author: WOLF, J.

text:
    Tyrone Leon GODFREY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0987.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2006.
    Rehearing Denied Feb. 2, 2007.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Tyrone Leon Godfrey appeals his convictions and sentences for two counts of possession of cocaine. Because we find the convictions violate principles of double jeopardy, we reverse.

The appealed convictions are premised on the following facts: A law enforcement officer observed appellant rolling what he suspected was a marijuana cigarette inside his vehicle. At this point, the officer approached appellant and observed a baggie of suspected marijuana on his lap. Appellant was arrested and charged with possession of marijuana. On a search incident to arrest, the officer discovered a black nylon zipper bag lying in the front seat of the vehicle directly behind where the suspect was sitting. Inside the bag was a pill bottle containing approximately 13.5 grams of crack cocaine. Another clear plastic bag containing powder cocaine was found in the glove box.

Based on these facts, appellant was charged with two counts of possession of cocaine, one for the crack cocaine and a second for the powder cocaine. Appellant entered a “straight up” plea of nolo con-tendere to the charges. On appeal, appellant asserts the State was required to aggregate the cocaine found in appellant’s vehicle and, thus, his dual convictions for possession of cocaine violate his double jeopardy protections.

In response, the State first contends appellant waived the right to assert a double jeopardy argument on appeal. The general rule is that a plea of guilty precludes a later attack on appellant’s conviction and/or sentence premised on double jeopardy grounds. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). -However, there is an exception to this general rule when (1) the entered plea was a general plea as distinguished from a bargained plea; (2) the double jeopardy violation is apparent from the face of the record; and (3) the record does not indicate a waiver of the double jeopardy violation. Novaton v. State, 634 So.2d 607, 609 (Fla.1994). A “straight up” or “open plea” does not amount to a bargained for plea. Williamson v. State, 859 So.2d 553 (Fla. 1st DCA 2003). Because appellant in the instant case entered a non-bargained for, “straight up” plea, without expressly waiving his right to a later appeal premised on a double jeopardy issue, his plea did not amount to a waiver. See Novaton, 634 So.2d at 609; see also Williamson, 859 So.2d at 554-55.

Concerning the issue of double jeopardy, settled precedent establishes that an appellant may not be charged with two separate offenses premised on his possession of the same contraband found in differing packages in the same location when the contraband is seized as part of the same search. § 775.021(4), Fla. Stat. (2005); Jackson v. State, 418 So.2d 456, 458 (Fla. 4th DCA 1982), abrogated on other grounds by Gibbs v. State, 676 So.2d 1001, 1002 (Fla. 4th DCA 1996) (holding that a defendant’s conviction for two possession of marijuana counts could not be supported by his possession of two marijuana cigarettes dropped from his hand and again for his possession of several packets of marijuana found in a nearby jacket during the same search); Lundy v. State, 596 So.2d 1167, 1168 (Fla. 4th DCA 1992) (holding that a defendant may not be charged with two separate offenses premised on two amounts of cocaine, one found in a box and one found in a bag, located in the passenger compartment of the defendant’s vehicle).

Further, section 893.03(2)(a)(4), Florida Statutes (2005), defines cocaine as: “Cocaine or ecgonine, including any of their stereoisomers, and any salt, compound, derivative, or preparation of cocaine or ecgo-nine.” Because the relevant statute does not divide cocaine from its derivatives, the discovery of two separate forms of cocaine in the passenger compartment of one vehicle should not be distinguished from the discovery of two separate bags of marijuana found in the same compartment. In the latter scenario, the State would be required to aggregate the marijuana and, therefore, should be required to do so in the former. See Jackson, 418 So.2d at 458; Lundy, 596 So.2d at 1168. To suggest otherwise would offend the plain meaning of the statute as written. Accordingly, appellant’s convictions for two counts of possession of cocaine are reversed. We remand for resentencing for one possession of cocaine charge.

REVERSED and REMANDED.

BROWNING, C.J., and KAHN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Maurice SOLIMAN and State of Florida, Respondents.
    No. 1D06-4831.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2006.
    Rehearing Denied Feb. 2, 2007.
    John J. Copelan, Jr., General Counsel, and John A. Raymaker, Assistant General Counsel, Department of Children and Families, Tallahassee, for Petitioner.
    Nancy A. Daniels, Public Defender, and Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Respondent Solimán.
    Charlie Crist, Attorney General, and Cecilia Bradley, Senior Assistant Attorney General, Tallahassee, for Respondent State of Florida.
   WOLF, J.

The Department of Children and Families (DCF) requests this court to grant a petition for writ of certiorari quashing an order of the circuit court adjudging the respondent (defendant) incompetent and placing him in the North Florida Hospital Forensic Unit within 10 days of the order, or transporting the respondent to the office of the Secretary of DCF releasing him to her custody. While we understand the frustration of the trial court in its inability to properly place the respondent in question, we find the trial court was not authorized to issue its order. We, therefore, grant the petition and quash the trial court’s order.

On July 17, 2006, the circuit court entered an “Order Adjudging Defendant Incompetent to Proceed and Commitment to Department of Children and Families.” The order was based on a psychiatrist’s report finding the defendant psychotic and almost certainly incompetent to proceed. Because respondent was charged with a serious felony offense, the court committed respondent to DCF and required DCF to place him in a health treatment facility.

On August 29, 2006, respondent filed a motion asking the trial court to issue an order to show cause as to why DCF should not be held in contempt of court for not placing respondent in a health treatment facility. Attached to the motion was an email dated August 17, 2006, explaining:

[Respondent] is in dire medical straights [sic] due to the fact that he refused to take his medication and eat the meals served to him. He believes they are poisoned. He is openly psychotic and has been in an isolation cell for over two months, taxing the jail to its limits. He has threatened several folks, including me. We need to get him to N. Fla. as soon as possible or I will have to file the appropriate motion in front of Judge Gary.

On August 29, 2006, the circuit court entered an order to show cause why DCF should not be held in contempt and requiring DCF to explain why it had not complied with section 916.107(l)(a), Florida Statutes (2006), which requires respondent to be placed in a health treatment facility.

On September 11, 2006, DCF entered its response to the order to show cause. DCF explained that respondent was placed in a forensic wait-list, and that, as of September 8, 2006, there were 310 individuals awaiting placement in a state mental health treatment facility. DCF asserted that, as of September 8, 2005, respondent was number 86 on the wait-list. DCF also stated that the court did not have jurisdiction to disregard placement orders from other circuit courts in order to move respondent to the top of the waiting list. It further alleged that the court lacked authority to exercise its contempt power to require compliance with an immediate placement order if DCF did not have the ability to comply.

On September 18, 2006, Richard A. Donk, the Operations and Management Consultant Manager in the Mental Health Treatment Facilities and Forensic Programs section at DCF, entered an affidavit concerning respondent’s likelihood of being placed in a health treatment facility. Donk explained that the State has 1329 adult forensic beds and that DCF has no other beds for persons committed to DCF as incompetent to proceed or not guilty by reason of insanity. Donk further explained that, in order to immediately place respondent, it would have to “jump” him over 61 other male individuals on the forensic wait-list.

On September 13, 2006, the circuit court entered an order granting the respondent’s motion and requiring DCF to place respondent in the North Florida Hospital Forensic Unit within 10 days of the order; and if respondent was not placed in the health treatment facility, the order directed the Franklin County Sheriffs Department to transport respondent to the office of the Secretary of DCF and release respondent to her custody.

It is uncontroverted in this case that there are not enough beds in the health treatment facilities to place, immediately, every person on the waiting list. To that end, this case is very similar to Facyson v. Jenne, 821 So.2d 1169 (Fla. 4th DCA 2002). In Facyson, the petitioner, after being declared incompetent to stand trial, was held in jail until DCF could place him in a health treatment facility; after spending more than 15 days in jail, petitioner sought release from detention and an order directing DCF to take immediate custody of him. Id. According to the facts, “[i]t [was] undisputed that Petitioner’s continued detention resulted] from insufficient forensic bed space in which to place committed defendants within the time allotted in the statute.” Id. at 1170.

The Fourth District stated: “It is clear that the department is responsible for Petitioner’s care and custody.” Id. at 1171. However, before DCF can be held in contempt, the trial court must be able to make an express finding that DCF had the ability to comply or that its refusal to comply was willful. Id.; see also Strauser v. Strauser, 303 So.2d 663, 664 (Fla. 4th DCA 1974) (explaining that a trial court must make an express finding of ability to comply before imposing sanctions).

In this case the trial judge’s understandable frustration appears to have led him to issue an order that the DCF was incapable of complying with. There is no evidence to demonstrate beds were available. Beds cannot be created without funding. Adequate funding is up to the Legislature. Jumping the defendant over other defendants on the waiting list was not an option. The trial court had inadequate information to judge the conflicting needs of all the parties on the waiting list. The power to weigh these interests lies with the executive branch. Intrusion into the prerogative of the executive branch violates article II, section 3, of the Florida Constitution. Dep’t of Children & Family Servs. v. I.C., 742 So.2d 401 (Fla. 4th DCA 1999). Additionally, as in Facyson, record evidence demonstrates release of the respondent appears inappropriate. Clearly the trial court does not have the power to order the release of respondent to the personal custody of the Secretary of DCF.

Like the situation in Facyson, there has been no express showing that DCF has the ability to comply or that its refusal was willful. Thus, the trial court departed from the essential requirements of the law. See also State, Dep’t of Health & Rehabilitative Servs. v. Maxwell, 667 So.2d 980 (Fla. 4th DCA 1996) (reversing order of contempt where evidence showed the Department could not comply with the trial court’s order because no bed space was available); State, Dep’t of Children & Family Servs. v. Birchfield, 718 So.2d 202 (Fla. 4th DCA 1998) (reversing trial court’s order holding DCF in contempt when DCF could not place defendant in the Mentally Retarded Defendant Program, as ordered by the trial court).

In Facyson, 821 So.2d at 1171-72, the court noted that additional options were available to ensure reasonable compliance by the Department with its statutory duties. These options were not explored by the trial court in this case. As noted before, the specific requirements laid out by the trial court in this case are not supported by the law or the evidence.

ERVIN, J., concurs; ALLEN, J., concurs in the judgment.

      . Respondent relies on the cases of A.M.R. v. Coler, 555 So.2d 1248 (Fla. 2d DCA 1989), and D.W. v. Coler, 555 So.2d 1246 (Fla. 2d DCA 1989). We find that those cases are inapplicable. The only relief granted in those cases was requiring the Department to comply with the statute. It appears several options were available to the Department. In the instant case the trial court listed a specific requirement which it was unclear the Department could comply with. To the extent these cases can be read to authorize imposition of contempt sanctions without a demonstration of ability to comply, we cannot concur.


author: HAWKES, J. KAHN, J.,

text:
    Brenda G. BUTLER, Appellant, v. BAY CENTER/CHUBB INSURANCE CO., Appellees.
    No. 1D06-1235.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2006.
    Rehearing Denied Feb. 5, 2007.

      Joey D. Oquist, St. Petersburg, and Bill McCabe, Longwood, for Appellant.
    Jack A. Weiss, Fowler, White, Boggs, & Banker, P.A., St. Petersburg, for Appel-lees.
   HAWKES, J.

In this workers’ compensation case, Claimant filed a Petition for Benefits (PFB), seeking treatment from a specified pain management physician. The employer-carrier (E/C) timely authorized a different pain management physician and scheduled an appointment on Claimant’s behalf, which Claimant refused to attend. After a hearing, the Judge of Compensation Claims (JCC) denied her PFB, finding the E/C had no duty to authorize another pain management physician because Claimant had not received treatment from the physician timely authorized by the E/C. We affirm.

There were two procedural issues before the JCC in this case: (1) Whether the E/C’s authorization of Claimant’s pain management physician was timely; (2) and if timely, whether Claimant may refuse treatment and immediately request a onetime change in her treating physician. See § 440.13(2)(c), (f), Fla. Stat. (2005).

In workers’ compensation cases, a claimant’s substantive rights are established by the date of the accident. See Styles v. Broward County School Board, 831 So.2d 212, 213 (Fla. 1st DCA 2002). Substantive law prescribes applicable duties and rights, while procedural law prescribes the means and methods by which these duties and rights are applied and enforced. Russell Corp. v. Jacobs, 782 So.2d 404, 405 (Fla. 1st DCA 2001). Whereas parties have vested rights in the substantive law, they do not have vested rights in the procedure. See id. As such, procedural or remedial changes to law apply without regard to the date of a claimant’s accident. See id.

Section 440.13, Florida Statutes (2005), establishes an E/C’s duty to ensure an injured claimant receives medical treatment, and it prescribes the procedure for authorizing medical providers. See St. Augustine Marine Canvas & Upholstery, Inc. v. Lunsford, 917 So.2d 280, 283 (Fla. 1st DCA 2005). Accordingly, the 2005 version of section 440.13, controls in this case.

Under section 440.13, the E/C has the initial right and duty to authorize the physician who will treat the injured claimant. See id. Although in some situations an injured claimant may obtain initial treatment by the physician of his or her choosing at the expense of the E/C, this procedural right attaches only after the E/C fails to provide initial treatment or care within a reasonable time after the claimant’s specific request has been made known to the E/C. See § 440.13(2)(c), Fla. Stat. However, even then, the E/C is not required to authorize that physician for the claimant. See id. It only requires the E/C to pay the amount personally expended by the claimant for treatment or care that would have been compensable and medically necessary. See id.

Claimant introduced evidence and testified that in April 2005, her physician recommended she receive pain management treatment. The E/C’s adjuster testified the E/C was unaware of this recommendation until Claimant filed her PFB on July 22, 2005. In her PFB, Claimant requested authorization for treatment with a specific pain management physician. On August 5, 2006, the E/C authorized an appointment with a pain management physician different from the one Claimant specified. The JCC found the E/C timely authorized Claimant’s request for evaluation and treatment with a pain management physician. Here, the record contains competent, substantial evidence to support the JCC’s finding of timeliness.

Since the E/C timely offered medical care in response to Claimant’s PFB, the JCC could not award the specific physician sought by Claimant. City Of Bartow v. Brewer, 896 So.2d 931, 933 (Fla. 1st DCA 2005)(“Section 440.13(2)(c), Florida Statutes, does not authorize the JCC to order treatment with a specific physician, where the E/C promptly offers qualified alternatives.”).

Because the treatment was timely authorized, the JCC was required to determine whether Claimant could request a one-time change in her treating physician without first being treated by the authorized physician. A claimant may request “one change of physician during the course of treatment for any one accident.” § 440.13(2)(f), Fla. Stat. (Emphasis added). The legislature’s use of the language “change ... during the course of treatment” clearly indicates a claimant must be currently receiving treatment by a physician before she may request a “change.” Logically, if a claimant never even attended the initial appointment with the authorized physician, then she cannot “change” that physician because she was never treated by the physician. If never treated, the procedural right to request a one-time “change of physician during the course of treatment” does not attach. Therefore, before requesting another authorized physician, a claimant must at least begin treatment with the physician the claimant seeks to change.

However, even if a claimant had received treatment, a claimant would only, be entitled to see the physician of her choice if the E/C failed to provide another physician within five days of receiving her request for another authorized physician. See § 440.13(2)©, Fla. /Stat. Under the 2005 version of the workers’ compensation law, the E/C is no longer statutorily required to provide -a claimant with the choice of three physicians. Moreover, the language of the statute plainly indicates a claimant may request a change of treating physician only once, no matter the number and variety of treatments needed by a claimant arising from the original accident. The choice of a claimant’s authorized treating physician is not a substantive right, but a procedural one gratuitously granted by the Legislature. Consequently, in requesting a one-time change of physician, a claimant risks receiving another physician with whom she may also be unsatisfied.

Here, it is undisputed that Claimant never even attended any appointments with E/C’s authorized physician, and thus, did not begin pain management treatment. Therefore, according to the plain language of the statute, Claimant’s right to request a one-time change did not attach.

For the reasons stated above, the Judge of Compensation Claims’ order, denying Claimant’s Petition for Benefits, is AFFIRMED.

THOMAS, J., concurs.

KAHN, J., dissents with opinion.

KAHN, J.,

dissenting.

I do not quarrel with the majority’s construction of section 440.13(2)©, Florida Statutes (2005). I dissent, however, because I conclude that the statute in effect at the time of the injury controls the present issue. I would reverse.

Interestingly, the parties, as well as the Judge of Compensation Claims (JCC) below, assumed that the 1985 version of section 440.13 would control this case. This assumption carries through in the merits order here under review, as well as in the parties’ briefs. Claimant’s argument on appeal is that the JCC misconstrued the requirements of the 1985 statute. I agree with claimant’s assertion.

In workers’ compensation' matters, the date of accident determines the substantive law applicable to a claim or issue. See Styles v. Broward County Sch. Bd., 831 So.2d 212, 213 (Fla. 1st DCA 2002). Here, claimant’s compensable accident occurred on September 3, 1986. At that time, the statute concerned with furnishing medical care under the workers’ compensation law provided:

If an injured employee objects to the medical attendance furnished by the employer ... it shall be the duty of the employer to select another physician to treat the injured employee unless a deputy commissioner determines that a change in medical attendance is not for the best interests of the injured employee.... It is unlawful for any employer or representative of any insurance company or insurer to coerce or attempt to coerce a sick or injured employee in the selection of a physician, surgeon, or other attendant or remedial treatment, nursing or hospital care, or any other service that the sick or injured employee may require ...

§ 440.13(3), Fla. Stat. (1985). Construing this statute, this court opined:

[I]t is clear that the statute gives the initial right of selection of a treating physician to the employer and carrier. It, however, reserves to claimant the right to reject such selection, require another authorization, or to seek authorization by the deputy for a physician of claimant’s choice.

Teimer v. Pixie Playmates, 532 So.2d 37, 40 (Fla. 1st DCA 1988). The Teimer court went on to observe, “Claimant has the right to veto the employer and carrier’s selection and compel the employer and carrier to authorize another selection.” Id; see also Cal Kovens Constr. v. Lott, 473 So.2d 249, 254 (Fla. 1st DCA 1985) (noting claimant’s right to veto E/C’s selection of treating physician, and explaining claimant’s right to veto E/C’s selection vindicates guarantee against coercion contained in section 440.13(2), Florida Statutes). I assume that the majority agreed with this construction of the 1985 statute because it does not simply affirm the JCC, but instead affirms on a “right for the wrong reason” rationale.

The JCC correctly determined the 1985 statute applied here. Nevertheless, she erred in denying the claim, finding “as a matter of law claimant must have some reasonable objection to the physician offered before E/C is required to select another.” The JCC’s construction of the 1985 statute appears contrary to the law as enunciated by this court, cited in the previous paragraph. If the 1985 statute does control, then the result must be reversal.

As the majority states, if a statute is substantive in nature, the version in force as of the date of injury controls. The specific issue in this case is, of course, whether the right to veto the E/C’s choice of a physician is a substantive right or a procedural right. The majority finds the right procedural because, in their view, the applicable portion of section 440.13 merely “prescribes the procedure for authorizing medical providers.” Op. at 572. This court, however, has generally viewed a workers’ compensation claimant’s entitlement to medical services as substantive, not procedural. See, e.g., Russell v. P.I.E. Nationwide, 668 So.2d 696, 697 (Fla. 1st DCA 1996); S. Bakeries v. Cooper, 659 So.2d 339, 340 (Fla. 1st DCA 1995); Gonzalez v. Publix, 654 So.2d 634, 634 (Fla. 1st DCA 1995). We have described as procedural, those changes “which merely affect the method of proof....” S. Bakeries, 659 So.2d at 340.

We have recognized that it is occasionally “difficult to clearly demarcate the distinction between a substantive right and a procedural or remedial enactment.” Paulk v. Sch. Bd. of Palm Beach County, 615 So.2d 260, 261 (Fla. 1st DCA 1993). This statement is undoubtedly true. Nevertheless, we should adhere to the Florida Supreme Court’s definitive statement as to the distinction between substantive and procedural law: “[S]ubstantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994).

In this case, I would conclude that the actual liability of the employer and carrier is affected by the statutory change because, under the old law, the claimant had the right to veto the E/C’s choice of a physician. I would distinguish this from a situation where a statutory change impacts only the claimant’s method of showing entitlement to the same class of benefits. See, e.g., Litvin v. St Lucie County Sheriffs Dep’t, 599 So.2d 1353, 1355 (Fla. 1st DCA 1992) (explaining that an amendment to the method of obtaining wage loss was procedural where it altered “an evidentia-ry vehicle which supports such a claim.”), review denied, 613 So.2d 6 (Fla.1992), cert. denied, 508 U.S. 913, 113 S.Ct. 2350, 124 L.Ed.2d 258 (1993); City of Clermont v. Rumph, 450 So.2d 573, 575 (Fla. 1st DCA 1984) (characterizing as procedural, a “burden-of-proof enactment”). I note the majority’s reliance on St. Augustine Marine Canvas & Upholstery, Inc. v. Lunsford, 917 So.2d 280, 283 (Fla. 1st DCA 2005). See op. at 572. This case, however, does not involve the issue before us— whether the statute at hand is substantive or procedural. Moreover, in that case, the version of the statute applied was that in effect at the time of the 2002 injury. See Lunsford, 917 So.2d at 281, 283.

In the present case, I find the claimant’s previous right to veto the carrier’s selection of a physician is not merely a procedural burden-of-proof matter such as would affect the required showing by the claimant in order to receive such benefit. On the contrary, the right to reject a physician, and require designation of another, speaks to a substantive entitlement as to medical care. Accordingly, the 1985 statute applies. We should reverse because, although the JCC applied the 1985 statute, she construed the statute erroneously. I respectfully dissent.

      . The Legislature intended the workers' compensation system to provide a basic amount of care to injured workers who would otherwise not receive any employer-provided medical care for on-the-job accidents except by action at common law. See Aguilera v. Inservices, Inc., 905 So.2d 84, 89 (Fla.2005) (“Workers' compensation laws provide employees limited medical and wage loss benefits, without regard to fault, for losses resulting from accidental workplace injuries in exchange for the employee relinquishing his or her right to seek common law recovery from the employer for those injuries.”) (emphasis added).


author: PER CURIAM.

text:
    James CRULLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2748.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 2007.
    James Cruller, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings.

The trial court denied the Rule 3.800 motion based upon the State’s response which asserted the defendant had a prior conviction for robbery that served as the qualifying offense for sentencing him as a Habitual Violent Felony Offender. However, the underlying conviction was not attached to the State’s response, nor was it attached to the trial court’s order. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

SCHWARTZ, Senior Judge, concurs in result.


text:
    Orlando ALVAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2754.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 2007.
    Orlando Alvarez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for either an eviden-tiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

SCHWARTZ, Senior Judge, concurs in result.


text:
    Hartman LIGHTBOURNE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1801.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 2007.
    Hartman Lightbourne, in proper person.
    Bill McCollum, Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.

      Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts such as the plea colloquy and/or sentencing hearing conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: STEVENSON, C.J.

text:
    Jeffrey CHODOROW and Linda Chodorow, Appellants, v. Talmadge MOORE d/b/a High Standard Services, Richard Latimer, individually, and Latimer Construction Corporation, Appellees.
    No. 4D05-3713.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      Lee D. Mackson of Shutts & Bowen LLP, Miami, for appellants.
    Richard S. Tolbert, West Palm Beach, for appellee Talmadge Moore d/b/a High Standard Services.
   STEVENSON, C.J.

Jeffrey and Linda Chodorow appeal an order awarding them only a portion of the $192,023 in attorney’s fees and $60,595.53 in costs they incurred during the course of litigation with appellees. For a variety of reasons, the Chodorows insist the trial court erred in failing to award them the whole of their fees and costs. We affirm the order appealed.

This appeal had its genesis in a breach of contract action brought by Talmadge Moore d/b/a High Standard Services (“Moore”), a mold remediator, when the Chodorows refused to pay amounts Moore claimed were due under a contract for the rental of dehumidifiers and air scrubbers and for remediation work. Count I alleged a breach of contract and sought recovery of the rental fees. Count II alleged a breach of contract and, sought recovery of the amount owed for remediation work. Count III stated a claim for unjust enrichment, seeking the amounts owed for both the equipment rental and the work performed by Moore. The Chodorows did not dispute the allegations of count II. With respect to counts I and III, the Chodorows raised a number of affirmative defenses, some of which were re-stated as counterclaims. Following a bench trial, the trial court determined Moore had breached the contract and thus found in favor of the Cho-dorows with respect to Moore’s equipment rental breach of contract claim. Since the Chodorows had not challenged the allegations of count II, the judge found in favor of Moore. As for the Cho-dorows’ counterclaims, the judge found in favor of Moore. The final judgment reserved jurisdiction to award the Chodo-rows the attorney’s fees and costs incurred in defending themselves against count I. This judgment was appealed by Moore and affirmed. See Moore v. Chodorow, 925 So.2d 457 (Fla. 4th DCA 2006).

In a subsequent motion for fees and costs, the Chodorows asserted (1) that the contract between them and Moore contained a provision requiring the customer to “pay all costs of collection and all costs to enforce the terms of this agreement, including attorney’s fees”; (2) that this attorney’s fee provision was made reciprocal as a consequence of section 57.105(7), Florida Statutes; (3) that they had incurred some $192,023 in attorney’s fees and $60,595.53 in costs; and (4) that they were entitled to the whole of these amounts as the sums were reasonable and the time spent defending the equipment rental breach of contract claim brought by Moore could not be separated from time spent on the unjust enrichment claim or the counterclaims. Additionally, in a footnote, the Chodorows asserted they were entitled to the award of all fees incurred after September 1, 2004, as a consequence of section 768.79, Florida Statutes, the offer of judgment statute, and a $25,000 offer to settle served on that date. The trial court awarded $104,350 in attorney’s fees, excluding, among other things, time devoted to tasks other than the equipment rental breach of contract claim and time the court found to be unreasonable. The court awarded $19,378.35 in costs incurred through trial, $13,400 of the $42,053.16 sought for expert witness fees, and the costs of mediation.

The Chodorows first claim that the trial court should not have eliminated from the fee award time spent on tasks not specifically attributable to the breach of contract claim as all the claims litigated were “inextricably intertwined.” In the event a party is entitled to an award of fees for only some of the claims involved in the litigation, i.e., because a statute or contract authorizes fees for a particular claim but not others, the trial court must evaluate the relationship between the claims and “where the claims involve a ‘common core’ of facts and are based on ‘related legal theories,’ a full fee may be awarded unless it can be shown, that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought [or ivere authorized ].” Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 172 (Fla. 4th DCA 2002) (emphasis added); see also Copian v. 1616 E. Sunrise Motors, Inc., 522 So.2d 920, 922 (Fla. 3d DCA 1988) (“[W]here ... all the claims made against a defendant involve ‘a common core of facts and [are] based on related legal theories,’ the award of attorney’s fees should not be reduced in the absence of a showing that the defendant’s attorneys spent a separate and distinct amount of time in defending a count upon which no attorney’s fees were awardable.”) (citing Chrysler Corp. v. Weinstein, 522 So.2d 894, 896 (Fla. 3d DCA 1988)) (emphasis added). “[T]he party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible.” Lubkey v. Compuvac Sys., Inc., 857 So.2d 966, 968 (Fla. 2d DCA 2003).

In the underlying case herein, Moore claimed that the Chodorows refused to pay some $133,560 under the contract for the rental of dehumidifiers and air scrubbers and some $2,321 for remediation work. Count I alleged a breach of contract and sought to recover the $133,560 equipment rental fee; count II alleged a breach of contract and sought to recover the $2,321 remediation fee; count III stated a cause of action for unjust enrichment and sought recovery of the amounts alleged to be due in counts I and II.

The Chodorows did not dispute the allegations of count II. With respect to counts I and III, the Chodorows asserted as affirmative defenses claims that Moore fraudulently induced them to enter into the contract by representing the equipment was necessary when, in fact, it was not; that Moore had been paid a reasonable amount for the services rendered; that the amount due was unconscionable; that performance was not due because Moore first breached the contract by failing to test and monitor the am; and that Moore breached the implied warranty of fitness. Many of these affirmative defenses were then re-stated as counterclaims. Count I of the Chodo-rows’ counterclaims, entitled “fraud,” alleged Moore held himself out as an expert on airborne mold and then misrepresented the need for equipment and concealed the fact that the equipment could have been purchased for much less than the rental fee. Count II alleged breach of the implied warranty of fitness for a particular purpose. And, as an alternative to counts I and II of the counterclaims, the Chodo-rows sought rescission based upon Moore’s misrepresentations. Finally, relying upon the alleged misrepresentations that formed the basis for the fraudulent inducement affirmative defense and fraud counterclaim, the Chodorows asserted a counterclaim for violation of Florida’s Deceptive and Unfair Trade Practices Act.

At the conclusion of the non-jury trial, the trial judge found that five days after the signing of the equipment rental contract, Moore learned the Chodorows did not have an elevated airborne mold count, but failed to advise them of this and, in fact, reinforced his earlier representation regarding the existence of an airborne mold problem by advising them to move out. Consequently, the trial judge concluded Moore had breached the contract and thus was entitled to no further rental fees. The judge did, however, find in favor of Moore with respect to count II as the Chodorows had not disputed the same. As for the counterclaims, the trial court entered judgment in favor of Moore without making any additional findings. As stated earlier, the trial judge reserved jurisdiction to award the Chodorows the attorney’s fees and costs incurred in defending themselves against count I, and the judgment was affirmed on appeal.

We have reviewed the record, including the time records submitted during the fee hearing, and find no error in the trial court’s apparent finding that counsel for the Chodorows spent “separate and distinct time” on claims and counterclaims for which fees were not awardable. Additionally, as a consequence of our review of the time records and the “Statement of the Evidence and Proceedings,” provided this court in lieu of a transcript of the fee hearing, we also reject without further comment the Chodorows’ claim in point II, challenging the elimination from the fee award of those attorney hours the trial judge found to be unreasonable. See Centex-Rooney Constr. Co. v. Martin County, 725 So.2d 1255, 1258 (Fla. 4th DCA 1999) (stating that “[i]t is well settled that the determination of an award of attorneys’ fees is within the sound discretion of the trial court”; that “[t]he trial court’s findings of fact with regard to an award of attorneys’ fees are presumed to be correct”; and that “the appellate court should not substitute its judgment for that of the trial court”).

Next, we turn to the Chodorows’ claim that the trial court should have awarded them all fees and costs incurred after their September 1, 2004 proposal to settle. The Chodorows’ offer of judgment was limited to “all of Moore’s claims against the Chodorows.” Consequently, the proposal could only provide a basis for the award of those fees the Chodorows incurred in defending themselves against the claims brought by Moore — not all the fees they incurred after September 1, 2004, and, particularly, not those fees incurred in prosecuting their counterclaims. Further, we find no error in the trial court’s failure to award the Chodorows those post-September 1, 2004 fees associated with counts II and III. The Chodorows expressly represented to the court that they did not contest the allegations of count II of Moore’s complaint and incurred no fees related to this claim. As for count III, the Chodorows have failed to point to any fees incurred with respect to that count for which they were not compensated as part of count I.

Finally, in point IV, the Chodo-rows complain that the trial court erred in awarding them only a portion of the fees charged by their mold expert absent a finding that any of his work was unnecessary or the fees charged were unreasonable and that the evidence before the court would not have permitted such findings. As the prevailing party and the party seeking the award of costs, it was the Chodorows who bore the burden of presenting competent, substantial evidence that their expert’s rate was reasonable and that the time spent was necessary. See Gray v. Bradbury, 668 So.2d 296, 298 (Fla. 1st DCA 1996). A trial court’s determination regarding the appropriate amount of a costs award is reviewed on appeal for an abuse of discretion. See Ocean Club Cmty. Ass’n v. Curtis, 935 So.2d 513, 517 (Fla. 3d DCA 2006). On this record, we simply cannot find an abuse of discretion in the amount awarded to compensate the Chodorows for the fees charged by their expert. We have considered the other claims raised by the appellants and not specifically addressed herein, but find no error.

.Affirmed.

WARNER and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    KROGEN EXPRESS YACHTS, LLC, Appellant, v. Raul NOBILI and Carmella Nobili, Appellees.
    No. 4D05-4872.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      Suzan Jon Jacobs of Levine & Partners, P.A., Miami, for appellant.
    Jason L. Weissman and June Galkoski Hoffman of Fowler White Burnett P.A., Miami, for appellees.
   KLEIN, J.

After the Nobilis purchased a Krogen yacht, they filed this lawsuit alleging that it was defective. The issue we address on this non-final appeal is whether the appellant, as a successor to the company which sold the yacht, is subject to long-arm jurisdiction in Florida. We conclude that there is no successor corporation liability, because there was neither an assumption of the liabilities of the original corporation, nor was the successor a continuation of the original.

The Nobilis purchased their yacht from Krogen Express Yacht Company (Krogen I). Several months after the Nobilis took delivery of their yacht, Krogen I, a Florida corporation, sold its assets to Krogen Express Yachts, LLC, a Georgia corporation (Krogen II). Significantly, the agreement for sale provided that Krogen II “is not assuming any of the liabilities of Seller whatsoever, whether known or unknown.” The purchase price was $500,000.

The Nobilis rely, for their argument that Krogen II is subject to jurisdiction in Florida, on the theories that Krogen II is the successor corporation which assumed the liabilities of Krogen I, or that Krogen II is merely a continuation of Krogen I under a different name. The liability of a successor corporation for the conduct of a predecessor was set out in Bernard, v. Kee Manufacturing Co., 409 So.2d 1047 (Fla.1982), in which the Florida Supreme Court held that there is no liability unless:

(1) the successor expressly or impliedly assumes obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.

For their argument that Krogen II assumed the liabilities of Krogen I, the No-bilis rely on the following provisions of the asset sale contract between Krogen I and Krogen II:

1. Sale of Business. Except for those assets set forth in Schedule 1, Seller does hereby sell, transfer, assign, and convey to Purchaser all ... contract rights ...
5. Acknowledgements of Purchaser. Purchaser acknowledges that:
5.1 Warranty Claims. Two owners of the Krogen Express 49' Cruiser have verbally informed Seller of warranty claims which Seller maintains are unsubstantiated and unfounded
7. Goodwill. The parties agree to each deposit $30,000 in a segregated account for the purpose of covering warranty claims made by an owner of a Krogen Express 49' Cruiser that are beyond Seller’s normal warranty period or claims made within the warranty period but not covered by the warranty in order to provide good will to the name “Krogen Express.” The coverage and amount of payment of any claims must be agreed to by Purchaser and the director of Seller ...

They also rely on a letter they received from Krogen II stating:

While we did not produce your yacht, we want you to know that we consider all Krogen Express owners to be a part of the Krogen Express Yachts, LLC family.”

As to the first theory argued by the Nobilis, that there was an express or implied assumption of the obligations of Kro-gen I by Krogen II, the facts that Krogen II knew of the warranty claims, or that Krogen I and Krogen II each left $30,000 in an account for covering warranty claims, are not sufficient to create successor liability. As we explained earlier, the asset sale contract expressly disclaims any successor liability. If the parties wanted to create good will, by setting aside some funds for warranty repairs, that is merely an exception to the provision providing no assumption of liability, and does not in any way nullify it. Nor does the letter telling the Nobilis that, as owners of a Krogen Yacht, they were part of the Krogen II family, create successor liability. The Nobilis have not cited any cases finding successor corporate liability, where there was only an asset sale, with an express disclaimer of successor liability, as in this case.

The Nobilis also argue in the alternative that Krogen II is a mere continuation of Krogen I. They rely on cases such as Laboratory Corp. of America v. Professional Recovery Network, 813 So.2d 266 (Fla. 5th DCA 2002), in which the facts were entirely different. In that case, the first corporation DPM, had McKown as its sole officer and shareholder. Several days after DPM was notified that it was going to be sued for over $500,000, McKown incorporated PRN, with himself as the sole officer and shareholder. He then had the assets of DPM transferred, without consideration, to either PRN or himself personally. The court held that under those circumstances there were issues of fact as to whether PRN was simply a continuation of DPM.

In the present case, Krogen II filed an affidavit of John Tegtmeyer which stated Krogen II was owned 100% by Tegtmeyer and his wife. He stated that Kurt Krogen had maintained a 15% ownership in Kro-gen II from December 2001 until July 2004, and at all other times, Tegtmeyer and his wife had been the sole owners of Krogen II. Krogen II also filed an affidavit of Kurt Krogen, which provided that at the time Krogen II purchased the assets of Krogen I, Krogen I was owned entirely by three shareholders, Krogen, Judd Straus and M.F. Labbee. The Tegtmeyers had never had any connection with Krogen I.

The trial court found that these affidavits were “incompetent,” in light of a letter from the Tegtmeyers to the Nobilis in April, 2002, which stated that Krogen II had purchased most of the assets of Kro-gen I and that Kurt Krogen had joined Krogen II as “an equity partner and consultant.” The trial court also relied on a press release to the same effect. The letter and press release, however, did not create any issue as to the fact that the Tegtmeyers were at all times majority owners of Krogen II and never involved in any way in Krogen I. There are no affidavits or other evidence in the record to contradict either the facts as to who were the owners and the officers of the two corporations, or as to the bonafides of the asset sale of $500,000. Under these circumstances, neither Laboratory Corp., nor any of the other cases relied on by the Nobilis, would support their theory that Krogen II is a mere continuation of Kro-gen I.

Reversed,.

HAZOURI and MAY, JJ., concur.


author: SHAHOOD, J.

text:
    Ronnie FERNANDER, Appellant, v. Mario BONIS, individually, Craig Scarlett, individually, and the City of Miramar, a Florida municipal corporation, Appellees.
    No. 4D06-407.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      Hugh L. Koerner of Hugh L. Koerner, P.A., Hollywood, for appellant.
    Jamie A. Cole, Matthew H. Mandel and Gregory A. Haile of Weiss, Serota Helf-man Pastoriza Cole & Boniske, P.A., Fort Lauderdale, for appellees.
   SHAHOOD, J.

Appellant, Ronnie Fernander, appeals from the final judgment granting defendants’ motion to dismiss his complaint. We affirm.

The extensive and somewhat complex facts giving rise to this case are necessarily set forth in this opinion as alleged in appellant’s complaint. On August 3, 1997, Eusebio Christian gave Captain Mario Bonis of the Miramar Police Department a sworn statement describing a narcotics transaction with a man named “Steve,” whom Christian said he had known a long time ago. Christian had agreed to purchase a kilogram of cocaine for Steve in exchange for a fee of $4,500 for Christian. Steve provided Christian with $15,000 purchase money for the deal.

Christian met with two men in Miramar and exchanged the money for two packages of what he thought was cocaine. When he returned to Steve with the packages, they discovered the packages contained dry-wall instead. Steve threatened to kill Christian and his family unless Christian provided him with $15,000 or a kilogram of cocaine. Christian contacted the FBI, who referred him to the City of Miramar Police Department. Christian agreed to assist the police as an informant in a sting operation with the goal of apprehending Steve and others.

As part of the sting operation, Christian arranged to meet Steve at a set place and time to give him a kilogram of cocaine. Members of the South Broward Drug Enforcement Unit set up surveillance of the location. Christian was approached at the location by Fernander’s cousin, Marlon Butler. Christian entered Butler’s car and law enforcement apprehended the men as the car began to leave. Butler was arrested.

Butler also agreed to work as an informant for the Miramar Police Department following his arrest. Butler gave Captain Bonis and Detective Hector Bertrand a sworn statement. According to Butler, Steve told him about being ripped off in the earlier cocaine transaction involving Christian. Butler had agreed with Steve to pick up Christian and drop him off for $100, knowing Christian would have cocaine for Steve. Butler described Steve as a “big man.” He said that Steve was a seven foot tall black male. He estimated Steve’s weight as about the same as Detective Bertrand. He said Steve was a student at North Miami Beach Senior High School. Butler was the cousin of Fernan-der and Fernander’s sister, Patrice. Patrice was married to a man named Steven Bailey, also known as “Steve.” Fernander and Steven Bailey are therefore brothers-in-law.

Captain Bonis obtained Steve’s cellular phone number from Butler’s pager after Butler’s arrest. Captain Bonis obtained a subpoena duces tecum for telephone records for Steve’s telephone number. The records showed that the subscriber for the telephone was Ronnie Fernander and the billing address was in Fernander’s name. Captain Bonis also obtained Fernander’s driver’s license photograph. On August 26, 1997, Christian gave another sworn statement to Captain Bonis. Christian identified Fernander as Steve by picking Fernander’s photograph out of a photographic lineup of six African-American males. Christian stated in his identification that the photo he picked out was Steve, “with a little more weight.” However, Christian was sure of the identification. Captain Bonis included the above information in a police report.

Captain Bonis submitted a probable cause affidavit to the Broward County State Attorney’s Office in support of filing cocaine trafficking charges against Fer-nander. The affidavit stated that Fernan-der was positively identified under oath by an informant as Steve and listed Fernan-der as an alias for Steve. The probable cause affidavit described Fernander as 5'11", 190 lbs. On November 23, 1998, the State filed an information charging Fer-nander with trafficking in cocaine and issued a warrant for his arrest.

Butler was also charged with trafficking in cocaine for his part in the deal. He entered into a substantial assistance agreement with the State. On June 2, 1999, Butler took a polygraph examination at the Miramar Police Department. The polygraph examination and pre-test interview were conducted by Detective Craig Scar-lett. Butler allegedly stated during the pre-test interview and the actual examination that Fernander had no part in the drug deal with Steve. Detective Scarlett concluded, however, that there was a ninety-eight percent probability that Butler was not truthful. Butler was later convicted of cocaine trafficking and sentenced to a minimum of fifteen years in prison for his role in the drug deal with Steve.

Fernander was arrested on August 2, 2000, on the warrant for trafficking cocaine. He remained in jail until approximately October 27, 2000. On September 11, 2002, Fernander’s case was nolle prossed. The nolle prosse memorandum issued by the Assistant State Attorney stated that in comparing pictures of Fer-nander and the man purported to be Steve by Fernander’s family, Steve resembled Fernander. The memorandum noted that the telephone records for the telephone used by Steve were in Fernander’s name. The memorandum recalled that Christian had identified Fernander in the photo lineup, but had stated more than once “with a little more weight.” The memorandum stated that Butler had been deposed and testified Fernander was not Steve and that Steve was married to Butler’s cousin. The memo expressed doubt of the possibility of convicting Fernander in light of Butler’s testimony.

Fernander filed a nine-count complaint containing various federal and state claims against the City as well as Captain Bonis and Detective Scarlett in their individual capacities. The complaint alleged: violation of Fernander’s Fourth Amendment rights pursuant to 42 U.S.C. § 1983; a claim against Captain Bonis in his individual capacity for malicious prosecution pursuant to 42 U.S.C. § 1983; state law claims of malicious prosecution and false imprisonment; causes of action against the City and Scarlett individually based on the allegedly negligent performance and reporting of the polygraph examination administered to Butler; a cause of action against the City for negligent infliction of emotional distress; and a claim against Captain Bonis for intentional infliction of emotional distress. The trial court granted defendants’ motion to dismiss as to all counts with prejudice.

We first address Fernander’s claim the trial court erred in finding that Captain Bonis was entitled to qualified immunity as to Fernander’s 42 U.S.C. § 1983 due process claims. The parties agree that immunity is unavailable under 42 U.S.C. § 1983 if the unlawful nature of the governmental official’s action is apparent under pre-existing law. Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). “[Qualified immunity for government officials is the rule, liability and trials for liability the exception. A plaintiff suing a government official has the burden of showing that the official’s acts, at the time, violated clearly established law.” Alexander v. Univ. of N. Fla., 39 F.3d 290, 291 (11th Cir.1994).

Appellees argue that the existence of arguable probable cause supports the trial court’s conclusion. An officer seeking qualified immunity relating to the issuance of an arrest warrant needs to show only that the arrest warrant was supported by “arguable probable cause.” Brown v. Abercrombie, 151 Fed.Appx. 892, 893 (11th Cir.2005). “[Pjrobable cause exists when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged.” Mailly v. Jenne, 867 So.2d 1250, 1251 (Fla. 4th DCA 2004)(quoting Fla. Game & Freshwater Fish Comm’n v. Dockery, 676 So.2d 471, 474 (Fla. 1st DCA 1996)). It is “judged by the facts and legal state of affairs that existed at the time of the arrest.” Id.

In this case, Captain Bonis had Christian’s identification of Fernander as “Steve,” the man who had organized the cocaine deal and threatened to kill Christian’s family. Christian was familiar with Steve before these events. Captain Bonis also had discovered that the cellular phone used by Steve was registered in Fernan-der’s name. These facts were admitted in Fernander’s complaint. Captain Bonis had not only arguable probable cause, but actual probable cause to seek an arrest warrant for Fernander. This result is unaffected by Fernander’s allegation that Captain Bonis omitted Christian’s comment “with a little more weight” from the probable cause affidavit and that Captain Bonis should have known from Butler’s description that Fernander was not Steve. “The fact of the matter is that police officers making arrests ‘deal with probabilities’ .... ” Mills v. Town of Davie, 48 F.Supp.2d 1378, 1382 (S.D.Fla.1999). The trial court did not err in finding Captain Bonis possessed qualified immunity from suit.

We find no merit in Fernander’s alternative Eighth Amendment claim against Captain Bonis in his individual capacity. Fernander based this claim on the allegation that Bonis’s conduct resulted in Fernander’s arrest and confinement in lieu of $250,000 bond in violation of his Eighth Amendment rights. Since Fernander did not allege Captain Bonis set or denied Fernander’s bond, Captain Bonis could not be hable for an Eighth Amendment claim. See Kohl v. Casson, 5 F.3d 1141, 1149 (8th Cir.1993)(holding Eighth ■ Amendment claim properly dismissed where none of the defendants set Kohl’s bail). We therefore affirm the trial court’s ruling as to this issue.

Fernander next argues that the trial court erred in dismissing his § 1983 malicious prosecution claim. The Eleventh Circuit has recognized a federal malicious prosecution claim under section 1983 that requires the plaintiff prove the elements of common law malicious prosecution and a violation of the Fourth Amendment right to be free from unreasonable seizures. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir.2004).

The elements of a malicious prosecution claim are: (1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.

Valdes v. GAB Robins N. Am., Inc., 924 So.2d 862, 866 n. 1 (Fla. 3d DCA 2006).

We have already held that there was probable cause to seek to arrest Fer-nander. The presence of probable cause under the facts Fernander alleges prevents him from being able to show the absence of probable cause. It also negates Fernander’s ability to show malice. See Wood v. Kesler, 323 F.3d 872, 884 (11th Cir.2003)(finding that “[t]he existence of probable cause, and in particular the facts showing that probable cause, contradict any suggestion of malicious intent or bad faith.”).

Fernander next asserts that the trial court erred in dismissing his state tort claims for false arrest and false imprisonment against the City of Miramar and Captain Bonis. As previously held, Captain Bonis had probable cause to seek to arrest Fernander. This operates to bar a state law claim for false arrest. See Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.1998)(stating that probable cause constitutes an absolute bar to both state and section 1983 claims alleging false arrest); Mailly, 867 So.2d at 1251. In addition, the allegations of Fernander’s complaint failed to satisfy section 768.28(9)(a), Florida Statutes. That statute provides that an officer may not be liable in tort for actions taken in the scope of their employment unless the officer “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” § 768.28(9)(a), Fla. Stat. (2005). Fernan-der’s factual allegations did not establish that Captain Bonis acted outside the scope of his employment or with wanton or willful disregard of Fernander’s rights. We affirm as to this issue.

Fernander next argues the trial court improperly1 dismissed his claims against the City and Detective Scarlett based upon the alleged negligent administration of the polygraph examination of Butler. Fernander’s complaint alleged that a board certified polygraphist reviewed the information from Butler’s polygraph examination and found the result inconclusive. Fernander asserted that a properly administered polygraph examination of Butler, who allegedly claimed that Fernander was not Steve, would have resulted in withdrawal of the arrest warrant. We find no merit to this claim because Fernander has failed to establish that the police owed him a duty to conduct the polygraph examination of Butler in a non-negligent manner. See Pritchett v. City of Homestead, 855 So.2d 1164, 1165 (Fla. 3d DCA 2003)(recognizing that “negligent conduct of police investigations does not give rise to a cause of action because the duty to protect citizens and enforce the law is one owed generally to the public”); State v. Kowalski, 617 So.2d 1099 (Fla. 5th DCA 1993)(holding State Attorney’s Office owed no duty of care to plaintiff arising out of its duty to enforce the laws and promote public safety). See also Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912 (Fla.1985).

Lastly, we address Fernander’s argument that the trial court improperly dismissed his claim against the City for negligent infliction of emotional distress. This claim was also based on Fernander’s contention that the warrant for his arrest should have been withdrawn. The elements of a negligent infliction of emotional distress claim are: (1) the plaintiff must suffer a discernable physical injury; (2) the physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person. LeGrande v. Emmanuel, 889 So.2d 991, 995 (Fla. 3d DCA 2004).

Appellees argue that Fernander’s claim fails because he has not alleged physical injury to himself. Fernander acknowledges that a negligent infliction of emotional distress claim generally requires a plaintiff “must demonstrate that the emotional stress suffered flowed from injuries sustained in an impact.” Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234, 1237 (Fla.2001). Fernander argues his claim falls into an exception for emotional harm resulting from a prolonged period of wrongful incarceration.

Fernander relies on Rowell v. Holt, 850 So.2d 474 (Fla.2003). In Rowell, the plaintiff was wrongly arrested and confined and his attorney lost the document that would have freed him. 850 So.2d at 476. The plaintiff was incarcerated needlessly for over a week. Id. at 477. Plaintiff sued the attorney for malpractice. The trial court found that the “impact rule” did not apply, but the district court reluctantly applied the rule to reverse part of plaintiffs jury award. Id. The Florida Supreme Court reaffirmed the importance of the impact rule but stated the rule is not so rigid or unyielding that it must be blindly followed. Id. at 478. The court found an exception for the plaintiffs case but stressed that its holding was based on the unique circumstances of the ease and the “special professional duty created by the relationship between Rowell and his attorney.” Id. at 479.

This case does not involve the relationship between attorney and client as existed in Rowell, or any similar special professional relationship. The impact rule should be applied to Fernander’s case. There was no special duty to Fernander, and he has not alleged any physical harm to himself or another. His negligent infliction of emotional distress claim must fail.

We accordingly affirm the Final Judgment entered in this case. We decline to address other issues brought by appellant but not discussed in this opinion.

Affirmed.

STONE and HAZOURI, JJ., concur.


text:
    Jesse DIEGUEZ, Appellant, v. DEPT. OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.
    No. 3D04-1894.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 2007.
    Rehearing Denied Feb. 6, 2007.
    Mark J. Berkowitz, Fort Lauderdale, for appellant.

      Linton B. Eason, Assistant General Counsel, for appellee.
    Before COPE, C.J., and GREEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Jesse Dieguez appeals a final order of the Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement (“Commission”), which revoked his law enforcement certification. Mr. Dieguez contends that the revocation order is based entirely on inadmissible hearsay and is therefore not supported by legally sufficient evidence. He argues that the evidence against him was not clear and convincing, as is required for a license revocation. We disagree and affirm the revocation order.

I.

Mr. Dieguez was a police officer certified by the Commission, and employed by the City of Sweetwater. The Commission filed an administrative proceeding against Mr. Dieguez, seeking revocation of his law enforcement certificate. The amended administrative complaint alleges that Mr. Dieguez had engaged in lewd and lascivious conduct with a child under the age of sixteen, and had made a false statement about doing so. The Commission alleged that Mr. Dieguez had failed to maintain good moral character as required by section 943.13, Florida Statutes (2002), and requested revocation of his certificate.

The case was referred to an Administrative Law Judge of the Division of Administrative Hearings, who conducted a trial. A combination of hearsay and non-hearsay evidence was received. The Administrative Law Judge entered a recommended order recommending revocation. The Commission accepted the recommendation and revoked Mr. Dieguez’ license. This appeal follows.

II.

The victim was a stepdaughter of Mr. Dieguez. In February 2001 she told her mother that Mr. Dieguez had been sexually molesting her over an extended period of time. The mother took the victim to the Miami-Dade County Police Station where she was .interviewed by Detective Foote and other officers. One of the things the victim told investigators was that Mr. Die-guez had prepared written contracts between the victim and himself relating to sexual favors.

Several days after the initial contact with the Miami-Dade Police Department, the mother called the detective saying that she had doubts about her daughter’s veracity. The detective interviewed the mother and daughter separately. The daughter stated that she had fabricated her allegations.

In May 2001 the contracts mentioned above came to light. A police car previously assigned to Mr. Dieguez was reassigned to Sweetwater Police Officer Lopez. While cleaning out the trunk, Officer Lopez found, concealed under the trunk lining, three documents matching the victim’s description of the contracts. Two of the three bore the first names of Mr. Dieguez and the victim, with boxes to check for “yes” — signifying agreement — or “no”— signifying disagreement. The “yes” boxes were checked. One of the three documents was dated December 1996, and the others were undated. The Administrative Law Judge accurately described the documents as being ones which “speak loudly regarding the improper nature of Dieguez’ relationship to the victim.”

With these documents, the detective interviewed the victim and the mother again. The victim identified the contracts as being the ones she had referred to in her original sworn statement. She withdrew her recantation and stated that the molestation had, in fact, occurred as she had originally said. When the contracts were showed to the mother, the mother confirmed that handwriting was that of Mr. Dieguez.

By the time of the administrative hearing, the victim had reached adulthood. She appeared at the hearing accompanied by her own attorney. The victim again recanted her allegations, maintaining that all of her previous charges against Mr. Dieguez were untrue. The Administrative Law Judge admitted the written contracts into evidence. The court heard testimony from the police officers who had interviewed the victim during the investigation, and Officer Lopez, who found the three contracts.

The Administrative Law Judge concluded that the allegations had been proven by clear and convincing evidence. The findings of fact stated, in part:

6. Dieguez also left a paper trail which, for reasons set forth below, provided clear and convincing evidence of his guilty knowledge of his improper conduct toward the victim.
7. Dieguez created at least three documents which he referred to as “contracts” between himself and the victim ....
8. ... In the context of Dieguez’ relationship with the victim and, more significantly, in considering the “contracts” as a whole, it is clear that the contracts were part of an ongoing scheme by Die-guez to induce the victim to continue to submit to him sexually, and to maintain silence about the abuse.
13.At the time of the final hearing, the victim, then 19, testified in support of Dieguez, claiming that she had lied to investigators, and to friends, about having been abused by him. By the time of the hearing, the victim had, as one of the investigating officers put it, “flipped twice” as to whether she had in fact been abused by Dieguez.
14. The victim was accompanied to the hearing by an attorney, who entered an appearance on her behalf but made no motions. The victim’s mother was also present with Respondent.
15. The trier-of-fact carefully observed the young woman’s demeanor under oath and has no hesitation in saying that her purported denial of abuse served instead to corroborate the “contracts” in which Dieguez documents the true and improper nature of his conduct toward the victim.
16. The victim was plainly in distress as she gave her testimony. She claimed, unpersuasively, not to remember details of her allegations, nor of the investigation itself. She claimed not to have spoken with her mother about her allegations against Dieguez at any time after February 15, 2001. In fact, she denied speaking to anybody about the allegations, including the attorney who was present on her behalf.
17. Under all the circumstances, the “contracts” in Dieguez’ handwriting affirmatively and compellingly demonstrate the unreliability of the victim’s in court denial of abuse.
18. Florida law requires, as a minimum qualification for its law enforcement officers, that they be of good moral character. Florida law further provides that officers who lack good moral character may be stripped of their license to serve in law enforcement. Making a false statement under oath is an independent ground upon which a law en-foreement officer’s license may be revoked.

Recommended order at 3-6.

III.

Mr. Dieguez contends that all of the factual findings of the Administrative Law Judge were based on inadmissible hearsay, to which he timely objected. He argues that under the Florida Administrative Procedure Act (“APA”), inadmissible hearsay cannot form the basis for a factual finding.

The APA provides that in an administrative trial, “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” § 120.57(l)(c), Fla. Stat. (2003). See The Florida Bar, Florida Administrative Practice § 4.36 (7th ed. 2004). Under the statute, the evidence which can support a factual finding includes evidence which is not hearsay, and evidence which is admissible under a hearsay exception.

As we interpret the recommended order, the Administrative Law Judge based her findings on the three contracts. For the following reasons, these properly came in as substantive evidence.

The testimony established that the documents were found in a place of concealment under the trunk liner of the police car which had previously been assigned to Mr. Dieguez. This testimony sufficiently supports the conclusion that the documents belonged to Mr. Dieguez. Mr. Die-guez offered no evidence to the contrary.

On examining the text of the documents, all three are in the form of contracts. At the end of two of the contracts are the words “I promise” under which appears Mr. Dieguez’ first name and the first name of the victim. Under each name there are “yes” and “no” blocks. The “yes” blocks are checked for Mr. Dieguez and the victim. The third document has the same form but with space for a promise to be made by the victim only.

Because Mr. Dieguez was the party respondent in the proceeding below, the documents were admissible against him as admissions under subsection 90.803(18), Florida Statutes. As defined by the Evidence Code, an admission is a statement that is offered against a party and is (among other things) “(a) The party’s own statement in either an individual or a representative capacity; [or] (b) A statement of which the party has manifested an adoption or belief in its truth.... ” Two of the three documents bear a “yes” mark underneath Mr. Dieguez’ first name.

Furthermore, the APA allows hearsay evidence to be used for the purpose of supplementing or explaining other evidence. § 120.57(l)(c), Fla. Stat. In her initial statement to the police, the victim had described these contracts and explained that they were agreements in exchange for sexual favors. She explained that Mr. Dieguez wrote the contracts. The victim’s mother also told the detective that the handwriting on the documents was that of Mr. Dieguez. That hearsay evidence is admissible to explain these documents.

Mr. Dieguez contends that the documents could not be admitted into evidence without the testimony of a handwriting expert to identify the handwriting on the documents as being Mr. Dieguez’. We know of no such rule. For the reasons already stated, the documents were properly treated by the Administrative Law Judge as substantive evidence.

With the three contracts having been admitted as substantive evidence, the APA allows hearsay to be used for the purpose of supplementing or explaining them. In her out-of-court statements to the detective, the victim explained that the contracts related to sexual favors, and explained the nature of the relationship between herself and Mr. Dieguez.

Mr. Dieguez argues that the evidence was not clear and convincing. He points out that to revoke a professional license, the proof must be by clear and convincing evidence, and not by a mere preponderance. See Dept. of Banking and Finance v. Osborne Stern and Co., 670 So.2d 932, 933 (Fla.1996).

The clear and convincing standard of proof has been described as follows:

“Clear and convincing evidence” is an intermediate standard of proof, more than the “preponderance of the evidence” standard used in most civil cases, and less than the “beyond a reasonable doubt” standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970). In Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), the court held that:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

Smith v. Dept. of Health and Rehabilitative Services, 522 So.2d 956, 958 (Fla. 1st DCA 1988). The Administrative Law Judge found the evidence in this case to be clear and convincing.

Mr. Dieguez argues that Smith requires us to reverse the Commission’s order. In Smith an Administrative Hearing Officer disqualified a food stamp recipient on the ground that the food stamp recipient had intentionally concealed her income. The entire case had been based on documentary evidence. Smith stated that she did not know she had to report nonpermanent part-time work. Id. at 958. The worker who had interviewed Ms. Smith made a nonfraud referral to the agency for adjustment of benefits. Id. As the documentary evidence presented by the agency failed to establish an intentional, as opposed to inadvertent, program violation, the court concluded that the clear and convincing standard of evidence was not met.

The present case is quite different. These documents were found in a place of concealment in Mr. Dieguez’ police car. There is no plausible innocent explanation for the text of the documents. The victim’s hearsay statements were properly considered by the Administrative Law Judge to supplement and explain the documents. Based on this, the Administrative Law Judge could reasonably find (as she did) that the case had been proven by clear and convincing evidence.

For the stated reasons, the revocation order is affirmed.

      . There is also authority for the proposition that a finding can be supported by hearsay that comes in without objection, but there is authority to the contrary. See The Florida Bar, Florida Administrative Practice § 4.36. For present purposes we need not address that issue.

      . A handwriting analysis in this case was done by the Crime Laboratory Bureau of the Miami-Dade County Police Department. The handwriting was compared with six Sweetwa-ter Police incident reports which Mr. Dieguez had handwritten during his service as an officer. The Questioned Documents Examiner issued a report stating the examiner's opinion that Mr. Dieguez wrote the three contracts. The Questioned Documents Examiner was scheduled to testify at the administrative trial but, for reasons not clear in the record, failed to appear. While the written opinion of the Questioned Documents Examiner was admitted into evidence over Mr. Dieguez' hearsay objection, there is no indication that the Administrative Law Judge relied on it. That being so, we need not consider whether the hearsay expert report could be considered as evidence which supplements or explains other evidence within the meaning of paragraph 120.57(l)(c), Florida Statutes.


author: STONE, J.

text:
    Gary SENN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-275.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.
    Rehearing Denied Feb. 27, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STONE, J.

Senn was convicted of aggravated battery with a firearm causing great bodily harm and of petit theft.

At trial, the state introduced Senn’s statement to the police that concluded when he stated, “I think I want an attorney before I answer any more questions.” Defense counsel objected and requested that this portion of the statement be redacted. We conclude it was error to overrule Senn’s objection. The primary issue before us is whether such error was harmless.

The victim testified that he was walking when Senn pulled up to him, and they had an argument concerning an earlier disturbance at Senn’s apartment. The victim “read [Senn] the riot act about waking [him] up.” He said Senn “was just wild” and came straight towards him. The victim, knowing that Senn had a gun, told Senn “don’t do it, don’t do what I think you’re going to do.” The victim pulled out a “little pocket knife,” and when he saw Senn’s arm starting to move, punched him while holding the knife. Senn then shot him. The victim then turned and ran behind another vehicle, and when he came out from behind it, Senn shot him again. Senn then left.

The victim’s testimony was, in substantial part, confirmed by a witness to the altercation, who was a friend of the victim, and another witness as to Senn’s earlier possession of a gun. An additional witness testified that after the shooting, Senn was bleeding from a scratch on his face, and another testified to Senn or his companion admitting they “got rid of’ the gun.

In Senn’s statement to the police, he contended that the victim was calling him names, “cussing” him out and had stabbed him in the face with a knife before shots were fired. He also told the police that he did not fire a gun and that his companion did the shooting. Senn did not testify. None of Senn’s witnesses were eyewitnesses. The jury was instructed on self-defense.

A comment on a defendant’s request for an attorney may be construed as a comment on a defendant’s invocation of his right to remain silent, even after he has answered some questions. State v. DiGuilio, 491 So.2d 1129, 1131 (Fla.1986). A comment on the defendant’s silence does not create per se reversible error, but any such comment is analyzed under the harmless error test. Id. at 1135-36.

Several cases have found similar comments to those in the case at bar to be harmful error warranting reversal. DiGuilio, 491 So.2d at 1129 (finding permissible evidence not clearly conclusive where there were “entirely plausible explanations consistent with DiGuilio’s innocence”); Grier v. State, 934 So.2d 653 (Fla. 4th DCA 2006) (declining to find error harmless where defendant charged with multiple sexual crimes contended some acts were consensual, where on some counts there was no evidence of guilt other than testimony of victims); Kiner v. State, 824 So.2d 271 (Fla. 4th DCA 2002) (“lion’s share” of case centered on witness credibility and circumstantial evidence); Bernier v. State, 547 So.2d 306 (Fla. 4th DCA 1989) (defendant and victim’s testimony “differed materially”); Freeman v. State, 538 So.2d 936 (Fla. 2d DCA 1989) (rejecting state’s suggestion that error was harmless because of overwhelming evidence of guilt).

Here, despite significant evidence of guilt, there was disputed testimony as to self-defense. Further, we note that the jury asked questions during deliberations as to the victim’s wounds, the state of mind requirement under the self-defense statute, and the type of ammunition used.

As there is evidence to support the jury instruction on self-defense, and in applying the harmless error requirements of DiGuilio and Goodwin v. State, 751 So.2d 537 (Fla.1999), we must reverse Senn’s conviction and sentence and remand for a new trial.

SHAHOOD and HAZOURI, JJ., concur.

      . As the state does not question the self-defense instruction, we do not comment on Senn’s right to such while claiming to police that someone else was the shooter.


text:
    Denis POTIRIS and Bart Novack, Appellants, v. DEPARTMENT OF COMMUNITY AFFAIRS and The Village of Wellington, Florida, Appellees.
    No. 4D05-3134.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.
    Ronald J. Zeller and Neal J. Taslitz of Zeller & Associates, LLC, West Palm Beach, for appellants.
    Jonathan M. Streisfeld and Jeffrey S. Kurtz of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, Ft. Lauderdale, for appellee Village of Wellington.
    Richard E. Shine, Tallahassee, for appel-lee Florida Department of Community Affairs.
   KLEIN, J.

Potiris filed a petition for a formal administrative hearing to challenge a land use change approved by the Village of Wellington. Potiris is a land planner who does not live, own property, or have a business address or business license in Wellington. He asserted that he was an affected person as is defined in section 163.3184(l)(a), Florida Statutes (2004), because he was a person “owning or operating a business within the boundaries of the local government whose plan is the subject of the review.” If Potiris was such a person he would have standing to challenge the consistency of the comprehensive plan amendment in a section 120.57 administrative hearing. § 163.3184(9), Fla. Stat. (2004).

We affirm the final order dismissing Po-tiris’s petition for lack of standing. We do not agree with Potiris that, because, from time to time, he provides land use related services for properties in Wellington, he had standing. The fact that Potiris conducted some business activity in Wellington is not the same as “owning or operating a business” in Wellington. St. Joe Paper Co. v. Dep’t of Cmty. Affairs, 657 So.2d 27, 29 (Fla. 1st DCA 1995) (conducting business activity in connection with the planning process does not comply with the standing requirement). We accordingly affirm the dismissal for lack of standing.

POLEN and MAY, JJ., concur.