author: NORTHCUTT, Chief Judge.

text:
    Steven J. HASLEY, Sr., Appellant, v. William Y. HARRELL, Milhart Contractors Corp., a Florida corporation, and Advanced Overhead Systems, Inc., a Florida corporation, Appellees.
    No. 2D06-4632.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2007.
    Rehearing Denied Jan. 10, 2008.

      Monterey Campbell, Mark N. Miller, and Kristie Hatcher-Bolin of GrayRobin-son, P.A., Lakeland, for Appellant.
    Bernard H. Gentry of Clark, Campbell & Mawhinney, P.A., Lakeland, for Appel-lees.
   NORTHCUTT, Chief Judge.

Steven J. Hasley challenges a partial final judgment that enjoins him from competing with his former employers, William Harrell, Milhart Contractors, and Advanced Overhead Systems (collectively the “Employers”). ■ We affirm the court’s determination that the Employers were entitled to an injunction. But the injunction order, as entered, is not sufficiently specific and may be overbroad. For that reason we reverse and remand for entry of a new injunction.

The Employers sued Hasley for breach of covenants not to compete contained in stockholders’ agreements and employment agreements. The Employers sought both an injunction prohibiting Hasley from competing with them and damages for the breach. The parties stipulated to bifurcating the proceedings, and pursuant to that agreement, the circuit court held a trial to determine whether the noncompetition agreements were valid and enforceable and whether the restrictive covenants contained in the agreements should be enforced. After the trial, the court entered the partial final judgment that is the subject of this appeal.

This judgment resolves only part of the Employers’ claims against Hasley. The court specifically retained jurisdiction to decide other pending issues, including damages, costs, interest, and attorney’s fees. Because the remaining claims involve the same parties and arise from the same transactions, we do not have jurisdiction to review the entire judgment. See DeMartino v. Simat, 948 So.2d 841, 843 (Fla. 2d DCA 2007) (citing S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974)). But we do have jurisdiction to review the judgment insofar as it granted an injunction. Fla. R.App. P. 9.130(a)(3)(B). Accordingly, we limit our discussion to the issues involving the injunction and dismiss the portion of this appeal that raises matters not pertaining to the injunction.

On another preliminary matter, we point out that while the partial final judgment purported to enter a “temporary” injunction, that characterization was inaccurate. A temporary, or preliminary, injunction is one entered on a nonfinal basis, to preserve the status quo or prevent ongoing harm before a full hearing in the case can be held. Ladner v. Plaza Del Prado Condo. Ass’n, 423 So.2d 927, 929 (Fla. 3d DCA 1982). Consequently, a temporary injunction is based on limited evidence developed at a preliminary stage of the case. Id. Before entering such an injunction, the court must review whether that limited evidence has established (1) the likelihood that the movant will suffer irreparable harm; (2) that the movant has no adequate legal remedy available; (3) that the movant has a substantial likelihood of prevailing on the merits; and (4) that the considerations of the public interest support the entry of an injunction. Masters Freight, Inc. v. Servco, Inc., 915 So.2d 666, 666 (Fla. 2d DCA 2005).

Hasley complains that the circuit court failed to make these necessary findings. But the injunction in this case was entered after a final hearing on that claim for relief. See Fla. R. Civ. P. 1.440. The parties had the opportunity to and did make complete evidentiary presentations on the Employers’ entitlement to an injunction. The bifurcation of the Employers’ claims for trial did not render the injunction merely preliminary or temporary. Rather, the pendency of the remaining interrelated claims simply made the court’s order nonfinal for purposes of appeal. In every other respect the order was in the nature of a permanent injunction. Therefore, the court had no reason to assess such factors as whether the mov-ant was likely to prevail on the merits— the court heard the parties’ evidence and ruled that the covenants were enforceable.

We address this point because of the rule that a true temporary injunction is not law of the case. See P.M. Realty & Invs., Inc. v. City of Tampa, 863 So.2d 1269, 1270 (Fla. 2d DCA 2004) (and cases cited therein). Underpinning this doctrine is the fact that, at the preliminary injunction stage, the parties are not required to completely prove their cases. Thus, an appellate court’s ruling “on a preliminary injunction, where review is based on a record made at a less-than-full hearing,” is not binding at a later trial on the merits. Ladner, 423 So.2d at 929; cf. Klak v. Eagles’ Reserve Homeowners’ Ass’n, 862 So.2d 947, 952 (Fla. 2d DCA 2004) (discussing the effect of a preliminary order appointing a receiver and stating that the law of the case doctrine can not be employed to give preclusive effect to a decision “based on a less-than-full hearing”); Arch Se. Commc’ns, Inc. v. Abraham Commc’ns, Inc., 702 So.2d 556, 558 (Fla. 2d DCA 1997) (holding that decision on motion to compel arbitration did not preclude further litigation). Here, as discussed, the parties had a full trial on the issue of the validity and enforceability of the restrictive covenants contained in the shareholders’ and employment agreements. Thus, our rulings concerning this injunction are law of the case and are binding in any further litigation.

Turning now to the merits, section 542.335, Florida Statutes (2001), entitled Valid Restraints of Trade or Commerce, governs the restrictive covenants in this case. A party seeking to enforce a covenant that restricts or prohibits competition must plead and prove the existence of a legitimate business interest. § 542.335(l)(b).

In its posttrial ruling, the circuit court made the following findings of fact:

While Hasley was employed at AOS and Milhart, it is undisputed that he became intimate with all aspects of Milhart’s and AOS’s businesses. Hasley admits to having access to pricing information (including profit margins and overhead), cost structure, customer contact information, and participating in compiling bids. Hasley further admitted that this included setting profit margins and overhead on specific jobs. It was also testified that Hasley had complete access to all of the information of Milhart and AOS including the financial information of the companies, the engineering drawings for Milhart and AOS, and the plans for AOS’s and Milhart’s future. Hasley also had continuous client contact and part of his duties was to compile bids for multiple clients.

These findings were supported by the evidence and established that the Employers were entitled to injunctive relief to protect their legitimate business interest. See § 542.335(l)(b)(2).

Nevertheless, the injunction must be reversed because its form is deficient under the governing rule and statute. Florida Rule of Civil Procedure 1.610(c) requires that every injunction “shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document.” Section 542.335(l)(c) requires that the injunction be tailored to grant only the relief reasonably necessary to protect the established legitimate business interest. In this case, the partial final judgment stated that Has-ley “is temporarily enjoined from competing with [the Employers] as provided in the agreements.” The order that preceded the judgment described the covenant as “a restrictive covenant for two (2) years within a fifty (50) mile radius of any place of business of Milhart and AOS and a prohibition of contacting or soliciting any of Milhart’s or AOS’s current or potential customers.” Obviously, the injunction did not comport with the procedural rule because it referred to another document to describe the acts restrained. Moreover, neither the judgment nor the referenced document specifically set forth the restraints imposed on Hasley, as required by the rule and the statute.

We reverse the injunction and remand with directions to enter a new injunction that complies with the dictates of rule 1.610(c) and section 542.335. See, e.g., Shields v. Paving Stone Co., 796 So.2d 1267, 1268-69 (Fla. 4th DCA 2001).

Dismissed in part, affirmed in part, reversed in part, and remanded.

STRINGER and VILLANTI, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David SHIPP, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5550.
    District Court of Appeal of Florida, First District.
    Dec. 7, 2007.

      David Shipp, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, DAVIS, and BENTON, JJ., concur.


author: TAYLOR, J.

text:
    Jeremiah McWHORTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3390.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    Carey Haughwout, Public Defender, Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, and Andrew Strecker, certified to practice as a member of an out-of-state bar, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant, Jeremiah McWhorter, appeals his conviction for battery, a lesser-included offense of aggravated battery. We reverse because the trial court erred in instructing the jury on self-defense. The instructions given by the court were inconsistent with the new statute, § 776.013, Fla. Stat. (2005), which expanded the right of self-defense and eliminated the “duty to retreat” before using deadly force in certain circumstances.

At trial, Bertel Archibald testified that on November 19, 2005, at around 4 a.m., he and Victoria Mancin left a riverfront club in Fort Lauderdale and walked towards his car in the parking lot. They saw appellant walking to his car. Appellant drove past Archibald and Mancin and called Mancin a “whore.” He left the parking lot but returned immediately af-terwards. While Mancin was getting into Archibald’s car, appellant walked up to Archibald and hit him on the neck. Man-ein started screaming. When she tried to get in between the two men, appellant flung her down on the ground. Archibald backed away from appellant and fell on the curb. Appellant then punched Archibald several times in the face, causing Archibald to lose consciousness. Archibald had to be transported to the hospital. He suffered a broken jaw, habitual fracture and lacerations of the face; he also had to have his jaw wired shut for a month.

Victoria Mancin testified that she had known appellant since February 2002. When asked about her relationship with him, Mancin said, ‘We went out. We were friends.” She also testified that she stayed with appellant in his home for a few weeks during her visit from Italy to Florida. When appellant attempted to cross-examine her about her deposition testimony regarding the length of her stay with appellant, the trial court sustained the state’s relevancy objection.

Mancin gave basically the same account of the November 19, 2005 incident as did Archibald. She said that after the encounter with appellant began, she ran to flag down a police car for help but was unsuccessful. When she looked back, she saw that appellant was hitting Archibald, but Archibald was not fighting back. Then appellant got into his car and drove away.

Michael Greico, a former assistant state attorney in Miami-Dade County, was working as a disc jockey at a nearby club at the time of the incident. He was returning to his car in the same parking lot when heard Mancin scream and saw appellant and Archibald struggling. He saw appellant chasing Archibald, as Archibald kept backing away from appellant. When appellant struck Archibald in the face, Archibald did not fight back. After Archibald fell, appellant got on top of him and repeatedly hit him in the head, even though Archibald appeared to be unconscious. Greico flashed his flashlight at appellant, screamed at him, pulled out his badge, and called 911. Appellant returned to his car and drove off.

The state admitted into evidence a taped voicemail message that appellant left on Mancin’s phone a few days after the incident in the parking lot. In the message, appellant told Mancin she “messed with the wrong guy to treat like garbage” and asked her if “[Archibald] liked meeting my fists as much as I liked beating his face because I loved every minute of kicking his butt.”

Appellant testified to a different version of the incident. He said that after he left work at a nearby bar, he saw Mancin and Archibald in the parking lot and went over to talk to them. He was upset because Mancin had violated her promise not to go anywhere near appellant’s workplace. He said that Mancin grabbed his shirt while they were arguing, and that Archibald hit him twice in the face without any warning. Archibald and appellant fell on the ground and during the struggle appellant hit Archibald five to seven times. Appellant explained, “[m]y intention was to protect myself to make sure that I was not getting hit again.” Appellant left and saw Greico for the first time as he was leaving the parking lot. Later, he left a voicemail message on Mancin’s phone in response to a phone call she had made to him saying that he had messed with the wrong girl.

During the charge conference, the parties discussed jury instructions applicable to self-defense. Defense counsel requested the standard jury instruction for justifiable use of deadly force, 3.6(f). He asked, however, that the court delete the “duty to retreat” part of the instruction, based on Smiley v. State. The court agreed and deleted the “duty to retreat” instruction. The court declined, however, defense counsel’s request to delete the section of the standard instruction regarding the “necessity to avoid” the use of deadly force. This section, which the court read to the jury, stated that “the defendant cannot justify the use of force likely to came great bodily harm unless he used every reasonable means within his power consistent to his own safety to avoid the danger before resorting to that force.” (emphasis supplied)

The jury found appellant guilty of battery, a lesser included offense. This appeal followed.

A defendant is entitled to a jury instruction on his theory of the case if there is any evidence to support it. Spence v. State, 678 So.2d 459, 460 (Fla. 4th DCA 1996); Garramone v. State, 636 So.2d 869, 870 (Fla. 4th DCA 1994) (citing Smith v. State, 424 So.2d 726 (Fla.1982)). In instructing the jury, the trial court must ensure “that the jury is fully and correctly instructed as to the applicable law.” Allen v. State, 939 So.2d 273, 276 (Fla. 4th DCA 2006); State v. Delva, 575 So.2d 643, 644-45 (Fla.1991); Stewart v. State, 420 So.2d 862, 863 (Fla.1982).

In this case, the trial court properly granted appellant’s request for self-defense instructions, based on appellant’s testimony that he was first attacked by Archibald and that he struck Archibald to retaliate and prevent further harm to himself. Appellant contends, however, that the trial court incorrectly instructed the jury on self-defense by telling them that appellant had to try to “avoid the danger” before using force. According to appellant, this instruction negated his defense.

The 2005 Florida Legislature’s creation of section 776.013, Florida Statutes (2005), expanded the right of self-defense and abolished the common law duty to retreat when a person uses deadly force in self-defense to prevent imminent great bodily harm or death. Smiley, 927 So.2d at 1002. Section 776.013(3), Florida Statutes, states that:

[a] person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

§ 776.013(3), Fla. Stat. (2005). Section 776.013 altered the law so that now there is “no duty to retreat” under a broad array of circumstances. Smiley v. State, 966 So.2d 330, 335 (Fla.2007).

Here, the trial judge properly eliminated all express references to a “duty to retreat” from the jury instructions. But he left in language explaining that the appellant should try to “avoid the danger” before using force. To support his argument that this language should have been deleted as well, appellant points to the revised standard jury instructions for justifiable use of deadly force, which were approved by the Florida Supreme Court in May 2006, two months before appellant’s trial. See In re Standard Jury Instructions in Criminal Cases (No. 2005-4), 930 So.2d 612 (Fla.2006). The revised instructions for Standard Jury Instruction 3.6(f): Justifiable Use of Deadly Force omit the “necessity to avoid” language that appellant objected to at trial. Id. at 615.

We agree with appellant that the trial court’s jury instructions misstated the current law applicable to self-defense. The “necessity to avoid” language would lead the jury to believe that the appellant had to use “every reasonable means within his power to avoid the danger” before he could resort to the use of force likely to cause great bodily harm. However, under section 776.013, a person who is attacked is allowed to stand his or her ground and “meet force with force.” It appears that the new law places no duty on the person to avoid or retreat from danger, so long as that person is not engaged in an unlawful activity and is located in a place where he or she has a right to be. § 776.013(3), Fla. Stat. (2005). Because the jury instructions misstated the law governing appellant’s sole affirmative defense of self defense, we reverse and remand for a new trial.

We have considered appellant’s second point on appeal regarding impeachment of a witness by a prior inconsistent statement, but find this argument to be without merit.

Reversed and Remanded.

FARMER, J., and DAVIDSON, LISA, Associate Judge, concur.

      . State v. Smiley, 927 So.2d 1000 (Fla. 4th DCA 2006), held that section 776.013, Fla. Stat. (2005), which created a new right of "self-defense without the duty to retreat,” does not apply to conduct committed prior to its effective date of October 1, 2005. The Florida Supreme Court approved our decision in Smiley v. State, 966 So.2d 330 (Fla.2007). The appellant’s conduct in this case was allegedly committed on November 19, 2005, after the effective date of the legislation.

      . Prior to the revisions, there was a passage recommended for use in all self-defense cases, which was called “Necessity to avoid use of deadly force” and which said,
      The defendant cannot justify the use of force likely to cause death or great bodily harm unless [he] [she] used every reasonable means within [his][her] power and consistent with [his][her] own safety to avoid the danger before resorting to that force.

        In re Standard Jury Instructions, 930 So.2d at 616.


author: BENTON, J.

text:
    STATE of Florida, DEPARTMENT OF REVENUE on behalf of Donneshia CHAMBERS, Petitioner, v. Terrell D. TRAVIS, Respondent.
    No. 1D07-2833.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.

      Bill McCollum, Attorney General, Melody A. Hadley, Assistant Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Petitioner.
    John J. Maceluch, Jr., Tallahassee, for Respondent.
   BENTON, J.

By petition for writ of certiorari, the Department of Revenue (DOR) seeks review of a non-final circuit court order denying DOR’s motion to vacate an order requiring paternity testing. In the absence of any showing of good cause, the circuit court departed from the essential requirements of law in requiring the mother (along with respondent and the child) to submit to DNA testing. Because this departure may result in harm that cannot be remedied on plenary appeal, we grant the petition.

I.

We have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(A) (2007). The petition for writ of certiorari was filed within 30 days of the circuit court’s order denying DOR’s motion to vacate (although more than 30 days after the initial order was entered). See Fla. R.App. P. 9.100(c)(1) (2007). Florida Family Law Rule of Procedure 12.491(f) (2007), provides that the circuit court, upon review of a hearing officer’s recommended order, “shall enter an order promptly” but authorizes “[a]ny party affected by the order [to] move to vacate the order by filing a motion to vacate within 10 days from the date of entry” and sets forth procedures for the hearing on the motion to vacate. See Fla. Fam. L.R.P. 12.491(f)-(h) (2007) (contemplating, inter alia, preparation of a record of the proceedings before the hearing officer). Under the circumstances, petitioner’s compliance with the specific procedures set forth in rule 12.491 for challenging an order approving a hearing officer’s recommendation does not preclude seeking certiorari review of the trial court’s order denying the motion to vacate. We have jurisdiction to consider the merits of DOR’s petition for writ of certiorari seeking review of the trial court’s non-final order denying a motion to vacate authorized by rule 12.491.

II.

On January 20, 2003, Donneshia Chambers and Terrell D. Travis executed a “paternity affidavit by natural parents” acknowledging Mr. Travis as the biological father of a child born two days earlier. This duly notarized affidavit established a “rebuttable presumption ... of paternity” pursuant to section 742.10(1), Florida Statutes (2003), which provides, in relevant part, as follows:

[W]hen an affidavit or notarized voluntary acknowledgment of paternity as provided for in s. 382.013 or s. 382.016 is executed by both parties, it shall constitute the establishment of paternity for purposes of this chapter. If no adjudicatory proceeding was held, a notarized voluntary acknowledgment of paternity shall create a rebuttable presumption ... of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days of the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier.

§ 742.10(1), Fla. Stat. (2003). Pursuant to section 742.10(4), Florida Statutes (2007), such a signed voluntary acknowledgment of paternity, because it was not rescinded within the 60-day period following the date the acknowledgment was signed, “shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.”

III.

On October 17, 2005, some "two years and nine months after Mr.' Travis formally acknowledged paternity, the DOR filed (on behalf of Ms. Chambers) a petition for support and other relief seeking to establish that respondent had a child support obligation. In accordance with Florida Family Law Rule of Procedure 12.491(d) (2005), the DOR’s petition to establish the respondent’s child support obligation was referred to a support enforcement hearing officer. Although acknowledging that he signed the paternity affidavit and alleging that he had in fact acted as the child’s custodial parent for most of the child’s life, Mr. Travis, out of a “desire[] to be sure that he is the biological father of the child” in light of what he alleged to have been the mother’s “past promiscuous behavior,” requested DNA testing prior to the establishment of any support obligation.

Over DOR’s objections that signing a paternity affidavit had made him the legal father of the child pursuant to section 742.10, Florida Statutes (2003), and that the hearing officer lacked jurisdiction to hear contested paternity cases pursuant to Florida Family Law Rule of Procedure 12.491 (2006), the hearing officer recommended to the trial court entry of an order requiring the mother, the child, and Mr. Travis to submit to DNA testing at his expense. The trial court entered an order approving and ratifying the hearing officer’s recommended order, and later, at a hearing held pursuant to Florida Family Law Rule of Procedure 12.491(f) (2007), refused to vacate its initial order.

IV.

Where the putative father is not the child’s biological father, the Legislature has provided that paternity established by his voluntary acknowledgment of paternity may be “disestablished” in accordance either with section 742.10(4) or with section 742.18, Florida Statutes (2007): There are two different ways for somebody whose voluntary acknowledgment of paternity has rendered him a child’s legal father pursuant to section 742.10, Florida Statutes (2007), to disestablish paternity. See §§ 742.10(4), 742.18, Fla. Stat. (2007).

A signed voluntary acknowledgment of paternity that establishes paternity pursuant to section 742.10(4), Florida Statutes (2007), may be challenged “on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.” § 742.10(4), Fla. Stat. (2007). A challenge may be brought on these grounds under section 742.10(4), whether or not all the requirements set out in section 742.18 are met. See § 742.18(11), Fla. Stat. (2007).

In addition, “a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child,” § 742.18(1), Fla. Stat. (2007), although neither fraud nor duress induced the signing of the acknowledgment of paternity, except in certain circumstances. If he proceeds pursuant to section 742.18, Florida Statutes (2007), he must file a petition in circuit court that includes (1) an affidavit averring “that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation”; (2) the results of a paternity test generally accepted within the scientific community demonstrating a probability that the petitioner cannot be the biological father of the child or an affidavit alleging that the petitioner lacked access to the child that scientific testing requires; and (3) an affidavit in which the petitioner avers that he has substantially complied with any child support obligation for the child and that any delinquency resulted from his “inability for just cause to pay the delinquent child support” when it became due. § 742.18(l)(a)-(c), Fla. Stat. (2007). The circuit court must grant relief if it finds each of seven requirements is met, including a requirement that the petitioner has become aware of newly discovered evidence since paternity was initially determined or a child support obligation was initially established. See § 742.18(2)(a)-(g), Fla. Stat. (2007).

But Mr. Travis has instituted no proceedings, either under section 742.10(4) or under section 742.18, to disestablish the paternity which his notarized, voluntary acknowledgment of paternity established under section 742.10(1). In the child support proceedings pending before the support enforcement hearing officer, he made no allegation of fraud, duress, material mistake of fact, or newly discovered evidence that might have placed his paternity in controversy in circuit court. Absent any such allegation, and absent proof in support, he failed to show good cause for a court order for paternity testing.

V.

The support hearing officer, when considering Mr. Travis’s request for DNA testing in the child support proceedings DOR instituted against him on behalf of Ms. Chambers, was faced with what can be viewed as a discovery request. Support enforcement hearing officers, whom the statute empowers “to issue process, administer oaths, require the production of documents, and conduct hearings for the purpose of taking evidence,” lack jurisdiction “to hear contested paternity cases.” Fla. Fam. L.R.P. 12.491(e) (2007). Nor did the support hearing officer go so far as to adjudicate paternity. But no party to any family law proceeding is entitled to an order requiring another party to submit to genetic testing unless (1) the proceedings place paternity “in controversy” and (2) “good cause” exists for the testing. See Dep’t of Revenue ex rel. Freckleton v. Goulbourne, 648 So.2d 856, 857-58 (Fla. 4th DCA 1995) (quashing order for scientific testing to determine paternity entered in proceedings against legal father for nonpayment of child support in part because order “fails to comport with Florida Rule of Civil Procedure 1.360 ... as there has been no showing that the condition to be tested is ‘in controversy’ and that there is ‘good cause’ for the testing”).

Here the child’s legal father requested genetic testing in connection with child support proceedings instituted by DOR merely in order “to be sure” that he was the child’s biological father before being required to pay child support. Absent any allegation or proof of fraud, duress, material mistake of fact, or newly discovered evidence, no good cause was shown to justify the hearing officer’s recommendation to require the mother and child to submit to DNA testing. The trial court’s order adopting the recommendation should have been vacated. Denial of the motion to vacate departed from the essential requirements of law. See Dep’t of Revenue ex rel. Gardner v. Long, 937 So.2d 1235, 1237 (Fla. 1st DCA 2006); Dep’t of Revenue ex rel. T.E.P. v. Price, 958 So.2d 1045, 1046 (Fla. 2d DCA 2007); Reiss v. Dep’t of Revenue ex rel. Sava, 753 So.2d 764, 765 (Fla. 4th DCA 2000).

Accordingly, we grant the petition, issue the writ, quash the order on review, and remand for further proceedings.

ALLEN and DAVIS, JJ., concur.

      . See Dep’t of Revenue ex rel. Gardner v. Long, 937 So.2d 1235, 1237 (Fla. 1st DCA 2006) (“We find that subjecting Mother and Child to a potentially intrusive [paternity] test ... is enough to constitute irreparable harm.”); Dep’t of Revenue ex rel. T.E.P. v. Price, 958 So.2d 1045, 1046 (Fla. 2d DCA 2007) ("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.”); Reiss v. Dep’t of Revenue ex rel. Sava, 753 So.2d 764, 765 (Fla. 4th DCA 2000) (granting DOR’s petition for writ of certiorari where trial court improperly ordered paternity test); Dep't of Revenue ex rel. Freckleton v. Goulbourne, 648 So.2d 856, 858 (Fla. 4th DCA 1995) (same); Marshek v. Marshek, 599 So.2d 175, 176 (Fla. 1st DCA 1992) (same). See generally Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000); Vanguard Fire and Cas. Co. v. Golmon, 955 So.2d 591, 593 (Fla. 1st DCA 2006); Kirlin v. Green, 955 So.2d 28, 29 (Fla. 3d DCA 2007); Holden Cove, Inc. v. 4 Mac Holdings, Inc., 948 So.2d 1041, 1041 (Fla. 5th DCA 2007).

      . DOR’s motion to vacate did not delay rendition of the trial court’s earlier order ratifying the hearing officer's recommended order. See Fla. R.App. P. 9.020(h) (2007) (providing that a motion “to vacate an order based on the recommendations of a hearing officer in accordance with Florida Family Law Rule of Procedure 12.491” delays rendition of any final order).

      .A litigant cannot expand the time for seeking review of a non-final order (e.g., an order on a discovery motion, which is one way to characterize what the petitioner seeks review of here) by filing a petition for writ of certio-rari addressed to an order on a motion for rehearing of an earlier non-final order that the petitioner failed to challenge in a timely manner. See, e.g., Blades v. Henry, 720 So.2d 323, 324 (Fla. 4th DCA 1998) (holding petitioner cannot circumvent time requirements for seeking certiorari review of an order denying a motion for a protective order by filing a successive motion seeking the same relief and seeking certiorari review that is timely only with respect to the order denying the second motion); Bensonhurst Drywall, Inc. v. Ledesma, 583 So.2d 1094, 1094-95 (Fla. 4th DCA 1991) (concluding that petitioner may not evade the time requirements for seeking cer-tiorari review by filing a second motion in the trial court raising issues identical to those addressed in an earlier order).

      . The statute provides that a court shall not set aside a paternity determination if the putative father engages in certain conduct after learning he is not the child’s biological father, such as voluntarily acknowledging paternity pursuant to section 742.10(4) or consenting to be named on the child's birth certificate as the child’s biological father. See § 742.18(3)(a)-(f), Fla. Stat. (2007).

      . If the allegations had been sufficient to place paternity in controversy, the hearing officer, who has no jurisdiction to hear contested paternity cases, would presumably have transferred this matter to the circuit court judge. See Fla. Fam. L.R.P. 12.491(e) (2007).

      . Florida Family Law Rule of Procedure 12.360 provides that Florida Rule of Civil Procedure 1.360 governs "the examination of persons in family law matters” and expressly provides that genetic testing may be a permitted examination under rule 1.360(a)(1). See Fla. Fam. L.R.P. 12.360 (2007). Pursuant to rule 1.360, a party may request that another party or person in the other party’s legal custody or control submit to an examination only "when the condition that is the subject of the requested examination is in controversy.” Fla. R. Civ. P. 1.360(a)(1) (2007). Rule 1.360(a)(2) provides that examinations are authorized under the rule only if the requesting party has “good cause” for requesting the examination and places the burden of showing good cause on the requesting party at any hearing on a request for an examination. Fla. R. Civ. P. 1.360(a)(2) (2007).


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Robert M. GARDNER, Appellee.
    No. 5D07-1187.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellee.
   GRIFFIN, J.

The State of Florida appeals an order dismissing an information on the ground that the prosecution violated the terms of an earlier plea agreement with the defendant, Robert M. Gardner. Because we conclude that the State’s plea agreement with Gardner was not violated, we reverse.

In January 2004, Gardner had entered a no-contest plea to three counts of lewd and lascivious molestation arising out of events occurring at Gardner’s home. According to the allegations, when his own children would have friends over, he would participate in a game of “hide and seek” with them. He would sit in a chair and assist the “counter” to count while the other children hid. Allegedly, he would hold the “counter’s” hand and would place their hands on his genitals. The record also contains indications of further conduct such as masturbation or oral contact by one or more of the children with the defendant’s genitals.

Gardner entered into a plea agreement with the State pursuant to which he would plead no contest to three counts of lewd and lascivious molestation and the State would agree to a downward departure sentence of three years’ imprisonment followed by community control and probation.

During the plea hearing, defense counsel made the statement that:

The State has also informed me that they know of no other cases in their office for consideration for filing and they know of no other from any law enforcement agency.

Counsel further stated:

Our concern is that he not tender a change of plea and then, while serving his sentence, additional offenses come up. And they have promised me that will not be the case based upon the information they have at this time or that they should be aware of.

During the sentencing, defense counsel reiterated this same point:

It’s our understanding, by the way, that pursuant to this plea, that there are no other charges pending or known by law enforcement or the State Attorney’s Office that might arise later.

The defendant was sentenced on February 27, 2004.

One of the children who was a playmate in the group of children involved in the molestation on which the plea agreement was based had moved away from Kissim-mee in July 2003. Some time after the move, the victim’s parents learned of Gardner’s arrest and the nature of the charges. The child’s parents questioned her at the time, but she denied that she had been molested. On September 13, 2004, some seven months after Gardner had begun serving his sentence, the Kis-simmee police received a call from the victim’s father, reporting that she had just revealed that she also was a victim of similar acts of molestation.

On February 6, 2006, based upon information received by this new victim, the State charged Gardner in two counts, sexual battery and lewd or lascivious molestation of a minor. Gardner’s motion to dismiss the information was based on his contention that he had a binding plea agreement with the State that precluded the State from bringing any further charges against him arising out of his activities with the neighborhood children. The trial court dismissed the information, finding that:

[T]he agreement, even though not worded as concretely as it could have been, contemplated that the plea resolved all cases resolving (sic) out of the contact with this defendant and the children — - the neighborhood children who came over and played hide and seek in his household with his children during the time period that these cases all arose.

He further found that:

[T]he defense has established that to the court’s satisfaction by the preponderance of the evidence that that was the intent of the parties and that was Mr. Craner’s and Mr. Gardner’s reasonable understanding of the agreement. I think it was also, as best I can discern from the plea colloquy and the sentencing colloquy, it appears to have been Ms. DeYoung’s. I may be wrong about that, but I believe in context that it was Ms. DeYoung’s.
I find that the incident charged in Case CR06-461 is included within the plea agreement, is included among the cases that the State in exchange for the plea to the charges in CR04-461 (sic) and 03-1960 said they would not go forward with.

Although we are bound by the trial court’s findings of fact concerning the intent of Gardner and his counsel, we review de novo the terms of the “plea agreement.” Based upon what appears to be a remarkably consistent explication of the understanding between defense counsel and the State, we are dubious that there was an “agreement” concerning prosecution of additional cases at all, but if there was one, it did not preclude the prosecution of this case. Clearly, based on the expressions by defense counsel himself, at most the State agreed only that they would not prosecute Gardner for additional offenses based upon information that they had at the time or that they should be aware of. This is in contradiction to the trial court’s finding that the agreement was that all cases arising out of the “hide and seek” incidents with the neighborhood girls were encompassed within the plea. The State merely agreed that it would not seek to prosecute any claims that they knew of or should have been aware of. There is nothing in the record to suggest that the State had any knowledge of the molestation of the present victim, or that they should have been aware of it. The victim denied the molestation until several months after the defendant was sentenced. The State merely agreed that there was no one else that they either knew about or should know about. Since that manifestly is the essence of the agreement, unless there is evidence that they knew about this victim, or should have known about this victim, there is no basis to dismiss the information.

Accordingly, we reverse the order dismissing the information and remand to the trial court to reinstate the prosecution.

REVERSED and REMANDED.

PALMER, C.J. and SAWAYA, J., concur.


author: LAWSON, J.

text:
    Glenn STORM, Appellant, v. Michael J. DECKER, Sr., and Deborah Decker, Appellee.
    No. 5D07-882.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.
    Elizabeth E. Berenguer of Berenguer Ragan, PL, Orlando, for Appellant.
    No Appearance for Appellee.
   LAWSON, J.

Glenn Storm appeals a final injunction for protection against repeat violence rendered in favor of Michael and Deborah Decker. We reverse the injunction, finding that Storm was denied due process when the trial court failed to continue the final hearing so that Storm or his attorney could participate.

Storm owns property in Brevard County, adjacent to property owned by the Deckers. However, Storm lives in Dade County. The Decker’s counsel had Storm served with the petition for injunction at 5:30 p.m., in South Florida, three business days before the scheduled final injunction hearing. The next morning, Storm retained counsel from Orlando, Florida, who prepared and faxed a motion to continue, on the next business day, indicating that she could not prepare for the final hearing in the time remaining before the hearing (one business day), and that neither she nor Storm could attend the final hearing on the day scheduled. The motion, therefore, requested a short continuance.

After faxing the motion to continue, Storm’s counsel called the Deckers’ counsel in an attempt to reach an agreement on the motion to continue, but the call was not returned. Additionally, Storm’s counsel had her staff repeatedly call the Brevard courthouse, attempting to obtain a ruling on the motion to continue prior to the hearing, and, when that failed, attempted to arrange for counsel to appear by telephone on the day of the hearing. The trial judge’s judicial assistant would not arrange for counsel’s appearance by phone, and the trial court denied the motion and proceeded to the final hearing with neither Storm nor his counsel in attendance, although the record does not reflect any emergency, danger or prejudice to the Deckers had a short continuance been granted. On these facts, we find that Storm was denied procedural due process. Given the short notice involved, the lack of emergency, and the totality of these circumstances, the motion to continue should have been granted to allow Storm and his counsel to appear and participate in the hearing. See, e.g., Traughber v. Traughber, 941 So.2d 388 (Fla. 2d DCA 2006). Alternatively, once the trial judge was made aware of counsel’s diligent efforts by way of motion for rehearing, the court should have set aside the injunction and scheduled a new hearing, to assure Storm a reasonable opportunity to be heard.

We reverse the final injunction, and remand for a new final hearing.

ORFINGER and MONACO, JJ., concur.

      . We note that the trial court was not initially made aware of the repeated efforts by Storm’s counsel to obtain a ruling on the motion to continue prior to the hearing, or of counsel's effort to appear by telephone. In fact, when the trial judge asked if Storm’s counsel had made any attempt to call, the Deckers’ counsel stood silent (although his office had received calls from Storm’s counsel). And, the trial clerk informed the judge that she was unaware of any attempts by counsel to follow-through on the faxed motion prior to the morning of the hearing. However, Storm’s counsel timely filed a motion to set aside the injunction (or for rehearing), with an affidavit setting forth the efforts outlined in this opinion. This motion was denied.


text:
    Gretchen SNYDER, Appellant, v. Patricia McLEOD, Appellee.
    No. 5D07-1559.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.

      David A. Collins of David A. Sierra & Associates, Orlando, and Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellant.
    J. Scott Murphy of Allen & Murphy, P.A., Maitland, for Appellee.
   LAWSON, J.

Gretchen Snyder appeals an order denying her motion to dismiss Patricia McLeod’s personal injury lawsuit. The suit involves injuries that McLeod alleges to have suffered as a result of Snyder’s negligent operation of an automobile in Georgia. We agree with Snyder that the record reflects no statutory or constitutional basis for asserting personal jurisdiction over her, and reverse.

A plaintiff has the initial burden to allege sufficient facts in his or her complaint to demonstrate the basis for a court’s jurisdiction, including facts to establish both statutory and constitutional long-arm jurisdiction over a non-resident defendant. E.g., Hilltopper Holding Corp. v. Estate of Cutckin, 955 So.2d 598, 601 (Fla. 2d DCA 2007) (citing Venetian Sala mi Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989)). If the plaintiff sufficiently pleads jurisdiction, the burden shifts to the defendant to file an affidavit or other sworn proof contesting the plaintiffs jurisdictional pleadings. Id. The defendant’s affidavit “must contain factual allegations, which, if taken as true, show that the defendant’s conduct does not subject him to jurisdiction.” Id. (emphasis in original). If the defendant’s affidavit fully disputes the plaintiffs jurisdictional allegations, the burden shifts back to the plaintiff to submit affidavits or other sworn proof establishing a basis for jurisdiction. Id. at 602. If the plaintiff fails to do so, the defendant’s motion to dismiss must be granted. Id.

McLeod’s complaint alleged that Snyder was a Florida resident at the time of the accident. This allegation was sufficient to establish personal jurisdiction over Snyder. See, e.g., Davis v. State, 928 So.2d 442, 448 (Fla. 5th DCA 2006) (noting that circuit courts have jurisdiction over Florida residents and citing to Patten v. Mok- her, 134 Fla. 433, 184 So. 29 (1938)). The burden then shifted to Snyder. Although Snyder’s original motion to dismiss did not include an affidavit, the trial court granted Snyder an opportunity to file a legally sufficient motion. Snyder’s amended motion to dismiss included an affidavit that fully disputed the allegation that she was a Florida resident. According to Snyder’s affidavit: (1) she resided in Buffalo, New York, at all material times; (2) she had lived in Florida only temporarily before the accident, and with no intention of becoming a Florida resident; (3) she had continuously received her mail in New York, having had it temporarily forwarded to Florida only for the short time she was here; (4) she had abandoned Florida before the accident, with no intention of returning; (5) she had left no possessions in Florida from her temporary stay; (6) she had always been licensed to drive in New York, including the day of the aceident, and never had a Florida driver’s license; and (7) she was registered to vote in New York.

In an apparent attempt to establish that Snyder was a Florida resident at the time of the accident, McLeod’s attorney took Snyder’s deposition and subpoenaed records from Bell South, Brighthouse Networks, Progress Energy and Cranes Roost Village Apartments. However, McLeod never filed Snyder’s deposition, nor any affidavit or other evidence to contradict the sworn statements in Snyder’s affidavit. We agree with Snyder that, on this record, the trial court should have granted her motion to dismiss.

First, the record establishes that Snyder was not a Florida resident. The issue of residency most often arises in divorce cases, because section 61.021, Florida Statutes, requires that one of the parties must reside in Florida for six months before a dissolution petition can be filed in Florida. The analysis in dissolution cases is therefore instructive. Under section 61.021, Florida residency is defined as “an actual presence in Florida coupled with an intention at that time to make Florida the residence.” McCarthy v. Alexander, 786 So.2d 1284, 1285-86 (Fla. 2d DCA 2001) (quoting Jenkins v. Jenkins, 556 So.2d 441, 442 (Fla. 4th DCA 1990)). Thus, temporarily residing in Florida without a present intention to make Florida one’s legal residence is not sufficient to establish Florida residency. E.g., Curran v. Curran, 362 So.2d 1042 (Fla. 4th DCA 1978). Additionally, section 61.052(2) provides that proof of a valid Florida driver’s license and voter registration may be used to corroborate the Florida residency requirement in section 61.021. See also Hunter v. Hunter, 736 So.2d 801 (Fla. 1st DCA 1999). As explained in Keveloh v. Carter, 699 So.2d 285 (Fla. 5th DCA 1997):

A person may have several temporary local residences but can have only one legal residence. A legal residence or “domicile” is the place where a person has fixed an abode with the present intention of making it his or her permanent home. Once established, a domicile continues until it is superseded by a new one. A domicile is presumed to continue, and the burden of proof ordinarily rests on the party asserting the abandonment of one domicile to demonstrate the acquisition of another.
A change of residence is accomplished and becomes effective when there is a good-faith intention to establish it, coupled with an actual physical move to the new residence, as evidenced by positive overt acts.

Id. at 288 (citations omitted).

Applying this law to the facts averred to by Snyder, it is clear that Snyder’s temporary presence in Florida did not establish that she was a Florida resident. She averred that she had no intent to make Florida her residence, and attested to facts consistent with her claimed subjective intent — such as retaining her New York driver’s license and voter registration, only temporarily forwarding mail to Florida from her permanent residence in New York, and leaving no personal property in Florida when she returned to New York.

Although McLeod argues on appeal that Snyder had changed her residence from New York to Florida by driving to Florida with all of her belongings, renting an apartment here, and working here, McLeod presented no evidence to support these arguments in response to Snyder’s affidavit. In fact, the only documents submitted by McLeod in response to Snyder’s affidavit show that McLeod’s subpoenas turned up no proof that Snyder ever leased an apartment, paid utilities or worked here. Thus, the facts demonstrate that Snyder never changed her residency from New York to Florida.

Although Snyder’s affidavit refutes the jurisdictional allegations of McLeod’s complaint, McLeod argues, alternatively, that we should affirm the trial court because the facts in the record establish a basis for long-arm jurisdiction over Snyder as a non-resident defendant. Again, we disagree.

A Florida court only has personal jurisdiction over a non-resident defendant if the plaintiff establishes: (1) sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes; and (2) that the exercise of jurisdiction is consistent with due process. E.g., Hartcourt Companies, Inc. v. Hogue, 817 So.2d 1067, 1070 (Fla. 5th DCA 2002). “Both parts [of this test] must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Carib-USA Ship Lines Bahamas Ltd. v. Dorsett, 935 So.2d 1272, 1275 (Fla. 4th DCA 2006) (quoting Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002)).

With respect to the first part of this test, section 48.193 provides two ways to establish long-arm jurisdiction. First, jurisdiction may be established if a person “does any of the acts enumerated in” section 48.193(1), including committing a tor-tious act in Florida, operating a business in Florida, insuring a person in Florida, and other enumerated acts. The parties appear to agree that jurisdiction does not exist under section 48.193(1). As noted previously, the alleged tort occurred in Georgia.

Second, jurisdiction may be established under section 48.193(2), which states: “A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” Under section 48.193(2), the question is whether Snyder engaged in substantial activity in Florida. Substantial activity has been defined as “continuous and systematic general business contacts” with Florida. E.g., Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 620 (Fla. 4th DCA 1999).

McLeod fails to explain how the instant facts establish that Snyder had “continuous and systematic general business contacts” in Florida. Again, the record is devoid of any evidence that Snyder worked in Florida or otherwise conducted any business here. In short, the record shows only that Snyder was in Florida for a short period of time for unknown reasons, and left. If this were sufficient to establish personal jurisdiction over a non-resident, then any tourist who had visited Florida could be haled into Florida’s courts for his or her alleged negligent acts in another state. This would be inconsistent with the express language of section 48.193(2), which, again, requires a showing of “substantial and not isolated activity” in Florida. Where the jurisdictional facts do not establish a basis for suit against a nonresident defendant under the provisions of Florida’s long-arm statute, it is unnecessary to consider federal due process requirements. E.g., Dorsett, 935 So.2d at 1275.

Because the facts in this record do not establish either Florida residency, as alleged in McLeod’s complaint, or a statutory basis for asserting long-arm jurisdiction, Snyder’s motion to dismiss should have been granted. Therefore, we reverse with directions that the trial court enter a final order granting Snyder’s motion to dismiss for lack of personal jurisdiction.

REVERSED and REMANDED.

THOMPSON and TORPY, JJ., concur.

      . This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) because the court's non-final order determined jurisdiction. The de novo standard of review applies. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002).

      . Conversely, a Florida resident’s temporary absence from Florida, without a present intent to relinquish his or her Florida residency, will not divest Florida courts of jurisdiction over the person. See, e.g., Jenkins v. Jenkins, 915 So.2d 1248, 1250 (Fla. 4th DCA 2005).


author: PALMER, C.J.

text:
    James Craig DUNLAP, et al., Appellant, v. ORANGE COUNTY, Florida, etc., Appellee.
    No. 5D06-4059.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.

      Aristides J. Diaz, of Diaz & Moss, Orlando, for Appellant.
    Joel D. Prinsell, Deputy County Attorney and Anthony J. Cotter, Assistant County Attorney, Orlando, for Appellee Orange County, Florida.
    Howard S. Marks and Douglas K. Gar-tenlaub, of Graham, Builder, Jones, Pratt & Marks, L.L.P., Winter Park, for Appel-lee M/I Holmes, Inc.
   PALMER, C.J.

James and Sylvia Dunlap, Chris and Rhoni Bischoff, Cal and Carol Paris, and Dan and Katrina Rini (homeowners) appeal the final order entered by the trial court dismissing with prejudice the complaint they filed against Orange County. Determining that the trial court erred in determining (1) that the homeowners lack standing to prosecute their lawsuit, and (2) that they failed to properly preserve their legal argument, we reverse.

The homeowners filed a declaratory judgment action against Orange County in connection with two construction permits which the County had issued allowing M/I Homes to build a boat ramp in a residential subdivision. The complaint sets forth the following allegations of fact.

Each of the plaintiffs are homeowners residing on lake-front property on Corner Lake in Orange County. M/I Homes is developing a single-family residential development on the shores of Corner Lake. The development is known as Country Lake Estates. M/I Homes has plans to construct a semi-private boat ramp in connection with its development of Country Lake Estates and the boat ramp will be accessed and used only by the owners of homes in Country Lake Estates.

M/I Homes purchased the rights to develop Country Lake Estates from White Mark Homes, Inc. White Mark Homes had taken the subdivision through the planned development zoning process in Orange County; however, M/I Homes recorded the plat for Country Lake Estates after the plat received approval from the Orange County Board of County Commissioners (BCC) in December of 2003.

In 2004, without applying for or receiving a conservation area impact permit or a boat ramp construction permit, M/I Homes started constructing a boat ramp in Country Lake Estates. Orange County fined M/I Homes for violating the permitting requirements by commencing construction of the boat ramp without obtaining the necessary permits. M/I Homes also placed signs at the entrance of Country Lakes Estates which stated that the homes were selling with access to a boat ramp. Orange County also fined M/I Homes for this advertising.

M/I Homes then filed applications for a conservation area impact permit and a boat ramp construction permit. BCC held a public hearing on said applications and thereafter voted in favor of granting both of M/I Homes’ permit applications. Once M/I Homes’ permit applications were approved, the homeowners filed this lawsuit challenging BCC’s approval of the permit applications.

In seeking declaratory relief, the homeowners’ complaint alleges that BCC’s vote approving M/I Homes’ permit applications was void because the boat ramp plans are inconsistent with Orange County’s Comprehensive Plan. Orange County responded to the homeowners’ complaint by filing a motion to dismiss. The motion alleged that dismissal of the homeowners’ complaint was warranted because the homeowners failed to allege in their complaint that they had raised the issue of whether M/I Homes’ boat ramp construction plans were consistent with the County’s Comprehensive Plan during the public hearing.

Soon thereafter, M/I Homes filed .a motion to intervene in the instant lawsuit. The trial court granted the motion. M/I Homes then filed a motion to dismiss the homeowners’ complaint arguing that the homeowners lacked standing to challenge BCC’s permit application approvals.

The parties consented to send the matter to the general magistrate for consideration of the factual issues. At the hearing held by the general magistrate, Orange County presented its waiver claim, arguing that the homeowners’ complaint should be dismissed because, during BCC’s public hearing, the homeowners never contended that approval of M/I Homes’ permit applications would be inconsistent with Orange County’s Comprehensive Plan. Counsel for the homeowners responded by arguing that the instant lawsuit was entitled to receive a de novo trial and, therefore, any and all issues could be raised for the first time in the trial court. Upon review, the general magistrate entered a report concluding that Orange County’s motion to dismiss should be granted. The trial court entered an order adopting the general master’s report.

The homeowners thereafter filed an amended complaint. Orange County responded to the homeowners’ filing of their amended complaint by filing a motion to dismiss. The motion alleged that the amended complaint was subject to dismissal because it failed to set forth any allegations indicating that the homeowners had raised the issue of the alleged inconsistency between the County’s Comprehensive Plan and BCC’s approval of M/I Homes’ permit applications during the public hearing. M/I Homes filed a separate motion to dismiss the homeowners’ amended complaint. The motion joined in the waiver argument set forth by Orange County and also alleged that the complaint should be dismissed because the homeowners lack standing to challenge BCC’s permit approvals “as they are only nearby citizens”.

The matter proceeded a second time to a hearing before the general magistrate. Upon review, the general magistrate concluded:

The court finds that the amended complaint does not allege that the inconsistency was raised at the county court [sic] level. So, the motion to dismiss should be granted with prejudice. The court also finds that the intervener’s motion on standing has merit and that these parties did not have standing to bring this action. For that reason also the court would dismiss complaint.

The trial court ratified the general magistrate’s order and dismissed the homeowners’ amended complaint with prejudice. This appeal timely followed.

In challenging the instant dismissal order, the homeowners first argue that the trial court erred in dismissing their complaint on the basis that they lack standing to prosecute this lawsuit under section 168.3215 of the Florida Statutes (2004). We agree.

Section 163.3215(2) of the Florida Statutes (2004) authorizes an “aggrieved or adversely affected” party to maintain an action to determine whether development orders (in this case, M/I Homes’ construction permits) are consistent with a County’s comprehensive plan. The statute reads, in relevant part, as follows:

163.3215. Standing to enforce local comprehensive plans through development orders
(2) As used in this section, the term “aggrieved or adversely affected party” means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order.

§ 163.3215(2), Fla. Stat. (2004). In Education Development Center, Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999), the court explained:

As a remedial statute, section 163.3215 should be liberally construed to advance the intended remedy, i.e., to ensure standing for any party with a protected interest under the comprehensive plan who will be adversely affected by the governmental entity’s actions. Parker v. Leon County, 627 So.2d 476, 479 (Fla.1993); see Dotty v. State, 197 So.2d 315 (Fla. 4th DCA 1967)(remedial statutes are generally construed liberally).

In Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007), Stranahan House, Inc., and Friends of the Park at Stranahan House appealed the trial court’s dismissal order entered in favor of the City of Fort Laud-erdale and Coolidge-South Markets Equities, L.p.; in a section 163.3215 action. In reversing the dismissal order, the Fourth District held, among other things, that Stranahan and Friends possessed standing to maintain the lawsuit.

In that case, Stranahan filed a complaint for declaratory and injunctive relief against the City and Coolidge pursuant to section 163.3215 of the Florida Statutes (2006), challenging the City Commission’s approval of a building site plan. The City filed a motion to dismiss the complaint and the motion was granted. On appeal, Coolidge asserted, inter alia, that both Strana-han and Friends lacked standing to challenge the City’s approval of the site plan because they were not “aggrieved or adversely affected parties” as required under section 163.3215. The Fourth District rejected the argument, holding:

In the present case, Stranahan’s complaint alleges that Stranahan, as the adjoining property owner, will be negatively affected by “increased traffic and the activity, lights, alteration of Stranahan’s enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year.” Stranahan also alleged it was negatively affected by the City’s failure to submit the alternative site plan to the historical preservation board for review and comment under the provisions of the comprehensive plan designed to evaluate the impact of such projects on historical sites. A purpose of Friends is to protect Stranahan House as a historical resource. Strana-han and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City’s Comprehensive Plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development.

We conclude that, as was the case in Stranahan House, the instant homeowners have met the test for standing because the interests which they allege in their amended complaint are protected by the County’s Comprehensive Plan and, as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by M/I Homes’ boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake-front property. Accordingly, the trial court’s ruling that the homeowners lack standing to challenge the issuance of M/I Homes’ construction permits is reversed.

The homeowners further argue that the trial court erred in concluding that section 163.3215, Florida Statutes, only authorizes a de novo appeal (not a de novo trial), to parties seeking to challenge a development order pursuant to the terms of the statute. We again agree.

“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.” Kephart v. Hadi 932 So.2d 1086, 1089 (Fla.2006).

Section 163.3215 of the Florida Statutes (2004) reads, in pertinent part:

163.3215. Standing to enforce local comprehensive plans through development orders
(1) Subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan adopted under this part.
(3) Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. The de novo action must be filed no later than 30 days following rendition of a development order or other written decision, or when all local administrative appeals, if any, are exhausted, whichever occurs later.

§ 163.3215(1), (3) Fla. Stat. (2004).

Here, the trial court approved the legal conclusions reached by the general master that (1) the language set forth in subsection 1 of the statute authorizes parties to receive a de novo appeal, not a de novo trial, when seeking review of a development order because subsection 1 of the statute reads: “to appeal and challenge”, and, (2) the homeowners’ complaint was subject to dismissal on the basis that they waived the right to raise any challenge regarding the inconsistency between the County’s Comprehensive Plan and BCC’s approval of M/I Homes’ permit applications by failing to raise the issue during BCC’s public hearing. However, our reading of the statutory language leads us to the conclusion that an action filed pursuant to section 163.3215(3) of the Florida Statutes is in the nature of a de novo trial, not a de novo appeal. Subsection 1 defers to subsection 3 and subsection 4 as the exclusive methods of asserting challenges such as the one brought by the homeowners here. Subsection 4 involves a traditional certiorari “appeal,” but only applies where the local government has by ordinance adopted a procedure for challenging its decisions in a quasi-judicial administrative action that meets all the requirements of that subsection. The reference to an “appeal” in subsection 1 logically refers to the appeal expressly referenced as the means of challenging a decision rendered after a hearing pursuant to subsection 4. By contrast, subsection 3 explicitly provides the right to a de novo “action,” not to a more limited appellate action. As such, the trial court’s ruling dismissing the homeowners’ amended complaint on the basis of waiver is reversed. See 5220 Biscayne Blvd., LLC v. Stebbins, 937 So.2d 1189, 1191 (Fla. 3d DCA 2006)(explaining that the “2002 amendment to section 163.3215 was intended to simplify the time limit for bringing the de novo action to challenge a development order by requiring that the action be filed within thirty days of rendition of the development order”).

REVERSED and REMANDED.

PLEUS and LAWSON, JJ„ concur.


author: MONACO, J.

text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner, v. Joie REED and Gregory Greene, Respondents.
    No. 5D07-2045.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.
    Daniel P. Osterndorf of Latham, Shuker, Eden & Beaudine, LLP, Orlando, for Petitioner.
    Joseph J. Mancuso of Joseph J. Mancu-so, P.A., Casselberry, for Respondent Gregory Greene.
    No Appearance for Respondent Joie Reed.
   MONACO, J.

By its petition for common law certiora-ri, Progressive Express Insurance Company asks us to consider the issue of whether an insurer who has a bona fide coverage dispute with its insured is permitted to litigate the coverage issue in a separate declaratory judgment action, while the underlying tort action is in progress. The trial court at the request of one of the respondents abated the declaratory judgment action pending the conclusion of the underlying tort action. As we have concluded that to do so was a departure from the essential requirements of law that will cause material injury to the insurer that cannot be remedied on plenary appeal, we grant the petition. See Britamco Underwriters, Inc. v. Central Jersey Invs., Inc., 632 So.2d 138 (Fla. 4th DCA 1994).

The facts are relatively simple. Progressive issued a policy for motor vehicle insurance with respect to a motorcycle owned by the respondent, Joie Reed. The policy contained an exclusion for bodily injury to any person “occupying a covered vehicle, other than the driver of the' covered vehicle, unless you have paid a premium for Guest Passenger Liability coverage.” According to Progressive, this coverage was rejected by Mr. Reed.

Subsequent to the issuance of the policy, Mr. Reed was involved in an accident while operating his motorcycle. The other respondent, Gregory Greene, was a passenger on the motorcycle at the time of the accident, and is alleged to have sustained injuries and damages as a result. Mr. Greene brought suit against Mr. Reed for negligence and specifically alleged in his complaint that he was a passenger on the motorcycle operated by Mr. Reed.

Mr. Reed requested insurance coverage to be provided by Progressive for the claim asserted by Mr. Greene. Progressive responded that it would provide a defense to the suit under a “reservation of rights,” based on the exclusion of passenger liability insurance, and indeed Progressive provided counsel for Mr. Reed and is currently defending the suit.

Thereafter, Progressive filed a declaratory judgment action against Mr. Reed seeking a declaration that its policy did not provide coverage for the injuries to Mr. Greene because of the exclusion, and that as a result, Progressive did not have a duty to provide a defense. Mr. Greene was allowed to intervene in the suit, and the usual pleadings were filed by all parties. Among the motions filed by Mr. Greene was a request that the lower court abate the declaratory judgment action until the liability suit was resolved. Although Progressive scheduled a hearing on this issue, the trial court entered an order abating the declaratory judgment action pending resolution of the liability suit without a hearing having been held. Progressive timely sought a writ of certiorari from this court addressed to the abatement order.

We are guided in our analysis of .this case by the opinion of the Florida Supreme Court in Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5 (Fla.2004). There, the court held that the Declaratory Judgment Act, Chapter 86, Florida Statutes, supports the conclusion that an insurance company may pursue a declaratory judgment action which requires a determination of the existence or nonexistence of a fact upon which depend its obligations as the insurer under a policy of insurance. Thus, it is clear that Progressive is authorized by the statute to seek a declaratory judgment on the coverage issue. See also, Allstate Ins. Co. v. Conde, 595 So.2d 1005 (Fla. 5th DCA 1992).

More importantly, Higgins suggests that there are a number of factors that should be considered in deciding the timing of a declaratory judgment action vis-a-vis the tort action upon which the insured asserts coverage. Among these factors are:

(1) Whether the two actions are mutually exclusive;

(2) Whether proceeding to a decision on the indemnity issue will promote settlement and avoid the problem of collusive actions between the claimant and the insured in order to create coverage where there is none; and

(3) Whether the insured has resources independent of insurance, so that it would be immaterial to the claimant whether the insured’s conduct was covered or not covered by indemnity insurance.

When we consider these factors, it is immediately apparent that the first two militate in favor of allowing the declaratory action to proceed. The actions are indeed mutually exclusive. In the words of the Higgins majority, “Either the claim is covered or it is not.” Higgins, 894 So.2d at 16. If Progressive were to succeed in its declaratory judgment action, it would be relieved of the obligation to defend the tort action. As to the second factor, certainly the contestability of the coverage issue may likewise impact settlement. See also, Conde, 595 So.2d at 1009 (Griffin, J. concurring). Higgins aptly noted that, “all parties are in a better position to enter into settlement negotiations when the decision as to coverage has been put to rest.” Higgins, 894 So.2d at 17.

While the third Higgins factor is less clear, we note that the high court said in discussing it that “the hardship of delaying the claimant in proceeding to judgment against the insured must be weighed.” Higgins, 894 So.2d at 17. Here, however, there is no necessity to delay either suit. There is nothing to suggest that the underlying tort action cannot proceed at the same time as the declaratory action. In fact, no good reason has been brought to

our attention for not allowing both cases to run their course without abatement. We conclude, therefore, that the abatement of the declaratory judgment action is a departure from the essential requirements of law in that it puts Progressive in the illogical and unfair position of having to provide a defense when the coverage issue is still very much an open question. Accordingly, we grant the petition for cer-tiorari and quash the order abating the declaratory judgment action brought by Progressive.

PETITION GRANTED.

GRIFFIN and TORPY, JJ., concur.


author: ' EVANDER, J.

text:
    Jose Jaramillo CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1639.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Defendant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ' EVANDER, J.

After a jury trial, the defendant, Jose Cruz, was convicted of two counts of aggravated battery with a deadly weapon. On appeal, he contends that the trial court erred in failing to give the jury a justifiable use of non-deadly force instruction. We agree.

On November 18, 2004, the defendant struck Austin McGreal and Elmer Chambers with his van in the parking lot of the Shady Road Lounge located in Ocala, Florida. McGreal and Chambers provided fairly consistent testimony. McGreal testified that earlier in the evening, Chambers and the defendant had a brief argument inside the Shady Road Lounge. Shortly thereafter, McGreal witnessed a physical altercation between the defendant and an unidentified individual. McGreal advised the lounge owner of the physical altercation and the lounge owner instructed the defendant and the unidentified individual to leave. Both men complied with the lounge owner’s directive.

Later that evening, McGreal saw Chambers standing in the parking lot in front of the lounge. He then saw the defendant in his van arguing with another individual. Chambers had his back to the defendant’s van and told McGreal “that guy’s back again.” McGreal then heard the sound of gravel and spinning wheels and assumed the defendant was leaving. Instead, McGreal witnessed the defendant run Chambers over, dragging him under the van. McGreal tried to help Chambers and was also hit by the defendant’s van. The defendant then struck Chambers a second time with his van. McGreal suffered significant injuries to his wrist, shoulder, and knee.

Chambers testified that earlier in the evening, he had an argument with the defendant because the defendant was walking in front of dart players instead of walking around them. Chambers also heard the lounge owner tell the defendant and the unidentified individual to leave the premises after a physical scuffle between the two. Shortly thereafter, Chambers spotted the defendant’s van parked across the street. Chambers notified the lounge owner and the two went outside. The defendant was standing in the Shady Road Lounge’s parking lot but returned to his van when he saw Chambers and the lounge owner. There was no confrontation or physical altercation.

Approximately one-half hour later, Chambers saw the defendant’s van parked in the lounge’s parking lot. Chambers heard hollering and told McGreal that “it looks like the same van that was here earlier that we told to leave.” While standing in the parking lot, Chambers was struck by the defendant’s van. When Chambers tried to stand up, the defendant ran over Chambers’ foot. Chambers’ foot, shoulder and knee were injured. The knee injury required surgery.

The lounge owner, Gary Harter, testified that Chambers and the defendant had briefly argued because the defendant kept walking in front of dart players. He further stated that he told the defendant to leave the lounge after the defendant was involved in a wrestling match with another individual. According to Harter, the defendant drove away but later returned and was watching the bar from across the street. Several minutes later, the defendant was in his van in the lounge’s parking lot. Harter was inside when he heard the “commotion” in the parking lot. He went outside and saw Chambers and McGreal on the ground. The defendant floored his van and ran over Chambers and McGreal again.

The defendant was stopped later that evening, approximately fifteen to twenty miles from the Shady Road Lounge, because he was driving erratically. The deputy who stopped the defendant testified that the defendant smelled of alcohol, had watery eyes, and was bleeding in the upper shoulder and arm area. It appeared that the defendant had been stabbed three times. There was blood on the interior of the van. The blood was located in and around the driver’s seat, including on the interior of the driver’s door. The defendant told the deputy that he had been involved in a fight in a bar. The defendant was transported by ambulance to the hospital. A paramedic’s testimony confirmed that the defendant had several stab wounds.

At the hospital, the defendant was interviewed by Investigator John Tilley. Tilley testified that the defendant stated that he had been involved in a physical altercation with two males. The defendant told Tilley that one man was choking him and the other one stabbed him. The defendant further told Tilley that he “was trying to get away, and they were hitting while he was trying to get away.” The defendant had not called the police to report that he had been attacked. Tilley further testified that the defendant was intoxicated at the time of the interview.

Significantly, there was evidence contradicting McGreal’s and Chambers’ testimony that Chambers had simply been standing in the parking lot when he was unexpectedly struck by the defendant’s van. A lounge patron, Daniel Vanorden, testified that he had seen McGreal and at least one other individual standing next to the defendant’s van by the driver’s window. It appeared that there was an argument. Another lounge patron, Katherine Garnet, testified that she had seen Chambers approach the driver’s side of the van a few minutes before the incident.

Furthermore, Tilley had taken a statement from the lounge owner, Gary Harter, on the evening in question. Harter told Tilley that Chambers and McGreal had gone to the parking lot to talk to the defendant. (At trial, Harter admitted to making such statement to Tilley, but stated it had just been an assumption on his part.) Another deputy testified that on the evening in question, McGreal’s wife told him that Chambers and McGreal had walked over to the defendant’s van to tell the defendant to leave the parking lot. (At trial, McGreal’s wife denied having made that statement.)

The defendant did not testify.

During the charge conference, defense counsel specifically requested the instruction on justifiable use of non-deadly force. The trial judge denied the request, stating:

I’m not giving it. We can give justifiable use of deadly force or you can have justifiable use of non-deadly force. I don’t see the necessity of giving both. To me it’s either one or the other. And my intention is to give justifiable use of deadly force.

Defense counsel stated that if the trial court would not give both instructions, he would request the instruction on justifiable use of deadly force. However, defense counsel maintained his objection to the trial court’s refusal to give both instructions. The trial court gave only the instruction on justifiable use of deadly force. In closing argument, defense counsel argued that the evidence supported a finding of self-defense.

Generally, a trial court’s decision to give or withhold a proposed jury instruction is reviewed for an abuse of discretion. However, in a criminal proceeding, the discretion of the trial court is rather narrow because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under the law of the state. Worley v. State, 848 So.2d 491 (Fla. 5th DCA 2003). Here, as recognized by the trial court, there was evidence to support the defendant’s self-defense theory. However, the trial judge refused to give the instruction on justifiable use of non-deadly force because he believed the use of a motor vehicle to strike an individual was, as a matter of law, the use of deadly force:

I believe the use of a motor vehicle, if a jury believes they were, in fact, run down, that that is force likely to cause death or great bodily injury.

Under Florida law, a person is justified in using deadly force in self-defense only when the person reasonably believes that such force is necessary to prevent one’s imminent death or great bodily harm or to prevent the imminent commission of a forcible felony. Non-deadly force may be used when and to the extent that a person reasonably believes that the use of force is necessary to defend one’s self or another against the imminent use of unlawful force. § 776.012, Fla. Stat. (2004); see also DeLuge v. State, 710 So.2d 83, 84 (Fla. 5th DCA 1998). “Deadly force” is defined by statute as force likely to cause death or great bodily harm. § 776.06(1), Fla. Stat. (2004). A defendant is engaged in the use of deadly force where the natural, probable, and foreseeable consequences of the defendant’s acts are death. See DeLuge, 710 So.2d at 84; Garramone v. State, 636 So.2d 869, 871 (Fla. 4th DCA 1994). The proper focus is on the nature of the force used by the defendant and not the end result. See DeLuge, 710 So.2d at 84; Garramone, 636 So.2d at 871.

If the type of force used is clearly deadly or non-deadly as a matter of law, only the applicable instruction should be given. DeLuge, 710 So.2d at 84. Where the evidence at trial does not establish that the force used by the defendant was deadly or non-deadly as a matter of law, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force. Id.; see also Mathis v. State, 973 So.2d 1153, 2006 WL 3017251 (Fla. 1st DCA Oct. 25, 2006), rev. denied, 954 So.2d 1156 (Fla.2007); Mathews v. State, 799 So.2d 265 (Fla. 1st DCA 2001). Weighing the evidence is the sole prerogative of the jury and the trial court should decide whether to give an instruction without weighing the evidence. Mathews, 799 So.2d at 266.

In Florida, the only type of force that has been held to be deadly as a matter of law is the discharge of a firearm. See Mathis, 973 So.2d at 1156; Mathews, 799 So.2d at 266; DeLuge, 710 So.2d at 84; Garramone, 636 So.2d at 871. The force involved in the use of a motor vehicle to strike an individual has been held to present a jury question as to whether the force was deadly. Cooper v. State, 573 So.2d 74 (Fla. 4th DCA 1990) (whether car traveling at a decent rate of speed is deadly force was jury question).

While we recognize that the use of a motor vehicle to strike an individual would normally be found to constitute the use of deadly force, we can envision circumstances in which a jury could reasonably find otherwise. In the present case, the jury should have been given both instructions so that it could evaluate whether the force used was deadly or non-deadly and whether its use was justified.

REVERSED.

SAWAYA and TORPY, JJ., concur.

      . No knife was found during the investigation.


text:
    Gilberto LUGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3720.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Gilberto Lugo appeals from his judgment and thirty-year sentence on the charge of lewd or lascivious molestation (child under age 12). We affirm the conviction and sentence. Only one issue was preserved for appellate review, and we will briefly address that issue.

At trial, the father of the victim testified that he basically caught Lugo molesting his child. However, when the State called the victim to testify, she began crying when asked about the incident, and could not answer questions because of her emotional state. Additionally, the prosecutor did not attempt to offer the child’s out-of-court statements confirming the sexual abuse. As its last witness, however, the prosecutor called a child protection team (“CPT”) interviewer, and asked about out-of-court answers given by the child that would tend to show that the victim could accurately relate to others matters that she had personally observed, and that she understood what it meant to be truthful. These were standard questions, such as asking the child to describe the color of an object, and then confirming that the child understood that it would not be truthful to say that the object was a different color. The only alleged error preserved for appellate review is the admission of this testimony over the defense’s hearsay objection. As the prosecutor argued at trial, and the trial court found, this testimony did not involve hearsay because the child’s out-of-court statements were not being offered to prove the truth of the matters asserted in the child’s responses to the questions posed. See § 90.801(l)(c), Fla. Stat. (2006). Rather, the child’s responses were offered to show that the child could accurately relate to others matters that she personally observed.

Under the circumstances, however, the testimony may have been objectionable on other grounds. Because the jury heard no testimony from the child, hearsay or otherwise, relating to any fact in dispute at trial, the child’s ability to accurately explain things that she observed would appear irrelevant. However, because the only objection made at trial was a hearsay objection, and the trial court correctly overruled that objection, there is no basis for appellate relief. See, e.g., Pope v. State, 646 So.2d 827, 828 (Fla. 5th DCA 1994). Because the other errors alleged in Lugo’s brief were not objected to at trial either, and do no constitute fundamental error, we must affirm. Carratelli v. State, 961 So.2d 312, 325 (Fla.2007). If a remedy exists at all, it will be through appropriate postcon-viction proceedings.

AFFIRMED.

THOMPSON and TORPY, JJ., concur.


text:
    Robert L. KUDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1786.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.
    Robert L. Kuder, Raiford, pro se.
    No Appearance for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing, withdraw the per curiam decision rendered on October 23, 2007, and substitute the following opinion in its place.

Robert L. Kuder appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record attachments to the trial court’s order do not conclusively refute the factual allegations of the appellant’s motion, we reverse the order and remand for an evidentiary hearing. See, e.g., Prince v. State, 964 So.2d 783 (Fla. 4th DCA 2007).

REVERSED and REMANDED.

ORFINGER, TORPY and LAWSON, JJ., concur.


text:
    Donna ELLISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3013.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.

      Donna Ellison, Florida City, pro se.
    No Appearance for Appellee.
   MONACO, J.

We reverse the order summarily denying the appellant’s motion pursuant to rule 3.850, Florida Rules of Criminal Procedure, and remand with instructions for the trial court either to attach portions of the record that conclusively establish that the appellant is not entitled to relief or for an evidentiary hearing. The issue on appeal concerns whether the appellant waived some of her jail time credit as part of a negotiated plea. Jail time credit issues may be raised in a 3.850 motion, provided the record reflects that the mov-ant has served time for which he or she was not credited. See State v. Mancino, 714 So.2d 429 (Fla.1998); Hopping v. State, 708 So.2d 263 (Fla.1998).

Here, the trial court denied the appellant’s 3.850 motion after finding that the appellant waived the credits in her plea agreement. Certainly, a defendant may waive jail time credit as part of a plea deal. See, e.g., Ryan v. State, 837 So.2d 1075 (Fla. 3d DCA 2003). The trial court, however, did not attach any portion of the record conclusively establishing that the appellant is not entitled to relief.

REVERSED and REMANDED with INSTRUCTIONS.

LAWSON and EVANDER, JJ., concur.


text:
    Zayed Eid Bakheet ALMAZROUEI, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-4043.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.

      Jack Fernandez, Marcos E. Hasbun, and Maegen Luka, of Zuckerman Spaeder LLP, Tampa, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The Petitioner has been charged with three counts of battery on a law enforcement officer, two counts of resisting with violence, one count of criminal mischief, a misdemeanor, and one count misdemeanor DUI. After a hearing, the trial court denied bond. Petitioner asserts that the trial court ignored section 907.041(4)(a), Florida Statutes (2006), asserting that none of the crimes charged constitute a “dangerous crime,” and the Petitioner does not meet the criteria for section 907.041(4)(e), Florida Statutes (2006). We agree that bond with sufficient conditions is warranted in this case. By previous order, the petition for writ of habeas corpus has been granted and the matter of bond remanded to the trial court, with this opinion to follow.

The testimony and evidence submitted below shows that the State did not file a motion for pre-trial detention, pursuant to Florida Rule of Criminal Procedure 3.132(a)(2007). It is undisputed that the crimes charged do not constitute “dangerous crimes,” which would fall under section 907.041(4)(a) and it was not established that the Petitioner meets the criteria for section 907.041(4)(c). In addition, unrefut-ed testimony was presented that there are sufficiently stringent conditions of bond available to protect the public, as well as to assure the appearance of the Petitioner at future proceedings for the offenses charged.

The petition is granted, and the order is quashed, with the matter of bond remanded to the trial court for a hearing to set the conditions for pretrial release.

PETITION GRANTED.

PALMER, C.J., THOMPSON and MONACO, JJ., concur.

      . At the bond hearing, the State agreed that since the charged violations were not life felonies, it was their understanding that bond would have to be set. However, the State argued that the Appellant's behavior concerned them and requested that the court make the conditions of bond “sufficiently stringent” to ensure the protection of the public.


author: ALTENBERND, Judge.

text:
    Michael Lee COLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4153.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2007.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Michael Lee Cole appeals his judgments and sentences for battery on a law enforcement officer, possession of burglary tools, petit theft, and two counts of burglary of a structure, claiming that he did not receive proper jail credit for time served. We affirm his judgments. Based on the State’s concession of error, we reverse his sentences, but only to the extent that the sentences award incorrect jail credit. On remand, the trial court should correct the sentence to provide 691 days’ jail credit.

Affirmed in part, reversed in part, and remanded with instructions.

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