author: MONACO, J.

text:
    TSA STORES, INC., A Delaware Corporation, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D06-1775.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2007.

      Brian J. Gillis, of Bogin, Munns & Munns, P.A., Orlando, and William E. Ra-ney, of Copilevitz & Canter, LLC, Kansas City, Missouri, for Appellant.
    Louis E. Stolba and Raymond C. Conk-lin, of Florida Department of Agriculture and Consumer Services, Tallahassee, for Appellee.
   MONACO, J.

This case causes us to examine the reach of section 501.059, Florida Statutes (2004), the statute that governs telephone solicitations in Florida. TSA Stores, Inc., which operates retail establishments in Florida known as “The Sports Authority,” seeks reversal of the trial court’s Final Summary Judgment and Permanent Injunction in which the court: (1) permanently enjoined TSA from calling Florida consumers whose names appear on the quarterly “no sales solicitation calls” list published by the ap-pellee, State of Florida Department of Agriculture and Consumer Services; and (2) permanently enjoined TSA from using or employing an automated system for the selection and dialing of telephone numbers or playing a recorded message when the number called is answered; and (3) imposed a civil penalty for the statutory violations. We are presented in this case with issues of first impression in Florida. We affirm the final judgment as it relates to the automated dialing and recorded message violations, but reverse with respect to the calls on the “do-not-call” lists because these calls fall within a statutory exemption.

The Department initiated this case by the filing of a complaint accusing TSA of violating sections 501.059(4) and (7), and seeking injunctive relief and civil penalties. At the time TSA had its principal place of business in Broward County, Florida, but the telephone calls that form the substance of the complaint were made to consumers throughout Florida, including Orange County, the venue for this action. The Department alleged that TSA was conducting part of its business by making or allowing others to make telephonic sales calls to citizens of Florida and playing a recorded message when the number called was answered. According to the Department, TSA had been making unsolicited telephonic sales calls to persons in this state whose names appeared on the then-current quarterly no sales solicitation list published by the Department. In addition, the Department alleged that TSA made or knowingly allowed sales call to be made with an automated system without a live operator introducing the message in violation of section 501.059(7), Florida Statutes.

TSA first attempted to remove this case to the United States District Court for the Middle District of Florida. TSA posited that the Federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, preempted section 501.059, and that removal was, therefore, justified. The federal court concluded, however, that the case was improvidently removed from the Florida courts, and remanded it back to the Circuit Court for Orange County, Florida.

After the close of the state court pleadings, the Department moved for summary-judgment. The trial court, in granting summary judgment, first adopted the rulings of the federal court as its own. It then concluded that TSA violated section 501.059 in two distinct ways.

First, it addressed the issues surrounding seventy-seven persons who actually made purchases at The Sports Authority facilities in Florida within 18 months preceding TSA’s making of an unsolicited telephone sales call. Each of these persons was on the Florida “do-not-call” list. TSA asserted that all of these persons fell within the exemption set forth in section 501.059(l)(c)3., which allows a telephonic sales call to a person on the “do-not-call” list if that person is one “with whom the telephone solicitor has a prior or existing business relationship.” The Department, however, argued that a “business relationship” implies more than the “mere speculation” that a past customer may choose to buy from TSA again. The trial judge agreed with the Department and concluded that “the mere occurrence of sales to TSA’s past customers — without more — do [sic.] not constitute ‘prior or existing business relationships’ within the contemplation of subsection 501.059(l)(c)3.”

Next, the trial court considered the issues surrounding seventy-three persons on the do-not-call list who received a recorded message concerning a sale to be held at TSA’s stores within Orange County, Florida. TSA in this connection was charged with violating section 501.059(7)(a), which reads:

No person shall make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.

While this provision specifically protects persons on the do-not-call list, it does not appear to be subject to an exception for prior or existing business relationships. See § 501.059(7)(b), Fla. Stat. (2004).

TSA argued, first, that the automated pitches were not “telephonic sales calls” because they only invited past customers to a sales event at TSA stores. Next, it argued that in any event, each of these calls was made from California to Florida customers, and that because Florida courts do not have jurisdiction over interstate calls, the statute did not apply to it. The trial court found, however, that the Florida statute applied, and that TSA violated it because the calls constituted telephonic sales calls within the meaning of the statute. Implicit in these holdings of the trial court is the conclusion that even though the telephone calls were initiated from outside of Florida, the TCPA did not preempt the applicable Florida statute.

I. Federal Preemption.

The TCPA resulted from findings made by Congress during the early 1990’s that for many consumers telemarketing sales calls were an “intrusive invasion of privacy,” as well as an unwanted opportunity for unscrupulous persons to commit fraud upon them. See Mainstream Mktg. Servs., Inc. v. F.T.C., 358 F.3d 1228, 1235 (10th Cir.2004). Congress estimated that consumers were losing about $40 billion per year as a result of telemarketing fraud. Id. In order to deal with this growing concern Congress authorized the creation of a national database of consumers who objected to receiving such telephone calls. Since then, well over half of the states have adopted statutes restricting various practices by telemarketing firms. See Van Bergen v. Minnesota, 59 F.3d 1541, 1548 (8th Cir.1995).

The overarching consideration governing the dispute before us in the present case is whether the federal government by enactment of the TCPA has preempted the regulation of telephonic sales calls. That is to say, we must first determine whether there was any room for regulation by Florida of these telephone calls. The answer is to be found within the TCPA itself.

47 U.S.C. § 227(e)(1) is entitled “State law not preempted,” and reads as follows:

Except for the standards prescribed under subsection (d)[] of this section and subject to paragraph (2)[] of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits—
(A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements;
(B) the use of automatic telephone dialing systems;
(C) the use of artificial or prerecorded voice messages; or
(D) the making of telephone solicitations.

In addition, 47 U.S.C. § 227(f) is instructive. That provision authorizes states to bring civil actions for violations of the TCPA in federal district courts. Of particular interest is paragraph (6) of the subsection, entitled “Effect on State court proceedings,” which reads:

Nothing contained in this subsection shall be construed to prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general or criminal statute of such State.

TSA essentially argues that the federal statute has preempted state laws governing the regulation of unsolicited sales calls and the improper use of prerecorded messages claims. Yet the TCPA specifically disclaims a complete preemption in these areas. See Fla. Dep’t of Agric. & Consumer Servs. v. The Sports Authority Fla., Inc., Case No. 6:04-cv-115-Orl-JGG, 2004 U.S. Dist. LEXIS 29646, at *9 (M.D. Fla. June 4, 2004). Thus, the TCPA carries no implication in its language that Congress intended to preempt state law in this regard.

Certainly if Congress had intended a complete preemption of other state laws, that intent could easily have been manifest as part of the statute. Moreover, the language used in subsections (e)(1) and (f) of the TCPA makes it clear that Congress did not intend to occupy the field, at least with respect to the disclaimers to that effect contained in those provisions. See Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Van Bergen, 59 F.3d at 1548. We conclude, therefore, that section 501.059 of the Florida Statutes does have significant vitality both in the regulation of unsolicited telephone sales solicitations and in the improper use of prerecorded messages and automated dialing machines described in the statute.

II. Unsolicited Telephonic Sales Calls.

Section 501.059(3), Florida Statutes, allows the placement for a nominal fee of any residential, mobile, or telephonic paging device number on a “no sales solicitation calls” listing to be maintained by the Department. Placement of a number on the so-called “do-not-call” list indicates that the subscriber does not wish to receive unsolicited telephonic sales calls. Section 501.059(4), one of the statutes that TSA is accused of violating, reads in pertinent part:

No telephone solicitor shall make or cause to be made any unsolicited telephonic sales call to any residential, mobile, or telephonic paging device telephone number if the number for that telephone appears in the then-current quarterly listing published by the department.

As noted previously, seventy-seven persons within Florida who were on the do-not-call list were telephonically contacted by TSA for the purpose of soliciting a sale of goods. Each of these persons, however, had actually made purchases from TSA within eighteen months preceding the call. Although TSA argued that all of these persons had a “prior or existing business relationship” with them, and therefore fell within the section 501.059(l)(e)3. exemption, the trial court disagreed.

Section 501.059(l)(e) of the Florida Statutes defines an “unsolicited telephonic sales call” to be a telephonic sales call other than one specifically exempted by the statute. Among the four exemptions listed, the two that are pertinent to our decision are sales calls other than a call made:

1. In response to an express request of the person called; [and]
3. To any person with whom the telephone solicitor has a prior or existing business relationship.

§ 501.059(l)(c)l., 3., Fla. Stat. (2004).

TSA first argues that it had the express consent of all those it called because each consumer provided his or her telephone number to TSA at the time of the sale. Voluntarily surrendering one’s telephone number to a sales clerk might under some circumstances give an implied authority for the store to make a later telephonic sales call, but it certainly does not give an “express” consent. As an express consent is required by this clear language of this exemption, we conclude that the trial judge was correct in determining that this exemption was not applicable.

A more difficult issue is presented by the “prior or existing business relationship” exemption, however. Unfortunately, section 501.059 does not define this phrase. In circumstances where the Legislature chooses not to define a term, courts may properly be informed by case law or related statutory provisions that do give meaning to the term. See State v. Hagan, 387 So.2d 943, 945 (Fla.1980); Westerheide v. State, 767 So.2d 637, 650 (Fla. 5th DCA 2000). Thus, in State v. Kirvin, 718 So.2d 893 (Fla. 1st DCA 1998), for example, the appellate court was able to utilize a definition for “territorial sea baseline” found in the Code of Federal Regulations when interpreting a Florida constitutional provision concerning fishing nets.

The Federal Communications Commission by way of the Code of Federal Regulations provides us with a definition for “established business relationship,” as used in the TCPA. 47 C.F.R. § 64.1200(f)(4) defines that term as meaning

a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber’s purchase or transaction with the entity within eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.

It appears, therefore, that if a telephone subscriber made a purchase from TSA within eighteen months of the telephone solicitation, there was no violation of section 501.059(4).

Here, the Department has stipulated that the seventy-seven consumers who received telephone solicitations from TSA had all made purchases from TSA within eighteen months of the solicitation. Under the circumstances, therefore, it appears that the exemption applies to these calls, and that summary judgment in this connection was improperly granted in favor of the Department.

III. Improper Use of Recorded Messages and Automatic Dialing Systems.

Section 501.059(7)(a) prohibits “makfing] or knowingly allowing] a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.” The Department alleged and the trial judge concluded that TSA violated this provision by the use or employment of an automated system for the selection and dialing of seventy-three consumer telephone numbers or the playing of a message when the number was answered. It is conceded by the Department that all of these calls were made from California. We note, however, that subsections (7)(a) and (b) do not appear to be subject to the “prior or existing business relationship” exceptions dealt with in the consideration of subsection (4). The reason is that subsection (4) applies to “any unsolicited telephonic sales call,” while subsection (7) applies to “a telephonic sales call.” As the language of the exemption makes it applicable only to “unsolicited telephonic sales calls,” it is definitionally inapplicable to the proscriptions of subsection (7).

TSA does not deny that it made the calls in question. It argues, instead, that because all of these automated calls originated in California and are interstate calls, Florida has no authority to regulate them. It suggests, in essence, that the Florida statute might be fully avoided by the simple expedient of taking the automated call machine to a different state, and having the calls to Florida consumers made there. Because of the language of the Florida statute, however, we need not reach the issue of whether the states have jurisdiction over automated calls originating out of state. The statute covers this contingency-

In 47 U.S.C. § 227(f)(6) Congress specifically indicated that nothing in the TCPA was to be construed to prohibit the State “from proceeding in State court on the basis of an alleged violation of any general or criminal statute of such State.” Indeed, Congress indicated that its regulation of the field was the “minimum necessary to protect the public against the harm caused by” automated dialing machines. See S.Rep. No. 102-178 at 5 (1991), as reprinted in 1991, U.S.C.C.A.N., 1968, 1973. Even though it recognized that states might not have jurisdiction over interstate communications, Congress thus provided language that specifically allows states to impose more restrictive measures in this area. See FreeEats.Com, Inc. v. Indiana, 2006 WL 3025810 (S.D.Ind. Oct.24, 2006). Cf., ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 515 (3d Cir.1998). That is exactly what Florida has done.

The pertinent Florida statute, section 501.059(7), prohibits the use of automated phone messages with the following language:

No person shall make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to the number called.

(Emphasis added). The complaint filed by the Department clearly indicates that this cause of action accrued in Orange County, Florida, because TSA had a commercial business in Orange County, and that TSA was making or causing to be made telephonic sales calls to customers in Orange County, Florida, during which TSA played or caused to be played a recorded message upon each call being answered.

There is nothing contained within the TCPA that points to an intent by Congress to preempt such state claims. 47 U.S.C. § 227(f)(6), in fact, suggests just the opposite. Moreover, the very language of the Florida statute anticipates that the entity making the calls and the entity causing or knowingly allowing the calls to be made might very well be separate entities. Thus, while the making of the calls may have emanated from an out-of-state source, the causation element underpinning this particular violation of statute involves a business in Orange County, Florida, inviting customers in Orange County, Florida, to a sale being held in a store in Orange County, Florida. As the origination point of the automated calls is not relevant in this context, the trial court was correct in granting summary judgment on this issue.

IY. Conclusion.

In view of the foregoing, we affirm that part of the summary final judgment permanently enjoining TSA from further violating section 501.059(7), Florida Statutes, and affirm the civil fine associated with TSA’s violations of that statute; reverse that part of the final summary judgment concluding that TSA violated section 501.059(4), Florida Statutes, including the injunctive relief and fines imposed in that connection; and remand for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA and PALMER, JJ., concur.

      . The original defendant was The Sports Authority Florida, Inc. After this action began, TSA Stores, Inc., a Delaware corporation, was substituted as the party defendant.

      . The national do-not-call registry is the product of a regulatory effort going back to 1991. It was aimed, first, at protecting the privacy rights of consumers, and second at reducing the risk of telemarketing abuse and fraud. See F.T.C. v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 857-58 (10th Cir.2003).

      . Subsection (d) concerns and sets certain technical and procedural standards with respect to communications by facsimile machine or automatic telephone dialing systems, and grants to the Federal Communications Commission the authority to prescribe standards to implement the requirements of the subsection.

      . Paragraph (2) of the subsection concerns the state use of databases.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carl Kenneth FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1520.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2007.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See San Martin v. State, 717 So.2d 462, 470-71 (noting evidentiary rulings cannot be disturbed absent abuse of discretion); Singleton v. State, 783 So.2d 970, 976 (Fla.2001) (holding that, where counsel did not raise below as grounds for objection the issue argued on appeal, the issue was not preserved for review).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Mack Leonard JENKINS, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D07-1297.
    District Court of Appeal of Florida, First District.
    April 20, 2007.
    Rehearing Denied June 1, 2007.
    Mack Leonard Jenkins, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

WOLF, DAVIS, and THOMAS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Daniel A. GARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3097.
    District Court of Appeal of Florida, Second District.
    April 25, 2007.
   ALTENBERND, Judge.

Daniel A. Garnett appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Garnett is seeking jail credit for time spent in an Ohio jail in 2000 on a fugitive warrant issued by the trial court in this case. Such out-of-state jail credit is not credit that a defendant is entitled to receive as a matter of law, but is instead an issue that is within the inherent discretion of the sentencing court. See Kronz v. State, 462 So.2d 450, 451 (Fla.1985); McRae v. State, 820 So.2d 1048, 1049 (Fla. 2d DCA 2002); DeGeso v. State, 771 So.2d 1264, 1265 (Fla. 2d DCA 2000); Zygadlo v. State, 676 So.2d 1015, 1016 (Fla. 5th DCA 1996). We affirm the postconviction court’s order denying relief because such discretionary credit is not “an entitlement” for purposes of rule 3.800(a) that may be requested at any time. If a defendant is seeking out-of-state jail credit in a post-conviction proceeding, it would appear that the proper method to seek such relief would normally require a timely allegation of ineffective assistance of trial counsel under rule 3.850. We write to recede from this court’s prior decision in Heuton v. State, 790 So.2d 1204 (Fla. 2d DCA 2001), to the extent that it conflicts with this opinion. We also recede from Redding v. State, 848 So.2d 417 (Fla. 2d DCA 2003), and Robbins v. State, 799 So.2d 1093 (Fla. 2d DCA 2001), to the extent that these cases rely upon Heuton and conflict with the opinion herein.

Mr. Garnett was charged with three counts of lewd and lascivious acts on a child under the age of sixteen for events that occurred in 1996 and 1997. After failing to appear for trial, he was convicted and sentenced in absentia on October 30, 1998, to concurrent terms of 200 months’ incarceration. In August 2000, Mr. Gar-nett was apprehended in Ohio on the active fugitive warrant arising from this case. At the same time, it appears that prosecutors in Ohio filed an indictment against him charging two counts of trafficking in cocaine. Mr. Garnett allegedly pleaded guilty to the charges in Ohio and was sentenced to five years’ community control in December 2000. He apparently was extradited to Florida and imprisoned here in January 2001.

Thereafter, Mr. Garnett was resentenced in Florida in March 2002 because his original sentence was affected by Heggs v. State, 759 So.2d 620 (Fla.2000). He received concurrent terms of 91.75 months’ incarceration on the three convictions, with 70 days of jail credit for time served in Florida; he did not receive credit for the time that he allegedly spent in an Ohio jail. Mr. Garnett did not appeal the 2002 sentence.

In the postconviction motion at issue, Mr. Garnett alleges that he spent 162 days in an Ohio jail before he was extradited to Florida in January 2001. He claims that he should receive jail credit in Florida because the Ohio court imposed a nonpri-son sentence and, but for the Florida warrant, he could have posted bond in Ohio.

We first note that a motion filed pursuant to rule 3.800(a) is appropriate to correct jail credit issues only when “it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief.” Fla. R.Crim. P. 3.800(a); see Wilkins v. State, 932 So.2d 1271, 1271 (Fla.-2d DCA 2006). Although it is rare for court records to resolve this issue on their face, the rules do provide relief in such a rare case. Mr. Garnett did not affirmatively allege this required language, and we are uncertain of the content of the trial court record as it relates to this issue. Mr. Garnett, however, clearly sought credit for time spent in an out-of-state jail. It is now well established under Kronz that such credit is a matter of discretion with the sentencing court, not an entitlement. 462 So.2d at 451. On at least one prior occasion, this court reversed a postconviction court’s denial of a similar motion. See Heuton v. State, 790 So.2d 1204. In Heuton, we stated:

The supreme court has held that a trial judge does “have the inherent discretionary authority to award credit for time served in other jurisdictions while awaiting transfer to Florida.” Kronz v. State, 462 So.2d 450, 451 (Fla.1985). Moreover, in considering whether to award credit, a trial judge is to “consider the appropriateness of an award of credit for time served when the defendant was incarcerated in another state solely because of the Florida offense for which he or she is being sentenced.” Id.
The exercise of discretion is not unbridled but is subject to the test of reasonableness. This “requires a determination of whether there is logic and justification for the result.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). A court’s discretionary power is not “to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner.” Id.; see also Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 247 (1930).
In order for this court to provide meaningful review of the trial court’s denial of relief, the trial court should have attached those records, if any, which were relied upon to deny relief. See Inclima v. State, 625 So.2d 978 (Fla. 5th DCA 1993). Absent such records, if there were reasons supporting the denial of relief then the trial court should have stated those reasons in its order. With such records or reasons, this court would be able to review the trial court’s exercise of discretion and ascertain whether the trial court made a proper determination as to the appropriateness of an award as contemplated by Kronz. While the burden is on Heuton to establish the entitlement to credit, the trial court may not simply deny the request without some legal basis supporting the exercise of its discretionary authority.
Because the trial court did not attach records or set forth the reasons supporting its decision, we reverse. On remand, the trial court should attach to its order the pertinent documents or state in the order its reasons supporting the denial of credit. Otherwise, an appropriate amount of credit shall be determined and awarded.

Id. at 1205.

Upon further consideration, it is clear that we did not focus on the requirement of an “entitlement” for purposes of rule 3.800(a) in Heuton. For purposes of direct appeal, a defendant is certainly entitled to preserve and argue that the sentencing court did not properly exercise discretion in denying out-of-state jail credit. Conceivably, a defendant could argue in a motion filed pursuant to rule 3.850 that his trial counsel was ineffective for failing to argue and preserve this issue for direct appeal. However, the “entitlement” contemplated in rule 3.800(a) is an entitlement to an award of jail credit as a matter of law. Under the holding of Kronz, such an entitlement does not exist for time spent while detained out of state on a fugitive warrant. Accordingly, we recede from Heuton, Redding, and Robbins to that extent and affirm the postconviction court’s order.

Affirmed.

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

      . We note that several years ago, Mr. Garnett filed a motion to correct illegal sentence pursuant to rule 3.800(a), which the postconviction court summarily denied as facially insufficient. We affirmed the denial of that motion without prejudice to Mr. Garnett's right to file a facially sufficient motion pursuant to either rule 3.850 or 3.800(a). Garnett v. State, 841 So.2d 584 (Fla. 2d DCA 2003).

      . Mr. Garnett's trial counsel filed an appeal of that judgment and sentence, which was dismissed after his court-appointed appellate counsel filed an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see Griffis v. State, 759 So.2d 668, 672 (Fla.2000) (providing that when a defendant absconds and fails to return before the appellate process begins, it may be appropriate to dismiss the appeal).

      . For all we know, his trial counsel at resen-tencing may have argued that his client should receive credit for the time spent in the Ohio jail and the trial judge rejected that argument.

      .We are uncertain whether the documents attached to Mr. Garnett’s motion to correct illegal sentence are actually documents that existed in the record of his Florida criminal case prior to this motion. The postconviction court neither relied upon them in denying Mr. Garnett’s motion nor struck them as materials outside the record.

      . There does not appear to be any case law developing the circumstances that might constitute an abuse of discretion in this situation, but that may simply reflect the fact that trial courts have been consistently reasonable in granting credit when it is appropriate.


author: HAZOURI, J.

text:
    PALM BEACH POLO HOLDINGS, INC., Appellant, v. MADSEN, SAPP, MENA, RODRIGUEZ & CO., P.A., Appellee.
    No. 4D06-2641.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Craig T. Galle of Chapman & Galle, PLC, West Palm Beach, for appellant.
    John J. Shahady, Samantha Tesser Hai-mo and Jeffrey A. Backman of Adorno & Yoss, LLP, Fort Lauderdale, for appellee.
   HAZOURI, J.

Appellant, Palm Beach Polo Holdings, Inc. (Holdings), appeals from a final judgment for attorney’s fees and costs entered in favor of appellee Madsen, Sapp, Mena, Rodriguez & Co., P.A. (Madsen), pursuant to Madsen’s proposal for settlement. Holdings asserts the trial court erred in awarding attorney’s fees contending that the proposal for settlement was ambiguous and therefore defective because it failed to state with particularity all relevant conditions and all nonmonetary terms. We disagree and affirm.

Madsen, an accounting professional association, filed a five-count complaint against Holdings in order to obtain the $18,332.25 owed by Holdings to Madsen for services rendered. Prior to trial, Mad-sen filed its “Plaintiffs Proposal for Settlement” which stated:

Plaintiff MADSEN, SAPP, MENA, RODRIGUEZ & CO., P.A. (“Plaintiff’), by its undersigned counsel, pursuant to Florida Rule of Civil Procedure 1.442 and Section 768.79, Florida Statutes, hereby xnakes this Proposal for Settlement to Defendant PALM BEACH POLO HOLDINGS, INC. (“Defendant”). Plaintiff is making this Proposal for Settlement for the total amount of Sixteen Thousand Dollars ($16,000.00).
This offer, if accepted, will settle all pending claims in this action against Defendant, including claims for punitive damages, interest, costs and attorneys’ fees (whether contractual or statutory). If this offer is acceptable to Defendant as written, Defendant must file a written acceptance along with this Proposal for Settlement with the Court within thirty (30) days after service of this offer. If this offer is not accepted within thirty (30) days of service, it will be deemed rejected and void. Any counteroffer made before the expiration of this offer will operate as a rejection and will terminate this offer. Plaintiff reserves the right to serve on Defendant a withdrawal of this offer in writing before written acceptance is served upon Defendant or filed with the Court.

After a trial on Madsen’s complaint, the trial court entered a final judgment in favor of Holdings. Madsen appealed and this court reversed for entry of judgment in favor of Madsen. Madsen filed its motion for attorneys’ fees and cost's asserting its entitlement to fees under the proposal for settlement. After a hearing on the matter, the trial court entered a final judgment for attorneys’ fees and costs against Holdings, which is the order on appeal. The trial court found the proposal for settlement unambiguous and therefore valid. The total amount awarded was $59,559.40.

Holdings argues that the proposal served by Madsen was defective because it failed to provide any information as to whether, if the proposal was accepted, the claims asserted by Madsen would be dismissed or whether Holdings would be released.

The standard of review in determining whether a proposal for settlement complies with section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is de novo. See Papouras v. BellSouth Telecomm., Inc., 940 So.2d 479, 480 (Fla. 4th DCA 2006).

Section 768.79, Florida Statutes (2005), provides in pertinent part:

(2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. An offer must:
(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it and the party to whom it is being made.
(c) State with particularity the amount offered to settle a claim for punitive damages, if any.
(d) State its total amount.
The offer shall be construed as including all damages which may be awarded in a final judgment.
(3) The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section.
(4) An offer shall be accepted by filing a written acceptance with the court within 30 days after service. Upon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.

The statute is implemented by Florida Rule of Civil Procedure 1.442 and subsection (c) provides for the “Form and Content of Proposal for Settlement”:

(1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.
(2) A proposal shall:
(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) identify the claim or claims the proposal is attempting to resolve;
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule 1.080(f).

With respect to (C) and (D), the supreme court held that “[t]his requirement of particularity is fundamental to the purpose underlying the statute and rule. A proposal for settlement is intended to end judicial labor, not create more.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1078 (Fla.2006) (quoting Nichols v. State Farm Mutual, 851 So.2d 742, 746 (Fla. 5th DCA 2003)).

In Nichols II, the supreme court reviewed the Fifth District’s decision in Nichols I to deny State Farm attorney’s fees under the offer of judgment statute because the language of State Farm’s proposal for settlement requiring Nichols to sign a general release was too ambiguous to satisfy rule 1.442.

State Farm served a proposal for settlement on Nichols in the amount of $250 while Nichols’s PIP suit was pending. Additionally, as a condition of the settlement, Nichols would have been required to “execute a General Release in favor of State Farm, which will be expressly limited to all claims, causes of action, etc., that have accrued through the date of Nichols’s acceptance of this Proposal.” Nichols II, 932 So.2d at 1071. Nichols also had an outstanding uninsured motorist (UM) claim against State Farm but, fearing the general release would extinguish that claim too, Nichols rejected the offer. The supreme court concluded “that State Farm’s settlement proposal failed to eliminate ambiguity regarding Nichols’s outstanding UM claim and thus cannot support an award of attorney’s fees.” Id. at 1078.

In the instant case there is no such ambiguity. It is clear from Madsen’s proposal for settlement that it is offering to settle all claims including claims for punitive damages, interest, costs and attorney’s fees whether contractual or statutory. There is no language in section 768.79 or rule 1.442 requiring that there must be language expressing a willingness to dismiss all claims in a proposal for settlement. It is clear from Madsen’s proposal for settlement that if Holdings had accepted Madsen’s proposal, it would have ended the litigation and disposed of all claims. We fail to see any ambiguity or lack of particularity in Madsen’s proposal for settlement and therefore affirm.

Affirmed.

WARNER and POLEN, JJ., concur.

      . "Nichols II."

      . "Nichols I.”


text:
    Matthew Wayne GODWIN, and Terry Wayne Godwin, Petitioners, v. Ralph JOHNSON, as Sheriff of Walton County; and Danny Glidewell, as the Administrator of Walton County Jail, Respondents.
    Nos. 1D06-6632, 1D06-6633.
    District Court of Appeal of Florida, First District.
    April 26, 2007.
    Clay B. Adkinson of Adkinson Law Firm, LLC, DeFuniak Springs, for Petitioners.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

Terry Wayne Godwin and Matthew Wayne Godwin petition this court for a writ of habeas corpus, challenging the circuit court’s decision to deny them pretrial release. We sua sponte consolidate the cases for purposes of this opinion and, for the reasons set forth below, deny the petitions.

The petitioners are charged with second-degree murder, an offense punishable by life in prison pursuant to section 782.04(2), Florida Statutes (2006). The state sought to preclude pretrial release on grounds that the proof of the defendants’ guilt was evident or the presumption was great. See Art. I, § 14, Fla. Const.; Fla. R.Crim. P. 3.131(a). At a hearing on the issue, the state’s evidence was presented exclusively through the testimony of an investigator who described the physical evidence he observed at the crime scene, statements made to him by various participants in the altercation that led to the death of the victim, and the information he obtained while observing the autopsy of the victim. The Godwins made objections based on Crawford v. Washington, 641 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), contending that the state’s evidence was violative of the confrontation clause contained in the Sixth Amendment to the United States Constitution and they reassert these arguments in the instant habeas corpus petitions. Petitioners argue that Crawford effectively overruled State v. Arthur, 390 So.2d 717 (Fla.1980) and revived cases such as Stansel v. State, 297 So.2d 63 (Fla. 2d DCA 1974), which held that the right to full confrontation applied in hearings on pretrial release. We cannot agree. Instead, as the respondents argue, Crawford did not change the types of proceedings where the confrontation clause does or does not apply. Instead, it provides guidance on how the clause is to be implemented when it is applicable. The court in Arthur found that the state could present its ease in a pretrial detention proceeding “in the form of transcripts or affidavits.” 390 So.2d at 720. Thus, an unstated, but necessary premise of the Arthur decision is that the confrontation clause does not apply in this type of proceeding and we conclude that principle continues to be the law in Florida after Crawford. The confrontation clause of the Sixth Amendment expressly applies in “criminal prosecutions.” We agree with the reasoning and conclusion of State v. Engel, 99 N.J. 453, 493 A.2d 1217 (1985) that this does not include proceedings on the issue of pretrial release.

We also find no merit to petitioners’ claim that the proof of their guilt was not shown at the hearing to be evident or the presumption great. Accordingly, the petitions for writ of habeas corpus are hereby denied.

PETITIONS DENIED.

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


text:
    Michael RUFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5261.
    District Court of Appeal of Florida, First District.
    April 26, 2007.

      Michael Ruffin, pro se, Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order denying his Florida Rule of Criminal Procedure 3.850 motion. Following a jury trial, the appellant was convicted of armed robbery with a firearm. He filed the present motion attacking his conviction on grounds of newly discovered evidence. The trial court denied the motion as untimely.

The trial court erred in denying the appellant’s motion without conducting an evidentiary hearing to determine whether his newly discovered evidence claim had merit. Although rule 3.850 motions must be filed within two years of the date that the judgment and sentence become final, claims of newly discovered evidence fall within the exceptions to the time limitation. See Fla. R.Crim. P. 3.850(b); Jones v. State, 591 So.2d 911 (Fla.1991). In order for evidence to be considered newly discovered and thus form a basis for postconviction relief, it must have been unknown to the defendant, the trial court or defendant’s counsel at the time of trial and must be such that would probably produce an acquittal on retrial. See Jones, 591 So.2d at 915-16. The appellant provided an affidavit of an alleged participant in the crime, stating that he and another man, who was not the appellant, actually committed the robbery. He further alleged that he could not have previously discovered the identity of the affiant because, at the time of trial, only the alias of the affiant was known. Finally, the appellant claimed that in light of the evidence offered at trial, the affidavit would probably produce an acquittal on retrial. Because the appellant made a sufficient claim, an evidentiary hearing is required to determine whether the affidavit constitutes newly discovered evidence. See Jones, 591 So.2d at 915; McLin v. State, 827 So.2d 948, 956 (Fla.2002). Therefore, we reverse and remand this claim for an evidentiary hearing.

REVERSED AND REMANDED.

ALLEN, WEBSTER and BENTON, JJ. concur.


text:
    ST. LUCIE COUNTY SCHOOL BOARD and EMI, Appellants, v. Isabella FULLER, Appellee.
    No. 1D05-5579.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Neil J. Hayes and Jane E. McGill of Hayes, Schloss & Alcocer, P.A., Palm Beach Gardens, for Appellants.
    Debra H. Pierce, Port St. Lucie, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, St. Lucie School Board and its carrier, EMI, appeal an order granting total knee replacement benefits on the authority of the so-called 120-day rule, section 440.20(4), Florida Statutes (1999). For the reasons that follow, we reverse and remand for further proceedings.

Isabella Fuller, a teacher’s aide, struck her right knee on a classroom table on November 29, 1999, thereby sustaining a workplace accident. This accident was accepted as compensable, and Fuller was thereafter authorized to receive medical treatment for the knee. She continued to experience pain and decreased mobility in the knee despite treatment, and, during the course of treatment, a pre-existing arthritic degenerative condition was diagnosed. Fuller was eventually advised to undergo total knee replacement, and she sought authorization for such surgery from the employer and carrier. This request was denied on the ground that the workplace accident was not the major contributing cause of the need for such surgery. Fuller filed a claim for such a procedure, arguing the employer and carrier were estopped to deny authorization by operation of section 440.20(4), the 120-day rule. Following a hearing, the judge of compensation claims granted the claim for total knee replacement. In the final order, the judge explained:

I conclude claimant’s knee injury is com-pensable as a matter of law due to the application of the 120 day rule. Because this conclusion is dispositive of all present issues, I decline to rule on whether there is actual causation.

When considering the claim for knee replacement surgery, the judge of compensation claims did not have before him our en banc decision in Checkers Restaurant v. Wiethoff, 925 So.2d 348 (Fla. 1st DCA 2006). In Checkers, we explained that the waiver of the right to deny compensability provided in section 440.20(4) does not necessarily establish an entitlement to benefits and that the statute “does not preclude the E/C from challenging the claimant’s entitlement to benefits, by contending that the injuries resulting from the industrial accident were not the [major contributing cause] of the claimant’s need for further treatment or surgery.” 925 So.2d at 350-1.Because the judge erroneously concluded that claimant was entitled to benefits as a matter of law without determining whether the accident was the major contributing cause of the need for such benefits, the order under review is reversed, and the cause is remanded for further consideration in light of Checkers.

REVERSED AND REMANDED.

BROWNING, C.J., BARFIELD, and VAN NORTWICK, JJ„ concur.


text:
    Adrian Donell SCOTT, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4987.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Rehearing Denied June 6, 2007.

      Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is a direct appeal from Appellant’s conviction and sentence for felony murder by aggravated child abuse. Because the trial court allowed the admission of improper evidence, we reverse.

Defense counsel filed a motion in limine seeking to exclude testimony that the child suffered a broken arm and leg approximately one month prior to his death because the State failed to provide timely Williams rule notice. The State conceded that it failed to comply with the notice requirement, but argued that the evidence should be admitted because it was inextricably intertwined with the charged crime. The trial court allowed the admission of the evidence under this theory.

“Evidence is inextricably intertwined if the evidence is necessary to (1) adequately describe the deed, (2) provide an intelligent account of the crime(s) charged, (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up to the charged crime(s).” Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006) (en banc) (citations omitted). In this case, the testimony was not necessary to establish any of the above criteria because the broken bones were not related to the cause of death and the events happened a month prior to the child’s death. Although the broken bones required the use of a body cast, the causes of the injuries were not established to be relevant as inextricably intertwined or similar fact evidence.

The State urges this court to affirm the trial court’s ruling because the evidence could have also been admitted as Williams rule evidence. However, the State never argued this ground for admission before the trial court because it failed to timely comply with the statutory notice requirement. Thus, the trial court never considered the evidence within the parameters of section 90.404(2), Florida Statutes (2003), and defense counsel was never afforded an opportunity to argue against the admission on such grounds. Therefore, it would be improper for this court to affirm the trial court’s ruling on this basis. Robertson v. State, 829 So.2d 901, 906-09 (Fla.2002).

The trial court also erred by allowing testimony that Appellant punished the child by requiring him to stand on one leg in a corner as Williams rule evidence. Because there was no testimony concerning the duration or frequency of the punishment, there was insufficient evidence to establish that this form of punishment constituted child abuse. State v. Lee, 531 So.2d 133, 135 (Fla.1988). These errors cannot be considered harmless beyond a reasonable doubt under the circumstances of this case. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Henrion v. State, 895 So.2d 1213, 1217 (Fla. 2d DCA 2005). We therefore reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

WOLF, DAVIS, and THOMAS, JJ., concur.


author: LAGOA, Judge.

text:
    The STATE of Florida, Appellant, v. J.Z., a juvenile, Appellee.
    No. 3D06-2302.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Bill McCollum, Attorney General, and Jill Kramer Traína, Assistant Attorney General, for appellant.

      Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellee.
    Before FLETCHER and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

The State appeals the appellee’s sentence, arguing that the trial court erred when, contrary to Section 790.22(9), Florida Statutes (2006), it failed to impose a minimum of fifteen days in a secure detention facility and it credited appellee with time served in detention prior to adjudication. We agree and reverse.

Following a bench trial, the trial court found the appellee, a minor, guilty of carrying a concealed weapon (Count 2) and possession of a firearm by a minor (Count 3). Thereafter, the trial court entered an order adjudicating appellee guilty of Counts 2 and 3. A pre-disposition report filed with the court indicated that this was the appellee’s first offense involving the use or possession of a firearm.

At the disposition hearing, the trial court entered a probation order withholding adjudication of delinquency and did not commit the appellee to a residential commitment program for these offenses, but rather credited him with time served. The State objected that the sentence failed to comply with the requirements of section 790.22(9), Florida Statutes (2006). We agree with the State and reverse.

Section 790.22(9), Florida Statutes (2006), provides:

(9) Notwithstanding s. 985.214, if the minor is found to have committed an offense that involves the use or possession of a firearm, as defined in s. 790.001, other than a violation of subsection (3), or an offense during the commission of which the minor possessed a firearm, and the minor is not committed to a residential commitment program of the Department of Juvenile Justice, in addition to any other punishment provided by law, the court shall order:
(a) For a first offense, that the minor shall serve a minimum period of detention of 15 days in a secure detention facility; and
1. Perform 100 hours of community service; and may
2. Be placed on community control or in a nonresidential commitment program.

(emphasis added). Section 790.22(9) also provides that “[t]he minor shall not receive credit for time served before adjudication” (emphasis added).

Here, the record demonstrates that: (1) appellee was found guilty of an offense involving the use or possession of a firearm; (2) this was appellee’s first offense involving a firearm; and (3) the trial court did not commit appellee to a residential commitment program. Where a minor is found guilty of his first offense involving the possession of a firearm, and is not committed to a residential program, section 790.22(9) mandates that the court “shall order ... that the minor shall serve a minimum period of detention of fifteen days in a secure detention facility.”

The language of section 790.22(9) is mandatory. See State v. P.P., 763 So.2d 554 (Fla. 4th DCA 2000); State v. S.T., 803 So.2d 782 (Fla. 4th DCA 2001). As this Court previously observed in T.M. v. State, 689 So.2d 443, 446 (Fla. 3d DCA 1997):

The statute is obviously designed to get the immediate attention of all juveniles and to issue a “wake-up call” that the state deems their firearm offenses to be serious enough to warrant the automatic deprivation of their liberty for a period of time, even on a first offense. Its intent clearly is to have a deterrent effect to hopefully prevent the juvenile’s escalation into the criminal justice system.

As such, the trial court lacked discretion to fail to impose a fifteen-day minimum detention period.

Moreover, section 790.22(9) expressly states that “[t]he minor shall not receive credit for time served before adjudication” (emphasis added). Appellee argues that his sentence was not illegal because he was not “adjudicated” as his adjudication was withheld. While section 790.22 does not contain any express restriction on the courfis discretion to withhold adjudication, it does contain an express restriction on the court’s discretion to credit a minor with time served before adjudication. In State v. A.B., 725 So.2d 1268 (Fla. 4th DCA 1999), the Fourth District Court of Appeal concluded that the use of the word “adjudication” in section 790.22(9) meant formal disposition of the charge. We agree. Here the formal disposition of the charge occurred when the trial court withheld adjudication.

Accordingly, because the fifteen-day minimum detention period is mandatory and the trial court lacked discretion to credit a minor with time served prior to adjudication, we reverse the suspension of the detention period and remand for proceedings consistent with this Opinion.

Reversed and remanded.

      . The trial court dismissed the count for possession of cannabis (Count I).

      . Appellee served twenty-one days in detention following his arrest.

      . An earlier version of this statute mandated the opposite, i.e., that "[t]he minor shall receive credit for time served before adjudication.” In 1999, however, the legislature revised súbsection (9) to eliminate the provision for credit for time served before adjudication.


author: STONE, J.

text:
    Joseph VELTRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3675.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Rehearing Denied June 21, 2007.

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

Veltre was convicted of lewd and lascivious exhibition to a child. He contends that the trial court erred by allowing prejudicial hearsay testimony. Additionally, he claims that the trial court erred by denying his motion for mistrial prompted by a police officer testifying that he recognized Veltre’s name from prior dealings. We affirm.

The victim, age fifteen at the time of the crime, testified that she was living with her mother’s friend, Theresa Laviolet. One morning, she was sitting in the screened porch when she saw a man in the yard pulling his pants down and starting to masturbate while looking directly at her. She went in and told Laviolet; when she and Laviolet came outside, the man started running. They followed him to the end of the street, but did not see which way he turned. At that point, she saw one man who looked like the perpetrator going one direction. However, when a neighbor pointed in another direction, they also saw a man that looked like the perpetrator traveling in that direction; this is the man they ultimately followed.

The man proceeded to get into a car, take his shirt off, and put on a baseball cap and a different shirt. She said that “it was an older car ... looked like a station wagon ... and it, it was beat up, I don’t remember the color, I think maybe white, a light color.” At that time, they got the license number of the car. They returned to their house, and when they saw the same man drive back, they got into their car and followed him.

The victim testified; Laviolet did not. The victim positively identified Veltre as the driver and as the man she saw in the yard. She also testified that in her deposition, she said the car was light, and not white, as incorrectly transcribed. Although the police report stated that Vel-tre’s car was green, she had not seen the police report. In any event, it was clear that the car she saw the man get into was the same car from which they obtained the tag number, and the same car they followed.

Officer Plats testified he advised dispatch of the tag number, and dispatch provided him with the address and owner of the vehicle. He also said that the tag number matched the description of the car that the victim and Laviolet had given him. The car was a teal green 1993 Ford Taurus station wagon. Plats traced it to an address and found the station wagon in the driveway; the car had recently been driven because the engine and hood were warm. Veltre was standing in the driveway. The car had left rear damage, as described.

On direct examination, Officer Plats was asked if he received the description of the car from the victim or Laviolet. When he responded he thought it was Laviolet, the state then asked, “And the information matched what....” Defense counsel objected on the basis of hearsay. The state withdrew the question, and defense counsel told the court there was no way to correct the hearsay problem. Ultimately, the court gave a curative instruction.

On cross-examination, defense counsel asked Plats several questions regarding where he obtained the description of the car. On re-direct, the prosecutor asked Plats if Laviolet had given him the description of the car; defense counsel objected, and the objection was sustained. When the state sought to elicit further information as to how the officer learned it was a green station wagon, defense counsel responded:

[S]he’s putting on this case with test [sic], hearsay testimony from people that aren’t here. It’s almost this entire case is turning out to be hearsay, from the pointing, the color of the car, description of the car, there’s none of it matches the [victim’s] testimony and so what they’re doing is they’re putting on a case of all hearsay. At this point, Your Honor, because this hearsay problem I move for a mistrial at this time.

Defense counsel did not request a curative instruction at that point. The court sustained the objection, but denied the motion for mistrial.

Sergeant King testified that when he went to the address “[t]he tag number had been run, I had recognized the name on the tag number from having dealt with or had seen, heard the name before.” Defense counsel objected, and the court sustained the objection. Counsel then moved for a mistrial, arguing there was no instruction that could be given to counter the error. In rejecting the mistrial motion, the court stated that there were a lot of explanations as to why a police officer could have contact with an individual.

The trial court considered granting a mistrial following testimony by Detective Coleman. The detective initially stated that the victim positively identified Veltre in a photo line-up. The prosecutor then asked, “Following your conversations at the police department with Ms. Violet [sic] and [the victim] what if anything did you do?” Coleman said, following his conversations with Laviolet and the victim, “and ah, their viewing of the photo lineups, ah, they made a positive identification.... ” Defense counsel objected to this as hearsay and moved again for a mistrial. After a readback of the testimony, the court overruled the defense motion.

We review denial of a motion for mistrial by an abuse of discretion standard; “a mistrial should only be declared if ‘the error is so prejudicial and fundamental that it denies the accused a fair trial.’ ” Lubin v. State, 754 So.2d 141, 143 (Fla. 4th DCA 2000) (citation omitted). “The use of a harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), is not necessary where the trial court recognized the error, sustained the objection and gave a curative instruction. Instead, the correct appellate standard of review is abuse of discretion.” Chamberlain v. State, 881 So.2d 1087, 1098 (Fla.2004) (citation omitted).

Veltre complains of the cumulative hearsay errors of officer testimony as to (1) which way the neighbor pointed, (2) who gave the description of the car, and (3) Laviolet positively identifying Veltre in a photo line-up.

First, as to testimony regarding the neighbor pointing, the court properly admitted the statement as a hearsay exception under section 90.803(1), Florida Statutes. The trial court found that testimony regarding the neighbor’s pointing qualified as a spontaneous statement and offered to give a limiting instruction. Defense counsel declined to have an instruction, and the court overruled the defense objection. Section 90.803 recognizes a spontaneous statement as a hearsay exception and defines such statement as “[a] spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.” § 90.803(1), Fla. Stat. (2005). The neighbor was pointing in the direction of where a man had gone either while she was perceiving him, or immediately thereafter; consequently, there was no chance for reflection. Further, the trial court found that the neighbor pointed as a result of witnessing a startling event. We also note that the officer’s testimony as to this was cumulative to the victim’s testimony as to the same event.

Next, Veltre complains of hearsay testimony regarding Laviolet’s description of the car. However, when the officer was asked if Laviolet had given him the description, the court sustained defense objections but denied a motion for mistrial. The court gave a curative instruction. We cannot conclude the trial court abused its discretion in failing to grant a mistrial.

We also cannot conclude that the trial court’s denial of the motions for mistrial objections constituted, individually or collectively, an abuse of discretion. With regard to questioning the officer about Laviolet positively identifying Veltre in a photo line-up, the trial court sustained the objection. After listening to the tape of the testimony, the court found that the question referencing Laviolet’s identification likely referred to her statement regarding their chasing the perpetrator, well-established through other testimony, rather than referencing whether she had made a photo identification of Veltre. We recognize that with respect to this hearsay, had the defense objection not been sustained, the testimony could not be deemed harmless error. However, as we conclude that Veltre has not demonstrated an abuse of discretion in the court’s denial of the mistrial motions, we do not apply harmless error standards. Further, given the victim’s positive identification of Veltre, both in the line-up and in court, and such identification conforming to his possession of the very automobile she identified, we cannot say that the implications of the state’s improper questions or any partial answers thereto, was so prejudicial as to vitiate the trial.

Finally, Veltre contends the officer’s testimony as to recognizing Veltre’s name from the tag number constitutes reversible error. We are not persuaded by this argument. In Ruger v. State, 941 So.2d 1182, 1183 (Fla. 4th DCA 2006), a witness testified she had met the defendant after he got out of prison. The court, while giving a curative instruction as to the comment, denied the motion for mistrial. Id. We affirmed, finding the comment “brief, isolated and inadvertent,” noting the witness had given equally prejudicial testimony as to other issues, and the comment was cumulative of other evidence. Id. at 1185.

In Cole v. State, 701 So.2d 845 (Fla.1997), and Ferguson v. State, 417 So.2d 639 (Fla.1982), both of which were cited in Ruger, our supreme court also affirmed convictions where there was testimony as to the defendant’s prior criminal history. In Cole, a witness testified she “knew some history” on the defendant. 701 So.2d at 853. Defense counsel declined the offer to give a curative instruction, and the trial court denied the motion for mistrial. Id. Finding the reference isolated, inadvertent, and not focused upon, the court found the trial court did not abuse its discretion. Id. In Ferguson, a witness testified the defendant knew the man who allegedly orchestrated the killings because “the first time ... my first time in prison, all three of us was together.” 417 So.2d at 642. Defense counsel lodged a general objection and did not request a curative instruction. Id. Upon reviewing the record, the court found the testimony not so prejudicial as to warrant a reversal, relying on Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978). In Smith, the court held in the absence of a request by defense counsel for a curative instruction for the jury to disregard testimony indicating the defendant had been previously incarcerated, the trial court did not err in denying the motion for mistrial. Id. at 407.

In this case, we similarly find that Sergeant King’s comment as to recognizing the name was brief, isolated, inadvertent, and not focused upon. Further, there was no indication as to the basis for his recognizing the name. Under these circumstances, we find the trial court did not abuse its discretion in denying the motion for mistrial.

Accordingly, we affirm Veltre’s conviction and sentence.

SHAHOOD and HAZOURI, JJ., concur.

      . In a footnote in his initial brief, Veltre further asserts the description of the car and the identification also involved testimonial hearsay and are, therefore, violative of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). While defense counsel did object on the basis of the confrontation clause in regard to testimony surrounding the description of the car, a Crawford violation does not create per se reversible error. See Rodgers v. State, 948 So.2d 655 (Fla.2006).

      . We note defense counsel did not request a curative instruction in order to ameliorate the testimony.


author: FLETCHER, Judge.

text:
    Berkley WILLIAMS, Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D05-1545.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Berkley Williams, in proper person.
    Murray A. Greenberg, County Attorney, and Jorge Martinez-Esteve, Assistant County Attorney, for appellee.
    Before FLETCHER, SHEPHERD, and CORTIÑAS, JJ.
   FLETCHER, Judge.

Berkley Williams has appealed an order granting a directed verdict pursuant to section 768.28, Florida Statutes (2003), in favor of Miami-Dade County, as well as an order denying his motion to vacate the directed verdict. Miami-Dade County has cross-appealed the trial court’s partial denial of its motion pursuant to section 768.79, Florida Statutes (2005), for costs and attorney’s fees (attorney’s fees having been denied and costs granted).

We affirm the order granting the directed verdict as Williams did not prove compliance with section 768.28, which requires plaintiffs in negligence suits against the state, its agencies, and subdivisions to follow strict procedures in order to take advantage of the State’s waiver of sovereign immunity for tort liability. Specifically, Williams failed to prove compliance with the process service requirements of section 768.28(7). This is fatal to his action. Met ropolitan Dade County v. Lopez, 889 So.2d 146 (Fla. 3d DCA 2004).

As to the County’s cross-appeal we reverse that portion of the order which denied an attorney’s fee award to the County notwithstanding that the County fully complied with the requirements of section 768.79, for an award of attorney’s fees. See TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 611 (Fla.l995)(“[W]e conclude that the legislature has created a mandatory right to attorney’s fees, if the statutory prerequisites [of section 768.79] have been met.”); Jordan v. Food Lion, Inc., 670 So.2d 138, 140 (Fla. 1st DCA 1996)(“The statute [section 768.79] creates a mandatory right to attorney’s fees when the statutory prerequisites have been fulfilled.”).

As in Morejon v. Metropolitan Dade County, 710 So.2d 233 (Fla. 3d DCA 1998) “[w]e find no cognizable basis for the denial of the defendant’s motion for attorney’s fees and costs under section 768.79.” Thus the order on cross-appeal is reversed. The cause is remanded solely to determine the recoverable amounts.

      . With the exception of course of that portion of the order awarding costs to the County which we affirm,


author: TAYLOR, J.

text:
    Maxsony COISSY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1302.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Maxsony Coissy, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Maxsony Coissy appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to all claims raised in this appeal, except Claim Nine. In Claim Nine, appellant asserts that his attorney rendered ineffective assistance by not properly objecting to the jury instruction on aggravated assault as a lesser included offense of attempted second degree murder with a firearm. We reverse and remand for an evidentiary hearing on this claim.

Appellant was charged by information with attempted second degree murder with a firearm and carrying a concealed firearm. At trial, the state requested a jury instruction on aggravated assault as a lesser included offense of attempted second degree murder with a firearm. Defense counsel objected, stating, “As to category two lessers, I believe the state doesn’t automatically get category two. I think it is within the discretion of the court based on the testimony. And on behalf of my client, I would make that objection.” The trial court overruled the objection and instructed the jury on the lesser aggravated assault charge. Later, defense counsel made no objection to the instructions as read.

The jury convicted appellant of the lesser offense of aggravated assault and acquitted him on the concealed firearm charge. Appellant contends that his counsel rendered ineffective assistance by failing to object to the court giving a jury instruction on aggravated assault based on the fact that the information did not allege the necessary “fear” element for that offense.

Aggravated assault is a permissive, or Category Two, lesser included offense of attempted second degree murder. See Fla. Std. Jury Instr. (Crina.) 6.4. Instruction on a permissive lesser included offense may be given only when the trial court determines that the pleadings and the evidence support the charge. Higgs v. State, 801 So.2d 269, 270 (Fla. 4th DCA 2001) (holding that jury instruction on aggravated assault as a lesser included offense for charge of attempted murder of a law enforcement officer was not warranted where the information did not allege the fear element of aggravated assault).

Appellant alleges that the information in this case did not support an instruction on aggravated assault because it did not allege the elements of an aggravated assault. An aggravated assault is an “assault” with a deadly weapon without intent to kill or with an intent to commit a felony. § 784.021, Fla. Stat. (2002). An “assault” is “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2002). Appellant’s main charge, attempted second-degree murder, has two elements: (1) the defendant intentionally committed an act that could have resulted, but did not result, in the death of someone, and (2) the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life. State v. Florida, 894 So.2d 941, 945-46 (Fla.2005). Use of a firearm is a third element that increases the penalty for the crime. Id. According to appellant, the information charging him with attempted second degree murder made no reference to the element of fear, which is necessary for an assault charge.

The state argues that defense counsel did, in fact, object to the aggravated assault instruction, and that the trial court overruled the objection, thus preserving the issue for appeal. Although the record shows that counsel objected to the lesser offense instruction during the charge conference, the question is whether the objection was properly presented to the trial court. Generally, an appellate court may only review questions properly presented to the trial court. Williams v. State, 414 So.2d 509, 511 (Fla.1982); see also Fla. R.Crim. P. 3.390(d) (“[n]o party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection ”) (emphasis supplied).

Here, the grounds given by defense counsel for his objection to the aggravated assault instruction were not an accurate statement of the law. Defense counsel informed the trial court that it had discretion to instruct the jury on the permissive lesser included offense based on the testimony. However, as explained above, the trial court could instruct the jury on this offense only after determining that the pleadings, as well as the evidence, supported the instruction. Thus, appellant’s allegations of ineffective assistance of counsel sufficiently state a claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Sims v. State, 740 So.2d 1256 (Fla. 1st DCA 1999) (holding that postconviction claim that defense counsel failed to object to instruction on aggravated battery as lesser included offense to attempted robbery with a firearm where the indictment did not allege essential elements of aggravated battery to support the instruction was sufficient to state ineffective assistance of counsel claim).

Although counsel’s decision not to object to the jury instruction may have been a strategic decision, “[a] trial court cannot deny a motion for postconviction relief by finding that defense counsel’s decision was tactical or trial strategy without first holding an evidentiary hearing.” Button v. State, 941 So.2d 531, 533 (Fla. 4th DCA 2006). Accordingly, we reverse and remand for the trial court to hold an evidentiary hearing on Claim Nine of appellant’s post-conviction motion. We affirm the trial court’s summary denial as to all other grounds raised in the motion.

Affirmed in part; Reversed in part

POLEN and HAZOURI, JJ., concur.

      . We note that when appellant made this argument in his direct appeal, the state took an inconsistent position, arguing that appellant did not properly object to the lesser offense instruction and thus failed to preserve the issue for appellate review.


author: FLETCHER, J.

text:
    Dessie ADDERLY, Appellant, v. The UNIVERSITY OF MIAMI d/b/a The University of Miami School of Medicine, Appellee.
    No. 3D05-2541.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Ratzan & Alters, P.A., Miami; Boldt Law Firm and Kimberly L. Boldt, for appellant.
    Fowler White Burnett P.A., and June Galkoski Hoffman, Miami and Marc J. Schleier, for appellee.
    Before FLETCHER, RAMIREZ, and SUAREZ, JJ.
   FLETCHER, J.

Dessie Adderly appeals from a final judgment entered in favor of The University of Miami d/b/a The University of Miami School of Medicine (UM) following a jury trial in this medical malpractice action. We affirm.

Mrs. Adderly was suffering from blood flow problems with her right leg when she underwent vascular surgery at Jackson Memorial Hospital. After the surgery, Adderly was paralyzed from the abdomen down and lost her left leg to amputation as a result of lack of blood flow. She brought a negligence action against numerous medical providers including UM and The Public Trust d/b/a Jackson Memorial Hospital. Plaintiff alleged that UM was vicariously liable for the conduct of the treating vascular surgeons, Pranay Ramdev, M.D. and Darwin Eton, M.D. due to their medical faculty appointments and employment with UM. During discovery, plaintiff requested from both UM and the Trust documents to determine the surgeons’ relationship with the organizations. Pursuant to the request, a contract between Dr. Ramdev and the Trust was produced; however, it was dated subsequent to the surgery. On its pre-trial exhibit list, UM did not list another contract as intended evidence. Allegedly based on the assumption that no controlling contract existed, plaintiff dismissed the Trust as a defendant four days prior to trial.

At trial, plaintiff had to prove that Dr. Ramdev deviated from the standard of care in his treatment of the patient, and that in so doing he acted as an agent of UM. On the issue of negligence, Adderly’s expert testified that the surgeons incorrectly operated resulting in blood flow being cut off to the pelvis which ultimately led to loss of what was her good leg. The treating surgeons, however, claimed that upon visual observation they discovered the patient’s aorta was occluded and that this necessitated a change from the original surgical plan (an end-to-end graft instead of an end-to-side graft). On cross-examination, plaintiffs expert conceded that if the surgeons had discovered an occluded aorta then the procedure they performed was correct and within the standard of care.

On the agency issue, early in the trial plaintiff attempted to prove the relationship with UM based on the failure to produce a contract with the Trust. On questioning, however, Dr. Ramdev maintained that he had signed a contract with the Trust. On the fourth day of trial, UM produced the applicable contract. (UM explained that the contract had been found after a further search by Trust personnel.) Plaintiff objected to the admission of the contract. Recognizing its potential for prejudice, the judge offered plaintiff a mistrial, but plaintiff declined. The trial court allowed evidence of the contract to come in. The jury returned a verdict of no negligence by the surgeons, and a final judgment was entered in favor of UM.

Appellant contends she is entitled to a new trial due to the improper and prejudicial admission of the late-discovered evidence. She claims that introduction of this evidence mid-trial destroyed the credibility of her case and impermissibly bolstered the credibility of Dr. Ramdev. Her argument presumably goes to both the agency and liability issues, i.e. because the doctor was right about the existence of the contract, the jury was more likely to believe him as to the occluded aorta. UM initially argues that appellant waived her rights when she declined the offer of a mistrial. Alternatively, it would have this court affirm on harmless error grounds because of the existence of substantial independent evidence of liability. We are convinced that error, if any, in the admission of the objected-to evidence was harmless.

It is important to remember that the initial issue for the jury’s consideration was whether or not the surgeons were negligent in their care and treatment of Adderly. Only if they found negligence, would the issue of agency need to be resolved. In light of the concession made by plaintiffs expert, the key question on liability was the condition of the aorta at the beginning of the surgery. Independent of Dr. Ramdev’s testimony (whose credibility appellant claims was improperly bolstered), the jury was presented with Dr. Eton’s testimony. He stated that he remembered a complete occlusion. Additionally, an operative note dictated by Dr. Roca, a resident assisting in the surgery, was introduced which described the aorta as “heavily calcified.” Although not overwhelming, this evidence could reasonably have been found by the jury to be suffi-dent proof of the absence of any negligence. Moreover, we are not persuaded by appellant’s argument that the impermissible evidence bolstered Dr. Ramdev’s credibility to such a significant degree. A jury should be able to appreciate the difference between testimony on a minor point such as the existence of an employment contract and the crucial facts surrounding what happened during the surgery.

We, therefore, affirm the judgment below.