author: COPE, J.

text:
    WAVESTONE PROPERTIES, LLC, and 17315 Collins Avenue, LLC, Appellants, v. FORTUNE DEVELOPMENT SALES CORPORATION, Appellee.
    Nos. 3D07-1799, 3D07-1798.
    District Court of Appeal of Florida, Third District.
    March 26, 2008.
    Gray Robinson, P.A., and Monterey Campbell, III, and Kristie Hatcher-Bolin, Lakeland; Gary S. Salzman, Orlando, and Jeffrey T. Kuntz, Fort Lauderdale, for appellants.
    Kenny Nachwalter and Richard H. Critchlow and Christina M. Ceballos-Levy and Robert J. Alwine, II, Miami, for appel-lee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   COPE, J.

This is an appeal of an order granting a temporary injunction and other relief in proceedings supplementary. We affirm in part and reverse in part.

Plaintiff Fortune Development Sales Corporation obtained a final judgment for $1,509,899 against defendant-appellant Wavestone Properties, LLC. The judgment was entered after a bench trial determining that Wavestone had breached an exclusive real estate listing agreement between Fortune, as broker, and Wavestone.

Wavestone and defendant-appellant 17315 Collins Avenue, LLC are parent and subsidiary companies. The subsidiary, 17315, owns real estate at 17315 Collins Avenue on which a condominium building is being developed. The parent company, Wavestone, owns the membership interests in 17315, and is the managing member of 17315.

In 2003, Wavestone and Fortune entered into the exclusive real estate listing agreement whereby Fortune would market and sell the condominium units. Wave-stone later terminated that agreement. After a bench trial, the court found Wave-stone had breached the contract. The court awarded $1,509,899 in damages.

Fortune initiated proceedings supplementary. See § 56.29, Fla. Stat. (2007). At a hearing, the trial court imposed a temporary injunction freezing the net proceeds from the closing of sales of the condominium units. The court also pierced the corporate veil and allowed the judgment against Wavestone to operate as a lien against the real estate owned by 17315. This appeal followed.

We reverse the temporary injunction against 17315, and the order impressing the judgment lien upon the property owned by 17315. We do so because the request for this relief had not been noticed for hearing, and there was a timely objection on this ground.

In the postjudgment proceedings, Fortune filed two different motions. One of these was a motion for proceedings supplementary in aid of execution. Fortune sought to compel Wavestone to appear for examination regarding Wavestone’s financial matters. See id. § 56.29(4). By separate motion, Fortune also moved to implead 17315 as a third party in the proceedings supplementary. This motion was granted, and 17315 filed a motion to dismiss.

The trial court entered an order requiring Wavestone to appear before the trial judge on May 17, 2007 to be examined concerning its property. By agreement of the parties, the court entered an order rescheduling this examination for June 1, 2007.

On May 30, Fortune filed a memorandum outlining the relief which it sought during the proceedings supplementary. The memorandum included a request for a temporary injunction and imposition of the judgment lien on the property of 17315.

At the hearing on June 1, Fortune presented an opening statement in which it requested the temporary injunction against Wavestone and 17315, and imposition of the judgment lien against 17315. In response, defense counsel objected that 17315 “is not a party to these proceedings today so with respect to any actions taken against them today or an attempt to I would object to that.” Over that objection, the court entertained Fortune’s request for relief. Defense counsel reiterated the objection twice later in the proceedings.

The defense objection was well taken. The only matter which had been noticed for hearing on June 1 was the statutory examination of Wavestone regarding its “business and financial interests ... which may tend to show what property he or she has and its location.” Id.

It is true that in addition to the court order requiring Wavestone to be present for examination on June 1, Fortune also sent out a renotice of hearing stating that the matter to be heard was “Proceedings Supplementary to Execution.” That re-notice was directed to Wavestone, not 17315. Further, when that renotice was sent, Fortune had filed nothing which requested injunctive or other relief. Since defense counsel’s objection with regard to 17315 was well taken, the objection should have been sustained and the request for relief against 17315 should not have been considered. See First Union National Bank v. Peoples National Bank of Commerce, 644 So.2d 538, 539 (Fla. 3d DCA 1994); see also Connell v. Capital City Partners, LLC, 932 So.2d 442, 443-44 (Fla. 3d DCA 2006); Camji v. Helmsley, 602 So.2d 617, 618 (Fla. 3d DCA 1992). We therefore reverse the temporary injunction against 17315 and reverse that part of the order which imposed the judgment lien on the property of 17315. Because we are reversing all relief as to 17315, we need not reach the defendants’ alternative argument that the trial court erred by piercing the corporate veil.

Our reversal is without prejudice to Fortune to file a motion for temporary injunction or other relief on remand, and to schedule a hearing on proper notice. It was pro cedurally incorrect to place the request for temporary injunction and other relief in a memorandum without filing a motion. Further, any request to pierce the corporate veil must satisfy the standards of Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984). We express no opinion on the merits of any motion Fortune may file.

Because defense counsel did not make an objection regarding lack of notice with respect to Wavestone, we do not disturb the temporary injunction against Wave-stone. We leave it intact solely on the basis that Wavestone is the actual judgment debtor, and not on any theory of piercing the corporate veil. The temporary injunction would therefore apply only to closing proceeds which reach Wave-stone’s custody, but does not reach closing proceeds in the custody of 17315.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Victor PATMAN, Appellant, v. Barbara PATMAN, Appellee.
    No. 3D07-1164.
    District Court of Appeal of Florida, Third District.
    March 26, 2008.
    Markus & Winter and Stuart A. Markus, Miami, for appellant.
    Stratton & Feinstein and Brett Fein-stein and Darryl C. Dungan, for appellee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an amended final judgment of dissolution of marriage. We affirm in part and reverse in part.

The former wife concedes that there is a calculation error of $6000 in the equitable distribution award. The amended judgment must be corrected to say that the former wife must pay the former husband $79,148 rather than, as the judgment now reads, $73,148.

The former husband maintains that the trial court should have valued the marital home as of the date of trial rather than the date the petition for dissolution of marriage was filed. We reject that argument on authority of Norwood v. Anapol-Norwood, 931 So.2d 951 (Fla. 3d DCA 2006).

For procedural reasons which need not be set forth here, the amended judgment reserved jurisdiction to resolve the issues of child custody and support in a future order. The parties’ respective positions on those issues should be presented to the trial court in the first instance pursuant to the reservation of jurisdiction. Because the trial court has not yet entered a final order on child custody and support, we reject the former husband’s claim that we should reach those issues at this time. We express no view on the merits of the parties’ respective positions.

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


text:
    The STATE of Florida, Appellant, v. Ramon Machin GONZALEZ, Appellee.
    No. 3D07-1429.
    District Court of Appeal of Florida, Third District.
    March 26, 2008.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellee.
    Before GREEN, RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Phillips v. State, 612 So.2d 557 (Fla.1992).


author: LAGOA, J.

text:
    The CADLE COMPANY, Appellant, v. Cindy RHOADES, Appellee.
    No. 3D07-2093.
    District Court of Appeal of Florida, Third District.
    March 26, 2008.

      Robert P. Barnett, Miami, for appellant.
    Wayne Larue Smith and Christian J. Cruz and Amy Beth Maloy, Key West, for appellee. .
    Before GERSTEN, C.J., and SHEPHERD and LAGOA, JJ..
   LAGOA, J.

The Cadle Company (“Cadle”) appeals from a final summary judgment entered in favor of Cindy Rhoades (“Rhoades”).

I. FACTUAL AND PROCEDURAL HISTORY

On December 12, 1996, Barnett Bank, N.A., the predecessor in interest to Cadle, loaned $50,000 to Seahawk Commodities Inc. (hereinafter “Seahawk”). Rhoades was Seahawk’s Vice-President and purportedly executed a promissory note and personal guarantee for this debt. On January 22, 1998, Rhoades received a letter from Barnett Bank accelerating the debt and demanding full payment plus interest.

On March 15, 2001, Bank of America, N.A., the successor in interest to Barnett Bank, N.A., assigned the loan to Cadle. On December 29, 2004, Cadle filed suit against Rhoades for default under the personal guarantee. In her affirmative defenses, Rhoades asserted that Cadle’s claim was barred pursuant to the five-year statute of limitations set forth in section 95.11(2)(b), Florida Statutes (2005). In its reply, Cadle asserted that Rhoades’s guarantee contained the following waiver of the statute of limitations defense:

Each of the undersigned also waives any and all rights or defenses arising by reason of ... (e) any statute of limitations, if at any time any action or suit brought by Lender against any of the undersigned is commenced there is outstanding indebtedness of Borrower to Lender which is not barred by any applicable statute of limitations....

Rhoades filed a motion for summary judgment based on her statute of limitations defense, which the trial court granted. After a final judgment was entered, this appeal ensued.

On appeal, Cadle primarily argues that the trial court erred in granting summary judgment because there remained issues of material fact as to whether Rhoades waived the statute of limitations defense. We find Cadle’s argument unpersuasive. Here, Cadle does not dispute that Barnett Bank accelerated the debt and demanded full payment on or about January 22, 1998. The underlying debt at issue in this case therefore matured on that date. In order to give meaning to the phrase “which is not barred by any applicable statute of limitations,” the guarantee, therefore, required suit to be commenced against Rhoades before the limitations period ran on the underlying debt. Because the debt matured on January 22, 1998, the applicable five-year statute of limitations ran on January 23, 2003-close to two years before Cadle filed suit. Accordingly, we affirm the trial court’s entry of final summary judgment.

Affirmed.

      . Rhoades asserts that she did not execute either the note or guarantee.

      . Pursuant to section 95.11(2)(b), Florida Statutes (2005), actions other than for recovery of real property shall be commenced as follows:
      (2) WITHIN FIVE YEARS.—
      (b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of ss. 255.05(10) and 713.23(l)(e).


text:
    Dora BRAVO, Appellant, v. HOOVER INDUSTRIES, INC., Appellee.
    No. 3D07-2544.
    District Court of Appeal of Florida, Third District.
    March 26, 2008.
    Lori Barkus (Weston), Miami, for appellant.
    Warren P. Gammill, Miami, for appellee.
    Before RAMIREZ, WELLS, and CORTINAS, JJ.
   PER CURIAM.

We reverse the trial court’s finding that summary judgment was proper on the ground that there was no consideration for the alleged contract in this case and remand with instruction to allow plaintiff to amend her complaint in order to properly state a cause of action.

Reversed and remanded.


text:
    C.R., a child, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3055.
    District Court of Appeal of Florida, Third District.
    March 26, 2008.
    Benedict P. Kuehne, P.A., and Benedict P. Kuehne, and Susan Dmitrovsky, Miami; Coffey & Burlington, LLP, and Kendall Coffey, Miami, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and WELLS, JJ.
   PER CURIAM.

This is an appeal from a juvenile adjudication and disposition placing C.R. in a high risk residential program. Because the court, and the Florida Department of Juvenile Justice Pre-Disposition Report upon which the court relied, failed to make specific findings as to the reasons for adjudicating and committing C.R. to the Department of Juvenile Justice, we reverse and remand for a new hearing. See Y.J. v. State, 874 So.2d 688, 689 (Fla. 4th DCA 2004) (“[FJailure to make specific findings before adjudication and commitment of a juvenile is reversible error.”). See also § 985.23, Fla. Stat. (2005).

Reversed and remanded.


text:
    John F. ANGELO, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0383.
    District Court of Appeal of Florida, First District.
    March 28, 2008.
    John F. Angelo, pro se, Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003) (explaining the required elements of a petition for belated appeal).

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


author: THOMAS, J.

text:
    James KRAMER, Appellant, v. PALM BEACH COUNTY and Palm Beach County/Division of Risk Management, Appellees.
    No. 1D07-1551.
    District Court of Appeal of Florida, First District.
    March 31, 2008.

      Barbara B. Wagner of Wagenheim & Wagner, P.A., Fort Lauderdale; Rodrigo L. Saavedra, Jr., of Rodrigo L. Saavedra, Jr., P.A., Fort Lauderdale, for Appellant.
    Lyle C. Platt of Clarke & Platt, P.A., West Palm Beach, for Appellees.
   THOMAS, J.

Claimant appeals a final order from the Judge of Compensation Claims (JCC) denying compensability of his injury. Because we agree that the JCC applied the incorrect standard during her analysis of whether Claimant’s injury qualified as a “special hazard,” we reverse.

Claimant, a bridge tender for Palm Beach County, suffered leg injuries after tripping on a pile of debris left in a county right-of-way as a result of Hurricane Wilma. At his compensability hearing, the JCC heard testimony that Claimant was not parked in the designated bridge tender’s parking area, but rather parked his vehicle in the parking lot of a nearby shopping center. The injury occurred just prior to 6:00 a.m., as Claimant walked from the shopping center to the bridge house to begin his shift.

The testimony of the various witnesses established that the majority of the bridge employees, including supervisors, parked in the same shopping center parking lot, even after a specific “cut-out” space was provided for the bridge tenders. There was conflicting testimony regarding whether Claimant was ever instructed that he must park in the new spot, and no evidence was presented that he faced reprimand if he failed to do so. In fact, Claimant testified that he did park in the new spot until his vehicle was damaged in an accident while parked there.

The JCC found that Claimant’s injury fell within the “going or coming” rule set forth in section 440.092(2), Florida Statutes (2004), and denied compensability. Claimant argues that his injury either fell within the “premises” exception to the rule or was the result of a “special hazard,” which is another exception to the general rule.

We agree with the JCC that Claimant’s injury did not occur on Employer’s premises, and affirm on that ground; however, we agree with Claimant that his injury fits within the special hazard exception.

If an accident is deemed to have occurred off-premises, an employee’s injury is compensable if it is caused by a special hazard on a normal and customary route used by the employee as a means of entry to and exit from the employee’s place of work. See Doctor’s Bus. Serv., Inc. v. Clark, 498 So.2d 659, 663 (Fla. 1st DCA 1986) (en banc). There are two prongs to the special hazard exception: (1) the presence of a special hazard at a particular off-site location, and (2) close association of the access route to the work premises. Toyota of Pensacola v. Maines, 558 So.2d 1072, 1075 (Fla. 1st DCA 1990). There is no question that the first prong is met here, as a pile of debris is inherently dangerous. See, e.g., Maas Bros. v. Peo, 498 So.2d 657 (Fla. 1st DCA 1986); Petroske v. Worth Ave. Burger Place, 416 So.2d 856, 857 (Fla. 1st DCA 1982); Doctor’s Bus. Serv., 498 So.2d at 661-666; Naranja Rock Co. v. Dawal Farms, 74 So.2d 282, 284-285 (Fla.1954).

As to the second prong, as stated in Toyota^

it is a well-established exception to the rule that the course of employment should extend to any injury that occurs at a point where the employee is within the range of dangers associated with the employment, such as a special hazard on a normal route used by the employee on his or her way to and from work.

Toyota, 558 So.2d at 1075.

Furthermore, the only essential inquiry is whether the danger is one to which the employee is peculiarly subjected, or to an abnormal degree, by reason of and in conjunction with his employment. Id. at 1076 (citing Doctor’s Bus. Serv., 498 So.2d at 665). Importantly, “the off-premises route used by the employee need not be the exclusive means of access, and ... the special hazard exception will be applied if the route can be considered the usual or expected means of travel.” Id. at 1075 (emphasis in original). Here, in denying the special hazard exception, the JCC found

that the route taken by the Claimant on December 13, 2005, did not serve primarily as the means of entry and exit to the Claimant’s place of employment. The evidence further establishes that if the Claimant had parked his vehicle in the correct and designated parking space the route to the bridge house would have been a safer route without the obstacle on which the Claimant tripped.

This is not the proper analysis under the precedents described above.

Our decision in Toyota holds that the special hazard exception applies if the route can be considered the usual or expected means of travel. See Toyota, 558 So.2d at 1075. While the portion of the JCC’s order quoted above clearly demonstrates that Claimant did not use the “expected” means of travel (i.e., parking in the designated spot), the JCC’s order is silent as to whether Claimant’s path was “usual.” In fact, most of the evidence presented indicated that the bridge tenders traditionally parked in the shopping center’s parking lot and walked down the same path taken by Claimant to get to the bridge house. Toyota clearly implies that alternative routes are acceptable as long as they are “usual or expected.” Id. Thus, we find it unlikely that Claimant’s route on the day of the injury could be considered a deviation from the norm.

We note that there is language in Toyota suggesting that a claimant would not be covered if he or she was involved in an activity “expressly prohibited by the employer” when the injury occurs. Id. at 1076. Although some of the JCC’s findings here suggest that Claimant was instructed to park in the cut-out spot, there was no competent, substantial evidence that Claimant was ever expressly informed that he was forbidden to park in the shopping center lot or that he would be reprimanded if he continued to do so. In fact, the evidence demonstrated that most, if not all, of the bridge employees, including supervisors, continued to park in the shopping center lot even after the “cut out” spot was built.

Accordingly, we reverse with instructions to the JCC to apply the proper standard. Specific findings are necessary regarding whether Claimant’s means of travel to and from work was “usual,” and the JCC should more closely examine whether Claimant was ever “expressly prohibited” from parking in the shopping center parking lot by his employer. We point out that the JCC’s finding that signs in the shopping center prohibited Claimant from parking there are not supported by competent, substantial evidence. The evidence in the record demonstrates that the signs actually read, “No Prime Catch Parking,” which is a reference to the nearby restaurant named “Prime Catch.” Therefore, these signs only prevent patrons of the restaurant from parking in the designated area and have no bearing on Claimant. Accordingly, the signs are not relevant to a determination of whether a special hazard existed.

AFFIRMED in part, REVERSED in part, and REMANDED.

PADOVANO and LEWIS, JJ., concur.


author: DAMOORGIAN, J.

text:
    Quadir SABREE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1378.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Quadir Sabree appeals his conviction and sentence as to one count of DUI manslaughter/unlawful blood alcohol level (BAL) (Count I), and one count of DUI serious bodily injury/unlawful blood alcohol level (Count III). On appeal, Sabree asserts that the trial court fundamentally erred by giving misleading and inaccurate jury instructions that related to an element of his offense. We reverse because the inaccurate jury instructions as to Counts I and III presented the jury with an improper ground for conviction. We affirm in all other respects.

By way of background, in March 2004, Sonya Rogers was driving north on 1-75 with a passenger. While driving, Rogers was rear-ended by a bluish/greenish car causing her vehicle to flip over multiple times. As a result of the accident, Rogers was severely injured, and the passenger was killed.

On the same day, Sabree was driving a bluish/greenish car north on 1-75 when he struck something. He denied striking Rogers’vehicle. However, the damage to his car is consistent with the damage dealt to Rogers’ vehicle. Sabree admitted to drinking before the accident and to staying up all night before driving. Sabree submitted to two blood alcohol tests two hours after the crash, which revealed his blood alcohol level to be 0.11% and 0.09%, respectively. An Aliza test revealed a trace amount of cocaine.

As a result of the collision, Sabree was charged and convicted for one count of DUI manslaughter/unlawful blood alcohol level (Count I), and one count of DUI serious bodily injury/unlawful blood alcohol level (Count III). At the end of trial, the trial court gave the jury the following instruction as to Count I (DUI manslaughter/unlawful blood alcohol level):

To prove the crime of DUI/Manslaughter/Unlawful Blood Alcohol Level, the State must prove the following three elements beyond a reasonable doubt:
1.QUADIR SABREE drove or was in actual physical control of a vehicle.
2. While driving or while in actual physical control of the vehicle, QUADIR SABREE had a blood alcohol level of 0.08 or higher and/or a controlled substance to-wit: cocaine.
3. As a result, QUADIR SABREE caused or contributed to the cause of the death of Walter Steven Dixon

(emphasis added). The instruction for Count III read the same as to the second element as the Count I instruction. Sa-bree did not object to either instruction. On the verdict form, the jury did not specify whether it found Sabree guilty for having an unlawful BAL or for having cocaine in his system; or for both.

In order to be guilty of driving under the influence pursuant to section 316.193(l)(a)-(c), Florida Statutes (2004), a person must be either (a) “affected to the extent that [his] normal faculties are impaired” by alcohol or a controlled substance, which includes cocaine, (b) have a “blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood”, or (c) have a “breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.” Consequently, simply having cocaine in the system is legally insufficient to convict because the State is required to prove beyond a reasonable doubt that Sa-bree was “under the influence” of cocaine.

A general jury verdict that rests on alternative grounds must be set aside when it is legally insufficient on one ground because it is impossible to determine the ground on which the jury convicted. Fitzpatrick v. State, 859 So.2d 486, 491 (Fla.2003); see also Delgado v. State, 776 So.2d 233 (Fla.2000); Mackerley v. State, 777 So.2d 969 (Fla.2001). In reading the instructions, the verdict form, and the information it is clear that the finding of guilt as to Count I and III rested on alternative grounds. One of the grounds is legally proper; having a BAL over 0.08. However, the other, having a “controlled substance to-wit: cocaine” is not because simply having cocaine in one’s system does not establish impairment under section 316.193(l)(a)-(c). Consequently, the trial court erred in presenting such an instruction.

Where the defendant does not object below, the error must be fundamental to require reversal. See State v. Weaver, 957 So.2d 586 (Fla.2007). Fundamental error occurs where the trial court “fail[s] to give a complete or accurate instruction in a criminal case if it relates to an element of the charged offense”. Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001). In this case, the instructions related to an element of two of the charged offenses. Thus, the error was fundamental.

Therefore, we reverse Sabree’s convictions as to Counts I and III and remand for further proceedings.

Reversed and Remanded for new trial on Counts I and III.

KLEIN and HAZOURI, JJ., concur.

      . The State's expert testified that the amount of cocaine in Sabree’s system, although minor, is likely to cause a person fatigue, and amplify the effects of alcohol on the system.

        . Sabree was also charged and convicted for DUI manslaughter/impairment (Count II), DUI serious bodily injury/impairment (Count IV) and driving while license suspended (Count V). At sentencing, the State nolle pressed Counts II and IV.

      . The DUI Statute is a strict liability statute as it pertains to being under the influence of alcohol because having a BAL of 0.08 or higher is per se impaired. As to substances other than alcohol, the statute does not establish any per se amount. Instead, a person who is “affected to the extent that the person's normal faculties are impaired’’ is considered under the influence. See Fla. Stat. 316.193 (2004).


author: ROBERTS, J.

text:
    JEA, a Body Politic and Corporate of the State of Florida, Appellant, v. Marilyn D. WILLIAMS, et al., Appellees.
    No. 1D07-2559.
    District Court of Appeal of Florida, First District.
    April 3, 2008.

      Richard A. Mullaney, General Counsel, Bruce Page, Assistant General Counsel, and Joel B. Toomey, Chief, Appellate Division, Jacksonville, for Appellant.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appellees.
   ROBERTS, J.

In this eminent domain action, the JEA appeals a final order awarding additional attorney’s fees. The JEA argues that the trial court erred in finding that the first letter to the appellees constituted an offer under section 73.092, Florida Statutes (2004). We disagree and affirm.

FACTS

The JEA is a public utility providing electrical and underground utility services in Duval and surrounding counties. In 2003, it began a project to expand its underground utility services to areas in southern Duval and northern St. Johns Counties already served by its electrical services.

The appellees, Marilyn D. Williams and Linda Trunick, as trustees of the Marilyn D. Williams Trust, owned property in southern Duval and northern St. Johns Counties, including parcel 100, on which the JEA had previously acquired easement rights for electrical transmission wires, and parcel 101. On September 5, 2003, as part of its plan to expand underground services, the JEA mailed the appellees the first letter through its agent, Bender Properties and Acquisition Services, Inc., seeking to obtain underground easement rights on parcel 100. The letter identified the project as the “Greenland Transmission Line” and included project and real estate numbers. The letter stated in pertinent part:

The JEA, a municipal corporation, is planning to acquire utility rights on your property for the area described on the enclosed survey for underground utilities. You will find attached a copy of the legal description and parcel sketch for your records. The JEA has authorized me to offer you the appraised value of this easement in the amount of $62,000.00.

After receiving the first letter, the appel-lees contracted with condemnation counsel who began work on the case and conducted discussions with the JEA.

On March 16, 2004, the JEA passed a resolution authorizing the acquisition of parcels 100 and 101 through condemnation. The resolution outlined a fee interest in parcel 100, as described in the first letter, along with a fee interest in 20.14 acres of parcel 101.

On March 23, 2004, the JEA mailed the appellees the second letter through its agent which again identified a project name and included project and real estate numbers. In accordance with the resolution, the second letter informed the appel-lees that the JEA wanted to acquire a fee interest, rather than the previously mentioned remainder easement interest, in the original 21.04 acres of parcel 100 and also sought to acquire 20.14 acres of parcel 101. The letter stated in pertinent part:

As we discussed previously, JEA is planning to construct underground utilities across property owned by you.... On September 5, 2003, you were presented an offer with the supporting appraisal to purchase an easement to install underground utilities.... In the interest of time and to avoid further expense, JEA has authorized me to make the following offer to purchase the above referenced property. The offer to purchase parcel 100 [21.04 acres] is $85,000.00 and parcel 101 [20.14 acres] is $185,000.00.

The letter instructed the appellees to execute the attached purchase agreement if they agreed to the offer, but also stated that the amount of the offer was subject to the JEA’s approval. The letter further noted that it included “excerpts from section 73.015, Florida Statutes, that are applicable to the JEA acquisition of [the] property.”

On June 23, 2004, the JEA, this time on its own letterhead, mailed the appellees the third letter which further expanded the desired acreage of parcel 101 to 36.55 acres and offered $500,000 for both parcels. The letter included a new legal description and an updated appraisal but did not include a purchase agreement. The letter also stated that “excerpts from Florida Statutes included in the March letter still apply.”

The appellees rejected the JEA’s offer. On February 7, 2007, the JEA filed a petition for condemnation seeking to acquire a fee interest in the 21.04 acres of parcel 100 and the 36.55 acres of parcel 101, attaching its March 16, 2004, resolution. A stipulated final judgment was entered requiring the JEA to pay the appel-lees $2 million for both parcels. On April 13, 2007, the trial court entered an amended order taxing statutory attorney’s fees. The trial court found that the first letter constituted the JEA’s “first written offer” for the purposes of section 73.092, Florida Statutes (2004), and that the appellees had thereafter hired condemnation counsel. Based on those findings, the trial court awarded the appellees additional attorney’s fees in the amount of $87,600 beyond the previous award for fees.

ANALYSIS

Both Article X, Section 6 of the Florida Constitution and Article V of the United States Constitution require that no private property shall be taken for a public purpose without full compensation. A landowner’s constitutional right to full compensation for property taken by the government includes the right to a reasonable fee for the landowner’s counsel. Tosohatchee Game Preserve, Inc. v. Cent. & S. Flood Control Dist., 265 So.2d 681 (Fla.1972). The Legislature has made a provision for the award of attorney’s fees in eminent domain cases in section 73.092, Florida Statutes (2004), which provides, in pertinent part:

(1) Except as otherwise provided in this section, the court, in eminent domain proceedings, shall award attorney’s fees based solely on the benefits achieved for the client.
(a) As used in this section, the .term “benefits” means the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired.

Once the “benefits” are determined, the attorney’s fees are computed using a formula also found in section 73.092.

The JEA argues that the attorney’s fees should be based on the difference between the third offer of $500,000 and the $2 million awarded by the trial court. The JEA asserts that the first letter was an offer to purchase property in an arm’s length real estate transaction, thereby rendering section 73.092 inapplicable. It is undisputed that public entities with eminent domain powers have the authority to purchase property to complete their projects as if they were an ordinary purchaser of real estate. See City of Boynton Beach v. Janots, 929 So.2d 1099 (Fla. 4th DCA 2006). In an ordinary arm’s length purchase, the landowner is not entitled to attorney’s fees. Id. The JEA argues that the instant case is analogous to Janots. We find, however, that it is distinguishable. In Janots, the landowners received a letter which stated:

On behalf of the City, I am authorized to offer to purchase your property for $62,000.00. This offer is contingent upon the execution of an agreement for the purchase and sale and is further subject to the approval of the Boynton Beach City Commission.

Id. at 1100.

In the instant case, however, the JEA’s first letter included a project name and number, a copy of the legal description and a survey of the property, and further stated that the JEA was “planning to acquire utility rights” to the appellees’ property. We find that, upon receiving such a letter, reasonable property owners could conclude that the letter was more than an ordinary arm’s length offer to purchase their property, but rather the initiation of presuit negotiations as contemplated by section 73.015, Florida Statutes. Thus, the appel-lees sought the advice and services of a condemnation attorney:

The JEA also argues that the first letter was not a binding offer under section 73.092 because it sought to acquire a different interest on the original property and less total property than the final taking. The JEA asserts that section 73.092 should be construed only to compute attorney’s fees based on the first offer after the condemning authority finalizes its plans for the project. However, such a construction is not supported by the text of section 73.092 and judicial interpretation of the statute is not appropriate where the language of the statute is clear and unambiguous. See Citizens of the State of Fla. v. Pub. Serv. Comm’n, 435 So.2d 784, 786 (Fla.1983). Section 73.092 states that attorney’s fees are computed based on the difference between the last written offer before the landowner has hired counsel and the final judgment. As such, this Court is bound to give effect to the statute’s clear and unambiguous language. See Holly v. Auld, 450 So.2d 217 (Fla.1984).

The JEA also relies on Tosohatchee to argue that the first letter was not a binding offer because an eminent domain proceeding may not be initiated until a resolution is passed authorizing the condemning authority to acquire the property through eminent domain. The JEA argues that the first letter did not constitute a binding offer because their resolution was not passed until after the first letter was mailed to the appellees. Such reliance, however, is misplaced.

In Tosohatchee, the Florida Supreme Court held that a petition for condemnation must be accompanied by an authorizing resolution in order to properly institute eminent domain proceedings. However, unlike the instant case, Tosohatchee did not deal with an offer made pursuant section 73.015, Florida Statutes (2004), prior to the commencement of a condemnation action. Section 73.015 requires the JEA to make a good faith attempt to negotiate with the appellees prior to the commencement of a condemnation action, but does not require that a resolution be passed in order for the condemning authority to begin that negotiation or extend a binding offer.

The JEA further argues that the first letter was not a binding offer because it did not contain definite terms. The JEA cites City of Jacksonville v. Tresca, 692 So.2d 991 (Fla. 1st DCA 1997), for the proposition that an offer must be binding for it to constitute an offer under section 73.092. In Tresca, however, this Court held that the city had not made an offer to purchase, but rather had entered into an option contract whereby the city could purchase the property at a designated amount if it elected to do so. Because an option contract did not obligate the city to purchase the property, it could not be an offer under section 73.092.

In contrast, in the instant case, the first letter clearly expressed the JEA’s assent to certain, definite terms under which it would purchase the property. The agreement could be executed immediately at the appellees’ discretion. The letter did not include any conditional language regarding its obligation to purchase the property. As such, the JEA was bound to the terms of the first letter, thus making it an offer under section 73.092. Moreover, an offer in eminent domain cases is an “expression by a party to assent to certain, definite terms, provided that the other party involved in the bargaining transaction will likewise express assent to the same terms.” Pierpont v. Lee County, 710 So.2d 958, 960 (Fla.1998).

We conclude that the trial court properly computed attorney’s fees based on the difference between the amount of the offer in the first letter and the stipulated final judgment amount. Because we find that the trial court correctly applied section 73.092, the order is

AFFIRMED.

KAHN and WEBSTER, JJ., concur.

      . This proposition is inconsistent with the position advanced by the JEA that the third offer is controlling for the purposes of section 73.092 because the resolution was passed preceding the second offer.


text:
    Kadarrell L. JOHNSON, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-5963.
    District Court of Appeal of Florida, First District.
    April 3, 2008.
    Kadarrell L. Johnson, pro se, Appellant.
    Kathleen Von Hoene, General Counsel, and Sean T. Garner, Assistant General Counsel, Department of Corrections, Tallahassee; Bill McCollum, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kadarrell Johnson appeals an order dismissing his petition for writ of mandamus with prejudice. After de novo review, we reverse and remand for further proceedings. See Fla. Pub. Employees Council 79, AFSCME v. Dep’t of Children & Families, 745 So.2d 487 (Fla. 1st DCA 1999); Mazer v. Orange County, 811 So.2d 857 (Fla. 5th DCA 2002).

The lower court initially dismissed Johnson’s petition for writ of mandamus without prejudice, allowing him 30 days in which to file documentation showing that he had exhausted administrative remedies. Johnson promptly began a grievance proceeding, but could not complete the process within the time for amending his petition. He filed an amended petition but the lower court dismissed the case with prejudice on the ground that his petition was untimely.

Contrary to the lower court’s determination on this point, the amended petition was placed in the hands of prison authorities and therefore timely filed within the period of time allowed by the first order of dismissal. The amended petition is still deficient in the respect that the petitioner has not shown that he exhausted his remedies, but this defect does not warrant a final adjudication of the claim. The dismissal should have been without prejudice.

Reversed and remanded.

ALLEN, WEBSTER, and PADOVANO, JJ., concur.


text:
    Timothy CHILTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5477.
    District Court of Appeal of Florida, First District.
    April 4, 2008.
    Timothy Chilton, pro se, Petitioner.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, BENTON, and THOMAS, JJ., concur.


text:
    Jeremiah JOHNSON, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D08-0929.
    District Court of Appeal of Florida, First District.
    April 4, 2008.
    Jeremiah Johnson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Pettway v. State, 776 So.2d 930 (Fla.2000).

DAVIS, BENTON, and THOMAS, JJ., concur.


text:
    John F. CASEY, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-1265.
    District Court of Appeal of Florida, First District.
    April 4, 2008.
    John F. Casey, III, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, BENTON, and THOMAS, JJ., concur.


text:
    Rory Evan NOBLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-6059.
    District Court of Appeal of Florida, First District.
    April 7, 2008.
    Ross A. Keene of Beroset & Keene, Pensacola, for Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant in this direct criminal appeal challenges his conviction for aggravated battery arising from an incident of “road rage.” Although sufficient evidence to support the conviction was presented, we nevertheless reverse the conviction and remand this case to the trial court because the trial court reversibly erred in excluding evidence relevant to the appellant’s theory of defense that he was not the aggressor in this incident.

The alleged victim of the aggravated battery testified at trial that the appellant struck him without provocation, but the appellant countered that he acted in self defense after the alleged victim threw the first punch. In support of his theory of defense, the appellant sought to introduce evidence that the alleged victim had recently carried brass knuckles on his person. He also sought to introduce evidence that the alleged victim’s urine tested positive for the presence of amphetamines a few hours after the underlying incident, and testimony from a physician that amphetamines can cause a person to be easily agitated and aggressive. Applying section 90.403, Florida Statutes, the trial court excluded this evidence on the ground that its probative value would be outweighed by the danger of confusing or misleading the jury and would otherwise be unduly prejudicial to the prosecution. In so ruling, the court abused its discretion.

The jury was called upon to make the critical determination of which of these two men was the initial aggressor in their roadside confrontation. By excluding the above-described evidence, the trial court prevented the jury from considering circumstantial evidence which was relevant to this critical determination. It was, for example, appropriate for the state to present, as it did, evidence concerning the appellant’s prior boxing experience. So too, the jury was entitled to learn that the alleged victim had recently carried brass knuckles on his person and had returned a positive urine screen for amphetamines hours after the underlying incident, which suggested the presence of a drug in his system at the time of the incident that would cause a person to be easily agitated and aggressive.

Because we are unable to conclude that this error was harmless beyond a reasonable doubt, the appellant’s conviction for aggravated battery is reversed, and this case is remanded.

ALLEN, WEBSTER, and PADOVANO, JJ., concur.


author: LEWIS, J.

text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant, v. Nancy YOUNG, As Personal Representative of the Estate of Wayne Alan Young, Sr., Deceased, Appellee.
    No. 1D07-3787.
    District Court of Appeal of Florida, First District.
    April 7, 2008.

      Carl D. Dawson of Dawson, Galant & Sulik, P.A., Jacksonville, for Appellant.
    John Marc Tamayo of Valenti Campbell Trohn Tamayo & Aranda, Lakeland, and Gary L. Printy Jr., Bartow, for Appellee.
   LEWIS, J.

Appellant, Auto-Owners Insurance Company, seeks review of the trial court’s final judgment in favor of Appellee, Nancy Young, as personal representative of the estate of Wayne Alan Young, Sr., deceased. Appellant argues the trial court erred in granting Appellee’s motion for summary judgment on her claim of entitlement to uninsured motorist benefits. Appellant also argues the trial court erred in denying its motion for summary judgment on the issue of non-liability. We agree with both contentions, and accordingly, we reverse.

On January 18, 2004, Wayne Alan Young, Sr., the decedent, and Donald Ross, whom the decedent was training, both employees of Mike’s Auto Repair, responded to a call to tow a disabled tractor-trailer from the median of 1-10. The decedent parked the tow truck on the shoulder of the median. The decedent and Ross then walked over to the disabled truck’s driver, who had gotten out of his vehicle and was walking toward them. The driver informed them that he did not have funds for the tow but that he would try to get a “com check.” The decedent and Ross then walked back to the tow truck, and, under the decedent’s direction, Ross took the towing cable off the tow truck. The decedent helped Ross pull the cable from the tow truck but let go of it about halfway to the disabled vehicle. Ross pulled the cable the rest of the way to the front of the disabled truck and set it on the ground without hooking it to the truck. Ross and the decedent then walked down into the median and waited to see whether the driver of the disabled vehicle could secure funds for the tow. While standing in the median, approximately twenty to twenty-five feet from the cable, and approximately twenty to twenty-five feet from the tow truck, the decedent was struck and killed by a tractor-trailer that swerved off the road to avoid a car that was braking in front of it. The tractor-trailer also struck Ross in a glancing blow to his legs, but he survived. Approximately five minutes passed from the time Ross dropped the.cable in front of the disabled truck to the time when the accident occurred.

Appellee filed an action against Appellant, the insurer of the tow truck, arguing entitlement to uninsured motorist benefits. Appellant’s policy provides, in pertinent part, as follows: “We will pay damages you are legally entitled to from the owner or operator of any uninsured automobile because of bodily injury sustained while occupying or getting into or out of an automobile.” Appellant denied coverage and moved for summary judgment, arguing that the decedent was not “occupying” the insured vehicle at the time of the accident. The trial court denied Appellant’s motion. Appellee then filed a motion for summary judgment. The trial court granted Appellee’s motion, and, relying on Progressive American Insurance Co. v. Tanchuk, 616 So.2d 489 (Fla. 4th DCA 1993), held that the decedent was “occupying” the insured tow truck at the time of the accident. Subsequently, the trial court entered a final judgment awarding Appellee $100,000.00 in uninsured motorist benefits. This timely appeal follows.

We review a trial court’s grant of summary judgment de novo. Key v. Trattmann, 959 So.2d 339, 341 (Fla. 1st DCA 2007). When reviewing a trial court’s summary judgment ruling, an appellate court must draw all reasonable inferences in favor of the party opposing summary judgment. U.S. Lodging of Jacksonville, Ltd. v. H.B. Daniel Constr. Co., 617 So.2d 448, 449 (Fla. 1st DCA 1993). Summary judgment should be affirmed only if the movant has proven the nonexistence of any material factual dispute. Spradley v. Stick, 622 So.2d 610, 612 (Fla. 1st DCA 1993). “Where the determination of the issues of a lawsuit depends on the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.” Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1096 (Fla. 1st DCA 1999). Accordingly, the issue before this Court is whether the trial court correctly determined that Appellee was entitled to prevail as a matter of law.

The trial court’s reliance on Tanchuk was misplaced. In Tanchuk, the claimant had already hooked up a disabled vehicle to the insured tow truck when the accident occurred, and immediately before the accident, he was standing just outside the truck with his hand on the door, reaching for the microphone of the truck’s radio. 616 So.2d at 489. As the claimant was reaching for the microphone, he heard a scream from the occupant of the disabled vehicle. Id. He then ran back toward the disabled vehicle and was injured when another vehicle struck the disabled vehicle, clipping the claimant and throwing him forty feet in the air, causing the tow truck cable to hit him in the left arm. Id. Just prior to the accident, the Tanchuk claimant was so close to the cable that he thought he was touching it. Id. In Tan-chuk, like here, the issue on appeal was whether the injured party was occupying the insured vehicle at the time of the accident. Id. at 490. To make this determination, the Fourth District adopted a test announced by the Louisiana appellate court in Day v. Coca-Cola Bottling Co., 420 So.2d 518, 520 (La.App.1982):

[I]t is not physical contact with the vehicle that serves as a basis to determine whether a person is injured while alighting from a vehicle but it is the relationship between the person and the vehicle, obviously of time and in distance with regard to the risk of alighting, that determines this specific coverage.

Tanchuk, 616 So.2d at 490. The Tanchuk court focused on the claimant’s close proximity in time and distance to the insured vehicle at the time of the accident in determining that the claimant was “occupying” the insured tow truck. See id.

Unlike the trial court, we find the facts of Tanchuk distinguishable from the facts of the instant case. Here, the decedent had not hooked up the disabled truck at the time of the accident, unlike the claimant in Tanchuk. Instead, the decedent had let go of the cable and walked down into the median, away from both the tow truck and disabled truck, to wait to see whether the driver of the disabled vehicle could secure payment. The decedent was standing approximately twenty to twenty-five feet from the cable and twenty to twenty-five feet from the tow truck when the accident occurred. Moreover, nearly five minutes had passed from the last time the decedent had been touching the cable until the moment when he was struck. There was a much greater distance, both in time and space, between the decedent and the tow truck in the instant case than that which existed between the claimant and the tow truck in Tanchuk. Therefore, Tanchuk does not support the trial court’s holding that the decedent was occupying the tow truck at the time of the accident.

The Fourth District’s subsequent decision in Allstate Insurance Co. v. Thomas, 668 So.2d 1038 (Fla. 4th DCA 1996), is more on point with the instant case. In Thomas, the decedent’s employer sent him and a coworker to the aid of a disabled truck. Id. at 1039. After his coworker parked the insured truck in front of the disabled truck, the decedent exited the insured truck and walked- to the rear of the disabled vehicle, where he was struck by an uninsured motorist. Id. at 1038. At the time of the accident, the decedent had been waiting to unload furniture from the disabled truck and place it into the insured truck. Id. As in the instant case, the trial court in Thomas, relying on Tanchuk, ruled that the decedent was covered under the truck’s uninsured motorist policy. Id. at 1039. On appeal, the Fourth District reversed, holding that the decedent was not “occupying” the truck at the time of the accident, and thus, was not covered under the company’s insurance policy when he was struck by an uninsured motorist. Id. The Fourth District noted that the claimant had “already completed alighting from the insured vehicle” when he walked to the rear of the insured vehicle and was waiting to unload a disabled vehicle. Id. Like the decedent in Thomas, the decedent in the instant case had already completed alighting from the insured vehicle. In both Thomas and the instant case, the decedents had walked away from the insured vehicles. See id. at 1038. In fact, the decedent in this case had dropped the' cable and walked down into the median approximately twenty to twenty-five feet from the cable and twenty to twenty-five feet from the tow truck and was waiting to see whether the driver of the disabled vehicle could secure funds for the tow. Under the reasoning in Thomas, the decedent in the instant case was not occupying the tow truck at the time of the accident.

Similarly, in Fidelity & Casualty Co. of New York v. Garcia, 368 So.2d 1313, 1315 (Fla. 3d DCA 1979), the Third District held that a claimant was not “alighting from” an insured truck when she was struck by a passing automobile because her activity at that time was too remote from the act of exiting the truck. In that case, the claimant had exited the truck from the passenger side door and was struck after entering the left-hand lane of the highway as she was walking toward her hpme. Id. at 1315. The Fidelity court noted that the claimant was engaged in a distinctly separate activity having nothing to do with the truck, that is, the crossing of a highway in order to go home. Id. Like the claimant in Fidelity, the decedent in this ease made an overt act showing that he was engaged in a new activity that was distinct from exiting or using the insured vehicle. When he was struck, the decedent was no longer using the cable to tow the disabled vehicle. Instead, he had released the cable and had walked down into the median, away from the cable and his tow truck, to wait to see if the driver could secure funds to pay for the tow. As such, under the reasoning in Fidelity, the decedent was not “occupying” -the tow truck when he was struck.

We agree with the reasoning in Thomas and Fidelity. Accordingly, we REVERSE the trial court’s final judgment and REMAND with instructions to enter judgment in favor of Appellant.

KAHN and PADOVANO, JJ., concur.


text:
    Jessie James HURRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1768.
    District Court of Appeal of Florida, First District.
    April 7, 2008.
    Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant contends that his aggravated battery conviction should not have been reclassified as a first degree felony, and that he therefore should not have been sentenced to a thirty year term of imprisonment. An aggravated battery is ordinarily a second degree felony punishable by a maximum of fifteen years imprisonment. See § 784.045(2), and § 775.082(3)(c), Fla. Stat. However, the appellant’s offense was properly reclassified as a first degree felony pursuant to section 775.087(1), Florida Statutes, and was thus punishable by up to thirty years imprisonment. See § 775.082(3)(b), Fla. Stat.

Aggravated battery can be committed in alternative ways, such as by causing great bodily harm or by using a deadly weapon. See § 784.045(1), Fla. Stat. As indicated in section 775.087(1), a degree reclassification pertains when the offense is committed with the use of a weapon, unless the use of the weapon is an essential element of the crime. The appellant relies on Cabral v. State, 944 So.2d 1026 (Fla. 1st DCA 2006), where this court was unable to determine whether an aggravated battery conviction was based on great bodily harm or the use of a deadly weapon, and a § 775.087(1) reclassification was therefore precluded. See also, Perry v. State, 858 So.2d 1270 (Fla. 1st DCA 2003); Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996).

In Cabral the jury found great bodily harm and the use of a deadly weapon. In the present case the jury made a similar finding, but it is clear that the aggravated battery here is independently established by the great bodily harm, and the use of a deadly weapon is thus not an essential element of the aggravated battery. Instead, use of the weapon is an additional factor which permits reclassification under § 775.087(1).

The appealed order is affirmed.

ALLEN, WEBSTER, and PADOVANO, JJ., concur.


text:
    Darren O. WOOLBRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4786.
    District Court of Appeal of Florida, First District.
    April 7, 2008.
    Darren O. Woolbright, pro se, Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking postconviction relief. In his motion, appellant raised four claims. The trial court summarily denied three, and denied the fourth (which alleged that trial counsel had been ineffective for misadvising appellant regarding a plea offer, causing appellant to reject the offer) after an evidentia-ry hearing. We affirm without further discussion denial of the claim as to which the trial court held an evidentiary hearing. However, we are constrained to reverse the denials of the remaining claims because each was facially sufficient and the trial court failed to attach to its order portions of the record conclusively showing that appellant was not entitled to relief, and to remand those claims for further proceedings.

The trial court summarily denied three claims, all of which alleged ineffective assistance of trial counsel: (1) failure to object to improper comments made by the prosecutor during closing arguments; (2) failure to proffer evidence in opposition to a motion in limine filed by the state and granted by the trial court regarding misconduct in connection with an arrest in an unrelated case by one of the officers involved in appellant’s arrest; and (3) failure to present to the trial court favorable case law regarding the admissibility of the evidence of the officer’s misconduct. As we have said, all three claims were facially sufficient. Because the trial court failed to attach to its order summarily denying relief any portions of the record that might support its determinations, it is impossible for us intelligently to assess the validity of the denials. Accordingly, we reverse the summary denials and remand for further proceedings. Should the trial court again conclude that the claims merit summary denial, it shall attach to its order portions of the record conclusively demonstrating that; otherwise, it shall hold a hearing.

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

ALLEN, WEBSTER, and PADOVANO, JJ., concur.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Michael THIEL, Appellee.
    No. 1D06-6548.
    District Court of Appeal of Florida, First District.
    April 7, 2008.
    G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A, Jacksonville; John A. Unzicker, Jr., and Michelle L. Hendrix of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Appellant.
    J.D. Smith and Robert N. Heath, Jr., of McDonald, Fleming and Moorehead, Pensacola, for Appellee.
   PER CURIAM.

The final summary judgment entered in favor of insured Michael Thiel is reversed in light of Florida Farm Bureau Casualty Insurance Co. v. Cox, 967 So.2d 815 (Fla.2007). The cause is remanded to the circuit court for further proceedings.

PADOVANO, LEWIS, and THOMAS, JJ., concur.


author: BARFIELD, J.

text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Willis F. MATHIS and Katherine W. Mathis, Appellees.
    No. 1D07-4504.
    District Court of Appeal of Florida, First District.
    April 7, 2008.

      Mark J. Upton of Daniell, Upton, Perry & Morris, P.C., Daphne, Alabama, for Appellant.
    James F. McKenzie, Pensacola, for Ap-pellees.
   BARFIELD, J.

We REVERSE the summary judgment for the plaintiffs/appellees and REMAND this case to the trial court for further proceedings. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815 (Fla.2007); Citizens Prop. Ins. Corp. v. Manning, 966 So.2d 486 (Fla. 1st DCA 2007).

WOLF and HAWKES, JJ., concur.


text:
    Michael HORNE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5016.
    District Court of Appeal of Florida, First District.
    April 7, 2008.
    Michael Horne, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the August 8, 2006, judgment and sentence in Leon County Circuit Court case number 2005-CF-001518B. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

ALLEN, WEBSTER, and DAVIS, JJ., concur.


text:
    DeLeon D. JAMES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0398.
    District Court of Appeal of Florida, First District.
    April 7, 2008.
    Julie K. Taylor and Michael T. King of Stone, Taylor & Associates, P.A., Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the September 4, 2007, judgment and sentence in Duval County Circuit Court case number 16-2006-CF-4308-AXXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ALLEN, WEBSTER, and DAVIS, JJ., concur.


text:
    Reginald C. HAWKINS, Appellant, v. Archie F. GARDNER, JR., Anthony Cammarata, and Nancy Daniels, Appellee.
    No. 1D06-1895.
    District Court of Appeal of Florida, First District.
    April 7, 2008.
    Reginald C. Hawkins, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of a petition for mandamus, by which he sought to compel his former attorneys to provide him with certain materials from the case file of his criminal defense. The attorneys had been appointed to represent the appellant, and in addition to the return of any personal property he is entitled to a copy of transcripts and other documents, insofar as those documents were prepared at public expense. Potts v. State, 869 So.2d 1223 (Fla. 2d DCA 2004); Harris v. Webb, 711 So.2d 641 (Fla 1st DCA 1998); Gay v. State, 697 So.2d 179 (Fla. 1st DCA 1997). The mandamus petition presented a facially sufficient claim for such relief; the appealed order is therefore reversed, and the case is remanded.

ALLEN, WEBSTER, and PADOVANO, JJ., concur.


text:
    Angel TRESPALACIOS, Appellant, v. Joyce TRESPALACIOS, Appellee.
    No. 2D07-229.
    District Court of Appeal of Florida, Second District.
    April 9, 2008.

      Virginia R. Vetter, Tampa, for Appellant.
    Joe Gonzalez of Joe Gonzalez, P.A., Tampa, for Appellee.
   PER CURIAM.

Angel Trespalacios, the husband, challenges the trial court’s award of temporary alimony, temporary attorney’s fees and costs, and temporary exclusive use of the marital home to Joyce Trespalacios, the wife. We reverse the trial court’s order ■with respect to the award of temporary attorney’s fees and costs but we affirm in all other respects.

During their forty-year marriage, the parties earned a substantial income which allowed them to enjoy a fairly comfortable lifestyle. The parties’ home is valued at about one million dollars. The husband’s income derives from a real estate business he has operated as an S-Corporation for many years. The wife has had a successful sales career for about seventeen years. Despite their apparently affluent lifestyle, the husband presented an income affidavit in this divorce proceeding reflecting a net annual income of about $17,000. This represents about one-quarter of the taxable income he reported in 2005. Most of the difference between his prior-year income and the income reported in his financial affidavit may be traced to his treatment of pass-through income from his S-Corporation. In prior years, the husband distributed much of the pass-through income from the corporation to himself for personal expenses, but he now contends that the pass-through income must be retained in his S-Corporation for corporate expenses.

The wife argued that the trial court should impute income of $8000 per month to the husband based on his past income history and that the trial court should include all of the husbands S-Corporations pass-through income in that figure. The husband argued that Zold v. Zold, 911 So.2d 1222 (Fla.2005), prohibits inclusion of pass-through income if the income is kept in the corporation to pay its overhead and other expenses. The trial court agreed with the husbands characterization of Zold but found that the husband had failed to prove that the income retained in his S-Corporation was solely for corporate expenses. See Zold, 911 So.2d at 1231-33 (concluding that whereas undistributed pass-through income retained by a corporation for corporate purposes does not constitute income within the meaning of chapter 61, “where undistributed ‘pass-through’ income has been retained for noncorporate purposes, such as to shield this income from the reach of the other spouse during dissolution, the improper motive for its retention makes it available ‘income’ under section 61.046(7) or ‘business income’ under section 61.30(2)(a)(3).”)

The trial court concluded that a presumed income of $17,000 per year for the husband would reflect neither his true income nor his earning capacity. Observing that a comprehensive determination of the husband’s imputed income pursuant to Zold could not be fully addressed in the context of an expedited hearing on a motion for temporary relief and basing its conclusion on the information available to it at the time of the hearing, the trial court imputed income to the husband of $4000 per month. Significantly, the trial court further noted that it would undertake a more comprehensive analysis of the husband’s income pursuant to the guidelines in Zold at the final hearing. We share the trial court’s frustration in attempting to arrive at equitable numbers when a party is not candid about his or her actual income and/or expenses. Under the circumstances, with the limited information available and in the context of a request for temporary relief, we conclude that the trial court did not abuse its discretion in imputing net income of $4000 per month to the husband.

Based on the evidence available to it at the hearing, the trial court found that the wife’s monthly net income was $2415 and her expenses were $3776, leaving the wife with a monthly deficit of $1361, and that the husband’s (imputed) net income of $4000 minus current expenses of $2296 left him with a surplus of $1704. The trial court then awarded the wife temporary alimony of $1361, the amount of her deficit. This had the effect of increasing the wife’s net income to $3776 while simultaneously reducing the husband’s net income to $2639.

Next, the trial court awarded temporary exclusive use of the marital home to the wife. This had the effect of increasing the husbands expenses by the amount necessary to procure alternate housing. When added to the husbands expenses, this additional expense would wipe out any surplus he may have had, and may have left him with a monthly net deficit. However, because the trial court was working with an imputed income figure based on limited information, we find no abuse of discretion as to the award of temporary alimony and temporary exclusive use of the marital home. See Ghay v. Ghay, 954 So.2d 1186, 1190 (Fla. 2d DCA 2007) (“[I]t is undoubtedly more difficult to establish an abuse of discretion or a harmful error of law in a temporary order. If the circuit court issues an order that comports with the evidence presented at the temporary hearing and provides a reasonable temporary resolution of the family’s needs in light of their apparent resources, we are unlikely to find any reversible error in the temporary award.”).

The trial court then awarded temporary attorneys fees of $20,000 and temporary costs of $10,000 to the wife. By awarding both temporary alimony and the temporary exclusive use of the marital home to the wife, the parties were placed in substantially equal positions, and the husband no longer had a superior ability to pay. Where the parties are on a substantially equal footing with regard to their ability to pay their own attorney’s fees, it is an abuse of discretion to require one party to pay the other party’s fees. See Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976). Because the parties had been placed on a “substantially equal footing” as a result of the alimony award and the award to the wife of the temporary exclusive use of the marital home, the additional award of attorney’s fees and costs to the wife was error.

We note that in making an award of attorney’s fees, the trial court may also consider, in addition to the financial resources of the parties, “the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.” Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). In this case, the trial court may have had such factors in mind when awarding attorney’s fees and costs to the wife, but the trial court’s order does not make that clear. The trial courts comment, “The court finds these amounts to be reasonable given the highly contentious nature of this litigation,” does not inform this court as to whether the trial court considered the contentiousness of the litigation to be the fault of the husband or the wife or both.

Based on the above, we conclude that the trial court abused its discretion when it ordered the husband to pay the wifes temporary attorneys fees. Accordingly, we reverse the award of temporary attorneys fees. We have considered the other issues raised by the husband in this appeal and find them to be without merit.

We emphasize that this is an appeal from an order granting temporary relief. This opinion shall have no effect on the trial courts determinations in arriving at a final judgment of dissolution in this matter; the trial court is free to reexamine its findings pursuant to the guidelines of chapter 61, Florida Statutes (2006), Zold, 911 So.2d 1222, and Rosen, 696 So.2d 697. See also Ghay, 954 So.2d at 1190 (“If further discovery reveals that a temporary support order is' inequitable or based upon improper calculations, any inequity can usually be resolved in the final judgment, after a full and fair opportunity to be heard.”).

Affirmed in part; reversed in part.

CASANUEVA and STRINGER, JJ., DAEAN, STEPHEN L., Associate Senior Judge, Concur.


author: LaROSE, Judge.

text:
    Hewitt GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-555.
    District Court of Appeal of Florida, Second District.
    April 9, 2008.

      James Marion Moorman, Public Defender, and Dan Hallenberg, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Hewitt Grant appeals his conviction of eighty counts of misdemeanor cruelty to a dog. We have jurisdiction. See Fla. R.App. P. 9.140(b)(1)(A). The trial court sentenced Mr. Grant to 364 days in jail followed by 60 months of probation. He argues that the trial court incorrectly ruled that he voluntarily consented to a search of his property. We agree and reverse.

Facts

Polk County Deputies Wright and Harris went to Mr. Grant’s home to investigate a report that more than one hundred dogs were on the property. The deputies had no evidence suggesting that any dogs were mistreated. When no one answered the door, the deputies peered over and through the slats of a six-foot privacy fence. They saw only some chained or caged dogs. Then, the deputies walked through a gate and searched the property. They found more than a hundred dogs chained to kennels. Most of the dogs were emaciated and had no food or water. Many had scars.

The deputies left the property and called for backup. A neighbor told them that Mr. Grant was on his way home. When Mr. Grant arrived, Deputy Wright told him that the deputies had searched his property and asked him to show them around to explain the dogs’ conditions. Mr. Grant agreed and escorted the deputies around his property. He refused to allow a search of his house. The deputies thereafter obtained a search warrant and found mistreated dogs and other evidence inside. They arrested Mr. Grant for animal cruelty.

Mr. Grant filed an unsuccessful motion to suppress. The trial court concluded that although the State failed to demonstrate that the deputies entered the property lawfully under the plain view doctrine or because of exigent circumstances, the search was lawful because of Mr. Grant’s consent and the inevitable discovery rule.

Analysis

We agree with the trial court that the plain view doctrine is inapplicable. See State v. Morsman, 394 So.2d 408, 409 (Fla. 1981) (holding plain view doctrine did not apply to search and seizure of marijuana in back yard where marijuana was not visible until police entered enclosed yard without warrant). We also agree that no exigent circumstances justified the warrantless intrusion into Mr. Grant’s property.

We cannot agree, however, that the illegality of the deputies’ initial search was cured by Mr. Grant’s subsequent consent to show them around his property. The illegal search prior to Mr. Grant’s arrival tainted the consent and rendered the evidence inadmissible as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Wheeler v. State, 956 So.2d 517, 518-19, 522 (Fla. 2d DCA 2007). The trial court’s twin rationale for finding a valid consent cannot stand. Principally, the trial court reasoned that, because Mr. Grant refused to allow a search of his house, he knew that he could refuse consent for a search of his property. Of course, the deputies had already searched the property, thus demonstrating to Mr. Grant that they had an absolute right to search and that his “consent” to any further search was a mere formality which he could not refuse. See Gonzalez v. State, 578 So.2d 729, 733-34 (Fla. 3d DCA 1991). Under the circumstances before us, Mr. Grant could only conclude that refusing consent would be “a futile gesture amounting to no more than ‘closing the barn door after the horse is out.’ ” United States v. Chambers, 395 F.3d 563, 570 (6th Cir. 2005); United States v. Gamez, 389 F.Supp.2d 975, 982 (S.D.Ohio 2005); see also Norman v. State, 379 So.2d 643, 648 (Fla.1980) (holding consent knowing sheriff had already seen marijuana in prior illegal search was acquiescence to authority).

Norman amply supports Mr. Grant’s position. See 379 So.2d 643. There, the sheriff visited defendant’s farm on a tip that marijuana was stored in the barn. Id. at 645. Finding the gate locked, he climbed over the fence to get to the barn and, looking through a window with the aid of a flashlight, saw marijuana inside. Id. He returned to his office and had the farm watched. Id. A deputy stopped defendant three days later outside the farm. He told defendant that the sheriff had seen the marijuana. Id. He asked if they could go back to the barn to verify that it was still there. Id. Defendant agreed. Id. The supreme court held that any consent to the deputy’s request to view marijuana already found in the warrantless search was “fatally infected by the illegal intrusion.” Id. at 646; see also State v. Kelley, 491 So.2d 1162, 1163-64 (Fla. 2d DCA 1986). Based on the record before us, Norman compels the conclusion that Mr. Grant’s consent did not validate the initial illegal search.

The trial court’s second rationale for ruling that the consent was valid was its finding of an unequivocal break in the chain of illegality between the initial search and Mr. Grant’s subsequent consent that dissipated the taint of unlawful police action. See Norman, 379 So.2d at 647. The “unequivocal break” principle requires us to ask “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 488, 83 S.Ct. 407 (1963) (quoting Maguire, Evidence of Guild, 221 (1959)); see also State v. Frierson, 926 So.2d 1139, 1143, 1150 (Fla.2006). Here, the State failed to clearly and convincingly show that the evidence seized following Mr. Grant’s consent was not obtained by exploiting what they discovered during the prior search. See Wong Sun, 371 U.S. at 488, 83 S.Ct. 407.

Any evidence that the deputies later found in Mr. Grant’s house after securing a warrant was also tainted because they obtained the warrant based on evidence found during the illegal search of his property. See State v. Thomas, 405 So.2d 462, 463 (Fla. 3d DCA 1981) (holding evidence found pursuant to warrant based on probable cause provided by prior illegal entry was inadmissible as fruit of the poisonous tree).

Finally, we cannot agree that the evidence was admissible under the inevitable discovery doctrine. See State v. Duggins, 691 So.2d 566, 568 (Fla. 2d DCA 1997). The doctrine requires that “the case ... be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police misconduct....” Moody v. State, 842 So.2d 754, 759 (Fla.2003). “ ‘[Ijnevitable discovery involves no speculative elementsId. (quoting Nix v. Williams, 467 U.S. 431, 444 n. 5, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). In this case, the deputies lacked any basis to secure a warrant absent their observations after they entered the property. Any assertion that they would have discovered evidence of animal cruelty absent the illegal conduct is speculative.

Reversed.

SALCINES and KELLY, JJ., Concur.


author: CANADY, Judge.

text:
    In re: ESTATE OF James Ollis WOODWARD a/k/a James O. Woodward. Brian Woodward, Appellant, v. Ellen C. Smith, as personal representative of the estate of James Ollis Woodward, Appellee.
    No. 2D07-713.
    District Court of Appeal of Florida, Second District.
    April 9, 2008.
    Stacy L. Sherman of Law Offices of Sherman & Donald, Ft. Myers, for Appellant.
    Elisa S. Worthington of Elisa S. Wor-thington, P.A., Pineland, and John A. Yaun, Clewiston, for Appellee.
   CANADY, Judge.

Brian Woodward (Brian), as an interested residual beneficiary, appeals a final probate order denying his objections to the appellee personal representative’s plan of distribution of estate assets, notice of accounting, and petition for discharge. Brian, who is a son of the decedent, chai-lenges payments made by the personal representative to satisfy an encumbrance on the decedent’s interests in certain properties which were specifically devised to Brian’s brother, James Q. Woodward (Jay). For the reasons we explain, we conclude that Brian’s challenge to the personal representative’s satisfaction of the encumbrance is meritorious. We reject without further comment another issue raised by Brian.

Jay and the decedent operated four sugar cane farms through a general partnership. One of the farms was operated on property owned by the decedent, the Home Farm, and the other three farms were operated on leased land. B & W Farm and Hilliard Farm No. 3 were operated on land leased and developed jointly by Jay and the decedent; the fourth farm, R & W Farm, was operated on land that was leased and developed by Jay.

In 2002, the decedent and Jay consolidated the farms’ existing debt under a single loan agreement. Three of the farms — the Home Farm, B & W Farm, and Hilliard Farm No. 3 — all had existing debt that was consolidated under the loan agreement. The fourth farm, R & W Farm, had no prior debt but was offered as additional collateral under the loan. Pursuant to the consolidated loan agreement, all of the crop proceeds were paid directly to the bank and the bank extended a line of credit to the farming partnership.

The decedent died in July 2002. The decedent’s will did not make any specific devises of property, but it bequeathed the residue of the decedent’s estate in equal shares to Jay, Brian, and three other beneficiaries. A codicil to the will provided that Jay and his wife were to receive as specific devises the decedent’s interests in three of the operating sugar cane farms— B & W Farm, Hilliard Farm No. 3, and R & W Farm. The codicil did not address the consolidated loan agreement encumbrance on these farms. The decedent’s interest in the Home Farm and the Home Farm property were part of the residual estate.

Two years after the decedent’s death, the personal representative of the estate sold the Home Farm property, and the proceeds of the sale were used to pay off the consolidated loan. With the debt on the consolidated loan satisfied, Jay was to inherit the decedent’s interests in the three farms unencumbered. When the personal representative filed her final accounting, plan of distribution, and petition for discharge, Brian objected on the basis that Jay should receive the encumbered assets devised to him not free of the consolidated loan encumbrance but with the encumbrance. Brian argued that two of the three farms — B & W Farm and Hilli-ard Farm No. 3 — were encumbered in the amount of $241,805.81 at the time of the decedent’s death and that the decedent’s interests in the farms should have passed to Jay with that debt. Brian argued that the funds used to satisfy the consolidated loan “should have been held for the interest of the beneficiaries of the [residual] estate.”

Rejecting Brian’s objection, the trial court addressed this issue in a letter ruling. The trial court stated that the decedent “could have put in his will that there be a reduction of [Jay’s] benefit by a like amount [but] that was not in the will.” In its order rejecting Brian’s objections, the trial court did not specifically address the encumbrance issue.

The trial court’s rejection of Brian’s objection to the satisfaction of the encumbrance is inconsistent with the governing provision of the Florida Probate Code. Section 733.803, Florida Statutes (2002), provides that “[t]he specific devisee of any encumbered property shall be entitled to have the encumbrance on devised property paid at the expense of the residue of the estate only when the will shows that intent ” and that “[a] general direction in the will to pay debts does not show that intent.” (Emphasis added.) This statute makes clear that Jay was to inherit his father’s interests in the three encumbered farms free of debt only if the will or codicil specifically expressed the decedent’s intent that Jay would inherit the interests free of debt. Neither the will nor the codicil shows the intent required by the statute. Cf. In re Estate of Sterner, 450 So.2d 1256, 1257 (Fla. 4th DCA 1984) (holding that section 773.803 required residue of estate to pay encumbrances on property where codicil leaving life tenancy in property to specific devisee specifically stated that life tenancy was to be “free of rent and of any encumbrance of any nature whatsoever, such as taxes, liens, pledges, etc., except utilities and telephone”). Although the will states that all the decedent’s legal debts should be paid, the statute plainly provides that such a general direction for the payment of debts does not evidence an intent that encumbrances on devised properties be paid at the expense of the residuary estate.

We reject the personal representative’s argument that section 733.803 only applies to encumbrances that remain unsatisfied at the time of distribution and that she had unfettered discretion to pay debts of the estate during the period of administration. Such an interpretation is inconsistent with the design of section 733.803 to carry out the testator’s intent with respect to the devise of encumbered property.

Accordingly, we conclude that the trial court erred in rejecting Brian’s objection to the satisfaction of the consolidated loan encumbrance by the personal representative from the assets of the residual estate. We reverse the trial court’s order and remand for further proceedings.

ALTENBERND and SALCINES, JJ., Concur.


text:
    Brandyce Kotara RODRIGUEZ, R.N., Petitioner, v. FLORIDA DEPARTMENT OF HEALTH, Respondent.
    No. 1D08-1466.
    District Court of Appeal of Florida, First District.
    April 9, 2008.
    Jeffrey S. Howell of Phipps & Howell, Tallahassee, for Petitioner.
    Josefina Tamayo, General Counsel, and Maura M. Bolivar, Assistant General Counsel, Department of Health, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Bethenecourt-Miranda v. Dep’t of Health, 910 So.2d 927 (Fla. 1st DCA 2005).

POLSTON, THOMAS, and ROBERTS, JJ., concur.


author: SHAHOOD, C.J.

text:
    Mickey KIDD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4871.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, C.J.

Appellant, Mickey T. Kidd, was found guilty by a jury of one count of first-degree murder with a firearm and one count of attempted robbery with a firearm. The sole issue he raises on appeal is his claim that he received ineffective assistance of counsel.

“The general rule is that the adequacy of a lawyer’s representation may not be raised for the first time on a direct appeal. The rationale for the rule is that that issue has not been raised or ruled on by the trial court.” Dennis v. State, 696 So.2d 1280, 1282 (Fla. 4th DCA 1997). Such claims should properly be raised on a motion for post-conviction relief. See Bradberry v. State, 922 So.2d 457, 458 (Fla. 4th DCA 2006). Appellant asserts that the present case falls into the exception to the above rule, where an appellate court may review an ineffective assistance of counsel claim on direct appeal when the claimed ineffectiveness is apparent on the face of the record. Florida courts have recognized such an exception in limited circumstances. See Mansfield v. State, 758 So.2d 636, 642 (Fla.2000).

Appellant cites Gordon v. State, 469 So.2d 795, 798 (Fla. 4th DCA 1985), in which this court acknowledged the general rule against ineffective assistance claims on direct appeal but found that'trial counsel’s deficient performance was apparent on the face of the record. However, this court noted that Gordon was an extraordinary case because the appellant had pointed out 104 instances where defense counsel had failed to object to improper questions or comments by the prosecutor. Gordon, 469 So.2d at 797. Concurring specially, Judge Anstead wrote to caution litigants that the court would not ordinarily hear ineffective assistance claims on direct appeal, and that the proper procedure for such a claim was a motion for post-conviction relief:

Such claims ordinarily turn on issues of fact and both sides are entitled to present relevant evidence to the trial court to resolve those issues. It is only because of the gross and patent showing of ineffectiveness virtually conceded by the state on this record that we are taking the highly unusual step of intervening at this stage of the proceedings.

Id. at 798. After the passage of section 924.051, Florida Statutes (Supp.1996), governing the terms and conditions of appeals and collateral review in criminal cases, appellate courts are even more reluctant to review an ineffective assistance claim on direct appeal. See Wingate v. State, 729 So.2d 492, 493 (Fla. 1st DCA 1999)(finding appellant s ineffective assistance claim not properly raised on direct appeal in light of enactment of section 924.051, Florida Statutes (Supp.1996)); Dennis, 696 So.2d at 1282 n. 1 (stating that this court would not reach question of continued viability of Gordon, in light of passage of section 924.051, Florida Statutes (Supp.1996)).

Appellant claims defense counsel rendered ineffective assistance because he allowed the state to introduce inadmissible hearsay in the form of prior testimony of an unavailable witness where state failed to prove the unavailability of the witness. The record shows that appellant’s trial counsel did not simply fail to object, but that appellant and his counsel discussed the matter and decided for their own reasons to allow the state to admit the testimony uncontested. We make no ruling on the trial court’s admission of the testimony. We hold only that ineffective assistance of counsel was not apparent from the face of the record.

We therefore affirm without prejudice to appellant’s ability to file a rule 3.850 motion as he may deem appropriate.

Affirmed.

POLEN and MAY, JJ., concur.


text:
    Andrew William YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0550.
    District Court of Appeal of Florida, First District.
    April 10, 2008.

      Nancy Daniels, Public Defender, David P. Gauldin, Assistant Public Defender, and David A. Davis, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Shelly A.R. Chichester, Assistant Attorney General, and Bryan Jordan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the conviction and the sentence imposed by the court on the revocation of the defendant’s probation. However, we remand the case to the trial court for the entry of a written order specifying the conditions of probation the defendant violated. See Jones v. State, 638 So.2d 126 (Fla. 1st DCA 1994); Greene v. State, 919 So.2d 684 (Fla. 2d DCA 2006).

ALLEN, WEBSTER, and PADOVANO, JJ., concur.


text:
    Joseph KICKLIGHTER, Appellant, v. CITY OF JACKSONVILLE, Appellee.
    No. 1D07-1890.
    District Court of Appeal of Florida, First District.
    April 10, 2008.
    James H. Daniel and John J. Schickel of Coker, Schickel, Sorenson & Daniel, P.A., Jacksonville, for Appellant.
    Richard Mullaney, General Counsel, and Michael J. Arington and Wendy L. Steiner, Assistant General Counsels, Jacksonville, for Appellee.
   PER CURIAM.

The record does not contain competent substantial evidence to support the Judge of Compensation Claims’ (JCC) finding that claimant, Joseph Kicklighter, was able to engage in at least sedentary employment within a 50-mile radius of his residence. , The JCC’s determination that claimant was not entitled to permanent total disability (PTD) benefits was based on this finding. Accordingly, we reverse that portion of the final compensation order denying claimant PTD benefits and remand with directions for the trial court to enter a new final order awarding claimant PTD benefits pursuant to section 440.15(l)(b), Florida Statutes (2004).

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


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. LAMER CONDOMINIUM ASSOCIATION OF N.W. FLORIDA, INC., Appellee.
    No. 1D07-2083.
    District Court of Appeal of Florida, First District.
    April 10, 2008.

      John A. Unzicker, Jr. of Vernis & Bowling of Northwest Florida, P.A., Pensacola, and G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gil-lam, P.A., Jacksonville, for Appellant.
    Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, for Appel-lee.
   PER CURIAM.

REVERSED and REMANDED for proceedings consistent with Florida Farm Bureau Casualty Insurance Co. v. Cox, 967 So.2d 815 (Fla.2007).

BARFIELD, POLSTON, and ROBERTS, JJ., concur.


text:
    James R. BUCK and T. Ryan Buck, Appellants, v. ITN/GRATE PALLET, INC., a Florida corporation, and Richard S. Ludlow, Appellees.
    No. 1D07-3635.
    District Court of Appeal of Florida, First District.
    April 10, 2008.
    R. Kyle Gavin and John A. Carlisle, of Liles, Gavin, Costantino & Gerorge, Jacksonville, for Appellants.
    Howell Hollis, III, of Smith Moore LLP, Atlanta, Georgia; James H. Post, of Smith Hylsey & Busey, Jacksonville; Jacob A. Brown, of Akerman, Senterfitt, Jacksonville; W. David Vaughn, Jacksonville; William L. Finger, Jacksonville; Richard R. Thames and Bradley R. Markey, of Stuts-man, Thames & Markey, Jacksonville; and Hayden & Facciolo, P. A., Jacksonville, for Appellees.
   PER CURIAM.

This is an appeal from an “Order on Motion to Enforce Order of Court and to Enjoin Foreclosure Sale and Emergency Motion for Temporary Injunction” denying appellants’ motion to reopen a closed assignment for the benefit of the creditors proceeding. The case below involved an assignment for the benefit of creditors proceeding brought pursuant to Chapter 727. “An assignment for the benefit of creditors is an alternative to bankruptcy and allows a debtor to voluntarily assign its assets to a third party in order to liquidate the assets to fully or partially satisfy creditors’ claims against the debt- or.” Hillsborough County v. Lanier, 898 So.2d 141, 143 (Fla. 2d DCA 2005).

We affirm the trial court’s order denying appellant’s motion to reopen the proceeding, including its ruling that the orders are without prejudice to the appellants to pursue their claims in a court of appropriate jurisdiction. These claims include whether the debt to Columbia Bank was satisfied and the issues relating to the foreclosure sale of the patents.

AFFIRMED.

BARFIELD, POLSTON, and ROBERTS, JJ., concur.


author: DAVIS, Judge.

text:
    Manuel L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4830.
    District Court of Appeal of Florida, Second District.
    April 11, 2008.
   DAVIS, Judge.

Manuel Johnson appeals the postconviction court’s denial of his motion to accredit jail time filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

On December 13, 2006, Johnson was arrested for possession of marijuana with intent to sell or deliver (count two), possession of drug paraphernalia (count three), possession of cocaine with intent to sell or deliver (count four), burglary of an occupied structure (count five), and driving without a valid driver’s license (count six). On January 19, 2007, a capias was issued to arrest Johnson for the offense of possession of a firearm by a person under age twenty-four previously adjudicated delinquent (count one). Johnson was arrested on that charge on January 22, 2007. Upon sentencing, Johnson was awarded 223 days of jail credit on counts two through six; however, he was awarded only 183 days of credit on count one.

In his motion, Johnson claims that he is entitled to a total of 223 days’ jail credit on each count. The postconviction court denied Johnson’s motion, finding that he received the proper amount of credit based on the later arrest date on count one. However, the postconviction court erred when it denied the motion on that basis.

From our review of the limited attachments to the postconviction court’s order, it appears that each count stems from the same criminal episode for which Johnson was originally arrested on December 13, 2006. All six counts were disposed of under the same case number: Johnson was sentenced to concurrent terms of twenty-four months’ imprisonment for counts one, two, and four and to time served on counts three, five, and six. Johnson claims that he remained in jail continuously from December 13, 2006, until sentencing on July 24, 2007. The records attached to the postconviction court’s order do not refute Johnson’s claim that he is entitled to the same amount of jail time credit for each count. See McQueen v. State, 870 So.2d 77 (Fla. 2d DCA 2003).

Because the record before this court does not refute Johnson’s claim, we reverse and remand. On remand, the trial court shall either correct Johnson’s sentence by awarding him the additional jail credit on count one or attach portions of the record conclusively refuting his claim.

Reversed and remanded.

CASANUEVA and LaROSE, JJ., Concur.