author: BASCHAB, Judge. SHAW, Judge,

text:
    Scottie Lee BRAND v. STATE of Alabama.
    CR-05-0275.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.

      Mark David Erdberg, Birmingham, for appellant.
    Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Scottie Lee Brand, was convicted of third-degree domestic violence (harassment), a violation of § 13A-6-132, Ala.Code 1975. The trial court sentenced him to serve a term of twelve months at hard labor in the county jail, but suspended the sentence and placed him on unsupervised probation for twenty-four months. The appellant filed a “Motion for Post-Conviction Judgment of Acquittal,” which the trial court summarily denied. This appeal followed.

The victim, Drenda Holcomb, testified that she and the appellant met in the summer of 2003; that they hung out together, went to movies together, and went places together; that she went to his house; that they were friends; and that their relationship was not and had not ever been romantic. She also testified that, on July 30, 2005, she and the appellant went to a strip club together around 11:00 p.m.; that, while they were there, another male talked to her, and another female talked to the appellant; that the appellant, who had been drinking heavily, became enraged and jealous when she talked to the other male, told her not to talk to the male, and asked the male if he wanted to go outside; and that they left around 2:00 a.m.

The victim testified that, afterward, she drove the appellant home and that, while they were on their way, the appellant was cursing at her and calling her a “bitch.” At one point, she slammed on the brakes and told the appellant to get out of the vehicle, but he did not do so. The victim further testified that, when they arrived at his house, the appellant took the keys out of the ignition of her vehicle and threw them into the yard; that she got out of the vehicle to look for her keys; that the appellant yelled at her, called her a “bitch,” and told her that was what she deserved; and that she got back into her vehicle and said that she just wanted her keys. Finally, she testified that the appellant, who was standing outside of the driver’s side door, took her head in his hands and headbutted her. ‘

Without cross-examining the victim, the defense moved to dismiss the charge, arguing that the victim and the appellant were friends, were not romantically involved, and were not included in the domestic violence statute. The trial court asked the victim if she and the appellant had dated, and the victim said that they had gone out together and hung out together but had not dated and had not been boyfriend and girlfriend.

Defense counsel then cross-examined the victim, who testified that she and the appellant met approximately two years before at a bar in Decatur and that they had had sexual relations that night. Afterward, the trial court told defense counsel he should not be asking such questions because “what they did in Decatur two years ago has no consequence in a trial today.” Finally, the victim admitted that the appellant talked to another female at the strip club, but she stated that it did not upset her.

The appellant testified that, when they arrived at his house, he got the victim’s keys and threw them; that he got out of the vehicle and walked to the driver’s side of the vehicle; that the victim hit him and then he headbutted her; and that the victim was arguing about him talking to the girl at the strip club. He explained that he threw the victim’s keys because she was arguing with him all of the way home about talking to. the other female. Finally, he testified that he did not remember an argument at the strip club.

After the defense rested, the trial court stated:

“My way of thinking, and I’m just an old 58-year-old man. You go out and have sex, you’re on a date. This is old school. That’s a dating relationship. They had a dating relationship.... ”

The appellant argues that the trial court erroneously denied his “Motion for Post-Conviction Judgment of Acquittal.” Specifically, he contends that the State did not establish that he and the victim were in a dating relationship.

“A person commits domestic violence in the third degree if the person commits the crime of ... harassment pursuant to subsection (a) of Section 13A-11-8; and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship ■ with the defendant.”

§ 13A-6-132(a), Ala.Code 1975.

“A person commits the crime of harassment if, with intent to harass, annoy, or alarm another person, he or she either: “a. Strikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical abuse.”

§ 13A-ll-8(a)(l), Ala.Code 1975.

“Section 13A-6-131, Ala.Code 1975, does not define a ‘dating relationship,’ and our research has not uncovered any other statute or any caselaw in Alabama defining that term. Thus, the term ‘dating relationship’ must be given its ‘ “natural, plain, ordinary, and commonly understood meaning.” ’ Perry v. State, 568 So.2d 339, 342 (Ala.Crim.App.1990)', quoting Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984). ‘Date’ is defined, in relevant context, as ‘a social engagement between two persons that often has a romantic character ... a person with whom one has a usu. romantic date.’ Merriam-Webster’s Collegiate Dictionary 317 (11th ed.2003). ‘Relationship’ is defined, in relevant context, as ‘a romantic or passionate attachment.’ Merriam-Webster’s Collegiate Dictionary 1050 (11th ed.2003).
“However, as the Superior Court of New Jersey, Chancery. Division, noted in Andrews v. Rutherford, 363 N.J.Super. 252, 256-57, 832 A.2d 379, 382 (Ch.Div. 2003), ‘[t]he conundrum in this case lies in the fact that the words “dating relationship” provoke a different “common usage” from one person to the next, and therefore any attempt to discern a universal meaning for the phrase is problematic.’ In Andrews, the New Jersey Court addressed the term ‘dating relationship’ with regard to the applicable New Jersey statute codifying the offense of domestic violence, as follows:
“‘When the legislature added the -term “dating relationship” to the list ■■ of protected persons under the Act in 1994, it followed the efforts in other states where domestic violence stat- .■ utes dealt with the subject. A review ■ of the laws of other jurisdictions in this regard demonstrates that nearly identical language exists in the statutes of several states. States that include some form of “dating relationship” as a protected class in their domestic violence statutes include Alabama, California, Massachusetts, Michigan, Nevada, Montana, North Carolina, North Dakota, Rhode Island, Tennessee, Washington, West Virginia, Illinois, and Vermont. Among all of these statutes, unlike New Jersey, several stand out as explicitly defining what constitutes a “dating relationship.” In North Carolina, a dating relationship “is one wherein the parties are romantically involved over time and on a continuous basis during the course of a relationship.” SeeN.C. Gen. Sess. § 50B-1 (2003). In Michigan, a dating relationship is defined as “frequent, intimate associations primarily characterized by the expectation of affectional involvement.” See Mich. Comp. Laws § 400.1511 (2003). In Vermont, “dating” is simply defined as a “social relationship of a romantic nature.” See 15 Vt. Stat. Ann. 1101.
“ ‘Many of these same states also incorporate factors into their statutes in order to aid the courts in determining whether a dating relationship actually exists. For instance, Massachusetts lists several factors, including the length of time of the relationship, the type of the relationship, and. the frequency of interaction between the parties. See Mass. Gen. Laws. Ann. 209A, 1. Washington’s factors include the length of time the relationship has existed, the nature of the relationship, and the frequency of the interaction between the parties. See Wash. Rev. Code. Ann. § 26.50.010. Perhaps the most comprehensive set of factors is contained in Vermont’s statute and includes the nature of the relationship, the length of time the relationship has existed, the frequency of interaction between the parties, and the length of time since the relationship was terminated, if applicable. See 15 Vt. Stat. Ann. 1101. As is clear by a review of these statutes, a variety of states use essentially the same factors when determining the existence of a dating relationship.
“ ‘However, it should also be noted that certain states expressly exclude some types of relationships from falling under their Act’s umbrella. Michigan’s statute provides that the term “dating relationship” does not include a “casual relationship or ordinary fraternization between two individuals in a business or social context”. Mich. Comp. Laws 400.1511. North Carolina similarly excludes “a casual acquaintance or ordinary fraternization between persons in a business or social context”. N.C. Gen. Sess. § 50B-1. Tennessee and Nevada also have similar provisions. See Tenn.Code. Ann. § 36 — 3—601(9)(C) and Nev.Rev. Stat. § 33.108.
“ ‘A case remarkably similar to the one currently before the Court was recently decided in California. California’s Domestic Violence Prevention Act also fails to define what constitutes a “dating relationship.” In Oriola v. Thaler, 84 Cal.App. 4th 397, 100 Cal.Rptr. 2d 822 (2000), the California Court of Appeals defined a “dating relationship” as a “serious courtship ... a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual.” Id. .at 412, 100 Cal. Rptr.2d 822. The court came to this definition after an exhaustive and thorough analysis of the precedent from other jurisdictions and a lengthy historical analysis of the meaning of the term “dating.”
“ ‘While the Oñola court set -forth a comprehensive definition of what constitutes a “dating relationship”, such a determination is necessarily fact sensitive and thus warrants a “factor approach” rather than a “definitional approach,” similar to the approach used in Vermont, Massachusetts, and Washington. In determining whether á dating relationship actually exists under New Jersey’s Prevention of Domestic Violence Act, this court finds six factors that should, at a minimum, be considered:2
“ T. Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization?
“ ‘2. How long did the alleged dating activities continue prior to the acts of domestic violence alleged?
“ ‘3. What were the nature and frequency. of the parties’ interactions?
“ ‘4. What were the parties’ ongoing expectations with- respect to the relationship, either individually or jointly?
“ ‘5. Did the parties demonstrate an affirmation of their relationship before others by statement or conduct? 3
“ ‘6. -Are there any other reasons unique to the case that support or detract from a finding that a “dating relationship” exists?
“ ‘While none of these factors may be individually dispositive on the issue, one or more of the factors may be more or less relevant in any given case depending on the evidence presented .... Thus, where the issue of whether a dating relationship exists is raised by the defendant, the court should first determine whether a dating relationship actually exists in accordance with a consideration of the factors set forth above, and thereafter proceed appropriately in accordance with its findings.
“ ‘2 These factors are not exclusive and additional considerations may present themselves within the context of a given case.
“ ‘3 There is certainly the potential that individuals could be in a “secret” dating relationship, in which the parties intentionally go out of their way not to hold themselves out as a dating couple, in which case the other factors would logically carry more weight.’

363 NJ.Super. at 257-60, 832 A.2d at 382-84.

“We believe that the six criteria set forth in Andrews provide a general framework for making the determination as to whether a ‘dating relationship’ exists under the domestic-violence statutes in Alabama. That framework, how- ' ever, is not exhaustive, but rather must allow for the consideration of additional facts and/or factors that may be relevant and' that may arise in the context of a future case. Thus, what constitutes a dating relationship for purposes of the domestic-violence statute must be determined by the fact-finder on a case-by-case basis.”

Hobdy v. State, 919 So.2d 318, 322-25 (Ala. Crim.App.2005) (footnote omitted).

This is the second case to address what constitutes a dating relationship in Alabama. Therefore, we will examine the facts of this case in light of each of the factors set forth in Hobdy.

First, we must determine whether there was a minimal social interpersonal bonding of the parties over and above a mere casual fraternization. Even assuming that the night the victim and the appellant met and had sexual relations constituted interpersonal bonding over and above a mere casual fraternization, the testimony does not establish that their subsequent activities constituted anything other than mere casual fraternization. Although the victim testified that she and the appellant hung out together, that they went to movies and other places together, and that she went to his house, she specifically stated that their relationship was not and had not ever been romantic. In fact, the activities the victim described, without more, are no more than what many friends engage in on a regular basis. Therefore, this factor weighs against a finding that the victim and the appellant were in a dating relationship.

Second, we must determine how long the alleged dating activities continued pri- or to the acts of domestic violence alleged. Under the facts of this case, this factor goes hand in hand with the first factor. As we explained in the previous paragraph, the only activity the victim and the appellant engaged in that might constitute more than mere casual fraternization, and that might therefore be characterized as a dating activity, was when they engaged in sexual relations two years before on the night they met. It appears that the trial court found the appellant guilty of third-degree domestic violence based on harassment simply because he and the victim had sexual relations the night they met. However, as the court aptly noted during defense counsel’s cross-examination of the victim: “What they did in Decatur two years ago has no consequence in a trial today.” Even assuming that the night the victim and the appellant met and had sexual relations constituted a dating activity, there was evidence of only one such incident, and that incident occurred approximately two years before the act of domestic violence alleged. Further, the victim specifically stated that their relationship was not and had not ever been romantic. In light of the remote and isolated nature of the parties’ sexual encounter, and the lack of evidence that they subsequently engaged in activities that could be characterized as dating activity, this factor weighs against a finding that the victim and the appellant were in a dating relationship. See Alison C. v. Westcott, 343 Ill.pp.3d 648, 798 N.E.2d 813, 278 Ill.Dec. 429 (2003) (holding that the fact that the parties attended the same high school, had spoken on the telephone, and had a single lunch date was not sufficient to establish a dating relationship).

Third, we must examine the nature and frequency of the parties’ interactions. The victim testified that she and the appellant hung out together, that they went to movies and other places together, and that she went to his house. However, she did not describe how frequently such interactions occurred. In addition, she specifically denied that she and the appellant had ever dated. Therefore, this factor does not weigh in favor of a finding that the victim and the appellant were in a dating relationship.

Fourth, we must determine what were the parties’ ongoing expectations with respect to the relationship, either individually or jointly. The testimony provided little or no evidence that either the victim or the appellant had ongoing expectations with respect to the relationship. Although the appellant contended that the victim was upset about him talking to another female at the strip club, the victim testified unequivocally that she and the appellant were not boyfriend and girlfriend, that they had not ever dated, and that their relationship was not and had not ever been romantic. Also, although the victim testified that the appellant appeared to be jealous when she talked to another male at the strip club, the appellant testified that he did not remember an argument at the strip club. Therefore, this factor weighs against a finding that the victim and the appellant were in a dating relationship'.

Fifth, we must determine whether the parties demonstrated an affirmation of their relationship before others by statement or conduct. Again, the testimony provided little or no evidence that either the victim or the appellant had affirmed a relationship before others. Although the appellant contended that the victim was upset about him talking to another female at the strip club, the victim testified unequivocally that she and the victim were not boyfriend and girlfriend, that they had not ever dated, and that their relationship was not and had not ever been romantic. Also, although the victim testified that the appellant appeared to be jealous when she talked to another male at the strip club, the appellant testified that he did not remember an argument at the strip club. Finally, the record does not include any evidence that this is a case in which the victim and the appellant were in a secret dating relationship. Therefore, this factor weighs against a finding that the victim and the appellant were in a dating relationship.

Sixth, we must determine whether there are any other reasons unique to the case that support or detract from a finding that a “dating relationship” exists. The record in this case does not include any other evidence that would support or detract from a finding that the victim and the appellant were in a dating relationship.

Examining the totality of the circumstances of this case in light of the factors set forth in Hobdy, the evidence did not establish that the appellant and the victim were in a dating relationship. The dissent asserts that the trial court could have reasonably concluded that the appellant and the victim were in a dating relationship based on their social interactions over a two-year period and based on the appellant’s jealousy when he saw the victim talk to another man while "they were' out at a strip club together. Noting that “[t]he trial court was presented with evidence from which conflicting inferences could be drawn as to whether [the appellant] and the victim had a ‘dating relationship’ that “[i]t was for the trial court to make the necessary inferences from the evidence and the credibility determinations with respect to the witnesses’ testimony that would underpin its findings and judgment”; and that “it is not the province of this Court to reweigh evidence that was presented to the trial court ore tenus in a nonjury case,” the dissent states that it would affirm the trial court’s judgment. 960 So.2d at 756. Contrary to the dissent’s assertions, the record does not support the inference that the trial court concluded that the appellant and the victim were in a dating relationship based on their social interactions over a two-year period and the appellant’s jealousy. Rather, as we have previously noted, it appears from the trial court’s comments at the end of the proceeding that it found the appellant guilty of third-degree domestic violence based on harassment simply because he and the victim had sexual relations the night they met. The purpose of the domestic violence statutes is to protect a specific class of victim by providing enhanced . penalties. Such victim-specific crimes must be narrowly interpreted if we are to reflect their intended purpose. We cannot include in the specific category of “dating relationship” all sexual encounters no matter how infrequent or remote. To do so would be a disservice to the victims intended to benefit from the domestic violence statutes.

“We do not contest the judge’s assessment of the [victim’s] credibility in the present case, but rather his misapplication of the [factors set forth in Hobdy ]. See Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002) (‘we will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts’).
“The judge committed an error of law in relying on improper factors as the basis for his finding that the parties were engaged in a ‘... dating relationship.’ ”

C.O. v. M.M., 442 Mass. 648, 655-56, 815 N.E.2d 582, 589 (2004). For the reasons set forth herein, the evidence was insufficient, as a matter of law, to establish that the appellant and the victim were in a dating relationship. Therefore, we reverse the trial court’s judgment as to the third-degree domestic violence conviction.

Nevertheless, the evidence clearly supported a conviction for the lesser included offense of harassment. “Appellate courts have the ‘inherent authority to reverse a conviction while at the same time ordering an entry of judgment on a lesser included offense.’ Edwards v. State, 452 So.2d 506, 507 (Ala.Crim.App.1983), aff'd, 452 So.2d 508 (Ala.1984).” Campbell v. State, 555 So.2d 252, 254 (Ala.Crim.App. 1989). Accordingly, we remand this case to the trial court with instructions that it set aside the appellant’s third-degree domestic violence conviction and that it enter a judgment of guilty of the lesser included offense of harassment and impose a sentence for that offense. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion. The return to remand shall include a transcript of the sentencing hearing and the new sentencing order.

REVERSED AND REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB and WISE, JJ., concur; SHAW, J., dissents, with opinion.

SHAW, Judge,

dissenting.

In determining whether the State has presented a prima facie case, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences from that evidence, and consider the evidence in the light most favorable to the State. Foster v. State, 705 So.2d 534 (Ala.Crim.App.1997). After examining the evidence in this case in light of this Court’s recent decision in Hobdy v. State, 919 So.2d 318 (Ala.Crim.App.2005), I cannot agree that Brand was entitled to a judgment as a matter of law on the third-degree domestic-violence charge.

The trial court was presented with evidence from which conflicting inferences could be drawn as to whether Brand and the victim had a “dating relationship.” It was for the trial court to make the necessary inferences from the evidence and the credibility determinations with respect to the witnesses’ testimony that would underpin its findings and judgment. The evidence indicated that Brand and the victim socially interacted for two years, during which they engaged in activities that are customary to a dating relationship—they “hung out together,” went to the movies together, and had sex together at least once. The evidence also indicated that Brand went into a jealous rage when he saw the victim talk to another man while they were out at the nightclub together on the night of the incident. To me, it is counterintuitive to conclude that jealousy of this sort is not strong evidence indicative of some kind of relationship beyond that of mere casual fraternization, or at least indicative of a strong personal bonding on the part of Brand, especially when the evidence indicated that Brand and the victim had socially interacted for two years. The credibility of the victim’s testimony as to whether she had dated Brand or whether she and Brand were boyfriend and girlfriend was for the trial court to determine.

In Hobdy, 919 So.2d at 325, this Court stated that “what constitutes a dating relationship for purposes of the domestic-violence statute must be determined by the fact-finder on a case-by-case basis.” (Emphasis added.) Because I believe that the evidence was sufficient to support the trial court’s finding that Brand and the victim had engaged in a dating relationship pursuant to § 13A-6-132, Ala.Code 1975, and because it is not the province of this Court to reweigh evidence that was presented to the trial court ore tenus in a nonjury case, I would affirm the trial court’s judgment. Accordingly, I must respectfully dissent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David Eugene JOHNSTON, Appellant, v. STATE of Florida, Appellee.
    No. SC03-824.
    Supreme Court of Florida.
    May 4, 2006.
    J. Edwin Mills, Orlando, FL, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Kenneth S. Nunnel-ley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

David Eugene Johnston appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm both the trial court’s denial of postconviction relief and its finding that Johnston is not mentally retarded.

FACTUAL AND PROCEDURAL BACKGROUND

Johnston was convicted of first-degree murder in the 1984 death of eighty-four-year-old Mary Hammond. Johnston was sentenced to death following a finding of three aggravating factors and no mitigating factors; his conviction and sentence were affirmed on Johnston’s direct appeal in 1986. Johnston v. State, 497 So.2d 863, 865 (Fla.1986). The Governor signed a death warrant in 1988, and Johnston filed a motion for postconviction relief. The execution was stayed pending an evidentia-ry hearing, after which the trial court denied relief in its entirety. In 1991, this Court affirmed the trial court’s denial of postconviction relief and denied Johnston’s petition for writ of habeas corpus. Johnston v. Dugger, 583 So.2d 657, 659 (Fla. 1991). Later, Johnston filed a petition for writ of habeas corpus in federal district court, which was also denied. On appeal to the Eleventh Circuit Court of Appeals, the court declined to give Johnston habeas relief. Johnston v. Singletary, 162 F.3d 630, 632 (11th Cir.1998). Following this Court’s decision in Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.1999), which clarified varying language used in ineffective assistance of counsel claims, Johnston filed another petition for writ of habeas corpus, arguing that Stephens should apply retroactively to his case. We denied that petition in Johnston v. Moore, 789 So.2d 262, 263 (Fla.2001).

In June 2002, Johnston filed a motion to vacate judgment of conviction and sentences, asserting that he is mentally retarded and that his execution would violate his constitutional rights. In August 2002, Johnston filed another postconviction'motion challenging the constitutionality of his death sentence in response to the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), applies in the death penalty context. Without conducting an evidentiary hearing, the trial court denied relief in its entirety in a written order dated January 31, 2003. After this Court relinquished jurisdiction pending appeal, the trial court conducted an evidentiary hearing and again denied relief. Johnston now appeals the trial court’s denial of postconviction relief, and raises two claims for this Court’s consideration.

ANALYSIS

Johnston raises the following claims in this appeal: (1) whether Florida’s capital sentencing scheme is unconstitutional under the United States Supreme Court’s decision in Ring, and (2), whether the trial court erred in finding that Johnston is not mentally retarded.

Ring

Johnston’s first claim is that Florida’s capital sentencing scheme is unconstitutional under the United States Supreme Court’s decision in Ring. We have recently held that even if Ring were to be applied in Florida, it would not be applied retroactively in postconviction claims. See Johnson v. State, 904 So.2d 400, 412 (Fla.2005). Hence, we affirm the trial court’s denial of Johnston’s Ring claim.

Mental Retardation

On June 24, 2005, the trial court held an evidentiary hearing to determine if Johnston meets the mental retardation criteria set out in Florida Rule of Criminal Procedure 3.203. Based upon the evidence received at the hearing, the trial court concluded that Johnston is not retarded. We now review that ruling and affirm the trial court’s determination.

Prior to the evidentiary hearing, the trial court appointed Drs. Sal Blandino and Gregory A. Prichard to examine Johnston. Dr. Blandino, a licensed psychologist, examined Johnston at Union Correctional Institution on May 31, 2005. Dr. Blandino testified that mental retardation is a disorder classified in the Diagnostic and Statistical Manual using a three-prong test. The first prong involves “sub-average intellectual functions usually assessed by an IQ test or an assessment of intellectual ability that tends to fall below a score of 70, so 69 and below.” The IQ testing is performed by administering a Wechsler Series or Stanford-Binet test. The second prong involves deficits in adaptive functioning, which concerns general functioning behavior in life, and the third prong requires that the deficiencies must be present prior to age eighteen. Dr. Blandi-no did not conduct the IQ testing himself in this case because of the close proximity in time (two weeks) between Dr. Prich-ard’s testing and Dr. Blandino’s examination. He also did not administer a further IQ test because he concluded that Dr. Prichard’s results were almost identical to the results that were obtained from testing of Johnston some thirty-one years earlier. On the tests, Johnston’s score on the verbal scale was 76, his performance scale was 95, and his full scale IQ was 84. This score falls between the upper range of borderline intellectual functioning and low average intellectual functioning. Borderline intellectual functioning is defined as a score between 70 and 84; low average is between 84 and 99; and average is between 100 and 115.

Dr. Blandino testified that he did not notice severe impairments in Johnston’s communication or reading abilities. However, Dr. Blandino noted that when Johnston was administered a Stanford-Binet test at age seven, he scored a 57; furthermore, he also took a Wechsler Intelligence Scale for Children test when he was twelve and scored a 65. However, Dr. Blandino discounted these earlier scores because the test administrators placed a caveat in their notes indicating “that this was not an aecu-rate assessment of his functioning because of behavioral and emotional issues, and that he was actually performing or was functioning at a higher level.” This observation was bolstered by a test administered two years after the last test, on which he scored significantly better, and thirty-one years later, by the most recent test, which was identical to the previous one. Finally, Dr. Blandino concluded that Johnston is not mentally retarded. He also noted that Johnston told him he was mentally retarded, which is not typical of a person who is truly mentally retarded, and stated that he thought Johnston knew that being found mentally retarded would help his “legal predicament.” He testified that he did not assess Johnston’s adaptive functioning because

I thought it was a moot point given the fact that he didn’t meet two of the three criteria for the diagnosis of mental retardation, and again, the IQ score being as high as it was and the fact that ... mental retardation did not appear to be present prior to age 18, and again by the current score it wasn’t there ..., so I figured why waste the time and money.

Concerning the 95% confidence interval typically involved in IQ testing, Dr. Blandi-no testified that a score of 84 falls decisively in the 80-88 range, solidly in the borderline to low average intellectual functioning range.

Dr. Prichard, a licensed clinical psychologist, testified concerning the three prongs that determine mental retardation as well. He stated that the three prongs are not independent elements; rather, they must all be present in order for mental retardation to be present. Dr. Prichard testified that the “acceptable, standard manner of proceeding in an assessment within the profession of , psychology” is to stop at the first- prong if the IQ score assessed there is too high to constitute mental retardation. Johnston had extensive mental health records, and there was “incredible agreement” between the different forms of formal testing that had been performed on Johnston throughout his life. Three tests over the course of thirty years, one at age thirteen, one performed in 1988, and the one Dr. Prichard performed, resulted in practically the same score, indicating to Dr. Prichard that Johnston is functioning in the 80s intellectually. Dr. Prichard agreed with Dr. Blandino’s belief that Johnston’s two early low IQ test scores should be discarded because, at the time, “emotional factors were getting in the way of optimal functioning.” Dr. Prichard stated that, although Johnston exhibited some adaptive deficits, he did not perform testing concerning this because of his determination that Johnston’s IQ score was too high. Dr. Prichard concluded that even with the standard error of measurement, Johnston’s IQ level is not near the level of mental retardation.

On July 7, 2005, the trial court entered an order finding that Johnston is not mentally retarded because of the evidence from both experts who “testified that [Johnston] consistently scored too high on IQ tests to support a finding of ‘significantly subaverage general ■ intellectual functioning.’ ”

After the United States Supreme Court’s decision in Atkins, in which the Court held that the execution of the mentally retarded constitutes excessiye punishment under the Eighth Amendment and that states are free to establish their own methods for determining which offenders are mentally retarded, this Court adopted rule 3.203, which provides that a trial court shall conduct an evidentiary hearing for a determination of mental retardation. Fla. R.Crim. P. 3.203(e); see also Amendments to Fla. Rules of Criminal Procedure & Fla. Rules of Appellate Procedure, 875 So.2d 563, 571 (Fla.2004). The definition of mental retardation is provided in rule 3.203(b):

“[M]ental retardation” means significantly subaverage general intellectual functioning existing- concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18_ “[Significantly subaver-age general intellectual functioning” ... means performance that is two or more standard deviations from the mean score on a standardized intelligence test.... “[AJdaptive behavior” ... means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.

Under this rule, the three prongs of mental retardation consist of: (1) subaverage general intellectual functioning, (2) deficits in adaptive behavior, and (3) manifestation before age 18; these three prongs are to be considered in the conjunctive.

The standard of review utilized by this Court in reviewing a trial court’s finding on a defendant’s mental retardation claim is whether competent, substantial evidence supports the finding.

As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the [trial court’s decision].

Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981) (footnote omitted), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); see also Windom v. State, 886 So.2d 915, 927 (Fla.2004)(citing Porter v. State, 788 So.2d 917, 923 (Fla.2001)) (“This Court has held that it will not substitute its judgment for that of the trial court on questions of fact, and likewise on the credibility of witnesses and the weight given to the evidence so long as the trial court's findings are supported by competent, substantial evidence.”).

Johnston argues that the trial court erred in finding him not mentally retarded because the experts appointed by the trial court only considered the first prong of rule 3.203. We find no error and conclude that the trial court’s findings are supported by competent, substantial evidence. First, Johnston had to score two standard deviations below the mean score on an IQ test, or 70, in order to satisfy the first prong of rule 3.203(b). While Johnston did score below this number in tests he took early in his life, the test administrators noted that the low scores were probably due to behavioral and emotional problems at the time. These observations were apparently proved true later when tests performed on Johnston from the age of thirteen on were consistently in the upper borderline intellectual to low average functioning range, well above the determinative line for retardation. Both experts’ testimony during the evidentiary hearing supported such a conclusion.

While Johnston is correct that the experts in his case did not perform adaptive functioning tests under the second prong of rule 3.203, both experts testified that this testing was unnecessary and contrary to standard professional practice because all three prongs of the rule must be met in order for a defendant to be found mentally retarded. Finally, both experts concluded that Johnston is not mentally retarded pursuant to rule 3.203. Therefore, there was competent, substantial evidence to support the trial court’s finding that Johnston is not mentally retarded.

CONCLUSION

Accordingly, for the reasons discussed above, we affirm the trial court’s denial of Johnston’s motion for postconviction relief with respect to his Ring claim, and we affirm the trial court’s determination that Johnston is not mentally retarded.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

      . This Court has adopted Florida Rule of Criminal Procedure 3.203, which provides procedures for a determination of mental retardation in response to the United States ■ Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that states could not execute the mentally retarded. Id. at 321, 122 S.Ct. 2242.

      . In June 2002, Johnston filed a Motion to Vacate Judgment of Conviction and Sentences in the trial court because he is mentally retarded and his execution would violate his constitutional rights under the Eighth Amendment. Without conducting an evidentiary hearing, the trial court denied relief in a written order dated Januaiy 31, 2003. Johnston appealed the trial court's denial of relief to this Court, and this Court relinquished jurisdiction in its Clarified Order Relinquishing Jurisdiction for Determination of Mental Retardation dated December 17, 2004. After an evidentiary hearing, the trial court found that Johnston is not mentally retarded. Johnston now challenges the trial court’s findings.

      . Dr. Prichard stated that adaptive functioning is one of the three prongs of mental retardation because, even if a person scores in the mentally retarded range on the IQ test, his adaptive functioning may be so high as to deem him not mentally retarded. The reverse is not true, however. No matter how poor a person’s adaptive functioning is, a person cannot be mentally retarded if he scores in the non-mentdlly retarded range.


text:
    In re AMENDMENTS TO THE FLORIDA EVIDENCE CODE.
    No. SC07-178.
    Supreme Court of Florida.
    July 12, 2007.
    The Honorable Dedee S. Costello, Chair, Code and Rules of Evidence Committee, Fourteenth Judicial Circuit, Panama City, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

We have for consideration the regular-cycle report of The Florida Bar Code and Rules of Evidence Committee (Committee), concerning recent legislative changes to the Florida Evidence Code made in chapter 2005-46, sections 1-2, and chapter 2006-204, section 1, Laws of Florida. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The amendments at issue are those enacted by the Legislature since this Court last considered amendments to the Evidence Code. See In re Amendments to Fla. Evidence Code — Section 90.101, 914 So.2d 940 (Fla.2005); Amendments to Fla. Evidence Code, 891 So.2d 1037 (Fla. 2004). The Committee recommends that the Court adopt all of the legislative changes to the Florida Evidence Code. The Committee’s recommendations were unanimously approved by the Board of Governors of The Florida Bar. The recommendations were published for comment in The Florida Bar News, and no comments were received.

In 2005, the Legislature abolished the “Deadman’s Statute,” repealing section 90.602, Florida Statutes, which pertained to testimony of interested persons regarding oral communication with a deceased or mentally incompetent person. See ch. 2005-46, § 1, Laws of Fla. In its stead, the Legislature created section 90.804(2)(e), Florida Statutes (2005), which added an exception to the hearsay rule to permit relevant communications of deceased or incompetent persons to be heard by the trier of fact. See ch. 2005-46, § 2, Laws of Fla. The hearsay exception applies in specified actions or proceedings for a statement made by a declarant who is unavailable due to death, illness, or infirmity regarding the same subject matter as a statement made by the declarant that was previously offered by an adverse party and admitted in evidence.

In 2006, the Legislature amended section 90.503, Florida Statutes, to broaden the psychotherapist-patient privilege by adding to the list of those who will be deemed “psychotherapists” certain certified registered nurses whose primary practice is the diagnosis or treatment of mental or emotional conditions. See ch. 2006-204, § 1, Laws of Fla. Under section 90.503(l)(a)(5), the privilege now applies to “advanced registered nurse practitioners” as defined by section 464.003(6), Florida Statutes (2006), who are “certified” pursuant to section 464.012, Florida Statutes (2006), and whose primary practice is the diagnosis or treatment of mental or emotional conditions, including chemical abuse, limited to actions performed in accordance with the “Nurse Practice Act,” Part I of Chapter 464, Florida Statutes.

Consistent with the Committee’s recommendations, we adopt chapter 2005-46, sections 1 and 2, and chapter 2006-204, section 1, Laws of Florida, as provided in the appendix to this opinion, to the extent that they are procedural. Our adoption of the amendments is effective on the dates the amendments became effective.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

Chapter 2005-46, § 1:

90*662. — Testimony of--interested per-

(1) No person interested in an-action-or proceeding against the personal representative^dieir at law, assignee, legatee-devi-see, or survivor of a deceased person, or against the assignee-,-committee, or guardian of a mentally-incompetent person, shall be examined ■as-a-witness-regarding any oral communication between the interested person-a-nd-the-person who is deceased- or-mentall-y- incompetent at the time-of-the examination^

(2) This section does not apply-whem

(a)-A--personal- representative, heir -at laWj-ass-ignee, legatee, devisee, or survivor of a deceased-person, or the assignee, committee, or guardian of a mentally incompetent-person, is examined on-his or her own behalf regarding the oral-communication.

(b) Evidence-of the subject matter — of the oral-commanication is offered by the personal representative, heir at law--as-signee,--legatee, devisee, or-survivor of a deceased person, or the assignee, committee, or guardian of a mentally incompetent person.

(3) For-the-purpose of this section, a “mentally incompetent person” is one-whe because-of mental illness-mental retardation, senility-, — excessive use of drugs or alcohol, or other mental incapacity,-is-incapable of either managing his or — her property-or-earing for himself-or-herself,- or-both;

Chapter 2005-46, § 2:

90.804 Hearsay exceptions; declarant unavailable

(1) [No Change]

(2) HEARSAY EXCEPTIONS. — The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:

(a)-(d) [No Change]

(e) Statement by deceased or ill declar-ant similar to one previously admitted.— In' an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph (l)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence.

Chapter 2006-204, § 1:

90.503. Psychotherapist-patient privilege

(1) For purposes of this section:

(a) A “psychotherapist” is:

1.-2. [No Change]

3. A person licensed or certified as a clinical social worker, marriage and family therapist, or mental health counselor under the laws of this state, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; or

4. Treatment personnel of facilities licensed by the state pursuant to chapter 394, chapter 395, or chapter 397, of facilities designated by the Department of Children and Family Services pursuant to chapter 394 as treatment facilities, or of facilities defined as community mental health centers pursuant to s. 394.907(1), who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction^; or

5.An advanced registered nurse practitioner certified under s. 464.012, whose primary scope of practice is the diagnosis or treatment of mental or emotional conditions, including chemical abuse, and limited only to actions performed in accordance with part I of chapter 464.

(b)-(c) [No Change]

(2) — (3) [No Change]

      . See Fla. R. Jud. Admin. 2.140(b).

      . The hearsay exception created by section 90.804(2)(e), Florida Statutes (2005), applies "[i]n an action or proceeding brought against the personal representative, heir at law, as-signee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person.”


text:
    In re AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE.
    No. SC07-1159.
    Supreme Court of Florida.
    July 12, 2007.
    Mary Katherine Wimsett, Chair, Juvenile Court Rules Committee, Gainesville, FL, John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar’s Juvenile Court Rules Committee (Committee) has filed an out-of-cycle report proposing amendments to the Florida Rules of Juvenile Procedure to conform the rules to recent legislation. We have jurisdiction. See art. V, § 2(a), Fla. Const.;. Fla. R. Jud. Admin. 2.140(e).

Under the Committee’s “fast-track” procedure for considering new legislation, the Committee proposes new form 8.978 (Order Authorizing Child to Secure Depository Financial Services Before the Child’s 18th Birthday). The new form is proposed in response to chapter 2007-147, section 4, Laws of Florida, creating new section 743.044, Florida Statutes. This new statute removes the disability of nonage for youths in foster care who have reached the age of sixteen, have been adjudicated dependent, are residing in an out-of-home placement, and have completed a financial literacy class, for the purpose of enabling them to secure depository financial services, such as checking and savings accounts. The statute provides that upon issuance of a court order, such a youth may make and execute all necessary documents, contracts, or agreements to obtain these financial services, and requires the youth to present the order when seeking such services. Ch. 2007-147, § 4, Laws of Fla. The new statute took effect on July 1, 2007. The Executive Committee of The Florida Bar Board of Governors approved the proposed new form by a vote of ten to zero.

After considering the Committee’s proposal and reviewing the relevant legislation, we adopt new form 8.978 as proposed by the Committee and reflected in the appendix to this opinion. The new form shall become effective immediately upon the release of this opinion. However, because the Court did not publish the form for comment prior to its adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

FORM 8.978. ORDER AUTHORIZING CHILD TO SECURE DEPOSITORY FINANCIAL SERVICES BEFORE THE CHILD’S 18TH BIRTHDAY

ORDER AUTHORIZING CHILD TO SECURE DEPOSITORY FINANCIAL SERVICES BEFORE THE CHILD’S 18TH BIRTHDAY

THIS CAUSE came before the court to remove the disabilities of nonage of .(name)., for the purpose of securing depository financial services, and the court being fully advised in the premises FINDS as follows:

.(Name).is at least 16 years of age, meets the requirements of section 743.044, Florida Statutes, and is entitled to the benefits of that statute.

THEREFORE, based on these findings of fact, it is ORDERED AND ADJUDGED that the disabilities of nonage of .(name).are hereby removed for the purpose of securing depository financial services.(Name).is hereby authorized to make and execute contracts, releases, and all other instruments necessary for the purpose of securing depository financial services. The contracts or other instruments made by .(name). for the purpose of securing depository financial services have the same effect as though they were the obligations of a person who is not a minor.

ORDERED at .... da, on.(date)_ Flori-

Circuit Judge

Copies to:

      . The Committee has also proposed an amendment to Florida Rule of Juvenile Procedure 8.165. This proposal has been severed from this case and is being addressed in a separate case, In re Amendment to Florida Rule of Juvenile Procedure 8.165(a), No. SC07-1162 (Fla. order filed June 25, 2007).

      . An original and nine paper copies of all comments must be filed with the Court on or before September 10, 2007, with a certificate of service verifying that a copy has been served on the Committee Chair, Robert W. Mason, 25 N. Market Street, Ste. 200, Jacksonville, FL 32202-2802, as well as separate request for oral argument if the person fifing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until October 1, 2007, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


author: FARMER, J.

text:
    L.D.G., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3020.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

The critical issue in this juvenile disposition on a charge of felony criminal mischief is whether the State adduced prima facie proof of damages exceeding $1,000. We hold that it did and affirm the disposition.

The child was accused of damaging a vehicle in a temper tantrum. The owner of the vehicle testified that she kicked and beat the door of the auto repeatedly, leaving it with several dents. The owner testified that her insurance paid $750 for the property damage to the door and that she, as the insured, paid the deductible of $500. She elaborated that she personally “handed over to the company who repaired her vehicle” the sum of $1,250 in payment of the repairs. We deem this testimony as prima facie proof by competent, substantial evidence that the damage exceeded $1,000.

The juvenile relies principally on our decision in R.C.R. v. State, 916 So.2d 49 (Fla. 4th DCA 2005), and argues that it requires a reversal for insufficient evidence of damage. We disagree. The decision in R.C.R. stands for the proposition that repair costs cannot be used to establish the amount of the damage element in a charge of criminal mischief to the extent that the repair costs exceed the fair market value of the damaged .property. In R.C.R., the undisputed evidence showed that the damaged auto had been recently purchased for $500 as “junked,” without an engine or wheels, placed on blocks, with the idea of restoring. In this case, however, the vehicle was the personal van of one of the counselors who had accompanied the young girls living at a residence hall to a July 4th outing. R.C.R. is simply inappo-site to this case.

Affirmed.

STONE and MAY, JJ., concur.

      . "If the damage is $1,000 or greater ... it is a felony of the third degree § 806.13(l)(b), Fla. Stat. (2006).

      . We disagree with the defense that this testimony was inadmissible hearsay. For one thing, the testimony did not involve an out-of-court statement but rather an act in which she was a participant. As a party to the insurance contract, the owner was competent to testify to any amount paid by the insurer under the property damage coverage to repair the vehicle door. Moreover, the amount paid by a property damage insurer — together with the deductible — is surely entitled to a high degree of reliability as to the value of the damage. Such evidence is well beyond speculation or opinion and constitutes direct evidence of money actually paid for the damage.


author: FLETCHER, J.

text:
    ROLLS-ROYCE PLC, Rolls-Royce AB, Rolls-Royce North American Holdings, Inc., and Rolls-Royce Commercial Marine, Inc., Appellant, v. ROYAL CARIBBEAN CRUISES LTD., Celebrity Cruises, Inc., Millenium Inc., Infinity Inc., Summit Inc., and Constellation Inc., Appellee.
    No. 3D06-2459.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Rehearing and Rehearing En Banc Denied Aug. 10, 2007.

      Kenny Nachwalter and Stanley H. Wakshlag and Marcos Jimenez; Akerman Senterfitt and Michael B. Chavies, Miami, and Anthony J. Cuva, Tampa, and Christopher S. Carver, Miami; and Joel S. Per-win, for appellant.
    Fowler Rodriguez and Maria Isabel Hoelle and G. Luis Dominguez and Mary C. Hubbard; Lewis Tein; Hicks & Kneale, and Mark Hicks, Miami, for appellee.
    Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
   FLETCHER, J.

Rolls-Royce, PLC, Rolls-Royce, AB, Rolls-Royce North American Holdings, Inc., and Rolls-Royce Commercial Marine Inc. (collectively Rolls-Royce) appeal the denial of their motion to compel arbitration of a lawsuit filed against them by Royal Caribbean Cruises LTD., Celebrity Cruises, Inc., Millennium Inc., Infinity Inc., Summit Inc., and Constellation Inc. (collectively Royal Caribbean). We affirm.

On March 16, 1998, Royal Caribbean entered into agreements with Chantiers de 1’Atlantique (hereafter CAT) for construction of four luxury cruise ships — the Millennium, Infinity, Summit and Constellation. The shipbuilding agreements provided for incorporation of pod propulsion systems in the cruise ships, but did not specify which system was to be used.' Subsequently Royal Caribbean orally agreed with Rolls-Royce to use their Mermaid pod propulsion systems. The first ship to be completed and delivered was the Millenium which was accepted in June of 2000. According to Royal Caribbean the pod propulsion system on the ship failed to function properly from the beginning. The Infinity was accepted next, in March of 2001, and it also suffered propulsion system failures. As a result of these problems, Royal Caribbean and CAT executed additional agreements in connection with their acceptance of the Summit and Constellation, specifically addressing the pod propulsion deficiencies. Although they referred to Rolls-Royce as the subcontractor providing the pods, Rolls-Royce was not a party to these agreements. All contracts between Royal Caribbean and CAT included provisions requiring arbitration of any disputes arising from the parties’ agreements. No written agreements exist between Royal Caribbean and Rolls-Royce.

After making numerous requests for repair, and several unsuccessful attempts at repair by Rolls-Royce, Royal Caribbean instituted the present action for damages against Rolls-Royce. The complaint alleged several causes of action including breach of implied warranties; misrepresentation; fraud; deceptive and unfair trade practices; negligent testing, inspecting, repairing, servicing and performance of professional services; false and deceptive advertising and sales; tortious interference with Royal Caribbean’s business relationships; and civil conspiracy to defraud. Rolls-Royce moved the trial court to compel arbitration of the claims. Rolls-Royce contended below, as it does here, that it is entitled to arbitration because Royal Caribbean’s claims fall within the ambit of the contracts with CAT which call for arbitration of any disputes arising from the shipbuilding agreements.

We agree with the trial court’s well-reasoned opinion determining that arbitration could not be compelled under the circumstances herein because the claims against Rolls-Royce are independent of the agreements between Royal Caribbean and CAT, and Royal Caribbean and Rolls-Royce had no agreement to arbitrate. In considering a motion to compel arbitration, the trial court must determine whether a valid written agreement to arbitrate exists, whether an arbitrable issue exists, and whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999). Because arbitration is a matter of contract, “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415; 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). Generally, therefore, a non-signatory to a contract containing an arbitration agreement cannot compel a signatory to submit to arbitration. Koechli v. BIP Int’l, Inc., 870 So.2d 940 (Fla. 1st DCA 2004). In certain limited circumstances, however, non-signatories have been allowed to compel arbitration under the arbitration provisions of another’s contract.

Rolls-Royce contends that two accepted exceptions to the general rule apply in this case. We disagree. The first exception asserted by appellee requires that the claim “arise out of or relate to” the agreement containing the arbitration provision. E.g., Seifert, 750 So.2d 633; Cuningham Hamilton Quiter, P.A. v. B.L. of Miami, Inc., 776 So.2d 940 (Fla. 3d DCA 2000). As recognized in Seifert, for the “claim to be considered ‘arising out of or relating to’ an agreement, it must, at a minimum, raise some issue the resolution of which requires reference to or construction of some portion of the contract itself.” 750 So.2d at 638. Resolution of the claims raised against Rolls-Royce does not require reference to or construction of the shipbuilding agreements between Royal Caribbean and CAT. The claims against Rolls-Royce solely concern its alleged misconduct in connection with provision of the Mermaid propulsion pods which were incorporated into the cruise ships.

The second exception is appropriate where there are allegations of concerted action by both a nonsignatory and one or more of the signatories to the contract. E.g., MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999); Armas v. Prudential Sec., Inc., 842 So.2d 210 (Fla. 3d DCA 2003). Here again the allegations point only to the action of Rolls-Royce, not the shipbuilder. Royal Caribbean complains about the poor performance of the propulsion pods, blaming Rolls-Royce for faults in their design, manufacture, and marketing. Rolls-Royce is also accused of negligence in its attempts at repairs. CAT had nothing to do with the design, manufacture, marketing or repair of the propulsion pods.

Accordingly, the trial court’s denial of the motion to compel arbitration is affirmed.

      . The case was removed initially to federal court, but was remanded for lack of jurisdiction.


text:
    GATEWAY SOUTHEAST PROPERTIES, INC., and City of Doral, Appellants, v. DEPARTMENT OF COMMUNITY AFFAIRS, TOWN OF MEDLEY, and Waste Management, Inc. of Florida, Appellees.
    No. 3D06-1718.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Rehearing and Rehearing En Banc Denied Aug. 2, 2007.

      Shubin & Bass and Elaine D. Walter and Jeffrey S. Bass, and Lucinda A. Hof-mann; John J. Hearn, Miami; Goren, Cherof, Doody & Ezrol and Michael D. Cirullo, Jr., Fort Lauderdale, for appellants.
    Roth, Rousso & Katsman and Barbara J. Riesberg; White & Case and Douglas M. Halsey and Evan M. Goldenberg and Mark B. Martinez; Richard E. Shine, Miami, for appellees.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   We reverse the Summary Final Order of the Division of Administrative Hearings, determining that the Town of Medley’s Ordinance C-306 is consistent with the Town’s Comprehensive Plan. Ordinance C-306 permits expansion of a non-conforming use, which the Comprehensive Plan destined to be phased out. This violates the Florida Growth Management Act’s dictates that local plans be “implemented through the adoption of land development regulations that are consistent with the plan.” Bd. of County Comm’rs of Brevard County v. Snyder, 627 So.2d 469, 473 (Fla.l993)(emphasis added); § 163.3202, Fla. Stat. (2006). Here, as the Ordinance unequivocally “deviates or departs” from the parameters of the Plan, Machado v. Musgrove, 519 So.2d 629, 634 (Fla. 3d DCA 1987), we cannot hold that it is consistent. See City of Miami Beach v. Chisholm Props. S. Beach, Inc., 830 So.2d 842, 843 (Fla. 3d DCA 2002)(Schwartz, C.J., specially concurring).

We therefore reverse the Summary Final Order and remand with instructions to grant Gateway’s Motion for Summary Final Order.


text:
    Armand McEWEN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and We are in the Dough, Inc., Appellees.
    No. 1D06-4970.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Rehearing Denied July 27, 2007.
    Armand McEwen, pro se, Appellant.
    Geri Atkinson-Hazleton, General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of November 3, 2006, this appeal is hereby DISMISSED for lack of jurisdiction because the notice of appeal was not filed within 30 days of rendition of the order on appeal. See Fla. R.App. P. 9.110(b).

BENTON, VAN NORTWICK, and HAWKES, JJ., concur.


author: ORFINGER, J. TORPY, J.,

text:
    BANKERS TRUST COMPANY, etc., et al., Appellants/Cross-Appellees, v. Richard BASCIANO, Appellee/Cross-Appellant.
    No. 5D05-2565.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.
    Rehearing Denied July 12, 2007.

      Kimberly A. Ashby, of Akerman Senter-fitt, Orlando, and Phillip D. Parrish, of Phillip D. Parrish, P.A., Miami, for Appellants/Cross-Appellees.
    David H. Simmons and Kenneth P. Ha-zouri, of de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Ap-pellee/Cross-Appellant.
   ORFINGER, J.

Bankers Trust Company and Lennar Partners, Inc. (collectively, “Appellants”) appeal a final judgment entered following a jury trial, finding Lennar liable for negligent misrepresentation and both Bankers Trust and Lennar liable for violating Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), section 501.201-.213, Florida Statutes (1999). Based on the verdict, Appellants were ordered to pay $1.6 million to Richard Basciano. On appeal, Appellants contend that the trial court erred in failing to grant their motions for summary judgment, judgment notwithstanding the verdict (“JNOV”), directed verdict, and new trial. Mr. Basciano cross-appeals the trial court’s summary judgment in favor of Appellants on his claims for breach of contract and promissory estoppel, and the trial court’s remitti-tur order on his negligent misrepresentation claim. As explained below, we affirm in part, reverse in part and remand with directions that judgment be entered in favor of Appellants.

In 1998, 3835 McCoy Road Orlando Hotel, LC (“3835”) obtained an $11.2 million non-recourse mortgage loan from Credit Suisse First Boston to fund the acquisition and renovation of an Orlando-area hotel. Subsequently, Credit Suisse assigned the note, mortgage, loan documents and collateral to Bankers Trust. Soon thereafter, the loan went into default, and. Bankers Trust retained Lennar to act as its “special servicer” to receive and control payments made on the loan, monitor loan covenants and defaults, and to explore a restructuring or a workout of the loan.

Lennar, on behalf of Bankers Trust, contacted 3885 and agreed to discuss the possibility of restructuring the loan with 3885’s representatives. However, as a condition precedent to any loan restructuring discussions, two virtually identical pre-negotiation agreements were executed, which provided, among other things, that Appellants were making no commitments to a workout agreement, that any representations not in writing were of no effect, and providing a mutual waiver and release of any claims arising out of the restructuring discussions. The agreements, which were addressed to Mr. Basciano, referred to 3835 as the “Borrower” and were signed on behalf of 3835 by Mr. Basciano, as “Managing Member” and “President-PRA at McCoy Road, Inc., Sole Managing Member.” More specifically, the pre-negotiation agreements provided:

Lennar Partners, Inc. (the “Special Servicer”) is the Special Servicer with respect to the Loan and has the authority, on behalf of [Bankers Trust], to meet with representatives of the Borrower to review and discuss the Loan and any issues arising under any of the documents relating to the Loan (the “Loan Documents”).
We have agreed to discuss with your representatives the status of the Loan and the Loan Documents provided that the following agreements and understandings govern.
1. Negotiations. The Borrower and the ' • Special Servicer agree that any discussions, negotiations, correspondence or other communications relating to the Loan and the Loan Documents that the Borrower may have in the future or may have had since June 29, 1998 with representatives of [Bankers Trust] ... or the Special Servicer, (any such discussions, negotiations or correspondence or other communications being hereinafter referred to as (“Loan Communications”) are not binding upon the Borrower, [Bankers Trust] ... (collectively the “Parties”). None of the Parties is under any obligation to consent or otherwise agree to any request with respect to the Loan, to modify the Loan or the Loan documents or to fulfill in any manner any discussions or agreements which may be or have been purported to be agreed upon between the Parties without the express written agreement of Borrower and the Special Servicer. The Parties further understand and agree that none of the Parties shall have any defense to any action brought by any other Party on behalf of the Custodian. Nor shall any Party assert any waiver based on any Loan Communications.
2. Releases. The Parties hereby completely, irrevocably and unconditionally release and forever discharge all other Parties of and from any and all claims and demands whatsoever, in law or equity, whether such claims are presently known or unknown, direct or indirect, fixed or contingent, which Borrower or the Special Servicer may have or may claim to have against the other Parties caused by, or arising out of any Loan Communications.
3. No Waivers. Borrower and Special Servicer acknowledge and agree that participation in the Loan Communications does not constitute by any party (a) a renewal, extension or standstill arrangement as to the exercise of any rights, remedies or powers, (b) a waiver or release of any defaults under the Loan or the Loan Documents, or (c) a waiver, release or modification of any right or remedy or Loan Document provision. None of the Parties intend to waive any defaults that may exist, or any right or remedies unless and until it expressly does so in writing. Furthermore, participation in the Loan Communications shall not prevent any Party from exercising any right, remedy or power available to such Party including, without limitation, all rights, remedies and powers granted under the Loan Documents or at law or in equity. The Parties understand that any delay in exercising any right or remedy with respect to any collateral for the Loans while the Loan Communications continue shall not be the basis for any claim or cause of action.
4. Only Written Agreements. Borrower acknowledges and agrees that any conduct or statements, whether written, oral, telephonic or otherwise, made at any time in connection with the Loan Communications are without prejudice and, without exception, constitute settlement negotiations that are not to be disclosed to any other person nor be admissible as evidence in any administrative or judicial proceeding (i) between [Bankers Trust], Borrower and/or Special Servicer, or (ii) involving any of the Loan Documents or any of the property securing the Loans without prior written consent of the other Party. The Loan Communications, or any writings generated as a result of the Loan Communications, may not be sued in any litigation to indicate culpability, weakness of position or an admission of liability, or to otherwise admit any obligations due and owing to or from the parties.
5. Authority. The Borrower represents and warrants that the Borrower is the borrower under the Loan Documents, and the person signing this Agreement on behalf of Borrower hereby represents and warrants that Borrower has the necessary power and authority to execute and deliver this Agreement on behalf of the Borrower. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors, legal representative and assigns as applicable.

Notwithstanding the pre-negotiation agreements, after the parties were unable to reach a workout agreement, Mr. Basci-ano sued Appellants, claiming that Appellants had induced him to personally fund the hotel’s shortfalls while the workout discussions were ongoing. He asserted that he was not bound by the pre-negotiation agreements as they were executed only by the borrowing entity, 3835, and not by him personally. Appellants responded by contending that Mr. Basciano has no viable claim against them since no binding agreement was ever reached, and that the pre-negotiation agreements and releases were binding on both 3835 and Mr. Basci-ano, as 3835’s representative.

In his second amended complaint, Mr. Basciano asserted claims for breach of fiduciary duty, common law fraud, constructive fraud, negligent misrepresentation, unjust enrichment, promissory estoppel, violations of FDUTPA, and breach of an oral contract. Prior to trial, Appellants moved for summary judgment, which the trial court granted in part. In its order on summary judgment, the trial court ruled:

■ First, the Court finds that there are genuine issues of material fact regarding whether Basciano was a legal representative under the Release, and therefore whether the letter agreements apply to him.
Second, the Court finds that the alleged agreement does not constitute an enforceable contract, as there is no evidence of an agreement on essential terms to the contract.... Because there is no evidence of an agreement as to essential terms, summary judgment is granted as to Count VIII in the Second Amended Complaint for breach of oral contract.
In addition, because the alleged agreement is too vague to be enforced, Basciano cannot rely on promissory es-toppel, and summary judgment is granted as to Count VI, for promissory estop-pel, also....
Only the breach of oral contract claim and the promissory estoppel claim fall victim to the indefiniteness of the promise. According to the Second Amended Complaint, the other claims (breach of fiduciary duty, fraud, constructive fraud, negligent misrepresentation, and violation of the Florida Deceptive and Unfair Trade Practices Act) rely not only -on the promise to restructure the loan, but also on Defendants’ alleged failure to turn the appraisal over to Basciano in a timely manner. Since these claims rely on facts other than a promise to restructure the loan, they survive the motion for summary judgment.
Finally, the Court finds that there was no fiduciary relationship between the parties, and therefore summary judgment is warranted as to the claim for breach of fiduciary duty.
Thus, the remaining issues to be tried related to Basciano’s claims for fraud, constructive fraud, negligent misrepresentation, and violation of the Florida Deceptive and Unfair Trade Practices Act, and damages.

Ultimately, the jury found in favor of Mr. Basciano and against Lennar on his claim of negligent misrepresentation and in favor of Mr. Basciano and against Lennar and Bankers Trust on the FDUTPA claim.

On appeal, Appellants’ primary argument is that Mr. Basciano is precluded from asserting claims of negligent misrepresentation and FDUTPA violations based on the August 1999 discussions with Len-nar because, at best, the result of those discussions was an agreement to agree in the future. Appellants contend that such ah understanding creates no enforceable contract and that the same conduct and representations cannot form the basis for Mr. Basciano’s other claims as they are merely derivative of an otherwise unenforceable agreement. We agree.

As the trial court correctly recognized in its summary judgment, the creation of a contract requires that there be mutual assent to a certain and definite proposition. “Where essential terms of an agreement remain open, and subject to future negotiation, there can be no enforceable contract.” Dows v. Nike, Inc., 846 So.2d 595, 602 (Fla. 4th DCA 2003). What is an essential term of a contract will vary widely according to the nature and complexity of each transaction and must be evaluated on a case specific basis. King v. Bray, 867 So.2d 1224, 1228 (Fla. 5th DCA 2004).

Accepting the allegations in Mr. Basci-ano’s second amended complaint as true, “Lennar promised to work cooperatively with Basciano to restructure the loan in a manner consistent with the appraisal's valuation of the hotel in order to give the hotel a reasonable chance of succeeding as a going concern.” That agreement is, in our opinion, far short of an enforceable contract. Consequently, we agree that the trial court properly entered summary judgment in favor of Appellants on Mr. Basciano’s contract claims.

We further conclude that the trial court erred when it failed to grant summary judgment or JNOV on Mr. Basciano’s negligent misrepresentation and FDUTPA claims as those claims were premised on the same conduct and representations that were insufficient to form a contract and are merely derivative of the unsuccessful contract claim. See Mark Andrew of Palm Beaches Ltd. v. GMAC Commercial Mortgage Corp., 265 F.Supp.2d 366, 382 (S.D.N.Y.2003) (holding that under Florida law, when statute of frauds prohibited plaintiff from enforcing an oral contract, claims for fraud and negligent misrepresentation seeking damages based on same conduct and representations are merely derivative of claim for breach of contract and are prohibited); see also Conner, I, Inc. v. Walt Disney Co., 827 So.2d 318 (Fla. 5th DCA 2002) (dismissing negligent misrepresentation claim where oral contract was unenforceable). To hold otherwise would allow every failed breach of contract claim to morph into a negligent misrepresentation or FDUTPA claim. The well-established laws governing contracts should not be so casually dismissed.

As to the claim of negligent misrepresentation, Mr. Basciano was required to plead and prove that he justifiably or reasonably relied on the alleged misrepresentation. See Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985). To state a cause of action for misrepresentation, there must be a right to rely. Butts v. Dragstrem, 349 So.2d 1205, 1206-07 (Fla. 1st DCA 1977). “Clearly, one is not justified in relying upon some action which the other party is not required to perform.” Bruce v. Am. Dev. Corp., 408 So.2d 857, 858 (Fla. 3d DCA 1982). A party cannot rely to his detriment on an unenforceable promise. See J Square Enters. v. Regner, 734 So .2d 565, 566 (Fla. 5th DCA 1999) (citing Canell v. Arcola Housing Corp., 65 So.2d 849 (Fla.1953)). Because Appellants’ alleged promise to restructure the loan was unenforceable, Mr. Basciano had no right to rely on it and the .negligent misrepresentation claim must fail. ■

Mr. Basciano’s FDUTPA claim must fail as well. FDUTPA does not apply to banks arid savings and loan associations regulated by the state or the federal government. See § 501.212(4), Fla. Stat. (2004). While recognizing that exemption, Mr. Basciano contends that Lennar is not a bank protected by section 501.212(4), and, thus, falls within FDUTPA’s scope. We agree that if Mr. Basciano had a viable FDUTPA claim, Lennar could be sued. Nothing in FDUTPA suggests that bank subsidiaries, affiliates or agents are necessarily exempt from FDUTPA. See State, Office of Attorney Gen., Dep’t of Legal Affairs v. Commerce Commercial Leasing, LLC, 946 So.2d 1253, 1257-58 (Fla. 1st DCA 2007); Fed. Trade Comm’n v. Am. Standard Credit Sys., Inc., 874 F.Supp. 1080 (C.D.Cal.1994) (holding that statutory exemption of banks from Federal Trade Commission’s jurisdiction to prevent unfair or deceptive trade practices did not extend to banks’ agents if agents were not subject to extensive federal administrative controls that had been imposed on banks).

However, Mr. Basciano’s contention that despite the clear FDUTPA exemption, Bankers Trust, a regulated bank, can be held vicariously liable under FDUTPA for Lennar’s action is misplaced. FDUTPA clearly excludes banks from its grasp. When a statute is free from ambiguity, we follow its plain meaning. A clear and unambiguous statute that conveys a clear and definite meaning causes no reason to resort to the rules of statutory interpretation; we must simply give the statute its plain and obvious meaning. Clines v. State, 912 So.2d 550, 555-56 (Fla.2005). Here, the statute unambiguously excludes banks. There is nothing in the statute to suggest that a bank comes within the ambit of FDUTPA when its liability is purely vicarious. To hold otherwise would lead to an illogical result. Accepting Mr. Basci-ano’s theory, a bank acting directly would be exempt from FDUTPA liability. However, if the same act was done by a bank agent, the bank could be vicariously liable under FDUTPA. We do not believe this is a result intended by the Legislature.

Finally, we address briefly the trial court’s exclusion of two letters written in March 2000 to Lennar by Mr. Basciano. Mr. Basciano maintained that the pre-ne-gotiation agreements were binding only on 3835, and not on him individually, as 3835’s representative. Lennar attempted to impeach Mr. Basciano with the March 2000 letters in an effort to show that Mr. Basci-ano represented himself to Lennar as the representative of 3835; described himself in the letters as “me, the borrower;” and indicated a willingness to “turn over the keys” to the hotel if a workout agreement wasn’t reached. The trial court sustained Mr. Basciano’s objection to the introduction of the March letters, concluding that they were settlement proposals, excludable under section 90.408, Florida Statutes (1999). That statute provides:

Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.

Exclusion of the March letters was error. This was a non-recourse loan, making only 3835 liable. There was no dispute between Mr. Basciano and Appellants as to the validity of the debt or the amount in controversy. If there is no dispute as to validity, or amount, the section 90.408 prohibition does not apply because there is nothing to compromise; any statements made by a party would be admissible if relevant. Charles W. Ehrhardt, Florida Evidence § 408.1 (2006 ed.). Further, section 90.408 only excludes evidence offered to prove “liability or absence of liability for the claim or its value.” § 90.408, Fla. Stat. (1999). If-the evidence is offered for another purpose, the evidence is not barred by section 90.408 and will be admissible if it is relevant to prove a material fact or issue, subject to section 90.403, Florida Statutes (1999). Wolowitz v. Thoroughbred Motors, Inc., 765 So.2d 920, 925 (Fla. 2d DCA 2000).

The March 2000 letters were crucial to Lennar’s argument that Mr. Basciano was acting .not individually, but as the representative of the borrower throughout the process of negotiating a workout of the loan. As such, the exclusion of this evidence was an abuse of discretion and reversible error. However, because we conclude that no viable negligent misrepresentation or FDUTPA claims can be asserted against Appellants, the, error was harmless. ,

For these reasons, we affirm the judgment in part, reverse the finding of liability against Appellants for negligent misrepresentation and FDUTPA violations and remand with directions that judgment- be entered in favor of Appellants. ■'

AFFIRMED in part; REVERSED in part; REMANDED.

THOMPSON, J., concurs.

TORPY, J., concurs and concurs specially, with opinion.

TORPY, J.,

concurs and specially concurs.

I concur in the opinion of the majority and offer some additional explanation for my decision to concur in the reversal of the judgment awarded to Appellee, Mr. Basci-ano.

The critical- issue here is whether Mr. Basciano had any individual claims against the bank. Because the limited liability company was not a party plaintiff, only the individual claims of Mr. Basciano are at issue here. In my view, there was no competent, substantial evidence to support any theory of liability in favor of Mr. Bas-ciano in his individual capacity. Therefore, the lower court should have granted summary judgment or directed verdict on all of Mr. Baseiano’s claims.

When the loan went into default, Mr. Basciano, expressly acting only in a representative capacity on behalf of the limited liability company, signed the so-called pre-negotiation agreements. These agreements were intended to foster a dialogue regarding a resolution of the default without imposing any potential liability on the bank. This is a common arrangement in the commercial world without which a borrower in default would have no opportunity to negotiate because a lender would fear that its discussions might be misconstrued or misstated. It is like settlement negotiations in any civil controversy. In fact, these agreements, among other things, expressly acknowledged that the contemplated communications would “without prejudice and, without exception, constitute settlement negotiations that are not to be disclosed to any person nor be admissible as evidence in any administrative or judicial proceeding....” The clear intent was to prevent the borrower from asserting any claims against the bank arising from the negotiations unless the claims were based upon a written agreement signed by the bank.

To maintain his claims against the bank, Mr. Basciano necessarily attempted to circumvent the express terms of these agreements by claiming that he was not wearing his managing partner hat when he had the conversations with the bank’s representatives. Instead, he claimed that the purported oral contract was made while he was wearing his individual hat, a contention that has no basis in the undisputed evidence.

Clearly, Mr. Basciano signed the workout agreement in his representative capacity, and the substance of all communications between him and the bank related directly to the resolution of the default between the bank and the limited liability company. As the majority points out, even under Mr. Basciano’s version of the purported agreement, he was acting in his representative capacity because, as he said, if no agreement could be reached, he would “give .... the [hotel] keys back” and allow the bank to retake possession of the property. Mr. Basciano could not have made this agreement in his individual capacity because he had no personal right to surrender the premises.

The conclusion that Mr. Basciano was engaged in these communications on behalf of the limited liability company is further buttressed by the March 2000 letters erroneously excluded from evidence. In those letters, Mr. Basciano outlined the communications between the parties that had occurred since execution of the pre-negotiation agreements. He urged the bank to reduce the indebtedness amount and threatened protracted litigation with the bank if it did not agree. Like the pre-negotiation agreements, he signed the letters in his representative capacity as managing member of the limited liability company. As counsel for Appellants argued, the pre-negotiation agreements were the “alpha,” and the post-negotiation letters were the “omega,” clearly evidencing that all the negotiations in between involved the parties identified in the writings.

Contrary to the assertion of Mr. Basci-ano, nothing in his testimony supports a contrary conclusion. In response to counsel’s question, the testimony was as follows:

Q. Okay. Was this, Mr. Basciano, a deal between you personally and Len-nar?
A. Yes.

This testimony did not constitute substantial, competent evidence of a personal agreement between Mr. Basciano and the bank. It is simply Mr. Basciano’s subjective conclusion and is completely unsupported by any testimony of communications between him and the bank on this topic.

For these reasons, and the reasons stated by the majority in its opinion, I conclude that Mr. Basciano simply did not have the right to sue this bank to redress these grievances under any legal theory.

      . On direct examination during trial, Mr. Bas-ciano provided the following testimony regarding his understanding of his agreement with Appellants:
      Q. And would you tell the jury what the agreement was that you and Mr. Brown [Lennar's representative] reached in the first part of September 1999.
      A. Mr. Brown realized as special-servi-cer . that there was a problem here and definitely said, we will work it out if you will pay for the appraisal, keep making renovations, knowing full-well however that in spite of keeping the debt service current that the hotel was losing a substantial amount of money.
      And I said, fine, let’s do this expeditiously. • And when I made that commitment to him I thought that [sic] would be a two or three week period before we would get the information regarding the true appraisal and then we would sit down and- discuss me either buying it near the appraisal price, and I agreed that if the appraisal price did not make monetary sense to me, as a businessman and a man of niy word, which I pride, I said, I will give you the keys back, you know, I could not fund it anymore and you can take the hotel oyer.

      (Emphasis added).

      . Additionally, Mr. Basciano testified as follows:
      Q. And if you couldn’t reach an agreement with Mr. Brown you told him you would give him the keys back?
      A. Yes.
      Q. And that means you would turn the property over?
      A. Yes, if they acted in good faith.

        Q. And you could offer the keys back because you owned the property, you were the owner, you were the legal representative of the borrower?

        A. Yes. And your question, counsel?

      (Emphasis added).

      . We need not concern ourselves with the application of the bank statute of frauds, section 687.0304, Florida Statutes (1999), due to our conclusion that no enforceable contract existed. "[BJefore it becomes proper or. necessary to determine whether the facts permit the enforcement of ... a contract, as an exception under the Statute of Frauds, it must first be determined that the existence of the contract and the terms thereof have been established with both the quantum and the quality of evidence required under the applicable. rules of law.” Gable v. Miller, 104 So.2d 358, 360 (Fla.1958). Because we conclude there was no contract formed, it is not necessary to determine if the bank statute of frauds would preclude its enforcement.


text:
    FIRST DELTA FINANCIAL CORP., et al., Appellant, v. In re ESTATE OF James G. WYCHIE, Appellee.
    No. 3D06-1761.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Ferdie and Lones and Ainslee R. Fer-die, Miami, for appellant.
    Hoffman, Larin Agnetti and John B. Agnetti and Richard L. Larin, North Miami Beach, for appellee.
    Before GREEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See May v. Illinois Nat’l Ins. Co., 771 So.2d 1143 (Fla.2000); Dobal v. Perez, 809 So.2d 78 (Fla. 3d DCA 2002).


author: GRIFFIN, J.

text:
    Dale SNIPES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1487.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2007.
    Rehearing Denied July 25, 2007.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Dale Snipes [“Snipes”], challenges the sentence imposed following his pleas of guilty to three counts of fraud involving securities and RICO violations. He claims that the sentence violates the plea agreement. The terms of the plea agreement are set forth in two documents consisting of a “Plea Agreement” and a “Substantial Assistance Agreement.” These documents are lengthy, convoluted and poorly drafted. In apparent recognition of this problem, at the plea hearing, the trial judge and both counsel for the State and Snipes undertook to restate and to clarify the terms of the plea agreement. This exercise only added to the confusion. Ultimately, the agreement failed because of Snipes’ inability to comply with a monetary contingency that neither party anticipated would be problematical.

Snipes’ interpretation of the agreements is that his incarceration exposure could be no greater than 60.9 months. The State, on the other hand, contends his exposure is substantially greater. The sentencing judge, who was not the judge who accepted the plea, adopted the State’s interpretation of the agreement and sentenced Snipes to ten years of incarceration.

After reviewing the record, including the two agreements and the plea hearing, it appears to us that Snipes has the better side of the argument, but there is enough ambiguity that we are unable to say that the trial court erred in refusing to enforce the plea agreement as interpreted by Snipes. However, because of this unresolvable ambiguity, we do think that Snipes ought to be able to withdraw from this plea agreement, if he chooses. Accordingly, our affirmance is without prejudice to Snipes to move to withdraw his plea.

AFFIRMED.

SAWAYA and TORPY, JJ„ concur.


text:
    HEALTHCARE AND RETIREMENT CORP. OF AMERICA, et al., Appellants, v. Carolyn ASPROTH, as Personal, etc., Appellee.
    No. 5D06-3428.
    District Court of Appeal of Florida, Fifth District.
    June 12, 2007.
    Rehearing Denied July 25, 2007.
    Sylvia H. Walbolt and Matthew J. Con-igliaro, of Carlton Fields, P.A., St. Peters-burg, for Appellants.
    Karen L. Goldsmith, of Goldsmith, Grout & Lewis, P.A., Winter Park, Amicus Curiae for Florida Health Care Association.
    Lora A. Dunlap, of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, and David A. Paul, of David A. Paul & Associates, P.A., Orlando, for Appellee.
   PER CURIAM.

AEFIRMED. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006).

GRIFFIN, SAWAYA and TORPY, JJ., concur.


text:
    Dexter ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-379.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Rehearing Denied Aug. 22, 2007.
    Dexter Anderson, Vero Beach, pro se.
    No response required for appellee.
   PER CURIAM.

We affirm the dismissal of appellant’s Florida Rule of Criminal Procedure 3.850 motion for postconviction relief because the motion was not timely under rule 3.850(b). In his motion, appellant contends that the trial court “exceeded its jurisdiction” in passing sentence because his scoresheet erroneously contained a non-existent prior conviction. Although there is case law suggesting that an absence of jurisdiction may be raised at any time, see, e.g., Harris v. State, 854 So.2d 703, 705 (Fla. 3d DCA 2003), we do not interpret appellant’s claim as a challenge to the sentencing court’s subject matter jurisdiction. The trial court’s subject matter jurisdiction would be unaffected by the sentencing error alleged by appellant. See Rodriguez v. State, 441 So.2d 1129, 1135 (Fla. 3d DCA 1983) (en banc rehearing). Accordingly, appellant’s motion was not timely under rule 3.850(b). Even assuming that appellant is correct that his scoresheet included a non-existent prior conviction, appellant is not entitled to relief. Appellant has previously raised this issue in a rule 3.800(a) motion, and we now write to make clear that we previously denied relief because the sentencing error was harmless under the “could-have-been-imposed” test. See Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006). The inclusion of this conviction resulted in the addition of only 1.6 points to appellant’s scoresheet total, and the sentence actually imposed by the trial court far exceeded the minimum sanction under the Criminal Punishment Code.

Affirmed.

WARNER, KLEIN and HAZOURI, JJ., concur.