author: THOMAS, J.

text:
    ASSOCIATION OF FLORIDA COMMUNITY DEVELOPERS and Florida Home Builders Association, Appellants, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, St. Johns River Water Management District, and South Florida Water Management District, Appellees.
    No. 1D06-1425.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2006.

      Susan L. Stephens, Miguel Collazo, III, Victoria L. Weber and Frank E. Matthews of Hopping Green & Sams, P.A., Tallahassee, for Appellant Association of Florida Community Developers.
    Edwin A. Steinmeyer of Lewis, Long-man & Walker, P.A., Tallahassee; Stephen Walker of Lewis, Longman & Walker, P.A., West Palm Beach; Keith Hetrick, Tallahassee, for Appellant Florida Home Builders Association.
    Gregory M. Munson, General Counsel, Robert G. Gough, Senior Assistant General Counsel, Betsy Hewitt, Deputy General Counsel, and Christine E. Lamia, Florida Department of Environmental Protection, Tallahassee, for Appellee Department of Environmental Protection.
    Thomas I. Mayton, Jr., Senior Assistant General Counsel, St. Johns River Water Management District, Palatka, for Appel-lee St. Johns River Water Management District.
    Cecile I. Piverotto, Senior Specialist Attorney, South Florida Water Management District, West Palm Beach; Mary F. Smallwood of Ruden McClosky Smith Schuster & Russell, P.A., Tallahassee, for Appellee South Florida Water Management District.
    William E. Williams and J. Kendrick Tucker of Huey, Guilday, Tucker, Schwartz & Williams, P.A., Tallahassee; and E. Thom Rumberger of Rumberger, Kirk & Caldwell, P.A., Tallahassee, for Intervenors Florida Audubon Society, Inc., National Audubon Society, The Everglades Foundation, Inc., and Conservancy of Southwest Florida, Inc.
    Scott Boyd, Executive Director and General Counsel, Joint Administrative Procedures Committee, Tallahassee.
   THOMAS, J.

This is an appeal from a final order of the administrative law judge (ALJ) finding two proposed rules, promulgated by the Department of Environmental Protection (DEP), valid. We affirm, but write only to discuss why the proposed rule is not an invalid exercise of delegated legislative authority under section 120.52(8)(c), Florida Statutes (2005).

Proposed rule 60-40.474 provides:

62-40.474 Reservations.
(1)The governing board or the department, by rule, may reserve water from use by permit applicants, pursuant to section 373.223(4), F.S., in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety. Such reservations shall be subject to periodic review at least every five years, and revised if necessary in light of changed conditions. However, all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest.
(a) Reservations may be used for the protection of fish and wildlife to:
1. Aid in a recovery or prevention strategy for a water resource with an established minimum flow or level;
2. Aid in the restoration of natural systems which provide fish and wildlife habitat;
3. Protect flows or levels that support fish and wildlife before harm occurs;
4. Protect fish and wildlife within an Outstanding Florida Water, an Aquatic Preserve, a state park, or other publicly owned conservation land with significant ecological value; or
5. Prevent withdrawals in any other circumstance required to protect fish and wildlife.
(b) Reservations may be used for the protection of public health and safety to:
1. Prevent sinkhole formation;
2. Prevent or decrease saltwater intrusion;
3. Prevent the movement or withdrawal of groundwater pollutants; or
4. Prevent withdrawals in any other circumstance required to protect public health and safety.
(2) Reservations shall, to the extent practical, clearly describe the location, quantity, timing, and distribution of the water reserved.
(3) Reservations can be adopted prospectively for water quantities anticipated to be made available. When water is reserved prospectively, the reservation rule shall state when the quantities are anticipated to become available and how the reserved quantities will be adjusted if the actual water made available is different than the quantity anticipated.
(4) The District shall conduct an independent scientific peer review of all scientific or technical data, methodologies, and models, including all scientific and technical assumptions employed in each model, used to establish a reservation if the District determines such a review is needed. As part of its determination of the necessity of conducting a peer review, the District shall consider whether a substantially affected person has requested such a review.

After an evidentiary hearing, the ALJ found that Appellants met their burden of going forward with evidence and argument to support a rule challenge to section (l)(a) of the proposed rule, which pertains to the protection of fish and wildlife, and to section (3), which pertains to the prospective adoption of water reservations. The ALJ then concluded that neither section constitutes an invalid exercise of delegated legislative authority under section 120.52(8)(c), Florida Statutes (2005).

Our review of the ALJ’s determination on the validity of the proposed rule is subject to the de novo standard of review. State Bd. of Trustees of the Internal Improvement Trust Fund v. Day Cruise Ass’n, Inc., 794 So.2d 696, 701 (Fla. 1st DCA 2001) (citing § 120.68(7), Fla. Stat. (1999)).

A rule is an invalid exercise of delegated legislative authority when it enlarges, modifies, or contravenes the specific provision of law implemented. § 120.52(8)(e), Fla. Stat. (2005). “Under section 120.52(8)(c), the test is whether a (proposed) rule gives effect to a ‘specific law to be implemented,’ and whether the (proposed) rule implements or interprets ‘specific powers and duties.’ ” Day Cruise, 794 So.2d at 704 (citing § 120.52(8), Fla. Stat. (1999)).

In reviewing whether section (l)(a) of the proposed rule enlarges, modifies, or contravenes the specific provisions of the law implemented, the ALJ concluded that the introductory phrase in proposed rule 62-40.474(l)(a), “Reservations may be used for the protection of fish and wildlife,” expresses the purpose of protecting fish and wildlife. The examples following the introductory phrase in section (l)(a)l.-5. also express a purpose, such as the restoration of a natural system. The ALJ concluded, “DEP intends the introductory phrase to limit the use of water reservations in all the examples that follow to the overarching purpose of protection of fish and wildlife. In all circumstances, the water reservation must be required for the protection of fish and wildlife.”

The ALJ also concluded that section (3) of the proposed rule, which allows DEP or the governing board of a water management district to reserve water prospectively, can be done only if such reservation is required for the protection of fish and wildlife or the protection of public health and safety. As the ALJ stated, “DEP explained that the purpose of this provision is to assure that when a water development project is implemented for the purpose of providing water for the protection of fish and wildlife or public health and safety, ‘the water doesn’t get allocated to permit applicants before it can be used for its intended purpose.’ ”

Based on the ALJ’s finding that the proposed rule permits DEP or the governing board to reserve water only for the purpose of protecting fish and wildlife or protecting the public health and safety, we find that the proposed rule does not enlarge, modify, or contravene section 373.223(4), Florida Statutes (2005), the specific law implemented, which provides,

The governing board or the department, by regulation, may reserve from use by permit applicants, water in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety. Such reservations shall be subject to periodic review and revision in the light of changed conditions. However, all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest.

§ 373.223(4), Fla. Stat. (2005). Section 373.223(4) provides DEP with a broad grant of authority to reserve water in order to protect fish and wildlife or to protect the public health and safety. We find that this broad grant of authority adequately covers the examples contained in the proposed rule. Accordingly, we affirm the ALJ’s final order finding the proposed rule valid.

AFFIRMED.

WOLF and LEWIS, JJ., concur.

      . Appellants also challenge proposed rule 62-40.410(3). Because proposed rule 62-40.410(3) simply references, and is derivative of, proposed rule 62-40.474, it is also valid.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald LALONDE, Appellant/Cross-Appellee, v. CHECKER’S DRIVE-IN RESTAURANTS, INC., and Specialty Risk Services, Inc., Appellees/Cross-Appellants.
    No. 1D05-3160.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2006.
    Paul S. Adams, Fort Lauderdale, for Appellant/Cross-Appellee.
    Kimberly A. Hill of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellees/Cross-Appellants.
   PER CURIAM.

This is an appeal of a final order of the Judge of Compensation Claims (JCC). We affirm all issues raised by Claimant, but reverse both issues raised on cross-appeal.

On cross-appeal, Appellees (E/C) first argue that the JCC erred in awarding temporary total disability (TTD) benefits from April 9, 2002 through November 4, 2002. Although Claimant admitted he was working a reduced number of hours during this period, the JCC awarded TTD benefits after finding that Claimant’s treating physician mistakenly placed him on no-work status. In Garcia-Vina v. U.S. Holiday Health and Recreation, the claimant incorrectly believed that he could not work, thus, he did not; this court explained that a claimant may be entitled to TTD benefits when he is informed that he cannot work, even if this information is error and medical evidence later establishes that the claimant could have, in fact, worked. 634 So.2d 200, 201 (Fla. 1st DCA 1994). However, temporary total disability, by definition, is “total in character, but temporary.” § 440.15(2)(a), Fla. Stat. (2002). Because Claimant was working, albeit at a reduced number of hours, he did not have a disability that was total in character. There is no competent, substantial record evidence establishing that Claimant believed he could not work; therefore, the JCC erred in awarding TTD benefits.

Further, the JCC found that Claimant reached maximum medical improvement on July 1, 2002; therefore, it was error to determine that Claimant was entitled to TTD benefits following attainment of maximum medical improvement. Under the plain language of section 440.15(2)(a), TTD benefits cease when the employee reaches maximum medical improvement.

We find, however, that because Claimant was working a reduced number of hours, he may be entitled to temporary partial disability (TPD) benefits for the period before reaching maximum medical improvement. See Fardella v. Genesis Health, Inc., 917 So.2d 276, 277 (Fla. 1st DCA 2005) (holding that claimant was not entitled to TPD benefits after reaching MMI). Therefore, we remand for factual findings regarding Claimant’s reduction in hours and entitlement to TPD benefits under section 440.15(4), Florida Statutes (2002).

We further find that the JCC erred in failing to rule on E/C’s defense of fraud raised under sections 440.09 and 440.105, Florida Statutes (2002). Both parties agree that fraud was an issue in this case and that Claimant’s false statements affect his eligibility to TPD benefits; therefore, on remand, the JCC should consider whether Claimant knowingly made false, fraudulent, or misleading statements for the purpose of obtaining workers’ compensation benefits. § 440.105(b), Fla. Stat. (2002).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

WOLF, PADOVANO and THOMAS, JJ., concur.


text:
    William Tyrone EALUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2658.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2006.

      William Tyrone Ealum, pro se, Appellant.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s order designating him a sexual predator. We have jurisdiction to review the trial court’s order pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(D). State v. Robinson, 873 So.2d 1205, 1208-09 (Fla.2004). Because the state properly concedes error, we reverse and remand for further proceedings.

Appellant pled nolo contendere to three counts of lewd or lascivious exhibition, which are second-degree felonies. § 800.04(7), Fla. Stat. (2004). After appellant was adjudicated and sentenced to two years in prison, followed by eight years of probation, the state filed a motion for entry of an order designating appellant a sexual predator, pursuant to section 775.21(4), Florida Statutes (2004). However, the state’s motion did not mention whether appellant had any prior convictions. The trial court entered an order the same day as the state’s motion, designating appellant a sexual predator.

Where, as here, the violation of section 800.04 is a second-degree felony, appellant must have a prior conviction for one of the crimes specified by the statute before he can be designated a sexual predator. § 775.21(4)(a)l.b, Fla. Stat. (2004). There is no evidence in the record below that appellant had any prior convictions. Appellant argues on appeal that the trial court improperly designated him a sexual predator.

Appellant failed to assert this argument below. However, appellant had no opportunity to assert his position in the trial court because the order of designation was entered the same day that the state’s motion was filed. Appellant had no notice of the motion seeking sexual predator designation, and the designation was made without a hearing. Additionally, the trial court never made a determination of whether appellant had prior qualifying convictions. As such, this case is indistinguishable from Nicholas v. State, 844 So.2d 826 (Fla. 5th DCA 2003) (reversing and remanding where the appellant pled no contest to lewd and lascivious assault pursuant to section 800.04, Florida Statutes, a second-degree felony, and the trial court’s order designating the appellant a sexual predator was entered without notice and without a hearing, and the appellant argued on appeal that he had no prior qualifying offenses). Because we agree with Nicholas, we reverse the trial court’s order designating appellant a sexual predator, and remand for a hearing upon proper notice, allowing the state to demonstrate by competent evidence that appellant is qualified for the designation, and to allow appellant to contest that designation. See id. at 827.

REVERSED and REMANDED with directions.

BARFIELD, PADOVANO and POLSTON, JJ., concur.


text:
    CSX TRANSPORTATION, INC., Appellant, v. Raymond J. VOSIKA, Appellee.
    No. 1D06-0546.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2006.
    Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
    Frank A. Baker of Baker, Mercer and Young, Marianna, for Appellee.
   PER CURIAM.

In this appeal, Appellant, a railroad company which sought to close a grade crossing used by Appellee and Appellee’s tenants, argues that the trial court erred reversibly in not requiring Appellee to bear more of the cost of the liability risk associated with keeping the crossing open when the trial court decided the amount of compensation due appellant (the servient landowner) from appellee (the dominant landowner) for appellee’s statutory way-of-necessity. See § 704.04, Fla. Stat. (2003). Having considered the record and the arguments on appeal, we conclude that the trial court did not abuse its discretion. Accordingly, we affirm.

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.


text:
    Marshall CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4482.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2006.
    Marshall Carter, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Sullivan v. State, 801 So.2d 185, 186-87 (Fla. 5th DCA 2001).

THOMPSON, PALMER and MONACO, JJ., concur.


text:
    Jeffrey L. USINA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3736.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2006.
    Jeffrey L. Usina, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Dudek v. State, 783 So.2d 331 (Fla. 5th DCA 2001).

PLEUS, C.J., SAWAYA and MONACO, JJ., concur.


author: WEBSTER, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. John Robert WILLIAMS, Appellee.
    No. 1D06-1354.
    District Court of Appeal of Florida, First District.
    Dec. 13, 2006.

      Stephen E. Day, and Rhonda B. Bog-gess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville; Dwane D. Tyson, and Laura L. Starrett of William R. Swain & Associates, Jacksonville, for Appellant.
    Eric S. Block of Law Offices of Eric S. Block, P.A., Jacksonville, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   WEBSTER, J.

In this action by appellee against appellant, his uninsured motorist carrier, seeking damages for injuries allegedly sustained as the result of a collision with another vehicle, appellant seeks review of an order entered after a jury verdict granting a motion for a mistrial made during the trial. Because we agree with appellant’s argument that the trial court erred as a matter of law when it granted the motion for mistrial on the ground that appellant’s attorney had asked a question implying that appellee had settled with a subsequent tortfeasor, we reverse and remand with directions that the trial court reinstate the jury’s verdict.

Appellee was involved in two vehicle collisions separated by roughly two months. In the first, a vehicle driven by an uninsured motorist hit the rear of appellee’s vehicle, after which appellee received treatment for back pain. In the second, appellee was a passenger in a vehicle that collided with another vehicle, rendering appellee unconscious, and requiring that he be taken to the hospital.

Appellee sued appellant, his uninsured motorist carrier, seeking damages for injuries allegedly sustained as the result of the first collision. Before trial, appellant admitted that the uninsured motorist had been negligent, and that appellee had not. Therefore, appellant also admitted that it was liable for any damages incurred as the result of the first accident. At trial, appel-lee maintained that it was not possible to apportion damages attributable to injuries allegedly sustained in the two collisions and that, therefore, appellant was responsible for all damages. Appellant agreed that appellee had not been negligent in the second collision and that, accordingly, if the damages could not be apportioned, it would be responsible for all damages found by the jury to have been incurred. However, appellant maintained that damages could be apportioned.

During cross-examination of appellee’s treating neurologist, appellant’s attorney asked whether the doctor had received a letter from appellee’s attorney notifying the doctor that appellee had “resolved the claim arising out of the [subsequent] accident.” Appellee’s attorney immediately objected (without stating any ground), and the trial court sustained the objection. The trial court then directed the attorneys to approach the bench. Appellee’s attorney demanded a mistrial on the basis that appellant’s attorney had implied that ap-pellee’s claim arising out of the subsequent collision had been settled. However, he requested that the trial court reserve ruling on the motion for a mistrial until after the trial had been concluded. Appellant’s attorney responded that the doctor’s records indicated that, following the letter from appellee’s attorney, the doctor was asked to compromise his bills and then began attributing all charges for treatment to the first collision. He argued that he ought to be permitted to pursue such a line of questions. The trial court agreed to reserve ruling on the motion for mistrial until the trial had been concluded.

At the conclusion of all the evidence, the trial court granted appellee’s motion for a directed verdict on the issues of whether appellee had been injured in the first collision and whether the injury was permanent. However, it denied appellee’s motion for a directed verdict on the issue of apportionment of damages. On the latter issue, the trial court instructed the jury:

If you find that as a result of the [second] accident [appellee] suffered further injury to his low back, you should attempt to determine what portion of his damages resulted from each accident. If you can make that determination, then you should award only those damages caused by the [first] accident. However, if you cannot make that determination, then you should award all such damages that cannot be apportioned.

The jury returned a verdict awarding $8,000 for past medical expenses, $3,200 for future medical expenses, $2,400 for past non-economic damages, and $3,200 for future non-economic damages.

Appellee subsequently requested that the trial court grant the previously made motion for mistrial, and order a new trial. The trial court ultimately granted the motion for mistrial, citing as support for its decision section 768.041(3), Florida Statutes, Muhammad v. Toys “R” Us, Inc., 668 So.2d 254 (Fla. 1st DCA 1996), and Ricks v. Loyola, 822 So.2d 502 (Fla.2002). This appeal follows.

“[W]hen the judge reserves ruling on a mistrial motion until after the trial, or the motion is not made until after the discharge of the jury, then the motion must be considered a motion for new trial.” Keene Bros. Trucking, Inc. v. Pennell, 614 So.2d 1083, 1085 (Fla.1993) (emphasis in original). Accordingly, we have jurisdiction. See Art. V, § 4(b)(1), Fla. Const. (“District courts of appeal ... may review interlocutory orders ... to the extent provided by rules adopted by the supreme court”); Fla. R.App. P. 9.130(a)(4) (“orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in rule 9.110”); Fla. R.App. P. 9.110(a)(4) (providing for review of “orders granting a new trial in jury and non-jury civil and criminal cases described in rules 9.130(a)(4) and 9.140(c)(1)(C)”).

As a general rule, the standard of review applicable to a ruling on a motion seeking a new trial is abuse of discretion. E.g., Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998). That is because motions seeking a new trial frequently address discretionary issues, such as whether the verdict was against the manifest weight of the evidence. Philip J. Padovano, Florida Appellate Practice § 9.5, at 171 (2006 ed.). However, when a motion for new trial addresses only issues of law, the standard of review is essentially de novo. Id. at 171 & n. 18. See generally Krolick v. Monroe ex rel. Monroe, 909 So.2d 910, 914 (Fla. 2d DCA 2005); Heckford v. Fla. Dep’t of Corr., 699 So.2d 247, 250 (Fla. 1st DCA 1997). Here, it is apparent from the trial court’s order that the decision to grant the motion for a mistrial was based exclusively on the trial court’s interpretation of section 768.041(8), Florida Statutes (2005). This is because the only legal authority cited in support of the decision consisted of that statute, and two cases — Muhammad v. Toys “R” Us, Inc., 668 So.2d 254 (Fla. 1st DCA 1996), and Ricks v. Loyola, 822 So.2d 502 (Fla. 2002) — and both of those cases relied for the decision reached on section 768.041(3). Muhammad, 668 So.2d at 256; Ricks, 822 So.2d at 507-08. Because interpretation of a statute is a pure question of law, we review the trial court’s interpretation de novo. See, e.g., Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998).

Section 768.041 reads:

(1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death.
(2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.
(3)The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

By its relatively clear language, it is apparent that the legislature intended section 768.041 to apply only to cases involving joint tortfeasors. Subsection (1) states that “[a] release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.” (Emphasis added.) Subsection (3), which was the basis for the trial court’s ruling, states in pertinent part that “[t]he fact of such a release or covenant not to sue ... shall not be made known to the jury.” (Emphasis added.) Read in context (as it must be), it is apparent that the releases or covenants not to sue which section 768.041(3) proscribes from being made known to a jury are those referred to in subsection (1) — i.e., those reached with “any other tortfeasor who may be liable for the same tort or death.” In other words, section 768.041(3) only proscribes informing a jury about settlements involving joint tortfeasors. Here, the negligent party in the second collision is not a joint tortfeasor with the negligent party in the first collision; he is, instead, a subsequent tortfeasor. The statute does not purport to apply to settlements involving subsequent tortfeasors. We can think of no reason why we should rewrite the statute for appellee’s benefit. If that is to be done, it must be done by the legislature, not us. We note that the only other Florida decision we have been able to discover which addresses this issue reaches the same result, albeit in a somewhat different factual setting. See Broz v. Rodriguez, 891 So.2d 1205, 1207 (Fla. 4th DCA) (reasoning that, had the legislature intended the statute to apply to settlements involving subsequent tortfeasors as well as joint tortfeasors, it would have referred in subsection (1) to “same injury” or “same damages” rather than “same tort”), review denied, 907 So.2d 1170 (Fla.2005).

We conclude that section 768.041(3) has no bearing on the situation that occasioned appellee’s motion for a mistrial. Thus, cases such as Muhammad and Ricks have no bearing on the outcome here, and, accordingly, the trial court erred when it reached the contrary conclusion; granted the motion for a mistrial; set aside the jury’s verdict; and ordered a new trial.

The conclusion we reach is not at odds with the general policy, relied on in cases like Muhammad and Ricks, that evidence of a settlement by one joint tortfeasor is inadmissible in a trial against other joint tortfeasors. That policy is based on the proposition that “[t]he harm done by mentioning settlements is that the jury may believe that ‘where there has been a payment there must have been liability.’ ” Vucinich v. Ross, 893 So.2d 690, 694 (Fla. 5th DCA 2005) (quoting from City of Coral Gables v. Jordan, 186 So.2d 60, 63 (Fla. 3d DCA 1966)). No such consideration was present here because liability had been admitted, and the sole issue was apportionment of damages between the two accidents. Given the factual setting, the settlement between appellee and the party responsible for the second collision was relevant because it was intended to explain why doctor bills which before the settlement had indicated they were attributable to the second accident began indicating after the settlement that treatment was attributable to the first accident. Other jurisdictions which have considered this issue have reached a similar result. See Page v. Guidry, 506 So.2d 854, 857 (La.Ct. App.1987) (holding that evidence of settlement agreements arising out of prior and subsequent automobile accidents was admissible where the insurer admitted liability and the evidence aided the jury’s apportionment of damages caused by the various accidents and the jury’s determination of plaintiffs credibility); Olson v. Hayes, 37 Or.App. 583, 588 P.2d 68, 71-72 (1978) (holding that evidence of settlement in a subsequent automobile accident was admissible to determine what portion of the plaintiffs injuries was attributable to the second accident).

In summary, we reverse the trial court’s order granting appellee’s motion for a mistrial, and remand with directions that the trial court reinstate the jury’s verdict.

REVERSED and REMANDED, with directions.

BENTON and VAN NORTWICK, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Marco OSTOLAZA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5245.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2006.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Marco Antonio Ostolaza argues that the trial court erred by denying a motion to continue his jury trial when his sole defense witness failed to appear despite being subpoenaed for trial. We agree and reverse.

Ostolaza was charged with burglary of a dwelling, which is defined as entering or remaining in a dwelling “with the intent to commit an offense therein.” § 810.02(l)(a), Fla. Stat. (2004). Ostolaza contended that he entered the dwelling with a friend who said that it was his house and that he had no intention of committing an offense. The friend, Luis Rivera, was subpoenaed as a defense witness for trial, and defense counsel announced at the beginning of trial that he was expecting Rivera’s appearance in the afternoon. After the State rested, defense counsel advised the court that he had learned that Rivera was refusing to come. Defense counsel asked for a continuance and the court’s assistance in compelling Rivera’s presence, explaining that this witness was the heart of Ostolaza’s defense. The court allowed defense counsel an opportunity to secure the witness or research alternatives during the hour-and-a-half lunch recess.

After lunch and without Rivera’s presence, defense counsel requested a continuance and asked the court to issue a writ of bodily attachment to compel Rivera’s attendance. He argued that his client had a Sixth Amendment right to the compulsory attendance of witnesses and to judicial enforcement of that right. See Sims v. State, 867 So.2d 1208 (Fla. 3d DCA 2004) (reversing based on trial court’s failure to issue writ of bodily attachment to procure presence of witness). The court refused. Os-tolaza testified as the only defense witness, and he was subsequently convicted as charged.

To warrant a continuance under these circumstances, Ostolaza was required to show: “(1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance caused material prejudice.” Geralds v. State, 674 So.2d 96, 99 (Fla.1996). The court’s decision is reviewed for an abuse of discretion. Id.

The State conceded, and the trial court found, that there had been due diligence to obtain Rivera’s presence. The other three factors were disputed. To demonstrate that Rivera would give substantially favorable testimony, defense counsel referred to Rivera’s deposition testimony. According to Rivera, he and Os-tolaza were inebriated on the evening in question. He brought Ostolaza to what he mistook for his own house and attempted to enter it so that they could sleep off their conditions. The State pointed out that Rivera had pleaded guilty to a burglary charge arising out of the same episode. But defense counsel noted, and we agree, that Rivera’s plea was a subject for cross-examination, given the many reasons other than guilt that may motivate defendants to resolve cases. Clearly, the defense demonstrated that Rivera would have given favorable testimony.

We also conclude that Ostolaza suffered material prejudice when the court refused to grant the continuance. Rivera’s testimony went to the heart of the defense. See Robinson v. State, 561 So.2d 419, 421 n. 3 (Fla. 1st DCA 1990) (noting that court’s denial of continuance to allow defense to obtain witness who failed to honor subpoena “virtually eliminated the defendant’s option of not testifying”).

To demonstrate that Rivera was available and willing to testify, defense counsel recounted that Rivera had agreed to testify and had made arrangements with defense counsel to be picked up. But when the time came, “he started giving ... a lot of reasons: He is working; he is dirty; his boss is going to fire him. Those kinds of reasons.” Other than Rivera’s failure to honor the subpoena, nothing in the record shows that he was either unavailable or unwilling to testify. Cf Smith v. State, 873 So.2d 1289 (Fla. 1st DCA 2004) (finding abuse of discretion in trial court’s denial of continuance and noting “that, although the witnesses were avoiding service of a subpoena at the time of trial, on one occasion the witnesses had appeared in court and were willing to testify”).

Given the importance of this witness’s testimony, and the fundamental nature of a criminal defendant’s right to the compulsory attendance of witnesses, we conclude that the trial court abused its discretion by not granting at least a short continuance in this case. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ„ Concur.


author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. LeRoy GREEN, Appellee.
    No. 2D05-849.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.
   ALTENBERND, Judge.

The State appeals an order granting LeRoy Green’s motion to suppress cocaine, cannabis, and drug paraphernalia. Police officers seized this contraband from Mr. Green’s locked car, using keys they obtained from Mr. Green when they arrested him for gambling. Because the “automobile exception” permitted the warrantless search of the vehicle once officers saw the contraband inside, we reverse the order granting the motion to suppress and remand for further proceedings. '

On July 17, 2004, police officers patrolling an apartment complex found Mr. Green and a group of people engaged in gambling. Mr. Green was arrested for this offense and a search incident to his arrest revealed keys to a Ford Taurus. One officer began to look for the car that the keys would open and ultimately found Mr. Green’s gold Ford Taurus. The officer shined a flashlight into the windows of the Taurus and observed a razor blade with white residue on it, lying on the car’s center console. Believing the residue to be cocaine, the officer used Mr. Green’s keys to open the door of the car. The officer subsequently seized cocaine, cannabis, and drug paraphernalia from the vehicle.

Mr. Green was charged with gambling, possession of cocaine with intent to sell or deliver, possession of cannabis, possession of drug paraphernalia, and obstructing or opposing an officer without violence. He filed a motion to suppress the cocaine, cannabis, and paraphernalia seized from his vehicle, arguing the officers were required to obtain a warrant prior to searching his vehicle and seizing the contraband inside.. The circuit court granted this motion.

Mr. Green did not challenge his arrest or the manner in which the officer obtained the keys to his car. He argued instead that the officer could not enter the vehicle to seize the contraband until after the officer obtained a warrant. We conclude, however, that upon viewing the razor blade and cocaine on the center console, the officer was authorized to enter the car and seize the contraband.

Initially, we note that the shining of the flashlight into the vehicle was not a search and thus did not implicate Fourth Amendment protections. See Roberts v. State, 566 So.2d 848 (Fla. 5th DCA 1990); State v. Billingsly, 542 So.2d 444 (Fla. 5th DCA 1989) (citing Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)). Once the officer illuminated the inside of the vehicle and saw the razor blade with a white powdery residue, the officer had probable cause to believe the car contained cocaine. Billingsly, 542 So.2d at 445-46 (holding that observation of mirror, white powdery substance, and razor blade in vehicle provided probable cause to arrest owner for possession of contraband).

Pursuant to Pennsylvania v. Labran, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996), if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more. Id. (citing Cal. v. Carney, 471 U.S. 386, 393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985)); see also United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This “automobile exception” to the warrant requirement was applied in Labron, even though the owner of the vehicle was arrested and the vehicle was parked, thus making the movement of the vehicle highly unlikely.

The Supreme Court eases applying the “automobile exception” to the warrant requirement rely on two distinct rationales: that the automobile’s mobility may provide exigent circumstances requiring an immediate search and that a person possesses a reduced expectation of privacy concerning the contents of an automobile. See, e.g., Carney, 471 U.S. at 390-93, 105 S.Ct. 2066. Thus, in Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982), the Supreme Court stated:

In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), we held that when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody. We firmly reiterated this holding in Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975). See also United States v. Ross, 456 U.S. 798, 807 n. 9, 102 S.Ct. 2157, 2163 n. 9, 72 L.Ed.2d 572 (1982). It is thus clear that the justification to conduct such a warrantless search does not vanish once the ear has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant. See ibid.

Id. at 261, 102 S.Ct. 3079 (footnote omitted).

As such, Florida cases issued after Thomas and Carney applying the “automobile exception” to the warrantless search of a vehicle based upon probable cause do not weigh the circumstances to determine if it was reasonable for officers to obtain a search warrant, as argued by Mr. Green, or whether specific “exigent circumstances” prevented them from doing so. See State v. Hill, 770 So.2d 280 (Fla. 5th DCA 2000); Mylock v. State, 750 So.2d 144 (Fla. 1st DCA 2000); State v. Hicks, 579 So.2d 836 (Fla. 1st DCA 1991). Once probable cause is established, the officers may search the vehicle.

The warrantless search of Mr. Green’s car was thus authorized once the officer saw the razor blade and white powdery residue through the window. Hill, 770 So.2d 280; Hicks, 579 So.2d 836. We therefore reverse the order granting Mr. Green’s motion to suppress and remand for further proceedings.

Reversed and remanded for further proceedings.

WHATLEY and CASANUEVA, JJ., Concur.

      . We note there are some cases that might imply, contrary to the holding in Thomas, that the automobile exception applies only when exigent circumstances exist to excuse the ap- . plication for a warrant. See, e.g., Jaimes v. State, 862 So.2d 833, 836 (Fla. 2d DCA 2003) (emphasis added) (citations omitted) (stating, “Absent a search warrant, there are three valid means by which law enforcement may search a vehicle: (1) incident to a valid arrest of a recent occupant of the vehicle; (2) under the 'automobile exception' to the warrant requirement, which requires exigent circumstances coupled with probable cause; and (3) when a vehicle has been impounded, as part of a reasonable inventory search following standardized procedure"); see also Union v. State, 660 So.2d 803 (Fla. 2d DCA 1995); Walker v. State, 636 So.2d 583 (Fla. 2d DCA 1994). These cases, however, involve searches performed incident to an arrest or without probable cause — not searches in which there was evidence of a crime inside tire vehicle in plain view. Given the Supreme Court's unequivocal holding in Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750, no exigent circumstances are required in order to apply the automobile exception to the warrant requirement. See State v. Starkey, 559 So.2d 335, 338-39 (Fla. 1st DCA 1990) ("We understand from the holding in Carney that the police are now free to search any vehicle, any time, and any place ... simply because the police have probable cause to believe that the vehicle contains contraband or other evidence of a crime. It is our understanding that the Carney holding has eliminated any Fourth Amendment requirement for a warrant or showing of exigent circumstances.”).


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    Andrew J. WERNER, Appellant, v. ESTATE OF Vivian K. McCLOSKEY a/k/a Vivian Mary McCloskey, Appellee.
    No. 1D06-3520.
    District Court of Appeal of Florida, First District.
    Dec. 13, 2006.
    William Nussbaum, and Hollyn J. Foster of Slott, Barker & Nussbaum, Jacksonville, for Appellant.

      Frederick R. Brock of Gartner, Brock and Simon, Jacksonville, for Appellee.
   WEBSTER, J.

Appellant, the personal representative named in his late mother’s will, seeks review of a final order denying his request that he be appointed personal representative and, instead, appointing his sister, Ann Niznik, who had been named by their mother as alternate personal representative should appellant be unable to serve. Because we conclude that no legal basis existed for denying appellant’s request, we reverse and remand with directions that the trial court replace Ms. Niznik with appellant.

Section 733.301(l)(a), Florida Statutes (2005), provides that, in testate estates, preference in granting letters of administration must be accorded to “[t]he personal representative ... nominated by the will....” Moreover, “[i]t is a well recognized principle of law that a testator has the right to name the person who shall administer his estate provided such person is not disqualified by law.” Pontrello v. Estate of Kepler, 528 So.2d 441, 442 (Fla. 2d DCA 1988) (citations omitted). “The general rule is that trial courts are without discretion to refuse to appoint the personal representative specified by the testator in the will unless the person is expressly disqualified under the statute or discretion is granted within the statute.” In re Estate of Miller, 568 So.2d 487, 489 (Fla. 1st DCA 1990) (citations omitted).

Here, the trial court appointed Ms. Niznik rather than appellant because it concluded that appellant “ha[d] a conflict of interest with the estate” (the precise nature of which was not identified). Nothing in section 733.301(l)(a) purports to vest discretion in the trial courts to disregard the preference there specified, as long as the personal representative nominated by the decedent is statutorily qualified to serve. Sections 733.302 and 733.303(1), together, set out the qualifications required of one who wishes to serve as a personal representative. Section 733.302 requires that the person be “sui juris” and “a resident of Florida at the time of the death of the person whose estate is to be administered.” It is undisputed that appellant satisfied these two requirements. Section 733.303(1) states that one who “[h]as been convicted of a felony,” “[i]s mentally or physically unable to perform the duties,” or “[i]s under the age of 18 years” is not qualified to serve. There is no suggestion that appellant suffers from any of these deficiencies. In short, there is nothing in the relevant provisions of the Florida Probate Code that suggests that a person named in a decedent’s will as personal representative need not be appointed if he or she has a conflict of interest with the estate. We must, of course, give effect to the intent of the legislature as expressed by the words used. However, even were this not the case, we would reverse because our review of the record reveals no competent substantial evidence from which a trier of fact might conclude that appellant did, in fact, have a conflict of interest at the time he requested appointment. We note that, to the extent that, on remand, there exists a legitimate concern about whether appellant has a conflict of interest, section 733.504(9), which lists causes for removal of a personal representative once appointed, includes as a ground “Molding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole.”

We reverse the trial court’s appointment of Ms. Niznik, and remand with directions that the trial court substitute appellant as personal representative.

REVERSED and REMANDED, with directions.

BENTON and VAN NORTWICK, JJ., concur.


text:
    Robert MORTENSEN, Individually, and as Trustee, Appellant, v. James G. GATES and Kimberly Stadther Gates, husband and wife, Sweet Water Realty, Inc., Karen K. Cudd, and Debi Freed, Appellees.
    No. 1D06-4502.
    District Court of Appeal of Florida, First District.
    Dec. 13, 2006.
    Charles P. Hoskin of Emmanuel, Sheppard and Condon, Pensacola, for Appellant.
    Bill B. McEachern, Jr., Pensacola and James L. Chase of Chase, Quinnell and Jackson, Pensacola, for Appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order dated September 20, 2006, this appeal is hereby DISMISSED. The order on appeal merely granted a motion for summary judgment without entering judgment. Therefore, the order did not bring an end to the judicial labor as to the claim for specific performance. Dixon v. Allstate Ins. Co., 609 So.2d 71, 72 (Fla. 1st DCA 1992). Additionally, a claim for specific performance of a contract is related to a claim for damages for breach of the same contract. “The test is whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in the separate counts.” Altair Maintenance Serv., Inc. v. GBS Excavating, Inc., 655 So.2d 1281, 1282 (Fla. 4th DCA 1995).

The “Appellant’s Motion for Extention [sic] of Time to File Initial Brief,” filed in this Court on October 26, 2006, is denied as moot.

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    James CASEN, Petitioner, v. James R. McDONOUGH, Florida Department of Corrections, Respondent.
    No. 1D06-1216.
    District Court of Appeal of Florida, First District.
    Dec. 13, 2006.
    James Casen, pro se, Petitioner.
    Rosa Carson, General Counsel, Department of Corrections; Charlie Crist, Attorney General, and Sean F. Callaghan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

James Casen seeks a writ of certiorari in order to review an order denying his petition for a writ of mandamus by which he challenged disciplinary action taken against him by the Department of Corrections. We deny certiorari relief as to the merits of the order entered below. However, the circuit court did err in placing a lien against Casen’s inmate trust account since the proceeding below challenged, in part, the loss of gain time and, thus, the proceeding below was a collateral criminal proceeding for which Casen was not subject to an assessment of costs. See Terry v. McDonough, 935 So.2d 81 (Fla. 1st DCA 2006); Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

Accordingly, we grant Casen’s certiorari petition and quash that part of the order entered below imposing a lien, and we remand for reimbursement of any funds which may have been withdrawn to satisfy the lien.

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


author: CORTIÑAS, Judge.

text:
    Arnulfo MORENO and Yamileth Moreno, Appellants, v. Jose DIAZ and George Lopez, Appellees.
    No. 3D06-241.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.
    Beckham & Beckham and Robert Beck-ham, Miami, for appellants.
    Douberley & Cicero and William M. Douberley, Sunrise, for appellees.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   CORTIÑAS, Judge.

The plaintiffs, Arnulfo Moreno and his wife Yamileth Moreno (collectively “the Morenos”), appeal an order granting George Lopez and Jose Diaz’s (collectively “defendants”) motion for remittitur or new trial as to past and future medical expenses awarded by a jury. We affirm.

Arnulfo Moreno was injured in a rear-end motor vehicle collision with the defendants. The Morenos sued the defendants and sought compensatory damages for past medical expenses, future medical expenses, past and future lost wages, pain and suffering, and loss of consortium. Specifically, Arnulfo Moreno alleged that as a result of the collision, he suffered two herniated discs in his lower back and injuries to his hand, which required surgery.

The defendants admitted liability and a jury trial was held on the issue of damages only. At trial, the jury heard conflicting evidence from six medical doctors regarding Arnulfo Moreno’s injuries. A neurosurgeon, one of the Morenos’ experts, testified that statistically twenty-five percent (25%) of people with Arnulfo Moreno’s back injury would require additional surgery within ten (10) years. He testified that the cost of that surgery was between $50,000 and $75,000, with an additional $8000 to $4000 for rehabilitative therapy. Additionally, an orthopedic surgeon, also a medical expert for the Morenos, stated that the back surgery, if necessary, would cost between $60,000 and $80,000. Although the jury ultimately found that Arnulfo Moreno was not permanently injured as a result of the collision, it awarded the Morenos $171,000 in future medical expenses. Additionally, the jury also awarded the Morenos $110,000 in past medical expenses.

Thereafter, the defendants filed a motion to reduce the verdict by $10,000 as a set-off for PIP benefits, and a motion for remittitur or new trial on the issue of past and future medical expenses. At the hearing on the post-trial motions, the defendants agreed to reduce the amount of past medical expenses to $100,000, less the PIP setoff. However, the trial court found that the record did not support an award of future medical expenses in excess of $79,000. The trial court issued an order granting the defendants’ motion for remit-titur or, alternatively, if the Morenos did not agree with the remittitur, granting a new trial. The Morenos rejected the re-mittitur and filed this appeal.

A trial court’s order for remitti-tur or new trial is reviewed for abuse of discretion. See Russell v. KSL Hotel Corp., 887 So.2d 372, 377-81 (Fla. 3d DCA 2004) (citing Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999)); McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So.2d 7, 9 (Fla. 1st DCA 2003) (citations omitted). If the jury verdict is excessive, remittitur is the appropriate remedy. McCarthy, 849 So.2d at 9. A trial judge may set aside a jury’s verdict on grounds of excessiveness and order remittitur if the record affirmatively shows the impropriety of the verdict, or if the trial judge makes a determination that the jury was influenced by factors outside the record. See Kaine v. Gov’t Employees Ins. Co., 735 So.2d 599, 600-01 (Fla. 3d DCA 1999) (citing Bould v. Touchette, 349 So.2d 1181, 1184 (Fla.1977)) (ordering the trial court to reinstate the jury’s verdict upon finding that the record revealed sufficient evidence to support the amount awarded for loss of past earnings).

In Auto-Owners Insurance Co. v. Tompkins, 651 So.2d 89, 90 (Fla.1995), the Florida Supreme Court held that a jury-need not find that a plaintiff suffered a permanent injury before it can award future economic damages. Nevertheless, it is well-established that a plaintiff is only entitled to damages for future medical expenses which are supported by sufficient evidence in the record. See, e.g., Garriga v. Guerra, 753 So.2d 146, 147-48 (Fla. 3d DCA 2000) (citations omitted); Fravel v. Haughey, 727 So.2d 1033, 1037-38 (Fla. 5th DCA 1999)(finding that an award in the amount of $200,000 for future medical expenses was not supported by the evidence where the plaintiffs doctor testified that a future surgery would cost between $20,000 and $25,000); Nuta v. Genders, 617 So.2d 329, 331 (Fla. 3d DCA 1993)(re-versing part of a judgment awarding future medical expenses where the plaintiff presented no evidence regarding a specific amount for future medical expenses); Broward Cmty. Coll. v. Schwartz, 616 So.2d 1040, 1041 (Fla. 4th DCA 1993)(finding that the evidence was insufficient to support an award for future medical expenses in excess of $300 where the plaintiffs doctor testified that the plaintiff may require an additional surgery at a cost of $300); cf. Metrolimo, Inc. v. Lamm, 666 So.2d 552, 553 (Fla. 3d DCA 1995)(finding that an award in the amount of $150,000 for future medical expenses and nursing care was supported by the testimony of the plaintiffs medical experts).

Here, we agree with the Morenos’ contention that the jury did not have to find that Arnulfo Moreno sustained a permanent injury to award future medical expenses. Recovery for future medical expenses in this case is permitted, as long as there is sufficient evidence that Arnulfo Moreno would reasonably incur medical expenses for a condition arising from the motor vehicle collision. However, as the Morenos also contend on appeal, the jury’s verdict for future, medical expenses, $171,000, must be supported by sufficient evidence in the record before us.

In conjunction with the well-established Florida law on remittitur, section 768.74, Florida Statutes (2001), delineates certain criteria a trial court must follow in determining if an award is excessive and, therefore, contrary to the weight of the evidence. See Fravel, 727 So.2d at 1037; Kaine, 735 So.2d at 601. Section 768.74(5) states, in relevant part, as follows:

(5) In determining whether an award is excessive or inadequate in light of the facts-and circumstances presented to the ■trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amount of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Wfiiether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

Here, our review of the record reveals that there is insufficient evidence to support an award for Arnulfo Moreno’s future medical expenses in the amount of $171,000. Moreover, the trial judge was correct in finding that the amount awarded does not bear a reasonable relationship to the damages proved at trial. See § 768.74(5)(e), Fla. Stat. (2001). Arnulfo Moreno presented testimony from two experts regarding his future medical expenses. The testimony of both the neurosurgeon and the orthopedic surgeon described the type of surgery and the cost of the surgery that Mr. Moreno may need to undergo in the future. The expert testimony clearly showed that there is a twenty-five percent (25%) probability that Mr. Moreno may require one additional surgery at an estimated cost of $79,000 or less. Therefore, we find that the amount awarded by the jury, $171,000, was not within the range testified to by the Morenos’ medical experts and was not reasonably related to the damages actually proven.

Accordingly, we affirm the trial court’s order granting the defendants’ motion for remittitur or new trial as to past and future medical expenses awarded by the jury. See § 768.74(4), Fla. (2001)(“If the party adversely affected by such remittitur ... does not agree, the court shall order a new trial in the cause on the issue of damages only.”).

Affirmed.

      . Defendant Lopez was driving defendant Diaz’s motor vehicle with his permission.

      . Notably, the trial court did not admit Arnulfo Moreno’s past medical records into evidence; therefore, the jury based its decision on the expert testimony presented by the parties.

      .The defendants stipulate to the $100,000 figure for past medical expenses only for purposes of the instant appeal. If there is to be a new trial on damages, the defendants maintain that the Morenos will have to prove both past and future medical expenses.

      . Section 768.043, Florida Statutes (2001), similarly authorizes remittitur in actions arising from the operation of motor vehicles.


text:
    Detlef SAUER, Appellant, v. Yolanda SAUER, Appellee.
    No. 3D04-2550.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.
    Cain & Snihur and May L. Cain, Miami, for appellant.
    Contreras, Jonasz & Camacho and Jonathan Jonasz, Coral Gables; Richard J. Preira, Miami Beach, for appellee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

In this dissolution matter the former husband appeals the final judgment and raises numerous issues. We affirm in all respects, but remand for correction of a mathematical error in the final judgment. On Page 15 of the final judgment, the former husband’s net monthly income, after payment of his alimony obligations, should be $5,356.74 instead of the $6,106 found by the court. The former wife acknowledges that the former husband’s child support obligation, therefore, would be 64% or $1,642.24 rather than the 67% or $1,793.35 found by the court. We therefore remand the case for correction of these errors.

Affirmed and remanded for corrections.


text:
    Terezinha SAEZ, Appellant, v. ENTERPRISE LEASING COMPANY, a Foreign Corporation, and Allstate Insurance Company, a Foreign Corporation, Appellees.
    No. 4D06-1235.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.
    Carlos A. Bodden of Ellis & Ged, P.A., Boca Raton, for appellant.
    Christopher W. Wadsworth and Lawrence E. Root of Wadsworth & King, L.L.L.P., Miami, for appellee Enterprise Leasing Company, a Foreign Corporation.
   PER CURIAM.

Affirmed. See McKnight v. Evancheck, 907 So.2d 699, 700 (Fla. 4th DCA 2005).

KLEIN, HAZOURI and MAY, JJ., concur.


text:
    James Arthur THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4778.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, 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.

Affirmed. Hite v. State, 718 So.2d 270 (Fla. 5th DCA 1998).

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


text:
    James S. PENDERGRAFT, IV, M.D., Petitioner, v. DEPARTMENT OF HEALTH, Respondent.
    No. 1D06-4344.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2006.
    Kathryn L. Kasprzak of Fowler White Boggs, Banker, P.A. Orlando and Kenneth J. Metzger, Tallahassee, for Petitioner.

      Timothy M. Cerio, General Counsel, and Mari Presley, Deputy General Counsel, Department of Health, Prosecution Services Unit, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Broyles v. State, Dep’t of Health, 776 So.2d 340 (Fla. 1st DCA 2001).

KAHN, HAWKES and THOMAS, JJ., concur.


author: FULMER, Chief Judge.

text:
    Eugene Kester HORTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-0255.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2006.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Chief Judge.

Eugene Kester Horton challenges his conviction for failure of a sex offender to report a change of address, a violation of section 943.0435, Florida Statutes (2004). He raises two issues on appeal. We reject without discussion Horton’s assertion that the evidence was insufficient to survive his motion for judgment of acquittal. However, on the second issue we reverse and remand for a new trial because we agree that the trial court erred in allowing the State to introduce into evidence Horton’s prior conviction for the same offense.

At the start of the trial, by a motion in limine, the State indicated its intention to introduce evidence of Horton’s prior conviction in order to show that Horton was on notice of the requirement that he report a change of address. The defense objected, arguing that it was not contesting the notice element of the offense and therefore the prior conviction was substantially more prejudicial than probative. The defense also asserted that the State had other, less prejudicial evidence which would demonstrate Horton’s actual notice of the requirement, including a form signed by Horton acknowledging the registration and change of address requirement. The trial court overruled the defense objection and allowed the State to introduce an exhibit consisting of documents showing the prior conviction.

Both in the trial court and on appeal, the State cites section 943.0435(9)(c) as justification for the trial court’s decision to allow the prior conviction. The trial court agreed with the State’s argument and interpreted section 943.0435(9)(c) as authority for the State to introduce the prior conviction.

Section 943.0435(9), provides:

(9)(a) A sexual offender who does not comply with the requirements of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) A sexual offender who commits any act or omission in violation of this section may be prosecuted for the act or omission in the county in which the act or omission was committed, the county of the last registered address of the sexual offender, or the county in which the conviction occurred for the offense or offenses' that meet the criteria for designating a person as a sexual offender.
(c) An arrest on charges of failure to register when the offender has been provided and advised of his or her statutory obligations to register under subsection (2), the service of an information or a complaint for a violation of this section, or an arraignment on charges for a violation of this section constitutes actual notice of the duty to register. A sexual offender’s failure to immediately register as required by this section following such arrest, service, or arraignment constitutes grounds for a subsequent charge of failure to register. A sexual offender charged with the crime of failure to register who asserts, or intends to assert, a lack of notice of the duty to register as a defense to a charge of failure to register shall immediately register as required by this section. A sexual offender who is charged with a subsequent failure to register may not assert the defense of a lack of notice of the duty to register.
(d)Registration following such arrest, service, or arraignment is not a defense and does not relieve the sexual offender of criminal liability for the failure to register.

We do not read subsection (9)(c) of this statute as authorizing the introduction of a prior conviction as substantive evidence. Although a prior conviction would tend to prove that a defendant had actual notice of the duty to register, the trial court should have analyzed the question of its admissibility by applying the balancing test required under section 90.403, Florida Statutes (2004). Professor Ehrhardt has described a trial court’s responsibility in applying section 90.403:

The court must weigh the logical strength of the proffered evidence to prove a material fact or issue against the other facts in the record and balance it against the strength of the reason for exclusion. In undertaking this balancing, the trial judge may consider the need for the particular evidence, the availability of alternative means of proof, and the likelihood that the jury will follow a limiting instruction by the court. The burden is on the objecting party to demonstrate that the probative value is “substantively outweighed” by one of the countervailing factors.

Charles W. Ehrhardt, Florida Evidence § 403.1 (2006 ed.) (footnotes omitted).

The evidence of Horton’s prior conviction had no probative value as to any disputed issue. Although the State was required to show that Horton had notice of the duty to register, the notice element was not a disputed issue at trial because Horton was not asserting, and could not assert pursuant to section 943.0435(9)(c), lack of notice as a defense. Under subsection (9)(c), “[a] sexual offender who is charged with a subsequent failure to register may not assert the defense of a lack of notice of the duty to register.” Amd, it was undisputed that the State had available other less prejudicial evidence that could have satisfied the notice element (e.g., the form Horton signed when he was released from prison acknowledging the address change requirement).

We agree with Horton that the prejudice outweighed the probative value of the prior conviction, and because the trial court failed to conduct a proper analysis under section 90.403, it abused its discretion in allowing the prior conviction into evidence. See Brown v. State, 719 So.2d 882, 887 (Fla.1998) (discussing section 90.403 balancing).

Reversed and remanded for a new trial.

KELLY, J„ and NIELSEN, RICHARD A., Associate Judge, Concur.


text:
    Reashad ROSIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2899.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2006.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed without prejudice to Reashad Rosier’s right, if any, to file a timely and sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850.

WHATLEY, NORTHCUTT, and WALLACE, JJ., Concur.


text:
    Phynerrian Q. MANNING, Appellant, v. Guy TUNNELL, as sheriff of Bay County Florida, Bay County and Corrections Corporation of America, Appellees.
    No. 1D04-0416.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2006.

      Phynerrian Q. Manning, pro se, Appellant.
    Clifford C. Higby and Tiffany A. Brown of Bryant & Higby, Panama City, for Ap-pellees.
   Opinion on Motion for Rehearing

PER CURIAM.

Appellant’s motion for rehearing is denied. The court’s opinion filed February 3, 2006, is withdrawn and the following opinion is substituted for clarification.

Phynerrian Q. Manning appeals a final order dismissing with prejudice, pursuant to the statute of limitations, section 95.11, Florida Statutes (2003), his complaint against appellees, Guy Tunnell, as sheriff of Bay County, Florida, Bay County, and the Corrections Corporation of America, in which he sought to state claims based upon alleged deprivations of his constitutional rights and false imprisonment. This appeal concerns only the dismissal as to defendants Bay County and Corrections Corporation of America; the order of dismissal as to the Sheriff, Guy Tunnell, was previously affirmed by this court. Manning v. Tunnell, 908 So.2d 1061 (Fla. 1st DCA 2005).

Appellant argues on appeal that the trial court erred in failing to apply the equitable tolling provision of 28 U.S.C. § 1367(d) to prevent the limitations period from expiring while he was pursuing claims in federal court. See Jinks v. Richland County, 538 U.S. 456, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003). The appellant, however, did not raise the tolling provisions of 28 U.S.C. § 1367(d) before the trial court specifically as to the allegations against Bay County, which was named as a defendant only in count I of the verified complaint, and therefore, as to Bay County, this defense was waived. As a general rule, an appellate court cannot address claims raised for the first time on appeal. See, e.g., Krasnick v. State, 780 So.2d 1045, 1046 (Fla. 4th DCA 2001)(deelining to consider state’s laches defense, raised for the first time on appeal). Although there are exceptions to this rule, the exceptions are not applicable in the instant case. See DM Records, Inc. v. Turnpike Commercial Plaza, Phase II, Condominium Ass’n, Inc., 894 So.2d 1030 (Fla. 4th DCA 2005)(explaining that sufficiency of the evidence to support the judgment may be raised for the first time on appeal in a non-jury trial); Romage v. State, 890 So.2d 550 (Fla. 5th DCA 2005)(holding that claims based on an alleged violation of double jeopardy constitute fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal); Bank One, N.A. v. Batronie, 884 So.2d 346 (Fla. 2d DCA 2004)(indieating that the lack of subject-matter jurisdiction may be raised for the first time on appeal).

Further, the claims raised against Corrections Corporation of America (CCA) are clearly barred by statute. Section 957.06(8), Florida Statutes, provides that a contract entered into for the operation of a private correctional facility shall not authorize, allow or imply the delegation of authority to a contractor to “[djetermine inmate eligibility for any form of conditional, temporary or permanent release from a correctional facility.” This statute was in effect at the time appellant alleges he was wrongfully held and remains in effect. Clearly, as a matter of law, the alleged failure by CCA to conduct a timely probable cause hearing cannot be a basis for asserting civil liability against CCA given CCA had no legal authority to release appellant. As CCA argued below, appellant has not and cannot state a cause of action against CCA. While the trial court did not grant the motion of CCA to dismiss on this ground, the order granting dismissal with prejudice can be granted on this ground pursuant to the “tipsy coachman” rule. See Robertson v. State, 829 So.2d 901, 906-7 (Fla.2002).

Accordingly, we AFFIRM.

KAHN, VAN NORTWICK, and HAWKES, JJ., concur.


text:
    ADMINISTAFF OF FLORIDA, INC., and United Self-Insured Services, Appellants, v. Lawrence D. CONGER, Appellee.
    No. 1D06-5255.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2006.

      Lamar D. Oxford and Michael A. Lowe of Dean, Ringers, Morgan & Lawton, Orlando, for Appellants.
    Don Harvey of the Law Office of Don P. Harvey, Winter Park; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellee.
   PER CURIAM.

DISMISSED. See Sun Sentinel and Tribune Co. v. Petrovich, 744 So.2d 1056 (Fla. 1st DCA 1999).

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.


text:
    Donna LIVAUDAIS, Appellant, v. Kris McKENNY, Robert Livaudais, Nautilus of Panama City Beach Condominium Homeowners Association, Inc., Appellees.
    No. 1D06-5589.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2006.
    Donna Livaudais, pro se, Appellant.
    Stan Trappe, Panama City, for Appel-lees.
   PER CURIAM.

Upon consideration of the appellant's response to the Court’s order of November 8, 2006, the Court has determined that the appellant has failed to demonstrate that the order on appeal is a final order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

KAHN, HAWKES, and THOMAS, JJ., concur.


text:
    Siddiq B.A. ASAD, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-3255.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2006.
    Siddiq B.A. Asad, pro se, Appellant.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s orders (1) denying his petition for a writ of mandamus challenging a forfeiture of gain time in his prison disciplinary proceeding; (2) denying his motion for disqualification; and (3) imposing a lien on his inmate trust account to cover court costs and fees. We affirm without discussion the denial of the petition for a writ of mandamus and the motion for disqualification. However, because, as appellee correctly concedes, the action in the trial court was a collateral criminal action as that term is defined in Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), we reverse the order placing a lien on his inmate trust account, see Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005), and remand with directions that the trial court vacate that order.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, BENTON, and VAN NORTWICK, JJ„ concur.


text:
    GULF PINES HOSPITAL, INC., d/b/a, Gulf Pines Hospital, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D06-3249.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2006.
    Alfred W. Clark, Tallahassee, for Appellant.
    William H. Roberts, Deputy General Counsel, and Tracy Lee Cooper, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Having considered appellant’s response, appellee’s motion to dismiss this appeal as moot is granted. This appeal is hereby dismissed as moot. See Godwin v. State, 593 So.2d 211 (Fla.1992).

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


text:
    Johnny James TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2271.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2006.

      . Judge Stringer has been substituted for Judge Covington, who was on the original Tumer panel.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

This case is before the court on remand from the Supreme Court of Florida, which vacated this court’s opinion and remanded for reconsideration. See Turner v. State, 940 So.2d 1110 (Fla.2006).

Johnny Turner appeals the summary denial of his motion for postconviction relief filed in 2003 pursuant to Florida Rule of Criminal Procedure 8.850. For the reasons expressed below, we affirm.

Turner was convicted after a jury trial of both sale of cocaine and possession of cocaine with the intent to sell or deliver. These convictions were affirmed on direct appeal and became final upon the issuance of this court’s mandate on November 4, 1992. See Turner v. State, 606 So.2d 1178 (Fla. 2d DCA 1992) (table decision).

Turner asserts that, pursuant to case law decided after his convictions became final, he is entitled to claim that fundamental error occurred when the jury was not given an instruction requiring Turner to have had knowledge that the substance sold or possessed was cocaine. The Florida Supreme Court in Chicone v. State, 684 So.2d 736 (Fla.1996), mandated for the first time that such an instruction be given for sale or possession cases in addition to the standard jury instructions for such offenses.

This court can find no opinion of the Florida Supreme Court applying Chicone retroactively on collateral review to convictions which became final before the issuance of the mandate for the Chicone opinion on December 10, 1996. In Reed v. State, 837 So.2d 366, 370 (Fla.2002), the supreme court held that the Reed opinion, which identified as fundamental error an erroneous standard jury instruction for aggravated child abuse, was not to be applied retroactively to convictions which had already become final.

Assuming that Chicone could be retroactively applied, Turner had to file a Chicone claim by December 10, 1998. See Bolender v. State, 658 So.2d 82, 85 (Fla.1995). Therefore, his motion filed January 23, 2003, was untimely.

Affirmed.

STRINGER, DAVIS, and VILLANTI, JJ., Concur.


author: SALCINES, Judge.

text:
    Sandra FROSTI, Appellant, v. LaVerne CREEL, as Personal Representative of the Estate of William H. Houk, deceased, Appellee.
    No. 2D05-3270.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2006.
    William J. Capito of Law Offices of William J. Capito, Lutz, for Appellant.
    Scot E. Samis and Jeffrey M. Adams of Abbey, Adams, Byelick, Kiernan, Mueller & Lancaster, L.L.P., St. Petersburg, for Appellee.
   SALCINES, Judge.

Sandra Frosti appeals the trial court’s order entered after final judgment which denied her motion for attorney’s fees and costs pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79(1), Florida Statutes (1995), because her pro-posáis for settlement had been filed prematurely. We affirm. See Bottcher v. Walsh, 834 So.2d 183 (Fla. 2d DCA 2002). In Mills v. Martinez, 909 So.2d 340, 344 (Fla. 5th DCA 2005), the Fifth District certified conflict with Bottcher; accordingly, we certify conflict with Mills.

Affirmed; conflict certified.

NORTHCUTT and SILBERMAN, JJ., concur.


text:
    NCC DEVELOPERS, INC., and Jose M. Rodriguez, Appellants, v. MIAMI-DADE COUNTY and Miami-Dade County Board of Rules and Appeals, Appellees.
    No. 3D06-983.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Juan J. Rodriguez, Coral Gables, for appellants.
    Murray A. Greenberg, Miami-Dade County Attorney and Maria Arista-Volsky, Assistant County Attorney, for appellees.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Williams v. Howard, 329 So.2d 277 (Fla.1976); Fla. Dep't of Ins. v. Guarantee Trust Life Ins. Co., 812 So.2d 459 (Fla. 1st DCA 2002); LaBella v. Food Fair, Inc., 406 So.2d 1216 (Fla. 3d DCA 1981).


text:
    William HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1036.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Gonzalez & Alvarez, and Manuel Alvarez, Pensacola, for appellant.
    Charles J. Crist, Jr., Attorney General and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See State v. Iseley, 944 So.2d 227, 2006 WL 3025649 (Fla. Oct. 26, 2006).


author: SHAHOOD, J.

text:
    Jimmy Lee DASSLER, Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., Appellee.
    Nos. 4D05-4389, 4D06-1422.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Louis Thaler of Louis Thaler, P.A., Coral Gables, for appellant.
    John R. Hargrove and Carol A. Gart of Gordon Hargrove & James, P.A., Fort Lauderdale, for appellee.
   SHAHOOD, J.

Jimmy Lee Dassler (“appellant”) appeals from the Final Judgment entered by the trial court. Appellant argues the trial court erred in entering the Final Judgment because it was obtained without notice to him and therefore void. Appellant further alleges that the trial court abused its discretion in denying his sworn motion for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540.

Appellee, BellSouth Telecommunications, concedes the trial court erred in entering Final Judgment in its favor due to lack of notice and in denying appellant’s rule 1.540 motion. We agree. See Polani v. Payne, 654 So.2d 202, 203-04 (Fla. 4th DCA 1995).

We therefore reverse the denial of the rule 1.540 motion and vacate the Final Judgment. We remand for further proceedings after appropriate notice to appellant.

Reversed and Remanded.

WARNER and MAY, JJ., concur.


text:
    Tyrone BURROUGH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2074.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before FLETCHER and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Moore v. State, 701 So.2d 545, 548-49 (Fla.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 685 (1998); Rodriguez v. State, 906 So.2d 1082, 1091 (Fla. 3d DCA 2004), affirmed, 920 So.2d 624 (Fla.2005); Jean v. State, 789 So.2d 550, 550-51 (Fla. 3d DCA 2001); Slocum v. State, 757 So.2d 1246, 1250-51 (Fla. 4th DCA 2000), cause dismissed, 814 So.2d 441 (Fla.2002), cert. denied, 537 U.S. 924, 123 S.Ct. 316, 154 L.Ed.2d 214 (2002); Bauta v. State, 698 So.2d 860, 862-63 (Fla. 3d DCA 1997), review denied as improvidently granted, 717 So.2d 528 (Fla.1998).


text:
    Gloria EHRICH, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D06-1158.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Roderick McGee of Roderick L. McGee, P.A., Pompano Beach, for appellant.
    Elizabeth K. Russo and Jonathan L. Gaines of Russo Appellate Firm, P.A., Miami, and Berk, Merchant & Sims, PLC, Coral Gables, for appellee.
   PER CURIAM.

Affirmed. See Federated Nat’l Ins. Co. v. Esposito, 937 So.2d 199 (Fla. 4th DCA 2006).

WARNER, POLEN and GROSS, JJ., concur.


text:
    Eunide WING, Appellant, v. SAKS, INC., d/b/a Saks Fifth Avenue, and American Express Travel Related Services Co. Inc., Appellees.
    Nos. 3D06-1035, 3D06-562.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Abbie Cuellar, Hialeah, for appellant.
    Kahan Shir and Paul E. Heimberg, Boca Raton; Adams, Adams & Baca and Joel V. Lumer, Miami; Fowler White Burnett and Ronald G. Neiwirth, Miami, for appellees.
    Before FLETCHER and CORTIÑAS, J J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Brown v. Hanger, 368 So.2d 63, 65 (Fla. 3d DCA 1979); Transamerica Ins. Co. v. Long, 318 F.Supp. 156 (W.D.Pa.1970).


text:
    Clarence HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-235.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Johnson v. State, 785 So.2d 1224 (Fla. 4th DCA 2001).

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


author: STRINGER, Judge.

text:
    Jimmy Eugene BARBER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5004.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2006.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Jimmy Eugene Barber, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

We affirm Barber’s convictions and sentences in circuit court case numbers 05-CF-6788, 05-CF-7028, 05-CF-7029, 05-CF-7030, 05-CF-7032, 05-CF-7033, 05-CF-10723, and 05-CF-11124 without further comment. As to circuit court case number 05-CF-7027, we affirm Barber’s convictions and sentences without prejudice to Barber filing a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Burgess v. State, 831 So.2d 137 (Fla.2002); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004).

Affirmed.

NORTHCUTT and LaROSE, JJ., Concur.


text:
    In re Lawrence BABINEAUX.
    No. 2005-B-1257.
    Supreme Court of Louisiana.
    Nov. 29, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to provide competent representation to a client, failed to communicate with a client, engaged in a conflict of interest, failed to protect the client’s interests upon termination of the representation, failed to exercise independent professional judgment in advising a client, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. After the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition for consent discipline,

IT IS ORDERED that Lawrence Babi-neaux, Louisiana Bar Roll number 18771, be and he hereby is suspended from the practice of law for a period of one year and one day, with all but ninety days deferred.

IT IS FURTHER ORDERED that respondent shall enroll in and attend the Ethics School program offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.