author: LaROSE, Judge.

text:
    Antwan BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-6070.
    District Court of Appeal of Florida, Second District.
    June 1, 2007.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Antwan Brown appeals his convictions and sentences for armed burglary and third-degree grand theft. The trial court sentenced him as a Prison Releasee Reof-fender to thirty years in prison for the burglary, five years in prison for the grand theft, and fourteen years in prison for various probation violations, all sentences to run concurrently. Mr. Brown’s arguments on appeal are meritless. Accordingly, we affirm.

Mr. Brown first contends that the State failed to present sufficient evidence that the stolen items — a knife and some jewelry — exceeded the threshold $100 in value necessary to constitute grand theft from a dwelling. See § 812.014(2)(d), Fla. Stat. (2005). He claims that the only value evidence was the testimony of the victim’s wife that two stolen rings were worth “like a hundred dollars.” Mr. Brown ignores the victim’s testimony that the rings were each worth $50, a stolen watch was worth $100, and the stolen knife was worth $20. These amounts total $220. Mr. Brown’s argument on this point cannot withstand scrutiny.

Mr. Brown argues next that the trial court erred in denying his motion for a new trial after allowing the jury to examine rings that the victim brought to trial, despite the fact that they were not the stolen rings. Mr. Brown mischaracterizes the record. During deliberations, the jury members sent a note stating that they did not think the rings they saw at trial were the rings shown in photographs entered into evidence. The jury asked what evidence they should consider. After consulting with counsel, the trial court instructed the jury to consider only the photographs, which both sides stipulated showed jewelry found in Mr. Brown’s pockets upon his arrest. The record belies Mr. Brown’s claim that he and the State agreed that the photographs did not show the actual stolen items.

Finally, Mr. Brown argues that the trial court erred in denying his motion for a judgment of acquittal for armed burglary. According to Mr. Brown, the State’s evidence showed that the alleged weapon was a pocket knife. This argument, too, is disingenuous. The knife, and pictures of it, were admitted into evidence. It is a dagger or dirk with an approximate four-inch fixed blade. Clearly, it is not a pocket knife. See State v. Walthour, 876 So.2d 594, 597 (Fla. 5th DCA 2004).

Although we are reluctant to conclude that Mr. Brown deliberately misrepresented the record, we can say that he has ignored, discounted, or distorted the evidence and testimony presented to the jury and trial court. Our careful review of the record reflects no trial court error. We affirm Mr. Brown’s convictions and sentences. Moreover, we take this opportunity to remind parties and counsel who appear before us to present the facts and law in an accurate and forthright manner. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 571 (Fla.2005); Hays v. Johnson, 566 So.2d 260, 261 (Fla. 5th DCA 1990).

Affirmed.

ALTENBERND and NORTHCUTT, JJ., Concur.


source: Caselaw Access Project

author: WOLF, J.

license: Public Domain

text:
    AVANTE VILLA AT JACKSONVILLE BEACH, INC. d/b/a Avante at Jacksonville Beach, Petitioner, v. Candyce BREIDERT, as Personal Representative of the Estate of Darlene E. Payson, Deceased, Respondent.
    No. 1D06-4880.
    District Court of Appeal of Florida, First District.
    June 5, 2007.

      Kari Aasheim of McCumber, Inclan, Daniels, Buntz, Hartig & Puig, P.A., Tampa, for Petitioner.
    Karen L. Goldsmith and Jonathan S. Grout of Goldsmith, Grout & Lewis, P.A., Winter Park, for Florida Health Care Association, Amicus Curiae for Petitioner.
    David Paul and Simon Wiseman of Paul <& Coppock, P.A., Orlando; and Philip M. Burlington of Burlington & Rockenback, P.A., West Palm Beach, for Respondent.
    Lincoln J. Connolly of Rossman, Baum-berger, Reboso & Spier, P.A., Miami, for Floridians for Patient Protection, Inc., Amicus Curiae for Respondent.
   WOLF, J.

Petitioner, Avante Villa at Jacksonville Beach, Inc. (Avante), a nursing home, filed a petition for writ of certiorari seeking review of an order compelling the discovery of documents petitioner claimed to be privileged, arguing that: (1) documents originating in nursing homes are not discoverable because nursing homes do not fall within the definition of “health care facility” or “health care provider” as contemplated by Amendment 7 to the Florida Constitution, later incorporated as article 10, section 25, and (2) Amendment 7 is preempted by federal law which occupies the field of quality assurance in the nursing home industry. Because we find that nursing homes and skilled nursing facilities are excluded from Amendment 7, we need not address the federal preemption issue.

Darlene Payson, deceased, resided at Avante from March 21, 2003, to April 11, 2003. On March 28, 2005, respondent, Candyce Breidert, personal representative of the Estate of Darlene Payson, filed a cause of action under chapter 400, Florida Statutes. She alleged that Avante failed to take adequate precautions or provide adequate supervision and, as a result, Pay-son suffered numerous falls, including one which resulted in a right pneumothorax, subdural hematoma, and subarachnoid hemorrhage. She alleged that those injuries caused or contributed to Payson’s death on December 15, 2003. The complaint alleged that Avante violated the patients’ resident rights guaranteed by section 400.022, Florida Statutes, the Florida Administrative Code, OBRA regulations, as well as the common law standard of care.

On April 5, 2005, and February 8, 2006, respondent made discovery requests to Avante, including a set of interrogatories and two requests for production. Avante raised objections, asserting a privilege against discovery due to confidentiality of self-critical analysis and quality assurance efforts. In lieu of documents claimed to be protected, Avante produced what they called a “privilege log,” which was a list of four events: two “unusual occurrence incident reportfs]” and two “incident log ana-lys[es].”

The trial court ruled that the disputed documents were, in fact, documents from a health care facility and ordered production of the documents for an in camera inspection pursuant to article X, section 25(c)(1) of the Florida Constitution.

Certiorari is the appropriate remedy where the trial court orders disclosure of privileged information, where such disclosure departs from the essential requirements of law thereby causing irreparable injury which cannot be remedied on appeal following final judgment. Huet v. Tromp, 912 So.2d 336, 338 (Fla. 5th DCA 2005).

Whether or not the trial court’s ruling departed from the essential requirements of law rests on this court’s interpretation of article X, section 25 of the Florida Constitution. Any inquiry into the proper interpretation of a constitutional provision must begin with an examination of that provision’s explicit language. If that language is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written. See Fla. League of Cities v. Smith, 607 So.2d 397, 400 (Fla.1992) (“[T]he law is settled that when constitutional language is precise, its exact letter must be enforced and extrinsic guides to construction are not allowed to defeat the plain language”); In re Advisory Opinion to the Governor, 374 So.2d 959, 964 (Fla.1979) (“In construing provisions of the constitution, each provision must be given effect, according to its plain and ordinary meaning”); City of St. Petersburg v. Bliley, Wild & Assocs., Inc., 239 So.2d 817, 822 (Fla.1970) (“If the language is clear and not entirely unreasonable or illogical in its operation we have no power to go outside the bounds of the constitutional provision in search of excuses to give a different meaning to words used therein”).

Amendment 7, enacted in the 2004 election by citizens’ initiative, authorizes discovery of documents related to adverse medical incidents occurring in health care facilities or under health care providers. Amendment 7 defines the terms “health care facilities” and “health care provider” as follows:

The phrases “health care facility” and “health care provider” have the meaning given in general law related to a patient’s rights and responsibilities.

Art. X, § 25(c)(1), Fla. Const, (emphasis added).

Although in certain general law provisions nursing homes have been included in the definition of health care facility and health care provider, Amendment 7 limits the definitions to the “meaning given in general law related to a patient’s rights and responsibilities.” Art. X, § 25(c)(1), Fla. Const, (emphasis added).

Section 381.026, Florida Statutes, which was enacted prior to Amendment 7’s passing, is the only section of the Florida Statutes that deals specifically with a patient’s rights and responsibilities. Section 381.026, entitled “Florida Patient’s Bill of Rights and Responsibilities,” defines a health care facility as “a facility licensed under chapter 395” and a health care provider as “a physician licensed under chapter 458, an osteopathic physician licensed under chapter 459, or a podiatric physician licensed under chapter 461.” § 381.026(2)(b) & (c), Fla. Stat. These definitions have the precise wording used in the codified version of Amendment 7 and exclude nursing homes by omission, because a separate “Residents’ Bill of Rights” was enacted in 1993 to address nursing home residents’ rights. See § 400.628, Fla. Stat. (1993).

Further, the Florida Patient’s Bill of Rights and Responsibilities was enacted in 1991, more than a decade before Amendment 7 was adopted by the electorate. It is the only section of the statutes that used the specific term at the time of the adoption of Amendment 7. Therefore, the specific language in Amendment 7 requiring that the definition be “related to a patient’s rights and responsibilities” can be reasonably interpreted as adopting the definitions used in the Florida Patient’s Bill of Rights and Responsibilities.

Further, in 2005, the Florida Legislature codified Amendment 7 in section 381.028(3), Florida Statutes, and defined “health care facility” and “health care provider” as follows:

(e) “Health care provider” means a physician licensed under chapter 458, chapter 459, or chapter 461.
(f) “Health care facility” means a facility licensed under chapter 395.

Thus, Amendment 7’s statutory codification excludes nursing homes from compelled discovery of adverse medical incidents. While portions of section 381.028 have been previously declared in conflict with Amendment 7, see Notami Hospital of Florida, Inc. v. Bowen, 927 So.2d 139, 143 (Fla. 1st DCA 2006) (finding section 381.028, Florida Statutes, unconstitutional because it “drastically limits or eliminates discovery of records the amendment expressly states are discoverable, and limits the ‘patients’ qualified to access those records.”); Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006) (rejecting the interpretation of Amendment 7 by the Legislature), this particular provision of the statute is not in conflict with the language contained in the amendment. Where a legislative codification of a constitutional amendment is not in conflict with the purpose of the amendment, the legislative interpretation should be given deference. Greater Loretta Improvement Ass’n v. State ex rel. Boone, 234 So.2d 665 (Fla.1970).

Because no conflict exists, the trial court was required to apply the law of Florida’s Constitution as codified and clarified in section 381.028, Florida Statutes, which excludes nursing homes and skilled nursing facilities. Therefore, the trial court, in finding that a nursing home was a health care provider and compelling the documents at issue, departed from the essential requirements of law.

Further, “erroneous production of ... privileged and/or protected documents cannot be remedied on appeal, and thus may result in a miscarriage of justice.” Progressive Am. Ins. Co. v. Lanier, 800 So.2d 689, 691 (Fla. 1st DCA 2001). In the case at hand, the trial court ordered that the documents in question be turned over to it for in camera inspection, and petitioner will suffer irreparable injury if the trial court turns the privileged documents over to the respondent.

Accordingly, because the trial court departed from the essential requirements of law and petitioner will suffer irreparable injury that cannot be adequately remedied on appeal, we grant the writ of certiorari, and vacate the trial court’s order.

Because this is a question of great public importance, we certify the following question to the Florida Supreme Court:

WHETHER “NURSING HOMES” OR “SKILLED NURSING FACILITIES” FALL WITHIN THE DEFINITION OF “HEALTH CARE FACILITY” OR “HEALTH CARE PROVIDER” AS CONTEMPLATED BY AMENDMENT 7 TO THE FLORIDA CONSTITUTION?

BARFIELD and VAN NORTWICK, JJ., concur.

      . Federal Nursing Home Reform Act from the Omnibus Budget Reconciliation Act.

      . See § 408.032(8), Fla. Stat.; § 408.07(24), Fla. Stat.; § 400.602(2), Fla. Stat.; § 381.0303(3)(a)2„ Fla. Stat.; § 159.27(16), Fla. Stat.; § 765.101(6) & (7), Fla. Stat.; § 154.205(8), Fla. Stat.; § 717.101(11), Fla. Stat.; § 440.13(l)(g), Fla. Stat.

      . We note, however, that both Notami and Buster involved chapter 395 licensed hospitals, and the definition of “health care facility” and "health care provider” was not at issue in those cases. However, dicta located in a footnote of Buster mentions that Amendment 7 was enacted by the people to change the law by eliminating guaranteed privileges such as section 400.118, Florida Statutes (2005), which covers quality assurance in nursing homes.


text:
    CONTRACTPOINT FLORIDA PARKS, LLC, Appellant, v. STATE of Florida, and State of Florida, Department of Environmental Protection, Appellee.
    No. 1D06-4746.
    District Court of Appeal of Florida, First District.
    June 5, 2007.
    Mike Piseitelli of Vezina, Lawrence & Piseitelli, P.A., Ft. Lauderdale, and Bradley S. Copenhaver of Vezina, Lawrence & Piseitelli, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Louis F. Hubener, Acting Solicitor General, and Lynn C. Hearn, Deputy Solicitor General, Office of the Attorney General, Tallahassee, for Appellees.
   WOLF, J.

This case originated in a breach of contract action filed by appellant against ap-pellee, State of Florida, Department of Environmental Protection (DEP). In April 2001, DEP entered into a contract with appellant in which appellant was to construct and operate 143 vacation cabins, along with associated concessions, in eight state parks. Under the contract, appellant was scheduled to pay 15% of its gross sales to DEP. The contract was to last for 30 years, with two 10-year renewal options based on satisfactory service. In August 2005, appellant brought suit against DEP for wrongful termination of the contract.

Following a jury trial, judgment was entered against DEP for $628,543. However, DEP refused to pay the judgment asserting section 11.066(3), Florida Statutes (2001), barred payment. The relevant portion of section 11.066, Florida Statutes (2001), provides:

(1) As used in this section, the term “appropriation made by law” has the same meaning as in s. 1(c), Art. VII of the State Constitution and means money allocated for a specific purpose by the Legislature by law in a general appropriations act or a special appropriations act.
(2) The state and each state agency, when exercising its inherent police power to protect the public health, safety, or welfare, is presumed to be acting to prevent a public harm. A person may rebut this presumption in a suit seeking monetary damages from the state or a state agency only by clear and convincing evidence to the contrary.
(3) Neither the state nor any of its agencies shall pay or be required to pay monetary damages under the judgment of any court except pursuant to an appropriation made by law. To enforce a judgment for monetary damages against the state or a state agency, the sole remedy of the judgment creditor, if there has not otherwise been an appropriation made by law to pay the judgment, is to petition the Legislature in accordance with its rules to seek an appropriation to pay the judgment.
(4)... Moreover, it is a defense to an alternative writ of mandamus issued to enforce a judgment for monetary damages against the state or a state agency that there is no appropriation made by law to pay the judgment.

(Emphasis added).

In December 2005, appellant filed a Petition for Writ of Mandamus seeking to compel Florida’s Chief Financial Officer (CFO) to pay the damage award. The trial court entered a final order denying the Petition for Writ of Mandamus, stating that in the face of the clear language of section 11.066, appellees did not have a clear legal duty to pay the judgment to appellants without a specific appropriation for that purpose. This timely appeal followed.

Whether appellant had a clear legal right to enforce the monetary judgment and, thus, was entitled to mandamus relief rests on this court’s interpretation of whether section 11.066, Florida Statutes (2001), is applicable to an action based on a breach of contract. The issue of the application of sovereign immunity in contract actions involving the State was specifically dealt with in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4 (Fla.1984). The court determined that the application of the doctrine in that situation would result in the State’s inability to enter into binding contracts.

It is basic hornbook law that.a contract which is not mutually enforceable is an illusory contract. Howard Cole & Co. v. Williams, 157 Fla. 851, 27 So.2d 352 (1946). Where one party retains to itself the option of fulfilling or declining to fulfill its obligations under the contract, there is no valid contract and neither side may be bound. Miami Coca-Cola Bottling Co. v. Orange-Crush Co., 291 F. 102 (D.Fla.1923), affirmed, 296 F. 693 (5th Cir.1924).
Respondent contends that the requirement of mutuality of remedy is satisfied by petitioner’s opportunity to bring a claims bill before the legislature. This Court has recently held that subjecting oneself to the possibility of suit in a court of law is not sufficient obligation to support a contract. Stack v. Dunn, 444 So.2d 935 (Fla.1984). We cannot now, in good conscience, hold that the chance to seek an act of grace from the legislature is sufficient remedy to create mutuality. Where the legislature has, by general law, authorized entities of the state to enter into contract or to undertake those activities which, as a matter of practicality, require entering into contract, the legislature has clearly intended that such contracts be valid and binding on both parties. As a matter of law, the state must be obligated to the private citizen or the legislative authorization for such action is void and meaningless. We therefore hold that where the state has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from action arising from the state’s breach of that contract.

Id. at 5.

The trial court determined that section 11.066, Florida Statutes (1991), superseded the decision in Pan-Am, Tobacco.

Contrary to the trial court’s reasoning, section 11.066 does not express any legislative intent to overturn 22 years of case law subjecting the state to breach of contract actions. That case law is founded on the Florida Supreme Court’s determination that the specific statutes authorizing government agencies to enter into contracts constitute a waiver of sovereign immunity for actions arising under those contracts. The Legislature is presumed to know the judicial construction of existing law when it enacts a new law, and the Legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the statute. Jones v. ETS of New Orleans, Inc., 793 So.2d 912 (Fla.2001); City of Ormond Beach v. City of Daytona Beach, 794 So.2d 660 (Fla. 5th DCA 2001). We will not infer that it was the legislative intent to render all state contracts void and meaningless for lack of mutuality of obligation. It is axiomatic that we will not interpret a statute in a manner which would lead to an absurd or unreasonable result. State v. Webb, 398 So.2d 820, 824 (Fla.1981). Likewise, the courts will not infer an intent by the Legislature to effect so important a measure as the repeal of existing law without an express intention to do so. Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 9 (Fla.2004).

While it has not passed any legislation expressing an intent contrary to Pavr-Am Tobacco that would render state contracts illusory, the Legislature has passed laws intended to enhance and expand the State’s contracting authority. With respect to the specific contract underlying this case, the 1996 Legislature expressed the importance of viable public/private contracting projects:

The Legislature recognizes that many of the parks in the state park system need a variety of facilities to enhance their use and potential. Such facilities include, but are not limited to, improved access, camping areas, picnicking shelters, park management offices and facilities, and environmental education facilities. The need for such facilities has exceeded the ability of the state to provide such facilities in a timely manner with moneys available. The Legislature finds it to be in the public interest to provide incentives for partnerships with private organizations with the intent of producing additional revenue to help enhance the use and potential of the state park system.

§ 258.015(3)(a), Fla. Stat. (emphasis added).

The Legislature could not, on the one hand, intend to make all public/private contracts illusory as the trial court effectively found it did in section 11.066, and, at the same time, direct DEP to provide incentives for partnerships with private organizations that necessarily entail entering into public/private contracts.

We, therefore, reverse the decision of the trial court and remand for further proceedings consistent with this opinion. We are not unmindful, however, that the wording of the statute in question does not exclude contract actions. Nor is it clear how DEP will comply if, in fact, there is not a legislative appropriation to cover the judgment (a determination which appears to have been made by the trial court in applying the statutory provisions).

Accordingly, we certify the following question to be one of great public importance:

DOES SECTION 11.066, FLORIDA STATUTES, APPLY WHERE JUDGMENTS HAVE BEEN ENTERED AGAINST THE STATE OR ONE OF ITS AGENCIES IN A CONTRACT ACTION?

BARFIELD and VAN NORTWICK, JJ., concur.

      . Section 258.015(3)(a) was expressly incorporated into the contract between Contract-Point and DEP.


author: PER CURIAM.

text:
    Deborah J. SUMNER and Clarence A. Sumner, Appellants, v. Bernard J. GROS, M.D. and Cardiology Associates of Gainesville, Appellees.
    Nos. 1D06-0256, 1D06-2039.
    District Court of Appeal of Florida, First District.
    June 5, 2007.

      Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, Mac A. Greco, Jr., of Mac A. Greco, Jr., P.A., Tampa, and Michael J. Trentalange of Trentalange <& Kelly, P.A., Tampa, for Appellants.
    Brian D. Stokes of The Unger Law Group, P.L., Orlando, for Appellees.
   PER CURIAM.

Appellants seek review of final orders dismissing with prejudice count IV of their third amended complaint for failure to state a cause of action, and awarding attorneys’ fees to appellees pursuant to section 57.105, Florida Statutes (2005). The propriety of the trial court’s dismissal is a pure question of law as to which our standard of review is de novo. E.g., City of Gainesville v. State Dep’t of Transp., 778 So.2d 519, 522 (Fla. 1st DCA 2001). Our review must also treat all well-pleaded allegations as true, and limit itself to the four corners of the complaint. E.g., Gowan v. Bay County, 744 So.2d 1136, 1138 (Fla. 1st DCA 1999). Having thus examined count IV of the third amended complaint, we are satisfied that it sufficiently alleges all of the elements of a cause of action for medical negligence, including the existence of a doctor-patient relationship. Accordingly, the trial court erred when it concluded otherwise. Whether appellants can prove the allegations of their cause of action is irrelevant for purposes of this appeal. Because it was error to dismiss count IV of the third amended complaint, it was likewise error to award attorneys’ fees pursuant to section 57.105.

The trial court’s orders dismissing count IV of appellants’ third amended complaint and awarding attorneys’ fees to appellees are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER, and BENTON, JJ., concur.


text:
    Pamela D. WENDEL, Appellant, v. Robert WENDEL, Jr., Appellee.
    No. 1D06-3508.
    District Court of Appeal of Florida, First District.
    June 5, 2007.

      Donna S. MacRae of Three Rivers Legal Services, Inc., Lake City, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant, Pamela D. Wendel, seeks review of an order finding her in contempt for violating an injunction. We agree with Appellant that because the contempt order did not contain a purge provision, the contempt must be characterized as criminal contempt. See Parisi v. Broward County, 769 So.2d 359, 365 (Fla. 2000); Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla.1977). Strict compliance with Florida Rule of Criminal Procedure 3.840 is required in indirect criminal contempt proceedings. Levey v. D’Angelo, 819 So.2d 864, 869 (Fla. 4th DCA 2002). Appellant is correct that the trial court’s Rule to Show Cause did not comply with rule 3.840 because it gave no indication that she was subject to criminal contempt, it did not state the essential facts constituting the contempt or attach the contempt motion, nor did it afford her a reasonable time for preparation of a defense. See Pugliese, 347 So.2d at 426; Flanagan v. State, 840 So.2d 379, 380 (Fla. 1st DCA 2003); Young v. Wood-Cohan, 727 So.2d 322, 324 (Fla. 4th DCA 1999); Russ v. State, 622 So.2d 501, 502 (Fla. 5th DCA 1993). Noncompliance with rule 3.840 constitutes fundamental error. Hunt v. State, 659 So.2d 363, 364 (Fla. 1st DCA 1995).

Accordingly, we REVERSE the contempt order without prejudice to proceed against Appellant in accordance with rule 3.840.

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


text:
    Keith A. BLUESTEIN, Former Husband, Appellant, v. Trudy H. BLUESTEIN, Former Wife, Appellee.
    No. 1D06-6398.
    District Court of Appeal of Florida, First District.
    June 5, 2007.

      Harold W. Mitchell of Newman & Mitchell, Jacksonville, for Appellant.
    Jeffrey J. Sneed, Atlantic Beach, for Appellee.
   PER CURIAM.

Keith Bluestein appeals an order denying motions for termination of alimony and for relief from a consent order, wherein the circuit court sua sponte modified the visitation arrangement. We reverse.

Contrary to the lower court’s findings, neither party had raised an issue of visitation, nor had the parties argued it by consent at the hearing. See Walls v. Sebastian, 914 So.2d 1110 (Fla. 4th DCA 2005). Because all parties were by then residing in Virginia, it is questionable whether the circuit court would have had jurisdiction to reach the issue, had it been raised. See § 61.515, Fla. Stat. (2005). We direct the court to strike that portion of the order dealing with visitation.

REVERSED and REMANDED.

BENTON, PADOVANO, and THOMAS, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Frank RODRIGUEZ, Appellant, v. Celia FIGUEROA, Appellee.
    No. 3D05-2610.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.
    John Herrera, for appellant.
    Carrera Amador and Juan M. Carrera, for appellee.
    Before FLETCHER and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Without reaching any of the other, substantial contentions advanced by the appellant-former husband, we reverse the trial court’s order sustaining exceptions to the report of the general magistrate that the instant transaction was not usurious. Such a factual determination, and particularly one involving that aspect of the law of usury which requires a “corrupt intent,” see Jersey Palm-Gross, Inc. v. Paper, 658 So.2d 531, 534 (Fla.1995), cannot be overturned in the absence of a transcript of the testimony below, which the former wife was required to provide but did not. See Fla. Fam. L.R.P. 12.490(d)(4),(f), (g); see also Brill v. Brill, 905 So.2d 948, 954-55 (Fla. 4th DCA 2005), review denied, 917 So.2d 191 (Fla.2005). The order under review is therefore reversed with directions to approve the report and enter judgment accordingly.

      . Florida Family Law Rule of Procedure 12.490(d)(4) provides:
      The notice or order setting the cause for hearing shall be in substantial conformity with Florida Family Law Rules of Procedure Form 12.920(c) and shall contain the following language in bold type:
      SHOULD YOU WISH TO SEEK REVIEW OF THE REPORT AND RECOMMENDATION MADE BY THE GENERAL MAGISTRATE, YOU MUST FILE EXCEPTIONS IN ACCORDANCE WITH RULE 12.490(f), FLA. FAM. L.R.P. YOU WILL BE REQUIRED TO PROVIDE THE COURT WITH A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS OR YOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS. THE PERSON SEEKING REVIEW MUST HAVE THE TRANSCRIPT PREPARED IF NECESSARY FOR THE COURT'S REVIEW.
      Rule 12.490(f) states, in pertinent part: "The general magistrate shall file the report and recommendations and serve copies on all parties. The parties may serve exceptions to the report within 10 days from the time it is served on them.”
      Rule 12.490(g) provides:
      Record. For the purpose of the hearing on exceptions, a record, substantially in conformity with this rule, shall be provided to the court by the party seeking review if necessary for the court's review.
      (1) The record shall consist of the court file, including the transcript of the relevant proceedings before the general magistrate and all depositions and evidence presented to the general magistrate.
      (2) The transcript of all relevant proceedings, if any, shall be delivered to the judge and provided to all other parties not less than 48 hours before the hearing on exceptions. If less than a full transcript of the proceedings taken before the general magistrate is ordered prepared by the excepting party, that party shall promptly file a notice setting forth the portions of the transcript that have been ordered. The responding parties shall be permitted to designate any additional portions of the transcript necessary to the adjudication of the issues raised in the exceptions or cross-exceptions.
      (3) The cost of the original and all copies of the transcript of the proceedings shall be borne initially by the party seeking review, subject to appropriate assessment of suit monies. Should any portion of the transcript be required as a result of a designation filed by the responding party, the party making the designation shall bear the initial cost of the additional transcript.


text:
    SARAH ENGEL, INC., Appellant, v. LPP MORTGAGE LTD., Appellee.
    No. 3D06-2857.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.

      Larson and Jones, and Steven L. Jones, Miami Shores, for appellant.
    Smith, Hiatt Diaz, and Roy Diaz, Fort Lauderdale, for appellee.
    Before FLETCHER, WELLS and SUAREZ JJ.
   PER CURIAM.

Affirmed. See Vosilla v. Rosado, 944 So.2d 289 (Fla.2006) (“Due process requires that the clerk look beyond the tax collector’s statement when there is reason to believe that the statement no longer reflects those who are entitled to notice ....”)


author: WALLACE, Judge.

text:
    Elena D. FLECK, n/k/a Elena D. Franco, Appellant, v. Randall J. FLECK, Appellee.
    No. 2D06-854.
    District Court of Appeal of Florida, Second District.
    June 8, 2007.
    Elena D. Franco, pro se.
    Ralph P. Mangione of Williams, Schifino, Mangione & Steady, P.A., Tampa, for Ap-pellee.
   WALLACE, Judge.

Elena D. Fleck, now known as Elena D. Franco, (the Wife) challenges multiple provisions of the amended final judgment that dissolved her marriage to Randall J. Fleck (the Husband). We reverse that portion of the amended final judgment that denied the Wife any permanent alimony and remand for the trial court to consider whether an award of nominal permanent alimony to the Wife is warranted. In all other respects, we affirm the amended final judgment.

From the date of the parties’ marriage until the petition for dissolution was filed, the marriage lasted eleven years. The trial court correctly ruled that this eleven-year marriage fell into the “gray area.” See Welch v. Welch, 951 So.2d 1017, 1019 (Fla. 5th DCA 2007) (identifying an indefinite period of time — or “gray area” — that falls somewhere between a short-term marriage and a long-term marriage). As a result, there was no presumption in favor of permanent alimony. See Walker v. Walker, 818 So.2d 711, 713 (Fla. 2d DCA 2002). Next, the trial court found that the Wife “may have a need for alimony” but that “the Husband does not have the current ability to pay.” The trial court ordered that the Husband “shall not be obligated to pay the Wife any alimony at this time.” (Emphasis added.) Despite the implication in the amended final judgment that the parties’ circumstances might change, the trial court did not reserve jurisdiction by means of an award of nominal permanent alimony that would enable it to meet the Wife’s need for support in the future. See, e.g., Cunningham v. Cunningham, 930 So.2d 719, 720-21 (Fla. 2d DCA 2006) (reversing the final judgment and remanding for the trial court to enter an amended final judgment awarding nominal permanent alimony of $1 per month to the wife where the husband was earning substantially less than his past earnings but he expected that his income would increase in the near future to what he had historically earned); Blanchard v. Blanchard, 793 So.2d 989, 990 (Fla. 2d DCA 2001) (finding that the trial court abused its discretion “when it failed to award the wife $1 in permanent periodic alimony to reserve her future right to alimony in light of the husband’s work history during [the parties’] long-term marriage”).

Based on the trial court’s findings, the Wife’s sole source of income is from her imputed wage of $10 per hour predicated on a college degree in marketing, which the Wife had not used since the beginning of the marriage. Thus the Wife has an earning capacity of approximately $20,800 per year, while the Husband earns over $225,000 per year. The Husband’s current inability to pay alimony stems from his status as the primary residential parent for the parties’ six children and from the assignment to him of almost all of the parties’ substantial marital indebtedness.

We have no reason to question the trial court’s findings of fact on these matters. However, we do conclude that the trial court erred by omitting to consider whether an award of nominal permanent alimony to the Wife was warranted. See Yitzhari v. Yitzhari, 906 So.2d 1250, 1256 (Fla. 3d DCA 2005) (stating that in “a gray area marriage, disparate earning capacity becomes a significant factor in deciding whether permanent ... alimony is appropriate”). “‘[T]he rule, generally, is that where there is a likelihood of a change in circumstances in the future that would warrant an award of alimony, the court should retain jurisdiction.’ ” Esteva v. Rodriguez, 913 So.2d 684, 686 (Fla. 3d DCA 2005) (quoting Roy v. Roy, 522 So.2d 75, 76 (Fla. 4th DCA 1988)). Despite the parties’ substantially disparate earning capacities and the Wife’s need for alimony, it does not appear that the trial court considered the possibility of an award of nominal permanent alimony to the Wife. Accordingly, we reverse the portion of the amended final judgment that denied the Wife any alimony, and we remand this case for the trial court either to find that an award of nominal permanent alimony is not appropriate or to make such an award to the Wife. We affirm the amended final judgment in all other respects.

Affirmed in part, reversed in part, and remanded.

DAVIS, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author:
CASANUEVA, Judge.
      VILLANTI, Judge,

text:
    DEPARTMENT OF REVENUE, o/b/o T.E.P., Petitioner, v. Pearson PRICE, Respondent.
    No. 2D06-4328.
    District Court of Appeal of Florida, Second District.
    June 13, 2007.
    Bill McCollum, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tampa, for Petitioner.
    No Appearance for Respondent.
   CASANUEVA, Judge.

The Department of Revenue seeks a writ of certiorari to quash a trial court order compelling Pearson Price and the mother of a minor child, T.E.P., to undergo a genetic test. The Department asserts that the trial court failed to properly follow the statutory framework governing paternity and genetic testing when it entered the order. We agree, grant the petition, and issue the writ quashing the trial court’s order.

T.E.P. was born in 2001. Following the child’s birth, Mr. Price signed an affidavit acknowledging his paternity of T.E.P. Some five years later, in 2006, the Department sued Mr. Price to collect child support due for T.E.P. Responding to the civil suit, Mr. Price sent a handwritten letter to the court asserting that another man, not he, was the true father of T.E.P. Additionally, the written response stated that Mr. Price would “like to take a genetic test to determine once and for all” that the child was not his.

A hearing was held on the written request. Mr. Price did not attend the hearing, nor does the record on appeal indicate that any sworn testimony or other evidence, including the written response, was presented to the trial court. Nonetheless, finding that the relevant statutes “have not kept up with the advances in science which have presented us with the ability to determine with certainty the biological paternity of a child,” the trial court ordered Mr. Price, the child and the natural mother to appear for genetic testing. It is this order that the Department seeks to quash.

Standard of Review

To grant this petition for writ of certiorari, we must determine whether the trial court, by issuing the order requiring genetic testing, “departed from the essential requirements of the law.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995); Malloy v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 850 So.2d 578, 581 (Fla. 2d DCA 2003). To warrant relief, the departure must be so serious and “so erroneous that justice requires that it be corrected.” Haines City, 658 So.2d at 531 (quoting Combs v. State, 436 So.2d 93, 95 (Fla.1983)). A violation of “clearly established law” can come from “controlling case law, rules of court, statutes, and constitutional law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003).

Serious Departure from the Requirements of Law

Florida favors a strong “public policy that in a case [contesting paternity], DNA tests to establish that a man other than the legal father of a child is the biological father will not be ordered unless the court determines that it is in the best interest of the child.” Callahan v. Dep’t of Revenue ex rel. Roberts, 800 So.2d 679, 680 (Fla. 5th DCA 2001). Under section 742.10(1), Florida Statutes (2006), out-of-wedlock paternity can be established through a number of methods, including a voluntarily signed and notarized acknowledgment by the father. The father then has sixty days to challenge the paternity. Upon expiration of the sixty-day period, the paternity may be challenged only for fraud, duress, or material mistake of fact. § 742.10(4). To disestablish paternity, a contesting father must file a petition with the court and follow the requirements enunciated in section 742.18(1). The court may not set aside paternity if the “father” signed a paternity acknowledgment form unless the court determines that all factors listed in section 742.18(2) existed.

Although Mr. Price signed an affidavit in conformance with the statutory acknowledgment of paternity provisions, he did not follow the statutory framework to properly challenge the prior determination of paternity. Additionally, at the hearing, no evidence, in any form, was presented to sustain Mr. Price’s judicial requests and absolutely nothing was presented that would excuse his failure to comply with duly enacted statutes. Therefore, we conclude the order departs from the essential requirements of law and the departure was so serious as to support the issuance of the writ.

Conclusion

Because this error cannot be corrected through a direct appeal, for the improper genetic testing requiring a blood draw would have already been completed, the error must be corrected through certiorari proceedings. See State v. Bjorkland, 924 So.2d 971, 975 (Fla. 2d DCA 2006). Pursuant to our constitutional authority to issue a writ of certiorari, Art. V, § 4(3), Fla. Const., we grant the petition, issue the writ, quash the order on review, and remand for further proceedings.

SALCINES, J., Concurs.

VILLANTI, J., Concurs specially.

VILLANTI, Judge,

Specially concurring.

I concur in the majority holding but write to emphasize that, while the trial court may have believed that “[t]he Statutes have not kept up with the advances in science[,]” the trial court was still obligated to follow those duly enacted statutes. Mr. Price did not contest that he signed a voluntary acknowledgement of paternity more than sixty days before filing his answer in this collection action which purportedly sought to challenge his paternity. As a result, under section 742.10(4), Mr. Price’s acknowledgement constituted “an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact.” Mr. Price alleged none of these bases in his answer. Further, section 742.12 only authorizes the trial court to order DNA testing “[i]n any proceeding to establish paternity.” Because paternity had previously been established and Mr. Price did not properly bring a proceeding to challenge that establishment of paternity, the law suit below did not involve an action to establish paternity. Under these facts, the trial court did not have authority to order DNA testing. Consequently, the trial court departed from the essential requirements of law when it ordered DNA testing. I note that our holding does not in any way preclude Mr. Price from challenging his paternity by following all statutory requirements in the future.


author: ALTENBERND, Judge.

text:
    Smith THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1643.
    District Court of Appeal of Florida, Second District.
    June 13, 2007.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Smith Thomas appeals his judgments and sentences for possession of cannabis with intent to sell, possession of paraphernalia, and maintaining a structure for using, keeping or selling controlled substances. Mr. Thomas was sentenced to a total of five years’ imprisonment followed by two years’ probation. We affirm the judgments and sentences. We write only to explain why the trial court’s possible error in refusing to strike a prospective juror for cause would not entitle Mr. Thomas to a reversal of his judgments. Mr. Thomas was not forced to use a peremptory challenge on the objectionable juror. Moreover, the objectionable juror did not serve on the jury because the State used one of its peremptory challenges to strike the juror.

At Mr. Thomas’s trial, the State sought to establish that Mr. Thomas was actively engaged in dealing drugs from his residence. During jury selection, the attorneys for both parties sought to determine whether the potential jurors had any bias related to the use or sale of drugs. One potential juror, who we will refer to as Juror W, expressed serious reservations regarding his ability to sit as a juror because he himself was a recovering drug addict and he had a friend who had almost died as a result of drug use. This juror commented, “If it hadn’t been for somebody selling [drugs] to me I wouldn’t have been in the trouble I’ve been in.”

The prosecutor who had elicited some of these responses from Juror W then sought to rehabilitate this juror. The prosecutor asked, “If the State proves to you beyond a reasonable doubt that [Mr. Thomas has] done the things that he’s accused of, are your personal feelings going to prevent you from returning a guilty verdict?” Juror W responded, “No.” He added that he could follow the law in this respect, interjecting, “I just carried a Mend down to rehab that was recovering and almost died so ... I would have no problem.”

No further effort was made to rehabilitate this juror. Specifically, no one asked whether the potential juror’s personal experiences would interfere with the potential juror recommending a “not guilty” verdict or with his ability to impartially consider any defense presented by Mr. Thomas — something seriously called into question by his remarks.

When the trial judge and counsel conferred to consider and exercise challenges to the potential jurors, defense counsel asked the trial judge to excuse Juror W for cause. The trial judge denied the request. Defense counsel also asked the court to dismiss two other potential jurors for cause. The court granted this request as to one juror but denied it as to the other, a woman we will refer to as Juror Y, whose overall responses suggested that she could render a fair and impartial verdict.

The trial judge proceeded to call the remaining potential jurors’ names in the sequence in which they were seated in order to address any peremptory challenges. As it turns out, there were at least seven potential jurors seated in advance of Juror W. As each of the first seven potential jurors was considered, the defense exhausted all six of its peremptory challenges. One of the peremptory challenges was used to strike Juror Y, whom the defense had previously sought to dismiss for cause.

The court then called the name of Juror W. The State exercised a peremptory challenge on Juror W. Thus, Juror W did not sit on the jury panel. The State accepted the next six jurors.

When this panel was presented to the defense, defense counsel asked for two additional peremptory challenges in light of the trial court’s refusal to dismiss Juror Y and Juror W for cause. Defense counsel attempted to identify two other jurors currently included in the jury panel that he, would exercise these peremptory challenges on, but one of the jurors he identified was no longer on the panel, having been stricken by the State. The trial court denied this request. In this appeal, Mr. Thomas argues that the trial judge’s refusal to strike Juror W for cause was error and that this error merits a new trial.

The test for determining juror competency is whether the juror can lay aside any bids or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. Busby v. State, 894 So.2d 88, 95 (Fla.2004). Although the mere fact that a juror gives equivocal responses does not disqualify that juror for service, the trial court , must excuse a prospective juror for cause if any reasonable doubt exists regarding his or her ability to render an impartial verdict. Id. at 96; see also Suri v. State, 937 So.2d 216, 219 (Fla. 3d DCA 2006). On the other hand, if the juror declares and the court determines that the juror can render an impartial verdict according to the evidence, a challenge for cause should not be granted. Dorsey v. Reddy, 931 So.2d 259, 265 (Fla. 5th DCA 2006). In close cases, any doubt as to a juror’s competency should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality. Segura v. State, 921 So.2d 765, 766 (Fla. 3d DCA 2006). This court reviews a trial court’s decision to deny a cause challenge to a potential juror for an abuse of discretion. Moore v. State, 939 So.2d 1116, 1118 (Fla. 3d DCA 2006) (quoting Still v. State, 917 So.2d 250 (Fla. 3d DCA 2005)).

Keeping in mind these principles, we are inclined to conclude that the trial court abused its discretion in failing to excuse Juror W for cause. Juror W’s answers called into serious doubt his ability to render an impartial verdict given his past experiences with addiction and drug use. We are not required, however, to reach this issue because even if the refusal to excuse the juror for cause was error, it is not an error entitling Mr. Thomas to a new trial.

We recognize that cases often describe certain errors in jury selection as “per se” errors that entitle a defendant to a new trial without proof that the error created actual harm. See, e.g^ Gilliam v. State, 514 So.2d 1098, 1099 (Fla.1987); Dougherty v. State, 813 So.2d 217, 223-24 (Fla. 2d DCA 2002). The “per se” error analysis as applied to errors in jury selection has its critics and is not uniformly used in all courts. See Kopsho v. State, No. SC05-763, — So.2d -, -, 2007 WL 1499007, slip op. at 13 (Fla. May 24, 2007) (Bell, Wells, and Cantero, JJ., concurring in result only and urging court to adopt the actual prejudice standard); Busby, 894 So.2d at 106 (Bell, J., dissenting in an opinion joined by Justices Wells and Cantero, that the Trotter v. State, 576 So.2d 691 (Fla.1990), per se error rule should be modified to require the showing of harm). It is, however, the analysis that this court is required to apply.

Perhaps because errors in the structure of the jury are reversible without proof of harm, the case law creates a series of steps that must be undertaken to preserve the error. These steps help to ensure that the defendant genuinely objected to a potential juror and was not making certain objections to jurors merely as a matter of trial strategy. To address errors in the trial court’s refusal to strike a potential juror for cause, the case law generally requires that a defendant preserve the error by exhausting all of his peremptory challenges, requesting additional peremptory challenges which are denied, and identifying specific jurors whom he would have excused if possible, but who ultimately served on the panel. See, e.g., Smith v. State, 907 So.2d 582, 584 (Fla. 5th DCA 2005) (citing Trotter, 576 So.2d at 693, and Busby, 894 So.2d at 92). As the supreme court explained in Busby:

[Expenditure of a peremptory challenge to cure the trial court’s improper denial of a cause challenge constitutes reversible error if a defendant exhausts all remaining peremptory challenges and can show that an objectionable juror has served on the jury. See Trotter v. State, 576 So.2d 691 (Fla.1991). As explained in Trotter, “This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.” Id. at 698.

894 So.2d at 96-97. In this case, this court initially believed that Mr. Thomas may have met these requirements.

However, the test described in Trotter and Busby requires that the defendant expend a peremptory challenge on the objectionable juror. Thus, a trial court’s refusal to dismiss a biased juror normally affects the structure of a jury in a way that invokes the per se error rule only when the error causes the complaining party to use a peremptory challenge on a person who should have been excused for cause. Street v. State, 592 So.2d 369, 371 (Fla. 4th DCA 1992) (citing Leon v. State, 396 So.2d 203, 205 (Fla. 3d DCA 1981)). Under these circumstances, the refusal to grant a cause challenge has the effect of abridging the right to exercise peremptory challenges. Id. Indeed, in Trotter, 576 So.2d 691, the Florida Supreme Court classified this as a “claim that [the defendant] was wrongfully forced to exhaust his peremptory challenges.” Id. at 693.

In this case, the trial court’s refusal to dismiss Juror W for cause did not affect the use of Mr. Thomas’s peremptory challenges. Mr. Thomas began the selection process with six peremptory challenges and exhausted them all before Juror W was mentioned. As explained earlier, the trial court properly dismissed one juror for cause. The only other challenge for cause, as to Juror Y, was properly denied. Thus, Mr. Thomas was not wrongfully forced to exhaust his peremptory challenges on any juror who should have been dismissed for cause. The trial court was not obligated to provide Mr. Thomas with additional peremptory challenges, particularly once the State used one of its peremptory challenges to remove Juror W from the panel. Accordingly, we affirm Mr. Thomas’s judgments and sentences.

Affirmed.

WHATLEY and NORTHCUTT, JJ., Concur.

      . Mr. Thomas also challenged the trial court’s failure to remove Juror Y for cause, but we conclude the trial court did not abuse its discretion in refusing to strike Juror Y.


text:
    Willie MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2716.
    District Court of Appeal of Florida, First District.
    June 13, 2007.

      James C. Banks and Robert A. Morris of Banks & Morris, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges a conviction obtained upon a jury trial where the appellant represented himself after declining the appointment of counsel. Although the trial court referred several times to the necessary inquiry in connection with the choice of self-representation as delineated in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the record does not reflect the thorough inquiry required under Faretta and Florida Rule of Criminal Procedure 3.111(d)(2), particularly with regard to the disadvantages and dangers of self-representation. The appellant’s conviction is therefore reversed, and the case is remanded.

ALLEN, KAHN, and DAVIS, JJ., concur.


text:
    Charles F. AURITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5700.
    District Court of Appeal of Florida, First District.
    June 13, 2007.

      Charles F. Auritt, pro se, Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, 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. Pursuant to a nolo contendere plea, the appellant was convicted of lewd or lascivious conduct in the presence of a child under sixteen and was required to register as a sex offender. The appellant served his sentence, but was again incarcerated for failure to re-register within 48 hours of an address change based on the foregoing conviction. He filed the present motion attacking his original conviction on grounds of newly discovered evidence. The lower tribunal dismissed the motion reasoning that in light of McArthur v. State, 597 So.2d 406 (Fla. 1st DCA 1992), citing Wall v. State, 525 So.2d 486, 487 (Fla. 1st DCA 1988), it lacked jurisdiction to consider the motion’s merits since the appellant was no longer in custody for the challenged conviction and did not allege that the conviction was used to enhance his current sentence.

Rule 3.850 is an appropriate vehicle to seek postconviction relief regardless of whether the movant is “in custody.” See Wood v. State, 750 So.2d 592 (Fla.1999). Therefore, the appellant was not required to show he was “in custody” by alleging that the sentence he is now serving was enhanced by the conviction he seeks to have set aside. Thus, the trial court erred in dismissing the appellant’s motion.

An evidentiary hearing should have been held to determine whether the appellant’s newly discovered evidence claim has merit. He relies on the recantation of testimony by the victim and her grandmother to support his claim. A recantation of accusations of sexual abuse may qualify as newly discovered evidence. See Johnson v. State, 936 So.2d 1196, 1197 (Fla. 1st DCA 2006). Because the recantations in the instant case are not inhere ently incredible as a matter of a law and are material to the appellant’s guilt, an evidentiary hearing is required to determine whether relief should be granted. See Stephens v. State, 829 So.2d 945 (Fla. 1st DCA 2002). Accordingly, we reverse and remand for an evidentiary hearing.

REVERSED AND REMANDED.

WEBSTER, LEWIS, and THOMAS, JJ., concur.


text:
    Michael A. RIFE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1293.
    District Court of Appeal of Florida, First District.
    June 13, 2007.
    Michael A. Rife, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of mandamus, Michael A. Rife seeks an order compelling a ruling on a motion to correct illegal sentence he alleges he mailed to the circuit court in November 2006. The circuit court has indicated, however, that it has no record of the filing of the original copy of that motion. Accordingly, the petition for writ of mandamus is dismissed as moot. This disposition is without prejudice to petitioner’s right to file a copy of the motion, bearing petitioner’s original signature, with the circuit court. See Fla. R. Jud. Admin. 2.515(b). We encourage the circuit court to expedite its consideration and disposition of Rife’s motion, once it is filed.

ALLEN, WEBSTER, and BENTON, JJ., concur.


text:
    Maria Elena SANCHEZ, Former Wife, Appellant, v. Jaime P. SANCHEZ, Former Husband, Appellee.
    No. 1D07-1622.
    District Court of Appeal of Florida, First District.
    June 13, 2007.
    John S. Mills of Mills & Creed, P.A., Jacksonville, for Appellant.
    Julie Anna Santioni, Jacksonville Legal Clinic, Inc., Jacksonville, for Appellee.
   WOLF, J.

Appellant raises two points on appeal. We find one has merit. The trial court’s order fails to address the statutory factors set out in section 61.13001(7), Florida Statutes (2006). We also are unable to ascertain from the record why the trial court allowed the father to relocate with the minor children. We, therefore, reverse that portion of the order allowing the relocation. On remand, the trial court should expeditiously consider and address the statutory factors to determine whether relocation should be permitted. If the trial court feels more evidence is necessary, it may take further testimony as to this issue.

BROWNING, C.J., and THOMAS, J., concur.


text:
    Yolanda V. PROHIAS, etc., v. ASTRAZENECA PHARMACEUTICALS, L.P., and Zeneca, Inc., Appellees.
    No. 3D06-2733.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.

      Hagens Berman Sobol Shapiro LLP and Steve W. Berman and Craig Spiegel, Seattle, WA; Harke Clasby LLP and Lance Harke and David J. Maher, Miami; Ben Barnow and Sharon Harris, Chicago, IL, for appellant.
    Sidley Austen LLP and Mark E. Had-dad and Alycia A. Degen and David R. Carpenter, Los Angeles, CA; Carlton Fields and Robert L. Ciotti and E. Kelly Bittick Jr., Tampa, for appellees.
    Before GREEN and WELLS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an appeal by the plaintiff, a user of the drug Nexium, from a final judgment dismissing her attempted class action complaint against its manufacturers under the Florida Deceptive and Unfair Trade Practices Act and for “unjust enrichment.” The order under review provides:

1. Defendants’ motion [to dismiss Plaintiffs second amended class action complaint] is GRANTED and Plaintiffs Complaint and this action are DISMISSED WITH PREJUDICE, for two primary and independent reasons:

2. First, the conduct that Plaintiff challenges falls within the safe harbor of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.212(1), because the promotional and advertising activity attacked in the Complaint is supported by the FDA-approved labeling for Nexium® and thus is “specifically permitted” by federal law. For the same reasons that Plaintiff has not pleaded a valid FDUT-PA claim, she has failed to plead that Defendants have received an unjust benefit. Her claim for unjust enrichment thus necessarily fails as well.

3. Second, and independently, even if the FDUTPA safe harbor did not apply, Plaintiffs state law claims would conflict with federal law and the FDA-approved Nexium labeling and therefore are preempted.

4. Finally, as a third independent reason for dismissal, Plaintiff fails to allege the required elements of her FDUTPA and unjust enrichment claims, including failing to allege that Defendants’ alleged wrongs caused her to purchase Nexium. While Plaintiff offered at oral argument to amend her Complaint a third time, these allegations, even if added, still would fail to state a claim for the first two reasons stated above. Given these circumstances, the Court concludes that dismissal with prejudice is appropriate.

5. Accordingly, Defendants’ Motion is GRANTED and Plaintiffs Complaint and this action are hereby DISMISSED WITH PREJUDICE.

We entirely agree with this ruling. See Bober v. Glaxo Wellcome PLC, 246 F.3d 934 (7th Cir.2001); Prohias v. Pfizer; Inc., 485 F.Supp.2d 1329, 1335-40 (S.D.Fla.2007); Pa. Employee Benefit Trust Fund v. Zeneca, Inc., No. Civ. 05-075-SLR, 2005 WL 2993937 (D.Del. Nov. 8, 2005), appeal docketed, No. 05-5340 (3d Cir. Dec. 15, 2005); N.J. Citizen Action v. Schering-Plough Corp., 367 N.J.Super. 8, 842 A.2d 174 (2003), certification denied, 178 N.J. 249, 837 A.2d 1092 (2003).

Affirmed.


text:
    Louis DANIEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2996.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Rehearing Denied July 24, 2007.
    Louis Daniel, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Henry v. State, 679 So.2d 885 (Fla. 5th DCA 1996).

STONE, POLEN and GROSS, JJ., concur.


text:
    Reginald HOLSTON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-390.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Howard Finkelstein, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, Ft. Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent,
   PER CURIAM.

Reginald Holston petitions this court for a writ of prohibition, alleging that the speedy trial time has run and he is entitled to discharge. We grant the petition in part and remand for an evidentiary hearing to determine whether discharge is proper.

Holston was arrested on May 24, 2006 for several felony offenses, and on November 25, 2006, he filed a notice of expiration of speedy trial. On December 10, 2006, fifteen days later, he filed a motion for discharge. His case has not been brought to trial, and no hearing has been held on his motion. He has alleged a facially sufficient claim.

However, the state argues that Holston has been unavailable for trial within the meaning of Florida Rule of Criminal Procedure 3.191(k). The state has the burden of showing the defendant was unavailable. See Dixon v. State, 901 So.2d 384, 386 (Fla. 3d DCA 2005). Holston contends that he was not unavailable because he was in custody in another county when the arraignments were scheduled, and he argues the state had constructive knowledge of his whereabouts. See Jones v. State, 578 So.2d 185 (Fla. 1st DCA 1991). The state challenges this, and resolution of this issue requires an evidentiary hearing.

If the trial court determines that Holston was unavailable, then he is not entitled to discharge, and the failure to hold a timely hearing pursuant to rule 3.191(p)(3) is irrelevant. See State v. Martinez, 586 So.2d 1285 (Fla. 3d DCA 1991); Harris v. State, 400 So.2d 819 (Fla. 5th DCA 1981). If, on the other hand, the court determines Holston was available and he did not otherwise waive his speedy trial rights, the motion for discharge should be granted.

Accordingly, this case is remanded for an evidentiary hearing on Holston’s motion for discharge and the state’s motion to strike.

GUNTHER, WARNER and SHAHOOD, JJ., concur.


text:
    WASTE MANAGEMENT OF DADE COUNTY, etc., Appellant, v. Ron OLMAN d/b/a Non-Stop Shop, Inc., Appellee.
    No. 3D06-232.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.
    Michael I. Rose, Miami, for appellant.
    Scott Alan Orth, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   ON MOTION TO CORRECT OPINION PORTION OF DECISION AND REQUEST FOR RULING ON MOTION FOR ATTORNEY’S FEES

PER CURIAM.

We grant Appellee Ron Olman’s Motion to Correct Opinion. We withdraw our opinion dated May 2, 2007, and substitute the following:

Waste Management of Dade County seeks to appeal a circuit court appellate division order reversing an order of the county court denying Olman’s verified motion to vacate final judgment. The circuit court appellate division order also ordered the return of Olman’s funds obtained by Waste Management based upon the erroneously entered final judgment.

We treat this appeal as a petition for writ of certiorari, see Fla. R.App. P. 9.040(c), and deny the petition on the merits.

Appellee Olman’s motion for attorney fees likewise is denied.


author: WARNER, J.

text:
    The CREDIT COUNSELING FOUNDATION, INC., a/k/a American Debt Consolidation, Inc., a Florida corporation, Appellant, v. Joseph Andrew HYLKEMA, a single man, Appellee.
    No. 4D05-4727.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Rehearing Denied July 30, 2007.
    Michael L. Feinstein of Michael L. Fein-stein, P.A., Fort Lauderdale, for appellant.
    Gary J. Olsen of Olsen & Olsen, LLP, Fort Lauderdale, for appellee.
   WARNER, J.

The Credit Counseling Foundation, a Florida Corporation, appeals a judgment domesticating a Washington state judgment against it for violation of Washington’s Commercial Electronic Mail Act and the Washington Consumer Protection Act. It claims that the Washington judgment should not be given full faith and credit, because the court did not have personal jurisdiction over it. The trial court disagreed, and on the evidence presented that Credit Counseling sent unsolicited e-mails to the appellee in Washington, we conclude that Washington had personal jurisdiction. We therefore affirm.

Joseph Hylkema, a Washington state resident, filed a complaint against Credit Counseling in a Washington district court, alleging, inter alia, that Credit Counseling violated Washington’s Commercial Electronic Mail Act and the Washington Consumer Protection Act (chapters 19.190 and 19.86 of the Washington Revised Code, respectively) by sending Hylkema nine unsolicited e-mails. Credit Counseling was served in Florida and never made an appearance in the case. The Washington court entered a default judgment against Credit Counseling.

Hylkema filed an affidavit in Broward County to register his foreign judgment. See § 55.505(1), Fla. Stat. Credit Counseling filed a petition contesting Washington’s personal jurisdiction over it. Without considering the merits of Credit Counseling’s petition, the trial court dismissed the petition and domesticated the foreign judgment based upon the statement of jurisdiction in the default judgment. On appeal to this court, we reversed, finding that the issue of personal jurisdiction can be raised in the proceedings. Credit Counseling Found., Inc. v. Hylkema, 901 So.2d 892, 893 (Fla. 4th DCA 2005).

On remand, the trial court held an evi-dentiary hearing to determine whether the Washington court had personal jurisdiction when it entered a judgment against Credit Counseling. The evidence showed that the nine spam e-mails Hylkema received had a phony return path so that the receiver could not tell who sent them. A marketing director for Credit Counseling testified that the corporation never sent spam email. When Hylkema called the company to complain about the spam, the director investigated and concluded that Hylkema did not receive the e-mails from Credit Counseling.

On the other hand, Hylkema testified that each of the e-mails he received contained a link which invited free consultations. When the link was clicked, a form appeared. Hylkema filled out the form and within hours of submitting it received another e-mail from an employee of Credit Counseling. The e-mail contained the corporation’s name, logo, address, phone number, and other identifying information. He also received e-mails and telephone calls from other Credit Counseling employees. The e-mails started “recently, you requested information.”

The court concluded that “the circumstantial evidence demonstrates to me that Credit Counseling either acquiesced, ratified or conspired with the actual sender of the spam to send it, and they knew what was going on and they condoned it. They ratified it. They were part of it.” The court found that Credit Counseling had some relationship with the actual spammer, as Hylkema received the e-mails from Credit Counseling so soon after submitting the form. The court stated that it believed Hylkema’s testimony that he did not request information from Credit Counseling, so that the e-mails were unsolicited. Thus, the court found sufficient facts to establish personal jurisdiction over Credit Counseling. The corporation appeals that finding.

Credit Counseling argues that the Washington court lacked personal jurisdiction over it, and the judgment cannot be given full faith and credit or be enforced in Florida. Credit Counseling claims that the trial court misapplied Washington law and improperly placed the burden on it to prove that Washington did not have jurisdiction over the corporation.

Much of Credit Counseling’s argument focuses on the allocation of the burden of proof and its claim that the trial court erroneously placed the burden of proof on Credit Counseling. While it makes an interesting argument about which party has the burden of proof in proceedings attacking a foreign judgment on jurisdictional grounds, in this case it failed to object at trial to the court’s allocation of the burden of proof. In fact, it willingly acquiesced to the court’s statement that it had the burden of proof. Its attorney did not object and, as the plaintiff in the proceeding contesting the enforcement of the judgment, it put on its proof first and made the initial closing argument. In his close, Hylkema’s attorney argued at length that Credit Counseling had the burden of proof on the issue of lack of jurisdiction, which it did not meet. Credit Counseling did not take issue with Hylkema’s burden of proof argument in its rebuttal. Thus, this is an issue raised for the first time on appeal. As such, it is not preserved.

Nevertheless, in addition to finding that Credit Counseling had not met its burden of proof, the trial court also determined, based upon the evidence presented, that Credit Counseling either transmitted or conspired with another to transmit the nine unsolicited commercial e-mail messages to Hylkema in Washington. This finding is sufficient to establish personal jurisdiction over Credit Counseling in Washington. See, e.g., State v. Reader’s Digest Ass’n, 81 Wash.2d 259, 501 P.2d 290 (1972) (performance of unfair trade practice in state by a foreign corporation which has no offices, employees or property within state is sufficient contact to establish jurisdiction).

It is not the function of an appellate court to reevaluate the evidence and substitute its judgment for that of the finder of fact. Helman v. Seaboard Coast Line R.R., 349 So.2d 1187, 1189 (Fla.1977). A trial court’s findings of fact are presumed correct and will not be disturbed on appeal absent a showing that such findings are clearly erroneous or totally without evidentiary support. Avery Dev. Corp. v. Village by the Sea Condo. Apts., Inc., 567 So.2d 447, 449 (Fla. 4th DCA 1990). The findings of the trial court were based upon circumstantial evidence, but the evidence was competent and substantial to support the findings made.

For these reasons, we affirm the final judgment.

GROSS and TAYLOR, JJ„ concur.


author: GROSS, J.

text:
    Tzvi SCHACHTER, Appellant, v. Jan KRZYNOWEK, Appellee.
    No. 4D06-2266.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Rehearing Denied July 18, 2007.

      Randall L. Gilbert and Ronald E. Kaufman of The Law Offices of Randall L. Gilbert, P.A., Miami, for appellant.
    Bruce Botsford of Botsford & White, LLC, Hollywood, for appellee.
   GROSS, J.

If a seller breaches a real estate sales contract, does the law require the buyer to file a lis pendens to protect the remedy of specific performance against the seller? We hold that the filing of a lis pendens is a tactical decision of the buyer alone. Without such a filing, the buyer may pursue a timely filed specific performance action; if the seller frustrates the remedy by selling the property to another, the buyer may recover the profits the seller realized from the sale.

We state the facts in the light most favorable to the buyer, the party who lost the summary judgment below. See, e.g., Byrd v. BT Foods, 948 So.2d 921, 923 (Fla. 4th DCA 2007). On June 23, 2003, Jan Krzynowek, as seller, and Tzvi Schachter, as buyer, entered into a contract for the sale and purchase of real property for $800,000 (the “Contract”). Schachter paid a $30,000 deposit on June 24, 2003. Article 32 of the Contract provided in pertinent part:

32. DEFAULT: If either party defaults, the rights of the non-defaulting party and the Broker(s) shall be as provided herein and such rights shall be deemed to be the sole and exclusive rights in such event.
32.1 BUYER DEFAULT: If Buyer fails to perform any of the covenants of this Contract, all money paid or to be paid as deposits by Buyer pursuant to this Contract shall be retained by or for the account of Seller.
32.2 SELLER DEFAULT: If Seller fails to perform any of the covenants of this Contract, all money paid or deposited by Buyer pursuant to this Contract shall be returned to Buyer upon demand, or Buyer shall have the right of specific performance.

(Emphasis added).

On July 20, 2003 the seller entered into a “backup” agreement to sell the same property to a third party for $895,000.

On August 6, 2003, the seller’s attorney wrote the buyer and terminated the Contract. However, paragraph 4 of the Contract provided that the closing occur on or before August 10, 2003.

Between August 6, 2003 and August 26, 2003, notwithstanding the seller’s termination letter, the buyer’s agents proceeded with the expectation of closing on the property. During that time, the buyer’s title agent spoke with the buyer’s attorney and became aware “that the seller may be walking.” The title agent informed the buyer of this turn of events.

On August 26, 2003, the buyer’s attorney wrote to the seller’s attorney stating: (1) that it appeared that the seller was acting in bad faith to “get out of his contract ... so that he can sell the subject property to a third party for a higher price;” (2) that the buyer was “ready, willing, and able” to close, but the seller was preventing the closing from taking place, and (3) that if the seller continued to frustrate the closing, the buyer would “exercise his right to seek specific performance.”

The buyer and seller did not correspond further after August 26. A closing never occurred. The buyer’s attorney did not file a lis pendens against the property.

The seller sold the property to another for $895,000 on September 30, 2003.

On October 13, 2003, the buyer filed a two count complaint for breach of contract and, alternatively, for specific performance. The seller sought damages of $95,000 plus $1,205 for costs incurred in anticipation of closing.

Shortly before trial, the circuit court granted the seller’s motion for summary judgment and entered judgment in favor of the seller. As to the specific performance count, the court reasoned that (1) the buyer knew that the seller was attempting to sell to a third party, (2) the buyer never filed a lis pendens, (3) had a lis pendens been filed, the seller could not have sold the property, and (4) because the property had been sold, the buyer could not receive specific performance. As to the breach of contract count, the court ruled that paragraph 32.2 of the contract was a valid limitation of remedies clause that allowed the buyer to seek specific performance or a return of the deposit, but not damages for breach of contract.

Under the Contract, the buyer’s remedy upon the seller’s default was either a return of deposit or specific performance. Section 95.11(5), Florida Statutes (2003), allowed the buyer one year from the time the cause of action accrued within which to bring an action for specific performance. This short statute of limitations serves a public policy that “encourage[s] the alienability of real property” by requiring a buyer with the right to specific performance to file a lawsuit within one year. Rybovich Boat Works v. Atkins, 585 So.2d 270, 271 (Fla.1991).

The seller’s September 30, 2003 sale of the property deprived the buyer of specific performance as a remedy. See Seaside Cmty. Dev. Corp. v. Edwards, 573 So.2d 142, 147 (Fla. 1st DCA 1991); Krantz v. Donner, 285 So.2d 699, 700 (Fla. 4th DCA 1973). Under these circumstances, the supreme court has ruled that “ ‘where a vendor is unable to perform a prior contract for the sale of the lands because of a subsequent sale of the same land, he should be held, to the extent of any profit in the subsequent sale, to be a trustee for the prior vendee and accountable to such vendee for any profit.’ ” Coppola Enters., Inc. v. Alfone, 531 So.2d 334, 335 (Fla.1988) (quoting Gassner v. Lockett, 101 So.2d 33, 34 (Fla.1958)); see Seaside Cmty. Dev., 573 So.2d at 147.

We reject the contention that the law placed an obligation on the buyer to file a lis pendens to prevent the seller from transferring the property to another and thereby frustrating the buyer’s remedy. The purpose of a notice of lis pendens is not to notify a seller in breach; its purpose is “ ‘to alert creditors, prospective purchasers and others to the fact that the title to a particular piece of real property is involved in litigation.’ ” S & T Builders v. Globe Props., Inc., 944 So.2d 302, 303, n. 1 (Fla.2006) (quoting Am. Legion Cmty. Club v. Diamond, 561 So.2d 268, 269 n. 2 (Fla.1990)). Here, the buyer makes no claim against the subsequent purchaser of the property.

Had the buyer filed a lis pen-dens, the court might have required it to post a bond. See S & T Builders, 944 So.2d at 304-05. An aggrieved buyer has the option of avoiding such potential costs by not filing a lis pendens. Instead, the buyer can press forward with a timely filed specific performance action and rely on the rule of Coppola Enterprises to force the seller in breach to disgorge any profits from a subsequent sale. A seller in breach does not have the power to deprive the buyer “of specific performance as a remedy, by severely limiting the time period within which such an action could have been pursued.” Seaside Cmty. Dev., 573 So.2d at 147. It follows that a buyer victimized by a seller’s breach does not have the legal duty to take steps blocking a sale of the property to protect the remedy of specific performance. It is the seller in breach who bears the risk of having to disgorge profits realized from a subsequent sale.

The court confronted a similar issue in West Pinal Family Health Center, Inc. v. McBryde, 162 Ariz. 546, 785 P.2d 66 (1989). That case involved a seller’s breach of a contract for the sale of real property. Id. at 67. Even though he knew of the buyer’s claim under the contract, the seller sold the property to a third party. The buyer filed suit, seeking the “alternative remedies of specific performance and damages.” Id. at 68. In the context of deciding a privilege claim on a trial court discovery ruling, the West Pinal court had to determine if it was material to the case that the buyer had failed to file a notice of lis pendens. The seller argued that the failure to file a lis pendens was relevant to the issue of the buyer’s failure to mitigate damages. The court held that the buyer’s decision not to file a notice of lis pendens was not material to the lawsuit. Id. at 70.

The West Pinal court’s reasoning is applicable to this case. The court noted that as it applied to the buyer’s action for specific performance, “the decision not to file a lis pendens was merely a tactical one,” that was not “evidence of a failure to mitigate damages.” Id. at 69. The court rejected the argument made here — that had a lis pendens been filed, “the sale of the property to the third party could have been blocked.” Id. The court reasoned that if the buyer “was obligated to attempt to block the sale as a result of [the seller’s] alleged wrongdoing, then breaching parties would be entitled to choose the remedies the injured party may pursue.” Id. at 70. The court concluded that it was the buyer, and not the seller in breach, who had the choice of remedies. Id.

Having concluded that the buyer did not lose the right to pursue specific performance by failing to file a lis pendens, we also hold that the limitation of remedies in paragraph 32.2 does not bar the cause of action, which seeks recovery on the rule of Coppola Enterprises. Although paragraph 32.2 limited the buyer to a return of his deposit or specific performance, the seller’s conduct deprived the buyer of the specific performance remedy. The policy behind Coppola Enterprises is that “[a] seller will not be permitted to profit from his breach of a contract with a buyer, even absent proof of fraud or bad faith, when the breach is followed by a sale of the land to a subsequent purchaser.” 531 So.2d at 335-36. This policy trumps the application of the limitation of remedies clause; the award of damages in this case is part and parcel of the specific performance remedy. This holding is in accord with that of Seaside Cmty. Dev., 573 So.2d at 147. There, the first district held that a clause limiting a buyer to specific performance or refund of deposit did not preclude recovery of damages where the seller’s sale of the property to another deprived the buyer of specific performance.

For these reasons, we reverse the summary final judgment and remand to the circuit court for further proceedings.

SHAHOOD and TAYLOR, JJ., concur.

      . For the purpose of this opinion, we assume that the seller was in breach of contract. We recognize that, upon remand, the issue of the seller’s breach may be a contested issue.

      . The buyer’s appellate counsel did not represent the seller at this point in the case.

      . Of course in a falling market, there will be a sale below the original contract price or no sale at all. In this case, the buyer will either get specific performance or be happy with a return of a deposit from the seller in breach.


author: TAYLOR, J.

text:
    Stephen LABOVICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2498.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Defendant appeals his convictions for DUI manslaughter/failure to render aid and DUI, arguing that convictions for both offenses violate double jeopardy principles, because the statutory elements of DUI are subsumed by the greater offense of DUI manslaughter/failure to render aid. We agree and vacate appellant’s DUI conviction.

Defendant was charged by information with: DUI Manslaughter and Failure to Render Aid (Count I); DUI Manslaughter (Count II); Leaving Scene of Crash Involving Death (Count III); and DUI (Count IV). He entered an open plea to Counts I and IV. At the plea proceeding, defense counsel advised the trial court that he objected to any adjudication, conviction, or sentence on the DUI count on double jeopardy grounds. At sentencing, the court denied the defendant’s double jeopardy motion to strike the DUI count and sentenced the defendant to twelve years in state prison on DUI manslaughter and to thirty-three days, time served, on DUI. The defendant did not reserve the right to appeal the denial of his double jeopardy motion.

At the plea hearing, the prosecutor stated the factual basis for the plea, as follows:

On or about June 15, 2005, in the early morning hours, this defendant was operating his sports utility vehicle southbound on 1-95. Mr. Barna was loading up a vehicle — stranded vehicle; he was a tow-truck driver, at that time. This defendant came down the road and crashed into Mr. Barna, causing death, at that time, of Mr. Barna; this defendant continued to go southbound on I-95, eventually exited 1-95, turned around and headed back north on 1-95, going the opposite direction; upon that time, he got pulled over, after being involved in another crash; he hit another vehicle. The witnesses at the scene say this defendant was going in excess of the speed limit, somewhere around eighty miles an hour, at the time of the first crash. There is an event data recorder downloaded from the second crash, putting him over eighty-five miles an hour. At that time, there were signs of impairment noticed on him from the trooper at the scene. The trooper took blood from him, and his blood alcohol level was a .15 — one-four-five and a .147.

The defendant conceded the truth of these facts.

As a threshold procedural matter, the state argues that the defendant’s double jeopardy claim is barred because he pled guilty without reserving the right to appeal the double jeopardy issue. Recently, the First District Court of Appeal rejected this argument in Godfrey v. State, 947 So.2d 565, 567 (Fla. 1st DCA 2006). There, the court first noted the general rule that a guilty plea precludes a later attack on a conviction and/or sentence premised on double jeopardy grounds. Id. (citing United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)). The court then discussed an exception to this general rule, as recognized in Novaton v. State, 634 So.2d 607, 609 (Fla.1994).

In Novaton, the Florida Supreme Court held that an exception applies when:

(a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.

634 So.2d at 609.

The first district determined that the exception applied in Godfrey. It held that the defendant’s non-bargained for, “straight up” plea, which contained no express waiver of his right to appeal the double jeopardy issue, did not amount to a waiver. Godfrey, 947 So.2d at 567.

Shortly after the supreme court decided Novaton, we were confronted with this double jeopardy waiver issue in Taccariello v. State, 664 So.2d 1118 (Fla. 4th DCA 1995). There, the defendant pled guilty to grand theft, organized scheme to defraud, and exploitation of the elderly. After receiving an upward departure sentence on the charges, the defendant appealed, arguing that her convictions for both grand theft and fraud violated double jeopardy prohibitions. We held that the defendant waived her right to appeal this issue because she entered a guilty plea without expressly reserving her right to appeal. In that case, however, we did not discuss whether the exception set forth in Novaton applied. Here, where the record shows that the defendant entered an open, unbar-gained plea to multiple counts, without expressly waiving his right to appeal the double jeopardy issue, we hold that, under Novaton, the defendant did not waive this right.

Turning to the merits of the defendant’s double jeopardy claim, we begin by noting that “[d]etermining whether double jeopardy is violated based on undisputed facts is a legal determination; our standard of review is therefore de novo.” State v. Paul, 934 So.2d 1167, 1171 (Fla.2006) (citing State v. Florida, 894 So.2d 941, 945 (Fla.2005)). The Fifth Amendment double jeopardy clause protects against multiple punishments for the same offense. Id. “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal episode is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Id. (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)).

Section 775.021(4)(b)(3), Florida Statutes, prohibits multiple convictions and punishments for “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” DUI is a Category One lesser included offense of DUI manslaughter. Kurtz v. State, 564 So.2d 519, 521 (Fla. 2d DCA 1990). All of the DUI elements fall within the greater offense of DUI manslaughter. Id. Thus, a defendant cannot be convicted of DUI and DUI manslaughter “arising from the same act.” Id.

The state argues that dual convictions are proper in this case because there was more than one episode of driving under the influence. However, the state’s factual basis belies that assertion. DUI is a continuing offense for which only one conviction may be maintained for each episode. See State v. Witcher, 737 So.2d 584, 586 (Fla. 1st DCA 1999). Here, the defendant never stopped driving his car at any point during what amounted to a single episode. Although separate convictions could lie for causing injury or death to different victims, only one conviction may be maintained for each episode of driving under the influence (DUI). Generally, a separate criminal episode occurs when there is a sufficient temporal break that allows the offender to reflect and form a new criminal intent. See Omelien v. State, 939 So.2d 1174, 1175 (Fla. 4th DCA 2006). However, as mentioned above, there was no such temporal break in this case. We thus conclude that the defendant’s dual convictions were barred by double jeopardy and reverse with directions to vacate the DUI conviction (Count IV).

The defendant was sentenced to time served on the DUI count. Because the DUI conviction must be vacated, ordinarily a re-sentencing would be required on the remaining convictions due to the corrected scoresheet. See Tellier v. State, 754 So.2d 88 (Fla. 5th DCA 2000). However, as the undisputed calculations show, removing the .2 points for the DUI conviction would have a de minimis effect on the defendant’s twelve-year sentence, such that no new sentencing is required. See Colon v. State, 738 So.2d 1023 (Fla. 4th DCA 1999) (holding that claim for re-sentencing based on corrected scoresheet was without merit “as the new score remains in the same bracket and is essentially de minimis ”); Sanders v. State, 621 So.2d 723, 728 (Fla. 5th DCA 1993) (same).

Reversed.

STEVENSON, C.J., and POLEN, J. concur.

      . See Bautista v. State, 863 So.2d 1180, 1187 (Fla.2003) (each death caused in a DUI crash is to be charged and punished as a separate offense); Melbourne v. State, 679 So.2d 759, 765 (Fla.1996) (DUI driver may sustain multiple convictions because the violation causes injury to each victim).


author: STONE, J.

text:
    Lonzo TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1049.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Carey Haughwout, Public Defender, and Jeffrey Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We reverse Taylor’s conviction for robbery with a firearm and armed burglary of a conveyance.

Taylor correctly asserts that the trial court erred in denying his motion for continuance where the state amended the information on the day of trial with no advance notice. The change to the information was intrinsic to the charges Taylor needed to defend against, and the defense represented that it needed at least a brief amount of time to adjust its theory of the case.

The original information charged that the firearm was in the possession of the co-defendant. During jury selection, the state made an ore terms motion to amend the information to read that Taylor was the person in actual possession of the fee-arm. The amendment was in line with the victim’s deposition statement that the perpetrator who entered his ice cream truck had a gun. Based on Taylor’s statement to the police, it is clear that, of the two perpetrators, Taylor had entered the victim’s truck.

When asked by the police to identify the wrongdoers, the victim could not; however, he was able to identify a cash box that was recovered. The victim’s girlfriend, who operated another truck, was also unable to positively identify the assailants. She testified that while an unarmed perpetrator entered her truck, she was able to see the second male holding a gun to her boyfriend’s head.

In Washington v. State, 378 So.2d 852 (Fla. 4th DCA 1979), our court reversed and remanded a cause for new trial where, on the morning of the trial, the state amended the information to include an additional charge of dealing in stolen property. The original charges were burglary and grand theft. The defendant in that case informed the court that he was ready to defend against the original information, but not the new charge, and moved for a continuance. Believing the charges arose out of the same transaction and in light of the defendant’s request for a speedy trial, the trial court had denied the motion. Id. at 853. The Washington court reasoned that the fact that the property involved in the two charges may have been the same property “does not mean that the charges themselves arose out of the same transaction.” Id.

Similarly, this court reversed and remanded for new trial in Glasserman v. State, 590 So.2d 17, 17 (Fla. 4th DCA 1991), where the defendant was prepared to defend against charges for a crime on a certain date. The trial court permitted the state to amend the information, expanding the timeframe for the crime charged immediately before jury selection. Noting that “[a]n information serves the important function of placing the accused on notice and giving him or her an opportunity to adequately prepare a defense,” we found that the trial court was within its discretion in granting the state’s motion to amend, but, once allowed, the defendant should have been granted the requested continuance and failure to do so was abuse of discretion. Id.

In another case, Peevey v. State, 820 So.2d 422 (Fla. 4th DCA 2002), we reversed denial of a motion for continuance where the trial court allowed the state to amend an information to include an additional victim on the morning of trial. Id. at 423. Finding the nature of the defense was significantly altered by the amendment, despite arising from the same circumstances, we concluded that a continuance should have been granted. Id.

The record reveals no prejudice to the state in granting a continuance, while Taylor asserts prejudice in that he had prepared for defense against the crime as charged, which did not ascribe possession of the firearm to him. Clearly, Taylor must have adequate notice of the charges which he must defend. “Adequate time to prepare a defense is inherent to due process and the right to counsel.” Id. at 423. Even “morning of trial amendments where the new crime charged a different state of mind” have resulted in reversed convictions upon appeal. Id.; see also Yelvington v. State, 664 So.2d 262 (Fla. 1st DCA 1995) (noting that a defendant should not have been forced to go to trial when the prosecutor added a new charge the day trial was to begin, but affirming his conviction because he failed to move for a continuance).

Taylor also challenges the trial court’s denial of his motion to suppress. As to that issue, we find no error or abuse of discretion. The judgment and sentence are reversed, and we remand for a new trial.

GUNTHER and FARMER, JJ., concur.