author: SALTER, J.

text:
    TAHITI BEACH HOMEOWNERS ASSOCIATION, INC., Appellant, v. Wendell G. PFEFFER and Leticia Albarran Pfeffer, Appellees.
    No. 3D10-786.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 2011.
    Hall, Lamb and Hall, and Andrew C. Hall and G. Raemy Charest, Miami, for appellant.
    Becker & Poliakoff, and Lilliana M. Far-inas-Sabogal and Steven M. Davis, Coral Gables, for appellees.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

Tahiti Beach Homeowners Association, Inc., appeals a partial final summary judgment in favor of Mr. and Mrs. Pfeffer regarding the Association’s complaint to foreclose a lien for a $285,000 fine. The fine, imposed for the alleged violation of a “Homesite Construction Rule,” did not meet the requirements of section 720.305(2), Florida Statutes (2007), regulating the imposition of fines by homeowners’ associations.

The issue for decision below and here is a question of law: does the statute, enacted in 1995, apply to the Homesite Construction Rule, adopted by the Association in 1993 or 1994, with respect to alleged violations of the Rule occurring 2007-09? We answer the question in the affirmative.

The caption to section 720.305 is “Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.” The limitations on fines, and the requirements for prior notice and a hearing, imposed by the statute are unquestionably procedural and remedial in nature. In Fogg v. Southeast Bank, N.A., 473 So.2d 1352, 1353 (Fla. 4th DCA 1985), the Fourth District observed that “statutes relating to remedies or procedure and including forfeitures operate retrospectively in the sense that all pending proceedings, including matters on appeal, are determined under the law in effect at the time of decision rather than that in effect when the cause of action arose or some earlier time.” This Court followed Fogg in Riano v. Burchfield, 512 So.2d 1121 (Fla. 3d DCA 1987), holding that a legislative amendment eliminating a penalty (and lacking a provision expressly limiting the application of the amendment to contracts entered into after the effective date) is applicable to contracts entered into before the effective date of the amendment. In the case of such amendments — but not in the case of amendments affecting or impairing substantive rights — retrospective application is required unless the legislation itself provides otherwise. Here, the pertinent amendments to section 720.305 did not specify that they would only be applicable to homeowners’ association documents entered into after the effective date of the legislation.

These conclusions of law take the case out of the constitutional analysis advanced by the Association. Because penal, remedial, and procedural issues were addressed in the legislation (rather than vested, substantive rights), this record presents no constitutional issue. Nor do we find any merit in the Association’s challenge to the trial court’s ruling that “the Association, as a defense to the counterclaim, never raised the defense of waiver.” A review of the pleadings confirms that the trial court was correct on this point as well.

Affirmed.

      . The Rule requires a property owner’s construction or landscaping activities to be completed within a 24 month period, "time being of the essence,” or face a "penalty” of $10,000 per month (or any part thereof) from the end of that period until the work is completed.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    Leah BRITT, for herself and on behalf of all others similarly situated, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 5D10-835.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2011.

      Tee Persad, Alberto E. Lugo-Janer, and Cynthia Conlin, of CPLS., P.A., Orlando, and Samuel A. Walker, Montgomery, AL, for Appellant.
    Virginia B. Townes and Brandon W. Banks of Akerman Senterfitt, Orlando, for Appellee.
   PALMER, J.

Leah Britt appeals the final order entered by the trial court dismissing with prejudice her complaint against appellee, Bank of America. We affirm.

Britt’s complaint alleged that the Bank’s practice of charging non-account holders $5.00 as a condition for cashing payroll checks (written by Britt’s employer, an account holder at the Bank), violates section 655.85 of the Florida Statutes (2008) (which provides that an institution may not settle any check drawn on it otherwise then at par). The Bank moved to dismiss Britt’s complaint with prejudice, arguing that Britt’s statutory claim was pre-empt-ed by federal law which permits national banks to charge such fees. The trial court granted the Bank’s motion and dismissed Britt’s complaint.

Britt challenges the trial court’s ruling, arguing that the trial court erred in concluding that the federal law preempts her cause of action. We disagree. Federal law allows national banks to charge convenience fees when cashing checks drawn on the bank. See 12 C.F.R. § 7.4002 (2008); see also OCC, Interpretive Letter No. 932 (Aug. 17, 2001); OCC, Interpretive Letter No. 933 (Aug. 17, 2001); OCC, Interpretive Letter 934 (Aug. 20, 2001); OCC, Interpretive Letter No. 1094 (Feb. 27, 2008). Thus, even assuming arguendo that section 655.85 of the Florida Statutes prohibits the Bank from charging convenience fees, said prohibition would be preempted by federal law. See Wells Fargo Bank of Texas, N.A. v. James, 321 F.3d 488 (5th Cir.2003 Xholding that a Texas statute, which required banks to settle checks drawn on it against an account at par, was pre-empted because the state statute prohibited the exercise of a power expressly granted to national banks by federal law); Baptista v. JP Morgan Chase Bank, N.A., 2010 WL 2342436 (M.D.Fla. June 4, 2010)(holding that section 655.85 of the Florida Statutes is preempted by federal law). Accordingly, the trial court did not err by dismissing Britt’s complaint.

AFFIRMED.

LAWSON and EVANDER, JJ„ concur.

      . Section 655.85 of the Florida Statutes (2008) provides:
      655.85 Settlement of checks.

      Whenever any check is forwarded or presented to an institution for payment, except when presented by the payee in person, the paying institution or remitting institution may pay or remit the same, at its option, either in money or in exchange drawn on its reserve agent or agents in the City of New York or in any reserve city within the Sixth Federal Reserve District; however, an institution may not settle any check drawn on it otherwise than at par. The provisions of this section do not apply with respect to the settlement of a check sent to such institution as a special collection item.


author: ORFINGER, J.

text:
    HEATHROW MASTER ASSOCIATION, INC., et al., Petitioners, v. Lisle D. ZULIA and James J. Zulia, et al., Respondents.
    No. 5D10-2573.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2011.

      Richard A. Sherman, Sr., of Richard A. Sherman, P.A., Fort Lauderdale, and J. Gregory Giannuzzi, of Rissman, Weisberg, Barrett, Hurt Donahue & McLane, Tampa, for Petitioners.
    R. Barry Morgan and Don McKeever, Winter Park, for Respondents Lisle Zulia and James Zulia.
   ORFINGER, J.

Heathrow Master Association, Inc. and Sentry Management, Inc. (collectively “Heathrow”), the defendants in a personal injury action, seek certiorari review of an order granting the plaintiff/respondent, Lisle Zulia’s motion to strike Heathrow’s expert witness, Gabor Racz, M.D. Heath-row argues that the trial court departed from the essential requirements of law by striking the expert witness because (1) neither the expert nor Heathrow were in violation of any court order and there was no motion to compel or order compelling discovery; (2) all of the information that Zulia was entitled to was provided prior to the hearing on the motion to strike; and (3) the striking of the witness was an unwarranted, extreme sanction. We grant the petition.

Zulia stepped into an uncovered irrigation pipe and suffered an abrasion on her leg. Heathrow owned the property where the injury took place. Sentry Management maintained the property and irrigation system. Following the incident, Zulia underwent significant medical treatment, and claims to suffer pain in every part of her body, both externally and internally, from the bottom of her feet to the top of her head. Zulia claims that her pain is caused by reflex sympathetic dystrophy (“RSD”). Heathrow asserts that the primary issue that the jury will be asked to decide at trial is whether Zulia’s symptoms are caused by RSD as a result of the abrasion caused by her fall, or whether the symptoms are psychosomatic or hypochon-driacal. Heathrow retained Dr. Racz, the Director of Pain Services in the Department of Anesthesiology at Texas Tech University, to review Zulia’s medical records and testify as to the cause of Zulia’s symptoms.

Zulia sought discovery from Heathrow concerning (1) the number of times that Dr. Racz testified for the defense within the past three years; (2) the identity of the specific legal actions in which Dr. Racz appeared as an expert witness or gave a deposition within the last three years; and (3) the total amount of money that Dr. Racz was paid in those cases. Heathrow complied in part and objected in part, claiming that much of Zulia’s requested discovery was improper pursuant to Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla.1999), and Elkins v. Syken, 672 So.2d 517 (Fla.1996). Rather than seeking a ruling on the objections or to compel production of the requested information, Zulia moved to strike Dr. Racz as a witness. After the court granted the motion to strike, Heathrow sought certiorari review.

The essential prerequisite to the granting of a petition for certiorari is action by the lower court that constitutes a departure from the essential requirements of law such as will cause material injury to the petitioner throughout the remainder of the proceedings below and for which a remedy by appeal would be inadequate. Brooks v. Owens, 97 So.2d 693, 695 (Fla.1957); Travelers Indem. Co. v. Hill, 388 So.2d 648, 649 (Fla. 5th DCA1980). Error in the denial of a discovery motion is generally correctable on review of the final judgment. As a jurisdictional threshold, certiorari will respond only to material, irreparable harm continuing through the rest of the proceedings. However, some denials of discovery requests cause irreparable injury due to the absence of any practicable way to determine post-judgment, the effect of the evidence on the outcome of the trial. Hill, 388 So.2d at 650.

Dr. Racz’s testimony is material to Heathrow’s ability to obtain a fair trial. Dr. Racz is Heathrow’s primary witness regarding RSD, Zulia’s primary complaint. Further, it is difficult to understand how striking the testimony of a material witness can be remedied on appeal since there is no meaningful way to determine, after judgment, what the testimony would have been or how it would have affected the result. Striking Heathrow’s witness was too drastic a sanction under the circumstances. See, e.g., Lifemark Hosps. of Fla., Inc. v. Hernandez, 748 So.2d 378 (Fla. 3d DCA 2000) (granting certiorari when testimony was material to central issue in case). As a general rule, before striking an expert witness, the trial court should “find that someone is in contempt of court or has violated an appropriate court order.” Cooper v. Lewis, 719 So.2d 944, 945 (Fla. 5th DCA 1998) (emphasis in original). In this case, there is nothing in the record to suggest that anyone disregarded a court order or impeded the administration of justice.

Finding that the trial court departed from the essential requirements of law in striking the witness, we quash the order under review.

CERTIORARI GRANTED; ORDER QUASHED.

MONACO, C.J. and COHEN, J., concur.


author: ROTHENBERG, J.

text:
    Manuel CALDERON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1641.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.

      Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell and Manuel Alvarez, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

Manuel Calderon (“the defendant”) appeals his conviction and sentence for conspiracy to commit murder in the first degree. Because the defendant was convicted of a felony that resulted in a death, the amended statute of limitations, providing that such prosecutions may be brought at any time, applies. Therefore, we reject the defendant’s argument that the charges were not timely brought and we affirm the defendant’s conviction.

BACKGROUND

Jose Patino (“the victim”) was killed in 1992, but the investigation ran cold until 1999, when a tip from a federal inmate (“the informant”) linked the defendant to the murder. The evidence — consisting principally of the informant’s trial testimony and the defendant’s statement to the police upon his arrest — revealed that the defendant was part of a group that was hired to kill the victim and dispose of his body. The group accomplished its objective. The defendant was charged with first-degree murder and conspiracy to commit first-degree murder. The jury acquitted the defendant of the murder charge, but convicted the defendant of conspiracy to commit first-degree murder.

The defendant moved to dismiss the conviction, arguing that his prosecution was barred by the four-year statute of limitations in effect in February 1992. § 775.15(2)(a), Fla. Stat. (1991). The trial court granted the motion and vacated the conviction. The State appealed, and this Court reversed. State v. Calderon, 951 So.2d 1031 (Fla. 3d DCA 2007) (“Calderon I ”). In Calderon I, this Court held that if the defendant’s case was not time-barred as of October 1, 1996, it was subject to the statutory amendment providing that a felony “that resulted in a death” can be brought at any time. Id. at 1035; see Ch. 96-145, § 1, at 130, Laws of Fla. (amending section 775.15(1) to provide that “[a] prosecution for a ... felony that resulted in a death may be commenced at any time.”). Thus, this Court remanded the case to the trial court to determine whether the case was time-barred as of October 1, 1996. On remand, the trial court: (1) extended the limitations period by three years due to the defendant’s continuous absence from this state, see § 775.15(6), Fla. Stat. (1991); (2) concluded that the case was not time-barred as of October 1, 1996; (3) denied the defendant’s motion; and (4) reinstated the conviction. This appeal followed.

ANALYSIS

1. Issues on Appeal

The defendant concedes on appeal that he was continuously absent from the state during the original limitations period, and thus, the 1996 amendment to section 775.15(1) applies to his conviction for conspiracy to commit first-degree murder if the conspiracy resulted in the death of the victim. The defendant, however, argues that conspiracy is a mere agreement to commit a criminal offense. In the defendant’s view, conspiracy is “a mere crime of words incapable of causing death,” and it cannot satisfy the “resulted in a death” requirement of the amendment to the statute of limitations. Thus, the dispositive issue is whether the defendant was convicted of a felony that resulted in a death.

Before addressing the merits, we briefly address the State’s waiver argument. In Calderon I, this Court held that the charges were filed within the applicable statute of limitations if the State could prove that the defendant was continuously absent from the state. After an evidentiary hearing, the trial court found that the defendant was continuously absent from the state, and the defendant does not dispute this finding on appeal. Accordingly, the State contends that the defendant may not now raise an alternative argument regarding the applicability of the 1996 amendment to the statute of limitations. We disagree. The argument raised by the defendant in the instant appeal was raised below, not ruled on by the trial court, not raised or addressed on appeal in Calderon 1, and raised by the defendant again on remand. We therefore find that the defendant did not waive his right to rely on the alternative ground for discharge and reversal of the trial court’s order entered on remand. See State v. Naveira, 873 So.2d 300, 304 (Fla.2004).

2. Conspiracy Exposes the Public to Harmful Results

The defendant views conspiracy as a mere crime of words, which is incapable of resulting in a death. The defendant argues, citing the familiar children’s rhyme, that “[s]ticks and stones may break my bones, but words will never hurt me.” It is true that the object of a conspiracy need not be achieved to be convicted of conspiracy, and this Court has held that the crime of conspiracy may be comprised of the “mere express or implied agreement of two or more persons to commit a criminal offense.” Jimenez v. State, 715 So.2d 1038, 1040 (Fla. 3d DCA 1998). Nevertheless, a conspiracy sometimes does result in the death of the intended victim, members of the conspiracy, or an unidentified victim.

Across the country, legislatures have enacted laws to punish those who enter into conspiracies to commit crimes, because such agreements involve real, undeniable risks. The relative ease with which a defendant may be convicted for this offense, however, does not diminish the severity of the crime or suggest that it has limited consequences. Instead, it is precisely because the dangers inherent to a conspiracy are so great that a conviction may be obtained with such relative ease. The following quotation from the United States Supreme Court is pertinent to this discussion:

[C]ollective criminal agreement-partnership in crime-presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.

Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961); see also Castro v. State, 939 So.2d 306, 310-11 (Fla. 4th DCA 2006) (noting increase in public danger caused by group criminal activity).

Thus, we reject the innocuous view of the crime of conspiracy suggested by the defendant. We re-emphasize that the “mere” act of the formation of an agreement to commit a crime is punished separately because when criminal minds act in concert, the public is exposed to a wide range of dangerous results.

3. Death is a Potential Result of Any Conspiracy

In this case, the defendant, the informant, and at least two others agreed to join together, pool their resources, and kill the victim to obtain a monetary award. The object of the conspiracy was the death of the victim. However, the general public, in addition to the victim, was exposed to an obvious risk of death as a direct result of the group’s agreement.

It is easy to imagine numerous scenarios in which members of the public other than the victim could be killed as a result of a secret agreement to gather weapons, locate and track the victim, kill the victim, and dispose of his body without being discovered. An unknown third party could stand between the killer and the victim. Mistaken identity could result in the death of an innocent party. An innocent bystander could be felled by a stray bullet. A firearm could accidentally discharge. A neighbor or police officer could discover the scheme and be killed as a result of the conspiracy. The possibilities are endless.

Death is a potential outcome of any conspiracy, even those where death is not the intended result. Federal law is replete with examples. See United States v. Harris, 701 F.2d 1095, 1101 (4th Cir.1983) (noting that death resulted from conspiracy to violate rights of certain laborers to be free from slavery although death was not intended result); United States v. Guillette, 547 F.2d 743, 748-19 (2d Cir. 1976) (concluding that death resulted from conspiracy to deprive witness of right to testify where witness accidentally killed himself with bomb intended to injure the conspirators who were known to witness); United States v. Lewis, 644 F.Supp. 1391, 1406 (W.D.Mich.1986) (finding that regardless of defendants’ intent, conspiracy to hold victims to involuntary servitude resulted in death). In short, when individuals put their minds together to achieve criminal ends, regardless of the conspirators’ intent, people die, and those deaths can be said to be a result of the conspiracy.

4. The Instant Conspiracy Resulted in a Death

Unlike the conspiracies involved in the federal cases cited above, the goal of this conspiracy was the death of the victim. Because the death of the victim was the specific goal of the co-conspirators, their agreement heightened the danger to the public and the victim. And of course, in this case, the goal of the conspiracy, the victim’s death, was attained.

As with most conspiracies, the very agreement to work together to kill the victim, provided the co-conspirators with an increase in manpower, an increase in the capacity to plan, and an increase in resources. In theory, this group dynamic astronomically raised the chances that their objective would be attained (the victim would be killed), no one would back out of the plan, and if someone did back out, he would be replaced. See Callanan, 364 U.S. at 593-94, 81 S.Ct. 321. In the instant case, the defendant and his co-conspirators devised and executed a complex and successful plan. As a consequence of the group’s concerted action, the victim was killed, and the co-conspirators escaped the attention of the authorities.

Accordingly, we reject the defendant’s argument that his acquittal on the substantive murder charge prevents a finding that the conspiracy resulted in a death. The defendant and his co-conspirators conspired to kill the victim and the victim was murdered as a result of the conspiracy. The fact that the defendant was acquitted of the charge of participating in the actual murder does not negate his participation in the plan to take the victim’s life. This conclusion is not without precedent.

In United States v. Aller, 384 Fed.Appx. 34, 35-36 (2d Cir.2010), Kevin Aller (“Alter”) was convicted on charges of RICO conspiracy, narcotics conspiracy, and conspiracy to commit murder in aid of racketeering. Id. at 35. Alter was also charged with, but acquitted of, the substantive charge of murder. Id. at 36. The sentencing judge increased Aller’s base offense level based on a finding that the conviction for conspiracy to commit murder “resulted in the death of a victim.” Id. Alter argued that the sentencing judge erred in finding that the conspiracy resulted in a death because he was acquitted of the underlying murder. Id. The Second Circuit held that Aller’s argument was “unavailing,” and that for the purposes of enhanced sentencing, the judge properly relied on the fact that the conspiracy resulted in the victim’s death. Id.

We agree with the Second Circuit. The evidence in this case leaves no doubt that the defendant was part of a concerted plan to murder the victim and dispose of his body. The conspiracy heightened the chances of the criminal design’s success, as well as the danger of injury and death to the victim and to the public at large. While the public was spared on this occasion, the victim was not, and thus, the instant conspiracy resulted in a death.

5. The Instant Conspiracy Falls Under the Amended Statute of Limitations

The final question to be resolved is whether this conspiracy to commit first-degree murder “resulted in a death” for the purposes of the amended statute of limitations providing that such prosecutions may be brought “at any time.” Ch. 96-145, § 1, at 130, Laws of Fla.; see § 775.15(l)(a), Fla. Stat. (2000) (providing, as amended, that prosecution for felony resulting in death may be commenced “at any time”). We hold that a conspiracy to commit first-degree murder can result in death, and in such situations, the co-conspirators are subject to prosecution at any time.

We begin our analysis of section 775.15(l)(a) with consideration of its plain meaning. See Fla. Birth-Related Neuro. Injury Comp. Ass’n v. Dep’t of Admin. Hearings, 29 So.3d 992, 997 (Fla.2010); State v. Cohen, 696 So.2d 435, 438 (Fla. 4th DCA 1997). When used in conjunction with the word, “in,” the verb “result” simply means “[t]o end in a particular way.” The American Heritage Dictionary of the English Language 1109 (1979 ed.). Death is a requirement for the purposes of the amended statute, and thus death was the “particular way” in which the conspiracy had to end for the amended statute to apply. Here, that requirement was met when the conspiracy to commit first-degree murder ended in the victim’s death. Accordingly, the instant conspiracy resulted in a death, and falls within the purview of section 775.15(l)(a), as amended.

Finding the language of that section clear and unambiguous, there is no need to apply any other means of statutory construction. Fla. Birth-Related Neuro. Injury Comp. Ass’n, 29 So.3d at 997. However, and although it is not necessary to our conclusion, we find persuasive a portion of the Second Circuit’s decision in United States v. Guillette, 547 F.2d at 748-49.

In Guillette, the court interpreted a sentencing provision providing for life imprisonment “if death results from a prohibited conspiracy.” Id. at 748. The defendants challenged their conspiracy convictions, in part, because the trial court refused to provide a jury instruction stating that death cannot result from a conspiracy where the death was accidental, or the jury finds beyond a reasonable doubt that the death was not deliberate. Id. The Second Circuit rejected the narrow, direct causation view of the phrase “if death results” argued by the defendants. Id. at 749. Specifically, the court held:

We find the principle of proximate cause embodied in [the sentencing provision] through the phrase “if death results.” .... To confine the meaning of “result” to • direct causation not only would be at odds with common law principles of legal causation but also would seriously impair the effectiveness of [the sentencing provision].

Id.

We agree with the Second Circuit’s analysis. Our legislature deliberately chose to remove the limitations period from “any felony,” House of Representatives Committee on Criminal Justice Analysis & Financial Impact Statement, CS/HB 23 (Fla. May 20, 1996), “that resulted in a death,” rather than limiting its application to those felonies where death is an element of the crime charged. Ch. 96-145, § 1, at 130, Laws of Fla. We must conclude that the legislature was aware of the breadth of these phrases, and we must give those phrases full effect. Because the instant conspiracy to commit first-degree murder is a felony that resulted in a death, the amended language of section 775.15(l)(a) applies to the defendant’s prosecution.

CONCLUSION

Conspiracy to commit first-degree murder is itself a serious crime, separate from the underlying substantive offense. This conspiracy carried with it a host of potentially harmful results. Among those results, without question, was death. Here, the victim’s death was the object of the conspiracy in which the defendant was involved. Due in no small part to the concerted actions of the group, the instant conspiracy achieved its criminal objective. Thus, for the purposes of section 775.15(l)(a), as amended, the instant conspiracy resulted in a death.

We therefore find that the State’s prosecution of the defendant was not barred by the statute of limitations. We do not address the remaining arguments raised by the defendant on appeal as they were either abandoned by the defendant at oral argument, or are without merit.

Affirmed.

      . Of course, we recognize that every conspiracy does not result in a death. In fact, Florida's case law includes a number of examples of convictions for conspiracy to commit first-degree murder that did not involve any death. See Samuels v. State, 11 So.3d 413, 415 (Fla. 4th DCA 2009); Castro v. State, 939 So.2d 306, 308 (Fla. 4th DCA 2006); Johnson v. State, 799 So.2d 387, 387-88 (Fla. 4th DCA 2001); State v. Spioch, 706 So.2d 32, 33-34 (Fla. 5th DCA 1998).


author: PER CURIAM.

text:
    BROWARD COUNTY, Appellant, v. Gregoire CIDOINE, Appellee.
    No. 4D09-2381.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.
    Rehearing Denied Feb. 22, 2011.
    Jeffrey J. Newton, Broward County Attorney, James D. Rowlee, Senior Assistant County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and Benjamin R. Salzil-lo, Assistant County Attorney, Fort Laud-erdale, for appellant.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., and Robert J. McFann of McFann & Beavers, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Affirmed. See Sossa v. Newman, 647 So.2d 1018 (Fla. 4th DCA 1994).

POLEN, CIKLIN and LEVINE, JJ., concur.


author: CORTIÑAS. J.

text:
    MARIO’S ENTERPRISES PAINTING & WALLCOVERING, INC., Appellant, v. VEITIA PADRON INCORPORATED, Appellee.
    No. 3D10-259.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.

      Malka & Kravitz and Harry Malka and Ian T. Kravitz, Fort Lauderdale, for appellant.
    Sinclair, Louis, Heath, Nussbaum & Za-vertnik and John L. Zavertnik, Miami; Guillermo F. Mascaro, Coral Gables, for appellee.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   CORTIÑAS. J.

Pursuant to its contract with the School Board of Miami-Dade County (“School Board”), Veitia Padrón, Inc. (“VPI”) served as construction manager and general contractor on the renovation of the Feinberg Fisher Elementary School (the “Project”). VPI was also awarded the subcontract for the painting work to be performed on the Project. VPI then entered into a separate contract (the “Painting Contract”) with Mario’s Enterprises Painting & Wallcovering, Inc. (the “Painter”) for the paint-related work. Soon after the painting began, VPI notified the Painter of several deficiencies in the paint work performed on Building 7 of the Project. After being notified of the defective work, the Painter submitted change orders to VPI totaling approximately $161,000 for the work necessary to correct the identified paint issues.

Before the commencement of any corrective work, lead was discovered on the Project. While it appears that VPI made several attempts to schedule meetings with the Painter after the discovery of lead, the Painter was reticent to meet until the completion of the report by EE & G, the School Board’s lead remediation specialist. Despite receiving correspondence from the School Board’s Department of Asbestos Management advising that tested lead exposure levels in Building 7 were well-below OSHA’s acceptable exposure limits both before and after the Painter performed work, the Painter refused to return to the Project or meet with VPI until a lead report on the entire Project was complete. Ultimately, VPI, following the School Board’s demand, advised the Painter that if it did not return to Building 7 within seventy-two hours, VPI would take all steps necessary to complete the work in its absence. When the Painter failed to return to the Project, VPI hired a replacement painting subcontractor to complete the Project. The Painter later sued VPI for breach of contract, seeking damages for lost profits. VPI counter-sued, also for breach of contract, seeking the additional costs of completing the work on the Project. After a non-jury trial, judgment was entered in favor of VPI, awarding damages equal to the costs of completing the Project. This appeal followed.

“When a decision in a non-jury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence.” Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) (citing In re Estate of Sterile, 902 So.2d 915, 922 (Fla. 2d DCA 2005)). It is well-established that “the trial judge is in the best position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses.’ ” In re Estate of Sterile, 902 So.2d at 923 (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)). Here, several of the actions and inactions of both parties were in dispute during the four-day trial. After hearing witness testimony, and weighing the evidence presented by both the Painter and VPI, the trial court found that certain actions taken by the Painter “were merely excuses for its refusal to return to the painting work under the [Painting Contract],” and that the Painter “was rightfully terminated by [VPI] when [the Painter] refused to return to work on Building 7 without any legal excuse or justification for said refusal and in violation of the express subcontract terms.” After a thorough review of the trial transcript and the exhibits presented at trial, there is sufficient competent evidence in the form of correspondence and witness testimony in the record to uphold the trial court’s findings that the Painter’s actions were essentially delay tactics and that it was properly terminated by VPI.

We affirm on all other points.

Affirmed.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Benjamin E. SMITH, Appellee.
    No. 5D09-1855.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellee.
   GRIFFIN, J.

In 2000, Benjamin Smith [“Smith”] was found guilty of first degree murder, attempted first degree murder and attempted burglary of a vehicle. He was sentenced to life imprisonment for the murder, fifteen years for the attempted murder and three years for the burglary. This Court per curiam affirmed his initial appeal. See Smith v. State, 787 So.2d 874 (Fla. 5th DCA 2001).

The events surrounding the trial and the trial testimony were set forth by this Court in a prior opinion:

On February 3, 1996, at approximately 10:30 p.m., the victims, Ellis Tapley and Kenneth Dozier, and several of their friends and family members attended a monster truck rally at the Citrus Bowl in Orlando. As they were returning to their vehicles, one of the friends, Terry Manley, spotted a young black male trying to break into Dozier’s Ford Explorer. Manley ran ahead to the Explorer causing the would-be burglar to flee. Manley, Dozier, Tapley and another friend, Lee Keith, began to chase the suspect. During the chase, the suspect shot Tapley and Dozier. Tapley died at the scene, while Dozier was paralyzed from the chest down as a result of the shooting. A motorcycle police officer joined in the chase and exchanged gunshots with the fleeing suspect. However, the suspect was able to escape into a nearby neighborhood. The police officer was never close enough to the suspect to identify him.
Ms. Pauldo was the only witness to the shooting of Tapley. She was parked at the side of the roadway to pick up her child who had been taken to the rally by a relative. She heard a commotion and, although it was dark, observed several men chasing a black male. She heard a gunshot and then saw the black male shoot Tapley. She testified at trial that she was able to see the suspect “squarely in the face” before he escaped....

Smith v. State, 990 So.2d 1199, 1200 (Fla. 5th DCA 2008).

Two years after the trial, Ms. Pauldo learned that Smith was the nephew of one of her acquaintances, Rufus Shinn. Smith’s aunt informed Ms. Pauldo that Smith was innocent. Ms. Pauldo was later contacted by an attorney for Smith and, in 2004, she gave a sworn statement, which formed the basis for Smith’s 2006 motion for postconviction relief, based on “newly discovered evidence.” The motion asserted that “the sole witness to the incident, Mazie Pauldo [formerly known as Mazie Jackson], has recanted and substantially changed her 1996 and 1998 statements.” In her statement attached to the rule 3.850 motion, Ms. Pauldo said that Smith was not the individual who shot Tapley and Dozier. She further averred that a police officer who had previously arrested her on drug charges threatened to have her put in jail if she did not cooperate by identifying the suspect. Additionally, Ms. Pauldo claimed that she was promised crime stopper reward money if she identified Smith. At trial, the defense had not been permitted to ask Ms. Pauldo whether she received, or expected to receive, reward money. Ms. Pauldo further averred that, at the photo line-up, Detective Gause showed her a picture of Smith and wanted her to identify him as the shooter. She said she gave in to the pressure and agreed that the person in the photograph was the shooter. Later on, immediately prior to the show-up, she claimed a detective again showed her a photograph of Smith and stated he did so “to keep [her] memory fresh.” In her sworn statement, Ms. Pauldo also alleged that she had been told not to tell anyone that she had been shown Smith’s photograph immediately prior to the line-up.

Another important aspect of Ms. Paul-do’s sworn statement is her insistence that the ten-year-old boy, Tommy Whitmer, was not present at the scene. This testimony is significant because of Tommy Whitmer’s positive identification of Smith at the pre-trial line-up and at trial.

The trial court initially denied Smith’s second 3.850 motion, finding that this additional ground for relief was known to Smith and his counsel prior to the trial court’s denial of his first rule 3.850 motion. The trial court additionally found that there was no reasonable probability that this recantation of Ms. Pauldo’s trial testimony would cause a different result upon retrial. Smith appealed that decision and this Court reversed and remanded the case for an evidentiary hearing. Specifically, this Court said:

Here, the trial court’s order downplayed the significance of Pauldo’s new testimony. Pauldo’s post-trial statement is not only a recantation of her identification of Smith as the shooter in a photo array and at a line-up, but it is also impeachment evidence as to the identification testimony of Lee Keith and Tommy Whitmer. § 90.608, Fla. Stat. (2008). If the trier of fact was to accept Pauldo’s testimony that Whitmer was not in the immediate vicinity of the fleeing suspect on the night of the shootings, the State’s evidence regarding identification would be significantly weaker and it would seem unlikely, given all the other evidence in the case, that Smith would be convicted.

Id. at 1205-06 (footnote omitted).

At the rule 3.850 hearing, Ms. Pauldo’s testimony, in most respects, mirrored her sworn statement. Detective Gause testified at the evidentiary hearing and denied any misconduct and denied any knowledge that the show-up was tainted. The other detective assigned to help Detective Gause also testified and denied all of Ms. Pauldo’s allegations. The prosecutor testified that Ms. Pauldo was a cooperative witness, and he never threatened her with jail in order to make her testify.

During closing arguments, the parties and the court discussed the issues before the lower court. The trial court made several statements, although it is unclear whether he intended them to be findings. The trial court observed that Ms. Pauldo’s testimony was not credible and that it was only Ms. Pauldo’s trial testimony that convicted Smith. The trial court expressed concern that the jury never learned that Ms. Pauldo received a $4,000 reward from Crime Stoppers because of her identification. The trial court observed that it was “not convinced that the trier of fact would have convicted [Smith] based on the lack of credibility had they known that testimony.” The trial court adverted to the statement in this Court’s prior opinion that “if the trier of fact were to accept her testimony that Whitmer was not in the immediate vicinity the State’s evidence regarding identification would be significantly weaker and it would seem unlikely given all the other evidence that Smith would have been convicted.” The court subsequently entered an order granting Smith a new trial.

The appealed order is deficient in two respects. First, the order lacks any findings. Dillbeck v. State, 882 So.2d 969, 972 (Fla.2004). Even if the statements made by the trial court could be characterized as findings supporting the order, they leave this Court unable to determine whether the order granting a new trial to Smith can be sustained on any basis. Also, the statements made by the trial court suggest that the decision was based on evidence received at the evidentiary hearing concerning Ms. Pauldo’s receipt of tip reward money.

The fact that the jury never learned that Ms. Pauldo received reward money is not an adequate basis to award a new trial based on newly discovered evidence. The supreme court has said that, in order to prevail on newly discovered evidence, the defendant must establish that: (1) the evidence has been discovered since the former trial; (2) the evidence could not have been discovered earlier through the exercise of due diligence; (3) the evidence is material to the issue; (4) the evidence goes to the merits of the case and not merely impeachment of the character of the witness; (5) the evidence must not be merely cumulative; and (6) the evidence must be such that it would probably produce a different result on retrial. State v. Spaziano, 692 So.2d 174, 176 (Fla.1997). Here, as the trial court observed, the issue of whether Ms. Pauldo received a reward would be, at most, impeachment material.

Second, the trial court’s disallowance of testimony concerning the reward was not challenged on appeal. Smith’s trial counsel attempted to question Ms. Pauldo concerning any inducement she might have been given to testify, but the trial court sustained the State’s objection. Assuming that was error, it should have been raised on appeal.

No findings were made by the trial court on Ms. Pauldo’s allegations of prosecutorial misconduct, except for the court’s observation that Ms. Pauldo was not credible. Given the trial court’s finding that Ms. Pauldo was not a credible witness, Ms. Pauldo’s allegations concerning prosecuto-rial and police misconduct carry little weight.

Finally, there is the question of the recantation of Ms. Pauldo’s identification testimony at trial. For reasons unclear on our limited record, Ms. Pauldo apparently did not identify Smith in court; rather, her testimony focused on the photo line-up and the show-up identification. She confirmed at trial that she had identified Smith as the shooter from the photo line-up and again at the show-up identification. She was cross-examined about inconsistencies in her initial description of the assailant from the night of the shooting and Smith’s actual appearance. Ms. Pauldo claimed that the assailant had dark knuckles, was a young adult, no older than nineteen and was about 5'11 to 6 feet tall. During cross-examination, the following exchange concerning her observations took place:

Q [N]ow, I’m going to ask you some question [sic] about identification of Mr. Smith. Mr. Smith, I’m going to ask you to rise, please. Would you hold your hands out, out front there? (Defendant complies) You said that the individual that did this had dark knuckles. Mr. Smith doesn’t have dark knuckles, does he?
A No. I don’t see them now.
Q You said you saw that that night because you honed in on that gun?
A Yes, yes, It was right on the top.
Q You can see Mr. Smith from where he’s standing right?
A Yes.
Q Is he taller than me?
A He’s just a little.
Mr. Nesmith: I think the record reflects and Mr. Ashton said the defendant is roughly five feet seven.
Q So he’s not six feet tall, is he?
A No.
Q Okay. May I? Ma’am, take a look at him. That’s not the man you saw that night, is it?
A He looks a little different now. I mean he’s not dark and his [sic] has more hair.
Q He’s not the man you saw, is it?
A I don’t know. What you want me to say to that one?
Q I want you to tell the truth.
A It’s not the guy that — he doesn’t look the same from the picture or the line-up.

Based on the foregoing, we reverse the new trial order, but, out of an abundance of caution, we remand to the trial court so that express findings can be made, if warranted, on the claim of prosecutorial and police misconduct, that would support the court’s prior decision to grant a new trial.

REVERSED and REMANDED.

TORPY and COHEN, JJ., concur.

      . The fifteen-year sentence and three-year sentence were to be served concurrently with each other, but consecutive to his life sentence.

      . Smith’s first 3.850 postconviction motion was per curiam affirmed by this Court. Smith v. State, 894 So.2d 263 (Fla. 5th DCA 2005).


author: COHEN, J.

text:
    Kevin Anthony DYBALSKI, Appellant, v. Angela Lynne DYBALSKI, Appellee.
    No. 5D09-1131.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.

      Michael M. Naughton of Law Offices of Michael M. Naughton, Jacksonville, for Appellant.
    Steven J. Guardiano, Daytona Beach, for Appellee.
   COHEN, J.

Kevin Anthony Dybalski, former husband, challenges a supplemental final judgment. We agree that reversal is required.

Immediately before a scheduled trial, the trial court approved a consent final judgment that disposed of most of the issues. Under the consent final judgment, the parties agreed on the resolution of primary physical residency, visitation, child support, and almost all issues concerning the distribution of assets and debts, also, purportedly, including the marital residence. According to the parties, this left only three issues to be tried: former husband’s entitlement to a special equity in the marital home, former wife’s liability for debts incurred by former husband’s business, and former wife’s entitlement to the sales proceeds of two properties sold by former husband’s business. The parties do not appeal the trial court’s ruling on these issues.

While attempting to resolve the three issues, it became apparent that, notwithstanding the language in the consent final judgment, the parties had not, in fact, agreed upon the disposition of the marital home. During the parties’ testimony, the trial court received evidence that former husband borrowed approximately $165,000 from a line of credit secured by the marital home. Those funds were then loaned to a friend, although former husband misrepresented the nature of the loan. Former husband testified that he was using the income from the loan to pay his child support obligations. This came as somewhat of a surprise to former wife because former husband, blaming his mid-stream change of counsel, had not complied with discovery demands.

The trial court refused to reward the former husband’s non-compliance. In the supplemental final judgment, the trial court awarded former wife a half interest in the loan, as well as the equity in the marital home after the proceeds from its sale were used to satisfy the loan. The trial court also permitted either party to make the monthly payments on the line of credit and be awarded a credit upon the sale of the marital home, and further granted former wife the right to refinance the home and pay off the line of credit, thereby becoming the owner. Although agreeing that former husband’s failure to comply with discovery should not be rewarded, we are compelled to reverse because the relief in the supplemental final judgment resulted in a significantly unequal disposition of assets and debts without explanation, and we are unwilling to speculate as to the trial court’s motives.

The only aspect of the supplemental final judgment former husband challenges is the award of the equity in the marital home to former wife. According to former husband, the consent final judgment entitled him to have the line of credit paid off plus half of the remaining proceeds. Former husband argues that the trial court lacked jurisdiction to alter the terms of the consent final judgment, citing Hobus v. Crandall, 972 So.2d 867 (Fla. 2d DCA 2007), and De Peyster v. De Peyster, 629 So.2d 221 (Fla. 4th DCA 1993). Neither aspect of this argument is persuasive.

First, the consent final judgment did not entitle former husband to have the line of credit paid off plus half of the remaining proceeds. Second, by seeking a special equity in the proceeds of the sale of the marital home, former husband sought to vary the terms of the consent final judgment and therefore, the disposition of the marital home was contested and tried by consent. This conclusion is further bolstered by the fact that the line of credit and “loan” to former husband’s friend was not disclosed, nor addressed in the consent final judgment. It is disingenuous for former husband to seek a special equity, be aware that the previously undisclosed line of credit would need to be satisfied from the proceeds of the sale of the marital home, and still argue that the language in the consent final judgment prohibited the trial court from exercising its role of doing equity between the parties. As the trial court correctly noted, former husband “wanted to have his cake and eat it too.”

In fairness to former husband, we recognize that he used the line of credit on the marital home to operate his business during the marriage. Former husband would buy property and when his business line of credit was insufficient to fully purchase or develop the property, he would borrow on the marital home. Upon selling the property, he would use the proceeds to pay down the balance of the line of credit. The downturn in the real estate market no doubt negatively impacted former husband’s business and we do not ascribe evil motives to his drawing on the line of credit. However, it was not timely disclosed.

Although we reject former husband’s arguments for reversal, the supplemental final judgment inequitably distributed the proceeds from the marital home. As aforementioned, former wife was awarded all the equity in the home, the amount remaining after the line of credit was satisfied, plus one half of the “loan” to former husband’s friend. According to the supplemental final judgment, the outstanding balance on the line of credit was $160,000. The undisputed testimony at trial was that the marital home’s appraised value was $330,088, and the amount of the loan to former husband’s friend was $165,000.

Under the supplemental final judgment, former wife would receive approximately $170,000, not including costs of the transaction, from the sale of the marital home plus $82,500, representing her half-interest in the loan. In total, former wife would receive $252,500. In contrast, former husband would receive $82,500 for his interest in the loan plus $0 from the sale of the marital home because his share would be used to satisfy the line of credit. However, the trial court did not justify this unequal distribution with any findings. As this court has recognized, “[a]n equal division of marital assets is presumptively proper under section 61.075 and thus an unequal distribution must be justified by findings made by the court.” Porzio v. Porzio, 760 So.2d 1075, 1077-78 (Fla. 5th DCA 2000); Guobaitis v. Sherrer, 18 So.3d 28, 31 (Fla. 3d DCA 2009).

The trial judge did an admirable job of trying to balance the equities with little help from the attorneys. We remand for reconsideration of the equitable distribution scheme concerning the marital home and the loan.

REVERSED and REMANDED.

EVANDER and JACOBUS, JJ, concur.

      . This amount, perhaps, is a scrivener's error in light of the testimony at trial indicating that the outstanding balance was $167,175.70.


author: DAMOORGIAN, J.

text:
    Gustav Peter FINKEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-249.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Gustav Peter Finkel assigns error to his judgment and sentence for grand theft. Finkel was charged with the crimes of burglary of a dwelling (Count I) and grand theft of property and currency in excess of $100,000.00 (Count II). After a jury trial, Finkel was found guilty of Count I, as charged, and petit theft, a lesser-included offense of the grand theft as charged in Count II. For reasons not entirely clear from the record, the judgment reflects that Finkel was found guilty of grand theft as to Count II. Moreover, the sentencing order imposed a sentence of 27.75 months imprisonment for each count, with each sentence to run concurrent with the other. Finkel argues that the judgment adjudicating him guilty of grand theft is fundamentally erroneous because the jury found him guilty of the petit theft, a second degree misdemeanor. See Miller v. State, 764 So.2d 640, 645 (Fla. 1st DCA 2000). Moreover, the concurrent sentence of 27.75 months appended to what should have been the second degree misdemeanor count exceeds the maximum sentence of 60 days incarceration. See § 812.014(3)(a), Fla. Stat. (2009); § 775.082(4)(b), Fla. Stat. (2009). Therefore, the sentence is illegal. Rightfully so, the State concedes error.

Accordingly, we remand with directions to the trial court to correct the written judgment, so that it reflects the jury’s verdict on Count II, finding Finkel guilty of petit theft. On remand, the trial court shall resentence Finkel on Count II to a sentence not to exceed the maximum permitted by law.

Affirmed and Remanded to Correct Judgment and Sentence.

POLEN and GERBER, JJ., concur.


text:
    Calvin FELTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4852.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Calvin Felton, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We treat appellant’s petition as a motion for post conviction relief under Florida Rule of Criminal Procedure 3.850 and affirm.

Affirmed.

GROSS, C.J., MAY and LEVINE, JJ., concur.


text:
    Ronald KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-336.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Ronald King, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Ronald King filed a rule 3.800(a) motion contending that the trial court incorrectly calculated his jail credit in his three cases. We find that this has already been remedied and dismiss the appeal as moot.

On May 28, 2009, King filed his first rule 3.800(a) motion to correct sentencing error. While the State conceded that King was entitled to 386 days of jail credit, the court denied King’s motion. King then filed a second rule 3.800(a) motion and the court granted it, ordering the clerk to prepare an amended sentence awarding King 386 days of jail credit in his three cases. Although he received the relief requested, King appealed. King then filed a motion to define or clarify his sentence, alleging that only one case was credited the proper amount of jail time.

This court’s records in case number 4D09-4357, where King has appealed the corrected sentence, demonstrate that all three cases have been amended to reflect 386 days of jail credit. King filed this appeal before the Clerk of Court created the sentencing documents. The corrected sentences have since been forwarded to the Department of Corrections.

Accordingly, this appeal is dismissed as moot.

HAZOURI, DAMOORGIAN and GERBER, JJ., concur.


author: WARNER, J.

text:
    Lee C. BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-569.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Lee C. Black, Indiantown, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the denial of appellant’s motion to correct an illegal sentence. The trial court correctly found that the appellant was procedurally barred from raising his claim. Appellant raised the identical issue in a prior rule 3.800 motion that was fully litigated and denied by the trial court. See State v. McBride, 848 So.2d 287, 288-91 (Fla.2003). A prior judgment on the merits is final with regard to all matters addressed by the trial court in that order, even if the order was never appealed to the District Court of Appeal. Id. at 292.

In any event, there was no error in appellant’s habitual felony offender (HFO) sentences for armed robbery and armed burglary, as the sentencing court had the authority to sentence appellant to life imprisonment as an HFO for those offenses. Armed robbery and armed burglary are first-degree felonies punishable by life, not life felonies. See §§ 812.13(2)(a), 810.02(2)(b), Fla. Stat. (1996); see also Franke v. State, 997 So.2d 424, 425-26 (Fla. 2d DCA 2008) (holding that armed robbery and armed burglary cannot be reclassified to life felonies under section 775.087(1), Florida Statutes, because the use of a weapon or firearm is an essential element of each offense). First-degree felonies punishable by a term of years not exceeding life imprisonment are subject to enhancement under the habitual offender statute. See Burdick v. State, 594 So.2d 267, 271 (Fla.1992) (holding that a first-degree felony punishable by life was subject to an enhanced sentence pursuant to the provisions of the habitual felony offender statute, which at the time provided for sentence enhancement for first-degree felonies but not life felonies).

With respect to appellant’s double jeopardy claim, a claim that a judgment of conviction was entered in violation of double jeopardy protections cannot be raised in a rule 8.800(a) motion because the challenge is to the conviction and not to the sentence. Henry v. State, 920 So.2d 1204, 1205 (Fla. 4th DCA 2006); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005); Smith v. State, 886 So.2d 336, 337-38 (Fla. 5th DCA 2004).

Affirmed.

POLEN and STEVENSON, JJ., concur.


text:
    Raymond M. WILLIAMS, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 5D09-1226.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Raymond M. Williams, Palatka, pro se.
    Alexis M. Yarbrough, General Counsel, and Gregory G. Costas, Assistant General Counsel, of Department of Transportation, Tallahassee, for Appellee.
   PER CURIAM.

Raymond M. Williams [“Williams”] appeals a final order entered by the Public Employees Relations Commission [“the Commission”], upholding the Department of Transportation’s [“the Department”] discharge of Williams for violating agency rules and for conduct unbecoming a public employee.

Williams was hired by the Department on November 19, 2003, as a project inspector working out of the Department’s Palat-ka Construction office. He was employed in that position until discharged on December 9, 2008, for violating the Department’s Violence Free Workplace policy. Nineteen employees work in the Palatka office, one of whom was Patrick Feher [“Feher”], also a project inspector.

Williams’ discharge arose out of an incident that took place on December 3. The Resident Engineer, William Craig [“Craig”], and other employees were discussing the Department’s discharge of an employee in another office for personal use of his work computer and the need for a meeting with all Palatka employees to discuss what occurred. As they were discussing the issue, Williams and Feher arrived at the office. The day before, Feher had found on the office printer a copy of a hunter education certificate made out to Williams. Feher told Jason Johns, another Department employee, that he was going to contact district headquarters in Lake City about Williams using the work printer for personal reasons. When asked by Jason Johns why Feher would do that, Feher responded: “I do not like that big headed f* *ker.”

Feher then informed the group discussing the other employee’s discharge that Williams had used the Department’s equipment to print his certificate and that he was going to inform “Lake City” about the improper use. Williams overheard Feher’s remark and told Feher to mind his own business because he had printed the certificate “on my lunch hour.” The Palat-ka office policy permits employees to make limited use of office equipment for personal matters before work, during lunch, or after work.

Feher responded that it was not appropriate to use office equipment at lunch, and said he was going to prove it by contacting Lake City. He then called someone in the district office and left a message on an answering machine. He returned to the office where Williams was located and announced, “You’ll be getting a call later” and left.

After Feher departed, Williams said within earshot of other employees: “If he gets me fired, I’ll get my gun and blow his guts out.” Even though he did not feel an actual threat had been made, Craig directed all of the observers to write reports of the incident. Williams, himself, haiidwrote a statement that day, admitting that he made the statement, apologizing for his behavior and explaining that he “[l]ost [his] cool.” Feher later learned of Williams’ statement from a co-worker and demanded to Craig that Williams be disciplined. Williams was subsequently discharged.

Williams appealed his termination to the Commission and a hearing officer was appointed to conduct a hearing. After the hearing was conducted, the hearing officer, in a proposed order, set forth the facts and concluded that Williams’ statement was “a verbal exclamation of his frustration with Feher, not an actual threat to harm him” and recommended that Williams be reinstated with back pay and benefits. The Department filed exceptions to the proposed order, and, by final order rendered March 27, 2009, the Commission modified several of the findings of fact, rejected the hearing officer’s analysis of the dispositive legal issues, and concluded that the Department had cause to discharge Williams.

Williams contends on appeal that the Commission erred in rejecting the hearing officer’s conclusion that the Department did not have cause to discipline Williams because Williams’ statement was not an actual threat. Specifically, Williams challenges the Commission’s rejection of the hearing officer’s finding in paragraph 6 of the proposed order that no one was frightened by Williams’ statement or that the employees who witnessed the statement believed the statement to be a threat:

6. After Feher departed and was out of hearing range, Williams stated, “If he gets me fired, I’ll get my gun and blow his guts out.” Based on all the witnesses’ recollections, I find that Williams was angry but did not raise his voice when he made the statement. Resident Engineer Craig had been on the telephone and heard raised voices in the earlier discussion. After he completed his call, he walked into the room and spoke to Williams, who calmed down immediately. Craig did not believe Williams was seriously threatening anyone; none of the witnesses who observed the incident believed that Williams was threatening anyone. None of the witnesses who appeared at the hearing are afraid of working with Williams.

The Department’s exception to this finding asserted that the witnesses testified only that they did not feel personally threatened and pointed out that the persons who heard the threats had no reason to be fearful because Williams was not threatening them. Instead, Williams’ comments were directed to Feher. The Commission granted the Department’s exception six, stating:

In exception six, the Agency contends that the hearing officer’s statement in finding six, sentence five, that none of the witnesses who observed the incident believed that Williams was threatening anyone, is not supported by competent substantial evidence. Our review of the record reveals that the witnesses who observed the incident testified that they were not scared of Williams or afraid to be around him. None stated that they did not believe Williams was threatening anyone. Thus, this exception is granted, and finding six is modified accordingly.

After reviewing the testimony, we find no error in the granting of the exception on the modification of finding 6. Nor do we find merit in the remaining issues raised on appeal. The Commission’s conclusion concerning the evidence is supported by the hearing officer’s findings of fact as modified and adopted by the Commission. There is evidentiary support for the Commission’s conclusion that the Department had cause to discharge Williams.

AFFIRMED.

GRIFFIN, SAWAYAand LAWSON, JJ., concur.

      . The Department’s Violence-Free Workplace Environment policy provides in pertinent part:
      OBJECTIVE:
      It is the Department’s intent to maintain a violence-free workplace by creating a business environment with a zero tolerance of behavior which leads to harassment and violence. This includes domestic violence as defined in Section 741.28, Florida Statutes. This policy is established to provide for a productive work environment and the individual welfare and security for all Florida Department of Transportation employees, customers, vendors, contractors and other person(s) present on official FDOT business. [Emphasis original]
      POLICY:
      It is the Department's intent that no person shall harass or harm employees, members of the general public, officials, contractors, vendors or customers of the Department in State offices, facilities, work sites, vehicles, or while conducting State business by exhibiting verbally or physically abusive or harassing behavior including, but not limited to the following: [Emphasis original]
      VERBAL ABUSE:
      Threats toward persons or property; the use of vulgar or profane language toward others; disparaging, derogatory comments or slurs; intimidation, or name-calling.

      DISCIPLINARY ACTION:
      Any violation of this policy by FDOT employees will be grounds for disciplinary action in accordance with disciplinary standards and disciplinary action provisions contained in Department Procedure No. 250-012-011, Disciplinary Action. Violence by non-FDOT employees should be promptly reported to management or law enforcement authorities, as appropriate.


author:
PER CURIAM.
      TORPY, J.,

text:
    Patrick PALUMBO, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1275.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Paul A. Gionis and Spiro J. Verras of Bilirakis Law Group, LLC, Holiday, and R. Scott Andringa of R. Scott Andringa, Esq. LLC, Largo, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR WRITTEN OPINION

PER CURIAM.

We grant the motion for written opinion and withdraw the previously issued decision, which affirmed without opinion, citing State v. Pate, 656 So.2d 1323 (Fla. 5th DCA 1995).

Appellant was convicted by jury of capital sexual battery and lewd or lascivious molestation of a young girl. He contends that the evidence was insufficient to support the sexual battery conviction because his penis did not penetrate the victim’s “vagina,” as defined in the technical, medical sense — meaning just the passageway between the cervix and the vulva. We have previously held that the statute criminalizes “union” with the “vagina,” including, in this context, the entire vulva area and not just the passageway between the cervix and the vulva. Pate, 656 So.2d at 1326. No elaboration of our prior panel opinion is necessary. We acknowledge conflict with the Second District’s decision in Richards v. State, 738 So.2d 415 (Fla. 2d DCA 1999). Appellant made additional arguments in his initial brief, but his motion for written opinion is appropriately confined to this one issue. We affirm on all issues raised in the appeal without further discussion.

We deny Appellant’s motions for rehearing and certification of a question of great public importance.

AFFIRMED.

LAWSON and EVANDER, JJ., concur.

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

TORPY, J.,

concurring specially.

The victim testified that Appellant removed his clothes, her clothes and then held her by the shoulders while he pushed her up and down, repeatedly causing his penis to come in contact with her “vagina,” until he apparently ejaculated (the young victim testified that she felt something slimy on her vagina). Although she felt his penis hit her “vagina” repeatedly, she admitted that it did not go “inside her vagina.”

Although a dictionary might be a reliable resource to determine the meaning of a word used in a statute, just like any other tool of statutory construction, its definition is by no means conclusive. Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995). Dictionaries represent the opinion of the author(s) of the meaning of a word without regard to the particular context in which the word is used. Context is as important as the definitions of the individual words in determining what is meant by a statute. As Judge Learned Hand said, “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.” Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir.1934). Some dictionaries have the objective to record and report the way words are actually used in our society; others tend to prescribe proper usage, thereby perpetuating traditional definitions, even in the face of wide-spread changes in use. As a general proposition, dictionaries are hardly fixated on the pulse of our rapidly evolving language in our multi-cultural society. These are some of the reasons why scholars caution against overreliance on dictionaries in statutory interpretation.

The language used in a statute is an important key to what the legislature intended because we presume that the legislature knew what the word meant and intended to employ that meaning. When a particular word is susceptible to more than one meaning, however, we must look at context and other indicia of legislative intent, such as the history of the statutory scheme and our own experiences, logic and common sense. State v. Burris, 875 So.2d 408, 410 (Fla.2004); State v. Hodges, 614 So.2d 653, 654 (Fla. 5th DCA 1993). Our ultimate responsibility in construing any statute is to effectuate the intent of the legislature. B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1051 (Fla.2004) (purpose in construing statutory provision is to give effect to “polestar” of legislative intent). To do so, we must give effect to all of the language of the statute and should not adopt a construction that thwarts the clear intent of the legislature or leads to an absurd or unreasonable result. Burris, 875 So.2d at 410. It is not our function to write a better statute, only to give a common sense construction to the one we are asked to construe.

There is no question that the word “vagina” is susceptible to two different meanings. One is a technical, medical definition that we might expect to see used in the context of a medical journal where the technical distinction between the vagina and other parts of the female sex organ might be important. The other definition is the broader everyday definition used by most people to describe the female sex organ as a whole. Our sister court rejected the broader definition by concluding: “[w]e have found no such expanded definition even in common dictionaries.” Richards v. State, 738 So.2d 415, 419 (Fla. 2d DCA 1999). The fallacy in this conclusion is that our sister court restricted its search for the definition to only one source — the dictionary, even to the exclusion of sworn, expert testimony to the contrary. According to the medical doctor who testified in Richards, the word “vagina” is commonly used to refer to both the external and internal parts of the female sex organ. The doctor in State v. Pate, 656 So.2d 1323 (Fla. 5th DCA 1995), gave a similar opinion. Although an expert opinion is not binding on a court, it may be considered and is no less credible than a dictionary definition, especially where our own experiences confirm the validity of the alternative definition. See Charles W. Ehrhardt, Florida Practice § 703.1, n. 16 (2010 ed.) (experts’ opinions, although not binding on court, may be considered in determining meaning of word); see also Lindsey v. Bill Arflin Bonding Agency, Inc., 645 So.2d 565, 568 (Fla. 1st DCA 1994) (“expert testimony may be relevant and helpful to the court in understanding the meaning of statutory language involving words of art or scientific or technical terms.... ”). We know from our own experiences that, in everyday jargon, the word “vagina,” is used as a synonym for the female sex organ. This is what children are taught when they learn basic anatomy. This is the word most adults use to identify the female sex organ. We need not isolate ourselves from the rest of the world or ignore our experiences when we determine the meaning of a commonly used word.

Given these two potential definitions, we must resort to other statutory construction tools to determine what the legislature intended when it used the word “vagina” in the context of this particular statute. The statute does not pertain to medical procedures or other technical subjects so there is no reason to believe that the legislature intended to employ a technical definition. We know from the historical context of the rape and sexual battery statutes, that by adding the phrase “in union with,” the legislature intended to expand the common law crime of rape to include direct physical contact, without the need for penetration. Recognizing its duty to give effect to the “in union with” language of the statute, the Richards court concluded that the state may still prove in-union-with-the-vagina battery by proving penile contact with the vagina, as defined in the technical sense. Of necessity, this would require the state to prove penetration of the external portion of the female sex organ to the point of contact with the vagina. I can hardly conclude that such an inconsequential effect is intended by this statutory language. It’s just not logical to me that the legislature would go through this semantic exercise just to get back to the point of beginning — a prohibition against penetration of the female sex organ by the male sex organ.

It is also illogical to me that the legislature consciously intended to expand the traditional crime of rape by defining sexual battery to include oral union with a clitoris or union of the penis with the mouth of the victim, but at the same time narrow the traditional definition by not including penile union with a clitoris. The statutory evolution of this crime since its common law inception evinces a legislative intent to broaden traditional concepts of rape and sexual battery, not to do the contrary.

The rule of lenity does not compel a contrary conclusion. Not all ambiguity results in a defense victory. See Smith v. United States, 508 U.S. 223, 239-40, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (“The mere possibility of ... narrower construction ... does not by itself make the rule of lenity applicable. Instead, that ... rule is reserved for cases where, ‘[ajfter “seizing] every thing from which aid can be derived,” ’ the Court is ‘left with an ambiguous statute.’” (citations omitted)). Few statutes can endure the scrutiny of trained wordsmiths. Here, the ostensible ambiguity involves the fact that a single word is susceptible to more than one meaning. This is the case with many words in our language. Usually, when dual meanings are possible, context eliminates the potential ambiguity, as is the case here. See § 775.021(1), Fla. Stat. (2010) (rule of lenity applies when “language” is susceptible to differing constructions). The rule of lenity is not a legal loophole for those who successfully strain to identify any ambiguity. It is predicated on the notion that criminal defendants should receive fair notice of what conduct is prohibited by law. The prohibition against unlawful “union” with the “vagina” contained in this statute is plain enough to give fair notice of what is criminal. Although legal scholars might be more satisfied with a statute that prohibits “union with the labia majora, mons pubis, labia minora, clitoris, bulb of vestibule, vulval vestibule or vagina,” it is doubtful that the use of these technical terms would afford any additional notice to the vast majority of people. I am satisfied that Appellant and other would-be offenders can read this statute and know what is proscribed. Accord State v. Morse, 126 Wis.2d 1, 374 N.W.2d 388 (1985) (term “vagina” to be given broader definition than technical medical definition to effectuate legislative intent).

      . The trial court vacated the conviction for lewd or lascivious molestation, concluding that it had been subsumed in the sexual battery count.

      . Rickie Sonpal, Old Dictionaries and New Textualists, 71 Fordham L. Rev. 2177, 2180 (2003).

      . See, e.g., Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275 (Summer 1998); Clark D. Cunningham, Judith N. Levi, Georgia M. Green & Jeffrey P. Kaplan, Plain Meaning and Hard Cases, 103 Yale L.J. 1561 (1994) (book review).

      . This point is illustrated with anatomical words alone: To describe a person by saying that he or she has no heart, a big mouth, a big head, or a lead foot seldom is intended to pertain to an anatomical characteristic.


text:
    John George FORSTER, III, Appellant, v. Barbara Ann FORSTER, Appellee.
    Nos. 5D09-2311, 5D09-3666.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Steven J. Guardiano, Daytona Beach, for Appellant.
    Lisa A. March of Law Office of Lisa A. March and Associates, P.A., Jacksonville Beach, for Appellee.
   COHEN, J.

Former husband, John George Forster, III, filed two appeals challenging the trial court’s awards of permanent periodic alimony, Case No. 5D09-2311, and attorney’s fees and costs, Case No. 5D09-3666. Although we have consolidated these cases for disposition in this opinion, they remain separate and distinct cases for all other purposes.

In Forster v. Forster, 11 So.3d 972 (Fla. 5th DCA 2009), this court reversed and remanded the trial court’s alimony award to make the findings required by section 67.08(2), Florida Statutes (2006). Still dissatisfied, former husband again challenges the trial court’s order awarding former wife, Barbara Ann Forster, $11,000 in monthly permanent, periodic alimony. We have carefully reviewed former husband’s arguments and cannot conclude that the trial court abused its discretion. However, we agree with former husband that the trial court erred in finding former wife was entitled to, and subsequently awarding her, $48,150 in attorney’s fees and costs. Therefore, in Case No. 5D09-2311, we affirm the trial court’s order on alimony, but reverse its order on attorney’s fees and costs in Case No. 5D09-3666.

AFFIRMED IN PART and REVERSED IN PART.

EVANDER and JACOBUS, JJ., concur.


author: EVANDER, J.

text:
    GIANTHONY HOMES, INC. and Avondale Diversified, Inc., Appellants, v. U.S. BANK NATIONAL ASSOCIATION, etc., et al., Appellees.
    No. 5D10-715.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    George J.F. Werner, Ybor City, for Appellant.
    No Appearance for Appellee.
   EVANDER, J.

Gianthony Homes, Inc. and Avondale Diversified, Inc., appeal from an ex parte order setting aside a foreclosure sale and directing the Clerk to not issue them a certificate of title. We reverse because the record reflects that the order was obtained without notice to the appellants.

Appellee, U.S. Bank National Association, obtained a final judgment of foreclosure against Raphael Mendes. Appellants were the high bidders at the foreclosure sale, paid the price bid, and were issued a certificate of title. Shortly thereafter, U.S. Bank filed an “Ex Parte Agreed Motion to Set Aside Foreclosure Sale, Not Issue Certificate of Title and Reset Foreclosure Sale.” In the motion, U.S. Bank recited that appellants had agreed to the granting of the motion. The certificate of service reflected that a copy of the motion had been mailed to appellants. Thereafter, the trial court (understandably) entered the “Ex Parte Agreed Order Setting Aside Foreclosure Sale, Not Issue Certificate of Title and Reset Foreclosure Sale,” submitted by U.S. Bank’s counsel.

After appellants filed their initial brief (and after the time in which to file an answer brief had passed), this court relinquished jurisdiction to the trial court to hold an evidentiary hearing to determine whether appellants had, in fact, agreed to an order setting aside the foreclosure sale and certificate of title. After holding an evidentiary hearing, the trial court found that neither appellant had stipulated to the setting aside of the foreclosure sale or the certificate of title, notwithstanding the inclusion of the word “agreed” in the titles of both U.S. Bank’s motion and proposed order. The trial court further determined that no notice had been given to either appellant prior to the submission of the ex parte motion and proposed order. Finally, the trial court found that neither appellant had received notice of the entry of the court’s order until after the time for service of a motion for rehearing had expired.

Based on these findings, it is clear that appellants’ procedural due process rights were violated. Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So.3d 1271 (Fla. 2d DCA 2009) (purchasers’ right to procedural due process violated where trial court entered order that vacated foreclosure sale and certificate of title when purchaser had neither notice nor opportunity to be heard). Appellants were entitled to receive a copy of U.S. Bank’s motion and an opportunity to be heard thereon. Dept. of Transp. v. Baird, 992 So.2d 378, 381 (Fla. 5th DCA 2008).

REVERSED and REMANDED.

LAWSON and JACOBUS, JJ., concur.


text:
    Valerie L. FAVORITE, Appellant, v. LAURA’S CLASSY CANINES, INC., and State of Florida, Unemployment Appeals Commission, Appellees.
    No. 4D09-2855.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Valerie L. Favorite, Davie, pro se.
    Steven A. Feinman of Law Offices of Steven A. Feinman, Davie, for appellee, Laura’s Classy Canines, Inc.
    M. Elaine Howard, Deputy General Counsel, Tallahassee, for appellee, Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See Suarez v. Unemployment Appeals Commission, 871 So.2d 1039 (Fla. 5th DCA 2004).

GROSS, C.J., MAY and LEVINE, JJ., concur.


text:
    Robert P. SHOLES, Appellant, v. STATE of Florida UNEMPLOYMENT APPEALS COMMISSION and Secure Environmental Electronics, Appellees.
    No. 4D10-2218.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Robert P. Sholes, Plant City, pro se.
    M. Elaine Howard, Deputy General Counsel, for appellee, State of Florida Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See Hernandez v. Fla. Unemployment Appeals Comm’n, 28 So.3d 824 (Fla. 3rd DCA 2009).

GROSS, C.J., MAY and CIKLIN, JJ., concur.


text:
    ESTES BAYPOINT PROPERTIES INCORPORATED, Tighe Estes, Tague Estes, Troy Estes, and Janice Estes, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee of the Lehman Brothers Small Balance Commercial Mortgage Pass-Through Certificates, 2007-2, Appellee.
    No. 4D10-3887.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2011.
    Philippe Symonovicz of Law Offices of Philippe Symonovicz, Fort Lauderdale, for appellants.
    Andrew D. Rafkin of Broad And Cassel, West Palm Beach, for appellee.
   PER CURIAM.

Based on appellee’s confession of error, we reverse the final judgment entered on August 24, 2010 and remand to the circuit court for further proceedings.

GROSS, C.J., WARNER and LEVINE, JJ., concur.


author: WHATLEY, Judge.

text:
    Andrew D.L. CHU; Andrew D.L. Chu, Trustee of the Chu Family Trust u/a/d November 2, 2000; Yeeho Chu, Trustee of the Chu Family Trust u/a/d November 2, 2000; Yeeho Chu and Josephine Chu, Appellants, v. Sharon Chu SALYER, Appellee.
    No. 2D09-4498.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2011.
    Paul H. Bowen of Paul H. Bowen, P.A., Palm Harbor (withdrew after briefing), for Appellants.
    Michael J. McDermott of McDermott & Thacker, P.A., Brandon, for Appellee.
   WHATLEY, Judge.

The order appealed is a final, appealable order with regard to Josephine Chu, and we affirm. However, we dismiss Andrew and Yeeho Chu’s appeal of the order because the order is nonfinal and nonap-pealable with regard to them.

Affirmed in part and dismissed in part.

KHOUZAM and BLACK, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Brett SCHLIFSTEIN, Appellant, v. Michelle SCHLIFSTEIN, Appellee.
    No. 2D09-4926.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2011.
    Peter N. Meros of Meros, Smith, Laz-zara & Olney, St. Petersburg, for Appellant.
    M. Katherine Ramers, Dunedin, and Susan J. Hoffman, Clearwater, for Appellee.

      . M. Katherine Ramers, unfortunately, passed away after this appeal was perfected. No attorney has filed an appearance to replace Ms. Ramers, and we assume that any further proceedings in this court will be handled by co-counsel.

   ALTENBERND, Judge.

Brett Schlifstein appeals the final judgment of dissolution concerning his marriage to Michelle Schlifstein. He argues that the trial court erred in entering a final judgment based on a void mediation agreement. Although we suspect the trial court was attempting to fashion an equitable solution in the best interests of all involved, Mr. Schlifstein is correct that the mediation agreement was void at the time that judgment was entered. As a result, we are compelled to reverse all aspects of the judgment with the exception of the provision dissolving the marriage. Because the mediation agreement failed in its execution and became a nullity, the temporary agreements between the parties in existence at the time that it failed must be reinstated nunc pro tunc.

This couple separated after approximately thirteen years of marriage. Mrs. Schlifstein filed the petition for dissolution in September 2007, and the parties quickly stipulated to temporary support and other provisions in November 2007. In January 2009, the parties engaged in mediation in an effort to resolve all issues. They entered into a comprehensive agreement covering alimony, child support, equitable distribution, attorneys’ fees, and a parenting plan. The first paragraph of this agreement was entitled “conditional full settlement.” It conditioned the entire agreement upon Mr. Sehlifstein’s payment of $130,000 to Mrs. Schlifstein, “which sum is to be paid from a refinancing more further described below.” The paragraph concluded: “Should [Mr. Schlifstein] fail to be able to pay the $130,000 to [Mrs. Schlifstein] as herein below required, this agreement shall be a nullity and have no force and effect whatsoever.”

There is no dispute that Mr. Schlifstein did not make the payment of $130,000 and did not obtain the refinancing. Although the trial court concluded that Mr. Schlif-stein had not been able to make this payment, it enforced the terms of the agreement because it determined that Mr. Schlifstein had not used his best efforts to obtain the refinancing.

For better or worse, the requirements of the agreement did not compel Mr. Schlif-stein to do more than he did. The agreement clearly and unambiguously provided that it would be a nullity if Mr. Schlifstein was unable to make the $130,000 payment. As a result, the agreement became void when he was unable to make the payment. Although Mrs. Schlifstein now takes the position that the agreement remains enforceable, we note that on occasion before the judgment was entered, she, too, took the position that the agreement was void.

In order to avoid further problems for this couple, we decline to reverse that portion of the final judgment that dissolves the marriage. All other provisions must be reversed and the parties returned to their status under the temporary agreements.

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.


text:
    Howard COHAN, individually and on behalf of a class of similarly situated property owners or members, Appellant, v. WOODFIELD COUNTRY CLUB HOMEOWNERS’ ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D09-4385.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Andrew W. Bray of Law Offices of Andrew W. Bray, P.A., Fort Lauderdale, for appellant.
    John S. Penton, Jr., and S. Jonathan Vine of Cole, Scott & Kissane, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See City of Hollywood v. Petrosino, 864 So.2d 1175 (Fla. 4th DCA 2004).

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    Robert GIELCHINSKY and Wendy Gielchinsky, Appellants, v. The POOL PEOPLE, INC., a Florida Corporation, Appellee.
    No. 4D09-4391.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Byron G. Petersen of Byron G. Petersen P.A., Fort Lauderdale, for appellants.
    Jeffrey B. Shalek of Phillips, Cantor & Shalek, P.A., Hollywood, for appellee.
   PER CURIAM.

We reverse the circuit court’s August 3, 2009 order dismissing the case for “lack of activity ... pursuant to rule 1.420.” Prior to dismissal, no notice contemplated by Florida Rule of Civil Procedure 1.420(e) had been served. See, e.g., Fla. R. Civ. P. Form 1.989. Judge Padovano explains the mechanics of the rule:

As a prerequisite to filing a motion to dismiss under the rule, the defending party must serve notice on the claimant that there has been no record activity in the case for ten months. The claimant then has sixty days to take some action to advance the progress of the case. If there is no record activity during the sixty-day period following service of the notice, the defending party may then file a motion to dismiss for failure to prosecute.

Philip J. Padovano, Florida Civil Practice § 12.3 (2007 ed.) (quoted in Swait v. Swait, 958 So.2d 552, 553 (Fla. 4th DCA 2007)). This procedure focuses a plaintiff on the need for record activity to avoid dismissal. The June 1, 2009 order setting a June 16 case management hearing does not mention the potential of dismissal under rule 1.420(e). The court’s oral reminder of the absence of record activity at the June 16 hearing did not comply with the requirements of rule 1.420(e). Similarly, the court’s June 17, 2009 order setting an August 3 case management hearing contained no reference to rule 1.420(e) or the potential of dismissal due to the absence of record activity. The court’s August 3 dismissal thus failed to comply with the procedure established by the rule.

Reversed and remanded.

GROSS, C.J., MAY and DAMOORGIAN, JJ., concur.


text:
    Lindsay JENKINS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, Appellee.
    No. 4D10-209.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Lindsay Jenkins, Forest Hills, NY, pro se.
    Richard E. Landman, Temple Fett Kearns and George N. Andrews, Fort Lauderdale, for appellee.
   PER CURIAM.

We treat the order on appeal as a denial of injunctive relief entered after a foreclosure judgment. Appellant sought a temporary injunction voiding a foreclosure sale and writ of possession pending a ruling on her motion filed under Florida Rule of Civil Procedure 1.530. Having reviewed the entire record, we do not find that the trial court abused its discretion when it denied appellant’s motion for injunction.

GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.


text:
    Fabian MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-687.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Fabian Matthews, Sunrise, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The State concedes that appellant’s letter should have been treated as a motion to correct a scrivener’s error in court documents. This matter is reversed and remanded. Wells v. State, 796 So.2d 1276 (Fla. 4th DCA 2001).

Reversed and remanded.

GROSS, C.J., HAZOURI and LEVINE, JJ., concur.


text:
    The ESTATE OF Power Ed MEUS, by and through Power MEUS, as Personal Representative, Appellant, v. The GEO GROUP, INC., f/k/a Wackenhut Corrections Corp., d/b/a Moore Haven Correctional Facility, The State of Florida, The Department of Management and The Department of Corrections, Appellees.
    No. 4D10-2137.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    David A. Howard of David A. Howard, P.A., Miami, for appellant.
    Brett M. Waronicki of Wiederhold & Moses, P.A., West Palm Beach, for Appel-lee-The GEO Group, Inc.
   PER CURIAM.

Appellee, The Geo Group, Inc., concedes that the trial court erred in failing to make the necessary findings of fact required by Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), and Cook v. Custom Marine Distributing, Inc., 29 So.3d 462 (Fla. 4th DCA 2010), when dismissing appellant’s lawsuit as a sanction for failure to comply with the trial court’s discovery orders and when denying appellant’s motion for relief from judgment. Accordingly, we reverse the orders and remand this case for the trial court to enter an order based on the findings required by Kozel and Cook, consider imposing a lesser sanction, or take any other action it deems appropriate consistent with this opinion.

Reversed and Remanded.

WARNER, TAYLOR and CIKLIN, JJ., concur.