text:
    Antonio JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1192.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Antonio Johnson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A); Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(D); Fla. R.Crim. P. 3.850(d).

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brad K. GATHERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-4768.
    District Court of Appeal of Florida, First District.
    June 29, 2006.
    Michael Ufferman of the Michael Uffer-man Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the state provided no evidence to establish that the shooting in this case was intentional, appellant’s conviction is reversed and this matter is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

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


text:
    Donald STEPHENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0258.
    District Court of Appeal of Florida, First District.
    June 29, 2006.

      Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for Petitioner.
    Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Because the trial court did not depart from the essential requirements of the law in denying petitioner’s request that his expert witness be allowed to attend petitioner’s examination by a neuropsychologist selected by the state, Stressman v. Lefler, 597 So.2d 308 (Fla. 2d DCA 1992)(holding it is not a departure from the essential requirements of law to deny request to have registered nurse attend an independent medical examination of the plaintiff), the petition for writ of certiorari is DENIED. The denial is without prejudice to petitioner raising below in a motion for protective order his argument that a videographer should be permitted to attend his examination by a neuropsychologist, after the examining doctor for the state is identified. See, e.g., Freeman v. Latherow, 722 So.2d 885 (Fla. 2d DCA 1998), cited with approval by this court in Byrd v. Southern Prestressed Concrete, Inc., 928 So.2d 455 (Fla. 1st DCA 2006); see also Broyles v. Reilly, 695 So.2d 832, 834 (Fla. 2d DCA 1997)(“[I]t would take an exceptional circumstance to permit anyone other than a videographer or court reporter and the plaintiffs attorney to be present on behalf of the plaintiff at a compulsory examination held pursuant to rule 1.360.”).

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


text:
    Frank A. MOSLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0612.
    District Court of Appeal of Florida, First District.
    June 29, 2006.
    Frank A. Mosley, pro se, Petitioner.
    Charlie Crist, Attorney General, and Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Frank A. Mosley is hereby afforded a belated appeal from the January 9, 2004, order of the Circuit Court for Okaloosa County denying his motion for postconviction relief in case numbers 01-1866 and 01-1867. See Jenkins v. State, 603 So.2d 641 (Fla. 5th DCA 1992). Upon issuance of mandate in this cause, a copy of the opinion will be transmitted to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, PADOVANO, and POLSTON, JJ., concur.


text:
    Angel BARRIOS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1468.
    District Court of Appeal of Florida, First District.
    June 29, 2006.
    Angel Barrios, pro se, Petitioner.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Angel Barrios is hereby afforded a belated appeal from judgment and sentence in Gadsden County case number 02-651 CFB. Upon issuance of mandate in this cause, a copy of the opinion will be transmitted to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court shall appoint counsel to represent Barrios in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

WOLF, PADOVANO, and POLSTON, JJ., concur.


text:
    Antoine MEDDLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1755.
    District Court of Appeal of Florida, First District.
    June 29, 2006.
    David A. Taylor of Selinger, Fletcher & Taylor, P.A., Jacksonville, for Petitioner.
    Charlie Crist, Attorney General, and Sheron L. Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Antoine Meddler is hereby afforded a belated appeal from judgment and sentence in Duval County case number 2004-CF-1695-AXXX-MA. Upon issuance of mandate in this cause, a copy of the opinion will be transmitted to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court shall appoint counsel to represent Meddler in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

WOLF, PADOVANO, and POLSTON, JJ., concur.


text:
    Maurice GRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1850.
    District Court of Appeal of Florida, First District.
    June 29, 2006.
    Richard A. Parker, Public Defender, Eighth Judicial Circuit, and Kevin S. Caldwell, Assistant Public Defender, Gaines-ville, for Petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Maurice Gray is hereby afforded a belated appeal from resentencing on remand in Alachua County case number 2003-CF-1886-A. Upon issuance of mandate in this cause, a copy of the opinion will be transmitted to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court shall appoint counsel to represent Gray in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

WOLF, PADOVANO, and POLSTON, JJ., concur.


text:
    Steven K. DUNLAP and Steven K. Dunlap Consulting Firm, Inc., Appellants, v. G & L HOLDING GROUP, INC., and G & L Bank, a federal savings bank in voluntary dissolution; G. Kay Griffith, individually; Keith Cotham, individually, Appellees.
    No. 1D06-2058.
    District Court of Appeal of Florida, First District.
    June 29, 2006.
    Michael C. Rayboun and Ryan M. Barnett of Whibbs, Rayboun & Stone, P.A., Pensacola; Harold F. Smith, Jr., Memphis, TN, for Appellants.
    Erick M. Drlicka of Emmanuel, Sheppard & Condon, Pensacola; Charles Robinson Fawsett of Shutts & Bowen, Orlando, for Appellees.
   PER CURIAM.

Having considered the two motions to dismiss for lack of jurisdiction, served on April 27, 2006, as well as the appellants’ response, filed on May 15, 2006, the motions are hereby GRANTED. The Court finds that the order on appeal is not an appealable final order. Dedge v. Crosby, 914 So.2d 1055 (Fla. 1st DCA 2005) (holding order granting motion to dismiss with prejudice is not a final appealable order). See also, Massachusetts Life Ins. Co. v. Crapo, 918 So.2d 393, 394 (Fla. 1st DCA 2006) (providing test to determine whether order is appealable as a partial final judgment). Accordingly, this appeal is hereby dismissed without prejudice to appellants’ right to file a timely notice of appeal once an appealable order is rendered.

WOLF, PADOVANO, and POLSTON, JJ., concur.


author: PALMER, J.

text:
    Phillip D. GUEST, Appellant, v. Larry D. CLAYCOMB and Lynn M. Claycomb, Appellee.
    No. 5D05-2392.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    Michael W. Youkon, Port Orange, for Appellant.
    Michael R. Riemenschneider and William H. Cantwell, II, of O’Brien Riemen-schneider, Wattwood & Cantwell, P.A., Melbourne, for Appellee.
   PALMER, J.

Phillip Guest appeals the trial court’s final order entering summary judgment in favor of Lynn Claycomb and Larry Clay-comb on six counts of Guest’s complaint based upon the statute of frauds. Finding that the statute of frauds does not apply to Guest’s claims for constructive trust and equitable lien, we reverse as to those counts. We affirm as to all other counts.

Phillip Guest filed suit against Larry Claycomb and his daughter, Lynn Clay-comb. Count I alleged a claim for ejectment, count II alleged a claim for fraud in the inducement, count III alleged a claim for breach of an oral contract and damages, count IV alleged a claim for breach of an oral contract and specific performance, count V alleged a claim for constructive trust, and count VI alleged a claim for equitable lien.

The complaint alleged that the Clay-combs are in possession of real property located in Brevard County and that Guest and Lynn Claycomb entered into an oral agreement regarding the subject property. More specifically, the complaint avers that, at the time of the parties’ oral agreement, Guest was in “financial difficulty and unable to secure additional credit” (in order to pay off the mortgage on the property), and Lynn Claycomb was a mortgage loan officer to whom Guest went to receive financial assistance. The complaint alleged that Claycomb agreed to obtain financing in her name on behalf of Guest, the funds from which would enable Guest to satisfy the mortgage on the property, pay off additional bills, and have approximately $10,000 in cash left over. However, before obtaining such financing, Clay-comb “required” Guest to deed the subject property to her and her father, Larry, with the “oral agreement that [the Clay-combs] would deed the property back to [Guest] upon repayment or assumption of the terms of the financing she arranged”. The complaint avers that Guest complied with the terms of the parties’ oral agreement by conveying ownership of the property to the Claycombs, but that in May 2001, when he prepared a deed which would convey the property back to him, the Claycombs refused to execute the deed.

Lynn Claycomb filed an answer generally denying liability and alleging several affirmative defenses including the statute of frauds.

Claycomb thereafter filed a motion for summary judgment arguing that she was entitled to receive a judgment in her favor on several theories, including the application of Florida’s statute of frauds. Thereafter, the trial court entered an order summarily granting Claycomb’s motion for summary judgment and entering judgment against Guest. This appeal timely followed.

Guest argues that the trial court erred in entering summary judgment against him claiming, among other things, that the evidence of record does not support the application of Florida’s statute of frauds. We disagree as to all counts except counts V and VI.

Florida’s statute of frauds is set forth in section 725.01 of the Florida Statutes (2005):

725.01. Promise to pay another’s debt, etc.
No action shall be brought whereby to charge any executor or administrator upon any special promise to answer or pay any debt or damages out of her or his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them, or for any lease thereof for a period longer than 1 year, or upon any agreement that is not to be performed within the space of 1 year from the making thereof, or whereby to charge any health care provider upon any guarantee, warranty, or assurance as to the results of any medical, surgical, or diagnostic procedure performed by any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, or dentist licensed under chapter 466, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

(Emphasis added.)

In Cavallaro v. Stratford Homes, Inc., 784 So.2d 619 (Fla. 5th DCA 2001), our court explained:

Pursuant to the statute, no action can be brought to enforce a contract for the sale of land unless the contract is in writing and signed by the party to be charged. In order to be “an enforceable land sales contract, the statute of frauds ... requires the contract to satisfy two threshold conditions. First, the contract must be embodied in a written memorandum signed by the party against whom enforcement is sought. Second, the written memorandum must disclose all of the essential terms of the sale and these terms may not be explained by resort to parol evidence.” Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1059 (Fla. 3d DCA 1979) (citations omitted).

Id. at 621.

Guest acknowledges that there is no proper written document memorializing the terms of the parties’ oral agreement so as to avoid the defense of statute of frauds, but he argues that the doctrine does not apply to bar his lawsuit against Claycomb because the evidence of record demonstrates the applicability of two statute of frauds exceptions: (1) full/partial performance; and, (2) request for equitable relief.

As for the full/partial performance exception, Guest argues that he presented sufficient evidence below to at least create a material issue of disputed fact concerning whether the exception for full/partial performance should be applied in this case. We disagree.

In Miller v. Murray, 68 So.2d 594 (Fla.1953), our Supreme Court explained that the governing principles by which part performance can remove an oral contract for the sale of land from the effect of the statute of frauds are well settled:

In addition to establishing the fact that an oral contract for sale was made, proof must be submitted as to the following: payment of all or part of the consideration, whether it be in money or in services; possession by the alleged vendee; and the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor — or, in the absence of improvements, the proof of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.

Id. at 596 (citations omitted).

In his affidavit Guest defines the parties’ oral agreement as follows: “In order for Ms. Claycomb to obtain financing, she convinced me to deed the Property to her and her father ... with the oral agreement that they would deed the Property back to me upon repayment or assumption of the terms of the financing she arranged.” Although he stated in his affidavit that he is “ready” to repay or assume the debt, Guest made no showing that he has repaid the debt or assumed the terms of the financing Claycomb arranged. As such, Guest failed to submit evidence sufficient to create a genuine issue of material fact concerning whether the parties’ alleged oral agreement would have acted as a “fraud” upon him if it were not enforced. Miller v. Murray, 68 So.2d 594 (Fla.1953). Accordingly, Guest’s claim that his performance bars the application of the statute of frauds is rejected as meritless.

Guest also, argues that the statute of frauds does not apply to bar counts V and VI of his lawsuit against the Clay-combs because his claims for equitable relief are not barred by the statute of frauds. We agree.

In Williams v. Grogan, 100 So.2d 407, 410 (Fla.1958), our Supreme Court explained:

The rule is well established in Florida and elsewhere to the effect that when a person acquires title to property through the influence of a confidential relationship or otherwise obtains an advantage which he should not in good conscience be permitted to retain, a court of equity will prevent the abuse of the confidence and grant relief on the broad principle that one should not be permitted to be unjustly enriched under such circumstances at the expense of another.

The Court proceeded to explain that the court of equity will grant relief in such instances by imposing a constructive trust “which is created by operation of law” and “is not within the statute of frauds and may be proved by parol evidence.” Id.

Here, Guest alleged an intimate relationship with Lynn Claycomb and set forth two counts in his complaint which requested equitable relief in the form of a constructive trust (count V) and an equitable lien (count VI). The Florida courts consistently hold that such claims are not barred by Florida’s statute of frauds. Accordingly, the trial court’s summary judgment order cannot be sustained on these two counts on the basis of the application of the statute of frauds. See Williams v. Grogan, 100 So.2d 407 (Fla.1958) (holding that where conveyance without consideration by son to mother of his interest in deceased father’s estate was executed by son because of unlimited confidence in his mother and upon her assurance that she would take care of his interest, and son relied upon his mother and could assume that she would not devise his property to third parties and mother and ultimately her estate would be unjustly enriched to extent of son’s interests in property left to him by his father which could be traced as to the assets of the mother’s estate by the conveyance, son was entitled to relief by a decree that would construct a trust in his favor subject to any intervening rights of third parties acquired in good faith and for value); Hullum v. Bre-Lew Corp., 93 So.2d 727 (Fla.1957) (holding that the statute of frauds is not a bar to the imposition of an equitable lien).

The Claycombs’ argument that all of the counts are precluded by the principle of res judicata, based upon a previously entered summary judgment in a different case, is rejected.

REVERSED and REMANDED as to Counts V and VI; otherwise AFFIRMED.

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

      . It should be noted that "the doctrine of part , performance to excuse a failure to comply with the statute of frauds is not available in Florida to actions solely for money damages.” Wharfside at Boca Pointe, Inc. v. Superior Bank, 741 So.2d 542 (Fla. 4th DCA 1999). Accord Hospital Corp. of America v. Associates In Adolescent Psychiatry, S.C., 605 So.2d. 556 (Fla. 4th DCA 1992). As such, even if this court were to assume arguendo that this exception applies to the facts in this case, such application would not revive the two counts of Guest’s complaint which seek recovery of money damages only: count II which alleges a claim for fraud in the inducement and count III which allege a claim for breach of an oral contract and damages.

      . Although it is questionable whether the allegations of Guest are sufficient, as a matter of law, to support a claim for equitable lien, that issue is not before the court at this time.


author: LAWSON, J.

text:
    WESTWIND LIMOUSINE, INC., Appellant, v. Nathan SHORTER and Floralba Shorter, et al., Appellee.
    No. 5D05-3810.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.

      Betsy E. Gallagher and Michael C. Clarke of Law Office of Kubicki Draper, Tampa, for Appellant.
    Melvin B. Wright of Colling, Gilbert & Wright, P.A., Maitland, for Appellee.
   LAWSON, J.

Westwind Limousine, Inc., (“West-wind”), timely appeals from a non-final order denying its motion to dismiss for lack of personal jurisdiction. Reviewing this matter de novo, we find that asserting personal jurisdiction over Westwind in a Florida state court would violate the Due Process Clause of the United States Constitution, and reverse.

A plaintiff has the burden of proving its right to proceed under Florida’s long-arm statute against any out-of-state defendant. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). This burden is initially met by pleading at least one jurisdictional criteria set forth in the long arm statute. Id. at 502. However, if a defendant refutes the jurisdictional allegations of plaintiffs complaint by affidavit, the plaintiff must then prove its claim of jurisdiction with evidence. E.g., Maschinenfabrik Seydelmann v. Altman, 468 So.2d 286, 288 (Fla. 2d DCA 1985) (“The obligation of the plaintiff is not simply to raise a possibility of jurisdiction, but rather to establish jurisdiction with affidavits, testimony or documents.”) (quoting Hyco Mfg. Co. v. Rotex Int’l Corp., 355 So.2d 471, 474 (Fla. 3d DCA 1978)). The court must then determine from the evidence submitted whether a statutory basis for jurisdiction has been established. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000). If so, the court must also determine whether federal due process requirements have been met, in that the defendant possesses certain minimum contacts with the state and maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Id.; International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)); Venetian, 554 So.2d at 502.

Nathan and Floralba Shorter’s amended complaint alleges that on November 1, 2004, their daughter, Yadira Rosa Shorter, was fatally injured in an accident involving a defective “Hummer stretch limousine” sold by Westwind to Co-Defendant, H.K. Finance. The Shorter’s amended complaint alleges that Westwind “caused injury to persons or property” within Florida by “acts or omissions” occurring outside of the state. The Shorters further tracked the language of Florida’s long-arm statute, alleging multiple bases for personal jurisdiction.

The Shorters next allege claims against Westwind for strict liability, breach of implied warranty, and negligence. Each claim arises from Westwind’s alleged conversion of a 2004 Hummer motor vehicle into a “stretch limousine.” According to the Shorters’ amended complaint, the conversion was completed in a manner that created a “blind spot” making the limousine unsafe for operation. Further, the Shorters allege that Westwind impliedly warranted to the public and to the co-defendants that the limousine was fit for its intended purpose. Finally, the Short-ers allege that Westwind “knew, or in the exercise of due care should have known” that placing the limousine on the market as converted created an “unreasonable risk of harm” to the decedent.

Westwind responded by filing a motion to dismiss, challenging both the legal sufficiency of the amended complaint’s jurisdictional allegations under Florida’s long-arm statute and the sufficiency of any “minimum contacts” to Florida under the Due Process Clause. Westwind also filed an affidavit in support of its motion which stated:

AFFIDAVIT OF JAMES BOLINGER
1. I am President of Westwind Limousine, Inc. (“Westwind”), an Ohio corporation, and I am duly authorized to provide the information concerning Westwind in paragraphs 1 through 17 below.
2. Westwind does not have a facility, branch office or other place of business in Florida.
3. Westwind does not have employees or agents in Florida.
4. Westwind’s officers or directors are domiciled or reside outside of Florida.
5. Westwind does not hold meetings of its Board of Directors or shareholders in Florida.
6. Westwind does not have, and never has had, any bank accounts or other tangible or real property in Florida.
7. Westwind has not sought to be qualified to do business in Florida and it is not required to pay income or franchise taxes in the state.
8. Westwind does not advertise in Florida, nor is its advertising directed specifically at Florida or contained in publications directed primarily toward Florida residents. Westwind does advertise in two nationally circulated trade publications.
9. Westwind does not have a telephone listing in Florida.
10. Westwind has never attended a tra-deshow in Florida.
11. Westwind is an Ohio corporation based in Ohio with operations in Ohio. It has no operations at all in Florida.
12. Westwind sold a 2004 Hummer stretch limousine (“limousine”) to HK Finance Corporation (“HK Finance”) on March 8, 2004....
13. HK Finance initiated contact with Westwind at Westwind’s Ohio offices to inquire about purchasing the limousine.
14. HK Finance flew to Ohio to inspect the limousine prior to its purchase.
15. HK Finance took delivery of the limousine in Ohio.
16. HK Finance paid for the limousine in Ohio.
17. After Westwind delivered the limousine to HK Finance in Ohio, HK Finance drove the limousine out of Ohio.
18. Westwind has had no business dealings with HK Finance other than this March 8, 2004 transaction.

In opposition to Westwind’s motion to dismiss, the Shorters’ attorney filed his own affidavit. Attached to the affidavit was a printed portion of Westwind’s website stating that Westwind has been in the business of manufacturing, selling, and leasing converted limousines since the early 1980s. However, the attached web pages do not contain a single reference to Westwind doing business in Florida, conducting any Florida sales, or soliciting any Florida sales. Additionally, there is no indication that Westwind used its website to directly solicit sales through any active link or web portal that a Florida consumer could access.

In his affidavit, the Shorters’ attorney further highlighted that the bill of sale provided by Westwind, in Ohio, specifically notes that the buyer, H.K. Finance, had a Florida address. The bill of sale also reflects that Westwind did not collect Ohio taxes on the transaction.

After considering argument from both parties, the trial court denied Westwind’s motion to dismiss, determining that because Westwind sold the vehicle to a Florida corporation, it should have known or foreseen that the buyer would operate the vehicle in Florida. This knowledge (or foresight), it was reasoned, was sufficient to subject Westwind to suit in Florida, under the authority of JCB, Inc. v. Herman, 562 So.2d 754 (Fla. 3d DCA 1990) (finding jurisdiction over an out-of-state defendant based upon the sale of a single piece of machinery to a Florida resident) (citing Yale Indus. Prods., Inc. v. Gulfstream Galvanizing & Finishing, Inc., 481 So.2d 1304, 1307 (Fla. 4th DCA 1986) and A.J. Sackett & Sons Co. v. Frey, 462 So.2d 98 (Fla. 2d DCA 1985)).

While these cases appear to support the trial court’s conclusions, we believe that they incorrectly apply federal constitutional law. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the United States Supreme Court emphasized that “ ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.” Rather, the Court explained that:

When a corporation “purposefully avails itself of the privilege of conducting activities within the forum State,” ... it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence if the sale of a product of a manufacturer or distributor ... is not simply an isolated occurrence, blit arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others, (citations omitted).

Id. at 297-98, 100 S.Ct. 559 (emphasis added).

Here, the evidence presented by the Shorters shows nothing more than the “isolated occurrence” of a single sale to a Florida corporation. The Shorters presented no facts that demonstrate any effort by Westwind to market its products in Florida. The fact that Westwind may have known or foreseen that H.K. Finance would operate the vehicle in Florida, standing alone, is insufficient to confer personal jurisdiction in a Florida state court under the Due Process Clause.

Therefore, we reverse the trial court’s order on Westwind’s motion to dismiss, and remand with directions that the motion be granted.

REVERSED and REMANDED.

SAWAYA and ORFINGER, JJ„ concur.

        .See Enic, PLC v. F.F. South & Co., Inc., 870 So.2d 888 (Fla. 5th DCA 2004) (a trial court's ruling on a motion to dismiss for lack of personal jurisdiction is subject to de novo review).

      . U.S. Const. amend. XIV, § 1.

      . § 48.193, Fla. Stat. (2005).

      . Yale was expressly disapproved in Aetna Life & Casualty Co. v. Therm-O-Disc, Inc., 511 So.2d 992 (Fla.1987) (finding no basis for jurisdiction under the long-arm statute, and therefore declining to address the Yale court’s due process/minimum contacts analysis).

      . The court in Frey relied upon McGee v. International Life Insurance Co., 355 U.S. 220, 222, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), in which the Supreme Court noted “a trend ... toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.” However, one year later, the Court clarified that the Due Process Clause still mandated a defined limitation to the assertion of personal jurisdiction over a non-resident defendant. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The Court explained: "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state.... [I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 253, 78 S.Ct. 1228.

      .We agree with the trial court’s conclusion that the Shorters have established a basis for personal jurisdiction under section 48.193(1)(£)2, Florida Statutes. That section provides for personal jurisdiction over a nonresident defendant who manufactures a product (anywhere) that is used in Florida in the ordinary course of commerce and causes injury to persons or property in Florida, arising out of an act or omission outside of the state. Therefore, our analysis focuses solely on federal due process limitations to personal jurisdiction.

      . We note that "merely posting] a passive website” does not constitute either the solicitation of business in Florida or the transaction of business in Florida, for purposes of a jurisdictional due process analysis. Miller v. Berman, 289 F.Supp.2d 1327, 1334-35 (M.D.Fla.2003) (recognizing that a passive website that does little more than make information available to those who are interested in it is not grounds for personal jurisdiction). See generally Kevin M. Fitzmaurice & Renu N. Mody, International Shoe Meets the World Wide Web: Whither Personal Jurisdiction in Florida in the Age of the Internet?, 71 Fla. B.J. 22 (December 1997).


author: PLEUS, C.J.

text:
    Richard T. CAIN, Appellant, v. Louis L. BANKA, II, etc., et al., Appellees.
    No. 5D05-3986.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.

      Arthur J. Ranson, III, and C. Ryan Morgan, of Shuffield, Lowman & Wilson, P.A., Orlando, for Appellant.
    Laurie D. Beechner, of Marshall, Denne-hey, Warner, Coleman & Goggin, A Professional Association, Orlando, for Appel-lees.
   PLEUS, C.J.

The issue on this appeal concerns whether an exculpatory clause contained in a master release, signed by the plaintiff in 1999 when he began riding at a motocross track, barred him from recovering for personal injuries he sustained in 2002 while riding his motocross bike at the track. The trial court found the release to be clear and unambiguous and granted summary judgment, ruling the plaintiffs claim was barred.. The plaintiff maintains the release is unenforceable and urges reversal of the summary final judgment.

The action stems from an accident that occurred on May 15, 2002, at a track operated under the fictitious name Motocross World of Central Florida. The plaintiff alleges he was participating in a practice on the night in question and was attempting to maneuver a “single to table” jump when his motocross bike collided with the table portion of the jump. He sued, claiming the track and table surface were negligently designed and maintained. He commenced a lawsuit against Louis L. Banka, II, (Banka) who was, among other things, an employee of the owner of the track, DGB Racing, Inc.

According to Banka, in 1999, the track required all individuals desirous of participating in races and practices to become a member and to sign a master release. In turn, members received a membership card which had an expiration date on it and which further stated the member had a release on file.

Banka testified by way of deposition that the plaintiff became a member at the track in 1999 and was issued a membership card certifying he had executed a release that was on file. The plaintiff did not deny this though neither the actual membership card nor a copy were introduced below.

The release, which the plaintiff concedes he signed in 1999, does not mention any membership and provides as follows:

In consideration of receiving permission from DGB RACING, INCORPORATED, to enter upon the premises of this raceway, located in Orlando, Orange County, Florida, the receipt of such permission being hereby acknowledged, and in further consideration of receiving permission to participate, when qualified, either as a rider, mechanic, owner, attendant, or in any other capacity, in any race , or practice held at the above location, the receipt of such permission being also hereby acknowledged, each of the undersigned hereby release DGB RACING, INCORPORATED, the promoter, and its agents, officers, servants, and employees, of and from any and all liability, claims, demands, actions, and causes of action whatsoever, arising out of or related to any loss, damage or injury, including death, that may be sustained by the undersigned, or any property of the undersigned, while in, on, or upon the above mentioned premises, or any premises leased to, owned by, sanctioned by or under the control or supervision of DGB RACING, INCORPORATED, or in route to or from the above mentioned premises, or any other premises leased to or under the control or supervision [sic] DGB RACING, INCORPORATED.
The undersigned'being duly aware of the risks and hazards inherent upon entering upon said above mentioned premises and/or in participating in any races or practices held at the above mentioned premises, hereby elects voluntarily to enter upon said premises, knowing their present condition and knowing that said conditions may become more hazardous and dangerous during the time that the undersigned is upon the above mentioned premises. The undersigned hereby voluntarily assumes all risks of loss, damage, injury, including death, that may be sustained by the undersigned while in, on or upon the above mentioned premises.

The parties agree that on May 15, 2002, the plaintiff did not sign a check-in sheet or a release when he entered the track with his motorbike. Banka confirmed that sometime prior to the accident, the track began utilizing another release at the request of its insurance carrier. According to Banka, this new release was not meant to void or nullify the master release and was merely part of a sign-in process at the gate that included on it exculpatory language, for every race and practice. Banka explained the track still required the execution of the master release as part of the membership process since it had discovered some individuals attempting to bypass the sign-in area.

The trial court’s legal determination, that the 1999 release was effective to bar the plaintiffs negligence claim against Banka, as an employee of DGB Racing, Inc., is reviewed de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). Because we conclude that the court’s determination fails to comport with Florida law governing enforceability of exculpatory clauses, we reverse.

The plaintiff concedes that as a general proposition, exculpatory clauses may extinguish liability for claims against premise owner/operators for injuries caused by the negligence of the owner/operator but claims the 1999 release which he signed does not satisfy Florida law. He argues that the release is not clear and unequivocal as required by Florida law, and that further failure to sign it contemporaneously with the event being released is fatal to its enforceability.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. Kitchens of the Oceans, Inc. v. McGladrey & Pullen LLP, 832 So.2d 270 (Fla. 4th DCA 2002). Exculpatory clauses are disfavored and are enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away. Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001); Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001).

This district has rejected the need for express language referring to release of the defendant for “negligence” or “negligent acts” in order to render a release effective to bar a negligence action. See Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998). The other districts take a “bright line” position requiring such express language. See Witt v. Dolphin Research Center, Inc., 582 So.2d 27 (Fla. 3d DCA 1991); Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987); Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61 (Fla. 2d DCA 2005); Van Tuyn v. Zurich American Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984). Indeed, every one of the cases cited by the defendant as establishing the efficacy of the instant release to bar the plaintiffs negligence claim involved releases which expressly referenced, in one form or another, the releasee’s “negligence.”

For instance, in Theis v. J & J Racing Promotions, 571 So.2d 92 (Fla. 2d DCA 1990), the appellate court held that the release and waiver of liability executed by a race car driver immediately prior to the race in which he was killed, barred a negligence action against the race track operator. The release and waiver included language releasing the operator “from all liability ... whether caused by the negligence of the releasees or otherwise.” The appellate court explained that “the release and waiver signed by the defendant clearly excused the appellee from liability for acts or omissions resulting from their own negligence or otherwise” and encompassed all forms of negligence, simple or gross. Id. at 94.

Likewise, in DeBoer v. Florida Offroaders Driver’s Ass’n, Inc., 622 So.2d 1134 (Fla. 5th DCA 1993), this Court affirmed summary judgment in favor of a racetrack operator in an action brought by a spectator’s estate where the release and waiver of liability contained language releasing the operator from all liability “whether caused by the negligence of the releasees or otherwise”. Accord Bruce v. Heiman, 392 So.2d 1026 (Fla. 5th DCA 1981) (affirming summary judgment in favor of speedway based on release of liability which racer signed in order to enter restricted area of speedway and which released speedway from “any and all claims and liability arising out of strict liability or ordinary negligence of releasees.... ”); Borden v. Phillips, 752 So.2d 69 (Fla. 1st DCA 2000) (enforcing release which absolved defendant scuba training company from liability for “injury, death or other damages ... that may occur as a result ... of the negligence of any party, including the Released Parties.... ”).

Nevertheless, this district, in conformity with federal law, has expressly eschewed the need to use terms such as “negligence” or “negligent acts” in order to validly release negligence claims. Lantz; See Hopkins v. The Boat Club, Inc., 866 So.2d 108 (Fla. 1st DCA 2004). The instant exculpatory clause, by absolving the defendant of “any and all liability, claims, demands, actions, and causes of action whatsoever” is sufficient under Lantz to encompass the plaintiffs negligence action.

The plaintiff argues that the terms of the exculpatory clause were not clear and unequivocal so as to inform him that he was contracting his rights away for all time in the future. The plaintiff points out that the language of the release refers to entering upon the premises “knowing of their present condition and knowing that said conditions may become more hazardous and dangerous during the time that the undersigned is upon the above mentioned premises.” He argues this language suggests the release only covers the period of time from signing the release until the person leaves the premises, that he could not have known of the conditions on future days, let alone those which might exist two years after signing the release. The thrust of the plaintiffs argument in this regard is as follows:

If the purpose of the Release was to cover all future times a person might be on the property, it should state the Release applies each and every time the person is on the premises, or state that the Release applies to all future entrances to the premises. Adding language suggesting the Release applies for all future events would then clearly and unequivocally tell a person that they are not only releasing their rights for the day they signed it, but for anytime they return to the premises in the future. Signing away one’s rights for eternity should be stated more clearly than in the Release signed by [the plaintiff].

Interestingly, the plaintiff does not rely directly on evidence that conditions at the track had materially changed between the date he executed the release and the date he sustained his injury, even though such evidence appears to exist. Banka himself testified in his deposition that he substantially reconfigured the track just prior to the date of the plaintiffs accident. Nevertheless, even assuming materially unchanged conditions, we conclude that the language of the 1999 written release was not sufficiently clear and unequivocal to inform the plaintiff that he was executing a perpetual release of personal injury claims.

The release itself contains no express language informing the plaintiff that it covered each and every occasion in the future that he visited the track. Given that exculpatory clauses are disfavored in the law and are strictly construed against the party seeking to be relieved of liability, Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (Fla. 3d DCA 1998), those intended to encompass present as well as future events must state so with clarity and precision. The 1999 release contains no language providing for an effective period and the burden is on the party seeking to absolve itself from liability to do so in clear and unequivocal terms.

Use of the plurals “races” or “practices” in the release does not, in and of itself, clearly and unequivocally establish that the release applied to all future visits. One need not hail from Daytona Beach to know that multiple races or practices are frequently held at a racetrack over a single day.

Banka argues that the circumstances surrounding execution of the 1999 release establish clearly that it was part of a membership program at the track and was designed and understood to last for as long as the plaintiff remained a member of the track.

The plaintiff did not deny that he had been issued a membership card which was still operative and thus it was established that the plaintiff was part of a membership program used by the track. The 1999 release executed by the plaintiff, however, does not mention membership as part of execution of the release or that acceptance of a membership card created a release perpetual in nature. The defendant cites to no authority allowing a court to go beyond the four corners of the written release in order to supplement it with essential terms, whether by course of conduct, custom or otherwise. In fact, the law is otherwise — an exculpatory provision which is ambiguous is unenforceable. Sunny Isles Marina.

The defendant’s effort to use the membership program to supplement the absence of an operative period in the 1999 release not only runs afoul of the principle which places the burden on a party seeking to absolve itself of liability to do so in clear and unequivocal terms, but it eliminates the need for a release, designed to apply to future conduct or activity, to contain clear language to that effect.

This is not to accept the plaintiffs position that for a release to be effective, it necessarily must be signed contemporaneously with the event or activity being released. While the plaintiff cites a plethora of cases involving execution of exculpatory clauses in recreational events contemporaneous with the event, he cites to no legal authority requiring contemporaneous execution of the release.

An exculpatory clause contained in a health club membership contract was upheld in Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001). While the language of the provision was not set out in the decision, it seems eminently reasonable that a properly worded exculpatory clause may have legal effect beyond a single activity or event. A health club membership affords an ideal illustration. It would be unduly burdensome and redundant to require a member to execute a release on each and every visit to a health club. Likewise in Hopkins v. The Boat Club, Inc., 866 So.2d 108 (Fla. 1st DCA 2004), the court validated a release which was part of a boat club membership. In Hopkins, unlike here, the release expressly referred to the signatory’s membership status. An exculpatory clause can be skillfully drafted to insulate the defendant from liability while at the same time informing the member that the provision has legal effect each time the facility is used. In the instant case the language of the 1999 release does not in any way indicate connection to a membership program nor does it reflect, clearly and unequivocally, an intent to release the defendant from liability for future visits to the track.

The defendant cites to well established contract law holding that the absence of a time period in a contract is not fatal to its enforceability. See e.g., Sound City v. Kessler, 316 So.2d 315, 316 (Fla. 1st DCA 1975) (“in the absence of an express provision as to duration in the contract, the intention of the parties with respect to duration and termination is to be determined from the surrounding circumstances and by application of a reasonable construction of the agreement as a whole.... ”); Collins v. Pic-Town Water Works, Inc., 166 So.2d 760 (Fla. 2d DCA 1964) (where contract is indefinite as to time, contract can last indefinitely until one of the parties gives reasonable notice of termination to the other).

In this context, however, this principle of contract law collides with the requirement that an exculpatory clause, disfavored in the law, be clear and unequivocal. Allowing a defendant to invoke the parties’ course of conduct or other surrounding circumstances to interpret, supplement, or amplify a written release would completely emasculate the well-settled, salutary rule governing enforceability of exculpatory clauses. The 1999 release is not clear and unequivocal in that it was insufficient to inform an ordinary and knowledgeable party that he was perpetually contracting away his right to sue the defendant for negligence. Sunny Isles Marina. See also Covert v. South Florida Stadium Corp., 762 So.2d 938 (Fla. 3d DCA 2000) (ambiguous exculpatory clause contained in contract which season ticket holder signed in purchasing ticket insufficient to bar personal injury claim).

The defendant additionally relied below on section 549.09, Florida Statutes, as barring this action. The trial court granted summary judgment based upon the common law and did not address applicability of the statute. The defendant nevertheless argues that the statute provides an additional basis for the summary judgment.

Section 549.09 entitled, “Motorsport Non-Spectator Liability Release” provides under subsection (2):

Any person who operates a closed-course motorsport facility may require, as a condition of admission to any non-spectator part of such facility, the signing of a liability release form. The persons or entities owning, leasing or operating the facility or sponsoring or sanctioning the motorsport event shall not be liable to a nonspectator or her or his heirs, representative, or assigns for negligence which proximately causes injury or property damage to the nonspectator within a nonspectator area during the period of time covered by the release.

It appears from the record that the track met the requirements of the statute. While subsection (2) authorizes track operators to condition admission by non-spectators on execution of a liability release form, it does not address what constitutes a valid liability release. There is no indication that the statute is designed to alter in any way the common law principles governing the validity of exculpatory clauses in this context. In short, the statute presupposes a release which comports with Florida law governing exculpatory clauses. The statute does not provide an independent, more relaxed basis for analyzing the validity of an exculpatory clause.

The final judgment and summary judgment in favor of Banka are reversed as the 1999 release is ineffective to bar the plaintiffs 2002 negligence claim against him.

REVERSED AND REMANDED.

SAWAYA and LAWSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Christina SOSA, Appellee.
    No. 5D05-1362.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the trial court’s order granting Christina Sosa’s motion to suppress. Concluding that Sosa was not illegally detained by the sheriffs deputy prior to the search of her vehicle, we reverse.

Sosa was charged with committing the crime of possession of alprazolam. See § 893.13(6)(a), Fla. Stat. (2004). She filed a pretrial motion to suppress the contraband seized at the time of her arrest. At the hearing on the motion to suppress, Deputy Richard Schmeltzer of the Orange County Sheriffs Office testified that, on the day of Sosa’s arrest, he observed a vehicle with a partially obscured tag traveling on the roadway. Schmeltzer pulled the car over and Sosa identified herself using her driver’s license. Schmeltzer testified that Sosa told him she was taking her passenger to the hospital. Schmeltzer notified Orange County Fire and Rescue and they responded to the scene and transported Sosa’s passenger to the hospital. After the passenger was taken care of, Schmeltzer stated that he gave Sosa back her driver’s license and told her she was free to leave. Schmeltzer then asked for permission to search Sosa’s vehicle and Sosa granted him permission to search. Schmeltzer testified that during his search he found white pills inside a brown pouch in the vehicle. Sosa told him the pills were Xanie Bars (which is street slang for Xanax).

On cross-examination, Schmeltzer testified that, after he told Sosa she was free to go, she could have driven away. He also stated that Sosa could have refused to let him search her car.

Sosa thereafter testified that when Schmeltzer asked her if he could search her car, she felt that she did not have the right to refuse. Sosa’s exact testimony was as follows:

Q How long was it before the officer told you that you were free to leave?
A At least 30, 45 minutes.
Q At some point did he ask you to search your car?
A Yes, sir, he did.
Q Did you feel like you had a right to refuse to have him search your car?
A No.
Q What do you think would have happened if you had said no?
A He would have searched regardless. If you say no, then you’re hiding something and that doesn’t seem— come on, I was not free to go. I would have gotten in the car and left
Q Okay. All right.
A .... if I was that free to go.
Sosa admitted that, after her passenger was taken to the hospital, Deputy Schmelt-zer did tell her she was free to go. She also admitted that she never objected to the search of her car.

The trial court issued a written order granting Sosa’s motion to suppress. The trial court found as follows:

Officer Schmeltzer had a legal basis to stop the Defendant’s car due to a partially obscured expiration date on the car’s license tag. The Officer conducted an investigation and determined the tag to be valid. During that investigation, Officer Schmeltzer discovered an ill passenger in the vehicle and took the appropriate actions in having that passenger transported by emergency rescue to the hospital. At the conclusion of discovering the validity of the license tag the investigation and detention was over. The Officer stated that he then advised the Defendant that she was free to go, and then immediately asked if she had any contraband, illegal substances, et cetera, et cetera, and if he could have permission to search.
In applying the reasonableness standard that the investigation was over, there was no reason for the continued detention or continued inquiry here by the officer. Also, even though the statement that the Defendant was free to go is not realistic under the totality of the circumstances and the investigation should have stopped. There was no probable cause, no articulable suspicion, and no reason for further search

The State challenges the trial court’s order claiming the trial court erred in concluding that, by asking Sosa for consent to search her vehicle, Schmeltzer unlawfully extended the length of her detention. We agree.

When reviewing a trial court’s ruling on a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent, substantial evidence, while the trial court’s application of the law to those facts is reviewed de novo. Hicks v. State, 929 So.2d 13 (Fla. 2d DCA 2006).

In this case, the trial court correctly determined that Deputy Schmeltzer had a legal basis to stop Sosa’s car due to a partially obscured expiration date on the car’s license tag. See State v. Johns, 920 So.2d 1156 (Fla. 2d DCA 2006)(holding police deputy was initially justified in stopping defendant’s vehicle for an expired license tag). The trial court also properly determined that Schmeltzer took the appropriate action in having Sosa’s passenger transported by emergency rescue to the hospital. However, the trial court erred in concluding that Sosa was being illegally detained when Deputy Schmeltzer asked her if he could search her car. The evidence does not support that conclusion.

Whether a person has been detained after a traffic stop depends on whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. Summerall v. State, 111 So.2d 1060 (Fla. 2d DCA 2001). Once Deputy Schmeltzer told Sosa she was free to go, the detention was over. No evidence was presented by Sosa indicating that any officer attempted to prolong the traffic stop. Nor was any evidence presented by Sosa that Deputy Schmeltzer blocked her from leaving the scene, threatened her, held on to her license, or asked her to step out of her car. It is unclear what else Deputy Schmeltzer could have done to make it more evident to Sosa that the detention was over other than to tell her that she was free to go. In fact, the only thing Sosa did testify to was her subjective belief that she was not free to leave. Sosa was unable to explain the basis of her belief that she was not free to leave, other than simply her subjective belief, or perhaps ignorance of the law. If continued questioning by a police officer of an individual after that individual is told she is free to leave were sufficient to constitute a continued detention prohibited by the Fourth Amendment, then almost any citizen encounter would be deemed a detention.

Once Sosa’s detention was over it was permissible for Deputy Schmeltzer to ask questions and request permission to search. See State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001)(holding during a valid traffic stop, or even if a valid traffic stop has had its lawful function completed and turns into a citizen encounter, there is no reason a law enforcement officer cannot ask for consent to search). Therefore, the trial court’s conclusion that Sosa was illegally detained is not supported by competent substantial evidence.

Accordingly, we reverse the trial court’s suppression order and remand for further proceedings.

REVERSED and REMANDED.

SHARP, W., J., concurs.

GRIFFIN, J., concurs in result only.

      . Jurisdiction is proper pursuant to rule 9.140(c)(1)(B) of the Florida Rules of Appellate Procedure.


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. J.L.S., a child, Appellee.
    No. 5D05-1586.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellee.
   ORFINGER, J.

The State appeals the trial court’s order dismissing the delinquency petitions filed against J.L.S. on the basis of the State’s violation of Florida’s speedy trial rule. We affirm.

Florida Rule of Juvenile Procedure 8.090 provides, in relevant part, that the State has 90 days within which to prosecute a delinquency petition:

Rule 8.090. Speedy Trial
(a) Time. If a petition has been filed alleging a child to have committed a delinquent act, the child shall be brought to an adjudicatory hearing without demand within 90 days of the earlier of the following:
(1) The date the child was taken into custody.
(2) The date the petition was filed.

Here, J.L.S. was arrested on June 17, 2004, relating to six separate burglaries, but the State waited seven months before filing any petition related to the arrest. Specifically, on January 14, 2005, the State filed five petitions for delinquency related to five of the six alleged burglaries. On May 2, 2005, J.L.S. filed a motion seeking discharge of the petitions, claiming that the speedy trial provision of rule 8.090(a)(1) had expired. The trial court conducted a hearing on the motion.

At the hearing, J.L.S. argued that each of the affidavits filed by the police officers indicated that J.L.S. was arrested for all of the crimes on June 17, 2004. In response, the State argued that the arrest on that date was for only one burglary, not the other five. The trial court concluded that J.L.S. was in custody on June 17, 2004, for all six charges, and, accordingly, the State had failed to timely prosecute the charges. We find no error in the trial court’s conclusion. The charging affidavit clearly set forth that J.L.S. was charged with all six cases when he was arrested. Therefore, the trial court’s finding that, on the totality of the circumstances, J.L.S. was taken into custody on all six crimes when he was arrested was supported by competent substantial evidence. Accordingly, the trial court properly dismissed the instant delinquency petitions. See State v. Clifton, 905 So.2d 172 (Fla. 5th DCA 2005) (holding that the State can not circumvent the purpose and intent of the speedy trial rule by taking no action after the defendant is arrested and waiting until after the speedy trial period has expired to file formal charges).

In closing, we note that the facts presented in this case are distinctly different from those that were presented in State v. O.L., 921 So.2d 821 (Fla. 5th DCA 2006), and, as a result, the recapture provision of rule 8.090, which was applied in O.L., is not applicable in this case. To that end, in O.L., the State had filed a delinquency petition against the juvenile before the speedy time period had elapsed, whereas, in this case, no delinquency petition had been filed against J.L.S. until after the speedy trial period had elapsed.

AFFIRMED.

PALMER and MONACO, JJ., concur.

      . See Fla. R. Juv. P. 8.090.

      . The panel of judges in this case is the same panel as that in the O.L. case.


author: SHARP, W., J.

text:
    PATRICIA WEINGARTEN ASSOCIATES, INC., Appellant, v. JOCALBRO, INC. and Joe C. Brown, etc., Appellee.
    No. 5D05-2239.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    Peter N. Price of Peter N. Price, P.A., Hollywood, for Appellant.
    Garry D. Adel of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellee.
   SHARP, W., J.

Patricia Weingarten Associates, Inc. appeals from a final judgment quieting title to fourteen parcels of land in Marion County in favor of Jocalbro, Inc. and Joe C. Brown, trustee for Jocalbro, Inc. Profit Sharing Plan Trust. Jocalbro and Brown acquired the parcels by tax deed after Weingarten failed to pay the taxes on the property. Weingarten claims it never received notice of the tax deed sale and only became aware of the sale when this suit to quiet title was filed.

After the trial in this case, the United States Supreme Court issued its decision in Jones v. Flowers, — U.S. -, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). In Jones, the Court held that when a mailed notice of a tax sale is returned unclaimed, the state, as a matter of due process, must take additional reasonable steps to attempt to provide notice to the property owner before selling the property, if it is practicable to do so. The Court also held that the taxpayer’s failure to comply with his obligation to keep his address updated did not result in the forfeiture of his right to constitutionally sufficient notice.

In the present case, Weingarten alleges the notice sent by the Clerk pursuant to the mandatory notice requirements of section 197.522, Florida Statutes, was returned as undeliverable. However, we are unable to determine this from the record before us. Nor are we able to determine if additional reasonable steps to attempt to provide notice to Weingarten were taken because no testimony was presented from the Clerk or the Tax Collector. The record does indicate that other properties owned by Weingarten, upon which taxes were paid, had the correct address because the Clerk had complied with a change of address notice Weingarten had previously sent to the Tax Collector.

Because the parties did not have the benefit of Jones at the time of the trial, we reverse and remand to the court below to reconsider the notice issue. On remand, the parties may present additional evidence and argument to determine whether Weingarten received constitutionally sufficient notice of the tax sale and whether the Clerk took additional reasonable steps to provide notice after return of the unclaimed notice.

REVERSED AND REMANDED.

GRIFFIN and PALMER, JJ., concur.

      . 197.522. Notice to owner when application for tax deed is made
      (l)(a) The clerk of the circuit court shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United states, the persons listed in the tax collector's statement pursuant to s. 197.502(4) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale. If no address is listed in the tax collector's statement, then no notice shall be required.


text:
    Shirley A. SMITH, Appellant, v. Carolyn R. SMITH, Appellee.
    No. 5D05-2343.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    Robert Robins, Daytona Beach, for Appellant.
    Richard J. D’Amico, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Pullo v. Pullo, 926 So.2d 448, 453 (Fla. 1st DCA 2006) (en banc) (Kahn, C.J., concurring in part and dissenting in part) (“Florida courts uniformly agree that section 61.14(1), Florida Statutes, does not allow modification of a property distribution.”).

SAWAYA, ORFINGER, and LAWSON, JJ., concur.


text:
    Jonathan Lee RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1432.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Affirmed without prejudice to the defendant raising the issue regarding jail credit in a properly filed postconviction motion.

AFFIRMED.

GRIFFIN, PALMER and LAWSON, JJ., concur.


text:
    Eugene Fitzgerald BARNES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-46.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    Eugene Fitzgerald Barnes, Bristol, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Eugene F. Barnes (petitioner) has filed a petition requesting a belated appeal claiming ineffective assistance of appellate counsel. Concluding that appellate counsel was ineffective for failing to argue on petitioner’s direct appeal that one of the trial court’s jury instructions constituted fundamental error, we grant the petition.

Petitioner was tried by a jury on the charge of attempted first degree murder, and he was convicted of the lesser included offense of attempted second degree murder. Petitioner appealed his judgment and sentence raising two arguments relating to the trial court’s failure to grant a continuance and whether the trial court failed to act impartially, thereby prejudicing the petitioner. This court affirmed petitioner’s judgment and sentence.

The instant petition was thereafter filed, raising one claim of ineffective assistance of appellate counsel; namely, that petitioner’s appellate counsel was ineffective for failing to argue on direct appeal that the trial court’s jury instruction on the forcible felony exception to the justifiable use of deadly force constituted fundamental error requiring reversal. According to the petition, after instructing the jury on the justifiable use of deadly force, the trial court explained the forcible felony exception to the justifiable use of deadly force as follows:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. Eugene Fitzgerald Barnes was attempting to commit, committing or escaping after the commission of Attempted Murder and/or Aggravated Battery; ...

The petition alleges that, because this instruction was circular in nature, it may have confused the jury and negated the petitioner’s only defense to the charge.

In reviewing a claim of ineffective assistance of appellate counsel, the court must first determine “whether counsel’s alleged omission is of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance.” Granberry v. State, 919 So.2d 699, 700 (Fla. 5th DCA 2006). “Then, the court must determine whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Id. See also Mansfield v. State, 911 So.2d 1160 (Fla.2005); Dufour v. State, 905 So.2d 42 (Fla.2005).

Petitioner acknowledges that his trial counsel failed to preserve this issue for appeal; however, he argues that such an error was fundamental in nature and could have been raised for the first time on appeal notwithstanding the lack of a contemporaneous objection. See Rodriguez v. State, 919 So.2d 1252 (Fla.2005) (holding that, unless an issue rises to the level of fundamental error, appellate counsel will not be deemed ineffective for failing to raise an issue not preserved in the trial court below). Precedent from this Court dictates that the instant petition should be granted.

In Granberry v. State, 919 So.2d 699 (Fla. 5th DCA 2006), this court addressed a similar claim of ineffective assistance of appellate counsel related to the failure to raise a challenge to the trial court’s issuance to the jury of the forcible felony exception to self-defense claim. In Gran-berry, as in the instant case, trial counsel failed to preserve the issue for direct appeal. Furthermore, the petitioner in Granberry, as in the instant case, presented a claim of self-defense at trial. This court held in Gmnberry:

We conclude that the appellate counsel’s failure to argue that the erroneous jury instruction on justifiable use of force amounted to fundamental error constituted ineffective assistance of appellate counsel.

Id. at 702 (emphasis added). See also Bertke v. State, 927 So.2d 76 (Fla. 5th DCA 2006).

The only remaining issue is what relief to grant the petitioner. Petitioner seeks a reversal of his conviction and a remand for a new trial. However, the petitioner has also cited in his petition to Fair v. Crosby, 858 So.2d 1103, 1105 (Fla. 4th DCA 2003) for the proposition that “the fundamental nature of the error can be gleaned only from a review of the full record on appeal.” In Fair, the Fourth District granted petitioner a belated appeal based on its concern that the forcible felony instruction “may have confused the jury sufficiently so as to negate petitioner’s defense of self-defense.” In accordance with Fair, we grant petitioner a belated appeal as a review of the entire record may yet demonstrate that the erroneous jury instruction did not amount to fundamental error. See Hickson v. State, 917 So.2d 939 (Fla. 4th DCA 2005) (following the grant of a belated appeal based on appellate counsel’s failure to argue improper jury instruction, court found in affirming appeal that appellate counsel’s failure in this regard did not amount to fundamental error because appellant was not entitled to receive the self-defense instruction at trial.). A copy of this opinion shall be filed with the trial court and treated as the notice of appeal.

PETITION GRANTED.

PLEUS, C.J. and SHARP, W., J., concur.

      . See § 776.041, Fla. Stat. (2002).


author: THOMPSON, J.

text:
    Michelle WISE, d/b/a J & M Bullfeathers Farm, Appellants, v. Rita WARNER, Appellee.
    No. 5D05-4001.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.

      Jeffrey R. Fuller of Brasfield, Fuller, Freeman & O’Hern, St. Petersburg, for Appellants.
    Jeffrey D. Murphy of Pitisci, Dowell, Markowitz & Murphy, P.A., Tampa, for Appellee.
   THOMPSON, J.

Michelle Wise d/b/a J & M Bullfeathers Farm (“Wise”) appeals an order denying her motion to quash service of process. Because Rita Warner did not strictly comply with the statutory requirements of section 48.161, Florida Statutes (2004), we reverse.

Warner sued Wise for damages arising from a dog bite that occurred at Wise’s property in November 2001. In her amended complaint, Warner alleged that a process server was unable to serve Wise. Warner claimed Wise was either concealing her whereabouts or had left Florida. Warner served the Secretary of State on behalf of Wise and filed an affidavit of compliance with section 48.161, Florida Statutes (2004). The affidavit of compliance did not allege that Warner served or attempted to serve Wise via certified mail. Rather, Wise submitted an affidavit relating the process server’s 13 unsuccessful attempts to serve process at Wise’s farm in August 2005, which led Warner to believe that Wise was either evading service or had become a non-resident. The return of service, non-served, indicated that the farm was occupied, the farm’s maintenance man stated that the truck periodically seen at the farm belonged to Wise and that she lived there, and there was never a response at the gate to the server’s horn-blowing or calling.

Wise moved to quash service on the grounds that Warner failed to comply with the statutory requirements for substituted service. The court denied the motion, and Wise appealed. Wise argues that Warner did not strictly comply with section 48.161 because she never attempted service through certified mail; Warner responds that strict compliance is not required where Wise was “concealing [her] whereabouts and/or evading service of process.”

To effect service of process under section 48.161, Florida Statutes (2004), the plaintiff must, inter alia, mail a copy of the summons and complaint to the defendant by registered or certified mail. Smith v. Leaman, 826 So.2d 1077, 1078 (Fla. 2d DCA 2002); Chapman v. Sheffield, 750 So.2d 140, 142 (Fla. 1st DCA 2000). “Because the statute allowing substituted service is an exception to the general rule requiring a defendant to be personally served, due process values require strict compliance with the statutory requirements.” Monaco v. Nealon, 810 So.2d 1084, 1085 (Fla. 4th DCA 2002) (emphasis in original) (citations omitted); see also Valliappan v. Cruz, 871 So.2d 1035, 1036 (Fla. 4th DCA 2004); Smith, 826 So.2d at 1078; Chapman, 750 So.2d at 142; Wyatt v. Haese, 649 So.2d 905, 907 (Fla. 4th DCA 1995). Courts may dispense with the filing of a postal receipt if a substituted service statute is invoked on the ground that the defendant is evading service. Chapman, 750 So.2d at 143. This does not mean Warner need not bother with certified mail to Wise’s address; rather, “[t]he failure to comply with the statutory requirements has been excused when the record shows that the party to be served is deliberately refusing to accept delivery.” Woodworth v. Smith, 773 So.2d 1170 (Fla. 2d DCA 2000) (reversing where the trial court denied the motion to quash service though defendant had actual notice based on regular mail); see also Jennings v. Montenegro, 792 So.2d 1258 (Fla. 4th DCA 2001) (stating that “the failure of delivery of service must be attributable to the defendant”); Wyatt, 649 So.2d at 907 (holding that the court cannot conclude that failure of service resulted from defendant’s rejection of delivery where letters sent to defendant were returned stating “UNCLAIMED” and “NOT AT THIS ADDRESS”).

The holding in Smith v. Leaman, 826 So.2d 1077, is instructive:

Despite the need for strict compliance with the statutory requirements, the courts have created an exception to the requirement that the plaintiff file the defendant’s return receipt for those situations in which the defendant is actively refusing or rejecting the substituted service of process. However, in this appeal, the Leamans contend that substituted service of process should fall within this judicially created exception whenever the defendant is actively concealing his whereabouts, regardless of the reason for the nondelivery. We reject this contention.
In Turcotte [v. Graves, 374 So.2d 641 (Fla. 4th DCA 1979) ], the certified mail sent to comply with section 48.161 was returned with a notation that the address was a vacant mobile home. In quashing the substituted service, the court held that when “the failure of delivery of process was not caused by the defendant-addressee’s rejection of the mail and where such failure might have resulted from a cause not chargeable to the defendant, then the statutory requirements have not been met and service of process is insufficient.” Accordingly, there is no merit in the Leamans’ argument that the filing of any return receipt, no matter the reason for the nondelivery, is sufficient to fall within the exception to the statutory requirements.

Smith, 826 So.2d at 1078-79 (citations omitted).

The court in Smith held that the plaintiffs’ failure to send the certified copy of the service of process to the defendant’s last known address required reversal; plaintiffs “did not and could not establish that the nondelivery of the substituted service was chargeable to” defendant. Smith, 826 So.2d at 1079. If Warner had attempted service via certified mail, and Wise had refused delivery, then the affidavits in the record would contain adequate evidence for the trial court to excuse the filing of return receipts and further compliance with section 48.161. See, e.g., Cortez Dev. Co. v. New York Capital Group, Inc., 401 So.2d 1163, 1165 (Fla. 3d DCA 1981). But the record reflects no attempt by Warner to serve Wise by registered or certified mail, and contains no affidavit of compliance reflecting any attempt to serve her by mail. See Monaco, 810 So.2d at 1085; Valliappan, 871 So.2d at 1036. Because service of process was not perfected, the trial court did not obtain jurisdiction over Wise. See Monaco, 810 So.2d at 1085.

Accordingly, we REVERSE the order denying Wise’s motion to quash service.

PLEUS, C.J. and SAWAYA, J., concur.


text:
    George R. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1283.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    George R. Smith, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

George R. Smith (defendant) appeals the trial court’s order summarily denying his rule 3.800(a) motion to correct sentence. In the motion, the defendant alleges he is entitled to receive additional county jail credit in connection with this Citrus County case because there were two time frames when he was in jail for which he did not receive credit. As to the first time frame, the trial court committed no error and, accordingly, we affirm. As to the second time frame, we reverse and remand for further consideration by the trial court.

The first time frame involved was from May 28, 2000 to August 9, 2000, during which the defendant was incarcerated in Seminole County, Florida. However, diming this time frame, the defendant was held on Seminole County charges. Accordingly, the defendant is not entitled to receive county jail credit on his Citrus County sentence for this time frame since he was not in custody on the Citrus County convictions. In addition, the trial court is only required to award credit for pre-sentence jail time; it is the function of the Department of Corrections to award credit for any time served in jail after sentencing but before transfer to state prison. See § 921.161(2), Fla. Stat. (2005).

The second time frame the defendant alleges was not included in his jail credit was the period from his arrest in Volusia County on July 21, 2002 on a VOP warrant issued by a judge in Citrus County, until December 6, 2002, when he was returned to Citrus County.

The trial court denied this claim indicating that the defendant was not arrested on the Citrus County warrant until the day he was returned to Citrus County, December 6, 2002. However, the defendant attached to his rule 3.800(a) motion a copy of the VOP warrant which shows that it was issued on May 31, 2002. The defendant also attached the Volusia County arrest affidavit which shows that on July 21, 2002, he was arrested on the Citrus County warrant. Therefore, the defendant was taken in custody in Volusia County on the Citrus County warrant prior to his transfer to Citrus County on December 6, 2002. See Elkins v. State, 884 So.2d 499 (Fla. 5th DCA 2004). The State commendably concedes in its response that reversal is appropriate.

Although a defendant is not entitled to receive jail credit when a detainer is lodged against him, a defendant who is actually arrested on an outstanding warrant is entitled to receive jail credit. In the instant case, if the defendant was held in Volusia County solely on the outstanding Citrus County warrant, he would be entitled to receive additional credit. If the defendant was held in Volusia County on local charges as well as the outstanding Citrus County warrant, he might still be entitled to receive additional credit if the Volusia County charges resulted in convictions and sentences and the Volusia County sentences and the Citrus County sentences were ordered to be served concurrent to each other. Elkins v. State, 884 So.2d 499 (Fla. 5th DCA 2004).

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER and MONACO, JJ., concur.

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

      . It appears from the defendant’s allegations that Volusia County authorities transferred him to Seminole County the day after his arrest, where he was held until his delivery to Citrus County. According to the defendant, he was also wanted in Seminole County for violating his probation in that county. However, the Volusia County arrest affidavit only refers to the Citrus County warrant. Upon his delivery to Citrus County, the defendant was found guilty of violating his probation and was sentenced. The defendant asserts that he was then transferred back to Seminole County, where his VOP charge was dismissed.


author: MONACO, J.

text:
    Jeremy D. TARVER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1864.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    Jeremy D. Tarver, Polk City, pro se.
    No Appearance for Respondent.
   MONACO, J.

We deny the petition for habeas corpus filed by the petitioner, Jeremy D. Tarver, in which he seeks a belated appeal of the denial of his Rule 3.800(a) motion by the trial court. First, we note that the petition is unsworn, and thus does not comply with the requirements of Rule 9.141(c)(3)(F), Florida Rules of Appellate Procedure. More importantly, Mr. Tarver indicates in his petition that the order denying the underlying Rule 3.800(a) motion was rendered on September 16, 2005. He relates further that he individually filed his notice of appeal for purposes of the mailbox rule “on or about November 15, 2005.” As this indicates that the filing of his notice of appeal was well beyond the thirty-day limit prescribed in Rule 9.140(b)(3), Florida Rules of Appellate Procedure, and that the fault in missing the filing deadline lies solely with Mr. Tarver, we deny the petition. See McIntosh v. State, 906 So.2d 1272 (Fla. 5th DCA 2005); Cotterell v. State, 890 So.2d 315 (Fla. 5th DCA 2004).

PETITION DENIED.

SAWAYA and PALMER, JJ., concur.


text:
    Stefano RISCALDINO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-225.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.

      Stefano Riscaldino, Bristol, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Riscaldino appeals from the summary denial of his motion to allow him credit for jail time filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because it is unclear from the court’s order and record whether the trial judge understood that he had discretionary authority to award credit in this case, we remand this cause to the trial judge for further proceedings.

The record establishes that on November 12, 1996, while he was an inmate in Canada, Riscaldino was detained pursuant to a Volusia County arrest warrant for second degree murder and fraudulent use of a credit card. He did not waive extradition and initiated plea negotiations with the State of Florida for the lesser charge of manslaughter. After 186 days, the extradition and plea agreement were finalized. Riscaldino was then brought back to Florida where he was incarcerated in the Volusia County jail.

On August 28, 1997, Riscaldino was sentenced to fifteen years for manslaughter and two years for fraudulent use of a credit card, to run concurrently, followed by three years on probation. The trial court awarded Riscaldino credit for 105 days time served in the Volusia County Jail, prior to sentencing. However, it denied Riscaldino credit for the time served in Canada while awaiting extradition to the United States. Riscaldino asserts that he was being held in Canada during that time, solely because of the Florida charges. The trial court expressly denied credit for time served in Canada because Riscaldino had declined to waive extradition.

Section 921.161(1), Florida Statutes provides:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

Kronz v. State, 462 So.2d 450 (Fla.1985), addressed the issue of whether section 921.161(1) requires a trial judge to give credit for time served in a jail in another state, when the defendant is incarcerated solely because of a charged Florida offense. The court held that the defendant in that case was not entitled to credit on his sentence for time served in South Carolina on a Florida warrant while fighting extradition. But it stated the trial judge does have inherent discretionary authority to award credit for time served in other jurisdictions while awaiting transfer to Florida. Because there was no indication in the record as to whether the trial judge in that case understood he had the discretionary authority to award credit for time served in South Carolina, the court remanded to the trial judge to consider whether, through the exercise of his discretionary authority, he should give credit for time served. Id. at 451. See also Longo v. State, 629 So.2d 1094 (Fla. 5th DCA 1994).

This court has cited Kronz as authority to uphold the denial of an award of credit for time served out-of-state where the defendant was serving time on an out-of-state offense and not simply awaiting transfer to Florida. See, e.g., Zygadlo v. State, 676 So.2d 1015 (Fla. 5th DCA 1996) (holding that the defendant was not entitled to Florida sentencing credit for time defendant served in Illinois jail, where defendant was in jail on Illinois charges at time he was extradited); Inclima v. State, 625 So.2d 978 (Fla. 5th DCA 1993) (remanding the cause to the trial court for attachment of the records showing that he was being held in New York on other, unrelated criminal charges, and therefore, not entitled to be considered for discretionary award of jail time credit against his Florida sentence).

Based on these authorities, we conclude that Riscaldino is not entitled to additional credit for time served in Canada solely on Florida charges, while awaiting transfer to Florida. However, the trial court had inherent discretionary authority to award credit in such circumstances.

Accordingly, we remand this case to the trial judge to consider whether, through the exercise of his discretionary authority, he should give credit for the time served in Canada, under these stated circumstances.

PLEUS, C.J., SHARP, W., and SAWAYA, JJ., concur.


text:
    ORLANDO REGIONAL HEALTHCARE, etc., et al., Petitioner, v. Dajuanda ALEXANDER, etc., et al., Respondent.
    No. 5D06-139.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.

      Richard L. Allen, Jr. and Kimberly D. Webb, of Rumberger, Kirk & Caldwell, P.A., Orlando, for Petitioner Orlando Regional Healthcare System.
    Ronald S. Gilbert of Colling Gilbert & Wright, Maitland, for Respondent Dajuan-da Alexander.
   PALMER, J.

Petitioner, Orlando Regional Healthcare System (ORHS), seeks certiorari review of the trial court’s order granting respondent Dajuanda Alexander’s motion for leave to file an amended complaint. Concluding that the trial court departed from the essential requirements of law, causing harm which cannot adequately be remedied on appeal, we grant the petition.

Respondent, Dajuanda Alexander, filed a complaint alleging medical malpractice against Jerome Leroy Adams, M.D. and ORHS occurring during the birth of her son, Elliott. The pertinent factual background is set forth in detail in Orlando Regional Healthcare System, Inc. v. Alexander, 909 So.2d 582 (Fla. 5th DCA 2005). ORHS defended the lawsuit by asserting its immunity from civil suit pursuant to the exclusive remedy of the compensation plan administered by Florida’s Neurological Injury Compensation Association (NICA). See generally § 766.303, Fla. Stat. (2005).

Alexander’s lawsuit was abated while the parties litigated the issues of NICA compensability before the Florida Department of Administrative Hearings (DOAH). In the DOAH proceeding, Alexander argued that the NICA plan did not apply to her claims against ORHS because her allegations of medical negligence related to a period of time before labor and delivery. The administrative law judge (ALJ) rejected that argument, finding compensability under NICA because Elliott’s injuries were birth-related. This court affirmed the ALJ’s finding of compensability, holding that there was competent substantial evidence to support his finding that Alexander had not rebutted the presumption that Elliott’s injuries were birth-related injuries covered under the NICA plan. At the same time, this court reversed the ALJ’s finding that ORHS could not avail itself of the exclusive remedy under NICA because of lack of notice, holding that ORHS was excused from providing statutory pre-delivery notice to Alexander because she arrived at the hospital under emergency conditions.

After this court issued its mandate in that case, Alexander filed a motion in the trial court seeking to reactivate her lawsuit. ORHS responded by filing a motion for summary judgment. In the motion, ORHS asserted that, since Alexander received the rights and remedies pursuant to the NICA plan, no civil action against ORHS could be continued because of the exclusiveness of the NICA remedy. See § 766.304, Fla. Stat. (2005). The trial court agreed with ORHS and entered final summary judgment in its favor. However, on the same day, the court entered an order granting Alexander’s pending motion for leave to amend her complaint to add a claim against ORHS for the alleged negligence of two nurses who treated Alexander at the emergency room prior to her labor and delivery. The proposed amended complaint is almost identical to Alexander’s initial complaint except for the fact that the amended complaint identifies the two nurses employed by ORHS by name. ORHS seeks certiorari review of this order.

Alexander maintains that the trial court’s ruling allowing her to amend her complaint was proper because the amended portions of her complaint are not subject to the exclusive remedies set forth under the NICA plan since the nurse’s alleged negligence occurred prior to labor and delivery. ORHS responds, arguing that further amendment to Alexander’s complaint to add claims against ORHS is not authorized because the factual issue relating to Elliott’s injury was tried before the ALJ and his determination that Elliott’s injury was a birth-related neurological injury compensable under NICA was affirmed on appeal.

Section 766.304, Florida Statutes (2005), states that, if the ALJ determines that the claimant is entitled to receive compensation under the NICA plan, no civil action may be brought or continued. Since the determination has been made that Elliott’s injury was birth-related, no further civil action against ORHS is allowed. Therefore, the trial court departed from the essential requirements of law in granting Alexander’s motion for leave to amend her complaint to add an additional claim against ORHS.

Having found that the trial court departed from the essential requirements of law, we must determine whether certio-rari is an available remedy.

Ordinarily, orders allowing parties to amend their complaints are not reviewable by certiorari because an adequate remedy exists by plenary appeal. However, in cases where a party is claiming immunity from civil liability, the exercise of our discretionary certiorari jurisdiction may be appropriate.

In Turner v. Hubrich, 656 So.2d 970 (Fla. 5th DCA 1995), a medical malpractice action was filed against physicians who participated in the NICA plan. The circuit court granted the motion to dismiss based on the exclusive administrative remedy under NICA, but granted the plaintiffs leave to amend their complaint to allege a claim that the defendants had not complied with statutory notice requirements. The physicians filed a petition for writ of certiorari seeking review of the trial court’s order. Although this court ultimately denied certiorari relief, holding that the notice requirements were a prerequisite to the application of NICA’s exclusive administrative remedy, we nonetheless considered the petition on its merit. See also Central Florida Regional Hospital v. Hill, 721 So.2d 404 (Fla. 5th DCA 1998)(holding that certiora-ri was appropriate to review orders denying motions to dismiss claims that the requirements of the Medical Malpractice Reform Act have not been met, holding that the requirement that the malpractice be fully litigated would frustrate the purpose of the Act and the resulting harm could not be remedied on appeal).

Applying the reasoning set forth in Turner and Hill, we conclude that certiorari review is appropriate in this case so as to effectuate the intent of the NICA legislation, which is to establish a limited system of compensation irrespective of fault. See § 766.301, Fla. Stat. (2005). Accordingly, we grant ORHS’s petition for certiorari and quash the trial court’s order granting Alexander’s motion for leave to file an amended complaint.

PETITION GRANTED; ORDER QUASHED.

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