text:
    Peter MARKLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1958.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing Denied Dec. 5, 2007.

      Peter Markland, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SUAREZ, JJ.
   COPE, J.

This is an appeal from an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

Defendant-appellant Markland was prosecuted for first-degree murder and other offenses. In exchange for a waiver of the death penalty, the defendant entered into a plea agreement with the State. The trial court approved the plea agreement and sentenced the defendant to life imprisonment with a twenty-fiveyear mandatory minimum sentence on the first degree murder charge, plus five consecutive life sentences on the other felony counts. There was no warning during plea colloquy of the possible deportation consequences of the plea. See Fla. R.Crim. P. 3.172(c)(8). The defendant is a citizen of Jamaica.

On January 13, 1995, an immigration judge entered a deportation order against the defendant. Ten years later, in 2005, the defendant moved to withdraw his plea on the basis that he had not been advised of the immigration consequences of his plea. The trial court denied the claim as being time barred, because “[t]he defendant has two years to file a motion for relief from the time that he had notice of the threat of deportation.” Order, April 21, 2005 (citation omitted). This court affirmed that order on appeal. Markland v. State, 917 So.2d 201 (Fla. 3d DCA 2005) (table).

In 2007, the defendant filed a motion for postconviction relief again seeking to set aside his plea because of the trial court’s failure to advise him of the deportation consequences of the plea. In so doing, the defendant relied on State v. Green, 944 So.2d 208 (Fla.2006), which receded in part from Peart v. State, 756 So.2d 42 (Fla.2000), and changed the commencement date for filing motions for postconviction relief based on a claim of failure to advise of deportation consequences. 944 So.2d at 217-18. The Green court said:

To reiterate our holding in this case, a defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy must file a rule 3.850 motion within two years after the judgment and sentence become final. The motion must allege, in addition to the lack of a deportation warning, that the defendant would not have entered the plea if properly advised and that under current law the plea does render the defendant subject to being removed from the country at some point in the future. A defendant filing outside the two-year limitation period must allege and prove that he or she could not have ascertained the immigration consequences of the plea with the exercise of due diligence within the two-year period.
Our holding in this case reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8). Therefore, in the interest of fairness, defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today.

Id. at 219.

Relying on Green, the defendant filed his 2007 postconviction motion, again raising the claim that he should be granted relief from his plea because the plea colloquy failed to advise him of the deportation consequences of the plea. The trial court correctly denied the motion.

First, the defendant’s claim is time-barred. In 2005 the trial court found the claim to be time-barred under the more liberal time standard contained in the Peart decision. The Green decision “reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8).” Id. at 219. The Green decision does not revive a claim which has already been found to be time-barred under Peart.

Second, the trial court also stated that the claim was without merit and denied relief on authority of Saint-Fleur v. State, 840 So.2d 261 (Fla. 3d DCA 2002), review denied, 906 So.2d 1059 (Fla.2005). In that case our court said:

[Wjhere a defendant enters a plea in exchange for a sentence of life imprisonment without the possibility of parole ... it is implausible to say that the possibility of deportation would have stopped the defendant from entering into the plea. If an agreed sentence is for life imprisonment, there is no realistic possibility of deportation.

Id. at 262.

Affirmed.

       The crime date was August 27, 1990.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rolando A. SANTANA, Appellant, v. Zulay J. SANCHEZ, Appellee.
    No. 3D07-276.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing Denied Dec. 5, 2007.

      Rolando A. Santana, in proper person.
    Zulay J. Sanchez, in proper person.
    Before RAMIREZ and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

On this appeal from various aspects of a final judgment of dissolution, we find no cognizable error of law or abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


text:
    Kende MOSES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1341.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing Denied Dec. 12, 2007.
    Charles G. White, Jupiter, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GREEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

We affirm the defendant’s convictions and sentence and remand only for the purpose of recalculating and correcting the defendant’s scoresheet.

Affirmed and remanded with directions.


author: SUAREZ, J.

text:
    Victor PATMAN, Petitioner, v. Barbara PATMAN, Respondent.
    No. 3D07-1999.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing Denied Jan. 2, 2008.
    Markus Winter and Stuart Markus, Miami, for petitioner.
    Stratton Feinstein and Brett Feinstein and Darryl C. Dungan and Daniel Villalo-bos, for respondent.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Husband (“Victor Patman”) petitions this Court for a writ of certiorari to the lower court quashing an order granting temporary relocation to the wife under paragraph 61.13001(6)(b), Florida Statutes (2006). Upon review of the record and in consideration of oral argument, we find that the trial court did not depart from the essential requirements of law. We therefore deny the Petition for Writ of Certiora-ri.

Certiorari denied.


text:
    Steven YOUNG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2004.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Steven Young, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Whitfield v. Singletary, 730 So.2d 314 (Fla. 3d DCA 1999).


text:
    Nestor URBAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2042.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing Denied Dec. 5, 2007.
    Nestor Urbay, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Nestor Urbay, pro se, appeals the circuit court’s denial of his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm because the movant failed to state a meritorious basis for relief. See Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998). Urbay’s claims for retroactive application of post-sentencing decisions fail as a matter of law because he was duly sentenced (after pleading guilty) according to the law as it existed when he committed the crimes. See State v. Miranda, 793 So.2d 1042, 1044 (Fla. 3d DCA 2001).

Affirmed.


text:
    Michael SMALLS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2446.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing Denied Dec. 5, 2007.
    Michael Smalls, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Bates v. State, 887 So.2d 1214 (Fla.2004).


text:
    Sara ROSENSHEIN, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D07-989.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing Denied Dec. 5, 2007.

      Lawrence R. Metsch, Miami, for appellant.
    Javier A. Ley-Soto, for appellee.
    Before GERSTEN, C.J., and GREEN and SUAREZ, JJ.
   SUAREZ, J.

Sara Rosenshein appeals from an administrative decision of the Department of Children and Families (DCF) to terminate her Medicaid Institutional Care Program payments because of excess income. We affirm.

Mrs. Rosenshein is a ninety-four-year-old widow in long-term nursing home care in North Miami Beach. She receives $814.20 in monthly social security, and receives Institutional Care Program (ICP) benefits from Medicaid. Both of those payments go directly to the nursing home. She also receives approximately $1,400 per month from a long-term care insurance policy, which she purchased in 1992. In 2006, during a routine review of her case, DCF became aware of the monthly insurance payment, which Mrs. Rosenshein had not reported as income on the advice of the nursing home business manager. DCF’s Medicaid ICP specialist determined that the insurance payments were income and that Mrs. Rosenshein’s gross available monthly income was actually $2,260.66, which exceeded DCF’s monthly income limit of $1,809. DCF notified her that she was thus no longer eligible for Medicaid ICP and that it would terminate her benefits in October 2006. Mrs. Rosenshein appealed and argued that the insurance payments should not be counted as income in the ICP eligibility and payment process because this income is not listed in any state or federal regulation governing the program. The Hearing Officer concluded that DCF correctly included the insurance payment as unearned income in determining Mrs. Rosenshein’s ICP eligibility, and upheld termination of her ICP nursing home benefits. She appeals the Hearing Officer’s decisions and argues that he erred when he held that the monthly long-term insurance care payments were to be counted as income in determining her eligibility for Medicaid ICP benefits.

Federal regulations classify income as earned or unearned. 20 C.F.R. §§ 416.1120-1124 describe “unearned income” and list some of the sources of unearned income that are exempt from being counted as “income” for purposes of social security eligibility. As indicated by Social Security Administration policy, the list of benefits enumerated by the Social Security Act is not all-inclusive. Each general category of unearned income is specified in the federal statute, but the federal statute is not a complete itemization of every possible type of unearned income under each category and it states as much. See id. The federal rules set forth broad categories, while the state administrative rules and regulations more specifically define the range and types of income, both earned and unearned. . The parties here do not dispute that the long-term care insurance proceeds qualify as unearned income; the issue is whether the private insurance payment is “countable” unearned income or exempted unearned income for purposes of Medicaid ICP eligibility.

Since Medicaid is a means-tested program, beneficiaries must meet specific asset and income criteria. Applicants with some savings will be required to “spend down” assets on long-term care services, that is, Medicaid will assume the cost of long-term care only after the applicant has exhausted most personal and private sources of funding. See 42 U.S.C. § 1396 (Medicaid spend-down provisions); Leocata ex rel. Gilbride v. Wilson-Coker, 343 F.Supp.2d 144, 149 (D.Conn.2004) (“Because Medicaid only covers categorically needy persons, individuals do not become eligible for Medicaid assistance until they ‘spend down’ their private assets below an income ceiling set by state statute.”), aff'd sub nom. Leocata v. Leavitt, 148 Fed.Appx. 64 (2d Cir.2005).

Under DCF’s long-term care insurance guidelines, the private long-term care insurance income is not exempt, but must be counted for purposes of determining Medicaid eligibility. DCF’s internal Transmittal document describes the difference between an insurance “reimbursement” for actual medical expenses and an insurance payment of a flat rate without regard to per diem charges from an institution. The former is exempt unearned income, and the latter is not. Mrs. Rosen-shein’s monthly $1,400 long-term care insurance benefit is a flat rate payment and is thus not exempt unearned income. Therefore, the Hearing Officer was correct in holding that the payments Mrs. Rosen-shein receives from her long term insurance are included as income when determining her eligibility for ICP Benefits.

The Appellant next argues that DCF Transmittal No. P02-01-0002 is invalid and the DCF Hearing Officer could not rely on it because it had not been promulgated as a rule pursuant to Section 120 of the Florida Statutes. We find the Appellant’s arguments to be unpersuasive. The DCF memorandum is a valid agency interpretation of the federal rules regarding unearned income and more specifically sets forth what unearned income can be excluded from income calculation. The memo is, as its purpose indicates, a clarification of existing policy “regarding treatment of cash payments received from a long-term care insurance policy.” Numerous federal cases support the conclusion that the DCF memo is a permissible agency interpretation. See, e.g., Pine Tree Med. Assocs. v. Sec’y of Health & Human Servs., 944 F.Supp. 88 (D.Me.1996) (Holding guidelines that updated criteria to be considered in medically underserved population designations were interpretive rules, and thus the Secretary could issue guidelines without providing notice or opportunity for comment; guidelines merely clarified regulations promulgated pursuant to the Public Health Service Act), aff'd, 127 F.3d 118 (1st Cir.1997). Additionally, the Hearing Officer in the final order relied primarily on federal regulations regarding the appellant’s unearned income and relied on the Transmittal only as additional support.

In her Reply, the appellant refers to section 409.9102 of the Florida Statutes, enacted in 2005, but this section is not applicable. This section creates a partnership between certain insurance companies offering long term care policies and the State. The language of exemption does not appear in that statute until the 2006 amendment, and only applies to long-term care insurance issued or renewed on or after July 31, 2006, and only then with a “company offering approved longterm care partnership program policies.” Furthermore, that section was enacted to encourage persons to purchase private long-term care insurance in order to reduce the public financial burden on Medicaid. This runs counter to the Appellant’s argument that her long-term nursing care insurance should not be counted as a factor contributing to her long term care costs.

Medicaid ICP has been paying for Mrs. Rosenshein’s nursing home expenses, following the income guidelines set forth by federal statute and state regulations based on her initial disclosure of social security income. Medicaid ICP paid the difference between what Mrs. Rosenshein receives in social security and what the nursing home charges for her residency. However, Mrs. Rosenshein has also been receiving a heretofore undeclared $1,400 monthly from her long-term care insurance. Adding the insurance payment to her social security gives Mrs. Rosenshein about $2,200 a month of income. This put Mrs. Rosen-shein over the $1,800 income limit for Medicaid ICP eligibility. The DCF Hearing Officer correctly concluded that because Rosenshein’s unearned income does not qualify under any specific exclusion, it must be treated as countable unearned income for purposes of determining Medicaid eligibility. The Hearing Officer was correct in his interpretation of relevant law and we must affirm.

Affirmed.

      . A nursing home may receive reimbursement from the Medicaid program prior to receiving payment from any third party insurer. The nursing home must pay the Department any funds it receives from third party insurers in excess of the amounts it is entitled to receive under the Medicaid program and must repay the Medicaid program for any funds already received for the service. In accord with federal regulations, the Department then reimburses itself and the federal government for their expenditures under the program. The remaining funds are then turned over to the individual recipient of health care services and are treated as either income or resources for purposes of Medicaid eligibility. See 42 C.F.R. § 433.154.

      . Transmittal No. P02-01-0002, dated January 17, 2002, Long Term Care Insurance Payments. The Transmittal in pertinent part states:
      The purpose of this memorandum is to clarify policy regarding treatment of cash payments received from a long-term care insurance policy.
      General: Cash received in conjunction with medical services may or may not be considered as income. Because there are so many different types of insurance available, it is important for staff to carefully review the terms of each policy to determine whether or not payments received should be included in the Medicaid eligibility and patient responsibility budgets. Policy regarding treatment of medical insurance payments may be found in HRSM 165-22, passages 1850.10.06 and 3220.05.15.
      Reimbursements: Cash received to reimburse an individual for actual medical expenses incurred is not considered income, even if the individual chooses to receive the payment directly instead of assigning it to a provider. If the insurance policy pays an individual up to a maximum amount per day during a nursing home stay, it is not considered income as the payments are based on actual expenses incurred. A policy that pays actual expenses up to a certain maximum payment is not the same as a flat rate policy described in the following paragraph.
      Flat Rate Payments: Cash from an insurance policy which pays a flat rate benefit to the client without any regard for actual per diem charges or expenses incurred is considered income. If the insurance policy pays an individual a fixed amount daily regardless of the actual daily facility charges, it is considered a flat rate payment and included as income. The payments from a flat rate policy are not restricted for payment of medical expenses as a set amount is paid even if it exceeds the actual charges.

      . "The federal and state governments have developed tax and economic policies to discourage reliance on Medicaid and encourage reliance on private resources. These incentives, which are discussed in detail in subsequent sections, include federal and state income tax deductions for the cost of long-term care insurance, Medicaid partnership programs to encourage the use of private insurance to pay for the minimum duration of care, and federal and state tax incentives for families that provide in-home care to loved ones. These initiatives appear to be producing the desired short-term behavioral outcome: increasing numbers of Americans are purchasing long-term care insurance, and in-home care remains a viable option within many families.” Diane Lourdes Dick, Tax and Economic Policy Responses to the Medicaid Long-Term Care Financing Crisis: A Behavioral Economics Approach, 5 Cardozo Pub.L. Pol'y & Ethics J. 379, 383 (Winter 2007). [e.s.]

      . We note that this problem could have been avoided, and perhaps still can be, by the Medicaid applicant placing the insurance income into a qualified trust instrument to which Medicaid I CP would have a lien. The trust vehicle would act to take the insurance funds out of the applicant’s Medicaid-countable income stream, he or she would become eligible for ICP benefits, and Medicaid would be repaid from the trust funds.


author: GERSTEN, C.J. SHEPHERD, J.,

text:
    BAY N GULF, INC., d/b/a Save On Seafood, Appellant, v. ANCHOR SEAFOOD, INC., Appellee.
    No. 3D07-1965.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing and Rehearing En Banc Denied Dec. 12, 2007.
    Sandler, Travis & Rosenberg, P.A. and Robert J. Becerra and Michelle L. Stopka, Miami, for appellant.

      Freedland, Farmer, Russo, Behren & Sheller and Scott M. Behren and Serena Paskewicz, for appellee.
    Before GERSTEN, C.J., and GREEN and SHEPHERD, JJ.
   GERSTEN, C.J.

Bay N Gulf, Inc., d/b/a Save On Seafood (“SOS”), appeals an order dissolving a temporary injunction. Finding the trial court did not abuse its discretion, we affirm.

SOS sued Anchor Seafood, Inc. (“Anchor”) for replevin, conversion and injunc-tive relief arising out of the contested ownership of frozen seafood. Initially, the trial court granted SOS’ motion to temporarily enjoin conveyance of the seafood. Subsequently, upon Anchor’s motion, the trial court dissolved the injunction. The trial court’s basis for dissolving the temporary injunction was SOS’ adequate remedy at law.

SOS contends that once a trial court enters a temporary injunction, it cannot dissolve it without a change in circumstances obviating the need for the injunction. Anchor asserts that a trial court continues to have discretion to dissolve a temporary injunction. We agree with Anchor.

Turning first to the requirements of a temporary injunction, under Florida law, the party seeking the injunction must establish that: (1) irreparable injury will result if the injunction is not granted, (2) there is no adequate remedy at law, (3) the party has a clear legal right to the requested relief, and (4) the public interest will be served by the temporary injunction. DiChristopher v. Bd. of County Comm’rs, 908 So.2d 492 (Fla. 5th DCA 2005). If the trial court enters a temporary injunction, its ruling is subject to an abuse of discretion standard. Alachua County v. Lewis Oil Co., 516 So.2d 1033, 1035 (Fla. 1st DCA 1987). Further, the trial court’s discretionary ruling should not be disturbed on appeal, unless it is unreasonable. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

Turning next to dissolving a temporary injunction, a trial court’s decision to subsequently modify or dissolve a temporary injunction is subject to the same abuse of discretion standard. Precision Tune Auto Care, Inc. v. Radcliff, 731 So.2d 744 (Fla. 4th DCA 1999). As the Fourth District recognized in Radclijf, to hold otherwise would be inconsistent with two other well-established legal principles: (1) that injunctions rest in the discretion of the court based on surrounding circumstances, see Fla. R. Civ. Proc. 1.610(d); Lewis Oil, 516 So.2d at 1035, and (2) that a trial court has inherent authority to reconsider and modify its interlocutory orders. Bettez v. City of Miami, 510 So.2d 1242, 1243 (Fla. 3d DCA 1987).

Here, when dissolving the temporary injunction, the trial court concluded that SOS would not suffer irreparable harm because it could be adequately compensated by money damages. See, e.g., Estate of Yerex v. Durzo, 651 So.2d 220 (Fla. 4th DCA 1995); Neel v. Williams Commc’n Serv., Inc., 638 So.2d 1017, 1018 (Fla. 2d DCA 1994). We agree with this conclusion and determine that the trial court was well within its discretion.

Finding no abuse of discretion, the order dissolving the temporary injunction is affirmed.

Affirmed.

GREEN, J., concurs.

SHEPHERD, J.,

dissenting.

I respectfully dissent. The temporary injunction in this case was entered on February 2, 2007, upon notice and hearing. Anchor appealed the order and then abandoned the appeal, electing instead to challenge the injunction on motion to dissolve brought pursuant to Florida Rule of Civil Procedure 1.610(d). On July 26, 2007, Anchor succeeded. There is no evidence in the record to support a change of facts or conditions since the entry of the initial injunction that would justify the dissolution. Bay N Gulf argues that when considering a motion to dissolve an injunction entered after notice and hearing afforded to a defendant, a trial court should not grant the motion unless the moving party comes forward in the subsequent hearing on the motion to dissolve with proof of a “change in conditions” or “[change of] facts to the point that equity dictates the injunction no longer needed.” See Thomas v. Osler Med., Inc., 963 So.2d 896 (Fla. 5th DCA 2007); City of Ormond Beach v. City of Daytona Beach, 794 So.2d 660 (Fla. 5th DCA 2001). I agree.

The majority ignores this authority from the Fifth District Court of Appeal, and concludes, upon the authority of Precision Tune Auto Care, Inc. v. Radcliff, 731 So.2d 744 (Fla. 4th DCA 1999), that “a trial court’s decision to subsequently modify or dissolve a temporary injunction is subject to the same abuse of discretion standard [as the temporary injunction itself].” See supra p. 843. Applying this standard, the majority affirms the dissolution of the injunction below on a ground that either was, or could have been, raised by Anchor on its now-dismissed interlocutory appeal. Under Precision Tune, it quickly becomes apparent that it is the enjoined party, rather than this Court (or the Florida Rules of Appellate Procedure), who has control of the rule concerning when, prior to final judgment, an appeal from an injunction entered after notice may be brought to us for plenary review. In so doing, Precision Tune easily disregards Florida Rules of Appellate Procedure 9.130(a)(3)(B) and 9.130(b), which require that appeals of non-final orders that “grant ... injunctions” be filed “within 30 days of rendition .... ” and also arguably violates the Florida Constitution’s mandate that our supreme court set the time for appellate review. See Art. V, § 2(a), Fla. Const. (“The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review -”) (emphasis added). Of course, Precision Tune also empowers an enjoined party to seek a complete re-trial of temporary injunctions at that moment. I believe Precision Tune is flawed and should not be followed by this Court.

I believe the flaw in Precision Tune— transported today by the majority into the jurisprudence of this Court — arises from that court’s failure to appreciate the differences between an injunction entered ex parte, and one, like that here, entered with prior notice and an opportunity to be heard. As succinctly and elegantly explained by the distinguished Fifth District Court of Appeal Judge Thomas Sawaya in Thomas:

[i]n cases where the enjoined party takes a direct appeal from an ex parte injunction and does not file a motion to dissolve, in which instance there obviously is no factual record to be reviewed on appeal because there has been no evidentiary hearing[] the appellate court is constrained to review only the legal sufficiency of the order, the complaint, and any supporting documents .... In such instances, a motion to dissolve and an evidentiary hearing are necessary to make a factual record that an appellate court can review.... If a motion to dissolve an ex parte temporary injunction is filed and a hearing on the motion is held, “the party who obtained the injunction bears the burden of going forward with evidence to establish a prima facie case to support the injunctive relief,”....
[On the other hand, i]f the enjoined party takes a direct appeal after notice and a hearing without moving to dissolve, an appellate court may consider the underlying factual matters because there is a record of the evidence and testimony presented upon which the trial court based its decision to grant the temporary injunction....
To summarize, a motion to dissolve is necessary only where an ex parte temporary injunction was issued. If proper notice was provided and an evi-dentiary hearing conducted prior to issuance of the temporary injunction, an appeal should be filed to review the propriety of the temporary injunction; in this instance, a motion to dissolve is limited to raising only new matters and a trial court will not abuse its discretion in denying the motion if the enjoined party does not establish that a change in conditions justifies dissolution.

Thomas, 963 So.2d at 900 (emphasis added) (citations omitted).

In reasoning to this result, Judge Sawa-ya generously recognized and confessed to error in his own prior opinion, Yardley v. Albu, 826 So.2d 467, 469 (Fla. 5th DCA 2002), where he wrote in another appeal of an injunction entered after notice and hearing:

when the party against whom a preliminary injunction is entered does not file a motion to dissolve the injunction pursuant to rule 1.610(d) prior to the direct appeal, the appellate court may not inquire into the factual matters presented; instead the court’s inquiry is limited to the legal sufficiency of the trial court’s order, the complaint, and any supporting documents.

Having considered Judge Sawaya’s thoughtful reprise of himself in Thomas, I fear the next mea culpa might be our own.

I would reverse the order on appeal.

      . The rule states, "[a] party against whom a temporary injunction has been granted may move to dissolve or modify it at any time. If a party moves to dissolve or modify, the motion shall be heard within 5 days after the movant applies for a hearing on the motion.” Fla. R. Civ. P. 1.610(d).

      . As Judge Sawaya points out:

        A trial court may not conduct an evidentia-ry hearing if the request for temporary injunction is made without notice to the other party. Fla. R. Civ. P. 1.610(d)(2) (stating that where no notice is given, the trial court is limited to considering the affidavit or verified pleading when deciding an injunction motion).

        Thomas, 963 So.2d at 900 n. 2.

      . My own research of the decisions of the remaining District Courts of Appeal, who also have considered the issue before us, reveals they are in accord with the Fifth District, and do not authorize the dissolution of a temporary injunction entered after notice and hearing absent a significant change in facts or circumstances. See Hunter v. Dennies Contracting Co., 693 So.2d 615, 616 (Fla. 2d DCA 1997) (holding that it was incumbent upon the enjoined to party to prove “some change of circumstance” that would justify dissolution despite the fact that the movant made "a persuasive argument that the evidence submitted at the initial temporary injunction hearing was legally insufficient to support issuance of the temporary injunction! ]”); Brock v. Brock, 667 So.2d 310, 312 (Fla. 1st DCA 1995) (“A temporary injunction should be dissolved only where the facts and circumstances have changed to the point that equity dictates the injunction is no longer needed.”). Until today, the Fourth District Court of Appeal has stood alone in its contrary view.


author: RAMIREZ, J.

text:
    Abdel BERDECIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-229.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing Denied Dec. 12, 2007.

      Robbins, Tunkey, Ross, Amsel, Raben & Waxman, and Benjamin Waxman, Miami, for appellant.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ and SALTER, JJ.
   RAMIREZ, J.

Abdel Berdecia appeals his judgment of conviction for manslaughter and aggravated battery and his sentence to thirteen years’ imprisonment, followed by five years’ probation. We affirm the aggravated battery conviction but reverse the manslaughter conviction.

On August 16, 2002, Daniel Alvarez, one of the victims, went out to a Miami Beach club with a group of friends, including Kristin Del Cueto. Unbeknownst to the group, Del Cueto’s boyfriend or ex-boyfriend, Reynyer Aguilera, tried to follow Del Cueto to the club because he thought Del Cueto was cheating on him. Aguilera was with his friend, Humair Jawaid, in Jawaid’s car so Del Cueto could not detect Aguilera. While following the group, Ja-waid’s car had a flat tire and they lost track of the car that Alvarez, Del Cueto and their friends were riding in.

After fixing the flat tire, Aguilera called Berdecia and asked him to meet at Aguil-era’s father’s house so he could continue looking for Del Cueto. Berdecia agreed, and along with Benito Mendez, drove to Aguilera’s father’s house. The four men then got into Jawaid’s white Mazda and drove to the home of Melissa Diaz, one of the females in the group who had gone to the Miami Beach night club. Berdecia had his Glock nine millimeter weapon with him that night. He had a license to carry a concealed firearm and usually carried his gun with him in a holster. Aguilera was aware of this.

The four men waited for Del Cueto to get back from the night club. A little after 4 a.m., Alvarez, Del Cueto and their friends arrived at Diaz’s house. Alvarez got out of the car and said goodbye to Del Cueto. At that point, Aguilera, Berdecia and the other two men exited their car. Berdecia and Aguilera then attacked Alvarez and his friend, Ignacio Ramirez. At some point, Aguilera grabbed the gun from Berdecia’s holster. Aguilera beat Alvarez with the gun. Alvarez tried to get away and ran to the front door of the house. Ramirez was standing there. Alvarez told Ramirez to get inside the house, but the door was locked. Aguilera approached Ramirez and pointed the gun at him. Berdecia approached Alvarez and began hitting him with an asp, which is a steel baton. Alvarez stepped back and bumped into the front door. He then looked over and saw Aguilera step forward, point the gun and shoot Ramirez in the head, who then fell down. Ramirez died as a result of the gunshot wound. The four assailants ran back to the white Mazda, jumped in and fled. Berdecia retrieved his gun from Aguilera and unloaded it. They stopped about a block away, and Aguilera got out of the car. The other three men drove back to Aguilera’s father’s house. Jawaid drove away in his white Mazda, and Berdecia and Mendez drove back to the scene of the crime in Berdecia’s black Nissan.

After 911 was called and the police arrived, Aguilera immediately stated that he was the one who shot Ramirez. Aguilera was then arrested. A few minutes later, Berdecia and Mendez drove up. They told the officer that was there that they were witnesses to the shooting. Berdecia told the officer he had the gun in the center console of his car. The officer removed the gun. Other officers arrived and took Berdecia and the other man into custody.

The State charged codefendants Berde-cia and Aguilera by information with second-degree murder with a firearm, aggravated battery with a deadly weapon, and use or display of a firearm while committing a felony. A third codefendant, Ja-waid, was charged with being an accessory after the fact.

Berdecia and Aguilera were tried together before the same jury. After the State presented its case against both defendants and rested, Aguilera’s counsel moved for judgment of acquittal on the second-degree murder charge, which the trial court denied. Berdecia’s counsel also moved for judgment of acquittal. The trial court granted a judgment of acquittal as to the possession of a firearm during the commission of a felony charge, but denied the motion on the remaining three charges against Berdecia. Neither defendant testified nor presented any witnesses.

The jury found Aguilera guilty of second-degree murder as charged, guilty of aggravated battery with a firearm, guilty of use or display of a firearm while committing a felony, and not guilty of aggravated battery with a baton. The jury found Berdecia guilty of manslaughter as a lesser included offense, guilty of aggravated battery with a baton, and not guilty of aggravated battery with a firearm.

Berdecia’s first point on appeal is that the evidence was legally insufficient to support the conviction for manslaughter, where the State failed to establish that his acts rose to the level of culpable negligence or constituted the legal cause of the victim’s death. We disagree and find that the evidence was sufficient to support the manslaughter verdict.

Florida courts have consistently held that a motion for judgment of acquittal should not be granted “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Morrison v. State, 818 So.2d 432, 451 (Fla.2002). Moreover, courts in Florida will find that there is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (“If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.”).

The State argues that Berdecia did not preserve this issue for appeal because he never presented this specific argument to the trial court. However, even were we to accept Berdecia’s contention that this alleged error constituted fundamental error, we would find still that there was legally sufficient evidence in the record upon which to find Berdecia guilty of manslaughter as a lesser included offense.

Manslaughter is defined under section 782.07(1), Florida Statutes (2001), as:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree....

Thus, the elements of manslaughter by culpable negligence require the State to prove the killing of a human being by an act of culpable negligence without lawful justification. § 782.07(1), Fla. Stat. (2001).

Here, the record supports that Berdecia actively participated in the crimes. The evidence showed that Berdecia, Aguilera and the two other men hid across the street from Diaz’s home for over two hours, waiting for the victims to get back from the night club, knowing that they were trying to catch Aguilera’s girlfriend cheating on him. Berdecia admitted that he personally beat Alvarez with his steel baton. He further admitted that he brought the loaded, cocked gun used in the murder, and discussed the gun with the men in the car before the attack. Moreover, he did nothing when Aguilera took the gun from Berdecia’s holster and began using it.

Along with Aguilera, Berdecia chased the two unarmed victims to the door of the house. Berdecia helped Aguil-era corner the two men so that as he beat Alvarez with the baton, Aguilera was able to pistol whip and kill Ramirez.- Consequently, Berdecia was charged with second-degree murder, but was convicted of the lesser crime of manslaughter. Clearly, as the State correctly points out, what occurred here is that the jury effectively pardoned Berdecia on the second-degree murder charge and convicted him of manslaughter as a lesser included offense, because they believed him to be less culpable than Aguilera, who was the actual shooter. As such, there was sufficient evidence to sustain Berdecia’s conviction for manslaughter and aggravated battery with a baton.

Berdecia next contends that the trial court committed fundamental error in instructing the jury, with regard to each charged offense and all the lesser offenses, that it must find Berdecia guilty based Berdecia’s acts “and/or” Aguilera’s acts. It is clear that the trial court repeatedly instructed the jury that it could find Berdecia guilty based on his own acts “and/or” the acts of Aguilera. With respect to the manslaughter charge, the court instructed the jury that it could find Berdecia guilty if either he “and/or” Aguil-era intentionally caused or procured Ramirez’s death, or if his “and/or” Aguilera’s act of culpable negligence caused Ramirez’s death. Regarding the aggravated battery charge, the court instructed the jury that it could find him guilty if either he “and/or” Aguilera intentionally touched Alvarez against his will and did so using a deadly weapon.

Florida courts have held that the use of the conjunction “and/or” between the names of codefendants in jury instructions can result in fundamental error. See Harris v. State, 937 So.2d 211 (Fla. 3d DCA 2006); Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005); Davis v. State, 895 So.2d 1195 (Fla. 2d DCA 2005); Concepcion v. State, 857 So.2d 299 (Fla. 5th DCA 2003); Williams v. State, 774 So.2d 841 (Fla. 4th DCA 2000). This is because the use of this conjunction creates a situation in which the “jury may have convicted the [defendant] based solely upon a finding that [the] codefendant’s conduct satisfied an element of the offenses.” See, e.g., Davis, 895 So.2d at 1196.

Here, the jury instruction that the trial court gave contained the “and/or” connector which allowed the jury to convict Berdecia based solely on Aguilera’s actions. We find that the trial court committed fundamental error in giving this instruction with regard to manslaughter. However, we find no fundamental error regarding the aggravated battery charge instruction because the record is clear that the only evidence presented regarding this charge was that Berdecia possessed the baton and that he was the only one that struck Alvarez with it. Thus, this is not a situation where Berdecia could have been convicted for the criminal conduct of Aguil-era because Aguilera never had the baton in his possession, nor did he hit or have any physical contact with Alvarez. Accordingly, the trial court did not commit fundamental error in giving the “and/or” jury instruction with regard to the aggravated battery charge.

With respect to our finding that the manslaughter jury instruction given in this case constituted fundamental error, we note the State’s contention that Berdecia’s counsel affirmatively requested the “and/ or” connector of which he now complains. Thus, the State argues, Berdecia cannot raise it on appeal. See Armstrong v. State, 579 So.2d 734 (Fla.1991). Under the circumstances of this case, however, we agree with Berdecia that his trial attorney’s request for this instruction basically amounted to ineffective assistance of counsel. Instead of remanding the issue so that Berdecia can file a motion under Florida Rule of Criminal Procedure 3.850, we conclude that the record is sufficient, on its face, for us to resolve this issue on this appeal. See Loren v. State, 601 So.2d 271, 272-73 (Fla. 1st DCA 1992) (although a claim for ineffective assistance of counsel is properly raised in a motion for postcon-viction relief, claim may be raised on direct review where the record is sufficient to allow determination of the claim); see also Mizell v. State, 716 So.2d 829 (Fla. 3d DCA 1998) (we can avoid having the parties and trial court “do the long way what we ourselves should do the short”).

A claim of ineffective assistance of counsel requires a showing that: (1) defense counsel’s representation was deficient in that it fell below an objective standard of reasonableness; and (2) there was prejudice in that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, there can be no question that Berdecia’s trial counsel’s request for the confusing “and/ or” instruction, which trial counsel herself admitted was a little confusing, was deficient. As previously stated, Florida courts have held that the use of the conjunction “and/or” between the names of codefen-dants in jury instructions can result in fundamental error. See Harris v. State, 937 So.2d at 213 (Fla. 3d DCA 2006); Dorsett v. McRay, 901 So.2d at 226 (Fla. 3d DCA 2005); Davis v. State, 895 So.2d at 1196 (Fla. 2d DCA 2005); Concepcion v. State, 857 So.2d at 301-02 (Fla. 5th DCA 2003); Williams v. State, 774 So.2d at 843 (Fla. 4th DCA 2000). Here, Berdecia’s counsel not only did not object to the “and/or” instruction, she herself requested that it be given.

Turning to the second prong of the Strickland test, the trial court repeatedly instructed the jury that it could find Berdecia guilty based on his own acts “and/or” the acts of Aguilera. With respect to the manslaughter charge, the trial court instructed that jury that it could find Berdecia guilty if either he “and/or” Aguil-era intentionally caused or procured Ramirez’s death, or if his “and/or” Aguilera’s act of culpable negligence caused Ramirez’s death. The prejudice here is that as a result of the “and/or” instruction that was given, the jury was allowed to convict Berdecia based solely upon Aguilera’s acts and state of mind. Regarding the manslaughter charge, the jury thus was instructed that it could find Berdecia guilty of the offense if it concluded that the State proved beyond a reasonable doubt that Ramirez was dead and that Aguilera caused his death. Thus, even if the jury thought Aguilera was innocent with regard to Ramirez’s death, because the evidence clearly established that Aguilera shot Ramirez and Ramirez died as a result of the shot, the “and/or” instruction allowed the jury to convict Berdecia of manslaughter. There is a reasonable probability then that, but for Berdecia’s counsel’s request for this “and/or” instruction, the jury would not have convicted Berdecia of manslaughter.

In sum, we affirm Berdecia’s conviction for aggravated battery and reverse his conviction for manslaughter. We further remand the case for a new trial.

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

      . Berdecia's contention that he had no intention to kill Ramirez is irrelevant, because he was charged with second degree murder, which does not require a specific intent to kill. See Hall v. State, 951 So.2d 91, 95-96 (Fla. 2d DCA 2007).


author: SCHWARTZ, Senior Judge.

text:
    Othlone RUSS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-2949.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 5, 2007.

      Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Lisa A. Davis, Assistant Attorney General, for respondent.
    Before GERSTEN, C.J., and CORTIÑAS, J„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an application for habeas corpus relief claiming ineffectiveness of appellate counsel in Russ v. State, 934 So.2d 527 (Fla. 3d DCA 2006), review denied, 940 So.2d 1125 (Fla.2006). The only arguable contention is that counsel incorrectly did not raise an issue concerning the trial court’s jury instruction, which, by stating that unlawful sexual digital contact, which was involved in two of the six counts of sexual battery of which the defendant was found guilty, could be committed either by penetration “and/or ” mere union with the vagina or anus of the victim, as held in Gill v. State, 586 So.2d 471, 472 (Fla. 4th DCA 1991), told the jury that a guilty verdict could be based on simple digital contact alone, which it statutorily could not. We deny relief.

Because the claim was not preserved in the trial court, the mistaken instruction could not have been meaningfully presented on appeal unless it was deemed fundamentally erroneous, as indeed Gill also held. Gill, 586 So.2d at 472; accord Holmes v. State, 842 So.2d 187 (Fla. 2d DCA 2003); Palazzolo v. State, 754 So.2d 731 (Fla. 2d DCA 2000). That holding in Gill, however, was based on the fact that the prosecutor in final argument affirmatively suggested that union alone was sufficient to convict. Nothing of the kind occurred here. To the contrary, the information charged, the trial testimony of the victim demonstrated, and the special verdict of the jury specifically found only that penetration had occurred, and there was no suggestion that mere contact was sufficient. Thus, the semantic error in the instruction may not be said to have misled or influenced the jury in any way and therefore could not have been deemed fundamental error. See State v. Weaver, 957 So.2d 586 (Fla.2007). As the petitioner acknowledges, Graves v. State, 704 So.2d 147 (Fla. 1st DCA 1997), review denied, 718 So.2d 168 (Fla.1998), is exactly on point and so holds. See Hipp v. State, 650 So.2d 91 (Fla. 4th DCA 1995)(distinguish-ing Gill); Pineiro v. State, 615 So.2d 801 (Fla. 3d DCA 1993)(same); see also Weaver, 957 So.2d at 589; Abbott v. State, 958 So.2d 1140 (Fla. 4th DCA 2007); James v. State, 901 So.2d 212 (Fla. 3d DCA 2005). No counsel is ineffective for failing to raise a point doomed at the outset. See Zack v. State, 911 So.2d 1190, 1204 (Fla.2005); Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000); Brown v. State, 967 So.2d 257 (Fla. 3d DCA 2007); Coney v. State, 937 So.2d 255 (Fla. 3d DCA 2006).

Petition denied.

      . The others involved penile or oral contact, as to which simple union with the victim is sufficient under the law. See § 794.01 l(2)(b), Fla. Stat. (1999).

      . Section 794.01 l(l)(h) provides that "sexual battery”
      means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

      .The jury verdict stated, in pertinent part:
      [Count 3:] GUILTY of SEXUAL BATTERY UPON A PERSON LESS THAN TWELVE YEARS OF AGE, to wit: digitally penetrating the rectum of D.H., as charged in Count 3 of the information.
      [Count 9:] GUILTY of SEXUAL BATTERY UPON A PERSON LESS THAN TWELVE YEARS OF AGE, to wit: Digitally penetrating the vagina of D.H., as charged in Count 9 of the Information,


author: WELLS, J.

text:
    Robert P. WHITE and Carol Chabinak, Appellants, v. David BUCKWALTER and Ethyl Buckwalter and Henry Finck, Appellees.
    No. 3D06-3157.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 12, 2007.
    Andrew M. Tobin, Tavernier, for appellants.
    Vernis Bowling and Scott C. Black, Isla-morada; Greenman & Manz and Franklin D. Greenman, for appellees.
    Before COPE and WELLS, JJ., and FLETCHER, Senior Judge.
   WELLS, J.

Affirmed. See Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So.2d 357, 359 (Fla. 3d DCA 1959) (stating that “it is universally held that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action ... even though it causes injury to another by cutting off light and air and interfer[es] with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite”); see also Messett v. Cohen, 741 So.2d 619, 622 (Fla. 5th DCA 1999) (finding that “a claim of ‘obstructed view’ does not constitute a ‘legally recognizable interest’ ”); Calusa Golf, Inc. v. Carlson, 464 So.2d 1271, 1271 (Fla. 3d DCA 1985) (finding that, “even though a spiteful purpose may have partially motivated the construction of the fence,” an injunction preventing the construction was inappropriate where the fence would “serve a useful purpose by protecting the [property] from trespass and vandalism”).


text:
    David INVERNIZZI and Edward Sherman, Appellants, v. Jessie S. DEWLOW, Appellee.
    No. 3D07-133.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 2007.
    Murray A. Greenberg, Miami-Dade County Attorney and Rachel M. Wilhelm and Craig E. Leen, Assistant County Attorneys, for appellants.
    Hugh L. Koerner, Fort Lauderdale, for appellee.
    Before GERSTEN, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We dismiss the appeal on authority of Brown v. McKinnon, 964 So.2d 173 (Fla. 3d DCA 2007).


author: CORTIÑAS, Judge.

text:
    FORD MOTOR COMPANY, a foreign corporation, Appellant, v. Joan HALL-EDWARDS, as Personal Representative of the Estate of Lance Crossman Hall, and Lester Hall, survivor of Lance Crossman Hall, Appellees.
    No. 3D06-1656.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.

      Carlton Fields and Wendy F. Lumish and Jeffrey A. Cohen and Alina Alonso, Miami; Cabaniss Smith Toole & Wiggins and F. Rand Wallis, Maitland; Salas Ede Peterson & Lage and Henry Salas, South Miami, for appellant.
    Denney & Barrett and Richard L. Den-ney and Lydia JoAnn Barrett, Oklahoma; Kimberly L. Boldt, Boca Raton; Bruce Raster, Ocala; Gustavo Gutierrez; Richard M. Mogerman, Plantation, for appel-lees.
    Before GERSTEN, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

Appellant, Ford Motor Company (“Ford”), seeks review of a $60 million jury verdict awarded to the parents of Lance Crossman Hall (“Hall”), a passenger in a 1996 Ford Explorer involved in a rollover accident. Hall was ejected and killed after the driver of the Ford Explorer fell asleep and lost control of the vehicle. Plaintiff, Joan Hall-Edwards, as the personal representative of Hall’s Estate, brought an action in the trial court against Ford alleging defects in the Explorer’s handling and stability characteristics. The jury determined that Ford was liable for placing the Ford Explorer on the market with a defect relating to the design of the vehicle’s stability and handling and that this was a legal cause of the accident. The jury awarded $30 million to Hall’s mother, Joan Hall-Edwards, and $30 million to his father, Lester Hall.

On appeal, Ford claims that the trial court committed reversible error by (1) allowing testimony and comment to the effect that Ford caused “hundreds” of injuries and deaths in other rollover accidents involving the Ford Explorer without requiring plaintiff to establish a substantial similarity between those accidents and the one involving Hall; (2) allowing testimony that Ford made subsequent design changes that, if made sooner, would have allegedly prevented Hall’s death and “hundreds” of others; and (3) failing to issue a remittitur on the ground that the $30 million award to each parent was excessive and unrelated to the evidence. We agree that the trial court committed reversible error in permitting testimony referencing other rollover accidents involving the Ford Explorer without requiring a showing of substantial similarity between those accidents and Hall’s. As such, we will limit our review to this issue.

After reviewing the trial record, it is apparent that references made to other incidents involving Ford were not isolated in nature and, in fact, became a feature of the case. For example, during opening statement, plaintiffs counsel mentioned “hundreds of deaths” caused by the Ford Explorer. After objection from Ford, the trial court opined that, “certainly none of this would be admissible on a main case or [if] punitive damages [were] not being tried at [this] point, but once it’s been opened to punitive damages, he is entitled to talk about those deaths.”

Additionally, during the trial, plaintiffs counsel sought to elicit testimony referencing other Ford Explorer accidents in an effort to establish notice as well as Ford’s knowledge of a defect. The following exchanges took place in the examination of Mr. Gilbert, an expert for the plaintiff:

[PLAINTIFF’S COUNSEL]: And have you been involved in those cases that are substantially similar to this case where you have an untripped roll?
[DEFENSE COUNSEL]: Objection, Your Honor....
[PLAINTIFF’S COUNSEL]: Mr. Gilbert, on cross-examination, Mr. Wallis asked you about other Ford Explorer accidents you had investigated. You recall that, sir?
MR. GILBERT: Yes, sir.
[PLAINTIFF’S COUNSEL]: And you said, I think, many, something like that?
MR. GILBERT: Right.
[PLAINTIFF’S COUNSEL]: Approximately, how many?
MR. GILBERT: Ford Explorer?
[PLAINTIFF’S COUNSEL]: Yes, sir.
MR. GILBERT: Sixty.
[PLAINTIFF’S COUNSEL]: Un-tripped roll?
MR. GILBERT: Untripped roll, maybe 45.
[DEFENSE COUNSEL]: Objection,
it’s speculation, move to strike.
THE COURT: Overruled
[DEFENSE COUNSEL]: Your Honor, also, I would object, failure to prove substantial similarity.
[PLAINTIFF’S COUNSEL]: I’ll be glad to lay that. Were those substantially — let me ask you this; were those situations where there was a vehicle on a highway in which there was an un-tripped roll while the vehicle was in a yaw?
[DEFENSE COUNSEL]: Objection, failure to show substantial similarity.
THE COURT: Overruled, that’s why this question is being asked.
MR. GILBERT: Those — those were untripped rollovers, the 45 would be classified as untripped rollovers.
[PLAINTIFF’S COUNSEL]: On the highway?
MR. GILBERT: Not all of them were on the highway; some of them may have had a — a tire in the dirt or something, but the accident dynamics showed that those vehicles were untripped.

The following took place during the examination of Dr. Renfroe, an expert for the plaintiff:

[PLAINTIFF’S COUNSEL]: Now, over the years, have you been involved in a number of other cases where the stability of the Explorer, and the handling problems of the Explorer, brought about an accident?
[PLAINTIFF’S COUNSEL]: Let’s talk first about the rollover propensity of the vehicle, or its stability just from a rollover standpoint.... Over the years, have you been involved in cases where that was an issue, sir?
[DEFENSE COUNSEL]: Your Honor, I object and I have the same motion. This is now the sixth time that term was used.
THE COURT: Overruled. It’s appropriate at this time regarding knowledge. I will allow it.
[PLAINTIFF’S COUNSEL]: Now, were there deaths and serious injuries in some of those cases?
DR. RENFROE: Yes.
[PLAINTIFF’S COUNSEL]: And did Ford Motor Company receive from you reports, and .take your deposition about those cases?
DR. RENFROE: Many times, yes.
[PLAINTIFF’S COUNSEL]: And did they include the UN46?
DR. RENFROE: Yes, they did.
[PLAINTIFF’S COUNSEL]: And the UPN105, the vehicle in question in this case?
DR. RENFROE: Yes.
[PLAINTIFF’S COUNSEL]: Were there a number of those cases?
DR. RENFROE: Yes, there were. [PLAINTIFF’S COUNSEL]: Can you give the court an idea of how many times you have told Ford Motor Company about this problem, sir?
DR. RENFROE: I would say 150 times.
[PLAINTIFF’S COUNSEL]: And in each of those events when yon told Ford Motor Company about it, were they there [sic] about a serious injury or death to an individual or individuals?
DR. RENFROE: Yes.

The following took place during the examination of Mr. Tandy, an expert for the defendant:

[PLAINTIFF’S COUNSEL]: Do you know in Explorer cases alone [involving] rollovers, injuries and deaths that you have been involved in well over a hundred?
MR. TANDY: Yes.
[PLAINTIFF’S COUNSEL]: You know of well over 200?
MR. TANDY: I can’t say that I do. I have been involved in over a hundred.

During closing argument, plaintiffs counsel again mentioned that Ford “killed hundreds of people” and also discussed how Ford made $285 million by selling vehicles after their engineers suggested they fix it. Counsel suggested that this was “blood money” and that Ford “shouldn’t be [allowed] to keep that money”

Although there is not a specific provision in the Florida Evidence Code directly pertaining to the admissibility of similar accident evidence, sections 90.401 and 90.403, Florida Statutes (1997), are applicable. Charles W. Ehrhardt, Florida Evidence § 411.2 (2007).

There are four required elements that must be satisfied prior to admitting similar accident evidence. See Perret v. Seaboard Coast Line R.R., 299 So.2d 590, 592-94 (Fla.1974).

(1) Evidence of similar accidents may not be offered to prove negligence or culpability, but may be admissible to show the dangerous character of an instrumentality and to show the defendant’s knowledge.
(2) The similar accidents must pertain to the same type of appliance or equipment under substantially similar circumstances.
(3) The similar accident evidence must have a tendency to establish a dangerous condition at a specific place.
(4) The accident must not be too remote in time to the accident at issue, thereby causing it to lack sufficient probative value.

Id.; Charles W. Ehrhardt, Florida Evidence § 411.2 (2007).

The burden of meeting this four-part test and laying a sufficient predicate to establish similarity between the two incidents falls on the party seeking admission of the prior accident evidence. See Stephenson v. Cobb, 763 So.2d 1195, 1196 (Fla. 4th DCA 2000). The admission of similar accident evidence is within the discretion of the trial court and will not be disturbed on appeal except for a showing of abuse of discretion. Stephenson, 763 So.2d at 1196; Lasar, 436 So.2d at 238. However, “[a] judge cannot simply ‘use his discretion to decide that despite a plain lack of substantial similarity in conditions he will, nevertheless, admit the evidence.’ ” Gen. Motors Corp. v. Porritt, 891 So.2d 1056, 1058 (Fla. 2d DCA 2004) (quoting State v. Arroyo, 422 So.2d 50, 53 (Fla. 3d DCA 1982)) (discussing the admission of a videotaped experiment when the conditions under which the experiment was performed were not shown to be substantially similar to the circumstances of the case). Moreover, failure to lay a sufficient predicate establishing substantial similarity between the accidents renders the evidence irrelevant as a matter of law. Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635, 640 (1993); Stovall v. Daimler-Chrysler Motors Corp., 270 Ga.App. 791, 608 S.E.2d 245, 247 (2004); Ray v. Ford Motor Co., 237 Ga.App. 316, 514 S.E.2d 227 (1999).

Here, the references to other accidents were not isolated. On the contrary, they were widespread throughout the trial and, at no time, did the plaintiff lay a sufficient foundation to establish substantial similarity between the evidence relating to other accidents and the accident at issue in this case. Plaintiff contends that the similar accident evidence is admissible solely because Ford waived bifurcation of the trial, thereby permitting the issue of punitive damages to be tried along with the. main case. In fact,- the- trial court justified the admission of other accidents on the basis of using them to prove Ford’s liability for punitive damages.

The trial court relied on Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242, 249 (Fla. 1st DCA 1984) and admitted evidence of other accidents in order to show that Ford, “intentionally, took steps to cover the known danger in order to protect continued marketing of the product....” However, reliance on Johns-Manville fails because the requisite showing of substantial similarity is not reduced or eliminated when the issue of punitive damages is involved. Johns-Manville dealt with establishing a legal basis for punitive damages by showing a manufacturer’s knowledge that its product was inherently dangerous along with the continued marketing of the product without making feasible modifications to eliminate the danger. Id. at 249. The case did not address the requirements of establishing substantial similarity. Id. at 242. Moreover, we are aware of no case which, absent a showing of substantial similarity, has allowed reference to “other cases” simply because punitive damages were at issue. See Mack Trucks, Inc., 436 S.E.2d at 640 (admitting as relevant to the issues of notice and punitive damages evidence of frame cracks in other Mack tractor trailer trucks where the record indicated that the other cracks were substantially similar to the frame crack at issue, but not permitting the admission of frame cracks “caused by circumstances wholly different from the one at issue”); see also Stovall, 608 S.E.2d at 247 (stating that evidence of substantially similar incidents is admissible in product liability cases and is relevant to the issues of notice of a defect and punitive damages); see also Volkswagen of Am., Inc., v. Gentry, 254 Ga.App. 888, 564 S.E.2d 733, 741 (2002).

In this case, the trial court did not require that plaintiff establish the predicate necessary to permit the admission of similar accident evidence. No precautions or measures were taken to ensure that the other accidents were not too remote in time or that the conditions of the accidents were similar. For example, the trial judge never inquired into the general characteristics of the other accidents. Based on the record before us, we are unable to determine whether the differences in condition were material or immaterial. See Ry. Express Agency, 227 So.2d at 873.

In Volkswagen, the Georgia Court of Appeals stated that, “evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity.” Volkswagen, 564 S.E.2d at 741. The trial court devoted an entire day to hearing argument and testimony related to the other incidents. Id. The trial judge prohibited the admission of some of the proffered evidence because it was not sufficiently similar to the accident at issue. Id. For those accidents that were sufficiently similar, the trial judge permitted their use in limited circumstances and only on cross-examination. Id. Furthermore, the trial judge gave the jury a limiting instruction regarding the use of the similar accident evidence. Id.

Likewise, in Ray, the trial court determined that the plaintiff could not reference a number of prior incidents because she failed to lay the foundational requirements establishing substantial similarity. Ray, 514 S.E.2d at 231. The trial judge had not been provided with any documentation or verification of the referenced incidents and, therefore, could not properly determine if they were substantially similar to Ray’s accident. Id. On appeal, the court affirmed the trial court’s decision to exclude the similar accident evidence. Id.

Here, throughout the trial, numerous references were made to other cases without laying a foundation for substantial similarity. Moreover, this evidence improperly became a “feature of the trial.” See Peterson v. Morton F. Plant Hosp. Assoc., 656 So.2d 501, 502-03 (Fla. 2d DCA 1995) (remanding for a new trial because the trial court permitted details of a settlement agreement with a codefendant to become a feature of the trial). Because no foundation was laid establishing a substantial similarity between Hall’s accident and other accidents referenced by plaintiff throughout the trial, the trial court abused its discretion in admitting this evidence and the verdict must be set aside and the matter remanded for a new trial involving both liability and compensatory damages.

Reversed and remanded.

      . The jury also awarded $1.2 million for lost support and services, but the trial court vacated this award.

      . Nevertheless, under the facts of this case, the admission of post-accident remedial measures was also improper and constitutes reversible error.

      . Section 90.401, Florida Statutes (1997), states:
      Relevant evidence is evidence tending to prove or disprove a material fact.

      . Section 90.403, Florida Statutes (1997), states, in pertinent part:
      Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.

      . The four criteria are applicable if the purpose of admitting the similar accident is to show notice or knowledge of a dangerous condition. Charles W. Ehrhardt, Florida Evidence § 411.2 (2007); Warn Indus. v. Geist, 343 So.2d 44, 46 (Fla. 3d DCA 1977).

      . Charles W. Ehrhardt, Florida Evidence § 411.2 (2007); Jackson v. H.L. Bouton Co., 630 So.2d 1173, 1176 (Fla. 1st DCA 1994) (holding that no abuse of discretion occurred in admitting evidence regarding a lack of pri- or complaints to establish defendant’s knowledge (or lack thereof) of a defect in the safety glasses that it produced or sold).

        .Jackson, 630 So.2d at 1176; Lasar Mfg. Co. v. Bachanov, 436 So.2d 236, 238 (Fla. 3d DCA 1983) (holding that two prior complaints and the testimony from two witnesses who were injured by the same model meat grinder were admissible to rebut the notion that defendant had no notice of a defective condition of the grinder model at issue); Ry. Express Agency v. Fulmer, 227 So.2d 870, 873 (Fla.1969) (holding that plaintiff failed to establish substantial similarity between the conveyor involved in the prior accident and the conveyor at issue in his accident). The other accidents do not have to occur at an identical place and time, but the conditions should be similar enough to provide the requisite probative value. Charles W. Ehrhardt, Florida Evidence § 411.2 (2007).


text:
    The DECOPLAGE CONDOMINIUM ASSOCIATION, INC., etc., Appellant, v. DECO PROPERTIES & INVESTMENTS, INC., etc., et al., Appellees.
    No. 3D07-882.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.

      Genovese Joblove & Battista, and Richard Sarafan and Jorge L. Martinez, Miami, for appellant.
    Seidman, Prewitt, DiBello & Lopez, and Darin A. DiBello, Boca Raton, and Thais Hernandez, for appellees.
    Before GERSTEN, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

The Decoplage Condominium Association, Inc. (“Decoplage”) appeals a final summary judgment for declaratory relief which construed a commercial lease in favor of Deco Properties & Investments, Inc. (“Deco Properties”) and Sonia Vera. We reverse and remand.

This case involves a dispute over the duration of a lease for a commercial unit at the Decoplage Condominium. Decoplage asserts the lease created a right of first refusal which would not violate the Declaration of Condominium’s three-year restriction on commercial leases. Deco Properties contends the lease grants a unilateral option to extend the lease for an additional three years, but that it was not intended to violate the Declaration.

Although both parties claim that the lease is unambiguous, clearly each has a different interpretation of the rights the lease language creates. It is well settled that a contractual term which is susceptible to different interpretations is ambiguous. Friedman v. Va. Metal Prods. Corp., 56 So.2d 515 (Fla.1952); Gannon Constr. & Design Co. v. McKeon, 697 So.2d 224 (Fla. 3d DCA 1997).

Moreover, a trial court may interpret a contract as a matter of law only when it is totally unambiguous or when any ambiguity may be resolved by undisputed parol evidence of the parties’ intent. Land O’Sun Realty Ltd. v. REWJB Gas Invs., 685 So.2d 870, 872 n. 3 (Fla. 3d DCA 1996).

Here, the parties not only dispute the meaning of the lease language, they also disagree on their intent when entering into the lease. Therefore, genuine issues of material fact exist which must be resolved by the trier of fact and preclude summary judgment. See Birwelco-Montenay, Inc. v. Infilco Degremont, Inc., 827 So.2d 255 (Fla. 3d DCA 2001).

Accordingly, the final summary judgment entered below is reversed, and the case is remanded for further proceedings.

Reversed and remanded.

      . We sua sponte raised the issue of this Court's jurisdiction to review the trial court's judgment because a counterclaim remains pending below. Upon consideration of the parties' responses and a review of the record, we conclude that this Court has jurisdiction to consider this appeal. See Cicco v. Luckett Tobaccos, Inc., 934 So.2d 560 (Fla. 3d DCA 2006).


author: ROTHENBERG, Judge.

text:
    Phillip GUZMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2933.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Rehearing Denied Jan. 16, 2008.
    Paul Morris, Miami, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid and Laura Moszer, Assistant Attorneys General, for appellee.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

The defendant, Phillip Guzman, appeals his convictions and sentences for grand theft of a vehicle and burglary of an unoccupied conveyance, arguing, in part, that the trial court erred by denying his motion to suppress statements he made to a police officer as the statements were made in response to the functional equivalent of interrogation, and therefore, the protections of Miranda were triggered. As the police officer’s comment did not amount to the functional equivalent of interrogation, we conclude that the trial court properly denied the defendant’s motion to suppress. See generally Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (discussing that “Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent”). Moreover, as the remaining arguments raised by the defendant were not preserved for appellate review and/or lack merit, we affirm the defendant’s convictions and sentences.

Affirmed.

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


text:
    Moshe FRIEDMAN, Appellant, v. UNIVERSITY OF MIAMI, Appellee.
    No. 3D06-2671.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Rehearing Denied Jan. 2, 2008.
    Eyal I. Friedman, for appellant.
    Fowler White Burnett and Elizabeth P. Johnson and Helaine S. Goodner, Miami, for appellee.
    Before GERSTEN, C.J., and GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. Volusia County v. Aberdeen At Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Razner v. Wellington Reg’l Med. Ctr., Inc., 837 So.2d 437, 440 (Fla. 4th DCA 2002).


text:
    Tony ROMERO, Appellant, v. Carla ROMERO, Appellee.
    No. 3D07-554.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Rehearing Denied Dec. 13, 2007.
    The Silver Law Group and Patricia M. Silver, Islamorada, for appellant.
    Hershoff, Lupino & Yagel and Jay A. Hershoff and Jessica B. Reilly, Tavernier, and Russel Yagel, for appellee.
    Before GERSTEN, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal from an assessment of attorney’s fees against an ex-husband for engaging in vexatious post-judgment litigation. We agree that such an award was justified by the circumstances. However, we substantially reduce the $96,443.75 actually assessed to $29,354.22, the accounts receivable balance as of June 9, 2006, because a great deal of the efforts expended in response by the former wife’s attorney were wholly unnecessary for which even a vexatious opponent should not have to pay. See Becker v. Becker, 778 So.2d 438, 439 (Fla. 1st DCA 2001); Whitney v. Whitney, 638 So.2d 517, 517-18 (Fla. 3d DCA 1994); Ziontz v. Ocean Trail Unit Owners Ass’n, 663 So.2d 1334, 1335-37 (Fla. 4th DCA 1993); Miller v. First Am. Bank & Trust, 607 So.2d 483 (Fla. 4th DCA 1992); Dalia v. Alvarez, 605 So.2d 1282 (Fla. 3d DCA 1992); Mettler v. Mettler, 569 So.2d 496, 498 (Fla. 4th DCA 1990).

Affirmed.


text:
    Rodney GREENE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2245.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2007.
    Rehearing Denied Dec. 31, 2007.
    Rodney Greene, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: CASANUEVA, Judge.

text:
    Stanley D. COBB, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D07-85, 2D07-316.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.
    Rehearing Denied Jan. 23, 2008.
   CASANUEVA, Judge.

In these two appeals, which we have consolidated for the purpose of this opinion, Stanley Cobb appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively refute Mr. Cobb’s claims alleging ineffective assistance of counsel in failing (1) to interview witnesses, (2) to file a motion to suppress, or (3) to object when he was convicted as a habitual traffic offender when he did not have the qualifying offenses needed, we reverse in part. We affirm the postconviction court’s order in all other respects.

Mr. Cobb pleaded guilty in various cases to multiple counts of possession and sale of cocaine and multiple counts of driving while license suspended or revoked. He was sentenced to fifteen years’ prison on the sale of cocaine charges and five years’ prison on the possession of cocaine charges as a habitual felony offender (HFO). Mr. Cobb was also sentenced to ten years’ prison on the driving while license suspended or revoked charges as a habitual traffic offender (HTO). Mr. Cobb appealed his judgments and sentences and this court affirmed. See Cobb v. State, 871 So.2d 220 (Fla. 2d DCA 2004).

In claim one of his timely rule 3.850 motion, Mr. Cobb alleges that his plea was involuntarily and unintelligently entered due to his counsel’s misadvice. Mr. Cobb contends that his counsel told him that a suppression hearing had been held when, in fact, it had not. Mr. Cobb alleges that if his counsel had done an effective job of filing a motion to suppress, the motion would have been granted and he would have insisted on going to trial. He also asserts that his counsel told him that he had interviewed witnesses for the suppression hearing but that in fact, he had not done so. Mr. Cobb set out in his motion the names of the witnesses his counsel failed to interview for the suppression hearing, the substance of their potential testimony, their availability to testify, and the outcome-changing nature of their testimony.

The postconviction court found that Mr. Cobb’s motion was not facially sufficient. We disagree. Mr. Cobb has sufficiently alleged that but for his counsel’s ineffective assistance he would have gone to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Moreover, Mr. Cobb has also sufficiently alleged that his counsel failed to interview witnesses for the suppression hearing. See Nelson v. State, 875 So.2d 579, 583-84 (Fla.2004). Therefore, we reverse and remand as to those claims.

Additionally, in the claim asserted in his sworn memorandum of law attached to his motion, Mr. Cobb alleged that he was erroneously convicted and sentenced as a HTO for felony driving while license suspended or revoked. Mr. Cobb alleges that his convictions for offenses committed on March 18,1997, and April 2,1997, could not be used to habitualize his current convictions because the prior offenses occurred under a previous statute that did not require “knowledge” of cancellation, suspension, or revocation.

At the time Mr. Cobb received the prior convictions, the statute did not require proof of “knowledge” as an element of the offense, and thus, his prior convictions cannot be counted as “conviction” under the 1997 provisions of section 322.34(2), Florida Statutes (1997). Huss v. State, 771 So.2d 591, 592 (Fla. 1st DCA 2000). Therefore, only convictions committed after the revision can be used to enhance under the prescribed statute. Id. If Mr. Cobb’s convictions for prior offenses were truly committed before October 1997, they cannot be used as qualifying offenses. However, the postconviction court failed to attach portions of the record conclusively refuting Mr. Cobb’s claim. See Simmons v. State, 824 So.2d 327 (Fla. 1st DCA 2002) (reversing because record attachments did not conclusively refute movant’s allegations that he was erroneously convicted under section 322.34(2) when he did not have the qualifying offenses).

Accordingly, we reverse and remand to the postconviction court to address these claims and, if it denies them, to attach portions of the record conclusively refuting Mr. Cobb’s claims or to conduct an eviden-tiary hearing. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

WHATLEY and DAVIS, JJ. Concur.


text:
    Roger W. WILLIAMSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-444.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2007.

      Roger W. Williamson, in proper person.
    Bill McCollum, Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and GREEN, JJ.
   PER CURIAM.

This is an appeal from an order denying Roger Williamson’s motion for post-conviction relief pursuant to Rules 3.800(a) and 3.850, Florida Rules of Criminal Procedure. The trial court conducted an eviden-tiary hearing on the Rule 3.850 issues. At the hearing the 3.800(a) claims were also addressed. The court granted additional credit for time served and denied the other claims. The defendant has appealed. We concur with the trial court’s rulings with one exception.

Ground 4 of the defendant’s motion was brought under Rule 3.800(a) and claimed that there was a scoring error in the defendant’s sentencing guidelines scoresheet. We agree with the trial court that, as written, the defendant’s motion and memorandum did not appear to set forth a meritorious claim.

However, during the hearing below the defendant and his counsel clarified that Ground 4 was making the claim that one of the convictions included in the defendant’s sentencing guidelines scoresheet did not actually exist. The scoresheet included fourteen points for a 1994 burglary conviction in Baltimore. The’ defendant maintains that the Baltimore conviction does not exist.

The State argued that the existence or nonexistence of the Baltimore conviction makes no difference. The State pointed out that in the proceedings on revocation of the defendant’s probation, a new score-sheet was prepared and additional points were added for violation of probation. According to the State, the subtraction of points for the Baltimore conviction would make no difference in the overall score.

The State’s position failed to take into account that the defendant received a true split sentence in 1998. The defendant in this case entered into a plea negotiation, accepted by the court. Under the 1998 agreement, a predecessor judge stated that he would impose the guidelines maximum sentence, but suspend it, and place the defendant on community control followed by probation. The judge was informed that the guidelines maximum was 88.9 months. The judge imposed an 88.9 month suspended sentence of incarceration and placed the defendant on community control followed by probation. The offenses to which the defendant pled were purchase of cocaine, a second-degree felony, and possession of cocaine, a third-degree felony.

The defendant subsequently violated his probation. The defendant was incarcerated and is serving the 88.9 month sentence.

On this appeal, the State concedes that the defendant’s sentence is a true split sentence. See State v. Powell, 703 So.2d 444, 446 (Fla.1997); Poore v. State, 531 So.2d 161, 164 (Fla.1988). The original plea colloquy makes clear that the defendant agreed to be sentenced to the guidelines maximum, with the incarcerative portion of the sentence being suspended, but that sentence would be imposed in the event of a violation of community control or probation.

Under the true split sentence, the sentence of imprisonment was actually imposed (but suspended) when the defendant entered his plea in 1998. Upon revocation of his probation, the suspension of the sentence ceased and the defendant began serving the sentence already imposed. Therefore the sentencing guidelines score-sheet had to support the 88.9 month sentence as of the sentencing date in 1998. Under these circumstances, the State was in error in its argument that additional points could be added to the scoresheet at the time of revocation, which occurred later.

Since the agreed sentence was linked specifically to the guidelines maximum, it therefore appears that if fourteen points were assessed for a nonexistent conviction, the defendant would be entitled to have the incarcerative portion of his sentence reduced. The defendant maintains that if this claim is found to be meritorious, he will be entitled to immediate release. We therefore remand for a prompt hearing.

Affirmed in part, reversed in part, and remanded for consideration of the claim of scoring error.

      . The offense date was March 6, 1998. Under the applicable version of the sentencing guidelines the trial court could exceed the legal maximum if the recommended sentence under the guidelines exceeded the legal maximum. § 921.0014, Fla. Stat. (1997).

      . If it should turn out that the defendant has other convictions not previously scored, which should have been scored at the time of the original sentencing in 1998, such convictions may be added to the scoresheet.


author: SALTER, J.

text:
    Jerald COHN, Appellant, v. Jonathan WOOLIN, Appellee.
    No. 3D06-2623.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.

      Concepcion Sexton and Martinez and Carlos F. Concepcion, Coral Gables, and Marian Kennady, for appellant.
    HomerBonner and Douglas F. Eaton, Miami, for appellee.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

Jerald Cohn appeals the circuit court’s non-final order denying his motion to dismiss an amended complaint for lack of personal jurisdiction over him. That lawsuit was brought and prosecuted by the appellee, Jonathan Woolin. We reverse and remand for further proceedings to provide more details regarding Cohn’s role in prior litigation and whether Cohn had sufficient “minimum contacts” with Florida to satisfy due process requirements under the United States Constitution.

The Prior Litigation and the Malicious Prosecution Suit

In prior litigation in the circuit court, Cohn’s mother (Marlene Cohn) and another individual sued Woolin and others in an adversary petition in a circuit court probate case. The petition included allegations that Woolin and'his mother “were the cause of or participated” in the death of Woolin’s stepfather, Martin Woolin. Martin Woolin died of gunshot wounds in his home in May 2002. Jonathan Woolin was dropped as a defendant when the petition was amended some ten months after the filing of the original petition. Cohn himself was never a petitioner in the probate adversary case.

Two years later, Woolin brought a malicious prosecution claim against Cohn, his mother, and the other co-petitioner in the probate matter. Although both Marlene Cohn and Jerald Cohn were alleged to be residents of Atlanta, Georgia, the amended complaint in the malicious prosecution action claimed that: (a) Jerald Cohn held a broad power of attorney for his mother; and (b) Jerald Cohn, acting individually and on behalf of his mother, instituted and maliciously prosecuted a baseless probate adversary petition in Florida against Woo-lin and others.

The Motion to Dismiss for Lack of Jurisdiction

Jerald Cohn filed a motion to dismiss for lack of personal jurisdiction over him, asserting that there were insufficient allegations to support jurisdiction under: (a) the Florida long-arm statute, section 48.193 of the Florida Statutes; and (b) the due process clause of the United States Constitution. Cohn attached to his motion an affidavit executed by him in Gwinnett County, Georgia. That affidavit stated under oath and in substance that Cohn was not licensed to conduct, and did not conduct, business in Florida; that he had not sold any real or intangible property in Florida; that he did not maintain any corporations in Florida; and that he had no telephone number, bank account, property, lawsuits, or business interests in Florida.

In response, Woolin did not file any affidavit or take jurisdictional discovery; instead, Woolin filed a memorandum and hearing transcript references arguing that Cohn had initiated litigation in Florida on behalf of his mother through the power of attorney she had given him, and that Cohn had thereby become subject to the jurisdiction of Florida’s courts. For this proposition, Cohn cited Babcock v. Whatmore, 707 So.2d 702 (Fla.1998), and Shurden v. Thomas, 134 So.2d 876 (Fla. 1st DCA 1961).

Following a hearing on Cohn’s motion to dismiss, the trial court directed Woolin to file an amended complaint “to more clearly allege the basis for this Court’s exercise of personal jurisdiction over Jerald Cohn,” but found that the court did have jurisdiction over Cohn “because he availed himself of the court’s jurisdiction by prosecuting multiple lawsuits in Miami-Dade County in his mother Marlene Cohn’s name as her attorney-in-fact.” This appeal followed.

We review the trial court’s order denying Cohn’s motion to dismiss de novo. Bohlander v. Robert Dean & Assocs. Yacht Brokerage, Inc., 920 So.2d 1226, 1228 (Fla. 3d DCA 2006).

The Long-Arm Statute

Under the two-part jurisdictional analysis detailed by the Florida Supreme Court in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), and this Court more recently in Minchuk v. Reyes, 967 So.2d 407 (Fla. 3d DCA 2007), the trial court examines the amended complaint for sufficient specific factual allegations to satisfy: (1) one or more of the predicate acts enumerated in section 48.193 of the Florida Statutes; and (2) the “minimum contacts” with Florida necessary to satisfy federal constitutional due process requirements.

If, as here, the jurisdictional allegations are disputed, the procedure is well settled:

A plaintiff seeking jurisdiction over a non-resident defendant must plead the basis for jurisdiction. A defendant contesting jurisdiction must file affidavits in support of his motion to dismiss. The plaintiff must then support the grounds upon which he claims jurisdiction with affidavits. If the two sets of affidavits cannot be reconciled, the court must hold an evidentiary hearing to resolve the issue of jurisdiction.

Machtinger v. Inertial Airline Servs., Inc., 937 So.2d 730, 733-34 (Fla. 3d DCA 2006).

In this case, the trial court granted the motion to -dismiss in part, finding the jurisdictional allegations insufficiently detailed. We agree with that portion of the order. The order went on, however, to find that the court had personal jurisdiction over Cohn “because he has availed himself of the court’s jurisdiction by prosecuting multiple lawsuits in Miami-Dade County in his mother Marlene Cohn’s name as her attorney in fact.” As to that conclusion, we disagree.

Woolin and the trial court relied upon Babcock v. Whatmore, 707 So.2d 702 (Fla.1998), for the proposition that a party that avails itself of the court’s jurisdiction to seek affirmative relief waives the party’s right to dispute personal jurisdiction. In this case, however,, it is not established that Jerald Cohn individually sought affirmative relief in the prior and unsuccessful adversary petition in the Florida probate court. The petition was brought in the name of Cohn’s mother. The Florida court did not acquire personal jurisdiction over Jerald Cohn simply by virtue of the fact that his mother had executed a power of attorney in his favor. Galego v. Robinson, 695 So.2d 443 (Fla. 2d DCA 1997). On remand, Woolin must provide details regarding actions allegedly taken by Jerald Cohn in Florida comprising a sufficient basis for jurisdiction under section 48.193 of the Florida Statutes. Jurisdictional discovery and an evidentiary hearing will be appropriate if the allegations are disputed in an affidavit.

Minimum Contacts

The amended complaint must also allege sufficient minimum contacts between Jerald Cohn and the state of Florida to satisfy the Due Process Clause of the United States Constitution. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); see also Venetian Salami, 554 So.2d at 502 (“The mere proof of any one of . several circumstances enumerated in section 4.8.193 as the basis for obtaining jurisdiction of nonresidents does not automatically satisfy the due process requirement of minimum contacts.”) (emphasis in original). Woolin must allege that Jerald Cohn purposefully directed activities at Florida and that the current litigation arises out of those activities. The nature and extent of such contacts are summarized in Green v. USF & G Corp., 772 F.Supp. 1258, 1262 (S.D.Fla.1991).

Conclusion

On this record, Woolin has not carried his burden to demonstrate that Cohn is subject to jurisdiction in Florida. We therefore reverse the order below and remand the case to the trial court for further proceedings, including amendment of the jurisdictional allegations and the determination by the trial court of any disputes pertaining to those more detailed allegations.

Reversed.. ;

      . Marlene Cohn, a defendant in the original malicious prosecution complaint, died in April 2006, and Jerald Cohn, "as power of attorney for Marlene Cohn” and individually, was substituted for her as a defendant.

      . Cohn's affidavit did not, however, directly deny that he directed the prosecution of the Florida probate claims brought against Woo-lin in the name of Cohn’s eighty-eight year-old mother in 2003, or that he met in Florida with the lawyers representing his mother in the exercise of the comprehensive power of attorney she executed in his favor in 2002.

      . The trial court allowed Woolin twenty days within which to further amend his complaint to provide the requisite detail pertaining to jurisdiction.


text:
    MAINSTREAM AMERICA, INC., Appellant, v. BANKERS REAL ESTATE PARTNERS, INC., and Shawn Khosravi, Appellees.
    Nos. 3D06-98, 3D06-2071.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.
    Boyd & Sutter, and Howard T. Sutter, Jacksonville, for appellant.
    Steven Silverman, Miami, for appellees.
    Before GERSTEN, C.J., COPE, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. Shoppes of Liberty City, LLC v. Sotolongo, 932 So.2d 468 (Fla. 3d DCA 2006); Friedman v. U.S. Home Corp., 452 So.2d 1111 (Fla. 2d DCA 1984).


text:
    Pablo Salvador GARCIA, Appellant, v. Liliana de la Paz GARCIA, Appellee.
    No. 3D06-3065.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.

      Harvey D. Rogers, Miami, for appellant.
    Liliana de la Paz Garcia, in proper person.
    Before GREEN, ROTHENBERG and SALTER, JJ.
   SALTER, J.

Mr. Garcia, respondent and husband in a circuit court dissolution of marriage case, appeals an order denying exceptions to a general magistrate’s report establishing temporary support for the wife, Ms. Garcia. Ms. Garcia, who is pro se in this matter, cross-appeals a later order determining that Mr. Garcia was unable to pay his past-due support obligations and denying Ms. Garcia’s motion for contempt.

We affirm each of the orders below. With respect to the cross-appeal, however, our determination is without prejudice to Ms. Garcia’s right to obtain further discovery and to prosecute a further motion for contempt (if required payments are not made and the further discovery discloses a then-present ability to make those payments).

The general magistrate’s report and the trial court’s order awarding temporary support are reviewed for an abuse of discretion. Young v. Young, 898 So.2d 1076, 1077 (Fla. 3d DCA 2005). In this case, the record evidence regarding Mr. Garcia’s income from a family business, his applications for mortgage loans, and his receipt of cash from a family catering business, amply supports the award in favor of Ms. Garcia.

Ms. Garcia’s cross-appeal is flawed because of her failure to file timely the transcript and other record items relating to her motion for contempt and the denial of that motion. The trial court’s denial of the motion in December 2006 does not, however, preclude a renewed motion or appropriate discovery to illuminate Mr. Garcia’s purported and remarkable decline in income and assets following the commencement of the dissolution proceeding and the entry of the support order. The general magistrate’s findings, approved and confirmed by the trial judge, highlighted Mr. Garcia’s lack of candor, the lack of reliability in his testimony, and his “purposeful lack of disclosure of the alleged sale of [two family businesses].”

It is a daunting task for a pro se litigant to attempt to “follow the money” and to prove her allegations that her ex-spouse has committed perjury by concealing income and assets, but this decision regarding her cross-appeal does not in any way restrict Ms. Garcia’s ability to do that in the continuing proceedings below.

Affirmed.


text:
    Kimberly BERGER, Appellant, v. Scott COHEN, Appellee.
    No. 3D06-2978.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.
    Laurie D. Hall, for appellant.
    Russell H. Cullen and James R. (Jack) Bridges, Key Largo, for appellee.
    Before COPE and RAMIREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006) (“The trial court is afforded broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb the trial court’s decision.”) (citing Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995)).


text:
    Roderick MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-514.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.
    Roderick Mack, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Trotter v. State, 825 So.2d 362, 369 (Fla.2002).