text:
    Casey CARR, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1871.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Hardee v. State, 516 So.2d 110 (Fla. 4th DCA 1987), approved by, 534 So.2d 706 (Fla.1988); see also State v. Retalic, 902 So.2d 315 (Fla. 5th DCA 2005).

MONACO, TORPY and COHEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Wayne HIRSCHMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1030.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2012.
    Robert W. Hirschman, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Salazar v. State, 995 So.2d 1058 (Fla. 4th DCA 2008).

SAWAYA, PALMER and MONACO, JJ., concur.


text:
    Earl JOHNSON, Jr., Appellant, v. Cesar CALDERON, et al., Appellee.
    No. 5D12-502.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2012.
    Earl Johnson, Jr., Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robert Dietz, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

SAWAYA, PALMER and LAWSON, JJ., concur.


text:
    Dennis R. MOOTY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-447.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2012.
    Dennis R. Mooty, Madison, pro se.

      No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

SAWAYA, PALMER, LAWSON, JJ., concur.


text:
    Arduwan COLLIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3672.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2012.
    Arduwan Collier, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

SAWAYA, PALMER and LAWSON, JJ., concur.


author: KHOUZAM, Judge.

text:
    REDLAND INSURANCE COMPANY, Appellant, v. CEM SITE CONSTRUCTORS, INC.; Charles E. McLeod III; Charles E. McLeod Jr.; Arlete Jorge, as parent of John P. Jorge and as Successor Personal Representative of the Estate of John P. Jorge; Auto Owners Insurance Company; Fresh Pack, Inc.; and Jesus J. Torres, Jr., Appellees.
    No. 2D11-2349.
    District Court of Appeal of Florida, Second District.
    May 9, 2012.

      Susan S. Lerner of Russo Appellate Firm, P.A., Miami; and Luks, Santaniello, Petrillo & Jones, Miami, for Appellant.
    James S. Cunha of Law Offices of James S. Cunha, P.A., West Palm Beach, for Ap-pellee Arlete Jorge, as parent of John P. Jorge and as Successor Personal Representative of the Estate of John P. Jorge.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Redland Insurance Company appeals the trial court’s order granting summary judgment in favor of the defendants below. Because summary judgment was improperly granted, we reverse and remand for further proceedings.

CEM Site Constructors, Inc. (CEM), is a corporation owned and managed by Charles McLeod Jr. In December 2008, CEM applied for and received a commercial auto insurance policy from Redland with an effective date of December 10, 2008. Included in the application was a “Commercial Auto Drivers List” that did not contain a definition for the term “driver.” The application and accompanying policy also did not indicate who should be named on the list. It was unclear whether the list should include only those employees who regularly drove for the company, or instead anyone who could conceivably be expected to drive for the company at any time. Some CEM employees were included on the drivers list, but Charles McLeod III was not.

On August 3, 2009, McLeod III was involved in an automobile accident while driving one of McLeod Jr.’s personal vehicles on company business. The accident resulted in the death of John P. Jorge, the driver of the other vehicle. Jorge’s personal representative sued CEM for his wrongful death, and CEM made a claim with Redland for liability coverage under the policy. Redland denied the claim because of CEM’s failure to include McLeod III on the drivers list.

In February 2010, Redland filed a two-count declaratory action against a number of defendants, including CEM, McLeod Jr., McLeod III, and the personal representative of John P. Jorge. In the first count, Redland requested a declaration that it was entitled to rescission of the policy under section 627.409(1), Florida Statutes (2008), alleging that the failure to include McLeod III on the drivers list constituted a fraudulent, material misrepresentation rendering the entire policy void ab initio. Redland’s second count sought a declaration that, even if the entire policy was not void, McLeod III was excluded from coverage for failure to qualify as an “insured” under the policy’s terms because he was an employee driving a vehicle owned by a member of his household.

Following some discovery, the decedent’s personal representative moved for summary judgment, raising three grounds: first, that the terms of the application were ambiguous, specifically because the term “driver” was not defined anywhere in the policy; second, that McLeod III was not an employee at the time CEM completed and submitted the application; and third, that McLeod III qualified as an “insured” under the policy because he was not a member of McLeod Jr.’s household at the time of the collision.

At the summary judgment hearing, argument focused on the first ground. Specifically, the defendants below argued that because the term “driver” was not defined in the application, it was ambiguous, and therefore as a matter of law there could be no misrepresentation regardless of any of the factual issues in dispute. The defendants relied upon Great Oaks Casualty Insurance Co. v. State Farm Mutual Automobile Insurance Co., 530 So.2d 1053 (Fla. 4th DCA 1988), in support of this position, arguing that if there was any ambiguity over the term “driver,” then summary judgment would be appropriate. Redland argued in response that the issue of ambiguity involved material questions of fact not properly resolved by summary judgment.

The court granted the motion, noting that Great Oaks was controlling on the ambiguity issue because of Redland’s failure to define “driver” in its own application. After denying Redland’s Motion for Rehearing and/or Reconsideration, the court entered a final declaratory judgment, and Redland timely appealed.

We agree with Redland that the issue of ambiguity in this case involves material questions of fact not appropriate for summary judgment. “[A] motion for summary judgment is not a substitute for a trial on the merits.” Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995). Therefore, rather than resolving any disputed issues of fact, id., “the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, ‘the nonexistence of a genuine issue of a material fact,’ ” Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004) (quoting Besco USA Int’l Corp. v. Home Sav. of Am. FSB, 675 So.2d 687, 688 (Fla. 5th DCA 1996)). Summary judgment accordingly is appropriate only where “the state of the evidence is such that the nonmoving party will not be able to prevail at trial as a matter of law.” Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011). The burden in such circumstances is on the movant to “establish irrefutably that the nonmoving party cannot prevail were a trial to be held.” Id. This court reviews de novo a grant of summary judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Unlike the facts in Great Oaks, which were clear and not in dispute, there remain disputed issues of fact in the instant case. These issues include whether McLeod III was an employee of CEM, how often McLeod III drove for CEM when it completed the application, what effects prior dealings between the parties had on CEM’s understanding of the terms in the application, and whether Redland’s failure to use its Non-Specified Operators form impacted CEM’s ability to properly complete the application. Because the determination of ambiguity in this case involves disputed issues of fact, summary judgment was not appropriate. We therefore reverse the entry of summary judgment and remand for further proceedings.

Reversed and remanded.

KELLY and BLACK, JJ„ Concur.

      . Although it appears from the record that Redland at some point had previously employed a “Non-Specified Operators” form, which defined "specified operator” (apparently another term Redland used for "driver”), the form was not included in CEM’s application or policy.

      . Under the policy, an "insured” was defined in relevant part as "[CEM] for any covered 'auto,' " and "[ajnyone else while using with [CEM's] permission a covered 'auto' [CEM] own[s], hire[s] or borrow[s] except ... [CEM's] 'employee' if the covered 'auto' is owned by that ‘employee’ or a member of his or her household.”


author: LEVINE, J.

text:
    The BANK OF MONTREAL and Harris, N.A., Appellants, v. The ESTATE OF Jacques ANTOINE, and Ghislane C. Antoine, Appellees.
    No. 4D10-760.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.

      David S. Wood and Carrie Ann Wozniak of Akerman Senterfitt, Orlando, for appellants.
    Carlos F. Gonzalez, Brant C. Hadaway and Chad S. Purdie of Diaz Reus & Targ, LLP., Miami, for appellee Ghislane C. Antoine.
   LEVINE, J.

The issue presented is whether the trial court erred in denying the admission of the partial deposition that was not completed due to the death of the deponent, and in denying the admission of the deponent’s guilty plea in a related criminal case. We find that the trial court erred in excluding the partial deposition and the deponent’s guilty plea. We, therefore, reverse the trial court’s entry of a directed verdict and remand for a new trial. We also affirm as to the issue raised in appel-lee’s cross-appeal.

In his work for Harris Bank, Jacques Antoine was responsible for requisitioning official bank checks to cover expenses for relocating employees of the Bank of Montreal. Only Antoine had authority to access and make withdrawals from a certain business account. Antoine issued checks totaling $5.9 million to an Elizabeth Crowder, who had no affiliation with either bank. Of the $5.9 million issued to Crowder, about $1.7 million was issued back to the business account that Antoine had exclusively controlled.

In total, Antoine requisitioned 568 checks for “non-legitimate bank purposes,” and ultimately embezzled over $13 million from Bank of Montreal and Harris Bank. Subsequently, Antoine purchased real property in Weston, Florida for $640,000 with money from the same business account that was under his exclusive control. Eventually, Antoine pled guilty to criminal charges that were filed as result of the embezzlement.

Appellants Bank of Montreal and Harris Bank then filed a civil complaint against Antoine, Antoine’s wife, and Bank of America alleging counts for fraud, constructive trust, attachment, and garnishment. Appellants sought to impose an equitable lien on the property bought by Antoine in Weston. On March 6, 2007, Antoine, while in custody for the criminal charges to which he pleaded, testified at a deposition in connection with appellants’ civil case. Antoine’s wife was notified of the deposition and her counsel was present. Antoine admitted to using money from the business account at Harris Bank to buy the property in Weston. Antoine was then asked, “[T]he source of that money from your account at Harris was monies that were embezzled from the bank?” Antoine responded, “Yes.”

At that point the deposition was terminated due to the fact that Antoine had chest pains. On March 13, 2007, Antoine died before the deposition could be completed. Antoine’s estate was substituted as a party after Antoine’s death. Antoine’s wife moved to strike the deposition as being incomplete, inasmuch as the wife did not have an opportunity to cross-examine Antoine during the deposition. The wife also moved to strike Antoine’s plea agreement. The trial court granted the wife’s motions and deemed the partial deposition and plea agreement of Antoine inadmissible. The trial court determined that the banks failed to show that any of the tainted funds were used to purchase the property in Weston. The trial court accordingly did not award appellants an equitable lien on the Weston property and granted a directed verdict in favor of the wife. This appeal and cross-appeal ensue.

“A trial court’s decision to admit evidence is reviewed using the abuse of discretion standard of review, as limited by the rules of evidence.” Philippon v. Shreffler, 33 So.3d 704, 708 (Fla. 4th DCA 2010). “The general rule in Florida appears to be that ‘the right to cross-examine the witness must be accorded the party against whom the deposition is to. be used. A denial of this right, by lack of notice or in some other way, will render the deposition vulnerable to a motion to suppress.’ ” Brown v. Tanner, 164 So.2d 848, 854 (Fla. 1st DCA 1964) (Wigginton, J., concurring in part, dissenting in part) (citation omitted).

Former testimony is not excluded as hearsay, provided the declarant is unavailable and “the party against whom the testimony is now offered, or ... a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” § 90.804(2)(a), Fla. Stat.

However, Florida Rule of Civil Procedure 1.330(a) provides that

[a]t the trial ... any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying- in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead....

Hearsay which is inadmissible because it does not satisfy the provisions of the former testimony rule will still be admissible if it satisfies the provisions of rule 1.330. Dinter v. Brewer, 420 So.2d 932, 934 (Fla. 3d DCA 1982) (citing J. Moore & H. Bendix, 11 Moore’s Federal Practice VHI-262 (1976)). Thus, even though Antoine died before the wife’s attorney had an opportunity to cross examine him, the broad scope of rule 1.330 allows the admission of the entire deposition of Antoine to the extent it had progressed before his untimely death.

We are persuaded by the case of Derewecki v. Pennsylvania Railroad Co., 353 F.2d 436 (3d Cir.1965). In Derewecki, the plaintiff died from a heart attack fifteen minutes into a second deposition that was a continuation of the prior initial deposition. The defendant objected to the admissions of the depositions at trial “on the ground that they had not been completed and that it did not have the opportunity to exercise its ‘right’ to cross-examine” the plaintiff. Id. at 439. The Third Circuit Court of Appeals framed the issue before it as whether “the depositions were so incomplete by reason of the lack of cross-examination ... that to admit them into evidence constituted a denial of due process.” Id. at 440. The court centered its opinion on Federal Rule of Civil Procedure 26(d)(3), which stated that “[t]he deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: 1, that the witness is dead[.]” The court concluded that “adherence to the Rules of Civil Procedure is desirable and it appears that in the case at bar the conditions prescribed by Rule 26(d)(3) were adhered to.” Id. at 441. Similarly, in the present case we find it is desirable to adhere to the Florida Rules of Civil Procedure, in this case rule 1.330. Rule 1.330 contains similar language to rule 26(d)(3), which the Derewecki court relied on. Both rules serve the same objective: the admission of the deposition of a witness who is now dead, even before completion of cross-examination.

We are also persuaded by legal commentators who have discussed this particular, and somewhat unusual, situation. For example, one has explained that

Where the witness’ death or lasting illness would not have intervened to'prevent cross-examination but for the voluntary act of the witness himself or the party offering him — as, by a postponement or other interruption brought about immediately after the direct examination, it seems clear that the direct testimony must be struck out. Upon the same principle, the same result should follow where the illness is but temporary and the offering party might have reproduced the witness for cross-examination before the end of the trial. But, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems harsh measure to strike out all that has been obtained on the direct examination.... The true solution would be to avoid any inflexible rule, and to leave it to the trial judge to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a material loss.

3 Wigmore, Evidence § 1390 (2d ed. 1923) (footnotes omitted). See also Paulson v. Jefferies & Co., Inc., 2002 WL 34453504, at *4-5 (C.D.Cal. Mar. 20, 2002) (describing exclusion of deposition due to incomplete cross-examination resulting from witness’s death as a sanction that was not warranted where no fault was attributable to the proponent of the deposition).

Regarding a situation where the witness dies before the conclusion of cross-examination, another legal commentator has stated:

Here again it is usually said that the party denied cross-examination is entitled to have the direct testimony stricken.... [E]xclusion may very well be constitutionally compelled if the person was a state’s witness in a criminal case. Yet, at least in case of death, there is no adequate reason for striking the direct testimony.... No matter how valuable cross-examination may be, common sense tells us that the half-loaf of direct testimony is better than no bread at all.

1 McCormick, Evidence § 19 (Kenneth S. Broun ed., 6th ed. 2006) (footnotes omitted).

Early legal opinions have sustained the use of depositions where cross-examinations were not completed due to the death of the witness. In Fuller v. Rice, 70 Mass. 348 (1855), a deponent’s incomplete testimony was entered into evidence over objection that the deponent died before completing his testimony. The Chief Justice of the Supreme Judicial Court of Massachusetts found:

The deposition was rightly admitted under the circumstances. No general rule can be laid down in respect to unfinished testimony. If substantially complete, and the witness is prevented by sickness or death from finishing his testimony, whether viva voce or by deposition, it ought not to be rejected, but submitted to the jury with such observations as the particular circumstances may require.

Id. at 345.

In Forrest v. Kissam, 7 Hill 463 (N.Y.Sup.Ct.1844) (Walworth, Chancellor), another early legal opinion, New York’s Supreme Court of Judicature found that the trial court erred in rejecting the direct examination of a witness who died after the trial was adjourned but before the witness was cross-examined. The chancellor determined that

the decision of the referees in rejecting the testimony of Mr. Leggett was erroneous in point of law, and ... the judgment should be reversed.... [T]he plaintiff in error will of course be permitted to prove what Mr. Leggett swore to on his direct examination, in connection with the fact that he died before the adverse party had an opportunity to cross-examine him.

Id.

In Forrest, the highest court in New York specifically relied on historical cases to conclude that the direct testimony, without a cross-examination, would be admissible:

The earliest case on this subject is that of Lord Arundel v. Arundel, which was decided in the time of Lord Coventry, 1634. (1 Rep. in Ch. 90.) There, a witness who had been examined for the plaintiff, and was to have been cross-examined by the defendant, died before he could be cross-examined. Yet the court ordered his deposition to stand. In O’Callaghan v. Murphy, (2 Sch. & Lef. Rep. 158,) Lord Redesdale allowed the deposition of a witness to be read who had died after his direct examination had been completed, but before his cross-examination could be had.... Lord Redesdale compared it to the case of a witness dropping down dead at the trial at nisi prius, after his direct but before his cross-examination; in which case he thought the party producing the witness would not lose the benefit of the evidence he had already given.
And in the subsequent case of Nolan v. Shannon, (1 Moll. Rep. 157,) which came before Lord Chancellor Hart about thirty years later, where the witness had died the day after his examination in chief, and before he could be cross-examined, the chancellor directed that the deposition should be read at the hearing for whatever it was worth under the circumstances, although no cross-examination could be had.

Id.

Our conclusion is further supported by Waterman Steamship Corp. v. Gay Cot tons, 414 F.2d 724 (9th Cir.1969). In Waterman Steamship, a ship’s crewmem-ber stated in his deposition that he thought a piece of equipment on the ship was inoperative and told the ship’s captain. The deposition was postponed when the crewmember became ill, and the crew-member died before any cross-examination occurred. Relying in part on the deposition, the trial court determined that the defendant was negligent. On appeal, the Ninth Circuit Court of Appeals found that the defendant “has not shown that cross-examination would have helped it materially. Under these circumstances, the District Court did not err in admitting the deposition.” Id. at 728 (footnote omitted).

The foregoing authorities establish that it is appropriate for us to consider the value that the wife’s cross-examination of Antoine would have provided to her defense. Forrest, 7 Hill 463 (Bockee, Senator) (“The benefit of the cross-examination is contingent and uncertain.”); Derewecki, 353 F.2d at 442 (“it is unlikely that anything of importance would have emerged from the cross-examination”); Waterman Steamship, 414 F.2d at 728. See also Duttle v. Bandler & Kass, 127 F.R.D. 46, 50 (S.D.N.Y.1989) (considering prejudice to party who lost ability to cross-examine). The wife contends that if Antoine had lived, she could have cross-examined him as to the quantity of embezzled funds that was used to purchase the Weston property. We do not consider the wife’s inability to cross-examine Antoine to have resulted in substantial prejudice. The wife lacked knowledge of Antoine’s embezzlement activity and the location of any funds that were embezzled. Accordingly, the benefit to be gained by the wife from cross-examining Antoine was speculative, and, as in Derewecki, the wife’s cross-examination was unlikely to have elicited “anything of importance.” Derewecki, 353 F.2d at 442. Put another way, the wife has not shown that the loss of her opportunity to cross-examine Antoine was a “material loss,” as dictated by Wigmore.

We also find that the trial court erred in excluding admission of Antoine’s plea agreement. The rule in Florida is

In civil actions where one of the issues is the guilt of a person convicted of a criminal offense, or some fact necessarily involved in the determination of such guilt, it is proper to admit evidence of that person’s plea of guilty to the criminal offense. The guilty plea is admissible as a declaration against interest and may be considered by the finder of fact, but it does not as a matter of law establish the truth of the facts upon which the judgment of guilt was rendered.

Hatfield v. York, 354 So.2d 426, 427 (Fla. 4th DCA 1978).

In the present case, Antoine’s plea agreement detailed that Antoine “caused Harris to issue checks payable to ... individuals and entities from whom defendant and Individual A [Crowder] purchased or intended to purchase assets, including automobiles, boats and real estate ...” and further that Antoine and “Individual A used Harris’s funds to pay personal expenses, including credit card bills, and to acquire assets for themselves, such as real estate.... ” We find that the trial court should have admitted Antoine’s plea agreement as it specifically was admissible as a declaration against Antoine’s interest insofar as it related to Antoine’s diversion of funds to purchase real estate.

In summary, we find that the trial court erred in excluding Antoine’s deposition testimony and plea agreement. When considered together, we are unconvinced “that it is more likely than not that the error[s] did not influence the trier of fact and thereby contribute to the verdict,” as Antoine was the only party with personal knowledge of the embezzlement. Special v. Baux, 79 So.3d 755, 756 (Fla. 4th DCA 2011) (en banc). Therefore, we reverse and remand for a new trial on the issue of whether the banks are entitled to an equitable lien on the Weston property.

Reversed, in part, affirmed in part, and remanded.

      . It is undisputed that Antoine’s wife was not engaged in any of the embezzlement to which Antoine eventually pled guilty.

      . We find the cross-appeal to be without merit.

      . The court in 'Waterman Steamship also considered the fact that the case was tried to the bench, rather than to a jury, to be relevant. 414 F.2d at 728. The present case was similarly tried directly to the court.


text:
    Steven RAMOS and Julie Andersen, on behalf of Gia Ramos, a minor, Appellants, v. Melanie COOMBS, M.D.; South Florida Pediatric Partners, L.L.C., a Florida Limited Liability Corporation; Nicole Mark, M.D., and Alan Furia, M.D., Appellees.
    No. 4D09-3123.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.

      Lauri Waldman Ross and Theresa L. Girten of Ross & Girten, Miami, and Gary Alan Friedman of Friedman & Friedman, P.A., Coral Gables, for appellant Julie Andersen, on behalf of Gia Ramos.
    Jeffrey S. Badgley of the Badgley Law Group, Orlando, for appellees Melanie Coombs, M.D., and South Florida Pediatric Partners, L.L.C.
   PER CURIAM.

Previously we remanded this matter to the trial court with instructions to provide more specific grounds for granting a new trial as to the element of damages in a medical malpractice case involving the possible failure to diagnose a brain-stem tumor in an infant. Ramos v. Coombs, 54 So.3d 1038 (Fla. 4th DCA 2011). The trial court has since issued a lengthy new trial order, the parties have provided us with additional briefing as to this new order, and we now resume our jurisdiction over this appeal. Based upon our review of both the original and the most recent orders, we find that the trial court did not abuse its discretion in ordering a new trial as to the elements of causation and damages.

“When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness' test to determine whether the trial judge committed an abuse of discretion.” Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999). The mere existence of competent, substantial evidence to support the jury verdict “does not necessarily demonstrate that the trial judge abused his or her discretion.” Id. at 498. “The trial judge’s discretion permits the grant of a new trial even if it is not clear, obvious and indisputable that the jury was wrong.” Kuebler v. Ferris, 65 So.3d 1154, 1157 (Fla. 4th DCA 2011).

In its original order granting a new trial, the trial court found that the only expert that Appellants offered on causation was not qualified to speak to that element. Continuing, the trial court found that even if that expert were qualified to testify about causation, her “limited credentials” were substantially outweighed by Appellees’ experts’ “unquestionable expertise and experience” in the “hyper-technical area of medicine” at issue. We find no abuse of discretion in the trial court’s ordering a new trial as to causation.

As for the trial court’s new order which explains its reasoning for ordering a new trial as to damages, we again find no abuse of discretion. The trial court demonstrated how the element of damages was intertwined with causation such that any infirmity as to causation would render the damages verdict against the manifest weight of the evidence as well. It is clear to us that the trial court did not act as a seventh juror in ordering a new trial as to the elements of causation and damages. See, e.g., Moore v. Perry, 944 So.2d 1115, 1118 (Fla. 5th DCA 2006) (“It has often been said that a trial judge should not sit as a seventh juror with veto power over the jury’s verdict.”).

We find the Florida Supreme Court’s words in Brown apropos: “This case involves complex issues and circumstances, and the trial judge was better positioned than any other person to comprehend the processes by which the ultimate decision of the jury was reached.” Brown, 749 So.2d at 499.

Having reviewed Appellants’ other arguments on appeal, we conclude that they are without merit and do not discuss them further.

Affirmed.

POLEN, CIKLIN and LEVINE, JJ., concur.

      . During the trial, the trial court had deferred ruling on the expert's qualification as to causation.


author: MAY, C.J.

text:
    Darnell JOSEPHS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3164.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his convictions and sentences resulting from a home invasion robbery. He argues the trial court erred in three respects: (1) admitting testimony concerning the detective’s investigation of prior burglaries; (2) relying on the defendant’s untruthfulness on the stand and his betrayal of the victim in imposing the sentence; and (3) imposing public defender fees without giving the defendant an opportunity to be heard. We find no merit to the evidentiary issue and affirm his convictions, but reverse the sentences. We remand the case for re-sentencing by a different judge.

During sentencing the trial court made the following remarks:

I do find several aggravating circumstances in this case. You were certainly one of the planners of this robbery. This was not spur of the moment. You even went to the residences the night before. And for some reason you weren’t able to commit the robbery, and you went back the next day.
Well, what I find particularly aggravating is you abused the trust of one of your friends. Someone trying to help you. Someone trying to help you get a job. And you went to his house. You knocked on the door. He knew who you were. He opened the door. And you abused that trust by allowing several of your friends with firearms to burst into the house. You personally carried a firearm into the house. And during the commission of this offense.
You have a strong criminal history. Two prior burglaries pending by the time you committed this offense.
When you did testify during defense of this case, you blatantly lied. Testifying to the jury that they forced you to do this when you were really the organizer, schemer of this.

(Emphasis added).

The trial court then sentenced the defendant to thirty-five years in prison with a ten-year minimum mandatory on Counts I and II to run concurrent. The trial court sentenced the defendant to time served on Counts IV and V. Subsequently, a different judge granted the defendant’s motion to correct his sentence with respect to Count II. That judge resentenced the defendant to fifteen years in prison on Count II, with a ten-year mandatory minimum. From his conviction and these sentences, the defendant now appeals.

The defendant argues the original trial court erred in relying on his untruthfulness on the stand and his betrayal of the victim in imposing his sentences. The State responds that the error was not preserved during the sentencing hearing and cannot be resurrected through the subsequently filed rule 3.800(b)(2) motion. Further, the State suggests no fundamental error occurred in the trial court’s reliance on the defendant’s untruthfulness on the stand. The State maintains that the inconsistencies in the defendant’s statements distinguish this case from those which found error in the trial court’s reliance on the defendant’s untruthfulness in sentencing. The State agrees, however, that the trial court failed to apprise the defendant of the public defender fee.

We have de novo review of an unpre-served error in sentencing. Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010) (citing Garzon v. State, 980 So.2d 1038, 1043 (Fla.2008)).

First, we agree with the State that the defendant cannot rely on a rule 3.800(b)(2) motion “to raise an issue involving the use of improper factors during sentencing.” Young v. State, 33 So.3d 151, 154 (Fla. 4th DCA 2010). Nevertheless, we may review the sentencing issue for fundamental error because it involves a denial of due process. See Smith v. State, 62 So.3d 698, 700 (Fla. 2d DCA 2011) (finding that the trial court committed fundamental error by considering the truthfulness of the defendant’s testimony during sentencing).

The transcript of the sentencing clearly reveals the original trial court’s reliance on the defendant’s untruthfulness on the stand. During the sentencing hearing, the trial court stated, “When you did testify during defense of this case, you blatantly lied.” “Florida law holds that a defendant’s perjury committed while under oath during trial is not a proper sentencing factor.” Bratcher v. State, 743 So.2d 112, 114 (Fla. 5th DCA 1999). The trial court committed fundamental error in relying on the defendant’s untruthfulness in imposing his sentence under Smith and Bratcher.

The trial court further erred in ordering the defendant to pay public defender fees without notice of a hearing or an opportunity to be heard. The State agrees, but requests us to remand the case to allow the sentencing judge to provide the defendant with the opportunity to be heard in accordance with Ciccia v. State, 854 So.2d 243 (Fla. 4th DCA 2003). That, we shall do.

We reverse and remand the case for resentencing before a judge other than the original sentencing judge. We note that a different judge heard the rule 3.800 motion and may be, but is not required to be, the appropriate judge to handle the resentenc-ing. Upon remand, the sentencing court must also afford the defendant an opportunity to be heard before imposing public defender fees.

Reversed and Remanded for Resentenc-ing.

DAMOORGIAN and CONNER, JJ., concur.

      . The original trial judge was on leave when the motion was ruled upon.


author: STEVENSON, J.

text:
    David ELBAUM, Appellant, v. Kathy ELBAUM, Appellee.
    No. 4D10-4554.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.

      Robin Bresky and Sophia Blair of the Law Offices of Robin Bresky, Boca Raton, for appellant.
    Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for appellee.
   STEVENSON, J.

David Elbaum, the former husband, appeals the final judgment of dissolution of marriage, arguing that the trial court erred in (1) interpreting the parties’ marital settlement agreement as requiring him to secure a mortgage on the parties’ Isla-morada home, which he received, in order to pay off the mortgage on the parties’ Boca Raton home, which the former wife received; (2) awarding wife $8,160.25 in permanent periodic alimony and retroactive alimony; (3) failing to impute additional income to the wife; (4) using a twenty-five percent tax rate to “gross up” the wife’s alimony; and (5) requiring husband to obtain life insurance to secure the alimony award without making the requisite factual findings. We affirm as to all issues, save the requirement that the husband obtain life insurance. We also discern a misunderstanding on the husband’s part as to his alimony obligation under the final judgment. We write to address these two issues.

The husband argues the trial court abused its discretion in requiring him to pay $3,160.25 per month in permanent periodic alimony as he lacks the ability to pay such amount. We believe the former husband has misread the judgment. The $3,160.25 in alimony includes the $1,668 per month the husband is required to pay for the mortgage on the Boca Raton home retained by the wife. The parties’ settlement agreement and the final judgment require that the husband satisfy this mortgage. Once the husband does so, his monthly alimony obligation is limited to $1,492.25. Indeed, the wife has conceded that upon satisfaction of the Boca Raton home’s mortgage, the husband’s alimony obligation is limited to such amount. We find no abuse of discretion in the trial court’s awarding of alimony as to type or amount.

The husband is correct, however, in his claim that the provision requiring him to secure his alimony obligation with life insurance must be reversed as the judgment does not contain the factual findings that must accompany such a provision. See, e.g., Smith v. Smith, 912 So.2d 702, 704 (Fla. 2d DCA 2005) (“To require such security, ... the trial court must make findings as to the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant such security.”). Remand is required on this issue.

Affirmed in part; reversed in part; and remanded.

WARNER and GROSS, JJ„ concur.

      . The final judgment lists the remainder amount of alimony as $1,472.25 per month; this is a mathematical or scrivener’s error since $3,160.25 (initial alimony award including the Boca Raton mortgage) minus $1,668 (the monthly Boca Raton mortgage) equals $1,492.25. On remand, we direct the trial court to correct this error.


text:
    Christopher JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1678.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2012.

      Robert Wesley, Public Defender, and Chelsea Simmons, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Christopher Jenkins was charged in Orange County Criminal Case No. 2012-CF-003883-A-OR with aggravated assault with a deadly weapon, false imprisonment with a weapon, possession of a firearm by a convicted felon, and battery (domestic violence). After a hearing, the trial court denied bond. Jenkins asserts that since the State did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132, bond cannot be denied. The State responded to the petition and agrees that a new hearing is required, but requests that on remand it be given an opportunity to file a motion for pretrial detention pursuant to the rule.

We agree, grant Jenkins’ petition for writ of habeas corpus, and direct the trial court to conduct a rule 3.131 pretrial release hearing. This decision is without prejudice for the State to file a motion for pretrial detention, should it choose to do so. See Nguyen v. State, 925 So.2d 435 (Fla. 5th DCA 2006). The trial court is directed to hold the hearing no later than three business days following the issuance of this opinion.

PETITION GRANTED; CAUSE REMANDED.

SAWAYA, PALMER, and LAWSON, JJ., concur.


author: CLARK, J.

text:
    TRAVELERS COMMERCIAL INSURANCE COMPANY, an affiliate of Travelers Insurance Company, Appellant, v. Crystal Marie HARRINGTON, individually, Appellee.
    No. 1D11-0015.
    District Court of Appeal of Florida, First District.
    May 10, 2012.

      James P. Waczewski of Luks, Santaniel-lo, Petrillo & Jones, Tallahassee, for Appellant.
    Stephen C. Bullock of Brannon, Brown, Haley & Bullock, P.A., Lake City, for Ap-pellee.
   CLARK, J.

Travelers Commercial Insurance appeals a summary final judgment entered for the appellee Crystal Harrington on her claim for uninsured motorist benefits. The summary judgment is affirmed as to the determination of coverage and stacking of the benefits under the Travelers policy of insurance. The judgment is reversed as to the award of such benefits because there are outstanding issues which might impact the amount of the benefits due under the policy. The fee award resulting from this award is also reversed.

The appellee, Crystal Harrington, was injured while riding as passenger in a vehicle owned by her father and insured under a Travelers policy purchased by her mother. Ms. Harrington, along with her mother and father, and three vehicles (including the car in which Ms. Harrington was riding when she was injured), were insured under the Travelers policy, which provided both liability and uninsured motorist coverage. Ms. Harrington’s injuries occurred in a single-car accident, while the vehicle was being driven by Joey Williams, who had liability coverage under his own Nationwide insurance policy. In addition, Mr. Williams was a permissive user of the Harrington car at the time of the accident and was therefore also covered under the permissive user provisions of the Travelers liability policy.

After she was injured, Ms. Harrington received payment for her medical costs from Mr. Williams’ Nationwide policy to the limit of that policy. That policy limit did not fully cover Ms. Harrington’s medical costs, and she received a further liability payment under the Travelers policy. Because Ms. Harrington’s claimed medical costs were in excess of the amount of those combined payments, she then sought uninsured motorist benefits under the Travelers policy, based on the underinsured liability payments. After Travelers denied her uninsured motorist claim, Ms. Harrington filed a civil action seeking payment of the uninsured motorist benefits.

In denying Ms. Harrington’s uninsured motorist claim, Travelers relied on a statement in its policy booklet which describes an “uninsured motor vehicle” as not including “any vehicle which is owned by or furnished or available for the regular use of the named insured or any family member.” Although the car in which Ms. Harrington was injured was not being driven by Ms. Harrington or any other family member, but was instead being operated by Mr. Williams as a permissive user, Travelers maintained that because the car was owned by Ms. Harrington’s father and was available for regular use by a family member, uninsured motorist coverage was not available under the Travelers policy.

Both Ms. Harrington and Travelers moved for summary judgment. The trial court ruled that the Travelers policy’s exclusion of family vehicles from uninsured motorist coverage conflicts with the requirements for such coverage under section 627.727(3), Florida Statutes, and is therefore invalid. Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971). In Mullís the Florida Supreme Court established that, without the policyholder’s express rejection of coverage pursuant to statutory procedures, a policy exclusion will not be given effect if it conflicts with mandatory uninsured motorist requirements in section 627.727. Numerous appellate decisions following Mullís have adhered to that principle, which the trial court applied in the present case to support its entry of summary judgment for Ms. Harrington. See, e.g., Young v. Progressive Southeastern Ins. Co., 753 So.2d 80 (Fla.2000); Diaz-Hernandez v. State Farm Fire & Casualty Co., 19 So.3d 996 (Fla. 3d DCA 2009).

Pertaining to uninsured motorist coverage, section 627.727(3) provides that, for uninsured motorist coverage, the term “uninsured motor vehicle” includes an insured motor vehicle when the liability insurer:

(b) Has provided limits of bodily injury liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages; or
(c) Excludes liability coverage to a non-family member whose operation of an insured vehicle results in injuries to the named insured or to a relative of the named insured who is a member of the named insured’s household.

The trial court determined that the under-insured provision in section 627.727(3)(b) applies and that the family vehicle exclusion in the Travelers policy conflicts with section 627.727(3)(b) and (c). It therefore entered summary judgment for Ms. Harrington. In reaching its conclusion, the court reasoned that subsection (3)(c) pertains when a nonfamily member is a permissive user of an insured family vehicle and the permissive user’s operation of the vehicle causes injury to a family member who is a Class I insured. The distinction between Class I insureds, who are household family members, and Class II insureds, who are other persons such as permissive users, was made in Mullís and continues to govern disputes under Florida’s uninsured motorist law. See, e.g., Sommerville v. Allstate Ins. Co., 65 So.3d 558 (Fla. 2d DCA 2011); Alamo Rent-A-Car, Inc. v. Hayward, 858 So.2d 1238 (Fla. 5th DCA 2003); Auto Owners Ins. Co. v. Potter, 774 So.2d 859 (Fla. 4th DCA 2000).

The trial court’s interpretation of section 627.727(3) accords with the supreme court’s pronouncements in Travelers Insurance Co. v. Warren, 678 So.2d 324 (Fla.1996). In Warren, the supreme court considered sections 627.727(3)(b) and (c), and the differing impact of those provisions on Class I and Class II insureds. The supreme court construed subsection (3)(c) as pertaining when a Class II permissive user operates a Class I insured’s family vehicle and causes injury to the Class I passenger. In such case, the vehicle may then be treated as uninsured (i.e., being underinsured, as described in subsection (3)(b)) for purposes of uninsured motorist benefits, if the driver’s liability coverage is inadequate to fully cover the Class I passenger’s medical costs. That is precisely what occurred in the present case, and the trial court’s application of section 627.727(3) and corresponding voi-dance of the Travelers policy exclusion for family vehicles in these circumstances comports with the supreme court’s decision in Warren.

In addition to the coverage issue resolved by the trial court, the parties also presented the issue of whether the uninsured motorist benefits under the Travelers policy could be stacked by adding the three $100,000 uninsured motorist coverages in the policy together for a total coverage of $300,000. Stacking of coverages is addressed in section 627.727(9), Florida Statutes, which lists several situations where an insurer may limit stacking, but which requires that such limitations be expressly accepted by the insured. The Travelers policy under which Ms. Harrington was insured was purchased by Ms. Harrington’s mother, who did expressly accept a non-stacking limitation, and who executed a written endorsement including that limitation. However, Ms. Harrington was not a signator to that endorsement, and did not herself accept any limitation on the stacking of benefits.

The trial court ruled that the non-stacking election by Ms. Harrington’s mother did not apply to Ms. Harrington because Travelers did not obtain a knowing acceptance of any such limitation by Ms. Harrington. The court indicated that stacking of multiple uninsured motorist coverages automatically applies under Florida law unless the section 627.727(9) waiver is accepted by the insured, and under the statutory language in section 627.727(9), the waiver must have been accepted by the insured who is claiming the benefits. The mother’s election of non-stacking coverage therefore limited the mother’s coverage but not the coverage which applies to Ms. Harrington.

In reaching that conclusion, the trial court focused on the language in section 627.727(9), as contrasted with section 627.727(1), Florida Statutes. Under section 627.727(1), uninsured motorist coverage must be provided with a policy for liability coverage unless there is a knowing rejection of the uninsured motorist coverage. Section 627.727(1) further refers to a “written rejection ... on behalf of all insureds,” and specifies that an approved form be used when uninsured coverage is selected at a lower limit than the liability coverage. Section 627.727(1) provides:

If this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds.

Section 627.727(9) likewise requires that an approved form be used when non-stacking coverage is selected. However, unlike subsection (1), which makes an election-of-coverage-limits binding on all insureds, subsection (9) provides for non-stacking elections:

If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations.

In light of the differing language describing the section 627.727(1) and (9) waivers, the trial court reasoned that the subsection (9) waiver of stackable coverage must be personally made by the insured who claims such benefits, whereas the subsection (1) waiver of coverage (at the liability limit) may be made “on behalf of’ the insured. The trial court cited Maddox v. State, 923 So.2d 442 (Fla.2006), and concluded that the legislature’s use of different language in separate parts of the statute suggests that different meanings were intended, and that when language is used in one part of a statute but omitted in another part it should not be inferred that such language was intended where it has been omitted. See also, e.g., Bortell v. White Mountains Ins. Group, 2 So.3d 1041 (Fla. 4th DCA 2009).

Because the trial court’s ruling on the coverage issue accords with the supreme court’s pronouncements in Travelers Insurance Co. v. Warren, supra, and the ruling on the stacking issue accords with principles of statutory construction as announced in cases such as Maddox v. State, supra, the summary judgment is affirmed as to those matters.

However, the court erred in awarding the claimed $300,000 uninsured motorist benefits. Travelers’ asserted other defenses which might impact the amount of the benefits due under the policy. While the coverage and stacking issues are affirmed, the award is therefore reversed because summary judgment on the amount of benefits is inappropriate where there are outstanding factual issues still in dispute. See, e.g., Panjikaran v. State Farm Ins. Co., 77 So.3d 1278 (Fla. 2d DCA 2012); Schwartz v. Guardian Life Ins. Co. of America, 73 So.3d 798 (Fla. 4th DCA 2011). The reversal of the benefits award necessitates reversal of the accompanying attorney’s fee award for Ms. Harrington because the fee award was based in part on the amount of the uninsured motorist benefits.

Although the trial court’s ruling on the coverage and stacking issues appears to comport with the cited cases, those issues involve significant questions which may recur in other disputes over uninsured motorist benefits, and the following questions are certified as being of great public importance.

With regard to the coverage issue:

WHETHER THE FAMILY VEHICLE EXCLUSION FOR UNINSURED MOTORIST BENEFITS CONFLICTS WITH SECTION 627.727(3), FLORIDA STATUTES, WHEN THE EXCLUSION IS APPLIED TO A CLASS I INSURED WHO SEEKS SUCH BENEFITS IN CONNECTION WITH A SINGLE-VEHICLE ACCIDENT WHERE THE VEHICLE WAS BEING DRIVEN BY A CLASS II PERMISSIVE USER, AND WHERE THE DRIVER IS UNDERINSURED AND LIABILITY PAYMENTS FROM THE DRIVER’S INSURER, WHEN COMBINED WITH LIABILITY PAYMENTS UNDER THE CLASS I INSURED’S POLICY, DO NOT FULLY COVER THE CLASS I INSURED’S MEDICAL COSTS.

With regard to the stacking issue:

WHETHER UNINSURED MOTORIST BENEFITS ARE STACKABLE UNDER SECTION 627.727(9), FLORIDA STATUTES, WHERE SUCH BENEFITS ARE CLAIMED BY AN INSURED POLICYHOLDER, AND WHERE A NON-STACKING ELECTION WAS MADE BY THE PURCHASER OF THE POLICY, BUT WHERE THE INSURED CLAIMANT DID NOT ELECT NON-STACKING BENEFITS.

The summary judgment is affirmed in part and reversed in part, and the coverage and stacking questions are certified to the supreme court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v).

WOLF and WETHERELL, JJ., concur.

      . While the supreme court clearly announced in Travelers Insurance Co. v. Warren, supra, that section 627.727(3) authorizes a Class I passenger's recovery of uninsured motorist benefits upon a single car accident when the Class I passenger’s family vehicle is being driven by a Class II permissive user, Warren actually involved a claim made by the Class II driver. However, the court's pronouncement as to the Class I passenger's rights under section 627.727(3) was part of its reasoning and interpretation of sections 627.727(3)(b) and (c) in pari materia, with the court distinguishing the Class II driver’s statutory rights from those of the Class I passenger.
      In Warren, the supreme court further observed that section 627.727(3) does not stack uninsured motorist benefits "on top of” liability coverage under a single insurance policy, and the court suggested that a Class I insured cannot make a claim against the liability provisions of their own insurance policy. But as the trial court pointed out in the present case, Ms. Harrington’s uninsured motorist claim did not involve only one policy, because the Class II permissive driver’s separate Nationwide policy provided the initial liability benefits. The additional payment for liability coverage under Ms. Harrington’s Travelers policy was not made for any liability on the part of Ms. Harrington, but rather was made for liability in connection with the driver’s permissive use of the vehicle.

      . Although Ms. Harrington did not elect non-stacking benefits and the differing language in sections 627.727(1) and 627.727(9) suggests that, while a subsection (1) coverage election may be made "on behalf of” all persons insured under the policy, a subsection (9) non-stacking election must be made individually, in Mercury Insurance Co. of Florida v. Sherwin, 982 So.2d 1266 (Fla. 4th DCA 2008), the fourth district applied agency law and upheld a non-stacking election which was made for a named insured by her husband. In Mercury Insurance the appellate court referred to the subsection (9) election without addressing the difference between the subsection (1) language indicating that a coverage election may be made "on behalf of” an insured person, and the absence of any such language in subsection (9) with regard to a non-stacking election. However, the 1990 amendment to section 627.727 added the "on behalf of” language to subsection (1) without placing such language in subsection (9), see ch. 1990-119, § 39, Laws of Florida, and cases such as Omar v. Allstate Insurance Co., 632 So.2d 214 (Fla. 5th DCA 1994), indicate that a non-stacking election must be shown by the insurer, upon compliance with statutory procedures.


text:
    Tara Ashley Suzanne HUTCHINGS, Appellant, v. Patricia Ann LILES, Appellee.
    No. 1D11-1345.
    District Court of Appeal of Florida, First District.
    May 10, 2012.

      John W. Wesley of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellant.
    John P. Joy and Sara M. Sandler of Walton, Lantaff, Schroeder & Carson, LLP, Fort Lauderdale, for Appellee.
   CLARK, J.

Appellant Tara Hutchings appeals the adverse final judgment, after jury verdict, in her personal injury action. Following a vehicle collision which occurred on May 26, 2004, Appellant sought damages from the other driver for injuries Appellant claimed resulted from the collision. The jury found that the defendant was not negligent and the jury declined to award any damages. On appeal, Ms. Hutchings challenges the admission of certain evidence by the trial court, including the deposition of the defendant driver. Because the trial court did not abuse its discretion by admitting any of the challenged evidence, the judgment of the trial court is affirmed.

The issue of the use of the defendant’s deposition was first raised prior to trial, during argument on the motions in limine. Defense counsel filed his affidavit explaining that he had tried to locate his client for several weeks prior to trial but had been unsuccessful. Counsel further asserted that in his last conversation with his client, she informed him that she was taking a temporary job assignment out of state, in Oklahoma, and that she was uncertain of her ability to contact counsel while she was on this assignment. The defendant’s employer was a federal military agency and counsel had been unable to obtain any information from the employer about his client’s whereabouts since their last conversation. Counsel thus sought to introduce her deposition instead of her personal testimony at trial pursuant to rule 1.330(a)(3)(B), Florida Rules of Civil Procedure. He further sought to prevent plaintiffs counsel from disparaging the defendant by criticizing her absence. The trial court took the matter under advisement and trial commenced.

The deposition issue was further argued by counsel during a break in the jury proceedings. The defense reiterated its position that rule 1.330(a)(3)(B) allowed the use of the defendant’s deposition, and the plaintiff argued that defense counsel’s lack of knowledge of his client’s actual location was insufficient to establish that she was out of state or 100 miles away during trial. Plaintiffs counsel asserted that even if the defendant was so distant, her voluntary acceptance of a job assignment constituted an absence procured by the defense, as the party offering the deposition. The trial court again took the matter under advisement and the jury returned to the courtroom.

Finally, during the defense’s presentation of its case, the court ruled that the deposition could be read into evidence. The court specifically found that defense counsel’s affidavit provided sufficient evidence that his client was more than 100 miles away and that she had not procured her own absence, as contemplated by rule 1.330(a)(3)(B). When the jury returned to the courtroom, the defendant’s deposition was read into the record by counsel.

The trial court’s ruling allowing the deposition of the party defendant to be published to the jury and read into the record was within the court’s sound discretion under rule 1.330(a)(3)(B), Florida Rules of Civil Procedure. The trial court has “broad judicial discretion as to the source, nature, and sufficiency of the facts which he may consider.” Colonnades, Inc. v. Vance Baldwin, Inc., 318 So.2d 515, 517 (Fla. 4th DCA 1975). Proof which raises a reasonable presumption is sufficient to provide the basis for admission of a deposition under rule 1.330. Dickson v. Feiner’s Org., Inc., 155 So.2d 703 (Fla. 2d DCA 1963). The representations of counsel have been found to be sufficient for purposes of the required showing. Crowe v. Lowe, 942 So.2d 903 (Fla. 4th DCA 2006). The fact that counsel has been unable to locate a witness and did not know her whereabouts has been found sufficient to support admission of a deposition. Christopher’s Inc. v. Podolnick, 458 So.2d 777 (Fla. 4th DCA 1984) (trial court abused discretion by excluding deposition despite representations of counsel that witness could not be located).

In addition, the trial court committed no error in finding that the party’s acceptance of a job assignment in this situation was not procured by the party. The trial had been rescheduled and the job assignment was a temporary opportunity. Being called away for a compelling reason is sufficient to show that the deponent’s absence was not self-procured. Maxfly Aviation, Inc. v. Gill, 605 So.2d 1297 (Fla. 4th DCA 1992).

No abuse of the trial court’s broad discretion has been shown by the use of the defendant’s deposition as evidence. Having reviewed the entire record in this case, the other evidentiary rulings challenged by Appellant were also within the trial court’s exercise of its sound discretion and no error was committed.

AFFIRMED.

DAVIS and ROWE, JJ., concur.


author: MARSTILLER, J.

text:
    Stephen H. HECK, Appellant, v. BANK LIBERTY, Successor in Interest to Champion Bank by Asset Acquisition from the FDIC, as Receiver for Champion Bank, Appellee.
    No. 1D11-5888.
    District Court of Appeal of Florida, First District.
    May 10, 2012.

      John N.C. Ledbetter, Destín, for Appellant.
    Richard P. Petermann of Anchors Smith Grimsley, Fort Walton Beach, for Appel-lee.
   MARSTILLER, J.

We reverse the order on appeal denying Appellant’s motion to set aside a final judgment of foreclosure and foreclosure sale for invalid service of process. Competent, substantial evidence does not support the trial court’s finding that Appellant “was duly and properly served in accordance with Florida law when the process was served upon and accepted by his wife[.]”

Seeking to foreclose on Florida property owned by Appellant and his wife, Appellee served process on the wife at her home located at 18473 Hollow Hills Drive, Pacific, Missouri 63069. The wife accepted process for Appellant. Neither Appellant nor his wife answered the foreclosure complaint or otherwise appeared in the proceedings. Ultimately, the trial court entered a default judgment of foreclosure, and Appellee purchased the foreclosed property.

Appellant thereafter moved to set aside the judgment and sale arguing that Appellee did not properly serve him with process under section 48.031, Florida Statutes (2010). The statute provides, in pertinent part:

(1)(a) Service or original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents....
(2)(a) Substitute service may be made on the spouse of the person to be served at any place in the county, if the cause of action is not an adversary proceeding between the spouse and the person to be served, if the spouse requests such service, and if the spouse and person to be served are residing together in the same ' dwelling.

One’s “usual place of abode” for purposes of valid service under section 48.031(l)(a) is “ ‘the place where the defendant is actually living at the time of service.’ ” Thompson v. State, Dep’t of Revenue, 867 So.2d 603, 605 (Fla. 1st DCA 2004) (quoting Shurman v. Atl. Mortgage & Inv. Corp., 795 So.2d 952, 954 (Fla.2001)). “The word ‘abode’ means ‘one’s fixed place of residence for the time being when service is made.’ If a person has more than one residence, he must be served at the residence in which he is actually living at the time of service.” Torres v. Arnco Constr., Inc., 867 So.2d 583, 586 (Fla. 5th DCA 2004) (quoting State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940)). As to subsection (2)(a), substitute service on a spouse is permissible only if the spouses “are residing together in the same dwelling.” “[B]ecause statutes authorizing substituted service are exceptions to the general rule requiring a defendant to be served personally, due process requires strict compliance with their statutory requirements.” Torres, 867 So.2d at 586.

A party seeking to invoke the court’s jurisdiction has the burden to prove proper service of process, and a process-server’s return of service, regular on its face, is presumptive evidence of valid service, absent clear and convincing evidence to the contrary. See Green v. Jorgensen, 56 So.3d 794, 798 (Fla. 1st DCA 2011); Thompson, 867 So.2d at 605. If the presumption is overcome, the party asserting valid substitute service then has the burden to prove service was proper. See Thompson; see also Haueter-Herranz v. Romero, 975 So.2d 511, 518 (Fla. 2d DCA 2008).

At the hearing on the motion to set aside the foreclosure judgment and sale, Appellant presented his wife’s deposition testimony and documentary evidence establishing that when Appellee’s process server left the summons and complaint with Appellant’s wife, Appellant did not live at the Hollow Hills Drive residence, or even in the same city. The evidence showed the spouses had separated two months earlier, and a petition for dissolution of their marriage was pending. The petition reflected that Appellant was residing at 1417 Crossbrook Drive, St. Louis, Missouri 63119. This evidence, we conclude, was sufficient to rebut the presumed validity of the substitute service. Cf. Thompson, 867 So.2d at 604-5 (finding affidavit of party challenging service prima facie evidence that substitute service was not valid where affidavit showed party was separated from his wife and for three years had not lived at residence where attempted service occurred).

Appellee countered with a copy of a personal financial statement, dated four days after process was served, in which Appellant listed the Hollow Hills Drive location as his address. But the document was insufficient to prove the Hollow Hills Drive address was Appellant’s “usual place of abode.” See State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147-48 (1940) (finding a party’s “usual place of abode” was at his family’s apartment in Miami Beach, although his permanent address was in Minnesota); Cordova v. Jolcover, 942 So.2d 1045, 1046 (Fla. 2d DCA 2006) (stating that “an address is not synonymous with usual place of abode. One has but one usual place of abode.”). Ap-pellee also introduced the deposition testimony of its vice president indicating that in the months following service of process, Appellant told him he and his wife were reconciling. The vice president did not testify, however, that Appellant stated he was living at the Hollow Hills Drive address when Appellee’s process server attempted substitute service. Consequently, the trial court’s finding that Appellee effected valid substitute service of process is not supported by competent, substantial evidence. See Carone v. Millennium Settlements, Inc., 84 So.3d 1141 (Fla. 4th DCA 2012).

Because Appellant was not properly served by substitute service, the court lacked personal jurisdiction over him in the foreclosure proceedings. See Thompson, 867 So.2d at 605; M.J.W. v. Dep’t of Child. & Fams., 825 So.2d 1038, 1041 (Fla. 1st DCA 2002). Accordingly, we reverse the order denying Appellant’s motion to set aside the foreclosure judgment and sale.

REVERSED.

PADOVANO and ROWE, JJ., concur.


text:
    K.C., Mother of R.D., and A.D., minor children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D12-1741.
    District Court of Appeal of Florida, First District.
    May 10, 2012.
    Susan Barber, Assistant Regional Counsel for appellant A.D., Tallahassee.
    Christina Pumphrey, for appellee Department of Children and Families, Ma-rianna, and Holly Hughes Hales, Guardian ad Litem, Marianna.
   PER CURIAM.

Having determined that the appellant’s notice of appeal failed to timely invoke the Court’s jurisdiction, the appeal is hereby dismissed. Any remedy the appellant may have lies with the lower tribunal. Cf. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

WOLF, RAY, and MAKAR, JJ., concur.


text:
    Lorraine J. WALTER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Bryan M. Bergens, DDS, PA, Appellees.
    No. 1D11-0627.
    District Court of Appeal of Florida, First District.
    May 10, 2012.
    Lorraine J. Walter, pro se, Appellant.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

We affirm the order of the Florida Unemployment Appeals Commission on the basis that the appeals referee lacked jurisdiction to consider Claimant’s untimely appeal of the determination that she was not entitled to compensation benefits. See § 443.151(4)(b)2., Fla. Stat. (providing that an appeals referee may affirm, modify, or reverse a determination “unless the appeal is untimely”); Fla. Admin. Code R. 60BB-5.007(2) (providing that if a referee finds that an appeal was not filed within the time allowed by law, “it shall be dismissed”); see also Peterson v. Fla. Unemployment Appeals Comm’n, 77 So.3d 905, 908 (Fla. 1st DCA 2012) (noting that the late filing of an appeal deprives an appeals referee of jurisdiction to consider the merits of the underlying claim).

AFFIRMED.

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    Oscar SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2039.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2012.
    Cameron W. Eubanks, Robert L. Sirian-ni, Jr., and Paetra T. Brownlee, of Brownstone, P. A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to file a timely and sufficient motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

ORFINGER, C. J., SAWAYA and TORPY, JJ., concur.


text:
    Donnie L. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2257.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2012.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., SAWAYA and TORPY, JJ., concur.


text:
    Reginald SMITH, et. al., Appellants, v. STATE of Florida, Appellee.
    Case Nos. 5D11-2840, 5D11-3559, 5D11-3561, 5D11-3844, 5D11-3849, 5D11-3858, 5D11-3862, 5D11-3863, 5D11-3864, 5D11-3906, 5D11-3911, 5D11-3912, 5D11-3915, 5D11-3916.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C. J., SAWAYA and TORPY, JJ., concur.


text:
    Randall Joseph ENGELKENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3614.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., SAWAYA and TORPY, JJ., concur.


text:
    Marius HORNE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3976.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2012.
    Marius Horne, Wewahitchka, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence for violation for probation, in case no. 1998-CF-000487-A, in the Circuit Court in and for Seminole County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, MONACO and COHEN, JJ., concur.


text:
    Jason K. FULLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4598.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2012.
    Jason Fuller, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Jason K. Fuller, appeals the trial court’s summary denial of his amended rule 3.850 motion. The State rightfully concedes error. The matter is reversed and remanded for the trial court to consider Appellant’s motion on its merits.

REVERSED and REMANDED.

SAWAYA, PALMER and JACOBUS, JJ., concur.


text:
    Juan A. HABEYCH, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1291.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2012.

      Juan A. Habeych, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the final order of resentencing entered in Case No. 2008-CF-12888-0, in the Circuit Court in and for Orange County, Florida. See Fla.R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, COHEN and EVANDER, JJ., concur.


text:
    Frank Lee MASSELINO, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3285.
    District Court of Appeal of Florida, First District.
    May 11, 2012.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    M.D.B., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6171.
    District Court of Appeal of Florida, First District.
    May 14, 2012.
    Nancy A. Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel, Assistant Attorney General, for Appellee.
   PER CURIAM.

AFFIRMED. See Mapp v. State, 71 So.3d 776 (Fla.2011).

WOLF, RAY, and MAEAR, JJ., concur.


author: JACOBUS, J. GRIFFIN, J.,

text:
    P.B., Mother of K.M., a Child, and K.H., Father of K.M., A Child, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 5D11-4425, 5D11-4599.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2012.
    Ryan Thomas Truskoski and Jeffrey Deen, Office of Criminal and Civil Counsel, Casselberry, for Appellant, Father.
    Eddie J. Bell, Daytona Beach, for Appellant, Mother.
    Wendie Michelle Cooper, Tavares, Guardian Ad Litem.
    Jeffrey Dana Gillen, Children’s Legal Services, West Palm Beach, for Appellee.
   JACOBUS, J.

P.B., the Mother, and K.H., the Father, appeal the order terminating their parental rights to their daughter, K.M. The lower court found grounds for terminating both parents’ rights pursuant to sections 39.806(l)(c), (l)(e), (l)ffi, (1)CP, and (1 )(l), Florida Statutes. We have reviewed the record on appeal and affirm the order terminating the Father’s rights in its entirety. We also affirm without discussion the portion of the order terminating the Mother’s rights pursuant to sections 39.806(l)(c), (l)(f), and (l)(i).

We must remand, however, for correction of the order terminating the Mother’s rights because the record does not support termination under sections 39.806(l)(e) and (l)(j). Therefore, on remand, the lower court is directed to delete the portion of the order terminating the Mother’s rights pursuant to these subsections. In all other respects, the order is affirmed.

AFFIRMED and REMANDED with instructions.

ORFINGER, C.J., concurs.

GRIFFIN, J., concurs in part, dissents in part, with opinion.

GRIFFIN, J.,

concurring in part and dissenting in part.

I am unable to concur in the decision to remand for removal of the termination under Section 39.806(l)(j), Florida Statutes (2011). That section was added to the list of grounds for termination of parental rights in 2008, and, even though substance abuse is a primary cause of parental failure in this state, there have been no reported cases under this subsection. This is not surprising, given that it doesn’t make a lot of sense. This ground for termination provides:

(j) The parent or parents have a history of extensive, abusive, and chronic use of alcohol or a controlled substance which renders them incapable of caring for the child, and have refused or failed to complete available treatment for such use during the 3-year period immediately preceding the filing of the petition for termination of parental rights.

So ... looking backward for a period of three years from the date of filing the petition for termination of parental rights based on a parent’s “extensive, abusive and chronic use of alcohol or a controlled substance that renders them incapable of caring for the child,” this ground is not available unless, during that time period, the parent has either refused treatment or failed to complete “available” treatment. Seemingly, as the statute is written, if in May 2012 the Department of Children and Families files a termination of parental rights petition against a parent whose extensive, abusive and chronic drug abuse makes them incapable of caring for their child, the court is powerless to terminate parental rights if, at some point, in the preceding three years, the parent had “completed” an “available” treatment. It will not matter that the parent relapsed and has remained a barely functioning addict and a failed parent ever since. The trial court thought this made no sense.

I think I will stand with the trial judge on this one. It is understandable that a parent should not face termination of their parental rights due to addiction to alcohol or drugs unless they have, in the recent past, been offered access to treatment, but why would it matter whether the treatment were refused, completed or left incomplete if the parent remains incapable of caring for their child? What matters is that treatment was made available, and the parent remains incapable of caring for their child.

      . We note that we have considered and rejected the Mother's arguments regarding terminating her rights pursuant to subsection (1)(Z). See K.J. ex rel. A.J. v. Dep’t of Children & Families, 33 So.3d 88, 90 (Fla. 1st DCA 2010) (Hawkes, C.J., concurring).


text:
    Courtney A. HINKINS, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, o/b/o, Michelle J. THOMAS, Appellee.
    No. 1D11-6331.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Courtney A. Hinkins, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Finding appellee’s confession of error to be well-taken, the final order of paternity and administrative support is hereby vacated and the cause is remanded to the lower tribunal for further administrative proceedings.

WOLF, RAY, and MAKAR, JJ., concur.


text:
    Madison S. DEVINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-740.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

LEWIS, CLARK, and MARSTILLER, JJ., concur.


author: SHEPHERD, J.

text:
    J.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2602.
    District Court of Appeal of Florida, Third District.
    May 16, 2012.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, and Joshua Roth, Certified Legal Intern, for appellee.
    Before SHEPHERD and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CONFESSION OF ERROR

SHEPHERD, J.

Based on the State’s proper and commendable confession of error, we reverse the adjudications of delinquency for fleeing from a police officer and resisting an officer with violence, and remand for a new adjudicatory hearing. See J.R. v. State, 923 So.2d 1269, 1275 (Fla. 1st DCA 2006) (holding that “the rule of sequestration does not authorize excluding a juvenile’s parents from hearings in juvenile delinquency proceedings”); see also L.E.D. v. State, 48 So.3d 167 (Fla. 4th DCA 2010).

Reversed and remanded.


text:
    Walter HALLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2080.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.
    Anthony P. Ryan, Director, and Melanie Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Pursuant to the parties’ agreed motion to reverse and remand for new trial due to lack of transcript and inability to reconstruct the record, we reverse and remand. See Jackson v. State, 984 So.2d 668, 669 (Fla. 4th DCA 2008).

Reversed and Remanded.

TAYLOR, CIKLIN, and GERBER, JJ., Concur.


text:
    DISTRIBUTION BY DATAGEN, Gallagher Health Studies; New American Health Planning, Inc.; Smart Services, Inc.; Inspired By Coconut, Inc.; Marlin Dixon; John V. Head; Joshua B. Levy; Grant E. Lockhart; Carynne Marten; Michael M. Purr And Ann Marie Purr, Appellants, v. OFFICE OF INSURANCE REGULATION, Appellee.
    No. 1D11-3341.
    District Court of Appeal of Florida, First District.
    May 16, 2012.
    Patricia R. Fitzgerald of Lynch & Robbins PA, St. Petersburg, for Appellant.
    Jeffrey W. Joseph and Kenneth Tink-ham, Office of Insurance Regulation, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WOLF, RAY, and MAKAR, JJ., concur.


text:
    Jeffery D. SHORES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4589.
    District Court of Appeal of Florida, Fifth District.
    May 17, 2012.
    Jeffery D. Shores, Monticello, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

LAWSON, COHEN and JACOBUS, JJ., concur.


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, etc., Appellant, v. William STURDIVANT and Annette Sturdivant, Appellees.
    No. 5D10-3393.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2012.
    G. William Bissett, Jr., of Kubicki Draper, P.A., Miami, and Michael C. Clarke, Courtney A. Umberger and Betsy E. Gallagher, of Kubicki Draper, Tampa, for Appellant.
    Alan S. Wachs, Chris T. Harris and Michael M.Giel, of Volpe, Bajalia, Wickes, Rogerson & Wachs, P.A., Jacksonville, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to the concession of error filed by appellees, William and Annette Sturdi-vant, we reverse the final judgment entered against Florida Insurance Guaranty Association (FIGA) for attorney’s fees and costs, and remand for entry of a judgment in FIGA’s favor in accordance with the holding in Petty v. Florida Insurance Guaranty Ass’n, 80 So.3d 313 (Fla.2012).

REVERSED and REMANDED.

GRIFFIN, PALMER and TORPY, JJ., concur.


author: DAVIS, Judge.

text:
    John Miguel HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3546.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 2011.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

John Miguel Houston challenges his judgment and sentence for attempted second-degree murder, robbery, aggravated assault with a firearm, and two counts of carrying a concealed weapon. On appeal, he only argues that he is entitled to a new trial on the attempted second-degree murder count. Because the trial court erroneously instructed the jury with regard to that count, we reverse and remand for new trial only as to that count.

Houston robbed a man in the Ybor City area of Tampa. Houston did not brandish a weapon during the robbery. But as he attempted to leave, his victim called for police, and in response, Houston fired a gun at the victim from a distance of four or five feet. The victim was not hit by the shot.

In count one of the information, the State charged Houston with attempted first-degree murder. The jury returned a verdict of attempted second-degree murder on that count, and the trial court sentenced Houston to a minimum mandatory twenty years’ imprisonment, followed by ten years’ probation.

At trial, in conjunction with that count, the trial court instructed the jury on attempted first-degree murder, attempted second-degree murder, and attempted manslaughter by act. The standard jury instruction for attempted manslaughter that the court read to the jury was as follows:

To prove the crime of attempted voluntary manslaughter, the state must prove the following element[s] beyond a reasonable doubt: John Miguel Houston committed, an act which was intended to cause the death of Frederick Powell and it would have resulted in the'death of Frederick Powell except that someone prevented John Miguel Houston from killing Frederick Powell or he failed to do so. However, the defendant cannot be guilty of attempted voluntary manslaughter if the attempted killing was either excusable or justifiable as I have previously explained those terms. It is not an attempt to commit manslaughter if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating the defendant’s complete and voluntary renunciation of his criminal purpose.... In order to convict of attempted voluntary manslaughter, it is not necessary for the state to prove that the defendant had a premeditated intent to cause death.

(Emphasis added.)

Houston did not object to the instruction below, but on appeal he argues that it amounts to fundamental error in light of the Florida Supreme Court’s opinion in State v. Montgomery, 39 So.3d 252 (Fla.2010). In that case, the court determined that a previous version of the standard jury instruction for manslaughter was erroneous because it “required the jury to find that the defendant intended to kill the victim in order to convict Montgomery of manslaughter.” Id. at 257. In doing so, the court noted that section 782.087(1), Florida Statutes, the manslaughter statute, “does not impose a requirement that the defendant intend to kill the victim. Instead, it plainly provides that where one commits an act that results in death, and such an act is not lawfully justified or excusable, it is manslaughter.” Id. at 256. Here, Houston argues that the phrase “committed an act which was intended to cause the death of’ in the standard jury instruction for attempted manslaughter amounts to fundamental error because it similarly requires that the jury find that he possessed an intent to kill the victim in order to convict him of attempted manslaughter.

We agree with Houston that the phrase “committed an act which was intended to cause the death of’ impermissi-bly creates an intent-to-kill element in the crime of attempted manslaughter. Section 782.07(1), Florida Statutes (2008), defines “manslaughter” as “[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification ... and in cases in which such killing shall not be excusable homicide or murder.” Section 777.04(1), Florida Statutes (2008), makes it a crime to “attempt[ ] to commit an offense prohibited by law- [if] in such attempt [one] does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof.” Nothing in this statutory scheme suggests that the crime of attempted manslaughter requires an intent to kill. See Bass v. State, 45 So.3d 970, 971 (Fla. 3d DCA 2010) (reviewing jury instruction on attempted voluntary manslaughter that included element that “defendant committed an act, which was intended to cause the death of [the victim]” and finding error, “based on Montgomery,” in the giving of that instruction); Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009) (“[T]he standard jury instruction for attempted manslaughter by act ... adds the additional element that the defendant ‘committed an act intended to cause the death’ of the victim when attempted manslaughter by act requires only an intentional unlawful act.”); see also Gonzalez v. State, 40 So.3d 60, 62 (Fla. 2d DCA 2010) (“At oral argument the State conceded that, based on Montgomery, Gonzalez’s conviction for attempted second-degree murder must be reversed due to the ... standard jury instruction for attempted manslaughter by intentional act which was read to the jury. Thus, we must reverse for a new trial on the attempted second-degree murder conviction.”).

We do note that the Fourth District in Williams v. State, 40 So.3d 72, 73-75 (Fla. 4th DCA 2010), has concluded that the standard jury instruction on attempted manslaughter does not possess the same fatal flaw as the standard jury instruction on manslaughter because “[a]s the Second District explained [in Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007)], you cannot attempt to commit an unintentional act.” But we are not persuaded by the Fourth District’s application of our Hall language. It is true that in Hall this court stated the following:

The [supreme] court’s holding [in Taylor v. State, 444 So.2d 931 (Fla.1983),] that an intent to kill is an element of attempted manslaughter does not require a determination that an intent to kill is an element of manslaughter by act. An intent to kill is required to commit an attempted manslaughter because no person can attempt to cause an unintentional act.

Hall, 951 So.2d at 96. But this court included this statement in Hall in an attempt to distinguish Taylor from the facts at issue in Hall. The ultimate holding in Hall was “that a conviction for manslaughter by act does not require an intent to kill but only an intentional act that causes the death of a victim.” Id. As such, any discussion of the crime of attempted manslaughter in that case was nothing more than dicta. And while it may be true that no person can attempt to cause an unintentional act, a person can intend to commit an act, like firing a gun at another person, without intending to cause the death of that person.

We also note that it appears that Hall mischaracterized the intent element set forth in Taylor, as an “intent to kill.” See Hall, 951 So.2d at 96. In Taylor, the supreme court stated, “[T]here may be a crime of attempted manslaughter. We reiterate, however, that a verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act.” 444 So.2d at 934 (emphasis added).

The State does point out here that in 2008, the Florida Supreme Court affirmatively declined to eliminate the intent element from the standard jury instruction on attempted voluntary manslaughter. See In re Standard Jury Instrs. in Crim. Cases-Report No. 2007-10, 997 So.2d 403, 404 (Fla.2008) (“ ‘[A] verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act.’ ” (alteration in original) (quoting Taylor v. State, 444 So.2d 931, 934 (Fla.1983))). However, this refusal by the supreme court to amend the intent element of the attempted manslaughter standard jury instruction occurred well before Montgomery, and the issue that is squarely before us in the instant case is whether Montgomery renders the standard jury instruction on attempted manslaughter erroneous. As such, no matter what the supreme court’s reasons were for not amending the instruction in 2008, they are not applicable to this case.

We also agree with Houston that the giving of the instruction in this case amounted to fundamental error. In Montgomery, the supreme court stated:

Second-degree murder as a lesser included offense is one step removed from first-degree murder, and manslaughter as a lesser included offense is two steps removed from first-degree murder. In Pena [v. State, 901 So.2d 781, 787 (Fla.2005) ], we concluded that “when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.” We explained that
the significance of the two-steps-removed requirement is more than merely a matter of number or degree. A jury must be given a fair opportunity to exercise its inherent “pardon” power by returning a verdict of guilty as to the next lower crime. If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.

39 So.2d at 259 (citation omitted). The court concluded that “because Montgomery’s conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter ... fundamental error occurred ... which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill [the victim].” Id. Applying this analysis, the erroneous instruction here constitutes fundamental error.

We therefore reverse for a new trial on attempted second-degree murder. In doing so, we also certify conflict with the Fourth District’s opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010). We otherwise affirm Houston’s convictions and sentences without comment.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and WALLACE, JJ., Concur.

      . The Florida Supreme Court currently has before it a proposal of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases to amend the standard jury instruction on attempted manslaughter by removing the phrase "intended to cause the death of (the victim)” and adding the word "intentionally” before "committed an act.” See Florida Supreme Court Publication Notice, available at http://www.floridasupreme court.org/decisions/probin/ sc 10-2434_Publi-cationNotice.pdf. If this proposal is approved by the supreme court, the new standard jury instruction on attempted manslaughter would instead read, "(Defendant) intentionally committed an act which would have resulted in the death of (victim) except someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.” Id.