text:
    Derek Herman SMITH, Appellant, v. Lisa Renee MELCHER, Appellee.
    No. 2D06-4586.
    District Court of Appeal of Florida, Second District.
    July 27, 2007.

      Philip Steinberg of Philip Steinberg, P.A., Cape Coral, for Appellant.
    No appearance for Appellee Lisa Renee Melcher.
   SALCINES, Judge.

Derek Herman Smith appeals the Final Judgment for Protection Against Repeat Violence which directed that for twelve months he was to have no contact with Lisa Renee Melcher. We conclude that competent, substantial evidence does not support the final judgment and reverse.

Ms. Melcher filed a petition for injunction for protection against repeat violence in accordance with section 784.046, Florida Statutes (2006). The statute creates a cause of action for a victim of “repeat violence” which is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b). “Violence” is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a).

In her petition, Ms. Melcher alleged she had been a victim of repeat violence due to acts committed by Mr. Smith on August 5, 2006, and August 20, 2006. A hearing was conducted to consider the petition. At that hearing, testimony was received from both Ms. Melcher and Mr. Smith. Without further discussion, we affirm the trial court’s determination that Mr. Smith’s statements to Ms. Melcher on August 5, 2006, constituted harassment and qualified as an act of stalking as defined in section 784.048(2).

The second incident alleged in the petition involved actions taken by Mr. Smith at a McDonald’s restaurant which were documented in a police report. Ms. Melcher and her children were patrons of the restaurant. The report indicates that Mr. Smith was circling the McDonald’s in his vehicle and Ms. Melcher was “uncomfortable with him being there.” The police report states that Ms. Melcher informed the officer that she was in a screened area of the restaurant and Mr. Smith was in the parking lot “looking into [the] screened area pointing at her and shaking his head.” The report reveals that when the police officer arrived at the restaurant Mr. Smith was no longer on the premises.

We note that at the hearing Ms. Mel-cher testified that Mr. Smith pointed his finger at her and shook his head only one time.. This act did not constitute stalking because the statute requires repeated acts. See § 784.048(2). Further, the act did not otherwise qualify as an act of violence because it was not an assault or any other offense listed in section 784.046(1)(a). Assault is defined in section 784.011(1), as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” While this preliminary act did not qualify as an act of violence supporting the injunction for protection, the report did continue with a further account of Mr. Smith’s actions that afternoon.

Testimony was presented and the report states that while the officer was taking the report from Ms. Melcher, Mr. Smith’s wife arrived in the restaurant parking lot. Thereafter, Mr. Smith arrived and found the police officer speaking to his wife in the parking lot. The report indicates that Mr. Smith approached the officer “very fast and loud in an in-tim[ida]ting manner.... He was loud and just short of being Disorderly.” Mr. Smith had no interaction with Ms. Melcher during this event.

Because Mr. Smith was interacting with a police officer rather than Ms. Melcher, his action must meet the definition of aggravated harassment as set forth in section 784.048(3), in order to be considered an act of violence directed toward Ms. Melcher. Section 784.048(3) states:

Any person who willfully, maliciously, and repeatedly follows, harasses, or cy-berstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person’s child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree....

Mr. Smith’s action of being loud and intimidating to the police officer did not amount to a threat that placed Ms. Melcher in reasonable fear of death or bodily injury. The officer’s report indicates that Mr. Smith’s actions did not even amount to disorderly conduct. Additionally, had Mr. Smith’s actions created such a fear in the officer, there was no evidence presented to indicate that the police officer was a member of Ms. Melcher’s immediate family in order to qualify as an aggravated assault against Ms. Melcher.

To support an injunction against repeat violence, each incident of violence must be proven by competent, substantial evidence. See Terrell v. Thompson, 935 So.2d 592, 592 (Fla. 1st DCA 2006); Sorin v. Cole, 929 So.2d 1092, 1094-95 (Fla. 4th DCA 2006); Ravitch v. Whelan, 851 So.2d 271, 273 (Fla. 5th DCA 2003). Although there was competent, substantial evidence to support the trial court’s determination that the first incident was an act of violence against Ms. Melcher, the second incident is not so supported. An injunction for protection against repeat violence is properly entered only when there are two incidents of violence within the designated time period. See § 784.046(1)(b). Because the record only supports the finding of one incident of violence, we must reverse the final judgment and remand for the trial court to vacate the injunction.

Reversed and remanded with directions.

FULMER, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . The petition also included allegations concerning actions of Mr. Smith on September 11, 2006, at Ms. Melcher’s place of employment. In its oral ruling, the trial court did not discuss these actions and apparently concluded the acts did not support a finding that an incident of violence had occurred.

      . Section 784.048(2) defines stalking: “Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking. ...” See also § 784.048(1)(a): " 'Harass’ means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.”


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    Billy R. KIDWELL, Appellant, v. GENERAL MOTORS CORP. and Stephen Nichols, Appellees.
    No. 2D05-5935.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2007.
    Rehearing Denied Oct. 31, 2007.

      Billy R. Kidwell, pro se.
    David B. Shelton, Charles P. Mitchell, and Steven I. Klein of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellees.
   KELLY, Judge.

Billy R. Kidwell appeals from an order dismissing with prejudice counts three through five of his complaint against General Motors Corporation (GM) and its employee, Stephen Nichols. With respect to Kidwell’s claims against GM, the order is a nonfinal, nonappealable order because the dismissed claims are interrelated with additional claims that remain pending against GM. See Mendez v. W. Flagler Family Ass’n, 303 So.2d 1 (Fla.1974). Accordingly, we dismiss the appeal as to GM for lack of jurisdiction. We do, however, have jurisdiction to review the dismissal of Kidwell’s claims against Nichols because the order completely disposed of Kidwell’s case against Nichols. See Fla. R.App. P. 9.110(k); Szewczyk v. Bayshore Props., 456 So .2d 1294 (Fla. 2d DCA1984) (stating that a partial final judgment is appealable if it totally disposes of a case against a party). As to those claims, we agree with the trial court that Nichols had immunity for his alleged wrongful actions because they occurred during an arbitration proceeding.

Kidwell filed a multicount complaint seeking to recover damages arising from his purchase of a Chevrolet S-10 pickup truck he alleged was defective. In count four of his complaint, Kidwell alleged that during a Better Business Bureau (BBB) Auto Line Arbitration hearing, Nichols “engaged in intentional misconduct,” lied under oath, and schemed to deny him “meaningful access to Chapter 681.” In count five, Kidwell alleged that Nichols and GM conspired to violate Chapter 681, to misrepresent the facts, and to deceive the BBB hearing officer. Nichols moved to dismiss, contending that he was entitled to absolute immunity for acts occurring during the BBB arbitration. In response, Kidwell argued that litigation immunity did not apply to the BBB arbitration because it was not a judicial proceeding or a quasi-judicial hearing. The trial court rejected Kidwell’s argument and dismissed his claims against Nichols.

An arbitration hearing, although informal, is a judicial or quasi-judicial proceeding. Cassara v. Wofford, 55 So.2d 102, 106 (Fla.1951); Tassinari v. Loyer, 189 So.2d 651, 653 (Fla. 2d DCA 1966). Absolute immunity is afforded to any act occurring during the course of a judicial or quasi-judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior, so long as the act has some relation to the proceeding. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994); Gandy v. Trans World Computer Tech. Group, 787 So.2d 116 (Fla. 2d DCA 2001). Kidwell argues that the BBB arbitration hearing is not a judicial or quasi-judicial proceeding because it lacks due process, is not impartial, and is operated, and paid for, by a private corporation. We disagree.

Kidwell was afforded the same due process and procedural safeguards in the BBB arbitration hearing as are litigants in traditional litigation or other arbitration proceedings. In addition to the opportunity to testify, present evidence, and cross-examine witnesses, if Kidwell was dissatisfied with the decision of the BBB arbitrator he could have sought review by applying to the Florida New Motor Vehicle Arbitration Board, which he failed to do. See § 681.109(2), Fla. Stat. (2005). Furthermore, Kidwell’s contention that the BBB arbitration process lacks impartiality because it is owned and operated by GM is without merit. It is not the manufacturer that operates the BBB Auto Line Arbitration program, but the Council of Better Business Bureaus, Inc., and the procedure is certified and audited annually by the Division of Consumer Services of the Department of Agriculture and Consumer Services. See § 681.108(1), (4), (5), Fla. Stat. (2005).

Accordingly, we conclude that the BBB arbitration hearing is quasi-judicial, and therefore Nichols had absolute immunity for the acts alleged in counts four and five of Kidwell’s complaint.

Affirmed in part; dismissed in part.

DAVIS and CANADY, JJ., Concur.

      . In order to pursue a claim under Florida's Lemon Law, Kidwell was required to submit to arbitration under GM's established informal dispute settlement procedure with Auto Line, a program operated by the Better Business Bureau. See § 681.109(1), Fla. Stat. (2005).

      .Although immunity is an affirmative defense, it can be considered on a motion to dismiss if the complaint demonstrates the existence of the defense. Vaswani v. Ganobsek, 402 So.2d 1350, 1351 (Fla. 4th DCA 1981).

      .See Council of Better Business Bureau, BBB Auto Line Arbitration Rules, http://www.dr. bbb. org/autoline/ alprocess.asp.

        .See id.


author: SALCINES, Judge.

text:
    Zachery Antonio DENEGALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1728.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2007.

      James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Zachery Antonio Denegall appeals the fifteen-year sentence imposed for the offense of possession of amphetamine with intent to sell or deliver, a third-degree felony. Denegall preserved this error for appellate review by filing a timely motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). On appeal, the State concedes error on this point and admits that the maximum sentence which could have been imposed for the offense was five years’ imprisonment. We reverse the fifteen-year sentence.

The rule 3.800(b)(2) motion also claimed that the monetary obligations order included a cost of $370 that was improperly imposed. The form order included a mandatory cost for felony convictions which set out six statutes allegedly authorizing the imposition of the cost in the total amount of $370. This list of statutes included sections 939.185(1)(a) and 775.083(2), Florida Statutes (2004). Dene-gall argued in his motion that the imposition of the cost based upon these statutes was error. We agree.

With regard to section 939.185(1)(a), this court noted in Griffin v. State, 946 So.2d 610, 614 (Fla. 2d DCA 2007), that this mandatory cost statute became effective on July 1, 2004. Denegall’s offenses were committed on January 15, 2004, and this statute was not in effect at that time. The imposition of this mandatory $65 cost was improper. See Griffin, 946 So.2d at 614-15 (certifying conflict with Ridgeway v. State, 892 So.2d 538, 540 (Fla. 1st DCA 2005)). Therefore, we remand for the trial court to strike $65 of the $370 cost imposed pursuant to section 939.185(1)(a).

Denegall’s challenge to the $50 portion of the $370 cost, the imposition of which was based on section 775.083(2), also is meritorious. The amendment to this statute, making the $50 cost mandatory, did not become effective until July 1, 2004. The cost statute in effect at the time Dene-gall committed his offenses was discretionary, and it was error for the trial court to have imposed this cost as a mandatory cost. See Stewart v. State, 916 So.2d 53, 54 (Fla. 2d DCA 2005). Therefore, we remand for the trial court to strike $50 of the $370 cost imposed pursuant to section 775.083(2).

Accordingly, the judgment and consecutive sentence for possession of cocaine is affirmed. The judgment for possession of amphetamine with intent to sell or deliver is affirmed, but the fifteen-year sentence imposed for the offense is reversed. On remand the trial court shall impose a new sentence up to the maximum of five years’ imprisonment for possession of amphetamine with intent to sell or deliver. Additionally, we remand for the trial court to strike from the monetary obligation order the imposition of the section 939.185(1)(a) cost of $65 and the section 775.083(2) cost of $50, both of which were included in the $370 felony mandatory cost. As we did in Griffin, we certify conflict with the First District’s opinion in Ridgeway, 892 So.2d 538.

Affirmed in part, reversed in part, and remanded for further proceedings.

SILBERMAN and VILLANTI, JJ., Concur.

      . §§ 893.03(2)(c)(2), 893.13(1)(a)(2), Fla. Stat. (2003).

      . Denegall also was sentenced to five years’ imprisonment for possession of cocaine. This sentence was to be served consecutively to the sentence imposed for possession of amphetamine. Denegall does not appeal the judgment or the consecutive five-year sentence for this offense.


author: PER CURIAM.

text:
    James RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2326.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    James Riley, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

James Riley challenges the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s summary denial of all claims except for ground seven, in which Riley alleged ineffective assistance of his trial counsel for failure to object to assessments on his sentencing guidelines score-sheet for prior uncounseled misdemeanor convictions. This is a legally viable claim for postconviction relief. Hannah v. State, 876 So.2d 655 (Fla. 2d DCA 2004); Hlad v. State, 585 So.2d 928 (Fla.1991). See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We reject the state’s suggestion, devoid of any legal or factual basis in the record below, that defense counsel “presumably inquired” into whether this was the case at the original sentencing in 1994. Also, we do not find any deficiency of counsel as alleged to have been harmless such that no prejudice could be shown. The record shows that appellant’s sentence, if the misdemeanor convictions were uncounseled and erroneously included, exceeded the recommended and permitted ranges for his total score.

Accordingly, we affirm the trial court’s summary denial of all grounds except for ground seven, and reverse the summary denial of that ground for the trial court to examine the record to determine whether anything conclusively refutes Riley’s claim. If the trial court finds record grounds to refute this claim, it may again deny the motion, attaching to its order all supporting documentation. Otherwise, an eviden-tiary hearing may be required.

Affirmed in part, reversed in part, and remanded.

GUNTHER, WARNER and GROSS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Richard MARGAREJO, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-700.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2007.
    Rehearing Denied Feb. 11, 2008.
    Richard Margarejo, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Richard Margarejo appeals an order summarily denying his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He claims that an alleged defect in the Miranda warning given to him during the police investigation leading to his conviction in 1997 warrants postconviction relief at this time. The trial court denied Mr. Margare-jo’s motion as untimely. Although recent district court decisions have held that similar Miranda warnings are constitutionally deficient, that case law does not currently warrant postconviction relief in any case in which the normal two-year period for the filing of a motion for relief under rule 3.850 has expired. Accordingly, we affirm.

In 1997, Mr. Margarejo was convicted of first-degree murder, armed burglary of a dwelling, and armed robbery with a firearm. He was sentenced to life imprisonment. He appealed the judgment and sentences, which were affirmed in Margarejo v. State, 743 So.2d 1089 (Fla. 2d DCA 1999) (case number 2D97-4178) (table decision). Mandate issued on October 4, 1999.

Mr. Margarejo’s current motion for postconviction relief was filed in December 2005. The motion alleges in part that Mr. Margarejo’s trial counsel was ineffective because he did not seek to suppress Mr. Margarejo’s confession on the grounds that the Miranda warning given to Mr. Margarejo did not inform him of his right to have counsel present during any questioning. See, e.g., Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007); see also M.A.B. v. State, 957 So.2d 1219 (Fla. 2d DCA), review granted, 962 So.2d 337 (Fla.2007) (table decision).

Mr. Margarejo’s motion for postconviction relief was untimely under rule 3.850(b) (requiring motion to be filed within two years after the judgment and sentence became final unless certain exceptions apply). See also Robinson v. State, 943 So.2d 860, 861 (Fla. 4th DCA 2006) (determining that similar defect in Miranda warnings does not constitute newly discovered evidence under rule 3.850(b)(1) to permit extending the two-year time limitation). At this time, Mr. Margarejo cannot establish that there has been a fundamental change in constitutional law meriting retroactive application, thus permitting an extension of the two-year time limitation pursuant to rule 3.850(b)(2). This is because neither the Florida Supreme Court nor the United States Supreme Court has ruled on the issue presented by this postconviction motion. See Witt v. State, 387 So.2d 922, 930 (Fla.1980).

The Florida Supreme Court has recently accepted review of M.A.B., 957 So.2d 1219, a case addressing the sufficiency of similar Miranda warnings. A favorable decision for the defendant in that case might permit Mr. Margarejo to file another postconviction motion arguing that a fundamental change in constitutional law merited retroactive application in his case. Of course, even if the Florida Supreme Court eventually issues an opinion supporting Mr. Margarejo’s argument, he would need to establish that the decision constituted a development of fundamental significance as determined by the three-part test of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). See Witt, 387 So.2d at 929. It seems doubtful that Mr. Margarejo could overcome the third part of this test, but that issue might depend upon the language in the supreme court’s decision. See Chandler v. Crosby, 916 So.2d 728 (Fla.2005).

Affirmed.

VILLANTI, J., and GREEN, OLIVER L., Senior Judge, Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Francisco Dante WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5976.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2008.
    Rehearing Denied March 4, 2008.
    Francisco Dante Williams, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

' WOLF, KAHN, and LEWIS, JJ., concur.


text:
    Johnathan B. COFFEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6556.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2008.
    Rehearing Denied Feb. 28, 2008.
    Johnathan B. Coffey, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: SILBERMAN, Judge.

text:
    Mari HAUETER-HERRANZ, Alexander Cole International Holdings Ltd., a Bahamian corporation, U.S. Stox Capital Management, Inc., a Florida corporation, and Happy Real Estate, Inc., a dissolved Florida corporation, Appellants, v. Agustin Miguel Torres ROMERO, Maria Luz Francisco Fuente, Julio Acebes Gonzalez, Antonio Parro Martin, Luis Alfonso Castelao Medina, Ignacio Bermejo Messeguer, Rafael Salado Osuna, Josep Aulinas Sacrest, Alejandro Miguel Eced, Alvaro Perez Blas, Ana Maria Matas Jimenez, Carlos Sanchez Cortes, and Jose Luis Torrico Bautista, Appellees.
    Markus Haueter, Mari Haueter-Herranz, Alexander Cole International Holdings Ltd., a Bahamian corporation, Rocko Holdings Corporation, a Bahamian corporation, U.S. Stox Capital Management, Inc., a Florida corporation, and Happy Real Estate, Inc., a dissolved Florida corporation, Appellants. v. Francisco Rodrigo Roncero, Antoni Burguera Brunet, Antonio Munoz Alzamora, Miguel Angel Piano Palomo, Mario Sanchez Velasco, Jose Romero Villanueva, Jesus Menendez Menendez, Jose Luis Fernandez Galan, Roman Sanchez Mateu, Juan Vila Roset, Maria Carmen Astizaran Bilbao, Javier Alonso Marmol, Javier Casielles Perez, Emilia Luisa Lafuente Carrion, Tomas Carrasco Almazan, Juan Manuel Garcia Velasco, Guillermo Sanz Vidal, Manuel Bravo Sanchez, Joan Noguerola Serra, Alicia Torrecillas Casado, Elisa Maria Herrera Trujillo, and Adrian Badia Villas, Appellees.
    Nos. 2D05-5686, 2D05-5995.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2008.
    Rehearing Denied March 11, 2008.

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and Sonja K. Burkard of Burkard Law Firm, P.A., Fort Myers (withdrew after briefing); Scott A. Kuhn of Kuhn Law Firm, P.A., Fort Myers (substituted as counsel of record), for Appellants.
    Renee Adwar of Renee Adwar, P.A., Miami, and Elisa Worthington of Garvin & Tripp, P.A., Ft. Myers, for Appellees.
   SILBERMAN, Judge.

In this consolidated appeal from two underlying actions, the appellants challenge the trial court’s nonfinal orders denying their motions to dismiss and to quash service of process. We reverse the orders denying the motions to quash as to Alexander Cole International Holdings Ltd. (Cole) and as to Rocko Holdings Corporation (Rocko). In all other respects, we affirm.

The appellees, a group of thirty-five Spanish citizens (hereinafter the Investors), sued the appellants with respect to investment transactions the appellants had allegedly solicited from the Investors through fraud and other misconduct. The allegations in the two lawsuits are virtually the same, although the named plaintiffs differ in each lawsuit. The Investors asserted claims for fraudulent inducement, fraud, conspiracy to defraud, rescission, and an accounting. Mari Haueter-Her-ranz (Ms. Haueter), Cole, U.S. Stox Capital Management, Inc. (Stox), and Happy Real Estate, Inc. (Happy) are defendants in circuit court case numbers 05-1087 and 05-1101, and Markus Haueter (Mr. Haueter) and Rocko are defendants only in circuit court case number 05-1101. The Haueters, Stox, and Happy filed motions to dismiss the lawsuits, and Cole and Rocko filed motions. to quash service of process.

On appeal, the Haueters, Stox, and Happy raise several issues, arguing that the trial court erred in denying their motions to dismiss: Because they have not demonstrated any reversible error, we affirm the denial of their motions but address certain of their arguments.

Rocko argues that the trial court erred in finding that the Investors properly served it by serving Mr. Haueter as that company’s director. Cole argues that the trial court erred in finding that the Investors properly served it by serving Ms. Haueter as that company’s vice president. Both of these arguments have merit, requiring reversal.

JURISDICTIONAL AMOUNTS

The Haueters, Stox, and Happy argue that the Investors cannot aggregate their claims to establish the jurisdictional threshold in the underlying cases. See State ex rel. City of West Palm Beach v. Chillingworth, 100 Fla. 489, 129 So. 816, 818 (1930) (concluding that separate and distinct claims that do not arise out of the same transaction, circumstances, or occurrences and that do not arise from a continuous course of dealing cannot be aggregated to confer jurisdiction); see also Johnson v. Plantation Gen. Hosp. Ltd. P’ship, 641 So.2d 58, 60 (Fla.1994) (following Chillingworth). However, they have not established that aggregation is the only manner in which the Investors can meet the jurisdictional threshold.

Section 26.012(2)(a), Florida Statutes (2005), provides that the circuit courts have exclusive, original jurisdiction over “all actions at law not cognizable by the county courts.” The county courts have original jurisdiction over matters in which the amount in controversy does not exceed $15,000, and the circuit courts have jurisdiction over those matters in which the .amount in controversy exceeds $15,000. §§ 26.012(2)(a), 34.01(1)(c), Fla. Stat. (2005).

In circuit court case number 05-1087, thirteen plaintiffs (constituting a portion of the Investors) filed an action for damages in excess of $15,000. They alleged that they transferred over $200,000 to Cole’s bank account and that certain of the appellants absconded with the funds. In circuit court case number 05-1101, twenty-two plaintiffs (constituting the remaining portion of the Investors) filed an action for damages in excess of $15,000. They alleged that they transferred approximately one million dollars to Rocko and Cole and that the appellants absconded with the funds.

Ms. Haueter, Stox, and Happy filed motions to dismiss in both cases, and Mr. Haueter filed a motion to dismiss in case number 05-1101. The motions asserted that the trial court lacked subject matter jurisdiction in both cases because it appeared each individual plaintiffs claim was less than $15,000. In her motion to dismiss in case number 05-1087, Ms. Haueter also asserted that “[t]he complaint referred to Plaintiffs composite Exhibit 3 reflecting the individual transfers sent by Plaintiffs.” She claimed that the exhibit “contains hard to read copies of money transfers in Spanish language which seem to show that each individual Plaintiff seemed to have transferred funds below the jurisdictional amount.”

Mr. Haueter’s motion to dismiss was less explicit than Ms. Haueter’s motion. He merely argued that the complaint in case number 05-1101 does not contain a statement or exhibit proving the amount of the individual money transfers on behalf of the individual investors. However, he does not suggest that any of the individual investors cannot meet the $15,000 jurisdictional threshold or claim that their general jurisdictional allegations are in bad faith.

The trial court denied the motions to dismiss, finding that “Plaintiffs have properly and in good faith pled in their complaint the jurisdictional amount appropriate for Circuit Court Jurisdiction.” We agree.

Jurisdiction of the circuit court depends on the good faith allegations of the plaintiffs, not on the trial court’s preliminary determination of the amount which they may actually recover. The rule for “determining the jurisdiction of a court as to the amount involved is the amount claimed in good faith.”

Grunewald v. Warren, 655 So.2d 1227, 1229 (Fla. 1st DCA 1995) (citations omitted). “[T]he valuation fixed by the pleadings is to be accepted as true if made in good faith and not for the illusory purpose of conferring jurisdiction.” Neumann v. Brigman, 475 So.2d 1247, 1249 (Fla. 2d DCA 1985). Any ambiguity with respect to satisfying the jurisdictional amount should be resolved in favor of the plaintiff. See id.

The Investors adequately alleged that the amount in controversy is sufficient to confer subject matter jurisdiction in the trial court. The Haueters, Stox, and Happy have not demonstrated that any individual investor is claiming damages below the jurisdictional threshold, that the allegations were made in bad faith, or that jurisdiction could only exist through the aggregation of individual claims. Further, Ms. Haueter’s argument in case number 05-1087 is based on a document that she acknowledges is unclear and difficult to read. The document is not sufficient to controvert the Investors’ jurisdictional allegations, and the record otherwise does not reflect that any individual investor did not in good faith plead a claim for damages in excess of $15,000. Accordingly, we find no reversible error with respect to the jurisdictional amount.

PERSONAL JURISDICTION BASED UPON FLORIDA RESIDENCE

The Investors alleged in the trial court that the Haueters are Florida residents, that the Haueters and others engaged in acts of fraud and other misconduct, that the misconduct “was conceived, organized, and executed from Florida,” and that “Florida is where the illegal activity was conducted.” In challenging personal jurisdiction the Haueters filed affidavits denying that they had engaged in any misconduct, that they had undertaken any acts in relation to the Investors and the alleged investments, or that they had acted on behalf of others. Mr. Haueter acknowledged that he resides with his wife and children in Palm Beach County. However, he asserted, among other things, that he is a citizen of Switzerland, he resides in Florida on a non-immigrant visa, and he does not consider himself to be a legal resident of Florida because he has no intention of making Florida his permanent place of abode. Ms. Haueter admitted that she resides in Palm Beach County in a home that she purchased in January 2005. However, she asserted that she is a citizen of Spain and Switzerland but resides in Florida on a non-immigrant visa and did not intend to stay in Florida indefinitely.

On appeal, the Haueters argue that the trial court cannot exercise long-arm jurisdiction over them. They acknowledge that they reside in Florida but contend that a Florida court cannot exercise personal jurisdiction over them under the long-arm statute because they have non-immigrant visas, they do not intend to permanently remain in Florida, and they did not engage in any misconduct.

We reject this argument. The Haueters reside in Florida and are being sued in Florida for actions that allegedly took place here. “As to residents of Florida, the Circuit Courts have jurisdiction over them regardless of the county in which they reside and when reached by summons, they become subject to the orders and decrees of the Court.” Patten v. Mokher, 134 Fla. 433, 184 So. 29, 30 (1938); see also Davis v. State, 928 So.2d 442, 448 (Fla. 5th DCA 2006) (same). In Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla.1989), the Florida Supreme Court recognized that the long-arm jurisdiction statute sets forth the legislature’s determination as to “the requisite basis for obtaining jurisdiction over nonresident defendants as far as Florida is concerned.” (Emphasis added).

Even assuming that the long-arm statute is analytically relevant to their circumstances, the Haueters’ affidavits do not establish that they are not engaged in substantial and not isolated activity within this state. See § 48.193(2), Fla. Stat. (2005) (providing for jurisdiction over a defendant who is engaged in substantial and not isolated activity within Florida whether or not the claim arises from that activity); Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co., Inc., 917 So.2d 964, 966-68 (Fla. 3d DCA 2005) (recognizing that the long-arm statute provides for two categories of personal jurisdiction: general jurisdiction under section 48.193(2) and specific jurisdiction under section 48.193(l)(b), and concluding that the defendant’s affidavits were insufficient to contest the propriety of personal jurisdiction over it in Florida); Venetian Salami, 554 So.2d at 502 (stating that when a nonresident defendant wishes to challenge the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts, the defendant must file affidavits in support of his or her position).

Here, the Haueters’ affidavits confirm that they reside in Florida and do not establish that they maintain residences elsewhere or that they are not engaged in substantial and not isolated activity in this state. They have not shown that the trial court erred in denying their motions to dismiss concerning jurisdiction.

AGREEMENT TO ARBITRATE

The Haueters, Stox, and Happy contend in bare-bones fashion that the trial court erred in denying their motions to dismiss because the Investors signed documents containing arbitration agreements. The Investors respond that the arbitration agreements do not apply because the wrongdoing giving rise to their claims occurred before the agreements were signed and because the agreements are ambiguous.

An unsigned arbitration agreement is contained in the appendices submitted to this court, which is apparently an exemplar of agreements allegedly signed by Cole and some or all of the Investors. The agreement provides as follows:

All and any present and future legal disputes possibly resulting from the present Arbitration Agreement for what legal causes ever [sic] (contract demands, inadmissible acts etc.) among the Parties, including those concerning the interpretation and validity of the present Arbitration Agreement shall be subject to an arbitration procedure in accordance with the stipulations of the Arbitration Act, Chapter 168 of the Laws of the Commonwealth of the Bahamas. The execution of claims by Supreme Court of the Bahamas shall be expressly excluded.

The appendices do not include arbitration agreements for all of the Investors or establish that all Investors were parties to arbitration agreements. Further, nothing in the documents provided to this court establishes that the Haueters, Stox, or Happy are parties to any arbitration agreements or that they are entitled to invoke the provisions of any arbitration agreements between the Investors and Cole. In fact, the Haueters asserted in their motions to dismiss that the arbitration agreements require arbitration in the Bahamas, but they acknowledged that they have “no official right to demand arbitration in the Bahamas.”

The agreement language specifies that the disputes that would be submitted to arbitration are “legal disputes possibly resulting from the present Arbitration Agreement.” The Haueters, Stox, and Happy have failed to demonstrate that the Investors’, claims against them are disputes that fall within that description.

The trial court gave several reasons for rejecting the contentions as to arbitration, including that “[t]he arbitration clause in the Cole contract does not govern the present dispute as all of the transfers of funds at issue were done prior to the Cole contract, the alleged wrongdoing occurred before the agreement was signed.” The court also observed that the arbitration language is ambiguous and is to be construed against Cole as the drafter. Based on the limited arguments on appeal and the information contained in the documents provided to this court, we conclude that the Haueters, Stox, and Happy have failed to demonstrate any reversible error by the trial court on this issue.

MOTION TO QUASH SERVICE ON ROCKO

In case number 05-1101, the Investors alleged in their unsworn complaint that Mr. Haueter “was at all times, at the very least, an agent transacting business for Rocko in the State of Florida.” The return of service for Rocko indicates that Mr. Haueter was served as Rocko’s director “in the absence of any superior officer or director as defined by Florida statute.”

Rocko filed a motion to quash' service of process, alleging that it had not been properly served. In support, it filed an affidavit by Mr. Haueter. He stated in the affidavit that he purchased Rocko, a Bahamian corporation, in 1999 and served as its president for about two or three months while he “set up the framework for the corporation.” He sold Rocko in mid-1999 and, since that time, he has never been an authorized or appointed officer, director, agent, or shareholder of Rocko and has never conducted any business for Rocko in Florida or elsewhere.

The trial court denied the motion to quash, stating that the Investors had. served Mr. Haueter as director of Rocko in compliance with section 48.081, Florida Statutes (2005). Section 48.081 provides in pertinent part as follows:

(1) Process against any private corporation, domestic or foreign, may be served:
(a) On the president or vice president, or other head of the corporation;
(b) In the absence of any person described in paragraph (a), on the cashier, treasurer, secretary, or general manager;
(c) In the absence of any person described in paragraph (a) or paragraph (b), on any director; or
(d) In the absence of any person described in paragraph (a), paragraph (b), or paragraph (c), on any officer or business agent residing in the state.
(2) If a foreign corporation has none of the foregoing officers or agents in this state, service may be made on any agent transacting business for it in this state.

A return of service that is regular on its face is presumed to be valid unless clear and convincing evidence is presented to the contrary. Nat’l Safety Assocs., Inc. v. Allstate Ins. Co., 799 So.2d 316, 317 (Fla. 2d DCA 2001). The party challenging service has the burden of overcoming the presumption of validity. Dep’t of Rev. ex rel. Williams v. Wright, 813 So.2d 989, 992 (Fla. 2d DCA 2002). If the party challenging service “makes a prima facie showing that the return is defective, then the burden shifts to the person acting under the substituted service provision to prove valid service.” Gonzalez v. Totalbank, 472 So.2d 861, 864 n. 1 (Fla. 3d DCA 1985).

Here, the Investors did not submit any evidence in response to Mr. Haueter’s affidavit, and their complaint was unsworn. Although the Investors refer to various documents in a memorandum filed in the trial court, nothing in the appendices reflects that these documents were placed into evidence. The submission of a memorandum and unsworn documents to refute Mr. Haueter’s affidavit was insufficient to meet the Investors’ burden of establishing valid service. See Citizens & S. Bank of Atlanta v. Popkin, 281 So.2d 522, 524 (Fla. 3d DCA 1973) (concluding that once the defendant made a prima facie showing that substituted service was improper, the plaintiffs mere submission of a memorandum without a supporting affidavit was insufficient to meet the plaintiffs burden of establishing valid service). Thus, we reverse the trial court’s order denying Rocko’s motion to quash service.

MOTION TO QUASH SERVICE ON COLE

The Investors alleged in their unsworn complaints that Ms. Haueter “was at all times, at the very least, an agent transacting business for Cole in the State of Florida.” The returns of service indicate that Ms. Haueter was served as Cole’s vice president “in the absence of any superior officer or director as defined by Florida statute.”

Cole filed motions to quash service of process in both of the underlying cases. In support, it filed affidavits by Ms. Haueter. She stated in her affidavits that she has never been an officer, director, agent, or shareholder of Cole. She acknowledged introducing Cole’s president to a bank officer and helping facilitate communication between Cole and the bank. She also acknowledged that at the request of Cole’s president, she allowed her personal address to be used to avoid mailing delay between Florida and the Bahamas. But she stated that she has never had the authority to act for Cole, has not assumed or performed any duties as an officer or agent of Cole, and has not conducted any business in Florida or elsewhere for Cole.

The trial court denied Cole’s motions to quash service of process, again finding that the Investors had complied with section 48.081. However, nothing in the appendices reflects that the Investors submitted any evidence, other than the returns of service, in opposition to Ms. Haueter’s affidavits. For the same reasons that we reverse the trial court’s order denying Rocko’s motion to quash service, we also reverse the orders denying Cole’s motions to quash service.

CONCLUSION

In summary, we affirm as to all issues except that we reverse the trial court’s orders denying the motions to quash service as to Cole and Roeko.

Affirmed in part, and reversed in part.

FULMER and LaROSE, JJ„ Concur.

      . In their appendix, Stox and Happy included only the first two pages of their motions in the two underlying cases, and Ms. Haueter included only the first two pages of her motion in circuit court case number 05-1101.

      . This exhibit is not included in the appendices.

      . The appendices also include an arbitration agreement that was signed by Jose Luis Torri-co Bautista in June 2002. It does not reflect that anyone signed on Cole’s behalf. The language in that agreement is identical to the exemplar.


author: ROTHENBERG, Judge.

text:
    The STATE of Florida, Petitioner, v. Richard RAMBARAN and Danny Pierre-Louis, Respondents.
    No. 3D06-2400.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.

      Bill McCollum, Attorney General; Katherine Fernandez Rundle, State Attorney, and Christine E. Zahralban, Assistant State Attorney, for petitioner.
    Charles G. White, Miami, for respondent Rambaran; Sidney P. Smith, for respondent Pierre-Louis.
    Before SUAREZ and ROTHENBERG, JJ., and FLETCHER, Senior Judge.
   On Motion for Rehearing

ROTHENBERG, Judge.

We grant Richard Rambaran’s (“Ram-baran”) and Danny Pierre-Louis’ (“Pierre-Louis”) (collectively “the defendants”) motion for rehearing, withdraw our former opinion dated October 31, 2007, and substitute the following opinion in its stead.

The State seeks certiorari review of two orders issued by the trial court granting motions filed by the defendants, to sever counts 4 and 5 of the indictment, and to exclude the evidence pertaining to those counts, which the State sought to introduce either as charged crimes or as collateral crimes evidence. Because we conclude that the trial court departed from the essential requirements of the law in excluding this evidence as collateral crimes evidence, and that the exclusion of this evidence will result in irreparable harm, we grant the State’s petition and quash the trial court’s order denying the State’s motion to introduce the evidence pertaining to counts 4 and 5 of the indictment as collateral crimes evidence.

THE EVIDENCE

Leeah Thurston (“Leeah”), who was approximately sixteen years of age, became romantically involved with her neighbor, Rambaran, and gave birth to their son in 1999.

May 15, 2001, Collateral Crimes Evidence

Two years after the birth of their child, Leeah decided to terminate her relationship with Rambaran, and on May 15, 2001, she agreed to meet with him at the hotel room where he was living at the time to discuss his visitation with their son. After briefly discussing their son, Rambaran told Leeah that he wanted to resume their relationship, and when she refused, Ram-baran trapped her in the room, choked her, threatened her with a knife, threatened to kill her and himself, and shoved a towel into her mouth when she attempted to scream. After Rambaran released Le-eah, she called the police, and Rambaran was arrested. He posted bond and was released, and the trial court issued a stay-away order.

Mid-October, 2001, Collateral Crimes Evidence

Despite the stay-away order, Leeah and Rambaran unsuccessfully attempted a reconciliation. In mid-October, 2001, Ram-baran told Leeah that he would not allow her to leave him. They argued, and Ram-baran shoved Leeah across the room into a bureau. When he realized what he had done, Rambaran apologized and allowed Leeah to leave. After this incident, Leeah refused to see Rambaran again.

November 3, 2001-Count 6 of the Indictment (burglary with an assault and/or a battery on Leeah)

On November 2, 2001, Leeah, who was a nursing student and who had worked the evening shift at Mt. Sinai Medical Center, returned home and began studying. Ram-baran called Leeah and asked to see her. Leeah told him she was going to go out to get something to eat and that she would not be home. When Leeah returned at approximately 3:55 a.m. the next morning and opened her car door, Rambaran stepped in front of her door, blocking her exit and demanded that she tell him where she had been. When Leeah tried to exit her ear, Rambaran pushed her back inside, grabbed her head between his hands, and tried to snap her head sideways. When Leeah tried to reach the car horn, Ram-baran pushed her down onto the passenger seat, punched her in the eye, pulled out a kitchen knife, and held it to her neck while screaming that she was cheating on him.

At first, Leeah tried to calm Rambaran down. When she was unable to do so, she tried to hit him with a bottle, but she missed. With the knife pointed to her neck, Leeah asked Rambaran why he was doing this to her. Rambaran responded that he wanted Leeah to go home with him. Leeah, whose eyelid was torn, and whose mouth and face were swollen and bleeding, agreed to go with him, but she requested that he let her go inside her house to clean up first. Once inside, Le-eah ran to her mother’s room and called 911. Rambaran stood outside her home demanding that she open her window. Le-eah refused, and Rambaran left before the police arrived. Leeah was treated for her injuries, received five sutures to her eyelid, and a BOLO was issued for Rambaran’s arrest.

November 26, 2001-Counts 4 and 5 (attempted murder of Shay Williams and Kim Lowery)

Rambaran remained at large for three weeks. During this time, Leeah saw him parked across the street from her house two or three times, and he approached her twice as she was leaving the house with other people. Although Leeah alerted the police several times, Rambaran eluded the police.

At approximately 9:00 p.m. on November 26, 2001, Shay Williams and Kim Lowery were in Leeah’s car in the drive-through lane of a fast food restaurant when Pierre-Louis, who was driving a red Mitsubishi Eclipse rental car, blocked the car Shay Williams and Kim Lowery were in. Rambaran, who was in the car with Pierre-Louis, exited the rental car, approached Shay Williams, and demanded that Shay Williams “give it up,” claiming that the car belonged to him. When Shay Williams refused, Rambaran threatened to kill him. Both Shay Williams and Kim Lowery saw a gun on the front seat of the rental car Rambaran and Pierre-Louis arrived in. Kim Lowery called for help, and when Rambaran and Pierre-Louis saw the police drive past the group, they got back into their rental car and drove off. As Shay Williams and Kim Lowery drove north on N.W. 27th Avenue, Pierre-Louis pulled alongside Williams and Lowery, Rambaran held up a firearm, and he told Shay Williams to get out of the car. In fear for his life, Shay Williams braked fast into a u-turn and sped off towards a police substation with Pierre-Louis in hot pursuit and Rambaran firing at them. One projectile penetrated the vehicle and passed over Kim Lowery’s head, who had crawled into the back seat during the chase. When Shay Williams pulled into the police substation, Pierre-Louis and Rambaran terminated the chase and disappeared. Within two hours of this incident, Rambaran and Pierre-Louis exchanged the red Eclipse for a white Toyota at a car rental agency.

November 27, 2001-Counts 1, 2, and 3 (murder of Latoya Johnson, attempted murder of Leeah, and burglary with an assault and/or a battery)

Shay Williams called Leeah at work and told her what had happened. Leeah, who already had sent her baby out of town, was afraid that Rambaran would see her and Williams together and, therefore, asked a friend to pick her up from work. When Leeah approached her house, she spotted a white car parked nearby. Because Le-eah believed Rambaran was in the car, she became frightened and asked her friend to drive past the house and to continue driving around for a .couple of hours. At approximately midnight, Leeah called her house and spoke to her cousin Latoya and asked her to check to see whether Ram-baran was in the vicinity. Although Latoya could not assure Leeah that Rambaran was not in the vicinity, Leeah decided to return home. Shortly after her arrival, Rambaran called Leeah and asked her if her boyfriend had told her that Rambaran had shot at him earlier. When Leeah denied that Williams was her boyfriend, Rambaran told Leeah he would “catch them” and “bury them both.” He told Leeah that he was going to kill her and her whole family and put “all of y’all in body bags.”

At approximately-2:00 a.m., Rambaran called Leeah again and asked her where she was staying in the house. Leeah refused to tell him and hung up the phone. At approximately 4:00 a.m., Leeah heard Latoya screaming. Latoya was in the room next to where Leeah was sleeping. When Leeah went to Latoya’s room, she found Rambaran straddling Latoya in her bed pressing a pillow against her head as she struggled.

Leeah ran back to her room, locked the door, and called 911. The operator kept Leeah on the line until the police arrived. Leeah heard someone pick up the phone, listen, and then drop the phone.

Latoya sustained six major stab wounds to her head, upper body, neck, and throat, with one wound penetrating through the back of her neck and into her arm. By the time the police arrived, Latoya was unresponsive and Rambaran was gone. Latoya died shortly thereafter from her wounds.

Rambaran fled the scene with Pierre-Louis, who was waiting near Leeah’s house in the white Toyota rental car, which they later exchanged for a Mitsubishi Lancer at the rental agency. Rambaran and Pierre-Louis were subsequently arrested and Rambaran’s blood was found on the passenger side of the white Toyota used during the homicide, attempted murder, and burglary with an assault and/or a battery on November 27.

CERTIORARI REVIEW IS APPROPRIATE IN THIS CASE

On November 26, 2001, the defendants moved to sever counts 4 and 5, which are the attempted murders of Shay Williams and Kim Lowery. In response, the State objected to the severance of these charges, and the State moved to introduce the evidence of the attempted murders as collateral crimes evidence if the trial court granted the defendants’ motion to sever counts 4 and 5. The State argued that the events that occurred on the evening of November 26 were inextricably intertwined with the burglary and attack upon Leeah with a kitchen knife on November 3. The State also argued that the events that occurred on November 26 were inextricably intertwined with the murder of Latoya, attempted murder of Leeah, and burglary that occurred during the early hours of November 27, only a few hours later. The trial court granted the defendants’ motion to sever counts 4 and 5 and denied the State’s motion to admit the evidence as collateral crimes evidence.

Although a trial court’s order granting severance is generally not reviewable by certiorari because severance of charges for trial rarely results in irreparable harm, pretrial orders excluding relevant material evidence are subject to cer-tiorari review. See Richardson v. State, 706 So.2d 1349, 1357 (Fla.1998) (stating that important to the fair administration of criminal justice in this state is the ability of the State to petition the district courts of appeal for certiorari review of pretrial orders rendered in criminal cases); State v. Cruz, 851 So.2d 249, 251 (Fla. 3d DCA 2003) (granting State’s petition for writ of certiorari where the trial court excluded the testimony of a confidential informant as a sanction for prosecutorial misconduct or lack of due diligence, finding that “cer-tiorari review of a non-final pretrial order is appropriate in a case such as this in which, if the defendant is acquitted, the State has no right to a direct appeal”); State v. Charles, 827 So.2d 1107, 1109-10 (Fla. 3d DCA 2002) (granting petition for certiorari where the trial court precluded the State from introducing perpetuated testimony of the alleged victim); State v. Frazier, 753 So.2d 644, 646 (Fla. 5th DCA 2000) (granting State’s petition for writ of certiorari where the trial court excluded the victim’s 911 call).

While the State must demonstrate that the trial court’s order is a departure from the essential requirements of the law resulting in a miscarriage of justice to be entitled to certiorari review, see Combs v. State, 436 So.2d 93, 96 (Fla.1983), this Court held in State v. Steinbrecher, 409 So.2d 510, 511 (Fla. 3d DCA 1982), that “a pretrial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review.” The Florida Supreme Court in State v. Pettis, 520 So.2d 250, 253 (Fla.1988), likewise held that:

The ability of the district courts of appeal to entertain state petitions for certiorari to review pretrial orders in criminal cases is important to the fair administration of criminal justice in this state. Otherwise, there will be some circumstances in which the state is totally deprived of the right of appellate review of orders which effectively negate its ability to prosecute. If a nonfinal order does not involve one of the subjects enumerated in Florida Rule of Appellate Procedure 9.140(c)(1), the state would not be able to correct an erroneous and highly prejudicial ruling. Under such circumstances, the state could only proceed to trial with its ability to present the case significantly impaired. Should the defendant be acquitted, the principles of double jeopardy prevent the state from seeking review; thus, the prejudice resulting from the earlier order would be irreparable.FN2 The filing of a petition for certiorari is an apt remedy under these circumstances.
FN2 The defendant does not suffer the same prejudice because he always has the right of appeal from a conviction in which he can attack any erroneous interlocutory orders.

(Emphasis added).

We conclude that the trial court’s exclusion of relevant material evidence, that is inextricably intertwined with the remaining charged offense, is a departure from the essential requirements of the law which will result in irreparable harm. We, therefore, grant the State’s petition for writ of certiorari.

LEGAL ANALYSIS

The events that occurred on the evening of November 26, 2001, are charged in counts 4 and 5 of the indictment, which include the attempted first-degree premeditated murders of Shay Williams and Kim Lowery. The evidence the trial court excluded by severing these two counts for trial and by denying the State’s motion to introduce the evidence as collateral crimes evidence is as follows.

While there was an open arrest warrant for Rambaran for an armed assault and battery upon Leeah, wherein he is charged with punching Leeah in the eye, holding a kitchen knife to her neck, and beating her, Rambaran was seen casing out Leeah’s house. Rambaran and Pierre-Louis confronted Shay Williams, who Rambaran believed was Leeah’s new boyfriend, and Rambaran threatened to kill Shay Williams. When Shay Williams fled, Ram-baran fired shots into the car, narrowly missing Kim Lowery. When Shay Williams told Leeah what occurred, Leeah was afraid to be seen with Shay Williams or to go home. Therefore, Leeah had a friend pick her up at work, and when she saw Rambaran near her house, she had her friend drive her around for a couple of hours. Wlien Leeah did not return to her home, Rambaran called her and asked her if her “boyfriend” told her what had happened. When Leeah denied that Williams was her boyfriend, Rambaran threatened to “bury them both” and to kill her and her family and put them all in body bags.

To exclude this evidence was error. The excluded evidence is relevant, material, and inextricably intertwined with the events that allegedly occurred only a few hours later. The excluded evidence establishes the entire context out of which the murder of Latoya, the attempted murder of Leeah, and the armed burglary with an assault arose, as charged in counts 1, 2, and 3 of the indictment, and it is necessary to adequately describe the events leading up to the commission of those offenses. The excluded evidence is not only important to establish a continuing claim of chronological events, but also is highly relevant and probative of the perpetrators’ intent, motive, identity, and the absence of mistake.

“The primary test for admissibility of collateral crimes evidence is relevancy.” Irizarry v. State, 905 So.2d 160, 164 (Fla. 3d DCA 2005); see also Williams v. State, 621 So.2d 413, 414 (Fla.1993) (holding that other crimes, whether factually similar or dissimilar to the charged crime, are admissible if the evidence is relevant to prove a matter of consequence other than bad character or propensity). “[T]o prove its case, the State is entitled to present evidence which paints an accurate picture of the events surrounding the crimes charged.” Griffin v. State, 639 So.2d 966, 970 (Fla.1994) (citing Smith v. State, 365 So.2d 704, 707 (Fla.1978)).

Additionally, evidence is inextricably intertwined if it is necessary to: (1) establish the entire context out of which the charged crimes arose, Foster v. State, 679 So.2d 747, 753 (Fla.1996); Hunter v. State, 660 So.2d 244, 251 (Fla.1995); Griffin, 639 So.2d at 970; Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006); Vail v. State, 890 So.2d 373, 376 (Fla. 3d DCA 2004); (2) provide an intelligent account of the crimes charged, Vail, 890 So.2d at 376; Burgos v. State, 865 So.2d 622, 624 (Fla. 3d DCA 2004); Austin v. State, 500 So.2d 262, 265 (Fla. 1st DCA 1986); or (3) adequately describe the events leading up to the crimes. Griffin, 639 So.2d at 969-70; Geske v. State, 770 So.2d 252, 253 (Fla. 5th DCA 2000).

The excluded evidence in the instant case is relevant, material, and inextricably intertwined, as it is necessary to explain why Rambaran was so enraged, why he broke into Leeah’s house, why he murdered Latoya when his rage was directed at Leeah, and to establish that he also intended to kill Leeah that night. To exclude the attempted murders of Shay Williams, who Rambaran believed was Le-eah’s boyfriend, and Kim Lowery, who just happened to be with Shay Williams when Rambaran began shooting at the car they were in, and Rambaran’s conversations with Leeah hours before, would make it impossible to explain Rambaran’s rage or to establish that the murder of Latoya was premeditated, and that Rambaran also intended to kill Leeah. Without the collateral crimes evidence, the evidence would suggest that either Rambaran intended to harm Leeah and mistakenly killed Latoya, or that some unknown person unrelated to Leeah attacked and killed Latoya. The entire context out of which these crimes arose, and the events that occurred on November 26, provide an intelligent account of the events that led to the crimes being tried, and provide evidence of the perpetrators’ intent, motive, identity and the absence of mistake.

Additionally, Pierre-Louis’ involvement with the events that occurred on November 26, are important to link him as a principal to the burglary, murder, and the attempted murder on November 27, at Le-eah’s house. Just hours before the events that took place at Leeah’s house, Pierre-Louis, who was driving a rental car with Rambaran as a passenger, blocked the car Shay Williams was in. Pierre-Louis and Rambaran pursued Williams as he fled for his life with Rambaran shooting at the car because Rambaran believed Williams was involved with Leeah. If this relevant evidence is excluded, it would substantially limit the State’s ability to demonstrate Pierre-Louis’ involvement in the offenses on November 27. Pierre-Louis actively participated in the events that occurred on November 26, by blocking the car Shay Williams was in and driving the car in pursuit of Shay Williams while Rambaran shot at Williams and Lowery. Pierre-Louis’ actions, when viewed with Rambar-an’s threats to kill Leeah and her entire family, Pierre-Louis’ attempt to hide the evidence by exchanging the rental car he was driving after they pursued and shot at Shay Williams, and their subsequent exchange of rental cars after the murder of Latoya and attempted murder of Leeah, are relevant to show Pierre-Louis’ knowledge of the crimes and participation as the “get-away” driver on November 27. Without the evidence, which was excluded by the trial court, the jury could conclude that Pierre-Louis innocently drove Rambaran to Leeah’s house and did nothing to facilitate the crimes committed therein. The collateral crimes evidence is inextricably intertwined as it demonstrates Pierre-Louis’ involvement in the crimes charged and his concealment and destruction of the evidence.

In Zack v. State, 753 So.2d 9, 17 (Fla.2000), the Florida Supreme Court concluded that evidence of a three-week series of events preceding the charged crime was admissible, noting that “the circumstances of the charged offenses were not happenstance but a series of calculated actions on the part of the defendant.” The collateral crimes evidence was admissible because it “casts light on Zack’s motive, intent, and the timing of the ... assault.” Id. Similarly, the events that occurred on November 27, were a continuation of, and a consequence of, Rambaran’s possessiveness of Leeah, his belief that she was involved with Shay Williams, his anger towards both Shay Williams and Leeah, and his intent to kill Leeah and the people close to her.

The defendants argue, and the trial court found, that because the events on November 26 and November 27 involve different victims, the evidence surrounding the events on the 26th is inadmissible. We disagree. Even events involving different victims may be admissible as collateral crimes evidence if the evidence is relevant to a material issue at trial and is being offered for a reason other than to show propensity or bad character.

In Jones v. State, 931 So.2d 243 (Fla. 5th DCA 2006), the trial court admitted evidence of a robbery and aggravated assault of a totally different victim than the victim of a murder and robbery that took place shortly thereafter. Although the two incidents occurred at different times and different locations, and involved different victims, the Fifth District Court of Appeal concluded that the collateral crimes evidence was properly admitted as inextricably intertwined evidence of a continuing criminal episode. Id. at 243-44; see also State v. Shaw, 730 So.2d 312, 313 (Fla. 4th DCA 1999) (granting State’s petition for writ of certiorari where trial court denied State’s motion to introduce evidence of an attempted robbery of a restaurant one-half hour prior to the robbery and murder of a taxi driver, finding that the earlier robbery was admissible to show the defendant’s motive and intent that he needed money because the restaurant robbery had failed); State v. Cohens, 701 So.2d 362, 364 (Fla. 2d DCA 1997) (granting State’s petition for writ of certiorari where trial court denied State’s motion to admit collateral crimes evidence, finding that the attempted robbery of a bakery half an hour prior to the shooting death of a clerk at a gas station was admissible as inextricably intertwined evidence because it established Cohens’ motive for being present at the gas station and rebutted Cohens’ statement that he was merely present outside of the store); Austin v. State, 500 So.2d 262, 265 (Fla. 1st DCA 1986) (holding that the testimony that the defendant attempted to shoot and rob someone in the restroom of a service station was admissible in the trial of a subsequent robbery and attempted murder to cast light on the character of the crimes charged, to establish motive, and to provide an intelligent account of the criminal episode).

We conclude that the collateral crimes evidence excluded by the' trial court is highly relevant as to Rambaran and Pierre-Louis’ intent, motive, and premeditation. Additionally, the evidence is inextricably intertwined, as it is necessary to establish the entire context out of which the charged crimes arose to adequately describe the events leading up to the crimes, and to explain why Latoya was killed. Thus, the trial court erred in excluding the evidence.

SEVERANCE

The State also seeks certiorari review of the trial court’s order granting the defendants’ motion to sever counts 4 and 5 of the indictment. While we decline to address the severance issue on certiorari review, the trial court is free to reconsider its earlier ruling severing counts 4 and 5 from the trial of counts 1, 2, 3, and 6 in light of this Court’s ruling regarding the admissibility of the facts and circumstances that form the basis of counts 4 and 5, as collateral crimes evidence.

Petition granted; order denying State’s motion to admit collateral crimes evidence quashed.


author: BENTON, J. VAN NORTWICK, J.,

text:
    Conrad H. ROWE; and Dodge City Games, LLC, Appellants, v. COUNTY OF DUVAL, a Political Subdivision of the State of Florida; Jacksonville Sheriff's Office; and Harry Shorstein, State Attorney, Fourth Judicial Circuit, Appellees.
    No. 1D06-6520.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.
    Rehearing Denied March 4, 2008.

      Kelly B. Mathis of Mathis & Murphy, P.A., Jacksonville, for Appellants.
    Bill McCollum, Attorney General, and George Waas, Special Counsel, Tallahassee; and Thomas M. Beverly, Office of General Counsel, Jacksonville, for Appel-lees.
   BENTON, J.

Conrad H. Rowe and Dodge City Games, LLC, d/b/a Copacabana (Copaea-bana) appeal the final summary judgment denying them declaratory and injunctive relief they sought against Duval County, the Jacksonville Sheriffs Office, the State of Florida, and Harry Shorstein, State Attorney for the Fourth Judicial Circuit. Owners and operators of amusement centers in Duval County, appellants contend they fall within the safe harbor provision in section 849.161(1)(a)(l.), Florida Statutes (2006), and therefore outside the ban on gambling houses and slot machines. See §§ 849.01 and 849.15, Fla. Stat. (2006). The trial court ruled the safe harbor provision unavailable on the ground that the “amusement games or machines” also took bills. We reverse and remand for further proceedings.

The availability of a “safe harbor” depends on whether Copacabana’s establishment is “an arcade amusement center,” which turns on the answers to two separate questions. The safe harbor provision reads:

Nothing contained in this chapter shall be taken or construed as applicable to an arcade amusement center having amusement games or machines [1] which operate by means of the insertion of a coin and [2] which by application of skill may entitle the person playing or operating the game or machine to receive points or coupons which may be exchanged for merchandise only, excluding cash and alcoholic beverages, provided the cost value of the merchandise or prize awarded in exchange for such points or coupons does not exceed 75 cents on any game played.

§ 849.161(1)(a)(l.), Fla. Stat. (2006) (bracketed numbers inserted). On this record, whether skill wins the prizes is disputed, but the dispute is material only if the machines “operate by means of the insertion of a coin.” Id.

The trial court entered summary judgment against Copacabana without reaching the skill question, relying on State v. Cyphers, 873 So.2d 471, 473 (Fla. 2d DCA 2004), and Delorme v. State, 895 So.2d 1252, 1256 (Fla. 5th DCA 2005), which it read as holding that the phrase “games or machines which operate by means of the insertion of a coin” in section 849.161(1)(a)(1.) reflects a legislative intention to limit the exception to machines that operate by coin only. The facts concerning coin-operation in the present case are not in dispute: Copaeabana’s machines “operate by means of the insertion of a coin,” but the same machines can also operate by means of the insertion of bills.

The trial court’s reliance on Cyphers and Delorme was misplaced. Neither case decided the question presented here where machines that can take bills also “operate by means of the insertion of a coin.” § 849.161(1)(a)(l.), Fla. Stat. (2006). Both hold simply that machines that do not take coins cannot bring an arcade amusement center within the safe harbor provision. In Cyphers, the “[defendants’ machines were not coin operated. Rather, Cyphers testified that the machines did not accept quarters and were operated by cash bills.” 873 So.2d at 473 (emphasis supplied). Similarly, in DeLorme, the “parties stipulated that none of the machines involved was coin-operated.” 895 So.2d at 1254-55 (emphasis supplied).

The safe harbor provision at issue here dates to the original enactment of the statute. See Ch. 84-247, § 3, at 1101, Laws of Fla. The difference in wording between the “safe harbor provision,” § 849.161(1)(a)(1.), Fla. Stat. (2006), and the “truck stop provision,” § 849.161(1)(a)(2.), Fla. Stat. (2006), can be fully explained by technological change between 1984 and 1996. Obiter dicta in Cyphers can be read to support the trial court’s view, but the language in question overlooks the historical development of the statute. When the safe harbor provision was enacted in 1984, there were no amusement games or machines that took bills. Such machines did exist by the time the separate “truck stop provision” was enacted in 1996. See Chs. 96-320, § 159, at 1683-84 and 96-323, § 79, at 1848, Laws of Fla.

The record establishes that Copacabana owns an arcade amusement center with machines that “operate by means of the insertion of a coin.” The fact that bills, too, can operate these coin-operated machines does not render the safe harbor provision unavailable to Copacabana. But the safe harbor provision does not apply unless the machines in question are also such that, not mere chance, but “application of skill may entitle the person playing or operating the game or machine to receive points or coupons ... [worth not more than] 75 cents on any game played.” § 849.161(1)(a)(1.), Fla. Stat. (2006). On remand, the trial court must reach and resolve this second, concededly disputed question before entering declaratory judgment, whether for or against Copacabana.

Reversed and remanded.

KAHN, J., concurs; VAN NORTWICK, J., dissents with opinion.

VAN NORTWICK, J.,

dissenting.

Because I conclude that the trial court has correctly interpreted the statute before us, I respectfully dissent.

Chapter 849 prohibits gambling houses and slot machines. See §§ 849.01 and 849.15, Fla. Stat. (2005). The legislature has expressly stated that these statutes are to be “liberally” construed, not strictly construed, in the “lawful exercise of the police power of the state for the protection of the public welfare, health, safety and morals of the people of the state.” § 849.46, Fla. Stat. (2005). Accordingly, when interpreting section 849.16(l)(a)l., which creates an exception to this prohibition for amusement games or machines at arcade amusement centers which operate by means of “insertion of a coin,” we are obligated to narrowly construe this exception. See, e.g., Miriam S. Wilkinson & Eric H. Miller, Florida Game Promotions Statute: Novel Application of an Exception to Florida’s Prohibition on Gambling, 11 Gaming L.Rev. 98, 101-02 (2007).

The majority reasons that, because this safe harbor exception was enacted in 1984 when machines did not take bills and the legislature subsequently amended section 894.161(1)(a)2. in 1996 by creating the so-called “truck stop exception” that allowed the use of coins and bills, the legislature did not intend to retain the limited exception in section 849.161(1)(a)1. to machines that operate by coin only. Respectfully, I cannot agree.

In examining 96-320, § 159, at 1683-84 and chapter 96-323, § 79, at 1848, Laws of Florida, when the legislature created the truck stop exception, it was also required to address the safe harbor exception by renumbering section 849.161(1) to 849.16(1)(a)1. This circumstance indicates to me that the legislature necessarily had to be aware of the “coin” only language which remained in the safe harbor exception and that the legislature made the decision not to modify the safe harbor exception to mirror the language enacted in the truck stop exception.

The majority recognizes the “coin only” language in State v. Cyphers, 873 So.2d 471, 473 (Fla. 2d DCA 2004), relied upon by the trial court, but concludes that this language was simply obiter dicta. Again, I respectfully disagree. The language in Cyphers was necessary to the ultimate conclusion of the court that machines that operate by use of the insertion of bills do not qualify for the safe harbor exception. See Black’s Law Dictionary, 1100 (7th ed. 1999)(recognizing that obiter dictum is “comment made during the course of delivering a judicial opinion, ... that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive)” (emphasis supplied)). Thus, I do not consider the operative language in Cyphers, quoted at footnote 3 of the majority opinion, to be obiter dicta.

The Cyphers court, 873 So.2d at 473, relied upon an opinion of the Florida Attorney General that addressed the question whether games or machines utilized by adult arcade amusement centers could legally operate by means of the insertion of a coin as well as the insertion of paper currency. That opinion concludes that “the Legislature’s use of only the term ‘coin’ in section 849.161(1)(a)1., reflects an intent that only those machines that operate by use of a coin fall within the exception to the prohibition against slot machines.” Id. (quoting Op. Att’y Gen. Fla. 2004-12 (2004)). The Cyphers court employed much of the same reasoning as the Attorney General and implicitly accepted that opinion’s further conclusion that “[tjhose machines which operate by use of a coin or paper currency (which are permitted under section 849.161[1][a]2., Florida Statutes, for truck stops) would not qualify ... for the exception afforded for arcade amusement centers.” Op. Att’y Gen. Fla.2004-12 (2004).

When the legislature reenacted section 849.161(1)(a)1. in 2005, after the decision of the Cyphers court incorporating the reasoning of the Attorney General, it is presumed to have known this construction being given to these two exceptions to the gambling laws and approved that construction. See Collins Inv. Co. v. Metropolitan Dade County, 164 So.2d 806, 809 (Fla.1964)(“When a statutory provision has received a definite judicial construction, a subsequent re-enactment will be held to amount to a legislative approval of the judicial construction. The Legislature is presumed to be acquainted with judicial decisions on the subject concerning which it subsequently enacts a statute.”).

While I do agree with the majority that the fairness of the distinction the legislature has made between these two exceptions is debatable, I am persuaded that the legislative intent to maintain this distinction is clear and it is not within the prerogative of this court to modify that legislative intent. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984); see also State v. Ashley, 701 So.2d 338, 343 (Fla.1997)(interpretation of language in statute cannot be based on the court’s own view of the best policy). “[I]n-sertion of a coin,” section 849.161(1)(a)1., means just that. It does not mean “insertion of a coin or other currency.” § 849.161(1)(a)2. Accordingly, I would affirm the summary judgment.

      . In an order not challenged here, the trial court concluded that the complaint failed to state a claim for declaratory relief against the State of Florida and dismissed the State as a party defendant.

      . The trial court did not dismiss Conrad H. Rowe as a party plaintiff even though he seeks to establish the scope of an exception to a penal statute under which he is currently being prosecuted. See Merry-Go-Round, Inc. v. State ex rel. Jones, 136 Fla. 278, 186 So. 538, 540 (1939) (noting "the well settled equitable principle that injunction will not lie to enjoin a criminal prosecution”). See generally Duval County Sch. Bd. v. Armstrong, 336 So.2d 1219, 1221 (Fla. 1st DCA 1976) (reversing order enjoining administrative proceeding convened in connection with teacher's discharge, saying any “necessity that the Board honor such rights as Armstrong demands ... must be determined in the concrete circumstances of the case after the Board has acted”). In any event, under Deeb v. Stoutamire, 53 So.2d 873 (Fla.1951), the trial court was obliged to reach the "safe harbor” question it addressed in the declaratory judgment at the behest of Mr. Rowe’s fellow plaintiff and appellant, Dodge City Games, LLC d/b/a Copacabana.

      . Relying on an opinion of the attorney general, see Op. Att'y Gen. Fla.2004-12 (2004), the Cyphers court stated in obiter dicta:
      The definition of slot machine includes a machine that may be operated by the insertion of "any piece of money, coin, or other object.” In contrast, section 849.161(1)(a)(1) refers specifically to machines which operate by the insertion of "a coin.” Furthermore, section 849.161 (1)(a)(2), creating an exception per-taming to truck stops, refers to machines operated by the insertion of "a coin or other currency.” The legislature’s use of different terms in different sections of the same statute is "strong evidence that different meanings were intended.” Clarke v. Schimmel, 774 So.2d 7, 9 (Fla. 2d DCA 2000). Thus, "[w]hen the legislature has used a term ... in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded.” Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla. 1995).

        State v. Cyphers, 873 So.2d 471, 473 (Fla. 2d DCA 2004).

      . Undisputed materials of record established when the new machines became available.

      . Requiring different constructions because of the difference in wording between the “safe harbor provision” and the "truck stop provision" would, at most, give rise to an ambiguity in the definition of a crime. The rule is that "statutes defining crimes are to be strictly construed against the State.” Chicone v. State, 684 So.2d 736, 741 (Fla.1996).


author: WARNER, J.

text:
    Rhonda NASSER, as Personal Representative of the Estate of Thelma A. Modesitt, Appellant, v. Joseph A. NASSER and George A. Nasser, Appellees.
    No. 4D07-389.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.
    Rehearing Denied March 20, 2008.
    Mary Alice Gwynn of Mary Alice Gwynn, P.A., Delray Beach, for appellant.
    Peter J. Forman and Norman A. Fleisher of Tescher Gutter Chaves Josepher Rubin Ruffin & Forman, P.A., Boca Raton, for appellee Joseph A. Nasser.
   WARNER, J.

The personal representative of an estate appeals the trial court’s denial of her motion to assess fees pursuant to section 57.105, Florida Statutes, in connection with a petition for estate administration. She also appeals an order taxing costs which did not include certain deposition costs. We affirm both the order denying fees and the denial of the deposition costs.

As to the fees, the trial court determined that there were justiciable issues regarding the decedent’s testamentary capacity when the appellee filed a caveat and later a declaration of adversary proceedings, and that the appellee had a right to investigate these issues. The award of attorney’s fees under section 57.105 is a matter committed to the sound judicial discretion of the trial court and will not be disturbed on appeal, absent a showing of clear abuse of discretion. Hustad v. Architectural Studio, Inc., 958 So.2d 569, 571 (Fla. 4th DCA 2007); Turovets v. Khromov, 943 So.2d 246, 248 (Fla. 4th DCA 2006). No such showing is present. We have considered appellant’s claims that the trial court applied the wrong standard in considering the motion and that it incorrectly rejected her claim that the appellee had no standing to file a caveat in these proceedings. We reject both contentions. We thus affirm the trial court’s denial of attorney’s fees.

As to the award of costs, appellant contends that the trial court erred in failing to tax as costs the expense of two depositions. Pursuant to the recently revised Uniform Guidelines for Taxation of Costs, deposition expenditures are included in the category of items that should be taxed. In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So.2d 612, 616 (Fla.2005). It is the moving party’s burden to show that the requested costs were reasonably necessary to defend the case at the time the action precipitating the cost was taken. Id. During the hearing on the motion for attorney’s fees and costs, it does not appear that there was ever any inquiry into whether the requested costs were reasonably necessary to defend the case at the time the action precipitating the cost was taken. As the appellant failed to meet her burden in the trial court to show that the requested costs were reasonably necessary, we must affirm the court’s denial of these additional costs.

FARMER, J., and CONNER, BURTON C., Associate Judge, concur.


text:
    Donna PAGONICO, Appellant, v. Allan F. BYE, Appellee.
    No. 4D07-1390.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.
    Rehearing Denied March 17, 2008.

      Kathleen K. Pena of Law Offices of Kathleen K. Pena, Pembroke Pines, for appellant.
    Allan F. Bye, Pompano Beach, pro se.
   PER CURIAM.

In this paternity action, the father filed a petition to modify his child support. The circuit court granted the petition, reduced the father’s support obligation from $725 a month to $249 a month, and found that the mother owed the father a credit of $5,125.75. The court also ordered the mother to pay the father’s attorney’s fees and costs of $14,354. We reverse the award of attorney’s fees and costs. The mother is in no better a financial position than the father to pay for the father’s fees. See Keaton v. Keaton, 634 So.2d 798 (Fla. 4th DCA 1994); Price v. Price, 951 So.2d 55 (Fla. 5th DCA 2007). The mother works as a hair stylist and makes slightly more than $1,000 a month. The father is disabled and receives $2,500 a month from an annuity. Both the mother and father own or control some real property. The mother liquidated assets to pay her attorneys and the credit owed to the father from the final judgment.

Reversed and remanded.

WARNER, FARMER and GROSS, JJ., concur.


text:
    Eli T. SLEIMAN, Jr. and Joseph E. Sleiman, Petitioners, v. Peter D. SLEIMAN, Anthony T. Sleiman, and Jacksonville Landing Investments, LLC, a Florida limited liability company; Retail Equities, LLC, a Florida limited liability company; Southside Retail, LLC, a Florida limited liability company; Atlantic West, LLC, a Florida limited liability company; Triple Net Equities, Ltd., a Florida limited partnership; Atlantic North Commercial, LLC, a Florida limited liability company; Atlantic Mixed Use Properties, LLC, a Florida limited liability company; North West Kernan Retail Properties, LLC, a Florida limited liability company; Property Support Systems, LLC, a Florida limited liability company; Peter Sleiman Development Group, LLC, a Florida limited liability company; and Property Management Support, Inc., a Florida corporation, Respondents.
    No. 1D07-5257.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2008.
    Rehearing Denied Feb. 28, 2008.

      Timothy W. Volpe, Michael E. Lee, and Gregory J. Lesak, Jr., of Volpe, Bajalia, Wickes, Rogerson & Wachs, Jacksonville, for Petitioners.
    Stephen D. Busey and John F. MacLen-nan of Smith, Hulsey & Busey, Jacksonville, for Peter D. Sleiman, Property Support Systems, LLC, and Peter Sleiman Development Group, LLC; Rutledge R. Liles, Steven A. Werber and Robert B. George of Liles, Gaven, Constantino & George P.A., Jacksonville for Anthony T. Sleiman; Robert D. Wilcox of Wilcox Law Firm, Jacksonville, for Jacksonville Landing Investments, LLC, Triple Net Equities, LLC, Atlantic North Commercial, LLC, Atlantic Mixed Use Properties, LLC, and North West Kernan Retail Properties, LLC; and Michael G. Tanner, Thomas E. Bishop and Stuart Williams of Tanner, Bishop for all other Respondents.
   PER CURIAM.

By petition for writ of prohibition, Eli T. Sleiman, Jr., and Joseph E. Sleiman challenge the denial of their motion to disqualify Judge John H. Skinner from presiding over certain lawsuits in the Circuit Court for Duval County in which they are parties. Finding that the motion to disqualify was timely and facially sufficient and that Judge Skinner’s subsequent remarks regarding the circumstances underlying the motion require disqualification, we grant the petition.

Eli, Joseph, and their brothers Peter D. and Anthony T. Sleiman have been engaged in developing real estate in Northeast Florida. Their business relationship deteriorated and legal actions ensued involving the Sleimans and their business entities. Three of these suits were assigned to Judge Skinner and at a hearing on September 12, the brothers agreed to meet with Judge Skinner for a private consultation. No attorneys were present and the conference was not reported. Afterward Eli and Joseph timely moved for Judge Skinner’s disqualification based on his remarks in the conference. According to the motion, Judge Skinner informed the brothers of his own family’s background in Jacksonville real estate and family members’ ability to resolve their disputes among themselves. This was the first time that Eli and Joseph had met Judge Skinner but the judge told petitioners that he had known Peter and Anthony for a long time and that they had helped him with his campaigns, raising funds and helping him get elected. Further, Anthony had later helped him on different matters. Judge Skinner indicated he was appreciative of Peter and Anthony for their support. Further, there was discussion of lis pendens that Peter had filed against property owned by the Sleimans and the brothers explained the costs to their businesses. In response, “Judge Skinner told me and my brothers rather summarily and unequivocally that he was not going to do anything about any of the lis pendens maintained by Peter.” According to the affidavits, Joseph and Eli left the meeting with the feeling that Judge Skinner was grateful to Peter and Anthony and his relationships with them were impacting his role and ability to serve as the judge in the case. They construed the meeting as an effort to force them to resolve the case so that Judge Skinner would not need to adjudicate claims against Peter. They also construed his remarks about the lis pen-dens to mean that he had made up his mind regarding a pending motion regarding those filings, feeling the financial pressure would force the brothers to find a resolution.

The motion for disqualification was timely filed on Monday, September 24. At a scheduled hearing of October 1, 2007, Judge Skinner spoke on the subject of the motion and expressed his view that the lis pendens presented “bondable issues.” Judge Skinner also addressed the allegations in the motion for disqualification, describing these remarks as clarification. He explained that he had never received any money from Peter, Anthony, or from Sleiman Enterprises for any judicial campaign. Instead, they were contacted regarding assistance in planning an investiture after his first election. The judge was not aware of the amount of any monies they may have contributed. Further, in 1996 he received a call from Anthony, who was supporting an individual seeking the same seat sought by Judge Skinner when he moved up from county court to circuit court. According to Judge Skinner, “There may be judges in this courthouse that have political or social affiliations with the Sleimans, but I’m not one of them.” He emphasized that he did not call the meeting on September 12 to mediate or encourage settlement but he wanted to determine the “level of brotherly affection” that continued to exist. He emphasized that he could not make them settle. The judge took responsibility for the existence of the lis pendens on the properties because the judge had ruled that they were proper. A short recess was held to allow the movants to consider withdrawal of their motion, which they declined to do. The written order denying the motion without substantive comment was then entered.

As to the motion for disqualification, the facts alleged therein must, of course, be accepted as true by the circuit judge in ruling on the motion. Fla. R. Jud. Admin. 2.330(f). The motion should be granted if those facts “would prompt a reasonably prudent person to fear that he or she could not get a fair and impartial trial.” Dep’t of Agric. v. Broward County, 810 So.2d 1056 (Fla. 1st DCA 2002). We conclude that the motion conclusively met this standard and Judge Skinner should have granted it. Moreover, the comments of Judge Skinner at the hearing of October 1 ran afoul of the proscription against the judge attempting to refute the factual grounds for the motion. MacKenzie v. Super Kids Bargain Store, 565 So.2d 1332, 1338 n. 5 (Fla.1990). Thus, Judge Skinner’s disqualification is required on both grounds.

The petition for writ of prohibition is granted and the cause is remanded to the circuit court with directions to Judge Skinner to enter an order of disqualification and refer the matter to the Chief Circuit Judge for assignment of the cases to another circuit judge.

PETITION GRANTED.

WOLF, KAHN, and LEWIS, JJ., concur.