author: KELLY, Judge.

text:
    Chad PIFER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1969.
    District Court of Appeal of Florida, Second District.
    April 8, 2009.
    Chad Pifer, pro se.
   KELLY, Judge.

Chad Pifer challenges the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand because the postconviction court should have considered his motion as if it were filed pursuant to Florida Rule of Criminal Procedure 3.850.

Pifer pleaded guilty to the offenses charged in eighteen separate cases and was sentenced to twelve years’ incarceration to be followed by ten years’ drug offender probation. In his rule 3.800(a) motion, Pifer alleged that his sentence was illegal because it exceeded the eighteen-year sentencing cap specified in his plea agreement. The postconviction court denied the motion on the ground that Pifer’s claim was not cognizable under rule 3.800(a) and must instead be raised through a timely motion to withdraw the plea. See Williams v. State, 873 So.2d 1248 (Fla. 5th DCA 2004). The court further found that even if Pifer’s motion were construed as a motion to withdraw plea, it would be denied as untimely.

Pifer’s claim that his sentence exceeds the terms of his plea agreement is facially sufficient and cognizable under rule 8.850. See Hettick v. State, 977 So.2d 797, 798 (Fla. 2d DCA 2008) (citing Dellofano v. State, 946 So.2d 127, 129 (Fla. 5th DCA 2007) (Lawson, J., concurring specially) (observing that because there is no procedure in the Florida Rules of Criminal Procedure for a “motion to enforce plea agreement,” the only avenue available to the movant is to file a claim pursuant to rule 3.850)). Because Pifer’s motion was properly sworn and filed within the time limitations of rule 3.850, the postconviction court should have treated it as a motion filed pursuant to that rule. See Riviere v. State, 965 So.2d 845 (Fla. 2d DCA 2007). Accordingly, we reverse the postconviction court’s order and remand for reconsideration pursuant to rule 3.850. If the court denies the motion, it must attach portions of the record that conclusively refute Pi-fer’s claim.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.


source: Caselaw Access Project

author: COPE, J.

license: Public Domain

text:
    K.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-717.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Carlos Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   COPE, J.

K.H. appeals an order finding that he committed the offense of battery on a law enforcement officer. We conclude that the evidence was legally insufficient and reverse.

At about 11:00 P.M., two police officers were conducting drug surveillance in a residential neighborhood. The officers were parked in an unmarked Ford F150 pickup with dark tinted windows. K.H., a fourteen-year-old male, and his friend were walking home when they noticed the pickup parked on the swale with the engine running. K.H. and his friend walked around the pickup, placed their hands on the windows, and looked inside. They did not try the door handles, did not try to break into the vehicle, and did not have anything in their hands.

After a few minutes, one of the officers started to exit the vehicle. K.H. started walking rapidly away on the sidewalk and his friend jumped a nearby fence and ran away. The officer turned the truck around to go after K.H.’s friend but was unable to find him. When the officer spotted K.H. again, who was still walking rapidly, he got out of the truck and yelled for him to stop. K.H. tried to walk around the officer, who was in plain clothes. The officer tried to grab K.H., who pushed the officer in the chest and ran home. The officer chased him, took custody of him on the front porch of KH.’s house, and arrested him for loitering and prowling in violation of section 856.021, Florida Statutes (2007).

At the adjudicatory hearing, K.H. was found to have committed battery on a law enforcement officer because he pushed the officer. One of the elements of battery on a law enforcement officer is that the officer “is engaged in the lawful performance of his or her duties.... ” § 784.07(2), Fla. Stat. (2007).

K.H. argues that the officer was not engaged in the lawful execution of a legal duty when K.H. allegedly pushed him. The State concedes that the act of looking inside the windows of the pickup, without more, is insufficient to establish the offense of loitering and prowling. See Addis v. State, 557 So.2d 84, 85 (Fla. 3d DCA 1990); Bowser v. State, 937 So.2d 1270, 1271 (Fla. 2d DCA 2006). However, the State argues that the totality of the circumstances gave rise to a reasonable suspicion of criminal activity when the conduct of K.H. and his friend is considered along with the fact that the officer was conducting drug surveillance. The State’s argument fails because there is nothing in the record to establish any connection between K.H. and any criminal activity.

We conclude that the evidence was legally insufficient to support a determination that K.H. committed battery on a law enforcement officer. There was neither probable cause, nor a founded suspicion, that K.H. was committing the offense of loitering and prowling. That being so, the officer was not engaged in the lawful performance of his duties when he stopped K.H. See Tillman v. State, 934 So.2d 1263, 1273 (Fla.2006).

However, the evidence is sufficient to find that K.H. committed the necessarily lesser included offense of misdemeanor battery under paragraph 784.03(l)(a)l, Florida Statutes (2007). See State v. Sigler, 967 So.2d 835, 844 (Fla.2007). Accordingly, we remand with instructions for the trial court to reduce the offense to simple battery.

Reversed and remanded.

      . The offense date was July 20, 2007.

      . The State took no action on the charge of loitering and prowling. At trial the State abandoned count two, resisting an officer with violence.


author: ROTHENBERG, J.

text:
    COOPER TIRE & RUBBER COMPANY and Ford Motor Company, Appellants, v. ESTATE OF Carlos Hernandez CHAVEZ by and through its Personal Representatives Anatolio HERNANDEZ Saldana and Jacinta Chavez Gonzalez, and Gustavo Renteria, Manuel Renteria, David Renteria, and Martino Tire Company, Appellees.
    No. 3D09-61.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Kathleen M. O’Connor, Palmetto Bay; Thornton, Davis & Fein, and Douglas E. Horelick, Miami, for appellant Cooper Tire & Rubber Company.
    Seipp & Flick and James J. Becker, Miami, for appellant Ford Motor Company.
    The Tate Firm and Kyle P. Tate, Keystone Heights; Sico, White & Braugh and Jason P. Hoelscher, Corpus Christi, Texas, pro hac vice, for appellees Estate of Carlos Hernandez Chavez, Gustavo Renteria, Manuel Renteria, and David Renteria.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Defendants Cooper Tire & Rubber Company (“Cooper Tire”) and Ford Motor Company (“Ford Motor”) appeal from a non-final order denying their motion to transfer venue from Miami-Dade County to Lee County. We reverse and remand with instructions to transfer the cause to Lee County, Florida.

The plaintiffs, Estate of Carlos Hernandez Chavez by and through its Personal Representatives Anatolio Hernandez Sal-dana and Jacinta Chavez Gonzalez, Gustavo Renteria, Manuel Renteria, and David Renteria, filed a negligence and products liability action against Cooper Tire, Ford Motor, and Martino Tire Company (“Mar-tino Tire”). The action arose from an automobile accident involving a 1996 Ford Explorer driven by Carlos Hernandez Chavez (“Chavez”) which rolled over in the area of Fort Myers, Lee County, Florida, when the vehicle’s rear tire, which was manufactured by Cooper Tire and sold by Martino Tire, allegedly suffered a tread-belt separation. As a result of the accident, Chavez died, and his three passengers, Gustavo Renteria, Manuel Renteria, and David Renteria (collectively, “the Renterias”), were injured.

At the time of the accident, Chavez and the Renterias resided in Lee County. Cooper Tire is a Delaware corporation, authorized to conduct business in Florida. Ford Motor is a Delaware corporation, with its principal place of business in Michigan, and it transacts business in Florida. Martino Tire, a Florida corporation, conducts business in Miami, and its principal place of business and registered agent are located in Miami.

The plaintiffs’ answer to interrogatories identified the following witnesses, all of whom are residents of Lee County: eyewitnesses to the accident; healthcare providers for the Renterias; investigating officers; Lee County EMS personnel; medical examiner who performed the autopsy on Chavez; Lee County Trauma Services District personnel; Lee Memorial Hospital personnel; physicians from Lee Neurosurgery; and funeral home personnel.

Cooper Tire, joined by Ford, moved to transfer venue to Lee County, pursuant to section 47.122, Florida Statutes (2008). In support of the motion, Cooper Tire submitted the affidavits of two Florida Highway Patrol officers, a paramedic, and the medical examiner, averring that it would be inconvenient, expensive, and disruptive to their professional and personal lives to travel to Miami-Dade County for the proceedings.

In response, the plaintiffs argued that venue is proper in Miami-Dade County because Martino Tire’s principal office is located in Miami; and the motion to transfer venue should be denied because Miami-Dade County is a convenient forum because Martino Tire’s principal office is located in Miami, and Cooper Tire’s counsel is from Miami.

Following a hearing, the trial court denied the motion to transfer venue. This non-final appeal followed.

The sole issue for our determination is whether, pursuant to section 47.122, the trial court abused its discretion in denying the motion to transfer venue. See Morrill v. Lytle, 893 So.2d 671, 673 (Fla. 1st DCA 2005) (holding that an appellate court reviews the trial court’s order denying a motion to transfer venue for abuse of discretion). “[Wjhere venue is proper in more than one county, the choice of forum rests with the plaintiff.” P.V. Holding Corp. v. Tenore, 721 So.2d 430, 431 (Fla. 3d DCA 1998). However, section 47.122 authorizes any court of record to “transfer any civil action to any other court of record in which it might have been brought” for “the convenience of the parties or witnesses or in the interest of justice.” Of the three statutory factors — convenience of the parties, convenience of the witnesses, and interest of justice — the most important factor is the convenience of the witnesses. See Morrill, 893 So.2d at 673.

The only connections this action has to Miami-Dade County are that one of the three corporate defendants, Martino Tire, has its principal office in Miami, and Cooper Tire’s attorney, who seeks to transfer venue to Lee County, is located in Miami. On the other hand, there are numerous connections to Lee County: (1) the accident occurred in Lee County; (2) the individuals involved in the accident resided in Lee County at the time of accident; and (3) all of the witnesses identified in the plaintiffs’ answer to interrogatories, including the eyewitnesses to the accident and the first responders, reside in Lee County, and several of these witnesses submitted affidavits averring that it would be inconvenient, expensive, and disruptive to their professional and personal lives to travel to Miami-Dade County for the proceedings.

Based on the facts of this case, we hold that the trial court abused its discretion by not transferring the action from Miami-Dade County to Lee County. See Morrill, 893 So.2d at 673 (holding that trial court abused its discretion in denying motion to transfer venue from Duval County to Ala-chua County where accident occurred in Alachua County, witnesses were located in Alachua County, and only connection to Duval County was that corporate defendants maintained offices in Duval County and certain attorneys involved in case practiced in Duval County); P.V. Holding, 721 So.2d at 431 (“Because the cause of action arose outside of Miami-Dade County, and most, if not all, of the important witnesses and contacts are located outside Miami-Dade County, we find the trial court erred in denying the motion to transfer venue.”); Sullivan v. Klein, 691 So.2d 21, 22 (Fla. 3d DCA 1997) (holding that trial court abused its discretion by denying motion to transfer venue from Dade County to Pinellas County where accident occurred in Pinellas County and potential witnesses were located in Pinellas County, and only connection to Dade County was that plaintiffs attorney was located in Dade County); Inter-American Sunbelt Corp. v. Borozny, 512 So.2d 287, 288 (Fla. 3d DCA 1987) (“We hold that it was an abuse of discretion for the trial court to refuse to change venue [from Dade County to Palm Beach County] where, as here, the accident giving rise to the injury occurred in Palm Beach County, all five people who were in the vehicle resided in Palm Beach County, all responding police and fire rescue personnel resided in Palm Beach County, and [plaintiff] received medical care in Palm Beach County.”); Kelly-Springfield Tire Co. v. Moore, 355 So.2d 451, 452 (Fla. 3d DCA 1978) (holding that trial court abused its discretion in denying motion to transfer venue from Dade County to Highlands County where accident occurred in or near Highlands County, the alleged defective tire was sold in Highlands County, personal representatives of estate resided in Highlands County, material witnesses to the accident resided in Highlands County). Accordingly, we reverse and remand with instructions to transfer the action from Miami-Dade County to Lee County, Florida.

Reversed and remanded with instructions.

      . Although Martino Tire is a named defendant, it took no position on the motion to transfer venue to Lee County.

      . Section 47.122 provides:
      Change of venue; convenience of parties or witnesses or in the interest of justice. — For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.


text:
    Maria A. WIMBERLY, Appellant, v. MIAMI-DADE COUNTY, Florida Employees Local Number 199 of the American Federation of State, County and Municipal Employees, AFL-CIO, and Florida Public Employees Relations Commission, Appellees.
    No. 3D08-2287.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Maria A. Wimberly, in proper person.
    Mary Jill Hanson, for appellee Miami-Dade County, Florida Employees Local 199; Jack E. Ruby, Tallahassee, Assistant General Counsel, for appellee Florida Public Employees Relations Commission.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Maria A. Wimberly (“Wimberly”) appeals from a final order entered by the Florida Public Employees Relations Commission (“PERC”), affirming its General Counsel’s summary dismissal of Wimberly’s unfair labor practice charge filed against Miami-Dade County, Florida Employees Local Number 199 of the American Federation of State, County and Municipal Employees, AFL-CIO (“the Union”). We affirm.

Wimberly worked at the Miami-Dade Fire Rescue Department as a fire safety specialist. On April 20, 2004, Wimberly reported that she was injured when her Miami-Dade County issued vehicle was involved in a hit-and-run accident while parked at the Miami-Dade County Fire Rescue headquarters building. On the following day, April 21, 2004, Wimberly filed a worker’s compensation claim. The Miami-Dade Police Department investigated the alleged accident, and during the investigation, on August 2, 2004, Wimberly gave a sworn statement to the Miami-Dade Public Corruption Investigation Bureau admitting that the alleged hit-and-run accident never occurred. On that same day, Wimberly was criminally charged with filing a false/fraudulent insurance claim, a felony, and filing a false crime report to a law enforcement agency, a misdemeanor.

On November 17, 2004, Wimberly was discharged for filing a false worker’s compensation claim and accident report. On November 31, 2004, the Union, through its representative, Lome Battiste (“Battiste”), filed a grievance against Miami-Dade County (“the County”) on Wimberly’s behalf. However, on April 13, 2005, Battiste sent Wimberly a letter notifying her that the Union would no longer represent her in the grievance process against the County because the Union’s investigation revealed that she admitted to filing a false worker’s compensation claim and accident report, and therefore, her grievance was without merit.

Following the Union’s withdrawal of representation, on May 16, 2005, Wimberly filed an unfair labor practice charge against the Union (PERC Case No. CB-2005-014), pursuant to section 447.503, Florida Statutes (2004), alleging, in part, that the Union violated its duty of fair representation. On May 20, 2005, PERC’s General Counsel summarily dismissed Wimberly’s charge with leave to amend, finding that a part of the charge was deficient because it was not accompanied by documentary evidence as required by section 447.503(1), and that two parts of the charge were deficient because there were material inconsistencies between the charge and supporting documentation, and that as a result of the inconsistencies, it was not clear whether the charge was timely filed. Wimberly v. Miami-Dade County, Fla. Employees Local No. 199, 31 F.P.E.R. ¶ 114 (2005). Moreover, the General Counsel concluded that, based on Wimberly’s admissions, the Union had a rational basis for refusing to process Wim-berly’s grievance, and that the charge did not demonstrate a prima facie violation of section 447.501(2)(a) because the charge did not demonstrate that the Union’s processing of the grievance was arbitrary, discriminatory, or conducted in bad faith. Id. The General Counsel notified Wimberly that, within twenty days of the summary dismissal, she may either file an amended charge or appeal the summary dismissal to PERC, id., but Wimberly did neither.

On November 30, 2007, Wimberly was acquitted of filing a false insurance claim, but convicted of filing a false criminal report. Thereafter, in December 2007, Wim-berly notified the Union of the disposition of the criminal charges. In response, by letter dated January 17, 2008, Battiste referred Wimberly to his April 13, 2005 letter, in which he explained that the Union would not represent her in her grievance against the County due to her admissions. Moreover, Battiste’s letter pointed out that, although acquitted of filing a false insurance claim, Wimberly was convicted of filing a false criminal report. Thereafter, on March 21, 2008, the president of the Union, although not required to do so, spoke with the County’s Director of Labor Relations and requested that the County re-open Wimberly’s case based on the outcome of the criminal proceeding. The County declined the request.

On June 11, 2008, Wimberly filed her second unfair labor practice charge against the Union (Case No. CB-2008-020). On June 17, 2008, PERC’s General Counsel summarily dismissed the charge with leave to amend, finding that it was untimely filed, did not contain a summary of the underlying facts, and that the charge and supporting documentation did not demonstrate that the Union “acted arbitrarily, discriminatorily, or in bad faith by refusing to advance Wimberly’s grievance to arbitration,” and therefore, “Wimberly has not demonstrated a prima facie violation of Section 447.501(2)(a), Florida Statutes.” Wimberly v. Miami-Dade County, Fla. Employees Local No. 199, 34 F.P.E.R. ¶ 128, ¶ 129 (2008). On July 2, 2008, Wim-berly filed an amended charge, and on July 9, 2008, PERC’s General Counsel summarily dismissed the amended charge based on Wimberly’s failure to cure the early deficiencies. Wimberly v. Miami-Dade County, Fla. Employees Local No. 199, 34 F.P.E.R. ¶ 143 (2008). Wimberly was notified that she could appeal the summary dismissal of the amended charge to PERC within twenty days.

On July 30, twenty-one days after the General Counsel entered the summary dismissal, Wimberly filed an amendment to the amended charge, alleging that the Union violated section 447.501(2)(a) and (b), Florida Statutes (2007). PERC treated Wimberly’s amendment to the amended charge as her third unfair labor practice charge (Case No. CB-2008-025) because Wimberly was not granted leave to file an amended charge, and even it were treated as an appeal, it would be untimely as it was filed more than twenty days after the General Counsel entered the summary dismissal of the amended charged. On August 5, 2008, PERC’s General Counsel summarily dismissed Case No. CB-2008-25, finding that it was untimely because Wimberly knew as of April 13, 2005, that the Union would not represent her in her grievance against the County. Wimberly v. Miami-Dade County, Fla. Employees Local No. 199, 34 F.P.E.R. ¶171, 172 (2008). Moreover, the General Counsel concluded that even if the charge had been timely filed, “the charge fails to demonstrate a prima facie violation of Section 447.501(2)(a) and (b), Florida Statutes.” Id.

Wimberly filed a timely appeal with PERC, and on September 3, 2008, PERC entered a final order affirming the summary dismissal of Case No. CB-2008-025. Wimberly v. Miami-Dade County, Fla. Employees Local No. 199, 34 F.P.E.R. ¶ 190 (2008). This appeal followed.

Wimberly raises numerous arguments stemming from the summary dismissals of Case Nos. CB-2005-014 and CB-2008-20. As the instant appeal pertains only to Case No. CB-08-25, those issues are not properly before this Court. Nonetheless, even if properly before this Court, we find that the arguments raised lack merit. As to the only order properly before this Court — PERC’s affirmance of its General Counsel’s summary dismissal in Case No. CB-2008-25 — we affirm because we agree with the General Counsel’s and PERC’s findings that: (1) Wimberly’s third unfair labor practice charge was filed beyond the applicable six month limitations period, see § 447.503(6)(b), Fla. Stat. (2007) (establishing a six-month limitations period for filing an unfair labor practice charge); and (2) even if timely filed, based on the evidence the Union had at the time — Wimberly’s admission to law enforcement that she filed a false worker’s compensation claim and accident report — the Union’s decision to withdraw representation was rational, and therefore, the Union did not act arbitrarily, discriminatorily, or in bad faith.

Lastly, Wimberly argues that one of the three commissioners who entered the panel opinion issued by PERC should have been disqualified. As this issue was not raised below, it cannot be raised for the first time on appeal. Nonetheless, even if properly preserved for review, we find that the issue lacks merit. Accordingly, we affirm PERC’s final order affirming its General Counsel’s summary dismissal of Case No. CB-2008-25.

Affirmed.


author: POLEN, J.

text:
    B.M.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1782.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

On February 20, 2008, Appellant BMS was charged by petition for delinquency with one count of domestic battery and placed in secure detention. After an adjudicatory hearing, BMS was allowed to be released based on her Detention Risk Assessment, but declined to return home and stayed in the detention center pending other placement. On March 11, 2008, the court released BMS to Safe Harbor. On March 19, 2008, BMS was moved again to Kelly Center for inpatient substance abuse treatment. Within a week of being there, on March 24, 2008, BMS absconded. For three days thereafter, BMS’s whereabouts were unknown until the Jupiter Police Department apprehended her on March 27, 2008.

A disposition hearing was held on April 22, 2008, and BMS was adjudicated delinquent of domestic battery, which carried a maximum sentence of one year for an adult. The court placed her into Level 6 Moderate Risk Commitment Program in the Department of Juvenile Justice (“DJJ”) “for an indefinite period but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve as listed above in each count.” The court also declared during the hearing that “[BMS] is entitled to credit awaiting placement,” but left blank, in its order, the number of days that she should be credited.

BMS filed a notice of appeal and also submitted a motion to correct disposition pursuant to rule 8.135(b)(2), Florida Rules of Juvenile Procedure. She argued that she is entitled to credit for the time period between her arrest on February 19, 2008 and her commitment to DJJ on April 22, 2008, excluding the three days she was absent from the Kelly Center. The trial court never “file[d] an order ruling on [that] motion,” and the motion is thus “deemed denied.” Fla. R. Juv. P 8.135(b)(2)(B) (2008). BMS appeals such denial.

The issue of a juvenile’s entitlement to credit for time served in secure detention against a residential commitment to DJJ is reviewed de novo. J.I.S. v. State, 930 So.2d 587, 591 (Fla.2006). Here, although the trial court stated during the disposition hearing that “[BMS] is entitled to credit awaiting placement,” it left blank the number of days that she should be credited in its disposition order. BMS argues that such an omission is a reversible error and finds support in the Florida Supreme Court’s decision in J.I.S.:

We agree with the First District that on an “indeterminate” commitment, which is a residential commitment on which DJJ retains authority over the offender until he or she reaches a statutorily prescribed age, precommitment credit for time served in secure detention is not required by any court rule, statute, or constitutional provision.... However, to ensure that commitments will not exceed statutory limits, credit is required on a “determinate” commitment for an offense such as a misdemeanor that will necessarily conclude before the juvenile reaches the age at which DJJ’s authority ends.

930 So.2d at 590.

The case at hand involves a determinate commitment where BMS was committed “for an indefinite period but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve as listed above” as one year. See C.C. v. State, 841 So.2d 657, 658 (Fla. 4th DCA 2003) (finding that commitment into “a moderate risk program for an in determinate period not to exceed one year or the child’s nineteenth birthday” is a determinate commitment). In such a case, courts of this state have found that the juvenile is entitled to time served in secure detention. See, e.g., J.I.S., 930 So.2d at 590; C.C, 841 So.2d at 658-59; J.B. v. State, 829 So.2d 376, 378 (Fla. 4th DCA 2002).

The issue in this case, however, goes further. BMS challenges the court’s failure to specify the number of days to which BMS was entitled. And this Court has found such an oversight to be a reversible error in both J.B. and C.C.

In J.B., as in this case, the trial court’s order left blank the number of days the juvenile was to be credited. 829 So.2d at 377. This Court remanded that case and stated that “the order should be corrected to reflect any credit for time served in secure detention.” Id. at 378. Likewise, in C.C., this Court directed the trial court to “[calculate] the number of days spent in secure detention to be credited against the length of time the juvenile is committed.” 841 So.2d at 658.

More recently, however, the Florida Supreme Court considered the issue at hand and declined to make a ruling:

To address the uncertainty reflected in the trial court’s order as to whether predisposition time served in secure detention should be specified, we refer the matter to the Juvenile Procedure Rules Committee to determine whether we should adopt a rule requiring notation on all residential commitment orders. In the interim, trial courts certainly may specify time served in secure detention in juvenile delinquency commitment orders on indeterminate commitments, and under our holding today must grant credit for the time served when imposing determinate commitments.

J.I.S., 930 So.2d at 597 (emphasis added). Thus, under J.I.S, the trial court here would not be considered to have committed a reversible error as it was required merely to grant BMS credit for the time served, but not necessarily to specify the number of days that BMS was entitled.

J.I.S., however, did not explicitly disapprove and is not “in hopeless conflict with” this Court’s precedents requiring a trial court to specify the amount of time to be credited in its order. See State ex rel. Garland v. City of W. Palm Beach, 141 Fla. 244, 247-48, 198 So. 297 (Fla.1940) (“For one case to have the effect of overruling another, the same questions must be involved; they must be affected by a like state of facts and a conclusion must be reached in hopeless conflict with that in the former case.”); see also Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996) (“[I]n the absence of a clear expression from the Florida Supreme Court, the issue of whether [a district court’s] opinion[ ] is in conflict with a later supreme court opinion should be left to [the district court’s] determination.”). As such, we reverse and remand this case, in accordance with this Court’s ruling in J.B. and C.C., and direct the trial court to calculate and specify in its order the number of days that BMS is entitled to receive as credit for time served in secure detention.

HAZOURI and CIKLIN, JJ., concur.

      . Contrary to the case at hand, the trial court in J.I.S. denied the juvenile’s oral request for credit for time served in secure detention.

      . BMS’s reliance solely on J.I.S. is thus insufficient to reach the result that BMS seeks.


text:
    GENERAL IMPACT GLASS & WINDOWS CORP., Appellant, v. ROLLAC SHUTTER OF TEXAS, INC., Appellee.
    No. 3D08-1468.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.

      Daniels, Kashtan, Downs, Robertson & McGirney, and Madelyn Simon Lozano, Coral Gables, for appellant.
    Kenny Nachwalter, and Richard H. Critchlow and Ismael Diaz, Miami, for ap-pellee.
    Before WELLS, ROTHENBERG, and LAGOA JJ.
   ROTHENBERG, J.

The plaintiff, General Impact Glass & Windows Corp. (“General Impact”), appeals from a non-final order granting the defendant’s, Rollac Shutter of Texas, Inc. (“Rollac”), motion to compel arbitration. We reverse.

General Impact is a Florida corporation that purchases and installs hurricane shutters. Rollac distributes hurricane shutter components from Texas. In the past, General Impact obtained shutters through Raul Barandiaran (“the sales representative”), who worked for a Miami company. In 2005, the sales representative was hired by Rollac, and convinced General Impact to continue doing business through his new company, Rollac.

To make a purchase, General Impact would contact the sales representative and orally inform him of General Impact’s needs. The parties conducted their business primarily in Spanish. The sales representative, who was familiar with General Impact’s needs and Rollac’s products, would draw up an order form memorializing the order, and fax it to General Impact. Approximately thirty days later, General Impact would receive an invoice. It is undisputed that the faxed order forms and the mailed invoices do not contain an agreement to arbitrate.

Throughout the course of the parties’ dealings, a separate document, Rollac’s terms and conditions, was available on Rol-lac’s website and in the Rollac catalog. The terms and conditions provide for dispute resolution in arbitration, and a Texas choice of law. General Impact contends that it never received a catalog, while Rol-lac avers that a catalog was provided in 2005. However, there is no question that General Impact never placed any orders through Rollac’s website, and never used any order forms contained within the Rol-lac catalog. It is also undisputed that the faxed order forms and the mailed invoices do not refer to, or otherwise incorporate, either the catalog or the terms and conditions detailed in the catalog.

Arguing that it received non-conforming products, General Impact sued Rollac in Miami for breach of contract and breach of the implied warranty of merchantability. Rollac commenced an arbitration proceeding in Texas which was stayed pending the outcome of this case. After a hearing, the trial court granted Rollac’s motion to compel arbitration, finding that the Rollac catalog, along with the terms and conditions, was part of an existing, written agreement to arbitrate which was accepted when General Impact took delivery. This appeal followed.

In Florida, a trial court must consider three elements before ruling on a motion to compel arbitration: (1) whether a valid -written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). In this case, the determinative question is whether the trial court properly determined that there existed a valid written agreement to arbitrate. The issue of the existence of a valid written agreement to arbitrate is a question of law, Affinity Internet, Inc. v. Consol. Credit Counseling Servs., Inc., 920 So.2d 1286, 1289 (Fla. 4th DCA 2006), subject to de novo review. Auchter v. Zagloul, 949 So.2d 1189, 1191 (Fla. 1st DCA 2007).

Our review of the instant case reflects that the decision below — finding that there existed a valid written agreement to arbitrate — cannot stand. The documents exchanged between the parties during the course of their dealings are devoid of any expression of an intent to resolve future disputes in arbitration. The terms and conditions, which Rollac urges this Court to consider as a part of the contract, were never signed by General Impact, and were never expressly incorporated into or attached to any of the documents that formed the contract between the parties. The provision relating to alternative dispute resolution on Rollac’s website and in the Rollac catalog was part of a separate collateral document. Because that separate document was not incorporated into the writings exchanged between the parties, General Impact is not bound by it. See Affinity Internet, 920 So.2d at 1288 (holding that the doctrine of incorporation by reference requires the expression of an intent to be bound by a collateral document).

It is clear that the trial court erred in finding that a valid written agreement to arbitrate existed between General Impact and Rollac. Rollac failed to present any evidence to the trial court showing that General Impact intended to waive its right to a trial by jury and submit any disputes with Rollac to arbitration. See Seifert, 750 So.2d at 636 (“[N]o party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.”). Thus, as a matter of law, no valid written agreement to arbitrate exists between the parties, and General Impact’s lawsuit must go forward in the trial court. The order granting Rollac’s motion to compel arbitration is reversed, and we remand for further proceedings consistent with this opinion.

Reversed.


author: GROSS, C.J.

text:
    VILLA MARIA NURSING AND REHABILITATION CENTER, INC., Appellant, v. SOUTH BROWARD HOSPITAL DISTRICT d/b/a Memorial Hospital West, Appellee.
    No. 4D07-4433.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.

      Anne C. Sullivan of Gaebe Mullen Anto-nelli Esco & Dimatteo, Coral Gables, for appellant.
    Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller & Gregoire, P.A., Fort Lauderdale, and William V. Carcioppolo of Heath & Carcioppolo, P.A., Fort Lauder-dale, for appellee.
   GROSS, C.J.

The circuit court granted summary judgment and dismissed an equitable sub-rogation case with prejudice. We reverse, holding that the dismissal should have been without prejudice because the plaintiff still had time to comply with a statutory notice provision that is a condition precedent to filing suit.

Villa Maria Nursing and Rehabilitation Center, Inc., operates a nursing home. In June 1999, Betty Sanders was admitted as a patient. When she was discharged on June 30, she had a sacral wound. From July 6 to July 28, 1999, Sanders was admitted three times as a patient to a hospital operated by South Broward Hospital District. Her third visit resulted in discharge on August 3, 1999. The nursing home contends that she should not have been discharged because her sacral wound required “in-patient wound care and consultation, among other courses of treatment.”

As a result of injuries arising from the sacral wound, Sanders sued the nursing home under section 400.023, Florida Statutes (2001). That section allows a cause of action for negligence or for a violation of rights specified in Chapter 400, Part II. See § 400.023(1), Fla. Stat. (2007). In December 2004, the nursing home paid Sanders $325,000 to settle the lawsuit. In return, Sanders executed a release which provided that she released the nursing home, the hospital and others for any and all damages “resulting or arising out of the incident occurring on or about 6/14/99 to 6/30/99 at [the nursing home] including future developments thereof or in any way growing out of or connected with said transaction and/or incidents, including the subject sacral/buttock wound(s).”

In March 2006, the nursing home sued the hospital seeking equitable subrogation. Its contention was that Sanders’ compen-sable injuries were primarily caused by the negligence of the hospital “in their treatment and care” of Sanders. The hospital moved for summary judgment on multiple grounds and the circuit court granted the motion.

To state a cause of action for equitable subrogation, the subrogee/nursing home was required to establish five elements: (1) that it “made the payment [to Sanders] to protect its own interest;” (2) that it “did not act as a volunteer;” (3) that it “was not primarily liable for the debt;” (4) that it paid off the entire debt; and (5) that subrogation “would not work any injustice to the rights of a third party.” Goldberg v. State Farm Auto. Mut. Ins. Co., 922 So.2d 983, 984 (Fla. 4th DCA 2005) (quoting Pac. Ins. Co. v. Botelho, 891 So.2d 587, 590 (Fla. 3d DCA 2004)).

Under Florida law, a separate cause of action for equitable subrogation is the preferred way to address the situation presented in this case, where the nursing home contends that it was the hospital’s negligence that primarily caused the plaintiffs damages. In Stuart v. Hertz, Corp., 351 So.2d 703 (Fla.1977), the Florida Supreme Court held that a defendant in a negligence action may not bring a third party indemnity action against a doctor whose malpractice aggravated the plaintiffs injuries. Recognizing that “equity and good conscience should afford the initial tortfeasor a remedy” against the negligent doctor, the Supreme Court later declared that a separate, independent lawsuit for equitable subrogation would allow the initial tortfeasor to “recoup his losses that in fairness should be shared with a negligent doctor,” without violating the concern in Stuart that a complex malpractice case should not hamper a simple personal injury suit. See Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702, 704 (Fla.1980); Huet v. Mike Shad Ford, Inc., 915 So.2d 728, 726 (Fla. 5th DCA 2005) (suggesting that a separate action for equitable subrogation would be properly brought by a defendant in an automobile negligence case against a car dealership that negligently repaired the plaintiffs vehicle).

We consider all the grounds raised in the hospital’s motion for summary judgment, because the trial court did not specify the basis for its ruling. See Johnson v. Davis, 449 So.2d 344, 347 (Fla. 3d DCA 1984).

First, the hospital argued that the statute of limitations on medical malpractice against the hospital had run. See § 95.11(4)(b), Fla. Stat. (2007). In its answer brief, the hospital concedes that the statute of limitations had not run. For an equitable subrogation action such as this one, the limitations period did not begin to run until the nursing home made payment to Sanders. See Dominion of Can. v. State Farm Fire & Cas. Co., 754 So.2d 852, 856 (Fla. 2d DCA 2000), disapproved on other grounds, Metro. Cas. Ins. Co. v. Tepper, 2 So.3d 209 (Fla.2009); see Allstate Ins. Co. v. Metropolitan Dade County, 436 So.2d 976, 979 (Fla. 3d DCA 1983). To begin the running of the statute from the 1999 incident would undercut the equitable subrogation remedy allowed by Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980); by the time the typical negligence suit is resolved, the medical malpractice statute of limitations would have run against the negligent health care provider.

The hospital’s second basis for the summary judgment was that the nursing home failed to establish all the elements of equitable subrogation. The hospital argues that nothing in the second amended complaint “alleged that the basis of Ms. Sanders’ claim against Villa Maria was [the] purported decubitus ulcer” that the hospital exacerbated. However, the nursing home’s pleading adequately described the reason it made payment to Sanders. The second amended complaint refers to the “distinct injuries and damages for which Plaintiff, Villa Maria, paid” damages to Sanders. Also, the release was incorporated into the pleading and it described the damage causing incident as the “incident occurring on or about 6/14/99 to 6/30/99 at Villa Maria Nursing and Rehabilitation Center, Inc., ... in any way growing out of or connected with said transaction and/or incidents, including the subject sacral/buttock wound(s).” Thus, contrary to the hospital’s contention, the nursing home’s payment and Sanders’ release covered the hospital’s treatment of the decubitus ulcer.

Next, the hospital contends that the nursing home failed to comply with section 768.28(6)(a), Florida Statutes (2007), by failing to present its claim in writing to the Department of Financial Services within three years after the claim arose. At the summary judgment hearing, counsel for the nursing home requested an opportunity to cure the notice problem by providing notice to the Department of Insurance.

Compliance with the notice requirement of section 768.28 was a condition precedent to this lawsuit against the hospital. See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022-23 (Fla.1979); Lindberg v. Hosp. Corp. of Am., 545 So.2d 1384, 1387 (Fla. 4th DCA 1989) (citing Commercial Carrier ). The notice is a “temporary procedural bar to a lawsuit against the State or one of its subdivisions.” Widmer v. Caldwell, 714 So.2d 1128, 1129 (Fla. 1st DCA 1998). In Lee v. S. Broward Hosp. Dist., 473 So.2d 1322 (Fla. 4th DCA 1985), this court permitted the amendment of a complaint to allege compliance with section 768.28(6) where notice to governmental agencies was given subsequent to the filing of the lawsuit but within the statute of limitations period. Another appropriate response to a motion raising a plaintiffs failure to comply with the statute is to dismiss the case without prejudice, where the applicable statute of limitations has not run at the time of dismissal and it is therefore possible to give the statutory notice prior to the case being barred by the statute of limitations. See Wemett v. Duval County, 485 So.2d 892 (Fla. 1st DCA 1986); VonDrasek v. City of St. Petersburg, 777 So.2d 989, 991 (Fla. 2d DCA 2000). The notice “is not intended to be a special ‘gotcha’ that allows governmental entities to sandbag plaintiffs; it functions as a tool to allow these entities to identify and settle claims on a timely basis without the expense of extended litigation.” VonDrasek, 777 So.2d at 991.

Here, the nursing home paid to settle the case in December 2004. At the October 5, 2007 hearing on the motion for summary judgment, counsel for the nursing home requested permission to comply with the statutory notice. The circuit court granted the hospital’s motion for summary judgment on October 5 and entered a final summary judgment against the nursing home on November 9, 2007. At that time the nursing home was within the three year period to file its section 768.28(6)(a) notice and the four year statute of limitations for filing its equitable subrogation action. See § 95.11(3)(p), Fla. Stat. (2007); State Farm Mut. Auto. Ins. Co. v. Johnson, 34 Fla. L. Weekly D412, — So.3d-, 2009 WL 416603 (Fla. 2d DCA 2009) (indicating that four-year statute of limitations for equitable subrogation runs from time subrogee pays claim). At the time of dismissal, the applicable limitations periods had not expired. Therefore, the case should have been dismissed without prejudice. Cf. Halpin v. Short, 490 So.2d 1271 (Fla. 2d DCA 1986) (holding that dismissal with prejudice was proper where the limitations period for providing section 768.28(6) notice had expired by the time dismissal was entered).

The hospital contends that Pangilinan v. Broward County, 914 So.2d 1094, 1096 (Fla. 4th DCA 2005), controls this case, but it is distinguishable. In Pangilinan, after the three-year period to file a section 768.28(6)(a) notice had run, the County moved for summary judgment based on noncompliance with the statute. The plaintiff could not have cured such an omission. Before the trial court granted the motion for summary judgment, the plaintiff offered no evidence of compliance. After the court granted summary judgment, the plaintiff moved for rehearing and attempted to submit affidavits showing her compliance with the notice requirement. We held that the trial court did not “abuse its discretion in determining that a counter-affidavit presented for the first time on rehearing of a summary judgment is too late.” 914 So.2d at 1097.

Pangilinan was primarily a case about a trial court’s discretion on the procedural issue of how to handle affidavits submitted after summary judgment has been granted. It was not a case where the plaintiff still had time to comply with the notice requirements of section 768.28(6)(a). Nor was it a case where the plaintiff asked the trial court for time to comply.

We reverse the final judgment dismissing the case with prejudice and remand to the circuit court for the entry of a final judgment dismissing the case without prejudice for failure to comply with section 768.28(6)(a).

FARMER, J., and MAASS, ELIZABETH, Associate Judge, concur.

      . A different rule applies to contractual subro-gation, which arises from "a contract between the parties establishing an agreement that the party paying the debt will have the rights and remedies of the original creditor.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla.1999). ”[I]n contractual subrogation actions, the statute of limitations runs from the date of the injury to the original ‘rightsholder’ and not from the date of payment by the subrogee.” Allstate Ins. Co. v. Metro. Dade County, 436 So.2d 976, 979 (Fla. 3d DCA 1983); see Don Reid Ford, Inc. v. Feldman, 421 So.2d 184, 185-86 (Fla. 5th DCA 1982).

      . Subsections 768.28(6)(a) and (b) provide:
      (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing; except that, if such claim is for contribution pursuant to s. 768.31, it must be so presented within 6 months after the judgment against the tortfeasor seeking contribution has become final by lapse of time for appeal or after appellate review or, if there is no such judgment, within 6 months after the tortfeasor seeking contribution has either discharged the common liability by payment or agreed, while the action is pending against her or him, to discharge the common liability.
      (b) For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues.


author: MAY, J.

text:
    Cheryl McKENNA, Appellant, v. CAMINO REAL VILLAGE ASSOCIATION, INC., Appellee.
    No. 4D07-4331.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.

      Richard W. Glenn, Palm Beach Gardens, for appellant.
    Scott L. Pestcoe and Amber N. Warren of Brough, Chadrow & Levine, P.A., Weston, for appellee.
   MAY, J.

A condominium owner appeals a judgment striking her pleadings, entering a default, and directing the issuance of a writ of possession in favor of another entity. She argues that the trial court erred in a series of orders that led to the entry of the judgment. She argues, among other issues, that the trial court lacked jurisdiction to enter the order on appeal. We agree and reverse.

This case originated from the condominium owner’s failure to pay assessment fees to the condominium association. In earlier litigation, the association filed a complaint for foreclosure and damages against the owner. The trial court granted the association’s motion for summary judgment against the owner and entered a judgment of foreclosure. We reversed. McKenna v. Camino Real, 877 So.2d 900 (Fla. 4th DCA 2004).

On remand, the association amended its foreclosure complaint to add Real Estate Depot, Inc. (RED), an entity that acquired a deed from the owner in 2003. The trial court entered a final judgment of foreclosure against RED, but denied the motion as to the owner. The judgment stated:

The Motion for Final Summary Judgment is Denied as to [the owner] and this shall proceed to trial ... against her. The Certificate of Title ... shall not foreclose any interest of [the owner], if any, nor shall any writ of possession be issued against her without further order of this Court.

At the foreclosure sale, JPL Properties, Inc. (JPL) purchased RED’s interest in the property. The clerk received the funds from the foreclosure sale and disbursed that amount to the association in full satisfaction of the final judgment. The clerk issued a certificate of sale and title to JPL.

The trial court denied JPL’s first motion for writ of possession without prejudice, but issued an order on August 13, 2007, requiring the owner to: (1) file a notice of homeowner’s association assessment amounts due and owing; and, (2) deposit that sum and the amount paid by JPL at the foreclosure sale into the court registry within ten (10) days. The owner appealed that order on September 12, 2007, but never complied with it. JPL then filed an amended motion seeking an order to show cause or for default and for writ of possession due to the owner’s non-compliance.

On October 10, 2007, while the appeal of the August order was pending, the trial court entered a judgment striking the owner’s pleadings, entering a default, and directing the issuance of a writ of possession in favor of JPL. The October 10th order (1) took judicial notice that the owner did not file a notice with the court of the sums due to the association; (2) found the owner failed to deposit that amount along with the amount paid by JPL at the foreclosure sale into the court registry; (3) found the association’s lien superior to the rights of the owner and RED; (4) found JPL to be a bona fide purchaser for value; and (5) ordered the clerk to issue a writ of possession in favor of JPL within thirty (30) days from the date of the order. It is from this order that the owner now appeals.

The owner argues that the trial court erred in entering a final judgment while her appeal from the August order was pending. We agree.

Rule 9.130(f) of the Florida Rules of Appellate Procedure provides:

In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.

(Emphasis added). In turn, we lack jurisdiction to review the merits of an order entered by a tribunal lacking jurisdiction. See Bemben v. Chock, 938 So.2d 565, 566 (Fla. 2d DCA2006).

The procedural quagmire in which this appeal has landed requires some untangling. The August order was non-final, as it simply required the owner to deposit monies into the court’s registry, but did not resolve the issues between the owner and JPL. A final order is one in which the trial court’s labor has come to an end. McGurn v. Scott, 596 So.2d 1042, 1043 (Fla.1992). Thus, during the pendency of the appeal from the August order, rule 9.130(f) prohibited the trial court from rendering “a final order disposing of the cause pending such review.”

The October order was a final order because it entered a default judgment against the owner and ordered the issuance of a writ of possession. It finally resolved the issues between the owner and JPL. That is true notwithstanding the association still had a claim pending against the owner in the trial court. Mendez v. W. Flagler Family Ass'n, 303 So.2d 1, 5 (Fla.1974) (“[W]hen it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appealable if dismissed with finality at trial level and not delayed of appeal because of the pen-dency of other claims between the parties.”). By entering a final order in favor of JPL, the trial court ran afoul of rule 9.130(f).

We therefore reverse the order of October 10, 2007, and remand the case to the trial court.

Reversed and remanded.

STEVENSON and TAYLOR, JJ., concur.

      . The owner filed a separate action against RED, asserting that RED had fraudulently obtained the recorded deed and was not the true owner of the property, but later voluntarily dismissed the action. Thus, at this time, RED was the record owner of the property.

      . The owner filed a motion for voluntarily dismissal of that appeal on January 28, 2008, which we granted on January 31, 2008.

      . This result is not changed by the owner's subsequent dismissal of her appeal. See Katz v. NME Hosps., Inc., 791 So.2d 1127 (Fla. 4th DCA 2000) (agreeing with Carter v. Dorman, 385 So.2d 740 (Fla. 3d DCA 1980)).


text:
    Roy Joseph SEAVEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-882.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.

      James Marion Moorman, Public Defender, and James C. Banks, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   GALLEN, THOMAS M., Associate Senior Judge.

Roy Joseph Seavey seeks review of his judgment and sentence for lewd or lascivious molestation. Seavey argues that the trial court abused its discretion in admitting collateral crimes evidence pursuant to section 90.404(2)(b), Florida Statutes (2004). While the collateral crimes evidence was admissible because it was relevant to the charged crime, the court improperly allowed the collateral crimes evidence to become a feature of the trial. Accordingly, we reverse.

The State charged Seavey by amended information with lewd or lascivious molestation upon a fourteen-year-old male victim. Prior to trial, Judge Webb granted the State’s motion to admit evidence of collateral crimes that Seavey had committed against two other young boys. The court determined that the collateral crimes evidence was admissible because it was relevant and its probative value outweighed any danger of unfair prejudice.

A jury convicted Seavey of lewd or lascivious molestation as charged in a trial before Judge Day. On appeal, Seavey argues that the trial court abused its discretion in admitting the collateral crimes evidence because the evidence was not relevant, was more prejudicial than probative, and was improperly featured at his trial. Our first inquiry is whether the collateral crimes evidence in this case was relevant and, if so, whether it was more prejudicial than probative.

Section 90.404(2)(b)(l) provides, “In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” However, collateral crimes evidence that is relevant may also be excluded under section 90.403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

Relevancy is “the threshold question,” and the collateral crime’s similarity to the charged offense is helpful to determine whether the evidence is relevant. McLean v. State, 934 So.2d 1248, 1259 (Fla.2006).

First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403.

Id. The court must “ ‘act as a gatekeeper, weighing the probative value and the prejudicial effect of the proffered testimony.’ ” Id. at 1261 (quoting McLean v. State, 854 So.2d 796, 802 (Fla. 2d DCA 2003)). To perform this function, the trial court should evaluate, among other things: (1) similarities of the place of the crimes, the victims, and the manner of the crimes; (2) the amount of time that has elapsed between the crimes; (3) the frequency of the collateral crimes; and (4) whether there were intervening circumstances. Id. at 1262. Finally, the court must guard against allowing the State to make the evidence a feature of the trial. Id.

In this case, the collateral crimes evidence established that Seavey chose young boys who were vulnerable and that he earned their trust by pursuing their interests. Seavey molested the boys on one occasion in the privacy of his home when no one else was present. All three victims were pre- or early teen boys. While the collateral crimes occurred sixteen and twenty-five years before the charged crime, the lapse of time between the crimes is not in itself determinative of whether the evidence is relevant. Accordingly, the trial court did not abuse its discretion in determining that the collateral crimes evidence was relevant and that its probative value outweighed any danger of unfair prejudice. Cf. McLean, 934 So.2d 1248.

Our next inquiry in this case is whether the collateral crimes evidence was improperly featured at trial. Collateral crimes evidence becomes a feature of the trial “when inquiry into the collateral crimes ‘transcend[s] the bounds of relevancy to the charge being tried’ and the prosecution ‘devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.’ ” Conde v. State, 860 So.2d 930, 945 (Fla.2003) (quoting Williams v. State, 117 So.2d 473, 475 (Fla.1960)).

In this case, the victims’ testimony regarding the collateral crimes evidence itself was relatively brief. However, the victims’ testimony was more detailed than the testimony of the charged victim, and the collateral crimes involved much more serious criminal offenses than the charged crime. More important, the State improperly emphasized the collateral crimes during opening statement and closing argument.

The State spent seven out of twelve pages of its opening statement detailing the collateral crimes. The State’s references to the collateral crimes in closing argument were less detailed than in its opening statement, but the State spent ten pages using the collateral crimes to classify Seavey as a predator who finds young boys’ weaknesses, grooms them, and then sexually assaults them. Instead of using the collateral crimes evidence to argue that Seavey committed the charged crime as alleged by the victim, the State used the evidence to argue that Seavey committed the charged crime because he was a sexual predator.

The State’s use of the collateral crimes evidence during opening and closing arguments, when considered in conjunction with the prejudicial nature of the collateral crimes evidence, leads to the conclusion that the evidence impermissibly became a feature of the trial. Cf. Jones v. State, 944 So.2d 533, 535-36 (Fla. 5th DCA 2006); Morrow v. State, 931 So.2d 1021, 1022 (Fla. 3d DCA 2006); Ballard v. State, 899 So.2d 1186, 1187 (Fla. 1st DCA 2005). Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.


text:
    Dwayne M. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4878.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.

      Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Dwayne M. Scott appeals the order revoking his community control for driving with a suspended or revoked license. He contends that the trial court erred in revoking his community control where the only evidence of violation was hearsay. We agree and reverse.

The State has the burden of proving by the greater weight of the evidence that the defendant willfully and substantially violated a specific condition of his probation or community control. Brown v. State, 813 So.2d 202, 204 (Fla. 2d DCA 2002). Although hearsay evidence is admissible during a revocation proceeding, a defendant’s probation or community control cannot be revoked solely on hearsay. Thompson v. State, 890 So.2d 382, 383 (Fla. 2d DCA 2004). Here, the affidavit of violation alleged that Scott committed a new law violation by driving with a suspended or revoked license “as evidenced by his arrest by St. Petersburg Police Department on 7-18-07.” However, at the revocation hearing, the only evidence the State presented to substantiate the violation was the hearsay testimony of Scott’s community control officer that a coworker had seen Scott driving. Neither the individual who allegedly witnessed Scott driving nor the officer who arrested him was called to testify. Because the State relied solely on hearsay to establish that Scott violated his community control, we reverse the revocation order and remand for reinstatement of Scott to community control.

Reversed and remanded.

SILBERMAN and LaROSE, JJ., concur.


author: PER CURIAM.

text:
    LOWELL HOMES, INC., et al., Appellant, v. SPEEDY CONCRETE CUTTING, INC., Appellee.
    No. 3D08-1262.
    District Court of Appeal of Florida, Third District.
    April 15, 2009.
    Rehearing and Rehearing En Banc Denied May 27, 2009.
    Richard J. Burton and Peter J. Solnick, Aventura, for appellants.
    Palmer, Lugo & Olea and Anthony E. Palmer, Ft. Lauderdale, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Langley v. Knowles, 958 So.2d 1149, 1151 (Fla. 5th DCA 2007).


author: FARMER, J.

text:
    NEIGHBORHOOD HEALTH PARTNERSHIP, INC., Appellant, v. PETER F. MERKLE, M.D., P.A., Appellee.
    No. 4D08-3213.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.

      Joseph L. Ackerman, Jr., of Buckingham Doolittle & Burroughs, LLP, West Palm Beach, and Scott J. Fisher, Maria J. Minor, and Jenny S. Kim of Neal Gerber & Isenberg, LLP, Chicago, Illinois, for petitioner.
    Paul J. Geller, Stuart A. Davidson and Kathleen L. Barber of Coughlin Stoia Geller Rudman & Robbins, LLP, Boca Raton; Eric Lee of Lee & Amtzis, P.L., Boca Raton; Lawrence Kopelman and Douglas Blankman of Kopelman & Blankman, P.A., Fort Lauderdale; and Patrick W. Lawlor of Patrick Lawlor, P.A., Deerfield Beach, for respondent.
   FARMER, J.

In this sequel to our decision in Merkle v. Health Options, 940 So.2d 1190 (Fla. 4th DCA 2006), one of the Health Maintenance Organizations (HMO) involved in that as yet unresolved dispute seeks to avoid producing certain documents under the theory they are protected as trial preparation materials. See Fla. R. Civ. P. 1.280(b)(3). The trial judge reviewed the documents in camera and found them unprotected as work product. We agree and deny the petition for certiorari.

The HMO misconstrues Southern Bell Telephone and Telegraph Company v. Deason, 632 So.2d 1377 (Fla.1994). It argues that Deason stands for a general rule to the effect that a mere routine request for information by a regulatory agency justifies presumptive work product protection for any document on which the regulated industry company’s lawyer has cast an eye. We do not think Deason can be fairly interpreted that way.

Deason involved regulatory disciplinary litigation against Southern Bell already well under way when its subject documents were generated. At the end of a prior informal investigation, the Public Service Commission (PSC) had concluded there was reason to believe that Southern Bell had violated PSC rules. The PSC had then given Southern Bell formal notice that an official investigation would now be undertaken and consolidated the formal accusatory investigation with the company’s own pending case before the PSC seeking to raise the rates charged its customers. In short, from that point on the company was then engaged in full fledged administrative litigation over possible disciplinary action.

Simply put, there is nothing remotely similar in this case. Here the HMO adopted a policy of reimbursing providers of emergency medical services not under contract with the HMO at a rate of 120% of the Medicare rate. Some of these non-contract providers objected, arguing they are entitled by § 641.513(5) to be paid at “the usual and customary charges for similar services in the community” of service. The HMO arranged for other HMOs to join with it in hiring a private consulting company specializing in provider reimbursement.

The Florida Agency for Health Care Administration (AHCA), which regulates some aspects of HMO operations, asked the HMO to explain how its policy complied with the statute. The HMO consulted with this consulting firm and other HMOs to review its response before submitting it to AHCA. Several documents were prepared by the HMO and its consulting firm analyzing various drafts of the response. Suffice it to say, these documents contain discussions as to how the HMOs arrived at the rates they were paying non-contract providers. The HMO then submitted the response to AHCA. During this time, AHCA worked with both the HMOs and the providers to attempt an informal resolution of the rate dispute. After considering the response, AHCA determined that it had no jurisdiction over the matter. AHCA’s role is best described as an attempt to mediate the dispute. Plainly, when the documents were created AHCA was not considering an adversarial disciplinary proceeding on the matter.

Following AHCA’s decision, some of the non-contract providers brought this class action suit against the HMO for a declaratory judgment that under the statute they were entitled to reimbursement at a higher rate and to recover the difference. In our prior decision in this dispute, we held that § 641.513(5) affords the providers a private right of action against the HMOs. 940 So.2d at 1196-1200. The providers then requested the production of the documents now under contention in discovery. The HMO objected, claiming the work product privilege. The trial judge conducted an in camera review of 44 documents listed on a privilege log and concluded they were not protected by the work product privilege.

We have reviewed these documents. We agree with the trial judge’s reading of them. They lack the essential ingredient necessary to make any brand of work product claim even arguable in this case — namely, a purpose other than ordinary business use and an attorney’s direct involvement in their creation or maintenance in connection with reasonably anticipated specific litigation.

In the Deason discussion of the work product privilege, the Court stated that the PSC rationale for rejecting the work product claim was that the Southern Bell documents “were created for a business purpose” and thus unprotected. 632 So.2d at 1384. The PSC had reasoned that Southern Bell “had an independent business need to perform its own internal investigation.” Id. Southern Bell argued that “in light of the allegations of impropriety against it, the company had a legal motive for collecting the information now being requested for production.” Id. In partially rejecting the PSC decision, the court found that the internal audits, resulting in the documents sought to be discovered by the Public Counsel, “were conducted at the request of counsel in direct response to the PSC’s investigation.” Id.

To be sure, the Deason Court identified several separate categories of documents claimed to be protected as work product. Yet in spite of on-going disciplinary agency action concerning alleged violations of regulatory statutes and rules, it is important to note the Florida Supreme Court ultimately found only some of the documents protected. The documents held protected in Deason all had these attributes:

A. they were created by the corporation’s lawyer for litigation already taking place; or,
B. they were created at the direction of the corporation’s lawyer for the litigation already taking place; and
C. they were not created and used initially in ordinary business activities.

Not a single one of these attributes can be found in this case.

In Upjohn Company v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), the Court extended federal work product protection to attorneys charged with undertaking voluntary internal corporate investigations and compliance measures when such investigations necessarily involve a significant legal component. But in allowing this extension, the Court required the proponent of the work product claim to make four showings:

(1) the communications have to be made by corporate employees to corporate counsel, including outside counsel, in order to obtain legal advice;
(2)the board of directors or corporate leadership must direct the inquiry;
(8) the information sought must concern matters within the duties of corporate employees, who must understand that their information is being sought as a basis for legal advice and possible legal action; and
(4) the corporation must treat the communications as confidential throughout the investigation, with interviews being conducted in private and notes memorialized in confidential documents circulated to only a minimum number of people.

449 U.S. at 394-95, 101 S.Ct. 677. Here there is no showing as to three of these requirements. AHCA merely asked the HMO to explain its payment rates for non-contract providers. There was no investigation, formal or informal. AHCA simply wanted to know how the HMO arrived at its non-contract rate. When it received the HMO’s response, AHCA closed the matter, saying it had no jurisdiction. There was no suggestion of any government investigation for fraud, as was the case in Deason. There was no basis to anticipate adverse agency action.

The principal business function of an HMO is to act as a third-party payor to providers of health care services for participants who pay fees for this service. The mere fact that AHCA requests a rate explanation from an HMO is about as routine as this business gets. The mere fact that an HMO consults with a specialist in provider reimbursement is also routine. Explaining rates to government agencies concerned with reimbursement to providers of health care services is an unending business activity of third-party payors, like these HMOs. If these 44 documents are the kind of materials falling within work product protection, then it is hard to imagine an HMO document that could not be deemed protected.

In Hickman v. Taylor, 329 U.S. 495, 67 S.Ct 385, 91 L.Ed. 451 (1947) — the foundation on which all work product analysis begins — the documents in question arose after the claim had already accrued but before suit was filed. See 329 U.S. at 504, 67 S.Ct. 385 (“Here production was sought of documents prepared by a party’s attorney after the claim has arisen.”). Similarly in Deason, the protected documents arose after the PSC had begun its formal investigation for disciplinary action. See 632 So.2d at 1384 (“two months after Public Counsel requested the PSC to investigate Southern Bell’s alleged improprieties, Southern Bell’s counsel requested the audit department to review and analyze certain data regarding [specifically described] activity. The analyses of this data are known as the investigative audits”). Thus in both Hickman and Deason the documents in question originated after accrual of a claim or administrative violation.

When a claim has already accrued, it may be objectively reasonable to anticipate litigation even though suit has not yet been filed. In that circumstance, a party could reasonably claim materials were prepared “in anticipation of litigation.” Hickman and Deason afford work product protection only for materials prepared in connection with an occurrence or circumstance reasonably indicating prospective litigation over a specific matter. Neither Hickman nor Deason affords any basis to transform work product protection into a general shield for materials routinely prepared in the ordinary course of business.

The operative terminology in the applicable rule is “prepared in anticipation of litigation.” Fla. R. Civ. P. 1.280(b)(3). Our decision in Cotton States Mutual Ins. Co., 444 So.2d 595 (Fla. 4th DCA 1984), described this work product protection thus:

“The work product privilege attaches to statements and materials prepared by a party’s investigator or insurer only if these were prepared in contemplation of litigation. Mere likelihood of litigation does not satisfy this qualification.” [e.s., C.O.]

444 So.2d at 596. We think the highlighted sentence was simply an attempt by this court to emphasize that the mere general likelihood of litigation in the corporation’s ordinary conduct of business is not enough for a claim of work product protection. There must be some specific matter reasonably indicating litigation beyond the general business prospects of eventually being sued.

Nevertheless, the quoted sentence from Cotton States is sometimes cited to us as a holding imposing a heightened requirement for all claims of work product protection in this district. See. e.g., Marshalls of MA Inc. v. Minsal, 932 So.2d 444 (Fla. 3d DCA 2006). We hope to clarify Cotton States by pointing to its context. Cotton States concerned a claim by an insured that an insurance carrier had engaged in bad faith in regard to the handling and settlement of a claim arising under the liability policy. We call attention to the fact that, because of the fiduciary relationship between the insured and carrier, the carrier’s file developed during the handling of the claim could hardly be deemed protected from its own insured to whom it owed a fiduciary duty. The carrier lacked any basis to claim a privilege of nondisclosure about the claim file in a later bad-faith suit. Properly understood, Cotton States is therefore well within Hickman and Deason.

■While Cotton States was not intended to impose a heightened standard for all work product claims, we do recognize that claims of privilege or protection by eorpo-rations are generally subject to stricter scrutiny. Deason, 632 So.2d at 1383 (recognizing that “to minimize the threat of corporations cloaking information with the attorney-client privilege in order to avoid discovery, claims of the privilege in the corporate context will be subjected to a heightened level of scrutiny”).

We must not forget that the work product doctrine was created as a litigation privilege. It was never meant to apply to ordinary, routine, business-as-usual communications. That obviously means that it was not intended to protect the general foreseeability of being sued in the course of business- — something HMOs routinely face. Hence we think, at a minimum, a claim of work product protection requires that a specific litigation matter can be reasonably anticipated as a result of an occurrence or circumstance — such as an act giving rise to the accrual of a cause of action. It was never designed to protect the normal business activities of an industry against general regulatory oversight and enforcement — outside of specific disciplinary action by the agency.

The decision of the trial court denying a protective order in this case is well within the analytical framework of Deason and does not depart from the essential requirements of law. We leave it undisturbed.

GROSS, C.J., and POLEN, J., concur.

      . "In February 1991, the Office of Public Counsel petitioned the PSC to investigate allegations that Southern Bell falsified information regarding its compliance with Rules 25-4.070(2) and 25-4.110(2) ... requiring rebates for the untimely repair of telephone service. The PSC, which had already begun to informally investigate similar allegations against Southern Bell, formally initiated an investigation of Southern Bell in May 1991.” [c.o.] 632 So.2d at 1380.

      . § 641.513(5), Fla. Stat. (2008).

      . See Adventist Health System/Sunbelt Inc. v. Blue Cross and Blue Shield, 934 So.2d 602, 604 n. 4 (Fla. 5th DCA 2006) (noting that AHCA responded to a dispute identical to the present one, stating that it " 'does not have specific rule making authority to determine what specific payment amounts would comply with section 641.513(5)(b)....' ”).

      . See Stuart M. Gerson and Jennifer E. Gla-dieux, Advice Of Counsel: Eroding Confidentiality In Federal Health Care Law, 51 Ala. L. Rev. 163, 183 (1999)(“Often non-attorneys, such as accountants or management consultants, perform these audits, and thus, the work product doctrine may not apply because the audit is more operational than legal in scope.”).

      . See Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121, (Fla.2005) (recognizing duty of carrier to act in good faith toward insured in settlement of claim, that the relationship between insured and carrier is similar to attorney-client); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 58 (Fla.1995) ("Under liability policies ... insurance companies took on the obligation of defending the insured, which, in turn, made insureds dependent on the acts of the insurers; insurers had the power to settle and foreclose an insured’s exposure or to refuse to settle and leave the insured exposed to liability in excess of policy limits. This placed insurers in a fiduciary relationship with their insureds similar to that which exists between an attorney and client” [e.s., c.o.]).

      . Contrarily, in Deason, some of the work product claims were proper because disciplinary litigation in that case was already well under way when the audits were done.


text:
    Marc E. BOSEM, M.D., and Marc E. Bosem, M.D., P.A., Appellants, v. MUSA HOLDINGS, INC., d/b/a Eyeglass World, a Florida corporation, The Laser Vision Institute, L.L.C., and Marco Musa, individually, Appellees.
    No. 4D07-3383.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Rehearing Denied June 10, 2009.

      Jeffrey A. Norkin of Jeffrey A. Norkin, PA., Plantation, and Joel S. Perwin of Joel S. Perwin, P.A., Miami, for appellants.
    Paul 0. Lopez of Tripp Scott, P.A., Fort Lauderdale, for appellees.
   POLEN, J.

Appellants/Cross-Appellees, Marc E. Bosem, M.D., Marc E. Bosem, M.D., P.A., d/b/a CorrectVision Laser Institute, (Bo-sem) brought an action for injunctive relief, fraud, false advertising, and compensatory damages against Appellees/Cross-Appellants, Musa Holdings, Inc., d/b/a Eyeglass World, The Laser Vision Institute, L.L.C., and Marco Musa, (Musa) for Musa’s alleged unauthorized use of Bo-sem’s image or likeness and violation of the Lanham Act, 15 U.S.C § 1125. The trial court ultimately entered an order granting Bosem’s motion for partial summary judgment and holding that Musa’s use of Bosem’s name, likeness and biography was unauthorized and in violation of section 540.08, Florida Statutes, and the Lanham Act. Accordingly, Bosem’s entitlement to damages was the only issue determined by the subsequent bench trial and is also the only issue before this court on appeal.

Though the parties have appealed several determinations made by the trial court in its calculation of damages, we write only to address an issue cross-appealed by Musa regarding liquidated damages and prejudgment interest. Bosem argued below, in part, that Musa’s unauthorized use of his image resulted in lost profits because he was forced to reduce the price of his LASIK eye surgery procedure in order to retain patients who had seen Musa’s advertisements in which Musa claimed Bo-sem would perform the same surgery for less at its centers.

The trial court found that Bosem sustained lost profits in the amount of $93,306 and awarded Bosem prejudgment interest on that amount. In concluding that prejudgment interest was warranted in the present case, the trial court discussed Air Ambulance Professionals, Inc. v. Thin Air, 809 So.2d 28 (Fla. 4th DCA 2002). In Thin Air, this court held that prejudgment interest was appropriate only for damages which were “an amount certain” and that the trial court erred in granting prejudgment interest on all damages which were not “fixed.” 809 So.2d at 31-32. There, plaintiff sued for compensatory and punitive damages after the defendant withheld payment from plaintiff due to a dispute over excess charges. Id. at 32. The trial court ultimately awarded prejudgment interest on all damages, and this court held that the only claim which was liquidated was that for an open account — the payment withheld by defendant — because it was a known amount from the beginning which defendant refused to pay. See id. Thus, prejudgment interest was appropriate as to that claim but none of the others. Id.

In the present case, the amount of damages was never certain until the trial court calculated Bosem’s lost profits. Bosem claimed he had sustained lost profits of between $300,000 and $400,000 and maintained that the period of infringement was from 2000 to 2002. The trial court found that Bosem’s lost profits were actually $93,306 and that the period of infringement was from July 2000 to December 2001. Florida case law suggests that on a claim for lost profits or price-erosion damages, prejudgment interest is not warranted because the amount of damages is generally unknown. For example, in Jones v. Sterile Products Corp., 572 So.2d 519, 520 (Fla. 5th DCA 1990), the court held that lost profit and price erosion damages resulting from a breach of a non-compete agreement were unliquidated and, thus, that prejudgment interest was not warranted. Moreover, “[t]o date, cases recognizing a right to prejudgment interest have all involved the loss of a vested property right,” and anticipated business profits are not a vested property right. See Scheible v. Joseph L. Morse Geriatric Ctr., Inc., 988 So.2d 1130, 1134 (Fla. 4th DCA 2008). Therefore, we reverse the award of prejudgment interest. As to all other issues, we affirm.

Reversed.

HAZOURI and CIKLIN, JJ., concur.


author: STEVENSON, J.

text:
    Ivory BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4586.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Ivory Brown was tried by jury and convicted of possession of cocaine with intent to sell and possession of Xanax. In this appeal, Brown contends that the trial court erred in denying his motion for judgment of acquittal directed to the possession of Xanax charge and that improper argument by the prosecutor concerning the police officers’ lack of a motive to lie rose to the level of fundamental error as to both charges. We reject the latter of Brown’s claims and, without further comment, affirm his conviction for possession of cocaine with intent to sell. We find merit, however, in his claim regarding the sufficiency of the evidence on the possession of Xanax charge and reverse such conviction.

The evidence at trial established that Officer Meyers and Agent Kihei were present when a confidential informant placed a call to a “person of interest.” The informant asked the individual on the other end of the call for $100 worth of crack and, ultimately, it was agreed that the pair would meet at a nearby Taco Bell. Officer Meyers and Agent Kihei drove to the Taco Bell, observed a black male matching the description provided them, and stopped the car a few blocks away. The defendant was driving the car and had a female passenger. Officer Meyers approached the car and, as the defendant exited the vehicle, he was able to smell marijuana emanating from either the defendant or the car. The defendant was nervous and shaking. As Agent Kihei was approaching the passenger, he observed the defendant make a move towards, and close, the car’s center console.

Police found a cell phone in the defendant’s possession and, when police dialed the number that had been dialed by the informant, the phone rang. Officer Meyers also identified the defendant’s voice as the one that he had earlier heard on the other end of the call placed by the informant. Police found $429 on the defendant’s person when he was searched at the scene and, when he was later searched at the police station, a baggie containing crack cocaine and a baggie containing powdered cocaine in the defendant’s underwear. When the car was searched, police found a black jewelry box in the car’s center console and, inside the jewelry box, they found some gold teeth caps and Xa-nax. The car was a rental and the defendant’s name was not on the rental agreement.

Following the presentation of the State’s case, the defendant’s counsel moved for a judgment of acquittal on the possession of Xanax charge, arguing that the case was one of constructive presence and the evidence was simply insufficient to establish that the defendant had knowledge over the jewelry box and its contents or the ability to exercise dominion and control over the same. Following the denial of the motion for judgment of acquittal, the defendant took the stand, denying that he had been smoking marijuana and any knowledge of the drugs found in the car’s console. He also denied that police found drugs on him at the police station.

Defense counsel’s motion for judgment of acquittal should have been granted. To convict a defendant for possession of a controlled substance under a constructive possession theory, the State must prove that “the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the same.” Martoral v. State, 946 So.2d 1240, 1242 (Fla. 4th DCA 2007). “When a vehicle is jointly occupied, a defendant’s ‘[m]ere proximity to contraband is insufficient to establish constructive possession.’ ” Id. (quoting Har- grove v. State, 928 So.2d 1254, 1256 (Fla. 2d DCA 2006)). And, “ ‘[knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband.’ ” Id. at 1242-43. This independent proof may consist of “evidence of incriminating statements or actions, or other circumstances from which a jury might lawfully infer the defendant’s actual knowledge of the presence of contraband.” Earle v. State, 745 So.2d 1087, 1089 (Fla. 4th DCA 1999).

As evidence of the defendant’s alleged guilty knowledge of the Xanax’s presence, the State points to Agent Kihei’s testimony that, as police approached, the defendant attempted to close the center console and the fact that the defendant was nervous and shaking. And, while not specifically mentioned by the State, there is also the fact that the defendant was found in actual possession of cocaine. We hold that the additional circumstances were insufficient to permit a finding that the defendant had actual knowledge of the Xanax or the ability to control it. The nervousness and shaking may well have been attributable to the simple fact that the defendant was being stopped by police, knowing that he was in possession of cocaine. See Hill v. State, 736 So.2d 133, 134 (Fla. 1st DCA 1999) (holding evidence insufficient to sustain constructive possession conviction where only evidence of knowledge and ability to control was proximity to contraband and defendant’s nervousness could be explained by fact that he was stopped for speeding). And, evidence that the defendant agreed to sell the informant crack does not tend to demonstrate that he had knowledge of Xanax in a car that belonged to one other than the defendant. Finally, Agent Kihei’s testimony suggesting that the defendant was closing the console is insufficient to demonstrate that the defendant had knowledge of the contents of a jewelry box contained therein, let alone the ability to exercise dominion and control over the same. Accordingly, we reverse the defendant’s conviction for possession of Xanax.

Affirmed in part; Reversed in part; and Remanded.

WARNER and DAMOORGIAN, JJ., concur.


text:
    Frank ORDZIEJESKI, Appellant, v. David FREUDENBERG, Village Pointe Realty, LLC, d/b/a Weichert, Realtors—Village Point, a Florida limited liability corporation, Gemma Sicolo and Patricia Freudenberg, Appellees.
    Nos. 4D07-4972, 4D07-4973.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.

      June Galkoski Hoffman and Susan H. Aprill of Fowler White Burnett, P.A., Miami, for appellant.
    Arthur C. Koski of Law Offices of Arthur C. Koski, P.A., Boca Raton, for appel-lees David Freudenberg, Village Pointe Realty, LLC, d/b/a Weichert, Realtors— Village Point, a Florida limited liability corporation, and Gemma Sicolo.
   PER CURIAM.

This court consolidated two appeals, including a cross-appeal from two final judgments entered in a real estate contract dispute. David Freudenberg entered into a contract to purchase Frank Ordziejeski’s property. Believing that the contract had been fraudulently induced, Ordziejeski refused to proceed with the closing. Freudenberg filed a complaint for specific performance and breach of contract. Ordziejeski answered raising fraudulent inducement and unclean hands as affirmative defenses. Ordziejeski also filed a third-party complaint against his realtors for common law indemnity, breach of fiduciary obligation, and fraud.

Freudenberg moved for partial summary judgment on the breach of contract claim and the trial court granted the motion. Based upon that order, the third-party defendants moved for summary judgment, which the trial court also granted. Ordziejeski appeals the summary judgment entered in favor of the third-party defendants in case number 4D07-4972.

The contract case went to trial and the issues raised by the affirmative defenses were submitted to the jury. The jury found in favor of Ordziejeski, and the trial court entered a final judgment in his favor. Freudenberg appeals the final judgment in favor of Ordziejeski in case number 4D07-4978.

We affirm the final judgment in favor of Ordziejeski on Freudenberg’s claims. Although the trial court entered a partial summary judgment on the breach of contract claim, it is apparent that the court did not consider that the partial summary judgment disposed of the affirmative defenses as the court submitted them to the jury, and the jury found in favor of Ord-ziejeski. No reversible error has occurred.

However, we also note that the entry of the partial summary judgment on breach of contract liability would have been error if it had included a rejection of the affirmative defenses because material issues of fact abounded. The trial court erred in entering the partial summary judgment.

Normally, we may not have commented on the error in entering partial summary judgment where we are affirming the ultimate final judgment. However, the partial summary judgment also prompted the trial court to enter a judgment in favor of the third-party defendants. That too was error, as material issues of fact were present. We reverse the judgment in case number 4D07-4972. Although the final judgment in favor of Ordziejeski may mean that the third-party claims will not go forward on remand, our resolution of this issue will impact any future awards of attorney’s fees.

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

WARNER, HAZOURI, JJ., and SHAHOOD, GEORGE A., Senior Judge, concur.


author: GRIFFIN, J.

text:
    J.W.B., Father of M.J., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D08-2900.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2009.

      Heather Morcroft, Orlando, for Appellant.
    Jeffrey Dana Gillen, West Palm Beach, for Appellee.
    Kavita Sookrajh, Orlando, for Guardian ad Litem.
   GRIFFIN, J.

Father, J.W.B. [“Father”], appeals the trial courts order terminating his parental rights to his daughter, M.J. On appeal, Father, who is incarcerated, argues that the Department of Children and Families [“DCF”] failed to meet its burden of proving by clear and convincing evidence that his parental rights should be terminated. In addition, he submits that he received ineffective assistance of counsel. We affirm.

M.J., born on June 28, 2006, came under the jurisdiction of the trial court when she was sheltered with DCF on July 11, 2006. She was placed with foster parents, who are now the prospective adoptive parents, two weeks after she was sheltered.

The grounds set forth in the petition for termination included incarceration for a substantial portion of the period of time before child attains the age of eighteen. Under section 39.806(l)(d)l., Florida Statutes (2006), termination of a parent’s rights is authorized when “the period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years.” Father has been incarcerated since the child’s birth and has never seen her or provided any financial support.

DCF filed the petition for termination on October 18, 2007, when the child was approximately sixteen months old. Father testified that he expected to be released from prison in the year 2018, although there was testimony concerning the possibility of early release. When Father is scheduled to be released from prison, the child will be approximately twelve years of age.

In B.C. v. Florida Department of Children & Families, 887 So.2d 1046 (Fla.2004), the court utilized percentages to determine what constitutes a “substantial portion” of time for purposes of section 39.806(l)(d)l. It determined that the father’s remaining four years of incarceration was not a substantial portion of time before the child, then four years old, attained majority. Id. at 1048, 1055. “[T]he statutory language ‘requires the court to evaluate whether the time for which a parent is expected to be incarcerated in the future constitutes a substantial portion of the time before the child reaches eighteen, not whether the time the parent has been incarcerated is a substantial portion of the child’s life to date.’ ” Id. at 1052 (iquoting J.D.C. v. Dep’t of Children & Family Servs., 819 So.2d 264, 266 (Fla. 2d DCA 2002)). See In re S.H., 992 So.2d 316 (Fla. 2d DCA 2008); J.H. v. Dep’t of Children & Family Servs., 872 So.2d 924, 928 (Fla. 2d DCA 2004).

In the present case, the percentage is sixty percent. We conclude that sixty percent is a “substantial portion” of the time before M.J. reaches eighteen years of age. Moreover, in B.C., the supreme court explained that the effect of incarceration on the parent-child relationship must also be considered in light of other statutory and constitutional requirements. B.C., 887 So.2d at 1054. Consideration of this factor reinforces the trial court’s decision to terminate Father’s parental rights. Due to his incarceration, Father has never seen this child. He has had no contact with the child nor has he provided any financial support. The child has resided with the prospective adoptive parents since she was two weeks old and their home is the only home she has known.

AFFIRMED.

EVANDER and LAWSON, JJ., concur.