text:
    Manuel M. BADIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2533.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Rehearing Denied July 24, 2006.
    Manuel M. Badia, in proper person.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Plute v. State, 835 So.2d 368 (Fla. 2d DCA 2003).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Edward L. GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1283.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.

      Edward L. Gibson, Crestview, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Edward Gibson appeals the summary denial of his rule 3.850 motion. In his post-conviction motion, Gibson alleged his trial attorney provided ineffective assistance by failing to communicate a plea offer from the State. Gibson claimed he would have accepted the offer and that it would have resulted in a lesser sentence than he received after he was convicted at trial. The circuit court denied the motion without an evidentiary hearing and without attaching any records refuting his claim.

Gibson’s motion was legally sufficient. See Cottle v. State, 733 So.2d 963, 967 (Fla.1999); Gilliam v. State, 857 So.2d 1006, 1007 (Fla. 4th DCA 2003). Accordingly, the circuit court’s order is reversed and this cause is remanded for an eviden-tiary hearing or attachment of portions of the record that conclusively refute appellant’s claim.

STEVENSON, C.J., STONE and GROSS, JJ., concur.


text:
    Harry HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-268.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.

      Carey Haughwout, Public Defender, Jeffrey N. Golant, Patrick B. Burke and Yvette Farnsworth, Assistant Public Defenders, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Harry Howard (Defendant) appeals the order denying, after evidentiary hearing, the third of four grounds raised in his motion for postconviction relief, filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. On appeal, he argues only that the trial court erred in not granting a hearing in connection with two other grounds. We affirm.

Pursuant to a negotiated plea, Defendant pleaded no contest to three counts: (I) burglary of a conveyance while armed; (II) aggravated stalking; and (III) aggravated assault (committed with a knife). He was sentenced, pursuant to the agreement, to concurrent terms of ten years for the first count and five years for each of the other two. The factual basis for the plea was that he jumped into the vehicle of the victim, his wife, who had a restraining order against him; he put a knife to her neck and forced her to drive; when she jumped from the vehicle, Defendant chased her, threw her against a tree, and beat her.

In the motion, Defendant alleged he told his attorney he was never served notice of the restraining order or the order itself and did not actually know it was issued. At the hearing, the trial court resolved against Defendant his claim that his attorney had failed to advise him that he had a defense against the aggravated stalking charge based on such lack of notice and knowledge, crediting the testimony of the attorney who represented him at the time of the plea that, despite knowing the defense was available, Defendant agreed to take the plea, a package deal which resolved all three charges as well as his pending violation of probation in another case.

Defendant’s first claim was that his plea was involuntary because defense counsel failed to advise him — though he told counsel that he made the down payment and all payments for the victim’s truck and she paid only the insurance — that his ownership interest in the vehicle was a defense to the burglary charge, advising him instead to enter the plea; had counsel advised him of the defense and obtained the documents to support his claim that he owned the truck, he would not have entered the plea but would have proceeded to trial. See Cunningham v. State, 799 So.2d 442, 444 (Fla. 5th DCA 2001) (reversing summary denial of postconviction claim that defense counsel was ineffective for failing to argue that the charge of armed burglary of a conveyance should have been dismissed, where the automobile in question was occupied by defendant’s wife and her friend, and defendant asserted in his motion that the car was titled in both his name and his wife’s, the court explaining that “A burglary victim must have an ownership or possessory interest in the property which was burglarized that is rightful and superior to that of the burglar.”). His fourth ground was that defense counsel was ineffective for misad-vising him to enter his plea because there was no factual basis to support the burglary and aggravated stalking charges, in light of his other grounds. Had counsel not misadvised him, he would have proceeded to trial. On appeal, he restricts his arguments to the summary denial of grounds one and four as they pertain to the burglary charge.

We agree that the record attachments to the summary denial did not refute these claims. The state asserted that the existence of the restraining order gave Defendant’s wife the greater possessory interest in the truck, citing State v. Suarez-Mesa, 662 So.2d 735 (Fla. 2d DCA 1995) (reversing the dismissal of an indictment for burglary, holding that a husband who shared a house with his wife but was restrained by court order from entering the premises could be charged with burglary when he entered with the intent of committing a crime), rev. denied, 669 So.2d 252 (Fla.1996). The Suarez-Mesa court cited authorities from various jurisdictions holding that “a spouse who has a legal interest in the property but not a current possessory interest can be charged with burglary.” Id. at 736.

However, the restraining order is not included in the record and, to the extent Defendant could prove he did not know his entry into the conveyance was without his wife’s permission or prohibited by the restraining order, he may still have had a valid defense to the burglary charge. See Whetstone v. State, 778 So.2d 338 (Fla. 1st DCA 2000) (reversing conviction for armed burglary of a dwelling with intent to commit assault or battery, despite the victim’s having obtained a restraining order against the defendant, where, after the restraining order was issued, the defendant and the victim resumed living together and together leased the subject apartment), receded from on other grounds by Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001). The Whetstone court pointed out that the elements of burglary include knowing entry into a dwelling, knowledge that the entry is without permission, and criminal intent to commit an offense in the dwelling. Id. at 341-42 (quoting D.R. v. State, 734 So.2d 455, 457 (Fla. 1st DCA 1999)).

The burglary charge was Defendant’s most serious charge, and it seems altogether possible that Defendant might have rejected the state’s offer as to all three counts (and the VOP) had he known he had a defense he could have asserted at trial as to that charge. There is nothing in the record which has been provided to this court that refutes that claim.

We affirm, however, because the only relief to which Defendant would be entitled on a claim that he involuntarily entered his plea is to be permitted to withdraw the plea in its entirety. But he has not filed anything to indicate that he desires to do so. Instead, he repeatedly asserted below that the relief he sought was to have the burglary and aggravated stalking charges vacated, and to be resen-tenced for the remaining count. Even if he proved all he has alleged, he would not be entitled to such a remedy, and he has not clarified on appeal that he seeks any other.

Our affirmance is without prejudice to Defendant’s refiling the burglary defense grounds of his motion and seeking to withdraw his plea. Because the time for filing a rule 3.850 motion expired while this matter was pending in the trial court, he may have thirty days from the issuance of this court’s mandate in which to file such a motion, which shall be deemed timely filed.

FARMER, KLEIN and HAZOURI, JJ., concur.

      . The agreement also provided for him to enter a no contest plea to the violation of probation in another case and to receive a concurrent sentence of fifty-seven months for it.


author: POLEN, J.

text:
    Dr. Valery SULKIN, M.D., Appellant, v. ALL FLORIDA PAIN MANAGEMENT, INC., Appellee.
    No. 4D05-2528.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Randy A. Fleischer of Law Offices of Randy A. Fleischer, P.A., Davie, for appellant.
    Marc A. Wites and Alejandro Perez of Wites & Kapetan, P.A., Lighthouse Point, for appellee.
   POLEN, J.

Dr. Valery Sulkin, M.D., appeals an order granting appellee’s, All Florida Pain Management, Inc. (hereinafter “AFPM”), summary judgment motion as to Sulkin’s counterclaim and an order denying Sul-kin’s motion for rehearing. We reverse.

AFPM filed a verified complaint for emergency injunctive relief and damages against Sulkin, a former AFPM employee. AFPM claimed that Sulkin misappropriated trade secrets and breached the Medical Independent Contractor Agreement (“the Agreement”) he signed with AFPM. AFPM also requested that the court issue temporary injunctions against Sulkin to prevent him from future use of confidential patient information and solicitation of AFPM’s patients.

Sulkin counterclaimed for breach of the Agreement. In his counterclaim, Sulkin alleged that he performed all obligations required of him by the Agreement. He also claimed that the Agreement provided that he would be paid a minimum of $80.00 per hour for no fewer than twenty hours per week, but that AFPM never paid Sul-kin for more than sixteen hours per week. Sulkin also claimed that on October 14, 2003, AFPM unilaterally terminated the Agreement without notice of cause and without thirty days’ notice. Sulkin attached a copy of the Agreement to his counterclaim. The Agreement included an attached Exhibit A, which provides as follows:

COMPENSATION: During the term of this agreement Contractor shall be paid eighty dollars ($80.00) per hour.
Hours: Contractors hours shall be: Variable / 20-40 hrs/wk. M.S. V.S.

The handwritten “/ 20-40 hrs/wk.” was initialed by AFPM president Dr. Sencer and by Sulkin. The Agreement also provides for immediate termination by AFPM for cause and for voluntary termination by either the Contractor or AFPM, for any reason, upon 30 days’ prior written notice.

AFPM moved for summary judgment as to Sulkin’s counterclaim for breach of the Agreement. Sulkin appeals the trial court’s order granting the motion. The standard of review for summary judgment orders is de novo. See The Fla. Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003). “Summary judgment should not be granted unless the facts are so clear and undisputed that only questions of law remain.” Dade County Sch.Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla.1999). An appellate court reviewing a ruling on summary judgment must examine the record in the light most favorable to the non-moving party. City of Lauderhill v. Rhames, 864 So.2d 432, 434 n. 1 (Fla. 4th DCA 2003).

Sulkin’s counterclaim alleges that AFPM breached its Medical Independent Contractor Agreement (“the Agreement”) with Sulkin. “The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages.” J.J. Gumberg Co. v. Janis Servs., Inc., 847 So.2d 1048, 1049 (Fla. 4th DCA 2003) (quoting Abbott Lab., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000)). As to the first element, AFPM does not dispute the Agreement’s validity. As to the element of material breach, Sul-kin’s counterclaim alleges two independent breaches on the part of AFPM. First, Sul-kin claimed that the Agreement provided that he would be paid a minimum of $80.00 per hour for no fewer than twenty (20) hours per week, but that from May 29, 2003 through October 13, 2003, AFPM never paid Sulkin more than $80.00 per hour for sixteen (16) hours per week. Second, Sulkin claimed that on October 14, 2003, AFPM unilaterally terminated the Agreement without notice of cause and without 30 days’ notice. As to the element of damages, Sulkin claimed that AFPM owed him $6400.00 for wages due pursuant to the alleged agreement that he would be given at least twenty hours per week. He also claimed that he was owed an additional $6400.00 from AFPM for wages due to him from the date he was terminated without cause to the effective date of termination thirty days later.

After reviewing Sulkin’s counterclaim, AFPM’s motion for summary judgment, and the trial court’s order granting summary judgment, we hold that the court erred in entering summary judgment as to the counterclaim. Genuine issues of material fact remain as to whether AFPM breached the Agreement, with respect both to whether the Agreement provided that he would be paid a minimum of $80.00 per hour for no fewer than twenty (20) hours per week and to whether AFPM unilaterally terminated the Agreement without notice of cause and without 30 days’ notice.

Based on the foregoing, we reverse the trial court’s order granting AFPM’s summary judgment motion as to Sulkin’s counterclaim for breach of the Agreement and remand for further proceedings in accordance with this opinion.

STONE and FARMER, JJ., concur.

      . We note that neither AFPM’s motion for summary judgment nor the trial court’s order granting the motion even addressed the issue of whether AFPM breached the agreement by not providing thirty days notice of termination. It appears that this second independent basis for Sulkin’s breach of contract claim was entirely overlooked at the summary judgment phase by both AFPM and the trial court.


text:
    Rickey Ray WYATT and Eric Hewko, Appellants, v. MILNER DOCUMENT PRODUCTS, INC., a foreign corporation, Montgomery & Larson LLP, and Robert M. Montgomery, Jr., Appellees.
    Nos. 4D05-2686, 4D05-3338.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.

      Eric Hewko of The Hewko Firm, North Palm Beach, for Rickey Ray Wyatt and Eric Hewko.
    James W. Beasley, Jr., and Robert J. Hauser of Beasley, Hauser, Kramer, Leonard & Galardi, P.A., West Palm Beach, for Montgomery & Larson LLP, and Robert M. Montgomery, Jr.
    Jane Kreusler-Walsh and Barbara J. Compiani of Jane Kreusler-Walsh, P.A., West Palm Beach, for Christopher M. Lar-moyeux.
   POLEN, J.

In Montgomery v. Wyatt, 922 So.2d 1018 (Fla. 4th DCA 2006), we affirmed the trial court’s division of plaintiffs attorneys’ fees between attorneys Montgomery, Larmoy-eux, and Hewko in the underlying personal injury litigation styled Rickey Ray Wyatt v. Milner Document Products, Inc. We now face two additional appeals arising from this matter, involving the trial court’s orders granting a motion to tax prejudgment interest against Montgomery and denying a motion to tax costs against Montgomery. We sua sponte consolidate these two appeals and, for the reasons stated herein, reverse as to each, holding that the trial court erred in awarding prejudgment interest to Larmoyeux and Hewko and in failing to tax costs in favor of Hewko and Wyatt.

First, we hold that the trial court erroneously awarded prejudgment interest to Larmoyeux and Hewko where the funds were placed in an escrow account under court control. An order awarding prejudgment interest is reviewed de novo. Ferrell v. Ashmore, 507 So.2d 691, 695 (Fla. 1st DCA 1987). Following a hearing, the trial court entered a Final Order on Plaintiff Wyatt, Hewko, and Larmoyeux’s Motions to Tax Interest Against Montgomery. The court ordered Montgomery to pay statutory prejudgment interest, less the interest which had actually accrued and had already been distributed to Hewko and Larmoyeux.

Prejudgment interest is not recoverable in this case because prejudgment interest does not run on court-controlled, escrowed funds. A party can avoid liability for interest after placing the payment into the registry of the court. Warren v. Old Dominion Ins. Co., 465 So.2d 1376 (Fla. 5th DCA 1985) (party could have stopped the running of interest by depositing the arbitrated amount with the registry of the court); Employers’ Liab. Assur. Corp. v. Royals Farm Supply, Inc., 186 So.2d 317, 320 (Fla. 2d DCA 1966) (same); Watkins Motor Lines, Inc. v. Underwriters at Interest, at Lloyds, 892 So.2d 1143 (Fla. 3d DCA 2005) (trial court should have awarded prejudgment interest where defendant failed to deposit money into court registry). The situation in the instant case, in which, through an agreed order by all parties the disputed amount of $121,419.34 plus five days’ interest was held in Milner’s attorney’s trust account “to be released only upon further order of court or written stipulation of all parties,” is analogous to the funds having been placed in the registry of the court, as no party had use of the funds and the court was in control of the escrowed funds. Therefore, we hold that the running of prejudgment interest should have stopped on February 28, 2003, the day of the agreed order depositing the disputed funds into the escrow account.

Additionally, we hold that prejudgment interest is not recoverable in this case because it was not requested within the timeline for rehearing and amendments of judgments under Florida Rule of Civil Procedure 1.530(b), which allows the motion to be made within the ten-day period from the date of filing of the judgment in a non-jury action. See Home Ins. Co. v. Crawford & Co., 890 So.2d 1186 (Fla. 4th DCA 2005); Emerald Coast Commc’ns, Inc. v. Carter, 780 So.2d 968 (Fla. 1st DCA 2001); McGum v. Scott, 596 So.2d 1042 (Fla.1992). Therefore, Hewko and Lar-moyeux waived their right to prejudgment interest by not filing their motion for prejudgment interest until February 7, 2005, thirty-three days after the January 6, 2005 order on Montgomery’s charging lien.

Second, we hold that the trial court erroneously failed to tax costs against Montgomery and his firm. A trial court’s ruling on a motion to tax costs is reviewed for abuse of discretion. Thomas v. Sports Car Club of Amer., Inc., 386 So.2d 272, 274 (Fla. 4th DCA 1980). Following a hearing on Wyatt and Hewko’s motion to tax costs against Montgomery, the trial court denied the motion, relying on Lewis Oil Co. v. Milliken, 711 So.2d 636, 637 (Fla. 1st DCA 1998).

Trial costs in this case are governed by section 57.041(1), Florida Statutes, which hinges on whether the party seeking to tax costs is considered the “prevailing party:”

Costs under this section are governed by the “prevailing party” standard as articulated in Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). See J. Sourini Painting, Inc. v. Johnson Paints, Inc., 809 So.2d 95, 98 (Fla. 2d DCA 2002); Lerner v. Regency Homes, Inc., 745 So.2d 552, 553 (Fla. 4th DCA 1999); Mulato v. Mulato, 734 So.2d 477, 478-79 (Fla. 4th DCA 1999) (applying the Moritz “prevailing party” test to determine whether a party is entitled to trial costs).

Spring Lake Imp. Dist. v. Tyrrell, 868 So.2d 656, 658-59 (Fla. 2d DCA 2004). “The prevailing party for purposes of taxing costs is the party who prevailed on the significant issues below.” In re Cope, 848 So.2d 301, 304 (Fla.2003). In determining who prevailed on the significant issues, the court must determine the “overriding issue” in the case. Id.

In the instant case, the “overriding issue” before the trial court was how to distribute the attorneys’ fees from the Wyatt matter. From the onset, Wyatt and Hewko maintained that, pursuant to Hessen v. Kaplan, 564 So.2d 184 (Fla. 3d DCA 1990), Montgomery was entitled to claim only 80% of Larmoyeux’s 30% portion of the attorneys’ fee, and none of Hewko’s fee. Wyatt and Hewko never asserted that Montgomery had no claim to any of the attorneys’ fees from the Wyatt matter, just that he had no claim to any of Hewko’s 70% portion of the fees. Montgomery, on the other hand, took the position that he was entitled to 80% of the total fees of both Larmoyeux and Hewko, due to conspiracy, fraud, and tortious interference by Wyatt, Hewko, and Larmoy-eux and an invalid fee agreement between Hewko and Wyatt. In its final order, the trial court held that Montgomery is entitled to claim only 80% of Larmoyeux’s 30% of the attorneys’ fees, finding no merit in Montgomery’s fraud, etc. claims against Wyatt, Hewko, and Larmoyeux and finding that Wyatt and Hewko had a valid fee agreement. This court affirmed, citing Hessen. See Montgomery v. Wyatt, 922 So.2d 1018 (Fla. 4th DCA 2006). Based on the foregoing, Wyatt and Hewko were the parties who prevailed on the “overriding issue” of the litigation and, as such, are entitled to the taxation of costs.

“[I]t is results, not procedure, which govern the determination.” Smith v. Adler, 596 So.2d 696, 697 (Fla. 4th DCA 1992). Unlike Lewis Oil Co. v. Milliken, in which both parties prevailed on their claims, the trial court’s findings and holdings in the case at bar clearly adopted the positions of Wyatt and Hewko as to the significant issues of the case, the proper division of attorneys’ fees. Therefore, we hold that the trial court abused its discretion in failing to tax costs against Montgomery and his firm and in favor of Wyatt and Hewko.

Based on the foregoing, we reverse the trial court’s orders granting Larmoyeux and Hewko’s motions to tax prejudgment interest against Montgomery and denying Wyatt and Hewko’s motion to tax costs against Montgomery, and remand this matter to the trial court for entry of orders in accordance with this opinion.

SHAHOOD and TAYLOR, JJ., concur.

      . § 57.041(1) provides, in pertinent part, “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.”


text:
    ED KALIS MEMORIAL SERVICES, LLC, and Ed Kalis, Appellants, v. McINTEE HOLDINGS, LLC, d/b/a Kalis Funeral Homes, Appellee.
    No. 4D05-3909.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Ted P. Galatis, Jr., Fort Lauderdale, for appellants.
    Hinda Klein and Carlos D. Cabrera of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
   POLEN, J.

Appellant, Ed Kalis, Jr., appeals a non-final order modifying a temporary injunction in favor of Appellee, Mclntee Holdings, LLC (“Mclntee”). The order denied Kalis the right to use his name identifying himself as the licensed funeral home director of Edwards Memorial Services in advertising, except in limited situations. We do not consider the temporary injunction in this appeal, only the order modifying the temporary injunction. We find that portions of the order modifying the temporary injunction are overly broad, and reverse and remand to the trial court with instructions to enter a modified order consistent with this opinion.

The Kalis family originally opened the Kalis Funeral Home (“Home”) in 1959. In 1994, Ed Kalis, Sr., sold the business and signed a ten-year non-compete agreement. Both Kalis, Sr., and his son, Ed Kalis, Jr., continued to work at the funeral home. In 2003, the initial purchaser of the Home sold the business to Mcln-tee. In 2004, upon the expiration of the non-compete agreement, Kalis stopped working at the Home. Soon after, Kalis began operating a business by the name of Ed Kalis Memorial Services (“Memorial”) as a funeral, burial, cremation and mortu-arial business. The Memorial was located approximately 100 yards from the Home, in a single family home that had been in the Kalis family since 1965. Mclntee filed a complaint against Kalis and was granted a temporary injunction against Kalis. Kal-is then changed the name of the Memorial to Edwards Cremation & Funeral Services, but further issues ensued, leading to a request for clarification of the temporary injunction. The order modifying the temporary injunction stated, in pertinent part:

The Defendant, ED KALIS, may use his name and photograph when identifying himself as the Licensed Funeral Director on the website for Edwards Cremation & Funeral Services. The Uniform Resource Locator (URL) for the website may not contain the name “Kalis” in the URL.
The Defendant, ED KALIS, may not place his name identifying himself as Licensed Funeral Director on any other signage for Edwards Cremation & Funeral Services in Broward County, Florida.
The Defendant, ED KALIS, may not use his name identifying himself as the Licensed Funeral Director for Edwards Cremation & Funeral Services on any advertising, including, but not limited to, the BellSouth Yellow Pages, or any other advertising and/or promotional materials to be circulated in Broward County, Florida, except as provided above.

“This court reviews temporary injunctions for abuse of discretion.” Colucci v. Kar Kare Auto. Group, Inc., 918 So.2d 431, 435 (Fla. 4th DCA 2006). “[T]he right to use a personal name in a business even one’s own, is subject to the general rules in regard to unfair competition ... While the use of one’s own name cannot be absolutely enjoined, nevertheless the manner of using it may be regulated by injunction.” Gottdiener v. Joe’s Rest., 111 Fla. 741, 149 So. 646, 647 (1933).

We find that the trial court’s restrictions on Kalis’s right to use his name in identifying himself as the licensed funeral director of the Memorial, whether in advertising or signage, are overly broad, and therefore, an abuse of discretion. See Anastasi Masonry Corp. v. Anastasi Bros. Corp., 541 So.2d 175 (Fla. 4th DCA 1989). However, we would agree with a holding that Kalis’s name should not be the predominant feature of the signage or in the advertisement. We also find that the trial court abused its discretion in determining that Kalis could not use his name in the URL for his website. We find that the use of Kalis’s name in identifying himself as the licensed funeral director of the Memorial, whether on signage, in advertising, or on the internet, is not likely to cause confusion in the mind of the public, or to work a fraud on the Home by diverting business to the Memorial. See McGhan v. McGhan, 115 Fla. 414, 155 So. 653 (1934).

We reverse the portions of the order modifying the temporary injunction detailed above, and remand to the trial court with instructions to enter a modified order in accordance with this opinion.

STONE and FARMER, JJ., concur.


text:
    Michael WALLEN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D05-1185, 4D05-1186.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Wallen entered no contest pleas to charges of purchase of cocaine and violation of probation and, following his failure to appear, was sentenced in absentia. Wallen seeks reversal of the sentence imposed, arguing he should not have been sentenced in absentia as he was not voluntarily absent from the proceedings, pointing to his counsel’s representations, prior to the imposition of sentence, that Wallen had been arrested and was in custody in Ohio. See Fla. R.Crim. P. 3.180(a)(9) (providing defendant shall be present for imposition of sentence) and (c) (authorizing judge to proceed with trial if defendant voluntarily absents himself); Capuzzo v. State, 596 So.2d 438, 440 (Fla.1992) (applying rule 3.180(c) to defendant’s absence post-verdict and holding “defendants who voluntarily fail to attend their scheduled sentencing hearings may be sentenced in absentia”). Wallen bore the burden of presenting evidence that his absence was involuntary, see Godwin v. State, 501 So.2d 154, 155 (Fla. 1st DCA 1987), and counsel’s unsworn representations were not evidence, see Faircloth v. Bliss, 917 So.2d 1005, 1006-07 (Fla. 4th DCA 2006), and Brown v. School Board of Palm Beach County, 855 So.2d 1267 (Fla. 4th DCA 2003). We, therefore, affirm.

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


text:
    John R. BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3310.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

STEVENSON, C.J., KLEIN and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    TMW CORPORATION, a California corporation, d/b/a Castle Precision Industries, Appellant, v. D & D ENTERPRISES, INC., a Florida corporation, Appellee.
    No. 4D06-563.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.

      Alexander Angueira and Andrew E. Stearns of Stearns, Weaver, Miller, Weis-sler, Alhadeff & Sitterson, P.A., Miami, for appellant.
    Robert G. Harris of the Law Offices of Robert G. Harris, Boca Raton, for appel-lee.
   KLEIN, J.

D & D Enterprises, a Florida corporation, purchased landing gear for an airplane from defendant TMW, a California corporation. After receiving the landing gear, but not the proper documentation necessary for plaintiff to resell it, plaintiff filed this suit against the defendant in Florida. Defendant moved to dismiss for forum non conveniens, contending that the matter should be litigated in California, which the trial court denied and which defendant appeals.

The transaction was initiated when plaintiff, at its place of business in Bro-ward County, received a telephone call from the defendant informing plaintiff of the availability of airplane parts. The parties later entered into a purchase agreement which provided that the landing gear would be shipped from California by “UPS-ORANGE FOB ORIGIN.” Along with the landing gear, the plaintiff was entitled under the contract to a “trace and nonincident statement of documentation,” without which plaintiff could not resell the gear.

Defendant relies on Pier Point Developers L.L.C. v. Whitelaw, 912 So.2d 18 (Fla. 4th DCA 2005), which held that in an action for breach of contract, venue is proper where the breach occurred, and that when the breach involves delivery of defective goods, venue is proper where the goods were delivered. Defendant argues that because the gear was sent from California “FOB ORIGIN,” venue is proper in California. Defendant explains that “FOB” means “free on board” and that title to the goods passed from the purchaser to the seller at the point when the seller’s performance was complete, that is, California. Pier Point did not, however, involve the venue ground raised in this case, forum non conveniens, which is controlled by Kinney System v. Continental Insurance Co., 674 So.2d 86 (Fla.1996).

Under Kinney there is a four step analysis, the first of which is to determine whether the alternative forum (California) is adequate and possesses jurisdiction over the whole case. Id. at 90. Assuming in this case that California was an adequate alternative forum, the trial court then should have considered the second step, the private interests, which include “adequate access to evidence and relevant sites, adequate access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation.” Id. at 91. In this analysis there is generally, and under these facts, a strong presumption in favor of the plaintiffs choice of forum. Id. at 91.

In the present case, the private interests, without considering the presumption, do not favor either side. It will be just as inconvenient for the plaintiff to litigate in California as it will be for the defendant to litigate in Florida. Under these circumstances the presumption favoring plaintiffs choice of forum has not been overcome, and we accordingly affirm.

GUNTHER and TAYLOR, JJ., concur.


text:
    Samuel CHESTNUT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-143.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Samuel Chestnut, Doral, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Samuel Chestnut challenges a trial court order denying his motion for extension of time to file a renewed motion for postcon-viction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. By previous order, following this court’s remand, the trial court issued an order permitting Chestnut to file a renewed rule 3.853 motion within sixty days. Chestnut v. State, 900 So.2d 624 (Fla. 4th DCA 2005). Chesnut moved for an extension of that deadline.

The trial court denied the extension request as moot, reasoning that it was untimely. We find that the motion for extension was timely, having been filed before the sixty-day deadline expired in accordance with Haag v. State, 591 So.2d 614 (Fla.1992). Accordingly, we reverse and remand for the trial court to consider the merits of Chestnut’s extension request.

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


text:
    Christa GRAHAM, a/k/a Eddie Graham, Appellant, v. Carey HAUGHWOUT, Public Defender of the Fifteenth Judicial Circuit, Appellee.
    No. 4D05-4235.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Christa Graham, a/k/a Eddie Graham, West Palm Beach, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Johnson v. Gibson, 837 So.2d 481 (Fla. 5th DCA 2002).

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Anna M. BRANDT, Appellant, v. STATE OF FLORIDA UNEMPLOYMENT APPEALS COMMISSION and UPS Supply Chain Solutions, Inc., Appellees.
    No. 4D05-4143.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Anna M. Brandt, Miramar, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for appellee, State of Florida Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See § 443.151 (3)(a), Fla. Stat. (2005).

WARNER, KLEIN and GROSS, JJ., concur.


text:
    M.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3427.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See J.D. v. State, 920 So.2d 117 (Fla. 4th DCA 2006).

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Terrance GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-880.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Rehearing Denied July 18, 2006.
    Terrance Green, in proper person.

      Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Beaty v. State, 701 So.2d 856 (Fla.1997).


text:
    Aesop AMEEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4791.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Broward County has adopted an electronic court reporting system which, in this case, required the court to push a button in order to record arguments made at the bench outside the presence of the jury. It was found by the court that, after appellant was tried and convicted, none of the many legal arguments involving objections made at the bench were recorded either because of human error or mechanical error. The state has accordingly conceded that the record in this case is inadequate for appellate review and thus requires a new trial.

This resolution makes two of the issues raised by appellant moot, but as to the remaining issue, we agree with appellant that the officer, who was injured by the appellant when she was attempting to arrest him, should not have been permitted to testify that she took martial arts training after this incident.

Reversed.

GUNTHER, KLEIN and TAYLOR, JJ., concur.


text:
    In the Interest of D.T., a child. N.T., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D04-1339.
    District Court of Appeal of Florida, Second District.
    June 14, 2006.
    John T. Cardillo of Cardillo, Keith & Bonaquist, P.A., for Appellant.

      William Byrne Isaacs, Port Charlotte, for Appellee.
   PER CURIAM.

Affirmed.

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

VILLANTI, J., Dissents without opinion.


text:
    In re JANE DOE 06-A, a minor, Appellant.
    No. 1D06-2957.
    District Court of Appeal of Florida, First District.
    June 15, 2006.
    Natalie Maxwell and Shelbi D. Day of Southern Legal Counsel, Inc., Gainesville; Kristen Lentz and Cassandra Capobianco, Gainesville; Rebecca Harrison Steele of ACLU Foundation of Florida, Inc., Tampa, for Appellant.
   PER CURIAM.

Appellant, a minor we will refer to by the pseudonym “Jane Doe 06-A,” appeals an order dismissing her petition for judicial waiver of parental notification of termination of pregnancy pursuant to section 390.01114, Florida Statutes (2006). We conclude that the trial court committed clear error when it determined that Doe failed to meet her burden under section 390.01114(4)(e) of demonstrating by clear and convincing evidence that she is sufficiently mature to decide whether to terminate her pregnancy. See In re Doe, 921 So.2d 753 (Fla. 1st DCA 2006); In re Doe, 932 So.2d 278, 2005 WL 3007102 (Fla. 2d DCA Nov.10, 2005).

The undisputed evidence concerning Doe’s age, her academic performance, her articulated plans for the future, her work experience, her knowledge of the demands of caring for a child, her efforts to educate herself concerning the risks of abortion and the alternatives available to her, and her actions in seeking out the counsel and support of a trusted adult, dictate that she is sufficiently mature to decide whether to terminate her pregnancy. Appellant was not required to prove she has the maturity of an adult, and instead need only show that she has the necessary emotional development, intellect and understanding to make an informed decision regarding the termination of her pregnancy. See In re Doe, 924 So.2d 935 (Fla. 1st DCA 2006).

Accordingly, we REVERSE the order dismissing appellant’s petition for judicial waiver of parental notification of termination of pregnancy. This cause is REMANDED with directions to forthwith enter an order granting the petition and directing the clerk of the circuit court to place a certificate to that effect in the file and provide appellant a certified copy of that certificate. No motion for rehearing will be entertained, and the clerk is directed to issue mandate immediately.

BARFIELD, WOLF, and LEWIS, JJ., concur.

      . In light of this determination, it is unnecessary for us to address appellant’s contention that the trial court also erred in concluding that she had failed to demonstrate an entitlement to a waiver under the "best interest” standard of section 390.01114(4)(d).


author: MONACO, J.

text:
    Joseph GARBACIK, Petitioner, v. WAL-MART TRANSPORTATION, LLC, etc., et al., Respondent.
    No. 5D06-719.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.
    Rehearing Denied July 6, 2006.

      Christian A. Lindbaek of Alpizar & Ville, LLC, Palm Bay, for Petitioner.
    Nicholas F. Van Valen of Nicklaus & Associates, P.A., Coral Gables, for Respondent, Wal-Mart Transportation, LLC.
    No Appearance for Respondents, Michael Jefferson Edwards, Ronald F. Cho-ma and Sharon K. Choma.
   MONACO, J.

Joseph Garbacik petitions this court for a writ of certiorari to review a non-final order denying Mr. Garbacik’s motion for protective order. By his motion Mr. Gar-bacik sought to prohibit further discovery in this civil action concerning his mental condition. More specifically, he sought to prohibit a deposition of and discovery from his psychologist, Dr. Legler. Because the challenged order departs from the essential requirements of law, and would cause material injury through the remainder of the suit, and because the petitioner is, therefore, without an adequate remedy at law, we grant the petition. See Beverly Enterprises-Florida, Inc. v. Ives, 832 So.2d 161, 162 (Fla. 5th DCA 2002), review denied, 845 So.2d 890 (Fla.2003); Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205 (Fla. 2d DCA 2002).

In 2004, Mr. Garbacik sued the respondent, Wal-Mart Transportation, LLC, seeking damages for personal injuries that resulted from a trucking accident. After the action was removed to federal court, Mr. Garbacik voluntarily dismissed the case. In 2005, Mr. Garbacik filed a new complaint in state court, but this time he added the respondents, Ronald and Sharon Choma as defendants, along with Wal-Mart Transportation. He claimed in his later complaint that he was involved in a subsequent automobile accident involving Mr. and Mrs. Choma, and that the injuries he suffered were inseparable from those he incurred in the earlier accident involving the truck owned by Wal-Mart Transportation.

Between the dismissal of the initial case, and the filing of the second case, Mr. Garbacik underwent a neuropsychological evaluation by Dr. Legler. The report, which was disseminated to the respondents, indicated that Mr. Garbacik was suffering from depression and post-concussion syndrome, as well as “pain disorder” associated with psychological factors and his medical condition.

Wal-Mart Transportation took the deposition of Mr. Garbacik, during which he was questioned about Dr. Legler’s report without an assertation of privilege. Later, however, when Wal-Mart Transportation scheduled the deposition of Dr. Legler, Mr. Garbacik filed a motion in which he asked the trial court to allow him to withdraw his claim of mental anguish. In addition, Mr. Garbacik moved for a protective order, seeking to prohibit further discovery concerning his mental condition, and to prohibit the deposition of Dr. Legler. While the trial court granted Mr. Garba-cik’s motion to amend his complaint to withdraw the claim of mental anguish, it denied the motion for a protective order, saying essentially that he would allow discovery to proceed, and would decide later whether he would admit into evidence the information concerning Mr. Garbacik’s mental condition. Mr. Garbacik then timely filed his petition for writ of certiorari.

Mr. Garbacik argues that the information being sought by Wal-Mart Transportation from Dr. Legler is protected by the psychotherapist-patient privilege articulated in section 90.503, Florida Statutes (2003). That statute protects certain communications of a patient with a licensed or certified psychologist, or with a certified mental health counselor. Subsection (2) of the statute provides:

(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

Section 90.503(4) identifies the exceptions to this privilege, as follows:

(4) There is no privilege under this section:
(a) For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.
(b) For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.
(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party re lies upon the condition as an element of the party’s claim or defense.

(Emphasis added).

In order to take advantage of exception (c) a party seeking otherwise privileged information must demonstrate that the patient has placed his or her mental condition in issue. Quinney v. Quinney, 890 So.2d 407 (Fla. 5th DCA 2004); Palm Beach County School Bd. v. Morrison, 621 So.2d 464 (Fla. 4th DCA 1993); Sykes By & Through Sykes v. St. Andrews School, 619 So.2d 467 (Fla. 4th DCA 1993). Here, it is undisputed that at the outset of this case Mr. Garbacik had placed his mental and emotional condition in issue by seeking damages for “emotional anguish.” When he did so, he initially waived the privilege. The issue, however, concerns the effect of the withdrawal of the mental anguish claim on the waiver. Indeed, Wal-Mart Transportation admirably concedes that “the Plaintiff is correct that if mental anguish claims are withdrawn from a case, the opposing party generally may not discover the Plaintiffs psychiatric history.” Wal-Mart Transportation argues, however, that once waived, the privilege cannot be called back into existence. Curiously, and though it might at first appear to be counterintuitive, this category of waiver does not appear to be irrevocable.

In Sykes, the Fourth District held that a waiver of the psychotherapist/patient privilege could be revoked so as to reinstate the privilege, if the patient abandons his or her claim for damages for emotional distress, even though the patient has already voluntarily submitted to a mental examination by a defense expert. In so holding, the court stated:

One purpose of the waiver or exclusionary portions of the rule and the statute is to prevent a party from using the privilege as both a sword and a shield, that is, seeking to recover for damage to the emotions on the one hand while hiding behind the privilege on the other. It is beyond question that petitioner initially intended to put her mental condition in issue and to recover damages for her own emotional stress. She subsequently abandoned that attempt. Thus, her mental condition is no longer in issue except as respondents intend to make it so in furtherance of their own litigation strategy. Petitioner has dropped the sword. No damage has been done. The original examination and the expert’s deposition are now irrelevant and immaterial to petitioner’s claim for damages. Since the reason for piercing the shield of privilege no longer exists, the shield should again be available.

See Sykes, 619 So.2d at 469. The court reasoned that “[I]n the context in which discovery is now sought petitioner is not making an issue of her own mental or emotional condition.” Id. For that reason, the court held that the privilege had not been irrevocably waived. We agree with the reasoning of our sister court, and the logic of its conclusion. See also Bolin v. State, 793 So.2d 894, 898 (Fla.2001).

Moreover, in the present case, once Mr. Garbacik abandoned his effort to collect damages for injuries having a mental anguish component, his psychological state became generally irrelevant. Since the appellee has not made clear to us how further discovery into Mr. Garbacik’s mental health is “reasonably calculated” to lead to admissible evidence, we are unable to see how these inquiries could properly be the subject of discovery in any event. Fla. R. Civ. P. 1.280(b)(1).

Wal-Mart Transportation’s fallback positions appear to be that despite the abandonment of the mental anguish claim, (a) Dr. Legler’s testimony and report are relevant for impeachment purposes; and (b) the discovery might have some bearing on the remaining claims in the complaint, such as the demand for damages for loss of capacity for the enjoyment of life. We are unpersuaded by either of these arguments.

If we allowed an invasion of the privilege because the material could be used for impeachment purposes, we might just as well ignore the privilege in its entirety. If that were the law, there would be virtually no case where the report of a mental health professional could not be obtained by the opposing party. Section 90.503 would be useless.

Moreover, we have previously rejected the argument that a patient places his or her mental or emotional state at issue because of the reference in the complaint to loss of “enjoyment of life.” In Partner-Brown v. Bornstein, 734 So.2d 555, 556 (Fla. 5th DCA 1999), for example, this Court stated:

The allusion to loss of enjoyment of life, without more, does not place the mental or emotional condition of the plaintiff at issue so as to waive the protection of section 90.503.
If we were to adopt the position asserted here by the respondent, it would render the above statute a nullity and inject the issue of mental anguish into virtually every personal injury case. That is not the law and it is not what we held in Nelson v. Womble, 657 So.2d 1221 (Fla. 5th DCA 1995). It should be apparent that physical pain and suffering, absent mental anguish, can impair the enjoyment of life.

Accordingly, we grant the petition for writ of certiorari and quash the discovery order issued by the trial court with respect to further discovery of Mr. Garbacik’s mental condition, and in particular with respect to the deposition of Dr. Legler and his report.

PETITION GRANTED; ORDER QUASHED.

THOMPSON and SAWAYA, JJ., concur.


text:
    MCB OIL COMPANY, Appellant, v. CITY OF GAINESVILLE, Appellee.
    No. 1D06-0963.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    Ralph C. McBride, Marietta, GA, for Appellant.
    Andrew Prince Brigham, and Manny Papalas, Jacksonville; Scott J. Johnson of Holland & Knight, Orlando; and Daniel M. Nee, City Attorney, Gainesville, for Appel-lee.
   PER CURIAM.

The appellant filed the instant appeal on February 17, 2006, seeking review of an order entered on December 15, 2005. Because the appellant’s post-judgment motion was not timely served within 10 days of the date of filing of the order, see Fla. R. Civ. P. 1.530(b), the motion did not delay rendition. See Fla. R.App. P. 9.020(h). Contrary to the appellant’s assertion, the time for service of the motion was not extended by order of the trial court. See Fla. R. Civ. P. 1.090(b); Jones v. Jones, 845 So.2d 1012 (Fla. 5th DCA 2003). Consequently, the appellant’s notice of appeal did not timely invoke this Court’s jurisdiction. See Fla. R.App. P. 9.110(b).

DISMISSED.

KAHN, C.J., ERVIN, and VAN NORTWICK, JJ., concur.


text:
    Morris SHELKOFSKY, Appellant, v. DIVISION OF RETIREMENT, Appellee.
    No. 1D05-3254.
    District Court of Appeal of Florida, First District.
    June 20, 2006.
    Morris Shelkofsky, pro se, Appellant.
    Robert B. Button, Assistant General Counsel, Department of Management Services, Tallahassee, for Appellee.
   PER CURIAM.

Morris Shelkofsky appeals from an order of the State Retirement Commission dismissing with prejudice his reapplication for in-line-of-duty disability benefits as barred by res judicata. Because the doctrine of res judicata does not operate to bar all of the claims raised by the appellant, we reverse.

On September 30, 2003, the appellant reapplied for in-line-of-duty disability benefits based upon “new medical evidence” that was not considered by the Commission in the initial proceeding. He also asserted that due to his now eleven years of creditable service, his application also should be considered for regular disability benefits.

The sole issue raised by the 2001 application was whether the appellant was eligible for permanent and total disability benefits as a result of an in-line-of-duty accident or injury. The Commission concluded that the appellant’s disability arose primarily from an unrelated accident and denied his request. In doing so, the Commission explicitly did not decide whether the appellant suffered a permanent and total disability. The Commission further determined that the appellant was not vested because he had only eight years of creditable service at the time of the application. See § 121.091(4)(a)1.a., Fla. Stat. (2003) (requiring persons employed between July 1, 1980, and July 1, 2001, to have at least 10 years of creditable service to be vested). This order was affirmed on appeal. Shelkofsky v. State, Div. of Retirement, 846 So.2d 512 (Fla. 1st DCA 2003) (unpublished table opinion).

The Commission properly dismissed the reapplication on res judicata grounds as to the issue of in-line-of-duty benefits. However, the doctrine does not apply to the issues of whether the appellant is currently vested in the retirement system or whether he is permanently and totally disabled.

If an employee is determined to be totally and permanently disabled, but is denied in-line-of-duty disability benefits for other reasons, he shall receive regular disability benefits, if eligible. See Fla. Admin. Code R. 60S-4.007(2)(d)4.b. “A member shall be considered totally and permanently disabled if, in the opinion of the administrator, he or she is prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee.” § 121.091(4)(b), Fla. Stat. (2003); Fla. Admin. Code R. 60S-4.007(2)(d). Although all indications are that the Commission would have found the appellant was not permanently and totally disabled, the fact remains that this issue has not been decided.

Accordingly, we reverse and remand for the Commission to determine whether the appellant is eligible for regular disability benefits. We affirm without comment all other issues raised by the appellant.

BARFIELD, DAVIS and PADOVANO, JJ., concur.


author: PER CURIAM. ERVIN, J.,

text:
    Jean L. LUNDY and Charles A. Williams, Appellants, v. FOUR SEASONS OCEAN GRAND PALM BEACH and Liberty Insurance Group, Appellees.
    No. 1D05-0109.
    District Court of Appeal of Florida, First District.
    June 20, 2006.

      Charles Williams of Charles Williams Attorney At Law P.A., Lake Worth; and Jane-Robin Wender of Wender & Associates, P.A., Delray Beach, for Appellants.
    L. Barry Keyfetz, Miami, for Amicus Curiae/Academy of Florida Trial Lawyers.
    Tara L. Sa’id of Law Office of Amy L. Warpinski, Jacksonville, and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Appellees.
    Steven A. Rissman and Elizabeth Lynch-Mulligan of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Amicus Curiae/Claims Center.
    Mary Ann Stiles of Stiles, Taylor & Grace, P.A., Tampa, and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Amicus Curiae/Associated Industries of Florida, Inc.
    Thomas A. Koval, Sarasota, and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Amicus Curiae/Florida Insurance Council.
   PER CURIAM.

The claimant seeks review of a final order of the judge of compensation claims (JCC), denying stipulated attorney’s fees as being in excess of the fees permitted by section 440.34(1), Florida Statutes (2004), and approving a fee permitted by section 440.34(1). On appeal, the claimant contends that: (1) section 440.34(1) should be construed to allow the payment of a reasonable fee that exceeds the mandated percentage of benefits secured; (2) the JCC should have approved the parties’ joint stipulation agreement providing for fees in excess of that allowed by statute pursuant to Spitzer v. Bartlett Bros. Roofing, 437 So.2d 758 (Fla. 1st DCA 1983); and (3) section 440.34(1) violates the separation of powers doctrine, the due process clause, the equal protection clause, the right to counsel, and the right to freely contract as provided by the Florida Constitution. For the reasons set forth herein, we reject each of the claimant’s arguments and affirm the order of the JCC.

The claimant and the e/c entered into a joint stipulation, providing that the e/c would pay the claimant $1,700 in past indemnity benefits and pay counsel for the claimant $1,900 for securing the benefits. The JCC denied approval of the stipulated fees, reasoning that she was without authority to approve a fee in excess of $340, the amount allowed by section 440.34(1). The JCC entered an order approving the statutory fee of $340, and this appeal followed.

The JCC properly construed section 440.34(1). In Wood v. Fla. Rock Indus., 929 So.2d 542 (Fla. 1st DCA 2006)(amended May 25, 2006, to certify a question of great public importance), this court explained that “the court must presume that the legislature intended the amended statute [section 440.34(1) ] to mean what it clearly says.” The statute begins by generally providing that no fee may be paid under chapter 440 unless approved as reasonable, and then specifically addresses the approval of fees “for benefits secured” by setting forth the formula for determining the amount of fees to be paid. A JCC may approve a fee as reasonable under section 440.34(1) when the fee equals the statutory percentage of benefits secured. Wood; see also Parker v. Baker, 499 So.2d 843, 845 (Fla. 2d DCA 1986)(“Where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control.”).

Spitzer does not serve as an exception to the provisions set forth in section 440.34(1). In Spitzer, the parties stipulated that the claimant was entitled to three months of catastrophic loss benefits even though the claimant’s injuries did not demonstrate an entitlement to such benefits under the law. 437 So.2d at 759-60. The JCC rejected the stipulation because it was based on a misconception of the law. Id. at 760-61. Reversing, this court noted that “[i]t is the policy of the law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes.” Id. at 760.

Though Spitzer is still good law, it is not controlling in this case because section 440.34(1) expressly prohibits a JCC from approving a fee in excess of the statutory percentage. There was no statutory prohibition limiting the actions of the JCC in Spitzer.

We now address the constitutional challenges raised by the claimant. Preliminarily, we note that a statute is presumed to be valid, and every presumption is to be indulged in favor of the validity of that statute. Golden v. McCarty, 337 So.2d 388, 389 (Fla.1976); McElrath v. Burley, 707 So.2d 836, 839 (Fla. 1st DCA 1998). The party challenging a statute has the burden to demonstrate the unconstitutionality of the statute by negating every conceivable basis for upholding the law. Burley, 707 So.2d at 839. The claimant in this case has not met that burden.

The legislature did not encroach upon the powers of the judiciary by amending section 440.34(1) to restrict the payment of fees to a percentage of the benefits secured. Workers’ compensation is a creature of statute governed by the provisions of chapter 440, Florida Statutes. Globe Sec. v. Pringle, 559 So.2d 720, 722 (Fla. 1st DCA 1990). The legislature may limit the amount of fees that a claimant’s attorney may charge because the state has a legitimate interest in regulating attorney’s fees in workers’ compensation cases. Samaha v. State, 389 So.2d 639, 640 (Fla. 1980). Furthermore, the legislature is charged with setting forth the criteria it deems will further the purpose of workers’ compensation law and will result in a reasonable fee. See id.; see also Schick v. Dep’t of Agrie. & Consumer Servs., 599 So.2d 641, 644 (Fla.1992). Therefore, section 440.34(1) does not violate the separation of powers doctrine.

Nor does section 440.34(1) violate the equal protection clause or the due process clause, which, inter alia, protects the right to be represented by counsel. In limiting fees to a percentage of the benefits secured, section 440.34(1) bears a reasonable relationship to the state’s interest in regulating fees so as to preserve the benefits awarded to the claimant. See Samaha, 389 So.2d at 640. Section 440.34(1) is not discriminatory, arbitrary or oppressive because it applies to all claimants in a workers’ compensation proceeding, and sets forth a definite formula for determining attorney’s fees so as to protect the claimant’s interest in retaining a substantial portion of the benefits secured. Therefore, section 440.34(1) does not deny a claimant equal protection, due process, or the right to be represented by counsel.

The claimant has also failed to demonstrate that section 440.34(1) imper-missibly restricts the right to freely contract. A statute restricting the right to contract will not be invalidated if the restriction was enacted to protect the public’s health, safety, or welfare. Khoury v. Carvel Homes S., Inc., 403 So.2d 1043, 1046 (Fla. 1st DCA 1981). The restrictions set forth in section 440.34(1) were enacted to protect the public’s welfare by ensuring that a worker is able to retain a substantial portion of awarded benefits so as to prevent the burden of support for that worker from being cast upon society. Therefore, the statute does not offend the right to freely contract.

Although the claimant abandoned the issue of whether section 440.34(1) denies access to courts during oral argument, we note that the statute has not been shown to deny access. In the initial brief, the claimant contended that the statute denies access to courts because it impairs a claimant’s ability to retain counsel. The claimant’s argument is unpersuasive because it lacks evidentiary support. The claimant has failed to demonstrate that the statute has unduly burdened a claimant’s ability to retain counsel in order to secure benefits, or that the statute limits the types of benefits a claimant is authorized to pursue under chapter 440. Because the claimant has not demonstrated that section 440.34(1) has abolished or unduly burdened a claimant’s right to obtain benefits under chapter 440, we cannot conclude that the statute denies access to courts. See Burley, 707 So.2d at 839; Strohm v. Hertz Corp., 685 So.2d 37, 39 (Fla. 1st DCA 1996).

In conclusion, the claimant has not demonstrated that section 440.34(1) is constitutionally infirm or that the JCC otherwise erred in declining to approve a fee in excess of the fee permitted by section 440.34(1). Therefore, we affirm the order of the JCC. As in Wood, however, we certify the following question of great public importance:

DO THE AMENDED PROVISIONS OF SECTION 440.34(1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY’S FEE TO BE AWARDED A CLAIMANT?

AFFIRMED.

DAVIS and BENTON, JJ., concur; ERVIN, J., concurs with opinion.

ERVIN, J.,

concurring.

I concur with the majority’s disposition of the constitutional issues that it has specifically addressed. I also concur with the question certified. In addition, I strongly doubt that the Florida worker’s compensation attorney-fee statute, section 440.34(1), Florida Statutes (2003), could be subjected to a successful facial constitutional chai-lenge, which requires the challenger to establish that no set of circumstances exists under which the statute could be determined valid in that such “challenge considers only the text of the statute, not its application to a particular set of circumstances.” See Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004). I also note that attorney-fee legislation in many of the states requires each party to pay his or her own attorney, regardless of whether the party prevails, and no constitutional provision appears to be implicated. See 8 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 133.01 at 133-2, 3 (2005).

In a different context, the Florida Supreme Court has held that, in the absence of proof to the contrary, unless the statute is decided to be arbitrary on its face, a court is bound to accept a legislative determination of the reasonableness of a registration fee assessed against a seed dealer for inspection services rendered by the state. Finlayson v. Conner, 167 So.2d 569, 573 (Fla.1964). Indeed, the attorney-fee statute challenged in the case at bar appears to be rationally related to further the goal of reducing the cost of workers’ compensation premiums, which was one of the goals motivating the enactment of section 440.15(3)(b), Florida Statutes (1979), making employees ineligible for wage-loss benefits if they were eligible for Social Security retirement benefits. See Sasso v. Ram Prop. Mgmt., 452 So.2d 932 (Fla.1984).

The more interesting question, and one which the appellant abandoned during oral argument, is whether the statute could be considered unconstitutional in its application to a given set of facts on the theory that it violates Florida’s constitutional prohibition denying access to courts. Art. I, § 21, Fla. Const. In my judgment, it is possible, but highly unlikely, that such challenge might be successful, depending upon the evidence presented. The test approved by the Florida Supreme Court pertaining to the contest of a statute impacting one’s judicial ingress is that if a statute has provided a right of access to courts for redress of an injury before the adoption of the Florida Constitution, or if such right had then become part of the state’s common law, the legislature is not empowered to abolish such right without providing a reasonable alternative, unless it is able to show an overpowering public necessity for abolishing such right, and no alternative method of meeting such public necessity can be shown. Kluger v. White, 281 So.2d 1, 4 (Fla.1973).

At the time of the adoption of the Florida Constitution an employee had a common-law right of action for damages against his or her employer resulting from an employment-related injury. I strongly question whether a challenger to the constitutional validity of section 440.34(1), as applied to any set of facts, could satisfy the Kluger test, because the legislature still provides the employee the right to pursue a workers’ compensation claim against his or her employer, despite the modification of the employee’s right to recover fees from the employer. Therefore, unless that right were rendered illusory by evidence disclosing that (1) in certain types of claims the worker could not realistically expect to obtain the assistance of counsel, and (2), if not, the worker could not plausibly be expected to prevail in the prosecution of his or her own claim, due to the complexity of the proceeding, I doubt very much that a sufficient showing could be made that the statute, as applied, violates the access to courts provision.

Because it is the judiciary’s responsibility, whenever possible, to construe a statute so that it does not conflict with the constitution, I would ordinarily consider that any possible constitutional challenge could be obviated by simply interpreting the statute as ambiguous, thereby allowing a judge of compensation claims (JCC) the discretion to award a fee as reasonable, notwithstanding that such amount might exceed that permitted by the fee schedule provided in section 440.34(1). In my judgment, the statute does not clearly and unambiguously equate the reasonableness of the fee with that authorized by the statutory percentage formula, which is the construction I would place on the statute were it not for the recent decision of this court in Wood v. Florida Rock Industries, 929 So.2d 542 (Fla. 1st DCA 2006), interpreting section 440.34(1) as requiring a JCC to “approve a fee as ‘reasonable’ only when it equals a statutorily established percentage of the value of benefits secured on behalf of the Claimant.” Id. at 545. Unlike the panel in Wood, I am unable to find in the statute such clarity of legislative purpose.

Section 440.34(1) was amended by chapter 2003-412, section 26, Laws of Florida, to provide as follows:

(1) A fee, gratuity, or other consideration may not be paid for services rendered for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the judge of compensation claims or court having jurisdiction over such proceedings. Except as — provided by this subsection, Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of services rendered to a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. The judge of compensation claims shall not approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his or her attorney, or any other agreement related to benefits under this chapter that provides for an attorney’s fee in excess of the amount permitted by this section. The judge of compensation claims is not required to approve any retainer agreement between the claimant and his or her attorney. The retainer agreement as to fees and costs may not be for compensation in excess of the amount allowed under this section. However; the judge of compensation claims shall consider the following — faetors- in each case and may increase or-decrease the attorney’s fee if-in-her-or-his judgment, the circumstances-of-the particular case warrant such action:
(a)-The-time -and labor required, the novelty-and difficulty of the questions involved, and the-sbill-requisite to perform the legal service properly.
(b) The fee customarily- charged -in the locality for similar legal — services.
(c) The amount-involved in the controversy and the benefits-resulting to- the claimant.
(d) The time-limitation imposed by the claimant or the-c-irc-umstances.
(e)-The ■■ experience, reputation, and ability of the lawyer-or lawyers performing services.
(f)~The contingency or certainty of a

(Underscored language added, and struck-through language deleted.)

Several significant changes should be noted in the above textual material, particularly the deletion of the Lee Engineering (Lee Engineering Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968)) factors that had earlier been codified in the statute, including the time and labor required, the fee customarily charged, etc. Perhaps more important was the legislature’s addition of the language forbidding approval of “an attorney’s fee in excess of the amount permitted by this section.” Although the statute references percentage amounts of benefits secured, conspicuously absent from its provisions is any specific fee amount, and, more to the point, the legislature saw fit to retain the pre-amendment language requiring that any fee allowed be judicially approved as reasonable. After considering all of the language, both that added and that retained, I am unable to find anything in the statute clearly and unambiguously equating the fee formula with a conclusive presumption of reasonableness.

In the case at bar, the percentage formula based solely upon $1700 in benefits secured for claimant by his attorney yields a statutory fee of $340, and, if the JCC accepted counsel’s testimony that he reasonably expended 26 hours in securing those benefits, the attorney would be compensated at an hourly rate of $13.08. The JCC clearly found herself in a dilemma. She made no finding that a fee of $340 was, under the facts, reasonable, but she felt constrained by the statute to award a fee consistent with the statutory formula. Nowhere, however, does section 440.34 define the term “reasonable,” nor have I found any language in it suggesting that the legislature intended to replace the ordinary definition given it, meaning “fair, proper, or moderate under the circumstances,” or “[ajccording to reason.” Black’s Law DictionaRY 1293 (8th ed.2004). A fee in the amount of $340 for the services of a lawyer who reasonably expends 26 hours in securing $1700 of benefits on behalf of his client simply cannot be said to conform with the current, commonly understood definition of the term reasonable.

On the other hand, the statutory-percentage fee formula may be more than adequate in the successful prosecution of a claim in which a large amount of benefits is secured, with a limited involvement of time by claimant’s counsel. For example, a lawyer’s efforts on behalf of his or her claimant/client may result in $400,000 in benefits secured within 10 years after the claim is filed, resulting in a statutory percentage fee of $40,750, and, if the hours reasonably expended were, say, 65, the hourly rate would be $626.92, which I consider most objective observers would view as not only reasonable, but generous. If, however, the benefits obtained are minimal, a fee in the sum awarded may be grossly disproportionate to the effort reasonably expended. It is, of course, conceivable that the legislature intended just that result, contemplating that injured workers with minor injuries should be able to handle their own claims, but, if such were its intent, this legislation does not display it.

As stated, I find nothing in the statute restricting a judge’s determination of a fee’s reasonableness to the percentage formula, and my conclusion is supported by other provisions of section 440.34. For example, subsection (3) provides: “If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees.” (Emphasis added.) The subsection continues by providing that fees may be recovered from the employer under certain circumstances, including claims for only medical benefits, where the claimant prevails on the issue of compensability, where the employer files a response to a petition denying benefits, and where the claimant prevails in proceedings brought to enforce a compensation award, or to modify a compensation order.

If the Wood panel’s interpretation of the statute is correct, an attorney who successfully defends on appeal a compensation award, a motion for an order enforcing a compensation award, or a motion for an order modifying a compensation award would then be entitled to the same percentage fee previously awarded him or her during the trial of the claim, regardless of the amount of time he or she expended in the later proceeding. A duplicate fee, identical to that authorized at trial, without consideration of the labor involved, would hardly be consistent with the legislative goal of reducing the employer’s cost of workers’ compensation insurance premiums, particularly in circumstances where the fee authorized by the formula is substantial, and the attorney’s involvement minimal. In my judgment, the legislature, in drafting the 2003 amendments to section 440.34, could not have reasonably contemplated such bizarre results.

      . Section 440.34(7) explicitly, unlike other provisions authorizing recovery of fees for the successful prosecution of certain types of claims, limits recovery of a fee from the employer in a medical-benefits-only claim to $1500 per accident.


text:
    Linda Lou HALE, Appellant, v. SHEAR EXPRESS, INC., d/b/a Hair Express, Appellee.
    No. 1D05-3636.
    District Court of Appeal of Florida, First District.
    June 20, 2006.
    David Bromley of The Bleakley Law Firm, Tampa, Susan W. Fox of Fox & Loquasto, Tampa, and Wendy S. Loquasto of Fox & Loquasto, Tallahassee, for Appellant.
    David K. Beach, and Elizabeth P. Mulligan of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellee.
   PER CURIAM.

In this workers’ compensation case, claimant seeks review of a final order enforcing a settlement agreement. She contends that it is clear from the record that the parties never reached agreement on all essential terms. We agree. See, e.g., Suggs v. Defranco’s, Inc., 626 So.2d 1100, 1100-01 (Fla. 1st DCA 1993) (to be enforceable, a settlement agreement must reflect assent by the parties to all essential terms; if any remain open, subject to future negotiation, there can be no enforceable contract). Accordingly, we reverse the order enforcing the settlement agreement, and remand with directions that the judge of compensation claims hold the final merits hearing previously requested by claimant.

REVERSED and REMANDED, with directions.

KAHN, C.J., WEBSTER, and HAWKES, JJ., concur.


text:
    David RODRIGUEZ, Petitioner, v. James R. McDONOUGH, etc., Respondent.
    No. 1D05-3615.
    District Court of Appeal of Florida, First District.
    June 20, 2006.
    David B. Rodriguez, pro se, Petitioner.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied; however, we vacate the circuit court’s order of indigency to the extent that it imposes a lien on Petitioner’s inmate trust account. See Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006).

DENIED.

ALLEN, DAVIS and THOMAS, JJ., concur.


text:
    Alphonso POPE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5662.
    District Court of Appeal of Florida, First District.
    June 20, 2006.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Diego Puig and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant’s sole contention in this direct criminal appeal is that the trial court committed reversible error when it permitted the state to offer over a hearsay objection testimony by a deputy that a person found by the deputy to be in possession of illegal drugs during a traffic stop had told the deputy that appellant had sold him the drugs, and that appellant could be found in a specific room at a local motel. Our review of the record satisfies us that the testimony was not offered for the truth of its contents. It was, instead, offered in rebuttal by the state to explain the deputy’s motive for focusing his attention on appellant upon entering the room, rather than on other occupants, after appellant had presented a defense based on the implication that the deputy’s actions had been racially motivated. As such, the testimony was not hearsay. See generally State v. Baird, 572 So.2d 904, 908 (Fla. 1990) (stating that such testimony is admissible to rebut a defense effort to suggest that the defendant had been improperly targeted for prosecution); Pride v. State, 809 So.2d 40, 42 (Fla. 1st DCA 2002) (same); Charles W. Ehrhardt, Florida Evidence § 801.2, at 714 (2005 ed.) (explaining that an out-of-court statement offered for a purpose other than to prove the truth of its contents is admissible provided that the purpose for which it is offered relates to a material issue). Because the defense had made the deputy’s motive for focusing on appellant a material issue and the state offered the testimony for that purpose, the trial court did not abuse its discretion when it permitted it. Accordingly, we affirm.

AFFIRMED.

KAHN, C.J., WEBSTER, and HAWKES, JJ., concur.


author: VILLANTI, Judge.

text:
    JIM BLACK & ASSOCIATES, INC., Appellant, v. TRANSCONTINENTAL INSURANCE COMPANY, Appellee.
    No. 2D05-2262.
    District Court of Appeal of Florida, Second District.
    June 21, 2006.

      Mark A. Boyle of Fink & Boyle, P.A., Fort Myers, for Appellant.
    Chris Ballentine and Jamie Billotte Moses of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee.
   VILLANTI, Judge.

Transcontinental Insurance Company defended Jim Black & Associates, Inc., in a lawsuit brought by Pompanette, LLC, for patent infringement and unfair competition. Transcontinental disputed coverage but agreed to defend Jim Black under a reservation of rights. Because we found that Pompanette’s claims were not covered by Jim Black’s policy with Transcontinental, we remanded for the trial court to determine Transcontinental’s right to recover the costs of defense that it incurred while defending Jim Black. Transcon. Ins. Co. v. Jim Black & Assocs., Inc., 888 So.2d 671 (Fla. 2d DCA 2004). Jim Black now appeals the trial court’s determination that Transcontinental was entitled to its defense costs, fees, and expenses totaling $101,246.71. We affirm the trial court’s determination of entitlement and write only to express our agreement with the First District’s opinion in Colony Insurance Co. v. G & E Tires & Service, Inc., 777 So.2d 1034 (Fla. 1st DCA 2000). We reject without comment Jim Black’s argument that Transcontinental was not entitled to interest on its defense costs, fees, and expenses.

After Pompanette sued Jim Black in federal court for patent infringement and unfair competition, Transcontinental, through its attorneys, sent Jim Black a five-page letter via certified mail on February 14, 2002, explaining that “there is not coverage for the Pompanette claim under Jim Black’s commercial general liability policy” with Transcontinental. The letter further stated:

Despite the fact [Transcontinental] believes there is no coverage, [it] will for now provide a defense of the Pompan-ette claim to Jim Black under a complete and total reservation of rights. This defense will be afforded through Attorney C. Douglas McDonald of the Carlton, Fields law firm.... We understand they are mutually agreeable counsel. This will also confirm that in consideration for [Transcontinental’s] agreeing to the insured’s choice of counsel as mutually agreeable counsel, we have worked out an arrangement on a sharing of the defense costs....
[Transcontinental’s] total reservation of rights in this matter includes the right to file a declaratory judgment action with respect to the coverage issues present in this claim. Please be advised that if [Transcontinental] files a declaratory judgment action it will seek repayment of defense costs should [it] prevail in its declaratory judgment action.
We trust you understand our position. If you should have any questions or comments on [our] position, please do not hesitate to call.

Apparently, Jim Black did not question or comment on Transcontinental’s reservation of rights letter and, in fact, accepted Transcontinental’s defense using agreed-upon counsel.

Sending a reservation of rights letter and appointing mutually agreeable defense counsel is an appropriate action when an insurance company disputes coverage. Id. at 1037. Jim Black agreed to defense counsel and accepted the defense provided; thus, Jim Black “necessarily agreed to the terms” on which Transcontinental extended its offer to provide a defense. See id. at 1036. Transcontinental provided a defense for claims that were clearly not covered by its policy with Jim Black. Transcontinental did not bargain for these costs and has not been paid premiums to defend uncovered claims. See id. at 1038. Similar to the insured in Colony Insurance Co., Jim Black is “no worse off than if it had itself retained the lawyer” whom Transcontinental and Jim Black agreed should defend Pompanette’s claim. See id. at 1039. Now that it has been determined that Transcontinental never had a duty to defend, Transcontinental is entitled to reimbursement. See id. Therefore, we affirm.

Affirmed.

DAVIS and STRINGER, JJ., Concur.


author: FARMER, J.

text:
    Leroy INMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3366.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

This appeal arises from the same case as our recent decision in Green v. State, 925 So.2d 470 (Fla. 4th DCA 2006). Appellant here is a co-defendant. As we did in Green, we reject his arguments centered upon his contention that he thought he was buying marijuana and affirm the conviction.

We do find merit in his argument that part of his sentence is in error. He argues that count V of the information alleged that he “carried a firearm” and not that he “discharged a firearm” for purposes of sentencing under section 775.087(2). See § 775.087(2), Fla. Stat. (2003). Discharging a firearm in an armed robbery carries a mandatory 20 year sentence, but possessing a firearm carries only a 10 year term. See § 775.087(1)-(2), Fla. Stat. (2003). While the State concedes the allegation did not “specifically” allege discharging a firearm, it argues that it did include a reference to section 775.087(2) in the information.

In Bryant v. State, 744 So.2d 1225 (Fla. 4th DCA 1999), we faced a similar but not identical issue. There, the charging document failed to contain an allegation that the offense of attempted first degree murder was committed with a firearm. 744 So.2d at 1226. We reversed the imposition of an additional minimum mandatory period of 3 years because the State failed to allege that “ ‘the defendant possessed a “firearm” or “destructive device” during the commission of the crime.’ ” 744 So.2d at 1226 (citing Gibbs v. State, 623 So.2d 551, 555 (Fla. 4th DCA 1993)). We emphasized that the defendant was not given notice that he faced the possible 3-year enhancement of any sentence. Bryant, 744 So.2d at 1226. Although we alluded to the failure even to refer to section 775.087(2) in the information, we did not state in so many words that such a mere reference might be sufficient.

In Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002), we held that the lack of any allegation in the information that defendant “discharged” a firearm during the crime deprived him of notice that he would be subject to a mandatory minimum. There we clarified that “using” a firearm does not necessarily mean that a person “discharged” a firearm. 835 So.2d at 1183.

In this case the state argues that a mere reference to section 775.087(2) in count V is legally sufficient to give a defendant notice that he faces the particular enhancement of 20 years for discharging a firearm. We disagree. Section 775.087 is a comprehensive sentencing enactment on the subject of weapons involved in the commission of felonies and certain resulting enhancements depending on the specific role of the firearm in the offense. The first subdivision addresses the “presence” of a firearm in all felonies. § 775.087(1), Fla. Stat. (2005). It applies to the possession, use, display, threat to use and actual use of a firearm in any felony. Id. If a firearm is present in the commission of any felony, the offense is stepped up a single grade (e.g., a first degree felony becomes a life felony, and so on). Id.

Section 775.087(2), the second subdivision of this statute (the one involved in this case), addresses distinctly different applications of a firearm but only in the commission of several enumerated violent or serious felonies. Subsection (2) has several parts, each subdivided from the others for ease of reference. One of them makes the actual possession of a firearm subject to a minimum mandatory enhancement period of 10 years. § 775.087(2)(a)l, Fla. Stat. (2005). Another makes the actual discharge of the firearm subject to a minimum mandatory enhancement period of 20 years. § 775.087(2)(a)2, Fla. Stat. (2005). Still another makes the actual discharge of a firearm resulting in death or great bodily harm subject to a minimum mandatory enhancement period of not less than 25 years up to a maximum of life in prison. § 775.087(2)(a)3, Fla. Stat. (2005).

In addition to the specified enhancements, section 775.087(2) makes clear that the imposition of the minimum mandatory provisions does not prevent even longer sentences within the statutory máximums. § 775.087(2)(b), Fla. Stat. (2005). In fact it provides that if the minimum mandatory exceeds the statutory maximum, then the maximum is thereby increased and the court must impose the minimum mandatory. Id. Still another provision forbids the sentencing judge from suspending, deferring or withholding of sentences under this statute. Id. Finally, the statute specifies increased punishments for the use of semiautomatic firearms with high capacity detachable box magazines. § 775.087(3)(a)(2), Fla. Stat. (2005).

We hold that merely referring to section 775.087(2) is not sufficient notice that the accused is being charged with discharging a firearm for purposes of its minimum mandatory sentence enhancement. The general reference to subdivision (2) of section 775.087 is not specific enough to give the accused notice of a possible enhancement of 20 years, because this subdivision contains a lesser alternative. If the state desires to give an accused notice of an enhancement possible within subsection (2) of section 775.087 by a mere reference to the statute itself, then it should state the particular sub-subdivision applicable. In this instance, the State should have referred to section 775.087(2)(a)2, Florida Statutes (2005). Its failure to do so renders the notice insufficient.

We therefore reverse the minimum mandatory part of the sentence for count V and remand to correct his sentence to 10 years.

Conviction Affirmed; Sentence on Count V Reversed.

POLEN and TAYLOR, JJ., concur.

      . We note that in another count of the information charging defendant with a separate offense, the state expressly stated that defendant did “actually possess a firearm and discharge it.” The absence of similar text in count V supports our conclusion that he was not given sufficient notice of the requisite fact underlying the statutory enhancement for discharging a firearm during the commission of the armed robbery.