author: WARNER, J.

text:
    Veldrin D. FREEMON, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS as Trustee, Appellee.
    No. 4D09-4275.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.

      Josh Bleil, Megan Carraher and Jessica Ticktin of The Ticktin Law Group, P.A., Deerfield Beach, for appellant.
    Heidi J. Weinzetl of Shapiro & Fishman, LLP, Boca Raton, for appellee.
   WARNER, J.

After failing to answer the appellee’s complaint to foreclose the mortgage on her home and having a default judgment of foreclosure rendered, appellant moved for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). She claimed that the affidavit of indebtedness attesting to the amounts due on the mortgage and note was not made on the personal knowledge of the affiant. The trial court denied relief, and we affirm.

In November 2007, Deutsche Bank brought a foreclosure action against the homeowner, Veldrin Freemon, and others with a potential interest in the property, alleging that Freemon was in default and owed in excess of $570,000 on the mortgage note. Freemon did not answer the complaint or file any other responsive pleading, and a default was entered against her in March 2008.

Subsequently, the Bank moved for summary judgment, attaching an affidavit of indebtedness, which was served on Freem-on. The affidavit was executed by Denise Bailey, who attested to the amounts due and owing under the loan. Bailey is an assistant secretary of Litton Loan Servicing, the company that serviced Freemon’s loan. In the affidavit, Bailey stated that she was familiar with the books and accounts of Litton and specifically had personal knowledge of the sums due on the mortgage loan. The affidavit set forth the unpaid balance, interest, and other charges. The trial court entered summary judgment in October 2008, using the amounts contained in the affidavit as the amounts due and owing on the mortgage note. It set a foreclosure sale for December 30, 2008.

In December 2008, prior to the sale date, Freemon filed a motion for relief from judgment. As a result, the court cancelled the foreclosure sale. Six months later, when the parties could not arrive at any agreement, the court reset the sale for September 2009. The Bank was the sole bidder and obtained title to the property.

When the Bank moved for a writ of possession, Freemon again moved for relief from the judgment, this time asserting that the affidavit in support of the motion for summary judgment was fraudulent. She based this claim on a deposition that her attorneys took of Bailey in connection with a different mortgage foreclosure involving a different bank. Freemon alleged that Ms. Bailey relies upon attorneys to draft the form affidavits in foreclosure cases, fails to understand most of the language in the affidavits she signs, and routinely signs these affidavits without personal knowledge of the facts stated therein. Freemon attached a copy of the deposition to the motion. The court reviewed the motion, the deposition, and the record, and denied it as legally insufficient. Freemon appeals.

Florida Rule of Civil Procedure 1.540(b) sets forth several grounds upon which a court may relieve a party from a final judgment. One such ground is “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Fla. R. Civ. P. 1.540(b)(3). Because a trial court is accorded broad discretion in determining rule 1.540(b) motions, see Crowley v. Crowley, 678 So.2d 435, 438 (Fla. 4th DCA 1996), the standard of review of an order on a rule 1.540(b) motion for relief from judgment is whether there has been an abuse of the trial court’s discretion. J.J.K. Int'l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008).

To entitle a movant to an eviden-tiary hearing on a motion for relief from judgment, a rule 1.540(b)(3) motion must specify the fraud with particularity and explain why the fraud, if it exists, would entitle the movant to have the judgment set aside. Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). “If a motion does not set forth a basis for relief on its face, then an evidentiary hearing is unnecessary, the time and expense of needless litigation is avoided, and the policy of preserving the finality of judgments is enhanced.” Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So.3d 952, 955 (Fla. 4th DCA 2009). The matter alleged must affect the outcome of the case and not merely be “de minimis.” Id. Thus, to obtain a hearing on a rule 1.540(b)(3) motion, the law requires a movant “to demonstrate a prima facie case of fraud, not just nibble at the edges of the concept.” Hembd v. Dauria, 859 So.2d 1238, 1240 (Fla. 4th DCA 2003).

Freemon’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside a default judgment. Freemon nowhere contends that she did not default on her mortgage, nor does she allege that the amounts due and owing, set forth in the affidavit and incorporated in the final judgment, are incorrect. Indeed, Freemon has not specifically alleged any fraud in connection with Ms. Bailey’s statements in this affidavit regarding the amount due. Freemon merely alleges that Bailey claimed personal knowledge of the matters in the affidavit, even though Bailey admitted in her deposition in different case that she did not know who inputted information into the computer regarding the loan in question in that case.

We disagree with Freemon’s characterization of Bailey’s affidavit and of Bailey’s testimony. In her affidavit, she attested that she was familiar with the books, records, and accounts kept by Litton, and those books, records, and accounts are kept in the regular course of business of Litton. Those records “are made at or near the time by, and from information transmitted by, persons with personal knowledge of the facts, such as your Affi-ant.” She did not attest that she personally made all the entries for any particular mortgage. Specifically, she attested that she had personal knowledge of the amounts and charges due. In her deposition in another case, she testified that she was the records custodian for Litton Loan. In signing the affidavits of indebtedness, she acquires her knowledge of the amounts due by inputting the mortgagor’s name into the computer which contains all of the mortgage information. The computer then provides her with the amount of the outstanding mortgage, interest, and charges. Bailey’s affidavit in this case is not inconsistent with her testimony in the other case. Freemon has not shown any fraud, nor has she shown that the information about this loan, i.e., the amounts due and the default, are in any way incorrect.

For the first time on appeal, Freemon contends that Bailey’s affidavit was insufficient to satisfy the requirements for admissibility under the business records exception to the hearsay rule, section 90.808(6), Florida Statutes. That specific argument was not preserved for appellate review. See, e.g., Tillman v. State, 471 So.2d 32, 35 (Fla.1985) (“In order to be preserved for further review by a higher court, an issue must be presented to' the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”).

For these reasons, we affirm the trial court’s order summarily denying the motion for relief from final judgment.

POLEN and LEVINE, JJ., concur.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Bienvenido BASSALLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-5068.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.

      Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant, Bienvenido Bassallo, appeals his conviction for aggravated assault with a deadly weapon, raising four issues for our consideration. We write only to address appellant’s argument that the trial court abused its discretion in giving a self-defense instruction that indicated the defense applied only if the victim suffered an “injury,” when no injury occurred, which negated the theory of the defense. We reverse and remand for a new trial on this issue alone.

Appellant, a foreman at Arrow Directional Boring, was charged with aggravated assault with a deadly weapon, following an altercation with another foreman, Curt Curtis, at the company yard. The dispute arose over some equipment that appellant borrowed without Curtis’s permission. When Curtis confronted appellant he responded, “F[ — ] you, you’re a piece of s[ — ].” The men exchanged words, and Curtis got in his truck to leave. Appellant followed him, and pulled on the open window, so Curtis could not roll it up. Appellant screamed, “get out of the truck, I’m going to beat your ass, get out of the truck.” When Curtis got out, he saw that appellant had a knife in his hand. Appellant lunged at Curtis and swung the knife around. At this point, two of Curtis’s crew members, David Stokes and Ralph Krites stepped in. Curtis ran around to the back of the truck. He testified: “The door was still open, and I got back in my truck while he’s chasing me around with the knife and lunging to the guys who’s grabbing him, telling them no. And they are trying to push him back and he’s trying to stab me.” The blade was four or five inches long. Curtis said he was afraid; he had no weapon. When Curtis got back into the truck, he rolled the windows up and called 911. Appellant beat on the hood of the truck with the butt of the knife, denting the hood. Curtis backed up and blocked the entrance to the gate. Appellant went inside the shop, and the police arrived shortly thereafter.

Police found a knife inside the shop, which Curtis identified as the one appellant used. At trial, Curtis identified photos of the knife, as well as the knife itself. Curtis demonstrated how appellant held, and swung the knife. Curtis said the knife cut through his shirt, though he never gave the shirt to police. He claimed he did not realize it was cut until he got home.

Curtis acknowledged he was a “big guy,” but said he did not attack appellant because appellant was waving a knife around, and Curtis wanted to get away from him.

Four of Curtis’s crew members — David Stokes, Rodolpho Briones, Daniel Briones-Rodriguez, and Ralph Krites — witnessed the altercation, and all saw appellant with a knife in his hand, trying to get to Curtis. Appellant was in a rage, “very angry, very out of control.” He looked like he was going to hit Curtis. Stokes and Krites tried to calm appellant down, but he kept saying “No, don’t hold me, don’t hold me back.” When Curtis was at the rear of the truck, Briones saw him grab a “stick” — a 2x4 — though he never approached appellant with it. Briones grabbed a shovel. He did not “brandish” it to appellant, but grabbed it just in case appellant cut somebody. After the altercation, appellant went inside the shop. The police arrived shortly thereafter. Briones saw the knife again after an officer found it. He had worked with appellant before, and said that appellant always had that blade with him — either in his pocket or in his car.

On cross-examination, Briones testified that he and his brother worked for appellant’s crew, until appellant fired his brother. Briones and his brother were then transferred to Curtis’s crew. The brothers said they were not testifying because they were mad at appellant or because they feared losing their jobs. It had been a long time, and they were able to work for another crew within the company.

Krites testified that, when appellant lunged at Curtis with the knife, Curtis ran behind the truck and appellant chased him. Krites got between the men, grabbed appellant and pushed him backwards. Curtis then got in his truck, backed up to block appellant from leaving, and called the police. Appellant banged on the hood of the truck with the knife, told Curtis to get out and called him names. Appellant then went inside the shop.

Krites identified photos of the cabinet inside the shop where the knife was found. He said the cabinet was used to store chemicals, and he had never seen a knife in there. The officer showed Krites the knife after she found it, and Krites identified it as that used by appellant to threaten the victim.

On cross-examination, Krites testified that he had been transferred from appellant’s crew to Curtis’s crew just a few weeks before the incident. Appellant had tried to get Krites fired. Krites was upset about this, but “was kind of happy that [he] got off his crew.” He had only worked for appellant for about two weeks.

Officer Byrne responded to the scene after receiving a call that a male was threatening other subjects with a knife. Byrne found appellant in the warehouse and patted him down. He had a soap stone device in one of his pockets. Byrne Mirandized appellant and he gave a statement. He admitted to having an altercation with the victim, but denied having a knife in his possession or using a knife to threaten anybody. After appellant was detained, Byrne searched the warehouse for the weapon. She recovered a folding knife inside a cabinet. The victim identified the knife. Officer Byrne also looked at the victim’s vehicle, and noticed a dent on the hood.

Crime scene technician Matz examined the knife found on the scene. The blade was approximately three inches long. No fingerprints were recovered. Matz testified that the handle was rough, and not the type of surface to which fingerprints normally adhere. She also testified that it is “fairly easy” to wipe away fingerprints, with the hands or a cloth, etc.

The defense called Dayne Innis, one of appellant’s former crew members. Innis was working the fusion machine that evening, when he saw Curtis get out of a truck, and begin arguing with appellant. Innis looked away for a few minutes, to concentrate on what he was doing. When he looked back up, he saw Curtis pull a 2x4 piece of wood out of the bed of the truck. Curtis held the wood as if to threaten appellant, and was within striking range. David Stokes stepped in and attempted to lead appellant away. Innis continued working, and the police arrived a few minutes later. Innis never saw appellant with a knife, but he could not say for sure, because the truck was blocking his view. On cross-examination, he admitted he was about 100 feet away, and that he was not watching the altercation the entire time.

Kevin Washington, also a member of appellant’s crew, was working with a machine when he saw Curtis pull into the yard, get out of a truck, and start screaming at appellant. The men argued as Curtis turned and walked back to his truck; appellant followed him. Washington turned away at this point, and went back to what he was doing. He heard someone say “whoa, whoa, whoa, guys, you need to stop.” When Washington looked up he saw Curtis pull a piece of wood out of the bed of the truck, about three or four feet long. Curtis approached appellant with the stick, like he was ready to fight. Appellant had his fists clenched. At this point, David Stokes got between the men to keep them from fighting. Curtis used his cell phone to call the police. Washington returned to his work, and a few minutes later, the police arrived. Washington never saw appellant with anything in his hand. When questioned by police, Washington denied seeing anything, and said he did not want to get involved.

Appellant testified on his own behalf. That day, he radioed one of Curtis’s workers about borrowing some equipment. He did not call Curtis directly, because he knew Curtis, also a foreman, would be busy. Curtis answered the call, however, and said: ‘What the f[ — ] are you calling my employees and why the f[ — ] you don’t call me?” Appellant told Curtis he didn’t “have time for this nonsense right now,” and hung up on him. Appellant said he was just trying to get the job done. Later, when Curtis got back to the yard, he got out of his truck and slammed the door. He walked towards appellant, pointing and yelling at him. Curtis yelled, among other profanities, “Who the f[ — ] you do think you are, you wetback, you son of a bitch.” He then walked into the shop. Appellant was preparing to leave, when Curtis came out of the shop, and “got in [his] face.” Curtis again called appellant a “wetback” and a “mother f[-]er,” and spit in his face. Appellant put his fists up, and said: “You know what, let’s have a fist-fight (demonstrating) and get it over with, have a fist-fight (demonstrating) and get it over with, right here, right here.” Curtis then walked over to his truck. When he saw appellant walking towards him, he grabbed a 2x4 out of the back of the truck. Curtis was heavier and taller than appellant, and appellant had nothing in his hands to defend himself. He stood about ten feet away from appellant. Appellant looked around for a way to escape. He saw Rodolpho Briones with a shovel in his hands. As Curtis and Briones came towards him, appellant pulled a soap stone out of his pocket, which is an object used for marking steel. At this point, David Stokes approached appellant, pushed him away and told him: “You don’t need to do this.” Appellant then went to his truck, and the police arrived. Appellant said he felt threatened when Curtis raised the 2x4 at him. He raised the soap stone in self defense, to “intimidate” Curtis so he would back off.

The lady officer asked appellant where the knife was, and he said he didn’t have one. He gave the officer the soap stone, and she threw it down. The officer read him his Miranda rights and arrested him.

After the defense rested, the State recalled Mr. Curtis to testify. He stated that appellant did not have a soap stone in his hand that day, but a knife. Curtis said he did not have a 2x4 in his hand because, if he had, he “would have beat [appellant] with it.” He admitted to calling appellant a “wetback.”

Appellant argues the trial court abused its discretion in giving a self-defense instruction that indicated the defense applied only if the victim suffered an “injury,” when appellant was charged with aggravated assault and no injury occurred, which negated the theory of the defense. We find fundamental error and reverse.

‘“Issues pertaining to jury instructions are not preserved for appellate review unless a specific objection has been voiced at trial,’ ..., and absent an objection at trial, can be raised on appeal only if fundamental error occurred.” Lawrence v. State, 831 So.2d 121, 137 (Fla.2002) (quoting Overton v. State, 801 So.2d 877, 901 (Fla.2001)); see also State v. Weaver, 957 So.2d 586, 587 (Fla.2007). A fundamental error is one that “ ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Lawrence, 831 So.2d at 137 (quoting Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998)).

Appellant did not object to the instruction at trial. He requested and received the standard justifiable use of deadly force instruction as well as the justifiable use of non-deadly force instruction to the offense of aggravated assault. Appellant did not object during the charge conference, nor did he object after the instruction was given and prior to the jury retiring to deliberate. Although this issue has not been preserved, we find the error was fundamental.

The standard jury instructions on self-defense-justifiable use of deadly and non-deadly force — provide: “It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of force” (likely) (not likely) to cause death or great bodily harm.” Fla. Std. Jury Instr. (Crim.) 3.6(f), (g). Without objection, the trial court instructed the jury in relevant part: “An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Bienven-ido Bassallo is charged if the injury to Curt Curtis resulted from the justifiable use of deadly/non-deadly force.” (emphasis added). The court had suggested using the word “assault” in place of the word “injury,” but changed its mind upon the State’s request.

Appellant argues that the trial court fundamentally erred in giving the standard instruction, which includes the word “injury” when the charge was aggravated assault, and “injury” is not an element of the crime, and where the State presented no evidence of injury to the victim. Appellant further contends that the State compounded the error when it argued during closing that the instruction made no sense because the victim suffered no injury. The State responds that the issue was neither preserved nor was there fundamental error. The State contends that the jury was properly instructed, because “injury” is part of the crime — albeit a psychological injury as opposed to a physical one.

“Standard jury instructions are ‘presumed correct and are preferred over special instructions.’ ” Peters v. State, 33 So.3d 812, 814 (Fla. 4th DCA 2010) (quoting Brown v. State, 11 So.3d 428, 432 (Fla. 2d DCA 2009) (quoting Stephens v. State, 787 So.2d 747, 755 (Fla.2001))). However, “[u]sing ‘standard jury instructions does not relieve the trial court of its obligation to determine whether the standard instructions accurately and adequately state the law.’ ” Id. Should the trial court determine that the instruction is “erroneous or inadequate,” the court may then modify the standard jury instruction as the “trial judge shall determine to be necessary to instruct the jury accurately and sufficiently.” Peters, 33 So.3d at 814 (quoting Fla. R. Crim. P. 3.985).

“[A] defendant is entitled to have his jury instructed on the law applicable to his theory of defense if there is any evidence presented supporting such a theory, even if the only evidence supporting the defense theory comes from the defendant’s own testimony.” Evans v. State, 831 So.2d 808, 810 (Fla. 4th DCA 2002) (quoting Bozeman v. State, 714 So.2d 570, 572 (Fla. 1st DCA 1998)). “In other words, if there is evidence to support the requested instruction, then defendant has a right to have the jury so instructed. The refusal to give an instruction where evidence supports it is legal error.” Evans, 831 So.2d at 810. Thus, here, the trial court was correct to give an instruction on self-defense, where there was evidence to support the instruction. However, the inclusion of the word “injury” did not accurately and adequately state the law, because appellant was charged with aggravated assault, for which injury is not an element. Nor was there any evidence of injury to the victim. Appellant’s sole defense was that he brandished a soap stone in self-defense, and the court’s instruction effectively negated the defense. “[T]he appellate courts consistently have found fundamental error in those cases where the erroneous instruction negates the defendant’s sole defense to the crime charged.” Martinez v. State, 933 So.2d 1155, 1166 (Fla. 3d DCA 2006); see also Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001) (fundamental error to give inaccurate and misleading instruction negating sole defensive theory).

The State contends that an “injury” may be psychological as well as physical, and that, here, the “injury” would have been the fear the victim felt because of the assault. Yet, the State argued the opposite during closing, stating:

Was the defendant justified in using deadly force? Was the defendant justified in using non-deadly force? Well, according to the defendant, he didn’t use any force. It doesn’t make any sense. The first paragraph that the Judge is going to read you includes the sentence it is a defense to the offense with which [appellant] is charged if the injury to Mr. Curt Curtis resulted from, the justifiable use of non-deadly force.
What injury to Curt Curtis? It doesn’t make any sense. Sure. He was in fear. He was terrified. There was no injury to him. The instruction has no applicability at all in this case.

(Emphasis added). As appellant contends, the State compounded the error when it argued during closing that the instruction made no sense because the victim suffered no injury. Although appellant did not object to the jury instructions, or to this comment by the State during closing, “the instruction given, coupled with the prosecutor’s comments, served to mislead the jury as to the entire theory of defense.” Pollock v. State, 818 So.2d 654, 657 (Fla. 3d DCA 2002). This amounts to fundamental error. See id.

Reversed and Remanded for a New Trial.

WARNER and LEVINE, JJ., concur.

      . The trial court questioned whether the soap stone was a deadly weapon, and appellant responded that it was sharp and that the "edge can cut out an eye.” The court concluded the soap stone could be used as a deadly weapon.


author: GERBER, J.

text:
    KOLTER SIGNATURE HOMES, INC., a foreign corporation, and Villager Realty Ltd., L.P., a foreign limited partnership, Appellants, v. Glenn G. SHENTON and Pamela A. Shenton, husband and wife, and Mauricio Martinez and Eliran Assulin, tenants in common, Appellees.
    No. 4D09-175.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.

      Jack J. Aiello and Gregor J. Schwin-ghammer, Jr. of Gunster, Yoakley, & Stewart, P.A., West Palm Beach, for appellants.
    Stephen Navaretta and Mary Jean Na-varetta of Navaretta & Navaretta, Attorneys at Law, P.A., Port Saint Lucie, for appellees Glenn G. Shenton and Pamela A. Shenton.
    No appearance for appellees Mauricio Martinez and Eliran Assulin.
   GERBER, J.

The circuit court entered final judgments pursuant to the Interstate Land Sales Act (“ILSA”), 15 U.S.C. § 1701 et seq. (2007), allowing the appellee purchasers to rescind their contracts to purchase homes from the sellers. The court reasoned that the contracts, identical other than price, limited the purchasers’ remedy of specific performance by requiring the purchasers to perform two conditions precedent before suing for specific performance. We agree with the court and affirm.

The purchasers’ amended complaint alleged that they were entitled to rescission pursuant to ILSA. Specifically, the purchasers cited 15 U.S.C. § 1703(c) (2007), which provides that a purchaser may revoke a contract if the seller did not give the purchaser a property report in advance of signing the contract. The purchasers also sought to recover their deposits with accrued interest.

In response, the sellers alleged that the contract was exempt from ILSA’s requirements. Specifically, the sellers cited 15 U.S.C. § 1702(a)(2) (2007), which provides that ILSA shall not apply to the sale of land under a contract obligating a seller to erect a building thereon within two years. According to the sellers, the contract qualified for this exemption because, under paragraph 6 of the contract, the sellers unconditionally agreed to construct the homes within two years.

In reply, the purchasers alleged that the contract did not qualify for the two-year exemption. Specifically, the purchasers cited Samara Development Corp. v. Marlow, 556 So.2d 1097 (Fla.1990), which holds that “in order for the developer to be ‘obligated’ to complete the building within two years, the obligation must be unrestricted and the contract must not limit the purchaser’s right to seek specific performance or damages.” Id. at 1100 (emphasis added). The purchasers primarily argued that this contract, at paragraph 15, limited their remedy of specific performance. Paragraph 15 provides:

In the event SELLER shall fail to perform any of its obligation^] hereunder, PURCHASER ... at PURCHASER’S option may have the right to specifically enforce this Agreement, if PURCHASER has sent the Proper Notice including: (1) If SELLER states that SELLER’S default is related to the actual physical construction of the Residence then the Proper Notice must be accompanied by a certificate of either an Architect or Engineer licensed in the State of Florida stating with specificity SELLER’S default, (2) If the default is other than a physical construction default then the notice must be accompanied by an Attorney’s opinion addressed to SELLER stating with specificity SELLER’S default. If PURCHASER complies with provisions (1) and (2) above relating to Proper Notice and deposits the Total Purchase Price in escrow ... then PURCHASER shall move to have SELLER specifically enforce this Agreement.

(emphasis added). According to the purchasers, the above-italicized clauses of paragraph 15 limited their remedy of specific performance by: (1) requiring them to give the sellers the certificate of an architect, engineer, or attorney stating with specificity the sellers’ default; and (2) requiring them to deposit the total purchase price in escrow. The purchasers contended that the remedy of specific performance does not require a purchaser to perform those conditions before pursuing that remedy.

In response, the sellers argued that paragraph 15 does not limit the purchasers’ remedy of specific performance because it does not address what happens if the purchasers do not perform those conditions. In other words, according to the sellers, paragraph 15 does not state that the purchasers cannot sue for specific performance unless they perform those conditions. Thus, the sellers contended that because the contract did not clearly and unequivocally limit the remedy of specific performance, the purchasers still possessed that remedy. In support, the sellers cited, among other cases, Coastal Computer Corp. v. Team Management Systems, Inc., 624 So.2d 352, 353 (Fla. 2d DCA 1993) (“In the absence of an exclusive, stipulated remedy, a party may elect to pursue any remedy that the law affords.”), and Marco Bay Associates v. Vandewalle, 472 So.2d 472, 475 (Fla. 2d DCA 1985) (contract did not negate or exclude the purchaser from seeking damages or specific performance where the contract specifically provided the purchaser the right of rescission in the event the sellers defaulted, but did not limit the purchaser’s right to seek damages or specific performance).

After a non-jury trial, the circuit court found for the purchasers. In its order following the trial, the court reasoned that “[a] plain reading of [paragraph 15] results in the conclusion that the contract requires, prior to suit for specific performance, (1) that various certifications be furnished to [the sellers], and further, (2) that the total purchase price be placed in escrow.” Addressing the sellers’ citation to cases which the court characterized as holding that “if the contract is silent as to specific performance, the right exists,” the court responded, “This contract is not silent.” The court explained:

[T]his contract addresses the issue of specific performance and places unreasonable, invalid and unenforceable restrictions on same. By purporting to address the right, the sellers plainly impinged upon the exercise of the right. This provision directly and indirectly impinges on the [purchasers’] right to specific performance.

Based on that finding, the court concluded that the contract was not exempt from ILSA’s requirements. The court entered a final judgment ordering that the purchasers (except appellee Assulin, for reasons not material to this opinion) shall recover from the sellers the deposits plus prejudgment interest thereon accruing from the date the purchasers demanded the return of their deposit.

The sellers filed a motion for rehearing. According to the sellers, the court’s finding that the contract placed “invalid and unenforceable” restrictions on the remedy of specific performance should have resulted in a judgment for the sellers under the contract’s “savings clause.” That clause, found in paragraph 19(h) of the contract, provides:

If any term or provision of this [contract] shall to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this [contract] shall be valid and enforceable....

The sellers argued that severing from the contract the “invalid and unenforceable” restrictions on the remedy of specific performance would leave no language in the contract restricting the remedy of specific performance. Therefore, according to the sellers, the contract would be exempt from ILSA’s requirements and the sellers would be the prevailing party. The court denied the sellers’ motion for rehearing without comment.

The sellers then filed this appeal. The sellers do not take issue with the circuit court’s conclusion that requiring the purchasers to place the entire purchase price in escrow, along with providing notice of the nature of the sellers’ default, would place such an undue burden on the remedy of specific performance that it negated that remedy. However, the sellers contest the court’s conclusion that the contract required the purchasers to do those things in order to bring a specific performance claim. In support of its position, the sellers raise three arguments. We will address each argument in turn, applying de novo review. See Chipman v. Chipman, 975 So.2d 603, 607 (Fla. 4th DCA 2008) (“The trial court’s interpretation of a contract is a matter of law subject to a de novo standard of review.”).

First, the sellers argue that paragraph 15 does not expressly provide that its condition-based remedy of specific performance constitutes the purchasers’ “sole and exclusive remedy.” In support, the sellers cite that portion of paragraph 15 addressing the sellers’ remedies if the purchasers defaulted. Paragraph 15 states that, if the purchasers defaulted, the seller’s remedy was to retain the purchasers’ deposit. Paragraph 15 then states that this remedy constitutes the sellers’ “sole and exclusive remedy.” In contrast, paragraph 15’s reference to the purchasers’ remedies if the sellers defaulted contains no reference to those remedies being the purchasers’ “sole and exclusive remedy.”

We find that the plain language of paragraph 15 refutes the sellers’ reasoning. Paragraph 15 provides only one remedy to the sellers if the purchasers defaulted— terminate the contract and retain or obtain all of the purchasers’ deposits. Hence, paragraph 15 logically described that remedy as the sellers’ “sole and exclusive remedy.” In contrast, paragraph 15 provides two distinct remedies to the purchasers if the sellers defaulted: (1) “return of the [purchasers’] deposits, together with interest thereon”; or (2) “the right to specifically enforce this [contract].” Because the purchasers had two remedies, the singular phrase “sole and exclusive remedy” logically would not have applied.

Second, the sellers argue that paragraph 15’s reference to a condition-based remedy of specific performance did not expressly negate the common law remedy of specific performance. In support, the sellers again rely on Coastal Computer, Marco Bay, and other cases for the proposition that, for a contract to remove an otherwise available remedy, the contract must clearly and unequivocally negate that remedy. According to the sellers, because paragraph 15 did not expressly negate the common law remedy of specific performance, the purchasers still may pursue that remedy.

We reject this argument. The sellers apparently want the law to recognize two distinct remedies of specific performance— a “contractual remedy of specific performance” and the “common law remedy of specific performance.” However, we are aware of cases recognizing only the common law equitable remedy of specific performance. See, e.g., Invego Auto Parts, Inc. v. Rodriguez, 84 So.3d 103, 104 (Fla. 3d DCA 2010) (“A decree of specific performance is an equitable remedy granted at the discretion of the trial court.”). The fact that parties, like the sellers and purchasers here, refer to the common law remedy of specific performance in their contracts does not thereby create a distinct and individualized “contractual remedy of specific performance” separate from the common law remedy.

Third, the sellers repeat the argument which they made to the circuit court that paragraph 15 does not limit the purchasers’ remedy of specific performance because it does not address what happens if the purchasers do not perform the enumerated conditions. In other words, according to the sellers, paragraph 15 does not state that the purchasers cannot sue for specific performance unless they perform those conditions.

We find this argument unconvincing as well. As the circuit court found, a plain reading of paragraph 15 clearly and unequivocally requires the purchasers to perforin the enumerated conditions before suing for specific performance. To the extent the sellers’ argument at best raises an ambiguity in paragraph 15, the resolution of that ambiguity is construed against the sellers as the drafters of the contract. See NRD Invs., Inc. v. Velazquez, 976 So.2d 1, 4 (Fla. 3d DCA 2007) (“There is a general preference in Florida to interpret contractual ambiguities against the drafter.”) (citing City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000) (other citations omitted)).

In addition to the three arguments addressed above, the sellers alternatively argue that, if the contract could be properly interpreted to limit the remedy of specific performance, the circuit court erred in refusing to apply the savings clause found in paragraph 19(h) of the contract. Similar to their motion for rehearing, the sellers argue that, because the court found that the contract placed “invalid and unenforceable” restrictions on the remedy of specific performance, the court should have applied the savings clause to disregard those offending restrictions in order to preserve the contract.

We conclude that the circuit court was correct in not applying the savings clause. However, we reach that conclusion based on a finding different from that which the circuit court made. See Dade County Sch. Bd. v. Radio Station WQBA, 781 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”). Specifically, we disagree with the circuit court’s finding that the contract placed “invalid and unenforceable” restrictions on the remedy of specific performance. It is true that the common law does not require purchasers seeking specific performance to deposit the total purchase price in escrow or provide a professional’s certificate stating with specificity the sellers’ default. See Taylor v. Richards, 971 So.2d 127, 129-30 (Fla. 4th DCA 2007) (setting forth the elements which a purchaser must allege and prove to obtain specific performance). However, just because the common law does not require purchasers to perform those conditions does not mean that purchasers and sellers cannot freely negotiate to include such conditions in their contracts. See Dows v. Nike, Inc., 846 So.2d 595, 601 (Fla. 4th DCA 2003) (“A fundamental tenet of contract law is that parties are free to contract, even when one side negotiates a harsh bargain.”) (citation omitted). Here, the only effect of including the enumerated conditions in the contract was to disqualify the contract as being exempt from ILSA’s requirements. The conditions themselves, though perhaps onerous, are still valid and enforceable. Therefore, the savings clause does not apply.

We briefly address the purchasers’ two arguments on cross-appeal. The first argument challenges the circuit court’s denial of an alternative basis for rescission. That argument is moot because of our rejection of the sellers’ claims on appeal. The second argument challenges the court’s calculation of prejudgment interest from the date the purchasers demanded rescission. The purchasers argue that the court should have calculated prejudgment interest from the date the purchasers paid their deposit. The sellers correctly concede error on this point. See Leon v. W. Collier Props., Inc., 575 So.2d 1316, 1317 (Fla. 2d DCA 1991) (plaintiff was entitled to prejudgment interest from the date of loss which should have been calculated from “when he made the first payment under the agreement for deed to purchase”). Therefore, we remand for correction of the final judgments only as to the proper calculation of the prejudgment interest.

Affirmed in part, reversed in part, and remanded for correction of the final judgments.

HAZOURI, J., and KELLEY, GLENN D., Associate Judge, concur.


text:
    Vincent K. SWEETING, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2703.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

We reverse appellant’s convictions and remand for a new trial, because the trial court erred in denying challenges for cause to three jurors who stated that the defendant’s failure to testify would influence their decision. See Overton v. State, 801 So.2d 877, 891-93 (Fla.2001) (holding that a juror should have been excused for cause where he admitted during voir dire that he always believed that defendants should testify if they have nothing to hide, notwithstanding the juror’s subsequent assurances that he would be able to follow the court’s instructions); Mitchell v. State, 862 So.2d 908, 910-11 (Fla. 4th DCA 2003) (finding that the trial court erred in denying challenges to three jurors who expressed misgivings about being impartial if the defendant elected not to testify); Williams v. State, 755 So.2d 714, 716 (Fla. 4th DCA 1999) (where jurors evinced a misunderstanding of the burden of proof, and thought the defendant should testify, challenge for cause should have been granted). The state did not attempt to rehabilitate these jurors, and the defendant had no obligation to do so. See Cottrell v. State, 930 So.2d 827, 829 (Fla. 4th DCA 2006) (trial court must excuse a prospective juror for cause if there is any reasonable doubt as to the juror’s impartiality and that the defendant does not have the obligation to rehabilitate a juror who admits some form of bias).

We affirm as to all remaining issues. To guide the parties on remand with respect to the issue of whether appellant could be convicted for driving with a suspended license, we would refer the parties to section 322.251, Florida Statutes, which provides that if a licensee whose driving privilege is suspended fails to surrender all licenses, the period of suspension will not expire “until a period identical to the period for which the driving privilege was suspended ... has expired after the date of surrender of the licenses, or the date an affidavit swearing such licenses are lost has been filed with the department.” § 322.251(3), Fla. Stat.

Affirmed in part, reversed in part and remanded.

POLEN and STEVENSON, JJ„ concur.

      . We find that the issue has been properly preserved. See Jenkins v. State, 824 So.2d 977, 981 (Fla. 4th DCA 2002).


author: PER CURIAM.

text:
    J.Z., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1160.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

A juvenile appeals the finding of guilt on a domestic violence battery charge, the withholding of adjudication and placement on probation, and the award of costs.' He argues that the trial court erred in denying his motions for judgment of dismissal and in awarding court costs when adjudication was withheld. We affirm the finding of guilt, and the withholding of adjudication and placement on probation, but reverse the award of costs.

As the State acknowledges, section 775.083(2), Florida Statutes (2008), provides for the assessment of court costs when a juvenile is adjudicated delinquent. Here, the trial court withheld adjudication of delinquency. The award of court costs must therefore be reversed. J.C. v. State, 32 So.3d 196 (Fla. 4th DCA 2010).

Affirmed in part and Reversed in part.

MAY, DAMOORGIAN and GERBER, JJ., concur.


text:
    BELLA AURORA PACHECO, M.D., P.A., Appellant, v. SYNERON, INC., a foreign corporation, Appellee.
    No. 4D09-3399.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.

      Steven L. Lubell of Lubell & Rosen, LLC, Fort Lauderdale, for appellant.
    Stephen J. Simmons and Jose R. Florez of Murray & Simmons LLP, Fort Lauder-dale, for appellee.
   POLEN, J.

Appellant/Cross-Appellee, Bella Aurora Pacheco, M.D., P.A., (the P.A.) appeals the trial court’s partial summary judgment as to liability determining that the P.A. breached its lease agreement with Appel-lee/Cross-Appellant, Syneron, Inc. (Syner-on). Syneron cross-appeals the final judgment awarding it damages in the amount of $41,458.00 plus pre-judgment interest.

Syneron sued both Bella Aurora Pacheco, M.D. (Dr. Pacheco) and Bella Aurora Pacheco, M.D., P.A. (the P.A.) for breach of contract alleging that the P.A. entered a lease agreement with National City Commercial Capital Company, LLC in September 2006 by which the P.A. agreed to lease certain medical equipment for use in its business in Broward County. Payments were to commence in January 2008. However, aside from the payment due at lease signing, no payments were ever made by Dr. Pacheco or the P.A. Accordingly, Syneron sought to accelerate the remaining payments and recover $141,256.03 in damages plus interest, court costs, and attorney’s fees. The equipment was actually returned to Syneron in May 2008.

The subject lease was signed by Dr. Pacheco and not by the P.A. At the same time, however, Dr. Pacheco identified as a corporation in Paragraph 2 of the lease and also provided her Social Security number and a Federal Tax ID number. In an amendment to the lease, the address of the equipment location was changed and the legal business name was changed from Bella Aurora Pacheco, M.D. to Bella Aurora Pacheco, M.D., P.A. This amendment states that it is entered into between National City and the Lessee, but it is only signed by a representative from National City.

In their answer to Syneron’s complaint, the defendants admitted that the P.A. entered into the lease agreement. Dr. Pacheco also stated during a deposition that the P.A. had entered the lease agreement.

Syneron filed a motion for summary judgment against both the P.A. and Dr. Pacheco. Following a hearing, Judge David Krathen entered partial summary judgment as to the issue of liability against both the P.A. and Dr. Pacheco. Partial summary judgment as to the issue of damages was denied.

In July 2009, the parties proceeded to bench trial before Judge Jack Tuter on the issue of damages. Dr. Pacheco testified that she had not seen the amendment to the lease until just prior to the trial, and had no recollection of seeing it before that. Syneron’s representative testified that there was nothing indicating that Dr. Pacheco had requested the lease amendment and nothing indicating that Dr. Pacheco had ever received the amendment.

At the close of Syneron’s case in chief, the P.A. moved to set aside partial summary judgment as to liability and moved for a directed verdict arguing that liability was not shown as to the P.A., that the P.A. never signed the contract, and that the lease agreement was amended unilaterally by Syneron. The court denied the motion.

Ultimately, the court found that Syneron had been damaged as a result of the breach of the lease agreement and entered a judgment for damages in the amount of $41,458.00. The P.A. now timely appeals, and Syneron timely cross-appeals.

We affirm the trial court’s entry of partial summary judgment as to liability. In light of Dr. Pacheco’s and the P.A.’s admission in the pleadings that the lease had been entered into by the P.A., and Dr. Pacheco’s deposition testimony that the P.A. was a party to the lease, the trial court correctly granted Syneron’s motion for partial summary judgment.

However, we reverse the trial court’s award of damages. The lease agreement provides as follows:

If you are ever in default, at our option, we can terminate or cancel this Agreement and require that you: (1) pay the unpaid balance of this Agreement (discounted at 6%); (2) pay the amount of any purchase option and if none is specified, 20% of the original Equipment cost which represents our anticipated residual value in the Equipment; and (3) return the Equipment to us to a location designated by us.

The agreement further provided that any amount owed would be reduced by the net proceeds from the sale of the equipment. Under the above provision, Syneron sought damages in the amount of $141,256.03.

The trial court awarded damages in the amount of $41,458.00, and in so doing admitted that it was trying to achieve an equitable result. This was error. The P.A. presented no evidence to refute that Syneron’s efforts to resell the machine were commercially reasonable. The court was required to calculate damages according to the contract between the parties. Accordingly, we reverse and remand for a recalculation of damages per the contractual terms.

Affirmed in part; Reversed and Remanded in part.

WARNER and LEVINE, JJ., concur.

      .Only Bella Aurora Pacheco, M.D., P.A. is here on appeal. Due to the co-defendant, Dr. Pacheco’s demand for jury trial, the trial court bifurcated the trial.

      . The complaint also pled a count for unconditional personal guaranty against Dr. Pacheco.

      . National City subsequently assigned its interest in the lease to Appellee, Syneron, Inc.


text:
    William Keith CAMPBELL, Appellant, v. Dina M. CAMPBELL, Appellee.
    No. 4D09-3357.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.

      Glenn J. Sneider of Glenn J. Sneider, L.C., Okeechobee, for appellant.
    Kristine M. Johnson of Kristine M. Johnson, P.A., Cooper City, for appellee.
   TOWBIN SINGER, MICHELE, Associate Judge.

Appellant, William Keith Campbell (Husband), appeals a final order denying his verified motion for rehearing and/or to set aside the clerk’s default after the court’s entry of a default final judgment in a dissolution of marriage action with minor children. We affirm the final judgment in all respects, except that portion that awards attorney’s fees to counsel for Ap-pellee, Dina M. Campbell (Wife).

A trial judge’s award of attorney’s fees and costs is reviewed under an abuse of discretion standard of review. See Kuczwanski v. Kuczwanski, 602 So.2d 623, 623-24 (Fla. 4th DCA 1992). The standard for awarding attorney’s fees in dissolution cases is the financial need of the requesting party and the financial ability of the other party to pay. Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005).

In the instant case, the default final judgment granted attorney’s fees to the Wife, stating: “The Husband shall be responsible for the Wife’s attorneys’ fees and costs pursuant to F.S. 61.16 as the Husband’s income and financial resources are far superior to the Wife’s and she has the need and he has the ability to pay same. The Wife’s total fees and costs incurred to date, and which the Husband shall be solely responsible are $4,200.00.”

The law is “well established that the trial court must set forth specific findings concerning the hourly rate, the number of hours reasonably expended and the appropriateness of reduction or enhancement factors.” Hoffay v. Hoffay, 555 So.2d 1309, 1310 (Fla. 1st DCA 1990); see also Macarty v. Macarty, 29 So.3d 434, 435 (Fla. 2d DCA 2010) (“[A]n award of attorney’s fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings.” (quoting Esaw v. Esaw, 965 So.2d 1261, 1265 (Fla. 2d DCA 2007)). The presence of competent substantial evidence to support the award does not obviate the need for such specific findings. Hoffay, 555 So.2d at 1310.

In determining a reasonable attorney’s fee, courts should consider the following factors:

(1) the time and labor required, the novelty and difficulty of the issues, and the legal skill required; (2) the likelihood that the representation will preclude other employment by the lawyer; (3) the customary fee; (4) the result obtained; (5) the time limitations imposed by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyers; and (8) whether the fee is fixed or contingent.

Schwartz v. Schwartz, 965 So.2d 832, 833-34 (Fla. 1st DCA 2007) (quoting Hamlin v. Hamlin, 722 So.2d 851, 852 (Fla. 1st DCA 1998)).

Where there is nothing in the trial court’s order that allows the appellate court to discern whether any of the above factors were considered in determining a reasonable attorney’s fee, a fee award simply taking the amount charged by the attorney and determining it to be reasonable is improper and an abuse of discretion. See id. at 834; see also Harris v. McKinney, 20 So.3d 400, 403 (Fla. 2d DCA 2009) (“Absent specific written findings regarding the basis for determination of the amount awarded, we are compelled to reverse and remand for further proceedings.”) (quoting Markovich v. Markovich, 974 So.2d 600, 601 (Fla. 2d DCA 2008)). As the attorney’s fee award in the instant case lacks specific findings that would form the basis for affirming such an award, this Court hereby must also reverse and remand on the issue of attorney’s fees for further proceedings.

Affirmed in Part; Reversed in Part and Remanded for Further Proceedings.

TAYLOR and CIKLIN, JJ., concur.


author: SUAREZ, J.

text:
    S.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2917.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS, and LAGOA, JJ.
   SUAREZ, J.

Confession of Error

S.S., a juvenile, appeals from orders finding that S.S. committed the crime of resisting an officer without violence, withholding adjudication, and placing S.S. on probation. Pursuant to the State’s proper confession of error, we reverse and remand with directions to enter a judgment of dismissal. See O.B. v. State, 36 So.3d 784 (Fla. 3d DCA 2010).

Reversed and remanded with directions.


text:
    Sharmarkco EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-75.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2010.
    Terry P. Roberts of Law Offices of Terry P. Roberts, Tallahassee, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

The defendant appeals his conviction and sentence for aggravated assault and false imprisonment with a firearm. He argues the trial court erred in denying his motion for mistrial based upon a prospective juror’s comments during voir dire. This issue was raised by his co-defendant and brother in a prior appeal. We reversed on the same issue and remanded the case for a new trial. See Evans v. State, 36 So.3d 185 (Fla. 4th DCA 2010). The State has advised in its Answer Brief that the same result is warranted here. For this reason, we reverse and remand for a new trial.

Reversed and Remanded for a new trial

FARMER, MAY and GERBER, JJ., concur.


text:
    Vencil THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5564.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.
    Matt Shirk, Public Defender, Fourth Judicial Circuit, Richard Gordon and Michelle Barki, Assistant Public Defenders, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. McKinney v. Yawn, 625 So.2d 885 (Fla. 1st DCA 1993).

WEBSTER, DAVIS, and ROWE, JJ., concur.


text:
    David L. McKIBBEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1011.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.

      Nancy A. Daniels, Public Defender and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

David L. McKibben appeals his judgment and sentence for cultivation of cannabis pursuant to his reservation of his right to appeal the denial of his motion to suppress the plants seized from a closet in his home. Because the plants were discovered during a valid “protective sweep” of the dwelling, within the boundaries set out in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the denial of the motion to suppress which ultimately resulted in the judgment and sentence is affirmed.

At the hearing on the motion to suppress, two police investigators testified that they arrived at the appellant’s residence, a single-wide mobile home, to serve an arrest warrant on the appellant’s roommate. The officers had been told by onlookers that the roommate was residing with “David.” Shortly after one officer knocked on the door, the other officer saw someone peek out a window. He alerted the first officer of this brief observation and described the person as male, though he was not sure due to the fleeting nature of the sighting. Moments later, the female roommate answered the door. The officers explained that she was to be arrested pursuant to the warrant, and the roommate asked to return inside to retrieve some shoes and other personal items. The officers accompanied her inside to allow her to gather her things. Both investigators testified that as they spoke with the roommate in the living room of the trailer and as she was putting on her shoes, she was “nervous, fidgety” and “looking down the hall.” Although when asked, the roommate told the officers that no one else was at home, her repeated glances down the hall leading to the bedrooms “as if she was looking at someone or looking to see if someone was there” prompted one of the investigators to announce the presence of Sheriffs officers, request that anyone there show themselves, and proceed down the narrow hallway to check for any other occupants. Both officers testified that the small size and closely quartered configuration of the modular home would allow a hostile person to attack or, if armed, shoot at them easily and immediately.

The first bedroom accessed from the hallway had no door and, without moving anything in the room, the officer could see fluorescent lighting coming from a closet partially covered with a plastic curtain. Without touching anything, the officer saw several potted plants in the closet which he believed to be cannabis. He went on to look into the other rooms accessed by the hallway, assured himself that they were unoccupied, and returned to the living room within a few minutes. The officers then called another unit to handle the controlled substance matter and they departed the scene to transport the roommate to the county detention facility pursuant to the arrest warrant.

While searches and seizures inside a home without a warrant are “presumptively unreasonable” and thus prohibited by the 4th Amendment (Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)), where a person is arrested in a residence, exceptions may apply. In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the Supreme Court stated:

We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Maryland v. Buie, 494 U.S. at 334, 110 S.Ct. 1093. The Court further described the limitations on a permissible sweep thusly:

We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.

Buie, 494 U.S. at 335,110 S.Ct. 1093.

The trial court’s finding that the sweep in this case satisfied the requirements of Maryland v. Buie was a proper application of the law to the undisputed facts. Both officers testified to articulable facts which led them to believe that the small residence harbored an individual posing a danger to them. The sweep was a cursory inspection of the rooms accessed by the hallway where the roommate repeatedly directed her glances, and lasted no longer than was necessary to dispel the reasonable suspicion of danger.

The fact that the roommate was arrested on a warrant for property crimes not involving violence did not render the arresting officers’ suspicions of danger unreasonable. “The facts on which officers may justify a Buie protective sweep are those facts giving rise to a suspicion of danger from attack by a third party during the arrest, not the dangerousness of the arrested individual.” U.S. v. Colbert, 76 F.3d 773, 777 (6th Cir.1996); Nolin v. State, 946 So.2d 52, 57 (Fla. 2d DCA 2006). The facts articulated by the witnesses supported their suspicion that a person other than the person they had secured was in the home. Both witnesses described the size of the home, the location of the hallway adjacent to the living room where the roommate was secured, and the ease and speed with which an attacker might reach them from any room accessed by the hallway. Cf. Runge v. State, 701 So.2d 1182 (Fla. 2d DCA 1997) (no testimony on the configuration of the dwelling, no evidence that anyone other than arrested person lived in apartment). These facts, coupled with the other information the officers observed which indicated that the arrested person’s male roommate was at home, justified the sweep of the mobile home and did not constitute an unreasonable search.

Accordingly, the trial court’s denial of the motion to suppress, and the judgment and sentence which eventually resulted from that ruling, are affirmed.

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Carlos GARAY, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, Division of Retirement, Appellee.
    No. 1D09-4865.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Carlos Garay, pro se,. Appellant.
    Geoffrey M. Christian, Assistant General Counsel, Department of Management Services, Tallahassee, for Appellee.
   PER CURIAM.

Carlos Garay argues on appeal that the Department of Management Services, Division of Retirement (FRS), improperly required forfeiture of retirement benefits he had already received. We affirm.

Mr. Garay was employed by the Miami-Dade County Department of Human Services from July 1990 until October 2002, when he retired and began receiving FRS benefits. On or about April 16, 2008, Mr. Garay pled guilty to, and was adjudged guilty of, four crimes which involved altering agency records and diverting funds for his own use. The crimes were committed while Mr. Garay was still employed by the Miami-Dade County Department of Human Services.

FRS first learned about Mr. Garay’s criminal conviction approximately four years after he retired. FRS then conducted an investigation and verified that the crimes occurred while Mr. Garay was employed in the public trust and that the crimes constituted specified offenses under section 112.3173, Florida Statutes (2001), the forfeiture statute. On February 27, 2007, FRS sent Mr. Garay a letter informing him that his rights and benefits under FRS were subject to forfeiture for acts committed while employed with the Miami-Dade County Department of Human Services. After an evidentiary hearing on August 4, 2009, the Department of Management Services entered a final order, finding that forfeiture of Mr. Garay’s retirement benefits was required pursuant to Florida law.

Mr. Garay’s sole argument on appeal is that because he had already retired and was receiving benefits, it was improper for FRS to require forfeiture. Florida law, however, expressly provides for forfeiture of retirement benefits whenever FRS receives notice of criminal activity which occurred while a person was employed in the public trust.

The forfeiture provision is based on article II, section 8 of the Florida Constitution, which provides for forfeiture of an employee’s rights and privileges under a public retirement system when that employee violates the public trust:

SECTION 8. Ethics in government. — A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right:
(d) Any public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law.

The forfeiture provision is further codified in section 112.3173(3), Florida Statutes (2001), which states:

FORFEITURE. — Any public officer or employee who is convicted of a specified offense committed prior to retirement, or whose office or employment is terminated by reason of his or her admitted commission, aid, or abetment of a specified offense, shall forfeit all rights and benefits under any public retirement system of which he or she is a member, except for the return of his or her accumulated contributions as of the date of termination.

Under section 112.3173(3), it is clear that the time the offense is committed controls forfeiture, not the time of the ultimate conviction. See also Busbee v. State, Div. of Ret., 685 So.2d 914, 916-17 (Fla. 1st DCA 1996).

Once FRS learned of Mr. Garay’s conviction of crimes committed while he was still employed in public service, it was required to initiate forfeiture proceedings as provided for in section 112.3173(5)(a), Florida Statutes (2001):

Whenever the official or board responsible for paying benefits under a public retirement system receives notice ... that the rights and privileges of any person under such system are required to be forfeited ... such official or board shall give notice and hold a hearing ... for the purpose of determining whether such rights and privileges are required to be forfeited.

The use of the term “whenever” demonstrates that the legislature anticipated circumstances, such as those in this case, where FRS may receive notice that an employee had committed a crime requiring forfeiture even after an employee had retired. An additional indication that the legislature contemplated post-retirement forfeiture of benefits is the repayment provision set forth in section 112.3173(5)(d), Florida Statutes (2001), which provides for repayment of benefits when FRS discovers that a member’s benefits are subject to forfeiture after the member has retired and begun receiving FRS benefits.

Mr. Garay pled guilty to offenses specified in section 112.3173(2)(e), Florida Statutes (2001), involving misuse of his position of trust while he was an employee of the Miami-Dade Department of Human Services. It is undisputed that Mr. Ga-ray’s offenses were committed before his retirement. The Florida Constitution and Florida Statutes unambiguously provide for the forfeiture of the right to retirement benefits upon conviction of certain specified offenses committed while a person is employed in the public trust.

Under Mr. Garay’s theory, an employee would need only retire before being convicted of a qualifying offense to avoid the consequences of the forfeiture statute. This interpretation is not only in conflict with the express language of the Florida Constitution and Florida Statutes, but such an interpretation would render the forfeiture statute a nullity. Cf. Kerner v. State Employees’ Ret. Syst., 72 Ill.2d 507, 21 Ill.Dec. 879, 382 N.E.2d 243, 246 (Ill. 1978) (“[Ujnder plaintiffs theory, an employee need only retire prior to his conviction of a felony in order to render the entire statute meaningless.”); Horsley v. Philadelphia Bd. of Pensions & Ret., 519 Pa. 264, 546 A.2d 1115, 1118 (1988) (“To hold otherwise would unfairly advantage those corrupt and felonious City employees who are fortuitous enough to avoid detection of their crimes until after they leave the City’s employ: a result which would be both absurd and unreasonable.”); Hames v. City of Miami, 479 F.Supp.2d 1276, 1288 (S.D.Fla.2007), aff'd as modified, 281 F. App’x 853 (11th Cir.2008) (citing Kemer and Horsley and noting the ease with which employees could manipulate the application of the forfeiture statute by favorably timing their retirement).

Because the Department of Management Services properly ruled that FRS was correct in its finding that Mr. Garay’s retirement benefits were subject to forfeiture, the order on appeal is AFFIRMED.

HAWKES, C.J., ROBERTS, and ROWE, JJ., concur.


author: MARSTILLER, J.

text:
    Kennis L. SCHUMMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6494.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.

      Kennis L. Schummer, pro se, for Appellant.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Appellant, Kennis Schummer, was convicted in 1993 of racketeering, grand theft, and unlawful financial transaction. This court affirmed the convictions and sentences in Schummer v. State, 654 So.2d 1215 (Fla. 1st DCA 1995). Appellant’s current appeal is from an order denying his motion to declare $22,759 in restitution paid in full after offsetting a money judgment he won against Gulf Coast Audio Visual Producers, Inc. (“Gulf Coast”), the victim of his crimes. We affirm the trial court’s order for we find none of the ordered restitution has been satisfied by set-off.

When Appellant was convicted, he was ordered to pay Gulf Coast $23,759 in restitution in addition to serving terms of incarceration and probation. The trial court subsequently reduced the restitution to $22,759 after vacating a single count of conviction for both grand theft and unlawful financial transaction. In 2002, Appellant obtained a civil judgment against Gulf Coast in the amount of $44,928, and against Robert Roy and Charles Edwards, the owners of Gulf Coast, for $14,975.82 and $14,674.82, respectively. Gulf Coast in turn was awarded treble damages and prejudgment interest totaling $85,355.93 on its civil theft counterclaim against Appellant. The Final Judgment provided this amount would be offset by the $44,928 in damages Appellant received against Gulf Coast, thereby resulting in a net judgment against Appellant of $40,427.93. The Final Judgment stated further:

Any amounts paid to or collected by Defendant Gulf Coast Audio Visual Producers, Inc. in satisfaction of its judgment shall concurrently satisfy the restitution obligation owed to said defendant by plaintiff established by restitution order entered in State of Florida v. Kenneth L. Schummer, Case No.1992-CF-005096A, Circuit Court, Escambia County, Florida.

See § 775.089(8), Fla. Stat. (providing that restitution is to be set off against any subsequent civil recovery obtained by the person to whom restitution is owed).

In 2008, Gulf Coast assigned its judgment against Appellant to Charles Edwards, who thereafter assigned it to Robert Roy. As a result of the assignments, the $40,427.98 judgment against Appellant was offset and thus reduced by $32,182.91, the total amount Edwards and Roy owed in damages and interest to Appellant as of January 30, 2003. Because the setoffs were not “amounts paid to or collected by” Gulf Coast, they had no effect on the $22,759 in restitution Appellant must pay to Gulf Coast as a result of the criminal proceedings. But pursuant to section 775.089(8) and the final judgment in the civil proceedings, Appellant is entitled to concurrently satisfy his obligations under the civil judgment and the restitution order.

AFFIRMED.

HAWKES, C.J., and PADOVANO, J., Concur.

      . We assume interest had accrued on the judgment by the time Gulf Coast assigned it, but the record does not reflect the amount of such interest.


text:
    P.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2986.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Anne C. Conley and Therese A. Savona, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The State correctly concedes error in P.W.’s conviction for assault as a permissive lesser-included offense to the charge of battery where the elements of the crime of assault were not alleged. N.H.M. v. State, 974 So.2d 484, 486 (Fla. 2d DCA 2008); Negron v. State, 938 So.2d 650, 651-52 (Fla. 4th DCA 2006). We, therefore, reverse P.W.’s conviction for assault and direct the trial court to enter a judgment of acquittal on the charge of battery.

HAWKES, C.J., DAVIS and THOMAS, JJ., concur.


text:
    David B. HUDSON, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, o/b/o, Ashley S. ALLEN, Appellee.
    No. 1D10-2004.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    David B. Hudson, pro se, Appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Pursuant to appellee’s confession of error, the final order is hereby quashed and the cause is remanded for further proceedings.

WOLF, DAVIS, and WETHERELL, JJ., concur.


text:
    Julius DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2207.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant complains that the trial court erred in (1) denying his objections to the state’s peremptory challenges of several jurors because the challenges were impermissibly based on the jurors’ race; and (2) imposing a minimum mandatory sentence of twenty years in prison for robbery with a firearm because he was not charged with discharging a firearm during the commission of that offense. We affirm as to the first claim because appellant failed to preserve it by renewing his objections to the state’s use of the peremptory challenges immediately before the jury was sworn. See, e.g., Zack v. State, 911 So.2d 1190, 1204 (Fla.2005); Joiner v. State, 618 So.2d 174, 176 (Fla.1993). The state correctly concedes error regarding the second claim because the information did not charge that appellant discharged a firearm during commission of the robbery. See, e.g., Driggers v. State, 917 So.2d 329, 333 (Fla. 5th DCA 2005); Altieri v. State, 835 So.2d 1181, 1183-84 (Fla. 4th DCA 2002). Because appellant was sentenced to life in prison as a prison releasee reoffender on the count charging robbery with a firearm, however, he will serve 100 percent of that sentence pursuant to section 775.082(9)(b), Florida Statutes (2007). Therefore, the minimum mandatory sentence on that count may be corrected to properly reflect a ten-year minimum mandatory for possession of a firearm, rather than the twenty-year minimum mandatory imposed, and appellant need not be present. See generally Netterville v. State, 673 So.2d 986, 986 (Fla. 1st DCA 1996) (a defendant need not be present for correction of “scrivener’s errors”).

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WOLF, KAHN, and WEBSTER, JJ, concur.


text:
    Betsy Ann ROSSEN a/k/a Elisabeth Rossen, Appellant, v. Janice (Rossen) BILCHIK, Appellee.
    Nos. 4D08-2889, 4D09-94, 4D09-802, 4D09-2763.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Inger M. Garcia, Fort Lauderdale, and Shelly J. Stirrat of Fox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey, L.L.P., Stuart, for appellant.
    Marsha Madorsky and Andrew D. Man-ko of Carlton Fields, P.A., Miami, for ap-pellee.
   PER CURIAM.

These consolidated appeals arose out of a disagreement between two sisters after their father’s death. Appellee Janice Bil-chik filed a petition against appellant Betsy Ann Rossen under section 732.901, Florida Statutes (2008); subsection (2) of that statute provides:

Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will as provided in subsection (1) [requiring deposit of a will “with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead”]. All costs, damages, and a reasonable attorney’s fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.

Bilchik filed the petition with the clerk on January 11, 2008. Without a hearing and without any proof that the petition had been received by Rossen, on January 15, 2008, a circuit judge entered an order that was tantamount to a final judgment granting full relief under section 732.901 by requiring Rossen to produce the will and awarding $2,500 in attorney’s fees against her. The entry of this order without due process generated a plethora of motions, hearings, and contempt orders.

Rossen appeared in the lawsuit, sometimes with an attorney and sometimes without. She waived any objection to personal jurisdiction. However, she timely objected to the entry of the January 15 order entered without notice and without a hearing. She was entitled to have the order set aside under Florida Rule of Civil Procedure 1.540(b).

We.therefore reverse the January 15, 2008 order requiring production of a will, the June 15, 2009 order denying relief under rule 1.540(b), the December 16, 2008 order granting attorney’s fees and costs, the February 3, 2009 order granting ex parte witness fees, and affirm the June 2, 2008 order of contempt and remand to the circuit court.

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


text:
    Angel RAMIREZ-CANALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-615.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Appellant, Angel Ramirez-Canales, was charged by amended information with two counts of sexual battery by a person in familial authority (Counts I and II) and one count of lewd molestation by a person in familial authority (Count III). He was convicted and sentenced to thirty years in prison on Counts I and III and fifteen years in prison on the lesser included offense of attempted sexual battery on Count II. This appeal concerns only his conviction and sentence on attempted sexual battery (Count II). We reverse on that count alone, because the trial court erred in instructing the jury on attempted sexual battery where the evidence established and supported a verdict of guilt for the completed offense of sexual battery. See Fla. R.Crim. P. 3.510(a) (providing, in pertinent part, that “[t]he judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense”). See also Gleason v. State, 591 So.2d 278, 279 (Fla. 5th DCA 1991) (holding that it “was error to charge the jury on attempted sexual battery when ‘... there was no evidence to support such attempt and the only evidence prove[d] a completed offense.’ ” (citations omitted)); Wilson v. State, 622 So.2d 31, 36 (Fla. 1st DCA 1993) (affirming the trial court’s refusal to instruct the jury on the permissive lesser included offenses of attempted sexual battery and attempted lewd assault where the evidence called for a jury finding that the defendant either committed the completed offenses or none at all).

Because the trial judge granted a judgment of acquittal on the sexual battery charge in Count II when he reduced it to attempted sexual battery, double jeopardy protections preclude retrial for Count II’s original sexual battery charge. See Brock v. State, 954 So.2d 87, 88-89 (Fla. 1st DCA 2007).

Reversed and Remanded.

TAYLOR, HAZOURI and CIKLIN, JJ., concur.


text:
    Franklin VASQUEZ, Appellant, v. YII SHIPPING COMPANY LIMITED, Appellee.
    No. 4D09-3220.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Michael A. Winkleman, Carlos F. Llinas and Charles R. Lipcon of Lipcon, Margu-lies & Alsina, P.A., Miami, for appellant.
    Robert C. Weill, Robert D. Peltz and Carol L. Finklehoffe of McIntosh, Sawran, Peltz & Cartaya, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86 (1996).

HAZOURI, CIKLIN and LEVINE, JJ„ concur.


text:
    Jarvis HARVARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3731.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Jarvis Harvard, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jarvis Harvard appeals an order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Harvard raised several points in his rule 3.850 motion. We reverse and remand for further review of Harvard’s claim that counsel failed to call the co-defendants as trial witnesses to support his claim that he did not know of their plan to commit the grand theft for which he was tried as a principal. See generally Brown v. State, 892 So.2d 1119 (Fla. 2d DCA 2004); Jimenez v. State, 754 So.2d 825 (Fla. 3d DCA 2000). As alleged, the claim is sufficiently plead and not refuted by the record furnished. See, e.g., Banks v. State, 825 So.2d 478 (Fla. 4th DCA 2002). We affirm the denial of the remaining claims without discussion.

POLEN, TAYLOR and GERBER, JJ., concur.


text:
    August URBANEK, Petitioner, v. Gerald URBANEK, Commercial Management Corporation, and Philip W. Hopkins, as Trustee, Respondents.
    No. 4D10-3478.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.

      David Howard Goldberg of Ellis & Goldberg, P.L., Miami, and Michael J. Weber of Michael J. Weber, P.A., Miami, for petitioner.
    Jesse H. Diner and Sean P. Sullivan of Atkinson, Diner, Stone, Mankuta & Plou-cha, P.A., Fort Lauderdale, for respondents Gerald Urbanek and Commercial Management Corporation.
   PER CURIAM.

August Urbanek seeks a writ of certio-rari quashing the denial of his motion for protective order. The petition was timely filed.

At the heart of the proceedings below is petitioner’s irrevocable trust. Many causes of action involving many parties have been alleged and dismissed. As it currently stands, the lawsuit involves claims against petitioner for indemnification by respondent Gerald Urbanek, Commercial Management Corporation and the trustee, Philip Hopkins.

Petitioner asserted the psychotherapist-patient privilege to prevent respondent(s) from deposing his psychologist who had previously furnished the court with an affidavit. See § 90.503, Fla. Stat. (2009). When denying the motion for protective order, the court ordered that the psychologist could be deposed, and that during that deposition he “shall disclose the facts, communications, and records” surrounding the creation and the content of the affidavit.

The affidavit was offered by petitioner and authored by his clinical psychologist. It was furnished in response to respondent’s position that petitioner was being purposely isolated and sequestered in an effort to frustrate discovery and avoid certain meetings. Through the affidavit, petitioner’s psychologist addressed the “isolation” theory based on his evaluation of petitioner and the family dynamics.

Petitioner subsequently withdrew the affidavit. Respondent’s position is that the any privilege was waived and the waiver cannot be revoked. See § 90.507, Fla. Stat. (2009).

We grant the petition and quash the order. We hold that any initial waiver of the privilege was revoked when petitioner withdrew the affidavit. See Garbacik v. Wal-Mart Transp. LLC., 932 So.2d 500, 503 (Fla. 5th DCA 2006); Commercial Carrier Corp. v. Kelley, 903 So.2d 240 (Fla. 5th DCA 2005); Cohen v. Cohen, 813 So.2d 1060 (Fla. 4th DCA 2002); Sykes By & Through Sykes v. St. Andrews Sch., 619 So.2d 467 (Fla. 4th DCA 1993). Petitioner submitted the affidavit in response to an affidavit submitted by Gerald Urbanek in connection with issues which were, and remain, collateral to the underlying indemnification claim. Also, respondent has not demonstrated that the substance of the affidavit is tied to petitioner’s answer, affirmative defenses or counterclaim. Compare H.J.M. v. B.R.C., 603 So.2d 1331, 1334 (Fla. 1st DCA 1992) (citing Hamilton v. Hamilton Steel Corp., 409 So.2d 1111 (Fla. 4th DCA 1982)).

Accordingly, we grant the petition for certiorari and quash the order at issue.

Petition granted.

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


text:
    In re John E. CUMMINGS.
    No. 2010-OB-2369.
    Supreme Court of Louisiana.
    Nov. 8, 2010.
   JjON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, John E. Cummings, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. The term of this conditional admission shall be for five years from the date of admission.

2. During the period of this conditional admission, petitioner shall be monitored by the Lawyers Assistance Program (LAP).

3. Petitioner shall be responsible for ensuring that monthly reports of his progress and participation in LAP are forwarded to the Office of Disciplinary Counsel.

4. Within forty-five days prior to the expiration of the conditional admission, the Executive Director of LAP shall forward to the Office of Disciplinary Counsel (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP.

5. Within thirty days prior to the expiration of the conditional admission, the Office of Disciplinary Counsel shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

| g6. Petitioner shall cooperate with LAP and the Office of Disciplinary Counsel, and shall comply with any and all requirements imposed upon him by LAP and the Office of Disciplinary Counsel.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Richard B. SCANDRETT.
    No. 2010-OB-2361.
    Supreme Court of Louisiana.
    Nov. 3, 2010.
   LON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Richard B. Scandrett, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. The term of this conditional admission shall be for five years from the date of admission.

2. During the period of this conditional admission, petitioner shall be monitored by the Lawyers Assistance Program (LAP).

3. Petitioner shall be responsible for ensuring that monthly reports of his progress and participation in LAP are forwarded to the Office of Disciplinary Counsel.

4. Within forty-five days prior to the expiration of the conditional admission, the Executive Director of LAP shall forward to the Office of Disciplinary Counsel (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP.

5. Within thirty days prior to the expiration of the conditional admission, the Office of Disciplinary Counsel shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

| j>6. Petitioner shall cooperate with LAP and the Office of Disciplinary Counsel, and shall comply with any and all requirements imposed upon him by LAP and the Office of Disciplinary Counsel.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    STATE of Louisiana v. Arlyn SQUARE.
    No. 2010-KK-2414.
    Supreme Court of Louisiana.
    Nov. 3, 2010.
   PER CURIAM.

The ruling of the trial court is reversed.

The suppression of the statements that were “blurt[ed] out,” as the trial court found, runs contrary to this court’s ruling in State v. George, 371 So.2d 762, 766-371 (La.1979) (“[The] defendant was not subjected to police interrogation while in the patrol car enroute to jail. The inculpatory statements made by defendant were spontaneous and voluntary.... Under these circumstances ... the inculpatory statements and/or confessions were properly admitted in evidence.”). The trial court’s ruling also runs contrary to the larger body of jurisprudence on voluntariness. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473(1986) (a defendant’s mental condition, “by itself and apart from its relation to official coercion” does not render a confession involuntary under the Due Process Clause). See also State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272. In Green, noting that vol-untariness of a confession is an issue separate from the Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), analysis, this court ruled that a confession by a juvenile with mental retardation was voluntarily made. To prove a confession was involuntary required a showing of “misconduct or overreaching by the police.” Green, 94-0887, 655 So.2d at 280 n. 7 (quoting State v. Schrader, 518 So.2d 1024, 1027 (La.1988)).