention to the contrary, it is unclear which of the two assailants threw the punch that caused the fracture.

      . In fact, it appears that three of the seven justices who decided Goins would have adopted a rule similar to the one applied by the trial judge here.


text:
    Sylvio MONTINA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3599.
    District Court of Appeal of Florida, Fifth District.
    Sept. 11, 2007.
    James S. Purdy, Public Defender, and Michael Olshefski, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant

      Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982), review denied, 426 So.2d 25 (Fla.1983).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Teva Devon BRADLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3268.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2007.
    Teva Devon Bradley, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.


text:
    Jonathan Sinclair CRUZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4377.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2007.
    Jonathan Sinclair Cruz, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.