text:
    Theodore A. AVELLONE, Appellant, v. Susan E. AVELLONE n/k/a Susan E. Rice, Appellee.
    No. 1D06-5219.
    District Court of Appeal of Florida, First District.
    March 13, 2007.

      Theodore A. Avellone, pro se, Appellant.
    Joshua,D. Zelman and Patricia M. Durst of Durst, Harnden & Zelman, PL, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Theodore A. Avellone, appeals a non-final order denying his motion for contempt and to enforce the parties’ Marital Settlement Agreement (“MSA”). Appellant raises five issues on appeal, only one of which merits discussion. According to Appellant, the trial court failed to give operative effect to certain provisions contained in the MSA. Finding no merit in this argument, we affirm.

Prior to the parties’ execution of the MSA, Appellee’s counsel wrote a letter to Appellant’s counsel on April 8, 2004, informing her that Appellee, Susan E. Avel-lone n/k/a Susan E. Rice, discovered through a response to a request for production that Appellant distributed to himself $17,140.03 as a cash distribution from a retirement account in 2002 and had the money sent directly to him at work. Ap-pellee had no knowledge of the distribution when she prepared the couple’s 2002 tax return. Appellee’s counsel demanded that Appellant see Marcia Petford, a CPA, to file an amended 2002 tax return and that he take responsibility for any costs and penalties that might arise.

In an April 15, 2004, letter addressed to Ms. Petford, Appellant explained his belief that taxes had already been withheld when he received his retirement distribution. Appellant set forth, “I obviously want you to prepare [an amended tax return], and if additional taxes are owed, to please let me know what that amount is.” Appellant further set forth:

Also, even though I think that the 2002 return was jointly filed by my wife ... this retirement fund distribution and any associated tax forms were unknown to my wife and therefore any additional payments that may be due as a result, as well as any fees you may charge for any work done as a result of this, are to be my responsibility. To the extent that there may be any additional taxes, interest, or “penalties” due based on your analysis, I would like to ensure that my wife does not experience any such negative repercussions, as she was unaware of the distribution or any tax forms associated with this. Again, I had no idea that it was possible that an insufficient amount of taxes had been taken out already.

The parties executed the MSA on April 30, 2004. The MSA provides in pertinent part:

5. MARITAL DEBTS: Each party shall be responsible for the debts in his or her own name, which they incurred after December 1, 2003, and will not look to the other party for payment. Each party shall be responsible for his or her own student loans. This Wife shall be responsible for the student loans held by Sallie Mae and KHESLC. The Husband shall be responsible for the student loan held by Nelnet. The Wife shall be responsible for the car loan held by Southeast Toyota Finance. The Wife will be responsible for the mortgages on the former marital home, the Hill Gail Property, held by Washington Mutual and Wachovia Bank. Except as provided above, no other marital obligations of the parties are known to exist. If such an obligation is discovered, the party who incurred it shall be responsible for its payment and hold the other harmless from any liability on it.
10. ENTIRE AGREEMENT: This agreement constitutes the entire agreement between the parties and supercedes any prior understandings or agreements (including the Separation Agreement executed by the parties on December 12, 2003) whether written or oral, made by them on the subjects covered in this agreement.
11. MUTUAL RELEASE: Each party does hereby further waive and release his or her rights in and to the other’s real, personal, and mixed property owned now or acquired in the future, including dower, homestead, and all other statutory rights which may now be enforced or which may be enforced in the future, and all other interest, rights, property claims, demands, and claims at law or in equity which either party does or may have in the other’s property. Without limiting the generality of the foregoing, the parties hereto do further relinquish any and all right that they now have or may hereafter acquire as the other party’s spouse under the present or future laws of any jurisdiction, including but not limited to the right:
A. To elect to take against any Will or Codicil of the party now or hereafter in force;
B. To share in the other party’s estate; and
C. To act as personal representative in the other party’s estate.

The trial court ratified the MSA, incorporated it into the Final Judgment of Dissolution of Marriage, and reserved jurisdiction to enforce or modify the judgment.

In August 2006, Appellant filed a motion for contempt and to enforce the MSA wherein he explained that the Internal Revenue Service (“IRS”) advised him in March 2006 that Appellee had filed a claim requesting relief from a 2002 tax liability under the IRS’s Innocent Spouse Provision. Appellant argued that Appellee’s claim violated the plain terms of the MSA because the parties waived the right to bring any claims against each other. Appellant attached Appellee’s April 8, 2004, letter to his motion. During the hearing, the trial court denied the motion. This appeal followed.

A marital settlement agreement is a contract subject to interpretation like any other contract. Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002). The standard of review is de novo. Id. Where an agreement’s terms are unambiguous, a court must treat the written instrument as evidence of the agreement’s meaning and the parties’ intention. Id. A court must not isolate a single term or group of words and read that part in isolation. Id. Rather, the goal is to arrive at a reasonable interpretation of the text of the entire agreement in order to accomplish the agreement’s stated meaning and purpose. Id.

According to Appellant, the trial court failed to give operative effect to the MSA’s Entire Agreement provision. Importantly, on appeal, Appellant characterizes his April 15, 2004, letter as a prior understanding or agreement. He contends, however, that the MSA superceded this prior understanding. We disagree. Pursuant to the Entire Agreement provision, a prior understanding or agreement is superceded by the MSA only if it concerns a subject “covered” in the MSA. The only debts expressly addressed in paragraph five of the MSA were the parties’ student loans, a car loan, and home mortgages. The MSA makes no mention of taxes or tax liability. Appellant concedes on appeal that any 2002 tax liability was not “referenced” in the MSA. As such, pursuant to the Entire Agreement provision, the MSA did not supercede the parties’ prior tax understanding.

Appellant also relies upon the Mutual Release provision in support of his argument that the trial court erred in denying his motion. “ ‘The construction and effect to be accorded a release depends on its purpose, the terms in which it is stated, and the subject matter to which it applies.’ ” Cerniglia v. Cerniglia, 679 So.2d 1160, 1164 (Fla.1996) (citation omitted). In interpreting a release and determining the parties’ intent, the entire agreement must be examined rather than detached portions of it. Id.

According to Appellant, Appellee waived her right to file the tax relief claim. Again, we disagree. Appellant’s interpretation of the Mutual Release provision cannot be reconciled with our interpretation of the Entire Agreement provision. If we were to accept Appellant’s interpretation, Appellee would have no recourse to seek compliance with the prior understanding. In such a situation, the MSA would essentially supercede the prior understanding notwithstanding the fact that it involves a subject not covered in the MSA, and that portion of the Entire Agreement provision would be rendered meaningless.

Upon our review of the entire MSA, including those provisions relied upon by Appellant, we hold that the trial court did not err in denying Appellant’s motion. Accordingly, we AFFIRM.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Henry L. MARTIN, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D06-1935.
    District Court of Appeal of Florida, First District.
    March 13, 2007.

      Henry L. Martin, pro se, Appellant.
    Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

Henry L. Martin appeals an order treating his petition for writ of habeas corpus as seeking non-habeas relief and denying that petition as untimely pursuant to Florida Rule of Appellate Procedure 9.100(c)(2). We reverse.

Martin was released to conditional release supervision in August 2003, but by order of December 15, 2004, the Florida Parole Commission revoked his supervision and he was returned to the custody of the Department of Corrections. By petition for writ of habeas corpus placed in the hands of prison officials for mailing on December 21, 2005, Martin challenged the revocation of his conditional release supervision and his continued incarceration pursuant thereto. Without issuing an order to show cause, the circuit court denied relief, finding that Martin’s claim was more properly viewed as seeking certiorari review of the parole commission’s revocation order, but was time-barred pursuant to the 30-day limitation established by rule 9.100(c)(2).

Rule 9.100(c)(2), upon which the circuit court relied, provides that “a petition to review quasi-judicial action of agencies, boards, and commissions of local government, which action is not directly appealable under any other provision of general law but may be subject to review by certiorari,” shall be filed within 30 days of rendition of the order to be reviewed. By its plain terms, the rule relates to the review of actions “of agencies, boards, and commissions of local government,” and it is thus inapplicable to a claim challenging an action of the state agency. Moreover, Martin’s challenge to the revocation of his conditional release supervision and his consequent incarceration was properly presented by petition for writ of habeas corpus, and the trial court further erred in converting the petition to one seeking non-habeas relief. See Knowles v. Fla. Parole Comm’n, 846 So.2d 1246 (Fla. 1st DCA 2003); Heard v. Fla. Parole Comm’n, 811 So.2d 808 (Fla. 1st DCA 2002).

The parole commission suggests that the trial court nonetheless reached the correct result in light of section 95.11(5)(f), Florida Statutes (2006), which provides that a petition for extraordinary writ other than one challenging a criminal conviction, filed on or on behalf of a prisoner, must be brought within one year. Thus, the commission contends that regardless of whether appellant’s petition was properly filed as a habeas corpus action or a certiorari action, it was time-barred and the circuit court properly denied relief on procedural grounds. See Cooper v. Fla. Parole Comm’n, 924 So.2d 966 (Fla. 4th DCA 2006), review pending, No. SC06-1236 (Fla. June 21, 2006).

We find this reasoning to be flawed for two reasons. First, the legitimacy of applying section 95.11(5)(f) in this situation is questionable in light of Allen v. Butterworth, 756 So.2d 52 (Fla.2000), in which the court held that the legislature was without authority to establish deadlines for asserting claims traditionally remediable through habeas corpus. More to the point, the fundamental characteristic of a habeas claim is an assertion of continued unlawful detention, and the “purpose of a habeas corpus proceeding is to inquire into the legality of the petitioner’s present detention.” See Sneed v. Mayo, 69 So.2d 653 (Fla.1954). Inasmuch as Martin alleged that he continued to be unlawfully detained, his claim was necessarily filed within the one-year time limitation established by the statute.

Accordingly, the order treating Martin’s petition for writ of habeas corpus as seeking non-habeas relief and denying that petition as untimely is REVERSED, and the matter is REMANDED for further proceedings. To the extent Cooper holds that rule 9.100(2)(e) and section 95.11(5)(f) may operate to bar a habeas corpus proceeding challenging a prisoner’s continued confinement pursuant to the revocation of post-release supervision by the parole commission, we certify conflict with that decision.

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

      . Although it did not directly address section 95.11(5)(f), this court noted in Johnson v. Fla.

        Parole Comm’n, 841 So.2d 615 (Fla. 1st DCA 2003), that unlike challenges to the outcome of an inmate disciplinary proceeding, the Florida Supreme Court has not by rule adopted a similar time limit to challenge orders of the parole commission in revocation or PPRD proceedings, and that the question of timeliness must therefore be raised, if at all, by the affirmative defense of laches.


text:
    David HARDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3585.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order revoking appellant David Harder’s probationary-term, and the sentence thereafter imposed. We affirm the order of revocation as an appropriate exercise of the trial court’s discretionary authority, but reverse the sentence and remand for resentencing.

After receiving appellant’s negotiated plea to the offense of sexual battery of a person between 12 and 18 years of age, while he was in a position of familial or custodial authority, the lower court sentenced him to 15 years’ imprisonment, followed by a five-year term of probation, subject to the special condition that appellant enroll in and successfully complete psychological counseling. Appellant’s later release on probation was subsequently revoked due to his failure to comply with the special condition, and he was resentenced to a term of 17 years with credit for time previously served. This sentence was challenged by appellant’s motions to correct, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), asserting that the sentencing scoresheet relied on by the court erroneously assessed 40 points for sexual penetration that was not supported by the record, and that the court lacked the authority to impose a departure sentence in the absence of appellant’s assent to such facts. The court denied the motions, apparently agreeing with the state’s argument that it was empowered to impose a departure sentence upon revocation for any reason that could support a prior aggravating circumstance or departure at the time of the initial sentence. In so deciding, the court cited the victim’s age, six years, which made her especially vulnerable to the offense committed.

On appeal, the state agrees that the record does not support the trial court’s finding that the victim was six years of age at the time of the commission of the offense, nor does it contest that points were improperly scored for penetration. See Brown v. State, 763 So.2d 1190 (Fla. 4th DCA 2000) (a departure sentence may not be imposed nor may a sentence be aggravated based on elements of offenses that were dismissed).

The revocation of probation is AFFIRMED; the sentence imposed following revocation is REVERSED, and the case is REMANDED for further consistent proceedings at which appellant’s presence shall be assured.

DAVIS and BENTON, JJ., and ERVIN, III, RICHARD W., Senior Judge, concur.

      . The sexual battery count to which appellant pled alleged the battery was accomplished by oral vaginal contact.

      . In making such finding, the court relied upon facts recited in the first three counts of the information that were nolle prossed, alleging appellant's sexual battery of a person less than 12 years, rather than the allegation made in the fourth count, to which appellant entered his negotiated plea, stating the victim’s age to be no less than 12.

      .Such circumstance authorizes an aggravation. See § 921.0016(3)0, Fla. Stat.


text:
    Danny F. CALIDONIO, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4139.
    District Court of Appeal of Florida, First District.
    March 13, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, counsel argues that a sentencing error must be corrected. On August 4, 2005, following a hearing, the trial court revoked the appellant’s probation and sentenced him to 60 months’ imprisonment, to be followed by 9 years of sexual offender probation, for the underlying crime of lewd or lascivious battery.

While this appeal was pending and before the initial brief was filed, the appellant filed a motion to correct sentencing error pursuant to rule 3.800(b)(2), asserting that the condition of probation that he have “no contact with any child under the age of 18,” was an illegal condition of probation. On February 23, 2006, the trial court granted the order and modified the condition of probation to read “no contact with children under the age of 18 years without the presence of an adult.” The appellant is entitled to the relief he sought in his 3.800(b) motion, as a condition of probation which prohibits any contact with a child under 18 years of age is impermissibly broad. See Graham v. State, 658 So.2d 642 (Fla. 5th DCA 1995); Schultz v. State, 793 So.2d 986 (Fla. 2d DCA 2001); Lambert v. State, 635 So.2d 1056 (Fla. 4th DCA 1994). However, it is well settled that a trial court has no jurisdiction to rule on a rule 3.800(b) motion after 60 days and an order filed more than 60 days after the motion was filed is a nullity. Sessions v. State, 907 So.2d 572, 573 (Fla. 1st DCA 2005). In the instant case, the trial court failed to rule on the appellant’s motion within 60 days.

Therefore, the order placing the appellant on sexual offender probation is REVERSED, and the February 23, 2006, order of modification of probation is QUASHED. The appellant’s judgment and sentence is otherwise AFFIRMED. The case is REMANDED for the trial court to impose sex offender probation with a condition that appellant not have any unsupervised contact with a person under 18 years of age. The appellant need not be present when the trial court corrects the sentencing error. See id.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Richard H. GIBSON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4626.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Richard H. Gibson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This Petition for Writ of Certiorari challenges the circuit court’s denial of petitioner’s mandamus petition below. We grant petitioner review only as to his claim that the circuit court improperly imposed a lien on his prison inmate trust account, pursuant to section 57.085, Florida Statutes. We deny, without discussion, review on all of petitioner’s other claims for relief.

Section 57.085 enables the trial court to place a lien on an inmate’s trust account for civil filing fees. However, the statute does not apply to “collateral criminal proceedings.” See § 57.085(10), Fla. Stat. In Schmidt v. Crusoe, 878 So.2d 361, 366 (Fla.2003), the Florida Supreme Court defined a “collateral criminal proceeding” as including any action that results in an inmate’s prison time being “directly affected.”

Despite the overwhelming lack of merit to Petitioner’s argument in his mandamus petition, if he had been successful in challenging the Department of Correction’s decision to adjudicate him guilty of a disciplinary infraction, he would have been eligible to receive incentive gain-time for the month that the infraction took place. As stipulated to by respondent, an inmate is not eligible to receive incentive gain-time for a month where he is found guilty of an infraction. See Rule 33-601.101(6)(a), Fla. Admin. Code. “Since it was technically possible that his sentence could have been shortened and thus ‘directly affected,’ we are compelled to conclude Petitioner’s mandamus petition was a ‘collateral criminal proceeding’ pursuant to Schmidt.” Yasir v. McDonough, 31 Fla. L. Weekly D1459, — So.2d —, 2006 WL 1419271 (Fla. 1st DCA May 25, 2006) (citing Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d —, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006)).

Accordingly, we DENY Petitioner’s petition for a writ of certiorari in part (without discussion), GRANT it in part, QUASH the order imposing a lien on Petitioner’s inmate trust account, and order that all funds collected from the trust account be refunded. Because of what we perceive to be the logical implications of Schmidt as illustrated by cases such as this, we certify the following question to the Florida Supreme Court, as we did in Cox and Yasir, which we believe to be of great public importance:

DOES THE HOLDING IN SCHMIDT V. CRUSOE, 878 So.2d 361 (Fla.2003), EXTEND TO ALL ACTIONS, REGARDLESS OF THEIR NATURE, IN WHICH, IF SUCCESSFUL, THE COMPLAINING PARTY’S CLAIM WOULD DIRECTLY AFFECT HIS OR HER TIME IN PRISON, SO TO PRECLUDE IMPOSITION OF A LIEN ON THE INMATE’S TRUST ACCOUNT TO RECOVER APPLICABLE FILING FEES?

DAVIS, PADOVANO, and HAWKES, JJ., concur.

      . In the proceeding below, petitioner filed a petition entitled “Petition for Writ of Certiora-ri,” but the circuit court correctly treated the petition as a Petition for Writ of Mandamus, pursuant to Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997).


text:
    Miriam OLIPHANT, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 1D06-6073.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Mark Herron and E. Gary Early of Messer, Caparello & Self, P.A., Tallahassee, for Appellant.

      Bill McCollum, Attorney General, Edward A. Tellechea, Senior Assistant Attorney General, and Claudel Pressa, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

DISMISSED as moot.

ALLEN, PADOVANO, and LEWIS, JJ., concur.


author: STRINGER, Judge.

text:
    Erik Forrest HALL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D01-3082.
    District Court of Appeal of Florida, Second District.
    March 14, 2007.

      Joseph Beeler and H. Eugene Lindsey of Ferrell Schultz Carter & Fertel, P.A., Miami, for Appellant/Cross-Appellee.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock and C. Suzanne Bechard, Assistant Attorneys General, Tampa, for Appellee/Cross-Appellant.
   STRINGER, Judge.

Erik Forrest Hall seeks review of his judgment and sentence for manslaughter, and the State has cross-appealed a ruling on a question of law. This case is another tragic instance of manslaughter by single punch to the head. Because the evidence supports the jury’s verdict, we affirm Hall’s conviction and sentence. Our affir-mance renders the State’s cross-appeal moot.

The parties dispute many of the facts regarding the events of the evening of December 27, 1999. The undisputed facts show that Hall and his family were vacationing in Fort Myers Beach from Michigan. The victim, Christopher Pobanz, was vacationing there with some friends from Illinois. Hall was thirty years old at the time; Pobanz was twenty-four. Both men had large builds: Hall stood approximately six feet six inches tall and weighed about 280 pounds, and Pobanz stood approximately six feet four inches tall and weighed about 200 pounds. Both men had been drinking.

Just prior to the encounter, Hall was standing on the deck of the Beached Whale, a restaurant in Fort Myers Beach. Pobanz and two of his friends were walking across the street when Pobanz threw a large rock toward the deck of the Beached Whale. The rock struck an innocent bystander in the back, causing her to fall to the ground. Hall did not witness the incident, but saw the bystander on the floor of the deck. The bystander, who did not know Hall personally, told Hall that someone had thrown a rock at her. Hall asked three men who were approaching the Beached Whale if they threw the rock, and the men pointed across the street to identify Pobanz as the perpetrator. Hall, who did not know Pobanz, yelled at Pobanz and his friends to stop. Pobanz and his friends turned and ran. Hall gave chase with his brother-in-law, another largely built man, close behind.

Hall caught up with Pobanz in the parking lot of a nearby beachfront resort, the Lani Kai. At this point, the facts become disputed. A sheriffs deputy testified that, while he was on foot patrol, he saw Hall and his brother-in-law running down the street toward the Lani Kai parking lot. He heard people at the Beached Whale yelling that there was going to be a fight. The deputy ran after the two men, shouting “Police. Stop running. I’ll handle this.” The deputy was about fifteen to twenty feet behind Hall. When he rounded a corner to turn into the Lani Kai parking lot, the deputy saw Pobanz talking with the security guard of the Lani Kai. Hall, his brother-in-law, and some other people were “milling about.” Pobanz was facing the security guard and gesturing in the other direction with his palm open. Hall “reared up” and struck Pobanz in the head. When he saw Hall “rearing up,” the deputy said, “Stop. Police.” Pobanz did not appear to see the blow coming.

The security guard of the Lani Kai testified that he intercepted Hall and his brother-in-law as they entered the Lani Kai parking lot. The men told the security guard that they were chasing someone who had thrown an object at someone else. According to the security guard, one or both of the men said they were going to “kill” the person who had thrown the rock. The security guard testified that he told Hall and his brother-in-law that he would call the sheriffs department to handle the matter. Pobanz then approached the security guard, and the security guard asked Pobanz if he was staying at the Lani Kai. As Pobanz gestured to a nearby hotel in response, Hall struck Pobanz with a single blow to the head. The security guard testified that Pobanz did not see the blow coming because he was looking in the opposite direction when it landed.

Hall and his brother-in-law denied speaking with the security guard. Hall said that a man tried to grab his arm as he ran onto the Lani Kai property, but he kept running. Neither man said that he was aware of the sheriffs deputy until after the blow was thrown. Hall testified that he told the deputy, “I wish I would have seen you and let you handle it.” Both Hall and his brother-in-law testified that, as Hall approached, Pobanz raised his hands to strike Hall.

It is undisputed that Hall punched Po-banz one time in the jaw area and Pobanz dropped to the ground unconscious. Not one word had been exchanged between the two men. Realizing the gravity of the situation, Hall immediately backed off. Hall told officers at the scene that he regretted punching Pobanz and said he hoped Pobanz would be okay.

Unfortunately, the single punch had caused Pobanz’s head to hyperextend or flex, severing a vertebral artery and causing a fatal brain hemorrhage. This is a very unusual occurrence that resulted more from the placement of the blow than the amount of force used. Even though an ambulance arrived quickly to render aid, Pobanz never regained consciousness. He was placed on life support upon his arrival at the hospital in the early morning hours of December 28 and pronounced dead the next day.

The State charged Hall with manslaughter by act, procurement, or culpable negligence. The jury was charged on both manslaughter by act and manslaughter by culpable negligence, and the jury found Hall guilty “as charged” on a general verdict form. The court sentenced Hall to 9.25 years’ incarceration, which was the lowest permissible prison sentence for the second-degree felony even though Hall had no prior record. The lowest permissible sentence was significantly increased due to the mandatory imposition of victim injury points on Hall’s Criminal Punishment Code scoresheet.

We find no merit in Hall’s arguments on appeal and affirm his conviction and sentence. We write only to clarify what we believe is the status of the law as it pertains to the applicability of the crime of manslaughter by act to intentional acts that result in unintentional deaths. To do so, we elect to discuss only the arguments Hall raised on appeal pertaining to his entitlement to a judgment of acquittal.

Hall’s first argument on appeal is that the trial court erred in denying his motion for judgment of acquittal because Hall’s actions constituted excusable homicide as a matter of law. This court will affirm the denial of a motion for judgment of acquittal if the verdict is supported by competent, substantial evidence. Fitzpatrick v. State, 900 So.2d 495, 507 (Fla. 2005). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. A trial court should not grant a judgment of acquittal “‘unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’ ” Id. (quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974)).

Section 782.03, Florida Statutes (1999), provides:

Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

Hall argues that he punched Pobanz “in the heat of passion” and “upon a sudden combat.” However, this argument has been rejected in analogous single-punch-to-the-head cases. See Acosta v. State, 884 So.2d 112 (Fla. 2d DCA), review denied, 891 So.2d 549 (Fla.2004); J.J.W. v. State, 892 So.2d 1189 (Fla. 5th DCA 2005); Weir v. State, 777 So.2d 1073 (Fla. 4th DCA 2001).

The facts of Acosta are closest to those here. In Acosta, the defendant was a high school student who killed the victim with a single blow to the head as the first punch in an after-school fight. 884 So.2d at 113. There had been tension between the two boys after the defendant made fun of the victim for doing something embarrassing at a party several weeks earlier. On the day of the fight, the defendant and the victim were in separate cars, each with a group of friends, leaving the school parking lot. There was a challenge to fight, and the two carloads of students met in a grocery store parking lot for the event.

At the parking lot, a fight broke out between a different set of people. While that fight was ongoing, the victim was yelling at yet another boy. At some point, the defendant threw a single punch to the victim’s face, and the victim crumpled to the ground. Id. The victim had been distracted at the moment and was not prepared to defend himself. Id. The defendant continued to hit the victim in the face while he was on the ground and eventually stopped the beating on his own. Id. at 113-14.

The medical examiner testified that the victim died from the single punch to his face. Id. at 114. A jury convicted the defendant of manslaughter by act or culpable negligence. On appeal, the defendant argued that the trial court erred in denying his motion for judgment of acquittal because the defendant’s actions constituted excusable homicide due to sudden combat. This court rejected this argument and affirmed the conviction. Id. at 115.

In doing so, this court reasoned that the defendant “started and finished the fight by forcefully hitting [the victim] in the face.” Id. The court explained that the jury could have concluded that the defendant hit the victim when the victim was “totally unprepared to defend himself.” Id.

As in Acosta, evidence that Hall started and finished the fight with a single punch when the victim was unprepared to defend himself was sufficient to support the jury’s verdict for manslaughter. The State presented evidence from which a jury could have rejected Hall’s theory that Pobanz initiated “sudden combat” with Hall by throwing a rock toward the deck of the Beached Whale. The evidence showed that the rock struck an innocent bystander who was not known to either man. There was no evidence that Pobanz aimed the rock at Hall or that Pobanz showed any aggression toward Hall whatsoever. Even if he had, there was evidence that Hall chased Pobanz down and dodged intervention attempts by both a deputy sheriff and a hotel security guard before inflicting the fatal blow while Pobanz was otherwise distracted.

Hall’s second argument on appeal is that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence of manslaughter by act or manslaughter by culpable negligence. Hall argues that the State did not prove manslaughter by act because there was no evidence he intended to kill the victim. Hall also argues that the State did not prove manslaughter by culpable negligence because Hall intended to punch the victim in the face. It should be noted that these arguments were not made to this court in Acosta.

Hall’s argument regarding the sufficiency of the evidence to support a conviction for manslaughter by act is dispositive of this issue. Hall argues that, in Taylor v. State, 444 So.2d 931, 933 (Fla.1983), the supreme court engrafted an intent-to-kill element onto the statutory definition of manslaughter by act. Hall argues that, under Taylor, a conviction for manslaughter by act cannot be sustained when the evidence does not support an intent to kill. We conclude that Hall’s reading of Taylor is incorrect.

In Taylor, the supreme court considered as a question of great public importance whether the crime of attempted manslaughter existed in Florida. 444 So.2d at 933. In addressing the issue, the court rejected the petitioner’s argument that, because manslaughter is necessarily an involuntary act, a person could not form an intent to commit that act to support an attempt conviction. The court relied on its previous decision in Williams v. State, 41 Fla. 295, 26 So. 184 (1899), in which it held that there existed a crime of assault with intent to commit manslaughter. The court noted that the holding in Williams was premised on the fact that manslaughter can include intentional killings. The Williams court concluded that there must be proof of an intent to kill to support a conviction for assault with intent to commit manslaughter. Taylor, 444 So.2d at 933. The court explained that “it must be found that the accused committed the assault with intent to take life, for although an unintentional or involuntary killing may in some cases be unlawful and a felony, no man can intentionally do an unintentional act; and without the intent the assault can not be punished under this statute.” Id.

The Taylor court concluded, “By the same reasoning, it is not a logical impossibility for the crime of attempted manslaughter to exist in situations where, if death had resulted, the defendant could have been found guilty of voluntary manslaughter.” Id. at 934. The court examined the facts in the case and determined that there was sufficient evidence to support a verdict of attempted manslaughter because there was sufficient proof that the defendant intended to kill the victim.

Contrary to Hall’s assertion, we do not read Taylor to hold that the crime of manslaughter by act is limited to intentional killings. Adding such an intent element to the crime of manslaughter by act would serve to elevate the crime above second-degree murder, which does not require a specific intent to cause death but only requires “a depraved mind.” See § 782.04(2), Fla. Stat. (1999); Fla. Std. Jury Instr. (Crim.) 7.4. In fact, such a requirement would make the crime of manslaughter by act virtually indistinguishable from first-degree premeditated murder, which requires only a conscious intent to kill. § 782.04(l)(a)(l); Fla. Std. Jury Instr. (Crim.) 7.2. Moreover, if the crime of manslaughter by act did not include intentional acts that result in unintentional deaths, then there would be no applicable offense for such crimes. Perhaps the State could charge such acts as aggravated battery, but that crime is intended to punish intentional acts that result in “great bodily harm, permanent disability, or permanent disfigurement”; it is not intended to punish intentional acts that result in death. See § 784.045(l)(a)(l), Fla. Stat. (1999).

As we read the court’s holding in Taylor, it was limited to determining that there was a crime of attempted manslaughter and determining the elements of that crime. The court’s holding that an intent to kill is an element of attempted manslaughter does not require a determination that an intent to kill is an element of manslaughter by act. An intent to kill is required to commit an attempted manslaughter because no person can attempt to cause an unintentional death. This logic does not apply to the offense of manslaughter by act. Of course, if our holding today is erroneous, this opinion will necessarily conflict with Taylor.

We are aware that our decisions in Looney v. State, 756 So.2d 239 (Fla. 2d DCA 2000), and Jefferies v. State, 849 So.2d 401 (Fla. 2d DCA 2003), contain some language interpreting Taylor that could be construed to support Hall’s argument. While those cases do not address the precise issue at hand, we recede from Looney and Jefferies to the extent that they are inconsistent with our opinion today. We are also aware that the standard jury instruction for manslaughter by act requires a finding that the defendant “intentionally caused the death of’ the victim. Fla. Std. Jury Instr. (Crim.) 7.7. We do not read this instruction to require an intent to kill, however. We read this instruction to require an intentional act that “caused the death of’ the victim.

In summary, we hold that a conviction for manslaughter by act does not require an intent to kill but only an intentional act that causes the death of the victim. We conclude that the evidence in this case supports a conviction for manslaughter by act. Because the jury was instructed on both manslaughter by act and manslaughter by culpable negligence and found Hall guilty on a general verdict form, his conviction will be sustained based on our finding that the evidence supports manslaughter by act. See Chamberlain v. State, 881 So.2d 1087, 1104 (Fla.2004). We decline to address Hall’s arguments regarding manslaughter by culpable negligence because they are rendered moot by the use of the general verdict form.

Affirmed.

FULMER, C.J., and ALTENBERND, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, DAVIS, SILBERMAN, KELLY, CANADY, VILLANTI, WALLACE, and LaROSE, JJ., Concur.


author: LaROSE, Judge.

text:
    STATE of Florida, v. Jerry JARAMILLO, Jr., and Maria Gisela Knudsen, Appellees.
    No. 2D06-3927.
    District Court of Appeal of Florida, Second District.
    March 14, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellant.
    Norman S. Cannella of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellees.
   LaROSE, Judge.

The State challenges the trial court’s order granting a motion to dismiss grand theft, forgery, and uttering a forged instrument charges filed against Jerry Jar-amillo, Jr., and Maria Gisela Knudsen. We have jurisdiction. See Fla. R.App. P. 9.140(c)(1)(A), (c)(3). We reverse.

The charges against Mr. Jaramillo and Ms. Knudsen stem from a Florida Department of Law Enforcement (FDLE) investigation conducted during the course of Mr. Jaramillo’s divorce. During a lawful search of a locked garbage dumpster rented by Mr. Jaramillo’s law firm, FDLE agents discovered a discarded health insurance application. The application bore the signatures of Mr. Jaramillo and Ms. Knudsen. Attached to the application was a copy of a marriage certificate reflecting that Mr. Jaramillo and Ms. Knudsen married in 2004. As a result, the health insurer provided coverage to Ms. Knudsen and her children under Mr. Jaramillo’s policy. Ultimately, the insurer paid over $8000 in claims made by Mr. Jaramillo, Ms. Knudsen, and her children.

At the time the application was filled out, Mr. Jaramillo was not married to Ms. Knudsen; he was not yet divorced from his then wife. The Hillsborough County Clerk of Court had no marriage license on file for Ms. Knudsen during the relevant period. Our record contains what the State contends to be a fabricated 2004 marriage certificate submitted with Mr. Jaramillo’s and Ms. Knudsen’s application. The 1997 marriage certificate issued to Mr. Jaramillo and his then wife is also in our record. The 1997 marriage certificate reflects a marriage date of March 8, 1997, a return date of March 14, 1997, an audit control number of 169793, and recording in book 540, page 195 of the public records. The apparently fabricated 2004 marriage certificate bears Ms. Knudsen’s name as bride, a marriage date of March 8, 2004, a return date of March 14, 2004, and the same audit control number and recording information as the 1997 marriage certificate.

Mr. Jaramillo and Ms. Knudsen moved to dismiss the charges under Florida Rule of Criminal Procedure 3.190(c)(4). They asserted that the State could not prove that they fabricated the marriage certificate, sent the application to the health insurer, knew the submitted documents were false, or submitted false claims to the insurer. The State did not file a traverse. Instead, it filed a demurrer under rule 3.190(d), contending that the evidence and inferences to be drawn supported a prima facie case sufficient to defeat the motion to dismiss. The trial court dismissed the charges, relying on cases addressing motions for judgment of acquittal where circumstantial evidence did not exclude a reasonable hypothesis of innocence.

We review the trial court’s dismissal order de novo. See State v. James, 928 So.2d 1269, 1270 (Fla. 2d DCA 2006); Bell v. State, 835 So.2d 392, 394 (Fla. 2d DCA 2003). By filing a demurrer, the State admitted the basic facts in the motion. See Fla. R.Crim. P. 3.190(d); James, 928 So.2d at 1270. But, despite such an admission, the trial court must still consider the facts alleged in the motion to determine whether the State has set forth a prima facie case. See James, 928 So.2d at 1271; State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999). To satisfy its burden, the State may rely on circumstantial evidence; all inferences to be drawn therefrom are resolved in the State’s favor. See State v. Kalogeropolous, 758 So.2d 110, 112 (Fla.2000).

A trial court cannot dismiss criminal charges simply because it concludes that the case will not survive a motion for judgment of acquittal at trial. Paleveda, 745 So.2d at 1027 (holding that knowledge in a possession case is question of fact; element of knowledge not proper consideration on motion to dismiss). Moreover, if the State bases its charges on circumstantial evidence, whether that evidence excludes all reasonable hypotheses of innocence may be decided only at trial, after the evidence has been presented. See State v. Burrell, 819 So.2d 181, 182 (Fla. 2d DCA 2002) (holding that second-degree grand theft charge and charge for possession of a vehicle with an altered or removed vehicle identification number improperly dismissed where State’s circumstantial evidence met minimal requirement of a prima facie case); State v. Ortiz, 766 So.2d 1137, 1142-43 (Fla. 3d DCA 2000) (stating that State’s admittedly circumstantial evidence of attempted sexual battery showed prima facie case sufficient to withstand motion to dismiss).

Applying these principles, we conclude that the motion to dismiss did not defeat the elements of the charges. Thus, the trial court erred in granting the motion. See James, 928 So.2d at 1271; Paleveda, 745 So.2d at 1027.

Reversed and remanded.

DAVIS and CANADY, JJ., Concur.

      . The information alleged grand theft with intent "either to permanently or temporarily deprive the [health insurer] of a right to the property or a benefit there from, or to appropriate the property to their own use or to the use of any person not entitled thereto.” See § 812.014(1), Fla. Stat. (2003). The forgery charge alleged the false making, altering, forging, or counterfeiting of "a public record to wit: a marriage certificate, with intent to injure or defraud_” See § 831.01, Fla. Stat. (2003). The uttering charge was based on uttering and publishing as true a "falsely made, altered, forged, or counterfeited public record, to wit: a marriage certificate, knowing this document to be falsely made, altered, forged, or counterfeited, with intent to injure or defraud....” See § 831.02, Fla. Stat. (2003).


author: HAWORTH, LEE E., Associate Judge.

text:
    Abdon RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1592.
    District Court of Appeal of Florida, Second District.
    March 14, 2007.
    G. Richard Strafer of G. Richard Strafer, P.A., Miami, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   HAWORTH, LEE E., Associate Judge.

Abdon Rivera’s conviction and sentence for battery on a law enforcement officer is affirmed without prejudice to his filing a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

CANADY and LaROSE, JJ., Concur.


text:
    Alexander SLATER a/k/a Michael Parker, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-475.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.
    Rehearing Denied April 5, 2007.

      Alexander Slater a/k/a Michael Parker, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Bureau Chief, Office of the Attorney General, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Baker v. State, 878 So.2d 1236 (Fla.2004); Robbins v. State, 915 So.2d 232 (Fla. 3d DCA 2005); Richardson v. State, 915 So.2d 999 (Fla. 5th DCA 2006); see also Slater v. State, 625 So.2d 1334 (Fla. 3d DCA 1993).


author: GROSS, J.

text:
    B.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-669.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.

      Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

B.J. appeals his adjudication of delinquency for loitering and prowling in violation of section 856.021, Florida Statutes (2005), on the grounds that the trial court erred in denying his motion for judgment of dismissal. We affirm, because the evidence was sufficient to support the conviction.

An adjudicatory hearing revealed that at about 1:30 a.m. on September 25, 2005, Officer Terry Wujcik of the Pembroke Pines Police Department responded to a burglary call at a business located in a predominantly commercial area. The business was closed, yet Officer Wujcik saw two vehicles in the parking lot, a Ford F-150 pick-up truck and a smaller four-door car. The doors to the car were ajar. Inside the car, the officer observed two females lying down trying to hide from him.

After Officer Wujcik removed the two females from the car, another officer, Javier Diaz, arrived at the scene. The two females told Officer Diaz that the other people with them “ran that way, went over the fence.” Officer Wujcik then went to investigate the warehouse that was the subject of the burglary call. Officer Wujcik noticed a hole five-feet high and three-feet wide in a fence surrounding the business. There had been no hole in the fence when the officer patrolled the area earlier in the evening. Officer Wujcik also saw that a padlock had been ripped off the steel doors at the main entrance to the warehouse. The padlock rested on the ground near the door. The doors had been pried open and metal stripping running down the center of the doors was partially ripped. Electric panels near the steel entry doors had been removed and tampered with. A used latex glove was on the ground near the doors. Based on these observations, the officers were concerned for the safety of people and property in the area.

A K-9 officer arrived on the scene with his dog, which began a “track or search” of the area looking for people. The dog alerted to the F-150. The K-9 officer noticed a person’s head in the truck bed, which led to the discovery of four individuals in the back of the truck, whom the officer ordered to get out. Appellant B.J. was one of these persons. The officer also found unused latex gloves in the truck.

Officer Wujcik gave the juveniles, including B.J., the opportunity to dispel his suspicions. B.J. said nothing. The other persons involved gave a variety of inconsistent and unconvincing stories.

While the officers continued to investigate, Isaac Chocron, the warehouse owner, arrived at the scene. Chocron observed that since he had closed and left the business, the structure had been damaged and several items stolen. The door was bent, the door’s lock was cut, the fence surrounding the business was cut open, the light above the main entry door was broken, the door to the electrical panel was open, and the electrical meter was missing. Chocron did not work with latex gloves and had not given anyone permission to enter the fenced-in area surrounding his store.

At the close of the evidence, B.J. moved for dismissal. The trial court denied the motion and ultimately adjudicated B.J. delinquent on the loitering and prowling charge.

The same standard of review applies to both a motion for judgment of dismissal in a juvenile case and a motion for judgment of acquittal in a criminal case. See G.G. v. State, 903 So.2d 1031, 1032-33 (Fla. 4th DCA 2005) (quoting A.P.R. v. State, 894 So.2d 282, 284 (Fla. 5th DCA 2005)). The standard is de novo because the motion tests the legal sufficiency of the state’s evidence. Id. at 1033. In A.A.R. v. State, 926 So.2d 463, 465 (Fla. 4th DCA 2006), this court recognized that:

[i]n moving for a judgment of dismissal, the movant “ ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.’ ” Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). “[A]ll reasonable inferences that may be drawn from such evidence must be viewed in a light most favorable to the state.” Espiet [v. State], 797 So.2d [598] at 601 [ (Fla. 5th DCA 2001) ] (citing Beasley; Hoffman v. State, 708 So.2d 962 (Fla. 5th DCA 1998)).

A.A.R., 926 So.2d at 465 (citing A.P.R., 894 So.2d at 285).

There are two elements to a loitering and prowling charge: (1) that the defendant loitered or prowled “in a place, at a time, or in a manner not usual for law-abiding individuals” and (2) such loitering took place under “circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021(1), Fla. Stat. (2005). “ ‘Proof of both elements is essential in order to establish a violation of the statute.’ State v. Ecker, 311 So.2d 104, 107 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975), and each element must be proved beyond a reasonable doubt.” Further, alarm is presumed under the statute if the defendant flees, conceals himself or any object, or refuses to identify himself when law enforcement appears. See C.H.S. v. State, 795 So.2d 1087, 1090 (Fla. 2d DCA 2001).

With regard to the first element, the state must prove that the defendant loitered and prowled, which means that he “engaged in incipient criminal behavior which law abiding people do not usually engage in” given “the time, place, or manner of the conduct involved.” E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999). The gist of the first element “is aberrant and suspicious criminal conduct which comes close to, but falls short of, actual commission or attempted commission of a substantive crime.” D.A. v. State, 471 So.2d 147, 151 (Fla. 3d DCA 1985). Here, this element was proven because appellant was hiding at 1:30 a.m. in the back of a pick-up truck near a closed business that was the subject of a burglary call. Compare G.G. v. State, 903 So.2d 1031, 1033 (Fla. 4th DCA 2005) (holding “loitering and prowling” element of statute was satisfied where “defendant was seen behind shops of a closed plaza at 3:45 in the morning”).

The second element of the crime of loitering and prowling “requires the arresting officer to articulate specific facts which, when ‘taken together with rational inferences from those facts, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened.’” G.G., 903 So.2d at 1031 (iquoting Von Goff v. State, 687 So.2d 926, 928) (quoting Ecker, 311 So.2d at 109). Here appellant was hiding under circumstances suggesting that the police interrupted a burglary in progress. The potential threat to public safety was appellant’s joining a crime in progress or participating in the aftermath by assisting the escape or disposing of property stolen in the burglary.

Affirmed.

WARNER and TAYLOR, JJ., concur.

      . For a sentence, J.D. was ordered to write an essay on “Goals in Life and How I Intend to Achieve Them” and "The Importance of Being Aware of Your Surroundings and Protecting Your Future.”


text:
    John JUDD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3914.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    John Judd, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

This is an appeal by John Judd from an order denying a motion filed under rule 3.850, Florida Rules of Criminal Procedure. We affirm in part, reverse in part, and remand.

Appellant filed a motion for post-conviction relief alleging a claim of newly discovered evidence and a multifaceted claim of ineffective assistance of counsel. At issue here is appellant’s claim alleging ineffective assistance of his trial counsel for failing to object to the presence of a sleeping juror.

This court has previously reversed the summary denial of rule 3.850 motions in which the defendant alleged his trial counsel was ineffective in failing to object to a sleeping juror. See, e.g., Erlsten v. State, 842 So.2d 967 (Fla. 4th DCA 2003); Simo v. State, 790 So.2d 1190 (Fla. 4th DCA 2001); McGraw v. State, 796 So.2d 1205 (Fla. 4th DCA 2001); Kesick v. State, 448 So.2d 644 (Fla. 4th DCA 1984). Other courts have done so as well. See, e.g., Wilson v. State, 828 So.2d 1086 (Fla. 1st DCA 2002); Kelley v. State, 805 So.2d 88 (Fla. 2d DCA 2002). In the instant appeal, appellant alleged that a specific juror was sleeping during his trial, that he informed his trial counsel of the sleeping juror, and that his counsel failed to bring this information to the attention of the court. These allegations, in accordance with the aforementioned cases, are sufficient for an evidentiary hearing.

Accordingly, we reverse the summary denial of this ground for either an eviden-tiary hearing or the attachment of portions of the record that conclusively refute this ground for relief. We affirm without discussion the summary denial as to the balance of the motion for post-conviction relief.

Affirmed in part, Reversed in part, and Remanded.

STEVENSON, C.J., GUNTHER and SHAHOOD, JJ., concur.


text:
    Macillon JOSEPH, as Personal Representative of the Estate of Marie Joseph, for the benefit of Macillon Joseph, surviving spouse, Linda Joseph, as surviving minor child, and the Estate of Marie Joseph, Appellants, v. TENET HEALTHSYSTEM NORTH SHORE, INC., a Florida corporation d/b/a North Shore Medical Center, as successor in interest to North Dade Medical Foundation, Inc. d/b/a North Shore Medical Center, a Florida corporation, Appellees.
    No. 3D05-2577.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.
    Stuart H. Share, Miami; Joel S. Perwin, for appellant.
    Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Norman M. Waas and Paul H. Field, Coral Gables, for appel-lee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   PER CURIAM.

Macillon Joseph, etc., appeals the trial court’s entry of an agreed summary final judgment in favor of appellee Tenet Healthsystem North Shore, Inc., etc., finding that the hospital is relieved of any financial responsibility for the first $250,000.00 of the judgment entered against its staff physician where the physician elected to opt out under section 458.320(5)(g), Florida Statutes (2005), and he later failed to satisfy the $250,000.00 entered against him. We affirm based upon the authority of North Miami Med. Ctr., Ltd. v. Miller, 896 So.2d 886, 890 (Fla. 3d DCA 2005), where this Court stated that section 458.320(5)(g), Florida Statutes, “necessarily relieve[s] hospitals of any liability if its physicians who, though initially agreeing to be personally liable, are ultimately unable to pay any subsequent judgments.”

Affirmed.


author: ROTHENBERG, Judge.

text:
    R.J. REYNOLDS TOBACCO COMPANY, a foreign corporation, and Publix Supermarkets, Inc., a Florida corporation, Appellants, v. Wanda A. CARTER, as Personal Representative of the Estate of Ronald D. Carter, Deceased, Appellee.
    No. 3D06-2030.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.

      Carlton Fields and Wendy F. Lumish and Alina Alonso, Miami, for appellants.
    Fitzgerald & Associates and J. Michael Fitzgerald, Charlottesville, Virginia, for appellee.
    Before GERSTEN, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendants, R.J. Reynolds Tobacco Company (“RJR”) and Publix Supermarkets, Inc. (“Publix”), appeal from an order denying their motion to dismiss based on forum non conveniens. We reverse.

The plaintiff, Wanda A. Carter, as Personal Representative of the Estate of Ronald D. Carter, Deceased, filed a products liability and wrongful death action against RJR and Publix, seeking damages for the death of Ronald D. Carter (“the decedent”). The complaint asserts that the decedent’s death was as a result of the decedent smoking cigarettes manufactured by RJR and sold by Publix.

The defendants filed a motion to dismiss based on forum non conveniens pursuant to Florida Rule of Civil Procedure 1.061(a). The motion asserts that the action can be litigated more fairly and conveniently in Tennessee as the decedent’s cause of action arose in Tennessee; he was living in Tennessee when he became ill and was diagnosed with lung cancer; he was treated in Tennessee; and his medical records are located in Tennessee. Moreover, the fact witnesses identified by the plaintiff do not reside in Florida, and in fact, one of the fact witnesses actually resides in Tennessee. In addition, the defendants argued that Tennessee is an adequate alternative forum to litigate the plaintiffs claim as RJR, a North Carolina corporation, and Publix, a Florida corporation, are registered to do business in Tennessee, and therefore, they are subject to service of process in Tennessee. Attached to the motion to dismiss are the plaintiffs responses to interrogatories and request for admissions. In addition to filing a motion to dismiss, the defendants filed a stipulation in support of their motion, which provides, “[i]f the Court dismisses this action based on forum non conveniens, [RJR] and Publix will treat the [plaintiffs] action in Tennessee as though it had been filed on the date it was filed in this court and with the service of process accepted as of that date.”

The undisputed facts demonstrate that the decedent, who attended grade school and high school in Tennessee, began smoking cigarettes when he was a teenager. Thereafter, from the 1950’s to 1969, he continued smoking while living in various states, including Delaware, Virginia, West Virginia, and Wyoming. He then moved to Florida in 1969, and continued to live in this state until 1997. While living in Florida, he purchased cigarettes manufactured by RJR and sold by Publix. In 1997, the decedent and his wife, Wanda A. Carter, moved back to Tennessee. In 2004, while still residing in Tennessee, the decedent was diagnosed with lung cancer and was treated by doctors at facilities located in Tennessee. He ultimately passed away in Tennessee.

At the hearing on the motion to dismiss, the defendants argued that based upon the undisputed facts and the factors set forth in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), the trial court should decline to exercise jurisdiction and dismiss the action based on forum non conveniens. Without addressing the Kinney factors, the trial court denied the motion, stating that “it’s going to be inconvenient no matter where this case is tried.” The defendants, therefore, contend that the trial court erred by failing to address the Kinney factors and denying their motion to dismiss based on forum non conveniens. We agree.

The failure of the trial court to address the Kinney factors would generally result in a reversal and remand to allow the trial court to perform an analysis pursuant to Kinney. See Charles v. McMahon, 916 So.2d 1013, 1014 (Fla. 4th DCA 2006) (reversing trial court’s denial of motion to dismiss based on forum non conveniens “because the trial court did not engage in [Kinney] analysis, either at the hearing or in its written order of dismissal,” and remanding to the trial court for application of Kinney analysis). However, as the record before this court is developed and the facts pertaining to the issue of forum non conveniens are basically undisputed, remand is unnecessary. See Sun & Sea Estates, Ltd., Inc. v. Kelly, 707 So.2d 863, 865 (Fla. 3d DCA 1998) (although the trial court did not consider Kinney factors in denying plaintiffs’ motion to dismiss based on forum non conveniens, based on the record before the district court, it reviewed the trial court’s order and concluded “that this case should and must be dismissed for forum non conveniens”); see also Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 410 (Fla. 3d DCA 2005) (stating that review of the lower court’s forum non conveniens decisions “has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judge’s analysis and whether the appellate record is sufficient to allow the reviewing court to reach its own conclusions”) (citing Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111, 115 (Fla. 3d DCA 2002) (Sorondo, J., specially concurring)).

In Kinney, the Florida Supreme Court set forth the following four-step analysis to employ when determining whether an action should be dismissed based on forum non conveniens:

As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interests, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of pub-lie interests tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

Kinney, 674 So.2d at 91 (quoting Pain v. United Techs. Corp., 637 F.2d 775, 784-85 (D.C.Cir.1980)). After subjecting the undisputed facts to the analysis enunciated in Kinney, we conclude that the trial court erred in denying the defendants’ motion to dismiss based on forum non conveniens.

The first factor enunciated in Kinney, the availability of an adequate alternative forum, is normally satisfied if all of the parties are “ ‘amenable to process’ in the other jurisdiction. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied.” Kinney, 674 So.2d at 90 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (citation omitted)).

In the instant case, the parties agree that both defendants are “amenable to process” in Tennessee. The plaintiff, however, argues that Tennessee is not an adequate alternative forum because her remedy as to Publix is unsatisfactory. Specifically, the plaintiff argues that she has sued Publix for negligence and strict liability, and under section 29-28-106 of the Tennessee Code (2006), Publix, as the seller of the cigarettes, is immune from liability under the plaintiffs negligence theory. Contrary to the plaintiffs assertion, an alternative forum is not inadequate because legal theories or damages in the chosen forum are unavailable in the proposed alternative forum. As explained in Kinney, an alternative forum is not unsatisfactory “merely because the available legal theories or potential recovery there are less generous than those available where suit was brought. Rather, the alternative [forum is] inadequate under the doctrine only if the remedy available there clearly amounts to no remedy at all.” Kinney, 674 So.2d at 90; see Value Rent-A-Car, Inc. v. Harbert, 720 So.2d 552 (Fla. 4th DCA 1998) (holding that Georgia is adequate forum even though dangerous instrumentality doctrine was unavailable). Because the plaintiff may sue Publix in Tennessee for breach of express or implied warranties, we conclude that Tennessee is an adequate, alternative forum.

Next, under Kinney, the relevant factors of private interest, which has been “termed the ‘balance of private conveniences,’ ” must be considered. Kinney, 674 So.2d at 91. In evaluating the private interest factors, there is a strong presumption against disturbing the plaintiffs choice of forum. Kinney, 674 So.2d at 90. However, that presumption is given less deference when the plaintiff chooses to litigate in a foreign forum. See Piper Aircraft, 454 U.S. at 255-56, 102 S.Ct. 252 (holding that “[w]hen [a plaintiffs] home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assump-. tion is much less reasonable. Because the central purpose of any forum non conve-niens inquiry is to ensure that the trial is convenient, a foreign plaintiffs choice deserves less deference”).

In the instant case, the plaintiff, who resides in Tennessee, chose to file her lawsuit in Florida, a foreign forum. Although there is a strong presumption against disturbing the plaintiffs choice of forum, as the plaintiff does not reside in Florida, her choice of Florida as the desired forum in which to litigate her claims deserves less deference. Moreover, the private interest factors clearly favor Tennessee over Florida as the majority of the witnesses and evidence are located in Tennessee. The decedent was diagnosed and treated in Tennessee, and thus, any medical evidence relating to his lung cancer diagnosis and treatment are located in Tennessee. Additionally, although Publix is a Florida corporation, its liability in this action is highly questionable and solely derivative. Witnesses and evidence relevant to this claim will be minimal when compared to the witnesses and evidence located outside of Florida. Further, any judgment obtained in Tennessee is enforceable against the defendants. Therefore, Tennessee is clearly a more convenient forum in which to litigate this case.

As to the third factor, Kinney states that “[i]f the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interests tip the balance in favor of a trial in [another] forum.” Kinney, 674 So.2d at 91 (quoting Pain, 637 F.2d at 784-85). While our conclusion that the factors of private interest are not in equipoise or near equipoise eliminates the need to address the public interests factor, we will briefly do so. This “inquiry focuses on ‘whether the case has a general nexus with the forum sufficient to justify the forum’s commitment of judicial time and resources to it.’ ” Kinney, 674 So.2d at 92 (quoting Pain, 637 F.2d at 791).

[There are] three principles to be considered in evaluating public interest factors. First, courts can protect their dockets from cases over which they may be able to assert jurisdiction but which lack significant connection to the forum. Second, courts can legitimately encourage the litigation of controversies in the localities in which they arose. And third, a court may validly consider its familiarity with the law which will have to be applied in considering whether to retain jurisdiction over a case.

Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1124 (Fla. 4th DCA 1997) (citing Kinney, 674 So.2d at 92).

In applying these principles, there is no doubt that the plaintiffs litigation has a connection to Florida as the decedent purchased and smoked cigarettes in Florida for approximately thirty years, and the plaintiff has filed suit against a Florida corporation. However, the decedent in this case smoked cigarettes for over fifty years, and therefore, purchased and smoked cigarettes in numerous states, including Tennessee. More importantly, when the decedent was diagnosed with lung cancer, he was no longer living in Florida and had been residing in Tennessee for approximately seven years. The decedent was treated in Tennessee and eventually died in Tennessee. Based on these facts, we conclude that the plaintiffs action lacks a significant connection to Florida.

Lastly, the fourth Kinney factor has been satisfied as the defendants filed a stipulation in support of their motion to dismiss, which provides, “[i]f the Court dismisses this action based on forum non conveniens, [RJR] and Publix will three the [plaintiffs] action in Tennessee as though it had been filed on the date it was filed in this court and with the service of process accepted as of that date.”

Accordingly, we reverse the order under review and remand for entry of an order granting the defendants’ motion to dismiss based on forum non conveniens.

Reversed and remanded.

      . These factors were later codified in Florida Rule of Civil Procedure 1.061, which provides as follows:
      (a) Grounds for Dismissal. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:
      (1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
      (2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
      (3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
      (4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

      . Section 29-28-106 of the Tennessee Code, provides: "No 'product liability action’ ... shall be commenced or maintained against any seller when the product is acquired and sold by the seller in a sealed container and/or when the product is acquired and sold by the seller under circumstances in which the seller is afforded no reasonable opportunity to inspect the product.... The provisions of the first sentence of this subsection shall not apply to ... [a]ctions based upon a breach of warranty, expressed or implied....”


text:
    Stefon SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2671.
    District Court of Appeal of Florida, First District.
    March 14, 2007.
    Nancy Daniels, Public Defender, and John B. Kelly, III, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Sanders v. State, 946 So.2d 953 (Fla. 2006). AFFIRMED.

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


text:
    STATE of Florida, AGENCY FOR WORKFORCE INNOVATION, Appellant, v. MITCHELL S. RITCHIE, P.A., Appellee.
    No. 1D06-5462.
    District Court of Appeal of Florida, First District.
    March 16, 2007.
    John R. Perry, Senior Attorney, Agency for Workforce Innovation, Tallahassee, for Appellant.
    Mitchell S. Ritchie of Mitchell S. Ritchie, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant, the Agency for Workforce Innovation (AWI), appeals the circuit court’s grant of a writ of mandamus ordering AWI to provide appellee access to notices of hearing issued in unemployment compensation appeals pursuant to appellee’s public records request. AWI argues that the circuit court erred in ordering AWI to provide these notices because the notices contain information identifying claimants in unemployment compensation cases, and that such information is exempt from the public records law pursuant to sections 443.171(5) and 443.1715(1), Florida Statutes (2006). We agree that such information is exempt from the public records law, and reverse.

Sections 443.171(5) and 443.1715(1) provide that certain information obtained by AWI in the administration of the unemployment compensation law is confidential and exempt from the public records law. These statutes provide the following relevant language:

(5) RECORDS AND REPORTS.— Each employing unit shall keep true and accurate work records, containing the information required by the Agency for Workforce Innovation or its tax collection service provider .... Information revealing the employing unit’s or individual’s identity obtained from the employing unit or from any individual through the administration of this chapter, is, except to the extent necessary for the proper presentation of a claim or upon written authorization of the claimant who has a workers’ compensation claim pending, confidential and exempt from s. 119.07(1). This confidential information is available only to public employees in the performance of their public duties. Any claimant, or the claimant’s legal representative, at a hearing before an appeals referee or the commission must be supplied with information from these records to the extent necessary for the proper presentation of her or his claim.

§ 443.171(5), Fla. Stat. (2006).

(1) RECORDS AND REPORTS. — Information revealing an employing unit’s or individual’s identity obtained from the employing unit or any individual under the administration of this chapter, and any determination revealing that information, except to the extent necessary for the proper presentation of a claim or upon written authorization of the claimant who has a workers’ compensation claim pending or is receiving compensation benefits, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This confidential information may be released only to public employees in the performance of their public duties. Except as otherwise provided by law, public employees receiving this confidential information must maintain the confidentiality of the information. Any claimant, or the claimant’s legal representative, at a hearing before an appeals referee or the commission is entitled to information from these records to the extent necessary for the proper presentation of her or his claim... .The Agency for Workforce Innovation or its tax collection service provider may, however, furnish to any employer copies of any report submitted by that employer upon the request of the employer and may furnish to any claimant copies of any report submitted by that claimant upon the request of the claimant.

§ 443.1715(1), Fla. Stat. (2006).

The notices of hearing requested by ap-pellee refer to hearings held in front of the appeals referee. These notices contain information identifying the parties to unemployment compensation appeals. By a plain reading of the statutes, information revealing an employer’s or claimant’s identity is confidential and exempt from the public records.

The statutes provide exceptions to the confidentiality requirement under certain circumstances for claimants and their legal representatives, employers, and public employees in the performance of their public duties. The statute also provides for disclosure where the confidential information is necessary for the proper presentation of a claim. However, none of these exceptions allow disclosure of information revealing the identity of an employer or claimant to members of the general public. In this case, appellee is a law firm seeking the names of claimants as potential clients for business purposes. Appellee is not a claimant, employer, or public employee, and is not a legal representative of any of the claimants to whom AWI sent the requested notices of hearing. Additionally, the notices of hearing in an unemployment compensation appeals proceeding are not substantive, and therefore, are not necessary for the proper presentation of a claim.

Therefore, appellee is not entitled to any information revealing the identity of an employer or a claimant contained within the notices of hearing issued by AWI as part of the unemployment compensation appeals process. We reverse the order of the circuit court requiring AWI to provide the requested notices of hearing without the opportunity to redact the confidential information contained in these notices.

REVERSED.

BARFIELD, BENTON, and POLSTON, JJ., concur.

      . In unemployment compensation cases, AWI makes an initial determination whether a claimant is entitled to benefits and in what amount. If AWI denies the claim, the claimant has 20 days to appeal. A hearing is held in front of an appeals referee, and the referee can then affirm, modify, or reverse the determination. § 443.151, Fla. Stat. (2006).


text:
    Toney L. MILLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5715.
    District Court of Appeal of Florida, First District.
    March 16, 2007.
    Toney L. Mills, pro se, Petitioner.
    Bill McCollum, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted and case number 1D05-6142 is hereby reinstated.

HAWKES, THOMAS, and ROBERTS, JJ., concur.


text:
    Willie S. RILEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5849.
    District Court of Appeal of Florida, First District.
    March 16, 2007.
    Willie S. Riley, Jr., pro se, Appellant.
    Bill McCollum, Attorney General, Sher-on Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of January 25, 2007, we dismiss the appeal for lack of jurisdiction. The notice of appeal filed on November 6, 2006, appealing the Order on the appellant’s motion to correct illegal sentence, rendered on September 19, 2006, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). This appeal is hereby dismissed.

DISMISSED.

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


author: EVANDER, J.

text:
    Mark WAGLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3697.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

After an evidentiary hearing, appellant was found to have violated his community control and sentenced to five years in prison. We reverse.

The amended affidavit of violation of community control alleged appellant had violated two conditions of his community control. First, appellant was alleged to have violated Condition (16) of his community control order. This condition provided:

You will remain confined to your approved residence except for one-half hour before and after your approved employment, community service work or any other special activities approved by your Supervising Officer.

The evidence established that appellant worked as a handyman for Rick and Denise Smith. The Smiths owned a ten-acre parcel of land. Several buildings, including two rental residences, were located on the Smiths’ property. Appellant’s job duties included mowing, weeding, painting, and performing repairs.

Ms. Southall, appellant’s probation officer, had approved a work schedule whereby appellant was to complete his work day by 5:00 p.m. Therefore, on a normal work day, appellant would be required to be at his residence by 5:30 p.m. On the day in question, appellant arrived home, after working at his job, at 5:35 p.m. Appellant’s probation officer testified that his employers had advised her that appellant had left work that day at approximately 4:45 p.m. Thus, appellant would have been required to have been at his residence by 5:15 p.m.

Appellant testified he did not actually leave the Smiths’ property until after 5:00 p.m. Mrs. Smith testified that her husband had been mistaken in saying that he had left the premises, because appellant was actually in the back of the property putting up the mower. When she saw appellant, she told him that Ms. Southall had been by to see him. Mr. Smith did not testify.

The trial court found appellant’s tardy return to his residence constituted a willful and substantial violation of his probation. The trial court did not make a finding as to exactly how late appellant was in returning home.

To revoke a defendant’s probation, a court must find by the greater weight of the evidence that the defendant committed a willful and substantial violation of a term of his probation. The standard of review by an appellate court is abuse of discretion. State v. Carter, 835 So.2d 259, 262 (Fla.2002).

The evidence in this case was insufficient to establish that appellant was more than five minutes late. We can foresee instances where a five minute late arrival could constitute a material and substantial violation of community control. However, under the facts of this case, we find it was an abuse of discretion for the trial court to have found appellant willfully and materially violated Condition (16). Perez v. State, 884 So.2d 306 (Fla. 2d DCA 2004).

Second, appellant was alleged to have violated Condition (10) of his community control order. This condition required appellant to submit to random drug testing. The evidence reflects that appellant had been directed by his probation officer to provide a urine sample. He did so. In appellant’s presence, the probation officer performed a field test on the sample. The test results were positive for cocaine and barbiturates. Appellant denied he had used any illegal drugs. The probation officer then field tested the same sample again. This time the test results were negative. The probation officer then sent, the urine sample to Scientific Testing Laboratories, Inc. The laboratory report presented at trial reflected “Specimen Drug Status: NEGATIVE; Specimen Validity Status: DILUTE.” There was no evidence as to how the sample was allegedly diluted or the degree of the alleged dilution. There was no competent evidence as to whether the laboratory result reflected an intentional effort by appellant to dilute his urine sample. The evidence was simply insufficient to support a finding that appellant had violated Condition (10).

REVERSED and REMANDED.

GRIFFIN and PALMER, JJ., concur.

      . The record reflects the probation officer was clearly not qualified to give an expert opinion with regard to the meaning of a "dilute” result.


text:
    FASTFUNDING THE COMPANY, INC., Appellant, v. Wendy BETTS, Appellee.
    No. 5D02-1482.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.
    John A. Boudet and Lisa Harris of Greenberg Traurig, P.A., Orlando, and Susan Verbonitz, Pro Hac Vice, of Weir & Partners LLP, Philadelphia, for Appellant.
    Theodore J. Leopold and Diana L. Martin, of' Ricci-Leopold, P.A., Palm Beach Gardens, Christopher C. Casper of James, Hoyer, Newcomer & Smiljanich, Tampa, and E. Clayton Yates, of Law Office of E. Clayton Yates, P.A., Fort Pierce, for Ap-pellee.
   PER CURIAM.

We consider this case on remand from the Florida Supreme Court. Betts v. Fast-Funding The Company, Inc., 950 So.2d 379 (Fla. 2006). In light of Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), we reverse and remand this case to the circuit court with directions that it be referred to arbitration. Under Cardegna, the arbitrator must determine whether the contract at issue is illegal (as usurious) under Florida law. Additionally, the arbitrator must determine whether, under Florida law, the arbitration may proceed as a class action. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003).

REVERSED AND REMANDED WITH DIRECTIONS.

THOMPSON, TORPY, and LAWSON, JJ., concur.


text:
    Melvin Z. RHINELANDER, Philip Small, et al., Appellants, v. The ESTATE OF Elizabeth P. RAMBO, etc., Appellee.
    No. 5D05-3222.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.

      James B. Thompson and Heather C. Goodis of Thompson, Goodis, Thompson, Groseclose Richardson, P.A., St. Peters-burg, for Appellants.
    Susan B. Morrison of Law Office of Susan B. Morrison, P.A., and Bennie Laz-zara, Jr., of Wilkes McHugh, P.A., Tampa, for Appellee.
   PER CURIAM.

The lower court’s order which denied Appellants’ Motions to Quash and Dismiss based upon a lack of personal jurisdiction is reversed. Carter v. Estate of Rambo, 925 So.2d 353 (Fla. 5th DCA 2006).

REVERSED.

THOMPSON, PALMER and TORPY, JJ., concur.