author: VILLANTI, Judge.

text:
    Jon Paul BURNETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-738.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.
   VILLANTI, Judge.

Jon Paul Burnett appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the denial of claim one only, affirm the order as to all other claims, and remand for further proceedings.

Burnett was sentenced to fifteen years’ state prison, followed by twenty years’ probation, for two counts of lewd or lascivious conduct and 136 counts of possession of child pornography. This court overturned Burnett’s convictions for possession of child pornography, and he was later sentenced to fifteen years’ state prison for two counts of lewd or lascivious conduct.

In claim one of Burnett’s rule 3.850 motion, he alleged that his counsel was ineffective for failing to file a motion to sever the possession of child pornography charges from the two lewd or lascivious conduct charges. In response to this claim, the court ordered the State to show cause why Burnett was not entitled to relief. The postconviction court then adopted the State’s response in its entirety and summarily denied the motion.

Specifically, during a law enforcement investigation into a complaint that Burnett had engaged in inappropriate behavior with three young boys, Burnett consented to a search of his bedroom. In two separate searches, officers seized a videotape as well as several floppy discs containing more than 700 images. Burnett was charged with lewd or lascivious conduct for soliciting the victims’ performance on the videotape and 136 counts of possession of child pornography.

In denying Burnett’s claim, the postcon-viction court found that all of the charges stemmed from one course of conduct because Burnett possessed the pornographic images while engaging in the improper conduct that led to the discovery of the videotape, and therefore, severance would not have been required. However, the postconviction court’s analysis of the propriety of severance was insufficient. As noted in Roark v. State, 620 So.2d 237, 239 (Fla. 1st DCA 1993), “in child sexual molestation cases, motions to sever should be granted where offenses occurred at different times and places, involving different victims.” The Roark court further held that it was error not to sever offenses that “were related only in that they were sex offenses occurring within the same seven-month period, the victims were related to each other, and [the defendant] allegedly was guilty.” Id. In Burnett’s case, while the pornographic images were discovered in the same place as the videotape, they may represent a separate source, time, and occurrence wholly unrelated to the events that took place on the videotape. Yet, the postconviction court failed to explain or to demonstrate through record attachments how or whether these incidents were related or whether they occurred in an episodic sense. See Shermer v. State, 935 So.2d 74, 76 (Fla. 4th DCA 2006) (citing Garcia v. State, 568 So.2d 896, 899 (Fla.1990)); see also Ellis v. State, 622 So.2d 991, 999 (Fla.1993) (holding that there must be a “meaningful relationship” between or among the charges before they may be tried together).

The postconviction court also denied Burnett’s claim based on the alternative finding that even if trial counsel had moved to sever the charges, the evidence would have been admissible pursuant to section 90.404(2)(a) or (b), Florida Statutes (2001). Section 90.404(2)(a) provides for the admission of character evidence of other crimes, wrongs, or acts as similar fact evidence “when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Subsection (2)(b)(l) provides that “[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.”

However, “relevancy is the threshold question” for the admissibility of Williams rule evidence. Foreman v. State, 965 So.2d 1171, 1174 (Fla. 2d DCA 2007). In Foreman this court observed that

“the similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be ‘substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.’ ”

Id. (quoting McLean v. State, 934 So.2d 1248, 1259 (Fla.2006)). Moreover, “[t]he characteristics of the crimes must be so unique as to constitute ‘fingerprint’ evidence.” Kulling v. State, 827 So.2d 311, 314 (Fla. 2d DCA 2002) (citing State v. Savino, 567 So.2d 892, 894 (Fla.1990)). In Roark, the court held that “[w]hen collateral crime evidence is introduced, evidence of the separate crime may not become a feature of a trial.” 620 So.2d at 240. The Florida Supreme Court has cautioned that evidence of one crime may “tip the scales” of guilt on the other crimes. See Crossley v. State, 596 So.2d 447, 450 (Fla.1992).

The State’s contention that this evidence would have been admissible character evidence is flawed as it fails to establish relevancy by demonstrating the similarity between the two acts. It also misapplies section 90.404(2)(b)(2)’s requirement that the admission of other crimes evidence must be an act of child molestation as defined by section 794.011 or section 800.04, Florida Statutes (2001); possession of child pornography is not defined as one of these prescribed acts. The postconviction court’s reliance on this finding in denying Burnett’s claim must be rejected.

Finally, the State argued in its response to Burnett’s motion that the record, particularly the videotape, refuted Burnett’s claim of prejudice. The State argued that the videotape constituted overwhelming evidence and that any error in the admission of other pornographic images was harmless. The postconviction court adopted the State’s response and added that “attached to this Order are the record documents necessary to support such a conclusion.”

Burnett’s contention that the jury was shown over 100 ultimately inadmissible pornographic images, one at a time and before the jury viewed the videotape, sufficiently alleges prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In reviewing the State’s response, the postconviction court’s order, and the limited portions of the record that have been provided to us, we cannot agree that Burnett’s claim is conclusively refuted by the record. Therefore, we reverse and remand for an eviden-tiary hearing on the claim of ineffective assistance of counsel for failure to file a motion to sever.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and WALLACE, JJ., Concur.

      . Burnett v. State, 848 So.2d 1170, 1171 (Fla. 2d DCA 2003) (reversing the child pornography convictions because the search warrant pursuant to which the images were seized was "fatally defective”).

      . Although the postconviction court's order incorrectly cites this provision as "Fla. R. Crim. P. 90.404 (2005),” we address its finding pursuant to section 90.404, Florida Statutes (2001).

      . 'Williams v. State, 110 So.2d 654 (Fla. 1959).


source: Caselaw Access Project

author: WALLACE, Judge. ALTENBERND, Judge,

license: Public Domain

text:
    Jeysar VELAZQUEZ, a/k/a Jeysar Velasquez, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1414.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.
   WALLACE, Judge.

Jeysar Velazquez appeals the postcon-viction court’s order that summarily denied his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. Because the record attachments to the order under review do not conclusively refute Mr. Velazquez’s claims, we reverse the postcon-viction court’s order and remand for further proceedings.

I. BACKGROUND

Mr. Velazquez pleaded guilty to three counts of trafficking in cocaine in circuit court case numbers 03-7136, 03-7528, and 03-7529. On August 2, 2004, the circuit court sentenced him to fifteen years’ imprisonment in each case. The sentences were designated to run concurrently. Mr. Velazquez’s sentence in case number OS-7136 was subject to a fifteen-year mandatory minimum term because the quantity of cocaine involved was more than 400 grams. § 893.135(l)(b)(l)(c), Fla. Stat. (2002). The sentences in the other two cases included three-year mandatory minimum terms because the quantities of cocaine involved were 28 grams or more but less than 200 grams. § 893.135(l)(b)(l)(a).

II. THE POSTCONVICTION MOTION

In July 2006, Mr. Velazquez filed a timely motion under rule 3.850 seeking to withdraw his guilty pleas. The postconviction court summarized Mr. Velazquez’s two grounds for relief as follows: (1) ineffective assistance of counsel for failure to properly advise Mr. Velazquez of the defense of entrapment and (2) ineffective assistance of counsel for failure to properly advise Mr. Velazquez of the sentence he would receive. The postconviction court attached copies of Mr. Velazquez’s three judgments and sentences to its order denying the motion, but it did not attach a transcript of the plea colloquy. We will discuss separately each of the grounds alleged in the motion.

III. DISCUSSION

A. The Absence of a Requirement to Allege a “Viable” Defense

In the first ground of Mr. Velazquez’s motion, he alleged that counsel failed to properly advise him of the entrapment defense. The postconviction court denied this ground because the allegations were “conclusory and lacking in factual support.” In support of its ruling, the post-conviction court concluded that “[i]n order to maintain a claim of ineffective assistance of counsel in connection with either a nolo contendere or guilty plea, a complaining defendant must show that he, in fact, had a viable defense,” quoting Siegel v. State, 586 So.2d 1341, 1342 (Fla. 5th DCA 1991) (emphasis added by the postconviction court). Although the postconviction court quoted the Siegel case accurately, Mr. Velazquez was not required to allege a “viable” defense in order to state a facially sufficient claim for relief on this ground. In Siegel, the Fifth District relied in part on the Third District’s decision in Diaz v. State, 534 So.2d 817 (Fla. 3d DCA 1988). But the Third District’s holding in Diaz was specifically disapproved by the Supreme Court of Florida in Grosvenor v. State, 874 So.2d 1176, 1180-81 (Fla.2004).

Under Grosvenor’s analysis, the defendant is not required to establish that, if the plea had not been entered, he or she would have prevailed at trial. Id. Instead, the viability or merit of an asserted defense “is relevant to the credibility of the defendant’s assertion that he would have insisted on going to trial.” Id. at 1181. In other words, the postconviction court should have focused on whether a reasonable probability exists that Mr. Velazquez would have insisted on going to trial, considering the totality of the circumstances, and not whether he could allege in his motion that he had a viable defense to the charges. The totality of the circumstances includes a consideration of “whether a particular defense [is] likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.” Id. at 1181-82. Here, the postcon-viction court failed to address the totality of the circumstances, and the record attachments to its order are insufficient to refute Mr. Velazquez’s claim.

B. Incorrect Advice Concerning Sentencing

On his second claim of ineffective assistance of counsel, Mr. Velazquez alleges that defense counsel advised him that he “would receive a minimum sentence of 15 years or less because his scoresheet points would be around 80 points [but] the defendant received a maximum mandatory sentence of 15 years” in prison. (Emphasis added.) Mr. Velazquez was, indeed, sentenced to the mandatory minimum of fifteen years in one case and concurrent mandatory minimum terms of three years in each of the other two cases. However, the record attachments do not show conclusively that he was ever advised that he faced a mandatory minimum sentence of fifteen years under section 893.135(l)(b)(l)(c), which would preclude any consideration of a lesser sentence. Mr. Velazquez’s request to be resentenced “according to the sentencing guidelines and scoresheet” further suggests either the receipt of incorrect advice or a misunderstanding concerning the mandatory minimum sentence that he ultimately received. Although the allegations of Mr. Velazquez’s motion are less than precise, he alleges a facially sufficient claim that he believed that he would face fifteen years or less based on counsel’s advice concerning his scoresheet rather than fifteen years or more as required by the applicable statute.

The record attachments to the postconviction court’s order are insufficient to refute Mr. Velazquez’s claim. For example, we do not know whether the circuit court inquired about whether defense counsel made representations to Mr. Velazquez concerning the length of his potential sentences before accepting the pleas. See Johnson v. State, 757 So.2d 586, 587 (Fla. 2d DCA 2000) (citing State v. Leroux, 689 So.2d 235 (Fla.1996)). While a possible sentence of “fifteen years or less” does not preclude the “mandatory sentence of 15 years” that Mr. Velazquez actually received, his motion should be considered based on the extent to which he relied on counsel’s advice, if any, concerning the possibility of a lesser sentence in deciding to plead guilty rather than proceed to trial.

IV. CONCLUSION

Accordingly, we reverse the order summarily denying Mr. Velazquez’s motion and remand for the postconviction court to reconsider his claims. Unless the complete record conclusively refutes Mr. Velazquez’s claims, the postconviction court shall conduct an evidentiary hearing. If the postconviction court again summarily denies Mr. Velazquez’s claims, it must attach portions of the record that conclusively demonstrate that Mr. Velazquez did not rely on the incorrect advice of counsel. See Chandler v. State, 843 So.2d 1046, 1047 (Fla. 2d DCA 2003).

We warn Mr. Velazquez, as we have warned others before him, that if he is allowed to withdraw his plea, he assumes the risk of receiving a harsher sentence. See Jones v. State, 834 So.2d 226, 227 (Fla. 2d DCA 2002) (citing Mitchell v. State, 521 So.2d 185, 187 (Fla. 4th DCA 1988)).

Reversed and remanded.

DAVIS, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in the court’s decision with some reluctance. Mr. Velazquez contends that his lawyer was ineffective because he discouraged Mr. Velazquez from going to trial exclusively to raise a theory that he was subjectively entrapped into selling cocaine to undercover officers on not one, but three separate occasions. The trial court attached little to its order denying this motion, but the motion itself gives little information to suggest that Mr. Velazquez had any chance of prevailing upon this difficult theory. See State v. Henderson, 955 So.2d 1193, 1194-95 (Fla. 4th DCA 2007) (discussing that before a jury can hear the defense of subjective entrapment, the defendant bears the burden to show inducement and a lack of predisposition to commit the offense). If properly advised by counsel, the likelihood that Mr. Velazquez would have admitted his role in these three transactions and taken on the burden to prove that he was entrapped' — -facing the possibility of ninety years in prison with twenty-one years of minimum mandatory sentences — seems highly unlikely when he had the option to plead guilty and receive concurrent minimum mandatory sentences. Because one of these offenses involved 400 or more grams of cocaine, the shortest legal sentence that he could possibly receive was fifteen years’ imprisonment.


author: PER CURIAM.

text:
    Latara Nichole ELDER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3992.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

In this Anders appeal, Latara Elder’s appellate counsel raises a minor sentencing issue. When Elder violated her probation, the court revoked her probation and sentenced her on all three counts even though counts one and two previously had been nolle prossed. In response to a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), the trial court properly vacated the sentence on counts one and two but failed to correct the order of revocation of probation, which continues to show that Elder’s probation was revoked on all three counts. We therefore remand with directions that the trial court enter a corrected revocation order removing all reference to counts one and two.

Affirmed and remanded.

FULMER, DAVIS, and KELLY, JJ., ' concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: DAVIS, Judge.

text:
    David William SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3495.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

David William Smith contends, and the State concedes, that his convictions for attempted first-degree premeditated murder and attempted felony murder improperly placed him in double jeopardy because they both involved the same attempted killing. We agree.

Smith pleaded guilty to attempted first-degree murder, attempted felony murder, armed burglary, and attempted robbery with a firearm. Although the entry of a plea and a subsequent adjudication of guilt generally precludes a later double jeopardy attack, double jeopardy may be raised under the following circumstances: (1) where the defendant entered a general plea, (2) where the double jeopardy violation is apparent on the face of the record, and (3) where nothing in the record indicates that the defendant waived his right to claim a double jeopardy violation. See Novaton v. State, 634 So.2d 607, 609 (Fla. 1994).

The instant case meets the Novaton three-part test. Smith entered a general plea, the double jeopardy violation is apparent on the face of the record, and nothing in the record indicates that Smith waived his right to claim a double jeopardy violation. Accordingly, Smith is not precluded from raising double jeopardy as an issue on appeal.

Smith’s double jeopardy challenge is premised on the fact that two of his convictions, attempted first-degree murder and attempted felony murder, both arose out of the same attempted killing. Because the prohibition against double jeopardy precludes dual convictions for the same criminal act, we cannot allow both convictions to stand. Accordingly, while we affirm Smith’s other convictions and sentences, we reverse Smith’s attempted felony murder conviction and sentence and remand with directions to the trial court to vacate that conviction in accord with this opinion. See McCoy v. State, 942 So.2d 919, 920 (Fla. 2d DCA 2006).

Affirmed in part and reversed in part.

ALTENBERND and STRINGER, JJ., Concur.


author: NORTHCUTT, Chief Judge.

text:
    Tonja STAIRS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-177.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.
    James Marion Moorman, Public Defender, and Tanya M. Dugree, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Chief Judge.

Tonja Stairs challenges her conviction for removing a minor from the State of Florida during a dependency proceeding. See § 787.04(3), Fla. Stat. (2003). Stairs, through her appellate counsel, asserts that her trial counsel was ineffective on the face of the record for neglecting to ask for a jury instruction on a specific defense. She also claims that the court committed fundamental error by failing to give the same jury instruction, even though it was not requested. Finally, she alleges fundamental error in the written jury instructions. After we reviewed the record, we directed the parties to submit supplemental briefs on yet another potential issue involving fundamental error: whether the State failed to present evidence that a crime had been committed. Trial counsel’s boilerplate motion for judgment of acquittal did not preserve this issue for our review.

After thoroughly examining the briefs, the supplemental briefs, the record, and the law, we have determined that Stairs’s complaints about her trial do not rise to the level of fundamental error. See F.B. v. State, 852 So.2d 226, 229-31 (Fla.2003). And while we question some of counsel’s actions and inactions at trial, we are unable to determine from the face of the record that they constituted ineffective assistance. Such issues are properly raised in a motion pursuant to Florida Rule of Criminal Procedure 3.850. Our affirmance in this direct appeal is without prejudice to Stairs’s right, if any, to file a timely motion under that rule.

Affirmed.

CASANUEVA and SILBERMAN, JJ., Concur.


text:
    Dean Roderick SPEER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1677.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 2008.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Grice v. State, 967 So.2d 957 (Fla. 1st DCA 2007).

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


author: WOLF, J. VAN NORTWICK, J., BROWNING, C.J.,

text:
    Robert N. CHURCHVILLE and Joyce Churchville, his wife, Appellants, v. GACS INCORPORATED, Ryder Automotive Operations, Inc., d/b/a Delavan, Ryder Automotive Carrier Group, Inc., and Ryder Automotive Carrier Services, Inc., Appellees.
    No. 1D04-2631.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2008.

      Robert B. Guild and Floyd L. Matthews, Jr., of Spohrer, Wilner, Maxwell & Matthews, Jacksonville, for appellants.
    Michael G. Tanner and Timothy J. Conner, of Holland & Knight LLP, Jacksonville, for appellees.
   WOLF, J.

Robert Churchville and Joyce Church-ville appeal from a final summary judgment against them in their tort action against GACS, Inc. (GACS). The Church-villes claim that the term “affiliate,” as used in the Resignation Agreement, Waiver and Release (Release), which settled Mr. Churchville’s workers’ compensation claim against his employer for injuries sustained in the same accidents giving rise to his tort action against GACS, was ambiguous and, thus, did not relieve GACS of liability. The Churchvilles also assert that the language of the Release was inapplicable to their pending tort claim. We determine that the term “affiliate,” as used in the context of the Release, was unambiguous and that the specific language of the Release applied to tort claims. We, therefore, affirm the final summary judgment.

On June 7, 1999, Robert and Joyce Churchville filed a personal injury claim against GACS; Ryder Automotive Operations, Inc. (RAO), d/b/a Delavan Industries, Inc. (Delavan); Ryder System, Inc. (Ryder System); Ryder Automotive Carrier Group, Inc. (RACG); and Ryder Automotive Carrier Services, Inc. (RACS). The complaint alleged that on February 5, 1996, while employed as a car carrier driver by Commercial Carriers, Inc. (Commercial Carriers), n/k/a Allied Systems, Ltd. (Allied Systems), Mr. Churchville suffered personal injuries while loading or unloading and while tying or untying a vehicle on a Delavan car carrier/trailer utilizing a manual ratchet tie-down system. The complaint alleged that a second injury oc-eurred on December 3, 1997, when Mr. Churchville (then employed by successor entity Allied Systems) was tying/untying another vehicle on a Delavan car carrier utilizing a ratchet tie-down system. On February 4, 2000, the Churchvilles filed an amended complaint relative to the two accidents.

GACS is the surviving corporation after a series of mergers among the corporate parties to this case: Delavan merged into RAO in 1991; RAO and RACS merged into Allied ACS, Inc., in 1998; and the name subsequently was changed to GACS. GACS admits “it is the responsible party for any liability of [the named parties RAO, d/b/a Delavan; RACG, and RACS] in this suit.”

Mr. Churchville filed workers’ compensation claims against Commercial Carriers and Allied Systems for the 1996 and 1997 injuries. The claims were settled in April 2000 (ie., after the tort lawsuit was filed) pursuant to the Release which was signed by Mr. Churchville and by an “authorized agent” of Commercial Carriers, n/k/a Allied Systems, on April 28, 2000. Mr. Churchville’s attorney participated in the settlement transaction, including the execution of the Release, which was drafted and prepared by the lawyer representing Mr. Churchville’s employer and its workers’ compensation carrier. The opening paragraph of this Release states,

COMMERCIAL CARRIERS, INC., n/k/a ALLIED SYSTEMS, LTD., as well as ALLIED SYSTEMS, LTD. and its subsidiaries, affiliates, parent companies, and their directors, officers, successors, assigns, transferees, employees, representatives, and agents, both current and former, and both individually and collectively (all hereinafter referred to as “AS”) and ROBERT N. CHURCHVILLE and his heirs, assigns, executors and administrators, (hereinafter collectively referred to as “CHURCHVILLE”) enter into this Resignation Agreement, Waiver and Release (hereinafter “Agreement”) effective the date on which the Joint Petitions and Stipulations pertaining to the settlement of CHURCHVILLE’S workers’ compensation claims arising out of the accident he sustained while working for COMMERCIAL CARRIERS, INC., n/k/a ALLIED SYSTEMS, LTD on FEBRUARY 5, 1996 and the accident he sustained while working for ALLIED SYSTEMS, LTD. on DECEMBER 3, 1997 are approved by a Judge of Compensation Claims.

(Emphasis added.)

The Release does not specifically define “affiliates” or mention GACS. The major issue before us is whether GACS is an affiliate of Allied Systems and covered by the Release.

At the time Mr. Churchville executed the Release in April 2000, an entity known as Allied Holdings, Inc. was the “parent of the Allied subsidiaries.” Allied Holdings, Inc. owned 100% of the stock of Allied Automotive Group, Inc. (AAG), and Mr. Churchville’s employer, Allied Systems, and GACS were each a subsidiary of AAG. AAG owned 100% of the stock of GACS, and it owned an 80% partnership interest in Allied Systems. This can be expressed diagrammatically as follows:

GACS and Allied Systems have been characterized by the Churchvilles as “sister” entities.

“The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.” Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). Whether an agreement is ambiguous is a pure question of law the resolution of which is to be reviewed de novo. See Dows v. Nike, Inc., 846 So.2d 595, 601 (Fla. 4th DCA 2003).

“The validity and effect of a settlement and release are governed by contract law.” Travelers Inc. Co. v. Horton, 366 So.2d 1204, 1205 (Fla. 3d DCA 1979). A court may look beyond the language of a contract only when the document’s terms are ambiguous. See Plumpton v. Cont’l Acreage Dev. Co., Inc., 830 So.2d 208, 210 (Fla. 5th DCA 2002).

The Churchvilles assert that the term “affiliates” creates an ambiguity; thus, GACS cannot assert protection from the release granted to Allied Systems. The term “affiliate” is defined as “[a] corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent or sibling corporation.” Black’s Law Dictionary 59 (7th ed. 1999). That definition clearly describes the relationship between the sister corporations GACS and Allied Systems.

The Churchvilles offer several definitions which exclude sibling corporations and include only parents and subsidiaries. They assert that this creates an ambiguity. We must, however, determine whether ambiguity exists in the context of the document. The release is in favor of Allied Systems, “its subsidiaries, affiliates, [and] parent companies.” Because the term “affiliates” is expressly listed in the Release in a series along with Allied Systems’ “subsidiaries” and “parent companies,” the statutory construction principle known as noscitur a sociis (it is known by its associates) supports the conclusion that “affiliates” are neither subsidiaries nor parent companies. See People ex rel. Lungren v. Superior Court of the City & County of San Francisco, 14 Cal.4th 294, 58 Cal.Rptr.2d 855, 926 P.2d 1042, 1050 (1996) (noting that, “ ‘[i]n accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list’ ”) (quoting Moore v. California State Bd. of Accountancy, 2 Cal.4th 999, 9 Cal.Rptr.2d 358, 831 P.2d 798, 805 (1992)). In other words, one may presume that the drafters of the Release did not include a pointless term in the series. See Hillsborough County v. Fla. Rest. Ass’n, Inc., 603 So.2d 587, 590 (Fla. 2d DCA 1992) (“We must assume that the legislature did not enact a pointless provision.”). “Language in a document is ambiguous when it is uncertain in meaning and may be fairly understood in more ways than one and is susceptible of interpretation in opposite ways.” Barnett v. Destiny Owners Ass’n, Inc., 856 So.2d 1090, 1092 (Fla. 1st DCA 2003) (relying on Friedman v. Virginia Metal Prods. Corp., 56 So.2d 515, 517 (Fla.1952)).

The Churehvilles ask this court to accept that these two entities sharing the same parents are not affiliates. We are unable to come up with another reasonable interpretation in the context of this Release.

The Churehvilles further assert that the Release was not intended to resolve the pending tort claim against GACS. While the Release does not specifically mention the pending tort claim, the language of the Release belies the assertion that the tort claim was not to be covered by the Release.

The instant tort claim was related to and arose out of Mr. Churchville’s employment. The recital clause specifically states that Mr. Churchville “wishes to waive all claims arising from his employment.” The release provision itself states that Mr. Churchville “[w]aives and releases and forever discharges ... all claims, rights and causes of action, in law or in equity, of any kind whatsoever, ... whether such claims, rights or causes of action are now known or later discovered.” This provision further dictates, “The claims, rights, and causes of action covered by this waiver and release include, but are expressly not limited to ... any other claim, right or cause of action founded in tort....” The language of the Release is clear and unambiguous. We are unable to rewrite the clear and unambiguous terms of a voluntary contract. See Med. Ctr. Health Plan v. Brick, 572 So.2d 548, 551 (Fla. 1st DCA 1990). Moreover, this rule applies even when contractual terms bind a party to a seemingly harsh bargain:

Contracts are to be construed in accordance with the plain meaning of the words contained therein.... It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain .... A fundamental tenet of contract law is that parties are free to contract, even when one side negotiates a harsh bargain.

Barakat v. Broward County Hous. Auth., 771 So.2d 1193, 1195 (Fla. 4th DCA 2000) (emphasis added) (internal citations omitted).

BROWNING, C.J., dissents -with written opinion.

VAN NORTWICK, J., concurs with separate opinion.

VAN NORTWICK, J.,

concurring.

I concur with Judge Wolfs opinion affirming the final summary judgment under review. I do not reach this result, however, by using the statutory construction principle of noscitur a sociis, although I note that the record reflects that counsel for GACS made this argument below. In my view, the term “affiliate” in the release before us is clear and unambiguous and I find no necessity to resort to statutory construction.

The mere fact that a contract fails to define a term does not, by itself, render that language ambiguous. Gen. Star Indem. Co. v. West Florida Village Inn, Inc., 874 So.2d 26, 80 (Fla. 2d DCA 2004); see, generally, Richard A. Lord, 11 Williston on Contracts § 30:4 (4th ed. 1999) (“ambiguity does not necessarily exist simply because a contract ... fails to define a term.... ”). Further, the definition of the term “affiliate” has become generally accepted in the corporate law context. As Judge Wolf notes, Black’s Law Dictionary defines “affiliate” as “[a] corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation.” Black’s Law Dictionary 63 (8th ed. 2004). I believe that this definition is derived from the definition of “affiliate” in the federal securities laws. In rule 405 adopted under the Securities Act of 1993, an affiliate is defined as “a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.” 17 C.F.R. § 230.405. This definition, in substance, has found its way into general corporate law, including the Florida Business Corporation Act, see section 607.0901(l)(a), Florida Statutes (2007) (“ ‘Affiliate’ means a person who directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, a specified person.”), and the Model Business Corporation Act, see Model Business Corporation Act § 13.01 (“ ‘Affiliate’ means a person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with another person.... ”).

Because the term “affiliate” in the release unambiguously includes GACS, the sibling corporation of Allied Systems, the release precludes an action against GACS and the summary judgment must be affirmed.

BROWNING, C.J.,

dissents.

I agree with the majority that the actual word “affiliate” is ambiguous, but I disagree that the principle of noscitur a soci-is cures such ambiguity. Thus, I am compelled to dissent from the majority opinion, because 1) it overlooks long recognized rules of construction that are more likely to produce a correct and just result reflecting the intent of the parties than the juxtaposition of words used by the majority to support such opinion, and 2) it overlooks permissible inferences in Appellants’ favor that preclude entry of a summary judgment here.

There is one overarching factor that vividly reveals the logical and legal unsoundness of affirming the summary judgment here. It is clear from the majority opinion, the parties’ briefs, and the parties’ statements during oral argument that the word “affiliate” is ambiguous and can be saved only by applying the principle of noscitur a sociis. This principle presupposes that Alied Systems’ attorney, when preparing the Release, arranged the words to effect the meaning attributed to “affiliate” by the majority opinion and that the preparer understood and Appellant, Robert N. Churchville, and his attorney understood that “affiliate” means “sibling” rather than its traditional meaning, “subsidiary,” which has its genesis in ancient Latin. If such precise semantical ordering was engaged in, one would expect argument on the issue by the parties in the trial court, in their briefs here, and during oral argument. To the contrary, the principle of noscitur a sociis has never been mentioned by the parties in this case. The parties will learn for the first time what is wrought by the Release, when they read the majority opinion. I think it is plausible to assert from these circumstances that the principle of noscitur a sociis was never a consideration of the parties and does not afford any logical or legal basis for affirmance of the summary judgment. Yet, despite this overarching factor, there are other factors that also mandate a reversal.

It is a recognized principle of law, that when a contract contains an ambiguity, it is construed against the document’s author, Allied Systems, a sibling corporation. See City of Homestead v. Johnson, 760 So.2d 80 (Fla.2000); Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098 (Fla. 5th DCA 2006); Russell v. Gill, 715 So.2d 1114, 1116 (Fla. 1st DCA 1998). All of the reasons that require this court to resort to the principle of noscitur a sociis were caused by Appellee GACS’ sibling corporation, Allied Systems’ failure to define the word “affiliate” or employ the words “sibling corporations” or “sister corporations,” or their equivalent, in the Release. Appel-lee, which is bound by its sibling corporation, Allied Systems’ action, should not be absolved from that responsibility by this Court’s affirming rather than reversing the summary judgment.

In any case, the majority, in applying the principle of noscitur a sociis, overlooks a consideration that far outweighs the persuasive benefit derived from that principle here and is based on common practice among all personal injury attorneys: that Appellant Joyce Churchville, wife of Appellant Robert Churchville, was not a party to the Release, and she is indispensable to a complete release of his tort claim. If a litigant intends to settle a personal injury claim, the injured party’s spouse is always a party to the release; otherwise, his or her consortium claim remains unsettled and the tort claim continues. Before becoming a judge, I practiced, in part, substantial personal injury law for 35 years, and I never read, prepared, had prepared for me, or ever heard of a release that did not include the injured party’s spouse as a party to the release, until this case. Not including a spouse of an injured party in a release when settling a tort claim constitutes malpractice per se, in my opinion. In view of this time-honored, and necessary practice, I conclude it is highly unlikely that the parties to the Release ever intended to release any claim other than Appellant Robert Churchville’s workers’ compensation claim, where joinder of a spouse is unnecessary. This factor alone should defeat the entry of summary judgment here.

In my view, the majority places too much emphasis on the principle of noscitur a sociis, as if the preparer of the Release weighed each word with the exactness now applied by the majority. To the contrary, it is common practice for attorneys to be extravagant with words, as if the utilization of every possible descriptive word must be stated to effect the intended purpose. For example, one often finds in a release wording such as: “the plaintiffs do hereby release, disclaim, waive, exonerate, forever discharge, etc., defendant.” Such practice is unnecessary and is simply “se-mantical overkill” rather than a practice relating to the intent of a release’s author that the majority so readily divines here by overlooking this common practice. I expect attorneys to reexamine this longstanding practice if the principle of nosci-tur a sociis is applied to private contracts very often by this court.

Nor do I find a logical underpinning for the majority’s utilizing the principle of nos-citur a sociis to determine that “affiliate” takes an entirely different meaning because it is used with “subsidiaries” and “parent.” If “affiliate” has the same meaning as “subsidiary” in some dictionaries, and it does, how can it be clear and unambiguous that “affiliate” means a sibling corporation by word juxtaposition? See Am. Heritage Dictionary of the English Language 22 (New College ed.) (defining “affiliate” as “a person or organization associated with another in subordinate relationship”). This can be accomplished only by my respected colleagues’ concluding as to what the preparer of the Release was thinking when he or she prepared the Release and selected the order of the words used. Such an approach is rank speculation that is unsanctioned by precedent and contrary to the proper construction of a release or any contract. If “subsidiary” and “affiliate” are synonymous, depending upon the dictionary utilized, neither can take meaning from the other; thus, their joint use was simply cumulative.

Since the majority opinion places great importance on semantical ordering, it seems to me that the root meaning of the word “affiliate” is germane. The word “affiliate” derives from the Medieval Latin word “affiliate,” which means “to take to oneself as a son.” See Am. Heritage Dictionary of the English Language 22 (New College ed.). Appellee does not meet this description as a sibling corporation to the released party Allied Systems. I do not think I can be faulted for concluding that the meaning of a word as understood by Julius Caesar should not be changed by its position with other words in a document, as here.

Perhaps my disagreement with the majority opinion can best be illustrated by a comparison of what the majority opinion fails to permit when compared with the result effected by it. Appellants, in opposition to Appellee’s motion for summary judgment, filed an affidavit stating that no settlement of the tort claim was ever intended, only a workers’ compensation claim. Appellee did not dispute this claim but elected to base its summary judgment motion on the sole basis that the Release was not ambiguous, thus avoiding involved corporate officers’ testifying about the parties’ intent when entering the Release. If this court reversed the summary judgment, the ease would go back, and involved corporate officers would be forced to testify as to corporate intent about settlement of Appellants’ tort claim. Also, Appellant Robert N. Churchville’s settlement amount could be compared with those damages customarily paid in workers’ compensation cases, which are statutorily mandated, and those damages customarily paid in tort claim cases, which are authorized by statutes and general law, and such comparison could create a contra inference to Appel-lee’s position. Surely, this approach is far fairer, more likely to reach the truth, and compliant with precedent than the approach employed in the majority opinion.

Finally, I must address the majority’s opinion quotation from Barakat v. Broward County Housing Authority, 771 So.2d 1193, 1195 (Fla. 4th DCA 2000). That admonition is violated here because the summary judgment and the majority opinion effect a rewrite of the Release to produce a result never intended or contemplated by the parties, for the reasons expressed. The harsh result of barring Appellants’ tort claim is not the result of a bargained-for benefit, but an erroneous result imposed by judicial fiat.

For these reasons, I would REVERSE.

      . In fact, at the March 30, 2004, hearing on the motions for summary judgment, GACS's counsel argued that the term "affiliates” is clear within the context of the Release in that "parent companies” and "subsidiaries” are separately listed, suggesting a vertical relationship between entities, or a "parent-child” relationship, whereas "affiliates” are horizontally related entities, suggesting a "sibling” relationship.


author: KLEIN, J.

text:
    Nancy MALONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1113.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.
    Rehearing Denied March 4, 2008.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   KLEIN, J.

Appellant entered an open plea of no contest to one count of grand theft of property valued at more than $100,000 and one count of fraudulently obtaining property valued more than $50,000. Although her prison sentence was authorized by the criminal punishment code, she argues on this direct appeal from her sentence that she is unconstitutionally being imprisoned because of her inability to pay restitution. We affirm.

Appellant’s argument is based on the fact that another employee, who had committed unrelated thefts from the employer, had been given probation because of his ability to pay restitution. Before appellant entered her plea, the co-employee had repaid in full the amount he had taken, $51,800, and had received ten years probation after entering a plea with the full support of the victim of the theft, a nonprofit cemetery board of directors. Appellant was charged with taking in excess of $150,000. Because of the difference in amount, appellant was charged with first-degree grand theft, while the other employee was charged with second-degree grand theft.

At her plea hearing, appellant informed the court that the state had withdrawn a plea offer, which was contingent on appellant paying restitution, but appellant had no money to pay restitution. The court responded that the facts reflected that appellant, after she had been arrested, had actually pawned some of the items she had bought with the stolen money and then spent that money.

As a factual basis for her plea the court was informed that appellant had worked as a bookkeeper for the cemetery for about nine years and that she had engaged in an ongoing systematic course of conduct with intent to defraud the cemetery by making unauthorized personal purchases with the corporation credit card totaling about $125,000, none of which had been recovered.

Appellant argues that her rights to due process, equal protection and the prohibition against imprisonment for debt were violated by her sentence. She did not seek to withdraw her plea.

The state argues that appellant’s sentence cannot be appealed under section 921.002(l)(h), Florida Statutes, which provides:

A sentence may be appealed on the basis that it departs from the Criminal Punishment Code only if the sentence is below the lowest permissible sentence or as enumerated in s. 924.06(1).

Peterson v. State, 775 So.2d 876 (Fla. 4th DCA 2000) (noting that section 921.001(l)(h) of the Criminal Punishment Code constitutionally limits a defendant’s right to appeal a sentence).

Appellant relies primarily on P.B. v. State, 533 So.2d 883 (Fla. 3d DCA 1988), in which the defendant and a co-defendant were charged with one theft, and the state agreed to nolle pros the co-defendant when his mother agreed to pay $125 restitution. The same plea offer was made to the defendant, but he could not come up with the money, and was committed. The appellate court reversed committing the juvenile because of his inability to pay restitution explaining:

Although the State enjoys wide discretion in fashioning plea agreements, that discretion cannot be exercised to deny an indigent juvenile equal protection under the Florida and United States Constitutions. The United States Supreme Court has made it abundantly clear that “[tjhere can be no equal justice where the kind of trial a man gets depends upon the amount of money he has.” Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (quoting Griffin v. Illinois, 351 U.S. 12,19, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899 (1956)).

The state distinguishes P.B. in several ways. First, appellant and her co-employee were not co-defendants; their thefts were done individually. Second, appellant was charged with theft of a higher amount and with a higher degree of felony. Third, unlike P.B. this case did not involve dropping the charges, but rather different sentences based on pleas. We agree with the state that, assuming P.B. is correct, it is distinguishable. Appellant has failed to cite anything which would persuade us that there has been a constitutional violation which would make her sentence ap-pealable. Affirmed.

FARMER and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Lucia MILANI, as assignee of Milani and Milani Holdings, Limited, Appellant, v. PALM BEACH COUNTY and Boca Highland Center, Inc., Appellees.
    No. 4D06-4597.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.
    Rehearing Denied March 5, 2008.

      Ronnie Adili and Robert Sweetapple of Sweetapple, Broeker, Varkas & Sosin, PL, Boca Raton, for appellant.
    Gentry Denise Benjamin, West Palm Beach, for appellee Palm Beach County.
    Daniel S. Rosenbaum and Laurel R. Wiley of Becker & Poliakoff, P.A., for appel-lee Boca Highland Center, Inc.
   WARNER, J.

The trial court dismissed a final declaratory judgment and denied a petition for writ of mandamus filed by appellant to determine her rights under an agreement in which Palm Beach County purchased property from appellant for use as a county park. The agreement included a right of repurchase option which appellant claimed she was entitled to exercise if the County granted proposed easements over the premises to an adjacent property owner. Appellant argues that the court erred in dismissing the complaint, because she was entitled to a declaration of her rights even though the County had not yet granted the easement. While we agree that the court should not have dismissed the action, we conclude that the court’s factual findings and conclusions of law actually declare appellant’s rights. We therefore affirm the final judgment but remand for correction to show that appellant’s rights have been declared. We also affirm the denial of the petition for mandamus.

In 1974 Cam D. Milani and his wife Lucia, the plaintiff/appellant in this case, purchased two tracts of land on the east and west side of A1A in the Town of Highland Beach. The land to the west of the west parcel was owned by the interve-nor in this case, Boca Highland. The Mi-lanis and Boca Highland disputed the boundary of their property and ultimately entered into a settlement of the boundary provided by a survey. The survey showed various encroachments. These encroachments consisted of part of an asphalt driveway, utility boxes, and a fence. The driveway has served Boca Highland since at least 1980 and continues to exist.

Mrs. Milani agreed to sell 5.6 acres of their property to the Board of County Commissioners of Palm Beach County in 1987, including the west parcel which was the subject matter of the 1980 boundary dispute. The County and the Milanis agreed that the property was to be used as a public park named for Mr. Milani. Specifically, the agreement provided:

At such time as a County park facility is opened on the Premises, it is the intent of the Parties to name such facility in memory of Mr. Cam D. Milani. And if such facility is ever transferred to another governmental entity, the park shall remain named in memory of Mr. Milani. In the event that the County ceases using the Premises for County purposes and offers the Premises for sale, then the County shall grant to the Seller a Right.of First Refusal to repurchase the Premises at the same price and on the same terms as agreed to by the prospective purchaser and the County.

Pursuant to this paragraph, Milani’s right of first refusal vests when the County, first, “ceases using the Premises for County purposes,” and second, “offers the Premises for sale.”

Paragraph five of the agreement required the seller to provide the County with a survey. If it showed any encroachments or title objections, the County had to give written notice to the seller of any objection. The seller would convey its interest in the property in accordance with the approved survey. Paragraph six further explained the purchaser’s remedy for title defects and provided that if the title commitment contained exceptions unacceptable to the County, it must give written notice within ten days. The seller could elect to cure exceptions, but the County was not required to accept the title with any uncured title defects it found unacceptable. As the trial court noted in its final judgment, “[Tjitle defects are dealt with, and only the Purchaser (Respondent County) has any remedy. No other provision of the agreement deals with any defects in title, or encumbrances or encroachments on the land.”

After the purchase, the property sat dormant for about ten years until the County began to make plans to develop a park on the property. In 1997, while planning the park, the County became aware of the Boca Highland encroachments. Accordingly, the west parcel was again surveyed in 2000. Audrey Wolf, Director of Facilities Development for Palm Beach County, testified that the survey revealed an eight to twelve foot encroachment on the western boundary of the parcel, which included a driveway, utility boxes, and a fence, essentially the same encroachments revealed in the 1980 survey. In addition, the survey revealed an underground sewer line, pull boxes for electronics, and irrigation boxes.

As the County began its plans to develop the park in Mr. Milani’s name, Boca Highland expressed concern about the park’s impact on its property. Accordingly, Ms. Wolfs staff investigated and concluded the County should grant Boca Highland one or more easements to legitimize the encroachments. The staff also concluded that the proposed easements would not impact the park.

Boca Highland and the County began negotiations and drafted a proposal. Pursuant to the proposal, the County would grant non-exclusive permanent easements to Boca Highland to formalize the encroachments that had existed since 1980. In exchange, Boca Highland would grant the County a temporary constructive easement to facilitate the construction of the park and a permanent easement, called a “legal positive outfall,” which would allow storm water accumulated on the County’s property to flow over Boca Highland’s property.

Around the same time, the County provided Mrs. Milani with the site plans for the park. Because she noticed the site plan contained the proposed easements to Boca Highland, she objected and filed this suit for declaratory judgment and mandamus. As a result of the litigation, the County did not complete the proposed easement.

In her complaint, Milani requested the court find that her agreement with the County prohibits the granting of easements to Boca Highland, and that the granting of an easement to any third party triggers Milani’s right of first refusal with respect to either the west parcel or the encroached area. Milani also asked the court to issue a writ of mandamus against the County requiring it to eliminate all encroachments benefiting Boca Highland on the west parcel. She claimed that the County had orally promised to remove the Boca Highland encroachments at the time it purchased the property. The County filed an answer and affirmative defenses to Milani’s complaint and Boca Highland filed a motion to intervene.

This litigation put the park development process on hold. However, the County repeatedly expressed that the plan to develop the park was simply suspended. In particular, Ms. Wolf testified, “Our position has been we have suspended all activities. So we intend on building the park on the direction hopefully by these plans.”

After a multi-day trial, the trial court made findings of fact and conclusions of law. With respect to Mrs. Milani’s claim that the granting of an easement to Boca Highlands activated her right of first refusal, the court found:

The circumstances which would give rise to the Seller having a right of first refusal have not occurred, and the County’s proposed granting of non-exclusive easements to BOCA HIGHLAND in return for the substantial benefits being received by the County in return ... would not constitute such circumstances.

The court further found that the encroachments on the property were “minor.” Specifically, the court said,

Existing and contemplated easements on the Premises benefiting BOCA HIGHLAND are or will be non-exclusive, thus benefiting the park, and thereby the County and the public; as noted below, even if they were to be exclusive to BOCA HIGHLANDS, they would not adversely affect the County’s establishment or use of the park.

The court accepted the testimony of Ms. Wolf that the existing easements would not interfere with the development of the park and in fact were necessary and beneficial to the County in its development. It concluded, “This Court hereby categorically finds, and hereby holds, that the granting of the de minimis easements proposed by the County do not in any way diminish the ability of the County to establish or maintain the public park contemplated by the parties.... ”

The court also made conclusions of law. The court found that the agreement had no patent or latent ambiguity. While it did not contain any term on the subject of the County’s right to grant easements not affecting the property’s use as a park, that absence did not give the court authority to modify the contract’s terms. It concluded:

Because the easements, existing and proposed, which do and will exist under the Premises have virtually no effect on the usefulness of the Premises for a park, the principle of de minimis non curat lex applies. “[T]he test to be applied is whether the encroachment is substantial enough seriously to interfere with the use and enjoyment of the premises.” Loeffler v. Roe, 69 So.2d 331, 337 (Fla.195[4]).

With respect to Mrs. Milani’s claim that the County promised to remove the Boca Highland encroachments, the court applied the integration clause of the contract which provided: “This Agreement integrates and supersedes all other agreements and understandings of every character of the Parties and comprises the entire agreement between them.” The court determined that the clause rendered “irrelevant” any testimony as to an oral promise by the County.

Based upon its findings of fact and conclusions of law, the trial court dismissed the declaratory judgment on the ground that Milani had not established a prima facie case. As to the petition for writ of mandamus, the court denied the petition. It concluded that mandamus could be used only to enforce, and not to establish, a right. As Mrs. Milani had no right to require the removal of the encroachments under the terms of her agreement with the County, the court denied the petition. Mi-lani appeals.

Milani contends that the court erred in dismissing her claim for declaratory judgment, because she had the right for the court to construe her agreement with the County with respect to the granting of easements to Boca Highlands. With respect to a declaratory relief action, we have explained that a complainant must show

that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; [or] that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law.

City of Hollywood v. Fla. Power & Light Co., 624 So.2d 285, 286-87 (Fla. 4th DCA 1993). The standard for testing the sufficiency of a declaratory judgment complaint is set out in May v. Holley, 59 So.2d 636, 639 (Fla.1952):

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

With respect to a contract construction, however, the declaratory judgment statute provides:

Any person claiming to be interested or who may be in doubt about his or her rights under a ... contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a ... contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such ... contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

§ 86.021, Fla. Stat. (2005). The statutes also allow a contract to be construed either before or after a breach. § 86.031, Fla. Stat. (2005).

Although the trial court thought that the dispute was premature, as no easement had been granted to Boca Highlands as yet, “[t]he fact that a controversy had not matured may not always be essential. It [a declaratory judgment action] may be employed to anticipate irreparable mischief to one’s business.... ” James v. Golson, 92 So.2d 180, 182-83 (Fla.1957). We think that the controversy over the County’s power to grant an easement over its property under the terms of the contract between Milani and the County was sufficiently mature as to permit resolution through the declaratory judgment. The County intended to continue with the park, and its director of operations stated that the County wanted to proceed with its current plans after the legal dispute was resolved. If the granting of an easement to Boca Highlands were a violation of the agreement, we see no reason that the court cannot settle the contract interpretation prior to a breach or the triggering of Milani’s right of first refusal.

The trial court also determined that Milani had not proved a prima facie case because it determined that Milani did not have a right under the contract to require the County to remove the existing encroachments or to prevent the grant of the easement contemplated in the negotiations between Boca Highlands and the County. The court abused its discretion in dismissing the complaint when it should have simply entered a declaration against Milani. “The fact that the declaration must be against the interest of the complaining party, and equity may require that costs be charged against him does not destroy the right to the declaration.” May, 59 So.2d at 639.

A reading of the final judgment dismissing the complaint shows that the court actually determined Milani’s rights under the sale agreement with respect to the proposed easement even though it involuntarily dismissed her complaint. We therefore remand to the trial court to revise its final judgment to declare Milani’s rights.

The trial court did not abuse its discretion in the remaining rulings challenged by Milani, and we summarily affirm those issues. On the issue of the trial court’s denial of the motion to recuse based upon the judge’s prior representation of one of the county commissioners, we conclude that the motion was legally insufficient. The judge did not have a current confidential relationship with the county commissioner or the county commission. This distinguishes Atkinson Dredging Co. v. Henning, 631 So.2d 1129 (Fla. 4th DCA 1994), relied on by Milani, where the judge and her husband were current clients of the law firm representing one of the parties in the case. Nor did the judge have the extent of contacts with the County as were present in the relationship between the judge and one of the parties in Brown v. Graham, 931 So.2d 961 (Fla. 4th DCA 2006), the other case most strongly relied upon by Milani.

We therefore reverse the final judgment for the trial court to revise the judgment to declare the rights of Milani with respect to the proposed easements and the obligations of the County on this issue under the agreement. We affirm in all other respects.

GROSS, J., and CHUMBLEY, DOUGLAS J., Associate Judge, concur.


text:
    Robert PEREZ, Appellant, v. Laurie PEREZ, Appellee.
    Nos. 4D06-4036, 4D06-4327.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.

      Gene Reibman, Fort Lauderdale, for appellant.
    Lisa J. London of Law Offices of Mark S.London, P.A., Hollywood, for appellee.
   PER CURIAM.

Robert Perez (former husband) appeals an order denying his motion to modify his alimony and child support obligations. As grounds for the modifications, the former husband alleged he suffered a permanent reduction in his income and that one of his minor children had reached the age of majority. The trial court entered a “directed verdict” at the close of the former husband’s case, finding that the former husband had failed to present a prima facie case that his loss of income was permanent. Because the evidence showed that the former husband’s income had been severely reduced for nearly a year, with no end in sight, we reverse. We also accept the former wife’s concession of error as to the need for a child support modification upon the child reaching the age of majority.

The parties were married in 1984. They had three children of the marriage. The former wife has a college education. The former husband has only a high school education.

The petition for dissolution was filed on September 30, 1999. The former husband’s first financial affidavit, dated November 10, 1999, showed him to be employed in “Advertising media/mailing list broker.” It is undisputed that he has been in this business for at least 23 years and it is his only area of skill. His employer was Gnames Advantage, LP. He listed gross income for 1998 of $149,610.

A final judgment of dissolution of marriage was entered on July 12, 2001. Pursuant to an incorporated Marital Settlement Agreement, former husband was ordered to pay child support of $2,100 per month. The incorporated Marital Settlement Agreement imputed income of $20,000 a year to the former wife and found the former husband’s total compensation to be $250,000 per year. The former husband was ordered to pay permanent periodic alimony of $6,100 per month.

By May 2002, the former husband moved to modify the alimony and child support, alleging a “substantial financial setback” to his business, substantially reducing his income. On January 15, 2003, the former husband filed an amended financial affidavit which showed his gross monthly income to be $9,338.

In a July 24, 2003 “final judgment,” the trial court found that “since entry of the Final Judgment of Dissolution of Marriage, there has been a substantial material, involuntary and unanticipated change in circumstances in the Former Husband’s (sic) which has been substantially reduced due to a setback in the business of Gnames Advantage in which the former husband has a 37.5% ownership interest. The business has suffered a serious financial setback.” The court found that the former husband’s gross income had been reduced to $9,577.33 a month. The court also found that the parties’ oldest son had reached majority on August 29, 2002. Thus, the court reduced the former husband’s alimony roughly in half, to $3,000 a month, and reduced his child support to $1,300 per month, retroactive to the date that the oldest son turned eighteen.

On June 21, 2005, the former husband filed a new motion to modify his alimony. The motion and accompanying financial affidavit alleged a reduction in his gross income from $9,577.33 a month to $7,275.00 per month as a result of his loss of his 37.5% ownership interest in Gnames Advantage, which he had been forced to give up as part of his Chapter 7 bankruptcy proceeding.

On November 22, 2005, the former husband filed a motion to modify child support, which alleged that a second child had reached the age of majority and that the former husband had now lost his job. The fact that the middle child reached majority in November 2005 is undisputed. It is also undisputed that the former husband lost his job in September 2005 and has since started a new business.

In March 2006, the former husband filed a new financial affidavit showing total monthly gross income of $1,263. The financial affidavit showed net monthly income after deductions of minus $696 and monthly expenses of $2,758, for a net monthly deficit of $3,453. The affidavit showed a net worth of minus $87,972.

The former wife filed a new financial affidavit showing her new occupation as a real estate agent. She listed a gross monthly income of $1,000, net income of $550.00 per month, and monthly expenses of $8,300.52, for a monthly deficit of $7,750.52. The former wife listed assets of $318,706.74 and liabilities of $21,323.00.

In August 2006, the former husband filed a new financial affidavit showing that he had started a company that works on a commission basis, and that his current monthly gross income was $2,375. After deductions, his net monthly income was $190 and his total monthly expenses were $3,283, for a deficit of $3,092 per month. His total net worth was listed at minus $145,139.

The former husband testified that he was discharged from his employment at Gnames in September 2005. He received a 60-day severance. He then sought unemployment benefits as he attempted to establish a new business and seek employment. The former husband testified that he currently works out of his home. He started his new business in the direct marketing business (both direct mailing and Internet marketing) almost immediately upon being notified of the termination of his employment. He has worked full-time in the new company since then. Another company lent him $52,000 to make a go of the new business. His new company, Rap Interactive, earned approximately $2,000 in the month of July 2006. In the month of August it received $3,000. These were the first revenues the company earned. He does not know what the new company will ultimately earn. However, former husband testified that his financial situation is permanent. He explained:

The income that I used to enjoy, that over a seven to ten-year period consistently showed a pattern of decline. Which is why we’ve been back into the court several times....
I primarily have catered to direct mail marketing accounts. And the direct mail economic model has been strained for a variety of reasons, beginning with the fact that the cost of paper and postage and printing has consistently gone up. Response rates due to competition and mail saturation have gone down. Due to government regulation on what had become a fairly large industry made a number of large companies go out of business, major well-known companies, like American Family Publishers, like Fingerhut Corporation, and many other large companies have gone out of business. And the revenue began to atrophy in the trade as a result.
The mailing list generated by those large companies were not available to fuel other direct mail promotions. So the volume of direct mail started to decline for all of those reasons.
The advent of the Internet as a way to spend money to direct market has started to take hold and become a vibrant way to market. And has been competing with direct mail dollars or shares of those revenues. That has led to an awareness of multichannel marketing. So direct marketing companies that primarily used to direct mail are now spending money in multiple other channels like the Internet.
And all of those things are not going to change and reverse themselves anytime soon in the months or years to come. That is a permanent condition. It was a very clear pattern of atrophy, not just on my part, on the part of my business, but an industry-wide pattern that Mr. Batrouney can also testify to.

Regarding his attempts to find employment with another company in the industry, the former husband testified:

The problem with my type of job is that it’s sales and commission oriented. And without no established book of clients and no ongoing revenue that a perspective (sic) employer could count on, what they’re looking at is essentially paying me an accruing mountain of outgo dollars, along with funding my travel and business development expenses, with being in a business where there’s a long term time frame associated with securing accounts, booking business that’s booked into future marketing campaign dates that are collected sometime after that. There is a long lead time for revenue.
So without an established book of business, most companies are reluctant to hire someone, given that cash flow scenario that I’ve described.
So, no, I have not received offers of employment, primarily, they tell me, pretty directly for that reason.

Currently, his day-to-day needs are being provided by his new wife. He received unemployment compensation for a while, but 80% of that was used to pay alimony. He has borrowed from family members to pay child support and health insurance.

The former husband presented the expert testimony of Geoffrey Batrouney, a former employer. He has been in the mailing list business since 1982. He has written numerous articles for trade publications and lectured at dozens of conferences on the subject of mailing lists. He has testified as an expert in list marketing on four prior occasions. Batrouney testified that due to the factors identified by the former husband in his testimony, in the last five years the economic model for the mailing list business is “far tougher.” He testified that one needs an established book of clients typically within the industry to have recurring income. Unlike the mailing list business, which was relationship-based, the Internet tends to be an impersonal series of individual transactions, which is not conducive to recurring income. He does not know how much money can be made on the Internet.

When the former husband rested, the trial court granted the former wife’s motion for “directed verdict” “because there’s no permanent change that I can find based on two months.” She added, “I understand that he doesn’t have a present ability to pay what his award is.” “I have to be basing it on something other than two months that first started at $2,000 and then is up to $3,000 gross earnings for a brand-new business that includes the Internet, which is supposedly the way to go.” The court added that the former husband was “well on his way to re-establishing himself’ and cited as evidence the fact that his income had increased from $2,000 to $3,000 in one month, “A thousand dollar a month increase.” She added “for the record” that she did not find the former husband’s testimony to be credible.

In her September 1, 2006 written “final judgment” denying the former husband’s petitions, the trial court accepted that he was discharged from his employment with Gnames Advantage in September 2005. The trial court found that the former husband’s current alimony and child support obligations were being calculated based on an annual income of $114,928. She found that at the time of the filing of the supplemental petition for modification, his income was $87,300. The trial court concluded:

That the Former Husband’s testimony lacked credibility in that there was an insufficient showing of permanency to justify a modification, though intimated that the Former Husband did not have the economic ability to pay.

The decretal portion of the final judgment contained an error, but was corrected by an amended final judgment dated October 9, 2006.

A defendant’s motion for judgment at the close of the plaintiffs case in a non-jury trial is properly denominated as a motion to dismiss rather than a motion for directed verdict. Hack v. Estate of Helling, 811 So.2d 822, 823 n. 1 (Fla. 5th DCA 2002); Bottalico v. Antonelli, 695 So.2d 363 (Fla. 4th DCA 1997); Townsend v. Ward, 429 So.2d 404, 407 n. 3 (Fla. 1st DCA 1983). In reviewing the record, we must view the evidence presented in a light most favorable to the plaintiff. Hack, 811 So.2d at 823.

An involuntary dismissal is properly entered only where the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case. Id. at 825; Bottalico, 695 So.2d at 363. The trial court may not weigh and judge the credibility of the evidence. Hack, 811 So.2d at 825; Bottalico, 695 So.2d at 363; Martucci v. Green Kroll Corp., 483 So.2d 789 (Fla. 4th DCA 1986). Clearly, the trial court violated this rule by finding that the former husband’s testimony was not credible.

Where the “circumstances or the financial ability of either party changes” either party may apply to the circuit court for an order decreasing or increasing the amount of alimony. § 61.14(l)(a), Fla. Stat. (2006). In petitioning to permanently modify alimony, the moving party must show: 1) a substantial change in circumstances; 2) that the change was not contemplated at the time of the final judgment of dissolution (or, in this case, at the time of the last permanent modification); and 3) that the change is “sufficient, material, involuntary and permanent in nature.” Pimm v. Pimm, 601 So.2d 534, 536 (Fla. 1992). Only the permanency of the change is at issue in this case.

In Woolf v. Woolf, 901 So.2d 905, 912 (Fla. 4th DCA 2005), we stated:

The “permanency” of the former husband’s financial situation is not discussed by the parties or the court below. Since the condition had lasted over a year at the time of the final hearing, with no apparent end in sight, it should be deemed sufficiently permanent. See Haas v. Haas, 552 So.2d 252 (Fla. 4th DCA 1989) (finding that a physician’s loss of staff privileges and surgical practice due to alcoholism was sufficiently permanent despite fact that he had since regained his board certification).

In this case the former husband’s severe loss of income had persisted for nearly a year at the time of the final hearing, “with no apparent end in sight.” Although the trial court considered the former husband’s $1000 increase in income during the two months leading up to the hearing as evidence of his return to financial health, the evidence, when viewed as a whole, did not demonstrate this.

The trial court expressly recognized that the former husband could no longer afford to pay his alimony, yet speculated that this circumstance would change in the foreseeable future. See Brown v. Cannady-Brown, 954 So.2d 1206, 1209 (Fla. 4th DCA 2007) (holding that there must be competent substantial evidence in the record to support the level of income imputed to a spouse); see also Alois v. Alois, 937 So.2d 171, 175 (Fla. 4th DCA 2006) (noting that basic rule of fairness prevents court from ordering a parent to pay child support “which that parent cannot afford to pay”).

The former wife concedes error in the trial court’s failure to reduce the former husband’s child support payment due to a second child reaching the age of majority. This concession is well-taken. See Yockey v. Yockey, 784 So.2d 582 (Fla. 4th DCA 2001) (holding that trial court abused its discretion in not retroactively modifying child support to date of petition where child had previously reached age of majority). Moreover, the former husband may be entitled to an even further reduction of his child support for the same reasons that he appears entitled to a reduction in his alimony. Swanson v. Swanson, 888 So.2d 117 (Fla. 4th DCA 2004).

Because the trial court abused its discretion in failing to order a reduction in the former husband’s alimony and child support obligations, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

SHAHOOD, C.J., FARMER and TAYLOR, JJ., concur.


text:
    Marvin REICH, M.D., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 4D06-4019.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.
    Robert J. Conroy of Kern, Augustine, Conroy & Schoppman, P.C., New Jersey, for appellant.
    Wings S. Benton, Tallahassee, for appel-lee.
   KLEIN, J.

Appellant, an ophthalmologist, who was disciplined in this case based on part-time work he performed at a metabolic treatment center, appeals a final order of the Board of Medicine imposing a fine and limiting him to practicing ophthalmology. We reverse, because the findings were not supported by competent substantial evidence.

Although we reject appellant’s argument that the charges were barred by the statute of limitations, the time line is of interest because it may have contributed to the paucity of evidence to support or defend the charges. The initial administrative action was filed against appellant in November 2000, and involved a patient unrelated to this case. It had not been resolved by late 2004, when the board added allegations concerning ten other patients, concerning treatment rendered from 1996 through 1998. It is the treatment of four of those ten patients which was the basis of the findings against appellant. That treatment arose out of a period when appellant, a board certified ophthalmologist from Deerfield Beach, was working two days a week at the “Metabolic Treatment Center” in Fort Meyers. The charges included unnecessary diagnostic testing, failure to keep accurate records and justify treatment, and other related charges.

After several continuances obtained by appellant, the hearing before the administrative law judge took place in December 2005. The ALJ found appellant guilty only as to four patients, and the findings involved unnecessary testing and treatment for financial gain and failure to maintain adequate medical records. The problem in the case arises out of the fact that the metabolic treatment center went out of business suddenly and unexpectedly, and appellant has never been able to obtain the medical records which he testified were stored in the computers at the center.

The findings of fact indicate that appellant, in order to supplement his income from practicing ophthalmology, started seeing patients two days a week at the metabolic treatment center. These patients were typically people who had many complaints which had not been resolved by other physicians. The treatment center began having problems shortly after there was a change in ownership which culminated when, without notice, people working there were locked out and the center was closed. In September 1999 the corporation owning and operating the center was administratively dissolved by the State of Florida.

Before the corporation was dissolved, appellant and another physician sued the center to obtain the medical records and secured a court order in June 1998 requiring the center to provide the original patient records; however, no records were ever obtained despite further efforts. The Board of Medicine also attempted to obtain appellant’s medical records and was unsuccessful. Appellant did have some handwritten notes regarding the patients; however, appellant testified that these notes contained about five percent of the information appellant said he maintained in the records of the center’s computer system. Appellant had no recollection of his treatment of the four patients, which occurred from 1996 to 1998, and accordingly the only evidence available consisted of his handwritten notes and some preprinted forms he had filled out.

The key findings of the ALJ regarding the medical records were as follows:

6.Neither party disputes the fact that, while employed at the Metabolic Treatment Center, Respondent kept handwritten medical notes on each patient whom he saw. Respondent testified that these brief handwritten notes constituted less than five percent of the chart entries that he made on each patient. Respondent testified that he supplemented his handwritten notes, which he made while seeing a patient, by dictating or otherwise inputting more elaborate notes into a computer at the center. Petitioner contends that the handwritten notes were the only medical records that Respondent prepared for each patient. The Administrative Law Judge credits Petitioner’s contention.
7. Respondent attributed the loss of the more detailed medical records to the sudden termination of his relationship with the Metabolic Treatment Center and the subsequent refusal of the center’s owners to allow Respondent access to these computer-stored records. It is impossible to credit Respondent’s claim, at least to the extent of inferring the existence of extensive, detailed records for each of the patients in question.
8. Respondent knew that any data that he inputted into a computer at the Metabolic Treatment Center were in jeopardy, unless he made copies of the computer files. As a self-described “per diem” physician at the center, Respondent knew that, at anytime, he could lose access to the facility and the computer-stored data at the facility. Before his abrupt termination, Respondent had encountered growing problems with the new Metabolic Treatment Center owners. Familiar with computer hardware and software, Respondent easily could have made copies of the computer files containing the medical records of his patients, but he failed to do so, and he cannot adequately explain this failure. The “failure” is because no such more detailed records ever existed.

The burden of proof on the department in an administrative case such as this one is to establish a violation by clear and convincing evidence. Dep’t of Banking and Fin. v. Osborne Stern & Co., 670 So.2d 932 (Fla.1996). The finding of fact that appellant, a “per diem” physician working part time at the center, fabricated his testimony that medical records of these patients were stored on the computer, in light of the undisputed evidence as to the closing of the center and efforts by both parties to obtain the records, is not supported by competent substantial evidence.

The next issue we must address is whether our reversal as to the medical records leaves the remaining findings without evidentiary support. We conclude that it does.

The finding as to one of the patients, C.H., is typical of types of findings made as to all four of the patients. The ALJ found that as to C.H., the doctor had ordered nerve conduction velocity tests to rule out peripheral neuropathy of a diabetic nature, and concluded that, according to the medical records, appellant failed to address the question of diabetes. This failure, according to the ALJ, proved that the appellant never intended to act on the results of the nerve conduction velocity tests, and accordingly the tests were unnecessary and excessive. The findings underlying the sanctions for the other patients are also reliant on insufficient medical records and accordingly are not supported by competent, substantial evidence. We accordingly reverse the final order in its entirety.

POLEN and MAY, JJ., concur.


text:
    Barry L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4152.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.
    Rehearing Denied March 3, 2008.

      Barry L. Smith, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Barry Smith appeals the denial of his rule 3.800(a) motion challenging his habitual violent felony offender (HVFO) sentence. Smith argued that the prior convictions on which the state relied as predicates could not be used to qualify him as an HVFO because in each case adjudication was withheld and he successfully completed probation. See Overstreet v. State, 629 So.2d 125 (Fla.1993). Smith attached an unsigned probation order indicating that he was placed on probation and adjudication was withheld in case number 92-32777-B. In response, the state provided a certified copy of Smith’s original conviction in that case, which showed that he was adjudicated guilty of armed burglary and additional offenses. This conviction would qualify him for HVFO sentencing.

The trial court concluded that the record provided by the state refuted Smith’s claim. The court explained that the document on which Smith relied did not show he was entitled to relief because the trial court in 92-32777-B did not have jurisdiction more than three years after the original adjudication to withhold adjudication for the armed burglary. We agree. See Sanchez v. State, 541 So.2d 1140 (Fla.1989). In addition, contrary to Smith’s argument, the trial court had no authority to withhold adjudication on the armed burglary because Smith received more than one year in prison on the original youthful offender sentence imposed in 92-32777-B. As a result, he did not qualify for a withhold of adjudication. See State v. Vedace, 727 So.2d 1079 (Fla. 4th DCA 1999); State v. Davis, 721 So.2d 1243 (Fla. 4th DCA 1998); State v. Oates, 610 So.2d 522 (Fla. 2d DCA 1992).

The denial of Smith’s rule 3.800(a) motion is affirmed.

WARNER, KLEIN and TAYLOR, JJ„ concur.