source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ernest Charles DOWNS, Appellant, v. STATE of Florida, Appellee.
    No. SC04-345.
    Supreme Court of Florida.
    Dec. 13, 2007.
    Rehearing Denied March 11, 2008.
    Jefferson W. Morrow, Jacksonville, FL, for Appellant.
    Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.

      . The judge instructed the jury as follows (Florida Standard Jury Instruction (Criminal) 2.17 (1976)):
      The punishment provided by law for the crime of murder is greater if, as is charged in this case, the defendant, during the commission of such crime, carries a firearm. Should you find the defendant guilty of murder of any degree, it will be necessary for you to find in your verdict whether it has been proved beyond a reasonable doubt that the defendant, during the commission of the crime, did use a firearm.

   PER CURIAM.

This case is before -the Court upon review of an order denying postconviction relief in a capital murder proceeding. We have jurisdiction. See article V, § 3(b)(1), Fla. Const. We affirm the trial court’s denial of a successive motion for postcon-viction relief filed by appellant, Ernest Charles Downs, in this 1977 murder case.

Initially, Downs takes issue with the trial court’s response to a question from the jury that convicted him of first-degree murder. Downs asserts that his indictment for first-degree murder stated that he “unlawfully and from a premeditated design to effect the death of Forrest J. Harris, Jr., a human being, did kill the said Forrest J. Harris, Jr., by shooting him to death with a pistol, and in the course of committing said murder, carried a firearm or other deadly weapon, to-wit: a pistol, contrary to sections 782.04 and 775.087, Florida Statutes.” Downs then notes that, at the close of the guilt phase, the judge gave the jury a specific instruction on the use of a firearm and then explained the verdict form, which required the jury to decide if Downs was guilty of first, second, or third-degree murder or manslaughter, and also required them to find if he did or did not use a firearm. During deliberations the jury asked the trial judge to answer a question:

In regard to the question as to whether the defendant did or did not use a firearm, must the defendant be guilty of actually pulling the trigger, or is he guilty of using the firearm through association of being an accomplice in a murder of which a firearm was used?

The record indicates that, once the jury gave the judge the question, the jury was excused and counsel for both parties remained to discuss the question. The judge then asked to meet with counsel in chambers to discuss a proper way for responding to the jury. After deliberating, the judge and the attorneys returned to the courtroom and called for the jury to return. At that point, the judge asked the jury if the question was in regards to the standard jury instruction on “felony aggravated by a weapon,” and the jury replied affirmatively. Conferring at the bench, the State noted that the question had to do with the statutes that mandated an additional mandatory three-year sentence if a firearm is used in a felony, and the State suggested that the part of the verdict form referring to the carrying of a firearm and the mandatory three-year sentence be deleted. The court clarified that the State meant the part about use or non-use of a firearm, and, thereafter, both attorneys, including defense counsel, agreed the trial court could so instruct the jury. The judge then told the jury,

As you recall, the verdict form has, as to count one, a number of choices, and then it says further, did the defendant use or not use a firearm. We are asking at this time that you delete, “Did use a firearm or did not use a firearm.” Just totally disregard that from your consideration at this point. All you need to do is find a verdict as to count one, and your verdict as to that count, and as to count two and your verdict as to that count.

Downs now argues that the judge should have answered the jury’s submitted question in the negative. He submits that, by instructing the jury to disregard the finding as to the use of the handgun, the jury was essentially instructed to totally disregard whether or not Downs shot and killed Harris as charged in the indictment. According to Downs, the trial judge’s instructions were a “fatal variance” that amounted to a constructive amendment of his murder indictment, and that it relieved the State of its duty of proving all the elements of the offense and relieved the jury of its initial instruction to find Downs guilty beyond a reasonable doubt of all the essential elements charged in the indictment.

Downs presented this claim below as a Florida Rule of Criminal Procedure Rule 3.800 “Motion to Correct Defendant’s Death Sentence to Life, if Not Just 30 Years for Conspiracy.” In finding that Downs was not entitled to relief, the lower court first found that Downs’ sentence was not “illegal” as the term has been defined by this Court and thus he could not seek relief pursuant to rule 3.800. The court also found that the claim could not be pursued under Florida Rule of Criminal Procedure 3.850 because it would be both untimely and barred as an issue that should have been raised on direct appeal.

We find no error in the trial court’s rejection of this claim. First, Downs could not assert this claim under rule 3.800 since the rule plainly states that it is inapplicable in cases where the death sentence has been imposed. See Fla. R.Crim. P. 3.800(b). Second, as noted by the trial court, Downs faces a significant procedural bar under Florida Rule of Criminal Procedure 3.851, in that he has not properly established why this claim was not raised earlier, or why it could not have been raised on direct appeal.

Regardless, as the State notes, this Court in Cox v. State, 819 So.2d 705, 715 (Fla.2002), held that “[u]nder Florida law, ‘[a] party may not invite error and then be heard to complain of that error on appeal.”’ Id. (quoting Pope v. State, 441 So.2d 1073, 1076 (Fla.1983)). As in Cox, the “error” Downs asserts was fully discussed by defense counsel, the state attorneys, and the trial judge before all parties agreed to deleting the firearm language.

As to its merits, relief is still properly denied on this claim. The deleted language from the verdict form concerned a sentencing enhancement provision provided in section 775.087, Florida Statutes (Supp.1976), and did not constitute an essential element of first-degree murder. In charging the jury, the judge stated:

The defendant, Ernest Charles Downs, is charged with the crime of murder in the first degree in that on April 23,1977, in the County of Duval, State of Florida, did unlawfully and from a premeditated design to effect the death of Forrest J. Harris, Jr., a human being, did kill the said Forrest J. Harris, Jr. by shooting him to death with a pistol, and in the course of committing said murder carried a firearm or other deadly weapon, to wit: a pistol, contrary to Section 782.05[sic] and 775.087, Florida Statutes.

Carrying a weapon in the course of committing the crime was not an essential element of first-degree murder. Hence, the deletion of the sentence enhancement provisions of section 775.087 had no impact on the validity of the murder charge or conviction. Given that the jury returned a guilty verdict on the charge of murder in the first degree after being instructed on all elements of that charge, Downs’ argument that the judge somehow removed an element of the crime from the jury’s consideration is without merit.

Downs also contends that his death sentence is invalid under the holding in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). However, this Court has held that Ring may not be applied retroactively in postconviction proceedings. See Johnson v. State, 904 So.2d 400 (Fla.2005). The remainder of the issues raised by Downs were not asserted in the trial court and, hence, may not be asserted here. For all of the reasons set out above we affirm the trial courts order denying postconvietion relief.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.


text:
    Gordon Wayne WATTS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Fox Protective Services, Inc., Appellees.
    No. 1D07-4846.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 20, 2007.
    Gordon Wayne Watts, pro se, Appellant.
    Geri Atkinson-Hazelton, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 21, 2007, the Court has determined that the notice of appeal was not timely filed. Cf. Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999); Dominguez v. Barakat, 609 So.2d 664 (Fla. 3rd DCA 1992). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

WOLF, POLSTON, and THOMAS, JJ., concur.


text:
    Anderson J. PARKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4830.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    Rehearing Denied Dec. 20, 2007.
    Anderson J. Parker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. See Fla.. RApp. P. 9.141(c).

WOLF, POLSTON, and THOMAS, JJ., concur.


text:
    Kerry Eugene WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4123.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2007.

      C. Richard Parker, Public Defender, and Nicole H. Fried, Assistant Public Defender, Gainesville, for Petitioner.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is granted. See Cohens v. Elwell, 600 So.2d 1224 (Fla. 1st DCA 1992).

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


author: PADOVANO, J.

text:
    SHANDS TEACHING HOSPITAL AND CLINICS, INC., Appellant, v. Michael Adam DUNN and Kathie Lynette Dunn, individually and as co-personal representatives of the estate of Michael Dylan Dunn, Appellees.
    No. 1D06-4086.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.
    Rehearing Denied March 27, 2008.

      Susan L. Kelsey of Anchors Smith Grimsley, Tallahassee, for Appellant.
    Rebecca Bowen Creed of Mills & Creed, P.A., Jacksonville; Alan E. McMichael of Stripling, McMichael & Stripling, P.A., Gainesville, for Appellees.
   PADOVANO, J.

The defendant, Shands Teaching Hospital & Clinics, Inc., appeals a final judgment entered on a jury verdict awarding $2 million to the plaintiffs, Michael and Kathie Dunn, for medical negligence in connection with the death of their son, Dylan. The plaintiffs alleged that a hospital nurse, Susan Lim, failed to properly monitor Dylan’s condition following open heart surgery and that she gave him an excessive amount of a powerful medication known as Digoxin. We reverse the judgment on two grounds, either of which would require a new trial.

First, the trial court erred in excluding evidence that the hospital had a routine practice of requiring the attendance of two nurses when drugs such as Digoxin are administered, in order to ensure that the patient receives the prescribed dosage. The evidence of this practice may have made a difference in the outcome of the case, given the fact that there was no direct evidence that Nurse Lim gave the child more than the prescribed dose. Second, the trial court erred in denying the hospital’s motion to continue the trial until such time as Nurse Lim could appear in court to testify in person before the jury. Because Nurse Lim’s alleged negligence was the centerpiece of the case, the hospital should have been allowed to defend itself by presenting her testimony directly to the jury. In this situation, we conclude that the trial court abused its discretion by denying the hospital’s motion for a continuance.

Dylan was born with a heart defect known as tricuspid atresia, a condition in which the tricuspid valve is not properly formed and impedes blood flow and normal heart function. This defect is corrected surgically by the Fontan procedure, which is actually a series of three surgical procedures performed in sequence over the course of the first few years of the child’s life.- The Fontan procedure is risky, but a child born with a tricuspid atresia cannot survive without it.

The controversy in this case arose from the medical care Dylan received in the pediatric intensive care unit at the hospital following the third procedure. He was fairly stable on the first day after surgery, but on the second day he developed a rapid heartbeat and an abnormal heart rhythm. He was suffering from a form of tachycardia that develops as a post-surgical complication in fifteen to twenty percent of the children who have the Fontan procedure. The condition is not only difficult to treat, it is also serious, in that it impairs the functioning of the heart.

The doctors tried a number of corrective measures, but nothing proved to be effective in slowing Dylan’s heart rate or correcting his abnormal heart rhythm. They gave him a saline-type solution to build up the volume of the heart, they sedated him with a dose of morphine, and then they administered a series of other drugs that are ordinarily used to correct heart ar-rhythmias. When these measures failed, they prescribed Digoxin.

Digoxin can improve the pumping action of the heart, but this potential benefit comes with risks. _ One possible adverse consequence of the drug is that it may cause the concentration of potassium in the patient’s blood to rise to an unsafe level. Another consideration is that the drug is said to have a narrow therapeutic range: the difference between a safe, effective dose and a toxic dose is relatively small. For these reasons, the hospital controls access to Digoxin. It can be obtained only from a special dispensing machine that requires a user name and password.

Dylan was to receive a total of 450 micrograms of Digoxin, with an initial dose of 225 micrograms to be followed by two doses of 112.5 micrograms over the course of the next two days. When the order was given, Nurse Lim obtained an ampule of Digoxin from the dispensing machine. The procedure at that point would be to measure out the initial dose from the ampule and to administer it to the patient.

Nurse Lim gave Dylan the initial dose of Digoxin, but she incorrectly charted the dose as 225 milligrams instead of 225 micrograms. The parties agree that the charted amount could not have been correct, as the entire ampule contained only 500 micrograms. However, the amount that was given could not be calculated by the amount that remained in the ampule, because the unused portion was eventually destroyed as medical waste, and Digoxin is not within the class of drugs that requires a destruction record.

Dylan’s potassium level had been higher than normal throughout the day and, when the initial dose of Digoxin was administered, it began to rise even higher. It continued to rise for the next seventy-five minutes, at which point he went into cardiac arrest. Doctors tried for several hours to resuscitate him by various means but they were ultimately unable to restart his heart.

In their complaint against the hospital, the plaintiffs alleged that Nurse Lim was negligent, in that she failed to properly monitor Dylan’s condition after his surgery. They contend that, as a result of this negligence, the doctors were not able to take the proper action to save Dylan’s life. Relying in part on the opinions of other doctors, the plaintiffs also alleged that Nurse Lim administered an overdose of Digoxin, which caused a rapid and uncontrolled increase in Dylan’s potassium level. This, they maintain, was the underlying cause of his death.

The trial began as scheduled in October 2005, but, after the jury had been selected and sworn and the parties had presented several days of testimony, the presiding judge was disqualified. This required a mistrial, and the case was then assigned to another judge and rescheduled for a jury trial on June 5, 2006.

Nurse Lim testified as a defense witness in the first trial, but the parties soon learned that she might not be available for the second trial. On February 20, 2006, counsel for the hospital informed the successor judge that Nurse Lim was pregnant and that she was due to deliver her baby on June 7, 2006. He feared that she might not be able to attend the second trial, a concern the trial judge apparently shared. The judge noted that it would be important to have Nurse.Lim appear in person. As he explained, “I just trust that you all probably want her live. One of the things that I’m going to be encouraging ... is live witnesses. I know you’ve already done a trial, but there’s nothing worse than re-plowing the ground with nothing but depositions and reading to the jurors.” The judge ended the discussion' on this point by telling the lawyers that he would deal with the issue later.

On March 20, 2006, the hospital moved for a continuance on the ground that Nurse Lim would not be available to testify in person. She was living in another city by then, and her doctors had advised her that she could not travel during the early part of June. The judge denied the motion, explaining that, although he preferred live testimony, he was “somewhat in error” to suggest that the trial would be continued because of Nurse Lim’s pregnancy. The judge suggested that finding an alternative date would be too burdensome, and the parties then made arrangements to have Nurse Lim appear for a video deposition to be used in place of live testimony.

In her video deposition, Nurse Lim stated that she had cared for many sick children during her time at the hospital. She did not remember Dylan but she was able to offer pertinent information about his medical care from her review of the nursing charts and her knowledge of the hospital’s procedures. She testified that she had removed a 500-microgram ampule of Digoxin from the dispensing machine and that she had used a calculator to convert the dosage to a fluid measurement. She explained that the calculations are very simple. The drug is dissolved in a solution. Given the fact that 250 micrograms of Digoxin would be the equivalent of one cubic centimeter of the solution, she used the calculator to conclude that the liquid measurement of the prescribed dose would be .9 cubic centimeters. She said she was certain this was the amount of Digoxin she had given to Dylan.

In the course of the video deposition, Nurse Lim also testified that the hospital has a policy of double checking the dosage of certain drugs including Digoxin, before they are administered to patients. The practice is to require that a second nurse review the calculation and measurement, to make sure that the dosage is correct. Nurse Lim testified that it was her routine to double check with another nurse before administering drugs, such as Digoxin, that are subject to this policy. She said that other nurses followed the practice, as well. Other nurses had checked her work many times before, and vice versa.

When the parties first asked the court to review Nurse Lim’s deposition to consider the various objections by the plaintiffs, the trial judge determined that the evidence pertaining to the hospital’s policy of double checking would be admissible. However, during the course of the trial, the judge reversed, course on this point and ruled that there would be no testimony concerning the policy. Thus, the jurors were not informed that Nurse Lim would have been required to have another nurse present to check her calculations against the doctor’s prescription.

Medical experts for the plaintiffs testified that blood tests done during Dylan’s autopsy were consistent with the' conclusion that he had died of an overdose of Digoxin. The plaintiffs’ experts were of the opinion that the levels of Digoxin found in his blood suggested that he had been given more than the 225 micrograms of Digoxin he was supposed to receive as the initial dose. They concluded that the rapidly rising potassium levels that ultimately caused Dylan’s death resulted from an excessive amount of Digoxin.

In contrast, the hospital’s experts testified that Dylan’s congenital heart disease and the trauma of his recent surgery had caused the increase in his potassium level. They accepted the possibility that an excessive amount of Digoxin could have caused a marked increase in potassium, but they believed that Dylan’s potassium level was so high that it was more likely produced in his body as a consequence of his medical condition. The jury rejected this explanation and found for the plaintiffs.

Whether the trial court erred in excluding the evidence of a routine practice is an issue of law. We acknowledge that many issues pertaining to the admission or exclusion of evidence are subject to review by the abuse of discretion standard. However, the de novo standard applies if the issue presented on appeal is whether the trial court erred in applying a provision of the Florida Evidence Code. See McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006); Burkey v. State, 922 So.2d 1033 (Fla. 4th DCA 2006). If the hospital’s policy of requiring two nurses qualifies as a routine practice of an organization as defined in the Florida Evidence Code, the hospital would be entitled to present evidence of the policy. There was no dispute regarding the factual predicate for the admission of the policy; it either quali-fíes under the Evidence Code as a routine practice or it does not. Hence, we conclude that the issue is one of law.

The policy in this case could have been proven either by documentary evidence or by witness testimony. However, we confíne our consideration to the proposed testimony, inasmuch as the document memorializing the policy was not proffered in evidence during the second trial. Unlike the documentary evidence, the testimony was proffered. The hospital offered in evidence Nurse Lim’s video deposition, which included her explanation of the procedure for administering Digoxin.

The plaintiffs contend that the issue regarding Nurse Lim’s testimony is not preserved for review, because the hospital initially prevailed on this point and then failed to object when the trial court decided to exclude the evidence during the course of the trial. However, our review of the record reveals that the hospital did object to the exclusion of this evidence. It is clear at several points in the record that the hospital took the position that it should have been allowed to present Nurse Lim’s testimony that two nurses would have been present. Hence we conclude that the issue was properly preserved for review.

That leaves us to decide whether the trial court erred by excluding the proposed evidence of the hospital’s practice. To answer' this question, we turn first to the applicable statute. Section 90.406, Florida Statutes states,

Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.

§ 90.406 Fla. Stat. (2007). The existence of a routine practice creates an inference that an agent or employee of the organization acted according to the practice. See Tabb v. Fla. Birth-Related, Neurological Injury Comp. Ass’n, 880 So.2d 1253, 1259 (Fla. 1st DCA 2004). In the absence of contrary evidence, jurors may properly assume that an employee has adhered to established procedures.

Prior to the enactment of the Evidence Code, some courts held that proof of a routine practice was admissible only if there were some independent evidence that the practice was followed at the time of the event in question. See Charles W. Ehrhardt, Florida Evidence § 406.1 (2007 ed.). However, it is clear from the text of section 90.406 and the applicable cases that evidence of a routine practice is now admissible without such a showing. See Progressive Am. Ins. Co. v. Kurtz, 518 So.2d 1339 (Fla. 5th DCA 1987). This rule places evidentiary value on the practice itself.

The present case illustrates the reason for the rule. Nurse Lim could not remember Dylan in particular, and she could not say from her memory alone that she gave him gave him 225 micrograms of Digoxin, as the doctors had ordered. Nor could this be proven by the nursing chart. At best, the chart would show the amount of Digoxin she believed she had given him. Yet the jurors might have concluded that she gave Dylan precisely 225 micrograms of the drug, had they known that there would have been another nurse present for the purpose of ensuring that Nurse Lim administered the correct dosage.

The evidence of the hospital’s routine practice would have served to forcefully rebut the plaintiffs’ claim that Nurse Lim administered an overdose of Digoxin. The trial court erred in excluding this evidence, and because there was no direct proof of the alleged overdose, we are not able to say that the error was harmless. Although this point alone would warrant reversal, we believe that the trial court also committed reversible error by denying the hospital’s motion for a continuance.

Whether to grant or deny a motion to continue a trial is a matter that rests within the sound discretion of the trial judge. Therefore, Florida courts have held that a judgment should not be reversed on appeal on the ground that the trial court ruled improperly on a motion for continuance, unless the ruling amounts to an abuse of discretion. See' Carpenter v. Carpenter, 451 So.2d 914, 916 (Fla. 1st DCA 1984); Fasig v. Fasig, 830 So.2d 839, 841 (Fla. 2d DCA 2002).

A ruling On a motion for continuance is treated with a relatively high degree of deference, even among other kinds of discretionary decisions. The Florida Supreme Court.has noted that a reversal on the ground that the trial co.urt erred in denying a motion for a continuance requires a “clear showing of a palpable abuse of ... judicial discretion.” Webb v. State, 433 So.2d 496, 498 (Fla.1983). We take this to mean that the court has required even greater deference to continuance orders than is required of other discretionary rulings.

In light of this standard, we acknowledge that a reversal for failure to grant a motion for continuance would be justified • only--in very rare situations. However, there are indeed cases in which the appellate court will have no alternative but to reverse, because the injustice caused by the denial of the motion outweighs the judicial policy of deferring to the trial judge. See, e.g., Silverman v. Millner, 514 So.2d 77, 78 (Fla. 3d DCA 1987). In our view, this is one of those cases. ■

The need for a continuance in this case was compelling. Nurse Lim was pregnant and her doctor had ordered her not to travel. This was not a problem of the hospital’s making. Likewise, the hospital could not have offered an effective solution to the problem. No other witness could have given testimony that would have been as effective as Nurse Lim’s live explanation to the jury.

Nor does it appear that the reasons for denying the motion outweighed the reasons for granting it. In our view, there was no good reason to deny the motion. The trial judge said that it would be too burdensome to find another trial date. That might have been a legitimate reason to deny a continuance if the hospital had waited until the last minute to seek a continuance on grounds that could have been asserted earlier. However, in this case the hospital informed the court that Nurse Lim would be unavailable more than three months before the trial, at a time when it would have been possible to reschedule the trial without any disruption.

We would be more inclined to excuse the error in denying the motion for continuance if Nurse Lim were not such an important witness. The claim against the hospital was based entirely on the allegation that Nurse Lim was negligent. She stood in the shoes of the hospital, and her testimony would have given voice to the hospital’s defense. If the jury believed Nurse Lim’s statement that she monitored Dylan’s condition properly and gave him the correct amount of Digoxin, the hospital would have prevailed. Yet the jury did not have the advantage of observing her live testimony. The denial of the motion for continuance deprived the hospital of the opportunity to put Nurse Lim on the witness stand so she could explain herself to the jury in person.

For these reasons, we conclude that the judgment must be reversed and that the hospital is entitled to a new trial. In light of this disposition, we find it unnecessary to address any of the other issues presented, except to say that we reject the hospital’s argument that the trial court erred in denying its motion for a directed verdict. Had the hospital succeeded on that point, it would have been entitled to a judgment in its favor, not merely a new trial.

Reversed and remanded.

ALLEN and VAN NORTWICK, JJ, concur.

      . The document entitled, "Medical Administration Policy,” states that two nurses must be present when Digoxin is administered to a patient, to ensure the correct concentration and dosage. This document was attached to the deposition Nurse Lim gave before the first trial and it was introduced by the plaintiffs in the first trial. However, for reasons that are not clear to us, neither party offered it as an exhibit in the second trial.


author: STEVENSON, J.

text:
    AQUATIC PLANT MANAGEMENT, INC., Appellant, v. PARAMOUNT ENGINEERING, INC. and American Safety Casualty Insurance Company, Appellees.
    No. 4D06-4589.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.

      Douglas J. Roberts of Leiby Stearns and Roberts, P.A., Fort Lauderdale, for appellant.
    Guy W. Harrison, Jeff Geller and Edward Etcheverry of Etcheverry Harrison LLP, Fort Lauderdale, for appellee American Safety Casualty Insurance Company.
   STEVENSON, J.

The issue in this appeal is whether an unpaid subcontractor on a public project can state a claim against the issuer of the statutorily-required payment bond when the materials for which the subcontractor seeks recovery were neither delivered to the site nor incorporated into the project, but were nevertheless “specially fabricated” for the job. Because the legislature has made persons furnishing labor, services or materials who may qualify as claimants under the public project payment bond law (chapter 255) consistent with those who qualify as lienors under the mechanics’ lien law (chapter 713), and since specially fabricated materials are an exception to the delivery or incorporation requirements for those persons under chapter 713, we answer the question in the affirmative. We therefore reverse the order dismissing the subcontractor’s claim against the payment bond.

In March 2004, the City of Coral Springs entered into a contract with Paramount Engineering, Inc., for the construction or creation of the “Coral Springs Sportsplex Wetland Creation Project” on publicly-owned property in Broward County. Paramount subcontracted with Aquatic Plant Management, Inc. The contract between Paramount and Aquatic required that Aquatic install a drainage system, and provide and install certain plants. The contract provided that any delays to planting beyond six months would result in maintenance fees to the contractor.

In October 2005, Aquatic brought suit against Paramount and American Safety Casualty Insurance Company, the issuer of the payment bond required by section 255.05, Florida Statutes (2006). Counts I and III of the Amended Complaint stated a claim against Paramount for breach of contract and unjust enrichment/quantum meruit, respectively, alleging the failure to pay Aquatic for the plant materials and the maintenance of these plants when they were not installed as contemplated by the contract. Gount II sought relief against both Paramount and American under the payment bond.

American filed a motion to dismiss count II, arguing that Aquatic could not state a claim for recovery under the payment bond because section 255.05 requires “incorporation” of the materials into the improvement and, while Aquatic alleged the plant materials were “specially fabricated,” there was no “specially fabricated” materials exception to chapter 255’s “incorporation” requirement. Alternatively, American argued the claim was barred by the statute of limitations. The trial court granted the motion to dismiss without prejudice, finding that Aquatic was a subcontractor; that the “goods manufactured” by Aquatic did not constitute “specially fabricated” materials; and that the goods were not incorporated into the improvement.

Aquatic, filed a Second Amended Complaint, adding factual allegations to support its claim that the materials were “specially fabricated,” i.e., the contract required it to grow and maintain plants that were not available on the open market, specific to the project, and not suited for use in another project. American again sought dismissal, raising the same arguments advanced in its earlier motion. This time, the court dismissed the claim with prejudice finding “incorporation” of the materials into the .improvement is a predicate to claim under section 255.05. The court declined to address American’s alternative argument concerning the statute of limitations.

The issues raised here are ones of law, i.e., the dismissal of a claim for failure to state a cause of action and the construction to be afforded section 255.05, and thus subject to de novo review. See Am. Honda Motor Co. v. Cerasani, 955 So.2d 543, 545 (Fla.2007) (issues of statutory construction); Schilling v. Herrera, 952 So.2d 1231, 1234 (Fla. 3d DCA 2007) (dismissal of complaint for failure to state a cause of action), review denied, 962 So.2d 337 (Fla. 2007). Having reviewed the relevant statutes, we conclude that chapter 713’s “specially fabricated” materials exception has been incorporated in section 255.05 and thus the trial court erred in dismissing Aquatic’s claim against American.

Chapter 713, Florida Statutes, governs mechanics’ liens on privately-owned property and provides for a lien in favor of those “who perform labor or services or furnish materials constituting an improvement.” See § 713.02(3)-(4), Fla. Stat. (2006). These classes of persons, including “materialman,” “laborer,” and “subcontractor” are defined by chapter 713. A mate-rialman is one who furnishes materials but not labor, and a laborer furnishes labor but not materials. See § 713.01(15), (19), Fla. Stat. A “subcontractor” is one who is contractually obligated to perform a specific part of the contractor’s contract, i.e., labor, services, or the furnishing of materials in accordance with the specifications of the primary contract. See' § 713.01(27), Fla. Stat.; see also § 713.06(1). Moreover, to “furnish materials” means to “supply materials which are incorporated in the improvement ...; or specially fabricated materials for incorporation in the improvement.” § 713.01(12), Fla. Stat. (emphasis added). As a consequence of these definitions, under chapter 713, in order for one who has furnished materials to have a lien, the materials must either be “specially fabricated” or actually incorporated into the improvement. See Dublin Co. v. Brady Sales, Inc., 380 So.2d 1095, 1096 (Fla. 5th DCA 1980); Beautyware Plumbing Supply Co. v. Columbiad Apartments, Inc., 215 So.2d 42, 44 (Fla. 4th DCA 1968).

Chapter 713, though, expressly exempts from its scope property owned by the state and its subdivisions. See § 713.01(22), Fla. Stat. Thus, to protect those who work on public projects, the legislature enacted chapter 255. See Fla. ex rel. Westinghouse Elec. Supply Co. v. Marvin, 280 F.Supp. 1019, 1021 (S.D.Fla.1967). Chapter 255 requires that those who contract with the state or its subdivisions for work on a public project must provide a payment and performance bond. See § 255.05(l)(a), Fla. Stat. Section 255.05(l)(a) requires that the bond be “conditioned upon the contractor’s ... promptly making payments to all persons defined in s. 713.01 who furnish labor, services, or materials for the prosecution of the work provided for in the contract.” Chapter 255 does not contain a definitions section. The question, then, is whether section 255.05’s reference to the “persons defined in s. 713.01” also incorporates into chapter 255 chapter 713’s “specially fabricated” materials exception to the “incorporation” requirement.

American insists the answer is “no,” citing Clutter Construction Corp. v. Florida ex rel. Westinghouse Electric Corp., 139 So.2d 426, 429 (Fla.1962), Board of Public Instruction of Sarasota County ex rel. American Radiator & Standard Sanitary Corp. v. Fidelity & Casualty Co. of New York, 184 So.2d 491, 493-94 (Fla. 2d DCA 1966), and Florida ex rel. Westinghouse Electric Supply Co. v. Marvin, 280 F.Supp. 1019, 1021 (S.D.Fla.1967), for the proposition that incorporation into the improvement is required in order for a supplier of materials to be entitled to assert a claim under chapter 255. While American accurately cites the holdings in those cases, none directly considered the question of “specially fabricated” materials and all were decided prior to section 255.05’s 1977 amendment, which established potential lienors under the public project payment bond law as “all persons defined in s. 713.01 who furnish labor, services, or materials for the prosecution of the work provided for in the contract.”

This, then, leaves us with the language of the statute: “Such bond shall be conditioned upon the contractor’s performance of the construction work in the time and manner prescribed in the contract and promptly making payments to all persons defined in s. 7IS.01 who furnish labor, services, or materials for the prosecution of the work provided for in the contract.” § 255.05(l)(a), Fla. Stat. (emphasis added). Subcontractors are persons defined in section 713.01 and may perform labor and services or furnish materials. See §§ 713.01(27), 713.06(1), Fla. Stat. And, under section 713.01(12), “furnish materials” means either to supply materials that are incorporated into the improvement or to supply “specially fabricated” materials.

Having first viewed the text of the relevant statute and finding its meaning less than clear, we must next look to discern legislative intent as it is the “polestar” which guides our statutory construction analysis. See State v. J.M., 824 So.2d 105, 109 (Fla.2002). This court, like others, has opined that the major purpose behind the public property payment bond statute is to provide subcontractors and suppliers on public projects with the same type of protection available to them on private construction projects under the mechanics’ lien law. Palm Beach County v. Trinity Indus., Inc., 661 So.2d 942, 944 (Fla. 4th DCA 1995); Miller v. Knob Constr. Co., 368 So.2d 891, 892-93 (Fla. 2d DCA 1979). The statute is also considered “ ‘remedial in nature and therefore, entitled to a liberal construction’ ” to fulfill its intended purpose. Runyon Enters., Inc. v. S.T. Wicole Constr. Corp. of Fla., Inc., 677 So.2d 909, 911 (Fla. 4th DCA 1996) (quoting Trinity Indus., Inc., 661 So.2d at 944). To interpret section 255.05(1) in such a manner as to include and protect claimants who could qualify as lienors under section 713.01 without also utilizing the ancillary definitions which define the parameters of their status would be unreasonable. Such an interpretation would leave the definition of claimants under section 255.05 incomplete and truncated and, in our view, would be inconsistent with legislative intent. We thus hold that the “specially fabricated” materials exception to the requirement of “incorporation” into the improvement has been incorporated in chapter 255 and, consequently, the trial court erred in dismissing Aquatic’s claim on the ground that the plant materials were never incorporated into the project.

As for American’s alternative statute of limitations argument, a motion to dismiss may be granted on statute of limitations grounds “ ‘where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law.’ ” Bott v. City of Marathon, 949 So.2d 295, 296 (Fla. 3d DCA 2007) (quoting Alexander v. Suncoast Builders, Inc., 837 So.2d 1056, 1057 (Fla. 3d DCA 2002)). Even if we were to accept American’s claim that the statute of limitations on a section 255.05 bond claim begins to run upon the completion of fabrication, we cannot affirm the dismissal on statute of limitations grounds as the factual allegations found in the complaint and its attachments are insufficient to allow us to determine, as a matter of fact and law, when fabrication was complete. We thus reverse the order dismissing Aquatic’s claim against American. American is not precluded, on remand, from further pursuing its statute of limitations defense.

Reversed and Remanded.

SHAHOOD, C.J., and BELANGER, ROBERT E., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Clara Denise PRUITT, Appellee.
    No. 2D06-5538.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2007.
    Rehearing Denied April 2, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

The State appeals the dismissal of a possession of methamphetamine charge which it had filed against Pruitt. The State argues that it established the existence of a prima facie case and that the element of Pruitt’s knowledge of the existence of the methamphetamine is a factual question that may not properly be considered on a motion to dismiss. See State v. Paleveda, 745 So.2d 1026, 1028 (Fla. 2d DCA 1999). While we do not disagree with these arguments, we conclude that the State is not entitled to relief because it failed to preserve these arguments below.

After being charged by information, Pruitt filed a motion to dismiss, contending that the circumstantial evidence standard applied and that she had a reasonable hypothesis of innocence. In response, the State filed a traverse denying some allegations and adding additional facts about the alleged crime. At the motion hearing, defense counsel adopted the facts as set forth in the State’s traverse but argued that there was still no material dispute and that the State failed to establish a prima fa-cie case of constructive possession. The prosecutor’s only statement in response to defense counsel’s argument was her agreement that the case was based on a constructive possession theory. The prosecutor made no argument asserting the existence of a prima facie case or contending that the knowledge element could not properly be considered on a motion to dismiss. The State is therefore barred from arguing these points for the first time on appeal. See § 924.061(l)(b), (3), Fla. Stat. (2006); F.B. v. State, 852 So.2d 226, 229 (Fla.2003); State v. Szempruch, 935 So.2d 66, 68 (Fla. 2d DCA 2006).

Affirmed.

NORTHCUTT, C.J., and SALCINES and CANADY, JJ., Concur.


text:
    James INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-819.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

This is the second appearance of this case before this court. James Ingram was tried by jury and convicted of burglary of a dwelling with a battery (count I) and grand theft (count II). Following the return of the guilty verdict, Judge Krathen sentenced Ingram to life as a Prison Re-leasee Reoffender for count I and to ten years for count II. No habitual felony offender designation was made by Judge Krathen to support the sentence imposed for count II.

Ingram appealed. This court affirmed Ingram’s convictions and the sentence for count I, but reversed the sentence imposed on count II because, absent a habitual felony offender designation, the maximum possible penalty for a third degree felony is five years. See Ingram v. State, 943 So.2d 325 (Fla. 4th DCA 2006). The ease was remanded to the trial court for resen-tencing on count II.

On remand, Judge Backman. — and not Judge Krathen, the judge who presided at trial and initially imposed sentence — presided. Judge Backman sentenced Ingram to the five-year statutory maximum. At the hearing, Ingram objected to being sentenced by Judge Backman as he was not the initial sentencing judge. In this appeal, the defendant again seeks reversal of the sentence imposed for count II, arguing, as he did below, that his sentencing by a successor judge was improper. We agree.

Florida law clearly provides that “it is improper for a successor judge to sentence a defendant unless the record shows that the substitution of judges is necessary or dictated by an emergency.” Baskin v. State, 898 So.2d 266, 267 (Fla. 2d DCA 2005). Mere convenience cannot justify sentencing by a substitute judge. See Mack v. State, 643 So.2d 701, 701 '(Fla. 1st DCA 1994). Further, where a defendant is sentenced by a successor judge in the absence of a demonstration of necessity or emergency, he or she is entitled to reversal of the sentence imposed “even without a showing of prejudice to the defendant.” Madrigal v. State, 683 So.2d 1093, 1096-97 (Fla. 4th DCA 1996). As there was no attempt to establish that the original sentencing judge was not available or to demonstrate that sentencing by Judge Backman was a matter of necessity or emergency, we reverse the sentence imposed. The case is remanded to the trial court for resentencing before Judge Krathen or a substitute judge upon a demonstration of necessity or emergency.

Reversed and Remanded.

STONE and MAY, JJ., concur.

      . We reject the State’s claim that the defendant's objection was untimely. The transcript shows that after some back and forth discussions between the prosecutor and the trial judge at the beginning of the hearing, the trial judge immediately pronounced the sentence; subsequently, defense counsel made his objection. In our view, defense counsel could have reasonably presumed that he would have been given the opportunity to address the court prior to the announcement of the sentence.


text:
    STATE of Florida, Appellant, v. John D. FRASER, Appellee.
    No. 4D06-4994.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    Michael J. Silver of The Silver Law Firm, P.A., Boca Raton, for appellee.
   PER CURIAM.

In 1999, John Fraser pled guilty to possession of cocaine and was sentenced to two days time served. In 2006, more than seven years later, Fraser, a Canadian citizen, filed a 3.850 motion, wherein he sought to vacate his plea on the ground that the trial court never advised him of the possible deportation consequences of the plea. The motion was not sworn and was not accompanied by any affidavit or other attachments. Nonetheless, the trial court granted Fraser’s motion based solely on transcripts of the plea colloquy presented at a hearing on the motion and without taking any additional evidence. The State has appealed. We reverse.

Florida Rule of Criminal Procedure 3.850 mandates that motions for post-conviction relief be sworn. See Fla. R.Crim. P. 3.850(c). Unsworn motions are properly dismissed. See, e.g., Lawson v. State, 754 So.2d 86 (Fla. 4th DCA 2000). Further, to be entitled to postconviction relief as a consequence of the trial court’s claimed failure to advise of the possible deportation consequences of a plea, a defendant must demonstrate prejudice, i.e., that he would not have entered into the plea had he been advised of the deportation consequences. See State v. Seraphin, 818 So.2d 485, 490-91 (Fla.2002). Fraser could not have met his burden in this regard in the absence of both a sworn 3.850 motion and an evidentiary hearing. Fraser’s unsworn rule 3.850 motion should have been dismissed. Our reversal is without prejudice to Fraser’s right to file a new, sworn 3.850 motion within the time remaining.

Reversed and Remanded.

STONE, STEVENSON and MAY, JJ., concur.


author: BENTON, J.

text:
    TIGER POINT GOLF AND COUNTRY CLUB, Fairways Group, LP aka Fairways Golf Corporation dba Tiger Point Golf and Country Club, and Meadowbrook Golf Group, Inc. Corporation, Appellants, v. William J. HIPPLE, Appellee.
    No. 1D07-0657.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2007.

      Peter S. Roumbos of Young, Bill, Fugett & Roumbos, P.A., Pensacola, for Appellants.
    John C. Barrett, Gulf Breeze, for Appel-lee.
   CORRECTED OPINION

BENTON, J.

Appellants (Tiger Point) seek to overturn the judgment entered against them in favor of William J. Hippie for injuries Mr. Hippie sustained when he and two others forcibly removed a handrail on Tiger Point’s premises and dropped it on Mr. Hippie’s foot, breaking a bone in his toe. We do not disturb the award of compensatory damages. But we agree with Tiger Point that the trial court erred in denying its motion for summary judgment as to punitive damages, and reverse .the award of punitive damages.

Mr. Hippie sued on the theory that Tiger Point breached its duty as a landowner by failing to maintain a handrail in safe condition. See generally Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001) (superseded in part by Fla. Stat. § 768.0710 (2002)); Brooks v. Phillip Watts Enters., 560 So.2d 339, 341 (Fla. 1st DCA 1990). See also Restatement (Second) of Torts § 343 (1965). The jury found Mr. Hippie and each of the other two men 25 per cent at fault, and also found Tiger Point 25 per cent at fault, putting compensatory damages at $6,467.75 (subject to a 75 per cent reduction) and punitive damages at $85,000 (never reduced).

Before-the case went to the jury, Tiger Point moved for summary judgment exonerating it from punitive damages. The trial court denied' the motion. Now that appeal has been taken from the amended final judgment, the antecedent denial of summary judgment is reviewable. The standard of review for orders denying summary judgment is de novo. See The Florida Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003). We conclude that, when the motion for summary judgment was decided, the record entitled Tiger Point to judgment in its favor on the claim for punitive damages.

At that point, the record contained statements from five individuals that supported appellee’s contention that the handrail had been in disrepair for some time. Todd Rice’s affidavit reports that “several days or weeks before” the injury, he noticed the handrail “was very badly rusted and in terrible shape,” and that he discussed the handrail’s condition with employees of Tiger Point Golf Club and the Members Grill. Ann Rhodes testified on deposition that she informed the manager of the club ten to twelve days before Hippie was injured that the handrail was in “very, very bad condition” and that it needed to be repaired “immediately.” Verne Rhodes stated in his deposition that the handrail “had corroded almost entirely in two before breaking” and that it was “just being held by a thread.” William Ballou testified that the handrail had deteriorated “[o]ver a period of time.” Finally, Margaret Hippie testified on deposition that the rail had been “beat up and rusted and horrible” “for a long time.”

Viewing the record in the light most favorable to the non-movant, Tiger Point had notice of the badly deteriorated condition of the handrail several weeks prior to the injury. While such knowledge and inaction constituted a breach of Tiger Point’s duty to invitees who might have used the railing for support, this breach was insufficient to sustain Mr. Hippie’s claim for punitive damages. The conduct punitive damages properly condemns and hopefully deters is willful and wanton misconduct of a character no less culpable than what is necessary to convict of criminal manslaughter. See White Constr. Co. v. Dupont, 455 So.2d 1026, 1028 (Fla.1984). See also Restatement (Second) of Torts § 908 (1979). In Dupont, the court held that operating a forty-ton CAT 988 loader” with knowledge that its brakes had not been working for some time was not enough to support a punitive damages claim. Dupont, 455 So.2d at 1028-29. Similarly, in Behn v. State, 621 So.2d 534 (Fla. 1st DCA 1993), we held that knowingly operating a truck with bad brakes was not culpable negligence of the kind required for a manslaughter conviction. Behn is pertinent because, as held in Du-pont and reiterated in Behn, the standard for punitive damages is equivalent to that for manslaughter. See also Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977) (allowing an employee to drive a company truck, while knowing that he was not physically or mentally capable of driving the truck properly, was insufficient to support a claim for punitive damages arising out of a resulting accident).

Tiger Point s conduct did not involve an “element of outrage similar to that usually found in crime.” See Restatement (Second) of Torts § 908 cmt. b (1979). If, as the court concluded in Dupont and Behn, causing permanent injuries or fatalities by knowingly operating trucks with defective brakes does not merit punitive damages, then merely neglecting (albeit for several weeks) to repair an obviously defective handrail, which ultimately results in injury to a volunteer trying to repair or remove it, does not evince the culpability required for punitive damages. The trial court erred, therefore, by failing to grant Tiger Point’s motion for summary judgment on the issue of punitive damages, and we reverse the award of punitive damages accordingly.

Insofar as it awards punitive damages, the judgment is reversed, but the judgment is affirmed otherwise.

BARFIELD and THOMAS, JJ., Concur.

      . "A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) .fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts § 343 (1965).

      .We thus pretermit any decision on Tiger Point’s alternative argument that the trial court erred initially in allowing Mr. Hippie to amend his complaint to state a claim for punitive damages. Before a plaintiff can assert a claim for punitive damages, he must make a "reasonable showing by evidence in the record or proffered by [him] which would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat. (2006). This provision has been interpreted to "create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evi-dentiary basis for recovery of punitive damages.” Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla.1995). On appeal, the standard of review is de novo. See Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005) ("When a trial court is determining if a plaintiff has made a 'reasonable showing’ under section 768.72 for a recovery of punitive damages, it is similar to determining whether a complaint states a cause of action, or the record supports a summary judgment, both of which are reviewed de novo.'.’). The record was virtually identical when the amendment was allowed and when the motion for summary judgment was decided.

      . Tiger Point does not argue on appeal that it owed Mr. Hippie no duty because his efforts to repair or remove the railing could not have been foreseen.

      . "Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his recldess indifference to the rights of others.” Restatement (Second) of Torts § 908(2) (1979) (emphasis added). The comment explains further the type of conduct that warrants an award of punitive damages:
      Since the purpose of punitive damages is not compensation of the plaintiff but pun-ishmenl of the defendant and deterrence, these damages can be awarded only for conduct for which this remedy is appropriate-which is to say, conduct involving some element of outrage similar to that usually found in crime.

      Restatement (Second) of Torts § 908 cmt. b (1979) (emphasis added).


author:
PER CURIAM.
      WOLF, J.,

text:
    STATE of Florida, Appellant, v. M.T.G., Appellee.
    No. 1D07-2384.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, and Cheyenne L. Palmer, Assistant State Attorney, Jacksonville, for Appellant.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

BENTON and PADOVANO, JJ., concur.

WOLF, J., dissents with opinion.

WOLF, J.,

Dissenting.

I would reverse. See United States v. Erving L., 147 F.3d 1240 (10th Cir.1998).


text:
    Brett PLEASANT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6264.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2008.
    Rehearing Denied March 27, 2008.
    Brett Pleasant, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

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


text:
    In re ESTATE of Loyette D. McKIBBIN, deceased. Larry H. McKibbin, as Personal Representative of the Estate of Loyette D. McKibbin, Appellant, v. Alterra Health Care Corporation a/k/a Alterra Healthcare Corporation; Beth M. Guinn a/k/a Beth Marie Waters Guinn; Tammie Britt-Taylor a/k/a Tammi Britt-Taylor; Willard E. Tarbet a/k/a Will Tarbet; and Michelle Tersigni a/k/a Michelle Marie Tersigni; (as to Alterra Clare Bridge Cottage of Winter Haven a/k/a Clare Bridge of Winter Haven), Appellees.
    No. 2D06-5452.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2008.

      Isaac R. Ruiz-Carus and Blair N. Mendes of Wilkes & McHugh, P.A., and Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, for Appellant.
    Donna J. Fudge of Buckely & Fudge, P.A., St. Petersburg, and Connolly C. Mc-Arthur, Clearwater, for Appellees.
   PER CURIAM.

Larry H. McKibbin, as personal representative of the Estate of Loyette D. McKibbin (“the Estate”), appeals the trial court’s nonfinal order granting a motion to compel binding arbitration that was filed by the defendants below, Alterra Health Care Corporation and various individuals who worked for the corporation (collectively referred to as “Alterra”). We reverse and remand.

The Estate raises several issues in this appeal. We address only one of the issues it raises, however, because that issue dictates the outcome of this case as a matter of law. Alterra’s motion to compel arbitration was granted based on a residency agreement that provided for Loyette McKibbin’s care at Alterra’s assisted living facility, Clare Bridge, and contained an arbitration agreement. The Estate correctly argues that it is not bound to arbitrate because Ms. McKibbin did not sign the residency agreement that contained the arbitration agreement and her son, who signed the residency agreement, did not have the authority to bind Ms. McKib-bin to arbitrate.

In this appeal, the Estate asserts that at the time the residency agreement was executed, no proceeding had been commenced to declare Ms. McKibbin incapacitated and also that there was no evidence that Ms. McKibbin was mentally or physically incapacitated to make decisions for herself. Ms. McKibbin’s son presented a durable power of attorney to Alterra to demonstrate that he had the legal authority to enter into the residency agreement on behalf of his mother. Nothing in that power of attorney, however, gave Ms. McKibbin’s son the legal authority to enter into an arbitration agreement on behalf of his mother. See Kotsch v. Kotsch, 608 So.2d 879, 880 (Fla. 2d DCA. 1992) (holding that powers of attorney are strictly construed to grant only the powers specified). Furthermore, there was no other basis upon which to bind Ms. McKibbin to the arbitration agreement. Hence, the Estate was not bound to arbitrate, and the trial court erred in granting Alterra’s motion to compel binding arbitration. See id.; Regency Island Dunes, Inc. v. Foley & Assocs. Constr. Co., 697 So.2d 217, 218 (Fla. 4th DCA 1997) (“One who has not agreed, expressly or implicitly, to be bound by an arbitration agreement cannot be compelled to arbitrate.”). Accordingly, we reverse the trial court’s order granting the motion to compel binding arbitration.

Reversed and remanded for further proceedings.

FULMER, SALCINES, and WALLACE, JJ., Concur.


text:
    Glenn COLEY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D07-5978.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.
    Rehearing Denied April 1, 2008.
    Glenn Coley, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Hampton v. McDonough, 967 So.2d 317 (Fla. 1st DCA 2007).

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. Gary GREAUX, Appellee.
    No. 4D07-1662.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.

      Bill McCollum, Attorney General, Tallahassee and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.
   MAY, J.

The State appeals the trial court’s sua sponte dismissal of domestic violence charges against the defendant. It argues the trial court erred in sua sponte dismissing the charges. We agree and reverse.

The State charged the defendant with two counts of domestic violence against his wife: (1) domestic aggravated assault with a deadly weapon; and (2) domestic battery. The charges arose out of an incident in which the defendant allegedly threw the victim’s cell phone at her while she was in bed and forcefully pushed her head into the pillow. He then threatened her with a stun gun, grabbed her by the ankle, and dragged her out of bed.

At the case disposition/discovery hearing, the prosecutor explained that a plea offer had been extended to the defendant and that the victim no longer wished to prosecute. The trial court had the victim sworn in. The victim admitted calling the police and making a statement, but denied that the defendant hit or threatened her. She denied asking to have the defendant arrested and informed the court that she did not want him prosecuted.

The State then questioned the victim. She admitted the defendant had thrown the cell phone at her and had used his hand to push her head into the pillow on their bed. She further admitted that the defendant went to the closet where he kept a stun gun. She told the trial court that she and the defendant were working on getting the family back together and didn’t want to go forward with the prosecution. The court then sua sponte dismissed the case “at the victim’s request.” The State objected to the dismissal; the trial court suggested that the prosecutor appeal.

The State argues that only the prosecutor has the authority to decide whether to go forward with the prosecution and that the trial court erred in sua sponte dismissing the case. We agree and reverse.

The prosecutor has the sole discretion to charge and prosecute criminal acts. McArthur v. State, 597 So.2d 406, 408 (Fla. 1st DCA 1992). This discretion is not affected by a victim’s change in desire to prosecute. Id. It is not altered by a victim’s refusal to testify. State v. Bryant, 549 So.2d 1155, 1155 (Fla. 3d DCA 1989). This discretion is inviolate “[notwithstanding the court’s belief that the best interests of the public and the parties would be served by dismissal.” State v. Wheeler, 745 So.2d 1094, 1096 (Fla. 4th DCA 1999).

The defendant argues that the dismissal should be affirmed under the Tipsy Coachman doctrine because the State did not establish a prima facie case against him during the hearing. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla.1999). This argument fails for two reasons.

First, the Rules of Criminal Procedure require that motions to dismiss be in writing, signed by the party or his attorney, served on the opposing side, and contain a certificate of service. Fla. R.Crim. P. 3.190(a). The rule further requires the motion to be brought prior to or at arraignment and “state the ground or grounds on which it is based.” Id. at 3.190(a), (b), (c). Here, there was no motion at all, either written or ore terms.

Second, without a timely, written motion, the State was neither on notice nor required to bear the burden of establishing a prima facie ease at the hearing. Nevertheless, the State did elicit testimony from the victim that she had made a statement to the police and that the defendant had thrown the cell phone at her, forced her head into a pillow, and went to the closet to get a stun gun. Had the State been properly placed on notice by a written motion, it may have called other witnesses in support of its prima facie case.

For these reasons, we reverse and remand the case for reinstatement of the charges against the defendant.

Reversed and remanded.

STONE and POLEN, JJ., concur.