author: SCHWARTZ, Senior Judge.

text:
    Darryle RIGGINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-694.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Robert I. Barrar and Ellis Rubin, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

On this appeal from convictions for possession with intent to sell cocaine, resisting an officer with violence, battery on a law enforcement officer, escape and petit theft, the only points raised concern jury selection. We affirm.

The defendant’s first contention concerns two jurors as to whom state peremptory challenges were upheld by the trial court after a Batson-Neil objection. The state’s proffered race-neutral reason was that the jurors had raised their hands when the panel was asked whether anyone was in favor of legalizing marijuana. The defendant does not challenge the validity or the race-neutrality of this ground but claims that the hand-raising does not appear on the record. See Dorsey v. State, 868 So.2d 1192 (Fla.2003). Because, however, his counsel did not challenge the accuracy of the prosecutor’s statements below, which were accepted without comment by the trial judge — who had obviously seen the incident in question — Riggins may not now claim that the basis of the reason is unsupported by the record. See Mendoza v. State, 807 So.2d 734, 735 (Fla. 3d DCA 2002) (holding that argument as to peremptory strike not preserved “where the defense did not object to the existence of the facts proffered by the state in support of the strike”); Soto v. State, 786 So.2d 1218 (Fla. 4th DCA 2001), case dismissed, 799 So.2d 219 (Fla.2001); Carter v. State, 762 So.2d 1024 (Fla. 3d DCA 2000), review denied, 786 So.2d 1183 (Fla.2001); see also Dorsey, 868 So.2d at 1196 n. 3; cf. Suri v. State, 937 So.2d 216, 219 (Fla. 3d DCA 2006) (deferring to trial court’s conclusion that prospective juror, who was challenged for cause, “did not hesitate in her nonverbal communication”).

The other point concerns two other jurors who were excused by the court for cause on the state’s motion. Even assuming that the defendant can be heard to raise the issue, Dunaway v. State, 90 Fla. 142, 143, 105 So. 816, 816 (1925) (“As a matter of right, defendant was entitled to no particular jury or jurors to try his case. He was entitled to a fair and impartial jury, and it is not claimed or intimated that the jury finally selected and sworn and by whom defendant was tried was not all that the law required.”); Chavers v. State, 827 So.2d 279 (Fla. 4th DCA 2002), review denied, 842 So.2d 843 (Fla.2003); O’Quendo v. State, 823 So.2d 834 (Fla. 5th DCA 2002) (citing Piccott v. State, 116 So.2d 626, 627 (Fla.1959), appeal dismissed and cert. denied, 364 U.S. 293, 81 S.Ct. 106, 5 L.Ed.2d 83 (1960)), the record shows that each was justifiably excused for cause: one of the jurors because he doubted his ability to be fair as a result of his having been unjustifiably accused by the police in the past, see Lebron v. State, 799 So.2d 997, 1014-15 (Fla.2001) (“The State, as well as the defendant, is entitled to an impartial jury.”) (citing Peteet v. State, 631 S.W.2d 816, 817 (Tex.App.1982)), cert. denied, 535 U.S. 1036, 122 S.Ct. 1794, 152 L.Ed.2d 652 (2002); Still v. State, 917 So.2d 250 (Fla. 3d DCA 2005); Ruland v. State, 614 So.2d 537, 538 (Fla. 3d DCA 1993), review denied, 626 So.2d 207 (Fla.1993), and the other because she was familiar with the defendant himself. See Busby v. State, 894 So.2d 88 (Fla.2004), cert. denied, — U.S. -, 125 S.Ct. 2976, 162 L.Ed.2d 906 (2005); Moore v. State, 939 So.2d 1116 (Fla. 3d DCA 2006); Henry v. State, 586 So.2d 1335 (Fla. 3d DCA 1991).

Affirmed.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Corey Nathanial YARUSSO, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5523.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Corey Yarusso challenges his conviction and sentence for resisting or obstructing an officer with violence, contending that the trial court should have granted his motion for judgment of acquittal because the State failed to prove all of the elements of the offense. We agree and reverse.

The testimony at trial showed that Deputy Cantrell and Corporal Taggart of the Lee County Sheriffs Office were working in plain clothes in a “high-burglary area” on the evening of June 13, 2004. At around 10:45 p.m., the officers saw a pickup truck driving with its lights off through the parking lot of a closed auto dealership. The officers pulled into the parking lot of the dealership, and after parking their unmarked sheriffs truck on the far side of the dealership, Cantrell approached Yarus-so, who by fhis time was “walking in front of a row of cars” on the lot. Cantrell testified that Yarusso’s actions were not necessarily unusual because the lights in the dealership lot were on and “we find people at 2:00 in the morning are genuinely shopping that don’t want to be bothered by a sales person.”

When he approached Yarusso, Cantrell did not identify himself as a police officer, but instead simply asked Yarusso how he was doing. Yarusso calmly replied that he was fine. Cantrell then asked Yarusso whether he worked at the dealership. Ya-russo replied, “No, do you work here?” Cantrell said he did not and then asked whether Yarusso was “just shopping.” Yarusso replied that he was. At that point, Cantrell asked Yarusso if he had any identification on him. Yarusso replied that he did not but that he had identification in his truck. When Cantrell asked Yarusso if he could see his identification, Yarusso asked, “Well, are you guys cops or something?” At that point, Taggart stepped forward and replied, “As a matter of fact, we are Lee County Deputy Sheriffs,” and he pulled out his badge. Yarus-so then indicated that he would get his identification from his truck.

Yarusso turned and began walking toward his truck, with the two officers walking slightly behind him. As the three men approached Yarusso’s truck, Cantrell walked toward the rear of the truck to get the tag number while Taggart followed Yarusso toward the driver’s door. Yarus-so opened the driver’s door and, after briefly fumbling around by the front seat, jumped into the driver’s seat, locked the door, started the truck, and began backing up. At that point, Taggart yelled, “Stop. Don’t do that. Stop.” However, Yarusso put his truck in drive and sped off, hitting Taggart’s hand with the truck’s rearview mirror in the process. Following a high-speed chase, Yarusso was arrested and charged with numerous offenses, including resisting or obstructing an officer with violence.

In this appeal, Yarusso contends, and the State does not dispute, that the interaction between Yarusso and the officers was a consensual encounter rather than an investigative detention. Thus, the narrow question in this appeal is whether Yarus-so’s act of getting into his truck, driving away from a consensual encounter, and hitting a police officer while driving away can support a conviction for resisting or obstructing an officer with violence. We hold under the facts presented here that it cannot.

Section 843.01, Florida Statutes (2004), defines the crime of resisting an officer with violence as follows:

Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree....

Thus, the State must prove that the defendant (1) knowingly (2) resisted, obstructed, or opposed a law enforcement officer (3) who was in the lawful execution of any legal duty (4) by offering or doing violence to his person. State v. Henriquez, 485 So.2d 414, 415 (Fla.1986). In this case, it is undisputed that an act of violence occurred when Yarusso fled from the officers. It is also undisputed that Cantrell and Taggart were law enforcement officers. What is disputed is whether Taggart was “engaged in the lawful execution of a legal duty” when the violent act occurred and whether Yarusso’s act of driving away constituted “resisting.”

The Florida Supreme Court recently addressed how courts should analyze the question of whether an officer is “engaged in the lawful execution of a legal duty” for purposes of section 843.01. Tillman v. State, 934 So.2d 1263 (Fla.2006). In doing so, the supreme court rejected the State’s argument that “section 776.051(1), Florida Statutes (2005), which prohibits the use of force to resist an arrest notwithstanding the illegality of the officer’s actions, extends to other types of police citizen encounters.” Id. at 1266. Instead, the court held that, in nonarrest cases, “trial courts should rely on the statutory and decisional law governing the particular duty in which the officer is engaged” to determine whether the officer was engaged in the lawful execution of a legal duty. Id. Moreover, to properly apply the “lawful execution” element, “courts must apply the legal standards governing the duty undertaken by the law enforcement officer at the point that an assault, battery, or act of violent resistance occurs.” Id. at 1271 (emphasis added).

In this case, the parties agree that Yarusso and the officers were initially engaged in a consensual encounter. The parties also agree that, as a general proposition, a law enforcement officer who engages a citizen in a consensual encounter is engaged in the lawful execution of his or her legal duties. However, the hallmark of a consensual encounter is the citizen’s right to either voluntarily comply with the officers’ requests or terminate the encounter at any time. Terry v. Ohio, 392 U.S. 1, 31-33, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, 626 So.2d 185, 186 (Fla.1993). Accordingly, when a citizen who is engaged in a consensual encounter with a police officer either verbally ends the encounter or takes some action that unequivocally demonstrates an intent to end the encounter, the consensual encounter ceases. Any effort by the officer to continue to detain the citizen after that point falls outside the lawful execution of that officer’s legal duties absent some founded suspicion that the citizen has committed, is committing, or is about to commit a crime. See Tillman, 934 So.2d at 1273 (“The detention of Tillman constituted lawful execution of a legal duty only if the facts known to the officer created a reasonable suspicion either that Tillman was involved in criminal activity or that he was armed and dangerous.”).

In this case, when Yarusso got into his truck, locked the door, and started the ignition, he clearly and unequivocally expressed his intention to terminate the consensual encounter. At that point, because Taggart had no reasonable, articulable suspicion that Yarusso was involved in criminal activity, Taggart’s effort to continue the encounter by telling Yarusso to stop was improper. Thus, when the alleged “act of violent resistance” occurred as Yarusso drove away, Taggart was no longer engaged in the “lawful execution of his legal duties” vis-a-vis Yarusso.

Turning to the question of whether Yarusso’s act of driving away from a consensual encounter constituted “resisting,” we note that when there is no basis for a temporary detention of the individual under Terry, a citizen’s act of walking away from a police officer cannot, as a matter of law, constitute resisting or obstructing an officer. See B.H. v. State, 505 So.2d 14, 15 (Fla. 3d DCA 1987). This court has repeatedly held that the simple act of fleeing from officers, without more, does not constitute resisting or obstructing an officer. See, e.g., J.J.N. v. State, 696 So.2d 804, 805 (Fla. 2d DCA 1997); F.E.C. v. State, 559 So.2d 413, 414 (Fla. 2d DCA 1990). Instead, an individual is guilty of resisting or obstructing an officer by flight only if he flees while knowing of the officer’s intent to detain him and if the officer is justified in detaining him. J.J.N., 696 So.2d at 805.

In this case, Yarusso did, in fact, flee while knowing of Taggart’s intent to detain him. However, neither Cantrell nor Tag-gart articulated any facts to support a legal basis to detain Yarusso pursuant to Terry. Rather, the parties agree that Ya-russo and the officers were engaged solely in a consensual encounter. Accordingly, under this court’s longstanding precedent, Yarusso’s flight from the officers cannot constitute “resisting” or “obstructing” an officer.

Moreover, Tillman requires courts to “rely on the statutory and decisional law governing the particular duty in which the officer is engaged” in determining whether the defendant’s actions are sufficient to support a conviction for resisting an officer. 934 So.2d at 1266. Here, the decisional law governing consensual encounters allows the citizen to terminate the encounter at any time and simply walk away. If we were to hold that the act of walking or driving away from a consensual encounter constituted “resisting” or “obstructing,” we would criminalize the act that is the very essence of such an encounter. The result would be that any citizen exercising his or her undisputed right to walk away from a consensual encounter would be guilty of the criminal offense of resisting or opposing an officer. We refuse to eviscerate the law on consensual encounters in this manner.

In this case, Yarusso unequivocally ended the consensual encounter before his truck struck Corporal Taggart. Therefore, at the time of the alleged “act of violent resistance,” Taggart was no longer engaged in the “lawful execution of a legal duty” vis-a-vis Yarusso. Moreover, Ya-russo’s act of driving away from a consensual encounter he had terminated cannot be considered “resisting” or “obstructing” the officers when they had no lawful right to detain him. We certainly do not condone Yarusso’s actions in this case, and we agree that it was wholly inappropriate for Yarusso to allow part of his vehicle to hit Taggart as Yarusso fled the scene. Yarus-so’s actions could have supported convictions for certain other crimes had the State properly charged them. However, under the facts presented here, Yarusso’s conduct was legally insufficient to support a conviction for resisting an officer with violence. Accordingly, we reverse this conviction and its sentence.

Reversed and remanded.

FULMER, C.J., and THREADGILL, EDWARD F., JR., Senior Judge, Concur.


author: PLEUS, C.J.

text:
    William REINER and Laura Reiner, Appellants, v. Curtis Wayne WRIGHT and Deena Lynn Wright, Appellees.
    No. 5D06-1084.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    Gary E. Shader, Maitland, for Appellants.
    Samuel R. Filler, Longwood, for Appel-lees.
   PLEUS, C.J.

William and Laura Reiner (“Reiners”) appeal a final judgment awarding custody of Ke.W., a child, to his natural father, Curtis Wright. The Reiners are the child’s maternal aunt and uncle and had custody of the child for nine years pursuant to a final judgment of dissolution between the mother and father. After the father was released from prison, he petitioned for custody. Without conducting an evidentiary hearing, the trial court awarded custody to the father on the ground that the father had an “absolute right to the child.” We reverse and remand for an evidentiary hearing to determine (1) whether the father is a fit parent; and (2) whether a transfer of custody to the father would be detrimental to the child.

The mother and father were married in 1993 and had two children (“Ke.W.” and “Ky.W.”). This appeal involves the custody of the younger child, Ke.W., born in April 1996. In October 1996, the child began residing with his maternal aunt and uncle, the Reiners. The Reiners petitioned the court for temporary custody based on the parents’ consent. The father’s consent, dated in October 1997, stated in relevant part:

That I agree that it is in the best interest of the child to remain with the Petitioners for a period of time not to exceed (42) calendar months. With the ability to terminate the Petition upon completion of my obligation to the State of Florida, and at which point I can provide a stable environment for the child.

In November 1997, the father was sentenced to three years in prison for robbery. In February 1998, the court granted the Reiners temporary custody of the child pursuant to the parents’ consent.

In August 1999, the mother filed a petition for dissolution of marriage. In June, 2000, the court entered a final judgment of dissolution of marriage. As to custody of Ke.W., the final judgment stated:

Because shared parental responsibility would be detrimental to the children, the Wife shall have sole parental responsibility and custody of [Ky.W.] and William and Laura Reiner, the maternal aunt and uncle, shall have sole parental responsibility of [Ke.W.] pursuant to the Order Granting Temporary Custody of Minor to Extended Family members, dated February 13,1998, in case number 97-2897-DR-05-E.

The court also ordered that “within 30 days of the Husband’s release from [prison], a hearing shall be scheduled to determine the access and contact schedule for the minor children and the Husband [sic] is in the minor children’s best interest.” The husband did not appeal this judgment.

After being released from prison, the father filed a motion for visitation. In 2002, the parties stipulated that the father could have supervised, and later, unsupervised visitation. The father then filed a petition for custody. In May 2005, the court entered an Order Determining Legal Standard for Trial on Custody Issue. The court ruled that the legal standard for trial on the custody issue would be (1) whether the father is a fit parent and (2) whether a transfer of custody to the father would be detrimental to the child.

On the day of trial, however, the trial court stated that the Reiners had “absolutely no rights at all unless it is granted through the Dependency Court.” Regarding the need for an evidentiary hearing, the father’s attorney argued, “My client should not be punished to prove that he is fit at this point in time in a lawsuit that hasn’t even been filed yet.” When the Reiners’ attorney asked to respond, the trial court stated, “No. I will find that the father is the parent of the child, at least the one that’s not incarcerated and that irrespective of his background, he has absolute right to the child.... ”

The Reiners filed a motion for rehearing in which they objected to not having an evidentiary hearing and to the trial court’s applying the wrong legal standard in making its decision. The court denied this motion.

On appeal, the Reiners argue that the standard should have been whether there had been a substantial change in circumstances and whether the change was in the child’s best interest, not whether the father was a fit parent and whether the change in custody would be detrimental to the child.

In Richardson v. Richardson, 766 So.2d 1036 (Fla.2000), the Florida Supreme Court reaffirmed its longstanding adherence to the rule of parental preference. Quoting from an earlier case, the court stated:

When a custody dispute is between two parents, where both are fit and have equal rights to custody, the test involves only the determination of the best interests of the child. When the custody dispute is between a natural parent and a third party, however, the test must include consideration of the right of a natural parent “to enjoy the custody, fellowship and companionship of his offspring. ... This is a rule older than the common law itself.” State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957). In Reeves we held that in such a circumst-nace [sic], custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child. We explained what would constitute detriment to the child and approved a temporary grant of custody to the grandparents because of the father’s temporary inability to care for the children after the mother’s death. We cautioned, however, that the father would be entitled to custody once his ability to care for the children was established. Id. at 20-21.

Richardson, 766 So.2d at 1039 (quoting In re Guardianship of D.A. McW., 460 So.2d 368 (Fla.1984)).

In Davis v. Weinbaum, 843 So.2d 290 (Fla. 5th DCA 2003), the paternal grandparents appealed a modification order awarding custody to the natural mother. Similar to the Reiners’ argument in the instant case, the grandparents in Davis argued that the trial court had erroneously applied the standard set forth in Richardson because their custody did not emanate from section 61.13(7), which Richardson held unconstitutional, but from a prior custody order. The grandparents argued that they were “custodial parents” by virtue of the prior custody order. This Court rejected the grandparents’ argument and followed Richardson, holding the trial court had applied the correct legal standard, to wit: whether the mother was a fit parent and whether a transfer of custody would be detrimental to the child. Davis, 843 So.2d at 294. See also Ward v. Ward, 874 So.2d 634 (Fla. 3d DCA 2004) (noting that Richardson standard, not substantial change in circumstance/best interest standard, is to be applied in proceeding to modify custody between natural parent and third party).

Accordingly, the Reiners’ argument that the lower court should have applied the substantial change in circumstance/best interest standard is not correct. However, the standard applied by the lower court was not correct either. Although the court had previously entered an order stating that it intended to apply the Richardson standard, it did not apply it. Instead, at trial, the court found that the father had an “absolute right to the child” and that the Reiners had “absolutely no rights at all.” Pursuant to these findings, the court awarded the father custody.

The record demonstrates that the trial court failed to conduct an evidentiary hearing before changing custody. The court should have conducted an evidentiary hearing in which the father had the burden to demonstrate that he was a fit parent and that changing custody from the Rein-ers to him was not detrimental to the child. Richardson; Ward. Detriment is something more than the normal trauma of uprooting a child from familiar surroundings. It is mental, physical or emotion harm of a lasting nature, transcending the normal adjustment period associated with such custody changes. Ward, 874 So.2d at 638.

Further, the Reiners had standing to present evidence on these issues. See Sinclair v. Sinclair, 804 So.2d 589, 592 (Fla. 2d DCA 2002) (holding that grandparents had standing to intervene in custody dispute because they had actual physical custody of child for many years).

Accordingly, we reverse and remand for a hearing to allow all parties to present evidence on this issues of whether the father is a fit parent and whether a change (or now, a continuation) in custody with the father would be detrimental to the child. The father should maintain custody of the child pending the outcome of such a hearing.

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.


author: EVANDER, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Jetty L. WEHRWEIN, Respondent.
    No. 5D06-1613.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.

      Charles D. Peters, Department of Children and Families, Orlando, for Petitioner.
    Vickie Sheridan Benson, Orlando, for Respondent.
   EVANDER, J.

The Department of Children and Families (DCF) has filed a petition for writ of certiorari, seeking review of a trial court order committing Wehrwein to the custody of DCF pursuant to section 916.13(1), Florida Statutes (2005). We find the trial court’s order departed from the essential requirements of law and grant the writ.

In 2000, Wehrwein was charged with sexual battery. He was subsequently, and continuously, adjudged incompetent to proceed to trial. He was retained in a mental health facility for almost five years. In December, 2005, a mental health intern at Florida State Hospital in Chattahoochee, Florida, determined that Wehrwein was competent to proceed and no longer met the criteria for involuntary commitment. A staff psychologist signed off on the intern’s report. Shortly after receiving the intern’s report, the trial court ordered Wehrwein to be re-examined by two psychiatrists. Both psychiatrists had previously examined Wehrwein.

At a hearing on April 6, 2006, both psychiatrists testified that Wehrwein was not competent to stand trial and that his state of incompetency “was most probably permanent in nature.” Both psychiatrists further concluded there were no known available treatments to reverse or ameliorate Wehrwein’s mental defects. The psychiatrists’ conclusions were essentially un-refuted.

Pursuant to section 916.145, it appeared likely that Wehrmein’s criminal case would be dismissed in June, 2006. The transcript of the hearing reveals a conscientious effort by the trial court, the prosecutor and the public defender to find an adequate placement for Wehrwein prior to the anticipated dismissal of his criminal case. The trial court ultimately entered an order committing Wehrwein back to DCF. DCF contends the order improperly required DCF to attempt to restore Wehrwein’s competency although the two examining doctors concluded Wehrwein’s incompetency was probably permanent. As a result, DCF contends, it was forced to divert limited treatment resources from individuals whose competency was restorable to an individual whose competency was not restorable.

The trial court’s order violates section 916.13(1). This section provides that a defendant adjudicated incompetent to proceed may be involuntarily committed upon a finding by the court of clear and convincing evidence that:

(a) The defendant is mentally ill and because of the mental illness:
1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or Mends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to defendant’s well-being and
2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(b) All available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings, which would offer an opportunity for improvement of the defendant’s condition have been judged to be inappropriate; and
(c) There is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future, (emphasis added)

In this case, the requirements set forth in section (c) were clearly not met. The overwhelming evidence was that the mental illness causing Wehrwein’s incompetency would not respond to treatment and that it was highly unlikely Wehrwein would ever respond to treatment.

We recognize certiorari is not available when there is no irreparable harm or the petitioner has another remedy. Dep’t of Children & Families v. Clem, 903 So.2d 1011 (Fla. 5th DCA 2005). In Clem, we found there was no irreparable harm where the trial court had involuntarily committed a defendant into DCF’s custody notwithstanding the lack of findings as to whether there was a substantial likelihood the defendant’s competency could be restored. However, the basis of our decision in Clem was that DCF had the opportunity to bring the defendant back before the court if DCF determined the defendant no longer met the criteria for continued commitment. Clem at 1014. See § 916.13(2), Fla. Stat. In Clem, DCF had not availed itself of this potential remedy prior to seeking relief in this court. By contrast, in the present case, DCF unsuccessfully pursued this remedy in the trial court prior to filing the instant certiorari action.

Subsequent to the filing of DCF’s petition for writ of certiorari, we were advised the criminal case against Wehrwein had been dismissed. As a result, the dispute between DCF and Wehrwein has been resolved. Generally, a moot case will be dismissed. However, it is well-settled that mootness does not destroy an appellate court’s jurisdiction where the questions raised are likely to recur. Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984). Because we believe this situation is likely to recur, we have determined this case should not be dismissed for mootness.

We recognize the able trial court judge was attempting to resolve a difficult situation in a compassionate manner. Unfortunately, the resulting order was contrary to the governing statute.

Petition for Writ of Certiorari is GRANTED.

PALMER and MONACO, JJ., concur.

      . Section 916.145, Florida Statutes (2005) provides:
      The charges against any defendant adjudicated incompetent to proceed due to the defendant's mental illness shall be dismissed without prejudice to the state if the defendant remains incompetent to proceed 5 years after such determination, unless the court in its order specifies its reasons for believing that the defendant will become competent to proceed within the foreseeable future and specifies the time within which the defendant is expected to become competent to proceed. The charges against the defendant are dismissed without prejudice to the state to refile the charges should the defendant be declared competent to proceed in the future.


author: ORFINGER, J.

text:
    Raymond ALLENDE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3717.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    James S. Purdy, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Raymond Allende was originally sentenced to twenty-five years in prison following his conviction for trafficking in cocaine in excess of 200 grams. In his first appeal to this Court, Mr. Allende contended that the trial judge vindictively sentenced him, as a consequence of proceeding to trial, rather than accepting the State’s plea offer. Finding that Mr. Allende’s claim was procedurally barred, we affirmed. See Allende v. State, 882 So.2d 472 (Fla. 5th DCA 2004). However, in a concurring opinion, two panel members strongly suggested that on the merits, Mr. Allende’s claim of a vindictive sentence was well-taken.

Thereafter, Mr. Allende filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that trial counsel was ineffective for failing to object to the original vindictive sentence. The State conceded Mr. Allende’s entitlement to resentencing, and the matter was reassigned to a new judge. After familiarizing herself with the case as required by Florida Rule of Criminal Procedure 3.231, a new sentencing hearing was conducted. Mr. Allende was sentenced to a term of twenty years in prison, followed by probation. Now on appeal, while conceding that the sentence imposed is legal, Mr. Allende contends that the sentence is still vindictive. We disagree and affirm.

A presumption of vindictiveness does not arise here, in part, because the judge who imposed the first sentence was not the judge who imposed the second sentence. Richardson v. State, 821 So.2d 428, 480 (Fla. 5th DCA 2002). Since there is no presumption of vindictiveness, the burden of proving actual vindictiveness is on Mr. Allende. Id. Because he presents nothing to demonstrate that the second trial judge was vindictive, he has failed to meet this burden. See Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Absent vindictiveness, the trial judge was free to impose any lawful sentence. Richardson, 821 So.2d at 430. As Mr. Allende concedes, the sentence here was lawful and was, therefore, within the trial judge’s discretion.

AFFIRMED.

LAWSON and EVANDER, JJ., concur.

      . § 893.135(l)(b), Fla. Stat. (2002).


author: PER CURIAM.

text:
    Marshall DIORIO a/k/a Marshall Foster and Sheila Hauser, Appellants, v. Kathleen A. GRANGER, as personal representative of The Estate of Herman Diorio, Appellee.
    No. 1D06-0230.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Charles A. Curran of Charles A. Curran, P.A., Carrabelle, for Appellants.
    Robert J. Telfer, III and Albert T. Gim-bel of Messer, Caparello & Self, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Appellants, Marshall Diorio a/k/a Marshall Foster and Sheila Hauser, seek review of the trial court’s Default Final Judgment and order denying their Motion for Relief from Judgment. We affirm the order denying appellants’ motion without further discussion. With respect to the Default Final Judgment, appellants contend that the trial court erred in entering it because they filed a pro se written response to the complaint filed by appellee, Kathleen A. Granger, the personal representative of the estate of Herman Diorio, and, alternatively, that the trial court erred in awarding appellee unliquidated damages and attorney’s fees without holding an evidentiary hearing. We reject appellants’ argument that the trial court erred in entering the Default Final Judgment but agree that the court should have held an evidentiary hearing on the issue of damages and attorney’s fees. See Szucs v. Qualico Dev., Inc., 893 So.2d 708, 711 (Fla. 2d DCA 2005) (holding that the appellant was entitled to a trial on the issue of damages because the damages were unliquidated); Williams v. Direct Dispensing, Inc., 630 So.2d 1195, 1196 (Fla. 3d DCA 1994) (noting that although a default judgment can be entered to establish liability, a trial with proper notice is necessary to establish unliquidated damages); see also Roggemann v. Boston Safe Deposit & Trust Co., 670 So.2d 1073, 1075 (Fla. 4th DCA 1996) (explaining that reasonable attorney’s fees constitute an unliquidated item of damages).

Accordingly, the Default Final Judgment is AFFIRMED as to liability but REVERSED as to damages and attorney’s fees and the case REMANDED for further proceedings.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Wilfredo DELGADO, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2751.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Wilfredo Delgado, pro se, Petitioner.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the trial court’s orders (1) denying his petition for a writ of mandamus challenging a forfeiture of gain time in his prison disciplinary proceeding and (2) imposing a lien on his inmate trust account to cover court costs and fees. Because the trial court afforded petitioner due process of law and did not depart from the essential requirements of law when it denied his petition for a writ of mandamus, we deny that portion of his petition for a writ of certio-rari on the merits. However, because, as respondent correctly concedes, the action in the trial court was a collateral criminal action as that term is defined in Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), we grant the petition to the extent it seeks to have the order placing a lien on his inmate trust account vacated. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

WEBSTER, BENTON, and VAN NORTWICK, JJ., concur.


text:
    J.K., A Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D06-2303, 1D06-2382.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Diego Puig and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

J.K., a child, appeals from the trial court’s juvenile disposition order which departed from the recommendation of the Department of Juvenile Justice (Department or DJJ) that J.K. be placed on probation and adjudication withheld, by ordering him committed to moderate risk placement without probation. Because the court’s reasons for departure failed to address why the restrictiveness level chosen was more appropriate for the needs of the child than that recommended by the Department, we reverse the disposition order and remand the case for further proceedings.

Following appellant’s pleas of guilty to the commission of certain delinquent acts, the Department prepared a predisposition report recommending that appellant be placed on probation and adjudication be withheld. In declining to follow the recommendation and in committing appellant to moderate placement with no probation, two levels above the DJJ’s recommendation, the court gave the following reasons: (1) appellant’s escalating criminal activity, ie., appellant had twice violated the terms of his diversion by committing new delinquent acts, viz., possession of cocaine and marijuana, and resisting an officer without violence; (2) his failure to appear in court to answer one of the offenses for which he was arrested; and (3) his presence on the public streets early in the morning without adult supervision. Nothing in the court’s order, however, explained why the needs of the child were better served by his placement in a moderate risk residential facility, rather than the probation recommended by the DJJ.

Although record support exists for each of the court’s findings, the Department’s staff nonetheless considered and evaluated the same information when it recommended probation as an appropriate sanction. This is not to say that the court lacks the discretion to depart from the DJJ’s recommendations; however, “the Legislature did not grant the trial court the authority to reject the recommendation simply because it disagrees with the DJJ’s assessment.” C.C.B. v. State, 828 So.2d 429, 431 (Fla. 1st DCA 2002). In interpreting the provisions of section 985.23(3)(c), Florida Statutes (2005), allowing the court to order placement at a different restrictiveness level from that recommended, this court has made the following pertinent comments: “The trial court must not only state its reasons for disregarding the recommended restrictiveness level on the record, the reasons must also be supported by a preponderance of the evidence and must make reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child,” or that this behavior constituted a danger to society. C.C.B., 828 So.2d at 431; see also M.W. v. State, 923 So.2d 552 (Fla. 1st DCA 2006); C.J. v. State, 923 So.2d 553 (Fla. 1st DCA 2006); N.B. v. State, 911 So.2d 833, 835 (Fla. 1st DCA 2005) (observing that the trial court may reweigh the same factors considered by the Department and come to a different conclusion, but in doing so, the court must state its reasons in the context of the needs of the child); A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999).

REVERSED and REMANDED.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    Johnny GAFFNEY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-1407.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.

      Johnny Gaffney, pro se, Petitioner.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Johnny Gaffney seeks certiorari review of an order denying his petition for writ of mandamus, in which he challenged the outcome of a prison disciplinary proceeding that resulted in a forfeiture of gain-time. We find no merit to Gaffney’s claim that the circuit court departed from the essential requirements of law when it denied mandamus relief, and therefore deny the portion of his petition for writ of certiorari directed to that issue. However, because Gaffney’s claim constituted a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes, we agree with petitioner that the trial court improperly imposed a lien on his inmate trust account to recoup court costs and fees. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

We therefore grant the petition for writ of certiorari to the extent it challenges the order imposing a lien, and quash that order. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

KAHN, HAWKES, and THOMAS, JJ., concur.


text:
    James WOMACK, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4602.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.

      Carey Haughwout, Public Defender, and Ellen A. Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, James Womack, and a co-defendant, Courtney Dempsey, were charged with attempted first degree murder of a police officer with a firearm and five counts of robbery with a firearm. Following a jury trial, Womack was convicted of four counts of robbery with a firearm and one count of attempted robbery with a firearm. The jury acquitted Womack of attempted first degree murder with a firearm. The written instructions given to the jury stated that the State had to prove that James Womack “and/or Courtney Dempsey” committed the elements of the crimes. Because we conclude that the written “and/or” instructions constituted error, we reverse for a new trial.

The evidence showed that Womack and his co-defendant, Courtney Dempsey, committed an armed robbery of several victims and, during a subsequent high speed chase, shots were fired at a police officer who was pursuing them. Womack and Dempsey were tried together, before separate juries. During the jury instruction conference, the court agreed not to use “and/or” instructions, after an objection was made; however, the written instructions given to the jurors were not modified. For example, the court gave the following written instruction pertaining to attempted first degree murder with a firearm to the jurors:

Before you can find the defendants guilty of Attempted First Degree Murder with a Firearm the State must prove the following four elements beyond a reasonable doubt:
1. James Womack and/or Courtney Dempsey did some act intended to cause the death of Leif Broberg that went beyond just thinking or talking about it.
2. James Womack and/or Courtney Dempsey acted with premeditated design to kill Leif Broberg.
3. The act would have resulted in the death of Leif Broberg except that someone prevented James Womack and/or Courtney Dempsey from killing Leif Broberg or they failed to do so.
4. In the course of committing the Attempted First Degree Murder, James Womack and/or Courtney Dempsey carried a firearm.

(Emphasis supplied). The written instructions for all of the other crimes charged also contained the “and/or” language.

In Dempsey v. State, 939 So.2d 1165 (Fla. 4th DCA 2006), we recently held that the “and/or” instructions in the co-defendant’s case required a new trial. We also noted our decision Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), in which we held that where “and/or” instructions are given in combination with a principals instruction, the error is not fundamental error. As a result, in Dempsey, we found it appropriate to certify a question of great public importance to the Florida Supreme Court “to determine if the ‘and/or’ instruction, given in combination with a principals instruction, is non-fundamental error.”

In accordance with our decision in Dempsey, we reverse Womack’s convictions for robbery with a firearm and attempted robbery with a firearm and remand for a new trial because the written “and/or” instructions were error. As in Dempsey, we also certify the following question as one of great public importance:

DOES THE USE OF AN “AND/OR” JURY INSTRUCTION, OVER OBJECTION, IN A CASE INVOLVING CO-DEFENDANTS, CONSTITUTE ERROR REQUIRING A NEW TRIAL, WHERE A PRINCIPALS INSTRUCTION IS GIVEN?

Reversed and Remanded for New Trial.

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


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    Denise DAKERS, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and Volunteers of America of Florida, Appellees.
    No. 4D05-4789.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Denise Dakers, North Lauderdale, pro se.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Commission.
   PER CURIAM.

Denise Dakers appeals a UAC order affirming the dismissal of her appeal as untimely. There is no dispute that Dakers did not file the appeal within the twenty-day time limit and Dakers does not contend that her failure to file was in any way the fault of the agency. She does not challenge the mailing date of the administrative decision, the correctness of the address to which it was mailed, or her timely receipt of the decision. In fact, she does not claim any misunderstanding, excusable or otherwise. Instead, Dakers claims she had good cause for her late filing as she was out of the country tending to a sick relative. Unfortunately, though, the statute governing unemployment compensation appeals does not provide a “good cause” exception to the statutory twenty-day period. See Thurman v. Fla. Unemployment Appeals Comm’n, 881 So.2d 89, 91 (Fla. 1st DCA 2004); Guerrero v. Fla. Unemployment Appeals Comm’n, 855 So.2d 266, 268 (Fla. 3d DCA 2003); Frederick v. Fla. Unemployment Appeals, 834 So.2d 957, 958 (Fla. 3d DCA 2003); Espinosa v. Cableoptics, Inc., 807 So.2d 195, 196 (Fla. 3d DCA 2002); Pelletier v. State, Unemployment Appeals Comm’n, 761 So.2d 413 (Fla. 2d DCA 2000); Applegate v. Nat’l Health Care Affiliates, Inc., 667 So.2d 332, 333 (Fla. 1st DCA 1995). Therefore, although sympathetic to her plight, we must affirm the UAC decision.

Affirmed.

STEVENSON, C.J., WARNER and TAYLOR, JJ., concur.


text:
    James WEST, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3066.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    James West, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Washington v. State, 895 So.2d 1141 (Fla. 4th DCA 2005), review denied, 931 So.2d 902 (Fla.2006).

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


text:
    Lorenzo PARKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3792.
    District Court of Appeal of Florida, First District.
    Nov. 28, 2006.
    Nancy Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner is hereby afforded a belated appeal from judgment and sentence in Leon County case number 2004 CF 3809 A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). Counsel shall be appointed for petitioner for the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

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


author: PER CURIAM. ERVIN, J.,

text:
    Timothy D. WILCOX, Appellant, v. AG MART PRODUCE d/b/a Santa Sweets and St. Paul Travelers, Appellees.
    No. 1D06-1280.
    District Court of Appeal of Florida, First District.
    Nov. 28, 2006.

      Bill McCabe, Longwood, for Appellant.
    C. Brad Drummond, Law Office of Jack D. Evans, Tampa, for Appellees.
   PER CURIAM.

Claimant was injured in a motor vehicle accident while driving a company vehicle home from work on March 2, 2005. After a hearing, the Judge of Compensation Claims (JCC) denied benefits to claimant based on the going and coming rule, section 440.092(2), Florida Statutes (2005). On appeal, claimant argues that the JCC erred in denying him compensation benefits for the following reasons: (1) the traveling employee exception to the going and coming rule, section 440.092(4), Florida Statutes (2005), precludes application of the going and coming rule on the facts of this case; (2) there is no competent substantial evidence in the record to support the JCC’s finding that claimant was operating an employer provided vehicle available for his exclusive personal use, and therefore, the going and coming rule does not apply; (3) there is no competent substantial evidence in the record to support the JCC’s finding that the dual purpose doctrine, an exception to the going and coming rule, is not applicable in this case. We affirm the JCC’s compensation order, which denied benefits to claimant.

BACKGROUND

Claimant worked as a farm supervisor for Ag Mart Produce. When he was hired by the employer, claimant was given a company vehicle as part of his compensation package to drive to and from work, and for business purposes. Additionally, claimant was allowed to use the vehicle for personal use, except that claimant would have to get approval if he used the vehicle for “excessive personal use.” The written personal use policy for the company vehicles provided the following: “While our vehicles are purchased solely for business purposes, we do allow employees to garage their company-owned vehicles at home. It has long been felt that this reduces our exposure to vandalism and provides better access for our employees to their various work assignments.”

Claimant’s trial summary and memorandum of law, provided before the hearing, argued that the company vehicle was not for his exclusive personal use, and also that the dual purpose doctrine applied to preclude application of the going and coming rule. The dual purpose argument was based on claimant’s allegations that the company received a benefit when he parked the vehicle at home.

Testimony was presented at the merits hearing relevant to the dual purpose doctrine. The president of the employer, Don Long, acknowledged the employer’s written personal use policy for the company vehicles. However, Long also testified that the vehicle was given to claimant as part of his compensation package, and that there was no benefit to the employer by having the claimant take the vehicle home.

Additionally, testimony was presented regarding claimant’s argument that he did not have exclusive personal use of the company vehicle. Claimant testified that he had the vehicle continually, and that the keys were in his possession 24 hours a day. However, he also testified that he did not drive the vehicle for personal use, except to and from home, and that other employees would drive the vehicle occasionally. Long testified that the employees could use the vehicles for incidental personal use, but that the employees must ask permission and fill out log forms for excessive personal use, such as vacations. Other evidence was admitted at the hearing that these logs did not exist and were never used.

Claimant also presented testimony that, as part of his duties, he completed paperwork daily at home because he had no office on the farm. The paperwork had to be delivered to Fort Lonesome daily at 9 a.m. No other testimony was admitted at the hearing to controvert claimant’s testimony regarding this required paperwork.

After the hearing, the JCC entered his compensation order, denying benefits. The JCC found that there was no business purpose to claimant’s travel at the time of the accident, and therefore, the dual purpose doctrine was not applicable. The JCC also found that the employer’s vehicle was available for the exclusive personal use of claimant. The JCC ultimately found that “[t]he claimant was in no different position on 3/2/05 than any other employee driving his own vehicle to or from work, therefore recovery of workers’ compensation benefits is barred by F.S. 440.092(2), otherwise known as the going and coming rule.”

ANALYSIS

Claimant’s first argument is that the traveling employee exception, section 440.092(4), should apply in this case to preclude application of the going and coming rule. This argument is based on facts established at the hearing that claimant had to complete paperwork at home on a daily basis, because the employer did not provide him with a place to complete the paperwork at the farm. However, claimant failed to preserve this argument below.

Although claimant mentioned factually that he had to complete part of his work at home on a daily basis, he never connected this fact with the legal argument that the traveling employees exception applies in this case. In his trial summary and memorandum of law, claimant specifically argues the other two issues on appeal, that the company vehicle was not for claimant’s exclusive personal use, and that the dual purposes doctrine applies in this case. However, claimant did not argue that the traveling employee exception barred application of the going and coming rule. Additionally, claimant failed to make this argument at the final hearing. Accordingly, claimant has failed to preserve this issue for appellate review. See Alpizar v. Total Image Beauty Salon, 650 So.2d 109, 110 (Fla. 1st DCA 1995) (providing that where an argument is not presented to the JCC, it is not preserved for appeal); Robinson v. Shands Teaching Hosp., 625 So.2d 21, 23 (Fla. 1st DCA 1993) (providing “[i]n workers’ compensation appeals, as in appeals generally, issues which have not been raised below are treated as not preserved, and will not be addressed”).

Claimant’s second argument on appeal is that the going and coming rule does not apply in this case because there was no competent substantial evidence that the claimant had exclusive personal use of the company vehicle. The going and coming rule applies only where a claimant maintains exclusive personal use of the vehicle. See Securex, Inc. v. Couto, 627 So.2d 595, 597 (Fla. 1st DCA 1993). However, the JCC specifically found that claimant had exclusive personal use of the vehicle. Based on the evidence admitted at the hearing, the JCC specifically found that “personal use of the vehicle was allowed and was intended to be part of claimant’s compensation.” Additionally, the JCC found that there were “no practical restrictions on claimant’s use of the vehicle” and that the employer “has made no effort to enforce [its personal use policy] or to monitor personal use of its vehicles in any meaningful way.”- Because these findings are supported by competent substantial evidence in the record, we will not disturb them on appeal.

Claimant’s third argument on appeal is that there is no competent substantial evidence to support the JCC’s finding that the dual purpose doctrine is not applicable in this case. The dual purpose doctrine is an exception to the going and coming rule and provides that an employer is liable for workers’ compensation benefits where an employee is injured during a trip “of a concurrent business and personal motive,” “[s]o long as the business purpose is ‘at least a concurrent cause of the trip.’ ” Swartz v. McDonald’s Corp., 788 So.2d 937, 945 (Fla.2001) (citing Cook v. Highway Cas. Co., 82 So.2d 679, 682 (Fla.1955)); see also Gilbert v. Publix Supermarkets, Inc., 790 So.2d 1057, 1059-60 (Fla.2001).

In its order, the JCC found that claimant did not have a dual purpose for his trip from work to home on March 2, 2005 because there was no business purpose to claimant’s travel. This finding of fact is supported by competent substantial evidence. The president of the employer, Long, testified that the company vehicle was provided to claimant as part of his compensation package. When asked whether there was a benefit to the employer of claimant having his company vehicle at home, Long replied “no.” Accordingly, this testimony provides competent substantial evidence that there was no dual purpose for claimant’s trip home at the time he was injured. It is not the proper role of this court to reweigh the evidence presented below. Cape Canaveral Hosp., Inc. v. Nickell, 668 So.2d 219, 220 (Fla. 1st DCA 1996) (“The JCC sits as the finder of fact where the testimony is conflicting, and this court will not reweigh the evidence so long as the JCC’s findings are supported by competent substantial evidence.”).

The dissent argues that the JCC misconstrued the dual purpose doctrine, and that the JCC erred in inquiring as to whether claimant was required to drive the company vehicle home. However, prior decisions of this court and the Florida Supreme Court have examined whether the task was one mandated by the employer and other similar factors in applying the dual purpose doctrine. See Swartz, 788 So.2d at 949-50 (ruling that the claimant’s transportation of the McDonald’s company booth for use at a job fair had a dual purpose and noting that the claimant’s transport of the booth “was sufficiently important to the operation of the job fair that it cannot be deemed a mere incidental benefit, especially in light of the repeated testimony regarding the mandatory nature of this employment responsibility”; noting that U.S. Fidelity & Guaranty Co. v. Rowe, 126 So.2d 737 (Fla.1961) continues to preclude recovery for employees who are “merely carrying tools of employment when injured and therefore, not performing a legitimate business purpose”); Rages v. Hughes Elec. Serv., Inc., 654 So.2d 1280 (Fla. 1st DCA 1995) (providing that the JCC’s finding that the claimant was not acting on behalf of the employer at the time of the accident was not supported by the record where the claimant parked his company vehicle at his residence for the convenience of the employer because an ordinance prohibited parking the commercial vehicles at the employer’s residence, out of which the business operated). Whether the employer required claimant to garage the vehicle at home or simply allowed him to do so was thus a relevant inquiry in deciding whether the trip had a business purpose. Accordingly, the JCC did not err on this basis.

Therefore, we reject all of claimant’s arguments on appeal, and affirm the JCC’s compensation order, denying benefits to claimant based on the going and coming rule.

AFFIRMED.

BARFIELD and POLSTON, JJ., concur;

ERVIN, J., concurs and dissents with opinion.

ERVIN, J.,

concurring and dissenting.

I concur with all issues decided by the majority except its affirmance of the portion of the order denying compensability of the injury, based on the finding by the judge of compensation claims (JCC) that the dual-purpose doctrine is, under the facts of the case, an inapplicable exception to the going-and-coming rule.

The facts, as they apply to this particular issue, were recited in the judge’s order as follows:

3. Claimant was employed as a farm supervisor by the employer, the operator of at least four farms in the Wimau-ma, Florida area. The claimant resides in Zephyrhills, Florida.
4. At the time of his hire claimant was provided with a Toyota Tacoma pick up truck to use in the performance of his job duties at the various farms operated by the employer and to drive to and from his home and work. The use of the employer’s vehicle was made available to claimant as part of his compensation package. The claimant was also allowed to use the vehicle for other unspecified personal business; use of the vehicle for purposes which were unusual or unexpected, by the employee, was subject to approval by the employer.
5¡i # :K
6. The claimant was involved in a motor vehicle accident while driving employer’s vehicle on Wednesday, 3/2/05. At the time of the accident claimant was on route from his work to the Balm Farm in the Wimauma area to his home in Zephyrhills. The claimant was stopped at a red light and was rear-ended by another vehicle.

Additionally, the record reflects that the employer had an established policy of permitting its employees to park company vehicles at their residential premises, because such policy “reduces our exposure to vandalism and provides better access for our employees to their various work assignments.” In rejecting the application of the dual-purpose doctrine to the facts before him, the judge found as follows:

The claimant did not have a dual purpose for his trip from work to home on 3/2/05. There was no business purpose to the claimant’s trip as existed in Hages v. Hughes Electrical Service, Inc., 654 So.2d 1280 (Fla. 1st DCA 1995). There is no evidence that claimant was required to drive the employer’s vehicle to and from work. While the employer believes that garaging of its vehicles at the employee’s home reduces the incidence of vandalism on its vehicles, there is no evidence that reduction of vandalism was the purpose of the trip on 3/2/05 or that reduction of vandalism was a “benefit” to the employer within the meaning of the term in Rages to thereby convert the personal purpose of claimant’s trip to his home into a business purpose of furthering the employer’s interest.

In my judgment, all of the reasons given to deny compensation, as further explained in this dissent, are either a misinterpretation of pertinent law, or not supported by competent, substantial evidence.

The JCC’s order is unclear as to why he considered the Rages decision compelled a different result from that in the present case. The only substantial difference in the facts of the two cases is that in Hages, the employee was apparently required, for the convenience of the employer, to drive the vehicle home because of an ordinance prohibiting the parking of commercial vehicles at the employer’s residence, whereas in the case sub judice no similar requirement was imposed. In this regard, the JCC’s “finding” involves an interpretation of law, and we review that determination, not by the competent, substantial evidence standard, but rather de novo.

The current status of the law pertaining to the dual-purpose doctrine is that the affected party need show only the existence of both a business and personal purpose, not that the business component be the dominant purpose; it need only be a concurrent cause of the trip. Nor is there any requirement that evidence be presented showing that the employer ordered the employee to drive the vehicle to his or her home. The supreme court in Gilbert v. Publix Supermarkets, Inc., 790 So.2d 1057, 1059-60 (Fla.2001), summarized the applicability of the doctrine in the following terms:

This Court first adopted the dual purpose exception to the “going and coming” rule in Cook [v. Highway Casualty Co., 82 So.2d 679 (Fla.1955) ]. In determining whether the employees’ workers’ compensation claims were compensable, we opined that the inquiry should not assess whether the business purpose is the dominant or more compelling purpose. Rather, compensation should depend upon whether the business and personal purposes are concurrent. In so doing, we rejected the stringent test formulated in Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), which inquired whether the employee would have still made the trip if the private errand had been canceled.
We reaffirmed and elucidated Cook in Nikko [Nikko Gold Coast Cruises v. Gulliford, 448 So.2d 1002 (Fla.1984) ]. In that case, the injured employee’s job duties included taking money home from the cash drawers and returning it early the next morning so that the employer would have a ready supply of cash to begin the next business day. See Nikko, 448 So.2d at 1003. The former owner of the company admitted that he initiated this practice and compensated the employee for the cost of taking the cash home at night and bringing it back in the morning. See id. After the employee was involved in an accident en route to work one morning, the new employer contested his workers’ compensation claim on the basis that the accident did not arise out of and in the course of his employment. See id. at 1003-04.
In determining whether the employee’s claim was compensable, we concluded that Cook was controlling. In so doing, we distinguished Nikko from United States Fidelity and Guaranty Co. v. Rowe, 126 So.2d 737 (Fla.1961), which involved an employee who was injured in an accident while transporting nursery school fees. We noted that contrary to Rowe, the employee in Nikko had a clear understanding with his employer regarding the arrangements for safeguarding the money, performed a task that was essential to the employer’s business, and received compensation for transporting the money. Consequently, Cook, not Rowe, was controlling. Although we noted that the circumstances in Nikko would have satisfied the more stringent Marks’ Dependents rule, which requires an inference that the trip would have been made if the private errand had been canceled, we expressly stated that we had previously rejected this rule in Cook.
In our recent decision in Swartz v. McDonald’s Corp., 788 So.2d 937 (Fla.2001), we held that injuries sustained by an employee who was both traveling home and transporting materials necessary for her attendance at a function for her employer were compensable under the dual purpose doctrine. In so doing, we reaffirmed our previous decisions by holding that so long as both a business and personal purpose exist, the dual purpose doctrine is applicable, and the accident is compensable.

(Emphasis added.)

In my opinion, the JCC completely misconstrued the dual-purpose doctrine. The JCC should have simply determined whether the business and personal purposes of the employer and employee were concurrent purposes or goals at the time of the accident. In so deciding, the only relevant inquiry should have been whether the employer believed that the goal of reducing vandalism could be achieved by allowing its employees to drive its vehicles home; not whether it required them to do so, or whether such goal, as expressed in its policy manual, was in fact achieved. The JCC’s finding that no evidence was presented that reduction of vandalism was the purpose of the trip on the date of the accident lacks record support. The employer’s policy directive established that purpose. If the judge meant by this finding that no evidence showed that the employee’s particular act of driving the company-owned vehicle home on the date of the accident in fact achieved the goal of reducing the threat of vandalism, the judge erred as a matter of law. The term “purpose” does not mean that the objective expressed by the employer must be actually accomplished; it means, among other things, “an object or end to be attained.” Merriam-Webster’s Collegiate Dictionary 919 (10th ed. 1998).

Although the employer’s president testified that no benefit ensued from the claimant’s driving the company vehicle home, this testimony is in stark contrast to the company’s own policy statement and, in my judgment, the employer should not be allowed to go behind it by stating the contrary. Additionally, the employer’s testimony is unclear. Did he mean that the reduction of vandalism was in fact not attained as a result of claimant’s parking the vehicle at his personal residence? If so, for the reasons previously stated in this dissent, such evidence is unnecessary. All that is required of the claimant is proof that the employer believed that it would benefit from claimant’s garaging the vehicle, not that the goal of reducing vandalism be actually accomplished. In fact, the JCC specifically found in the order that the employer believed that the parking of vehicles would reduce the incidence of vandalism, which appears to be an implicit rejection of the employer’s testimony.

Moreover, whether or not claimant was given the vehicle to drive as part of his compensation is immaterial because, as in Nikko Gold Coast Cruises, the employer also compensated the employee for using his vehicle for the goal of accomplishing a business purpose. Finally, there is nothing in the dual-purpose doctrine that precludes its application by reason of the claimant’s being allowed to use the vehicle for a personal use. The dual-purpose doctrine itself contemplates the employee’s personal use of the vehicle, as occurred in Nikko. Because the evidence clearly showed that the claimant’s trip served both a business and personal purpose or goal, the JCC erred in concluding the contrary. I would therefore reverse as to this issue and remand the case for further proceedings.

      . Section 440.092(2), Florida Statutes (2005), provides:
      An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.

      . This evidence was admitted by stipulation of the parties as to what claimant's supervisor would have testified to if he had been present at the hearing.

      . Section 440.092(4), Florida Statutes (2005), provides:
      An employee who is required to travel in connection with his or her employment who suffers an injury while in travel status shall be eligible for benefits under this chapter only if the injury arises out of and in the course of employment while he or she is actively engaged in the duties of employment. This subsection applies to travel necessarily incident to performance of the employee’s job responsibility, but does not include travel to and from work as provided in subsection (2).

      . Because this is a question of fact, the standard of review is whether there is competent substantial evidence to support the JCC's findings. Gulbrandsen v. Carlton Wilbert Vault, Inc., 742 So.2d 294 (Fla. 1st DCA 1998).

      . Because this is also an issue of fact, the competent substantial evidence standard of review applies. See Gilbert, 790 So.2d at 1060.


text:
    Donald E. IRVIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3297.
    District Court of Appeal of Florida, Fifth District.
    Nov. 28, 2006.
    Donald E. Irvin, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Tillman v. State, 609 So.2d 1295 (Fla.1992).

PLEUS, C.J., GRIFFIN and ORFINGER, JJ., concur.


text:
    Travis MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3331.
    District Court of Appeal of Florida, Fifth District.
    Nov. 28, 2006.
    Travis Moore, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Mongo v. State, 846 So.2d 613 (Fla. 1st DCA 2003).

PALMER, ORFINGER and TORPY, JJ., concur.


text:
    Eric Shane COX, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5467.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 2006.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Eric Cox appeals a final order revoking his probation. We affirm the revocation of probation and the sentence imposed by the trial court. We remand for entry of a written order of revocation. See Lytle v. State, 696 So.2d 848, 849 (Fla. 2d DCA 1997); Dietz v. State, 534 So.2d 808, 809 (Fla. 2d DCA 1988).

Affirmed; remanded.

CASANUEVA, STRINGER, and LaROSE, JJ., concur.


author: ALTENBERND, Judge.

text:
    Nicholas Joseph MOLFETTO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-409.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 2006.

      Nicholas Joseph Molfetto, Jr., pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Nicholas Joseph Molfetto, Jr., appeals his sentence of thirty years’ imprisonment as a habitual felony offender for the offense of escape, entered after this court reversed an earlier sentence for this offense. We affirm. In 2001, Mr. Molfetto was convicted of felony fleeing to elude, felony petit theft, obstructing or opposing an officer without violence, and escape from police custody. Originally, he was sentenced on the escape conviction to forty years’ imprisonment as a violent career criminal pursuant to section 775.084(4)(c), Florida Statutes (Supp.1998). Thereafter, Mr. Molfetto filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied the motion. On appeal, this court affirmed except for one issue. We reversed and remanded for a determination of whether the record established the existence of an offense in New York that was essential for sentencing in Florida as a violent career criminal. Molfetto v. State, 874 So.2d 668 (Fla. 2d DCA 2004). At the conclusion of that opinion, we stated: “If Molfetto does not have the necessary prior convictions, he is entitled to be resentenced according to the sentencing guidelines; otherwise, the trial court should attach copies of his prior convictions or other portions of the record that conclusively show Molfetto was qualified to' be sentenced as a VCC.” Id. at 669.

On remand, the trial court resentenced Mr. Molfetto as a habitual felony offender and imposed a sentence of thirty years’ imprisonment pursuant to section 775.084(4)(a). Mr. Molfetto contends that the trial court could not impose a habitual felony offender sentence in this case and was compelled to impose a sentence according to the guidelines because of the above-quoted language from this court’s prior opinion. Although our prior opinion could have been more precise, we disagree with Mr. Molfetto’s argument.

In this case, violent career criminal sentencing is only one of several possible enhancements under section 775.084. On remand, the trial court determined that Mr. Molfetto did not qualify for an enhanced sentence as a violent career criminal but that he did qualify for an enhanced sentence as a habitual offender. We did not intend by the language in our prior opinion to prevent that option and would have had no legal basis for that restriction if we had attempted to impose it for a proceeding pursuant to rule 3.800(a).

Accordingly, we affirm the habitual felony offender sentence in this case because it is a lawful and appropriate sentence.

Affirmed.

SALCINES and KELLY, JJ., Concur.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Constance REGAR, as assignee of Jennifer E. Weaver, Appellee.
    No. 2D05-4719.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 2006.

      Daniel A. Martinez, Michael T. Callahan, Weslee L. Ferron, and Jennifer C. Worden of Callahan Martinez, L.L.C., St. Peters-burg, for Appellant.
    Nancy A. Lauten and George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Appellee.
   STRINGER, Judge.

Allstate Insurance Company seeks review of the final order awarding Constance Regar $220,340.23 in attorney’s fees in her capacity as assignee of Jennifer E. Weaver’s third-party bad faith action against Allstate. Allstate argues that Regar was not entitled to attorney’s fees pursuant to section 627.428, Florida Statutes (2004), because she is not the named insured. Allstate also argues that Regar was not entitled to a fee multiplier for fees awarded under section 627.428. We conclude that neither of Allstate’s arguments has merit and affirm.

Regar and Weaver were involved in an automobile accident in which Regar sustained injuries. At the time of the accident, Weaver was driving her mother’s vehicle. Weaver’s mother had an insurance policy that provided liability coverage to Weaver as a permissive user of her mother’s vehicle. The policy provided $25,000 per person bodily injury liability coverage.

On December 31,1997, Regar’s attorney sent a letter to Allstate offering to settle Regar’s personal injury claim for Allstate’s applicable policy limits, provided the limits were tendered at his office in thirty days. In the letter, Regar’s attorney asserted that Regar would execute a release “prepared by [his] office” when Allstate tendered the policy limits. Allstate responded by requesting copies of Regar’s medical records, medical bills, and the proposed release.

Regar’s attorney responded by remitting the requested information and reminding Allstate about the thirty-day time limit for settlement. On January 15, 1998, Allstate sent Regar’s attorney a check for the policy limits and Allstate’s standard form release. Allstate also sent a letter that asked Regar’s attorney to use Allstate’s standard release and to call if Allstate’s standard release was not acceptable.

Regar’s attorney responded by returning Allstate’s check for the policy limits with a letter in which he stated that he considered the previous letter a rejection of his offer. The letter set forth the objectionable portions of Allstate’s standard release in detail. Allstate then revised its release in accordance with Regar’s attorney’s objections and re-sent the check for the policy limits. Although this correspondence was hand-delivered within the thirty-day time limit, Regar’s attorney responded that Regar would no longer settle her claim for Allstate’s policy limits. Re-gar’s attorney suggested that he might be willing to discuss settlement above Allstate’s policy limits. Despite Allstate’s attempts to settle for the policy limits thereafter, Regar’s attorney filed a tort suit in the circuit court.

Allstate settled the tort suit for $300,000, and Weaver assigned Regar her potential third-party bad faith claim against Allstate in exchange for Regar’s promise not to execute the judgment in the tort suit. Regar then filed a complaint suing Allstate for bad faith in the tort suit. The parties settled the bad faith action, and Regar filed a motion seeking attorney’s fees pursuant to section 627.428, Florida Statutes (2004). The trial court awarded Regar attorney’s fees of $220,340.23, which included a 1.75 multiplier.

Attorney’s Fees Pursuant to Section 627428

The first issue in this case is whether an assignee of a third-party bad faith claim is entitled to attorney’s fees pursuant to section 627.428 when the assignee obtains a favorable judgment in the bad faith action. Although the parties vigorously dispute the standard of review, it is clearly de novo because this is a question of statutory interpretation and a pure question of law. B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1254 (Fla.2004).

Section 627.428 provides:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

Allstate claims that an assignee of a third-party bad faith claim is not entitled to fees under this section because such an assign-ee is not a “named or omnibus insured or the named beneficiary.” Allstate argues that an award of fees to an assignee of a third-party bad faith claim would not be consistent with the purpose of section 627.428.

Our analysis of this issue begins with a brief examination of the genesis of third-party bad faith claims. Florida courts have historically allowed “third-party bad faith claims” in which an insured sues his liability insurer for bad faith in failing to settle a claim that ends with a third-party judgment against the insured in an amount greater than the policy limits. Time Ins. Co. v. Burger, 712 So.2d 389, 391 (Fla.1998). Part of the reason Florida courts recognized third-party bad faith actions is that the insurers had the power and authority to litigate or settle their insureds’ claims and owed their insureds a duty of good faith and fair dealing in exercising this power and authority. Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1125 (Fla.2005).

This duty of good faith and fair dealing is “a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980). This duty is imposed because under the terms of the insurance policy the insured has surrendered to the insurer control in how the claim is handled, including how the claim is settled. Id.

The duty of good faith is a contractual duty, and an action for its breach is governed by contract law. Gov’t Employees Ins. Co. v. Grounds, 332 So.2d 13, 14 (Fla.1976); N. Am. Van Lines, Inc. v. Lexington Ins. Co., 678 So.2d 1325 (Fla. 4th DCA 1996); Swamy v. Caduceus Self Ins. Fund, Inc., 648 So.2d 758, 760 (Fla. 1st DCA 1994). A third-party bad faith cause of action is assignable because it derives from a contract, i.e., it arises out of the breach of the contractual duty of good faith. Nationwide Mut. Ins. Co. v. McNulty, 229 So.2d 585, 586-87 (Fla.1969); Higgs v. Indus. Fire & Cas. Ins. Co., 501 So.2d 644, 645-46 (Fla. 3d DCA 1986).

Here, there is no dispute that Weaver could assign her third-party bad faith cause of action to Regar. There is also no dispute that had Weaver pursued and prevailed in her own third-party bad faith cause of action against Allstate, she would have been entitled to attorney’s fees pursuant to section 627.428. See Campbell v. Gov’t Employees Ins. Co., 306 So.2d 525, 532 (Fla.1974).

Allstate argues that an assignee of a third-party bad faith claim is not entitled to fees under this section because such an assignee is not a “named or omnibus insured or the named beneficiary.” It is interesting to note that attorney’s fees clearly are available to an assignee of an insured’s coverage under section 627.428 in other types of disputes against insurers. See, e.g., Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977); All Ways Reliable Bldg. Maint., Inc. v. Moore, 261 So.2d 131, 132 (Fla.1972); Magnetic Imaging Sys., I, Ltd., v. Prudential Prop. & Cas. Ins. Co., 847 So.2d 987, 989-90 (Fla. 3d DCA 2003); Superior Ins. Co. v. Libert, 776 So.2d 360, 365 (Fla. 5th DCA 2001). “[A]n assignee of an insurance claim stands to all intents and purposes in the shoes of the insured and logically should be entitled to an attorney’s fee when he sues and recovers on the claim.” All Ways Reliable, 261 So.2d at 132.

In direct contravention of Allstate’s argument, these principles have been applied to allow for attorney’s fee awards to assignees of third-party bad faith claims under section 627.428. See Kivi v. Nationwide Mut. Ins. Co., 695 F.2d 1285, 1288 n. 3 (11th Cir.1983); Liberty Mut. Ins. Co. v. Davis, 412 F.2d 475, 486 (5th Cir.1969); Travelers Ins. Co. v. Jones, 422 So.2d 1000, 1005 (Fla. 4th DCA 1982), disapproved on other grounds, Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla.1985). As explained by the Fifth Circuit:

The [assignees] have stood in the shoes of the insured; they brought his claim. The purpose of the statute is to penalize an insurer’s intransigence when it forces a claim to be litigated. Bad faith, if found, is the equivalent of such intransigence, and the penalty should be enforceable, by assignees no less than the insured. The entire cause of action was assigned, including [the insured’s] right to attorneys’ fees.

Davis, 412 F.2d at 486; see also Kivi, 695 F.2d at 1288 n. 3.

We agree with the analysis of the Fifth Circuit. In our view, assignees of third-party bad faith claims are no different than assignees of insurance contracts for purposes of fees under section 627.428. If the entire cause of action is assigned, then the assignee stands in the shoes of the insured and is entitled to all remedies to which the insured would otherwise be entitled.

Allstate recognizes that assignees of an insured’s coverage are entitled to attorney’s fees under section 627.428 when they are forced to sue and recover on their claims. Allstate contends that an award of fees to an assignee of an insured’s coverage is consistent with the purpose of section 627.428, but an award of fees to an assignee of a third-party bad faith claim is not consistent with the purpose of section 627.428. Allstate argues that the purpose of section 627.428 is to ensure that the insurer does not improperly deny coverage and section 627.428 was not intended to benefit any party other than an insured who is compelled to defend or sue to enforce their insurance contract.

To support this argument, Allstate relies on Roberts v. Carter, 350 So.2d 78 (Fla.1977). Allstate’s argument is based on this excerpt from Roberts: “[A]n award of attorney’s fees under Section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.” Id. at 79 (footnotes omitted). This excerpt must be taken in context, however. The question on appeal in Roberts was whether an injured third-party claimant, who was a third-party beneficiary of the insurance contract, was entitled to attorney’s fees under section 627.428 in an action against the insurer. In answering this question, the court noted that section 627.428 must be strictly construed and would only support an award of attorney’s fees to a “narrow statutory class” who was “required to litigate a valid claim against an insurer.” Id. at 78.

Thus, the supreme court held that attorney’s fees were awardable to “the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.” Id. The court did not address the issue of whether attorney’s fees were awardable to assignees of third-party bad faith claims. Moreover, the court did not state that attorney’s fees were not available to any other types of assignees. Thus, we conclude that Roberts does not preclude attorney’s fees in this case.

In a similar vein, we are not persuaded by Allstate’s reliance on cases holding that third parties who bring common law bad faith suits without/an assignment are not entitled to fees under section 627.428. See, e.g., Safeco Ins. Co. of Am. v. Albriza, 365 So.2d 804, 806 (Fla. 4th DCA 1978). Obviously a third party in such cases is not a “named or omnibus insured or the named beneficiary,” and without an assignment, the third party does not stand in the shoes of the insured.

We are not unsympathetic to Allstate’s plight in this case. The number of bad faith cases filed in the courts appears to be exponentially increasing, but the increase does not appear to be directly linked to the actions of the insurers. Instead, plaintiffs attorneys are filing bad faith actions over issues that it seems could be simply resolved, like the wording of the release in this case. These attorneys are perhaps motivated by the promise of fees under section 627.428 upon prevailing in these actions. Certainly this case has mushroomed into over $200,000 in attorney’s fees plus an as-yet-undetermined amount of appellate attorney’s fees from an initial offer of settlement for meager policy limits of $25,000. However, section 627.428 does not distinguish between coverage disputes and bad faith actions. While we are not certain that outcomes like today’s were contemplated at the time of the statute’s enactment, that issue is for resolution by the legislature.

In this case, the third-party bad faith action derived from the insurance contract between Allstate and Weaver, i.e., it arose out of the breach of the contractual duty of good faith. Weaver assigned the entire bad faith cause of action to Regar, including Weaver’s right to statutory attorney’s fees. When Allstate settled the bad faith claim, Regar, as Weaver’s assignee, was entitled to attorney’s fees pursuant to section 627.428. Thus, although Regar is not a “named or omnibus insured or the named beneficiary,” she is entitled to attorney’s fees because she is standing in the shoes of that person.

Fee Multiplier

The second issue in this case is whether a trial court has the discretion to award a multiplier to attorney’s fees awarded under section 627.428. Allstate argues that the trial court erred in awarding a fee multiplier because (1) section 627.428 is penal in nature and (2) the purpose of section 627.428 is not consistent with the purpose of awarding a multiplier. Allstate does not argue that the trial court abused its discretion in determining whether a fee multiplier was appropriate under the facts of the case but argues that, as a matter of law, a fee multiplier is not applicable under section 627.428. As with issue I, this is a pure question of law that is reviewed de novo.

Allstate candidly admits that the Florida Supreme Court has already decided that a fee multiplier is appropriate in cases awarding fees pursuant to section 627.428. See Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). In Quanstrom, the issue was whether a contingency fee multiplier was mandatory for attorney’s fees awarded under section 627.428 pursuant to the supreme court’s previous decision in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). The Quanstrom court determined that the use of a multiplier was not mandatory but held that, in tort and contract cases, the use of a multiplier could be appropriate “when a risk of nonpayment is established.” Quanstrom, 555 So.2d at 834.

Allstate argues that some policy language in Sarkis v. Allstate Insurance Co., 863 So.2d 210 (Fla.2003), leaves open the question of whether Quanstrom is still good law. Allstate’s argument is based on this excerpt from Sarkis: “[A] statute imposing a penalty must be strictly construed in favor of the one against whom the penalty is imposed.” Sarkis, 863 So.2d at 223 (citing Hotel & Rest. Comm’n v. Sunny Seas No. One, Inc., 104 So.2d 570, 571 (Fla.1958)). In Sarkis, the supreme court strictly construed what it concluded were penal attorney’s fees provisions in section 768.79, Florida Statutes (1997), and Florida Rule of Civil Procedure 1.442 to determine that a multiplier was not appropriate for fees awarded under those authorities. Allstate argues that section 627.428 is also a penal provision and that it should also be strictly construed to preclude an award of attorney’s fees.

Our sister courts have rejected this argument, but the courts nonetheless certified the question to the supreme court. See Progressive Auto Pro Ins. Co. v. Wynne Chiropractic, Inc., 905 So.2d 1038 (Fla. 5th DCA 2005), review denied, 928 So.2d 336 (Fla.2006); Mercury Cas. Co. v. Flores, 905 So.2d 179 (Fla. 3d DCA 2005), review denied, 928 So.2d 335 (Fla.2006); Holiday v. Nationwide Mut. Fire Ins., 864 So.2d 1215 (Fla. 5th DCA 2004), review denied, 924 So.2d 809 (Fla.2005). The supreme court has repeatedly denied review of this certified question.

Like our sister courts, we are not persuaded that the court’s decision in Sarkis implicitly overruled its prior holding in Quanstrom. For one thing, the supreme court has said that it does not implicitly overrule itself. Puryear v. State, 810 So.2d 901, 905 (Fla.2002). Moreover, the court’s decision in Sarkis addressed the propriety of applying a fee multiplier to attorney’s fee awards under section 768.79 and rule 1.442, which deal with offers of judgment. 863 So.2d 210. The Sarkis court concluded that the purpose of each of those provisions:

[is] very different from the reason that we authorized the use of a multiplier in Quanstrom ... and Rowe. In those cases, we authorized the use of a multiplier to promote access to courts by encouraging lawyers to undertake representation at the inception of certain cases. We agree with the Third District Court of Appeal’s analysis ... that Quanstrom specifically refers to obtaining counsel in the first instance. It is self-evident that attorney fees awarded as a sanction under section 768.79 and rule 1.442 are awarded after an attorney has already been obtained and agreed to undertake the case, and thus the use of a multiplier is not consistent with the purpose of the fee-authorizing statute.

Id. at 222-23 (citations omitted). In our view, the Sarkis court reaffirmed the holding in Quanstrom that the use of a multiplier could be appropriate under section 627.428 when there is a risk of nonpayment.

In summary, we hold that the trial court properly awarded Regar attorney’s fees pursuant to section 627.428 as an assignee of a third-party bad faith claim in which she obtained a favorable judgment. We also conclude that the trial court properly determined that it had the discretion to award a multiplier to the attorney’s fees awarded under section 627.428. Accordingly, we affirm the judgment below.

Affirmed.

SALCINES and WALLACE, JJ., Concur.

      . While this type of claim is not what we would traditionally call a "third-party” claim because it is brought by the first-party insured against the insurer, the use of the term "third-party bad faith claim” is more of a term of art.


author: WELLS, Judge.

text:
    Kenneth WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-704.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.

      Kenneth Walker, in proper person.
    Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ON MOTION FOR REHEARING DENIED

WELLS, Judge.

The motion for rehearing i^ denied. We withdraw our order of March 31, 2006 and substitute the following in its place.

In this petition for writ of habeas corpus Kenneth Walker claims ineffective assistance of appellate counsel. On our independent review of the record and the State’s confession of error, we grant the writ sought. For the reasons stated in Harris v. State, 937 So.2d 211, 212 (Fla. 3d DCA 2006), based on the totality of the circumstances, the trial court committed fundamental error when it included the conjunction “and/or” in the jury instruction between Walker’s name and that of co-defendant Harris. See Dorsett v. McRay, 901 So.2d 225, 227 (Fla. 3d DCA 2005). Walker’s appellate counsel rendered ineffective assistance of appellate counsel by failing to raise this issue on direct appeal.

We, therefore, grant the petition, reverse Walker’s conviction, vacate his sentence, and remand the ease for a new trial.


text:
    ARMOR CORRECTIONAL HEALTH SERVICES, INC., Petitioner, v. Howard AULT, as defendant in State v. Ault and State of Florida, Respondents.
    No. 4D06-2809.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.

      Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauder-dale, for respondent State of Florida.
   PER CURIAM.

Armor Correctional Health Services, Inc., seeks certiorari review of a non-final order of the circuit court entered on June 16, 2006 in a criminal case. The order required Armor to follow a specific medical protocol to document the administration of a defendant’s psychotropic medication. The defendant is in the Broward County Jail pending a penalty phase proceeding in a capital case. The Sheriff of Broward County contracted with Armor to provide health care services to those confined in the county jail.

We conclude that the June 16 order constitutes a departure from the essential requirements of law which will materially injure Armor throughout the remainder of the proceedings. Because Armor is not a party to the criminal case, a direct appeal in that case will not provide it with relief. See Florida Dep’t of Health & Rehab. Servs. v. Myers, 675 So.2d 700 (Fla. 4th DCA 1996).

Operation of the county jail is within the province of the executive and legislative branches of government, not the judicial branch. See Arrington v. Wainwright, 452 So.2d 1120, 1121 (Fla. 4th DCA 1984) (citing Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989)). While the system devised by the circuit court may be a good idea from the standpoint of providing hard, objective evidence that the defendant has received the appropriate medication, the trial court has no authority to dictate how Armor carries out the sheriffs duty to provide medical care to jail inmates. Compare Singletary v. Acosta, 659 So.2d 449 (Fla. 3d DCA 1995) (reversing portions of defendant’s sentence where trial court directed Department of Corrections to place defendant in specific drug treatment center and to provide specified treatment and medication).

The petition for writ of certiorari is granted and we quash the June 16, 2006 order of the circuit court.

STONE, SHAHOOD and GROSS, JJ., concur.

      . Although given an opportunity to file a response to the petition, the criminal defendant has not done so. The state’s response to the petition observes merely that the defendant, as the beneficiary of the challenged order, was the party who should respond.