author: PER CURIAM. BELL, J.,

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (NO. 2005-7). In re Standard Jury Instructions in Civil Cases (No. 2005-01).
    Nos. SC05-1961, SC05-1999.
    Supreme Court of Florida.
    Sept. 7, 2006.
    Paula S. Saunders, Co-Chair, FACDL Amicus Curiae Committee, Office of the Public Defender, Second Judicial Circuit, and Michael Ufferman, P.A., Co-Chair, Tallahassee, FL, for Opponents.
   PER CURIAM.

We have for consideration proposed new jury instructions for use in civil or criminal cases in which the services of an interpreter or translator are used.- We have jurisdiction. See art. V, § 2(a), Fla. Const.

These cases came to the Court as two separate reports, one proposing new jury instructions for criminal cases (SC05-1961), and the other proposing new jury instructions for civil cases (SC05-1999). We consolidate these cases.

BACKGROUND

In 2002, the Court authorized for publication and use several new and amended jury instructions proposed by the Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Criminal Committee). See Standard Jury Instructions in Criminal Cases-Submission 2001-1, 824 So.2d 881 (Fla.2002). Among the proposals was a new jury instruction governing the use of transcripts when a recorded conversation in English is introduced into evidence. The Court made several changes to the proposals based on some of the comments received but made no changes to the proposed instruction governing the use of transcripts, which became instruction 2.6. Id. at 900.

The Court referred concerns raised by two commentators to the Criminal Committee for consideration. One of these had suggested that a jury instruction governing the use of conversations recorded in a foreign language and transcripts of the English translations of those conversations was necessary. The comment cited to United States v. Valencia, 957 F.2d 1189 (5th Cir.), cert. denied, 506 U.S. 889, 113 S.Ct. 254, 121 L.Ed.2d 185 (1992), for the proposition that it is permissible for the English translation to be introduced into evidence while the foreign language recording is excluded.

The Court instructed the Criminal Committee to draft instructions for publication for comment. The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Civil Committee) was also asked to consider the issue and to submit proposed civil jury instructions.

On October 3, 2005, the Civil Committee filed Report No. 05-01, proposing new instructions for use in civil cases in which an interpreter or translator is used. The Civil Committee submitted two versions. One version instructed the jury to rely exclusively on the official English translation in their deliberations, and the other version instructed the jury about what to do in the event a juror disagrees with the official English interpretation. Both versions had a preliminary instruction; an instruction to be given immediately before a foreign language witness testifies explaining the need for an interpreter; an oath to be given to the interpreter; an instruction to be given after the interpreter and witness have been sworn but before the questioning of the witness begins; and a final instruction. The second version had one additional instruction that instructed bilingual or multilingual jurors about what to do if they questioned the accuracy of the English translation of the testimony. After submission, the proposed instructions were published for comment in The Florida Bar News. No comments were received.

On October 26, 2005, the Criminal Committee filed Report No. 2005-07, proposing five new instructions for use in criminal cases in which an interpreter or translator is used: (1) preliminary instructions (instruction 2.8); (2) instructions for use during trial (instruction 2.9); (3) instructions for use when a transcript of a recording in a foreign language is used and the accuracy of the transcript is not in dispute (instruction 2.10); (4) instructions for use when a transcript of a recording in a foreign language is used and the accuracy of the transcript is in dispute (instruction 2.11); and (5) closing instructions (instruction 2.12).

After submission, the proposed criminal instructions were published for comment in The Florida Bar News. One comment, from the Florida Association of Criminal Defense Lawyers (the FACDL), was received. The FACDL proposed three changes to the proposed instructions: (1) the paragraph instructing jurors about what to do if they disagreed with the English interpretation or translation should be included in all of the proposed instructions; (2) the word “may” should be changed to the word “must” in the paragraph instructing jurors to notify the court if they disagreed with the English interpretation or translation; and (3) jurors should be instructed to pass a note to the bailiff instead of raising their hands to alert the court to the fact that they disagreed with the English interpretation or translation. In its response, the Criminal Committee agreed with the FACDL that the paragraph should be added to all of the instructions. It suggested that “may” be replaced with “should” instead of “must.” It explained that it had opted to instruct jurors to raise their hands because it did not want to affect a judge’s discretion as to whether to allow jurors to take notes.

With regard to the instructions proposed by the Criminal Committee, we authorize the use and publication of instruction 2.12 (Closing Instructions) as this instruction was proposed, without change. We authorize the use and publication of instructions 2.8 (Preliminary Instructions), 2.9 (Instructions During Trial), and 2.10 (Transcript — Accuracy Not in Dispute), with minor revisions. In these instances, we add the paragraph instructing jurors to raise their hands to signal the court that they disagreed with the English interpretation or translation to all of the instructions and to change the word “may” to “should.”

We decline to authorize instruction 2.11 (Transcript — Accuracy in Dispute) for use and publication pending further study and reports from both the Criminal and Civil Committees. We are especially interested in the issue of whether the court or the jury should be responsible for deciding which translation of foreign language testimony is correct when the parties disagree.

We authorize, these same instructions, also excluding instruction 2.11, for publication and use in civil cases. However, the instructions will be numbered as shown in the appendix for inclusion in the published standard jury instructions in civil cases.

Upon consideration of the committees’ reports, the comments filed, and the arguments presented during oral argument, we hereby authorize the publication and use of the instructions as set forth in the appendix attached to this opinion. In doing so, we express no opinion on the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions or contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the committees and are not necessarily indicative of the views of this Court as to their correctness or applicability.' The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

BELL, J., concurs in part and dissents in part with an opinion.

BELL, J.,

concurring in part and dissenting in part.

I concur with the majority opinion in all aspects except I would authorize instruction 2.11 (Transcript — Accuracy in Dispute) for use and publication. I believe the Criminal Jury Instructions Committee has adequately studied the matter and made a reasonable proposal that will provide appropriate guidance for trial courts.

APPENDIX

CRIMINAL JURY INSTRUCTIONS

2.8 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

PRELIMINARY INSTRUCTIONS

[Language used] may be used during this trial.

The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must accept the English [interpretation] [translation]. You must disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation.

Comment

This instruction should be given as part of the preliminary instructions to the jury. See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56. (9th Cir.1995).

2.9 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

INSTRUCTIONS DURING TRIAL

Introduction and Oath to Interpreter

The law requires that the court appoint a qualified interpreter to assist a witness who does not readily speak or understand the English language in testifying. The interpreter does not work for either side in this case. [He] [She] is completely neutral in the matter and is here solely to assist us in communicating with the witness. [He] [She] will repeat only what is said and will not add, omit, or summarize anything. The interpreter in this case is (insert name of interpreter). The oath will now be administered to the interpreter.

Oath to Interpreter

Do you solemnly swear or affirm that you will make a true interpretation to the witness of all questions or statements made to [him] [her] in a language which that person understands, and interpret the witness’s statements into the English language, to the best of your abilities, So Help You God.

Foreign Language Testimony

You are about to hear testimony of a witness who will be testifying in [language used]. This witness will testify through the official court interpreter. Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of the witness’s testimony. You must disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation.

Comment

This instruction should be given to the jury immediately before the testimony of a witness who will be testifying through the services of an official court interpreter. Cf. United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998) (jury properly instructed that it must accept translation of foreign language tape-recording where the accuracy of the translation is not in issue); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995).

2.10 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE (ACCURACY NOT IN DISPUTE)

You are about to listen to a tape recording in [language used]. Each of you has been given a transcript of the recording which has been admitted into evidence. The transcript is a translation of the foreign language tape recording.

Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must accept the English translation contained in the transcript and disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English translation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the translation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English translation as provided by the court interpreter and disregard any other contrary translation.

Comment

This instruction is appropriate immediately prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is not an issue. See, e.g., United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995).

2.12 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

CLOSING INSTRUCTIONS

[Language used] has been used during this trial.

The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English [interpretation] [translation]. You must disregard any different meaning.

If, during the testimony there was a question as to the accuracy of the English interpretation and steps were taken to resolve any discrepancies and despite these efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation.

Comment

See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998); United States v. Rrapi 175 F.3d 742, 748 (9th Cir.1999); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995).

CIVIL JURY INSTRUCTIONS

1.9 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

PRELIMINARY INSTRUCTIONS

[Language used] may be used during this trial.

The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must accept the English [interpretation] [translation]. You must disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation.

Comment

This instruction should be given as part of the preliminary instructions to the jury. See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995).

1.10 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

INSTRUCTIONS DURING TRIAL

Introduction and Oath to Interpreter

The law requires that the court appoint a qualified interpreter to assist a witness who does not readily speak or understand the English language in testifying. The interpreter does not work for either side in this case. [He] [She] is completely neutral in the matter and is here solely to assist us in communicating with the witness. [He] [She] will repeat only what is said and will not add, omit, or summarize anything. The interpreter in this case is (insert name of interpreter). The oath will now be administered to the interpreter.

Oath to Interpreter

Do you solemnly swear or affirm that you will make a true interpretation to the witness of all questions or statements made to [him] [her] in a language which that person understands, and interpret the witness’s statements into the English language, to the best of your abilities, So Help You God.

Foreign Language Testimony

You are about to hear testimony of a witness who will be testifying in [language used]. This witness will testify through the official court interpreter. Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of the witness’s testimony. You must disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation.

Comment

This instruction should be given to the jury immediately before the testimony of a witness who will be testifying through the services of an official court interpreter. Cf. United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998) (jury properly instructed that it must accept translation of foreign language tape-recording where the accuracy of the translation is not in issue); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995).

1.11 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE (ACCURACY NOT IN DISPUTE)

You are about to listen to a tape recording in [language used]. Each of you has been given a transcript of the recording which has been admitted into evidence. The transcript is a translation of the foreign language tape recording.

Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must accept the English translation contained in the transcript and disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English translation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the translation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English translation as provided by the court interpreter and disregard any other contrary translation.

Comment

This instruction is appropriate immediately prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is not an issue. See, e.g., United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995).

1.12 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

CLOSING INSTRUCTIONS

[Language used] has been used during this trial.

The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know [language used], it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English [interpretation] [translation]. You must disregard any different meaning.

If, during the testimony there was a question as to the accuracy of the English interpretation and steps were taken to resolve any discrepancies and despite these efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation.

Comment

See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998); United States v. Rrapi, 175 F.3d 742, 748 (9th Cir.1999); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir.1995).


source: Caselaw Access Project

author: GERSTEN, Judge.

license: Public Domain

text:
    Marie WROY, Appellant, v. NORTH MIAMI MEDICAL CENTER, LTD., d/b/a Parkway Regional Medical Center, a Florida limited partnership, Robert J. Poppiti, Jr., M.D. and Mt. Sinai Medical Center of Florida, Inc., a Florida corporation, Appellees.
    No. 3D05-1341.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    Rehearing Denied Oct. 5, 2006.
    Virginia S. Forbes; Lauri Waldman Ross, Miami, for appellant.
    Wicker, Smith, O’Hara, McCoy, Graham & Ford, and Shelley H. Leinicke, Fort Lauderdale, for appellees, Robert J. Popp-iti, Jr., M.D. and Mt. Sinai Medical Center of Florida, Inc.
    Parenti, Falk, Waas, Hernandez Corti-na, and Gail Leverett Parenti, Coral Gables, for appellee, North Miami Medical Center, Ltd. d/b/a Parkway Regional Medical Center.
    Before COPE, C.J., and GERSTEN, and SHEPHERD, JJ.
   GERSTEN, Judge.

Marie Wroy (“Wroy”) appeals an adverse summary judgment entered in favor of North Miami Medical Center, d/b/a/ Parkway Regional Medical Center (“Parkway”), Dr. Robert J. Poppiti, Jr. (“Poppi-ti”), and Mt. Sinai Medical Center of Florida (“Mt. Sinai”) (collectively “the defendants”). We affirm.

Parkway performed a routine mammogram on Wroy. The reporting radiologist recommended that Wroy obtain further imaging studies. However, Parkway neither provided the report to Wroy nor notified her of these findings.

Seventeen months later, Mt. Sinai conducted a routine mammogram on Wroy and discovered a nodular density in Wroy’s left breast. Based on these results, Wroy underwent additional studies, and Poppiti diagnosed Wroy with invasive medullary breast cancer. Wroy underwent surgery and received radiation treatment. All of the cancer was removed, and Wroy has been cancer-free for the past three years.

Wroy received a second opinion and now claims that Poppiti misdiagnosed the type of cancer. Wroy alleges that she actually had a more aggressive cancer that required chemotherapy treatment.

Wroy sought damages against Parkway for failure to provide her with notice of an abnormal mammogram, which resulted in a seventeen-month delay in the diagnosis of breast cancer. Wroy also sought damages against Poppiti and Mt. Sinai for the misdiagnosis and incorrect treatment of her cancer.

Thereafter, the defendants moved for summary judgment on the issue of causation. The trial court granted partial summary judgment in favor of the defendants, finding there was no causal relationship between the alleged negligence and the damages Wroy claimed.

Wroy appeals contending the trial court erred in granting summary judgment claiming the existence of material facts foreclose summary judgment. After reviewing the record, however, we conclude the trial court properly entered summary judgment in favor of the defendants.

To prevail in a medical malpractice case, the plaintiff must establish: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached that duty of care; and (3) that the breach of care proximately caused the injuries the plaintiff claims and that damages are owed. Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015 (Fla.1984); Miller v. Foster, 686 So.2d 783 (Fla. 4th DCA 1997). The concern in this case is the proximate cause issue.

In Gooding, the Florida Supreme Court acknowledged that Florida courts follow the “more likely than not” standard of causation and require proof that the negligence probably caused the plaintiffs injuries. Gooding, 445 So.2d at 1018. In other words, the plaintiff must show that there is a 51% or more likelihood that the defendant’s negligence caused the plaintiffs injuries. Gooding, 445 So.2d at 1020. Applying this standard to the instant case, we agree with the trial court that there is no causal relationship between the alleged negligence and any damages to Wroy.

The defendants presented evidence that there was no increase in the size of Wroy’s tumor from the time of her first mammogram, to Poppiti’s later diagnosis of breast cancer. They also presented evidence that the physicians would have proceeded with the same treatment if they had discovered the cancer at the earlier mammogram. Further, the physicians agreed that Wroy has a 90-95% chance of survival, and even if she did háve the more aggressive cancer, Wroy still has an 88% chance of survival.

In opposition to the motion for summary judgment, Wroy presented pre-suit doctor affidavits claiming that the defendants’ conduct caused a delay in her diagnosis and a decreased chance of surviving breast cancer. However, even assuming these affidavits are valid, they do not create a material issue of fact. They do not establish a “more likely than not” chance of a decrease in Wroy’s chance of survival or reoccurrence of cancer. See Sweet v. Sheehan, 932 So.2d 365 (Fla.2006); Holl v. Talcott, 191 So.2d 40 (Fla.1966)(expert’s opinions were nothing more than naked assertions unsupported by an expert medical explanation of its basis or the reason it was reached); cf. Swain v. Curry, 595 So.2d 168 (Fla. 1st DCA 1992)(experts’ testimony established material facts at issue, where testimony conflicted as to the type of treatment patient would have received if cancer was diagnosed at an earlier time, and established the patient has a “more likely than not” 65,% chance of reoccurrence of cancer based on negligent diagnosis of breast cancer).

Wroy did not submit any evidence that the defendants’ failure to immediately diagnose Wroy’s breast cancer decreased her life expectancy. See Mezrah v. Bevis, 593 So.2d 1214 (Fla. 2d DCA 1992); Noor v. Cont’l Cas. Co., 508 So.2d 363 (Fla. 2d DCA 1987). Even assuming.the defendants were negligent, Wroy has not shown any damages. At this point, all the damages Wroy seeks are speculative based on the possibility that the cancer may reoccur in the future. A mere possibility of future causation is not enough, and when the matter is purely speculativei the court has a duty to .direct a verdict for the defendant. Gooding, 445 So.2d at 1018.

We understand that Wroy would rather have been diagnosed at the earlier mammogram, and that she is concerned about whether she received the correct treatment. However, Wroy failed to present any evidence that the defendants’ conduct resulted in a “more likely than not” chance of reoccurrence of the breast cancer or that because of the defendants’ alleged negligence, Wroy suffered any injury.

Wroy is currently cancer-free. She has no evidence of metastasis and has gone three years without a reoccurrence. Every year that Wroy remains cancer-free increases her survival chances.

Accordingly, we affirm the trial court’s order granting summary judgment because Wroy has not shown the defendants’ alleged negligence “more likely than not” resulted in any injuries. Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000); Noor, 508 So.2d at 365.

Affirmed.


author: PER CURIAM.

text:
    Esther RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-943.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Rehearing Denied Oct. 3, 2006.

      Esther Rivera, in proper person.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and CORTINAS, J.J.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(A) & (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(A) & (D); see also Fla. R.Crim. P. 3.850(d).

Reversed and remanded for further proceedings.


text:
    Jeff OSBORN, Petitioner, v. BOARD OF COUNTY COMMISSIONERS, etc., et al., Respondents.
    No. 3D06-52.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Oct. 3, 2006.

      Andrew M. Tobin, Tavernier, for petitioner.
    Vernis & Bowling and Kerry L. Willis and Scott Black, Islamorada; Timothy N. Thornes, Key Largo, for respondents.
    Before RAMIREZ and WELLS, JJ., and LEVY, Senior Judge.
   PER CURIAM.

On first-tier certiorari review from an administrative decision, “the circuit court must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.” City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). The Petitioner is, in effect, entitled to consideration of whether the administrative agency followed its laws and regulations, and whether the agency’s findings are supported by competent substantial evidence. Baker v. Metro. Dade County, 774 So.2d 14 (Fla. 3d DCA 2001). Thus, at first tier level, the circuit court may correct any errors made below: jurisdictional, procedural or substantive; and judgments may be modified, reversed, remanded with directions, or affirmed. See G-W Dev. Corp. v. Village of N. Palm Beach Zoning Bd. of Adjustment, 317 So.2d 828, 830-831 (Fla. 4th DCA 1975).

Because the circuit court’s order, in different places, contains verbiage from two different standards of review, in the instant case, it is unclear which standard the court employed in reaching its conclusion. Accordingly, we grant certiorari for the sole purpose of allowing the circuit court to indicate which standard of review it used.

Petition for Writ of Certiorari granted.


author: WHATLEY, Judge.

text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, a Florida Corporation, Petitioner, v. Michelle REAUME, individually and on behalf of all others similarly situated, Respondent.
    No. 2D05-6007.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.
    Rehearing Denied Oct. 3, 2006.

      Edward M. Waller, Carl R. Nelson, and Hala Sandridge of Fowler, White, Boggs, & Banker, P.A., Tampa, for Petitioner.
    James E. Felman, Katherine Earle Yanes, and Stuart C. Markman of Kynes, Markman and Felman, P.A., and Ed Suarez of Law Offices of Ed Suarez, P.A., Tampa, for Respondent.
    Steven H. Parton, General Counsel, and Paul A. Norman, Assistant General Counsel, Tallahassee, for Amicus Curiae The Office of Insurance Regulation.
   WHATLEY, Judge.

Michelle Reaume sued her insurer, Progressive Express Insurance Company, alleging that Progressive collected unlawful and excessive premium finance charges in violation of section 627.901, Florida Statutes (2002). Reaume alleged that Progressive gave a discount to customers who paid in full, and she argued that the difference between the amount of her base rate as an installment customer and the amount of the base rate of paid-in-full customers who received this discount should be considered a financing charge. Reaume further argued that when this financing charge is added to Progressive’s regular financing charge, the total charge is above the maximum allowed by section 627.901.

Reaume and Progressive filed competing motions for summary judgment. Progressive argued that the difference between the amount installment customers pay and the amount paid-in-full customers pay is not a financing charge. It reasoned that installment customers were not charged more for their premium but, instead, paid-in-full customers were given a discount on their premiums. Progressive noted that it was required to obtain approval from the Florida Office of Insurance Regulation (hereinafter “OIR”) before offering the discount and that the OIR is required to determine whether a company’s insurance rates are “excessive, inadequate, or unfairly discriminatory” pursuant to section 627.0651(2), Florida Statutes (2002). Therefore, Progressive contended that Re-aume was first required to seek administrative relief with the OIR before pursuing a civil cause of action. The circuit court disagreed and granted Reaume’s motion for summary judgment. The court found that Progressive’s actuarially based paid-in-full discount was an illegal finance charge. Progressive thereafter filed this petition for writ of certiorari seeking review of the summary judgment. We grant the petition.

This case is similar to State Farm Mutual Automobile v. Gibbons, 860 So.2d 1050 (Fla. 5th DCA 2003). Gibbons sued State Farm alleging that it had violated section 627.0651(12), Florida Statutes (2002), which prohibits companies from including in their rate base monies paid on punitive and bad faith claims and related costs and attorney’s fees. State Farm moved for a judgment on the pleadings, arguing that Gibbons was required to challenge the approved rates in an administrative proceeding in the OIR. The circuit court issued a stay to permit Gibbons to seek administrative relief with the OIR. However, Gibbons asked the OIR to deny her claim so that she could continue her circuit court action. The OIR then granted Gibbons’ request and the circuit court lifted the stay.

State Farm thereafter filed a petition for writ of certiorari in the Fifth District. The Fifth District agreed with State Farm and held that “the exclusive remedy for asserting a claim based on a purported violation of section 627.0651, is to seek administrative review pursuant to section 627.371, Florida Statutes (2002). Furthermore, once administrative review is completed, the exclusive jurisdiction for judicial review is in the District Court of Appeal. § 120.68(2)(a), Fla. Stat. (2002).” Id. at 1052. The Fifth District granted State Farm’s petition for writ of certiora-ri, concluding that Gibbons’ complaint should have been dismissed, because she failed to pursue and exhaust her administrative remedies and she failed to request review in the correct court. Id.

Here, we note that the OIR has primary jurisdiction over the setting of insurance rates. Section 627.371(1) further provides as follows:

Any person aggrieved by any rate charged, rating plan, rating system, or underwriting rule followed or adopted by an insurer, and any person aggrieved by any rating plan, rating system, or underwriting rule followed or adopted by a rating organization, may ... make written request of the insurer or rating organization to review the manner in which the rate, plan, system, or rule has been applied with respect to insurance afforded her or him.... Any person aggrieved by the refusal of an insurer or rating organization to grant the review requested, or by the failure or refusal to grant all or part of the relief requested, may file a written complaint with the department, specifying the grounds relied upon. If the department has already disposed of the issue as raised by a similar complaint or believes that probable cause for the complaint does not exist or that the complaint is not made in good faith, it shall so notify the complainant....

Pursuant to this section, Reaume was required to first seek relief with the OIR. See Cmtys. Fin. Corp. v. Fla. Dep’t of Envtl. Regulation, 416 So.2d 813 (Fla. 1st DCA 1982) (“It is now well settled that where adequate administrative remedies are available, it is improper to seek relief in the circuit court before those remedies are exhausted.”). After Reaume exhausted this administrative review, she could then seek relief in this court. Gibbons, 860 So.2d 1050; § 120.68(2)(a), Fla. Stat. (2002) (“Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.”).

Certiorari relief is appropriate where a party has failed to first exhaust his or her administrative remedies. Metro. Dade County v. Recchi Am., Inc., 734 So.2d 1123 (Fla. 3d DCA 1999). In University of Miami v. Klein, 603 So.2d 651, 652 (Fla. 3d DCA 1992), the Third District held that a circuit court departs from the essential requirements of law where it permits parties to litigate in that court where there is a contractual or legal obligation to proceed only administratively. The Third District further noted that certiorari relief, not a writ of prohibition, was appropriate where the circuit court had jurisdiction to determine whether it had jurisdiction to proceed. Id. As the Florida Supreme Court noted in Mandico v. Taos Construction, Inc., 605 So.2d 850, 854 (Fla.1992), the determination regarding whether administrative review is first required often involves a factual determination, and a circuit court has jurisdiction to make this determination. The court in Mandico, 605 So.2d at 854, held that “[p]rohibition lies to prevent an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction.” Here, the circuit court had jurisdiction to determine whether Reaume was required to first seek administrative review with the OIR. Because the circuit court erroneously determined that Reaume was not required to do so and that it had jurisdiction to proceed, a writ of certiorari is the appropriate remedy in the instant case.

Finally, we hold that certiorari is the appropriate remedy here, because without this relief Progressive will suffer irreparable injury which cannot be remedied by direct appeal. As Progressive notes, if it follows the trial court’s order and discontinues the discount, it will be violating OIR’s approved premium rates and all of its paid-in-full customers will be required to pay a higher rate. However, if it continues to offer the OIR approved rates, it will incur additional liability under the trial court’s order.

Accordingly, we grant the petition for writ of certiorari and quash the circuit court order granting summary judgment in favor of Reaume.

Petition for writ of certiorari granted.

SILBERMAN and WALLACE, JJ., Concur.

      . A petitioner for writ of certiorari must show both that the trial court departed from the essential requirements of law and an injury that cannot be remedied on direct appeal. Fla. Fish & Wildlife Comm’n v. Pringle, 770 So.2d 696 (Fla. 1st DCA 2000).


author: COPE, C.J.

text:
    Victor J. LABRUZZO, Appellant, v. THE LOFTS AT SOUTH BEACH, INC., Appellee.
    No. 3D05-920.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.
    Rehearing Denied Oct. 5, 2006.
    Kimbrell & Hamann and Bradford A. Thomas, Miami, for appellant.
    Gilbride, Heller & Brown and Dyanne E. Feinberg and Elizabeth A. Izquierdo, Miami, for appellee.
    Before COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.
   COPE, C.J.

Victor Labruzzo (“Labruzzo”) appeals from a final judgment in favor of The Lofts at South Beach, Inc. (“The Lofts”). We reverse.

Although there is a long and complicated history of varying relationships between the parties to this action, it is unnecessary to restate the entire history. For our purposes it is sufficient to state that The Lofts is a corporation which is the owner and developer of a condominium project and that at the times relevant to this proceeding Labruzzo was managing agent of and a former shareholder in The Lofts. Labruzzo’s shares had been transferred to South Beach International Investments, Inc. (“SBI”) which had assumed the role of managing shareholder of The Lofts while Labruzzo acted as managing agent. The other shareholder in The Lofts was Bart Seidler as trustee for the Bart Seidler Revocable Trust (“Seidler”).

At issue here are three different actions taken by Labruzzo: 1) the deposit of a check from a potential purchaser of a condominium at The Lofts into SBI’s account rather than The Lofts’ escrow account; 2) the amendment of several agreements to purchase units at The Lofts to make the agreements assignable; and 3) receipt of fees for locating assignees for the amended agreements after his position at The Lofts had been terminated.

As to the deposit of the check into SBI’s account, the record shows that although the potential purchaser was refunded his money by Seidler on behalf of The Lofts, SBI continues to hold the proceeds of the check. While we recognize that the trial court was correct in its determination that the monies should have been deposited into The Lofts escrow account, The Lofts can be made whole by the transfer of the money from SBI to The Lofts. As the money is available to repay The Lofts, we do not think that The Lofts suffered any injury for which it must be compensated by Labruzzo. That being so, judgment should not have been entered against him on this issue.

On the issue of amendment of several of the purchase agreements, the testimony showed that SBI as managing shareholder would allow the agreements to be amended to waive the non-assignability clause where such a waiver was necessary in order to make a sale. That being so, there was no breach of duty by Labruzzo.

Since there was no breach of duty in the amendment of the agreements, there is no liability to The Lofts for Labruzzo’s subsequent receipt of real estate commissions (after he ceased working for The Lofts) for locating buyers to take over as assignees for the original purchasers. Further, as amendment of the contracts did not amount to a breach of fiduciary duty, the cases dealing with recovery of a secret profit by an agent are inapplicable.

While it appears that Labruzzo received real estate commissions while he was not licensed, see § 475.42, Fla. Stat. (2002), the remedy is to refer the matter to the Division of Real Estate of the Florida Department of Business and Professional Regulation, which The Lofts already did. The trial court allowed The Lofts to recover the real estate commissions under Vista Designs, Inc. v. Silverman, 774 So.2d 884, 886 (Fla. 4th DCA 2001). That case is inapplicable because the party suing for return of the commission in that case was the party which had paid it. In the present case, The Lofts did not pay the commissions and is not entitled to recover them.

For the stated reasons, we reverse the judgment and remand for entry of judgment in favor of Labruzzo. In light of the foregoing, we do not need to reach the issue of disclosure of the settlement agreement.

Reversed and remanded for further proceedings consistent herewith.


text:
    Agustin C. SANZ, M.D., Agustin C. Sanz, M.D., P.A., and Pronational Insurance Company, Appellants, v. Alwyn G. CARTER, individually and as Personal Representative of the Estate of Irma Imelda Carter, deceased, on behalf of the Estate and its lawful survivors, to wit: Alwyn G. Carter, as surviving husband; Stephen Alex Carter, as surviving son; and Lauri Melisa Kathy Carter, as surviving daughter, Tania Serrano, M.D.; Just Ladies Healthcare, P.A.; and HCA-Health Services of Florida, Inc., d/b/a St. Lucie Medical Center, Appellees.
    No. 4D05-2518.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Rehearing Denied Oct. 20, 2006.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellants.
    Darryl L. Lewis, Rosalyn Sia Baker-Barnes of Searcy Denney Scarola Barn-hart & Shipley, P.A.; Philip M. Burlington and Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for appellee Alwyn G. Carter, individually and as personal representative of the Estate of Irma Imelda Carter, deceased.
   BATEMAN, THOMAS H., Ill, ■ Associate Judge.

Appellants, Dr. Agustín C. Sanz and Pronational Insurance Company, appeal a jury verdict and final judgment in favor of the appellees, the Carters. Appellants, the defendants in the trial court, raise four issues in this appeal. Finding merit as to one issue, we reverse and remand for a new trial. We do not address the remaining issues.

Prior to trial, the judge entered an order limiting the parties to calling no more than two experts in any one field. During the trial, which lasted fifteen days, the Carters were allowed to present their two expert witnesses to the jury. During the presentation of the defendants’ case, Sanz testified in his own defense and called Dr. Genecin as his first expert witness. Both Sanz and Genecin specialized in internal medicine. On the thirteenth day of trial, Sanz attempted to call his second expert witness, Dr. Inwood, to the stand. Dr. Inwood was also a doctor of internal medicine. The Carters’ counsel objected, arguing to the trial judge that because the defendant had already testified to the standard of care, he should not be permitted to call a second expert witness who was also an internal specialist. Counsel reasoned that because Sanz had already testified, the second expert witness’s testimony would be cumulative. He also asserted that because Sanz had testified, the witness being called was in reality a third expert. Counsel asserted that because he was permitted to present only two experts, the defendant should not be permitted to call what would be, in effect, a third expert witness. The trial judge sustained the objection and refused to let Sanz’s second expert witness testify. This was error.

While a trial judge has the power to vacate or modify a predecessor judge’s interlocutory ruling, a successor judge should hesitate to undo the work of the other judge, if possible. See Hull & Co., Inc. v. Thomas, 834 So.2d 904 (Fla. 4th DCA 2003). Moreover, a limitation on the number of witnesses a party may call during trial should be imposed only after trial counsel has had fair warning. Stewart Agency v. Lesueur, 785 So.2d 1242 (Fla. 4th DCA 2001). The successor judge’s decision in this case to exclude Sanz’s expert witness on the thirteenth day of trial without prior notice or warning was an abuse of discretion. The error was not harmless. Limiting the number of expert witnesses Sanz could call, so late in the case as to preclude any change in strategy, materially prejudiced his ability to put forth his best defense and resulted in a miscarriage of justice. Therefore, Sanz is entitled to a new trial. City of Hollywood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977) (court should grant a new trial when it concludes that the error complained of has resulted in a miscarriage of justice). Cf. Dones v. Moss, 884 So.2d 230 (Fla. 2d DCA 2004); Midtown Enters., Inc. v. Local Contractors, Inc., 785 So.2d 578 (Fla. 3d DCA 2001).

STEVENSON, C.J., and STONE, J., concur.

      . The trial judge was not the same judge who, prior to trial, ruled the parties would be permitted to call two expert witnesses at trial.


text:
    Burke Barrington LAWTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3527.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2006.
    Rehearing Denied Sept. 27, 2006.
    Burke Barrington Lawton, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, C.J., BARFIELD, and ALLEN, JJ., concur.


text:
    Christopher BECKER, Appellant, v. Angela JOHNSON, Appellee.
    No. 1D05-5909.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.
    Rehearing Denied Sept. 27, 2006.

      Christopher Becker, pro se, Appellant.
    Bryan S. Gowdy of McGuire Woods LLP, Jacksonville; Kristi Beth Luna of Jacksonville Area Legal Aid, Jacksonville, for Appellee.
   PER CURIAM.

Appellant, the husband of appellee, appeals the trial court’s Final Judgment of Injunction for Protection Against Domestic Violence with Minor Children After Notice, which prohibited appellant from committing any acts of violence against appel-lee, from contacting the appellee, and from having custody, possession, or control of any firearms. The order also granted the appellee temporary custody of the parties’ minor child. Appellant, a resident of Maryland, argues on appeal that there was an insufficient factual basis for the court to exercise its personal long-arm jurisdiction over appellant, and therefore, the entry of the order violated appellant’s due process rights. Appellant’s only alleged contacts with the state of Florida are voice and text messages left on appellee’s cellular phone while she was present in Florida. Because we agree with appellant, that these contacts are insufficient to establish personal jurisdiction over a non-resident, we hold that the trial court erred in entering its final judgment of injunction against appellant and reverse and vacate this order.

I. BACKGROUND

Before July 19, 2005, both parties lived in Maryland. However, on that date, ap-pellee left with the parties’ minor child for Florida without appellant’s knowledge. Soon after, on July 25, 2005, appellee filed her Petition for Protection Against Domestic .Violence in Florida circuit court. The petition alleged the following:

The [Respondent] is my husband and the father of my daughter... .The [Respondent] and I were together off and on for ten years until we separated three years ago.
On July 19, 2005, [my daughter] and I left Maryland without the [Respondent’s] knowledge because he threatened to kill me and spend the rest of his life in prison if I ever took [our daughter] from him. Since this date, the [Respondent] has been calling my cell phone and leaving messages and text messages (that I have saved). On July 25, 2005, the [Respondent] left messages on my cell phone stating that he was on his way looking for me; he stated that he will spend the rest of his life looking for me and that he will find me. On July 23, 2005, the [Respondent] left a text message on my cell phone stating, “Thank you. I just think that I am going crazy. I hear her ... talking to me. I g[u]ess it’s just cause [sic] I miss her!”
Three weeks ago, the [Respondent] busted out my car window with a crowbar as I was sitting inside; glass shattered everywhere, cutting my arm. I made a police report with Maryland State Highway Patrol.

In her petition, appellee requested, among other things, a temporary injunction for protection against domestic violence and temporary custody of the minor child.

Appellant was personally served with the petition in Maryland. On August 29, 2005, appellant filed a motion to quash service of process and dismiss based on lack of personal jurisdiction and subject matter jurisdiction. In the motion, appellant argued that appellee had alleged no facts upon which the trial court could exercise long-arm jurisdiction over appellant. On the same date, a hearing was held on the motion to dismiss and counsel for appellant made a special appearance to argue the motion. This motion was denied on the basis that the allegation made in the petition for injunction, that appellant had made telephone calls into the state of Florida, was “sufficient to enter a no contact Final Injunction for Protection Against Domestic Violence.” However, at the hearing, the trial court noted that appellant should file a motion if he wanted the issue reheard or to address any other arguments or issues.

On September 16, 2005, appellant moved for rehearing. Attached to the motion was a sworn affidavit made by appellant which provided that appellee’s cellular telephone has a Maryland number and that the messages appellant left on the phone were made before he knew appellee was residing in Florida. After appellee was given a chance to respond, the trial court denied appellant’s motion for rehearing, stating that “[s]ufficient evidence was presented to provide a basis that Respondent had knowledge of Petitioner’s presence in the State of Florida when he made statements that were sufficient to promote fear of harm from Respondent.” The trial court found sufficient contacts existed in order to invoke the jurisdiction of the court. On the same day this order was filed, the trial court entered its final order of injunction for protection against domestic violence.

II. PERSONAL JURISDICTION

Section 741.30, Florida Statutes (2005), provides a cause of action for an injunction for protection against domestic violence. This statute requires that a final judgment for injunction for protection against domestic violence shall indicate on its face that, “[t]he court had jurisdiction over the parties and matter under the laws of Florida and that reasonable notice and opportunity to be heard was given to the person against whom the order is sought sufficient to protect that person’s right to due process.” § 741.30(6)(d)3, Fla. Stat. (2005) (emphasis added). Because appellant, a Maryland resident, was not served in Florida, personal jurisdiction must be established through section 48.193, Florida Statutes (2005), Florida’s long-arm statute. However, to be subject to the jurisdiction of Florida courts pursuant to this statute, due process requires there also be sufficient “minimum contacts” between the forum state and the non-resident defending party “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

In establishing minimum contacts, the United States Supreme Court has provided a purposeful availment requirement which “ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). “ ‘[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Id. at 474-75, 105 S.Ct. 2174 (citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). The “constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Id. at 474, 105 S.Ct. 2174 (emphasis added).

Appellant’s only alleged contacts with Florida were voice and text messages left on appellee’s cellular telephone while she was present in Florida'. Telephonic, electronic, or written communications to Florida from an outside state can establish personal jurisdiction without the need that the defending party have a physical presence in the state. See Wendt v. Horowitz, 822 So.2d 1252, 1257-58 (Fla.2002) (providing that physical presence is not necessary to establish minimum contacts). However, in this case, there is nothing in the petition filed by appellee alleging that appellant knew appellee was present in Florida at the time he left the messages on her cellular phone. Additionally, appellant stated the following in his affidavit:

The Petitioner’s cellular telephone has a Maryland telephone number. Any messages left for her or sent to the Petitioner were sent by me before I was aware that the Petitioner was residing in Florida. I did not know until after the Petitioner had filed her petition that the Petitioner went to Florida after taking our child from Maryland. Since then I have, not made any calls or sent any text messages to the Petitioner.

Although appellee argued below that appellant had reason to know she would seek refuge in Florida, appellee never filed an affidavit in response. See Venetian Salami, 554 So.2d at 502 (providing that in order for a respondent to raise the issue of minimum contacts, he must file an affidavit in support of his position, and then the burden is placed upon the petitioner to prove by affidavit the basis upon which jurisdiction may be obtained). Therefore, there is nothing in the record to show that appellant purposefully established minimum contacts with the state of Florida.

III. FULL FAITH AND CREDIT FOR PROTECTION ORDERS

This does not mean that victims of domestic violence are without a remedy when they cross state lines. As part of the Violence Against Women Act of 1994, protection orders entered by one state or Indian tribe complying with the requirements of 18 U.S.C. § 2265 “shall be accorded full faith and credit by the court of another State or Indian tribe ... and enforced as if it were the order of the enforcing State or tribe.” 18 U.S.C. § 2265(a) (2005); see also § 741.315(2), Fla. Stat. (2005) (providing in part, “[p]ursuant to 18 U.S.C. s. 2265, an injunction for protection against domestic violence issued by a court of a foreign state must be accorded full faith and credit by the courts of this state and enforced by a law enforcement agency as if it were the order of a Florida court issued under s. 741.30, s. 741.31, s. 784.046, or s. 784.047”).

Protection orders entered by another state are enforceable in Florida without being registered in Florida. 18 U.S.C. § 2265(d)(2) (2005); § 741.315(3), Fla. Stat. (2005) (providing “[njotwithstandings. 55.505 or any other provision to the contrary, neither residence in this state nor registration of foreign injunctions for protection shall be required for enforcement of this order by this state and failure to register the foreign order shall not be an impediment to its enforcement”). Additionally, if the victim registers a foreign protection order with an enforcing state, the party against whom a protection order has been issued cannot be notified that the order has been registered with that state unless requested by the victim. 18 U.S.C. § 2265(d)(1) (2005).

Therefore, if appellee had obtained a protection order from Maryland complying with 18 U.S.C. § 2265, thén Florida would be obligated to give full faith and credit to the Maryland order. See Steckler v. Steck-ler, 921 So.2d 740, 743 (Fla. 5th DCA 2006) (providing that a protective order entered by a North Dakota court satisfying the provisions of 18 U.S.C. § 2265 was entitled to full faith and credit); see generally Shah v. Shah, 184 N.J. 125, 875 A.2d 931, 942 n. 7 (2005).

Conclusion

However, in the present case, because it was not shown that appellant had sufficient minimum contacts with Florida to satisfy the requirements of due process, the trial court erred in entering the final judgment of injunction for protection against domestic violence against appellant. Accordingly, under the circumstances of the present case, we must reverse and vacate the trial court’s order.

REVERSED.

WOLF, PADOVANO and POLSTON, JJ., concur.

      . Appellee also requested temporary child support and temporary alimony. However, appellee later abandoned these requests.

      . In this case, appellee raises an argument regarding the timing of appellant's filed affidavit because the affidavit was attached to appellant's motion for rehearing and not to appellant's motion to dismiss. We reject this argument without further comment and consider on appeal the points raised in the affidavit.

      .Appellee's response argued, among other things, that appellant should have known ap-pellee could have sought refuge within the state of Florida, and that appellant's statements that he would find appellee provided a basis for the court to assume jurisdiction.

      . The statute requires the following:
      A protection order issued by a State or tribal court is consistent with this subsection if—
      (1) such court has jurisdiction over the parties and matter under the law of such State or Indian tribe; and
      (2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person’s right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State or tribal law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights.
      18 U.S.C. § 2265(b) (2005).


author: STONE, J.

text:
    William WEATHERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2856.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Rehearing Denied Oct. 18, 2006.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Weathers was convicted of felony driving while license revoked as a habitual offender, pursuant to section 322.34(5), Florida Statutes. Weathers contends that his conviction is unsupported by the evidence because the redacted copy of his driving record placed in evidence did not show the requisite convictions required for the initial revocation. We affirm.

Section 322.34(5), Florida Statutes, provides:

Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree....

At trial, Officer ■ Siegal testified that when he approached Weathers’ vehicle, “Mr. Weathers immediately told me that he had a problem, or he didn’t have a license because he had problems with his license.” Siegal also testified that Weathers told him his birth' date was September 23,1960.

The record, as introduced, includes Weathers’ name, address, birth date, height, race, sex, and driver’s license number. It then provides the following entries:

Date Entry Description
7/10/97 Rev-5 Years Habitual Traffic Offender 6/20/97
6/20/97 Notice required by s. 322.251 given

The department’s record was redacted by the state in accordance with its understanding of an earlier order in limine to omit the offenses that resulted in Weathers being declared a habitual offender.

The defense subsequently moved for a judgment of acquittal, arguing that the state had not met its burden of proof. Weathers’ arguments in the trial court were primarily addressed to proof of the required notice and identity.

We initially note that defense counsel never explicitly argued, in seeking a judgment of acquittal, that the driving record content in the redacted driving record failed to show the driving record that resulted in the habitual offender revocation. The state argues that defense counsel waived review of this issue by focusing his objection and motion on the fact that the driving record placed in evidence had not been sufficiently tied to this William Weathers, rather than focusing on the driving history omission in the content of the redacted document.

In any event, in Rodgers v. State, 804 So.2d 480, 483 (Fla. 4th DCA 2001), rev. denied, 828 So.2d 388 (Fla.2002), we said that section 322.34 allows the state to present its proof of the offense of driving while license revoked as a habitual offender through a certified copy of the motorist’s driving record as maintained by the Department of Motor Vehicles (DMV). In that case, although the certified copy of the defendant’s DMV driving record reflected that the defendant had three convictions within the five-year period, we held:

The violation created by section 322.34(5) does not involve — as an element of the crime — a finding that the motorist has been convicted on three separate occasions of DWLS. Instead it involves driving a motor vehicle on the public highways of Florida at a time when DMV has revoked the motorist’s license and given notice of the revocation. Thus it is not necessary for the state to prove each separate conviction of DWLS which DMV relied on in revoking the license.

Id.

In Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002), rev. denied, 839 So.2d 697 (Fla.2003), the appellant was charged with violating section 322.34(5). The appellant in that case did not contend that he was without knowledge of the revocation, nor did he contend that the driving record was not his record. Id. at 591. The court first dispensed with the appellant’s argument that the state failed to allege the specific prior convictions in the information, recognizing that the charge was based on the fact that the appellant had been designated as a habitual traffic offender and the department had revoked the appellant’s license, rather than the underlying previous traffic offenses. Id. Noting that the appellant had not raised the issue below, the court addressed the appellant’s contention that the driving record did not sufficiently tie the prior convictions to him. Id. at 592. The court held that there was a sufficient nexus in that case because the records reflected the appellant’s name, address, his birth date, and his social security number. Id.

We have considered Kallelis v. State, 909 So.2d 544 (Fla. 4th DCA-2005), relied on by Weathers, and' deem it inapposite, as the issue in that case was whether the underlying offenses supported a habitual traffic offender designation.

We also conclude that the evidence also sufficiently links Weathers to this driving record. The public record also recites that the requisite notice was given.

Weathers’ other issues on appeal concerning jury instructions were not preserved. As to any other issues raised, we find no reversible error or abuse of discretion.

POLEN and FARMER, JJ., concurs.


text:
    Paul DESCALLY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1348.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.
    Rehearing Denied Oct. 3, 2006.
    Paul Descally, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Perkowski v. State 616 So.2d 26, 27 (Fla.1993)(adopting Perkowski v. State, 605 So.2d 498, 500 (Fla. 4th DCA 1992)).


text:
    Jackie WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2044.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2006.
    Jackie Williams, pro se, Petitioner.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Jackie Williams timely seeks a belated appeal of a February 22, 2006, judgment and sentence in Escambia County Circuit Court case numbers 04r-2642CFA,and 04-3643CFA. Upon consideration of her trial counsel’s admission that he failed to file a notice of appeal despite petitioner’s timely request that he do so, the petition for belated appeal is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. . See Fla. R.App. P. 9.141(e)(5)(D). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent her on appeal.

KAHN, C.J., BARFIELD, and ALLEN, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Mary REEVES, Appellant, v. ACE CASH EXPRESS, INC., and Ditore Ruibal & Associates, Inc., Appellees.
    No. 2D05-5752.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.
    Rehearing Denied Sept. 29, 2006.

      Mark Tischhanser and Angela M. Stone of the Tischhauser Law Group, Tampa, for Appellant.
    Neal A. Sivyer and J. Carlton Mitchell of Sivyer Barlow & Watson, P.A., Tampa, for Appellee Ace Cash Express, Inc.
    No appearance for Appellee Ditore Rui-bal & Associates, Inc.
   NORTHCUTT, Judge.

Mary Reeves sued Ace Cash Express, Inc., and Ditore Ruibal & Associates, Inc., claiming they violated the Florida Consumer Collection Practices Act (“FCCPA”), specifically section 559.77, Florida Statutes (2002). In this nonfinal appeal she challenges the circuit court’s order compelling arbitration of her claim. We affirm the order in all respects. We write only to discuss an issue not heretofore addressed in Florida courts: whether public policy prevents arbitration of FCCPA claims.

When determining whether a dispute must be submitted to arbitration, the court must consider three factors: (1) whether there is a valid written agreement to arbitrate; (2) whether there is an arbi-trable issue; and (3) whether the right to arbitration has been waived. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003). The circuit court determined that the parties had made a valid agreement to arbitrate, and we agree. But Reeves also argues that FCCPA claims are not arbitrable under the second prong of Seifert.

We considered a similar issue, albeit posed as a challenge to the validity of the arbitration agreement, in Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 261 (Fla. 2d DCA), review denied, 884 So.2d 23 (Fla.2004). That case involved the arbitra-bility of claims brought under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), §§ 501.201-213, Fla. Stat (2001). In Petsch we began our analysis by searching the statute for a clear expression of legislative intent to preclude arbitration of FDUTPA claims, but we found none. See also Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617, 624 (Fla. 4th DCA 2001); Value Car Sales, Inc. v. Bouton, 608 So.2d 860, 861 (Fla. 5th DCA 1992). Likewise, nothing in the text of section 559.77 evinces a legislative intent to preclude the submission of FCCPA claims to arbitration. Consequently, such claims are not, as a matter of law, excluded from arbitration.

The issue then becomes whether the language of the parties’ specific arbitration agreement affects its enforcement with respect to Reeves’s FCCPA claims. Reeves argues that the agreement violates public policy because it does not provide her the panoply of rights available under the FCCPA. Specifically, Reeves complains that the agreement does not give the arbitrator authority to award injunc-tive relief, it specifically prohibits class actions^ it would not allow an award of punitive damages, and it requires that each party bear its own attorney’s fees and costs, all contrary to the FCCPA. Thus, she claims, the agreement is unenforceable.

First, Reeves’s complaint did not seek injunctive relief or class action status. But even if it had, the arbitration agreement would be enforceable. The provision does not specifically set forth the types of relief the arbitrator may grant; it does not specifically prohibit injunctive relief. Unless specifically prohibited, an arbitrator generally has the power to fashion equitable remedies. See Petsch, 872 So.2d at 264 (and cases discussed therein). Reeves’s arbitration agreement does prohibit class actions, but it contains a severability clause. Thus, the offending provision could be severed without affecting the parties’ agreement to arbitrate. See Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1020 (Fla. 4th DCA), review denied, 918 So.2d 292 (Fla.2005).

Second, Reeves did not specifically demand punitive damages, although section 559.72(2) permits them. Again, the arbitration agreement does not address this type of damages. It does, however, require the arbitrator to follow “the substantive law related to any Claim.” Reeves argues that punitive damages cannot be awarded in an arbitral forum unless the arbitration agreement expressly provides for them. She relies on Complete Interiors, Inc. v. Behan, 558 So.2d 48 (Fla. 5th DCA 1990), for this proposition. But Behan involved actions for breach of contract and negligent performance, legal theories for which punitive damages are not ordinarily available. Recently, in Morton v. Polivchak, 931 So.2d 935, 937 (Fla. 2d DCA 2006), we rejected an assertion that Behan governed the arbitrability of a punitive damages claim based on fraud, an intentional tort for which punitive damages are generally available. Morton, 931 So.2d at 937-38. The Morton reasoning is equally applicable to a statutory tort, such as the FCCPA, which expressly provides that punitive damages may be awarded. § 559.77(2). Thus, in this case neither the language of the agreement nor the reasoning in Behan preclude enforcement of the arbitration agreement.

Finally, Reeves maintains that the arbitration agreement is unenforceable because, contrary to the FCCPA, it requires each party to bear its own attorney’s fees. She misreads the arbitration provision, which, in fact, is silent on this issue. As we explained in Petsch, even when the Federal Arbitration Act governs an arbitration agreement, Florida law controls the award of attorney’s fees. Petsch, 872 So.2d at 264; see also Lee v. Smith Barney, Harris Upham & Co., 626 So.2d 969, 971 (Fla. 2d DCA 1993); Cassedy v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 751 So.2d 143, 146-47 (Fla. 1st DCA 2000). Thus, if Reeves prevails on her claim in arbitration, she can seek attorney’s fees under the FCCPA in circuit court.

Affirmed.

ALTENBERND and CANADY, JJ., Concur.


text:
    Andrea GLAZE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1254.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2006.
    Rehearing Denied Sept. 27, 2006.
    Andrea Glaze, Gainesville, pro se.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

GRIFFIN, SAWAYA and EVANDER, JJ., concur.


author: GROSS, J.

text:
    OFFICE DEPOT, INC., Petitioner, v. MARSH & McLENNAN COMPANIES, INC., Marsh, Inc., Marsh USA, Inc., American International Group, Inc., American International Specialty Lines Insurance Company, American Home Assurance Company, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, The St. Paul Travelers Companies, Inc., Discover Reinsurance Company, St. Paul Fire & Marine Insurance Company, Travelers Casualty & Surety Company of America, Ace American Insurance Company, Zurich American Insurance Company, and American Guarantee and Liability Insurance. Company, Respondents.
    No. 4D05-4644.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.
    Rehearing Denied Oct. 19, 2006.
    Jane Kreusler-Walsh óf Jane Kreusler-Walsh, P.A;, West Palm Beach, Sidney A. Stubbs, and Joanne M. O’Connor of Jones, Foster, Johnston & Stubbs, P.A., West Palpi Beach, Edmund M. Kneisel, James F. Bogan, III, and Svetlana Gans of Kilpa-trick Stockton LLP, Atlanta, GA, for petitioner.,
    Sylvia H. Walbolt, Steven E. Brodie, and Dean A. Morande of Carlton Fields, P.A., Miami, for respondents American International Group, Inc., American International Specialty Lines Insurance Company, American Home Assurance Company, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania.

      Francis A. Anania and Ana M. Alexander of Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein, Miami, for respondents Marsh & McLennan Companies, Inc., Marsh, Inc., and Marsh USA, Inc.
    Peter W. Homer and Gregory J. Trask of Homer Bonner, Miami, for respondents The St. Paul Travelers Companies, Inc., Discover Reinsurance Company, St. Paul Fire and Marine Insurance Company, Travelers Casualty and Surety Company of America.
    William R. Scherer and Susan H. Aprill of Conrad & Scherer, LLP, Fort Lauder-dale, for respondents ACE American Insurance Company.
    Christopher E. Knight of Fowler White Burnett, P.A., Miami, for respondents Zurich American Insurance Company and American Guarantee & Liability Insurance Company.
   GROSS, J.

The circuit court granted a stay of this case pending certification of a class action in New Jersey federal court. The court ruled on the erroneous assumption that its ruling was required by a case from this court. We therefore grant the petition for writ of certiorari and remand to the circuit court to reconsider the issue of whether a stay should be granted.

In the circuit court, Office Depot sued Marsh & McLennan Companies, an insurance broker, along with numerous insurance companies. Office Depot contended that Marsh had conspired with the insurance companies to rig bids and assure that certain companies would obtain Office Depot’s insurance business; the suit contended that Marsh received kickbacks from insurers which it did not credit against the fees Office Depot paid to Marsh for its services.

Marsh and the insurer-defendants moved to stay or abate the state court proceedings pending developments in an earlier-filed, multidistrict class action case in a New Jersey federal district court. Office Depot responded that: (1) it had no intent to participate in the New Jersey class action and (2) it was not bringing a class action in Florida or alleging any federal claims.

The circuit court believed that it was required to stay the Florida case because of Polaris Public Income Funds v. Einhorn, 625 So.2d 128 (Fla. 3d DCA 1993), which it erroneously believed to be a case from this court.

The law in this district did not mandate that the circuit court grant a stay in this case. “Trial courts have broad discretion in granting or denying stays of subsequently-filed actions.” Sander v. Rayman, 800 So.2d 355, 358 (Fla. 4th DCA 2001); Ricigliano v. Peat, Marwick, Main & Co., 585 So.2d 387 (Fla. 4th DCA 1991). To decide whether a stay should be granted, a trial court “has power to weigh the circumstances for and against a stay, including ... the unlikelihood of early disposition of the federal” case. ITT-Cmty. Dev. Corp. v. Halifax Paving, Inc., 350 So.2d 116, 118 (Fla. 1st DCA 1977). Among the other factors the court might consider are whether the federal and state courts have concurrent jurisdiction, see U.S. Borax, Inc. v. Forster, 764 So.2d 24, 29 (Fla. 4th DCA 1999), whether the two cases “involve the same operative facts and issues!,]” Sander, 800 So.2d at 358, whether the case involves “dueling” class actions, cf. Polaris, 625 So.2d at 129, Ricigliano, 585 So.2d at 387, whether Office Depot is likely to opt out of the New Jersey class action, and whether the Florida case involves unique fact issues that will not be resolved in the New Jersey case. If there would be- no conflict between the final judgments of the Florida and New Jersey courts, then one of the bases for staying the Florida case is absent. See Wade v. Clower, 94 Fla. 817, 114 So. 548, 551 (1927). To decide the stay issue, the circuit court might also consider those arguments Marsh made in New Jersey to oppose class certification.

STONE and FARMER, JJ., concur.


author: FLETCHER, Judge.

text:
    WARREN TECHNOLOGY, INC., etc., Appellant, v. CARRIER CORPORATION, etc., Appellee.
    No. 3D05-1523.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 2006.
    Rosemary B. Wilder, Coral Gables, for appellant.
    Gordon, Hargrove & James and W. Kent Brown, Ft. Lauderdale; Day, Berry & Howard and' Michael A. Bucci, Hartford, CT, for appellee.
    Before FLETCHER and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   FLETCHER, Judge.

Warren Technology, Inc. seeks review of an adverse summary judgment in its action against Carrier Corporation on various claims of misrepresentation and deceptive -trade practices. Finding that Warren lacks standing, wé affirm.

Warren manufactures electric heaters for use in heating, ventilation and air conditioning (HVAC) units. Carrier, which manufactures and installs HVAC units, purchased electric heaters from Warren. When the heaters began to overheat and malfunction, Carrier blamed Warren and ceased doing business with them. Warren filed the instant five-count complaint against Carrier alleging that Carrier’s misleading labeling of the voltage on its unit was the actual cause of the failures.

A plaintiff must demonstrate the existence of an actual controversy between the plaintiff and the defendant in which plaintiff has a sufficient stake or cognizable interest which would be affected by the outcome of the litigation in order to satisfy the requirements of standing. See Weiss v. Johansen, 898 So.2d 1009, 1011 (Fla. 4th DCA 2005); Nedeau v. Gallagher, 851 So.2d 214 (Fla. 1st DCA 2003). Although it has pointed out a disagreement between the parties, Warren has failed to demonstrate how its interests would be affected by our resolution of the issue presented. Warren has not shown that it suffered any injury caused by Carrier, other than losing the latter’s business. Carrier was free to terminate its relationship with Warren for any reason. Thus, our resolution of the factual basis for the reason given by Carrier for its termination would simply be an advisory opinion. That is not this court’s role. We, therefore, affirm the judgment below.

Affirmed.

      . Warren's complaint included counts for fraudulent misrepresentations of fact (count I); negligent misrepresentations of fact— product labeling (count II); negligent misrepresentations of fact, statements of product defect (count III); defamation/trade disparagement (count IV); and violation of Florida's Deceptive and Unfair Trade Practices Act (count V). Upon Carrier's motion, the trial court granted summary judgment on all counts and a final judgment in favor of Carrier. In this appeal, Warren sought review only of the summary judgment entered on counts I, II and V on several grounds. Because we find that Warren does not have standing to pursue this action, we need not address the trial court’s ruling on the merits of these claims.


author: EVANDER, J.

text:
    Donald WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1193.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.

      Donald 0. Williams, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Donald Williams timely appeals from the denial of his petition for a writ of habeas corpus.

In 2001, Williams entered a no contest plea in Lake County to a charge of carjacking. He was sentenced to thirty years in the Department of Corrections (twenty years suspended on the completion of five years sex offender probation followed by fifteen years probation) and ordered to pay restitution, fines and costs. Williams is currently incarcerated in Sumter County. He filed a petition for a writ of habeas corpus in Sumter County, in which he raised several claims collaterally challenging the judgment and sentence imposed.

The trial judge correctly found that a petition for habeas corpus may not be used to collaterally attack a criminal judgment and sentence as Williams has attempted to do. Florida Rule of Criminal Procedure 3.850 has superseded habeas corpus as the only means to raise such issues. Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006).

The trial judge also correctly found that it lacked jurisdiction to review the Lake County plea and sentence. Collins v. State, 859 So.2d 1244 (Fla. 5th DCA 2003).

Given the procedural and jurisdictional bars to relief, Williams’ petition should have been dismissed. However, as we stated in Richardson, for purposes of judicial economy we should affirm the order denying the petition rather than vacate it and remand to the trial court for entry of an order of dismissal. We again emphasize that when a habeas petition is filed raising inappropriate issues that fall within one of the three categories enumerated in Baker v. State, 878 So.2d 1236 (Fla.2004), the appropriate disposition is dismissal.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.


author: GRIFFIN, J.

text:
    Ronald Jay COATES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1177.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.
    Rehearing Denied Sept. 25, 2006.

      Ronald J. Coates, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Defendant, Ronald Jay Coates [“Coates”], appeals the summary denial, on procedural grounds, of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for the trial court to consider the motion on the merits because Coates’ timely filing of a petition to review the written opinion of this Court tolled the time for filing a rule 3.850 motion for postconviction relief until the supreme court denied review.

After a trial by jury, Coates was sentenced to life imprisonment for first-degree murder. On September 26, 2003, this court affirmed his conviction and sentence in a written opinion. See Coates v. State, 855 So.2d 223 (Fla. 5th DCA 2003). Our mandate issued on October 17, 2003. Coates appealed this court’s decision to the Florida supreme court, arguing jurisdiction based on express and direct conflict with decisions of other district courts of appeal. The supreme court denied review on January 9, 2004. See Coates v. State, 866 So.2d 1212 (Fla.2004) (table).

On January 8, 2006, Coates provided his motion for postconviction relief to prison officials for mailing. On March 13, 2006, the trial court entered an order summarily denying the motion as untimely.

Rule 3.850 provides that a motion for relief pursuant to that rule must be filed within “two years after the judgment and sentence become final.” If no writ of certiorari is filed with the United States Supreme Court, the judgment and sentence become final when direct review proceedings are completed and jurisdiction to entertain the motion for postconviction relief returns to the trial court. See Scull v. State, 569 So.2d 1251 (Fla.1990); see also Hilbert v. State, 540 So.2d 227 (Fla. 5th DCA 1989); Ward v. Dugger, 508 So.2d 778 (Fla. 1st DCA 1987). Here, the supreme court denied review on January 9, 2004.

Therefore, Coates had until January 9, 2006, to timely file a motion for postconviction relief in this case. Under the mailbox rule, he filed his motion one day shy of the deadline on January 8, 2006. The State properly concedes that Coates’ motion was timely filed.

REVERSED and REMANDED.

THOMPSON and EVANDER, JJ., concur.


text:
    Jorge DOMINGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3763.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2006.
    Rehearing Denied Sept. 27, 2006.
    John D. Middleton, of Middleton & Prugh, P.A., Melrose, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See King v. State, 790 So.2d 477 (Fla. 5th DCA 2001), review granted, 816 So.2d 127 (Fla.), and review dismissed as improvidently granted, 820 So.2d 941 (Fla.), and cert. denied, 537 U.S. 961, 123 S.Ct. 394, 154 L.Ed.2d 314 (2002).

MONACO, TORPY and LAWSON, JJ., concur.


author: SCHWARTZ, Senior Judge. COPE, C.J.

text:
    Alonso VALENCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1853.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 2006.
    Rehearing Denied Oct. 5, 2006.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The primary issue raised on this appeal from a conviction for first degree murder with a firearm concerns the admission of evidence — over a general objection to all three references — that, a few weeks before the crime, the defendant displayed three firearms, one of which may well have been the weapon involved in this offense. We conclude that, even if this ruling may ar-guendo have been erroneous — which we do not decide, see O’Connor v. State, 835 So.2d 1226, 1230-31 (Fla. 4th DCA 2003), and cases collected — it was, under the circumstances of all of the evidence in the case, which raised no substantial question that the defendant committed the crime, harmless beyond a reasonable doubt. See § 924.051, Fla. Stat. (2005); Knowles v. State, 848 So.2d 1055 (Fla.2003); Goodwin v. State, 751 So.2d 537 (Fla.1999); Moore v. State, 701 So.2d 545 (Fla.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 685 (1998); State v. Lee, 531 So.2d 133 (Fla.1988); State v. DiGuilio, 491 So.2d 1129 (Fla.1986); O’Connor, 835 So.2d at 1232; Herman v. State, 396 So.2d 222 (Fla. 4th DCA 1981), cert. dismissed, 402 So.2d 610 (Fla.1981).

The other point concerns a jury instruction which was not shown to be harmfully erroneous — let alone, as required for reversal because there was no preservation below — fundamentally so.

Affirmed.

WELLS, J., concurs.

COPE, C.J.

(specially concurring).

The firearm testimony was properly admitted into evidence. That being so, it is not necessary to reach the issue of harmless error.

The firearm examiner testified that the projectile which struck the victim was .38 caliber. He said that the projectile was probably fired from a revolver, most likely a .38 special or .357 magnum.

Witness Sanchez, a friend of the defendant, testified that several weeks before the murder, the defendant showed him three guns he owned, a .38, a .22, and a nine millimeter. This testimony was admitted over objection in substance that the weapon was insufficiently tied to the crime, and that the testimony was unfairly prejudicial. The trial court overruled the objection.

The trial court’s ruling was within its discretion. The Fourth District has summarized the rule applicable in this situation as follows:

In Herman v. State, 396 So.2d 222 (Fla. 4th DCA 1981) cert. dismissed, 402 So.2d 610 (Fla.1981), the state’s expert testified that he was unable to say one way or another whether the shotgun admitted at trial was the murder weapon. Testimony showed only that the defendant’s shotgun was of the same caliber as the shell casings found at the murder scene. Nonetheless, our court held that the matching caliber was a circumstance of some probative value, stating:
The expert’s testimony that he could not say one way or the other whether the shotgun admitted was the murder weapon, was not conclusive or binding on the jury which was free to determine credibility and weight to be ascribed .... Under those circumstances, the jury would be entitled to consider the shotgun and give whatever weight was due in light of the expert’s testimony.

Council v. State, 691 So.2d 1192, 1194 (Fla. 4th DCA 1997); see also United States v. Gandolfo, 577 F.2d 955, 959 (5th Cir.1978).

The majority opinion suggests that the decision in O’Connor v. State, 835 So.2d 1226, 1230-31 (Fla. 4th DCA 2003), is to the contrary, but it is not. In O’Connor, the murder weapon was a nine millimeter handgun. The State introduced a photograph of a shotgun found in O’Connor’s room, even though the victim had been shot by a handgun, not a shotgun. In O’Connor the introduction of the photograph of the shotgun was error, because there was no evidence indicating that the shotgun had been used in the crime. In the present case, by contrast, the murder weapon was either a .38 or .357 revolver, and the defendant owned a .38 at the relevant time. I concur with the disposition of the jury instruction issue.

      . The defendant showed a witness a .22 caliber, a .38 caliber and a 9 millimeter firearm. Although the actual murder weapon was not recovered, the testimony concerning the fatal bullets, which were, demonstrated only that they "could” have been fired from either a .38 special caliber revolver or a .357 magnum caliber revolver.

      . In McIntosh v. State, 858 So.2d 1098 (Fla. 4th DCA 2003), review denied, 870 So.2d 823 (Fla.2004), the court held it was harmful error not to exclude two guns not shown to be involved in the crime, while admitting the murder weapon which was found with them. While we consider this holding dubious even on its own facts, it is distinguishable because, unlike this case where there was only a blanket objection to all three weapons, McIntosh objected specifically to the two weapons unconnected to the crime. See Cannady v. State, 620 So.2d 165 (Fla.1993)(general objection to four potential jurors does not preserve issue of qualifications of any one of them); Thompson v. State, 589 So.2d 1013, 1014 (Fla. 2d DCA 1991)(general hearsay objection to victim's entire statement does not preserve issue when "[p]ortions of that statement were admissible as exceptions to the hearsay rule [and][n]o attempt was made to limit the objection to the inadmissible portions of the statement”); 55 Fla. Jur.2d Tried § 74, at 442 (2000)("An objection to evidence as a whole, part of which is admissible, is properly overruled. Thus, an objection to the entire testimony of a witness is properly overruled when a part of his statement is admissible.”).


text:
    Leroy WILLIAMS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2286.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Rehearing Denied Sept. 28, 2006.
    Leroy Williams, Jr., Lake City, Pro Se.
    No Appearance for Respondent.
   PER CURIAM.

We treat the petition for certiorari seeking review of the denial of a habeas corpus petition in the circuit court as an appeal and affirm. Williams, convicted of first-degree murder in 1994, cannot utilize a habeas corpus petition as a substitute for a timely motion under Florida Rule of Criminal Procedure 3.850. See Richardson v. State, 918 So.2d 999, 1003-04 (Fla. 5th DCA 2006).

AFFIRMED.

PALMER, ORFINGER and LAWSON, JJ., concur.


author: TORPY, J.

text:
    Ginger BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2274.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Rehearing Denied Sept. 25, 2006.
    H. Kyle Fletcher, Oviedo, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

In this Felony DUI case, which was originally filed as a misdemeanor, we are called upon to address whether the lower court erred in denying a defense motion to discharge Appellant based on a speedy trial violation. Concluding that Appellant was entitled to be discharged, we reverse.

On the evening of December 19, 2003, Appellant was arrested and issued a citation for misdemeanor driving under the influence. On March 18, 2004, she filed a Notice of Expiration of Speedy Trial Time, asserting that she had not been brought to trial within 90 days as required for a misdemeanor under the Speedy Trial Rule, Florida Rule of Criminal Procedure 3.191. The county court heard argument on the motion on March 25, 2004. At the hearing, the prosecutor stated that he was filing a felony DUI charge that day. The court entered an order stating: “Per Assistant State Attorney Case Upgraded to Felony.” However, despite the representation of the prosecutor, the felony information was not filed that day. In fact, the information was not filed until April 7, 2004.

In the meantime, on April 2, 2004, fifteen days after filing her Notice of Expiration, Appellant filed a motion for discharge in the county court. On May 6, 2004, the State filed a Nolle Prosequi in the county court with the following notation: “Driving under the influence misdemeanor DUI charge only. Pending felony DUI is not nolle prosequi.” After a hearing on May 19, 2004, the misdemeanor DUI was discharged.

On May 24, 2004, Appellant filed a motion for dismissal of the felony DUI case. By order rendered on June 25, 2004, the circuit court denied Appellant’s motion. The court ruled that, although the misdemeanor DUI case had been discharged, that discharge did not bar prosecution for the felony DUI offense.

Thereafter, Appellant entered a plea of no contest to felony DUI, reserving her right to appeal the speedy trial issue. This appeal timely followed.

We determine that the facts in this case are indistinguishable from those presented to our sister court in Lovelace v. State, 906 So.2d 1258 (Fla. 4th DCA), review granted, 917 So.2d 195 (Fla.2005), and review dismissed, 928 So.2d 1176 (Fla.2006). Based on the fourth district’s analysis, which we approve, the judgment and sentence are reversed.

REVERSED.

PLEUS, C.J. and PALMER, J., concur.

      . The trial judge; in his defense, did not have the benefit of Lovelace at the time of his ruling. Although it was released prior to the filing of the briefs in this appeal, both counsel tailed to cite Lovelace in their briefs or by supplemental authority.