author: EVANDER, J.

text:
    J.A.S.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3276.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

At the conclusion of an adjudicatory hearing, appellant was found guilty of battery of a law enforcement officer. His motions for judgment of dismissal were denied during and after the trial. Appellant contends that the evidence was insufficient to support a finding that the officer/victim was engaged in the performance of a lawful duty at the time of the alleged battery. We agree.

We review the denial of appellant’s motions for judgment of dismissal de novo. In doing so, we view the evidence in the light most favorable to the State. A.P.R. v. State, 894 So.2d 282, 285 (Fla. 5th DCA 2005).

Orlando Police Officer Bryan Fischer was working in an off-duty status at Wet-n-Wild. His job functions were to assist security officers with unruly guests and to help “clear out the park” at closing time. On the day in question, appellant’s brother, a patron at Wet-n-Wild, was acting in an unruly fashion. However, he was not alleged to have been engaged in any criminal activity. Officer Fischer grabbed the brother’s arm and began to escort him from the park. Appellant grabbed hold of his brother and demanded that Fischer release him. Officer Fischer attempted to push appellant away — at which time appellant battered Fischer by grabbing the officer’s arm.

At the time of the incident, Officer Fischer was wearing his police uniform. However, he acknowledged that he was not “trespassing” appellant’s brother from the property. Furthermore, Officer Fischer never instructed appellant’s brother to leave the park prior to restraining him. Thus, this case does not involve a situation where an individual has refused to comply with a police officer’s lawful directive.

In this case, Officer Fischer was not engaged in the process of effecting an arrest at the time he was battered by appellant. In a non-arrest case, the State must prove the officer was “engaged in the lawful performance of his or her duties” to establish the offense of battery of a law enforcement officer. Tillman v. State, 934 So.2d 1263, 1266 (Fla.2006).

We find that Tillman requires us to vacate the finding that appellant was guilty of battery of a law enforcement officer. In Tillman, several police officers entered the screened pool enclosure of a residence because one or two of the guests at a party being held at the residence had allegedly verbally threatened one of the officers. Tillman was suspected of having made a verbal threat. Tillman was wearing a “very heavy jacket,” although it was not cold outside. An officer asked Tillman if he could pat him down. Tillman refused, but the officer patted him down anyway. No weapons were' found. Tillman then ignored the officer’s request to sit down and began to walk away. The officer grabbed Tillman, at which point Tillman spun around and put the officer in a headlock. After a struggle in which the officer was injured, Tillman was pepper-sprayed, arrested, and ultimately charged with aggravated battery on a law enforcement officer and resisting an officer with violence. After a jury trial, he was found guilty on both charges. Tillman appealed to this Court, contending that the trial court erred in denying his motion for judgment of acquittal because the State failed to present prima facia evidence that the officer was engaged in the lawful execution of his duties — a necessary element of both offenses. We affirmed the convictions, finding that pursuant to section 776.051(1), Florida Statutes (1997), an individual could not forcibly resist an officer even if the officer’s actions may have been technically illegal. Tillman v. State, 807 So.2d 106 (Fla. 5th DCA 2002). The Florida Supreme Court reversed, concluding that section 776.051(1) only applied to those situations in which an individual was resisting an arrest by a law enforcement officer.

Section 776.051(1) forecloses the defense of justifiable use of force by a defendant who resists an arrest by a law enforcement officer, regardless of the legality of the arrest. The plain meaning of the language used in this provision limits its application to arrest scenarios.

Tillman, 934 So.2d at 1269. The supreme court recognized that while there may be policy reasons to extend the prohibition in section 776.051(1) beyond police/citizen encounters involving an arrest, the Legislature had failed to do so. Id. at 1269-70.

After concluding that section 776.051(1) did not apply to non-arrest cases, the supreme court then examined the definition of “lawful performance of a legal duty.” The court rejected a test based on whether an officer was acting as a “reasonable officer.” Instead, the supreme court determined that courts must apply the legal standards governing the duty undertaken by the law enforcement officer at the time that an assault, battery, or forcible resistance occurs. Id. at 1271.

The supreme court quashed our decision and remanded for reconsideration of the denial of Tillman’s motion for judgment of acquittal in accordance with the holdings set forth in its opinion. Id. at 1274. The court observed that there was an unresolved issue as to whether the police officer was engaged in the lawful performance of his duties when he entered into the screened pool enclosure. The court further found that Tillman’s status as a guest, as opposed to an owner or resident, was irrelevant to the determination of whether the officer was engaged in the lawful performance of his duties at the time that the struggle with Tillman occurred.

Contrary to the Fifth District’s determination, Tillman’s status as a guest does not preclude application of the law governing warrantless entry into a home in determining whether the officer was lawfully executing a legal duty. The ‘lawful execution’ element does not carry with it the standing requirements that have developed in Fourth Amendment precedent. Even if Tillman’s status as a guest would deprive him of standing to seek suppression of evidence that might have been seized from the home, that status is irrelevant to the determination whether the State established that the officer was in the lawful execution of his duties when the struggle with Tillman occurred.

Id. at 1272 (footnote omitted).

The supreme court also found that there were unresolved issues as to whether the officer was engaged in the lawful performance of his duties when he patted down Tillman without Tillman’s consent, and when he grabbed Tillman’s shoulder as Tillman attempted to walk away. Significantly, the court concluded that an officer would not be engaged in the lawful performance of his duties if the officer physically restrained an individual despite the lack of a reasonable suspicion that the individual was involved in criminal activity or that the individual was armed.

The detention of Tillman constituted lawful execution of a legal duty only if the facts known to the officer created a reasonable suspicion either that Tillman was involved in criminal activity or that he was armed and dangerous.

Id. at 1273 (emphasis added).

In the present case, Officer Fischer physically restrained appellant’s brother in order to escort him from the park. Officer Fischer was not effecting an arrest of appellant’s brother. Nor does the State contend that Officer Fischer had reasonable suspicion to believe that appellant’s brother was engaged in criminal activity or was armed. Accordingly, based on the rationale expressed in Tillman, we conclude that Officer Fischer was not engaged in the lawful performance of his duties as a police officer at the time of the battery.

The fact that appellant was not the individual being restrained does not alter our analysis. The focus is on the police officer’s actions — that is, whether the officer was engaged in the lawful performance of his duties at the time of the battery. Id. at 1272; see also Rodriguez v. State, 964 So.2d 838 (Fla. 2d DCA 2007) (holding that the defendant could not be convicted of battery of law enforcement officer where battery occurred after officer improperly entered on defendant’s property in pursuit of defendant’s husband).

Appellant’s battery of Officer Fischer was, of course, a criminal act. However, pursuant to Tillman, appellant cannot be found to have committed the crime of battery of a law enforcement officer. In his concurring opinion in Tillman, Justice Bell observed that the purpose behind sections 784.07(2) and 843.01, was to protect public officials by imposing heightened penalties on civilians who physically retaliate against them as they carry out their public duties. Tillman, 934 So.2d at 1274. Justice Bell encouraged the Legislature to examine the language utilized in these sections in light of the Tillman decision. We fully agree with Justice Bell’s recommendation. We believe the public’s interest would be well-served if the heightened penalties for persons who batter a police officer (or other designated public officials) applied, even though the officer may, in good faith, have undertaken an act in the performance of his duties, which was subsequently determined by a court to have been improper.

We vacate the finding that appellant was guilty of the offense of battery of a law enforcement officer. The evidence was, however, sufficient to support a finding of guilt as to the lesser-included offense of battery. We remand for a new disposition hearing.

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.

      . § 784.07, Fla. Slat. (2005).

      . The fact that Officer Fischer was off-duty is not crucial to our analysis. A police officer can be engaged in the lawful performance of his duties when working an off-duty job. See State v. Hartzog, 575 So.2d 1328 (Fla. 1st DCA 1991); Hughes v. State, 400 So.2d 533 (Fla. 1st DCA 1981); State v. Robinson, 379 So.2d 712 (Fla. 5th DCA 1980).

      . Section 776.051(1), Florida Statutes (1997), provides:
      A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

      . Indeed, appellant did not challenge the sufficiency of the evidence as to simple battery.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    ABC LIQUORS, INC., Appellant, v. CENTIMARK CORPORATION, Appellee.
    No. 5D06-819.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.

      Philip F. Bonus, John F. Bennett, and Susanne D. McCabe, of Fishback, Dominick, Bennett, Stepter, Andaman, Aiders, Bonus, LLP, Orlando, for Appellant.
    Gregory M. Palmer and Jeffrey N. Ber-man, of Rumberger, Kirk Caldwell, P.A., Miami, for Appellee.
   ORFINGER, J.

ABC Liquors, Inc. appeals an adverse final summary judgment rendered on its breach of contract action against Centi-mark Corporation. ABC also appeals the trial court’s denial of its motion for leave to amend its complaint. As explained below, we reverse.

From 1987 through 1990, ABC contracted with Centimark to replace the roofs on numerous ABC liquor stores located in Florida. The parties entered into separate contracts for each roof. Each contract contained an arbitration provision and each roof was warranted for twenty years by Centimark. In 1996, after experiencing a significant number of leaks in the roofs, ABC filed a demand for arbitration. In 1998, the parties reached a settlement agreement in the arbitration proceeding. In pertinent part, the settlement agreement required Centimark to repair, at its cost, any warranty-related problems on thirty-seven ABC liquor store roofs identified in the settlement agreement. In exchange, ABC agreed not to use other roofers to repair its roofs. The settlement agreement also outlined a procedure by which the parties would address the leaks. Both parties agreed to jointly inspect the roofs and develop a “Joint Inspection Report” for each roof, which would identify the labor, materials and work to be performed on each roof, and specify whether such work was covered by the original warranty, each party’s proportionate share of responsibility, and the costs for the repairs. Centimark also agreed to conduct annual inspections of the roofs for the remainder of their warranty terms. At the completion of each repair, both parties were to observe testing to confirm that the roof was watertight. Important to our analysis, the settlement agreement further provided that if the parties were unable to agree on a remediation plan for a specific roof or roofs, those roofs would be “removed” from the settlement agreement.

Apparently, things did not go as the parties had hoped. ABC filed a complaint in the circuit court against Centimark for breach of contract, alleging that Centi-mark failed to perform its obligations under the settlement agreement. Specifically, ABC alleged that Centimai'k failed to repair warranty-related problems on the roofs, agree in good faith on the services to be performed, conduct annual inspections of the roofs, respond to ABC’s service calls, perform warranty work pursuant to the original agreements, complete roofing services, confirm that the roofs that were repaired were in a watertight condition, test the roofs, and be present to observe the testing and watertight condition. All of these obligations were agreed to in the parties’ settlement agreement. Centimark answered and raised various affirmative defenses. In its answer, Centimark admitted the existence of the settlement agreement and asserted no defenses challenging the enforceability or legality of the agreement.

Centimark subsequently moved for partial summary judgment, seeking to limit ABC’s damages to those provided for in the settlement agreement and foreclosing ABC from seeking damages for things such as lost profits. The trial court denied Centimark’s motion, concluding that the settlement agreement was illusory, and nothing more than an agreement to agree; therefore, its terms limiting damages were unenforceable. Centimark then filed a second motion for summary judgment on the basis that the settlement agreement was illusory and unenforceable as a matter of law. In response, ABC filed a motion for leave to amend its complaint. ABC’s proposed amended complaint was also a breach of contract claim, but it focused on Centimark’s failure to perform its duties under Centimark’s original warranties on the roofs, instead of its alleged breach of the settlement agreement. The proposed amended complaint concluded that “[a]s a result of [Centimark]’s breach of warranties and as a result of the defective per-foi’mance by [Centimark], [ABC] has suffered damages.”

Following a hearing on the motions, the trial court issued an order denying ABC’s motion for leave to amend its complaint and granting Centimark’s second motion for summary judgment. In denying ABC’s motion, the trial court concluded that ABC was “attempting to inject a new theory of recovery” in its proposed amended complaint. The trial court reasoned that since ABC’s proposed amended complaint was based on the same facts as its original complaint and no additional facts had been learned during discovery, “[i]t is plain that [ABC]’s motivation to amend the complaint is only in response to [the trial court]’s recent observation that the Settlement Agreement is unenforceable.” The trial court further found that because the parties’ litigation had been pending for almost four years and Centimark had defended “against allegations that it violated express terms and conditions of the Settlement Agreement, and not the original thirty-seven (37) contracts ... [, t]o allow amendment at this late juncture would be illogical and highly prejudicial.” The trial court concluded that “[w]hen considering the benefits and substantial justice of allowing the proposed amendment, ... [Centimark] will be unduly prejudiced in having to defend a new cause of action that is based on thirty-seven (37) separate contracts after four (4) years of extensive litigation premised upon a single agreement.” In granting Centimark’s motion for summary judgment, the trial court found that summary judgment was appropriate because the parties’ settlement agreement was “nothing more than an agreement to agree.” This appeal followed.

An order granting summary judgment is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A court may grant summary judgment only “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. (citing Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)). We also review the interpretation of a contract de novo. Fla. Power Corp. v. City of Casselberry, 793 So.2d 1174, 1178 (Fla. 5th DCA 2001).

Settlement agreements are governed by the rules of contract interpretation. Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985); Siegel v. Whitaker, 946 So.2d 1079, 1083 (Fla. 5th DCA 2006). The creation of a contract requires that there be mutual assent to a certain and definite proposition. “Where essential terms of an agreement remain open, and subject to future negotiation, there can be no enforceable contract.” Dows v. Nike, Inc., 846 So.2d 595, 602 (Fla. 4th DCA 2003). However, what constitutes an essential term of a contract will vary widely according to the nature and complexity of each transaction and must be evaluated on a case specific basis. King v. Bray, 867 So.2d 1224, 1228 (Fla. 5th DCA 2004). Nevertheless, an “agreement to agree” is unenforceable as a matter of law. Spanish Broad. Sys. of Fla., Inc. v. Alfonso, 689 So.2d 1092, 1094 (Fla. 3d DCA 1997).

Although the trial court did not explain why it determined that the parties’ settlement agreement was an illusory agreement to agree, we can surmise that it was concerned with the indefiniteness of paragraph 2. Under paragraph 2, the parties agreed to walk the roofs together and formulate a Joint Inspection Report identifying the labor, materials, and work necessary to repaii- the roof, and determine whether such repairs were warranty-related, and, if not, each party’s proportionate share of responsibility for the repairs. Thereafter, the work agreed to in the Joint Inspection Report was to be satisfactorily completed, and, only then, a release given for that specific roof. The settlement agreement further provided that if the parties were unable to formulate a Joint Inspection Report, that roof (or roofs) would be “removed” from the agreement and, as explained earlier, returned to arbitration.

Having reviewed the settlement agreement carefully, we conclude that it is sufficiently specific to be enforceable. Admittedly, the settlement agreement created a framework to resolve the parties’ differences, rather than nailing down each and every detail. However, as the supreme court said in Blaclchawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So.2d 404, 408 (Fla.1974), “even though all the details are not definitely fixed, an agreement may be binding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them. A subsequent difference as to the construction of the contract does not affect the validity of the contract or indicate the minds of the parties did not meet with respect thereto.” (Citation omitted). Here, Centimark not only admitted the existence of the contract in its answer, but embraced it by first seeking a summary judgment to enforce its terms. It was only when the trial judge suggested that the agreement was too vague to be enforceable that Centi-mark pursued summary judgment on that theory. The summary judgment must be reversed.

Although our disposition of this issue may render moot ABC’s appeal of the trial court’s denial of its motion to amend its complaint, on remand, there is no compelling reason not to allow such an amendment if ABC elects to pursue that route. As a general rule, Florida allows liberal pleading amendments unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or the amendment would be futile. Yun Enters., Ltd. v. Graziani, 840 So.2d 420, 422-23 (Fla. 5th DCA 2003). “Courts should be especially liberal when leave to amend ‘is sought at or before a hearing on a motion for summary judgment.’ ” Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So.2d 1132, 1135 (Fla. 5th DCA 1998) (quoting Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-op. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991)). In this case, no new theories of recovery were asserted in the proposed amended complaint. This case has always been about ABC’s contention that Centi-mark failed to install and repair the roofs in a workmanlike manner. Whether that is viewed as a breach of warranty claim oí-as a breach of the settlement agreement, the underlying facts would be essentially the same. We also disagree with Centi-mark’s contention that, as a matter of law, any amendment would be futile based on the statute of limitations. We reach that conclusion because we cannot precisely tell when ABC’s causes of actions accrued nor does Centimark take into account the provision of section 95.051(1)(g), Florida Statutes (1996), which tolls any statute of limitation during the pendency of any arbitral proceeding pertaining to a dispute that is the subject of the court action.

For these reasons, we reverse the orders of the trial court and remand this matter for further proceedings consistent herewith.

REVERSED AND REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . While the settlement agreement is not specific as to what occurs if a roof is "removed’' from the settlement agreement, a logical construction of the agreement is that the dispute as to such roof(s) would return to arbitration. We reach that conclusion because the settlement agreement provides that, as the work set forth in the Joint Inspection Report as to each roof was completed, ABC was to furnish Cen-timark a release as to that completed roof. The settlement agreement further provided that the arbitration proceeding would be “terminated'' only after ABC had issued releases for each roof. Hence, we conclude the arbitration proceedings were stayed, pending the parties' performance of their mutual obligations under the settlement agreement, rather than dismissed. Because each roof was covered by its own contract and arbitration provision, we see no reason why "removing” a roof from the settlement agreement would not, under these circumstances, return that roof(s) to the still pending arbitration proceeding.

      . Both parties concede that the trial court determined that the settlement agreement was illusory because it was nothing more than an agreement to agree. However, the record on appeal does not include a transcript of that hearing and the trial court’s order denying Centimark's motion for partial summary judgment does not include such a finding.


author: GRIFFIN, J.

text:
    Lucky BURRUSS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4521.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Lucky Burruss, appeals the order finding him in violation of probation and imposing a sentence of thirty months’ incarceration. We find no merit in appellant’s claims on appeal that the trial court erred in failing to grant a continuance of the hearing or the twin contentions that the trial court lacked jurisdiction or an adequate legal basis to revoke his probation. The State concedes, however, that the record does not contain the required written order revoking probation and identifying the condition of probation that was violated. Accordingly, we remand for entry of a written order consistent with the trial court’s oral pronouncement. Patt v. State, 876 So.2d 1278 (Fla. 5th DCA 2004). Resentencing will not be required.

REMANDED.

THOMPSON and PLEUS, JJ., concur.


author: MONACO, J.

text:
    Michael Shane LOVELESS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3958.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.

      J. Peyton Quarles of Zimmet & Quarles, P.L., Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Michael Shane Loveless, seeks review of the order of the trial court striking his pro se motion to withdraw his plea of no contest to charges of carjacking and attempted first-degree murder. Because Mr. Loveless was represented by counsel at the time that he filed his motion, and because his filing did not fall within any of the limited exceptions to the general proposition that a pro se filing by a represented defendant is a nullity, we affirm.

The transcript of the plea hearing reflects that Mr. Loveless decided to enter his no contest plea to the charges after a jury had been selected to try his case.' He i was, of course, represented by counsel at this hearing. No sentence had been negotiated. Rather, Mr. Loveless decided to make an open plea to the court. During an extensive plea hearing, he was fully advised by the trial court that he could be sentenced to thirty years in state prison for each count, or a total of sixty years. He acknowledged that he understood that possible consequence, but elected to go forward. Mr. Loveless also acknowledged that he was satisfied with the services of his attorney. Finally, he indicated in a written plea agreement that he was aware of the maximum sentence that he was facing. After his plea was accepted by the court he was sentenced to fifteen years in state prison for each offense, the terms to be served consecutively.

Thereafter, Mr. Loveless wrote a letter to the clerk of the trial court indicating that he wanted to withdraw his plea, apparently because he was quite dissatisfied with the sentence he had received for a number of reasons, and essentially indicated that he was taken aback because his attorney had failed to advise him that he could receive two consecutive sentences for his crimes. At no time in this letter, however, did he relate that he wanted to discharge his counsel. In fact, his attorney filed a notice of appeal on his behalf after the letter was received by the clerk. The trial court properly treated the letter as a motion to withdraw the plea. After noting that Mr. Loveless was still represented by counsel, the trial court struck the motion. Mr. Loveless now appeals.

With limited exceptions, a criminal defendant does not have a right to “hybrid” representation. See Logan v. State, 846 So.2d 472 (Fla.2003); Vasquez v. State, 956 So.2d 493 (Fla. 5th DCA 2007), review denied, SC07-1237, 968 So.2d 558 (Fla. Oct. 9, 2007). Generally, a pro se pleading should be treated as a nullity if the defendant has counsel. Id. While there are a number of limited exceptions to this proposition, Mr. Loveless is unable to take advantage of any of them, in particular because he never made an unequivocal request to discharge counsel. Accordingly, we affirm.

AFFIRMED.

ORFINGER and TORPY, JJ., concur.

      . "Pro se pleadings filed by a criminal defendant who is represented by counsel are generally treated as a nullity unless they include an unequivocal request to discharge counsel,
        Mourra v. State, 884 So.2d 316, 321 (Fla. 2d DCA 2004), assert that counsel coerced the defendant into taking certain action, Peterson v. State, 881 So.2d 1129 (Fla. 4th DCA 2004), or reflect an adversarial relationship between the defendant and his counsel, Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005).” Vasquez, 956 So.2d at 494, quoting Whiting v. State, 929 So.2d 673, 674-75 (Fla. 5th DCA 2006).


author: PER CURIAM.

text:
    S.B., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4360.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We reverse the trial court’s order finding S.B. in indirect contempt of court. The record is devoid of evidence that S.B. had possessed or used drugs subsequent to the modification of her probation.

REVERSED.

GRIFFIN, THOMPSON and EVANDER, JJ., concur.


author: LAWSON, J.

text:
    Lawrence J. VICKERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1132.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.

      Lawrence Vickers, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Lawrence J. Vickers appeals from the summary denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), raising four issues. This is Vickers’ fifth appeal from the denial of 3.800 motions. All have alleged the same or similar claims attacking Vickers’ designation as a habitual felony offender, (“HFO”). The first three issues raised in this appeal again challenge Vickers’ HFO designation. We once again affirm the trial court’s denial of these claims, and caution Vickers that any further attempt to raise this issue again could result in sanctions, including a loss of gain time. See, e.g., Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005); see also § 944.279(1), Fla. Stat. (2006).

In his fourth claim, Vickers appears to allege that the sentence he received on resentencing in accordance with our mandate in Vickers v. State, 935 So.2d 1286 (Fla. 5th DCA 2006) (“Vickers IV”), on count II in ease number 2002-CF-482, failed to include the HFO designation. He claims that the sentence is illegal because it exceeds the five-year maximum penalty for a third-degree felony without the HFO enhancement. Because the trial court did not attach any documents refuting this claim, we cannot tell whether the resen-tencing documents reflect the HFO designation with respect to this count. Clearly, they should. Our directions in Vickers IV were to resentence Vickers on that count to a sentence not to exceed ten years. Implied in the mandate is a direction that the resentencing documents would again reflect the HFO designation. If by oversight the resentencing documents failed to reflect the HFO designation, they should be corrected. Therefore, we reverse as to Vickers’ fourth issue and remand with directions that the trial court either attach documents demonstrating that the HFO designation is properly reflected in the resentencing documents, or correct those documents to reflect that Vickers was sentenced on count II in case number 2002-CF-482 as an HFO.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

PALMER, C.J., and THOMPSON, J., concur.


text:
    Thomas C. O’BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0291.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2007.
    Thomas C. O’Bryant, pro se, Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Quarterman v. State, 876 So.2d 7 (Fla. 1st DCA 2004).

BROWNING, C.J., BARFIELD and BENTON, JJ., CONCUR.


author: BARFIELD, J.

text:
    UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, Petitioner, v. Michael K. BALDWIN and Stephanie C. Baldwin, his wife, Respondents.
    No. 1D07-2322.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    Susan L. Kelsey, Tallahassee, for Petitioner.
    Lincoln J. Connolly, of Rossman Baum-berger, Reboso & Spier, P.A., Miami, for Respondents.
   BARFIELD, J.

The petition for writ of certiorari, which raises various issues involving the validity and application of the Patients’ Right to Know Amendment to the Constitution of the State of Florida, Article X, Section 25 (Amendment 7), is denied on the merits. Petitioner has not demonstrated that the trial court departed from the essential requirements of law in declining to stay all discovery involving “adverse medical incidents” pending resolution of pending cases in the Florida Supreme Court involving Amendment 7, nor in his other rulings. The trial court properly followed this court’s opinion in Notami Hospital of Florida, Inc. v. Bowen, 927 So.2d 139 (Fla. 1st DCA 2006), with respect to the issues decided therein. The other issues raised in this petition are without merit.

DAVIS and LEWIS, JJ., concur.


text:
    Joseph WELLS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-5424.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2007.
    Joseph Wells, pro se, Petitioner.

      No appearance for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, PADOVANO, and POLSTON, JJ., concur.


author: CASANUEVA, Judge.

text:
    Hannelore KUBEL, Appellant, v. SAN MARCO FLOOR & WALL, INC., Appellee.
    No. 2D06-5514.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2007.
    William D. Keith and John Thomas Car-dillo of Cardillo, Keith & Bonaquist, P.A., Naples, for Appellant.
    Hinda Klein and Doreen E. Lasch of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schaefer, P.A., Hollywood, for Appellee.
   CASANUEVA, Judge.

Hannelore Kubel sued San Marco Floor & Wall for damages she suffered in a fall allegedly caused by San Marco’s negligence. The circuit court dismissed her complaint, finding that she had committed fraud on the court. We reverse the dismissal and remand for further proceedings.

The circuit court’s basis for dismissing Mrs. Kubel’s action was that her husband had asked the surgeon who treated his wife after the fall to revise a written report the physician had provided to Mrs. Kubel’s lawyer. The report, written more than a year after the accident, discussed Mrs. Kubel’s previously-existing medical condition that caused painful tumors in her legs. But it also mentioned that the condition resulted in balance problems and caused her to fall frequently. Mr. Kubel disputed the accuracy of these statements. In his deposition, the doctor stated that Mr. Ku-bel gave him this information when his wife was admitted to the hospital after the fall. In the Kubels’ depositions, Mr. Kubel denied relating this information and Mrs. Kubel claimed she had no issue with her balance or trouble with falling. The surgeon modified his report. His new report eliminated the discussion of the contested facts, but retained the information about Mrs. Kubel’s previous medical condition.

While a circuit court has the inherent authority to dismiss a complaint for fraud, in Jacob v. Henderson, 840 So.2d 1167, 1169 (Fla. 2d DCA 2003), this court adopted a rigorous standard for determining what constitutes fraud:

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118.

See also Howard v. Risch, 959 So.2d 308, 310-11 (Fla. 2d DCA 2007); Myrick v. Direct Gen. Ins. Co., 932 So.2d 392, 392-93 (Fla. 2d DCA 2006). Here, San Marco failed to produce clear and convincing evidence of an “unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” See Jacob, 840 So.2d at 1169. Certainly a factual dispute exists about whether Mrs. Kubel’s preexisting condition may have contributed to the fall at the center of this lawsuit. But such matters can be “well managed through the use of impeachment at trial or other traditional discovery sanctions, not through dismissal of a possibly meritorious claim.” Howard, 959 So.2d at 311.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ., Concur.


text:
    Christina Audra GRANT, Appellant, v. LANTANA POLICE DEPARTMENT, a municipal police agency, by Richard Lincoln in his official capacity as the Chief Administrative Official; and Steven Stanley Oliver, Appellees.
    No. 4D06-3505.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    Alexander R. Brumfield, III, of Alexander R. Brumfield, III, P.A., West Palm Beach, for appellant.

      David Pleasanton of Law Offices of David Pleasanton, P.A., West Palm Beach, for Appellee-Lantana Police Department.
   PER CURIAM.

This is an appeal from a summary final judgment in a forfeiture action concerning a 2004 Dodge Ram Pickup. In the light most favorable to appellant, based on her testimony at the probable cause healing and her brother’s affidavit, issues of fact remained as to whether she was an “innocent owner” at the time the truck was seized. See § 932.703(6)(A), Fla. Stat. (2006). We therefore reverse the summary final judgment.

Reversed and remanded.

KLEIN, GROSS, JJ., and EMAS, KEVIN M., Associate Judge, concur.


author: WARNER, J.

text:
    BNP PARIBAS, a foreign corporation and Paribas Principal, Inc., a foreign corporation, Petitioners, v. James A. WYNNE, III, individually, and as trustee of the James A. Wynne, III Revocable Trust No. 2 dated March 19, 1998, Respondent.
    No. 4D07-1166.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.

      Elliot B. Kula, Elliot H. Scherker and Daniel M. Samson of Greenberg Traurig, P.A., Miami, Mark F. Bideau of Greenberg Traurig, P.A., West Palm Beach, Caran Rothchild of Greenberg Traurig, P.A., and Richard E. Berman of Berman, Kean & Riguera, P.A., Fort Lauderdale, for petitioners.
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, Carlos A. Rodriguez and William R. Leonard, Fort Laud-erdale, for respondent.
   WARNER, J.

BNP Paribas and Paribas Principal, Inc. (collectively “Paribas”) petition this court for a writ of certiorari seeking review of an order compelling Paribas’s vice president, Fletcher Duke, to answer questions which invade the attorney-client privilege in a suit involving an application for a prejudgment writ of garnishment. The trial court had previously found that the application involved a fraud upon the court. As a result, the trial court concluded, based on the fraud exception, that the attorney-client privilege did not apply to questions about the writ. See § 90.502(4)(a), Fla. Stat. (2007). It ordered Duke to respond. We grant the petition, because petitioners are entitled to an evidentiary hearing on the issue.

Paribas sued respondent James Wynne individually and as trustee of the James Wynne, III Revocable Trust, alleging breach of contract and fraudulent inducement regarding a corporate merger of three petroleum companies. Most of the claims arise from a recapitalization agreement between Wynne’s company Petropac, Inc. and two other petroleum companies. Petitioners also alleged that Wynne breached Ms employment agreement. Petitioners sought $25 million in damages.

In connection with this litigation, Pari-bas filed an ex parte motion for writ of garnishment seeking to garnish Wynne’s securities accounts. Duke signed an affidavit in support of the writ, and the trial court granted it, freezing Wynne’s accounts. Wynne filed a motion to dissolve the writ, asserting that Duke did not have personal knowledge of the facts. At a hearing, after assertions by Wynne’s counsel, the trial judge expressed the opinion that Paribas received some confidential information regarding how much money Wynne had in these accounts because Par-ibas specifically asked for $11 million in the petition for wilt of garnishment, not the amount they were actually seeking in damages. As a result, the court dissolved the writ.

From that point on, Wynne has sought to obtain information from Duke about the affidavit. In addition to discovery in the writ of garnishment suit, Wynne filed suit against Paribas, Duke, and Paribas’s attorney for damages for wrongfully obtaining information later used in securing the writ of garnishment.

For the next three years, the parties sparred over discovery in the garnishment suit, because Wynne sought to question Duke with respect to information claimed to be protected by the attorney-client privilege. Paribas also claimed that Wynne was using discovery in the first suit to pursue his claims in the second suit. Wynne filed multiple motions to compel, and the court frequently ordered Paribas and Duke to respond to discovery. The judge would express his frustration with the pace of discovery and his belief that Duke was hiding information.

This petition involves one of the many motions to compel discovery filed by Wynne. In this motion, Wynne sought to invoke the crime-fraud exception to the attorney-client privilege to obtain discovery from Duke. Paribas asserted that the court could abrogate the attorney-client privilege under the crime-fraud exception only if Wynne establishes at an evidentiary hearing that legal advice was sought from the attorney to commit, or to attempt to commit, a crime or fraud. Wynne’s attorney suggested that he had evidence to show fraud, but he did not produce the documents he claimed showed the fraud. The court took no evidence.

Concluding the hearing, the court determined that it had previously determined from the “totality of the circumstances” that the initiation of the writ of garnishment was permeated with fraud. The court found that the fraud exception applied, and, as a result, Duke could not invoke the attorney-client privilege at his upcoming deposition. Petitioners seek review of this order by certiorari.

The attorney-client privilege is the oldest confidential communication at common law and as this court has recognized, it is “traditionally deemed worthy of maximum legal protection.” Am. Tobacco Co. v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997). However, the privilege does not apply if the lawyer’s services “were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.” § 90.502(4)(a), Fla. Stat. “Under the statute, it is immaterial whether the lawyer knows that the client intends to commit a crime or perpetrate a fraud, so long as the client has the intention to do so sometime in the future.” First Union Nat’l Bank v. Turney, 824 So.2d 172, 187 (Fla. 1st DCA 2001). “The dispositive question is whether the attorney-client communications are part of the client’s effort to commit a crime or perpetrate a fraud.” Id.

In American Tobacco, this court addressed as a matter of first impression what standard of proof and procedure should be used in determining whether the crime-fraud exception applies. We agreed with the Third Circuit in Haines v. Liggett Group, Inc., 975 F.2d 81 (3d Cir.1992), that evaluating the exception requires an adversarial proceeding that would allow both parties to present evidence and argument on the issue. Am. Tobacco Co., 697 So.2d at 1255. The party invoking the crime-fraud exception has the initial burden of presenting prima facie evidence of the existence of the exception. Id. at 1256. The burden then shifts to the party asserting the attorney-client privilege to show, by a preponderance of the evidence, that there is a reasonable explanation for the conduct or communication. Id.

If the court accepts the explanation as sufficient to rebut the evidence presented by the party opposing the privilege, then the privilege remains. However, if after considering and weighing the explanation the court does not accept it, then a prima facie case exists as to the exception, and the privilege is lost. Thus, the trial court must consider the evidence and argument rebutting the existence of the crime-fraud exception and must weigh its sufficiency against the case made by the proponent of the exception.

Id. What is apparent from American Tobacco is that an evidentiary hearing is necessary before the court can find the crime-fraud exception to the attorney-client privilege.

The court did not hold an eviden-tiary hearing in this case. Instead, it relied on the inferences it drew from the dissolution of the writ of garnishment to conclude that Duke had fraudulently sworn to the facts in the affidavit supporting the writ. At each hearing, the court became more and more convinced that Duke committed fraud and lied. The fact that Duke may have lied, however, does not prove that the attorney-client exception may be abrogated. Although there have been multiple hearings on motions to compel and other matters, there has been no evi-dentiary hearing to determine the essential facts. The trial court has relied on depositions and contested statements by Wynne’s attorney. As the court said in Horning-Keating v. State, 777 So.2d 438, 446 (Fla. 5th DCA 2001), “[I]t would be a denial of due process, in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, Section 9 of the Florida Constitution, to base an order to compel testimony on an unsworn statement or on testimony taken outside the hearing on the motion to compel.”

This court has found that applying the crime-fraud exception without an eviden-tiary hearing is a departure from the essential requirements of law. See IDS Long Distance, Inc. v. Heiffer, 837 So.2d 1130 (Fla. 4th DCA 2003). Wynne did not offer evidence to satisfy his burden, and Paribas and Duke should have been allowed to present countervailing evidence and argument before the court abrogated the attorney-client privilege.

We grant the petition and order that the court must conduct a hearing in compliance with the procedure set forth in American Tobacco.

GROSS and MAY, JJ., concur.


text:
    Ricky FARRUGIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4150.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction for grand theft, finding that his claim that the court erred in instructing the jury in a manner that permitted conviction based upon acquitted conduct was not preserved for review by objection. It also did not constitute fundamental error, as the prosecutor did not argue to the jurors that they could convict on the conduct on which the trial court granted a judgment of acquittal. Compare Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007). We remand, however, for correction of the final judgment to reflect that appellant was found guilty by a jury and did not plead guilty to the charge.

Affirmed but remanded to correct scrivener’s error.

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


author: GROSS, J.

text:
    Piney J. LONG, Appellant, v. Thomas LONG, Appellee.
    No. 4D06-4585.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    Deborah Marks, Miami, for appellant.
    Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellee.
   GROSS, J.

We affirm the amended final judgment of dissolution of marriage.

Contrary to appellant’s contention, there is nothing “inherently confusing” about the way the trial court handled the issue of the children’s private school tuition. The court found that the tuition would total $24,000 over the 40 months following the judgment. The court decided that the husband should be responsible for 75% of the tuition, which is $18,000. The court then increased the $2,500 alimony awarded in the original final judgment to $2,950 for the first 40 months after the judgment. The trial judge did not abuse his discretion by handling the tuition in this way (40 x ($2,950-$2,500) = $18,000). We note that the amended final judgment provided for $2,800 in permanent alimony, a $300 increase over what was set in the original final judgment. This additional award softens the financial impact on the wife, who earns $118,578 less per year than the husband, of folding the tuition obligation into the alimony award.

We find no error in the trial court failing to include the husband’s reimbursed business expenses as part of his income. There was insufficient evidence at trial for the court to determine the amount of business expenses and how they correlated with his living expenses. For example, five months of the husband’s expense reports showed expenses of $778, but there was no evidence that any of this amount went to reduce living expenses. See § 61.30(2)(a)(13), Fla. Stat. (2006). There was no specific evidence quantifying the husband’s use of the Ford Explorer. Other expenses were de minimis. See Lauro v. Lauro, 757 So.2d 523 (Fla. 4th DCA 2000).

Finally, we find no error in the trial court’s failure to equitably distribute $16,000 in credit card debt. Before the final hearing, the parties settled them equitable distribution issues. As framed for the trial judge, the only issues remaining for the court related to alimony. There was no evidence at trial concerning this issue. The agreed equitable distribution scheme made no mention of the credit card debt.

Affirmed.

WARNER and KLEIN, JJ., concur.


author: FULMER, Judge.

text:
    David Carlton DEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-294.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2007.

      James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

David Dey appeals from a final order of probation that was entered after he pleaded no contest to possession of cocaine and reserved his right to appeal the denial of his motion to suppress. In this motion, Dey challenged the validity of his traffic stop. Dey was stopped by police because the windshield of the vehicle he was driving was cracked, according to the officer who testified at the suppression hearing. Drugs were found in the vehicle. The trial court denied Dejfs motion to suppress, relying on Hilton v. State, 901 So.2d 155; 157 (Fla. 2d DCA 2005) (en banc) (designated as Hilton II by the supreme court), in which this court held that “an officer may stop a vehicle with a visibly cracked windshield regardless of whether the crack creates any immediate hazard.”

Subsequent to the hearing, however, the Florida Supreme Court in Hilton v. State, 961 So.2d 284 (Fla.2007) (Hilton III), quashed this court’s decision in Hilton II, concluding that

the provision of section 316.610 which authorizes vehicle stops for equipment that is ‘not in proper adjustment or repair,’ § 316.610(1), Fla. Stat. (2001), does not encompass windshield cracks. Thus, a stop for a cracked windshield is permissible only where an officer reasonably believes that the crack renders the vehicle ‘in such unsafe condition as to endanger any person or property.’ § 316.610, Fla. Stat. (2001).

961 So.2d at 292. Because the law that governs the validity of the stop has changed, we reverse and remand for the trial court to reconsider Dey’s motion to suppress and, if necessary, to conduct a new evidentiary hearing. See Wheeler v. State, 344 So.2d 244, 245 (Fla.1977) (“The decisional law in effect at the time an appeal is decided governs the issues raised on appeal, even where there has been a change of law since the time of trial.”).

Reversed and remanded, with instructions.

CASANUEYA and KELLY, JJ., Concur.


author: CANADY, Judge.

text:
    Shawn FEREBEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-683.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2007.

      James Marion Moorman, Public Defender, and Sharon Morgan Vollrath, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Shawn Ferebee appeals his judgments and sentences for robbery with a firearm and attempted robbery with a firearm. Ferebee argues that the trial court erred in denying his Florida Rule of Criminal Procedure 3.600(a)(2) motion for new trial because the trial court incorrectly utilized the sufficiency of the evidence standard rather than the weight of the evidence standard. We agree.

Rule 3.600(a)(2) provides that a court “shall grant a new trial” if “[t]he verdict is contrary to ... the weight of the evidence.” “There is a distinction between the ‘sufficiency of the evidence’ standard, used in determining whether a judgment of acquittal [pursuant to rule 3.380] is appropriate, and the ‘weight of the evidence’ standard used in evaluating a motion for new trial [pursuant to rule 3.600(a)(2) ].” Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002). When considering a motion for judgment of acquittal under rule 3.380, a trial court must determine as a matter of law whether the evidence presented was adequate to support a conviction. When considering a motion for new trial under rule 3.600(a)(2) based on a claim that the verdict is against the weight of the evidence, the trial court must exercise its discretion to determine “whether a greater amount of credible evidence supports” an acquittal. Id. at 1044. “Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror.” Tibbs v. State, 397 So.2d 1120, 1123 n. 9 (Fla.1981).

Ordinarily, a trial court’s ruling on a rule 3.600(a)(2) motion for new trial is subject to review under an abuse of discretion standard. But where a trial court’s ruling is based on the application of an incorrect legal standard, the ruling is subject to de novo review. Geibel, 817 So.2d at 1044-45. “Appellate courts have thus reversed judgments when the trial court applied a sufficiency of the evidence standard to a motion for new trial” under rule 3.600(a)(2). Id. at 1045; see, e.g., Spear v. State, 860 So.2d 1080 (Fla. 1st DCA 2003); Moore v. State, 800 So.2d 747 (Fla. 5th DCA 2001); Uprevert v. State, 507 So.2d 162 (Fla. 3d DCA 1987).

In denying Ferebee’s motion for new trial, the trial court stated that it could not “act as a seventh juror” and found that there were “sufficient facts for the jury to make a determination” of guilty. The trial court thus applied the sufficiency of the evidence standard rather than the appropriate weight of the evidence standard. Ferebee’s counsel specifically argued in the trial court that under the weight of the evidence standard, the judge was called on to weigh the credibility of the evidence.

Because the trial court’s application of the sufficiency of the evidence standard constituted a legal error, we reverse and remand for the trial court to consider Fer-ebee’s motion for new trial under the weight of the evidence standard. See Geibel, 817 So.2d at 1045.

Reversed and remanded.

NORTHCUTT, C.J., and FULMER, J., Concur.


text:
    Shawntrell CHURCH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3371.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2007.

      James Marion Moorman, Public Defender, and Lisa B. Lott, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   DAKAN, STEPHEN L., Associate Senior Judge.

Shawntrell Church appeals his conviction for three counts of armed robbery with a firearm and his three consecutive ten-year sentences. The trial court imposed a mandatory minimum of ten years on each count. Mr. Church assigns as error the trial court’s denial of his motion to suppress evidence of his identification and the court’s imposition of the consecutive sentences. We find that the trial court correctly denied his motion to suppress and we affirm his convictions. We conclude, however, that the case law interpreting section 775.087(2)(d), Florida Statutes (2002), requires reversal of his sentences and a remand for resentencing.

On February 23, 2003, Mr. Church committed three counts of armed robbery at the GTE Federal Credit Union in St. Pe-tersburg. During the robbery of three tellers, he displayed a firearm but did not fire it. None of the tellers was injured. Under current case law this was a single criminal episode. Mr. Church was convicted of three counts of armed robbery with a firearm. The trial court sentenced him to three consecutive ten-year terms and announced that a ten-year mandatory minimum would apply to each count.

Section 812.13, Florida Statutes (2002), provides that robbery with a firearm is a first-degree felony punishable by imprisonment for a term of years not exceeding life.

Section 775.087(2)(a)(l), establishes a mandatory minimum of ten years in prison for a person convicted of armed robbery who actually possessed a firearm during the robbery. In 1999, the legislature added subsection (2)(d) to the statute which states:

It is the intent of the Legislature that offenders who actually possess ... firearms ... be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

Case law interpreting this subsection holds that imposition of consecutive mandatory minimum sentences of any duration is prohibited in a case involving a single criminal episode during which a firearm is used but not fired.

In State v. Sousa, 903 So.2d 923 (Fla.2005), the defendant was convicted of two counts of attempted murder with a firearm and one count of aggravated assault with a firearm all resulting “from a shooting spree at a greyhound track with two of the victims being shot by Sousa in rapid succession during a single criminal episode.” Id. The trial court imposed consecutive sentences totaling 105 years of imprisonment, each including a mandatory minimum. The Florida Supreme Court approved the sentences and reaffirmed its holding in State v. Christian, 692 So.2d 889 (Fla.1997), which had been decided before the passage of subsection 775.087(2)(d). In Christian, the court stated:

As a general rule, for offenses arising from a single episode, stacking is permissible where the violations of the mandatory minimum statutes cause injury to multiple victims, or multiple injuries to one victim. The injuries bifurcate the crimes for stacking purposes. The stacking of firearm mandatory minimum terms thus is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon.

Id. at 890-91. In Hargrove v. State, 905 So.2d 275 (Fla. 2d DCA 2005), this court held that consecutive sentences were permitted where the evidence showed that Hargrove had fired his weapon at each of two occupants of a vehicle, wounding one.

In Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2007), the court observed that “each of Irizarry’s offenses was a 10-20-life offense, that each offense arose from a single criminal episode, and that, during this criminal episode, Irizarry did not injure multiple victims or cause multiple injuries to any one victim. Nor did he fire his gun.” Id. at 558. The court cited Sousa and Christian in holding that under those circumstances the trial court did not have the legal authority to impose consecutive mandatory minimum sentences for each count.

We agree with the holding in Irizarry and conclude that under Sousa and Christian the trial court did not have authority to impose consecutive mandatory minimum sentences. Accordingly, we vacate the sentences and remand for resentencing.

Convictions affirmed; sentences vacated and remanded.

CASANUEVA and STRINGER, JJ., Concur.


text:
    Sandra JIMENEZ, Petitioner, v. Eloise RATENI, a/k/a El Rateni, d/b/a Cleaning by El, and Cleaning by El., etc., Respondents.
    No. 2D06-5413.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2007.

      George R. Baise Jr. of George R. Baise Jr., P.A., Bradenton, and Perry Tanksley, Sarasota, for Petitioner.
    Joseph F. Summonte, Jr., of Judd, Ul-rich, Scarlett & Dean, P.A., Sarasota, for Respondents.
   CANADY, Judge.

Sandra Jimenez seeks certiorari review of an interlocutory order entered by the circuit court in a civil appellate proceeding. The circuit court’s order denied a motion filed by Jimenez seeking issuance of an order requiring the assignment of the appellate case pursuant to the provisions of a local rule of court. For the reasons we explain, we conclude that Jimenez is entitled to certiorari relief.

This case presents the question of whether the assignment in the circuit court of a case on appeal from the county court is consistent with the requirements of Twelfth Judicial Circuit Local Rule (l)(e)(2), that “[a]ll county court civil appeals shall be randomly assigned to lettered divisions of the Civil Division.” The circuit court in the order at issue here rejected Jimenez’s contention that the process of assignment pursuant to this rule “requires a random assignment to any Circuit Civil judge regardless of the County of his or her assignment.” The circuit court concluded that because the jurisdiction of the Sarasota County clerk of the circuit court is “limited to the geographical boundaries of Sarasota County,” acceptance of the interpretation of rule 1(e)(2) urged by Jimenez would “create a legal anomaly.” Under the circuit court’s interpretation, the assignment of civil appeals from the Sarasota County Court is thus limited to circuit judges assigned to the Civil Division in Sarasota County.

To obtain certiorari relief from an “erroneous interlocutory order,” a petitioner must initially establish as a basis for the exercise of certiorari jurisdiction that “[the] interlocutory order creates material harm irreparable by postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). If that jurisdictional threshold is met, the petitioner must go on to show that the challenged order “departs from the essential requirements of the law.” Id.

We have common law certiorari jurisdiction to review the circuit court’s order here because the utilization of an improper process for the assignment of a judicial case causes “material injury ... that cannot be corrected on postjudgment appeal.” Id. at 648. The asserted injury consists in the litigant’s being required to proceed with the adjudication of an appeal before a judicial officer who has been assigned unlawfully. This is akin to the injury of being required to try a case before a judge who has improperly denied a motion for disqualification of the judge, an injury for which interlocutory relief is available by way of prohibition. See Castro v. Luce, 650 So.2d 1067 (Fla. 2d DCA 1995). It is also akin to the injury of being required to try a case where the trial court has erred in its disposition of a motion for disqualification of counsel, an injury for which certiorari relief is available. See Gonzalez ex rel. Colonial Bank v. Chillura, 892 So.2d 1075 (Fla. 2d DCA 2004).

The exercise of certiorari jurisdiction here is also supported by the cases in which certiorari has been recognized as an appropriate vehicle for challenging administrative orders of circuit courts. See 1-888-Traffic Schools v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So.2d 413 (Fla.1999); Hatcher v. Davis, 798 So.2d 765 (Fla. 2d DCA 2001). Although Jimenez did not institute this proceeding as a challenge to an administrative order and the circuit court’s order makes no reference to an administrative order, Jimenez in effect challenges an administrative practice which is based on an administrative order. See Twelfth Judicial Circuit Administrative Order LC-82-01 (providing that civil appeals from the County Court of Sarasota County “be assigned by the random process to the various civil divisions of the Circuit Court in Sarasota County”).

Having determined that we have certio-rari jurisdiction, we turn to the question of whether there has been “a departure from the essential requirements of the law,” Parkway Bank, 658 So.2d at 648, that is, whether “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice,” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003).

We conclude that the unambiguous provisions of rule 1(e)(2) require that the random assignment of civil appeals from the county court be made to judges drawn from the pool of all the circuit judges in the Civil Division of the Twelfth Circuit. The circuit court is precluded from following any local administrative order or practice that is inconsistent with the provisions of this rule. See Fla. R. Jud. Admin. 2.120(c); McAlevy v. State, 947 So.2d 525, 528 (Fla. 4th DCA 2006); Melkonian v. Goldman, 647 So.2d 1008, 1009-10 (Fla. 3d DCA 1994); State ex rel. Zuberi v. Brinker, 323 So.2d 623, 624-26 (Fla. 3d DCA 1975).

Twelfth Judicial Circuit Court Rule 1(d) provides that “[t]he Civil Division shall be subdivided into lettered divisions for each judge in the Division.” The provision in rule 1(e)(2) for the “random assignment” of civil appeals “to lettered divisions of the Civil Division” can only be interpreted as requiring that all the judges of the Civil Division be included in the assignment pool for civil appeals. The circuit court’s ruling to the contrary constitutes a departure from the essential requirement of law. The text of the rule constitutes clearly established law from which the circuit court has departed. See Kaklamanos, 843 So.2d at 890 (holding that “ ‘clearly established law’ can derive from a variety of legal sources, including ... rules of court”).

The unambiguous meaning of the text of rule 1(e)(2) is reinforced by the provision of rule 1(e)(1) which governs criminal appeals from county court: “All county court criminal appeals are assigned to the resident felony judge of the county where the appeal originate^].” The express reference in this portion of rule 1(e) to the assignment of criminal appeals in “the county where the appeal originated” militates strongly against the suggestion of an implicit geographical limitation of the pool of judges to whom civil appeals will be assigned.

The circuit court erred in concluding that the intercounty assignment of appeals would create a “legal anomaly.” The in-tercounty assignment of eases does not implicate the authority of the clerk of the circuit court. Instead, the assignment of cases is a matter of the authority of the circuit court as it is exercised in accordance with pertinent requirements of law. “The chief judge of each judicial circuit ... exercise[s] administrative supervision over all the trial courts within the judicial circuit and over the judges and other officers of such courts.” § 43.26(1), Fla. Stat. (2006). The clerk of court is required to “manage the performance of’ the services the clerk provides to the trial court “in a method or manner that is consistent with statute, rule, or administrative order.” § 43.26(6). There is nothing in the law which prevents the Sarasota County clerk of the circuit court from acting in a manner that is consistent with rule 1(e)(2).

Because the circuit court’s order, which cannot be remedied on postjudgment review, violates a clearly established principle of law and results in a miscarriage of justice, we grant the certiorari petition and quash the interlocutory order.

Petition granted.

WHATLEY and CASANUEVA, JJ., Concur.


author: WALLACE, Judge.

text:
    Doreen OUELLETTE, as Personal Representative of the Estate of Lewellyn Ouellette, deceased, Appellant, v. Bhasker J. PATEL, M.D., Appellee.
    No. 2D06-3397.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2007.

      Jawdet I. Rubaii and Jack F. White, III, of Jawdet I. Rubaii, P.A., Clearwater, for Appellant.
    Mindy McLaughlin, Judith W. Simmons, and Gabrielle S. Osborne of Burton, Schulte, Weekley, McLaughlin & Beytin, P.A., Tampa, for Appellee.
   WALLACE, Judge.

Doreen Ouellette, as Personal Representative of the Estate of Lewellyn Ouellette, deceased, appeals a final summary judgment that terminated her medical malpractice action against Bhasker J. Patel, M.D. Because the circuit court erroneously failed to consider the expert witness affidavit that Mrs. Ouellette filed in opposition to Dr. Patel’s motion for summary judgment, we reverse the summary final judgment and remand for further proceedings.

The Facts

On April 25, 1997, Dr. Patel, a cardiologist, admitted Mr. Lewellyn Ouellette to a hospital in New Port Richey for a percuta-neous transluminal angioplasty (balloon angioplasty) of his right superficial femoral artery. After the procedure was completed, Mr. Ouellette developed an occlusion of the blood flow in the artery. Such an occlusion is a known complication of the procedure that is generally treated by surgery. After deciding that Mr. Ouellette required surgical intervention to restore blood flow in the leg, Dr. Patel contacted Raymond Waters, M.D., a vascular surgeon, for assistance. However, Dr. Waters was performing emergency surgery at another hospital and was unavailable. Dr. Patel’s efforts to find another local surgeon to treat Mr. Ouellette were unsuccessful. Accordingly, Dr. Patel made arrangements for Mr. Ouellette to be transported to Tampa General Hospital (TGH) by helicopter. At TGH, another surgeon operated on Mr. Ouellette to correct the occlusion of the blood flow in his right leg. Several months later, Mr. Ouellette underwent an amputation of his right leg below the knee.

The Proceedings in the Circuit Court

In 1999, Mr. Ouellette filed a medical malpractice action against Dr. Patel, another doctor, and the hospital where Dr. Patel had performed the balloon angioplasty. In his complaint, Mr. Ouellette demanded a jury trial. The theory of Mr. Ouellette’s claim against Dr. Patel was that Dr. Patel was responsible for the delay in obtaining the surgical treatment that was necessary to restore blood flow to Mr. Ouellette’s right leg. Mr. Ouellette contended that the delay in obtaining surgical intervention stemming from Dr. Patel’s alleged omissions ultimately led to the amputation of Mr. Ouellette’s right leg. Mr. Ouellette died in January 2005, and Mrs. Ouellette, in her capacity as the personal representative of her late husband’s estate, was substituted as the party plaintiff.

The plaintiff’s medical expert was Gabor Kovacs, M.D. In March 2004, Dr. Patel took Dr. Kovacs’ deposition. In his deposition, Dr. Kovacs offered his opinion concerning Dr. Patel’s alleged breach of the prevailing professional standard of care:

Q. [by Dr. Patel’s attorney] Moving forward on what Dr. Patel did appropriately], obviously you believe stenting of the iliac was indicated, and that the angioplasty that he performed on [Mr. Ouellette’s] right leg was also indicated.
A. Yes, it was indicated.
Q. Let’s move on.
Obviously, we know what occurred in this particular case is a known risk and complication of angioplasty; correct?
A. It’s a recognized risk.
Q. And as such, obviously, you’re not critical of Dr. Patel for the technique in the surgery. Your criticisms begin after the complication first arose; correct?
A. Yes.
Q. Why'don’t you now tell me what it is, if anything, you believe Dr. Patel could have or should have done differently^]
A. Well, Dr. Patel did the angioplasty; and when you do a procedure, to begin with ... either you should be able to ... handle [by yourself] the complications that you may be causing, or you should have some contingency plan, or some way of extricating yourself from a complication when it does[ ] — when it did occur.
Q. Now, let me interrupt you real quick. Is it your understanding that Dr. Patel did not have a backup plan to extricate himself in the event that he ran into trouble in [the] angioplasty?
A. That’s the impression that I got from the records.
Q. Now, let me ask it to you this way. If you assume for me hypothetically, I understand you don’t have impressions from the records in front of you, but if I understand your criticism correctly, if you assume for me hypothetically that Dr. Patel actually did have a surgeon on backup that was qualified and able to extricate him from any difficulties that arose from any known or accepted complication, then obviously that criticism would go away; correct?
A. Yes.
Q. What other criticisms do you have?
A. Well, that’s the basic criticism[,] the fact that he undertook to do a procedure which I guess it’s a matter of debate whether cardiologistfs] or even interventional radiologists] should be doing procedures that they cannot handle the complications of, but then having undertaken it, he had no way of helping the patient once the complication occurred.

Thus Dr. Kovacs’ deposition testimony on the issue of the standard of care focused on the question of Dr. Patel’s arrangements for surgical backup, not on his performance of the procedure itself.

In January 2006, Dr. Patel filed a motion for summary judgment. In his motion, Dr. Patel contended that Mrs. Ouel-lette could not establish a breach of the standard of care because “[t]he undisputed evidence in this case is that Dr. Patel did, in fact[,] have surgical back up for this procedure.... Therefore, Plaintiffs expert conceded that Dr. Patel would have met the standard of care.” In support of his motion, Dr. Patel relied in part on the deposition testimony of Dr. Waters, the surgeon who was unavailable when Dr. Patel called him for assistance following Mr. Ouellette’s balloon angioplasty.

In his deposition, Dr. Waters testified that in 1997 he regularly served as the surgical backup for cardiologists such as Dr. Patel who were performing balloon angioplasty procedures. However, according to Dr. Waters, the prevailing standard of care for such cardiologists did not require that they have a backup surgeon immediately available while the procedure was being performed. Dr. Waters recalled that Dr. Patel had informed him about his plan to perform a balloon angioplasty on Mr. Ouellette. Sometime between April 16 and April 25, the day of the procedure, Dr. Waters had agreed with Dr. Patel that “absent some emergency, [he] would be available as a surgical backup.” On the day of the procedure, Dr. Waters was called to perform emergency surgery on a patient at another hospital. Thus, when Dr. Patel called Dr. Waters for assistance with Mi'. Ouellette, Dr. Waters was unable to respond because he was already operating on another patient. Dr. Waters recalled that — on the day of the procedure, before Dr. Patel had called him to perform emergency surgery on Mr. Ouellette — neither Dr. Patel nor anyone from his staff had checked to see if Dr. Waters was, in fact, available.

Dr. Patel also relied on an affidavit from his expert witness, Marc A. Levine, M.D. In his affidavit, Dr. Levine opined that Dr. Patel’s treatment of Mr. Ouellette was “within the acceptable standard of care.” Dr. Levine explained further:

[I]n the United States in 1997, the standard of care for performance of peripheral vascular1 transluminal angioplasty by specialists other than Vascular Surgeons did not require that a Vascular Surgeon be on call/immediately available for evaluation and management of any complications such as acute, critical limb ischemia because they were so infrequent.

Thus Dr. Levine’s opinion was that the applicable standard of care did not even require Dr. Patel to have made arrangements for surgical backup before beginning the balloon angioplasty on Mr. Ouel-lette’s right leg.

In response to Dr. Patel’s motion for summary judgment, Mrs. Ouellette filed an affidavit from Dr. Kovacs. In his affidavit, Dr. Kovacs responded in detail to the deposition testimony of Dr. Waters and the affidavit from Dr. Levine with regard to the applicable standard of care:

12. Nothing in the affidavit of Marc Levine, M.D.[,] or the deposition of Raymond Waters, M.D.[,] changes my opinion or the validity of my conclusions of negligence on the part of Dr. Patel. The deposition of Dr. Waters makes it very clear that Dr. Patel failed to meet the standard of care in having a surgical backup in place for the angioplasty procedure. In this particular case, it appears that Dr. Patel simply failed to contact the doctor responsible for the surgical backup (Dr. Waters) prior to beginning the procedure. Dr. Waters testified that he was called away for an emergency at another facility. However, it is clear that Dr. Patel never spoke to Dr. Waters prior to beginning the procedure to make sure that Dr. Waters was in place as the surgical backup. Dr. Waters confirmed this on page 21 of his deposition....
13. It was Dr. Patel’s responsibility to make sure that the surgical backup was in place at the time of the procedure. Dr. Waters’ deposition shows that Dr. Patel did not check with Dr. Waters’ office to make sure that he was at the facility prior to starting the procedure, and it was only after the procedure had failed that Dr. Patel contacted Dr. Waters and discovered that Dr. Waters was not in place to do the surgical backup. This resulted in a considerable delay and complications to Mr. Ouellette.
16. In plain fact, Dr. Patel did not have a surgical backup and took no steps on the day of the procedure to ensure one was in place. Dr. Waters clearly testifies that he discussed the possibility of an emergency with Dr. Patel that would make him unavailable.... Furthermore, it is clear that Dr. Patel undertook and bore the responsibility for insuring the presence of a competent surgical backup. In other words, the fact that Dr. Patel wrongly believed he had a surgical backup when he did not does not render him any less negligent. Indeed, Dr. Patel’s belief was apparently the result of his own negligence.
17. In my opinion, the medical care rendered to Mr. Ouellette by Dr. Bhasker J. Patel failed to meet the accepted standard of medical care. Dr. Patel should have had a vascular surgical team ready as backup in case a mishap should occur.

Mrs. Ouellette timely served a copy of Dr. Kovacs’ affidavit on opposing counsel before the hearing on the motion for summary judgment. See Fla. R. Civ. P. 1.510(c).

At the hearing on the motion for summary judgment, Dr. Patel emphasized Dr. Kovacs’ deposition response to a hypothetical question. When asked to assume that “Dr. Patel actually did have a surgeon on backup that was qualified and able to extricate him from any difficulties that arose from any known or accepted complication,” Dr. Kovacs had agreed that his criticism of Dr. Patel “would go away.” However, Dr. Kovacs’ acknowledgment that his criticism of Dr. Patel “would go away” under these circumstances was necessarily indefinite because the hypothetical question itself did not define what the questioner meant by having “a surgeon on backup.” Furthermore, Dr. Patel did not ask any additional questions to establish what Dr. Kovacs understood having “a surgeon on backup” would require.

Based on Dr. Kovacs’ response to the ambiguous hypothetical question, Dr. Patel argued that his arrangements with Dr. Waters for surgical backup “absent some emergency” demonstrated conclusively that he had met the standard of care as testified to by Dr. Kovacs in his deposition. Dr. Patel urged the circuit court to strike Dr. Kovacs’ affidavit because it contradicted his prior deposition testimony concerning the applicable standard of care. After hearing argument, the circuit court agreed that Dr. Kovacs’ affidavit contradicted his deposition testimony concerning the standard of care. The circuit court struck the affidavit as contradictory and ruled that Dr. Patel was entitled to summary judgment “on that ground and that ground alone.” Mrs. Ouellette moved for rehearing, but the circuit court denied her motion. This appeal followed.

The Applicable Law

A party may not file his or her own affidavit, or that of another, baldly repudiating his or her own deposition testimony to avoid the entry of a summary judgment. See Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954); Briguera v. Behr Paint Corp., 712 So.2d 824, 826 (Fla. 2d DCA 1998) (citing Stanford v. CSX Transp., Inc., 637 So.2d 37, 38 (Fla. 2d DCA 1994)). Nonetheless, “[a] party may file a subsequent affidavit for the purpose of explaining testimony given at a prior deposition, provided the explanation is credible and not inconsistent with the previous sworn testimony, even though it creates a jury issue on the opponent’s motion for summary judgment.” Jordan v. State Farm Ins. Co., 515 So.2d 1317, 1319 (Fla. 2d DCA 1987) (citing Willage v. Law Offices of Wallace & Breslow, P.A., 415 So.2d 767 (Fla. 3d DCA 1982)). The principle that a party defending a motion for summary judgment is entitled to all reasonable inferences in his or her favor “includes giving to the previous deposition any reasonable meaning which will not conflict with the subsequently filed affidavit.” Koflen v. Great Atl. & Pac. Tea Co., 177 So.2d 529, 531 (Fla. 3d DCA 1965).

Discussion

In this case, Dr. Kovacs’ deposition testimony was that Dr. Patel’s performance fell below the prevailing professional standard of care because he did not have “a surgeon on backup to allow him to be extricated from any type of danger situation should a complication occur.” In his motion for summary judgment, Dr. Patel argued that his performance met the standard of care because prior to the day of Mr. Ouellette’s balloon angioplasty, Dr. Waters had agreed to be available to provide surgical backup, absent some other emergency. However, as it happened, another emergency did arise, and Dr. Waters was not available to treat Mr. Ouellette. Because no other surgeons were available locally, Dr. Patel had to arrange for Mr. Ouellette to be flown by helicopter to TGH where he was treated by another surgeon. Without question, an emergency helicopter flight from New Port Richey to Tampa and surgery at TGH were not part of Dr. Patel’s surgical backup plan for Mr. Ouel-lette.

In his affidavit, Dr. Kovacs addressed Dr. Patel’s contention that his prior arrangements with Dr. Waters for surgical backup met the standard of care. Dr. Kovacs opined that Dr. Patel’s performance failed to meet the standard of care because Dr. Patel had never contacted Dr. Waters before beginning the balloon angioplasty to confirm that he was in fact available. According to Dr. Kovacs, Dr. Patel’s erroneous belief that “he had a surgical backup when he did not does not render him any less negligent.” No one had asked Dr. Kovacs at his deposition whether an unconfirmed arrangement for surgical backup with a surgeon who might or might not be available — depending on the occurrence of another emergency — met the prevailing professional standard of care. Thus the views expressed by Dr. Kovacs in his affidavit were not inconsistent with his prior deposition testimony. Instead, they merely explained and elaborated on the deposition testimony in light of additional facts. Thus Dr. Kovacs’ affidavit did not “baldly repudiate” his prior deposition testimony.

Conclusion

For these reasons, the circuit court erred in striking and refusing to consider Dr. Kovacs’ affidavit. See Ellison, 74 So.2d at 681; Briguera, 712 So.2d at 825-26; Stanford v. CSX Transp., Inc., 637 So.2d 37, 38 (Fla. 2d DCA 1994); Lawrence v. Pep Boys-Manny Moe & Jack, Inc., 842 So.2d 303, 305-06 (Fla. 5th DCA 2003); Cosman v. Bea Morley Real Estate Group, 820 So.2d 1040, 1042-43 (Fla. 4th DCA 2002). Due consideration of Dr. Ko-vacs’ affidavit would have disclosed that it raised an issue of fact concerning what the prevailing professional standard of care required of Dr. Patel with respect to arrangements for surgical backup before beginning the balloon angioplasty procedure on Mr. Ouellette. See Torres v. Sullivan, 903 So.2d 1064, 1067-68 (Fla. 2d DCA 2005). This issue of fact was to be resolved by a jury, not by the trial judge on a motion for summary judgment. See id. at 1068. Thus the circuit court erred in granting Dr. Patel’s motion for summary judgment. Accordingly, we reverse the summary final judgment, and we remand this case to the circuit court for further proceedings.

Reversed and remanded for further proceedings.

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


author: WHATLEY, Judge.

text:
    STATE of Florida and Clerk of the Circuit Court, Collier County, Appellants, v. SUNSHINE STATE BAIL BONDS, INC., Surety, Appellee.
    No. 2D07-792.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2007.
    John W. Carter, Naples, for Appellants.
    Lauren Fernandez, Miami, for Appellee.
   WHATLEY, Judge.

The State of Florida and the Clerk of the Circuit Court for Collier County appeal a circuit court order which granted partial remission of a bond forfeiture. The order directed that Sunshine State Bail Bonds, Inc. receive a remission of 80% of the bond amount. Because remission was improperly ordered pursuant to section 903.28, Florida Statutes (2005), we reverse.

Youwas Vilpre was charged by information with sale or delivery of cocaine and possession of cocaine with intent to sell. On September 14, 2005, Sunshine State Bail Bonds posted two bonds totaling $10,000 for Vilpre. On February 21, 2006, Vilpre failed to appear for trial and a warrant was issued for his arrest.

A notice of forfeiture was filed on February 23, 2006, and on April 24, 2006, Sunshine State Bail Bonds paid the forfeiture. Vilpre remained at large until he was shot and killed by law enforcement in Georgia on October 25, 2006. Thereafter, the circuit court granted remission of 80% of the bonds ($8,000) on February 5, 2007.

“A bail bond is a three-party contract between the state, the accused, and the surety, whereby the surety guarantees appearance of the accused.” Pinellas County v. Robertson, 490 So.2d 1041, 1042 (Fla. 2d DCA 1986). The remission of a bond forfeiture is a statutory remedy that cannot be ordered for any reason other than as specified in section 903.28. Hillsborough County v. Roche Sur. & Cas. Co., 805 So.2d 937, 938-39 (Fla. 2d DCA 2001). Pursuant to section 903.28, before a court can order remission of a bond, it must determine that there was no breach of the bond and the surety must have apprehended or “substantially attempted to procure or cause the apprehension or surrender of the defendant.” Id. at 939. In the present case, there was no breach of the bonds; however, Sunshine State Bail Bonds never argued nor presented evidence to the circuit court that it substantially attempted to procure or cause the apprehension or surrender of Vilpre.

We have been unable to find case law in Florida addressing the remission of a bond forfeiture after the death of the defendant and section 903.28 does not provide for such circumstance. However, Florida courts have addressed the remission of a bond forfeiture when the defendant leaves the jurisdiction and the surety is unable to bring him back to Florida due to the actions of a third party.

In Curlycan Bail Bonds, Inc. v. State, 933 So.2d 122 (Fla. 3d DCA 2006), the defendant failed to appear as scheduled and was later located in Venezuela, which refused to extradite him. Curlycan argued that the court should excuse its failure to perform the contract, based on the doctrine of impossibility of performance, because Venezuela interfered with its performance. Id. at 123. The

Similarly, in Robertson, 490 So.2d at 1042, the defendant failed to appear as scheduled and was later arrested in Arizona, and the State decided not to extradite the defendant. This court noted that the State is not the “surety’s surety” and that the surety remains answerable on the bond even though the State declined to extradite the defendant. Id. at 1043 (quoting Umatilla County v. Resolute Ins. Co., 8 Or.App. 318, 493 P.2d 731 (1972)).

In the present case, as in Robertson and Curlycan, the doctrine of impossibility of performance does not excuse Sunshine State Bail Bonds of its obligation to take precautionary action to prevent Vilpre from leaving the jurisdiction, even though the actions of a third party prevented it from bringing Vilpre back to the jurisdiction. See Allegheny Cas. Co. v. State, 850 So.2d 669, 672 (Fla. 4th DCA 2003) (“The risk of a defendant not appearing is borne by the surety and the surety, in order to protect its interest, must take precautionary actions to prevent this type of situation .... Surety’s inability to perform its obligation is due to its own fault in permitting the defendant to leave the State of Florida.”).

Accordingly, we reverse because the trial court erred in directing remission of the surety bonds where such was not authorized by section 903.28.

Reversed.

NORTHCUTT, C.J., and KELLY, J., Concur.

      . Although this case is controlled by section 903.28, several cases from other states have held that a surety may recover a bond when the death occurs before the scheduled appearance date. See Washington County v. Goldberg Bonding, Inc., 388 N.W.2d 20 (Minn.Ct.App.1986) (holding that where surety was given until date of forfeiture hearing to produce defendant and defendant was killed by police before that date, bond would not be forfeited); State v. Davis, 67 N.M. 6, 350 P.2d 748, 749 (1960) (“It is well settled that the death of the principal before the day fixed for his appearance discharges his surety.”); Wilson v. State ex rel. Edmondson, 308 P.2d 315 (Okla.1957) (concluding that surety can recover bond where principal dies before he is scheduled to appear).


author: ALLEN, J.

text:
    Mitchell McNABB, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1579.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2007.
    Mitchell McNabb, pro se, Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   ALLEN, J.

The appellant challenges an order by which the trial court denied his Florida Rule of Criminal Procedure 3.850 motion for postconvietion relief. Because there is a reasonable probability that the result of the appellant’s trial would have been different had his counsel not provided deficient performance by failing to secure a severance of his charges, we reverse both the order under review and the appellant’s convictions.

The appellant was charged by a single information with two drug offenses. After a jury trial, he was found guilty of a lesser included offense on the first count, and guilty as charged on the second count. He thereafter timely filed a rule 3.850 motion, claiming that his counsel was ineffective for failing to secure a severance of the two charges. After conducting an evidentiary hearing on the claim, the trial court correctly concluded that defense counsel’s failure to move for and thereby secure a severance of the charges satisfied the deficient performance prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Reasoning, however, that evidence of either offense would have been admissible in the trial of the other as similar fact evidence pursuant to section 90.404(2)(a), Florida Statutes, the trial court further concluded that the prejudice prong of Strickland was not satisfied.

When offenses are improperly consolidated for trial, there is a risk of prejudice to the defense. As the Florida Supreme Court has explained:

The danger in improper consolidation lies in the fact that evidence relating to each of the crimes may have the effect of bolstering the proof of the other. While the testimony in one case standing alone may be insufficient to convince a jury of the defendant’s guilt, evidence that the defendant may also have committed another crime can have the effect of tipping the scales.

Crossley v. State, 596 So.2d 447, 450 (Fla.1992). When improperly consolidated offenses are of the same type, as was the situation in the present case, the risk of prejudice is only heightened. In light of these considerations, and upon review of the particular circumstances involved here, we conclude that there is a reasonable probability that the improper consolidation of offenses affected the outcome of the appellant’s trial. Although Crossley recognizes that prejudice flowing from improper consolidation might be eliminated in a situation in which testimony concerning each of the crimes could have been introduced as similar fact evidence in the trial of any one of the improperly consolidated charges, the record in the present case does not demonstrate that evidence of either offense would have been admissible as similar fact evidence in the trial of the other.

Because there is a reasonable likelihood that the outcome of the appellant’s trial would have been different had his counsel moved for and secured a severance of the charges, the prejudice prong of Strickland was established. And because this reasonable likelihood of prejudice extends to both of the appellant’s convictions, both must be reversed. Accordingly, the order under review is reversed, as are both of the appellant’s convictions, and this case is remanded to the trial court for further proceedings.

DAVIS and BENTON, JJ., concur.


text:
    Mark Thomas BRULTE, husband, Appellant, v. Suzanne Mitchell BRULTE, wife, Appellee.
    No. 1D07-3692.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2007.

      Beth M. Terry, Jacksonville, for Appellant.
    J. Demere Mason, Jacksonville, for Ap-pellee.
   PER CURIAM.

The appellant filed this appeal seeking review of a non-final order denying his motion to dismiss filed below, which had challenged the trial court’s jurisdiction over the case. The appellee filed a motion to dismiss this appeal because the order on appeal dealt with subject matter jurisdiction and is not an immediately appealable order. Concluding that the order on appeal does not fall into any of the categories of appealable orders identified in Florida Rule of Appellate Procedure 9.130, the ap-pellee’s motion to dismiss is hereby GRANTED and this appeal is hereby DISMISSED for lack of jurisdiction.

In the order on appeal, the trial court found that the wife met the residency requirements for filing a Petition for Dissolution of Marriage in Florida, and also that the court had jurisdiction over the parties’ two children pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), sections 61.501 through 61.542, Florida Statutes. The UCCJEA does not require personal jurisdiction over a party to make a child custody determination. See § 61.514(3), Fla. Stat. (2006). Because the appellant’s motion to dismiss did not raise a challenge to the trial court’s in personam jurisdiction, the order on appeal did not determine the jurisdiction of the person as that term is used in Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i). See Fisher v. International Longshoremen’s Ass’n, 827 So.2d 1096 (Fla. 1st DCA 2002). Further, although this order set the stage for a custody determination in the future, it is not appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), because it did not make a determination as to child custody.

KAHN, WEBSTER, and ROBERTS, JJ., concur.