text:
    Elvoy PAUL, Appellant, v. Rafael GONZALEZ, Appellee.
    No. 4D06-3942.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.

      Regine Monestime of The Monestime Firm, P.A., Miami, for appellant.
    William Martin of Peterson Bernard, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant, Elvoy Paul, appeals the trial court’s order dismissing his negligence action for failure to prosecute. We conclude that the trial court erred in dismissing the action. We reverse.

This action commenced on June 18, 2003, when Paul filed a negligence action against the defendant, Rafael Gonzalez, arising out of an auto accident. As the case progressed through discovery, the trial court granted Paul’s motion for protective order on June 10, 2005, finding that the unrepresented Paul-did not have the capacity to understand the nature of the lawsuit. The trial court also ordered Paul’s sons, who attended the hearing, to open a guardianship for Paul and directed: “If Plaintiffs sons are not successful in opening guardianship for Plaintiff, and if no action is taken to resolve or move this case forward within the next year from the date of this Order, then Defendant [sie] file a motion to dismiss this case for lack- of prosecution.” Subsequently, Paul’s sons filed a Petition for Appointment of Plenary Guardian (Petition for Guardianship) on April 14, 2006 in Palm Beach County in the probate division. However, there is no indication in the record that Paul submitted a notice of filing of the Petition for Guardianship with the trial court presiding over his negligence action.

Therefore, on June 7, 2006, the trial court issued a Notice of Failure to Prosecute pursuant to Florida Rule of Civil Procedure 1.420(e), finding that “no activity by filing of pleadings, order of court, or otherwise has occurred for a period of at least 10 months.” The court then cited Florida Rule of Civil Procedure 1.420(e), as amended January 1, 2006, which stated, in part:

... If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record actiyity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion ... after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.

The court also ordered: “If no record activity occurs within the 60 days following the service of this notice, this notice shall also serve as this Court’s Motion to Dismiss Action for Failure to Prosecute, which this Court shall hear on Thursday, August 17, 2006,... ”

Subsequent to the trial court’s- Notice of Failure to Prosecute, the Petition for Guardianship 'that was originally filed in Palm Beach County was later re-filed in Flagler County on July 26, 2006 because Paul no longer resided in Palm Beach County. Furthermore, on July 28, 2006, the Flagler County circuit court entered an Order Appointing Attorney and Elisor for Alleged Incapacitated Person. Although this activity did occur within sixty (60) days after service of the Notice of Failure to Prosecute, it occurred in the probate division of the Flagler County circuit court, and Paul did not provide the trial court in the negligence action notice of this activity until he filed his Notice of Good Cause on August 16, 2006, only one day before the hearing on the court’s motion to dismiss for lack of prosecution, not the five days required by rule 1.420(e).

On August 17, 2006, the trial court held a hearing and entered an Order Dismissing Action Without Prejudice for Failure to Prosecute. In its order, the court found that:

(1) notice prescribed by Florida Rule of Civil Procedure 1.420(e) was served on the parties; (2) there was no record activity during the ten (10) months immediately preceding service of the foregoing notice; (3) there was no record activity during the sixty (60) days immediately following service of the notice; (4) no stay has been issued or approved by the court; and (5) no party has shown good cause in writing at least five (5) days before the hearing on the motion why this action should remain pending.

The trial court also explained:

Had Plaintiff filed his Notice of Good Cause at least 5 days before the hearing, this Court would have found good cause why the action should remain pending. But because Plaintiff did not show good cause in writing at least 5 days before the hearing, as required by the plain language of Rule 1.420(e), it is ORDERED AND ADJUDGED that this Court dismisses this action without prejudice for lack of prosecution.

On appeal, Paul argues that the trial court abused its discretion in dismissing the underlying action for lack of prosecution because there was record activity both within the ten (10) months preceding the service of the Notice of Failure to Prosecute on June 7, 2006 and during the sixty (60) days immediately following service of the notice. Specifically, Paul points to the Petition for Guardianship filed on April 14, 2006 in Palm Beach County, the re-filing of the Petition for Guardianship in Flagler County on July 26, 2006, and the Order Appointing Attorney and Elisor for Alleged Incapacitated Person dated July 28, 2006.

Florida Rule of Civil Procedure 1.420(e) (2006), effective January 1, 2006, provides as follows:

In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60 day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall- not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e) (2006).

The Florida Supreme Court articulated a two-prong test to determine whether a case warrants dismissal under Rule 1.420(e). First, the defendant must show that there was no record activity for the year preceding the motion. Metropolitan Dade County v. Hall, 784 So.2d 1087, 1090 (Fla.2001). Second, if there was no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed. Id.

More recently, in Wilson v. Salamon, 923 So.2d 363 (Fla.2005), the court concluded that Rule 1.420(e) must be interpreted by its plain meaning. Id. ’at 367. The court stated as follows:

... the language of the rule is clear — if a review of -the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows good cause why the action should remain pending; however, if a review of the face of the record reveals activity by ‘filings of pleadings, order of court, or otherwise,’ an action should not be dismissed. See Hall, 784 So.2d at 1090. This construction of the rule establishes a bright-line test that will ordinarily require only a cursory review of the record by a trial court. As Justice Wells noted in Hall, there is either activity on the face of the record or there is not. Id. We find this bright-line rule appealing in that it establishes a rule that is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active.

Id. at 368. In Wilson, the supreme court concluded that the trial court’s order granting the co-counsel’s motion to appear pro hac vice for the plaintiff was sufficient record activity to preclude dismissal of the plaintiffs medical malpractice action under rule 1.420(e). Id. at 369. The court explained: “there is no dispute that an order of court was entered and this order appears on the face of the record.... The appearance of the order of court on the record in these proceedings prevents rule 1.420(e) from being utilized as a basis for dismissal.” Id.

However, applying the principles in Wilson, we conclude that the Petition for Guardianship in this case did not “appear on the face of the record” in the negligence action as required by rule 1.420(e). Id. Although it is undisputed that the Petition for Guardianship was filed in Flagler County on July 26, 2006, and that a subsequent Order Appointing Attorney and Eli-sor for Alleged Incapacitated Person was entered in Flagler County on July 28, 2006, neither “appear on the face of the record” in the underlying negligence action against the defendant Rafael Gonzalez in Palm Beach County. Rather, the Petition for Guardianship and subsequent Order Appointing Attorney and Elisor for Alleged Incapacitated Person were filed in a guardianship proceeding in probate court under a different case number, and the plaintiff failed to file in the record of the negligence action any indication that he was pursuing the Petition for Guardianship. We therefore agree with the appel-lee that the Petition for Guardianship and Order Appointing Attorney and Elisor for Alleged Incapacitated Person do not constitute record activity in the negligence action sufficient to defeat a dismissal for lack of prosecution.

It is undisputed in this case that in the trial court’s June 7, 2006 Notice of Failure to Prosecute, the court advised both parties that a hearing on the court’s motion to dismiss action for failure to prosecute would be held on August 17, 2006 if no record activity occurred within thé sixty (60) days following service of the notice. Furthermore, in the notice, the trial court cited Rule 1.420(e), including the provision with respect to the five-day time requirement to show good cause. Therefore, the trial court even provided Paul with notice of the five-day time requirement to show good cause, but he failed to comply.

Thus, we conclude that the trial court did not err in finding that there was no record activity during the time periods required in Rule 1.420(e) and in concluding that Paul’s failure to show good cause in writing at least five (5) days before the hearing required dismissal of his personal injury action. The trial court’s order dismissing the action for failure to prosecute would be affirmed except for the effect of Florida Rule of Civil Procedure 1.210(b) on involuntary dismissals for lack of prosecution.

When it becomes apparent during the pendency of a civil action that a party is incompetent, rule 1.210(b) provides:

When an ... incompetent person has a representative, such as a guardian ... the representative may sue or defend on behalf of the ... incompetent person .... The court shall appoint a guardian ad litem for an ... incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the ... incompetent person.

Under rule 1.210, when the unrepresented plaintiff in this action became incompetent, the trial court itself should have either appointed a guardian ad litem or entered “such other order as it deems proper for the protection” of the incompetent plaintiff. The policy of the rule is that the court should insure that the interests of the incompetent party will be protected until someone is qualified to succeed to his interests. In this instance, the trial court did neither. Not only does rule 1.210 authorize these actions, it plainly requires them. In failing to do either one, the dismissal clock began ticking on Paul’s lawsuit without any representative capable of understanding the lapse of time and the consequent effect on his legal rights. He was left without any person qualified to take action on his behalf.

We conclude that it is a denial of due process to dismiss the claim of a person who is then incompetent without the presence of someone in the case able to prosecute — or, at a minimum, prevent dismissal for lack of prosecution. In short, the “limitations” period of rule 1.420(e) cannot be fairly applied against a party who is incapable of complying with its requirements.

Reversed and Remanded.

GUNTHER, FARMER, JJ„ and HOROWITZ, ALFRED J., Associate Judge, concur.

      . The newly amended Rule 1.420(e), effective January 1, 2006, provides that a motion may be filed when no record activity has occurred after ten months. In re: Amendments to the Fla. R. Civ. P., 917 So.2d 176, 176 (Fla.2005).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Nickoel TARTER, Appellant, v. Jason TARTER, Appellee.
    No. 1D06-6404.
    District Court of Appeal of Florida, First District.
    July 12, 2007.

      Rhonda S. Clyatt, Panama City, for Appellant.
    Russell K. Ramey and William Michael Hunter, Panama City, for Appellee.
   PER CURIAM.

. Nickoel Tarter (the former wife) appeals an order denying the Suggestion of Contempt filed, by Jason Tarter (the former husband), appellee, and modifying the parties’ temporary custody order to require rotating custody. She contends that the trial court denied her due process of law when the court modified primary residential custody and visitation at a hearing on the former husband’s Suggestion of Contempt. We agree and reverse.

The former husband filed a Suggestion of Contempt, not a petition to modify custody. Although he requested a change of custody in his prayer for relief in the Suggestion of Contempt, he did not allege facts to support the trial court changing the .primary residential parent for the parties’ minor child. Notably, there was no allegation that a change of custody would be in the child’s best interest. See Pelliccia v. Arce, 867 So.2d 619, 620 (Fla. 2d DCA 2004). Moreover, the amended notice of hearing stated only that the contempt motion would be heard and did not advise the former wife that a modification of custody was being sought. See Moody v. Moody, 721 So.2d 731 (Fla. 1st DCA 1998)(reversing an order which transferred child custody and canceled the husband’s child support obligation where the notice for hearing stated that the court would entertain a motion for contempt). At the hearing on the contempt motion, when the trial court advised the parties that it was contemplating a change in custody, the former wife immediately objected on due process grounds. Although the trial court did state that it was changing custody “in the best interest of the minor child,” the trial court did not evaluate the factors affecting the welfare and interest of the child as required by section 61.13(3), Florida Statutes (2006). See Burckle v. Burckle, 915 So.2d 747, 749 (Fla. 2d DCA 2005)(reversing change of custody as a sanction for contempt where contempt motion did not put former husband on notice that custody was at issue and trial court did not evaluate section 61.13(3) factors).

Accordingly, the cause is REVERSED and REMANDED for proceedings consistent with this opinion.

WEBSTER, DAVIS, and VAN NORTWICK, JJ„ concur.


text:
    PENZOIL-QUAKER STATE and Ace USA, Appellants, v. Harry COOPER, Appellee.
    No. 1D07-1636.
    District Court of Appeal of Florida, First District.
    July 12, 2007.
    Jennifer L. Hodges of Jennifer L. Hodges, P.A., Miami, for Appellants.
    William F. Souza, North Miami Beach, for appellee.
   PER CURIAM.

We conclude that the order of the Judge of Compensation Claims being appealed herein is nonfínal and nonappealable, and therefore dismiss the appeal for lack of jurisdiction. Because any error in the interlocutory ruling at issue can be adequately remedied on appeal, we decline appellants’ suggestion that we undertake certiorari review.

APPEAL DISMISSED.

ALLEN, WOLF, and POLSTON, JJ., concur.


author: STRINGER, Judge.

text:
    STATE of Florida, Appellant, v. Samuel GAY, Appellee.
    No. 2D05-2201.
    District Court of Appeal of Florida, Second District.
    July 13, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellant.
    No appearance for Appellee Samuel Gay.
   STRINGER, Judge.

The State appeals from the trial court’s written order dismissing a felony count of possession of cocaine that was filed against Samuel Gay. Because the State’s traverse established that there were disputed issues of material fact and established a prima facie case of constructive possession, the trial court erred in granting Gay’s motion to dismiss. Therefore, we reverse and remand for further proceedings.

The State charged Gay with one count of felony possession of cocaine arising out of events that occurred on January 15, 2005. Gay subsequently filed a motion to dismiss the charge pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). In his motion, Gay alleged that on January 15, 2005, Deputy Rook of the Hillsborough County Sheriffs Office conducted a lawful traffic stop of the car Gay was driving. After stopping the car, Gay immediately got out of the driver’s seat and began emptying his pockets onto the roof of his car. Rook called for back-up assistance and ordered Gay to stop what he was doing and step back to the patrol car. During this time, Rook was unable to see what the two passengers in the car were doing.

While Rook was patting down Gay, Deputy Penawert arrived to assist Rook. Pena-wert went to Gay’s vehicle and asked the two passengers, both of whom were seated in the front passenger seat, to get out of the car to be interviewed. As Penawert looked inside the car at the passengers, he saw a small bag containing a white powdery substance on the center console. After the white powdery substance tested positive for cocaine, all three were arrested and charged with possession of the cocaine. Gay asserted in his motion that the cocaine was not on the center console when he got out of the car.

In response to Gay’s motion, the State filed a traverse. In the traverse, the State specifically disputed Gay’s assertion that the cocaine was not on the center console when Gay got out of the car. The State also alleged the additional facts that Gay was the registered owner and driver of the car and that both passengers in the car denied knowledge and possession of the cocaine. In addition, the State alleged that the cocaine was in plain view in the car and was within reach of all of the occupants of the car.

At the hearing on Gay’s motion, after reviewing the motion and the traverse, the trial court told the State, “You know, I can deny the motion, but then he’s going to prevail at a judgment of acquittal.” After further argument, the trial court stated, “I don’t think they are going to be able to establish whose cocaine it was either.... I mean, you can’t prove it.... The fact is you cannot prove itl” At the close of the hearing, the trial court granted Gay’s motion and dismissed the charge against him. The State then brought this appeal, arguing that the trial court did not properly apply the law regarding motions to dismiss to the facts presented in this case. We agree.

Under rule 3.190(c)(4), a defendant may move for dismissal by alleging that “[tjhere are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” Under this rule, “it is the defendant’s burden to specifically allege and swear to the undisputed facts in a motion to dismiss and to demonstrate that no prima facie case exists upon the facts set forth in detail in the motion.” State v. Kalogeropolous, 758 So.2d 110, 111 (Fla. 2000).

When faced with a motion to dismiss, the State may file a traverse pursuant to rule 3.190(d). If the State files a traverse, it must, under oath and in good faith, either specifically dispute the defendant’s material facts or allege additional material facts that are sufficient to establish a prima facie case. Id. at 112; State v. Dickerson, 811 So.2d 744, 746 (Fla. 2d DCA 2002); see also State v. Gutierrez, 649 So.2d 926, 927 (Fla. 3d DCA 1995) (noting that any denial of the material facts by the State in a traverse must be made in good faith and not based on speculation, conjecture, presumption, or assumption). In its traverse, the State need not adduce evidence sufficient to support a conviction. State v. Ortiz, 766 So.2d 1137, 1142 (Fla. 3d DCA 2000). Instead, it must only establish the “barest prima facie case.” Dickerson, 811 So.2d at 746 (quoting State v. Hunwick, 446 So.2d 214, 215 (Fla. 4th DCA 1984)). In doing. so, the State may rely on circumstantial evidence. Dickerson, 811 So.2d at 746. In addition, the State is entitled to the most favorable construction of the evidence, and all inferences- arising from the facts contained in both the motion to dismiss and the traverse must be resolved in favor of the State and against the defendant. Id.; Ortiz, 766 So.2d at 1142.

When considering the State’s traverse, the trial court is not permitted to make factual determinations or to weigh the State’s evidence. Ortiz, 766 So.2d at 1142. Thus, a trial court cannot dismiss criminal charges simply because it concludes that the case will not survive a motion for judgment of acquittal at trial. State v. Jaramillo, 951 So.2d 97, 99 (Fla. 2d DCA 2007); State v. Burrell, 819 So.2d 181, 182 (Fla. 2d DCA 2002); Dickerson, 811 So.2d at 747; State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999). Instead, if the State in good faith disputes any material fact, denial of the motion to dismiss is mandatory. Kalogeropolous, 758 So.2d at 112.

Here, the trial court’s decision to grant Gay’s motion was incorrect for three reasons. First, there were clearly issues of material fact that were in dispute. Gay’s motion to dismiss alleged that there had been no cocaine on the center console when he got out of the vehicle. However, the State specifically denied this alleged fact in its sworn traverse. On the basis of this factual dispute alone, the trial court should have denied Gay’s motion. Kalogeropolous, 758 So.2d at 112.

Second, the State’s traverse alleged sufficient additional facts to establish a prima facie case of possession. The State was proceeding against Gay on a theory of constructive possession. In order to prove constructive possession, the State had to prove that Gay had dominion and control over the cocaine and that he had knowledge of its presence. Brown v. State, 428 So.2d 250 (Fla.1983); State v. Snyder, 635 So.2d 1057, 1058 (Fla. 2d DCA 1994); State v. Reese, 774 So.2d 948, 949 (Fla. 5th DCA 2001).

Gay’s motion alleged that the State could not prove that he had dominion and control over the cocaine. In response, the State alleged that Gay was the registered owner and driver of the vehicle and that both passengers had denied knowledge or possession of the cocaine. The State also alleged that the location where the cocaine was found was within reach of all of the occupants of the vehicle, including Gay. When contraband is found in plain view in a vehicle, dominion and control may be inferred from the ability to exercise control over the vehicle in which the contraband is found. Fedor v. State, 483 So.2d 42, 43 (Fla. 2d DCA 1986) (noting that possession and control could be inferred from the fact that Fedor was the owner and driver of the vehicle in which marijuana was found in plain view). This inference is particularly appropriate when the trial court is considering a motion to dismiss. Reese, 774 So.2d at 950 (“As a joint occupant alone in close proximity to contraband in plain view, the State is entitled on a motion to dismiss to the inference that Reese had dominion and control over the contraband.”). Here, Gay was the registered owner and the driver of the vehicle, and the cocaine was found in plain view in close proximity to the driver’s seat. On these facts at the motion to dismiss stage, the State was entitled to the inference that Gay had dominion and control over the contraband. Fedor, 483 So.2d at 43.

Gay’s motion also alleged that the State failed to establish that he had knowledge of the presence of the cocaine. However, as a general proposition, “the issue of knowledge, as an element of constructive possession, is an ultimate question which a jury must decide on factual inferences; it is not subject to a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4).” State v. Duran, 550 So.2d 45, 46 (Fla. 3d DCA 1989) (internal citations omitted). Knowledge may be inferred from evidence of incriminating statements, actions, or circumstances that tend to show that the defendant was aware of the presence of the contraband. Fedor, 483 So.2d at 43.

Here, the State’s traverse asserts that when Gay was stopped, he immediately got out of the car and began emptying his pockets onto the roof of the car. While not directly incriminating, Gay’s actions could be construed as an attempt to avoid inspection of the interior of his vehicle by appearing to be overly cooperative with the officer. Given these allegations in the State’s traverse, the issue of Gay’s knowledge of the contraband should have survived Gay’s motion to dismiss.

Third, the trial court appears to have applied the improper legal standard when considering Gay’s motion. As noted above, the question at the motion to dismiss stage is not whether the State can obtain a conviction or even if the State can survive a motion for judgment of acquittal. Instead, the question is whether there are disputed facts and whether the undisputed facts establish a prima facie case. Kalogeropolous, 758 So.2d at 112; Dickerson, 811 So.2d at 747 (“[E]ven if the trial court doubts the sufficiency of the State’s evidence, it cannot grant a motion to dismiss criminal charges simply because it concludes that the case will not survive a motion for judgment of acquittal.”) (quoting Paleveda, 745 So.2d at 1027). Here, the trial court twice expressed, its belief that the State’s evidence, as gleaned from Gay’s motion and as set forth in the traverse, would not be sufficient to survive a motion for judgment of acquittal. However, because the State disputed Gay’s facts in its traverse and alleged additional facts that could establish a prima facie case, the trial court’s focus on the weight of the State’s evidence was misplaced.

Because the State’s traverse specifically disputed the factual allegations in Gay’s motion to dismiss and because the State alleged additional facts that gave rise to inferences that would support a finding of constructive possession, the trial court should have denied Gay’s motion to dismiss. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

DAVIS, J., and HARRIS, CHARLES M., Associate Senior Judge, Concur.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Adrian Lorenzo THOMAS, Appellee.
    No. 2D06-1329.
    District Court of Appeal of Florida, Second District.
    July 13, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellant.
    Michael A. Giasi of Frank de la Grana, P.A., Tampa, for Appellee.
   KELLY, Judge.

The State appeals the trial court order granting Adrian Lorenzo Thomas’s motion to suppress evidence in its case against him for two counts of possession of a controlled substance with the intent to sell or deliver within 1000 feet of a church, one count of possession of cannabis with the intent to sell or deliver, and one count of obstructing or opposing an officer without violence. Because the trial court erred in finding that the information provided by the confidential informant (Cl) was not sufficiently detailed or verifiable to give the officers probable cause to arrest Thomas, we reverse.

At the hearing on Thomas’s motion to suppress, Officer Nathan Sanders testified that he and Officer Sean Bell received information from a cooperating defendant (the Cl) that an individual she knew as A.D. would sell her one-half ounce of cocaine for approximately $400. The Cl had never previously provided information to the police and did so on this occasion following her own arrest. The Cl told the officers that she had purchased drugs from A.D. in the past and described him as a black male, medium height, with a dark complexion. She gave the officers A.D.’s cellular telephone number, told them he belonged to a gang called the ' “Drack Boys,” that he resided in the Sulphur Springs area, and that he drove a bronze-colored Lexus SUV. Officer Bell confirmed that there was in fact a member of the “Drack Boys” gang whose nickname was A.D.

The officers instructed the Cl to telephone A.D. and arrange a meeting to purchase the cocaine. The officers monitored and recorded that call as well as subsequent calls the Cl made to A.D. During the initial call, A.D. agreed to sell a “half’ to the Cl “for the same thing, $435” and directed her to meet him at a particular B.P. gas station. As the officers and the Cl waited in the gas station parking lot, a black male wearing a white t-shirt pulled up in a silver Lexus SUV. Neither the Cl nor the officers were able to clearly see the driver’s face. Consequently, the Cl could not confirm that A.D. was the driver. At that point, the officers instructed the Cl to call A.D. again and find out his location. The Cl called A.D. and he told her that he was at the B.P. station. However, the Cl still had not been able to see the driver of the SUV well enough to positively identify him as A.D. The SUV drove away approximately five minutes after arriving at the gas station.

At the officers’ request, the Cl again called A.D. to find out where he was. He told her that he had left the B.P. station because she had not shown up. A.D. told the Cl to meet him at the “Snacks” convenience store located in the Nuccio Park area near Sligh Avenue and 50th Street. The Cl told officers she knew the area because she had met A.D. at that location in the past. As the officers and the Cl approached the location, the Cl' called A.D., told him she was in the area, and asked him if he was at the convenience store. A.D. responded that he was and for the Cl to meet him. At that point, an officer watching the store observed a black male in a white t-shirt fitting A.D.’s description walking toward the store while talking on his cell- phone. The officers drove the Cl by the store, and she positively identified this individual as A.D. Her identification was corroborated by Officer Bell who testified that he recognized the black male walking toward the convenience store as A.D. based upon his prior investigation of the “Drack Boys” gang. After confirming the individual’s identity as A.D., the officers arrested and searched him. A.D., who turned out to be Adrian Thomas, had sixteen grams of cocaine and a Lexus key in his pocket and $898 in his wallet. A subsequent search of the Lexus SUV Thomas had been driving uncovered additional contraband.

Thomas moved to suppress the drugs seized from his person and from the SUV arguing, among other things, that the information provided by the Cl was not sufficient to give the officers probable cause to arrest him. At the conclusion of the hearing on the motion to suppress, the trial court entered an order granting Thomas’s motion after concluding that the information provided by the Cl “was not detailed verifiable information,” and, accordingly, the officers did not have probable cause to arrest Thomas. On appeal, the State contends that the Cl provided sufficiently specific and verifiable information to give rise to probable cause to arrest Thomas. In reviewing the trial court’s ruling on a motion to suppress, we give deference to the trial court’s findings of fact where they are supported by competent, substantial evidence; however, we review the trial court’s application of the law to the facts de novo. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001).

The existence of probable cause justifying a warrantless arrest depends on whether, when the arrest was made, “ ‘the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). Determining whether the probable cause standard is met when the police rely on information provided by a confidential informant requires an evaluation of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Butler, 655 So.2d 1123, 1125 (Fla.1995). Information regarding the informant’s veracity, reliability and basis of knowledge are relevant considerations in the totality of the circumstances analysis; however, they are not rigid requirements that must be independently satisfied in every case. Gates, 462 U.S. at 230, 103 S.Ct. 2317. “[A] deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. at 233, 103 S.Ct. 2317. (Citations omitted).

Here, the Cl indicated that she had personal knowledge that Thomas sold drugs because she had previously purchased drugs from him. The fact that Thomas responded to her telephone calls and that the calls influenced his actions corroborated the Cl’s claim that she knew Thomas and had done business with him in the past. The Cl described Thomas and provided his gang affiliation. Officer Bell confirmed that he knew of an individual whose nickname was A.D., that he was a member of the gang, and that he matched the description provided by the Cl. In the parking lot at the convenience store, the Cl identified Thomas as A.D., and Officer Bell confirmed that Thomas was the individual he knew as A.D. The police were able to observe Thomas’s actions in response to the controlled telephone calls made by the Cl and confirm that Thomas behaved in a manner that was consistent with the telephone conversations. Further, because the officers monitored and recorded both sides of the telephone conversations between the Cl and A.D., Thomas’s own words verified that he had sold drugs to the Cl in the past, that he intended to sell half an ounce of cocaine to her that day within a specified time, and that the transaction was to take place at a specified location.

While Thomas makes much of the fact that the Cl had not provided information to the police in the past, as explained in Gates, a deficiency in one circumstance relevant to demonstrating reliability may be overcome by a strong showing as to another or by some other indicia of reliability. Id. at 233, 103 S.Ct. 2317. The recorded telephone conversation in which Thomas agreed to sell cocaine to the Cl was a strong indicator of the reliability of the Cl’s claim and one which we have no problem concluding overcomes the fact that she had not previously provided information to the police. We also note that the Cl offered to provide the information to the police in conjunction with her arrest after police executed a search warrant at her residence. We have previously found that such circumstances may provide an indicia of reliability. See State v. Hendrex, 865 So.2d 531, 535 (Fla. 2d DCA 2003) (noting that the informant’s desire to curry favor with police would make it more likely that he would provide truthful information). In light of all the circumstances, we conclude that the officers had sufficient reasonably trustworthy information, not the least of which was Thomas’s own words, “to warrant a man of reasonable caution in the belief’ that Thomas possessed cocaine that he intended to sell to the Cl. Accordingly, we reverse the order granting Thomas’s motion to suppress and remand for further proceedings.

Reversed and remanded.

WHATLEY and CASANUEVA, JJ„ Concur.


author: EVANDER, J.

text:
    Johnathan EASTES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3583.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2007.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.

      . § 784.07, Fla. Stat. (2005).

   EVANDER, J.

Eastes was convicted, after a jury trial, of battery of a law enforcement officer, resisting an officer with violence, and resisting an officer without violence. He contends the trial court erred in denying his motion to suppress evidence and his motion for judgment of acquittal. We affirm.

The charges against Eastes stem from an incident on May 21, 2005. Melbourne police officers Wical and Stover were dispatched to Eastes’ apartment at approximately 3:00 a.m. The officers were advised: “Disturbance call, possible suicide. Somebody who was potentially suicidal was at the house.” Upon their arrival, officers Wical and Stover observed Eastes standing in the doorway of his apartment. Eastes appeared angry and was clenching a beer in one hand. The other hand was clenched to his side. Eastes had blood from his forearms down to his fingers on both arms.

Eastes refused to respond to the officers’ inquiries as to whether there was anything wrong. Furthermore, the officers were unable to determine the cause of the blood on Eastes’ arms. Officer Wical was able to look into Eastes’ apartment and observed broken glass on the floor as well as furniture in a state of disarray. Eastes then walked into his apartment. Officer Wical followed Eastes. At that time, Officer Wical observed that Eastes had fresh blood dripping from his arms. The microwave looked as though it had been punched as there was a hole the size of a fist in the middle of the door. There was blood on the microwave door, on a table, and on the floor. Wical also concluded Eastes was very intoxicated.

At this point, Officer Wical decided to take Eastes to Circles of Care, a local mental health facility. Wical advised Eastes of his intent to take him to Circles of Care for a mental health evaluation. Wical explained to Eastes that he was not under arrest.

Eastes refused to cooperate with Officer Wical. He eventually began to swing his arms at Wical and Stover. By this time, Wical and Stover had been joined by Officer Mayada Ashouri. Ashouri tried to grab Eastes’ arm. As soon as she did, Eastes tried to punch Ashouri. He missed with the first punch but connected to Ash-ouri’s head with the second punch. Wical then “taseréd” Eastes. Eastes was handcuffed, placed under arrest, and taken to a patrol car. In route, Eastes started crying and stated he wanted to kill himself.

Officer Wical escorted Eastes to the emergency room of the local hospital. It was determined that Eastes’ lacerations were minor and no stitches were required. Eastes was later transported to the Melbourne Police Department for the booking process. There, he refused to sign any paperwork or to be fingerprinted. He was not taken to Circles of Care because that facility will not take a person who is under arrest. In his police report, Officer Wical did request that Eastes be sent to the jail’s “physician unit.” Wical testified that the jail’s “physician unit” had mental health staff to treat suicidal individuals.

As a result of the events which occurred at his apartment, Eastes was charged with battery of a law enforcement officer and resisting an officer with violence. He was also charged with resisting an officer without violence as a result of his refusal to cooperate with police during the booking process at the Melbourne Police Department.

On appeal, Eastes first argues that the trial court erred in failing to exclude any evidence obtained subsequent to Officer Wical’s warrantless entry into his apartment. Although it is unclear as to what evidence Eastes requested to be suppressed, we will address the legality of Officer Wical’s entry into the apartment. The Fourth Amendment does not bar a police officer from making a warrantless entry into a residence when the officer reasonably believes that a person within is in need of immediate aid. See Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Riggs v. State, 918 So.2d 274, 279 (Fla.2005).

Our decisions therefore confirm that authorities may enter a private dwelling based on a reasonable fear of a medical emergency. In those limited circumstances, the sanctity of human life becomes more important than the sanctity of the home.

Riggs, 918 So.2d at 281. Furthermore, it is immaterial whether an actual emergency existed. The test is whether the officer reasonably believed an emergency existed at the time of the warrantless entry. Seibert v. State, 923 So.2d 460, 468 (Fla.), cert. denied, — U.S. -, 127 S.Ct. 198, 166 L.Ed.2d 162 (2006). The officer’s search must be “strictly circumscribed by the exigencies which justify its initiation.” Mincey, 437 U.S. at 393, 98 S.Ct. 2408. Thus, an officer must cease a search once it is determined that no emergency exists. Seibert, 923 So.2d at 468.

In the present case, Officer Wical had a reasonable basis to believe that a medical emergency existed at the time he entered Eastes’ apartment. The officers were responding to a “disturbance, possible suicidal person” call. Eastes had blood on both arms from his forearms to his fingers. There was broken glass on his apartment floor and his furniture was in disarray. Eastes made no attempt to dispel Wical’s concerns for his' (Eastes’) safety at any time prior to Wical’s entry into the apartment.

The concerns that justified Officer Wical’s entry into the apartment were not alleviated prior'to Eastes’ battery of Officer Ashouri. After entering Eastes’ apartment, Wical observed Eastes’ arms were still bleeding and there was blood on the microwave door, on a table, and on the floor. Additionally, Eastes continued to refuse to provide any information to Wical, which might alleviate Wical’s belief that Eastes was a threat to harm himself. The evidence amply supports the trial court’s conclusion that Officer Wical had legally entered Eastes’ apartment.

Eastes next contends the trial court erred in denying his motion for judgment of acquittal as to the battery of a law enforcement officer and the resisting an officer with violence charges. Specifically, Eastes claims the evidence was insufficient to establish that he met the criteria for an involuntary examination, ■ and therefore, the officers were not engaged in the lawful execution of a legal duty. We reject this argument.

In non-arrest cases, the State must prove that the officer was engaged in the lawful execution of a legal duty in order to convict a defendant of battery of a law enforcement officer or resisting an officer with violence. Tillman v. State, 934 So.2d 1263 (Fla.2006).

The Florida Mental Health Act authorizes a law enforcement officer to take a person who appears to meet the criteria for involuntary examination into custody. Lukehart v. State, 776 So.2d 906, 914 n. 4 (Fla.2000), cert. denied, 533 U.S. 934, 121 S.Ct. 2561, 150 L.Ed.2d 726 (2001). The criteria for an involuntary examination are set forth in section 394.463(1), Florida Statutes (as amended effective Jan. 1⅝ 2005):

(1) Criteria. — A person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness:
(a)l. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or
2. The person is unable to determine for himself or herself whether examination is necessary; and
(b)l. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or
2.There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.

Here, the evidence supports a determination that Eastes met the criteria for an involuntary examination. His behavior, his physical condition, and the condition of his apartment suggested a substantial likelihood that, without care or treatment, Eastes would cause serious injury to himself in the near future. The evidence further supported a conclusion that Eastes was possibly suicidal and unable to determine for himself whether an examination was necessary. Under these circumstances, the officers were justified in placing him in protective custody for involuntary examination. See Thomas v. State, 748 So.2d 363 (Fla. 5th DCA 2000) (holding that officers were authorized to detain the defendant pursuant to the Florida Mental Health Act where defendant was covered in blood, had some type of head injury, was speaking incoherently, and flailing his arms in an irrational manner). There was sufficient evidence to support a finding that the officers were engaged in the lawful execution of a legal duty at the time of Eastes’ violent actions.

AFFIRMED.

PLEUS and LAWSON, JJ., concur.

      . § 843.01, Fla. Stat. (2005).

      . § 843.02, Fla. Stat. (2005).

      .The record does not reflect who provided this information to the police department.

      . Amendment IV, United States Constitution:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . As to the crime of battery of a law enforcement officer, section 784.07, Florida Statutes (2005), utilizes the language "is engaged in the lawful performance of his or her duties.” As to the offense of resisting an .officer with violence, section 843.01, Florida Statutes (2005), uses the language "in the lawful execution of any legal duty.” The Florida Supreme Court concluded these elements were functionally equivalent. Tillman, 934 So.2d at 1266, n. 2.

      . §§ 394.451-.4789, Fla. Stat. (as amended effective Jan. 1, 2005).


text:
    Michelle Bennett WOODIE, Appellant, v. Larry CAMPBELL, Sheriff of Leon County, Florida, Appellee.
    No. 1D06-4110.
    District Court of Appeal of Florida, First District.
    July 18, 2007.

      Nancy A. Daniels, Public Defender, David P. Gauldin and Leonard Holton, Assistant Public Defenders, 'Tallahassee, Attorneys for Appellant.
    Bill McCollum, Attorney General, Thomas D. Winokur and Robert R. Wheeler, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s order finding her in direct criminal contempt and sentencing her to one day in jail. Because we find that the trial court erred in finding her in direct criminal contempt, we reverse.

On July 14, 2006, Appellant attended her son’s, detention hearing in juvenile court. Based on the nature of the charges, the trial court ordered Appellant’s son to be held in secure detention pending his arraignment and trial. The trial court also provisionally appointed the Public Defender to represent Appellant’s son. Appellant became angry because she had hoped her son would be released into her custody and she wanted to hire a private attorney.

After Appellant left the courtroom and the trial court began another juvenile hearing, the Assistant State Attorney asked to approach the bench on Appellant’s son’s case. He informed the judge that Appellant called the judge a “bitch” as she walked past counsel table and out of the courtroom. The judge determined that it was too late to call Appellant back to the courtroom, and resumed the next case.

On August 9, 2006, a contempt hearing was held. The Assistant State Attorney testified that Appellant called the judge a “stupid bitch” and further testified that another mother told him she heard Appellant say this and was shocked by Appellant’s comment. The trial court stated that two other witnesses had testified or mentioned on the record that they also heard Appellant’s remark. After giving Appellant an opportunity to show cause why she should not be held in contempt and to present any mitigating circumstances, the trial court found her in direct criminal contempt.

Using profanity to refer to the trial court clearly constitutes contemptuous conduct. See Saunders v. State, 319 So.2d 118, 124 (Fla. 1st DCA 1975). To constitute direct criminal contempt, however, the profane statement must be heard by the court and committed in- the court’s actual presence. Fla. R.Crim. P. 3.830 (2006) (“A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.”); Barr v. State, 334 So.2d 636 (Fla. 2d DCA 1976), receded from on other grounds by Martinez v. State, 339 So.2d 1133 (Fla. 2d DCA 1976) (reversing the appellant’s conviction for direct criminal contempt because the judge did not hear the appellant call him a son-of-a-bitch; only the bailiff brought the appellant’s comment to the court’s attention); Payne v. State, 486 So.2d 74 (Fla. 4th DCA 1986) (reversing a direct criminal contempt conviction when the judge heard a one-word expletive, not the alleged comment which two witnesses claimed to have heard).

Additionally, “[cjriminal contempt requires some willful act or omission calculated to hinder the orderly functions of the court.” Sewell v. State, 443 So.2d 164, 165 (Fla. 1st DCA 1983). Conduct which is calculated to embarrass, hinder, or obstruct the trial court in the administration of justice or that which is calculated to lessen the court’s authority or dignity constitutes criminal contempt. Thompson v. State, 618 So.2d 781, 784 (Fla. 5th DCA 1993); see also L.C.W. v. State, 936 So.2d 1214, 1214 (Fla. 5th DCA 2006) (reversing a direct criminal contempt conviction because “the trial court did not hear the alleged contemptuous statement uttered by [appellant], the comment did not obstruct or hinder the administration of justice, and the trial court failed to recite the facts upon which the finding of contempt was made.”).

Here, the trial court did not hear Appellant’s comment or even Appellant mumbling something under her breath, which would alert the court that Appellant had said something inappropriate. In addition, Appellant’s action did not interrupt or hinder the orderly functions of the court, as the trial court had moved on to another hearing. Thus, we find this case distinguishable from both Saunders and Stavely v. State, 473 So.2d 748 (Fla. 1st DCA 1985), and we reverse Appellant’s conviction.

REVERSED.

BENTON, PADOVANO and THOMAS, JJ., concur.


text:
    Brian Anthony MORRIS, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D06-2002.
    District Court of Appeal of Florida, First District.
    July 18, 2007.
    Brian Anthony Morris, pro se.
    Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

The appeal is hereby dismissed for lack of jurisdiction. Luttrell v. Fla. Parole Comm’n, 578 So.2d 11 (Fla. 1st DCA 1991); Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

BROWNING, C.J., POLSTON and HAWKES, JJ., concur.


author: STONE, J. FARMER, J.,

text:
    Jacqueline M. ALSTON, Appellant, v. Ann C. ALSTON, Appellee.
    No. 4D06-286.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.

      Stan L. Riskin of Stan L. Riskin, P.A., Plantation, for appellant.
    Steven A. Mason of Law Offices of Steven A. Mason, P.A., Hollywood, for appel-lee.
   STONE, J.

Jacqueline Alston (Second Wife) appeals a summary final judgment in favor of the plaintiff, Ann Alston (Former Wife). We reverse.

Former Wife brought suit after she was denied military survivor benefits by the Army Board for Correction of Military Records. The marital settlement agreement (MSA), incorporated into the judgment of dissolution of her marriage to Colonel Alston, provided that she would be entitled to maximum military survivorship benefits upon his death.

The military survivor benefit plan allowed payment to a former spouse after certain conditions were met. In this case, it required submission of military form DD 2656-1 within one year of the Alston’s divorce in 1999. Unaware of this condition, Colonel Alston submitted the correct form in 2004, nearly four years after the Army’s deadline. Colonel Alston had remarried in 2000. Second Wife was one of the witnesses to his ill-timed execution of form DD 2656-1. The colonel died a month after he submitted the form.

Former Wife’s application for survivor benefits was denied by the Department of the Army due to the colonel’s untimely filing of the form. A subsequent appeal of this decision was denied on the same grounds; the “Discussion and Conclusions” section of the military’s order ends with the following paragraph:

4. The [former service member] had remarried in June 2000. After his first anniversary, his [second] wife became the legal beneficiary of the [service benefit plan]. Absent consent of the widow to correct to FSM’s records to provide for former spouse coverage in lieu of spouse coverage, to grant the applicant’s request at this date would constitute an unconstitutional taking from his widow.

(Emphasis added)

In this suit, Former Wife alleges that Second Wife was unjustly enriched by receipt of the military benefits. She seeks a mandatory injunction directing Second Wife to execute a consent to transfer of the survivorship benefit to Former Wife in accordance with the judgment of dissolution. Neither party argues that the military board ruled on any basis other than timeliness. Although the military board recognized the Second Wife could consent to Former Wife’s claim, there is no indication that the military tribunal considered the issue decided and relied upon by the trial court in granting summary judgment, that by the act of witnessing the form, Second Wife, by inference, consented to a transfer to Former Wife.

We reverse the summary judgment because we conclude a waiver of Second Wife’s right to the benefits cannot be inferred, without more, simply from the act of witnessing her husband’s signature on the form. The only evidence supporting Second Wife’s waiver acquiescence appearing in the record on appeal is the act of witnessing. This was the sole basis for the trial court’s summary judgment. There is no indication or claim that there is evidence of additional circumstances regarding whether Second Wife’s act of witnessing was a waiver of her rights.

As a matter of law, waiver requires knowledge of facts and intentional conduct. See Estate of Ballett, 426 So.2d 1196, 1199 (Fla. 4th DCA 1983). There is no evidence in the record that Second Wife even knew what the form was, what its implications or effect were or could be, or that she intended anything whatsoever by her witnessing other than attesting to her husband’s signature. Neither is this a case where it can be said that Second Wife should have known that her signing as a witness would constitute acquiescence.

We reject, however, Second Wife’s arguments that the military board decision must control the outcome of this case and that the trial court usurped the jurisdiction of the military board. The military board decision did not address the relief claimed in this case by Former Wife. The board ruled solely on the basis of timeliness. Whether the military would recognize a judgment of the trial court mandating Second Wife’s consent is not for us to resolve in this appeal.

Therefore, we reverse and remand for consideration of First Wife’s claim on the merits.

MAY, J., concurs.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring.

This case brings us a rare stew. Judge Stone’s opinion outlines the basis for finding error in the summary judgment and for remanding the case to the trial court for a new determination. I write to add some views of my own on this strange controversy.

The former wife’s complaint alleged that her marriage was terminated by a final judgment in the same circuit court, case number 99-3902(39), entered in April 1999 before Judge Vitale. She alleged that under their “marital settlement agreement” (MSA) her husband transferred part of his military retirement benefits to her, their agreement saying:

“11. Military Retirement. The Husband and Wife shall equally split 50/50 the Husband’s net (after all deductions) military retirement payments held in the Husband’s sole name; however the Husband shall be entitled to 100% of any disability payments. The Husband shall execute all documents necessary to assign and transfer the foregoing payments to the Wife. These payments shall continue in perpetuity notwithstanding the remarriage of the Wife. The Wife shall be entitled to the maximum surviv-orship benefits, which is understood to be approximately fifty-five (55%) percent payable upon the death of the Husband, notwithstanding the remarriage of the Husband.”

She further alleged that the final judgment “ratified and approved” the MSA but did not allege that the final judgment explicitly enjoined him to do anything to have the Army recognize the MSA transfer of the survivorship benefit. She did allege that her former husband’s widow was being unjustly enriched by receiving the surviv-orship benefit he had previously transferred to her in the MSA, and prayed for a mandatory injunction requiring the widow to execute the proper form to carry out the transfer in the Army records. Most important as regards the summary judgment, she did not allege in any way that the widow had already consented by any previous act.

Apparently the former husband believed that he could not file the papers with the Army to recognize the transfer until he retired and then would have nine months in which to do so. Consequently he did not file the necessary papers with the Army until January 2004, about one month before he passed away. The Army rejected the filing, saying that it should have been filed with the Defense Finance and Accounting System within one year after the dissolution of marriage judgment. The former wife then sought relief from a federal administrative tribunal, the Army Board for the Correction of Military Records (ABCMR), empowered to grant relief by amending Army personnel records when “necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). That Board denied relief, saying:

“Absent consent of the widow to correct the former service member’s records to provide for former spouse coverage in lieu of spouse coverage, to grant the applicant’s request at this date would constitute an unconstitutional taking from his widow.”

The former wife reads that decision as an authorization to seek an injunction from the Florida state court requiring the widow to execute a consent form for the payment of the survivorship benefit to her. The circuit court in fact entered such a summary judgment in her favor, explaining:

“The court finds that the defendant acquiesced in this relief when she signed the DD Form 2656 — i as a witness on 11 January 2004, and that her acquiescence constituted a legal waiver of her claim to Colonel Alston’s military retirement pay under the Army’s SBP. Accordingly, she cannot object to the relief sought by the plaintiff in count II of her complaint.”

I agree with Judge Stone that this analysis is in error. It decides an issue not raised in any pleading in this case — namely whether the widow acquiesced in the former wife’s claim to the pension benefits by witnessing her husband’s signature.

In this appeal, the widow argues that the principles of res judicata and estoppel by judgment bar the former wife’s claim to the pension. Under Florida law, such pleas in bar may not be applied to persons who were not parties to the proceeding arising in the judgment said to bar the current claim. Here the “judgment” to be applied is from a federal agency, the ABCMR, and so the question is probably whether under federal law, not Florida law, its decision would be treated as binding in federal courts. I suspect that it would. See 28 U.S.C. § 1738 (requiring full faith and credit to decisions of courts); see also Hazen Research Inc. v. Omega Minerals Inc., 497 F.2d 151, 153 (5th Cir. 1974) (under § 1738 requiring every court within United States to give full faith and credit to judicial decisions of state courts, state courts are required to extend full respect to judgments of federal judicial tribunals within the states, in absence of any such direct statutory command); Owings v. Secretary of U.S. Air Force, 298 F.Supp. 849, 853 (D.D.C.1969), rev. on other grounds, 447 F.2d 1245 (C.A.D.C.1971) (court was limited to review of procedural history of case and to review of record; district court could not entertain a trial de novo); Moore v. Secretary of Army, 627 F.Supp. 1538, 1541 (D.Conn.1986) (fact that the ABCMR is required to fairly consider claims that record is incorrect under § 1552 does not mean that interested parties are entitled to de novo determination as to corrections of records in the district court, nor are they entitled to correcting action by the ABCMR merely because they say that record is incorrect; only right is the right to review of the ABCMR’s action, test being whether such action was arbitrary or'capricious). If the federal courts would not grant a trial de novo on the merits of an issue decided by the ABCMR, I do not believe Florida courts should do so either. Doing so would allow a party to have a trial de novo in a state court of an issue settled by the ABCMR, when such relief is not available in the federal courts that review such decisions.

I do not, mean to suggest for a moment that the reasoning of the ABCMR is persuasive. To say that enforcing the divorce judgment to effect the transfer then made would amount to an unconstitutional taking from the widow begs a very serious question. If the transfer was actually made previously with the entry of the Florida court’s final judgment of divorce, what property interest in the pension did the widow lawfully have during the ABCMR proceedings that could be taken unconstitutionally? The ABCMR seems to think that the military record sought to be corrected — even if incorrect — nevertheless had the effect of making the widow’s retention of benefits belonging to the former wife a justice needing no correction. But if property rights arising under state law are determined by a state judgment, how could this military tribunal do anything to affect a transfer of such rights? Isn’t the authority of the ABCMR limited to correcting military records rather than transferring property rights arising under state law?

In this state court case, on the other hand, the former wife seeks only a mandatory injunction requiring the widow to consent to the correction of the decedent’s military records. In short, how could a new state court proceeding reach any result that conflicts with the decision of the ABCMR? Wouldn’t the result sought by the former wife instead merely establish a condition that the ABCMR thinks is necessary for it to correct the military record? I certainly think so.

The ABCMR decision indicates that if the widow has so consented, then the record could in fact be corrected to reflect that consent. To be sure, I must say, this strikes me as very odd. Husband actually made the transfer years ago, and it was then ratified and confirmed by a state court having jurisdiction and the proper occasion to do so. Is there some reason why the ABCMR should not recognize that judicially established fact?

Full faith and credit works both ways. Is there some reason why the Army should not be required to accept as an established fact — one already carrying the authority of a state court judgment — that the former wife is the proper owner of the survivor-ship benefits? Why should the widow’s consent be even indicated, much less made necessary? The principle underlying the ABCMR’s position seems to make the return of my property to me necessarily dependent on the consent of the person who illegally retains it. I recall an epigram from my earliest days as a lawyer to the effect that “military justice is to justice as military music is to music.” See R. Sherrill, Militahy Justice Is To Justice As MilitaRY Music Is To Music (1970). But even in such a system the rationale of the ABCMR is positively bizarre.

• Hence, I do not agree that our state court is barred from entering such an injunction. It would not interfere in any way with the jurisdiction or unique responsibilities of the ABCMR. Indeed the ABCMR actually invited this very exercise of state court jurisdiction.

I agree with Judge Stone that nothing supports the rationale of the trial judge here. The complaint did not allege that the widow had already consented by prior voluntary act. No, the former wife’s complaint alleged only that he had transferred the right to her as part of their settlement of the dissolution of marriage action, that in receiving the transferred benefits the widow was being unjustly enriched at the expense of the former wife, and that the court should therefore order the widow to formally execute a written consent to the transfer to the former wife. I concur in reversing the summary judgment because the court’s rationale is legal error not based on any supporting allegation.

On remand the parties should proceed within the limited framework of what has been alleged. That is an equitable claim to a mandatory injunction requiring the widow to execute consent forms that would be recognized by the ABCMR as sufficient to pay survivorship benefits to the former wife. It seems to me that the only evidence necessary to make the former wife’s case would be the final judgment of dissolution of marriage, which the court could judicially notice; evidence as to the proceedings in the ABCMR regarding the payment of the survivorship benefits to the widow instead of the former wife; and finally an opportunity for the widow to show — if she can — what lawful claim to such benefits she may have that she thinks is superior to the former wife’s.

I do not believe that the failure of the husband to make a timely application for transfer within one year of the final judgment gives his widow a right to claim marital property from the first marriage previously transferred by him as part of his divorce. His failure to supply the Army with notice of the transfer cannot possibly amount to a waiver by the former wife of the property right she received in the final judgment of dissolution of marriage. It involved no conduct by her. The only effect of his failure to file military paperwork is to delay having the Army records record the true ownership of the survivorship benefits.

If the trial court should then decide that the widow is indeed being unjustly enriched and enters a mandatory injunction requiring the widow’s consent, then the former wife will have the consent to return to the ABCMR (or such other federal tribunal as may be necessary) to have the military records speak the truth so that she can begin receiving the survivorship benefits.

      . She did not seek post dissolution relief before that judge who entered the final judgment to enforce the final decree by enjoining husband to timely file the paperwork necessary for the military to recognize the transfer.

      . Her complaint alleges that true copies of both the Final Judgment and the MSA are attached, but the copies she has furnished us contain no such documents or attachments. I might add that this is a common failing, even among experienced appellate lawyers. Although a document such as a pleading or a contract is included in an appendix, more often than not the appendix copy fails to have the original attachments.

      . As the final judgment of dissolution was entered April 8, 1999, that means that the deadline for the filing would have been April 7, 2000. The attempted filing in January 2004 was nearly four years late according to Army rules. The former husband's date of death is in February 2004.

      . If the complaint had actually made such an allegation, then the widow’s endorsement on the form might have some probative value. Even though I agree that merely witnessing a signature on a document does not ipso facto indicate a consent to its contents, her signature on this particular document could nevertheless be loaded with significance. It was signed by the husband barely a few weeks before he died. Did he then know death was imminent? Was the action then a voluntary, last effort on his part to perform this duty to his former wife? Is it possible he asked his second wife to witness the transfer of what might otherwise have been her property to his first wife without telling her the significance of the paper? Is it possible they had no discussion of the effect of the paper on the widow? It seems to me that the answer to these questions might yield a conclusion that the widow consciously participated in his attempt to have the Army recognize the transfer in accordance with his wishes and obligations. If so, why should she now be heard to take a contrary stance when he is unable to respond? Knowingly assisting and participating in bringing about a specific result is of significantly different quality than merely witnessing a signature.


author: SHAHOOD, C.J.

text:
    Allan M. RUDD, Appellant, v. Sharon RUDD, Appellee.
    No. 4D06-102.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.

      Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellant.
    Lewis R. Shafer of Shafer & Associates, P.A., Boca Raton, for appellee.
   SHAHOOD, C.J.

Appellant, the husband in this dissolution of marriage proceeding, appeals the trial court’s order imposing a charging lien in favor of his former attorney, Lewis Shafer. Appellant contends that the charging lien must be dissolved because Shafer’s work did not produce favorable “proceeds.” Appellant also claims the charging lien violated due process by awarding an amount greater than that stated in Shafer’s notice of charging lien. We disagree with appellant and affirm as to these issues. Appellant also argues that the charging lien and resulting money judgment are improperly unlimited in scope and improperly include fees incurred in perfecting and enforcing the charging lien. We agree and remand for amendment of the order.

Shafer filed a notice of charging lien and motion to adjudicate the charging lien against appellant after withdrawing from the representation. The notice stated that appellant owed Shafer $11,853.93 in unpaid fees through March 31, 2005. The total amount of the charging lien entered by the trial court on October 11, 2005 was $20,700.39. The trial court made a specific finding that Shafer’s firm had successfully protected appellant’s assets and that the assets were the fruits of the attorney’s efforts. The charging hen order provided that Shafer’s lien extended to “all of the [Husband’s][] rights, titled [sic] and interest in and to any and all real and personal, tangible and intangible, property.” The total amount included $975.00 in legal fees as well as another $1,125.00 in expert witness fees incurred in perfecting and enforcing the lien.

“The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit.” Cole v. Kehoe, 710 So.2d 705, 706 (Fla. 4th DCA 1998)(quoting Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983)). “It is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.” Mitchell v. Coleman, 868 So.2d 639, 641 (Fla. 2d DCA 2004) (citation omitted).

Based on the language quoted from Mitchell, appellant attacks the charging lien with the argument that Shafer produced no favorable proceeds as fruit of his work on appellant’s case. We disagree. “A charging lien may issue in a dissolution action and attach to the proceeds that are awarded to the client as part of the equitable distribution of property.” Id.; see also Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88, 92 n. 5 (Fla. 3d DCA 1987); Dyer v. Dyer, 438 So.2d 954, 955 (Fla. 4th DCA 1983); Conroy v. Conroy, 392 So.2d 934, 936-38 (Fla. 2d DCA 1980). The trial court’s imposition of the charging lien in the present case was proper. The property appellant retained pursuant to the equitable distribution award was subject to the charging lien.

We next turn to appellant’s arguments regarding the lien’s scope and the inclusion of improper fees. “By definition, an attorney’s charging lien cannot attach to property not involved in the suit and not before the court.” Cole, 710 So.2d at 706. The charging lien in this case essentially purports to extend without reservation to any of the husband’s property interests. In Cole, this court remanded for amendment of a charging lien in favor of a wife’s former attorney because the charging lien was not limited to property put before the court by virtue of the dissolution action. Id. The lien in Cole purported to extend to property the wife did not own at the time of the suit in which the attorney had rendered services. Id.

As in this case, the charging lien at issue in Cole also included fees incurred in enforcing the lien. Id. We found the inclusion of these fees improper because the attorney’s efforts in enforcing the lien did not contribute to the wife’s interests in the dissolution action and in fact could properly be considered adverse to those interests. Id. The analysis in Cole applies squarely to the present case. On remand, the language of the charging lien order should be amended to reflect that it is limited in scope to the property before the court by virtue of the dissolution action. The fees associated with enforcing and perfecting the lien should be stricken.

Appellant also argues that the trial court erred in entering a lien and judgment that awarded Shafer a total amount higher than the amount stated in the notice of charging lien. We find this argument without merit. Charging liens filed during the pendency of a proceeding may be filed before or after an attorney’s withdrawal in that proceeding. See Wolfe v. Wolfe, 540 So.2d 901, 901 (Fla. 4th DCA 1989). Shafer properly filed his notice of charging lien after his withdrawal but pri- or to final judgment in appellant’s case. See Brydger v. Wolfe, 847 So.2d 1074, 1076 (Fla. 4th DCA 2003). The notice of charging lien filed by Shafer stated the amount appellant owed him as of a certain date. Appellant had notice that more fees were incurred in connection with the representation between the specified date and the time of withdrawal. See id.

Appellant’s final claim is that the trial court erred in denying his motion to vacate the lien order and judgment under rule 1.540(b), Florida Rules of Civil Procedure. We conclude the trial court did not abuse its discretion and affirm on this issue without further discussion.

Affirmed in part, Reversed in part, and Remanded.

KLEIN, J., and REYES, ISRAEL U., Associate Judge, concur.

      . The original lien order contains a scrivener's error, referring to the “Wife’s” property as subject to the charging lien instead of that of the husband.


text:
    Stephen PERRETTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4411.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his conviction and sentence following a plea to a felony battery charge. The public defender filed an Anders Brief. However, in reviewing the record, we find this appeal to be premature. We therefore remand the case to the trial court.

The defendant entered a plea to one count of felony battery in exchange for the State’s nolle prosequi of a count for attempted sexual battery. The trial court sentenced the defendant to five years in Florida State Prison. Within thirty days of his sentence, the defendant filed a pro se motion to withdraw plea, alleging that his plea was involuntary based upon the misadviee of counsel. More specifically, the defendant alleged that his lawyer had told him that he should plead to the felony battery charge in exchange for the State’s nolle prosequi of the attempted sexual battery charge because the latter charge carried a twenty-five-year mandatory minimum sentence. When the motion was filed, the defendant was represented by counsel. The trial court never ruled on the motion.

The public defender filed an Anders Brief, not only suggesting there were no issues of merit, but also suggesting that there would be no need to remand the case for a ruling on the motion to withdraw because the misadviee alleged was actually not misadviee. In essence, the public defender agreed with the state that the mandatory minimum twenty-five-year sentence did apply to the attempted sexual battery charge.

Our review of the record reveals the following. First, the pro se motion to withdraw was timely filed. See Fla. R.Crim. P. 3.170(J). Second, the filing of the motion suspended rendition of the conviction and sentence. This renders the notice of appeal premature. McGee v. State, 947 So.2d 681, 682 (Fla. 2d DCA 2007).

Third, the pro se motion falls within an exception to the general rule preventing a defendant from filing pro se motions while represented by counsel. See Bermudez v. State, 901 So.2d 981, 984 (Fla. 4th DCA 2005) (pro se motion to withdraw was not a nullity even though defendant was represented by counsel). Fourth, an evidentiary hearing will be necessary to resolve the motion to withdraw. See Cadet v. State, 795 So.2d 228, 229 (Fla. 4th DCA 2001).

We therefore remand the case to the trial court for appointment of conflict-free counsel and an evidentiary hearing on the defendant’s pending motion.

Remanded.

GUNTHER, FARMER and MAY, JJ., concur.


text:
    Robert BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4472.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Robert Brown, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse, in part, an order summarily denying Brown’s rule 3.850 motion for post-conviction relief. We conclude that Brown has demonstrated entitlement to a hearing on his claim of newly discovered evidence.

Brown was convicted of manslaughter for the stabbing death of the victim. The motion included a claim of prosecutorial misconduct in which Brown claims that the prosecution deliberately deceived the court and the jury by presenting critical testimony which the state knew was false.

Brown attached, as exhibit B to his motion, an affidavit of a state witness, Jerome Fiddeman, stating that he had testified falsely. Fiddeman said that he was held in jail without bond until trial and was told his own charges would be dropped if he testified against Brown, notwithstanding that he had told the prosecution he did not know anything about the case and was not there when the incident happened, but had heard about it the next day.

Brown claims that without Fiddeman’s testimony, there was no proof as to Brown’s motive — that he was out to get the victim because the victim previously had stolen drugs from him — and that the remaining evidence was not inconsistent with Brown’s allegation of self-defense.

Brown had stated to the police that the stabbing occurred when he resisted the victim’s attempt to rob him, and they struggled over the victim’s pistol. His statements were published to the jury at his trial.

The state has not disputed that Brown did not know of the information in Fidde-man’s affidavit before his trial and could not have discovered it with the exercise of due diligence. See McLin v. State, 827 So.2d 948 (Fla.2002) (holding that an evi-dentiary hearing is required on a claim of newly discovered evidence, based on the recantation of trial testimony, unless the sworn allegations are conclusively refuted by the record, or are inherently incredible); see also Roberts v. State, 678 So.2d 1232, 1235 (Fla.1996); Robinson v. State, 736 So.2d 93 (Fla. 4th DCA 1999).

Because we review Brown’s claim as one based on newly discovered evidence, we need not resolve whether he is also entitled to relief for prosecutorial misconduct pursuant to Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

We, therefore, reverse and remand for further proceedings on this ground only. In all other respects, the order is affirmed.

SHAHOOD, C.J., STONE and GROSS, JJ., concur.

      . To prove a Giglio violation, "a defendant must show: (1) that the testimony was false; (2) that the prosecutor knew the testimony was false; and (3) that the statement was material.” Cooper v. State, 856 So.2d 969, 973 (Fla.2003) (quoting Spencer v. State, 842 So.2d 52, 70 (Fla.2003)). We recognize that Fiddeman’s affidavit indicates he told the authorities two versions as to what he knew. Whether the state "knew” the original version was false and the later version was true is not clear. However, it is arguable that Fiddeman told the prosecution that he knew nothing about the case and that the prosecution, nevertheless, insisted that he testify to his recanted version.


author: ROTHENBERG, Judge.

text:
    ABEL HOMES AT NARANJA VILLAS, LLC, Appellant, v. Anselmo HERNANDEZ and Juaquin Lloveras, Appellees.
    No. 3D07-728.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.

      Hermelee & Geffin, and Alan G. Geffin, Miami, and Christopher Perez-Gurri, for appellant.
    Billbrough & Marks, P.A., and Geoffrey B. Marks, Coral Gables; Quintana and Associates, P.A., and J. Luis Quintana; and Gonzalo R. Dorta, Miami, for appel-lees.
    Before GERSTEN, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

The defendant, Abel Homes at Naranja Villas, LLC (“Developer”), appeals a non-final order of the trial court denying its motion to stay the proceedings and compel arbitration, arguing that pursuant to the parties’ agreements, it is entitled to elect arbitration of the claims asserted against it by the plaintiffs, Anselmo Hernandez and Juaquin Lloverás (“Purchasers”). Because we find that the Developer failed to elect arbitration within the time specified under the clear and unambiguous language of the arbitration provision, we affirm.

The facts pertaining to the issue on appeal are as follows. The parties entered into two identical real estate purchase agreements for the purchase of two condominium units to be built by the Developer (“Agreements”). Pursuant to the terms of the Agreements, the Purchasers placed in escrow with the Developer’s escrow agent deposits in the amount of $19,390.00 for each respective unit. Section 29 of the Agreements contains an arbitration provision, which specifies that:

Purchaser agrees to as follows: Prior to commencing any legal proceeding against [Developer], or any of [Developer’s] affiliates, Purchaser shall give [Developer] twenty (20) days written notice of its claim. If [Developer] elects to have Purchaser’s claim submitted to Arbitration, then Purchaser shall be first obligated to have his or her claim process through Arbitration proceedings pursuant to the rules of the American Arbitration Association. If [Developer] elects not to submit Purchaser’s claim to Arbitration, then Purchaser may proceed by Legal process against [Developer].

On or about November. 13, 2006, when the construction of the units had not been completed as contemplated by the parties’ Agreements, the Purchasers, through their counsel and pursuant to the above arbitration provision, notified the Developer of their intent to commence litigation if the Developer did not return to them their escrow deposits. When the Developer failed to respond or to refund the Purchasers’ deposits, the Purchasers filed an eight count complaint on December 6, 2006 against the Developer: After requesting an extension of time to respond and prior to filing an answer, the Developer filed a motion to stay the proceedings and to compel arbitration based on the above arbitration provision, which the trial court denied. The Developer appeals the trial court’s non-final order denying its motion to stay and to compel arbitration.

Wé review an order denying a motion to compel arbitration de novo. Waterhouse Constr. Group, Inc. v. 5891 SW 64th St., LLC, 949 So.2d 1095, 1097 (Fla. 3d DCA 2007); Hillier Group, Inc. v. Torcon, Inc., 932 So.2d 449, 452 (Fla. 2d DCA 2006). Under both the Florida Arbitration Code and the parallel federal statutory provisions, “there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); Waterhouse Constr., 949 So.2d at 1097-98. The issue we must resolve is whether the failure of the Developer to elect to have the Purchasers’ claims submitted within the twenty days specified in Section 29 of the Agreements constitutes a waiver.

Since “arbitration provisions are contractual in nature, construction of such provisions and the contracts in which they appear remains a matter of contract interpretation.” Seifert, 750 So.2d at 636. “[T]he interpretation of contract provisions is a question of law for the courts where the language is clear, unambiguous and susceptible [to] only one interpretation.” Turner Constr. Co. v. Cent. Fla. Equip. Rental, Inc., 904 So.2d 474, 475 (Fla. 3d DCA 2005)(Green, J. specially concurring); see also Gray v. D & J Indus., Inc., 875 So.2d 683, 683 (Fla. 3d DCA 2004)(“The construction of a contract is a question of law for the courts to determine where the language used in the written contract is clear, unambiguous, and susceptible of only one interpretation.”). Where contractual provisions are clear and unambiguous, the court must give those terms their plain and ordinary meaning. See Pol v. Pol, 705 So.2d 51, 53 (Fla. 3d DCA 1997)(concluding that where a contract provision is unambiguous, a court cannot re-write the terms thereof and the plain meaning of the parties’ contractual language controls). Based on our de novo review of the contractual arbitration provision in this case, we conclude that the Developer waived its right to arbitration by failing to timely serve a demand for arbitration within the twenty-day time limit specified in the Agreements.

In reaching this conclusion, we recognize that all doubts concerning the scope or waiver of the right to arbitrate under contracts are to be resolved in favor of arbitration. See Waterhouse Constr., 949 So.2d at 1099; Citigroup, Inc. v. Boles, 914 So.2d 23, 25 (Fla. 4th DCA 2005). However, this principle applies only where the contractual provision is ambiguous or uncertain, Boles, 914 So.2d at 25, and “where the contract provision is not doubtful, arbitration should not be ordered.” Ocwen Fed. Bank FSB v. LVWD, Ltd., 766 So.2d 248, 249 (Fla. 4th DCA 2000).

In the instant ease, the terms of the arbitration provision provide that prior to even commencing legal action against the Developer, the Purchasers were required to give the Developer twenty days’ notice of their claims. If the Developer elected to have the matter processed through arbitration, the Purchasers were required to arbitrate their claims. Thus, whether or not to resolve the Purchasers’ claims through arbitration process rested, pursuant to the Agreements which were drafted by the Developer, with the Developer. It is only after notice to the Developer and the expiration of the twenty-day waiting period without either a successful resolution of its claims or a demand for arbitration by the Developer, that the Purchasers were contractually permitted to proceed with legal action against the Developer. It is undisputed that the Purchasers gave the Developer the requisite notice; the Developer failed to elect arbitration within the time provided pursuant to the arbitration provision in the Agreements; and the Purchasers, having heard nothing from the Developer, filed their claims in the circuit court.

The Developer argues that its obligation to elect arbitration pursuant to the Agreements, was open-ended. We disagree as we conclude that the terms of the arbitration provision are clear and unambiguous, and to conclude otherwise would render the twenty-day notice requirement meaningless.

The Developer further argues that even if it was required to elect arbitration within a specific period of time, the trial court erred in deciding the issue, as the issue of timeliness of a demand for arbitration is a question of fact for the arbitrator to decide, not the trial court. While we acknowledge that “in general, issues of timeliness are to be decided by the arbitrator,” O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 186 (Fla.2006), where, as here, the arbitration provision provides for a specific time period in which to make a demand for arbitration, the trial court was not required to submit the matter to an arbitrator for resolution. We, therefore, distinguish an arbitration provision which specifies the time provided to make a demand for arbitration, and those which simply provide that the demand be made “within a reasonable time.” See Seaboard Sur. Co. v. Cates, 604 So.2d 570, 571 (Fla. 3d DCA 1992)(holding that where the contract provision required that the defendant demand arbitration within thirty days after the plaintiff made an application for final payment, there was no issue of fact as to the timeliness of the demand for the arbitrator to decide and it was proper for the trial court to decide this issue); see also Hardin Int’l, Inc. v. Firepak, Inc., 567 So.2d 1019, 1021 (Fla. 3d DCA 1990)(holding that where the timeliness issue arose out of the passage of time between the initiation of the litigation and the three-year delay in demanding arbitration, the issue was one for the trial court to decide, not the arbitrator).

We need not address the other arguments raised on appeal, as our finding that the Developer did not timely elect to arbitrate is dispositive.

Affirmed.