text:
    M.L., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D06-2136.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.

      Roger Ally of the Law Offices of Roger Ally, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey Bassett, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children and Families.
    Patricia M. Propheter, Orlando, for ap-pellee Guardian ad Litem Program.
   PER CURIAM.

M.L., the Mother, appeals the trial court’s order sheltering her son, C.G., with his paternal grandmother. We reverse the order appealed because the Department of Children & Families (“DCF”) failed to establish that probable cause existed to believe that C.G. had been, or was in imminent danger of being, abused, neglected, or abandoned.

The sheltering of C.G. derived from M.L.’s delivery of a “substance exposed” child, C.G.’s sister, on April 24, 2006, and M.L.’s subsequent incarceration for drug possession. Consequently, DCF took nine-year-old C.G. into custody and filed a shelter petition. The petition alleged that removal of C.G. from the home was necessary as there was probable cause to believe that he had “been abused, abandoned, or neglected or [was] in imminent danger of illness or injury as a result of abuse, abandonment, or neglect” and that C.G. “could not safely remain in the home” as there were no preventive services to ensure his safety. DCF acknowledged at the shelter hearing that C.G. was not living in the home with the mother, but had been living with his grandmother since his birth in 1996. Nonetheless, DCF argued that a shelter order making the grandmother C.G.’s “legal custodian” was needed to ensure that the mother could not remove C.G. from the grandmother’s home without a court order. The trial court agreed and granted DCF’s shelter petition.

Section 39.402, Florida Statutes, states

(1) ... [A] child taken into custody shall not be placed in a shelter prior to a court hearing unless there is probable cause to believe that:
(a) The child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment; [and]
(2) A child taken into custody may be placed or continued in a shelter only if one or more of the criteria in subsection (1) applies and the court has made a specific finding of fact regarding the necessity for removal of the child from the home and has made a determination that the provision of appropriate and available services will not eliminate the need for placement.

39.402(l)(a), (2), Fla. Stat. Neither the allegations contained in DCF’s petition nor those made at the hearing establish probable cause to believe C.G. had been abused, neglected, or abandoned. In fact, both DCF and the trial court agreed that C.G. was being well taken care of by the grandmother, and DCF had a positive home study and clear background check on her.

We also specifically reject DCF’s assertion that C.G. was in imminent danger of being abused. “ ‘Abuse’ means any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” 39.01(2), Fla. Stat. Exposing a child to a controlled substance constitutes “harm” only when a mother’s use of a controlled substance during her pregnancy demonstrably adversely affects the child or when a parent’s “[c]ontinued chronic and severe use of a controlled substance” demonstrably adversely affects the child. 39.01(30)(g), Fla. Stat. (2005). Although M.L.’s daughter tested positive for drugs at birth as a result of M.L.’s drug use, there is no evidence that her drug use adversely affected the older child, C.G., and the positive drug test is insufficient to establish that C.G. is at imminent risk of being harmed. See J.B., III v. Dep’t of Children & Families, 928 So.2d 392, 395 (Fla. 1st DCA 2006) (“If there is no nexus between the parent’s alleged behavior and the likelihood a child will suffer abuse and neglect, then a finding that abuse or neglect is ‘impending’ or ‘about to occur’ cannot be upheld.”); R.M. v. Dep’t of Children & Families, 886 So.2d 329, 331 (Fla. 5th DCA 2004) (stating a nexus exists when “the circumstances surrounding an act of abuse on one child is predictive of a similar act on the other child.”).

Accordingly, the order sheltering C.G. is REVERSED.

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

      . Both mother and child tested positive for cocaine and marijuana.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Morris T. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3452.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Rehearing Denied Nov. 29, 2006.
    Morris T. Young, Florida City, pro se.
    No appearance required for appellee.
   On Motion for Rehearing

PER CURIAM.

We withdraw our prior opinion and substitute the following in its place.

Appellant appeals an order denying his motion for posteonviction relief. We affirm as the motion is untimely. Appellant’s conviction was final in 1999, and the current postconviction relief motion was not filed until 2006. He claims an exception to the two-year time limitation of Florida Rule of Criminal Procedure 3.850, relying on Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), decided after his conviction, to support his contention that his plea was involuntary based upon a coerced confession. However, Seibert is an application of the Miranda decision, not the establishment of a fundamental constitutional right which has been held to apply retroactively. See Fla. R.Crim. P. 3.850(b)(2).

Appellant’s other claim, that his plea was based on erroneous advice of counsel, is equally barred as untimely.

Therefore, the trial court did not err in summarily denying this untimely motion.

Affirmed.

WARNER, POLEN and SHAHOOD, JJ., concur.


text:
    Sterling WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4034.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand From The Supreme Court

PER CURIAM.

In State v. Watts, 940 So.2d 1104 (Fla.2006), the supreme court quashed our decision in Watts v. State, 912 So.2d 17 (Fla. 4th DCA 2005), and remanded for reconsideration upon application of State v. Richardson, 915 So.2d 86 (Fla.2005).

In our prior opinion we reversed appellant’s habitual offender sentence because he did not have the necessary prior sequential convictions, where one of the prior “convictions” was an offense for which he was placed on probation. We relied on Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003). However, the supreme court held in State v. Richardson that a conviction upon which the offender was placed on probation can constitute a “sentence” for purposes of habitual offender qualification, quashing our decision. 915 So.2d at 89. Based upon the supreme court’s holding, we now affirm appellant’s habitual felony offender sentence. In all other respects, our prior opinion remains unchanged.

WARNER, POLEN and HAZOURI, JJ., concur.


author: PALMER, J.

text:
    Donna Sue BALLIEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3698.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Donna Sue Ballien appeals her judgment and sentence which were entered by the trial court after she was found guilty of violating her probation. Concluding that there was insufficient evidence to support a finding that Ballien willfully violated her probation, we reverse.

Ballien pled nolo contendere to charges of forgery and uttering a forged check. She was sentenced to a term of three years of probation. As part of her plea agreement, Ballien was ordered to complete 100 hours of community service.

In a separate case, Ballien pled nolo contendere to the charge of deposit with intent to defraud. The trial court sentenced Ballien to a term of three years of probation. As part of her restitution order, Ballien was ordered to complete 100 hours of community service.

Subsequently, the trial court modified Ballien’s orders of probation in both cases and converted the costs and fines associated with both cases to community service hours. Three months later, the Department of Corrections filed a violation of probation affidavit alleging that Ballien was in violation of her probation due to her failure to complete community service hours as directed by her probation officer;

Ballien filed a motion to dismiss the affidavit arguing that it failed to state grounds under which her probation could be violated because Ballien believed she had until the end of her probationary period to complete her community service hours. The trial court conducted a hearing on the motion. During the hearing, Ballien argued that she should have the entire term of her probation in which to complete her community service hours because the trial court did not specifically state she had to complete a certain amount of community service each month. The State argued that, because Ballien’s cost of supervision was due every month, she could be violated for not performing community service hours each month.

The trial court denied Ballien’s motion to dismiss. Thereafter, Ballien pled guilty to violating her probation, expressly reserving the right to appeal the trial court’s denial of her motion to dismiss. Both parties agreed that Ballien’s motion was dispositive. The trial court adjudicated Ballien guilty, revoked the previous orders of probation, and ordered her to serve a term of two years of community control. This appeal timely followed.

Ballien argues that the trial court erred in denying her motion to dismiss because the State failed to meet its burden of proving that she willfully and substantially violated her probation. We agree.

The State bears the burden of proving a willful and substantial violation of probation by competent evidence. Stewart v. State, 926 So.2d 413 (Fla. 1st DCA 2006). Here, the trial court’s probation order never set forth how many community service hours Ballien was required to complete monthly in lieu of paying her monthly costs. Nor did the State present testimony from Ballien’s probation officer that he had instructed her as to how many hours of community service she was required to complete each month. Therefore, the State failed to meet its burden of proving that Ballien willfully and substantially violated her probation. See Pollard v. State, 930 So.2d 854 (Fla. 2d DCA 2006)(holding the omission from a probation order of a specified date by which a probationer is required to complete a particular task as a condition of probation combined with the fact that the probation is not at the end of his probationary period results in the State’s inability to prove a willful and substantial violation of the condition).

Accordingly, Ballien’s adjudication order is reversed.

REVERSED.

THOMPSON and TORPY, JJ., concur.

      . Because of our disposition in this matter, we do not reach the issue of whether the probation officer could determine the number of hours required on a monthly basis in the absence of a court order designating the number.


author: EYANDER, J.

text:
    Sherman DORSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1310.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   EYANDER, J.

Dorsey was charged in Count I of his indictment with first degree felony murder with the underlying felony being aggravated child abuse and in Count II with the felony of aggravated child abuse. He was convicted after a jury trial on both these counts. His primary argument on appeal is that the felony murder conviction must be set aside pursuant to Brooks v. State, 918 So.2d 181 (Fla.2005), cert. denied, — U.S. -, 126 S.Ct. 2294, 164 L.Ed.2d 820 (2006). We disagree.

In Brooks, the defendant killed an infant child by a single act of stabbing the child. Brooks argued the state was precluded from relying on the felony murder statute to prove first degree murder because the act constituting the underlying felony of aggravated child abuse was the identical act which caused the child’s death. Our supreme court agreed, finding “the act constituting the aggravated child abuse merged into the infant’s homicide.” Brooks at 198.

In its opinion, the court found its prior decision of Lukehart v. State, 776 So.2d 906 (Fla.2000), cert. denied, 533 U.S. 934, 121 S.Ct. 2561, 150 L.Ed.2d 726 (2001) and the Fourth District Court of Appeal’s decision of Mapps v. State, 520 So.2d 92 (Fla. 4th DCA), rev. denied, 528 So.2d 1182 (Fla.1988), to be distinguishable. In Lukehart, the defendant was convicted of first degree felony murder and aggravated child abuse. The qualifying felony was aggravated child abuse. The court upheld both convictions, noting:

Finally, in aggravated child abuse cases there is ordinarily overt physical violence which is directed towards a child. By specifically including the category of aggravated child abuse within the felony murder statute, the legislature clearly contemplated that both charges can be made where violence directed at the child results in the death of the child.

Lukehart at 923.

The court further noted the jury’s verdict was supported by the medical examiner’s testimony that the baby died of injuries caused by blunt trauma from five blows to her head. Lukehart at 922.

In Mapps, the defendant was convicted of first degree felony murder after a non-jury trial. The underlying felony specified in the indictment was aggravated child abuse. The only facts set forth in Mapps were: “[A] ten month-old child died of a fractured skull, caused by the defendant throwing, shaking, or striking the child.” Mapps at 93. In affirming the defendant’s felony murder conviction, our sister court held:

It is obvious that our legislature did not intend that the felonies specified in the felony-murder statute merge with the homicide to prevent conviction of the more serious charge of first-degree murder.

Mapps at 93.

In analyzing Lukehart and Mapps, the Brooks court acknowledged that generally aggravated child abuse can be a separate charge and also serve as the underlying felony in a felony-murder charge. Brooks at 198. Therefore, it appears the Brooks holding is limited to those unique cases in which there is a single instantaneous act by the defendant which constitutes both the aggravated child abuse and the act causing the child’s death.

In the present case, the facts supported a finding that the aggravated child abuse committed by Dorsey was not a single instantaneous act. Dorsey had been the almost four month-old child-victim’s sole caregiver for approximately eight hours. When the child’s mother left the victim in Dorsey’s care, the child was healthy. When the mother returned, the child was gasping for breath with her eyes rolling in her head. Paramedics arrived shortly thereafter. The paramedics found the child was in respiratory distress with a very rapid heartbeat. She did not respond to stimuli. Various tests, including a CT scan, were performed on the child after her arrival at the hospital. The scan revealed a swelling of the brain. Two urine samples tested positive for cocaine.

Dr. John Tilelli, an intensive care physician and toxicologist, was the child’s primary treating physician after her arrival at Arnold Palmer Hospital for Children and Women. Dr. Tilelli testified the victim suffered from some of the most severe retinal hemorrhaging he had seen in his practice. The child’s other conditions— cerebral swelling, diffuse axonal injury and intracranial bleeding led Dr. Tilelli “to the inescapable conclusion” that the child was a victim of shaken baby syndrome. In his opinion, the injury occurred as a result of the child’s “very vulnerable brain” being rapidly accelerated and decelerated and literally torn from the spinal cord.

Dr. Tilelli’s opinion was supported by the medical examiner. The medical examiner found areas of hemorrhaging in the brain and in the retinas. The medical examiner concluded the cause of death was subdural hemorrhaging or hematoma due to shaken baby syndrome.

Additionally, there was evidence the victim had suffered a torn frenulum — the small web of tissue under the tongue. The evidence was that the most common way a torn frenulum occurs is from the forceful intrusion of an object, such as a bottle. Although the torn frenulum was not causally related to the child’s death and was not alleged to have resulted from aggravated child abuse, such evidence would support a conclusion that the child had been roughly handled for more than a single moment in time. Indeed, we question whether shaking a child to death could ever be considered a single instantaneous act.

We conclude the facts in this case are readily distinguishable from Brooks and affirm Dorsey’s convictions for first degree felony murder and aggravated child abuse.

We write to address one other issue. The record reflects the prosecutor made several improper statements in her closing argument, including demanding justice for the victim and referencing matters not in evidence. These types of argument have previously been condemned by our court. Servis v. State, 855 So.2d 1190 (Fla. 5th DCA 2003); Thornton v. State, 767 So.2d 1286 (Fla. 5th DCA 2000); Blackburn v. State, 447 So.2d 424 (Fla. 5th DCA 1984). Indeed, this prosecutor has previously been criticized by this court for improper closing argument. Fullmer v. State, 790 So.2d 480 (Fla. 5th DCA 2001).

In this case, the able trial judge correctly sustained defense objections to the improper statements made by the prosecutor and appropriately instructed the jury to disregard the prosecutor’s comments. The trial court acted within its discretion in denying Dorsey’s motions for mistrial. But for the manner in which the trial court dealt with these improper comments by the prosecutor, our decision might have been different. It is difficult to understand why an experienced prosecutor would jeopardize this case with her improper argument. Counsel is reminded of her obligation to present argument so that the cause may be decided according to the evidence and the law.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.

      . Dorsey was also convicted of culpable negligence and possession of cocaine less than 28 grams. We affirm the convictions on these counts without further discussion.

      . § 782.04(l)(a)2, Fla. Stat.


text:
    Michelle Lee HINTON, Appellant/Cross-Appellee, v. SUPERVISION INTERNATIONAL, INC., Appellee/Cross-Appellant.
    No. 5D05-2522.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      N. James Turner, of N. James Turner, Esq., P.A., Orlando, for Appellant/Cross-Appellee.
    Marc P. Ossinsky of Ossinsky & Cath-cart, P.A., Winter Park, for Appel-lee/Cross-Appellant.
   PALMER, J.

Michelle Lee Hinton appeals the final judgment entered by the trial court in favor of Supervision International Inc., following the entry of the trial court’s order granting Supervision’s motion for entry of a judgment notwithstanding the verdict (JNOV). Concluding that Supervision’s post-trial motion was improperly granted, we reverse and remand for reinstatement of the jury’s verdict.

When reviewing an order granting a JNOV, an appellate court views the evidence in the light most favorable to the non-moving party, resolves all conflicts in the evidence in favor of the non-moving party, and construes every reasonable conclusion which may be drawn from the evidence in favor of the non-moving party. Russell v. KSL Hotel Corp., 887 So.2d 372 (Fla. 3d DCA 2004). Entry of a judgment notwithstanding the verdict is appropriate only in situations where there is no evidence upon which a jury could rely in finding for the non-moving party. Id.

Hinton initially filed a complaint against Supervision alleging claims of sexual harassment and retaliation in violation of The Florida Civil Rights Act, Chapter 760 of the Florida Statutes. Hinton later amended her complaint by dropping her claim for sexual harassment, thereby making her claim of retaliation, pursuant to section 760.10(7) of the Florida Statutes, the sole basis of her lawsuit.

A jury trial was held on Hinton’s amended complaint. Prior to trial, both parties stipulated to the following facts:

1) Hinton started working for Supervision in approximately February of 1997.
2) The last position that Hinton held with Supervision was that of production expediter.
3) The Charge of Discrimination filed by Hinton with the Florida Commission on Human Relations claiming that she had been sexually harassed was faxed to Supervision on September 2, 2003, at approximately 3:00 p.m.
4) Hinton was terminated from her employment with Supervision on September 2, 2003, at approximately 4:20 p.m.

Reviewing the trial transcript in the light most favorable to Hinton reveals the following facts testified to at trial. In March of 2003, Hinton had a discussion with Timalin Hayes, the human resources director at Supervision, regarding Hinton’s complaint of sexual harassment by Mike Vega, a coworker. Hinton told Hayes that Vega touched her inappropriately and that she asked him to stop but he refused. Hinton stated that Vega was grabbing her knee, grabbing her, asking her in Spanish to kiss him, running his fingers up her side, running his fingers through her hair, hiding in the women’s bathroom to scare her, and on one occasion picking her up over his shoulder. A meeting was held with Vega and Hayes to discuss Hinton’s complaint. Vega was upset that Hinton reported him to human resources. Vega told Hinton that she was crazy and that he never did what she accused him of doing. However, at the conclusion of the meeting, Vega apologized for his conduct. Hinton told Hayes that she thought she could still continue to work in the same department with Vega. Hayes told Hinton that she was going to have Vega written up by their supervisor, Roy Archer. When Hinton discovered that Archer never wrote Vega up regarding Hinton’s complaints of sexual harassment, she was upset and felt her complaints had been pushed under the rug. Brad Kingstone, the CEO of Supervision, had a meeting with Hinton and Hayes. During the meeting, Kingstone assured Hinton that everything would be taken care of and that if she had any other problems she should contact him. After later reviewing the minutes of the meeting, Hinton became upset because Kingstone wrote in the minutes that he thought she was exaggerating her complaints. Hinton told Kingstone that there were other female employees that had been sexually harassed by Vega. Hinton wanted to prove to Kingstone that Vega had engaged in a pattern of sexually harassing female employees and that she was not exaggerating her claims against him. Kingstone became very angry with Hinton and told her she was wasting his time and that she had no right to be talking to other employees about this issue. Kingstone told Hinton that if she came to him with anything else about sexual harassment, he would fire her. Later that day, Hinton was written up by Archer for investigating sexual harassment at Supervision. During her meeting with Archer, Kingstone came in and started screaming at Hinton that she was immature, she was disrupting the company, she was wasting their time and she would be fired if she continued talking about sexual harassment. Archer told Hinton to sign the write-up. Hinton refused because she thought it was an act of retaliation against her for bringing new information to Supervision’s attention regarding her sexual harassment claim and because the write-up was false. After Hinton received the write-up, she decided to consult legal counsel. On September 2nd, Hinton met with an attorney. She filed her charge of discrimination against Supervision during her consultation with her attorney at around 3:00 p.m. that same day. She returned to work at 4:10 p.m. that afternoon. When she came in the door, another co-worker told her that Kingstone was looking for her and that he was in a rage. Shortly thereafter, King-stone found Hinton and screamed at her that they needed to talk in the conference room. Hinton did not want to discuss anything with Kingstone because she wanted her lawyer to be present. When she asked Kingstone why he wanted to talk to her for the second time, Kingstone told her to clear out her desk, that she was fired, and he told Hayes to get Hinton out of there. Hinton computed her lost wages to be approximately $35,000.

The jury returned a verdict finding that Hinton was unlawfully terminated in retaliation for filing a charge of discrimination and awarding her $10,000 in damages for back pay.

Thereafter, Supervision moved for a JNOV. The trial court granted the motion and entered judgment against Hinton.

On appeal, Hinton claims that the trial court erred in granting Supervision’s JNOV motion. We agree.

Section 760.10(7) of the Florida Statutes provides as follows:

760.10. Unlawful employment practices
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

§ 760.10(7), Fla. Stat. (2003).

In Guess v. City of Miramar, 889 So.2d 840 (Fla. 4th DCA 2005), the Fourth District explained:

Section 760.10(7), Florida Statutes, is virtually identical to its Federal Title VII counterpart, 42 U.S.C. § 2000e-3(a). The FCRA [Florida Civil Rights Act] is patterned after Title VII; federal case law on Title VII applies to FCRA claims. Castleberry v. Chadbourne, Inc., 810 So.2d 1028, 1030 (Fla. 1st DCA 2002). See also Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385 (11th Cir.1998).

Id. at 846 n. 2.

Title VII’s retaliation provisions specifically protect two types of activity: opposition and participation. See Equal Employment Opportunity Comm’n v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir.2000). Under its opposition clause, an employer may not retaliate against an employee because the employee “has opposed any practice made an unlawful employment practice by this subchapter.” See 42 U.S.C. § 2000e-3(a). Under its participation clause, an employer may not retaliate against an employee because the employee “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” See Id.

Here, Hinton claims that her activities were protected by the participation clause of section 760.10(7) of the Florida Statutes. In order for Hinton to establish a prima facie retaliation case, in addition to filing formal charges with the Equal Employment Opportunity Commission (EEOC) or its designated representative, she was required to demonstrate: (1) a statutorily protected expression; (2) an adverse employment action; and, (3) a causal connection between the participation in the protected expression and the adverse action. Russell v. KSL Hotel Corp., 887 So.2d 372 (Fla. 3d DCA 2004). Hinton met all the requirements to demonstrate a prima facie retaliation case. First, Hinton filed a claim with the Florida Commission of Human Relations. Second, she was terminated from her employment after she filed the claim. Third, Hinton was terminated within one hour after the claim was faxed to Supervision, after being previously threatened by Kingstone that she would be fired if she wasted any more of his time with her claim that Vega had engaged in a pattern of sexual harassment. As such, Supervision’s motion for JNOV should have been denied.

In granting Supervision’s motion, the trial court improperly added an additional requirement to Hinton’s burden of proving a prima facie case of retaliation. Specifically, based on the authority of Mattson v. Caterpillar, Inc., 359 F.3d 885 (7th Cir.2004), the trial court concluded that Hinton had the burden of proving that she filed her charge of sexual harassment with the Florida Commission of Human Relations in good faith. The trial court erred in so ruling.

First, Hinton’s claim at trial was only on the retaliation claim. Hinton dropped her claim of sexual harassment prior to trial. Thus, the issue of whether Hinton filed her claim of sexual harassment with the Florida Commission on Human Relations in good faith was not relevant to the case.

Second, Hinton’s situation can be factually distinguished from Mattson. Specifically, in Mattson a male employee filed a charge with the EEOC claiming that a female supervisor sexually harassed him when her breast brushed against his arm on a single occasion. Mattson, 359 F.3d at 888. Evidence was presented by a coworker that Mattson’s goal in filing his claim was to get the female supervisor “out of here anyway possible.” Id. The Seventh Circuit held that the male employee’s charges were unreasonable, meritless, and motivated by bad faith. Id. at 892. Unlike Mattson, the trial court in this case stopped short of finding that Hinton filed her complaint maliciously or in bad faith.

However, even if we were to assume arguendo that the trial court was correct that a showing of good faith was an element of Hinton’s burden of proof, the jury’s verdict in the instant case was supported by evidence or inferences that Hinton filed her claim of retaliation in good faith.

In that regard, accepting, as we must, Hinton’s evidence as being true, and interpreting such evidence in the light most favorable to her position, Hinton filed her charge of retaliation because she was 'written up for bringing to the attention of Supervision evidence that Vega had engaged in a pattern of sexually harassing female employees. Furthermore, when Hinton decided to consult a lawyer who advised her to file a claim against Supervision, she was abruptly fired once Supervision received notice of the claim. This evidence supports the conclusion that Hinton’s retaliation claim was submitted in good faith. As a result, Supervision’s motion for JNOV should have been denied. Accordingly, we need not reach the issue of whether good faith must be shown in order to prevail on a claim based on the participation clause.

Supervision argues on cross-appeal that, if this court decides to reverse the trial court’s order in the main appeal, a new trial on liability and damages is required, contending that the jury’s verdict awarding Hinton $10,000 for back pay had no basis in the record. We disagree.

When a trial court denies a motion for new trial, the district court of appeal reviews that determination using an abuse of discretion standard. Wilson v. The Krystal Co., 844 So.2d 827 (Fla. 5th DCA 2003). If the evidence supports an award of damages, the award may not be disturbed by the trial court. Phillips v. Ostrer, 481 So.2d 1241 (Fla. 3d DCA 1986).

Here, the trial court made a pretrial ruling that no evidence of the results of Hinton’s unemployment compensation case would be allowed to be presented to the jury. However, at trial, Kingstone testified almost immediately regarding Hinton’s unemployment compensation claim.

During deliberations, the jury asked the trial court the following question: “Has the plaintiff been working for the last two years or collected unemployment in that time?” The trial court replied: “You should rely upon your notes and collective recollection of the testimony.” Subsequently, the jury found that Hinton suffered compensatory damages of $10,000.

Here, the jury may well have determined that the amount of Hinton’s back pay should be reduced because testimony was given at trial that she was receiving unemployment benefits. Therefore, sufficient evidence was presented at trial to support the verdict awarding Hinton $10,000 in back pay.

REVERSED and REMANDED for reinstatement of the jury’s verdict.

THOMPSON and TORPY, JJ„ concur.

      . Interestingly, the federal circuit courts are not in agreement on the issue of whether a claim under Title VII's participation clause must be filed in “good faith". Some courts have held that charges made under both the opposition clause and the participation clause include a reasonable, good faith requirement. See Mattson. Other federal courts have held that a plaintiff merely has to file a charge with the EEOC, regardless of whether it was filed in good faith or not, to be protected under the participation clause. See Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir.2000) (holding to establish a claim of retaliation under Title VII's participation clause, plaintiff must make a prima facie case by showing that defendants discharged him because he filed a claim with the EEOC). The Eleventh Circuit has refused to decide whether the requirement of good faith applies to a participation clause claim. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455 (11th Cir.1998) (stating: "Because we conclude that the facts of this case, viewed in the light most favorable to Wideman, show that Wideman had a good faith, reasonable basis for filing her charge, we need not decide whether protection from retaliation under the participation clause is conditioned by a good faith, reasonable basis requirement.”); also Soto v. Bank of America, NA, 2005 WL 2861116, 10 n. 5 (M.D.Fla. Nov. 1, 2005) (explaining that the court gave Soto the benefit of the doubt on the issue of whether she had a good faith basis for filing her claim and found this element satisfied by the filing of her charge).


text:
    KAILIN HU, Jack Johnson, Allen Edelberg, Appellants, v. HAITIAN HU, Appellee.
    No. 5D06-308.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.
    Stephen G. Murty, Ocala, for Appellants.

      Thomas Johnson and Pamela Hubbell Cazares of Chamblee, Johnson & Haynes, P.A., Brandon, and Xiao Bing Xu of the Law Offices of X. Bing Xu, Orlando, for Appellee.
   PALMER, J.

In this non-final appeal, defendants Kai-lin Hu (Kai), Jack Johnson, and Allen Edelberg challenge the trial court’s non-final order granting plaintiff Haitian Hu’s motion for an ex parte temporary injunction. Having determined that the complaint and supporting affidavits were legally insufficient to support the entry of a temporary injunction without notice, we strike the temporary injunction order.

Haitian Hu (Haitian) filed suit against the defendants alleging claims for enforcement of a distribution agreement, declaratory judgment, damages, account stated, breach of fiduciary duty, theft and conversion, conspiracy, and tortious interference with advantageous business relations. In the complaint, Haitian alleges that he is the 60% majority shareholder in Playcom, Inc., a Florida corporation which imports and distributes computer game accessories. Kai is Haitian’s daughter, and she is a 40% shareholder in Playcom. The complaint alleges that the two remaining defendants are Kai’s roommates.

The complaint further alleges that Haitian is the owner of a factory located in China which produces computer game accessories and that he provided all of the financial backing for Playcom so that it would operate as a distributor of his product line in Florida. The complaint states that Haitian discovered that Kai was misappropriating corporate funds for her personal use, that Kai refused Haitian’s requests for periodic accountings of Playcom’s financial reports, and that she refused to allow Haitian access to the corporate books. The complaint avers that, in an effort to reach an agreement, the parties decided to separate their interests in Playcom. After negotiating, the parties executed a Distribution Agreement. Said agreement purportedly set forth a distribution of Playcom’s corporate assets, including inventory and goods that were in the process of being shipped from China to Florida.

The complaint alleges that Kai later changed her mind and wanted to alter the terms of the parties’ Distribution Agreement by demanding more money. When the parties could not reach an agreement, Kai called the police who then issued a notice of trespass warning against Haitian. The complaint avers that Haitian was not permitted to enter Playcom’s corporate premises nor have access to its corporate assets.

The complaint also avers that two containers of goods shipped to Playcom from China arrived at Playcom, and the defendants unloaded the containers instead of delivering them to Haitian. The complaint alleges that Haitian feared that the defendants would sell the contents of the two containers without making payments which are due him. The complaint further avers that the contents of the two containers were intended for sale during the Christmas season and that, “if not sold within the Christmas season, would lose their value”.

After filing his complaint, Haitian filed a motion seeking an ex parte temporary injunction. In the motion, Haitian incorporated all of the allegations set forth in his complaint, and then he alleged that the defendants were selling the goods which he had shipped from China to Playcom without paying Haitian for them. The motion alleged that the goods would lose their value if not recovered by Haitian and sold within the Christmas season, and that any advance notice to the defendants of a hearing on his injunction motion would allow the defendants to further deplete Play-com’s inventory. Attached to the motion was an affidavit authored by Haitian.

Upon review of Haitian’s filings, the trial court issued an ex parte injunction granting Haitian temporary injunctive relief. Among other things, the injunction order directed the defendants to immediately deliver to Haitian the goods described in the parties’ Distribution Agreement, to peacefully surrender to Haitian the current business premises as well as all corporate records, and to cease from interfering with Haitian’s property or dissipating corporate assets. The order also voided the trespass notice issued against Haitian, and ordered Haitian to post a $10,000.00 bond. The defendants filed a timely appeal from the injunction order.

The defendants argue that the trial court erred in granting Haitian’s motion for an ex parte temporary injunction. We agree.

“The purpose of a temporary or preliminary injunction is not to resolve disputes, but rather to prevent irreparable harm by maintaining status quo until a final hearing can occur when full relief may be given.” Michele Pommier Models, Inc. v. Diel, 886 So.2d 993, 996 (Fla. 3d DCA 2004)(citing to Grant v. Robert Half Inti, Inc., 597 So.2d 801 (Fla. 3d DCA 1992)). “A preliminary injunction is an extraordinary remedy which should be granted only if the party seeking the injunction establishes the following criteria: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of the public interest.” Dragomirecky v. Town of Ponce Inlet, 882 So.2d 495 (Fla. 5th DCA 2004)(citing to Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002)). Rule 1.610 of the Florida Rules of Civil Procedure provides in relevant part:

Rule 1.610. Injunctions
(a) Temporary Injunction.
(1) A temporary injunction may be granted without written or oral notice to the adverse party only if:
(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.

Where, as here, a party that is subject to a temporary injunction chooses to file a direct appeal, rather than filing a motion to dissolve the injunction, the scope of appellate court review is limited to the legal sufficiency of the trial court’s order, the complaint, and any supporting affidavits which formed the basis for the court’s order. Yardley v. Albu, 826 So.2d 467 (Fla. 5th DCA 2002). Applying this standard of review to the instant case, we conclude that the instant injunction order must be stricken because Haitian’s pleadings were legally insufficient to justify the imposition of ex parte temporary injunctive relief since the pleadings fail to demonstrate that irreparable harm would be sustained by Haitian if proper notice and an opportunity to be heard were provided to the defendants prior to the imposition of injunctive relief.

The only injuries sought to be avoided by the imposition of an ex parte injunction were the threatened loss of inventory/goods and the improper dissipation of Playcom’s assets. Such injuries fail to qualify as irreparable harm since they are capable of being quantified for the purpose of imposing an award of money damages. Haitian’s filings indicate that the instant controversy is basically a financial dispute between Haitian and his daughter concerning the dissolution of their Playcom business. Haitian’s pleadings do not set forth any allegation of an imminent harm such as a breach of an enforceable restrictive covenant or a misappropriation of trade secrets or customer lists. Therefore, the trial court’s ex parte injunction order must be stricken. See Jefferies & Co., Inc., v. Int’l Assets Holding Corp., 830 So.2d 256 (Fla. 5th DCA 2002)(holding that trial court erred in granting ex parte temporary injunction prohibiting marketing activities of defendant company because there had been no showing that plaintiff company would likely suffer irreparable harm or lacked an adequate remedy at law).

The temporary injunction order is STRICKEN.

THOMPSON and LAWSON, JJ., concur.

      . Appellate jurisdiction is proper pursuant to rule 9.130(a)(3)(B) of the Florida Rules of Appellate Procedure which authorizes appeals from non-final orders which "grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunction”.


text:
    Darius WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3103.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.
    Darius Wilson, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the rule 3.850 motion in Case No. 05-2001CF-035812-A in the Circuit Court in and for Brevard County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, MONACO and TORPY, JJ., concur.


author: MONACO, J.

text:
    WOLF CREEK LAND DEVELOPMENT, INC., Petitioner, v. MASTERPIECE HOMES, INC., Respondent.
    No. 5D06-2962.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      Ronald W. Sikes of Ronald W. Sikes, PLLC, Orlando, for Petitioner.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, for Respondent.
   MONACO, J.

Wolf Creek Land Development, Inc., seeks certiorari review of an order of the trial court that granted the motions of the respondent, Masterpiece Homes, Inc., for a judgment on the pleadings on the first count of Wolf Creek’s complaint in which it sought to foreclose a construction lien, and to dissolve the lis pendens filed by Wolf Creek with respect to the construction project that is the subject of this case. A second count for breach of contract remains to be litigated in the trial court. We deny the petition because Wolf Creek has failed to show that it is entitled to certiorari review.

Certiorari is a “special mechanism” by which a superior court under quite limited circumstances can direct a lower court to send up the record of a pending case so that the higher court can be made fully aware of the “events below and evaluate the proceedings for regularity.” See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 842 (Fla.2001). In order to be entitled to certiorari a petitioner must demonstrate that the order it seeks to have reviewed departs from the essential requirements of law; will cause material injury through subsequent proceedings in the case; and causes irreparable harm. See Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So.2d 221, 222 (Fla. 3d DCA 2000).

Wolf Creek has not demonstrated that it is entitled to issuance of the writ, particularly because the petition fails the first requirement. The primary shortcoming is that there has been no adequate showing that the trial court’s order departs from the essential requirements of law. In considering whether to grant cer-tiorari a reviewing court should examine the seriousness of the error, if any, and use its discretion to correct an error “only when there has been a violation of [a] clearly established principle of law resulting in a miscarriage of justice.” See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995); Combs v. State, 436 So.2d 93, 95-96 (Fla.1983). As explained in Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003), the clearly established law which if violated by an inferior court authorizes a district court of appeal to grant certiorari review, can derive from a variety of legal sources including case law dealing with the same issue, an interpretation or application of a statute, a procedural rule, or a constitutional provision.

The statutory issue raised by Wolf Creek in the present case is certainly debatable, but there appears to be no case law on the matter that has been pointed out by either side or that has been disclosed by our own independent research. As the order is not the subject of a clearly established principle of law, certiorari is not available to review it. Instead, it will have to wait for resolution when and if a plenary appeal is brought. See Stilson v. Allstate Ins. Co., 692 So.2d 979, 982 (Fla. 2d DCA 1997).

We note, in addition, that there is a second reason to decline to issue certiorari in this case. Petitioner has failed to demonstrate that it will suffer an irreparable injury for which there will be no adequate remedy after final judgment. See Haines City. Thus, the petition fails another of the requirements for certiorari.

PETITION DENIED.

TORPY and LAWSON, JJ., concur.


text:
    Mohammed HAMDY, As Natural Parent, etc., Appellant, v. Yahya KIWAN, Appellee.
    No. 5D06-2656.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.
    Fermín Lopez, Orlando, for Appellant.
    Lorenzo Ramunno, Ocala, for Appellee.
   PER CURIAM.

Having considered the parties’ joint stipulation, the trial court’s order entitled “Order on Motion to Dismiss for Failure to Timely Amend,” dated June 20, 2006, is vacated and the cause is remanded for a hearing on Appellee/Defendant’s “Notice of Failure to Timely Comply with Court’s Order and Motion for Dismissal with Prejudice.”

VACATED and REMANDED.

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


author: ORFINGER, J.

text:
    Terry L. MULLINS, Appellant, v. DEPARTMENT OF LAW ENFORCEMENT, etc., Appellee.
    No. 5D06-834.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      Terry L. Mullins, Deltona, Pro Se.
    Joseph S. White, Assistant General Counsel, of Florida Department of Law Enforcement, Tallahassee, for Appellee.
   ORFINGER, J.

Terry L. Mullins appeals an order of the Criminal Justice Standards and Training Commission revoking his certification as a law enforcement officer. On appeal, Mr. Mullins disputes the Administrative Law Judge’s (“ALJ”) findings that he was untruthful; contends that he was denied the assistance of competent counsel; and submits that his former employer, the Sanford Police Department, violated section 112.531, Florida Statutes, the Police Officer’s Bill of Rights, during its investigation of his alleged misconduct. Having thoroughly considered the extensive record, we affirm.

The Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement (“the Commission”) filed an administrative complaint, alleging that Mr. Mullins had committed perjury in an official proceeding and had engaged in sex while on duty, thereby, violating sections 943.1395 and 943.13, Florida Statutes, and/or Florida Administrative Code Rule llB-27.0011(4)(a) and (c). In response, Mr. Mullins filed an Election of Rights form, disputing the allegations set forth in the Administrative Complaint and requesting a formal hearing. A formal hearing was held at which Mr. Mullins was represented by counsel.

Following the hearing, in a recommended order, the ALJ found that Mr. Mullins had committed the alleged misconduct and that the misconduct violated the police officer standards of conduct, as defined by applicable statute and rule. As a result, the ALJ recommended entry of a final order that Mr. Mullins failed to maintain good moral character and failed to qualify for certification as a law enforcement officer. The ALJ further recommended that the Commission revoke Mr. Mullins’s law enforcement officer certification. The parties did not file any exceptions to the recommended order. The Commission entered a final order, which approved and adopted the findings of the recommended order. Mr. Mullins now appeals.

This Court’s review of the Commission’s final order accepting and adopting the ALJ’s findings of fact and conclusions of law is governed by section 120.68, Florida Statutes (2005). See Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982, 986 (Fla.1996). A reviewing court may set aside agency action only when it finds that the action is dependent on findings of fact that are not supported by substantial competent evidence in the record, material errors in procedure, incorrect interpretations of law, or an abuse of discretion. § 120.68(7), Fla. Stat. (2005). When factual findings are reviewed, the court must not substitute its judgment for that of the agency in assessing the weight of the evidence or resolving disputed issues of fact. See § 120.68(10), Fla. Stat. (2005); Malave v. Dep’t of Health, Bd. of Med., 881 So.2d 682, 684 (Fla. 5th DCA 2004); Gross v. Dep’t of Health, 819 So.2d 997, 1002 (Fla. 5th DCA 2002).

Mr. Mullins asks this Court to “uncover the truth, overturn the Administrative hearings [sic] rulings and reinstate [his] Police Officers Certification.” In essence, he asks this Court to reweigh the evidence considered by the ALJ, who determined that Mr. Mullins engaged in misconduct while on duty and that he was untruthful during a sworn interview and at the administrative hearing. The ALJ heard testimony from witnesses, and he was in a position to observe their demean- or and assess their credibility. We conclude that there is substantial competent evidence to support the revocation of Mr. Mullins’s law enforcement officer certification. See Rosenfeld v. Criminal Justice Standards & Training Comm’n, 541 So.2d 745 (Fla. 3d DCA 1989) (acknowledging that the district court of appeal cannot substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact, court held that substantial competent evidence supported the Commission’s revocation of appellant’s certification to be a law enforcement officer).

Next, Mr. Mullins argues that the final order should be overturned because he was denied the assistance of competent counsel. An ineffective assistance of counsel claim is premised on a violation of an individual’s Sixth Amendment right to counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Denise H. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 257, 972 P.2d 241, 243 (1998). No Sixth Amendment right to counsel exists in the context of administrative proceedings involving the revocation of state-issued licenses. See Santacroce v. State, Dep’t of Banking & Fin., 608 So.2d 134, 136 (Fla. 4th DCA 1992) (explaining that while an agency cannot prevent a person from obtaining and utilizing counsel in administrative proceedings, the constitutional guarantee of right to counsel is not applicable to administrative proceedings involving the revocation of licenses issued by the state to those engaged in regulated businesses and professions).

In S.B. v. Department of Children & Families, 851 So.2d 689 (Fla.2003), the supreme court explained the constitutional right to counsel in civil dependency proceedings and its limitations. The supreme court held that the parent “did not have a constitutional right to counsel and therefore could not collaterally challenge the effectiveness of counsel” even though Florida statutes specifically provided the right to counsel in dependency proceedings. Id. at 690. In so holding, the court concluded that in civil dependency proceedings, which do not involve the possibility of criminal charges against the parent or the permanent termination of parental rights, there is no right to pursue a collateral proceeding questioning the competency of court-appointed counsel. The third district court, relying on S.B., held in Prieto v. Florida Department of Business & Professional Regulations, 876 So.2d 633 (Fla. 3d DCA 2004), that a state-certified residential real estate appraiser did not have a constitutional right to counsel in an administrative hearing for license suspension, and, thus, did not have the right to collaterally challenge the effectiveness of his counsel. Based on Prieto, we conclude that Mr. Mullins does not have the right to collaterally challenge the effectiveness of his counsel in the revocation of his law enforcement license proceedings.

Lastly, Mr. Mullins contends that his former employer, the Sanford Police Department, violated the Police Officer’s Bill of Rights enacted in sections 112.531-.535, Florida Statutes, during its investigation of the instant matter. Mr. Mullins argues that the Sanford Police Department commenced an internal investigation of him in the absence of a formal complaint. While section 112.533(1), Florida Statutes (2003), provides that every law enforcement agency shall establish a system for the receipt, investigation, and determination of complaints received by the agency, it does not mandate the receipt of a formal citizen complaint before initiating an internal investigation of a law enforcement officer. See generally Op. Atty. Gen. Fla. 93-61 (1993) (opining that section 112.533 applies to complaint filed with employing agency by any person, whether within or outside the agency). Consequently, we find this argument to lack merit.

For the foregoing reasons, we affirm the Commission’s order revoking Mr. Mullins’s law enforcement certification.

AFFIRMED.

PLEUS, C.J. and GRIFFIN, J., concur.


text:
    DE LAGE LANDEN FINANCIAL SERVICES, INC., Appellant, v. CRICKET’S TERMITE CONTROL INC., etc., et al., Appellee.
    Nos. 5D06-863, 5D06-1147.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      Tracye K. Solove and Robert A. Solove, of Solove & Solove, P.A., Miami, for Appellant.
    Garry D. Adel, of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellee.
   ORFINGER, J.

De Lage Landen Financial Services, Inc. (“DLL”) appeals an adverse final judgment in its breach of lease claim against Cricket’s Termite Control, Inc. d/b/a Cricket’s Pest Control and Donald L. McKamey (collectively, “Cricket’s”). The trial court refused to enforce the lease, finding it to be illegal. Because we find the lease is legally enforceable, we reverse the final judgment. As a result, the attorney’s fee award in favor of Cricket’s is also reversed.

In November 2000, Cricket’s entered into a written agreement with U.S. Ban-corp to lease a Pro Lead PMC Computer Marketing System (“the System”). Mr. McKamey, Cricket’s President, personally guaranteed performance of the lease. U.S. Bancorp subsequently assigned its rights under the lease to DLL. The System is essentially a computer and a program that randomly selects and dials the telephone numbers of potential customers and plays a pre-recorded message when a phone is answered. Cricket’s intended to use the System to offer its pest control services to people who were not existing customers.

In January 2003, Cricket’s received a notice from the Florida Department of Agriculture & Consumer Services (“the Department”) concerning violations of Florida’s No Sales Solicitation Law, section 501.059, Florida Statutes (2003). The notice stated that the Department had received complaints that Cricket’s had been making telephonic sales calls in violation of section 501.059, which prohibits calls involving “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.” § 501.069(7)(a), Fla. Stat. (2003). The notice ordered Cricket’s to stop such telephone calls immediately, and informed it that calls made in violation of section 501.059 would subject Cricket’s to injunc-tive relief, including civil penalties of up to $10,000 per call. Upon receipt of this letter, Cricket’s immediately stopped using the System and quit making lease payments to DLL.

DLL then filed a suit against Cricket’s and Mr. McKamey. In its complaint, DLL alleged that Cricket’s defaulted on its contract, and, as a result, owed DLL damages, court costs, interest, and reasonable attorney’s fees. Cricket’s sole defense was premised on its assertion that the lease was illegal in light of section 501.059 and was, therefore, unenforceable.

A non-jury trial was held before the court. During the trial, Mr. McKamey testified that PMC, the manufacturer, solicited him to purchase the System. During his initial conversation with PMC, Mr. McKamey did not ask about the legality of using the System in Florida. However, Mr. McKamey testified that at a later date, PMC told him that it had checked with its lawyers, and that the System was “perfectly legal.” PMC gave Mr. McKa-mey some references, which he contacted to ensure the System’s legality. U.S. Ban-corp, the original lessor, also informed Mr. McKamey that PMC had other clients in Florida who were happy with the System, which “led [him] to believe that it’s legal.” Mr. McKamey explained that the System arrived with a message that had been prerecorded by PMC. According to Mr. McKamey, he could not change the System to accommodate live messages. When Mr. McKamey turned the System on, it dialed numbers by zip code and then played the pre-recorded message when a connection was made to the number called. Mr. McKamey believed that as long as he did not dial any of the numbers on the “do not call” list, he would be in compliance with Florida law. After he received the notice from the Department notifying him that the System was illegal as it was being used, Mr. McKamey promptly shut down the machine and attempted to contact PMC, only to discover that it had gone out of business.

The trial court entered judgment in favor of Cricket’s and subsequently granted Cricket’s motion for attorney’s fees. Although the trial court made no findings of fact or conclusions of law in its judgment, Cricket’s only defense was the alleged illegality of the lease. In this consolidated appeal, DLL seeks review of both the final judgment and the judgment on attorney’s fees.

The issue we consider is whether the lease agreement is an enforceable contract, or if it is void for violating the Florida Statutes or Florida public policy. Generally, “[a] contract which violates a provision of the constitution or a statute is void and illegal and, will not be enforced in our courts.” Harris v. Gonzalez, 789 So.2d 405, 409 (Fla. 4th DCA 2001). Cricket’s argues, and the trial court agreed, that the parties’ lease agreement was void and unenforceable because its use of the System violated section 501.059’s prohibition of automated telephone solid-tation. We disagree.

A contract is not void merely because a party used the contracted-for item illegally. “If an agreement is capable of being performed in a legal manner, the mere fact that one of the parties to the agreement intended to perform it in an illegal manner will not preclude its enforcement.” 17A Am.Jur.2d Contracts § 225 (2006); see also 17A Am.Jur.2d Contracts § 228 (2006) (stating that “where a contract could have been performed in a legal manner as well as in an illegal manner, it will not be declared void because it was in fact performed in an illegal manner, at least if the performance is not seriously injurious to the public order[;] ... [n]or will a contract be declared void because it might have been performed in an illegal manner, since bad motives are never to be imputed to any person where fair and honest intentions are sufficient to account for his or her conduct”).

While no Florida courts have addressed these specific facts, the Arkansas Supreme Court dealt with the same issue on nearly identical facts in Potomac Leasing Co. v. Vitality Centers, Inc., 290 Ark. 265, 718 S.W.2d 928 (1986). In that case, Vitality Centers entered into an agreement with Potomac, to lease an automated telephone system that was manufactured by a company who was not a party to the action. After making a few payments on the lease, Vitality returned the system to Potomac and ceased payment. Potomac sued Vitality to enforce the lease. Vitality, who had planned to use the system to randomly dial phone numbers and play a recorded message advertising its products, claimed that the contract was void because its intended use was illegal in Arkansas, and, therefore, the subject matter of the lease was also illegal. The trial court agreed with Vitality, but the supreme court overruled that decision. Id. at 928-29.

The Arkansas Supreme Court held that the fact “[t]hat the subject matter of a contract is to be used for an illegal purpose, does not in itself make a contract for the sale of that product void.” Potomac, 718 S.W.2d at 929. In support of its holding, the court cited to 6A Arthur L. Corbin, Corbin on Contracts, § 1519 (1962), which elaborates:

If the terms of a contract and its actual performance are all in themselves lawful, it is not made unlawful by the fact that the subject matter is capable of being put to illegal uses. Fire arms, a house, a motor car, liquors, a fountain pen can all be used for tortious or criminal purposes; but a contract for their sale is not for that reason invalid. Such a bargain is not enforceable by the buyer, however, if he buys with the purpose of making an illegal use of the subject matter. A seller who, with knowledge of the buyer’s illegal purpose, makes the sale and delivers the subject matter, thereby increases the probability that the illegal purpose will be carried out, even though he does not participate in the purpose, urges its abandonment, and hopes for the best. This fact makes the bargain unenforceable by the seller also, if the illegal purpose of which he has knowledge involves the commission of a serious crime or an act of great moral turpitude. In cases other than these, the seller’s knowledge of the purpose does not prevent his enforcement of the bargain, if he in no way participates in the purpose and does not act in furtherance of it aside from making the sale.

Potomac, 718 S.W.2d at 929-30.

In holding that the lease was not void, the Potomac court observed that Arkansas law allows some uses of automated telephone dialing machines, the automated system in question could perform legal functions, and Potomac did not know of or act in furtherance of Vitality’s intended use. Id. at 930. At trial, Cricket’s tried to show that there was no legal use for the System because it could only play prerecorded messages. Seemingly, Cricket’s was focusing on the exception found in section 501.059(7)(b), which allows telephone dialing machines to be used with live messages. While it is unclear whether the System would work with live messages, there are other legal uses of the System. Section 501.059, the section that Cricket’s is accused of violating, governs telephone solicitation, and only applies to a “telephonic sales call,” which is defined as:

[A] call made by a telephone solicitor to a consumer, for the purpose of soliciting a sale of any consumer goods or services, or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.

§ 501.059(1)(a), Fla. Stat. (2003). This definition does not prohibit the use of automated telephone systems for non-solicitation purposes, including for charitable, religious, political, or other purposes. In fact, Oregon law provides a specific exception that allows the use of automated dialing devices for the solicitation of funds by charitable or political organizations or institutions. See Or.Rev.Stat. § 759.290(2)(a) (2003). Thus, even if the System is incapable of being used with live messages, it could have been used in a legal manner.

Other principles also support reversal. The lease at issue is a “finance lease,” as that term is defined in the Uniform Commercial Code. See § 680.1031(l)(g), Fla. Stat. (2003); see also Or.Rev.Stat. § 72A.1030 (2003). A finance lease is a method to finance the acquisition of goods. A lender who enables a buyer to acquire the goods normally is not subject to a refusal by the buyer to repay the loan if the goods turn out to be other than the buyer expected. Similarly, a finance lessee cannot refuse to pay a lessor an agreed payment. 3 William D. Hawkland, Hawkland UCC Series, § 2A-209:01 (Frederick K. Miller, ed. 2006).

Further, both Florida and Oregon have extended the benefits of the classic “hell-or-high-water” clause to finance leases pursuant to section 680.407, Florida Statutes, and section 72A.4070, Oregon Revised Statutes (2003). This provision of the Uniform Commercial Code makes covenants in a finance lease irrevocable and independent, due to the function of the finance lessor in a three-party relationship. Upon the lessee’s acceptance of the goods, the lessee’s promises to the lessor under the lease contract become irrevocable and independent. See § 680.407, Fla. Stat. (2003) (UCC Cmt. 1); Or.Rev.Stat. § 72A.4070 (2003) (UCC Cmt. (g)). But, if the goods are not as contemplated, what recourse does the finance lessee have? The lessee originally dealt with the supplier, who ultimately sold or leased the goods under the contract to the finance lessor rather than to the finance lessee. Hence, the supplier is the party that may be ultimately accountable, and the logical source of recourse for the finance lessee. 3 Hawkland, Hawkland UCC Series at § 2A-209:01.

Finally, this outcome is consistent with the disclaimers contained in paragraph 17 of the lease, which provides:

17. LESSOR’S DISCLAIMERS: Lessor has obtained the Property based on specifications furnished by the Lessee. Lessor does not deal in property of this kind or otherwise hold itself or its agents out as having knowledge or skill peculiar to the Property. Lessee acknowledges that it has relied on its own skill and experience in selecting property suitable to the Lessee’s particular needs or purposes and has neither relied upon the skill or judgment of Lessor nor believes that Lessor or its agents possess any special skill or judgment in the selection of property for Lessee’s particular purposes. Further, Lessee has not notified Lessor of Lessee’s particular needs in using the Property. Lessee understands and agrees that neither the Supplier(s) nor any salesman or any agent of the Supplier(s) is an agent of Lessor. No salesman or agent of supplier is authorized to waive or alter any term or condition of this Lease, and no representation as to the Property or any other matter by the Supplier shall in any way affect Lessee’s duty to pay the rent and perform its obligations as set forth in this Lease. Lessor shall not be liable to Lessee for any incidental, consequential, or indirect damages or for any act, neglect, omission, breach or default by any third party.
LESSOR ASSUMES NO RESPONSIBILITY FOR AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE DESIGN, COMPLIANCE WITH SPECIFICATIONS, CONDITION, QUALITY, WORKMANSHIP, OR THE SAFETY, SUITABILITY, ADEQUACY, OPERATION, USE OR PERFORMANCE OF THE PROPERTY OR AS TO ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR AS TO PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT. ANY DELAY IN DELIVERY SHALL NOT AFFECT THE VALIDITY OF THIS LEASE. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY REPRESENTATION, CLAIM, BREACH OF WARRANTY, EXPENSE OR LOSS DIRECTLY OR INDIRECTLY CAUSED BY ANY PERSON, INCLUDING LESSOR, OR IN ANY WAY RELATED TO THE PROPERTY.

For the foregoing reasons, we reverse the final judgment and remand this matter to the trial court with directions that judgment be entered in favor of DLL. We likewise reverse the attorney’s fees judgment in favor of Cricket’s, and, on remand, DLL shall be entitled to recover its reasonable attorney’s fees and costs as the prevailing party.

REVERSED AND REMANDED.

PLEUS, C.J. and GRIFFIN, J., concur.

      . The lease agreement at issue provides that it "shall be considered to have been made in the state of Oregon and shall be interpreted, and the rights and liability of the parties determined, in accordance with applicable Federal Law and the Laws of the State of Oregon.” Section 759.290, Oregon Revised Statutes (2003), provides:
      (1) No person shall use an automatic dialing and announcing device to solicit the purchase of any realty, goods or services.
      (2) Subsection (1) of this section does not apply to:
      (a) The solicitation for funds by charitable or political organizations or institutions.
      (b) Contacts between persons with an existing business relationship.
      (3) As used in this section:
      (a) "Automatic dialing and announcing device” means equipment that dials programmed telephone numbers and plays a recorded message when the call is answered.
      (b) "Existing business relationship” means a preexisting and continuing course of dealing between parties involving the purchase or sale of realty, goods or services.
      This section is consistent with section 501.059, Florida Statutes (2003), which Cricket's was accused of violating. Section 501.059 states:
      (7)(a) No person shall make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.
      (b) Nothing herein prohibits the use of an automated telephone dialing system with live messages if the calls are made or messages given solely in response to calls initiated by the persons to whom the automatic calls or live messages are directed or if the telephone numbers selected for automatic dialing have been screened to exclude any telephone subscriber who is included on the department’s then-current "no sales solicitation calls” listing or any unlisted telephone number, or if the calls made concern goods or services that have been previously ordered or purchased.

      . Although the Florida Statutes do.not contain a similar blanket exception for specific types of organizations, the Florida Telemarketing Act does carve out an exemption for organizations "soliciting for religious, charitable, political, or educational purposes." § 501.604(2), Fla. Stat. (2003).

      . The Potomac court noted one exception to the general rule that the fact that a contracted-for product can be used in an illegal manner does not in itself make the contract illegal. Such an agreement will be invalid when the seller knows the product will be used in "flagrant violation of the fundamental rights of man and society.” 718 S.W.2d at 929. The record contains nothing showing that DLL or U.S. Bancorp knew of Cricket's planned use of the System. Even if U.S. Bancorp or DLL had known of Cricket’s intentions, Cricket's use of the System was not a flagrant violation of the fundamental rights of man and society.

      . See Black's Law Dictionary 729 (7th ed. 1999) (defining the "hell-or-high-water clause” as "[a] clause in a personal-property lease requiring the lessee to continue to make full rent payments to the lessor even if the thing leased is unsuitable, defective, or destroyed”).


text:
    R.C., a child, and Other Children Similarly Situated, Petitioners, v. JUVENILE COURT JUDGES OF the FIFTEENTH JUDICIAL CIRCUIT, State of Florida and Department of Juvenile Justice, Respondents.
    No. 4D06-4338.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2006.
    Carey Haughwout, Public Defender, Daniel Cohen and Travis Dunnington, Assistant Public Defenders, West Palm Beach, for petitioners.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for respondent State of Florida.

      John Milla, Assistant General Counsel, Tallahassee, for respondent Department of Juvenile Justice.
   PER CURIAM.

We treat the petitions for writs of habe-as corpus as petitions for writs of certiora-ri. We grant the petitions and quash that portion of the circuit court’s order requiring mediation between interested parties in a juvenile case regarding a general policy of shackling juveniles. No provision of a statute or rule of procedure authorizes the circuit court to order mediation of such an issue. See Areizaga v. Bd. of County Comm’rs of Hillsborough County, 935 So.2d 640, 642 (Fla. 2d DCA 2006) (wherein court granted petition for writ of certiorari to quash mediation order issued in a mandamus proceeding contrary to Florida Rule of Civil Procedure 1.710(b)).

We decline to reach the propriety of the shackling policy. That issue is not ripe for review, in that the circuit court has not yet ruled on the petitioner’s motion.

STONE, GROSS and HAZOURI, JJ., concur.


author: ALTENBERND, Judge.

text:
    Brenda “Elaine” EASTERS, Appellant, v. Barbara RUSSELL, M.D., individually, and Barbara Russell, M.D., P.A., a Florida corporation, Appellees.
    No. 2D06-655.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 2006.
    William J. Schifino, Jr., V. Stephen Cohen, and Shane B. Vogt of Williams Schifi-no Mangione & Steady, P.A., Tampa, for Appellant.
    Vance R. Dawson and Laura B. Floyd of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees.
   ALTENBERND, Judge.

Brenda “Elaine” Easters appeals an order denying her motion for attorneys’ fees in a medical malpractice action. She sought fees based on a proposal for settlement under section 768.79, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.442. Because the proposal was an undifferentiated proposal to Barbara Russell, M.D., and her professional association, Barbara Russell, M.D., P.A., we are compelled to affirm the trial court’s ruling. See Lamb v. Matetzschk, 906 So.2d 1087 (Fla.2005). The fact that the professional association is entirely owned and controlled by Dr. Russell, that its liability is purely vicarious for her actions, and that damages could not be logically apportioned between these two defendants is apparently not a basis to permit such an offer of judgment. The fact that the offer permits either or both defendants to pay the proposed settlement and gives them the option to determine whether or how to apportion their contribution to the settlement is likewise not an exception to the rule announced in Lamb.

Ms. Easters sued Dr. Russell and her professional association in November 2000, alleging that Dr. Russell had negligently left surgical packing gauze in her abdomen during surgery in 1998. The case was tried in 2005, and the jury returned a verdict in favor of Ms. Easters in the amount of $22,500.

Following trial, Ms. Easters filed a timely motion for attorneys’ fees, relying on a proposal for settlement in the amount of $7499.99 that had been served on Dr. Russell and her professional association in September 2002. The proposal offered to settle all claims asserted against both Dr. Russell and her professional association for this amount. It states: “Upon acceptance of this Proposal, and payment in full of the proposal amount set forth below by Russell, and/or Russell, P.A., Easters will fully release Defendants and their insur-anee carriers from all claims arising out of the incident described in Easters’ Complaint.” It further explained that the $7499.99 could be paid by Dr. Russell, her professional association, “or any combination thereof.”

Dr. Russell and her professional association argued in the trial court that this proposal for settlement was not enforceable under rule 1.442 because it did not contain separate settlement amounts for each defendant and was an “undifferentiated” offer under the holding in Lamb. Ms. Easters responded by pointing out that Dr. Russell and her professional association, who were represented by one law firm, had jointly made undifferentiated offers to Ms. Easters both before and after her undifferentiated proposal. The trial court apparently concluded that all parties to this action had failed to comply with the rule and denied fees to Ms. Easters.

The offers made by Dr. Russell and her professional association were properly made under the holding in Barnes v. The Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2003), but that case was overruled in Lamb. We are unconvinced that the format of the offers made by Dr. Russell and her professional association can relieve Ms. Easters of the requirements of rule 1.442 as explained by the supreme court in Lamb.

The parties all agree that Ms. Easters could have sent a proposal to settle only with Dr. Russell for $7499.99, and it would have been valid. Likewise, she could have sent a similar offer to Russell, P.A., and it would have been valid. We are inclined to believe that she could have revealed her intention to dismiss the entire lawsuit with prejudice upon receipt of either of these payments, and the proposals would still have satisfied the holding in Lamb. Her “and/or” approach to the joint proposal, however, did not “state the amount and terms attributable to each party.” At best, the defendants were left to determine the amount and terms of the settlement between themselves.

Admittedly, the professional association is only liable on a vicarious basis in this case. Moreover, there are no other doctors who are members of the professional association and Dr. Russell would appear to have total control of both her personal decision and that of her professional association. The supreme court, however, has held that rule 1.442 must be strictly construed, and we conclude that we cannot validate this proposal even under these circumstances.

In the absence of the decision in Lamb, this court would hold that the provision in rule 1.442(c)(3) stating, “A joint proposal shall state the amount and terms attributable to each party,” permits an “and/or” offer to two defendants when one is only vicariously liable because such an offer states an amount and terms by which either defendant can obtain a dismissal with prejudice. The fact that the other defendant is also dismissed would seem to be of no importance. If the supreme court concludes that we have misread Lamb and that this result is not required by the holding in Lamb, then this decision may conflict with Lamb.

Affirmed.

WHATLEY, J., and CURRY, CHARLES B., Associate Judge, Concur.

      . We assume that our similar holding in RDR Computer Consulting Corp. v. Eurodirect, Inc., 884 So.2d 1053 (Fla. 2d DCA 2004), was implicitly overruled in Lamb.

      . We are aware that Judge Farmer believes that this rule does not need to be strictly construed. See Hauss v. Waxman, 914 So.2d 474 (Fla. 4th DCA 2005) (Farmer, J., concurring); see also Goldman v. Campbell, 920 So.2d 1264, 1267 (Fla. 4th DCA 2006) (Farmer, J., concurring).


author: STRINGER, Judge.

text:
    Armistar J. COLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5704.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Armistar Cole appeals his convictions and sentences for armed robbery and armed kidnapping. Because Cole raised no issues on appeal as to the armed robbery conviction, we affirm that conviction without comment. However, we agree that the evidence presented at trial was legally insufficient to sustain the conviction for armed kidnapping. Therefore, we reverse that conviction and remand with instructions to enter a judgment for false imprisonment with a firearm.

At trial, the evidence showed that the victim and her husband owned a Dollar Store, which Cole had patronized on several occasions. On July 8, 2003, the victim was working in the store when Cole came in to buy some candy. Cole approached the cash register and put money on the counter. When the victim opened the cash register to make change, Cole jumped over the counter and grabbed her by the neck. After a brief struggle, Cole pulled out a handgun. While holding the gun, he took money from the cash register, the victim’s purse, which had been behind the counter, and a DVD player. He also forced the victim to open a file cabinet that was behind the counter, apparently thinking it might contain additional cash. After finding no money in the file cabinet, Cole pointed the gun at the victim and told her to “get in the bathroom and to stay there.”

The victim walked approximately ten feet to the bathroom and closed the door. Cole did not lock the victim in the bathroom and did not block the door. Two to three minutes later, the victim heard a chime that indicated the front door had been opened. At that point, she opened the bathroom door and found that Cole was gone. She then immediately called the police.

At the close of the State’s case, Cole moved for a judgment of acquittal on the kidnapping count, arguing the State had failed to prove a prima facie case of kidnapping because the distance from the cash register to the counter was short and the victim was not locked in the bathroom. The trial court denied the motion. After the jury convicted Cole on the kidnapping charge, Cole filed a motion for new trial arguing that the evidence on that charge was legally insufficient because “the victim was ordered into the bathroom only a few feet away, and was not confined by [Cole].” The trial court denied that motion as well. Cole now raises the same issue in this appeal.

Section 787.01(l)(a), Florida Statutes (2003), defines the term “kidnapping” as:

forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
(2) Commit or facilitate commission of any felony.

While this statutory definition appears straightforward, the supreme court has recognized that “a literal interpretation of subsection 787.01(l)(a)2 would result in a kidnapping conviction for ‘any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery.’ ” Berry v. State, 668 So.2d 967, 969 (Fla.1996) (quoting Mobley v. State, 409 So.2d 1031, 1034 (Fla.1982)). Thus, to limit the reach of the kidnapping statute, the supreme court adopted a three-part test in Faison v. State, 426 So.2d 963 (Fla.1983). Under the Faison test,

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Faison, 426 So.2d at 965 (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)).

In applying the elements of the Faison test, Florida courts have repeatedly held that simply moving a robbery victim at gunpoint from one room to another, even if a door is closed and the victim is ordered not to come out, is insufficient as a matter of law to sustain a conviction for kidnapping. See, e.g., Berry, 668 So.2d at 969; Goff v. State, 616 So.2d 551, 552 (Fla. 2d DCA 1993); Frederick v. State, 931 So.2d 967, 969-70 (Fla. 3d DCA 2006); Elozar v. State, 825 So.2d 490, 491 (Fla. 5th DCA 2002). In reaching this conclusion, the courts have determined that such movement is likely to be involved in any robbery, and there can be no kidnapping when “the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.” Berry, 668 So.2d at 969.

Thus, for example, in Friend v. State, 385 So.2d 696, 697 (Fla. 1st DCA 1980), the defendant, while carrying a firearm during the robbery of an office building, ordered three employees into a bathroom and commanded them to “stay there.” Although the bathroom door was shut during the robbery, the employees opened the door within five minutes and discovered that the defendant had departed. The court reversed the kidnapping convictions, holding that this evidence was legally insufficient to support a kidnapping conviction because the confinement was of minimal duration and was inherent in the nature of the robbery. Id.

Similarly, in Frederick, one robber ordered the restaurant manager to open the safe while another robber ordered two employees at gunpoint to walk into a freezer. 931 So.2d at 969. The two employees did so and were told to stay there. The robber then closed the door to the freezer. After the robbers left, the manager told the employees they could come out, and they did so. In reversing the kidnapping convictions arising from the “confinement” of the two employees, the court stated:

In essence, the state’s evidence in support of the kidnapping charges in this case consisted of the fact that the perpetrator ordered two restaurant employees to go into the freezer, closed the door behind them, and told them to remain in there. This evidence is insufficient, as a matter of law, to sustain the kidnapping convictions.

Id.

The evidence in this case, like the evidence in Frederick and Friend, is insufficient as a matter of law to support the kidnapping conviction against Cole. The movement of the victim in this case was of minimal duration and occurred at the very end of the robbery. It was the type of movement that was likely to naturally accompany a robbery, and the “confinement” ceased naturally with the robbery. Thus, the State’s evidence was legally insufficient to support the kidnapping charge.

That said, however, the evidence presented was sufficient to support a conviction for false imprisonment. Section 787.02(l)(a) defines false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” The Faison test does not apply to the offense of false imprisonment. Fíate v. Smith, 840 So.2d 987, 990 (Fla.2003).

Here, the evidence did establish that Cole restrained the victim against her will by forcing her at gunpoint into the bathroom. This evidence is sufficient to support a conviction for false imprisonment with a firearm. See, e.g., Sanders v. State, 905 So.2d 271 (Fla. 2d DCA 2005) (reversing kidnapping conviction and remanding for entry of judgment for lesser offense of false imprisonment when evidence showed that victim was confined inside her apartment for three hours during sexual battery); Gray v. State, 939 So.2d 1095 (Fla. 1st DCA 2006) (reversing kidnapping conviction and remanding for trial court to enter judgment for false imprisonment based on evidence that the robber dragged store clerk throughout the store during robbery but never bound her or otherwise confined her); Davis v. State, 816 So.2d 840 (Fla. 1st DCA 2002) (affirming conviction for false imprisonment based on evidence that victim was restrained on sofa by defendant holding a gun on her and telling her to “shut up”). Accordingly, we reverse Cole’s conviction for armed kidnapping and remand with directions to the trial court to enter a judgment for false imprisonment with a firearm, see § 924.34, Fla. Stat. (2003), and to resentence Cole accordingly.

Affirmed in part; reversed in part; and remanded with directions.

WHATLEY and CANADY, 33., Concur.


text:
    Mario Reyes ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5338.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 2006.

      Kimberly Nolen Hopkins, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Mario Reyes Ortiz appeals a judgment for aggravated battery with a firearm resulting in great bodily harm, asserting that the trial court committed fundamental error in providing a circular jury instruction on the justifiable use of force. We reverse based upon the controlling precedent of Smith v. State, 933 So.2d 1275 (Fla. 2d DCA 2006); see also Velazquez v. State, 884 So.2d 377, 377-78 (Fla. 2d DCA 2004) (citing Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004)); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004). We write to expressly reject the State’s argument that the error was not fundamental because, as a matter of law, Mr. Ortiz was not entitled to an instruction on self-defense. See, e.g., Sutton v. State, 929 So.2d 1105 (Fla. 4th DCA 2006); Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005).

The charges against Mr. Ortiz arose as a result of a familial dispute between Mr. Ortiz and Mr. Gologram, the adult son of Mr. Ortiz’s girlfriend. On February 6, 2001, Mr. Ortiz and his girlfriend went to Mr. Gologram’s home to deliver gifts to Mr. Gologram’s child. Mr. Gologram did not like Mr. Ortiz and had in fact told his mother not to bring Mr. Ortiz to his home. When Mr. Ortiz and his girlfriend arrived at Mr. Gologram’s home, the two men argued. They both pulled knives while Mr. Ortiz’s girlfriend stood between them attempting to break up the fight. At some point, Mr. Ortiz reached into his car, retrieved a gun, and fired it at Mr. Golo-gram, hitting him in the leg. Mr. Ortiz testified that he did so because he thought Mr. Gologram was getting ready to throw his knife at Mr. Ortiz.

Mr. Ortiz clearly testified that he believed he was at risk of imminent great bodily harm when he drew the gun and shot Mr. Gologram. Although the facts necessary to determine whether that belief was reasonable were disputed, there were sufficient facts that could have supported a jury verdict concluding either that Mr. Ortiz acted in justifiable self-defense or that he did not.

The trial court gave the jury an instruction on the justifiable use of force. Unfortunately, it was the standard instruction, which is a “circular” instruction that incorrectly informs the jury that the use of force cannot be justified if it occurs while the defendant is committing the charged offense. We have repeatedly criticized this instruction and held it to be fundamental error. See Smith, 933 So.2d 1275; Velazquez, 884 So.2d 377; Baker, 877 So.2d 856; Zuniga, 869 So.2d 1239.

Despite this body of precedent, the State argues that we should affirm the judgment based upon the reasoning in Sutton, 929 So.2d 1105, and Thomas, 918 So.2d 327. In these cases, the First and Fourth District Courts of Appeal concluded that no fundamental error occurred in the giving of the circular instruction on self-defense because, as a matter of law, the defendant had not presented evidence entitling him to a proper instruction on self-defense. This appears to rest on a conclusion that an error in an instruction on a defense is harmless so long as the defendant was not legally entitled to have the jury consider the defense.

Without deciding whether we agree with the analysis applied in Sutton and Thomas, we cannot agree that Mr. Ortiz was not, as a matter of law, entitled to a jury instruction on self-defense. A criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory. Upshaw v. State, 871 So.2d 1015, 1017 (Fla. 2d DCA 2004). Even though Mr. Ortiz’s theory of self-defense and the evidence supporting it were debatable, given the testimony that Mr. Gologram was the aggressor, Mr. Ortiz was entitled to receive a legally adequate instruction on self-defense. We therefore reverse the judgment and sentence and remand for a new trial.

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

      . In fairness to the trial court, it should be observed that this case was tried in 2002 before this case law was well established. This appeal is the result of a successful petition alleging ineffective assistance of appellate counsel. See Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005).