text:
    Martha CREASY, as Personal Representative and Trustee of the Martha P. Creasy Revocable Trust Dated December 10, 1993, a Creditor to the Estate of Lefferts L. Mabie, Jr., Appellant, v. ESTATE OF Lefferts L. MABIE, Jr., Appellee.
    No. 1D07-1156.
    District Court of Appeal of Florida, First District.
    June 21, 2007.
    Scott A. Remington of Clark, Parting-ton, Hart, Larry, Bond & Stackhouse, Pensacola, and J. Patrick Mensching of Lyone, Clark & Mensching, Inc., Tulsa, OK, for appellant.
    William V. Linne, Pensacola, for Appel-lee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 26, 2007, the Court has determined that the order on appeal is not an appealable order. Specifically, although it was captioned as a motion to vacate the lower tribunal’s September 5, 2006, orders striking claims against the estate, the appellant’s motion to vacate was in the nature of a motion for rehearing challenging the lower tribunal’s legal ruling. Therefore, the Court concludes that the motion, which was filed on December 18, 2006, was an untimely motion for rehearing. Consequently, the appeal is untimely with respect to the underlying orders striking the claims. Fla. R.App. P. 9.110; 9.020(h). Furthermore, the order denying the motion to vacate is not itself an independently appealable order. Fla. R.App. P. 9.130(a)(4). Based on the foregoing, the appeal is hereby dismissed for lack of jurisdiction.

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


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    Rayon PAYNE, Appellant, v. Julia Ruth BEVERLY, Appellee.
    No. 5D06-3344.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.

      Rayon Payne, Orlando, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Rayon Payne [“Payne”], pro se, has appealed the trial court’s order dismissing his complaint against Julia Ruth Beverly [“Beverly”] with prejudice and awarding Beverly attorney’s fees and costs. We reverse.

On March 1, 2006, Payne filed a “Complaint for Discovery” against Beverly, Tu-cows, Inc., and HostGator.com. In his complaint, Payne alleged that he was the registered owner of the “95LIVE.COM” domain [“the domain”] in October of 2002 and that, while Payne was in prison, John Bondorowsky fraudulently • accessed Payne’s e-mail account and illegally altered records for the domain to reflect that Bon-dorowsky was the domain’s owner. Bon-dorowsky then sold the domain to Beverly. When Payne was released from prison on July 12, 2005, he contacted Beverly, Tu-cows, Inc., and HostGator.com in an effort to secure the return of the domain, but was not successful.

In the complaint, Payne demanded that Tucows, Inc. provide him with documentation disclosing its association with the domain. He alleged that such discovery was necessary to establish that he was the rightful owner of the domain. He also demanded that Beverly provide documentation pertaining to the purchase and sale of the domain. Finally, he demanded that HostGator.com provide him with documentation disclosing the identity and true physical address of the persons currently in possession of the domain. Payne alleged that he intended to bring an action to secure the return of his domain but needed the discovery to do so. He alleged that this was the only means of discovery available to him to obtain this information.

On March 2, 2006, Payne filed a “Motion for Injunction,” in which he asked the trial court to suspend the domain until the matter had been resolved. Then, on March 21, 2006, Payne filed “Amended Pleadings Motion for Return of Intellectual Property (95LIVE.COM)” with the trial court. In this motion, Payne amended his March 1, 2006, complaint for discovery to include a motion asking the trial court to return the domain to him. Further, he alleged that HostGator.com and Tucows, Inc. had provided the information he asked for, but Beverly had not.

On March 29, 2006, Beverly filed a Motion to Dismiss Complaint, asking the trial court to dismiss the complaint (and any amendments) on the ground that Payne “failed to allege any facts which state a cause of action upon which relief may be granted with regard to Defendant Beverly.” Additionally, Beverly asked the trial court to order Payne to pay her attorney’s fees and costs incurred by Beverly pursuant to section 57.105, Florida Statutes (2005). The trial court granted both motions, dismissing the action with prejudice and awarding section 57.105 fees. We conclude that it was error to dismiss the complaint with prejudice and to award fees on the basis that the suit was frivolous.

Historically, “[t]he purpose of the bill of discovery was to obtain information so the complainant could prosecute his rights in a common law action that was either pending or in prospect.” HENRY P. TRAWICK, JR., FLORIDA PRACTICE AND PROCEDURE § 16:1 (2007). Today, the device may still “be used to identify potential defendants and theories of liability and to obtain information necessary for meeting a condition precedent to filing suit.” Mendez v. Cochran, 700 So.2d 46, 47 (Fla. 4th DCA 1997); see also JM Family Enters., Inc. v. Freeman, 758 So.2d 1175, 1176 (Fla. 4th DCA 2000) (While “the pure bill of discovery has not been abrogated by the later adoption of liberal rules of discovery ... its use should now be relatively rare.”).

A complaint for a pure bill of discovery generally must allege: (1) the nature and contents of documents or other matters in the defendant’s possession or control, as to which discovery is prayed, (2) the matter or controversy to which the requested discovery relates, (8) the interest of each party in the subject of the inquiry, (4) the complainant’s right to have the requested relief, (5) the complainant’s title and interest, as well the complainant’s relationship to the discovery claimed, and (6) that the requested discovery is material and necessary to maintain the complainant’s claims in the prospective litigation. See Nat’l Bank v. Dade-Broward Co., 125 Fla. 594, 596, 171 So. 510 (1936); Publix Supermarkets v. Frazier, 696 So.2d 1369, 1371 (Fla. 4th DCA 1997); 19A FLA. JUR. Discovery and Depositions § 6 (2006); Daniel Mormon, Trial Lawyers Forum: The Complaint for a Pure Bill of Discovery A Living, Breathing Modem Day Dinosaur?, 78 Fla. Bar J. 50, 51 (2004). A pure bill of discovery may also be amended to state a cause of action at law. See Surface v. Town of Bay Harbor Islands, 625 So.2d 109 (Fla. 3d DCA 1993).

Payne contends that the trial court erroneously concluded that he was not entitled to discovery because there was no pending action. Payne correctly asserts that a complainant may obtain discovery from a defendant through a pure bill of discovery. The only remaining issue then is whether the complaint satisfied the pleading requirements of a pure bill of discovery. Although not artfully pled, it does appear that most of the essential elements are contained in the complaint. The issue as to Beverly is complicated by Payne’s subsequent allegations that Tu-cows, Inc. was in control of the domain, making it unclear what the purpose of discovery from Beverly would be. Even if the dismissal were for such a pleading deficiency, however, it should normally be without prejudice to amend. This being so, it was error to assess fees against Payne on the basis of section 57.105, Florida Statutes (2005).

REVERSED and REMANDED.

SAWAYA and TORPY, JJ., concur.


author: DAVIS, Judge.

text:
    SEA QUEST INTERNATIONAL, INC., Appellant/Cross-Appellee, v. TRIDENT SHIPWORKS, INC., Appellee/Cross-Appellant.
    No. 2D05-5950.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.

      Stephen A. Marino, Jr., and Cristina M. Lopez of Yer Ploeg & Lumpkin, P.A., Miami, for Appellant/Cross-Appellee.
    Jonathan W. Skipp and Stephanie H. Wylie of Horr, Novak & Skipp, P.A., Miami, for Appellee/Cross-Appellant.
   DAVIS, Judge.

Sea Quest International, Inc. (“Sea Quest”), challenges the final judgment entered against Trident Shipworks, Inc. (“Trident”), alleging that the trial court erred in determining the amount of damages to be awarded Sea Quest. By cross-appeal, Trident also challenges the damages determination. We affirm in part and reverse in part.

Sea Quest and Trident entered into a written agreement for the construction of a 117-foot luxury yacht. Trident agreed to complete construction of the yacht by September 7, 1998. Not only did Trident fail to meet the contract date, but Sea Quest was dissatisfied with the quality of the construction that Trident had performed. Pursuant to the agreement, Sea Quest sought arbitration to settle the contract dispute. Trident responded by seeking protection through a Chapter 11 proceeding in the bankruptcy court. At all times material to these proceedings, St. Paul Fire and Marine Insurance Company (“St. Paul”) provided Trident with insurance coverage. Specifically, St. Paul had issued Trident a total of four policies — two builder’s risk policies, one general liability policy, and one umbrella liability policy.

Sea Quest filed its claim in the bankruptcy proceeding alleging that Trident owed Sea Quest $9.43 million for its violation of the construction agreement. Trident filed an objection to Sea Quest’s claim. During the proceedings, the bankruptcy court issued an order authorizing Sea Quest to file an independent action naming Trident as a “nominal” defendant, thus allowing Sea Quest to pursue its claim against St. Paul for the damages covered by Trident’s insurance policies. After the trustee in bankruptcy formulated an acceptable plan for distribution of Trident’s assets, Trident withdrew its objection to Sea Quest’s claim and the trustee made a pro rata distribution to Sea Quest of $258,473.57, or 2.74% of its claim. The distribution and discharge plan was confirmed on May 22, 2000, and no appeal was taken.

Prior to the bankruptcy court’s approval of the discharge plan, St. Paul filed a declaratory judgment action in the United States District Court for the Middle District of Florida. The action named both Sea Quest and Trident as defendants and asked for a determination of the potential coverage issues raised by the four insurance policies. The complaint also asked the district court to determine the appropriate amount of damages if it found coverage to exist.

St. Paul then moved for a summary judgment on the issue of coverage, arguing that since Sea Quest had not obtained a judgment against Trident, a determination of coverage under the terms of the liability policies was premature. The district court agreed and, on October 19, 2001, granted summary judgment in favor of St. Paul on coverage issues related to the general liability policy and the umbrella policy. However, the district court determined that Sea Quest could proceed on the builder’s risk policies as it was an additional named insured on those policies.

Pursuant to that determination, a nonju-ry trial was then held on the issues of coverage and damages under the two builder’s risk policies. At issue was whether the policies covered Trident’s poor workmanship or only covered damages that resulted from “fortuitous” events. St. Paul argued that all of the damages that Sea Quest claimed were outside of the scope of the policies’ coverage. Accordingly, St. Paul offered no evidence to rebut the costs claimed by Sea Quest and “did not otherwise dispute the amount of loss. Rather, St. Paul limited its dispute to whether the losses sustained were ‘covered’ losses under the policy.” St. Paul Fire & Marine Ins. Co. v. Sea Quest Int'l, Inc., No. 8:00-CV-571-T-MSS, slip op. at 21 (M.D.Fla. Mar. 21, 2002). However, Sea Quest did present evidence in the form of two expert witnesses who testified to the damages Sea Quest had incurred as a result of Trident’s failure to timely and properly construct the yacht as contemplated by the construction agreement.

At the conclusion of the hearing, the district: court found that certain of the damages claimed by Sea Quest were covered by the builder’s risk policies and others were not. Specifically, the court found that Sea Quest was entitled to $1,262,436.22 due to Trident’s negligence and that this amount was covered by the policy. Id., slip op. at 13. The district court also found that the damages Sea Quest claimed for Trident’s intentional misconduct were covered by the two policies and that the damage amount was $739,509. Id. However, the district court found that the damages claimed for Trident’s failure to complete the construction were not recoverable under the builder’s risk policies. Id., slip op. at 14. Likewise, the district court denied other damages as either being excluded from coverage under the two policies or lacking in sufficient proof.

St. Paul appealed the district court’s order finding coverage under the two builder’s risk policies, and Sea Quest cross-appealed the ruling that no coverage determination could be made under the two .liability policies until Sea Quest obtained a judgment against Trident. While the Eleventh Circuit affirmed the district court’s ruling that the coverage determination under the general liability and umbrella liability policies was premature, the court reversed the district court’s order finding coverage under the builder’s risk policies. See St. Paul Fire & Marine v. Sea Quest, 66 Fed.Appx. 844 (11th Cir.2003) (unpublished table decision). Thus the Eleventh Circuit concluded that the builder’s risk policies provided no coverage for Sea Quest’s damages and that at least until liability was determined between Sea Quest and Trident, the liability policies provided no coverage either.

Following entry of the district court’s order but prior to the Eleventh Circuit’s decision, Sea Quest, in accord with the bankruptcy court’s specific authorization, filed a two-count complaint against Trident in the Thirteenth Judicial Circuit in and for Hillsborough County. The purpose of this action was to obtain a judgment against Trident so that it could proceed against St. Paul on the liability policies. Count one alleged damages based on negligence, and count two alleged breach of contract. The prosecution of the action was initially limited until the Eleventh Circuit entered its decision reversing the district court’s order. Subsequently, upon the motion of Trident, the trial court dismissed the negligence count of the complaint, leaving only the breach of contract count.

Sea Quest then moved for summary judgment on the breach of contract count, arguing that liability and damages for the breach of contract claim already had been determined by another court and that further litigation of these issues was therefore barred by law. Specifically, Sea Quest pointed to its claim in the bankruptcy proceeding for $9.43 million, arguing that because Trident had withdrawn its objection to that claim and the pro rata distribution had been made based on that amount, the liability and damages issues already had been adjudicated by the bankruptcy court. In the alternative, Sea Quest argued that the United States District Court for the Middle District of Florida had determined Trident’s liability and Sea Quest’s damages at the nonjury trial. Sea Quest maintained that the district court’s findings on liability and damages under the builder’s risk policies were binding even though the Eleventh Circuit reversed the district court’s finding that coverage existed under those policies.

The trial court rejected Sea Quest’s argument regarding the bankruptcy proceedings but did agree that the liability and damages findings entered in the non-jury district court trial were binding. Accordingly, the trial court entered judgment against Trident for $2,423,775.22. It is this judgment that both Sea Quest and Trident challenge.

Sea Quest’s initial argument on appeal is that the trial court erred in refusing to adopt its $9.43 million claim in the bankruptcy proceeding as the amount determined to be Sea Quest’s damages. Sea Quest argues that the principles of res judicata, equitable estoppel, and waiver required the trial court to grant summary judgment against Trident as to this amount. The trial court was correct to reject this argument.

Because Sea Quest’s argument that the bankruptcy proceeding adjudicated the liability of Trident on the breach of contract claim and the damages that Sea Quest incurred because of that breach, the federal rules of preclusion must be applied. See Baxas Howell Mobley, Inc. v. BP Oil Co., 630 So.2d 207 (Fla.3d DCA 1993). Although parties and state courts frequently use the terms res judicata and collateral estoppel, the federal courts more frequently refer to these as claim preclusion and issue preclusion. In re Kmart Corp., 362 B.R. 361 (Bankr.N.D.Ill.2007); see also S.E.L. Maduro (Fla.), Inc. v. M/V Antonio de Gastaneta, 833 F.2d 1477 (11th Cir.1987).

The rationale of the doctrine of claim preclusion (res judicata) is that there must be an end to litigation. Matter of Kroner, 963 F.2d 317 (7th Cir.1992). This doctrine may be applied to a bankruptcy court decision. Katchen v. Landy, 382 U.S. 323, 334, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966). If a party can show identity of the parties, identity of the causes of action, and the existence of a final judgment in the initial proceedings, this principle precludes relitigation of the same cause of action. People Who Care v. Rockford Bd. of Educ., 68 F.3d 172 (7th Cir.1995). The fact that the earlier action was concluded based on a consent judgment does not prevent the prior judgment from precluding the subsequent litigation. Martino v. McDonald’s Sys., Inc., 598 F.2d 1079 (7th Cir.1979).

In the instant case, we conclude that Sea Quest failed to demonstrate an identity of parties in Trident’s bankruptcy proceeding and the case sub judice. Thus the trial court did not err in refusing to find that the bankruptcy discharge precluded litigation of the breach of contract claim and the damages issue. See Athridge v. Aetna Cas. & Sur. Co., 351 F.3d 1166, 1171 (D.C.Cir.2003) (“[A] party invoking claim preclusion has the burden of establishing its elements.... ”).

Although there is technically an identity of the named parties in both proceedings, those parties do not share an identity of interests in the two actions. Trident filed for bankruptcy protection, and Sea Quest filed its claim in the bankruptcy based on Trident’s alleged breach of contract. However, Trident’s trustee had no motivation to defend on the breach of contract claim or to rebut the claim for damages because Trident was going to be discharged of its debts. By contrast, St. Paul, which did have a reason to defend the claim because it insured Trident, was not a party to that proceeding, nor was its interest in defending the claim represented. When, as a result of the bankruptcy decree, Trident was discharged from the debt arising out of the contractual relationship, St. Paul was not relieved of its obligation. In fact, the bankruptcy judge authorized a separate action outside of the bankruptcy proceeding to allow Sea Quest the opportunity to seek relief from St. Paul. By this order, it was clear that the bankruptcy judge did not intend for St. Paul to be a party to the bankruptcy proceeding. Moreover, by authorizing Sea Quest to name Trident as a “nominal” defendant, the bankruptcy judge made it clear that St. Paul was to be the real party in interest in the subsequent action.

In the case sub judice, which is the action that was contemplated by the bankruptcy judge, Trident is the named defendant and St. Paul is defending the case under a reservation of rights. St. Paul is the real party in interest because Trident, having received a discharge in bankruptcy, has no interest in the outcome. Thus, despite the apparent identity of parties in the two cases, the parties’ differing interests in the two cases demonstrate the fallacy of allowing the bankruptcy decree to have a preclusive effect in the instant action. Accordingly, we conclude that because Sea Quest failed to demonstrate identity of the parties in the two actions, the bankruptcy decree does not preclude litigation of Trident’s liability under the breach of contract claim or the damages for the breach, if proven.

Our conclusion is further supported by our review of the procedural history of this case. For claim preclusion to entitle Sea Quest to a summary judgment based on the bankruptcy decree, it would have to be accepted that the plan confirmation and discharge entered by the bankruptcy court on May 22, 2000, was an adjudication on the merits of the breach of contract claim and an award of $9.43 million in damages. However, the district court determined that Sea Quest did not have such a judgment against Trident when it found that Sea Quest was barred from proceeding against St. Paul on the general liability policy and the umbrella liability policy until such a judgment was obtained; this ruling was affirmed on appeal. The record is not clear whether Sea Quest argued in the federal courts that the bankruptcy was such a final judgment or whether Sea Quest waived the argument. However, because the law of this case as decided by the prior federal court decisions is that the bankruptcy decree was not a final judgment on the breach of contract claim, the trial judge below was correct in denying the motion for summary judgment based on this ground.

Sea Quest argues next that its filing of the $9.43 million claim in the bankruptcy proceeding, coupled with Trident’s withdrawal of its objection to the claim, resulted in a type of consent judgment, which collaterally estopped Trident from denying its validity. Collateral estoppel, known as issue preclusion in the federal courts, is another means to limit litigation. This doctrine precludes relitigation of a particular issue that has been adjudicated previously. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). “While res judicata forecloses all claims which might have been litigated in the prior lawsuit, collateral estoppel assigns a preclusive effect only to those issues actually and necessarily decided in the prior lawsuit.” S.E.L. Maduro (Fla.), Inc., 833 F.2d at 1483. Issue preclusion applies when the party advancing the doctrine can show that (1) the issue in question is the same issue involved in the prior litigation; (2) the issue was actually litigated; (3) the determination of the issue was essential to the final judgment rendered in the prior action; and (4) the party against whom the doctrine is applied was fully represented in the prior action. In re Kmart Corp., 362 B.R. at 383. Addressing the offensive use of issue preclusion in Parklane Hosiery, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552, the United States Supreme Court noted that the use of this doctrine by a plaintiff, as here, may result in an unfair application and that the trial court should be granted “broad discretion to determine when it should be applied.” Id. at 331, 99 S.Ct. 645. “[W]here ... the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.” Id.

Our analysis of the record suggests that the trial court was also correct to deny Sea Quest’s request for the application of issue preclusion based on the bankruptcy decision. Although Sea Quest filed a $9.43 million claim and Trident withdrew its objection to that claim, the issue of damages was never litigated. The record suggests that with the exception of its initial objection to the claim for damages, Trident did not in any way litigate the damages issue in the bankruptcy court. In fact, Trident’s trustee had no incentive to expend the limited assets of the bankrupt’s estate to defend on the issue of damages when a distribution plan was available that would obtain a discharge for Trident by the pro rata payment to Sea Quest, minimal though it was. To conclude that the issue was actually litigated in the bankruptcy proceeding and thus hold the insurer responsible for the total damages claim would be, as the Parklane court cautioned, “unfair” to St. Paul. See 439 U.S. at 331, 99 S.Ct. 645.

Additionally, the bankruptcy decree was, at best, in the nature of a consent judgment. That is, although Trident initially objected to Sea Quest’s claim for $9.43 million, it withdrew the objection for the purposes of effectuating the distribution plan and obtaining the discharge. Our record fails to reveal a clear intent in the bankruptcy proceedings that the decree was to operate as an adjudication of the issue. The party seeking to invoke the preclusion doctrine based on a consent judgment must show that such was the intent of the parties. In re Halpern, 810 F.2d 1061, 1064 (11th Cir.1987) (“[T]he central inquiry in determining the preclusive effect of a consent judgment is the intention of the parties as manifested in the judgment or other evidence.”).

Even if we were only to conclude that the record is not clear as to whether there was actual litigation of the damages issue, the trial court correctly denied the application of the preclusion doctrine because doubts as to the applicability of the doctrine should be resolved against the use of the doctrine. See In re Kmart Corp., 362 B.R. at 378. Accordingly, we conclude that the trial court did not err in rejecting Sea Quest’s argument. That is, even if the trial court below were to find that Trident was liable on the breach of contract claim based on the district court’s final judgment, the trial court was correct to reject Sea Quest’s argument that Trident was precluded from litigating the damages issues because of the bankruptcy distribution plan and discharge.

In further support of this conclusion, we note that Sea Quest failed to demonstrate that the party against whom the doctrine is applied was fully represented in the prior action. As explained in our analysis of claim preclusion above, Trident did not attempt to defend on the damages claim in the bankruptcy proceeding. Not only was the issue not actually litigated, St. Paul’s interests were not protected in the prior action and that prior bankruptcy ruling should not preclude Trident (St. Paul) from litigating the damages issue.

Sea Quest also suggests that Trident (St. Paul) should be precluded from litigating the issue of damages because Trident waived the opportunity to litigate the issue of damages by its actions in the bankruptcy proceedings. As previously noted, however, all the parties acknowledge that the real party in interest in this action is St. Paul, not Trident, given the bankruptcy court’s discharge, which precluded any further action against Trident, the bankrupt party. The bankruptcy order made it clear that the interests of the real party in interest, St. Paul, were not before the bankruptcy court and that St. Paul did not have the opportunity to litigate the damages issue at that time in the bankruptcy proceeding. Accordingly, we conclude that the trial court was correct in denying Sea Quest’s motion on this ground as St. Paul had not had the previous opportunity to litigate this issue and cannot be said to have waived something it never had. In summary, we conclude that the trial court was correct to deny Sea Quest’s request for a summary judgment against Trident based on the bankruptcy decree.

In its second point on appeal, Sea Quest alleges that the trial court below erred in its determination of the amount of damages. Sea Quest argues that even if the bankruptcy decree did not preclude further litigation on the liability and damages issues, the district court’s judgment did. Sea Quest argues that at the trial on the builder’s risk policies in the district court, Sea Quest produced evidence proving in excess of $10 million in damages. The district court’s second amended order on plaintiffs amended motion for summary judgment and final judgment in favor of plaintiff awarded Sea Quest damages totaling $2,423,775.22, plus prejudgment interest from September 27, 1999. Sea Quest argues that while the damage award included in the district court’s final judgment was limited to the amount found to be covered by the builder’s risk policies, additional damages were proven at the trial in the district court even though the district court determined that the additional amounts were not covered by the policies. That is, damages were proven that exceeded the amount awarded. Since the case sub judice involves a claim for breach of contract — not just a claim on the builder’s risk policies — Sea Quest argues that once the trial court determined Trident’s liability for breach of contract, it was precluded from allowing further litigation on the damages issue and should have awarded all the damages proven in the federal proceeding, not just the amount awarded as covered damages.

We begin our analysis on this issue by noting that the trial court below did make the finding that “the issues of Trident’s liability to Sea Quest and the amount of damages owed by Trident to Sea Quest were previously decided by Judge Mary Scriven in St. Paul Fire & Marine Ins. Co. v. Sea Quest Int’l, Inc. and Trident Shipworks, Inc., M.D. Fla. Case No. 8:00-cv-571-T-MSS.” Further, the trial court’s order determined that the recovery of damages would be limited to the insurance proceeds available to Trident in accordance with the order entered by the bankruptcy court. However, we reject Sea Quest’s argument that the trial court was bound by the district court’s bench order and should have included damages that may have been proven at the federal trial but not awarded.

Because Sea Quest is relying on the doctrine of claim and/or issue preclusion based on the judgment entered by the district court, we must again look to the federal law on preclusion to determine the applicability of either claim or issue preclusion to these facts. See Baxas Howell Mobley, 630 So.2d 207. Prior to entry of the final judgment below, the Eleventh Circuit reversed in part and affirmed in part the district court’s final judgment. See St. Paul Fire & Marine, 66 Fed.Appx. 844. The Eleventh Circuit affirmed the district court’s ruling that the claims on the general liability policy and the umbrella liability policy were premature since there was no judgment against Trident for breach of contract and no determination of damages for such a claim. However, the Eleventh Circuit reversed the district court’s determination that there was coverage under the builder’s risk policies and the district court’s award of damages. Id.

Trident argues on appeal that the reversal of the district court’s final judgment negated the preclusive impact of that judgment. We agree. Because the district court’s judgment finding liability, damages, and coverage under the builder’s risk policies was reversed, the judgment lost its preclusive impact. See Franklin Sav. Ass’n v. Office of Thrift Supervision, 35 F.3d 1466, 1469 (10th Cir.1994) (holding that the prior determination of standing had no preclusive effect because the final judgment entered subsequent to that finding was reversed on appellate review); see also Erebia v. Chrysler Plastic Prods. Corp., 891 F.2d 1212, 1215 (6th Cir.1989) (“Where the prior judgment, or any part thereof, relied upon by a subsequent court has been reversed, the defense of collateral estoppel evaporates.”); Ornellas v. Oakley, 618 F.2d 1351, 1356 (9th Cir.1980) (“A reversed or dismissed judgment cannot serve as the basis for a disposition on the ground of res judicata or collateral estop-pel.”). We note that Trident has not cross-appealed the trial court’s finding of liability or the award of the limited damages made by the trial court below. However, it did argue that the Eleventh Circuit’s reversal of the district court negated the preclusive effect of the judgment as to the issue of additional damages. We agree. Accordingly, we reject Sea Quest’s argument that the doctrine of issue preclusion forecloses additional litigation of the damages presented to the district court but found by that court not to be covered by the builder’s risk policies.

Trident did cross-appeal the inclusion of certain damages in the trial court’s award. Specifically, the trial court’s judgment included an award of $421,830 for damages for Trident’s failure to complete the con-struetion of the yacht. This total represented several specific claims for damages enumerated in the district court’s bench order. Trident specifically objected to the sums described in the bench order as item number 94, which related to Sea Quest’s addition of a keel to the vessel for stability, and item number 95, which also involved a subsequent modification. The total of these items was $300,000.

Based on the inapplicability of the doctrine of issue preclusion as discussed above, the trial court below erred in awarding these damages. However, we also agree with Trident’s argument that even if the district court’s judgment did preclude further litigation on the damages issue, these amounts were improperly awarded because the bench order included a specific finding that “there was insufficient evidence adduced at trial to establish that items 94 and 95 were caused by negligence on the part of Trident or that they were contemplated by the underlying construction agreement between Sea Quest and Trident.” Accordingly, the portion of the final judgment awarding damages associated with items 94 and 95 of the district court’s bench order is reversed, and on remand, the trial court is instructed to reduce the award of damages by $300,000.

In summary, the trial court’s final judgment is affirmed with the exception that the award of damages shall be reduced by the sum of $300,000.

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT and SALCINES, JJ., Concur.

      . Although Trident is named as the defendant, it is clear that the party in interest is St. Paul. Trident was discharged of this debt by the bankruptcy proceedings; however, the potential relief that Sea Quest may recover would be from St. Paul under the general liability and umbrella liability policies.

      . This amount represented the damages the district court found to be covered by the builders risk policies for Trident's negligent construction, Trident's intentional misconduct, and some of the costs Sea Quest incurred due to Trident’s failure to complete the construction.

      . Although the trial court did not specifically enter an order rejecting the arguments regarding the bankruptcy decree, it is clear from the record that is, in fact, what happened. Sea Quest presented alternative theories in support of its motion for summary judgment. The second theory suggested a different amount of damages and was argued at the hearings on the motion for summary judgment. The summary judgment that was entered awarded the lesser amount and specifically referred to the district court’s decision. Additionally, Sea Quest designated this as a separate point of appeal, indicating that the parties understood by the trial court's judgment that it had rejected these arguments.

      . Some time after Sea Quest filed this action against Trident, St. Paul filed a second petition seeking declaratory relief on the issue of coverage under the liability policies in the United States District Court for the Middle District of Florida. The district court granted Sea Quest's motion to stay those proceedings until the case before this court is finalized. In the district court’s order, the court observed: “Thus, St. Paul’s successful argument in the First Declaratory Action is one of the reasons it is now defending Trident under a reservation of rights in state court.” St. Paul Fire & Marine Ins. Co. v. Sea Quest Int'l, 2006 WL 889994, *2 (M.D.Fla. Mar. 31, 2006).

      . Normally, preclusion is argued by a defendant to prevent a plaintiff from further litigation on a claim or issue raised in a subsequent action. However, the doctrine can be used as an offensive strategy where a plaintiff files the cause of action and moves the trial court to preclude the defendant from relitigat-ing the claim or issue. Either way, preclusion is normally raised as a ground for summary judgment.

      . In its pleadings in the trial court and in this court, Sea Quest proposed application of the waiver theory; however, most of the argument made in the trial court and on appeal centered on the issue of claim preclusion.

      . This total represents $1,262,436.22 for Trident's negligent construction, $739,509 for Trident's intentional misconduct, and $421,830 for Trident's failure to complete the yacht.

      . Trident has not appealed the trial court’s determination that the federal court previously determined Trident’s liability for breach of contract and only challenges the award of damages for Trident's failure to complete the yacht by its cross-appeal.


author: PER CURIAM.

text:
    Alfredo QUINTERO, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1493.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.
    Rehearing Denied June 22, 2007.
    David S. Molansky of David S. Molan-sky, Attorney at Law, Miami, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Alfredo Quintero’s conviction and sentence for attempted second-degree murder is affirmed without prejudice to his filing a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

NORTHCUTT and LaROSE, JJ., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    Linda SIMONELLI, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 2D06-3272.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.
    William M. Powell of Powell Law Offices, P.A., Cape Coral, for Appellant.
    Jennifer A. Tschetter, Tallahassee, for Appellee.
   PER CURIAM.

We reverse the award of $2223.40 made to Linda Simonelli by the Construction Industry Licensing Board (“the Board”), which administers the Florida Homeowner’s Construction Recovery Fund (“the Fund”) pursuant to section 489.143, Florida Statutes (2005). The circuit court awarded Simonelli $10,944.20 for damages she incurred when her contractor abandoned construction of her swimming pool. Simonelli then filed a claim with the Board, seeking a payment from the Fund equal to that judgment. The Board, however, took into consideration informal estimates provided by one of its members and concluded that Simonelli should be awarded only $2223.40. This was error. The circuit court’s judgment was competent, substantial evidence before the Board and should have been accepted by the Board as the basis for the award.

We therefore reverse and remand for entry of an award to Ms. Simonelli of the balance of the defaulting contractor’s lifetime cap to the extent it does not exceed the trial court’s judgment.

Reversed and remanded.

DAVIS and WALLACE, JJ., and THREADGILL, EDWARD F„ Senior Judge, Concur.


author: NORTHCUTT, Judge.

text:
    Brandon A. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4839.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.
   NORTHCUTT, Judge.

Brandon A. Brown appeals the summary denial of his motion for postconviction relief. The posteonviction court treated the motion as filed pursuant to Florida Rule of Criminal Procedure 3.850 and summarily denied the motion on the merits. We reverse and remand for further proceedings consistent with this opinion.

After entering a non-negotiated guilty plea, Brown was sentenced on sundry charges that included four counts of robbery. In his motion for postconviction relief, Brown raised two claims. First, he contended that his double jeopardy rights were violated because two of the robbery convictions, under counts four and five, involved only one victim during one criminal episode. Second, Brown asserted that his trial counsel was ineffective for failing to research his double jeopardy claim and to object to the violation. The postconviction court, relying on the information setting forth the charges against Brown, determined that the two counts involved two separate victims and supported two separate robbery convictions. Therefore, the postconviction court concluded that Brown’s convictions and sentences under both counts did not violate his double jeopardy rights and that counsel was not ineffective.

The order summarily denying Brown’s motion for relief included no attachments, such as a plea colloquy transcript, to refute Brown’s claim that the two counts stemmed from only one robbery involving only one victim. Accordingly, we reverse the summary denial and remand for further proceedings. If, on remand, the post-conviction court again summarily denies Brown’s motion, it shall attach to its order portions of the record demonstrating that Brown is not entitled to relief. Otherwise, the court must conduct an evidentiary hearing on his claims.

Reversed and remanded.

STRINGER and SILBERMAN, JJ., Concur.

      . We note that Brown provided this court with a statement by the victim alleged in count five of the information which indicates that the victim merely observed the robbery from the convenience store's back room.


text:
    Donald B. STOKES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2125.
    District Court of Appeal of Florida, First District.
    June 22, 2007.
    Donald B. Stokes, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus or alternative petition for writ of prohibition is denied on the merits.

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


text:
    Melvin SYKES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2436.
    District Court of Appeal of Florida, First District.
    June 22, 2007.
    Melvin Sykes, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Bobby Gene MAYS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4437.
    District Court of Appeal of Florida, First District.
    June 26, 2007.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Collier v. State, 681 So.2d 856, 859 (Fla. 5th DCA 1996).

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


author: BROWNING, C.J.

text:
    ONE BEACON INSURANCE, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D05-5459.
    District Court of Appeal of Florida, First District.
    June 27, 2007.

      Cindy R. Galen, of Eraclides, Johns, Hall, Gelman, Eikner & Johannessen, L.L.P., Sarasota, for Appellant.
    Garnett W. Chisenhall, Chief Appellate Counsel, Tallahassee, for Appellee.
    Edward J. Pozzuoli, and Stephanie Alexander, of Tripp Scott, P.A., Ft. Lauder-dale, for Appellee, Amicus Curie, Florida Hospital Association.
    Diane D. Tremor, and Chris H. Bentley, of Rose, Sundstrom & Bentley, L.L.P., Tallahassee, for Appellee, Amicus Curie, Florida Society of Ambulatory Surgical Center.
   OPINION ON APPELLEE’S AND AMI-CUS CURIAE’S MOTIONS FOR REHEARING AND/OR CLARIFICATION

BROWNING, C.J.

We have for review the motions of Appellee Agency for Health Care Administration (AHCA) and amicus Florida Hospital Association (Association) seeking rehearing and clarification. Because we grant the motion for rehearing and clarification, the opinion herein is substituted for our opinion in One Beacon Insurance v. Agency for Health Care Administration, 32 Fla. L. Weekly D806 (Fla. 1st DCA Mar.28, 2007).

On August 15, 2003, Ambulatory Surgery Center (ASC) Tampa performed a service and billed Appellant $6,025.00. Appellant paid $651.51 in reimbursement, calculating that amount by noting the service was not listed in the Florida Workers’ Compensation Reimbursement Manual for Ambulatory Surgical Centers (ASCRM), and then determining the usual and customary charges for that service in that community. ASC requested dispute resolution from the Agency for Health Care Administration (AHCA), which eventually decided that Appellant should have reimbursed $4,217.50 because the applicable version of the ASCRM required it to reimburse 70% of that individual service provider’s usual and customary charge. Appellant timely sought review of the ruling. For the reasons below, we reverse.

Because the ASCRM was not amended between 1992 and 2005 the applicable version in the instant case is the 1992 version. It was adopted by reference in what was numbered, at that time, rule 38F-7.100, Florida Administrative Code, which provides that “when a procedure is performed which is not listed in the manual, ... carriers must reimburse ambulatory surgical centers 70% of the ambulatory surgical center’s usual and customary charge.” This administrative rule implemented the 1992 version of section 440.13(4)(b)5., Florida Statutes (1992), which states in pertinent part that “[r]eimbursement of a compensable ambulatory surgical center charge not itemized in the schedule of maximum reimbursement allowances shall be at 70 percent of the ambulatory surgical center’s usual and customary charge.” The statute and rule both clearly refer to a single ASC.

However, the statute was amended, effective January 1, 1994, to remove all reference to the charges of any individual service provider. Ch. 93-415, § 17, at 108-09, Laws of Fla. This amendment reveals the legislative intent to eliminate calculation of a “usual and customary charge” based on the fees of any one provider, in favor of a calculation of such charge based on average fees of all providers in a given geographical area. By so doing, the amendment created a conflict between the statute and the administrative rule. In cases of conflict, a statute takes precedence over an administrative rule. See Willette v. Air Prods., 700 So.2d 397, 401 (Fla. 1st DCA 1997). Accordingly, we REVERSE the ruling below, and REMAND for further proceedings consistent with this opinion.

WOLF and KAHN, JJ., concur.

      . See 31 Fla. Admin. W. 1504-05 (Apr. 22, 2005).

      . This rule was renumbered as the Division of Workers' Compensation was moved among different governmental departments and agencies; effective July 1, 2002, it was known as 4L-7.100 (under the Department of Insurance and, as to the Medical Services Unit, under AHCA), and, effective January 1, 2003, it became known as rule 69L-7.100 (under the Department of Financial Services and, as to the Medical Services Unit, under AHCA). See Lloyd Harger, Workers’ Compensation, A Brief History, http://www.fldfs.com/WC/ history.html (last visited February 27, 2007).


text:
    Brad E. HUTCHINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0194.
    District Court of Appeal of Florida, First District.
    June 27, 2007.
    Michael Rayne of Law Offices of Michael Rayne, Tallahassee, for Petitioner.
    Brad E. Hutchinson, pro se,
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is hereby granted and petitioner is afforded a belated appeal from judgments and sentences in Leon County case number 2005CF1496. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). Counsel shall be appointed for petitioner for the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    Tony JONES, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D07-0418.
    District Court of Appeal of Florida, First District.
    June 27, 2007.
    Tony Jones, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

In Jones v. Florida Parole Commission, 944 So.2d 1244 (Fla. 1st DCA 2006), this court affirmed the circuit court’s denial of a petition on the merits, quashed the circuit court’s order imposing a lien on Petitioner’s trust account to recover filing fees, and reversed for further proceedings. Petitioner now petitions this court for a writ of mandamus, asking this court to enforce its mandate and representing that he has not received any refund of the monies taken pursuant to the lien. The Florida Parole Commission has responded to the petition, conceding that Petitioner’s claims are well-taken. Accordingly, the petition is hereby granted, and the circuit court is directed to issue an order complying with the mandate in this court’s case number 1D06-1573 within 15 days of issuance of mandate in this cause.

PETITION GRANTED.

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    David Wayne KRAUSE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1610.
    District Court of Appeal of Florida, First District.
    June 27, 2007.

      Patrece C. Cashwell, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is hereby granted and petitioner is afforded a belated appeal from judgments and sentences in Escambia County case numbers 2004-CF-5622, 2005-CF-6757, 2003-CF-1644B, 2003-CF-1939B, 2003-CF-1940B, 2003-CF-2198, 2003-CF-2199, 2003-CF-2200, 2003-CF-2201, 2003-CF-2202, 2003-CF-2233, 2003-CF-2274, 2003-CF-2414, and 2003-CF-2941. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

Counsel shall be appointed for petitioner for the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    Thomas ROWLIE, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-6375.
    District Court of Appeal of Florida, First District.
    June 27, 2007.
    Thomas Rowlie, Petitioner, pro se.
    Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks review of the circuit court’s order denying his petition for writ of mandamus, and refusing to remove a lien on his inmate trust account imposed to recover circuit court costs and fees. The mandamus petition challenged the Florida Parole Commission’s suspension of petitioner’s presumptive parole release date. We deny his petition for writ of certiorari, insofar as it challenges denial of the petition for writ of mandamus filed in circuit court.

However, the action in the circuit court was a collateral criminal proceeding pursuant to Spaziano v. Florida Parole Commission, — So.2d -, 2006 WL 1565289 (Fla. 1st DCA June 9, 2006). See also Brooks v. Fla. Parole Comm’n, 948 So.2d 801 (Fla. 1st DCA 2006) (citing Spa-ziano and holding that the petition for writ of mandamus challenging the Commission’s decision to suspend the petitioner’s presumptive parole release date is a collateral criminal proceeding, and that the prison indigency lien provision does not apply). Although the circuit court agreed that the current state of the law precluded the imposition of a lien on petitioner’s trust account, the court refused to vacate the lien on the ground that the issue was moot because petitioner’s filing fees had already been paid in full. This court has previously ruled that “[i]f a lien is erroneously placed on an inmate’s account, the inmate is entitled to removal of the lien and reimbursement of the funds that were withdrawn from the account to satisfy the lien. Until and unless the funds are reimbursed, the matter is not moot.” Turner v. McDonough, 949 So.2d 1106, 1107 (Fla. 1st DCA 2007) (citation omitted).

Accordingly, the petition for writ of cer-tiorari is granted insofar as it seeks relief from an unauthorized lien. We vacate the order placing a lien on petitioner’s inmate trust account, and remand for entry of an order directing the reimbursement of those funds withdrawn from his account pursuant to the lien. The petition for writ of certiorari is otherwise denied.

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


text:
    Garrett WRIGHT, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-5778.
    District Court of Appeal of Florida, First District.
    June 27, 2007.

      Garrett Wright, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In this petition for writ of certiora-ri, Petitioner challenges the circuit court’s denial of his petition for writ of mandamus, and the imposition of a lien placed on his inmate trust account. The petition for writ of mandamus challenged a disciplinary proceeding, which adversely affected Petitioner’s ability to earn gain-time. Based on our review of the record, we conclude that the circuit court properly denied the petition for writ of mandamus. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Consequently, the petition for writ of certiorari challenging the denial of the petition for writ of mandamus is DENIED.

However, Petitioner’s mandamus petition challenged the loss of his ability to earn gain-time. Because his challenge had the potential of affecting the time he will spend in prison, the circuit court departed from the essential requirements of law by placing a lien on his inmate trust account to pay for court costs incurred by filing the mandamus petition. Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003); Yasir v. McDonough, 31 Fla. L. Weekly D1459, — So.2d -, 2006 WL 1419271 (Fla. 1st DCA May 25, 2006). The petition for writ of certio-rari challenging the imposition of a lien on Petitioner’s inmate account is GRANTED, and the order imposing the lien is QUASHED.

DAVIS and POLSTON, JJ., and LAWRENCE, Jr., L. ARTHUR, Senior Judge, concur.


text:
    Juan AQUINO, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5681.
    District Court of Appeal of Florida, First District.
    June 27, 2007.
    Juan Aquino, pro se, Appellant.

      Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Juan Aquino, appeals an order summarily denying his amended post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Concluding that the trial court erred in ruling that the amended motion was untimely and successive, we reverse the order and remand. See Haag v. State, 591 So.2d 614, 617 (Fla.1992) (adopting the mailbox rule, which provides that a motion is considered filed when a pro se inmate presents it to the correctional institution for mailing); Nunez-Medina v. State, 817 So.2d 937, 939 (Fla. 1st DCA 2002) (“The restriction against successive motions on the same grounds is applied only when the grounds raised were previously adjudicated on their merits, and not where the previous motion was summarily denied or dismissed as legally insufficient.”). On remand, the trial court is instructed to determine whether Appellant’s amended motion is facially sufficient. If the court so determines, it must attach portions of the record conclusively refuting Appellant’s claims, hold an evidentiary hearing, or grant relief.

REVERSED and REMANDED for further proceedings.

DAVIS and POLSTON, JJ., and LAWRENCE, Jr., L. ARTHUR, Senior Judge, concur.


text:
    Michael RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5387.
    District Court of Appeal of Florida, First District.
    June 27, 2007.
    Michael Ramos, pro se, Appellant.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We vacate the October 6, 2006, lower court’s order denying the appellant’s Florida Rule of Criminal Procedure 3.850 motion and the February 22, 2007, order denying the appellant’s motion to vacate the October 6 order because the lower court did not have jurisdiction to rule on these motions as the appellant’s direct appeal in the underlying case is pending in this Court. See Daniels v. State, 712 So.2d 765 (Fla.1998). We remand with directions for the lower court to stay the proceedings until the direct appeal is resolved or to dismiss the claim without prejudice to refile if the appellant receives an adverse decision on his direct appeal and jurisdiction returns to the lower court. If refiled, the appellant’s motion will not be subject to the restriction against successive motions under rule 3.850(f). See id.; Nelson v. State, 796 So.2d 1244 (Fla. 1st DCA 2001).

VACATED AND REMANDED.

BARFIELD, ALLEN, and HAWKES, JJ., concur.


author: WARNER, J.

text:
    Peterson PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-298.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The appellant, Peterson Paul, challenges his convictions for attempted first degree murder with a firearm and shooting a deadly missile. He claims that the trial court erred in overruling his objection to the prosecutor’s improper appeal to sympathy in his closing argument. We conclude that the trial court did not abuse its discretion in overruling the objection. He also complains that he is not subject to PRR sentencing on the charge of shooting a deadly missile. Based upon State v. Hearns, — So.2d —, 2007 WL 1215452 (Fla. Apr.26, 2007), we agree.

While at home one evening, Bernard Jones, the victim, was shot by Paul. Jones had known Paul from the neighborhood for several years. On the night of the shooting, Paul had come to Jones’ home and had conversed with him about purchasing a vehicle before Paul fired shots at him. The next day Jones identified Paul in a photographic lineup prepared by the police.

Paul was charged by information with attempted first degree murder with a firearm (count I) and shooting a deadly missile (count II). At trial, Paul presented an alibi through the testimony of his mother. She testified that Paul was home sick at the time of the shooting, and she was with him. Defense counsel also sought to pursue a misidentification defense when Jones explained on cross-examination that he had trouble reading his deposition because his eyesight had been affected by a brain aneurism. Defense counsel also attempted to impeach Jones at trial. Jones had testified that when Paul began to shoot, Jones retreated into his house to get his gun. During Jones’ deposition, he denied owning a gun. At trial he explained that the gun in the house belonged to his deceased uncle. The jury convicted Paul as charged.

Paul claims that the prosecutor improperly appealed to jury sympathy, and the trial court erred in overruling his objection to the argument. Improper prosecutorial closing argument is reviewed under the abuse of discretion standard. See Durocher v. State, 596 So.2d 997, 1000 (Fla.1992). As a general proposition, wide latitude is permitted in arguing to a jury during closing argument. Breedlove v. State, 413 So.2d 1, 8 (Fla.1982). However, comments give rise to error warranting mistrial when they are so prejudicial as to vitiate the entire trial. Mannarino v. State, 869 So.2d 650, 652 (Fla. 4th DCA 2004). Whether this is so depends upon the facts of each case.

Standing alone, the prosecutor’s remarks appear to be an improper appeal for sympathy. However, in the context of this shooting case we cannot say that they require reversal. The defense attempted to paint the victim as an untruthful gun owner. Rather than an appeal to sympathy, we interpret the prosecutor’s remarks as essentially telling the jury that even if the jury did not like the victim, it should still apply the law to the case and find Paul guilty. The comments in this case did not vitiate the entire trial. We therefore affirm the conviction.

Paul also challenges his enhanced sentence for shooting into an occupied building. He claims that a conviction of shooting into a dwelling in violation of section 790.19 does not constitute a predicate offense for enhanced sentencing under the Prison Releasee Reoffender statute. § 775.082(9)(a), Fla. Stat. Section 790.19, Florida Statutes, criminalizes shooting deadly missiles as follows:

Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, ... shall be guilty of a felony of the second degree.

§ 790.19, Fla. Stat. (emphasis added). The PRR statute permits the imposition of a PRR sentence if the crime is “[a]ny felony that involves the use or threat of physical force or violence against an individual.” § 775.082(9)(a)l.o., Fla. Stat. (2003).

In construing identical language found in the definition of “forcible felony” used for purposes of imposing a violent career criminal designation, see §§ 775.084(l)(d), 776.08, Fla. Stat., the supreme court has held that the foregoing language requires violence to be a necessary element of the felony. See State v. Hearns, — So.2d —, 2007 WL 1215452 (Fla. Apr.26, 2007); see also Perkins v. State, 576 So.2d 1310 (Fla.1991). The Hearns court wrote:

[I]n the strict and literal sense required by Florida law, this language can only mean that the statutory elements of the crime itself must include or encompass conduct of the type described. If such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of the final clause of section 776.08. Perkins, 576 So.2d at 1313 (emphasis added). Therefore, Perkins held that for an offense to be a forcible felony under section 776.08, the “use or threat of physical force or violence” must be a necessary element of the crime. If an offense may be committed without the use or threat of physical force or violence, then it is not a forcible felony.

— So.2d —, —, 2007 WL 1215452 at *4. The Hearns court applied that reasoning to the crime of battery on a law enforcement officer and concluded that it was not a forcible felony because it could be committed by a mere touching which would not necessarily involve “the use or threat of physical force or violence” within the meaning of the statute.

Hearns also cites to Hudson v. State, 800 So.2d 627 (Fla. 3d DCA 2001). There, the Third District held that a violation of section 790.19 for shooting into a building did not constitute a forcible felony for purposes of enhanced sentencing under the YCC statute, because the use or threat of physical force against any individual was not a necessary element of the offense.

Under the PRR statute the result must be the same, as the forcible felony language is exactly the same. As the court noted in Hearns, “We have held that where the Legislature uses the exact same words or phrases in two different statutes, we may assume it intended the same meaning to apply. See Goldstein v. Acme Concrete Corp., 103 So.2d 202 (Fla.1958).” — So.2d —, —, 2007 WL 1215452 at *5.

The state relies on Thomas v. State, 933 So.2d 45 (Fla. 4th DCA 2006), where this court did not simply look to the elements of the crime to determine whether robbery by sudden snatching fit within the same “catch-all” forcible felony provision of the PRR statute. In explaining our result we said:

we affirmed the sentence because the PRR statute allows for the imposition of a PRR sentence for one of the enumerated felonies or under section 775.082(9)(a)l.o. for “[a]ny felony that involves the use or threat of physical force or violence against an individual” and the evidence adduced at trial was to the effect that the victim and the defendant struggled over the victim’s purse and the defendant essentially dragged or pulled the victim toward the rear of her car.

Id. at 47 (emphasis added). Thus, in Thomas we did not look exclusively to the statutory elements of the crime. This is contrary to Hearns by which we are now bound. Therefore, Paul is not subject to PRR sentencing on a conviction for a violation of section 790.19 on remand.

For the foregoing reasons we affirm the conviction but reverse and remand for re-sentencing in accordance with this opinion.

POLEN and GROSS, JJ., concur.


author: HAZOURI, J.

text:
    Doron STROD, Appellant, v. Edna LEWENSTARK, Appellee.
    No. 4D06-4351.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Howard Poznanski, Boca Raton, for appellant.
    Marc A. Silverman of Frank, Weinberg & Black, P.L., Plantation, for appellee.
   HAZOURI, J.

Appellant, Doron Strod, appeals the trial court’s entry of a final judgment domesticating a foreign judgment in favor of Ap-pellee, Edna Lewenstark. Strod argues, inter alia, that the trial court’s entry of final judgment violated his due process rights because Lewenstark failed to comply with section 55.604, Florida Statutes (2006), in notifying him of her domestication action. We agree and reverse.

Strod filed two legal claims in the State of Israel against his estranged wife and Lewenstark, his wife’s mother. The Israeli court entered a judgment rejecting both of Strod’s claims and required all parties to bear their own expenses and attorneys’ fees. On July 6, 2006, Lewenstark recorded the Israeli judgment in the public records of Broward County. Thereafter, on July 19, 2006, Lewenstark recorded an “affidavit pursuant to § 55.604(1), Fla. Stat.,” in the Broward County public records.

On September 14, 2006, Lewenstark filed a motion for entry of final judgment of domestication of foreign judgment against Strod in Broward County circuit court. On September 20, 2006, Lewens-tark allegedly sent Strod a notice of hearing on her motion to domesticate foreign judgment. The hearing was scheduled for October 10, 2006. However, without a hearing, the trial court granted Lewens-tark’s motion and entered a final judgment domesticating the foreign judgment on October 4, 2006. At some point Strod became aware of Lewenstark’s motion and on October 9, 2006, filed a motion to dismiss for lack of personal jurisdiction and motion to dismiss for lack of subject matter jurisdiction or, in the alternative, objection to recognition and enforcement of out-of-country foreign judgment.

Strod’s first claim of error is that the trial court deprived him of due process in entering final judgment where Lewenstark failed to comply with section 55.604. We agree. Because this issue involves the interpretation of a statute, the de novo standard of review applies. Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 948 So.2d 705, 709-10 (Fla.2007) (citation omitted).

Section 55.604(l)(a), Florida Statutes (2006), provides:

Except as provided in s. 55.605, an out-of-country foreign judgment meeting the requirements of s. 55.603 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. Procedures for recognition and enforceability of an out-of-country foreign judgment shall be as follows:
(1) The out-of-country foreign judgment shall be filed with the clerk of the court and recorded in the public records in the county or counties where enforcement is sought.
(a) At the time of the recording of an out-of-country foreign judgment, the judgment creditor shall make and record with the clerk of the circuit court an affidavit setting forth the name, social security number, if known, and last known post-office address of the judgment debtor and of the judgment creditor.

Promptly upon the recording of the affidavit and the foreign judgment, the clerk must mail notice of the recording, by registered mail with return receipt requested, to the judgment debtor at the address in the affidavit and shall note the docket accordingly. § 55.604(l)(b), Fla. Stat. (2006). A judgment creditor may also mail a notice of recording to the judgment debtor and record proof of mailing with the clerk. Id. If proof of mailing by the judgment creditor has been recorded, the failure of the clerk to mail notice of recording will not affect enforcement proceedings. Id.

Section 55.604(2), Florida Statutes (2006), states that the judgment debtor has 30 days after service of the notice to file a notice of objection with the clerk specifying grounds for nonrecognition or nonen-forceability. If the judgment debtor fails to file a timely notice of objection, the clerk must record a certificate stating no objection has been filed. § 55.604(4), Fla. Stat. (2006). Moreover, upon any party’s application, and after proper notice, the circuit court has jurisdiction to conduct a hearing, determine the issues, and enter an order granting or denying recognition of the foreign judgment. § 55.604(3), Fla. Stat. (2006).

Strod relies on Frymer v. Brettschneider, 696 So.2d 1266 (Fla. 4th DCA 1997), where this Court recognized:

The purpose of the [Uniform Out-of-Country Foreign Money-Judgment Recognition Act’s] filing and mailing requirements is to ensure that the judgment debtor receives notice that another is seeking to enforce a judgment against him in a Florida court and that the debtor is afforded an opportunity to voice any objections that he may have to such enforcement. Where the purpose of the statute has not been diminished or harmed and where due process has been afforded, this court has held that substantial compliance with a statute’s notice procedures is sufficient.

Id. at 1268 (citations omitted).

Strod’s due process rights were violated in this case, as Lewenstark and the clerk did not comply with section 55.604’s notice requirements either fully or substantially. First, there is no evidence in the record that the clerk mailed, by registered mail with return receipt requested, notice of the recording of the foreign judgment to Strod’s last known address appearing in Lewenstark’s affidavit. See § 55.604(l)(b), Fla. Stat. (2006). While the record contains a letter from Lewenstark dated July 17, 2006 that suggests it was mailed by certified mail, return receipt requested, the attached certified mail receipt has neither a postal seal on it proving mailing nor any address for Strod set forth therein. Further, there is no return receipt card in the record, or a return receipt card including Strod’s signature or indicating that delivery was attempted but unsuccessful.

Section 55.604(l)(b) instructs that the clerk’s failure to mail notice of recording to the judgment debtor will not affect enforcement proceedings, if proof of mailing by the judgment creditor has been recorded with the clerk. § 55.604(l)(b), Fla. Stat. (2006). Lewenstark claims her July 17, 2006 letter to Mr. Strod and affidavit of mailing filed with the clerk satisfy this requirement. However, Lewenstark’s affidavit and letter do not constitute proof of mailing. Thus, there is no record evidence that establishes that Lewenstark or the clerk mailed proper notice of recording to Strod.

Based on the foregoing, we reverse and remand, directing the trial court to vacate the final judgment domesticating the foreign judgment. Accordingly, we need not reach Strod’s other arguments on appeal.

Reversed and Remanded with Directions.

WARNER and KLEIN, JJ., concur.


author: STEVENSON, C.J.

text:
    Tommy Ray ABBOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3100.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Rehearing Denied July 19, 2007.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Appellant, Tommy Ray Abbott, appeals his convictions and sentences for two counts of lewd or lascivious molestation of a child under twelve years of age. We affirm in all respects, but write to address Abbott’s assertions that fundamental error occurred when the trial court’s instructions to the jury included uncharged acts and that his counsel was ineffective.

On April 17, 2006, the State filed a two-count information against Abbott. Count one alleged that “Abbott did, being 18 years of age or older, intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of [the victim], a person less than 12 years of age, in violation of Florida Statute [section] 800.04(5)(b).” As to count two, the State contended that “Abbott did, being 18 years of age or older, intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of [the victim], a person less than 12 years of age, or did force or entice [the victim] to so touch the defendant, in violation of Florida Statute [section] 800.04(5)(b).”

The evidence at trial centered on the victim’s allegations that Abbott touched her breasts and her vagina and, on one occasion, placed her on top of him and moved her up and down. The trial judge instructed the jury, in the absence of an objection, that it could find Abbott guilty of both counts if it determined that

Tommy Abbott handled or fondled [the victim] in a lewd, lascivious or indecent manner or Tommy Abbott committed upon [the victim] or forced or enticed [the victim] to actually or commit simulated sexual intercourse, masturbation or any act which simulated that — that sexual battery was being or would be committed on [the victim]. Or C, that Tommy Abbott knowingly committed a lewd or lascivious act in the presence of [the victim].

On appeal, Abbott argues that the instructions were erroneous since they also encompassed masturbation or the commission of other lewd acts in the victim’s presence, which were not a part of the charged offense or the evidence at trial.

“A party’s failure to object in the trial court precludes appellate review of an erroneous jury instruction unless the error is deemed fundamental.” Miller v. State, 828 So.2d 445, 447 (Fla. 4th DCA 2002). Abbott contends that fundamental error occurred because the jury returned a general verdict, and it is impossible to determine whether the jury convicted him of the charged or uncharged offenses. On this record, we cannot find fundamental error. An erroneous jury instruction is fundamental when it “ ‘reachfes] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). Consequently, the determination of whether fundamental error occurred in such cases requires that the “instructions be examined in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case.” Garzon v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006), review granted, 956 So.2d 455 (Fla.2007). Here, the uncharged crimes were never at issue during Abbott’s trial, and the State never argued or presented evidence that Abbott committed those acts.

In San Martin v. State, 717 So.2d 462 (Fla.1998), the Florida Supreme Court stated that “[w]hile a general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground or a legally inadequate theory, reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient.” Id. at 470 (footnotes omitted). And, in Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), the United States Supreme Court stated:

“It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance — remote, it seems to us — that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.”

Id. at 59-60, 112 S.Ct. 466 (quoting United States v. Townsend, 924 F.2d 1385, 1414 (7th Cir.1991)).

In light of our affirmance on this issue, we note that Abbott’s reliance on Trahan v. State, 913 So.2d 729 (Fla. 5th DCA 2005), is misplaced as that case is factually distinguishable. In Trahan, the defendant was charged by information with touching or rubbing the victim’s vaginal area, but the jury was instructed that it could find Trahan guilty if it determined that he “touched the victim’s vagina or buttocks, or clothing covering either.” Id. at 729. Unlike the absence of evidence pertaining to the uncharged offenses at Abbott’s trial, evidence was presented during Trahan’s trial that he touched the victim’s buttocks in addition to her vaginal area. See id. We are also unpersuaded by Abbott’s reliance on Zwick v. State, 730 So.2d 759, 760 (Fla. 5th DCA 1999), because that opinion does not indicate whether the prosecution presented either evidence or arguments about the uncharged acts that were included in the jury instructions.

We next address Abbott’s claim that his trial counsel was ineffective. “Generally, ineffective assistance of trial counsel will not be cognizable on direct appeal when the issue has not been raised before the trial court.” Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987). “An exception to the general rule exists where both counsel’s deficient performance and the prejudice to the defendant are apparent on the face of the record.” Grant v. State, 864 So.2d 503, 505 (Fla. 4th DCA 2004). Whereas the claim of ineffective assistance is not apparent from the record, we decline to consider this issue; however, our holding is without prejudice to Abbott asserting this claim in a motion for postconviction relief.

Affirmed.

POLEN and TAYLOR, JJ., concur.


author: MAY, J.

text:
    J.W. a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2035.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.

      Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

A juvenile appeals a disposition order in which the trial court departed from the recommendation of the Department of Juvenile Justice [DJJ] for continued probation and instead committed him to a high risk residential sex offender program. He raises two issues. First, he argues the trial court erred in departing from DJJ’s recommendation without articulating sufficient reasons why. Second, he argues the court erred in imposing a special condition that the juvenile not have contact with anyone 16 or under unless accompanied by an adult with knowledge. We agree with both arguments and reverse and remand the case for entry of a disposition order in compliance with DJJ’s recommendation.

The juvenile pleaded no contest to two counts of lewd and lascivious molestation by a person under 18 against a person older than 12 but under 16. The trial court placed the juvenile on probation with the special condition that he complete sexual offender treatment and not have contact with any female under 12 unless supervised by a person 21 years of age or older with knowledge of the offense. Almost a year and a half later, his probation officer filed an affidavit for violation of probation and alleged that the juvenile had failed to attend the required counseling and had not reported to his probation officer. The juvenile admitted the violation with the understanding that the State would recommend to the trial court that it follow the DJJ’s recommendation for continued probation.

The pre-disposition report revealed that the juvenile was now “regularly attending sexual offender counseling” weekly and was participating in all sessions. He had a good relationship with his family and was doing well. The court also had access to the original pre-disposition report that indicated the child was in need of counseling available in the community to deal with his father’s death.

Despite these recommendations, the trial court committed the juvenile to a high-risk residential, sexual offender program. The court stated: “[t]he reason I am disregarding the recommendations is that the child has already been on probation for these offenses ... [and] his excuse that he could not attend counseling due to lack of transportation seems to be ludicrous since he’s supposedly attending counseling on a regular basis.” The court then checked a box on the disposition order that provided: “[t]he assessment and restrictiveness level recommended by DJJ was disregarded because a preponderance of the evidence established the need for a higher level based upon the child’s sophistication, maturity, past record and history; nature of the offense and the manner in which it was committed; need to protect the community; [and the] need to provide more services to the child.” The court ordered that as a condition of his post-commitment supervision, the juvenile was to “have no contact with anyone 16 or under unless accompanied by an adult with knowledge.”

Defense counsel moved to correct the disposition or commitment order. The motion cited three reasons for the needed correction: (1) the reasons articulated by the court were invalid and unsupported by the evidence; (2) the boilerplate reasons provided in the order were not articulated at the hearing; and (3) the boilerplate reasons were not supported by substantial, competent evidence. The trial court denied the motion.

We review disposition orders for an abuse of discretion. A.W. v. State, 862 So.2d 858, 859 (Fla. 4th DCA 2003) (citing S.L.K. v. State, 776 So.2d 1062, 1064 (Fla. 4th DCA 2001)). The juvenile makes the same arguments on appeal as those raised in the motion to correct the disposition or commitment order. We agree with each of them.

First, the only reason articulated by the trial court for departing from the DJJ’s recommendation was that the court found the defendant’s reason for not attending counseling “ludicrous.” This is not a justification for departing from the recommendation, but rather the basis for the trial court’s finding the juvenile willfully violated his probation. Second, the boilerplate reasons for the departure indicated by a checkmark on the form disposition order were not articulated at the hearing.

Third, the evidence did not support either the articulated or written reason for the departure. In fact, the evidence established just the opposite. The pre-disposition report revealed the juvenile was doing well at home and at school. He had overcome the transportation problems that had caused him to miss counseling by fixing his bicycle. At the time of the disposition, the juvenile was regularly attending counseling and participating well.

Further, the trial court restricted the juvenile from any contact with males or females under the age of 17 unless accompanied by an adult with knowledge of the offense. The underlying incident involved the fondling of a female schoolmate when the juvenile was 12 years of age. He is currently 16 years of age. This special restriction was broader than that initially imposed as a condition to his probation and unnecessary to address the concern raised by the underlying offense. In addition, the restriction prohibited the juvenile from contact with anyone his age without adult supervision. Compliance with such a condition would be impossible. See Peters v. State, 555 So.2d 450, 451 (Fla. 4th DCA 1990).

For these reasons, we find the trial court’s departure from the recommendation of the DJJ to be an abuse of discretion. We remand the case to the trial court to modify the disposition order in compliance with the recommendation of the DJJ.

Reversed and Remanded.

SHAHOOD and GROSS, JJ„ concur.


author: GROSS, J.

text:
    Blanchard ST. VAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-553.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Carey Haughwout, Public Defender, Patrick B. Burke and Joseph Maryuma, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

After a jury trial, appellant Blanchard St. Val was convicted of one count of attempted first degree murder with a firearm, one count of attempted second degree murder, and two counts of shooting into an occupied vehicle. The evidence at trial was that he shot at two people in a car; one victim was wounded in the arm and head. The state presented eyewitness testimony from victims acquainted with St. Val, in addition to ballistics and DNA expert testimony.

At sentencing, the trial judge took St. Val’s lack of remorse into consideration as part of her broader rejection of his characterization of the crime as an accident in which someone just happened to get shot.

We reject appellant’s contention that a sentencing judge may never take a defendant’s lack of remorse into consideration when imposing sentence. If a defendant is remorseful, it means that he is sorry he committed the crime for which he is to be sentenced. One who so regrets his acts may not commit such acts in the future. This is the type of factor that judges have historically taken into consideration in imposing sentence.

In 1930, Roscoe Pound described the received ideal of a judge imposing sentence, “given shape by the dominant moral, social, and economic conceptions of the time:”

[A] judge imposing sentence must go thoroughly into the details of the conditions, internal and external, under which an act was done. He must look into the motive of the act and its consequences. The legal ideal is one of exact adjustment of the penalty to the particular case by way of compensation for the generality of the legal precept which was applied mechanically in determining conviction.

Roscoe Pound, CRiminal Justice in Ameeica pp. 46-47 (1930). Contrition has traditionally been part of a defendant’s presentation to a sentencing judge. Arthur Train’s description of the elements of a defendant’s presentation to the court at sentencing has changed little in 80 years:

[F]ew sentences are imposed without a more or less lengthy appeal for clemency from the defendant’s lawyer, who usually does not confíne himself merely to the contrition of the defendant, his past respectability and his pledges to lead a new and better life, but is prone to discourse volubly upon the reputable connections of the defendant, the hardship which a sentence will impose upon his family, and the fact that the complainant or those who have been interested in the prosecution now have a profound sympathy for the prisoner. The gist of many of these appeals is to the effect that because the defendant, by reason of his education and opportunities, ought to have known better than to commit crime, he should now, since he has discovered his mistake, be excused from paying the penalty.

ArthuR Train, The Prisoner at the Bar, pp. 354-55 (1925).

The supreme court has held that a “trial court violates due process by using a protestation of innocence against a defendant” at sentencing. Holton v. State, 573 So.2d 284, 292 (Fla.1990); see A.S. v. State, 667 So.2d 994, 996 (Fla. 3d DCA 1996); Johnson v. State, 948 So.2d 1014 (Fla. 3d DCA 2007). This court followed this principle when it reversed a sentence where it appeared that the “defendant was being punished for maintaining his innocence.” Lyons v. State, 730 So.2d 833, 834 (Fla. 4th DCA 1999). In dicta, we indicated that a defendant “may not be additionally punished for failing to show remorse.” Id. As authority for that proposition, we cited K.Y.L. v. State, 685 So.2d 1380, 1381 (Fla. 1st DCA 1997). KY.L. stated that “lack of contrition or remorse is a constitutionally impermissible consideration in imposing sentence.” As authority for this statement, K.Y.L. cited Holton and A.S. K.Y.L., 685 So.2d at 1381. K.Y.L. misstates the holdings of Holton and AS.; both cases involve defendants who maintained their innocence at sentencing, not defendants who did not contest their commission of criminal acts, but who failed to exhibit remorse for them. The first district recognized this distinction in Peake v. State, 490 So.2d 1325, 1326 (Fla. 1st DCA 1986); the court upheld an enhanced sentence imposed on a defendant for lewd assault on a child, where the defendant did not protest his innocence, but exhibited a lack of remorse when he argued in mitigation that the eight year old victim had initiated the sexual encounters with him.

This is not a case where a defendant was punished for protesting his innocence as in A.S., Johnson, and Holton. Nor is it a case where a court used lack of remorse as an aggravating factor in a first degree murder prosecution. See Tanzi v. State, 32 Fla. L. Weekly S223, — So.2d —, 2007 WL 1362862 (Fla. May 10, 2007); Jackson v. Wainwright, 421 So.2d 1385 (Fla.1982). We certify conflict with K.Y.L., which holds that a defendant’s lack of contrition or remorse is “a constitutionally impermissible consideration in imposing sentence” in all circumstances. 685 So.2d at 1381.

SHAHOOD and MAY, JJ., concur.


text:
    Amos RAGAN, Appellant, v. James McDONOUGH, Secretary of the Department of Corrections, and Florida Parole Commission, Appellees.
    No. 4D07-191.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Amos Ragan, South Bay, pro se.
    Connie Lynn Beach, Assistant General Counsel, Florida Parole Commission, Tallahassee, for appellees.
   PER CURIAM.

In October, 2006, appellant filed a petition for writ of habeas corpus attacking the Parole Commission’s 2002 revocation of his parole. The circuit court issued an order to show cause directing the Commission to tell the court why it should not grant the relief requested. The Commission filed its response. Five days later, the circuit court entered its order denying the petition, ruling that the challenge to the 2002 order was time barred pursuant to section 95.11(5)(f), Florida Statutes (2006).

Appellant contends that the order denying his petition was prematurely entered, because it issued before he had a chance to file his reply. Appellant moved for rehearing and attached his proposed reply to the motion. The circuit court denied the motion for rehearing.

Florida Rule of Appellate Procedure 9.100(k) indicates that a petitioner in a habeas corpus proceeding “may serve a reply.” Both Salow v. State, 766 So.2d 1222 (Fla. 5th DCA 2000), and Haralson v. State, 844 So.2d 817 (Fla. 5th DCA 2003), required circuit courts to reconsider denials of habeas corpus petitions because the courts rendered decisions without giving petitioners a chance to file a reply. See Sheppard v. Crosby, 891 So.2d 1156 (Fla. 4th DCA 2005) (involving mandamus proceeding). The Commission concedes that the circuit court should have given appellant an opportunity to file a reply before ruling on the petition.

The purpose of a reply is to avoid an affirmative defense. See Fla. R. Civ. P. 1.100(a). The Commission asserted the affirmative defense of statute of limitations. Appellant’s proposed reply said that (1) he “did not possess personal knowledge ... that he had a right to seek judicial review” of the order revoking parole and (2) the Commission “impeded his right to timely petition for judicial review” by failing to “advise him at the conclusion of the revocation process of his right to seek judicial review.” As the Commission notes in its brief, the issue of the Commission’s obligation to notify a releasee of his right to seek review of an order revoking supervision was not litigated in the circuit court.

We reverse and remand to the circuit court to consider the issue raised in the proposed reply: whether appellant may avoid the statute of limitations if the Commission failed to notify him of his right to seek review of the order revoking supervision.

Reversed and remanded.

SHAHOOD, GROSS and MAY, JJ., concur.