author: SHARP, W., J.

text:
    Stefan A. ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1884.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.

      David F. Hoffmann, of Hoffmann Hoff-mann, P.A., South Daytona, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt and Pamela J. Koller, Assistant Attorneys General, Daytona Beach, for Appellee.
   SHARP, W., J.

In this appeal from his conviction and sentence for robbery, Armstrong contends the trial court committed reversible error by: 1) allowing the state to introduce into evidence a portion of a video-taped statement he made to law enforcement while being investigated in an unrelated case, 2) refusing the defense request for a jury instruction on attempted robbery, and 3) striking a defense alibi witness. We agree with Armstrong that the court erred in admitting his statement to law enforcement and reverse on that ground. We find no merit to the remaining issues but address those issues in order to assist the trial court on remand.

Armstrong was charged with robbing Jessica Goerke of her wallet on December 6, 2004. Prior to trial, the defense filed a notice of alibi in which it claimed that Armstrong was with John Reynolds and Lisa Dutka at the time. The state moved to strike the notice as insufficient because it failed to state the location where Armstrong was at the time of the offense, as required by Florida Rule of Criminal Procedure 3.200.

At the hearing on this motion, defense counsel conceded the notice did not comply with the rule but argued the failure to state the location was an unintentional omission. Defense counsel then put on the record that Armstrong was at an address in Daytona Park Estates at the time of the offense.

The judge hearing the motion denied the state’s motion to strike but ordered that both alibi witnesses be made available that afternoon for deposition by the state. Defense counsel agreed to do so.

The defense produced Reynolds and the state took his deposition. However, the defense failed to produce Dutka.

At the start of the trial, the state moved to exclude Dutka who had appeared in court. The trial judge struck her as a witness because the defense failed to produce her the prior day and the state did not have an opportunity to talk to her. The trial then proceeded.

Jessica testified that she was accosted by a man in the driveway of her home. The man grabbed her arm and flung her around. He told her to give him all the money she had.

Jessica told the man she had no money, that she does not carry cash. The man told her to “prove it.” As Jessica was getting her wallet from her purse, the man grabbed her hair. Jessica was shaking so badly she could not open the wallet. Thé man yanked the wallet from her and looked through it. Jessica’s hands were free and she hit the panic button on her keychain, which set off the alarm on her vehicle.

The man dropped the wallet, slapped Jessica across her face and ran away. Jessica ran inside the house and called 911. Jessica’s- wallet was found in the driveway but no fingerprints were obtained from the wallet. Law enforcement took Jessica to view a suspect but he was not identified as the assailant.

Deputy Brian Henderson testified that Armstrong lived in the general vicinity of Jessica’s home in the Daytona Park Estates area. About one month after this crime was committed, Henderson interviewed Armstrong in connection with another robbery in November 2005. It involved a shooting. Over defense objection, the state was allowed to introduce the following statement made by Armstrong during that interview:

I will f— with people I don’t know, I-will steal somebody’s s — , but I ain’t never hurt nobody in my f-. life, man. I have never hurt nobody.

Based on the interview, Henderson obtained a photo line-up that included Armstrong and showed the photos to Jessica. Jessica almost instantly identified Armstrong. She also identified Armstrong as her assailant at trial.

Reynolds testified for the defense. He said that Armstrong had been living with him in his Daytona Park Estates home, at the time this crime was committed. On the day of the robbery, he, Armstrong and Dutka were home all day, just sitting around, playing video games. Jessica’s home is about a half-mile or more away.

The jury found Armstrong guilty as charged. Armstrong was adjudicated guilty and sentenced as an habitual offender to 30 years in prison.

I. STATEMENT TO LAW ENFORCEMENT

Armstrong contends the trial court erred in admitting the statement he made to law enforcement during the investigation of an unrelated robbery. Armstrong argues the statement was similar fact evidence which violated the Williams rule because there was no indicia of similarity other than both crimes involved stealing. It was also improper character evidence offered solely to demonstrate his bad character and that he acted in conformity with his bad character on this particular occasion. Any probative value was far outweighed by the danger of unfair prejudice.

In response, the state contends that Armstrong failed to object on improper character or Williams rule grounds and thus these claims have not been preserved for review. However, the state made no effort to present this statement as Williams rule evidence. It failed to provide the defense with prior notice, and the jury was not given a Williams rule charge, as is required. Delgado v. State, 573 So.2d 83 (Fla. 2nd DCA 1990). Nor did it argue the statement constituted proper Williams rule evidence. Finally, the state argues that any prejudice at trial did not substantially outweigh the probative value of the evidence.

We find that Armstrong adequately preserved his objections to admission of this statement. At the start of trial, defense counsel told the court:

The Defense submits to the Court if the Court allows Ms. Taylor, the Office of the State Attorney, to bring those statements in here, they would be collateral and would be unfairly prejudicial to the defendant in this case. They’re irrelevant to the crime at issue, therefore, we’re asking it to be excluded.

Before Henderson testified, the court reviewed the tape and heard arguments of counsel. After listening to the tape, defense counsel argued to the court:

They’re clearly talking about the armed robbery on November 19th, and Mr. Armstrong is defending himself about that crime. And he is emotional in doing so, and distinguishing he would not hurt somebody. For the state to think, well, that makes him, that makes that statement fair game for all crimes not dealing with a shooting, not dealing with any type of injury on that level, is irrelevant because it lacks context and its probative value is far outweighed by the prejudicial value.

In resolving the merits of this issue, we find instructive several cases involving similar statements. They all involve the defendants’ admissions of bad character or acts unrelated to the criminal prosecution in which the statements were admitted. For example, in Mims v. State, 872 So.2d 453 (Fla. 2nd DCA 2004), the trial judge admitted the defendant’s statement to a deputy that “I haven’t sold dope in at least four months, so it couldn’t have been me,” in his trial on drug charges. The Second District concluded this statement was unfairly prejudicial and should not have been admitted because it served only to establish the defendant’s propensity to sell drugs.

The Second District recognized that its review of the trial judge’s ruling on the admissibility of the defendant’s statement was for an abuse of discretion. Nevertheless, the court noted the trial judge should exclude modestly relevant evidence when the danger of unfair prejudice from its admission substantially outweighs its probative value. The Second District also rejected the state’s contention that the error was harmless because another deputy testified that the defendant was the person who sold him drugs during an undercover operation.

In Delgado v. State, 573 So.2d 83 (Fla. 2nd DCA 1990), the Second District concluded the trial judge in a murder case had erred in admitting testimony from the defendant’s girlfriend that the defendant used drugs and boasted that he had killed ten men. The court ruled that the defendant’s statement that he had previously killed ten men was not relevant to whether he had deliberately killed the victim in the case at hand. There also was no evidence that his statement was true, and any probative value of this testimony was far outweighed by the obvious danger of unfair prejudice. Likewise, the defendant’s involvement with drugs was not relevant to the shooting of the victim. The court could not say beyond a reasonable doubt that the error did not affect the verdict and so rejected the state’s harmless error argument.

In reaching its decision, the Second District relied on Jackson v. State, 451 So.2d 458 (Fla.1984). In Jackson, the Florida Supreme Court ruled that a defendant’s boast to a witness that he was “a thoroughbred killer” and evidence that he brandished a gun while making this statement to the witness was irrelevant and inadmissible in his trial for an unrelated murder. The testimony showed the defendant may have committed an assault on the witness but that crime was irrelevant. Likewise the “thoroughbred killer” statement may have suggested the defendant had killed in the past, but the boast neither proved that fact, nor was that fact relevant to the case at hand. The court said, “[t]he testimony is precisely the kind forbidden by the Williams rule and section 90.404(2).” 451 So.2d at 461.

In Carter v. State, 687 So.2d 327 (Fla. 1st DCA 1997), the First District reversed the defendant’s conviction for lewd and lascivious assault on a child less than 16 years of age where the judge had admitted the defendant’s statement: “if you’re old enough to bleed, you’re old enough to breed.” The court concluded this was not Williams rule evidence but rather was a statement of belief and did not involve past behavior, in the form of other crimes, wrongs or acts.

The court characterized this evidence as evidence of the defendant’s bad character, presented by the prosecution to show that the defendant acted in conformity with that bad character at a particular time. That the prosecutor offered the statement solely to show that the defendant was the sort of person who would molest a young girl was established during his closing argument. The prosecutor told the jury the statement “means that he feels like it’s all right to have sex with underage girls.” 687 So.2d at 329. After reviewing the evidence and considering the manner in which the statement was argued to the jury, the First District could not find the error was harmless beyond a reasonable doubt.

In Farrell v. State, 682 So.2d 204 (Fla. 5th DCA 1996), this court reversed the defendant’s conviction for lewd and lascivious assault on a child less than 16 years of age because the judge admitted testimony from the child victim that the defendant said he had been in prison for molesting another child. We acknowledged the defendant’s statement may have been relevant to explain why the child feared the defendant and delayed reporting the incident to his mother. Nevertheless, we ruled that the statement should not have been admitted at trial because its probative value was outweighed by unfair prejudice.

That case essentially was a swearing contest between the victim and the defendant. There was no other evidence or eyewitness testimony linking the defendant to the crime. Thus, establishing a suggestion that the defendant had committed a similar crime before was extremely significant and prejudicial. Instead of admitting the similar crime evidence, the judge should have allowed the child to testify only that the defendant stated he had been in prison, which would have explained the child’s fear and reluctance to report him. Because we were unable to conclude beyond a reasonable doubt that admission of the evidence did not affect the verdict, the cause was remanded for a new trial.

As in these cases, we conclude that Armstrong’s statement should not have been admitted at trial. This statement was made when law enforcement was investigating Armstrong’s involvement in an entirely unrelated robbery case and served only to show his bad character and propensity to commit the crime charged. Armstrong was not talking about a specific crime in his interview with Henderson but was trying to give Henderson a general idea of his character and what he would do and not do. The prosecutor acknowledged this evidence dealt with Armstrong’s character or traits. She told the court:

Prosecutor: This witness made statements in a broad context about himself, not limited to this specific crime. ⅜ * * [T]hat was the context of the interview, but there was a.lot of discussion about his criminal life in general, his reputation, his criminal activity in the past and present.

Further, during closing argument, the prosecutor used Armstrong’s statement to indicate his bad character and to show that he “steals.”

The defendant made some statements to Investigator Henderson, and you have had an opportunity to hear those statements. And I don’t repeat them to be crude, I repeat them to be accurate. He said, “I’ll tell you about Stefan Armstrong. I’ll f— with people I don’t know. I’ll steal their s — .” That’s not my words, that’s the defendant’s words. The defendant goes up to a law enforcement officer and tells him I steal stuff. He is not embarrassed. He doesn’t have a problem with it. The defendant keyed law enforcement onto himself.

This is similar to the statement of the prosecutor in Carter.

The trial court characterized the statement as an admission that Armstrong takes the property of others. However, Armstrong used the future tense — I will steal. He never admitted to a specific robbery.

Assuming this statement constituted an admission against interest or was somehow relevant, its admission at trial created a danger of unfair prejudice, which substantially outweighed any probative value. § 90.403, Fla. Stat. The statement was made while Armstrong was being interviewed in an unrelated robbery case which involved a shooting. While the state claimed the interview was voluntary, other portions of the tape (reviewed by the court but not heard by the jury) indicate that Henderson wanted Armstrong to take a voice stress test and that Armstrong believed he was a suspect in the shooting.

During the interview, Armstrong tried to convince Henderson that he was not involved-in the shooting by saying that he will steal but he would not harm anyone. The fact that Armstrong was trying to clear himself of the shooting undercuts the reliability of this statement. In other words, Armstrong may have said anything so as not to be arrested for the shooting.

The jury, however, was not told about the context in which this statement was made. The court gave the defense the opportunity to provide this information but the defense declined. This was a reasonable trial tactic because while this may have explained the context of the statement, it would have also informed the jury that Armstrong was a suspect in a more dangerous robbery — one involving a shooting — that could have been even more damaging to his case.

We also reject the state’s argument that any error in admitting this statement was harmless. We recognize that Jessica seemed certain that Armstrong was her assailant — her identification was described as positive, without hesitation and “almost instantly.” Armstrong was within arm’s length of Jessica, in the afternoon on a sunny day, and she clearly saw his face.

Nevertheless, the test of harmless error is not a sufficieney-of-the-evi-dence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or an overwhelming evidence test. State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Hill v. State, 616 So.2d 1160 (Fla. 5th DCA), rev. denied, 624 So.2d 266 (Fla. 1993). Rather, the focus is on the impact of the error on the trier-of-fact. Was there a reasonable possibility that the error affected the verdict? The burden to show that the error was harmless is on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. DiGuilio, 491 So.2d at 1139.

While Jessica may have seemed certain of her identification, there was no physical evidence, such as fingerprints or footprints, which tied Armstrong to the crime. This circumstance is similar to the evidence in Farrell. The jury may have taken Armstrong’s crude and vulgar comments as an admission of this crime (which is unfair and uninvited), or at the very least as admission of bad character — that he steals. The prosecutor enhanced the effect of the statement by her comments in closing argument, by suggesting they were the reason Armstrong became a suspect, and that he admitted to stealing. In these circumstances, we cannot say beyond a reasonable doubt that the error did not affect the verdict.

II. JURY INSTRUCTION

Armstrong also contends that the trial court erred in refusing the defense’s request for a jury instruction on attempted robbery because the evidence at trial did not establish, as a matter of law, just the completed offense of robbery. Armstrong claims there was evidence that he merely attempted the robbery, but that robbery was interrupted and abandoned when the vehicle alarm sounded. Without the instruction on attempted robbery, Armstrong argues he was deprived of an opportunity for a jury pardon. Evans v. State, 831 So.2d 808 (Fla. 4th DCA 2002) (refusing to instruct the jury on the attempt to commit the offense charged, where the evidence does not point only to a completed offense, deprives the defendant of the opportunity for a jury pardon, rendering such a failure reversible error).

Florida Rule of Criminal Procedure 3.510(a) governs jury instructions on attempts:

Rule 3.510. Determination of Attempts and Lesser Included Offenses
On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense;

While Armstrong may have been interested in Jessica’s money, he was not charged with robbing Jessica of money. Rather he was charged with robbing Jessica of her wallet.

“Robbery” is defined as “the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.13(a), Fla. Stat. The evidence showed that Armstrong completed the robbery as charged' — -he took Jessica’s wallet by force, violence, assault, or putting in fear. The fact that Armstrong quickly dropped the wallet, either because there was no money in it or because the vehicle alarm sounded, did not turn the already completed robbery into an attempted robbery.

III. EXCLUSION OF ALIBI WITNESS

Finally, Armstrong contends the trial court erred when it excluded Dutka, one of his alibi witnesses. Armstrong argues the state cannot claim it was prejudiced because Dutka had been listed as a state witness in another robbery case against him. Thus the state knew her and could have easily taken her deposition. Armstrong also argues the court should have considered some less drastic measure to remedy any prejudice to the state.

Under rule 3.200, the trial court may exclude an alibi witness if the defense fails to comply with the requirements of the rule:

Rule 3.200. Notice of Alibi
On the written demand of the prosecuting attorney, ... a defendant in a criminal case who intends to offer evidence of an alibi in defense shall, not less than 10 days before trial or such other time as the court may direct, file and serve on the prosecuting attorney a notice in writing of an intention to claim an alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or the defendant’s attorney, the names and addresses of the witnesses by whom the defendant proposes to establish the alibi....
If a defendant fails to file and serve a copy of the notice as herein required, the court may exclude evidence offered by the defendant for the purpose of providing an alibi except the defendant’s own testimony.... For good cause shown the court may waive the requirements of this rule, (emphasis added)

Defense counsel conceded the notice of alibi did not comply with this rule. Despite this concession, the judge denied the state’s request to strike the notice conditioned on the defense making Reynolds and Dutka available to the state that afternoon before trial. Defense counsel agreed to do so.

The state was able to depose Reynolds and used information from that deposition to impeach him at trial. For example, Reynolds testified for the defense that Armstrong moved in with him a week after Thanksgiving and was still living with him until he was incarcerated. However, in his deposition, Reynolds did not give a clear answer as to when Armstrong moved in with him.

Reynolds also testified that he knew where Armstrong was “all day, every day.” However, Reynolds stated in his deposition that he went to his grandmother’s house several mornings a week to fix her breakfast and work on her house. Thus the state was able to obtain valuable information from Reynolds which cast doubt on his alibi of Armstrong.

In contrast, Dutka did not appear for her deposition. Although she was in the courtroom on the day of trial, no explanation was given for why she was not available for her deposition the day before.

Given the defense’s violation of the alibi rule, its unexplained failure to produce Dutka in violation of the court’s order and the obvious prejudice to the state stemming from its inability to depose her, we find no abuse of discretion in excluding Dutka as a witness. See Lee v. State, 534 So.2d 1226 (Fla. 1st DCA 1988) (it is within a trial court’s discretion to order exclusion of a witness as a sanction for violation of a discovery order).

The cases cited by Armstrong, Pelham v. State, 567 So.2d 537 (Fla. 2nd DCA 1990), Austin v. State, 461 So.2d 1380 (Fla. 1st DCA 1984) and Bell v. State, 287 So.2d 717 (Fla. 2nd DCA 1974), do not involve the violation of a court order to produce a witness. In addition, Pelham and Bell have been undercut by Small v. State, 630 So.2d 1087 (Fla.1994). Both Pelham and Bell hold that a violation of the notice of alibi rule under 3.200 should be treated like a discovery violation under rule 3.220, thus triggering a Richardson type hearing.

However, in Small, the Florida Supreme Court rejected this view, explaining as follows:

We disagree with Small’s initial premise that rule 3.200 and rule 3.220 are fundamentally the same. Although the two rules share the same rationale, to eliminate surprise at trial, the notice of alibi rule is not a discovery rule. Rule 3.200 also diminishes the opportunity of presenting manufactured false alibis. Hicks v. State, 400 So.2d 955 (Fla.1981). Under the ten-day notice requirement, the state is at least advised of the existence of the alibi and has the option of investigating it. If the state goes to trial without this notice, it does not have the opportunity to depose the alibi witness, determine the witness’s credibility, determine whether there is a witness to rebut the alibi witness’s testimony, or otherwise check its validity. Thus, a defense violation of rule 3.200 inherently prejudices the prosecution.
Rule 3.220, like the notice of alibi rule, was designed to ensure that both the state and the defense have knowledge of relevant information regarding the case and are properly prepared for trial. However, unlike the notice of alibi rule, a violation of rule 3.220 will not always result in prejudice. For that reason, rule 3.220(n) provides a choice among sanctions the court may impose for violation of the rule. After conducting a Richardson inquiry, the court can determine how severe the sanction should be based on the degree of prejudicial impact caused by the discovery violation. The notice of alibi rule does not provide a list of sanctions comparable to that in rule 3.220 because a violation of the notice of alibi rule will always result in prejudice. In contrast to rule 3.220, the notice of alibi rule limits the court to excluding the alibi evidence or waiving the requirement for good cause if the defendant fails to provide the state with the requisite notice. Because a violation of the notice of alibi rule is not completely analogous to a failure to furnish discovery information under rule 3.220, the decisional law applying to rule 3.220 is not equally applicable to the notice of alibi rule, (emphasis added)

630 So.2d at 1088-1089.

The court also disagreed with Small’s general contention that a trial court’s failure to allow a defendant an opportunity to show -good cause constitutes reversible error. As the court explained:

[T]he initial error in this case actually occurred when the defense failed to notify the state about the alibi witness. The defense learned of the alibi witness during the first trial and failed to notify the state in a timely manner. Six weeks later the defendant’s second trial began, and the defense again violated rule 3.200 by failing to provide the name and address of the alibi witness. To reverse the trial court’s decision would allow the defense to benefit from its own mistake in failing to comply with the Florida Rules of Criminal Procedure. “[T]he notice-of-alibi rule was never intended to provide a defendant with a procedural device to escape justice.” Smith v. State, 319 So.2d 14, 17 (Fla.1975).

630 So.2d at 1089.

Here the initial error occurred when the defense filed a notice of alibi that did not comply with rule 3.200. The defense was then given a reasonable means short of witness exclusion to remedy that deficiency. However, the defense did not avail itself of that opportunity and did not produce Dutka for her deposition, thus resulting in her exclusion as a witness. There was no error in excluding her as a witness.

REVERSED and REMANDED for a New Trial.

GRIFFIN and PALMER, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959) codified in section 90.404(2)(a):
      90.404. Character evidence; when admissible
      (2) Other crimes, wrongs, or acts.—
      (a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

      . Here the prosecutor argued Armstrong's statement was essential to the state's case to show the reason why Armstrong was identified as a suspect. However, Henderson could have simply testified that, as the result of an interview or investigation, he began to suspect Armstrong of this robbery.

      . 90.403. Exclusion on grounds of prejudice or confusion
      Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence....

      . The state wanted only the first portion of the statement admitted ("I will f— with people I don’t know, I will steal somebody's s — , but I ain’t never hurt nobody in my f-.life, man.”). The court asked defense counsel if he wanted the next line to be admitted ("I have never hurt nobody.”) and counsel said yes. Defense counsel declined to allow any more of the interview to be shown to the jury.

      . Jessica testified she bought the wallet for about $12 a few months before the robbery. On appeal, Armstrong does not argue the wallet fails to meet the definition of "other property which may be the subject of larceny.”

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    BLACKHAWK QUARRY COMPANY OF FLORIDA, INC., Appellant, v. HEWITT CONTRACTING CO., INC., Appellee.
    No. 5D05-3380.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.

      John R. Young, of Boose Casey Ciklin Lubitz Martens McBane & O’Connell, West Palm Beach, for Appellant.
    Kimberly A. Ashby, Akerman Senterfitt, Orlando, for Appellant.
    Christopher V. Carlyle, Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   ORFINGER, J.

Blackhawk Quarry Company of Florida, Inc. appeals a non-final order denying its motion to change venue. We reverse.

Blackhawk and Hewitt Construction Company, Inc. entered into a series of written contracts under which Blackhawk agreed to provide and haul away roadbed material for a project that Hewitt had with the Florida Department of Transportation (FDOT) in Brevard County. Blackhawk delivered the roadbed materials to the FDOT job site in Brevard County, and hauled away other materials from Brevard County. During the term of the agreements, Blackhawk sent a letter to Hewitt’s office in Lake County, informing Hewitt that it was closing its quarry operation, and, therefore, could no longer supply the contracted-for materials.

Hewitt sued Blackhawk in Lake County for breach of contract. Hewitt is a Florida corporation with its principal place of business in Lake County. Blackhawk is also a Florida corporation with its principal place of business is in Brevard County. In its complaint, Hewitt alleged that venue was proper in Lake County because the cause of action accrued when Blackhawk mailed a letter to Hewitt in Lake County, repudiating the contract.

In response, Blackhawk filed a motion to transfer venue to Brevard County. In support of its motion, Blackhawk alleged that the cause of action accrued, if at all, in Brevard County, where the roadbed material was delivered to, and accepted by, Hewitt. Following a hearing, the trial court entered an order denying Black-hawk’s motion to change venue, citing Suzanne Walker & Associates, Inc. v. Qualtec Quality Services, Inc., 660 So.2d 384 (Fla. 5th DCA 1995). This appeal followed.

Hewitt urges this Court to review the trial court’s venue decision using an abuse of discretion standard, citing Instrumentation Services, Inc. v. Data Management Associates, 708 So.2d 1018 (Fla. 4th DCA 1998). The abuse of discretion standard applies if the trial court changed venue in a case from one proper location to another. Sch. Bd. of Osceola County v. State Bd. of Ed., 903 So.2d 963, 965 (Fla. 5th DCA 2005); Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 630 (Fla. 1st DCA 1999). For instance, such a standard of review applies in cases where venue is changed for the convenience of the parties or where the court finds it necessary to change venue in order to ensure the right to a fair trial. See, e.g., Jensen v. State Farm Mut. Auto. Ins. Co., 781 So.2d 468, 469 (Fla. 5th DCA 2001); Mgmt. Computer Controls, Inc., 743 So.2d at 630; Tindall v. Smith, 601 So.2d 627, 627 (Fla. 2d DCA 1992). On the other hand, when a trial court considers a motion to transfer venue based on the plaintiffs erroneous venue selection, the defendant is arguing that, as a matter of law, the lawsuit has been filed in the wrong forum. To rule on such a motion, the trial court needs to resolve any relevant factual disputes and then make a legal decision whether the plaintiffs venue selection is legally supportable. A trial court’s factual decisions in this context are reviewed to determine whether they are supported by competent, substantial evidence or whether they are clearly erroneous. PricewaterhouseCoopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999) (citing Holland v. Gross, 89 So.2d 255, 258 (Fla.1956); Bradley v. Wal-drop, 611 So.2d 31, 32 (Fla. 1st DCA 1992)). The trial court’s legal conclusions are reviewed de novo. Id.

In the instant case, there is no factual issue on appeal, as we assume Blackhawk mailed its letter terminating the contract to Hewitt’s office in Lake County. Consequently, we review the trial court’s legal decision de novo.

Venue is governed by section 47.011, Florida Statutes (2004), which provides, in pertinent part, that “[a]etions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” Additionally, since Blackhawk, the named defendant, is a domestic corporation, section 47.051, Florida Statutes (2004), must also be considered given that the statute specifically defines the scope of venue for actions against corporations. Under section 47.051, actions against Florida corporations “shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.”

The plaintiff has the option of selecting venue as long as the plaintiffs choice is supported by the statutes. See Nicholas v. Ross, 721 So.2d 1241, 1242 (Fla. 4th DCA 1998). To change venue, the defendant has the burden of showing that the venue selected by the plaintiff is improper. See Symbol Mattress of Fla., Inc. v. Royal Sleep Prods., Inc., 832 So.2d 233, 235 (Fla. 5th DCA 2002). Here, it is undisputed that there is no property involved in the instant litigation and that Blackhawk’s office is located in Brevard County. Therefore, venue is only proper in Lake County if the cause of action accrued there.

Generally, a cause of action for breach of contract accrues, for venue purposes, in the county where the breach occurred. Qualtec, 660 So.2d at 385; Carter Realty Co. v. Roper Bros. Land Co., Inc., 461 So.2d 1029, 1030 (Fla. 5th DCA 1985). A breach occurs where the failure of performance occurred. Sagaz Indus., Inc. v. Martin, 706 So.2d 374, 375 (Fla. 5th DCA 1998); Vital Indus., Inc. v. Burch, 423 So.2d 1023, 1023-24 (Fla. 4th DCA 1982); Speedling, Inc. v. Krig, 378 So.2d 57, 58 (Fla. 2d DCA 1979). Where the alleged breach lies in the defendant’s act of renouncing and refusing to further recognize a partially completed contract, the cause of action accrues and venue is proper where the contract was to be performed. Sagaz Indus., Inc., 706 So.2d at 375-76. In this case, performance was to occur in Brevard County.

While acknowledging these general venue rules, Hewitt relies on our decision in Qualtec to defend the trial court’s order. In that case, Walker and Qualtec entered into a contract in which Qualtec retained Walker “to perform consulting services at Walker’s offices located in Seminole County.” Qualtec, 660 So.2d at 384 (emphasis in original). Qualtec subsequently notified Walker by mail, received at Walker’s Seminole County office, that it was terminating the contract because of Walker’s unsatisfactory performance. Walker sued Qual-tec in Seminole County for breach of contract. Qualtec moved to transfer venue because it maintained no office in Seminole County. In reversing the trial court’s order transferring venue to Palm Beach County, this Court reiterated the general venue principles previously cited and concluded that when the alleged contractual breach involves repudiation, “the cause of action accrues and venue is proper where the contract is to be performed.” Qualtec, 660 So.2d at 385. However, our opinion in Qualtec went on to say “according to St. Laurent [v. Resort Marketing Associates, Inc., 399 So.2d 362 (Fla. 2d DCA 1981) ], venue is proper where the renunciation or termination of the contract occurred. Qualtec’s termination letter was addressed to Walker’s office in Winter Springs, Seminole County. Based on St. Laurent, then, venue was proper in that county.” Id. Relying on that statement, Hewitt argues that venue properly lies in Lake County since Blackhawk mailed its letter repudiating the contract to Hewitt in Lake County. We believe that reliance is misplaced. As the third district court correctly observed in Kumar v. Embassy Kosher Tours, Inc., 696 So.2d 393 (Fla. 3d DCA 1997), that statement was dictum, and not an essential holding of the case. Additionally, Qualtec and St. Laurent, the cases upon which that statement is premised, both concerned personal service contracts, not the type of contract at issue here.

The gravamen of Hewitt’s claim was Blackhawk’s alleged failure to perform under the contract. Since the alleged failure occurred in Brevard County, the cause of action accrued there. Accordingly, we reverse the order denying Blackhawk’s motion for change of venue and remand this matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PALMER and MONACO, JJ., concur.

      . This holding is consistent with the first, second and third district courts. See Nissan N. Am., Inc. v. Vitale, 802 So.2d 465, 467 (Fla. 2d DCA 2001) (holding that in case of an anticipatory breach of contract, the cause of action accrues where the letter of repudiation was written); Kumar (same); Perry Bldg. Sys., Inc. v. Hayes & Bates, Inc., 361 So.2d 443 (Fla. 1st DCA 1978) (same).


text:
    Robert W. ELTON, etc., Petitioner, v. Mare DOUGHERTY, et al., Respondent.
    No. 5D05-4188.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.
    Robert W. Elton of Revis, Elton & Blackburn, P.A., Daytona Beach, pro se.
    Kenneth J. Reilly and William P. Ger-aghty of Shook, Hardy & Bacon, LLP, Miami, for Respondent Philip Morris USA, Inc., et al.
    Mare Dougherty, Ormond Beach, pro se.
   SHARP, W., J.

Elton, the petitioner in this case, seeks certiorari review of the circuit court’s order that denied his motion to withdraw as counsel for the plaintiff, Mare Dougherty, in a civil lawsuit. We grant the writ.

In the lawsuit below, Dougherty sued various tobacco companies for injuries she suffered in 1997. She had a severe asthma attack which caused respiratory failure and left her partially paralyzed and partially blind. The amended complaint was served on May 8, 2001. She alleged and sought to prove that her constant inhalation of second-hand cigarette smoke in the course of her employment as a bartender caused her respiratory arrest.

On May 24, 2005, the parties completed the deposition of Dougherty’s treating pul-monologist. He testified she had a genetic predisposition to develop asthma, and that she probably would have developed asthma, even if she had never been exposed to second-hand smoke. He had no opinion as to whether her exposure to second-hand smoke caused or contributed to her asthma attack and pulmonary failure.

Immediately after the doctor’s deposition, Elton told Dougherty that he did not believe her case could be won, and that he intended to withdraw. However, she persuaded him to attend a case management conference on June 23, 2005 before moving to withdraw so that she would have time to find a substitute attorney. The case was set for trial during a two-week period beginning July 3, 2006.

On September 9, 2005, Elton filed his motion to withdraw. As grounds, Elton stated he could not afford to advance the costs necessary to prosecute an expensive products liability case. Because his client is disabled, he requested that the court give her ninety days to obtain other counsel.

A hearing was held on the motion to withdraw on September 20, 2005. The court deferred ruling for thirty days to allow Dougherty to find substitute counsel. A second hearing was held on November 3, 2005. Dougherty opposed, the motion to withdraw, but did not say she had tried to obtain other counsel. The court orally denied Elton’s motion, but extended the time to disclose expert witnesses.

On November 8, 2005 Elton filed a motion for rehearing, alleging that in his professional opinion, the case could not be won, referencing the deposition of the treating physician, and asserting a conflict of interest because he is unable and unwilling to advance the costs of litigation. The court denied his motion for rehearing on November 9, 2005.

On December 1, 2005, the tobacco company defendants served motions for summary judgment on causation and other issues. Elton filed this petition, on December 8, 2005, and the trial court stayed the case. It was removed from the July 3, 2006 trial docket.

The leading case on the withdrawal of an attorney in a civil case is Fisher v. State, 248 So.2d 479 (Fla.1971). The attorney, Fisher, had been defending a person in an automobile accident case, when the person’s insurance company went into receivership, making it unlikely that Fisher would be paid or reimbursed for costs if he continued his representation. The trial court denied his motion to withdraw and he was held in direct criminal contempt of court for refusing to appear at trial. He argued he should not be required to represent a client whose interests are adverse to his own. The adversity stemmed from his being forced to spend his own money and time in taking depositions, and preparing and handling the lawsuit with no expectation of being paid.

The supreme court reversed the trial court’s order holding Fisher in direct criminal contempt. It held that because the case had not been scheduled for trial, and there was ample time for the client to obtain new counsel, Fisher had the right to withdraw as counsel of record. It noted that to require an attorney to represent a client whose interests are opposed to his own, is violative of the professional standards of ethics, and could subject the lawyer to serious disciplinary action. Further the court recognized that in a civil case any attorney of record has the right to terminate the representation and withdraw as attorney of record upon due notice to the client and approval by the court. Approval should be denied by the court only in rare circumstances, when demonstrated that withdrawal would interfere with the efficient and proper functioning of the court. Id. at 486.

Illustrative of such rare circumstances are cases in which counsel seeks to withdraw shortly before trial, or where the attorney seeks to withdraw in an old case, not because of a conflict of interest but because of his dissatisfaction with a fee arrangement. The trial court denied Elton’s motion to withdraw because he failed to demonstrate good cause, and did not overcome the showing of great material prejudice to his client by withdrawing at “this eleventh hour.”

This case is an old one, having been filed in 1999, and was on the trial docket. Because Dougherty is handicapped, the trial court stated, at the hearing on November 3, 2005, that it would impede the business of the court if Elton were to withdraw. However, based on this record, Elton did not seek to withdraw from the case on the eve of trial. It had been pending a long time, but the deposition of the treating physician was not completed until May 24, 2005. Although a trial had been scheduled when Elton filed his motion to withdraw, it was not set to commence for almost ten months.

The Rule Regulating Florida Bar 4-1.16(b) provides:

(b) When withdrawal is allowed. Except as stated in subdivision (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer’s services to perpetrate a crime or fraud;
(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6)other good cause for withdrawal exists.

This rule permits withdrawal from a case even if the interests of the client are adversely affected, provided one of the six grounds is present. One ground is unreasonable financial burden on the attorney. Elton asserted this ground below. Another ground is if other good cause exists. Here, Elton asserted that after conducting discovery he concluded that the case lacked merit. In other states, an attorney’s assertion that he or she can no longer prosecute the case in good faith, provides good cause for withdrawal. Further, prosecution of a case which the attorney believes lacks merit under the facts or law, can subject him or her to sanctions in the form of assessment of attorney fees for the defending parties. § 57.105, Fla. Stat. (2005).

In this case, Elton has determined that Dougherty’s case lacks merit, and he is no longer willing to advance costs necessary to proceed. Dougherty cannot pay the costs. Thus, the attorney’s and client’s interests are in insurmountable conflict.

The unusual circumstances noted in Rule 4 — 1.16(b)(5) and (6), which justify a court’s approval to withdraw, exist in this case. Elton’s motion to withdraw was filed in an older case, but not on the eve of trial, and it was filed promptly after the attorney determined he could not prosecute the case further in good faith. Accordingly, we grant the petition and quash the trial court’s denial of Elton’s motion to withdraw. Failure to allow withdrawal in this case was a departure from the essential requirement of law.

Petition for Writ of Certiorari GRANTED; Order QUASHED.

THOMPSON and LAWSON, JJ„ concur.

      . See Atlantic Commercial Development v. Nortek, Inc., 403 So.2d 624 (Fla. 5th DCA 1981).

      . See Hollis v. F.B. Myers & Bro. Co., 482 So.2d 568 (Fla. 4th DCA 1986).

      . See Kirsch v. Duryea, 21 Cal.3d 303, 146 Cal.Rptr. 218, 578 P.2d 935 (1978); Cohen v. Tzimas, 135 Misc.2d 335, 515 N.Y.S.2d 173 (N.Y.Sup.Ct.1987); Rindner v. Cannon Mills, Inc., 127 Misc.2d 604, 486 N.Y.S.2d 858 (N.Y.Sup.Ct.1985).


author: LAWSON, J.

text:
    Robert E. PETTIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1636.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.
    Robert E. Pettis, Perry, pro se.
    No Appearance for Appellee.
   LAWSON, J.

Robert E. Pettis, (“Pettis”), appeals the trial court’s summary denial of his rule 3.800(a) motion. We affirm and write only to recommend that the Department of Corrections institute disciplinary proceedings against Pettis pursuant to section 944.279(1), Florida Statutes, for his pursuit of this clearly frivolous claim on appeal.

Nearly fifteen years ago, on December 6, 1991, Pettis pled no contest to two counts of attempted sexual battery and to two counts of committing a lewd act upon a child. For these offenses, he received an aggregate probationary split sentence of twelve years in prison followed by fifteen years of probation. His direct appeal to this court resulted in a per curiam affir-mance. Pettis v. State, 605 So.2d 89 (Fla. 5th DCA 1992) (table).

Subsequently, Pettis was released to probation, but violated his probation, and was resentenced to fifteen years in prison. His appeal of the resentencing resulted in a per curiam affirmance. Pettis v. State, 796 So.2d 1189 (Fla. 5th DCA 2001) (table).

Pettis recently filed in the trial court a petition for writ of habeas corpus alleging that there was a scrivener’s error in the date charged in the information. The trial court’s denial of his petition was affirmed by this court per curiam in Pettis v. State, 918 So.2d 967 (Fla. 5th DCA 2005). Pettis’ previous motion to clarify sentence also alleged the same scrivener’s error, but he did not appeal the trial court’s denial of that motion.

In the instant motion, Pettis for the third time alleges that there is a scrivener’s error in the date charged in the information. Specifically, he complains that while the information states that his offenses took place on November 1,1989, the sworn statement and the police report indicates that his offenses occurred sometime between June 1989 and June 1990. According to him, it is “impossible to determine from the police report” if his offenses occurred before or after October 1, 1989. Thus, in his view, it is “quite clear” that the November 1, 1989 offense date stated in the information is “in error.”

Pettis’ continued pursuit of this issue is clearly frivolous. For one thing, his claim is proeedurally barred, since, as indicated, Pettis previously raised this claim in the trial court on two prior occasions and this court upheld the trial court’s ruling against him on the same claim on one of the occasions. See generally State v. McBride, 848 So.2d 287 (Fla.2003). For another, as the trial court points out in its order, Pettis waived any alleged defect in the information by pleading no contest to the charges. See Yates v. State, 509 So.2d 1249 (Fla. 5th DCA 1987). Since he pled no contest to the charges, he effectively admitted to the date set forth in the information.

Therefore, we affirm and direct the Clerk to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; certified opinion FORWARDED to Department of Corrections.

SHARP, W., and GRIFFIN, JJ., concur.


text:
    Anthony HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1397.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.

      Anthony Houston, Sanderson, pro se.
    No Appearance for Appellee.
   LAWSON, J.

Houston appeals the summary denial of his rule 3.853 motion for postconviction DNA testing. We affirm.

Houston was charged by information in case number 2002-CF-1869 with two counts of sexual battery. After the jury returned guilty verdicts as to both charges, the trial judge sentenced Houston to concurrent terms of life imprisonment as an habitual felony offender to run consecutive to any active sentence. The judgment and sentences were affirmed on appeal. See Houston v. State, 849 So.2d 319 (Fla. 5th DCA 2003) (table);

Houston then filed a rule 3.850 motion for postconvietion relief, which was denied. We also affirmed the summary denial of Houston’s 3.850 motion. See Houston v. State, 928 So.2d 1237 (Fla. 5th DCA 2006).

In the instant rule 3.853 motion, Houston alleges that during trial the State introduced Williams rule evidence to demonstrate that Houston’s DNA was linked to several sexual batteries. Houston then notes that no DNA evidence was ever actually presented at his trial. Houston makes á conclusory allegation that there were discrepancies in the Williams rule evidence used by the State to obtain his conviction. He concludes by stating, “if there is any evidence (DNA), if tested, will show that the State has obtained a conviction by illegal means.” (Emphasis added).

The trial court summarily denied Ho.us-ton’s motion holding that the allegations presented were facially insufficient as they failed to conform to the requirements of Florida Rule of Criminal Procedure 3.853(b). Furthermore, the trial court attached trial court transcripts demonstrating that DNA testing was actually conducted and that both sides stipulated at trial that semen found in the sexual assault kit of the victim was Houston’s. Finally, the trial court attached the transcript testimony of Houston wherein he admitted to having sexual relations with the victim, while noting that the only issue at trial was whether or not the victim consented to the sex. Accordingly, the trial court held that because there was no dispute that Houston had sex with the victim, DNA testing would not exonerate him or mitigate his sentence.

Houston’s motion for rehearing offered nothing to the equation and was accordingly denied by the trial court. We conclude that the trial court’s rationale for denying Houston’s motion was correct in both regards.

Rule 3.853(b) states:

(b) Contents of Motion. The motion for postconviction DNA testing must be under oath and must include the following:
(1) a statement of the facts relied on in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained;
(2) a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result;
(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the mov-ant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime;
(4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received;
(5) a statement of any other facts relevant to the motion; and
(6) a certificate that a copy of the motion has been served on the prosecuting authority.

“The clear requirement of these provisions is that a movant, in pleading the requirements of rule 3.853, must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence.” Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004).

In the instant case, Houston’s bare-bones pleading merely states that “if’ there is any DNA evidence, such evidence will demonstrate that Houston’s conviction is illegal. Houston does not specify what evidence he wishes to be tested, nor where it is presently located. While Houston appears to be referring to DNA evidence obtained from the victim’s rape kit, Houston has failed to specifically state as much. Furthermore, to the extent he is referring to the rape kit DNA evidence, Houston has failed to acknowledge that this DNA evidence was already tested, with inconclusive results, or allege that “subsequent scientific developments” might lead to a different result. Finally, Houston has not alleged that identification was a genuinely disputed issue at trial, nor that DNA evidence would either exonerate him or mitigate his sentence. In short, Houston completely failed to abide by the pleading requirements of rule 3.853(b). The trial court correctly denied Houston’s motion based on this reason alone.

Additionally, the trial court’s order clearly demonstrates that identification was not an issue in the instant case because Houston acknowledged having had sex with the victim. The only issue was consent. As the trial court further noted, DNA testing of the victim’s rape kit was conducted resulting in Houston’s stipulation at trial that the semen evidence obtained from the victim was his.

Accordingly, the trial court correctly denied Houston’s rule 3.853 motion, both procedurally and on the merits.

AFFIRMED.

PLEUS, C.J., and THOMPSON, J., concur.

      . This court's records demonstrate that on July 25, 2002, Houston was also found guilty by a jury of sexual battery in Orange County case no. 2002-CF-1087 and sentenced to life imprisonment.

      . As stated by the Second District in State v. Storer, 920 So.2d 754, 756 (Fla. 2d DCA 2006):

        Williams rule evidence is evidence of prior crimes or bad acts of the defendant presented by the State under section 90.404(2)(a), as character evidence of the accused, when relevant to prove a material fact in issue. The name of the rule is derived from the lead case on the subject. Williams v. State, 110 So.2d 654 (Fla.1959).

      . In his motion for rehearing, Houston noted that his stipulation at trial to the DNA evidence was done for "strategic reasons.” Likewise, Houston’s testimony that the sexual relations with the victim were consensual was also done by Houston for "strategic reasons.”


author: PER CURIAM.

text:
    Michael S. GRASON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1245.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.
    Michael S. Grason, Polk City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Michael S. Grason appeals the trial court’s order summarily denying his rule 3.800(a) motion to correct sentence. The record on appeal contains the trial court’s order denying relief, but not Grason’s rule 3.800(a) motion. See Fla. R.App. P. 9.141(b)(2)(A). The circuit court clerk’s office indicates that it does not have Gra-son’s rule 3.800(a) motion on file. However, the circuit court obviously considered a rule 3.800(a) motion filed by Grason, as indicated by its order. Since the record on appeal is not complete, through no fault of Grason, the trial court’s order denying relief must be reversed and this matter must be remanded with instructions for Grason to resubmit his 3.800(a) motion and for the circuit court to issue another order, which can then be appealed. This procedure will safeguard Grason’s appeal rights and allow this court to undertake a meaningful review of the rule 3.800(a) proceeding.

REVERSED AND REMANDED.

SAWAYA, PALMER, and TORPY, JJ., concur.

      . See Fla. R.Crim. P. 3.800.


text:
    Bruce ARMBRUSTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-370.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.
    Bruce Armbruster, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Bruce Armbruster (defendant) appeals the trial court’s order denying his rule 3.850 motion for postconviction relief. Commendably, the State concedes that the trial court erred by denying the defendant’s motion to amend (which was filed before a ruling on the motion was entered) and his motion for voluntary dismissal of his original rule 3.850 motion. Accordingly, we reverse the trial court’s order and remand with instructions to dismiss the defendant’s initial rule 3.850 motion, without prejudice to defendant filing a timely amended motion.

REVERSED and REMANDED.

THOMPSON, SAWAYA and PALMER, JJ., concur.

      . See Fla. R.Crim. P. 3.850.


author: PALMER, J.

text:
    Napoleon BRITT, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4180.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.

      Napoleon Britt, Mayo, pro se.
    No Appearance for Appellee.
   PALMER, J.

Napoleon Britt appeals the order entered by the trial court denying his latest rule 3.800(a) motion to correct illegal sentence. We affirm.

In 1975, a Brevard County jury convicted Britt of committing the crimes of robbery and assault with intent to commit second-degree murder. He was sentenced to a term of life imprisonment. At that time, the Fourth District possessed appellate jurisdiction over Brevard County, and Britt’s direct appeal to that court resulted in an affirmance. See Britt v. State, 350 So.2d 25 (Fla. 4th DCA 1977).

Since that time, Britt has filed several rule 3.800(a) motions. As in the past, he again asserts the meritless argument that he received an improper general sentence.

Britt’s pro se filings have become frivolous, an abuse of process, and a waste of the taxpayers’ money. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995). See also Glasco v. State, 914 So.2d 512, 512 (Fla. 5th DCA 2005) (recognizing that frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience); Freeman v. State, 885 So.2d 477, 478 (Fla. 5th DCA 2004) (noting the need for a limit on successiveness necessary to give due weight to finality and presumption of legality of final judgment and to restore public’s confidence in our criminal system of justice).

Accordingly, in order to conserve judicial resources, we prohibit Britt from filing with this court any further pro se pleadings concerning Brevard County, Circuit Court No. 05-1974-CF-1096-AXXX. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Napoleon a/k/a Napolean Britt. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Wilson v. State, 916 So.2d 975 (Fla. 5th DCA 2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED. Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

SAWAYA and LAWSON, JJ., concur.

      . See Fla. R.Crim. P. 3.800.


text:
    C.M.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4876.
    District Court of Appeal of Florida, First District.
    June 9, 2006.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, John Andrew Atkinson, Assistant Attorney General, and Edward C. Hill, Jr. Special Counsel, Criminal Appeals, Tallahassee, for Ap-pellee.
   PER CURIAM.

“In determining to disregard the restrictiveness level recommended by the DJJ [Department of Juvenile Justice], the trial court is not required to rely on factors or evidence other than those considered by the DJJ, and may reweigh the same evidence considered by the DJJ and come to a different conclusion.” E.S.B. v. State, 822 So.2d 579, 581 (Fla. 1st DCA 2002) (citation omitted). However, when a circuit judge reweighs the evidence and decides to depart from the DJJ’s recommendation, the circuit court “must set forth its reasons [for deviation] in the context of the needs of the child.” Id. at 581. Here, the two reasons identified by the learned circuit judge for the departure sentence were undoubtedly considered by the Department. In reweighing the evidence, the circuit judge failed to set forth adequate reasons for the deviation. See N.B. v. State, 911 So.2d 833, 835 (Fla. 1st DCA 2005) (“A trial judge may not deviate from DJJ’s recommendation at a juvenile delinquency disposition hearing simply because the judge disagrees with the recommendation.”). Accordingly, although we understand the circuit judge’s apparent frustration at the rather lenient disposition recommended by the Department, we have no alternative but to reverse that disposition and remand for further proceedings. Our Legislature has seen fit to deny circuit judges, sitting as juvenile judges in delinquency cases, complete discretion when imposing juvenile dispositions. See § 985.23(3)(c), Fla. Stat. (2005).

REVERSED AND REMANDED.

KAHN, C.J., WOLF and BENTON, JJ., concur.


text:
    David SIPLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5714.
    District Court of Appeal of Florida, First District.
    June 9, 2006.
    David Siplin, pro se, Petitioner.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and David Siplin is hereby afforded a belated appeal from the May 12, 2005, order denying a motion to correct illegal sentence in Duval County Circuit Court case number 16-2001-CF-3325-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal who is directed to treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


text:
    Eddie DEVEAUX, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0022.
    District Court of Appeal of Florida, First District.
    June 9, 2006.
    Eddie Deveaux, pro se, Petitioner.
    Charlie Crist, Attorney General, and Christine Anne Guard, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Eddie De-veaux is hereby afforded a belated appeal from the judgment and sentence in Calhoun County Circuit Court case number 02-305-CF-MA. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal who is directed to treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


text:
    Tony HOBBS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3972.
    District Court of Appeal of Florida, First District.
    June 9, 2006.
    Tony Hobbs, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order dismissing as untimely his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because appellant filed his 3.850 motion within two years of the Florida Supreme Court’s disposition of his petition for review of this court’s decision on direct appeal, his motion was timely. See, e.g., Cargle v. State, 800 So.2d 698, 699 (Fla. 1st DCA 2001); Brown v. State, 617 So.2d 1105, 1106 (Fla. 1st DCA 1993). Accordingly, we REVERSE and REMAND this cause to the trial court for further proceedings.

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


text:
    Antonio JOHNSON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-0866.
    District Court of Appeal of Florida, First District.
    June 9, 2006.
    Antonio Johnson, pro se, Petitioner.
    Louis A. Vargas, General Counsel, and Sherry Anita Toothman, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of mandamus seeks to compel the Circuit Court for Leon County to rule on a petition pending there. The circuit court has now disposed of the petition by final order and we therefore deny the instant petition as moot.

Petitioner asks this court to retain jurisdiction over the matter because he did not obtain a copy of the circuit court’s order in time to appeal it. His remedy in that circumstance is a motion directed to the circuit court under Florida Rule of Civil Procedure 1.540(b). See Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983). Petitioner also argues that the circuit court erred in applying section 57.085, Florida Statutes, to his request for indigency status but that ruling may be reviewed, if at all, in the appeal from the final order. Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

PETITION DENIED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


author: BENTON, J.

text:
    Vickie Lee Evans VRIESENGA, Appellant/Cross-Appellee, v. Michael Peter VRIESENGA, Appellee/Cross-Appellant.
    No. 1D04-3529.
    District Court of Appeal of Florida, First District.
    June 14, 2006.

      Eugene S. Garrett, Esquire, Boca Ra-ton, for Appellani/Cross-Appellee.
    Ned I. Price, Esquire and Beth M. Terry, Esquire of the Law Offices of Ned I. Price, P.A., Jacksonville, for Appel-lee/Cross-Appellant.
   BENTON, J.

Vickie Lee Evans Vriesenga appeals an order reducing her alimony from $1200 to $700 a month. The trial court concluded that her former husband, Michael Peter Vriesenga, acted reasonably in retiring from the Air Force, a puling we do not disturb. He did not seek full-time employment when he separated from the service, however, his relative youth notwithstanding, and the trial court did not evaluate his ability to continue paying alimony under the appropriate standard in the circumstances. Accordingly, we reverse and remand for further proceedings.

After almost eleven years and the birth of a son, the parties’ marriage ended on April 1, 1998. He has since remarried a lawyer. She has not remarried. At the time of the dissolution, he was a forty-year-old Air Force major, a navigator and an instructor; at forty-one, she was permanently disabled. The dissolution decree required him to pay $705 per month in child support and $1200 per month in alimony.

In November of 2002, after twenty years’ service, he voluntarily retired from the Air Force to work toward a doctorate at Vanderbilt University in pursuit of his “lifelong dream” of teaching at the college level. After resigning his commission to become a full-time student, he filed a petition to modify alimony and child support, arguing that he could no longer afford monthly alimony payments of $1200. She filed a counterpetition seeking increases both in alimony and in child support.

A party who petitions for a change in alimony has the burden to prove a substantial change in circumstances not contemplated at the time of the final judgment, a change that is not only “sufficient” and “material,” but is also involuntary and permanent in nature. See Yangco v. Yangco, 901 So.2d 217, 219 (Fla. 2d DCA 2005); Dykes v. Dykes, 712 So.2d 1189, 1193 (Fla. 1st DCA 1998). The statute provides:

When ... a party is required by court order to make any [alimony] payments, and the circumstances or the financial ability of either party changes ..., either party may apply to the circuit court ... in which the order was rendered, for an order decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the ... order.

§ 61.14(l)(a), Fla. Stat. (2004). Here Mr. Vriesenga has not retired in the sense of leaving the workforce permanently; he is leaving one occupation only to prepare for another. This distinguishes the present case from a typical or true retirement case. Compare Pimm v. Pimm, 601 So.2d 534 (Fla.1992). The present case involves a mid-life change in career or, more precisely, an educational hiatus undertaken in hopes of a-career change.

At the hearing, the former wife testified that she was forty-seven years old, had been permanently disabled since June of 1991, and lived with her father and son in her father’s house in Jacksonville, Florida. She testified she paid the household expenses and gave her father $150 per month, which she considered “rent,” and that, while her father received social security and veteran’s disability payments, his medical bills consumed almost all his income.

She had no real estate (or any other assets to speak of) of her own, she testified, but received $554 per month in social security disability payments, had been receiving $1200 per month in alimony, and was supposed to receive $683 per month as her portion of the former husband’s pension. She testified that her health insurance cost $432.56 per month, but that it did not cover pharmaceuticals, and that the out-of-pocket cost to her for her basic medications, eyeglasses, and dental expenses was $572.89 per month. She testified that she would not be able to survive without the alimony she had been receiving.

The former husband testified that he had been a high school teacher before his Air Force career, that he hoped to obtain his Ph.D. and teach at the college level, that he would seek a job at a college in Kentucky after obtaining a doctorate, and that his son might be eligible for free tuition at any college that hired him. He acknowledged income from his Air Force pension, and a stipend from a graduate assistantship he had obtained, which, however, restricted his prospects by preventing other employment while he was in school. He testified that he could not afford to pay alimony and child support from current income, and had needed to take $1100 out of his savings each month to cover the payments. But he conceded that he had some $50,000 in liquid assets, $41,000 in demand accounts, and a certificate of deposit in the amount of $8000.

One vocational expert, John Roberts, testified that, while the former husband’s skills as a navigator did not readily transfer to a civilian job, his experience as an educator and instructor qualified him for a range of teaching positions. Mr. Roberts testified that the median salary for an elementary school teacher in Kentucky was $40,073 per year, as compared to $40,659 per year for middle school teaeh-ers, $41,249 per year for secondary school teachers, and $40,071 per year for postsec-ondary school teachers. He testified that entry-level positions would pay less, but that, with the former husband’s experience, he did not think that the former husband would be in an entry-level position.

Another vocational expert, Gilbert Spru-anee, testified on behalf of the former wife that, with the former husband’s training and experience, he should be able to earn between $60,000 and $70,000 per year. Although this expert considered teaching positions, he also looked at other positions, including some Air Force and Department of Defense positions for civilians that paid between $51,000 and $67,000, notably a faculty position at Air University (with a salary range of $45,000 to $115,000) where the former husband had previously taught. On cross-examination, he conceded that the former husband’s qualifications did not necessarily match every qualification asked for on many of the job positions he considered.

Considering child support first, the trial judge found a substantial change in circumstances, occasioned by the former husband’s retirement, but concluded that voluntary “retirement” did not justify a reduction in child support. Even if his separation from the Air Force had been involuntary, the trial judge decided, it was not in the child’s best interest for the former husband to forgo full employment. The trial judge declined to modify child support, noting there was no guarantee that the former husband would find a higher paying position after obtaining the doctoral degree he sought, so that, in essence, the parties’ child would be subsidizing the former husband’s education with no assurance of any future benefit. In any event, the trial judge found, the former husband’s liquid assets gave him the ability to pay child support while pursuing his studies.

As to alimony, too, the trial court recognized the former husband had a burden to show a material, permanent change, not contemplated at the time of the final dissolution of marriage. See Yangco, 901 So.2d at 219; Dykes, 712 So.2d at 1193. As to alimony, however, the trial court did find “changed circumstances.” § 61.14(l)(a), Fla. Stat. (2004). The trial court also concluded that the former husband’s retirement was not contemplated in establishing the amount of alimony at the time of dissolution, and that the final judgment of dissolution did not otherwise preclude modification.

While finding that the former wife was contributing to the support of her father and that such expenses were not the former husband’s responsibility, the trial court found the former wife was clearly in need of alimony and that cutting off alimony would place her in a desperate financial situation. The trial court also concluded that the former husband’s decision to go back to school enhanced his ability to earn income in the future, which would enable the former wife to petition for an increase in alimony in the future. Although the trial court noted “incredible hostility” between the parties, it determined that the former husband did not retire from the Air Force with the intent to deprive the former wife of alimony or pension income, and that the former husband’s voluntary retirement from the military after twenty years of service was reasonable. The trial court denied the former wife’s request for an increase in alimony, but granted the former husband’s request for a reduction in alimony, reducing it to $600 per month beginning July 1, 2004.

Since the former wife does not argue otherwise, we assume for purposes of decision that the evidence establishes a “sufficient, material, permanent, and involuntary” change in circumstances to justify reconsideration of the amount of alimony. Compare Chambliss v. Chambliss, 921 So.2d 822, 824 (Fla. 2d DCA 2006). The existence of changed circumstances requires a new look at the parties’ financial situations. When determining afresh the amount of alimony a former spouse should pay, the trial court must consider all relevant economic factors, including “[t]he financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each,” and “[a]ll sources of income available to either party.” § 61.08(2)(d), (g), Fla. Stat. (2004).

The trial court erred in failing to consider all “financial resources of each party.” § 61.08(2)(d), Fla. Stat. (2004). Plainly some $50,000 in cash or cash equivalents comprise a financial resource available to the husband for meeting his alimony obligations. Although the former husband was free to leave the Air Force, moreover, he was not free, while still in his forties, to leave the work force at his former wife’s expense.

A trial court can impute income where a spouse has failed to use his or her best efforts to earn income. A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the payee spouse is a valid matter to be explored in determining the payor’s real ability to pay. When the obligor spouse voluntarily becomes unemployed or underemployed, the income that he or she is capable of earning may be imputed for purposes of determining an appropriate award of support.

Smith v. Smith, 737 So.2d 641, 644 (Fla. 1st DCA 1999) (citations omitted). See also Tarnawski v. Tarnawski, 851 So.2d 239, 242 (Fla. 4th DCA 2003) (holding that income may be imputed to a spouse obligated to pay alimony because “the court should consider, inter alia, the financial resources of the parties and all sources of income available to each party”). When adjudicating alimony, the trial court should have decided to what extent the former husband’s educational pursuits left him “underemployed.” Smith, 737 So.2d at 644.

We reverse and remand for reconsideration.

KAHN, C.J. and WOLF, J„ concur.

      . He argued that the final judgment of dissolution requiring payments based on his retirement pay and consequent Qualified Order of Military Retirement Pay, which gave a portion of his pension to the former wife, "forced” him to retire, rendering his retirement involuntary. The trial court found, however, to the contrary that the retirement was voluntary.

      . Because the former wife’s counterpetition was filed just before the final hearing, the trial judge considered it only as to issues already raised in the petition concerning the former husband's vocational possibilities. The trial court refused to consider the former wife’s contention that her medical expenses had increased, concluding that this issue was raised so late as to prejudice the former husband’s ability to respond. These issues can be addressed on remand because the former husband now has more than adequate notice of the former wife's counterpetition.

      . In her order modifying alimony, the trial judge stated that she did not attribute great weight to Mr. Spruance's testimony because, upon cross-examination, it became clear that the former husband was not eligible for many of the positions Mr. Spruance considered.

      . The judge explained that, although the parties at the dissolution proceeding discussed the fact that the former husband would retire at twenty years, there was no evidence that his contemplated retirement from the Air Force factored into the amount of alimony.

      . The trial judge ordered $600 per month in the mistitled Supplemental Final Judgment of Modifying Child Support entered on June 14, 2004. The amount was changed to $700— without notice to the former husband — when an amended supplemental judgment was entered on June 30, 2004, which also changed the amount of life insurance the former husband was required to maintain. We need not reach the issue of whether these changes were correctly accomplished, given today’s disposition.

      .The former wife does argue that the order under review is inconsistent in refusing to reduce child support, while reducing alimony, based on the same change in circumstances. In the context of child support, the Florida Supreme Court has held that, when a spouse decides to return to school instead of working, the question is not whether the decision was voluntary, but whether a temporary reduction in child support was in the best interest of the child. See Overbey v. Overbey, 698 So.2d 811, 814-15 (Fla.1997). The Fifth District has extended this reasoning to alimony cases. See Freilich v. Freilich, 897 So.2d 537, 542 (Fla. 5th DCA 2005) (”[W]e conclude that the best interest standard should also apply to determine whether imputation of income to a spouse seeking educational enhancement is an appropriate basis for an award of alimony.”).

      . Here the evidence did not suggest that teaching college in Kentucky was significantly more remunerative than high school teaching for which the former husband was qualified without additional education.

      . Alimony alone will be at issue on remand. During the pendency of this appeal, the Florida Supreme Court rendered a decision in Acker v. Acker, 904 So.2d 384 (Fla.2005), which should be helpful in the deliberations on remand.
      [T]he portion of a pension which has been equitably distributed to a spouse cannot be considered in determining the other spouse's ability to pay alimony because the other spouse obviously no longer has that portion of the marital asset. Similarly, the needs of a spouse should be based on that spouse’s financial situation after, not before, equitable distribution.

        Id. at 389. Acker provides guidance in determining the former husband’s ability to pay alimony and in determining the former wife’s need for support. The trial court should also consider the former wife's current medical expenses. See supra note 2.


author: HAWKES, J.

text:
    BURKLOW & ASSOCIATES, INC. et al., Appellants, v. Gregory BROWN, Property Appraiser of Santa Rosa County, Florida, et al., Appellees.
    No. 1D05-3577.
    District Court of Appeal of Florida, First District.
    June 14, 2006.

      Benjamin K. Phipps of the Phipps Firm, Tallahassee, and Jack Locklin, Jr. of Lock-lin & Jones, P.A., Milton, for Appellants.
    Roy V. Andrews of Lindsay, Andrews, & Leonard, P.A., Milton, for Appellees.
   HAWKES, J.

Appellants filed suit for declaratory relief challenging the validity of the appellee property appraiser’s ad valorem tax assessments levied against 40 wet slips located at the Santa Rosa County Yacht & Boat Club (“Yacht Club”). The trial court declared the assessments valid. We reverse.

Factual and Procedural Background

The taxed wet slips are located on sovereign submerged land (“SSL”) leased from the State of Florida to the Yacht Club for a term of five years.' The SSL léase provides that the wet slips can never be owned and are subject to a 6% excise tax. Although there is some risk the State will not renew the lease, such leases are generally renewed so long as the lessee complies with the lease and otherwise meets the State’s regulatory requirements.

The docks and piers appurtenant to the wet slips and adjoining uplands are owned by the Yacht Club. The uplands consist of an office building, a parking lot, and a large structure containing 129 dry slips. Each dry slip is separately owned as a condominium unit. The declaration of condominiums grants the Dry Slip Owners exclusive use of the Yacht Club property.

The Yacht Club sublets each of the wet slips to Appellants (“Wet Slip Renters”) on a paid-up basis for the remainder of the 5-year SSL lease “plus all extensions and renewals thereof.” The subleases afford the Wet Slip Renters the same rights and obligations as the Dry Slip Owners. The only difference is that the Wet Slip Renters’ rights and obligations are subject to the duration of the SSL leas'e, whereas the Dry Slip. Owners’ rights and obligations are tied to their fee simple ownership of the dry slip condominiums.

In making the ad valorem tax assessments against the Wet Slip Renters, the Property Appraiser relied upon the amounts paid to sublease the wet slips. The Wet Slip Renters argued to the trial court that the Property Appraiser erroneously assessed the wet slip units as real property subject to ad valorem taxes, instead of as personal property subject to only intangible state taxes.' In response, the Property Appraiser contended the assessment was correct, because the subleases granted the Wet Slip Renters tangible, real-property interests, which exceed the mere right to occupy the wet slips.

On summary judgment, the trial court determined the wet slips could only be taxed as intangible property to the extent the subleases involved the right to use a portion of the submerged lands. However, the issue of whether the Wet Slip Renters acquired an ownership interest in real property (i.e., the Marina uplands, docks, piers, and improvements) required an evi-dentiary hearing.

After an evidentiary hearing, the trial court issued a final judgment holding the wet slip assessments valid, because “the Wet Slip Sublease Agreements provide an ownership interest in the Yacht Club property to include the upland portion of the property, the improvements thereto as well as the docks and piers.” In support of its decision, the trial court concluded:

To allow the wet slips to be assessed and taxed as intangible property and the dry slips to be taxed as real property would be violative of § 718.120, Florida Statutes .... There is no reason to treat one class of owner differently from another when each owner (whether they be dry space or wet slip) enjoy the same benefits and responsibilities of ownership in the Yacht Club.

The Wet Slip Renters Do Not Have a Taxable Interest in Real Property

A trial court’s findings of fact and conclusions of law concerning the valuation of property for ad valorem taxes are reviewed to determine whether they are clearly erroneous. See Fla. E. Coast Ry. v. Dep’t of Revenue, 620 So.2d 1051, 1061 (Fla. 1st DCA 1993).

A leasehold estate in real property owned by the State of Florida may only be taxed as “intangible personal property.” See §§ 199.023(l)(d) & 196.199(2)(b), Fla. Stat. However, any “personal property, buildings, or other real property improvements” constructed on such state owned land, which .are owned by the lessee, are subject to ad valorem taxes. § 196.199(2)(b), Fla. Stat.; see also Parker v. Hertz Corp., 544 So.2d 249 (Fla. 2d DCA 1989). “Extrinsic criteria” may be examined to determine whether a lessee is “endowed with sufficient indicia of ownership” of such on-site constructions. See Parker, 544 So.2d at 251 (holding lessees “owned” fixed improvements erected on sovereign land that were ready and contemplated for occupancy by the lessees for the duration of the 25 year lease term).

In the case at bar, the 40 Wet Slip Renters shared their right to use the docks, piers, uplands, and improvements with the 129 Condo Owners and their guests, the Yacht Club employees, and the Developer and its assigns. In the event the SSL lease is terminated at the end of its 5-year term, the Wet Slip Renters’ shared interests would also be terminated. Under these circumstances, the trial court’s finding that the Wet Slip Renters “owned” the docks, piers, and uplands is clearly erroneous.

Furthermore, the wet slips are not condominium units. The SSL lease provides they can never be owned. Thus, section 718.120 is not applicable to the wet slips, and should not have been considered by the trial court.

Conclusion

The trial court’s ruling that ad valorem tax assessments can be levied on wet slips owned by the State of Florida is clearly erroneous. The Wet Slip Renters did not have an ownership interest in tangible, real property.

REVERSED and REMANDED.

ERVIN and PADOVANO, JJ., concur.

      . A "wet slip” is a dockside parking spot for a boat located on submerged land.

      . A "dry slip” is an indoor storage unit for a boat.


text:
    GREENSTONE, INC. OF DELAWARE, a Delaware corporation as successor by merger with Marcase, Inc.; Marcase, Inc., a Nevada corporation; Darrell Kelsoe, an individual; Vince Whibbs, Jr., an individual; Joe Shelton, an individual; and Bob Woolsey, an individual, Petitioners, v. D & L, L.L.C., an Alabama Limited Liability Company; Leroy S. Smith, an individual; and Whibbs & Whibbs, P.A., a Florida corporation, Respondents.
    No. 1D06-2310.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Steven W. Bowden of Steven W. Bow-den & Associates, P.A., Pensacola, for Petitioners.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Micale v. Polen, 487 So.2d 1126 (Fla. 4th DCA 1986) (citing Palmer v. Atkinson, 116 Fla. 366, 156 So. 726 (1934)) (denying a petition for writ of mandamus because the matter could readily be heard before another judge without undue prejudice to the parties even where the reasons set forth in a motion to disqualify a trial judge are inadequate).

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


text:
    Tim TUCKER, Appellant, v. FEDEX and Sedgwick Claims Management, Appellees.
    No. 1D05-3100.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    David A. McCranie of McCranie & Lower, P.A., Jacksonville, and John W. Wesley of Woodburn S. Wesley & Assoc., Fort Walton Beach, for Appellant.
    John A. Unzicker, Jr. of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Appellees.
   HAWKES, J.

Claimant challenges the Judge of Compensation Claims’ (JCC) order, which denied Claimant’s request that the employer and carrier (E/C) pay the fees and costs resulting from a medical expert’s second deposition. The second deposition was conducted solely for the purpose of determining the value of treatments the physician previously recommended. The value of the recommended treatment was necessary to determine the attorney’s fee to which Claimant was entitled. See § 440.34(2), Fla. Stat. (2005). We affirm.

It is well settled that the E/C is not obligated to pay expert witness fees charged by an attorney testifying as to the reasonableness of a requested attorney’s fee in a workers’ compensation case. See Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351 (Fla.1987). We see no reason this rule should not be equally applied to medical expert witnesses.

In any workers’ compensation case where the necessity of medical benefits is contested, expert medical testimony will be required. It would be a simple matter to elicit the expert’s opinion as to the value of the medical treatment recommended when the expert is giving his medical opinion as to the necessity of treatment. We can conceive of no circumstance in which such testimony could not be elicited at this time, and doing so is consistent with “the philosophy of the worker’s compensation law to provide an expeditious result at a minimum cost.” Id. at 353.

If, for some reason, those questions cannot be asked in the primary proceeding, the JCC can often ascertain the value of medical benefits obtained without a hearing, based upon a medical expert’s affidavit. Although it is within the JCC’s discretion to hold collateral proceedings to determine the amount of attorney’s fees, medical expert witness fees incurred during such proceedings are not taxable against the E/C.

The JCC’s order is AFFIRMED.

VAN NORTWICK and THOMAS, JJ., concur.


text:
    Juan F. VEGA, Appellant, v. John E. KILHEFNER, et al, Appellees.
    No. 1D05-3623.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Juan F. Vega, pro se, Appellant.
    Charlie Crist, Attorney General, Warren James Pearson and Carrie R. McNair, Assistant Attorneys General, Tallahassee, for Appellees.
   PER CURIAM.

Juan F. Vega appeals an order dismissing his petition for writ of mandamus based on the trial court’s finding that he had failed to pay the filing fee or submit indigency information required by a previously issued case management order. As appellee concedes, the record reflects that Vega attempted to comply with the requirements of the case management order prior to dismissal, although that fact may have escaped the trial court’s attention as a consequence of Vega’s unorthodox filings. Accordingly, we reverse the order dismissing Vega’s petition and remand for further proceedings. If the trial court determines that Vega’s filings do not fully comply with the requirements of its case management order, it should afford him the opportunity to correct any deficiencies. See Woullard v. Bishop, 755 So.2d 816 (Fla. 1st DCA 2000).

In addition, Vega’s initial brief presents a point challenging the trial court’s order finding him to be indigent for purposes of this appeal, but directing that a lien be placed on his inmate trust account to recoup filing fees and costs. We elect to treat this portion of the brief as a motion for review pursuant to Florida Rule of Appellate Procedure 9.430, grant that motion, and quash the lien provision on the authority of Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006).

REVERSED and REMANDED; MOTION FOR REVIEW GRANTED.

ALLEN, VAN NORTWICK, and POLSTON, JJ., Concur.


text:
    Musa SHABAZZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-5119.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Nancy Daniels, Public Defender, and Steven A. Been, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charlie Crist, Attorney General, Thomas H. Duffy and Terry P. Roberts, Assistant Attorneys General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

Appellant appeals his conviction and sentence for two counts of attempted first-degree murder and one count of felony fleeing or attempting to elude a law enforcement officer. We affirm Appellant’s conviction and sentence but remand for correction of a scrivener’s error contained in the written judgment. See Dennis v. State, 917 So.2d 288 (Fla. 1st DCA 2005). The judgment erroneously lists Appellant’s conviction as a life felony; however, Appellant was tried and convicted of attempted first-degree murder, which is a first-degree felony. Therefore, the judgment must be corrected to reflect Appellant’s conviction for a first-degree felony, not a life felony. §§ 777.04(4)(b), 782.04(l)(a), Fla. Stat. (2003).

AFFIRMED and REMANDED with instructions.

BENTON, POLSTON and THOMAS, JJ., Concur.


text:
    James Edward BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-327.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal, James Edward Bailey-raises two points: (1) the trial court erred in sentencing him as a prison releasee reoffender where the jury did ■ not find beyond a reasonable doubt that he had been released from prison within three years; and (2) the trial court erred by allowing him to proceed to trial, without first entering a written order finding him competent to proceed, where he had previously been found incompetent to proceed. We have previously addressed and rejected the argument Bailey raises in his first point. See Peterson v. State, 911 So.2d 184 (Fla. 1st DCA 2005). As to the second point, pursuant to Bailey’s request, we remand the cause for entry of a nunc pro tunc order finding Bailey competent to stand trial. See Fla. R.Crim. P. 3.212(c)(7); Martinez v. State, 851 So.2d 832, 833-34 (Fla. 1st DCA 2003); White v. State, 548 So.2d 765, 768 (Fla. 1st DCA 1989).

AFFIRMED; but REMANDED for further proceedings.

KAHN, C. J„ ERVIN and VAN NORTWICK, JJ., Concur.


text:
    C.D.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3931.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

REVERSED. See Ray v. State, 403 So.2d 956 (Fla.1981) (holding it is fundamental error to convict a defendant of crime not charged, and which is not a lesser included offense of the charged crime).

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


text:
    Raymond McFADDEN, Appellant, v. ALLIANCE MEDICAL PRACTICES, INC., William Emerson and Joseph Sassano, Appellees.
    No. 1D05-4291.
    District Court of Appeal of Florida, First District.
    June 14, 2006.

      Ada A. Hammond of Johnston & Hammond, Jacksonville, for Appellant.
    Marcia Davis and Donna M. Keim of Bice Cole Law Firm, P.L., Alachua, for Appellees.
   PER CURIAM.

Appellant contends that the trial court (1) erred in summarily granting ap-pellees’ motion to enforce a settlement agreement and ordering appellant to sign a general release and (2) abused its discretion in dismissing appellant’s complaint with prejudice upon finding that appellant failed to sign a general release within ten days of the order granting the motion to enforce settlement. We agree. Because there was a material dispute regarding whether appellant’s attorney had authority to enter into the settlement agreement, the trial court should have conducted an evidentiary hearing after affording appellant the opportunity to seek conflict-free counsel to represent him. See Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483, 1486 (11th Cir.1994). Accord Healey v. Healey, 658 So.2d 1096, 1098 (Fla. 1st DCA 1995). Furthermore, the trial court abused its discretion in dismissing appellant’s complaint with prejudice based on appellant’s failure to execute settlement documents without expressly finding that appellant’s non-compliance was willful or that less drastic remedies were not available as a means of enforcing the settlement agreement. See Ashley v. Gersten, 700 So.2d 462, 463 (Fla. 4th DCA 1997); Kelley v. Schmidt, 613 So.2d 918, 919-20 (Fla. 5th DCA 1993). Accordingly, we reverse the trial court’s rulings and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

WOLF, WEBSTER, and BROWNING, JJ., concur.