text:
    Jorge Javier FERNANDEZ, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT, etc., Appellee.
    No. 3D07-779.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.
    Kenneth M. Kaplan, for appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, for appellee.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

Jorge Fernandez appeals a final administrative child support order entered against him by the Florida Department of Revenue, Child Support Enforcement Program (“DOR”). We affirm the order below, but without prejudice to Fernandez’s right to commence an action to disestablish paternity.

Fernandez raises three alleged reversible errors below. First, he maintains that the administrative judge who heard the child support matter lost jurisdiction over the matter when Fernandez filed an answer disputing paternity and requested DNA testing to determine whether he was the child’s father. Second, he argues that the administrative judge reversibly erred by failing to conduct a hearing pursuant to paragraph 409.2563(4)(h), Florida Statutes (2007). Third, Fernandez asserts that section 409.2563 is itself violative of the parties’ rights under the federal and Florida constitutions.

The Proceedings Below

DOR’s Child Support Enforcement Program commenced an administrative proceeding against Fernandez alleging that his paternity had been legally established by affidavit or voluntary acknowledgment as to a minor child. In accordance with subsection 409.2563(4), Florida Statutes, Fernandez was directed to complete and provide a financial affidavit to DOR within twenty days after receiving the notice and to file a request for hearing, if he wanted a hearing, within that time as well.

Fernandez retained counsel and filed an answer denying the allegations in the DOR’s notice of proceeding. The answer included an unsworn response requesting DNA tests to determine whether he was the natural father of the child. The answer did not request a hearing, and Fernandez did not file a completed financial affidavit.

DOR then served a “Proposed Administrative Support Order” upon Fernandez, with findings and conclusions establishing a current monthly child support obligation, an arrearage amount and a requirement that Fernandez provide health care coverage when available to him. The proposed order again asserted that paternity had been established by affidavit or voluntary acknowledgment, and it specified Fernandez’s rights to obtain a hearing on the issues by filing a written request with DOR within twenty days after the date of service. Fernandez did not respond to the proposed order, and a final administrative child support order was entered shortly after the twenty days expired. Fernandez timely appealed the order. At no time has Fernandez disputed the contention of DOR that Fernandez was designated as the father of the child on the child’s Florida birth certificate.

I. The Request for a DNA Test

The administrative procedure established for “child support only” issues assumes and requires that paternity has already been established. The controlling statute expressly requires a separate action in circuit court if the noncustodial parent requests that in writing or states in writing his or her intention to raise issues concerning custody or rights to parental contact. See § 409.2563(2)(f), Fla. Stat. (2007). In this case, Fernandez did not request a separate circuit court action and did not raise issues regarding custody or parental contact.

At the time Fernandez answered the administrative notice, Florida’s separate statute on disestablishment of paternity was not yet effective. That statute, section 742.18, became effective June 20, 2006, and provides a remedy in circuit court for a male who wishes to disestablish paternity or terminate a child support obligation when he is not the father of the child. That statute now contains the appropriate remedy if Fernandez wishes to terminate his current obligation.

At the time Fernandez served his notice, however, any dispute regarding his previously-admitted paternity was governed by subsection 742.10(4), Florida Statutes (2007). Under that provision, it would have been incumbent upon Fernandez to commence a circuit court proceeding challenging paternity, and he would have had the burden of proof on that issue. Moreover, his child support obligations during the pendency of that challenge would not have been suspended, “except upon a finding of good cause by the court.”

In Department of Revenue ex rel. T.E.P. v. Price, 958 So.2d 1045 (Fla. 2d DCA 2007), the minor child was born in 2001 and the father had signed an affidavit acknowledging paternity. When DOR commenced an administrative child support proceeding in 2006 for the benefit of the child, the father sent a handwritten letter to the court asserting that another man was actually the father of the child and stating that he would “like to take a genetic test to determine once and Tor all” that the child was not his. Id. The court quashed the trial court order for genetic testing of the father, mother, and child, holding that the father had failed to follow the required statutory procedure to challenge the prior determination of paternity.

Indeed, this Court has previously held that even the disestablishment of paternity may not cancel or reduce past child support obligations retrospectively (absent extraordinary or compelling circumstances), because those unpaid amounts are ordinarily a vested right of the child. Dep’t. of Revenue v. Ductant, 957 So.2d 658, 660 (Fla. 3d DCA 2007). In short, the past and present statutes provide that a father who has acknowledged paternity will remain responsible for child support until he establishes good cause or prevails in his own action in circuit court to disestablish paternity and terminate the payment obligations. Neither of those circumstances occurred here.

II. No Hearing

Fernandez contends that the administrative judge committed reversible error and abused his discretion “when counsel for the alleged father specifically requested a hearing on the DNA to determine paternity and no hearing was conducted pursuant to Florida Statute 409.2563(4)(h).” Fernandez’s answer, however, requested DNA testing but not a hearing. The unverified request for DNA testing, without a separate circuit court action and affidavit conforming to the applicable paternity statutes, was insufficient to derail DOR’s administrative proceeding for the benefit of the child. On two separate occasions — after service of the original notice, and following receipt of the “Proposed Administrative Support Order” — Fernandez could have requested a hearing, but did not do so. Nothing was or has been proffered to show reversible error or any abuse of discretion by the administrative judge in that respect.

III. Constitutionality of Section 409.2563

Fernandez argues that section 409.2563, Florida Statutes, violates a party’s right to due process, a fair trial, and the right to counsel under the federal and Florida constitutions. This challenge was not raised below. Fernandez had notice and an opportunity to be heard, and he was represented by counsel below. The paternity statutes afforded him then, and continue to afford him, a remedy to disestablish paternity and terminate his child support obligations if he complies with those statutes and proves his case. Fernandez has cited no specific defect or precedent in support of the conclusory and unpreserved assertion that section 409.2563 is unconstitutional. No fundamental defect or error has been shown.

IV. Conclusion

When paternity has already been established by affidavit, a birth certificate, or a prior judicial proceeding, the father is not a “putative father” and DOR, the mother, or the child do not bear the burden of proving paternity. A father’s response, “need DNA test,” to a DOR administrative proceeding for child support does not by itself terminate the proceeding or require DOR to commence a circuit court action to establish paternity. Dep’t of Revenue v. Long, 937 So.2d 1235 (Fla. 1st DCA 2006). Rather, the burden is then on the respondent to commence his own action in the circuit court to prove that what was previously admitted, his fatherhood, is in fact a falsehood.

Affirmed.

      . In the absence of a financial affidavit from Fernandez, DOR used information from state wage data and his employer.

      . Under subsection 382.013(2), Florida Statutes (2007), the name of the father of a child who is not married to the child’s mother at the time of birth will not be entered on the birth certificate unless the father and mother sign an affidavit confirming paternity. The same rule applied in 1999, when the child was bom, and when the DOR commenced its administrative proceeding for child support.

      . The new statute is very clear, however, that a petitioner must execute an affidavit stating that he is current on child support (or detailing his inability for just cause to make required payments), and that the duty to pay child support "shall not be suspended while the petition is pending except for good cause shown.” § 742.18(l)(c) and (6), Fla. Stat. (2007).

      . As this Court held in Goodyear Tire & Rubber Co. v. Jones, 929 So.2d 1081, 1086 (Fla. 3d DCA 2005), a facial challenge to the constitutionality of a statute may not be raised here for the first time unless the alleged defect is fundamental in character.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    Barbara RISER, as Court Appointed Guardian of Hugo Vargas, Appellant, v. HARTFORD INSURANCE COMPANY, Appellee.
    No. 3D07-808.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.

      Sutton & Montoto and John R. Sutton; Jay M. Levy, Miami, for appellant.
    Joseph P. D’Ambrosio, Boca Raton, for appellee.
    Before COPE and WELLS, JJ., and. FLETCHER, Senior Judge.
   WELLS, Judge.

Barbara Riser, the court appointed guardian for Hugo Vargas, appeals from an order awarding interest to The Hartford Insurance Company, a workers’ compensation insurance carrier, on its pro rata share of a settlement recovery secured by Vargas. Because the carrier was only entitled to a pro, rata share of the interest actually earned by Vargas on the settlement proceeds, not interest on the settlement proceeds calculated at the statutory rate, we reverse.

While in the course and scope of his employment, Vargas fell from a scaffold and sustained serious, permanent brain injuries. In December of 2002, the guardian appointed to represent Vargas brought suit to recover damages for these injuries. The guardian also filed a workers’ compensation claim against Vargas’ employer. The employer’s insurer, Hartford, ultimately settled the workers’ compensation claim and filed a section 440.39(2) subrogation lien in the personal injury action. The defendants in Vargas’ personal injury action also settled with Vargas, paying him $1,500,000 in October 2004 and $550,000 in May 2005. The proceeds from both settlements were deposited into the guardian’s attorney’s trust account and later transferred into interest bearing accounts at financial institutions which paid interest at commercial rates.

In December 2006, Hartford moved for a determination of its pro rata share of the settlement proceeds paid to Vargas in the personal injury action and, on January 11, 2007, was awarded $260,882 to satisfy its lien. Citing Commercial Union Insurance Co. v. Fallen, 603 So.2d 610 (Fla. 5th DCA 1992), Hartford then moved for an award of interest on the settlement proceeds from the dates they were paid to Vargas, calculated at the respective statutory interest rates under section 55.03, Florida Statutes (2006). On February 26, 2007, the trial court, relying on Fallen, granted the motion and awarded Hartford $43,236.01 in interest calculated at the statutory rate.

We reverse this award, noting first that Fallen does not directly address the issues raised in this case. Fallen addressed only whether a workers’ compensation carrier was entitled to “interest accrued on its pro rata share from the date of the judgments [against the tortfeasor in the injured worker’s favor] to the date of the disbursement by the third party tortfeasor [to the injured worker].” Id. at 611. Fallen did not address whether a subrogated carrier is entitled to any interest on settlement funds after those funds have been paid by the tortfeasor to the injured worker, or, if so, whether such interest should be calculated at the statutory rate under section 55.03.

Although Fallen did not address distribution of interest accrued between payment by the tortfeasor and determination of a subrogated insurer’s pro rata share of that payment, we believe such an insurer would be entitled to its pro rata share of such interest as well. The problem in this case is that Hartford was awarded interest at the statutory post-judgment interest rate from the dates on which Vargas received the settlement funds from the tort-feasor until Hartford’s pro rata share was determined. See § 55.03, Fla. Stat. (2006) (setting interest rates for judgments). Vargas did not, however, receive any interest earned on the settlement proceeds for the period of time during which those funds were held in his attorney’s trust account. See R. Regulating Fla. Bar 5-1.1(g) (requiring all nominal or short term funds placed in trust with a member of The Florida Bar practicing within the state of Florida to be deposited into an interest-bearing trust account benefiting the Florida Bar Foundation, Inc.); see also Amendment to Rules Regulating the Fla. Bar — Rule 5-1.1(e) — IOTA, 797 So.2d 551, 552 (Fla.2001). And after the funds were transferred into accounts at various financial institutions, Vargas did not earn interest at rates equal to that imposed by section 55.03. As a result, Hartford was erroneously awarded a share of something that Vargas did not recover from the tort-feasor or from any other source. We therefore reverse the interest award and remand for a determination of Hartford’s pro rata share of the interest actually earned on the settlement funds.

Reversed and remanded for further proceedings consistent with this opinion.

      . Florida’s Workers’ Compensation Law allows an injured employee to accept workers’ compensation benefits and pursue legal action against a third-party tortfeasor at the same time. If the injured employee accepts workers’ compensation benefits and then recovers from a third-party tortfeasor by judgment or settlement, “the insurer shall be sub-rogated to the rights of the employee ... against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid [to the injured employee],...” § 440.39(2), Fla. Stat. (2006).


author: SALTER, J.

text:
    William C. HAUCK, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, etc., Appellee.
    No. 3D07-209.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.

      William C. Hauck, in proper person.
    Jason R. Smith, Key West, for appellee.
    Before GREEN, LAGOA, and SALTER, JJ.
   SALTER, J.

William Hauck, pro se, appeals the circuit court’s amended order on a supplemental petition for modification of child support filed by Appellee, the Florida Department of Revenue (“DOR”). The amended order required Hauck to pay child support and arrears accrued since 2004. We affirm in part and reverse in part.

Hauck raises three issues. First, he asserts that he was not provided with financial discovery by his child’s mother. In this case, however, the record does not disclose proper service by Hauck of any request for financial disclosure or documents pursuant to the applicable rules of procedure. As a result, no error has been shown on this point.

Second, Hauck argues that the trial court failed to compute the arrearage properly. Paragraph 8.a. of the amended order set the arrearage at $4,000, while paragraph 9.a.(2) of the same order and the income deduction order state that the arrearage amount is $5,600. The DOR brief acknowledges that the amount is $4,000, and the amended order and income deduction order are hereby reversed to the extent they recited the higher amount. Hauck also claims that the amended order failed to credit payments shown by DOR’s audit report, but the record below does not reveal any such error.

Third, Hauck argues that the amended order is incorrect because it indicates that: (1) it was entered after a default on his part; and (2) Hauck was not present for the hearing on September 22, 2006. The court minutes are inconclusive on this point, and Hauck did not arrange for a transcript of the hearing to be filed. There is thus no indication from the existing record that Hauck’s contentions are correct (although the DOR brief states that Hauck was present), and no demonstration that a different result would have occurred had the form order been completed in accordance with those contentions.

The amended order and income deduction order are affirmed in part and reversed in part. On remand, the arrearage amount is to be entered consistently at $4,000 based on paragraph 8.a. of the amended order and the DOR answer brief.

Affirmed in part and reversed in part.

      . The appendix to Hauck’s brief includes an undated "Motions [sic] for Production of Documents,” but there is no indication that the paper was filed with the circuit court or served on DOR. The same problem affects Hauck's undated "Answer to Supplemental Petition” in the appendix to his brief. ■

      . The copies of money orders attached as an appendix to Hauck’s brief are illegible, were not received into evidence below, and are not definitive' proof of payment to DOR for payment of the support obligations. To the extent that Hauck believes that any money order was not properly credited, he should submit a clear copy of the money order to DOR with the case information in order to determine whether the original reached DOR for receipt and credit. Fla. Fam. L. R. P. 12.540. If not, Hauck may be able to seek recovery of the amount of any such errant money order from the issuer.


author: PER CURIAM.

text:
    MANZINI & ASSOCIATES, P.A., Appellant, v. Joanna CLARK and Mercy Hospital, Inc., Appellees.
    No. 3D06-3131.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.
    Nicolas A. Manzini, for appellant.
    Wolpe Leibowitz Alvarez & Fernandez, LLP, and Mark A. Leibowitz, Miami, and Alia A. Szopa; Lewis E. Fishman, P.A. and Lewis W. Fishman, Miami, for appel-lee Mercy Hospital, Inc.
    Before COPE and WELLS, JJ., and FLETCHER, Senior Judge.
   PER CURIAM.

Affirmed. Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88, 92 (Fla. 3d DCA 1987) (stating that “where there are no proceeds of the judgment, there is nothing to which a lien may, as a practical matter, attach”); Pasin v. Kroo, 412 So.2d 43, 44 (Fla. 3d DCA 1982) (“The lien may not issue if no proceeds have been recovered.”).


text:
    Broderick Wydell THOMAS, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D06-54, 5D06-66, 5D06-252.
    District Court of Appeal of Florida, Fifth District.
    Nov. 27, 2007.
    Rehearing Denied Jan. 8, 2008.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Beatrice v. State, 832 So.2d 972 (Fla. 4th DCA 2003).

GRIFFIN, ORFINGER and TORPY, JJ., concur.


author: RAMIREZ, J.

text:
    Ernesto COMPANION, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2704.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2007.
    Ernesto Companioni, in proper person.

      Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ and SALTER, JJ.
   RAMIREZ, J.

Ernesto Companioni appeals from a motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a) and summarily denied by the trial court. Companioni was charged by information dated August 3, 1987, with two counts of sexual battery and three counts of lewd or lascivious assault for acts committed between March 12 and June 2, 1987, against a child under the age of sixteen. The defendant accepted a negotiated plea on September 6, 1988, to a reduced charge of two counts of attempted sexual battery and three counts of lewd assault upon a minor.

Because Companioni was assessed eighty points for victim injury on the guideline scoresheet, the parties believed that he qualified for a sentence of life imprisonment under the guidelines for the crimes of attempted sexual battery charged in Counts I and II of the Information. The State properly concedes that it was error to assess eighty points for victim injury on the guideline scoresheet. The trial court denied this claim in a prior motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and the Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence currently under review. None of these denials by the trial court included an opinion addressing the merits of this claim.

We agree with the State’s concession that the record reflects Companioni is entitled to relief. The postconviction record indicates that he was improperly assessed eighty points for victim injury on the guideline scoresheet. Here, his crimes were committed between March 12 and June 2,1987. These dates are prior to the amendment to Florida Rule of Criminal Procedure 3.701(d)(7), adopted by the Florida Supreme Court, effective July 1, 1987, which allowed for the scoring of victim injury points regardless of whether the injury was an element of the crime. Under the prior guidelines in effect, it was error to score victim injury points for the crime of attempted sexual battery because victim injury was not an element of that crime. Simmons v. State, 506 So.2d 101, 102 (Fla. 5th DCA 1987). When the erroneously counted victim injury points are excluded, Companioni’s guidelines score drops from 623 to 543 points. This then would change his recommended sentence, from a recommended sentence of life in prison to a recommended range of twenty-two to twenty-seven years. The guidelines allow a one-cell increase, to twenty-seven to forty years, for the revocation of probation. See Fla. R.Crim. P. 3.701(d)(14). According to Florida Rule of Criminal Procedure 3.800(a), “A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet,_” As such, Com-panioni has stated a claim that is meritorious from the face of the record.

Because we are reversing, the State suggests that the proper solution here, in accord with Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981), is to remand the case so that the trial court can give the State the option of retrying Companioni on the original charges or electing to have only the excessive portion of the sentence imposed vacated.

Accordingly, this case is reversed and remanded to the trial court for correction of Companioni’s scoresheet to reflect eighty fewer points, for a total of 543 points. We further instruct the trial court to give the State the option of allowing Companioni to move to vacate the judgment and sentence (under a properly filed Rule 3.850 motion) and reinstate the original charges, or vacating only that portion of the sentence imposed which is excessive in light of the corrected guidelines score-sheet.

Reversed and remanded with instructions.


text:
    NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, on behalf of itself and as Assignee of Physician’s Corporation of America, a Delaware corporation., Appellant, v. UNDERWRITERS AT LLOYD’S, LONDON and Certain Insurance Companies Subscribing to Certificate Number 509/QB283796, a foreign corporation, and Underwriters at Lloyd’s, London and Certain Insurance Companies Subscribing to Certificate Number 509/QB283896, a foreign corporation, Appellees.
    No. 3D06-3191.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2007.

      Carlton Fields and Sylvia H. Walbolt, and Steven J. Brodie, and Frederick T. Hawkes, for appellant.
    Pivnik & Nitsche, Jerome Pivnik; Hanson Peter Nye and Nancy K. Tordai; Fowler, White, Burnett and Allan R. Kelley and Helaine S. Goodner; Pattison and Flannery and Martin Flannery, Jr., for appellees.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

National Union Fire Insurance Company of Pittsburgh, PA, appeals the trial court’s order denying its motion for partial summary judgment and granting appellees Underwriters at Lloyd’s, London and Certain Insurance Companies’ cross-motion for summary judgment. We affirm the trial court’s decision because National Union has failed to show that Physician’s Corporation of America (“PCA”) provided Lloyd’s with the notice required under PCA’s insurance contract with Lloyd’s.

I.Factual and Procedural Background

This is a dispute between two insurers over a sizeable class action settlement paid on behalf of the insured, PCA, which was a Miami-based, publicly-traded health care company. Both Lloyd’s and National Union had issued consecutive liability policies covering PCA’s directors and officers. Lloyd’s had issued primary and excess “claims-made” director-and-officer policies to PCA for the period of April 7, 1996, to September 8, 1997. National Union’s policy covered the period of September 8, 1997, to September 8, 2003.

The class action that eventually was settled was filed in November of 1997, which fell within National Union’s coverage period. National Union argues, however, that Lloyd’s should respond for the loss because. Lloyd’s was obligated to pay for any “[ljoss resulting from any Claim first made during the policy period for a Wrongful Act” and to reimburse PCA for any loss PCA paid as indemnification “to any Directors and Officers resulting from any Claim during the policy period for a Wrongful Act.” A “Wrongful Act” was defined in the policy as “any actual or alleged error, omission, misstatement, misleading statement, neglect, breach of duty or negligent act by any of the Directors or Officers.” This would be a viable argument if Lloyd’s had been given proper written notice during the covered period. Resolution of this issue requires an examination of the policy language.

As to coverage for a potential claim, Clause VLB. of the policy provided that:

If during the Policy Period the Assureds first become aware of a specific Wrongful Act, and if the Assureds during the Policy Period give written notice to Underwriters as soon as practicable of:
1. the specific Wrongful Act, and
2. the consequences which have resulted or may result therefrom, and
3. the circumstances by which the Assureds first became aware thereof, then any Claim made subsequently arising out of such Wrongful Act shall be deemed for the purposes of this Policy to have been made at the time such notice was first given.

In 1996, PCA and Sierra Health Services began to discuss a merger. PCA’s representatives disclosed to Sierra that it was “under-reserved” by approximately $100 million, in violation of Florida’s insurance laws. The two companies nevertheless entered into a merger agreement on November 2, 1996. Two days later, PCA informed Sierra that PCA was under-reserved by $130 million. A financial review by the accounting firm of William H. Mercer, Inc., indicated that the amount under-reserved was actually $190 million. As the deficits continued to increase, the Florida Insurance Department, on February 25, 1997, filed a complaint seeking a receivership for PCA, resulting in the entry of a court order that effectively froze PCA’s business and assets.

In March 1997, Sierra rescinded its agreement with PCA and, in response, PCA brought suit in federal court seeking specific performance. . That same month, Sierra sued PCA in Delaware state court, seeking a declaration that Sierra had rightfully terminated the Merger Agreement. These suits eventually were consolidated.

On April 29, 1997, PCA sent Lloyd’s a letter crucial to our resolution of the dispute on this appeal. This letter purported to place Lloyd’s “on notice of the attached Summons & Complaint and a potential claim brought by Sierra.” PCA enclosed a copy of the summons, the Sierra complaint, and the receivership pleadings, which had been generated by the Department of Insurance. Lloyd’s responded that the purported notice presently represented only a “potential claim situation” because no director or officer of PCA had been named a defendant to the Sierra lawsuit. The response further noted: “If any director or officer of PCA is subsequently added as a defendant to the Sierra lawsuit, notice shall be deemed to have been made during the policy period when the Sierra lawsuit was first given to Underwriters.” The Sierra lawsuit eventually was settled.

As we know, in November of 1997, several shareholders lawsuits were filed against several of PCA’s directors and officers. These suits were consolidated into a federal class action entitled In Re: Physician Corp. of Am. Sec. Action (“In re PCA ”). On December 30, 1999, PCA notified Lloyd’s of In re PCA by sending it a copy of the complaint. Lloyd’s denied coverage on the grounds that: (1) In re PCA had been filed after the policy period; and (2) In re PCA involved wrongful acts different from those alleged in the Sierra lawsuit. Lloyd’s noted that no claim was ever made under the policy since the Sierra lawsuit was never amended to include directors and officers. PCA responded to Lloyd’s arguing that In re PCA arose out of the same misrepresentations regarding its financial health and its under-reserves.

In November of 2003, PCA and National Union jointly settled In re PCA for $10.2 million. Thereafter, PCA and National Union demanded reimbursement from Lloyd’s for $15.9 million ($10.2 million plus $5.7 million incurred from litigation expenses). When Lloyd’s refused to pay, PCA assigned its rights under the policy to National Union. National Union brought a declaratory action — as Assignee and on its own behalf — seeking a determination of coverage. Both sides moved for summary judgment. The trial court granted Lloyd’s motion, finding that PCA’s notice to Lloyd’s of the Sierra lawsuit was not legally sufficient to provide notice of the specific wrongful acts at issue in In re PCA. We agree.

II. Analysis

We review the trial court’s order granting summary judgment de novo. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The construction of an insurance policy is a question of law for the court and may be appropriately decided on motions for summary judgment. Escobar v. United Auto. Ins. Co., 898 So.2d 952, 954-55 (Fla. 3d DCA 2005) (finding that the trial court erred in holding that the determination of whether ambiguity exists in an insurance contract is a question for the jury rather than for the court).

An insurance policy is construed as a whole according to its plain and unambiguous terms. See Nugget Oil, Inc. v. Universal Sec. Ins. Co., 584 So.2d 1068, 1070 (Fla. 1st DCA 1991); see also § 627.419(1), Fla. Stat. (2001) (“Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto.”). The rule is opposite “[o]nly when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction.... ” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003) (citation omitted). Since National Union does not allege that the policy is ambiguous, we give the policy’s plain terms full effect. Resolution Trust Corp. v. Artley, 24 F.3d 1363, 1367 (11th Cir. 1994). Thus, the issue in this case is whether PCA gave Lloyd’s sufficient notice to trigger the “potential claim” coverage under the policy for In re PCA.

The policy at issue in this case is a claims-made policy. “A claims-made policy is a policy ‘wherein the coverage is effective if the negligent and omitted act is discovered and brought to the attention of the insurer within the policy term.’ The essence, then, of a claims-made policy is notice to the carrier within the policy period.” Gulf Ins. Co. v. Dolan, Fertig, & Curtis, 433 So.2d 512, 514 (Fla.1983) (citations omitted). Accordingly, we must decide whether PCA satisfied the policy’s notification provision by providing Lloyd’s with proper written notice. Pursuant to the policy language quoted earlier, the notice had to contain the following information: (1) the specific wrongful act; (2) the consequences which have resulted or may result therefrom; and (3) the circumstances by which PCA first became aware thereof. We conclude that PCA’s letter, which basically only enclosed the Sierra complaint and the receivership pleadings, both filed against PCA, did not place Lloyds’ on notice of the upcoming shareholder class action filed against the directors and officers of PCA.

Even if we assume that In re PCA asserted claims “arising out of’ the wrongful acts alleged in the Sierra lawsuit, we conclude that the Sierra complaint and attached receivership pleadings did not adequately describe the consequences that resulted from PCA’s wrongful acts and the circumstances of PCA’s discovery of those wrongful acts. The Sierra complaint and receivership pleadings identified only one consequence: a lawsuit brought by Sierra in connection with a proposed merger. There was no reference in these materials to intimate a potential claim that might be brought against PCA’s directors and officers by its shareholders for securities law violations.

An insured is in a better position to evaluate a claim and its potential consequences. Its obligation to provide notice cannot be shifted to the insurer to speculate as to the consequences that may result from specific wrongful acts by sifting through voluminous documents identified in the Sierra complaint and receivership pleadings. Resolution Trust Corp. v. Ayo, 31 F.3d 285, 291 (5th Cir.1994) (holding that the insurer was not required to draw inferences that potential claims exist from the materials submitted by the insured). Although these materials informed Lloyd’s that PCA had misrepresented its financial obligations to Sierra, an insurance company cannot reasonably be expected to speculate that litigation in connection with a failed merger, or an insurance department’s concern about under-reserved, would lead to a shareholders’ class action against the directors and officers for securities law violations. We therefore conclude that the Sierra complaint and the attached receivership pleadings also did not describe the circumstances by which the directors and officers first became aware of the possibility that it could be sued for securities law violations.

III. Conclusion

To the extent that the Sierra complaint and attached receivership pleadings did not adequately describe the consequences that resulted from PCA’s wrongful acts and the circumstances of PCA’s discovery of those acts, PCA’s April 29th letter did not comply with the notice requirements contained in the policy. Accordingly, we affirm the trial court’s order denying partial summary judgment to National Union and granting summary judgment in favor of Lloyd’s.

Affirmed.

      . Although there were two policies, a primary and an excess, we have treated them as one for the sake of clarity and because they contain essentially the same language at issue on this appeal.


text:
    Roberto PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2456.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2007.
    Eduardo Soto, Miami, and Karina Acevedo, Coral Gables, and Karla Lammers and Liza Galindo, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    ISKCON MIAMI, INC., etc., Appellant, v. Eduardo J. GARCIA, et al., Appellees.
    No. 3B07-408.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2007.
    Heyward A. Bradman, for appellant.
    Garbett, Stiphany, Allen & Roza and David S. Garbett and Angela Sherrill, Miami, for appellees.
    Before GERSTEN, C.J., and GREEN, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See § 95.031, Fla. Stat. (2005); Davis v. Monahan, 832 So.2d 708 (Fla.2002).


text:
    Louis HUARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2122.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2007.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Louis Huard was found to be in willful violation of his probation for failure to make the required restitution payments, which had been imposed as a condition of his probation. The State concedes that it failed to prove that Huard had the ability to pay and that the missed restitution payments were willful violations of probation. Because the uncontroverted evidence showed that Huard did not have the ability to pay the court-ordered restitution, the State confesses error insofar as the trial court found that Huard had willfully violated his probation. See Moore v. State, 724 So.2d 117, 118 (Fla. 3d DCA 1998) (citing Hewett v. State, 613 So.2d 1305 (Fla.1993)); White v. State, 693 So.2d 119 (Fla. 2d DCA 1997); Laing v. State, 622 So.2d 560 (Fla. 3d DCA 1993). We agree.

Based on the State’s confession of error, we reverse and remand the case for the purpose of vacating the trial court’s order extending probation. The trial court should terminate the appellant’s probation and issue a criminal order of restitution payable to the victim for the balance of the restitution owed.

Reversed and remanded with instructions.


text:
    Juan M. GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-875.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2007.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

On the record before us, we cannot conclude that the trial court erred in its determination that the State’s witness was unavailable to testify in person at trial, as defined in Florida Rule of Criminal Procedure 3.190(j)(6), due to her advanced age and illness. Thus, the court did not abuse its discretion when it admitted this witness’s perpetuated deposition testimony. See DiBattisto v. State, 480 So.2d 169 (Fla. 3d DCA 1985). Accordingly, we affirm the appellant’s conviction and sentence for first-degree murder with a firearm.

Affirmed.


text:
    Christopher J. McBRIDE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2558.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2007.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before COPE, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Glendening v. State, 586 So.2d 212 (Fla.1988); Olson v. State, 705 So.2d 687 (Fla. 5th DCA 1998).


author: SUAREZ, J.

text:
    Martin M. BERGER, Appellant/Cross-Appellee, v. Melanie J. Gradus BERGER, Appellee/Cross-Appellant.
    No. 3D05-1480.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2007.
    Markus & Winter, Miami; Greene Smith McMillan and Cynthia Greene, Miami, for appellant/cross-appellee.
    Beth E. Spiegel, North Miami Beach; Jay M. Levy, Miami, for appellee/cross-appellant.
    Before GREEN, WELLS, and SUAREZ, JJ.
   Corrected Opinion

SUAREZ, J.

We affirm the lower court’s order denying charging lien and awarding attorney’s fees and costs in favor of the wife except as to the amount. We reverse on the wife’s cross-appeal the amount of attorney’s fees and costs awarded. On remand, the wife shall be entitled to 100% of the attorney’s fees and costs based on the disparity in income between the parties as pronounced in the final judgment of dissolution of marriage as a result of the husband’s greater earning capacity; the voluntary limitation of his income; and the wife’s inability to earn. See Berger v. Berger, 954 So.2d 1169 (Fla. 3d DCA 2007).

Affirmed in part, reversed in part, and remanded to recalculate the amount of attorney’s fees and costs for the wife.


text:
    INTERESTED UNDERWRITERS, Appellant, v. SEAFREIGHT LINE, LTD., et al., Appellees.
    No. 3D06-3127.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2007.
    Rehearing Denied Jan. 16, 2008.

      James J. McNally, for appellant.
    Thomas V. Halley; Cichanowicz Callan Keane Vengrow & Textor and Joseph De-May, Jr., for appellees.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

Interested Underwriters appeals a final judgment summary judgment in favor of SeaFreight Line, Ltd. and SeaFreight Agencies, Inc. (together, “SeaFreight”) in a case involving the application of the statutory loss limitation in the Carriage of Goods by Sea Act (“COGSA”). The trial court granted summary judgment based on the case of Groupe Chegaray v. De Chains v. P & O Containers, 251 F.3d 1359 (11th Cir.2001), finding that a container filled with eight pallets (each containing 140 cartons of perfume) and 55 loose cartons of perfume constituted 63 “packages” for purposes of COGSA’s $500-per-pack-age limitation.

We reverse, finding ample evidence in the record below that each carton of perfume was a “package” and thus that there were a total of 1,175 packages, and that the Groupe Chegaray decision turned on an express agreement between shipper and carrier that a pallet would be considered a “package” for COGSA purposes. In this case, there was no such agreement.

We review a summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party— here, the appellant, Interested Underwriters. If the “slightest doubt” exists, we must reverse. Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

The Bills of Lading and the Insured Loss

Dinamis Trading, not a party below or here, sought to ship 1,175 cartons of perfume from Venezuela to Borealis Trading’s warehouse in Miami via SeaFreight. The goods never reached the consignee, and Insured Underwriters paid the insured amount of $583,573.06 — approximately $487 per carton — to--its insured for the loss. Insured Underwriters (as subro-gee) then sued SeaFreight and a Florida ground transportation company.

During discovery, the parties' identified three bills of lading relating to the shipment. Each carried the logo and name of SeaFreight, but only one was stamped “original” and apparently signed by someone on behalf of SeaFreight. The original bill of lading was dated-February 3, 2003. Under the form’s heading, “NO. OF PEGS.,” the typewritten number “1” appears. The parties agree that this is a reference to the single 20-foot containér and is not a reference to the number of COGSA “packages” shipped. The description of the container’s contents under the heading “DESCRIPTION ■ OF PACKAGES AND GOODS” is:

8 PALLETS CON 1.120 CARTONES

55 CATONES SUELTOS

TOILLET PREPARATIONS

The parties agree that the English and correctly-spelled translation of that description is “8 pallets with 1,120 cartons, 55 loose cartons, perfume.”

The second of the three bills of lading identified during discovery is unsigned, stamped “non-negotiable,” bears the same date as the original, and includes substantially the same description of the goods. The third bill of lading, also unsigned and stamped “non-negotiable,” is dated four days after the original (February 7, 2003) and describes the packages and goods as “TOILET PREPARATIONS 1175 PCS.”

The parties did not, unfortunately, use the term “package” in the typewritten description of goods in any of the bills of lading so as to memorialize an agreement that the cartons, pallets, or both would be “packages” for COGSA purposes.

What Did Congress Mean by “Packager

Congress enacted COGSA in 1936, and its $500 per “package” limitation has never been upwardly adjusted. Perhaps unaware of the proclivity of lawyers to argue endlessly about the simplest of terms, Congress included no definition of “package” in COGSA and left no legislative history to guide those of us who follow. This has spawned literally dozens of cases on the point, as well as at least one thorough and scholarly law review comment.

Generations of judges have done their best to bring order to the case law and to apply prior decisions to new methods of packaging and transporting goods by sea. Cartons of orange juice, men’s jackets, and all manner of goods have been characterized as “packages,” while other decisions have focused on which party — shipper or carrier — prepared the goods for shipment, or on the visibility of the shipped goods to the carrier. In a case such as this, “the bill of lading refers to both the container and ‘other units susceptible of being COG-SA packages’ ” and is therefore “inherently ambiguous.” MacClenny Products, Inc. v. Tropical Shipping and Construction Co., Ltd., 832 So.2d 888, 890 (Fla. 4th DCA 2002) (citation omitted) (reversing summary judgment in favor of carrier).

In this case it is also useful to consult the dictionary for the definitions of “package,” “pallet,” and “carton,” as these are the terms in contention. Webster defines package as “a small or moderate sized pack,” or “a commodity in its container: a unit of a product uniformly processed, wrapped, or sealed for distribution,” as in a “package of cigarettes.” A pallet in this context is “a portable platform of wood, metal, or other material designed for handling by a forklift truck or crane and used for storage or movement of materials and packages in warehouses, factories, or transport vehicles” (emphasis supplied). A “carton” is “a cardboard box or container; esp.: a relatively small container that when filled with merchandise is enclosed in a larger and stronger container for shipping” (emphasis supplied).

Applying these terms "from the bills of lading to the cartons of perfume on pallets for shipment in a container, the plain and ordinary meaning of the terms is obvious. The cartons are the “packages” placed on pallets, which are in turn placed in a container for shipping. Had the parties described the goods simply as eight pallets of perfume and 55 loose cartons, SeaFreight likely would have prevailed. But on the original bill of lading and the later, unsigned bill of lading on SeaFreight’s form, the parties apparently thought it important to specify the total number of cartons being shipped.

SeaFreight cites DCI Management Group, Inc. v. M.V. Miden Agan, No. 03 Civ. 448(DLC), 2004 WL 1078667 (S.D.N.Y. May 14, 2004) for a case in which eight pallets for the shipment of 595 individual cartons of frozen blood plasma were held to constitute only eight COGSA “packages.” In that opinion, the trial court distinguished three separate cases— including, one from the United States Court of Appeals, for the Eleventh Circuit-reaching a contrary conclusion, and there was an important fact that is not in this record. In DCI Management Group, the bill of lading was prepared by the shipper, DCI, and it described the cartons as placed on eight pallets. In one facsimile describing the shipment, DCI’s chief financial officer described the cargo as “eight pallets” and made no mention of the number of cartons of plasma. Id. at *4. Accordingly, we disagree that the analysis in DCI Management Group is controlling or applicable.

Conclusion

SeaFreight and its co-defendant below obtained a summary judgment based on a case in which the on-board bill of lading referred to the pallets as “packages.” Groupe Chegaray, 251 F.3d at 1365. The original bill of lading and other unsigned versions evidenced no' such intention or agreement in this case.

Reversed.

      . 46 U.S.C. app. § 1300-1315 (2003) (current version at 46 U.S.C. § 30701 (2007)).

      . The economic significance of this difference, before the addition of any prejudgment interest, is the difference between an aggregate loss limitation of $31,500 versus $587,500.

      .That defendant below, Florida Transportation Services, settled with Interested Underwriters for an amount which will be credited against any further sum recoverable by Interested Underwriters.

      . See Hartford Fire Ins. Co. v. Pacific Far East Line, Inc., 491 F.2d 960, 963 (9th Cir.1974).

      . Nancy A. Sharp, Comment, What Is a COG-SA Package?, 5 Pace Int’l L.Rev 115 (1993).

      . Webster’s Third New International Dictionary, Unabridged Edition (1986).


author: EVANDER, J.

text:
    David Allan KUKETZ, Appellant, v. Rosalie BIBONA, Appellee.
    No. 5D06-2438.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Rehearing Denied Jan. 9, 2008.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, for Appellant.
    Marshal D. Morgan and Norman D. Levin, of Levin, Morgan & Longo, LLC, Longwood, for Appellee.
   EVANDER, J.

We affirm the trial court’s imposition of a constructive trust on Mr. Kuk-etz’ one-half legal interest in real property initially titled solely in Ms. Bibona’s name. The evidence supports the trial court’s conclusion that Ms. Bibona conveyed one-half interest in her home to Mr. Kuketz based on his promise to marry her when, in fact, Mr. Kuketz had no intent to marry Ms. Bibona. A court of equity may impose a constructive trust “where one, through actual fraud, abuse of confidence reposed and accepted, or through other questionable means gains something for himself which in equity and good conscience he should not be permitted to hold.” Saporta v. Saporta, 766 So.2d 379, 381-82 (Fla. 3d DCA 2000) (quoting Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 422 (1927)); see also McElroy v. Gay, 155 Fla. 856, 22 So.2d 154 (1945). However, as conceded by Ms. Bibona, the trial court erred in two respects.

First, there was no basis for the trial court to reserve jurisdiction on the issue of attorney’s fees. Ms. Bibona never requested attorney’s fees in her pleadings. Stockman v. Downs, 573 So.2d 835 (Fla.1991). Second, the trial court should have ordered Ms. Bibona to satisfy or refinance the mortgage on the subject property so as to relieve Mr. Kuketz of his obligations under the existing mortgage. Lang v. Horne, 156 Fla. 605, 23 So.2d 848-53 (1945).

AFFIRMED in part, REVERSED in part, REMANDED.

GRIFFIN and THOMPSON, JJ., concur.

      . The original purchase money mortgage was solely in Ms. Bibona’s name. Shortly after Ms. Bibona conveyed a one-half interest in the property to Mr. Kuketz, she refinanced the property to obtain a better interest rate. Mr. Kuketz’ name was added to the new mortgage. Ms. Bibona testified that she did not take any equity out of the house when she refinanced the mortgage and she did not otherwise need or rely on Mr. Kuketz’ creditworthiness to be approved for the refinancing.


text:
    Forentha JUDGE, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-4115.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Rehearing Denied Jan. 7, 2008.
    Fornetha Judge, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Forentha Judge, pro se, appeals an order of the Department of Children and Families [“DCF”] denying her objection to the date of reinstatement of cash assistance benefits. Benefits were suspended based on the truancy of her dependent children. The record supports DCF’s suspension of benefits and the date of reinstatement.

AFFIRMED.

GRIFFIN, THOMPSON and PLEUS, JJ., concur.


text:
    E.I. DuPONT DE NEMOURS & COMPANY, INC., Petitioner, v. MELVIN PIEDMONT NURSERY, Respondent.
    No. 3D07-1316.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing Denied Dec. 5, 2007.

      Shook, Hardy & Bacon, LLP, and Edward A. Moss, and Eileen Tilghman Moss, and Todd Wallen, Miami; Hicks & Kneale, P.A., and Mark Hicks, Englewood, and Dinah Stein, Miami, for petitioner.
    Feldman Gale, P.A., and Lawrence S. Gordon, and Jeffrey D. Feldman, Miami, for respondent.
    Before GERSTEN, C.J., and GREEN, and SALTER, JJ.
   PER CURIAM.

E.I. DuPont de Nemours & Co., Inc. (“DuPont”), seeks a writ of prohibition to prevent the Eleventh Judicial Circuit Court from proceeding to entertain an omnibus motion filed by Respondents raising a claim adjudicated in the United States District Court for the Western District of North Carolina by way of a final summary judgment and dismissal of Respondent’s action. We grant the petition.

As we held in Carnival Corp. v. Middleton, 941 So.2d 421 (Fla. 3d DCA 2006), the findings of a federal district court are binding on a state trial court under principles of collateral estoppel. The doctrine of collateral estoppel prevents identical parties from relitigating the same issues that have already been decided. Id. Here, the same parties were before the federal district court in North Carolina on the same issues presented to the trial court below. The Respondents are simply attempting an end run around the federal court’s adverse determination by re-litigating the same issues here. They are precluded from doing so under the doctrine of collateral estoppel. Carnival Corp., 941 So.2d at 424; Dep’t of Health & Rehab. Servs. v. B.J.M., 656 So.2d 906 (Fla.1995).

Contrary to the trial court’s perception, it is of no moment that the federal district court’s entry of summary judgment may have been the result of a sanction. The issues are still deemed to have been adjudicated and the parties had a full and fair opportunity to be heard thereon. See In Re Docteroff, 133 F.3d 210 (3rd Cir.1997) (default entered as sanction against party operates to bar relitigation under collateral estoppel); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319 (11th Cir.1995) (collateral estoppel bars relitigation of fraud issues where default was entered against party in previous action as sanction).

Moreover, the doctrine of res judi-cata also bars the trial court from proceeding with this action. The final summary judgment entered in the federal district court action satisfies the elements of res judicata: (1) identity of the things sued for; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality in the person for or against whom the claims are made. Johnson v. Young, 964 So.2d 719 (Fla. 3d DCA 2007). Respondents sought the same relief in federal court as they do in the action below; the identity of the cause of action, parties and quality of the persons also exists. The federal district court granted DuPont’s summary judgment motion and dismissed the cause with prejudice. This constitutes a final determination of the issues.

For the foregoing reasons, we grant DuPont’s petition for writ of prohibition precluding the lower court from conducting further proceedings in this cause between these parties. We are confident it won’t be necessary to formally issue the writ.

Prohibition granted.

      . The federal district court in North Carolina entered summary judgment against the Respondents and dismissed their claims under the doctrine of judicial estoppel based upon the inconsistency of Respondents' positions during the course of the litigation. The Respondents never appealed this summary judgment.


author: GREEN, J.

text:
    F.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-865.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Bennett H. Brummer, Public Defender, and Jessica Zagier, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before GREEN, CORTINAS, and ROTHENBERG, JJ.
   GREEN, J.

F.C., a juvenile, entered a nolo conten-dere plea to the charge of possession of a firearm on school property on the eve of trial and approximately four months after the denial of his motion to suppress. On this appeal, F.C. challenges the order denying his motion to suppress. We dismiss this appeal for lack of jurisdiction where the parties did not stipulate that the suppression issue was dispositive of this case and the trial court did not make an express finding to that effect. See Brown v. State, 376 So.2d 382 (Fla.1979); White v. State, 661 So.2d 40 (Fla. 2d DCA 1995); Roob v. State, 572 So.2d 1022 (Fla. 3d DCA 1991).

Appeal dismissed.


text:
    EXCALIBUR TOWING SERVICE CORPORATION, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 3D07-615.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Jorge L. Gonzalez, Miami, for appellant.
    Clark, Robb, Mason, Coulombe, Busch-man & Cecere and James K. Clark and Dexter Romanez, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See §§ 323.001, 713.78, 713.78(4)(c), Fla. Stat. (2004).


text:
    Susan SOLTERO, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 3D07-380.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Stewart W. Logan, Miami; Freidin and Dobrinsky, and Randy Rosenblum, Miami, for appellant.
    Kenneth J. Carusello and Maria Klein, for appellee.
    Before COPE, GREEN, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985); Moore v. Dep’t of Corr., State of Fla., 833 So.2d 822 (Fla. 4th DCA 2002); Harris v. Kearney, 786 So.2d 1222 (Fla. 4th DCA 2001).


text:
    The CLIFTON CORPORATION, Appellant, v. TOTALBANK, Appellee.
    No. 3D06-2217.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Lee H. Schillinger, Hollywood, and Andrew C. Hall, Miami, for appellant.

      Berger Singerman and Charles H. Lichtman, Fort Lauderdale, for appellee.
    Before COPE, GREEN, and SALTER, JJ.
   PER CURIAM.

Affirmed. Smith v. Orhama, Inc., 907 So.2d 594, 596 (Fla. 3d DCA 2005); Republic Servs. of Fla., L.P. v. Poucher, 851 So.2d 866, 869 (Fla. 1st DCA 2003); Estate of Basile v. Famest, Inc., 718 So.2d 892, 892-93 (Fla. 4th DCA 1998); Tollius v. Dutch Inns of Am., Inc., 244 So.2d 467, 471-72 (Fla. 3d DCA 1970).


text:
    John SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1317.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Paulette R. Taylor, and Rolando Soler, Assistant Attorneys General, for appellee.
    Before COPE, GREEN, and SALTER, JJ.
   PER CURIAM.

We affirm defendant’s conviction and the order denying defendant’s new trial motion as we find no abuse of discretion in the trial court’s rulings. See Rivera v. State, 859 So.2d 495, 512 (Fla.2003); Goodwin v. State, 751 So.2d 537, 546-47 (Fla.1999). We remand this cause, however, with instructions that the court correct the defendant’s judgment of conviction to reflect that he was convicted of attempted carjacking, a second degree felony.


text:
    Gerald DILLARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2653.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Gerald Dillard, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Louis v. State, 797 So.2d 1281 (Fla. 4th DCA 2001).


text:
    Johnnie Mack OWENS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2738.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Rehearing Denied Jan. 16, 2008.
    Johnnie Mack Owens, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GREEN, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850(f); Tannehill v. State, 843 So.2d 355, 356 (Fla. 3d DCA 2003).


text:
    Paul L. SAVINO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3852.
    District Court of Appeal of Florida, Fifth District.
    Dec. 7, 2007.
    Rehearing Denied Jan. 10, 2008.
    Terrence E. Kehoe, of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Paul L. Savino appeals his convictions for lewd and lascivious molestation and battery. While none of the issues raised in the appeal merit reversal, one deserves discussion.

Mr. Savino contends that the trial court committed fundamental error when extensive portions of his audio-taped statement to the police were admitted into evidence without objection. During the interview, the interrogating officer repeatedly told Mr. Savino that the child victim was credible and that he believed Mr. Savino was lying. The State concedes that many of the comments on the tape, had they been objected to, would have been properly excluded. However, the tape was admitted without objection, and we cannot conclude that the error was fundamental. If a remedy exists, the matter is best left to appropriate postconviction proceedings.

Accordingly, we affirm Mr. Savino’s convictions and sentences, but remand for correction of a scrivener’s error in the written judgment, which mistakenly reflects a conviction for sexual battery, while Mr. Savino was found and adjudicated guilty of the lesser included offense of battery. In addition, because the State concedes the written judgment contains a $135 court costs and fines that the trial court previously ordered stricken, we also remand for correction of this scrivener’s error.

AFFIRMED; REMANDED for correction of scriveners’ errors.

ORFINGER, MONACO and LAWSON, JJ., concur.


text:
    Dean RUDD, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3469.
    District Court of Appeal of Florida, Fifth District.
    Dec. 7, 2007.
    Rehearing Denied Jan. 9, 2008.
    Dean A. Rudd, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Rudd appeals the summary denial of his Rule 3.800(a) motion in which he alleged that he was entitled to additional jail-time credit. The trial court denied the motion without attaching any portion of the record to refute Rudd’s facially sufficient claim. Accordingly, we reverse and remand for the trial court to either attach portions of the record refuting Rudd’s claim or to grant the requested relief. Friss v. State, 881 So.2d 38 (Fla. 5th DCA 2004).

REVERSED and REMANDED.

MONACO, LAWSON and EVANDER, JJ., concur.

      . Fla. R.Crim. P. 3.800(a).


text:
    V.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-202.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Based on a brawl between acquaintances, V.L. was found guilty of simple battery, a first degree misdemeanor, and placed on probation for one year. V.L. appeals, arguing that the trial court erred in precluding the testimony of his cousin, Christian Lopez, who was present at the time of the incident. The State concedes the trial court erred in prohibiting Lopez’s testimony, but argues that in light of an admission V.L. made at the time of the incident, the error was harmless. We disagree and reverse.

A petition for delinquency was filed against V.L. for an aggravated battery occurring on August 24, 2006. At a suppression hearing immediately preceding an adjudicatory hearing, the officer who arrested V.L. testified about a statement V.L. allegedly had made to him. According to the officer, he had been dispatched to a burglary when he saw the victim covered in blood. The victim told the officer that he had been playing basketball when he was jumped by a group of males. When asked to identify them, the victim immediately pointed toward V.L., who was standing with some others. After backup arrived, the officer approached and questioned the group. After one of the group began to scream, the officer handcuffed him. At this point, V.L. came forward and told the officer “that he [V.L.] was the one who hit the victim.” V.L. was arrested. The motion to suppress was denied.

During the suppression hearing, V.L.’s attorney learned about Lopez who had come to court that day with V.L. According to V.L.’s attorney, Lopez’s testimony would rebut the victim’s, not the arresting officer’s, testimony. Lopez was sworn in but told to wait outside.

The court then began to take evidence on the charges against V.L. The victim testified that on the evening of the incident he, his friend and two other boys had gone to a park where they encountered V.L. and a couple of V.L.’s cousins. The boys played basketball until V.L.’s brother arrived and began “talking trash.” According to the victim, he told V.L. that he “didn’t want to fight,” but V.L. “took out [a] knife and [ ] moved it around,” then put away the knife and punched the victim in the face. A “big brawl” ensued, and the victim was hit with a rock.

At this 'juncture, defense counsel explained to the court that Lopez wanted to testify and that Lopez would say that the victim, not V.L., was the aggressor and that V.L. never had a knife or a rock. However, the court ruled that Lopez could not testify because the defense could have learned of Lopez earlier and because no excusable neglect had been demonstrated.

“When a court determines that the State may be prejudiced because of a discovery violation, it should make every effort to find a remedy short of excluding the witness.” Fabregas v. State, 829 So.2d 238, 241 (Fla. 3d DCA 2002) (quoting Wheeler v. State, 754 So.2d 827, 830 (Fla. 2d DCA 2000)). Thus, although exclusion of a witness is a permissible sanction for violation of the discovery rules, it should be imposed only where the trial court has conducted an adequate inquiry “to determine whether other ■ reasonable alternatives can be employed to overcome or mitigate any possible prejudice,” Casseus v. State, 902 So.2d 294, 295 (Fla. 4th DCA 2005) (quoting Wilkerson v. State, 461 So.2d 1376, 1379 (Fla. 1st DCA 1985)) and where no other remedy suffices. See O’Brien v. State, 454 So.2d 675, 677 (Fla. 5th DCA 1984) (“Although it is within the judge’s discretion to exclude witnesses that most extreme sanction should never be imposed except in the most extreme cases, such as when purposeful, prejudicial and with intent to thwart justice.”).

The States concedes that the trial court improperly excluded Lopez’s testimony without looking into reasonable alternatives, but .nonetheless maintains that the error was harmless because the trial judge adjudicated V.L. guilty of simple battery-no more than what he admitted to the officer at the time of the incident. However V.L.’s claim was self defense and because Lopez’s testimony would support that claim (that is, that the victim and not V.L. was the aggressor) rather than contradict the officer’s testimony (that V.L. had hit the victim), we cannot say that exclusion of this testimony was harmless.

As explained in Cuervo v. State, 967 So.2d 155 (Fla.2007):

To justify affirmance of a conviction despite error at trial, the State must prove beyond a reasonable doubt that the error “did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The harmless error test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. Id. at 1139.

Accordingly, the determination of delinquency is vacated, and this case is remanded for retrial.


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    The STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, etc., Appellant, v. Jason TRAUTH and Luis Llamas, Appellees.
    No. 3D07-159.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.

      Thomas C. Mielke and Judson Chapman, for appellant.
    Michael A. Catalano, Miami, for appel-lees.
    Before GERSTEN, C.J., and RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

The State of Florida, Department of Highway Safety and Motor Vehicles (“the Department”), appeals an order awarding attorneys’ fees to Jason Trauth and Luis Llamas (“the drivers”). Because the order fails to specify a proper basis for the award, we reverse.

The drivers’ driving privileges were suspended after they were arrested for driving under the influence and refused to consent to blood alcohol level testing. They successfully challenged the suspensions in the circuit court, and were deemed entitled to appellate attorneys’ fees, solely on the basis of Florida Rule of Appellate Procedure 9.400.

The Department sought second-tier cer-tiorari review in this Court. While this Court’s review was pending, the circuit court referred the case to the county court to determine the amount of the fees. The county court awarded the drivers $38,360 in fees. This Court later summarily denied certiorari. State, Dep’t of Highway Safety v. Trauth, 959 So.2d 269 (Fla. 3d DCA 2007).

On appeal, the Department asserts that the trial court erred in awarding attorneys’ fees without making specific findings. The drivers contend the attorneys’ fees award should be affirmed for three reasons. First, they argue the law of the case doctrine compels dismissal of the appeal because this Court previously denied certio-rari relief. Second, they claim this Court lacks jurisdiction because the county court awarded the fees. Finally, they contend the trial court properly awarded the fees. The drivers are incorrect on all grounds.

Turning first to the law of the case doctrine, the doctrine only applies when certiorari is denied on the merits. Unelaborated certiorari denials are not deemed denials on the merits. Topps v. State, 865 So.2d 1253, 1258 (Fla.2004). Therefore, this Court’s prior summary unelaborated denial of the Department’s petition for writ of certiorari cannot be the “law of the case” regarding attorneys’ fees.

Turning next to jurisdiction, the Department contests the circuit court’s entitlement order, rather than the amount the county court awarded. An attorneys’ fee award, however, does not become final, and therefore appealable, until the amount of fees is set. Chaiken v. Suchman, 694 So.2d 115, 117 (Fla. 3d DCA 1997). Thus, the Department could not have appealed the circuit court’s decision until the county court set the fees. Accordingly, this Court has jurisdiction to review the circuit court’s entitlement order.

Lastly, rule 9.400 “governs the procedure to be followed with respect to appellate entitlement to fees,” but it “is procedural rather than substantive.” Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So.2d 514, 515 (Fla. 5th DCA 2002). Therefore, rule 9.400 cannot be the basis for an award of attorneys’ fees. An award of appellate attorneys’ fees must be supported by a particular contractual, statutory, or other substantive basis. United Servs. Auto. Ass’n v. Phillips, 775 So.2d 921 (Fla.2000). Because the circuit court appellate panel failed to state any basis for awarding attorneys’ fees, other than rule 9.400, the attorneys’ fee award cannot stand.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.


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    Willie Edward ISAAC, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1798.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.

      Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and SALTER, JJ.
   SALTER, J.

Willie Edward Isaac appeals a circuit court determination that he violated probation and his sentence following that determination. We affirm the finding that Isaac violated probation, but reverse with respect to one aspect of his sentence.

Isaac argues that the trial court reversibly erred by finding a violation of probation solely on the basis of hearsay evidence. The sole testimony was by the probation officer. No representative of the laboratory testified. Isaac is correct that the laboratory test in question (showing that Isaac was positive for cocaine) was hearsay, but in probation violation hearings such tests are admissible. Hayes v. State, 345 So.2d 765 (Fla. 4th DCA 1977). Isaac is also correct that a violation may not be sustained solely on the basis of hearsay evidence. Weaver v. State, 543 So.2d 443, 444 (Fla. 3d DCA 1989) (emphasis added).

The trial court’s determination was not based exclusively on hearsay, however. Isaac’s probation officer testified regarding his other violations, and she also personally conducted a field test (positive for cocaine and marijuana) before the urine sample was sent out for laboratory analysis. Although the laboratory results differed from the probation officer’s test in one respect — the laboratory test was negative for marijuana — the trial court properly concluded that the testimony was sufficient to support a violation. See Terry v. State, 777 So.2d 1093 (Fla. 5th DCA 2001).

Isaac’s second issue on appeal has merit. The sentencing judge determined that a sentence of twenty-five years was appropriate as to two of the original counts and fifteen years as to a third count, all to run concurrently. The sentencing judge initially added “He’s entitled to all CTS,” which would mean credit for time served on his original charges and plea agreement (the record indicates that he was arrested on those charges on October 16, 1998 and released by the Department of Corrections on June 19, 2003) as well as for time served following the re-arrest for violation of probation (July 21, 2005).

In a further colloquy at the sentencing hearing, however, the State asserted that the twenty-five years was to run “from [Isaac’s] most recent violation,” and the court apparently imposed sentence on that basis. What is also clear from the transcript, however, is that Isaac did not knowingly waive credit for time served on the original offenses “as part of a plea bargain.” Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000). Accordingly, we reverse and remand for the correction of Isaac’s sentence to reflect crédit for the time he actually served on the original charges.

The State argues that Isaac failed to preserve this point or, alternatively, that he must initially seek relief under Florida Rule of Criminal Procedure 3.800. We disagree, finding that the court resen-tenced Isaac with a “sentence which it might have originally imposed before placing [him] on probation,” paragraph 948.06(2)(b), Fla. Stat. (2006), and then expressed an intention to allow credit for time served. Because that credit was not waived as part of a plea bargain, and because defense counsel raised the point at the sentencing, a further motion and hearing are not required.

Affirmed in part, reversed in part, and remanded for correction of sentence.


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    Nathaniel BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2244.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Lett v. State, 805 So.2d 950 (Fla. 2d DCA 2001).


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    Lawanda SPARKS, Appellant, v. ALLSTATE CONSTRUCTION, INC., Appellee.
    No. 3D06-3195.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Billbrough & Marks and Geoffrey B. Marks, Coral Gables, for appellant.
    Richard A. Sherman; Jeffrey S. San-dler, for appellee.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The summary judgment entered for the defendant below in a slip and fall case is reversed because it did not conclusively establish the absence of material facts as to duty, negligence and legal causation.


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    R.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1630.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    R.R., a juvenile, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See K.L.J. v. State, 756 So.2d 188 (Fla. 3d DCA 2000).


text:
    Charles HAWKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2795.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Charles Hawkins, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Hawkins v. State, 937 So.2d 139 (Fla. 3d DCA 2005).


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    Keith MAJOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-605.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Robert I. Barrar, Miami, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Because we conclude that the mistaken statutory reference in the charging document did not affect the appellant’s substantial rights, see DuBoise v. State, 520 So.2d 260 (Fla.1988), the convictions and sentences under review are affirmed.


author: GERSTEN, C.J.

text:
    JABRI, INC., Appellant, v. U SAVE MOTORS, INC., etc., Appellee.
    No. 3D07-636.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Roniel Rodriguez IV, Miami, for appellant.
    Mark Alan Levine, Miami, for appellee.
    Before GERSTEN, C.J., and COPE, and SUAREZ, JJ.
   GERSTEN, C.J.

Jabri, Inc. (“Jabri”) appeals an order granting U Save Motors, Inc.’s (“U Save”) motion for return of funds. Because the trial court lacked jurisdiction to enter the order, we reverse.

Jabri sued U Save to recover on worthless checks and obtained a summary default judgment. To avoid execution on the judgment, U Save paid Jabri $16,266. Subsequently, U Save had the judgment set aside. Soon after the judgment was set aside, Jabri filed a notice of voluntary dismissal. After Jabri’s voluntary dismissal, the trial court entered an order directing Jabri to return the $16,266.

Jabri asserts that the trial court erred in entering the order because its voluntary dismissal divested the trial court of jurisdiction. U Save contends the trial court had the inherent power to order the return of the money even after the voluntary dismissal. We agree with Jabri.

The voluntary dismissal divested the trial court of the power to enter any subsequent orders. See Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla.1978). As the Court stated in Vas-ta:

The right to dismiss one’s own lawsuit during the course of a trial is guaranteed by Rule 1.420(a), endowing a plaintiff with unilateral authority to block action favorable to a defendant which the trial judge might be disposed to approve. The effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of “jurisdiction.”

360 So.2d at 69.

Accordingly, because the trial court lacked jurisdiction to enter the order directing the return of funds, we reverse.

Reversed and remanded.


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    Carlos DURAN, Appellant, v. Douglas LAPIN, Appellee.
    No. 3D07-1512.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Silver & Silver, and Ira S. Silver, for appellant.
    Tew Cardenas LLP, and Patrick J. Rengstl, and Jeffrey C. Schnieder and Stuart I. Grossman, Miami, for appellee.
    Before COPE, GREEN, and WELLS, JJ.
   PER CURIAM.

We affirm the order striking the appellant’s pleadings. Trial courts have discretion to strike a party’s pleadings or dismiss claims for fraud on the court. See Rios v. Moore, 902 So.2d 181 (Fla. 3d DCA 2005); Storm v. Allied Universal Corp., 842 So.2d 245 (Fla. 3d DCA 2003); O'Vahey v. Miller, 644 So.2d 550 (Fla. 3d DCA 1994). The record before us does not support the appellant’s contention that the trial court abused its discretion in this regard.

Affirmed.


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    Robert RABEDEAU, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1105.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   EVANDER, J.

This appeal presents the following question:

IS A DEFENDANT, ON RESEN-TENCING, ENTITLED TO CREDIT ON EACH NEWLY IMPOSED CONSECUTIVE SENTENCE FOR PRISON TIME ALREADY SERVED ON THE ORIGINAL CONCURRENT SENTENCES?

We answer the question in the affirmative and certify conflict with our sister court’s decision in Gisi v. State, 948 So.2d 816 (Fla. 2d DCA 2007), rev. granted, 952 So.2d 1189 (Fla.2007).

Rabedeau was originally convicted of three counts of lewd and lascivious conduct — all second degree felonies. For those convictions, he was ordered to serve three concurrent two-year terms of community control, followed by three concurrent thirteen year terms of probation. He subsequently violated his community control and was sentenced to three concurrent five year prison terms, followed by three concurrent nine year terms of probation. After Rabedeau completed his prison term, the State filed an affidavit alleging that he had violated several conditions of his probation. Rabedeau ultimately entered a guilty plea to the violation of probation charges. The trial court sentenced Rabe-deau to three consecutive ten year prison terms. Rabedeau was given credit for the five years already served in prison as to only one of the three counts.

Rabedeau subsequently filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). He contended he was entitled to five years of prison term credit on each of the three counts. Bound by the Gisi decision, the trial court denied Rabedeau’s motion.

Upon violating the probationary portion of a split sentence, a defendant is entitled, on resentencing, to credit for time served on the incarcerative portion. See Singletary v. Slay, 688 So.2d 319 (Fla.1997); Turner v. State, 967 So.2d 962 (Fla. 1st DCA 2007); Swain v. State, 845 So.2d 314 (Fla. 2d DCA 2003). Here, Rabedeau was serving a split sentence on three different felony offenses. Because his sentences ran concurrently, Rabedeau completed the incarcerative portion of each sentence. Accordingly, he is entitled to credit on each sentence.

We disagree with Gisi’s conclusion that acceptance of the defendant’s argument would “elevate a legal fiction into a reality.” Id. at 819. By its very nature, concurrent sentences enable a defendant to serve two or more sentences at a single time. Consider, for example, if Rabedeau had originally been sentenced to three concurrent five year prison terms mthout probation to follow. Upon serving the five years in prison, Rabedeau would clearly be found to have completed his five year prison sentence as to each of the three felony offenses, not just as to one offense. Such a result would not be considered an elevation of a legal fiction into reality even though the defendant served five, not fifteen, years in prison.

REVERSED and REMANDED for Re-sentencing; CONFLICT CERTIFIED.

SAWAYA and TORPY, JJ., concur.


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    MIAMI HERALD MEDIA COMPANY, Appellant, v. Marc David SARNOFF, Appellee.
    No. 3D07-2821.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Holland & Knight, and Sanford L. Bohr-er, and Scott D. Ponce, Miami, for appellant.
    Volpe, Bajalia, Wickes, Rogerson & Wachs, and Alan S. Wac'hs, and Leslie A. Wickes Jacksonville; Stephens, Lynn, Klein, La Cava, Hoffman ■ & Puya, and Jeffrey D. Swartz, Miami, for appellee.
    Before GREEN, SHEPHERD, and CORTINAS, JJ.
   GREEN, J.

The Miami Herald Media Company (“Miami Herald”) appeals an adverse declaratory judgment which determined that a document written by City of Miami Commissioner, Marc David Sarnoff, in his official capacity, was exempt from public disclosure pursuant to Chapter 119, Florida Statutes (2007). We reverse for the reasons which follow.

The salient facts of this case are undisputed. In May 2007, Commissioner Sarnoff received a telephone call from a former City of Miami official requesting a meeting to discuss the City’s affairs. Following this meeting, Commissioner Sarnoff prepared a written memorandum (“May Memorandum”) to “The File” summarizing the details of what the former City official had told him. The memorandum contains alleged factual information about possible criminal activity.

Under threat of subpoena, Commissioner Sarnoff turned the May Memorandum over to the Miami-Dade State Attorney’s office as part of an ongoing criminal investigation, retaining a copy for himself. Additionally, he was later required to provide a statement under oath regarding the meeting that was memorialized in the “May Memorandum.”

Thereafter, The Related Group, a Miami developer, submitted a public records request to Commissioner Sarnoffs office requesting certain documents, including the “May Memorandum.” Commissioner Sarnoff declined to produce the May Memorandum on the grounds that it did not come within the definition of a public record as set forth in Chapter 119, Florida Statutes. The Related Group then sued Commissioner Sarnoff in a two-count complaint for (1) failing to turn over the May Memorandum as a public record pursuant to Chapter 119, Florida Statutes, and (2) defamation for, inter alia, the matters contained within the “May Memorandum.”

As a result of The Related Group’s lawsuit, the Miami Herald learned of the existence of the May Memorandum and it too submitted a public records request to Commissioner Sarnoff seeking a copy of the May Memorandum pursuant to Chapter 119, Florida Statutes. The Related Group did not proceed with its suit and filed a voluntary dismissal of the same on October 11, 2007. On the very next day, October 12, 2007, the Miami Herald renewed its public records request for the May Memorandum to Commissioner Sarnoff. On that same day, The Related Group notified Commissioner Sarnoff by letter that it would reinstate its defamation action against him if he released the May Memorandum as a public record.

Unsure of his legal rights, Commissioner Sarnoff filed the declaratory judgment action below seeking a judicial determination as to whether the May Memorandum is a public record within the meaning of Chapter 119, Florida Statutes. The Miami Herald simultaneously filed its own complaint seeking production of the document pursuant to Chapter 119, Florida Statutes. As part of the proceedings below, the parties made the following stipulations:

— Commissioner Sarnoff attended the May meeting with the former City of Miami official in his official capacity as a City Commissioner.
— The meeting related to official business of the City of Miami.
— The May Memorandum was the final evidence record, memorialization, and explanation of the knowledge garnered from the meeting by Commissioner Sarnoff.
— The May Memorandum was Commissioner Sarnoffs final work product with regard to the information and was not the precursor or preliminary to any other document; and
— The May Memorandum is the only written record of what was said at the meeting.

In advance of the final hearing below, Commissioner Sarnoff filed a motion and supporting affidavit for the trial court’s in camera inspection of the “May Memorandum.” During the hearing, the parties stipulated to a procedure for conducting the in camera inspection that allowed counsel for the Miami Herald to also review the May Memorandum while still preserving the confidentiality of its contents during the pendency of this litigation.

After reviewing the Commissioner’s affidavit; the May Memorandum in camera; and hearing argument of counsel; the trial court concluded that the subject document was not a public record for the purposes of Chapter 119. The court essentially found that although the Commissioner prepared the May Memorandum to reflect a conversation that occurred in his capacity as a public official, the Commissioner stated that the creation of this document was that of a memo, for his personal use, at a later time. As such, the trial court concluded that the document did not fall within the meaning of a public record under Chapter 119. The Miami Herald timely instituted the instant appeal of this final order.

On this appeal, the Miami Herald argues that the trial court erred in its determination that the May Memorandum is not a public record because this document represents the final evidence of knowledge gained by a public official in his official capacity in connection with public business. We agree.

The statutory definition of “public records” is “all documents, ... regardless of the physical form [or] characteristics ... made ... in connection with the transaction of official business by any agency.” § 119.011(11), Fla. Stat. (2007). In Shevin v. Byron, Harless, Schaffer, Reid & Assoc., Inc., 379 So.2d 633, 640 (Fla.1980), the Florida Supreme Court, construed this statutory definition as follows:

a public record for purposes of section 119.011(1), is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type. To be contrasted with ‘public records’ are materials prepared as drafts or notes, which constitute mere precursors of governmental ‘records’ and are not, in themselves, intended as final evidence of the knowledge to be recorded.

As stated earlier, the subject memorandum in this case solely contains alleged factual information about possible criminal activity. It is undisputed that Commissioner Sarnoff is an “agency” for purposes of Chapter 119; he attended the subject meeting in his capacity as an elected city official; official city business was discussed at the meeting; and he drafted the May Memorandum to formalize and perpetuate his final knowledge gained at that meeting. The subject document was not a draft, or a note containing mental impressions that would later form a part of a government record. Compare Justice Coalition v. First District Ct. of Appeal Judicial Nominating Comm’n, 823 So.2d 185 (Fla. 1st DCA 2002)(individual commission members notes to selves are not designed to perpetuate, communicate or formalize knowledge of some type, and are not public records); Times Publ’g Co. v. City of St. Petersburg, 558 So.2d 487 (Fla. 2d DCA 1990)(handwritten notes not intended to perpetuate, communicate or formalize knowledge, but instead are precursor of governmental records not public records).

In fact, Shevin goes on to explain that “[ijntra-office memoranda communication information ... merely prepared for filing ... would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.” Id., 379 So.2d at 640. Hence, the document in question, which contains no mental impression, but merely recites information iterated at the meeting, is just such a memorandum to the file.

Based on the foregoing, the judgment is reversed and the cause remanded with instruction to the trial court to enter declaratory judgment in Miami Herald’s favor, ordering disclosure of the memorandum.

This opinion shall take effect immediately notwithstanding the filing of any motion for rehearing or rehearing en banc.

Reversed and remanded with directions.

      . The Commissioner did not appear at the hearing below.

        . See § 119.011(2), Fla. Stat. (2007).