author: LaROSE, Judge. ALTENBERND, Judge,

text:
    Merlan DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3384.
    District Court of Appeal of Florida, Second District.
    March 21, 2007.
   LaROSE, Judge.

Merlán Davis appeals the summary dismissal of his December 8, 2005, motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court dismissed the motion as untimely, successive, and facially insufficient. We affirm in part, reverse in part, and remand for further proceedings.

In August 2000, a jury convicted Mr. Davis of lewd and lascivious conduct. The trial court sentenced him in December 2000 to sixty years in prison. On January 4, 2001, Mr. Davis filed what he called a rule 3.850 motion, purportedly attacking the legality of his sentence. A week later, he appealed his convictions and sentences to this court. On appeal from an order denying his motion, we reversed and remanded. See Davis v. State, 800 So.2d 656 (Fla. 2d DCA 2001). We treated it as a motion under Florida Rule of Criminal Procedure 3.800(a) because it sought to correct an allegedly illegal sentence. See id. We directed the postconviction court to dismiss the motion or stay consideration pending the resolution of Mr. Davis’ direct appeal. See id. We affirmed his convictions and sentences, without opinion, on February 27, 2002. See Davis v. State, 814 So.2d 1040 (Fla. 2d DCA 2002) (table). Our mandate issued on March 25, 2002.

In a further effort to challenge directly his convictions and sentences, Mr. Davis, in May 2002, filed a timely petition for writ of certiorari in the United States Supreme

Court. See Sup. Ct. R. 13.1 (“[A] petition for writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment.”). On June 10, 2002, while that petition was pending, the postconviction court denied Mr. Davis’ January 4, 2001, motion. We note that Mr. Davis never obtained a stay of our March 25, 2002, mandate. While Mr. Davis sought discretionary review by the United States Supreme Court, we see no impediment to the trial court denying Mr. Davis’ January 4, 2001, motion, a motion we previously characterized as one filed under rule 3.800(a). In July 2002, again while the certiorari petition was pending, Mr. Davis appealed that denial. We affirmed on December 11, 2002. See Davis v. State, 840 So.2d 232 (Fla. 2d DCA 2002) (table). Finally, on December 8, 2003, the Supreme Court denied Mr. Davis’ petition for writ of certiorari. See Davis v. Fla., 540 U.S. 1075,124 S.Ct. 921,157 L.Ed.2d 747 (2003).

Mr. Davis then filed a rule 3.850 motion in December 2005; that motion underlies this appeal. He asserted four claims, none of which were raised in his January 4, 2001, motion. First, Mr. Davis contends that his trial counsel was ineffective for misinforming him about the potential maximum penalty and for erroneously advising him that the State could not file additional charges. Second, Mr. Davis claims that his trial counsel was ineffective for not filing a motion to suppress evidence. Third, Mr. Davis maintains that his trial counsel was ineffective for failing to request the appointment of an independent psychiatrist. Fourth, Mr. Davis asserts a violation of Brady because the State allegedly denied him access to certain files. We conclude that this rule 3.850 motion, filed within two years of the Supreme Court’s denial of review, is timely, not successive to his January 4, 2001, motion and, as to one claim, is facially sufficient.

Mr. Davis filed a timely petition for writ of certiorari with the Supreme Court. See Beaty v. State, 701 So.2d 856, 857 (Fla.1997); Fla. Star v. B.J.F., 530 So.2d 286, 288 n. 3 (Fla.1988). The time to file the rule 3.850 motion commenced when the Supreme Court denied review. See Gaskin v. State, 737 So.2d 509, 512 n. 3 (Fla.1999), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004); Barkett v. State, 728 So.2d 792 (Fla. 1st DCA 1999); cf. Trice v. State, 831 So.2d 246, 247 (Fla. 2d DCA 2002). Because Mr. Davis filed his rule 3.850 motion exactly two years after the Supreme Court denied certiorari review, the motion was timely.

We also conclude that Mr. Davis’ rule 3.850 motion is not successive. As noted earlier, Mr. Davis called his January 4, 2001, motion a rule 3.850 motion. Yet, because that motion challenged the legality of his sentences, we treated it on appeal as a rule 3.800(a) motion. See Davis, 800 So.2d 656. The order on appeal here attacks Mr. Davis’ convictions. See Ramirez v. State, 822 So.2d 593 (Fla. 2d DCA 2002); Kelly v. State, 712 So.2d 780 (Fla. 2d DCA 1998).

As for the facial sufficiency of the rule 3.850 motion, only one claim warrants further consideration. Mr. Davis claims that his trial counsel was ineffective for misadvising him of the consequences of proceeding to trial. Allegedly, Mr. Davis’ trial counsel told him that he faced a maximum of thirty years, not sixty years. Mr. Davis alleges that trial counsel told him that the State could not file a second charge if he went to trial; in fact, the State did. Mr. Davis alleges that he would have accepted the State’s plea offer had he been properly advised. This claim is facially sufficient under rule 3.850. See Aebi v. State, 842 So.2d 888, 889 (Fla. 2d DCA 2003). Therefore, we reverse as to this claim. On remand, the postconviction court may deny this claim if it attaches portions of the record conclusively refuting Mr. Davis’ allegations. Otherwise, an evidentiary hearing is necessary. See Tidwell v. State, 844 So.2d 701, 702 (Fla. 1st DCA 2003).

Mr. Davis’ remaining claims are facially insufficient. We affirm the postconviction court’s dismissal of those claims.

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

CASANUEVA, J„ Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this decision, which is supported by precedent. See Barkett v. State, 728 So.2d 792 (Fla. 1st DCA 1999); Trice, 831 So.2d 246. I question whether the precedent has established the best interpretation of Florida Rule of Criminal Procedure 3.850(b).

Merlán Davis’s direct appeal was affirmed by this court in 2002. We affirmed without a written opinion, which meant that Mr. Davis had no right to receive review in the Florida Supreme Court. We issued mandate on March 25, 2002. Once mandate issued, jurisdiction returned to the trial court and it was free to consider any timely filed motion pursuant to rule 3.850.

Mr. Davis attempted to have the United States Supreme Court review our affir-mance. That court does have the power, by writ of certiorari, to review a decision from a Florida district court of appeal even when no written opinion is issued. That power is very rarely exercised.

Barkett clearly interpreted rule 3.850(b) to extend the time for filing a postconviction motion under that rule whenever a defendant seeks review in the United States Supreme Court from an affirmance without a written opinion. We followed Barkett in Trice, which involved a case in which this court had earlier affirmed the direct appeal with a written opinion. These cases rely upon the decisions of the Florida Supreme Court in Huff v. State, 622 So.2d 982 (Fla.1993), and Gaskin, 737 So.2d 509. Both of those decisions involved cases in which the death penalty was imposed and where direct appeal occurred in the Florida Supreme Court. Both of those decisions interpreted rule 3.850 prior to the adoption in 1993 of rule 3.851, which established distinct procedures for collateral relief in death penalty cases.

Rule 3.850(b) does not explicitly measure the timeliness of a motion from the expiration of all possible appellate remedies. It merely states that a motion is generally untimely “if filed more than 2 years after the judgment and sentence become final in a noncapital case.”

We have interpreted the word “final” in rule 3.850(b) to extend the time for the filing of a motion when a case is pending in a district court of appeal even when the defendant does not prevail on appeal. See Daniels v. State, 712 So.2d 765 (Fla.1998). That makes sense because a trial court has no jurisdiction to consider a postconviction motion when the case is pending on direct appeal. We deprive the trial court of that jurisdiction under the general principle that a trial court should not have power to issue an order interfering with the jurisdiction of a reviewing court. See Washington v. State, 823 So.2d 248 (Fla. 4th DCA 2002).

If a district court of appeal issues a written opinion, there is merit in extending the time for a postconviction motion while the Florida Supreme Court considers its right to review that decision under article V, section 3(b), of the Florida Constitution. See Perkins v. State, 845 So.2d 273 (Fla. 2d DCA 2003). Likewise, I see no reason why trial courts should need to consider such motions while the defendant is seeking review in the Florida Supreme Court.

However, I can think of no practical or logical reason to extend the time for filing a posteonviction motion when a defendant attempts review by certiorari in the United States Supreme Court from an affirmance without a written opinion from this court. That process of review does not interfere with the trial court’s jurisdiction after our mandate issues. The trial court does not need to worry about interfering with the appellate jurisdiction of the United States Supreme Court unless and until that court actually exercises its certiorari power. Legally, there is no reason to delay the postconviction process in a state court while the highest federal court determines whether to involve itself in the case.

From a practical perspective, the rule announced in Barkett adds up to a year to the time permitted for postconviction review whenever a defendant seeks review of a per curiam affirmance in the United States Supreme Court. Thus, the current rule encourages thousands of defendants in Florida to file for review in the United States Supreme Court even if they have no argument to make in good faith. There is no reason for Florida courts to adopt a policy that encourages such abuse of the review process in the United States Supreme Court.

It seems to me that we could and should interpret rule 3.850(b) so that a judgment and sentence that is affirmed without a written opinion in a district court becomes final when mandate issues. There is no need to extend the time for such a motion for the period when a request for review is pending in the United States Supreme Court. Instead, the trial court, at the request of either party, could easily stay such a motion in the rare case in which the United States Supreme Court elected to exercise its certiorari jurisdiction. This approach would add clarity to the rule and would not encourage needless filings in the United States Supreme Court.

      .Because we affirmed without a written opinion, Mr. Davis could not seek review in the Florida Supreme Court. See Jollie v. State, 405 So.2d 418, 421 (Fla. 1981). In effect, we were the state court of last resort for Mr. Davis' direct appeal. See id. at 423. Despite the absence of a written opinion affirming Mr. Davis’ convictions and sentences, we are aware of no rule or procedure precluding the United States Supreme Court from reviewing a conviction and sentence rendered without opinion.

      . Mr. Davis filed a rule 3.800(a) motion on January 26, 2004, challenging the legality of his sentence. The postconviction court denied that motion as being identical to the motion Mr. Davis filed on January 4, 2001. The denial of the January 26, 2004, motion is not before us in this appeal.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EL TORO EXTERMINATOR OF FLORIDA, INC., a Florida corporation, Appellant, v. Marcos A. CERNADA, Appellee.
    No. 3D05-2636.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.
    Denise V. Powers, Coral Gables, for appellant.
    Andrew B. Rosenblatt, for appellee.
    Before COPE, C.J., and GREEN and LAGOA, JJ.
   PER CURIAM.

El Toro Exterminator of Florida, Inc. [“El Toro”], the employer, appeals an adverse final judgment entered in favor of Marcos A. Cernada, its former employee, in an action for unpaid wages, negligent supervision and retaliation under the Florida Private Sector Whistleblower’s Act, § 448.102(3), Fla. Stat. (2002). We affirm.

Cernada was employed by El Toro, a pest control company, between April 1998 and May 2002. El Toro is a family-owned company. Before separation from his employer, Cernada served as service operations manager — the company’s highest non-family manager. He reported directly to Renato Perez — corporate Vice President and co-owner of El Toro.

El Toro contracted with Miami-Dade County to provide “integrated pest management” on the County’s bus fleet. The contract restricted the use of toxic products. Despite the restriction, Cernada and a co-worker testified that Renato Perez and Alex Perez, another El Toro Vice President and co-owner, instructed them to spray County buses with Demon. The use of this pesticide was precluded by the County contract because of its harmful effects on humans and the environment; and El Toro did not secure any permission to use this pesticide. That prohibition notwithstanding, the employees testified that Alex Perez met -with them at the County’s bus yard to demonstrate how to conceal the use of this pesticide. The employees were also instructed not to wear masks or protective clothing, required for using Demon, in order to avoid alerting the County employees to the use of this chemical.

Cernada complained to Renato Perez of the adverse effects Demon was causing on his skin and requested the protective mask and gloves required by the Demon government label. Perez responded by berating Cernada and ignoring his request. Cerna-da complained to Renato Perez that the Demon use was illegal. Cernada continued his complaints throughout 2001 and 2002.

As a result of his complaints, Cernada was subjected to racial and ethnic slurs. His work assignments were radically altered and he was given extreme and inconvenient schedules.

Despite being told by El Toro to conceal the use of Demon from the County, Cerna-da eventually met with the County’s Pest Control Manager and revealed the violation. Thereafter, Renato Perez threatened Cernada’s life if he revealed anything to the County. Cernada then turned in his uniform and truck and left the company. Cernada was not paid the wages or commissions owed to him through this time.

Cernada sued El Toro unpaid wages, negligent supervision and retaliation under the Florida Private Sector Whistleblower’s Act, § 448.102(3), Fla. Stat. (2002). At the conclusion of Cernada’s case at trial, El Toro moved for a directed verdict on the Private Sector Whistleblower’s Act claim on the grounds that Cernada had not identified specifically the laws that El Toro had violated. Cernada’s counsel orally articulated the ordinances and administrative code sections that the company had violated. Additionally, counsel argued that testimony of these violations had been admitted without objection by El Toro. The court denied the directed verdict motion and permitted Cernada to amend his complaint to conform to the evidence presented.

On appeal, El Toro argues that the trial court erred in denying its directed verdict motion. El Toro asserts that it was entitled to a directed verdict because Cernada failed to prove his case as pled. El Toro maintains that the court abused its discretion in allowing Cernada to amend the pleadings to conform to the evidence. We are not persuaded by this argument and find no abuse of discretion in permitting amendment of the pleadings.

“Leave to amend shall be freely given, particularly where the amendment is based upon the same conduct, transaction and occurrence which is the basis of the plaintiffs original pleading.” Florida E. Coast Ry. Co. v. Shulman, 481 So.2d 965, 967 (Fla. 3d DCA 1986). In Shulman, we affirmed the trial court’s sua sponte approval of an amendment to plaintiffs pleadings following the defendant’s directed verdict motion. Moreover, the court should resolve any doubts in favor of amendment. Overnight Success Constr., Inc. v. Pavarini Constr. Co., 31 Fla. L. Weekly D2912, 2006 WL 3302544 (Fla. 3d DCA Nov. 15, 2006).

There is no question that the conduct and occurrences complained of in the case remained unchanged post-amendment. Additionally, the causes of action that were the gravamen of the complaint were not altered. Although El Toro asserts various technical deficiencies with the original pleadings, none of these are sufficient to defeat the court’s proper granting of leave to amend. Despite these technicalities, El Toro was aware of the conduct over which the suit was brought, and the events leading to the litigation. Hence, there is no basis for El Toro to assert that it was in any way prejudiced by the court’s allowance of the amendment. Shulman; Pasekoff v. Kaufman, 392 So.2d 971, 976 (Fla. 3d DCA 1981)(abuse of discretion to deny motion to amend where there is no way defendant could have been surprised by amendment). See Kay’s Custom Drapes, Inc. v. Garrote, 920 So.2d 1168 (Fla. 3d DCA 2006)(error to deny motion to amend where, this precludes plaintiff from presenting claim). Moreover, allowing the amendment was proper because El Toro did not object to the introduction of evidence presented by Cernada on these points. City of Miami v. Ross, 695 So.2d 486, 488 (Fla. 3d DCA 1997); Di Teodoro v. Lazy Dolphin Dev. Co., 418 So.2d 428, 429 (Fla. 3d DCA 1982).

El Toro next asserts that Cerna-da’s retaliation claim under the Florida Private Sector Whistleblower’s Act, and his - negligent supervision claim must fail because there was no evidence presented that El Toro was afforded an opportunity to remedy the offensive conduct, or any evidence that Cernada complained to the company about the offensive conduct. The record, however, supports a conclusion by the jury that Cernada did complain on various occasions to El Toro about the unlawful conduct. The record also demonstrates that Cernada complained about Re-nato Perez’s offensive conduct to the company’s officers. Moreover, the officers are Renato’s brother and father. In fact, Re-nato was, himself, an officer and owner of El Toro. Thus, the jury could have properly concluded that El Toro was well aware of what was transpiring.- Contrary to El Toro’s assertion, Cernada has not brought a hostile work environment or a harassment claim. Cernada was not required to present evidence required under these other causes of action to prevail in his suit. These evidentiary arguments do not afford any basis for reversing the judgment under review.

We have reviewed the remaining points on appeal and conclude that they lack merit and do not warrant discussion. Accordingly, we affirm the final judgment.

Affirmed.


author: RAMIREZ, J.

text:
    Michael OZ, Appellant, v. COUNTRYWIDE HOME LOANS, INC., Carolina Warter, Carlos Warter, Irina Ball, Jenny Wouters, Appellees.
    No. 3D06-772.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.
    Scott Alan Orth, for appellant.
    Krinzman Huss & Lubetsky and Cary A. Lubetsky, Miami; Greenberg Traurig and Alaine S. Greenberg, and William R. Clayton, Fort Lauderdale, for appellees.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   RAMIREZ, J.

Michael Oz appeals the trial court’s order that dissolved two lis pendens in an action for specific performance of a written contract for the sale of residential real estate. We affirm because the lis pendens, which did not contain the date of the institution of an action and incorrectly listed the name of a defendant, did not provide constructive notice of Oz’s claims in violation of section 48.23, Florida Statutes (2005).

Appellee Countrywide is the holder of a mortgage interest in the subject residential property. The remaining appellees, Carolina Warter, Carlos Warter, Irina Ball, and Jenny Wouters, represent property owners by virtue of warranty deeds executed in connection with the sale and purchase of the property. Oz filed suit against Carolina Warter on November 24, 2004, and thereafter filed three lis pen-dens against the property. The first lis pendens is not at issue, as Oz agreed to withdraw it voluntarily. The second lis pendens did not provide the time of the institution of the action and it misspelled the name of Carolina Warter, the only defendant named in Oz’s November 24, 2004 suit, as “Water.” The third lis pendens, like the second, did not include the time of the institution of the action. Also, the third lis pendens was recorded after the property had been transferred and after the recordation of the Countrywide mortgage. The third lis pendens is thus irrelevant.

We find that the second lis pen-dens failed to provide constructive notice of Oz’s claims. The purpose of lis pendens “is to notify prospective purchasers and encumbrances that any interest acquired by them in the property in litigation is subject to the decree of a court.” See Procacci v. Zacco, 402 So.2d 425, 427 (Fla. 4th DCA 1981). Section 48.23, Florida Statutes (2005), governs lis pendens, and subsection (l)(a) provides that:

No action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be effected thereby until a notice of the commencement of the action is recorded in the office of the clerk of the circuit court of the county where the property is, which notice contains the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the property involved or to be affected, and a statement of the relief sought as to the property.

(emphasis added). Consistent with the statutory requirements of section 48.23, this Court held in Joge Invs., Inc. v. Millennium Capital, 724 So.2d 728, 729 (Fla. 3d DCA 1999), that a valid lis pendens must contain the time of institution of the action. If a plaintiff fails to include all of the required items in the lis pendens, the lis pendens is ineffective. See DeGuzman v. Balsini 930 So.2d 752, 755 (Fla. 5th DCA 2006)(holding that the notice of lis pendens failed to comply with section 48.23 because it did not state the time that an action was instituted, and it did not provide a statement of the relief sought as to the property).

The second lis pendens here was fatally defective. It did not accurately indicate the date of the institution of the November 23, 2004 action. This failure to include the date of the institution of an action is fatal to the lis pendens and contrary to the express language contained in section 48.23(l)(a).

Additionally, the second lis pendens misspelled the name of the only defendant involved in Oz’s November 23, 2004 suit. This defect is likewise fatal since constructive notice in Florida is imputed only through the grantor-grantee index of the official public records. See Slachter v. Swanson, 826 So.2d 1012, 1014 (Fla. 3d DCA 2001). See also U.S. v. One Parcel of Real Estate, 715 F.Supp. 360, 361 (S.D.Fla.1989)(stating that, “Since a tract index system is not used [in Marion County, Florida], an examination of the available grantor-grantee index would not disclose the prior recording of the government’s notice of lis pendens.”). In Slachter, we explained that constructive knowledge is imputed to creditors and subsequent purchasers by virtue of documents filed in the grantor-grantee index of the official records. Slachter, 826 So.2d at 1014. See also Dunn v. Stack, 418 So.2d 345, 349 (Fla. 1st DCA 1982)(“Constructive notice is a legal inference, and it is imputed to creditors and subsequent purchasers by virtue of any document filed in the grantor/grantee index-the official records.”), rev’d on other grounds, 444 So.2d 935 (Fla.1984) A search of the grantor-grantee index in the official records of Miami-Dade County would not have disclosed the name of Carolina Warter. Oz’s claims against Carolina Warter thus did not impart constructive notice upon anyone.

For these reasons alone, the trial court correctly dissolved the second lis pendens for failure to comply with the requirements contained in section 48.23, Florida Statutes (2005). We therefore decline to address the other issues raised in this appeal and affirm the order on appeal.

Affirmed.

      . The lis pendens did not properly describe the nature of the action and did not set forth the date of institution of the action.


author: KLEIN, J.

text:
    Jeffrey FELDER, Petitioner, v. Connie HULL, Respondent.
    No. 4D06-3819.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2007.
    Rehearing Denied May 3, 2007.
    Victor D. Berg of Leon & Berg, P.A., and Deborah L. Appel, Tampa, for petitioner.
    Sonja K. Dickens of Arnstein & Lehr, LLP, Fort Lauderdale, for respondent.
   KLEIN, J.

Petitioner was the seller under a real estate contract on which the buyer made a $10,000 deposit. After the transaction failed to close a dispute arose as to who was entitled to the deposit. The county court judge found in favor of the seller without explanation, and the buyer obtained a reversal in circuit court, despite the absence of a transcript of the testimony of the trial in county court.

In reversing and holding that the buyer was entitled to the return of her deposit, the circuit court ignored the contractual provision requiring the buyer to make a good faith effort to obtain the financing on which the contract was contingent. The circuit court accordingly failed to apply the correct law, which is that all provisions of a contract must be given effect. City of Homestead v. Johnson, 760 So.2d 80 (Fla.2000); Paladyne Corp. v. Weindruch, 867 So.2d 630 (Fla. 5th DCA 2004). If the circuit court had applied the correct law, the lack of transcript of the testimony as to the buyer’s efforts to obtain financing would have required the circuit court to affirm the county court judgment in favor of the seller. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Our review of the decision of the circuit court sitting in its appellate capacity is limited to whether the circuit court afforded due process or applied the correct law, Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). In this case the court failed to apply the correct law, and we accordingly grant the petition.

STONE and HAZOURI, JJ., concur.


text:
    Kelvin RANCE, Appellant, v. D.R. HORTON, INC., and CNA Claimplus, Appellees.
    No. 1D05-3105.
    District Court of Appeal of Florida, First District.
    March 26, 2007.

      Kelvin Ranee, pro se, for Appellant.
    Robert M. Anselmo, of Conroy, Sim-berg, Ganon, Krevans, Abel, Lurvey, Morrow & Sehefer, P.A., Tampa, for Appellees.
   PER CURIAM.

The appellant, who is the claimant in this workers’ compensation case, timely appeals the Judge of Compensation Claims’ (JCC) “Order on Motion to Set Aside Portions of Settlement Agreement,” which is dated May 27, 2005. To the extent that the appellant asserts any errors by the JCC in a final order dated January 6, 2005, from which no timely appeal was taken, we lack jurisdiction to review these issues, and dismissal is appropriate. See Fla. R.App. P. 9.180(b)(3); Murphy v. Palm Mattress Co., 889 So.2d 222 (Fla. 1st DCA 2004) (dismissing workers’ compensation appeal for lack of jurisdiction, where appellant failed to file a timely notice of appeal of order to be reviewed). To the extent that any of the appellant’s remaining issues relate to the order timely appealed and were preserved in the lower tribunal, we conclude that competent, substantial evidence in the record supports the JCC’s factual findings (including the finding that the parties reached a valid, binding settlement agreement), that the JCC correctly applied the law to the facts of record, and that the appellant has not met his burden to show an abuse of discretion.

This appeal is DISMISSED in part for lack of jurisdiction, and the JCC’s May 27, 2005, order denying relief is AFFIRMED in all respects.

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


text:
    Robert L. DAVIS, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-5917.
    District Court of Appeal of Florida, First District.
    March 28, 2007.
    Robert L. Davis, pro se, Appellant.
    Bill McCollum, Attorney General, Shelly L. Marks, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of January 18, 2007, the Court has determined that no written order has yet been rendered. Therefore, the Court lacks jurisdiction. Fla. R.App. P. 9.020(h). Accordingly, the appeal is hereby dismissed.

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


text:
    Dale R. PHELPS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6455.
    District Court of Appeal of Florida, First District.
    March 28, 2007.

      Dale R. Phelps, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied. The court notes that petitioner has a pending appeal on the denial of his motion for postconviction relief in case number 1D06-4387.

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


text:
    Franklin GREESON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0339.
    District Court of Appeal of Florida, First District.
    March 28, 2007.
    Franklin Greeson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. Baker v. State, 878 So.2d 1236 (Fla.2004).

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


author: THOMAS, J.

text:
    Marion GROOMS and Linda Grooms, Petitioners, v. SERVICE MAX DELIVERY AND INSTALLATION, INC., Respondent.
    No. 1D06-5741.
    District Court of Appeal of Florida, First District.
    March 28, 2007.

      C. Phil Hall and Joseph A. Zarzaur of McKenzie, Zarzaur & Hall, P.A., Pensacola, for Petitioners.
    Stephanie W. Ritt and Albert M. Guem-mer of Guemmer & Seymour, Tampa, Attorneys for Respondent.
   THOMAS, J.

In this petition for writ of certiorari, Petitioners argue that the trial court departed from the essential requirements of the law when it granted Respondent’s motion to allow a compulsory neuropsychological examination without a videographer present. We agree with Petitioners and grant the petition.

Factual and Procedural Background

Petitioners filed a negligence action against Respondent alleging that Marion Grooms suffered physical and psychological injuries as a result of Respondent’s negligence. The trial court granted Respondent’s motion, filed pursuant to rule 1.360(a)(1), Florida Rules of Civil Procedure, compelling Mr. Grooms to submit to a compulsory neuropsychological examination. Mr. Grooms requested that a videog-rapher record the examination. Because Respondent’s selected neuropsychologist objected to the presence of a videographer, Respondent filed a motion to allow the examination without a videographer present.

The trial court conducted an evidentiary hearing on Respondent’s motion, at which Respondent’s selected neuropsychologist testified that he objected to the presence of a videographer on the following grounds: (1) his professional standards did not permit this; (2) the presence of a third party would compromise test security and render the examination invalid; and (3) a previous examination was compromised by a videographer’s presence. The neuropsy-chologist further testified that his reasons for refusing to allow the videographer applied to any patient.

The trial court granted Respondent’s motion, finding that the presence of a third party would be disruptive and possibly invalidate the examination. The court further found that “there is no evidence that any other professional is available to conduct the test with a videographer present.”

Legal Analysis

To obtain a writ of certiorari, a party must show that the trial court’s ruling is “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on post-judgment appeal.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). A trial court departs from the essential requirements of the law when it does not comply with the two-prong test to exclude a third party from a compulsory medical examination. Lunceford v. Fla. Cent. R.R. Co., Inc., 728 So.2d 1239, 1241 (Fla. 5th DCA 1999).

A party seeking to exclude an observer from a compulsory medical examination must first provide case-specific reasons the examining physician objects to the third party’s presence. Byrd v. S. Prestressed Concrete, Inc., 928 So.2d 455, 458-59 (Fla. 1st DCA 2006); Broyles v. Reilly, 695 So.2d 832, 834 (Fla. 2d DCA 1997). Once this test is satisfied, the party seeking to exclude the observer must prove at an evidentiary hearing that' no other qualified physician can be located in the relevant geographic area who would perform the examination with the observer present. Byrd, 928 So.2d at 459 (citing Freeman v. Latherow, 722 So.2d 885, 886 (Fla. 2d DCA 1998)). The party seeking to exclude the observer bears the burden of persuasion to show why the observer should not be present. Broyles, 695 So.2d at 833.

Respondent failed to present any case-specific reasons why the videographer should be excluded from the examination. The neuropsychologist’s reasons included his standards of practice, which this court has previously held does not constitute a case-specific reason. Byrd, 928 So.2d at 459. Additionally, a conclusory, general allegation that a third party’s presence will render an examination invalid is not a case-specific reason to exclude a third party. Brompton v. Poy-Wing, M.D., 704 So.2d 1127, 1128-29 (Fla. 4th DCA 1998). Finally, a previous exam which was disrupted by a third party’s presence is not a case-specific reason to exclude a third party when no evidence is presented that a similar disruption will occur here. See Freeman, 722 So.2d at 886.

Respondent also failed to carry its burden to demonstrate that no other qualified neuropsychologists could be located who would perform the examination with a videographer present. As the trial court acknowledged, counsel’s representation that another doctor could not be located did not constitute evidence, and Petitioners’ counsel never agreed to counsel’s representation.

We grant Petitioner’s petition for writ of certiorari and quash the trial court’s order. On remand, Respondent may present more detailed, fact-specific reasons why its selected neuropsychologist cannot examine Mr. Grooms with a videographer present and it may present evidence that no other qualified physician would be willing to conduct the examination with a videographer present. See Freeman, 722 So.2d at 887.

Petition for writ of certiorari GRANTED.

HAWKES and ROBERTS, JJ., concur.


author: TAYLOR, J.

text:
    Eugene FALLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-131.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.

      Carey Haughwout, Public Defender, Marcy K. Allen, Assistant Public Defender, and Brian Balaguera, Certified Legal Intern, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Eugene Falls appeals an order denying his motion to suppress oxycodone and methadone pills seized during a search incident to an arrest on an outstanding warrant. Police discovered the warrant while performing a teletype search of appellant’s license during a consensual encounter. We affirm.

Officer Guy Prosper of the Coral Springs Police Department was training a police dog behind a business in an open field of an industrial park at around 9:00 p.m. Most of the businesses in the industrial area were closed, but a few were still open with overnight employees there. Although most of the area was dark, he was in a field that was fairly lit. Officer Prosper described the crime rate in the area as comparable to that of other areas of the city, but said that there had been nighttime burglaries in the industrial park.

Officer Prosper was fully uniformed and standing beside his car when he noticed appellant cutting through the grass, walking to the rear of the businesses. The officer watched appellant for about thirty seconds and did not see him engage in any criminal activity. Appellant was not looking in the windows of any businesses nor attempting to pry open doors or windows. Further, appellant did not possess or use any burglary tools.

Concerned that appellant’s presence in the area was unusual for that time, Officer Prosper approached appellant and asked, “man, how you doing, what are you up to tonight?” Appellant responded that “his cousin’s cutting through here, coming home from work, just things like that.” He told the officer his name. Officer Prosper could not recall whether appellant offered his identification or if he asked for it. When appellant gave his driver’s license to the officer, the officer ran a warrants check. A few minutes later, backup officers notified Officer Prosper that there was an outstanding warrant for appellant’s arrest. Appellant was then arrested and searched. During the search, officers discovered six and one-half oxycodone pills, two methadone pills, and a pill bottle on his person.

Appellant filed a motion to suppress the drug evidence seized during the search incident to his arrest. The trial court denied the motion, determining that the totality of the circumstances justified the officer’s encounter with appellant and request for identification.- Appellant pled no contest to his charges and appealed the denial of the motion to suppress.

Appellant argues that the trial court erred by denying his motion to suppress the evidence seized during the search incident to his arrest- on the warrant. He contends that Officer Prosper unlawfully stopped him without a founded suspicion. He maintains that the encounter was not consensual because he did not have a reasonable belief that he was free to leave. As a result of the unlawful stop, the officer discovered the outstanding arrest warrant and thereafter searched him. According to appellant, discovery of the outstanding warrant did not attenuate the taint of the illegal stop.

The state responds that the officer’s encounter with appellant was consensual. It further argues that even if there, was a stop or detention, it was lawful because it was based on a founded suspicion. Alternatively, the state argues that even if there was an improper stop, the warrant purged any taint.

We afford a presumption of correctness to a trial court’s ruling on a motion to suppress and interpret the evidence and reasonable inferences and deductions from that evidence in a light most favorable to sustaining such a ruling. Although we presume a trial court’s findings as to historical facts to be correct, we review mixed questions of law and fact that bear on constitutional issues de novo. See Schoenwetter v. State, 931 So.2d 857, 866 (Fla.2006).

Although there is no “litmus-paper test” for determining when a consensual encounter or an investigatory stop has occurred, the Florida Supreme Court provided the following guidance in Popple v. State, 626 So.2d 185,186 (Fla.1993):

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.

Id. Describing a detention, the court stated:

The second level of police citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. § 901.151, Fla. Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).

Id.

We do not agree with the state’s fallback position that Officer Prosper had a well-founded, articulable suspicion of criminal activity to'justify an investigatory stop of appellant. Instead, we agree with the trial court’s conclusion that the interaction between Officer Prosper and appellant was a consensual encounter. The officer testified that when he approached appellant, he did not tell him to stop or direct him to come over to him. He did not call for backup or say or do anything to indicate that appellant was not free to leave. According to the officer, they “were pretty much just conversing,” and appellant voluntarily produced his license. As the United States Supreme Court has stated, “[l]aw enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.” See United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).

Furthermore, the fact that the officer asked appellant for his driver’s license and retained it to conduct a search for outstanding warrants did not convert the consensual encounter into a stop. See Golphin v. State, 945 So.2d 1174 (Fla.2006). Golphin recently addressed this issue on facts similar to those in this case. In Golphin, two officers approached a group of five men, one member of which was the defendant. Although some of the men left when the officers approached, there was uncontroverted evidence that Golphin never attempted .to leave. One of the officers asked the defendant for his identification, which he voluntarily provided, and the officer, without moving, checked the ID for outstanding warrants. After the officer began the check, Golphin stated that he might have an outstanding warrant. The check revealed an outstanding warrant for his arrest and Golphin was arrested. During a search incident to arrest, drugs and paraphernalia were discovered.

The supreme court concluded that the encounter was consensual and did not mature into a seizure simply because the officer retained Golphin’s identification to check for outstanding warrants. The supreme court remarked that Golphin was not driving a vehicle at the time of the stop and therefore would not have to violate the law if he left the scene without his driver’s license. Further, the court found it significant that the officer did not retain Gol-phin’s identification while asking for consent to search.

Applying its recent decision in State v. Frierson, 926 So.2d 1139 (Fla.2006), the supreme court went on to conclude that even if the encounter in Golphin had amounted to a seizure, suppression of the evidence seized during the search of Gol-phin would not have been required because the search was incident to his arrest on the outstanding warrant, and there was no evidence of .bad faith on the part of the-officers. Id. at 1143.

In Frierson, an officer stopped-the defendant for operating a vehicle with a cracked taillight and failing to use a turn signal. Id. at 1141. While checking the defendant’s identification, the officer discovered an outstanding warrant for the defendant’s arrest. In a search incident to the defendant’s arrest, police found a firearm. Frierson was charged with possession of a firearm by a convicted felon. The supreme court determined that the firearm did not have to be suppressed, even though the initial stop was unlawful because neither the cracked taillight nor the failure to use a turn signal constituted traffic violations. The court held that the police officer’s discovery of the outstanding arrest warrant was an intervening circumstance which dissipated the taint of the illegal traffic stop.

In upholding the search in Frier-son, the court first noted the United States Supreme Court’s observation in Wong Sun that not all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the court must consider three factors in deciding whether unlawfully obtained evidence should be excluded:

(1) the time elapsed between the illegality and the acquisition of the evidence;
(2) the presence of intervening circumstances; and (3) the purpose and fla-graney of the official misconduct.

Id. at 1143 (quoting United States v. Green, 111 F.3d 515 (7th Cir.1997)).

Applying the three-factor test here, we conclude that, even if appellant was unlawfully stopped, the evidence seized following his arrest on the warrant need not be suppressed. The first factor, as the state concedes, weighs against finding the search attenuated, because only a brief period of time elapsed between the initial encounter with appellant and the discovery of the pills and pill bottle. However, the supreme court stated that this factor is not

dispositive. Id. at 1144. The second factor, the intervening circumstance of discovery of the outstanding warrant for appellant’s arrest, “weighs in favor of the [evidence] found in a search incident to the outstanding arrest warrant being sufficiently distinguishable from the illegal stop to be purged of the ‘primary taint’ of the illegal stop.” Id. at 1144. As did the supreme court in Frierson, we find it significant that the search was made incident to the arrest on the warrant and not as part of an illegal stop. As to the third factor, there is no evidence that Officer Prosper stopped the defendant on a pre-textual basis or in bad faith. Officer Prosper stated that he made contact with the defendant because of the late hour and the location, where businesses had been burglarized in the past.

In sum, the record supports a finding that appellant’s contact with the police officer was a consensual encounter. The encounter did not become a seizure when the officer obtained appellant’s voluntarily produced driver’s license for a warrants check. The evidence seized as a result of discovery of the outstanding arrest warrant, arrest of appellant, and search incident to the arrest is not the fruit of an illegal seizure. We therefore affirm the trial court’s denial of appellant’s motion to suppress.

Affirmed.

WARNER and GROSS, JJ., concur.

      . See Wong Sun v. United States, 371 U.S. 471. 487-88. 83 S.Ct. 407. 9 L.Ed.2d 441 (1963).


author: WARNER, J.

text:
    Keith R. WOLFE, Appellant, v. Nancy B. WOLFE, Appellee.
    No. 4D05-3527.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Rehearing Denied May 8, 2007.

      Edna L. Caruso of Edna L. Caruso, P.A., and Jay R. Jacknin of Christiansen & Jacknin, Lawyers, West Palm Beach, for appellant.
    Cynthia L. Greene of Law Offices of Greene Smith McMillan, P.A., Miami and Law Offices of Sara Blumberg, P.A., Boyn-ton Beach, for appellee.
   WARNER, J.

The former husband appeals the trial court’s denial of his petition for modification of his alimony obligation to the former wife, where the former wife’s expenses had decreased significantly because of the sale of the marital home. We conclude that the trial court erred in failing to reduce the alimony and reverse.

The parties were divorced in 2002 after twenty-four years of marriage. In the final judgment of dissolution, the court determined that the husband had a substantial monthly income of around $26,000 from his dental practice. Both parties agreed that the wife would need permanent alimony. However, because the parties were selling the marital home, the husband argued that the wife’s expenses would be reduced once the sale was complete. He proposed some bridge-the-gap alimony until the house was sold. Nevertheless, the court declined to speculate on the wife’s future expenses after the sale of the home. It did not want to place the wife in a position of having to seek modification should the projected decline of future expenses not come to fruition. The court then awarded the wife $13,000 per month in permanent alimony. That award was based upon the wife assuming all of the expenses of the marital home. The court also ordered the sale of the marital home. In all, each party received approximately $2,000,000 in marital assets. The husband appealed the final judgment, and we affirmed. See Wolfe v. Wolfe, 864 So.2d 1229 (Fla. 4th DCA 2004).

Within a year of this court’s decision, the former husband filed a petition for modification of alimony. In his petition, the former husband claimed that subsequent to the entry of the final judgment, a substantial and permanent change of circumstances occurred in that his income was far less than his net monthly earnings contemplated in the final judgment. Additionally, since the entry of the parties’ final judgment, the former wife sold the parties’ former marital home, which was a significant basis in determining the amount of alimony to award to the former wife. She purchased a smaller residence, decreasing her needs.

When the parties sold the marital home, the former wife received $370,000. From her share of the sale proceeds, she put about $100,000 into the new home and put about $270,000 into a money market fund. Although the marital home carried a thirty-year mortgage with a balance at sale of $220,000, the wife financed $320,000 of her new residence with a fifteen-year mortgage, making the mortgage payments approximately the same as the mortgage on the marital home. Had she kept the same size mortgage ($220,000) and amortization of thirty years, her payments would be $1,200 instead of $2,500 per month. Instead, she invested the remaining $270,000 from the sale of the home. In all, she had an investment account of approximately $1,000,000 and a retirement account of $650,000. Her investment return on the $1,000,000 was less than two-percent.

The former wife’s financial affidavit, her expert’s analysis of her needs, and the former husband’s expert’s analysis of her needs are all in conflict as to what the former wife’s expenses are, both as to amount and category. However, her current expenses included categories of items not included in the calculation of alimony at trial. These include expenses for the parties’ adult son, a substantial catchall of “spending money,” a long-term care contract, and a prepaid funeral contract, both contracts purchased after the divorce.

The trial court denied the petition for modification. It concluded that the former husband had not proved that he had a significant and permanent reduction in income. As to the former wife’s expenses, the court refused to consider the sale of the marital home as a reason for modification, because it was contemplated in the final judgment. It further found that the former husband’s claim that the former wife’s needs have decreased should fail because generally the purposes to which a spouse puts the alimony award do not support a modification of the award, citing Tinsley v. Tinsley, 502 So.2d 997 (Fla. 2d DCA 1987). It therefore denied the petition for modification. The former husband appeals.

A reduction in alimony can be based either on the decreased income of one party or the decreased needs of the other party. See § 61.14(1), Fla. Stat.; Antepenko v. Antepenko, 824 So.2d 214 (Fla. 2d DCA 2002). Here, the former husband tried to prove both. As to the former husband’s claim of decreased income, even the former wife’s expert’s calculations show a modest decrease in the former husband’s income. Nevertheless, having evaluated the testimony regarding the former husband’s income loss, including the expert testimony and the trial court’s credibility determinations, we cannot say that the trial court abused its discretion in concluding that the former husband has not suffered a significant, involuntary reduction in income.

The trial court did not consider the sale of the marital home in determining whether the former wife’s expenses had decreased, because it viewed the sale as contemplated in the original final judgment, citing Ashburn v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977). The trial court was thus attempting to apply the general rule that in order to obtain a modification, a party seeking modification of an alimony award must show: (1) a substantial change in circumstances since the date of the final judgment; (2) that the change was not contemplated at the time of the final judgment; and (3) that the change is sufficient, material, involuntary, and permanent in nature. Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). In interpreting this general rule, we recently said:

[M]odification may not be based upon factors affecting income known to the parties at the time a final judgment is entered.... “The reason for this doctrine is an obvious one: if the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award in question, it would be grossly unfair subsequently to change the result simply because the anticipated event has come to pass.”

Mendes v. Mendes, 947 So.2d 450, 452 (Fla. 4th DCA 2006) (quoting Jaffee v. Jaffee, 394 So.2d 443, 445 (Fla. 3d DCA 1981)) (emphasis added).

In setting the award of alimony in the initial final judgment in this case, the trial court refused to consider the likely reduction of the wife’s expenses once the marital home was sold. The court found that “speculation as to the wife’s future expenses are inappropriate at this juncture.” While the husband argued that the wife would only need “bridge-the-gap” alimony until the house was sold and then a lesser amount of permanent alimony, the court felt that following the husband’s plan would shift the burden of proof to the wife in any modification proceeding if the anticipated future event, i.e., the sale of the home and purchase of another home, did not meet the future projections. Because the former wife’s needs after obtaining her new residence were not considered in the fixing of the award, we conclude that the court erred in failing to consider the sale of the marital home and the related reduction of expenses as a ground for modification.

The former wife argues that her mortgage and other expenses are approximately the same for her new residence, so no decrease in alimony is in order. The only reason her expenses are not substantially less is because of the former wife’s financial decisions at the time of the sale of the marital home. Instead of applying the proceeds of the sale of the marital home to her new home, she invested most of them. In addition, she obtained a mortgage with a fifteen-year amortization, instead of a thirty-year amortization like the mortgage on the marital home. This nearly doubled her monthly payment.

We agree with the former husband that the court erred in failing to consider the sale of the marital home and the change in the former wife’s circumstances. From the sale of the marital home coupled with a small portion of her share of other marital assets, the former wife could have paid for her new residence outright with no mortgage obligation, or she could have obtained a mortgage in line with the pre-divorce amortization of thirty years. Instead, she chose a fifteen-year amortization, so the alimony payments would completely pay for the home by the time the former husband reaches retirement. Thus, by structuring the mortgage in the way she did, the former wife not only receives the equitable share of the former residence as an asset, but also increases her assets by using the former husband’s alimony payment to fully pay for her second residence within a short period of time. This is similar to having a prohibited “savings component” in alimony. See Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000) (“Current necessary support rather than the accumulation of capital is the purpose of permanent periodic alimony.”). The former husband has no obligation to increase the former wife’s assets post-dissolution. Id.

With respect to her other current expenses, some of the expenses included on her subsequent affidavit were not part of the expenses upon which the standard of living was determined at the time of divorce. The trial court refused to consider this issue, citing Tinsley v. Tinsley, 502 So.2d 997 (Fla. 2d DCA 1987), for the proposition that the purposes to which a spouse puts the alimony award generally do not support a modification of the award.

We recently addressed Tinsley in Donoff v. Donoff, 940 So.2d 1221 (Fla. 4th DCA 2006). There, the former husband challenged a trial court’s order reducing alimony, because the court used an improper analysis in determining the size of the reduction. We held that all applicable section 61.08(2) factors in determining alimony must be considered in modification proceedings under section 61.14. Id. at 1224. We then looked at some of the expenses that the former wife included in her spending, such as $4,000 per month on her adult daughter. The trial court in Donoff had relied on Tinsley in refusing to consider what the former wife spent her money on in determining a modification of alimony. In his opinion, Judge Farmer noted:

The court voiced reliance on a principle that “the purposes to which the recipient puts the alimony generally do not support a modification,” citing Tinsley v. Tinsley, 502 So.2d 997 (Fla. 2d DCA 1987), and Springstead v. Springstead, 717 So.2d 203 (Fla. 5th DCA 1998).6
Apart from the doubtful formulation of the principle he sought to apply, neither case supports the trial judge’s decision. Springstead is no help because by the time of the modification hearing the spouse there had stopped cohabiting and the former companion had also reimbursed her for all sums she had given him. Tinsley involved a former agreement between the parties for a specified amount of alimony, which the trial court later reduced in a modification proceeding on account of distributions by the receiving spouse from the alimony to an adult child and a grandchild. In reversing the modification, the court emphasized that a party who seeks to reduce agreed alimony bears a heavy burden that was not sustained in the case. The opinion in Tinsley makes apparent that in spite of the sums the recipient gave to the children, the paying spouse had not shown that her needs had decreased by reason of any other ineome-the essential difference in the present case. Section 61.08 makes clear that in determining any need for alimony, whether original or modification, the entire financial resources and income of the party seeking the award must be considered.
6- Tinsley traced the principle regarding spending to Phillippi v. Phillippi, 148 Fla. 393, 4 So.2d 465 (1941), where the supreme court stated the issue thus: "whether the subsequent alleged extravagance of the divorced wife will support a bill to reduce alimony.” 4 So.2d at 466. The issue was whether a payee’s extravagant spending of alimony in gambling was by itself grounds to reduce it. Id. The holding in Phillippi was that, by itself, such spending was not a basis to modify the award. 4 So.2d at 466-67. Yet without explanation, Springstead somehow reformulated the Phillippi principle to be this: "As a general rule, how the recipient spouse chooses to spend the alimony is irrelevant [e.s.] in a modification action.” 717 So.2d at 204. Springstead thus remade the Phillippi holding into a statement of principle that the purpose to which the alimony is put is irrelevant. That is obviously not the holding in Phillippi. As here, such purposes could be relevant in determining whether the alimony claimant has a need for such assistance.

Id. at 1224-25 (emphasis in original). Tinsley thus does not stand for the proposition that on modification no review of the receiving spouse’s spending should be made. The inquiry is still the needs of the spouse based upon the marital standard of living of the parties. The former wife’s ability to contribute to her own support through the division of marital assets must also be considered. Id. The trial court failed to consider either her needs or the reasonable amount of income which could be generated from her considerable assets for her support.

In particular, the expenses that the former wife spends for her adult son are not properly included in her needs evaluation for purposes of alimony. A parent has no legal obligation to provide post-majority support for a child and cannot be compelled to support an adult child indirectly through the payment of alimony. Grapin v. Grapin, 450 So.2d 853 (Fla.1984). The pre-paid funeral expense is also not properly calculated as part of the former wife’s needs for purposes of the alimony calculation. Although the parties did plan for their demise through the purchase of cemetery lots during the marriage, these were equitably distributed to both of them at the time of the divorce. This new contract is not an expense which was part of the standard of living as calculated at the time of the final judgment of divorce. The former husband would be paying twice for his former wife’s burial expenses should he be compelled to pay an alimony award which includes these expenses as a need of the former wife.

Similarly, the contract for long-term care included in the former wife’s accountant expert’s analysis of her needs should not be included as part of her expenses. The former husband pays for her support and will be obligated to pay if she requires long-term care. Further, the former wife’s award of alimony is secured against the former husband’s demise by a $1,000,000 life insurance policy. Therefore, the former husband is already paying for the former wife’s continued care throughout her lifetime. In addition, the wife has $2,000,000 in assets upon which to rely.

Other expenses such as unallocated “spending money” which the former wife’s expert lists in one report as high as $49,395 per year were not specifically calculated in the original standard of living, and it appears that in some categories the former wife is spending far more than what was included in the standard of living of the parties at the time of the divorce. Some additional expense may be required as a result of inflation or other factors, but, relying on Tinsley, the trial court did not make any findings of fact on these issues.

Having determined that under the facts of this case the trial court erred in refusing to consider the sale of the marital home and the resulting decrease in expenses to the former wife as a circumstance warranting consideration of modification in alimony, we reverse. As in Do-noff, we remand for a reconsideration of the former wife’s needs and her ability to contribute to those needs, in accordance with this opinion.

Reversed and remanded.

POLEN and GROSS, JJ., concur.


text:
    Bryant TROVILLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4016.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Rehearing Denied May 8, 2007.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was found to be a sexually violent predator under the Jimmy Ryce Act and argues that the trial court erred in admitting testimony of therapists, which he contends was privileged. He also argues that the court erred in prohibiting him from denying his guilt of the underlying crimes, which were convictions based on guilty pleas. We affirm.

Appellant was scheduled to be released in 1999 from incarceration for multiple convictions for armed sexual battery, which had occurred in 1988. His argument that the trial court should not have admitted the testimony, of therapists begins with the fact that, when the state filed a petition for his commitment under the Ryce Act, it was just before the Act was amended and renumbered from sections 916.32-916.49, Florida Statutes to sections 394.910-394.931, Florida Statutes. Chapter 99-222, § 3, Laws of Fla. (1999). After the amendment the trial court granted the state’s motion to amend the petition to proceed under the amended statute, which contained a new provision eliminating the psychotherapist-patient privilege in Ryce Act proceedings. § 394.9155. Appellant argues that the elimination of the privilege is substantive, not procedural, and cannot be applied in this case. We need not reach that argument because we conclude that there was no privilege for these communications before the amendment.

The psychotherapist-patient privilege is found in our evidence code, section 90.503; however, there is a specific exception provided in section 90.503(4)(a):

(4) There is no privilege under this section:
(a) For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.

In Westerheide v. State, 831 So.2d 93, 102 (Fla.2002), our supreme court noted that this exception applied to the Baker Act, which provides for involuntary commitment of a person who is mentally ill and there is “a substantial likelihood that without care or treatment the person will cause serious bodily harm ... to others in the near future.” § 394.463, Fla. Stat. (1998). The definitions in the Ryce Act, section 394.912(4) and (5) provide:

(4) “Likely to engage in acts of sexual violence” means the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.
(5) “Mental abnormality” means a mental condition affecting a person’s emotional or volitional capacity which predisposes the person to commit sexually violent offenses.

Those definitions were unchanged from the earlier version of the Ryce Act. § 916.32(4) and (5), Fla. Stat. (1998). There are enough similarities between the definition of mental illness under the Baker Act, and “mental abnormality” under the Ryce Act, to lead us to conclude that the communications to the therapists in this case fell within the section 90.503(4)(a) exception and were not privileged.

Appellant next argues that section 394.9155, entitled “Rules of procedure and evidence,” which was not in the original Ryce Act, and which, in section 394.9155(5), allows hearsay evidence, should not have been applied by the trial court. Appellant argues that this cannot be applied retroactively because it is substantive rather than procedural. In Glendening v. State, 536 So.2d 212 (Fla.1988), our supreme court held that a statute permitting the admission in evidence of hearsay statements by child sexual abuse victims could be applied retroactively, because it was procedural, not substantive. Applying the same reasoning here, we conclude that the trial court properly applied the new statute.

Appellant next argues that the court erred in not allowing him to contest the fact that he had committed the crimes. As we noted' earlier, appellant entered a plea of guilty to the crimes, and the trial court ruled that he could not now deny his guilt because of the rule of collateral estoppel. Kelly v. Dep’t of Health & Rehabilitative Servs., 610 So.2d 1375, 1377 (Fla. 2d DCA 1992) (“where a judgment of conviction is based upon a guilty plea ... a defendant is estopped from denying his guilt of the subject offense in a subsequent civil action.”). Appellant’s contention that collateral estoppel does not apply because this case does not involve the identical issue being litigated between the same parties, Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla.1984), is without merit. Although an involuntary commitment under the Ryce Act requires proof of additional elements, besides the prior criminal conviction of a sexually violent offense, that does not preclude the application of collateral estoppel, which applies to issues, unlike res judicata, which applies to causes of action. Romano, 450 So.2d at 845.

Nor can we agree with appellant’s argument that his plea was the equivalent of a no contest plea, which does not constitute an admission of guilt for purposes of collateral estoppel. Appellant entered a plea of guilty which contained a protestation of innocence. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In Blohm v. Commissioner, 994 F.2d 1542, 1554 (11th Cir.1993), the court explained why an Alford plea can result in an application of collateral estoppel:

Once accepted by a court, it is the voluntary plea of guilt itself, with its intrinsic admission of each element of the crime, that triggers the collateral consequences attending that plea. Those consequences may not be avoided by an assertion of innocence. As long as the guilty plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant, see Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), and a sufficient factual basis exists to support the plea of guilt, see Fed.R.Crim.P. 11(f), the collateral consequences flowing from an Alford plea are the same as those flowing from an ordinary plea of guilt.

We have considered the remaining issues raised by appellant and find them to be without merit.

Affirmed.

HAZOURI and MAY, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Sandra L. DAN, Trustee of the Sandra Dan Revocable Trust Under Agreement, George Atrio, and Office Express, Inc., Appellants, v. BSJ REALTY, LLC and J.R. Holdings, LLC, Appellees.
    Nos. 3D05-438, 3D05-2954.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.

      Greenberg Traurig, P.A., and Elliot H. Scherker and Pamela A. DeBooth, Miami, for appellants.
    Greenspoon Marder, P.A., and Edmund 0. Loos, III, and Victor S. Kline, Orlando;
    Shutts & Bowen, LLP, and Stephen B. Gillman and Suzanne Youmans Labrit, Miami, for appellee BSJ Realty, LLC.
    Proskauer Rose, LLP, and Matthew Triggs, Gary W. Kovacs, and Elise D. Weakley, Boca Raton, for appellee J.R. Holdings, LLC.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The appellants, Sandra L. Dan, Trustee of the Sandra Dan Revocable Trust Under Agreement, George Atrio, and Office Express, Inc. (collectively referred to as “plaintiffs”), appeal a final judgment in favor of the appellees, BSJ Realty, LLC (“BSJ”) and J.R. Holdings, LLC (“JRH”)(collectively referred to as “defendants”), holding that the plaintiffs do not have a prescriptive easement over a twenty-five foot strip of land owned by the defendants. Because we find that the plaintiffs failed to establish their right to a prescriptive easement, we affirm.

The parties own abutting commercial real estate property comprising a warehouse development located in Hialeah, Florida. The dispute concerns a private roadway located in the rear of the warehouses which has been used for over thirty years by the abutting warehouse owners and tenants, including the parties and their predecessors in title, to gain access to the rear of their respective properties. Sometime in 2002, BSJ built a fence and gate at the rear of its property, thereby restricting the plaintiffs’ use of the private roadway to access the rear of their warehouses. Prior to that time, the plaintiffs and their predecessors in title used the private roadway across the defendants’ property without any objection and with no express permission from the lawful owners.

The plaintiffs filed suit against the defendants asserting, in pertinent part, that they were entitled to a prescriptive easement over the disputed strip of land based upon their and their predecessors’ continuous use of the private roadway for the prescriptive period. Following a bench trial, the trial court entered a final judgment in favor of the defendants, finding that the plaintiffs failed to prove all the elements necessary for a prescriptive easement, specifically, that the plaintiffs “failed to establish that their predecessors^] use during the prescriptive period was adverse, under claim of right, and inconsistent with [the] owners[’] use and enjoyment.” We agree.

In order to establish a prescriptive easement, the claimant thereof must, by clear and positive proof, prove: (1) actual, continuous, and uninterrupted use by the claimant or any predecessor in title for the prescribed period of twenty years; (2) that during the whole prescribed period the use has been either with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner; (3) that the use related to a certain limited and defined area of land or, if for a right-of-way, the use was of a definite route with a reasonably certain line, width, and termini; and (4) that during the whole prescribed period the use has been adverse to the lawful owner; that is, (a) the use has been made without the permission of the owner and under some claim of right other than permission from the owner, (b) the use has been either exclusive of the owner or inconsistent with the rights of the owner of the land to its use and enjoyment, and (c) the use has been such that, during the whole prescribed period, the owner had a cause of action against the user for the use being made. Suwannee River Water Mgmt. Dist. v. Price, 651 So.2d 749, 750 (Fla. 1st DCA 1995)(citing Downing v. Bird, 100 So.2d 57 (Fla.1958)); Phelps v. Griffith, 629 So.2d 304, 305 (Fla. 2d DCA 1993); Crigger v. Fla. Power Corp., 436 So.2d 937, 944-45 (Fla. 5th DCA 1983); Guerard v. Roper, 385 So.2d 718, 720 (Fla. 5th DCA 1980). Because the law does not favor the acquisition of prescriptive rights, use or possession of another’s land is presumed to be subordinate to the owner’s title and with the owner’s permission. Thus, the burden is on the claimant to prove that such use or possession is adverse to the true owner. Price, 651 So.2d at 750; Crigger, 436 So.2d at 943^14. Further, “[a]ll doubts as to the adverse character of a claimant’s pattern of use must be resolved in favor of the lawful owner of the property.” Phelps, 629 So.2d at 306.

There is no dispute, and the parties agree, that the plaintiffs and their predecessors in title continuously used the private roadway for the required prescriptive period of twenty years. There is also no dispute that such use was of a definite route with a reasonably certain line, width, and termini. As the trial court specified, the dispute centers on whether the plaintiffs’ predecessors in title used the private roadway in a manner adverse to the lawful owners. Based upon our review of the record, we agree with the trial court that the plaintiffs failed to establish that their predecessors’ use during the prescriptive period was adverse, under claim of right, and inconsistent with the lawful owners’ use and enjoyment.

The record evidence indicates that the defendants’ predecessors allowed the plaintiffs and their predecessors to freely use the private roadway and that both the defendants’ predecessors and the plaintiffs’ predecessors used the private roadway for the same common purpose — to access the rear of their respective warehouses. This use in common with the owner is presumed to be in subordination of the owner’s title and with his or her permission. See Guerard, 385 So.2d at 721. Further, there is no evidence indicating that the defendants’ predecessors attempted to restrict access to the private roadway or that the plaintiffs or their predecessors ever asked for or received permission to use the private roadway. The record does not contain sufficient evidence to support a finding that the use of the private roadway by the plaintiffs and their predecessors in title was inconsistent with the lawful owners’ use and enjoyment of the private roadway. Consequently, the plaintiffs failed to overcome the strong presumption in favor of permissive use and accordingly, we affirm the trial court’s finding of no prescriptive easement.

Affirmed.

        . As to the order assessing costs against the plaintiffs in favor of BSJ, based on our affir-mance of the trial court’s final judgment, we also affirm the trial court’s supplemental final judgment awarding costs to BSJ.


text:
    Stephen HOFFMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-532.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.

      Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, Miami, for appellant.
    Bill McCollum, Attorney General, Orlando, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   RAMIREZ, J.

Stephen Hoffman appeals his judgment of conviction and sentence for attempted second degree murder. We reverse and remand for a new trial, finding that the trial court erred in excluding evidence of Hoffman’s reputation for non-violence.

The State filed an Amended Information charging Hoffman with attempted second degree murder with a dangerous weapon, stemming from an incident that occurred on September 8, 2002. On that date, the victim, Jorge Carménate, and his girlfriend at the time, were driving in the residential neighborhood off of US1 and Southwest 27th Avenue, in Miami-Dade County, when they came to a stop sign. As he was pulling out, a black cat darted across Carmenate’s path. He honked his horn at the cat, which appeared to get out of his way. When Carménate saw Hoffman was on the side of the street making many hand gestures and screaming a stream of profanities, he stopped the car because he thought he may have hit the cat. Carmen-ate saw Hoffman approaching from behind the car. Carménate rolled down his window and asked what was the problem. Hoffman continued to yell profanities. Carménate exited the car to see if anything happened to the eat. At trial, the various witnesses — Carménate, his girlfriend and Hoffman — recounted different versions of what followed, particularly as it related to who was the aggressor. But it is undisputed that Hoffman stabbed Car-ménate in the stomach with a knife and cut him on his left arm. The jury convicted Hoffman of attempted second degree murder.

The only issue on this appeal is the admissibility of City of Miami Commissioner Thomas Regalado’s testimony. Prior to the start of his case, Hoffman tried to introduce the testimony of Commissioner Regalado, regarding Hoffman’s reputation for peacefulness in the community. The commissioner proffered testimony, outside of the jury’s presence, that he lived in his house for the past twenty years and that Hoffman lived across the street from him. He testified that Hoffman had a reputation for peacefulness in the community. The State elicited from the commissioner that he never spoke to anyone concerning Hoffman’s reputation in the community. Commissioner Regalado further testified that he and his neighbors were familiar with Hoffman and that he had never seen Hoffman act violently. After the commissioner finished his proffer, the trial judge disallowed the commissioner’s testimony:

COURT: He specifically said I never had those discussions with my neighbors, who are the members of the community, concerning Mr. Hoffman’s peacefulness or violence, that is what’s required by the rules of evidence.

At the conclusion of the evidence, defense counsel renewed his objection to the trial court’s exclusion of the reputation testimony. The trial court did not allow Commissioner Regalado to testify regarding Hoffman’s reputation. Thereafter, Hoffman was found guilty of attempted second degree murder and sentenced to 7.5 years incarceration in prison followed by 7.5 years of probation.

On appeal, Hoffman contends that the trial court erred in excluding evidence of his reputation for non-violence based solely on the fact that Commissioner Regalado never had a discussion with his neighbors about Hoffman’s reputation for non-violence. We agree that the trial court erred in preventing Hoffman from introducing the commissioner’s testimony that Hoffman had a reputation for peacefulness.

The general rule in Florida is that a criminal defendant is allowed to introduce evidence of his good character and reputation where such evidence has reference to a trait involved in the offense with which he is charged. Campos v. State, 366 So.2d 782, 784 (Fla. 3d DCA 1978); Seabrook v. State, 348 So.2d 663, 664 (Fla. 2d DCA 1977). A defendant’s lack of propensity toward violence is clearly relevant to the trait of violence inherent in a charge of attempted murder. Campos, 366 So.2d at 784; Seabrook, 348 So.2d at 664. Moreover, section 90.404(1)(a), Florida Statutes (2002), specifically allows the accused to offer evidence of a pertinent trait of his character. Pino v. Koelber, 389 So.2d 1191, 1193 (Fla. 2d DCA 1980). In the ease before us, Hoffman was charged with attempted second-degree murder. His defense was that he stabbed Carmen-ate in self-defense. As such, Hoffman’s lack of propensity toward violence was clearly relevant to the trait of violence inherent in the attempted second degree murder charge.

The trial court concluded that because Commissioner Regalado never actually had a discussion with a neighbor who told him that Hoffman had a reputation for peacefulness, it would not allow the commissioner to testify as to Hoffman’s reputation.We believe the trial court erred in making this conclusion.

In Hinson v. State, 59 Fla. 20, 21, 52 So. 194, 195 (Fla.1910), the defense wanted to call three character witnesses to testify that they lived in Hoffman’s community and that Hoffman had a reputation for honesty and integrity. The trial judge excluded the testimony of the three witnesses because they admitted they had never heard anyone discuss Hoffman’s reputation prior to testifying. Id. The Florida Supreme Court found that the trial court erred in excluding this reputation testimony and held:

A witness is not competent to testify to the reputation of another person, unless he can say that he believes he knows the general reputation of such person in the community. While the knowledge of the witness must extend to the other’s general reputation, one who has been personally acquainted with another for a considerable length of time, and who has been in a position where he probably would have heard that other’s reputation talked about, were it the subject of comment, as seems to be the case with the witnesses here, and who has never heard it questioned, may testify to the good reputation of such person. Such a witness may testify to good reputation by saying that he has never heard anything said against the person.

Id. See also Herring v. State, 114 Fla. 156, 154 So. 187 (Fla.1934); Eubanks v. State, 179 So.2d 256, 257 (Fla. 1st DCA 1965)(court erred in striking testimony of character witnesses where the witnesses’ opinion as to defendant’s reputation was based upon the fact that they had never heard anything bad or derogatory about defendant even though they had known him for many years and lived in the same community with him).

'. In Hinson, the Florida Supreme Court laid out the procedure that a trial court should followed when a defendant seeks to introduce character evidence:

The inquiry should be whether the witness knows the general reputation of the person whose character is in issue in the given community, and as to the trait or quality in question. When the witness answers that question in the affirmative, the foundation for proving what that reputation is has been sufficiently laid, and the witness thus laying such foundation should be permitted to go on and testify as to what the reputation is, without being interrupted by a cross-examination to test the extent and sources of his information as to such character. The proper practice in testing, by cross-examination, the extent and sources of the knowledge or information of such impeaching witness, is to defer it until the witness has been turned over in regular order for cross-examination in general at the close of the examination in chief.

Hinson, 59 Fla. at 21, 52 So. at 195. Likewise, we conclude that the commissioner’s testimony that he lived in Hoffman’s neighborhood for over twenty years and had seen Hoffman and his neighbors interact with each other was a sufficient predicate to allow the commissioner to testify that Hoffman had a reputation for peacefulness in the community. Certainly, after the commissioner testified on direct examination regarding Hoffman’s reputation for peacefulness, the State would have had the opportunity to cross-examine the commissioner. At this point, the State could have elicited testimony from the commissioner indicating that he never had a discussion with his neighbors about Hoffman’s reputation for peacefulness.

Consequently, the trial court’s ruling excluding the réputation evidence was error, and it cannot be deemed harmless. Hoffman and Carménate gave completely different versions of the events that led to the stabbing. The trial court’s erroneous exclusion of this reputation evidence was prejudicial because evidence of Hoffman’s peacefulness would have corroborated his version of the events. If the jury had been allowed to hear Commissioner Rega-lado testify that Hoffman had a reputation for peacefulness, this evidence might have created a reasonable doubt as to Hoffman’s guilt.

Accordingly, the trial judge erred when she prohibited the commissioner from testifying about Hoffman’s reputation for peacefulness in the community. Because the State cannot establish beyond a reasonable doubt that the jury’s verdict would not have been different had the jury been allowed to hear about Hoffman’s reputation for peacefulness in the community, we reverse and remand for a new trial.

Reversed and remanded.


text:
    Chi L. LINVILLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2243.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Rehearing Denied May 7, 2007.

      Charles W. Musgrove, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Tremain v. State, 336 So.2d 705 (Fla. 4th DCA 1976).

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    Lawrence C. PERMENTER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-4031.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The petitioner, Lawrence C. Permenter, claims ineffective assistance of appellate counsel for failing to raise, as fundamental error, an issue concerning the so-called “forcible felony exception,” which negated his claim of self-defense. See Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002); Zinnerman v. State, 942 So.2d 932, 933 (Fla. 5th DCA 2006). We have previously held that such an instruction could be considered fundamental error and, thus, raised on direct appeal without a contemporaneous objection. Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003).

The limited record before this court shows Permenter was charged with a single count of second-degree murder. Per-menter claimed he acted in self-defense after the victim threatened him by showing a firearm in the victim’s waistband. The judge instructed the jury on self-defense and used the forcible felony instruction that prevented the jury from finding the killing justified if Permenter “was attempting to commit, committing, or escaping after the commission of aggravated assault.” This instruction, on its face, may be exactly what Giles prohibits and, thus, Permenter’s appellate attorney had reason to raise this issue on appeal, even without a contemporaneous objection.

In accordance with Fair v. Crosby, 858 So.2d 1103 (Fla. 4th DCA 2003), we grant the petition and grant Permenter a new appeal concerning this issue alone. Id. at 1105 (“The fundamental nature of the error can be gleaned only from a review of the full record on appeal.”). Accordingly, this opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence entered in L.T. case number 01-14126CF10A. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedure shall run from the date of this opinion. If Permenter qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

STONE, SHAHOOD and TAYLOR, JJ., concur.


text:
    Shirley GOLDEN, Appellant, v. Robert GOLDEN, Appellee.
    No. 4D06-4910.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Rehearing Denied May 9, 2007.
    Shirley Golden, Syosset, New York, for appellant.
    Paul R. Berg of Voeelle & Berg, LLP., Vero Beach, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

WARNER, FARMER and KLEIN, JJ., concur.


text:
    Eli M. CHIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6550.
    District Court of Appeal of Florida, First District.
    March 29, 2007.

      Eh M. Chin, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. RApp. P. 9.141(c)(4)(A).

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


text:
    Phillip COOK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0090.
    District Court of Appeal of Florida, First District.
    March 29, 2007.
    Phillip Cook, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1286 (Fla.2004).

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