author: COPE, J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. CUBAN-HEBREW CONGREGATION OF MIAMI, INC., Appellee.
    No. 3D08-1325.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2009.
    Rehearing Denied April 22, 2009.
    J. Pablo Caceres and Erica K. Williams, Tampa, for appellant.

      Stabinski & Funt, Ryan C. Ratliff, Miami and Robert Garven, Coral Springs, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   COPE, J.

This is an appeal of judgment requiring Citizens Property Insurance Corporation to pay the full amount of an appraisal-award. We conclude that Citizens was entitled to a reduction of the amount for sums it previously had paid to the insured, as well as a reduction on account of the policy deductible. We therefore reverse the order now before us.

I.

Cuban-Hebrew Congregation of Miami, Inc., owns three properties on Miami Beach, Florida, which were insured by Citizens’ Commercial Wind Only Policy. In 2005, Hurricane Wilma struck South Florida and the insured submitted a claim for damage to its properties. Citizens investigated the loss and paid what it believed to be owed for the claim.

In 2006, the insured sued Citizens for breach of contract and declaratory relief. The insured alleged that Citizens had failed to pay the full amount of the insured’s loss with respect to one of the three properties. The trial court compelled appraisal pursuant to the appraisal clause of the insurance policy. Each party appointed an appraiser and the court appointed the neutral umpire.

Two of the three members of the appraisal panel concurred that the amount of the insured’s loss was $194,454. As ordered by the court, the appraisal award delineated the totals by subcategory, spelling out in considerable detail the amounts awarded for the different parts of the building. The award did not include any deduction for the policy deductible or prior payments by Citizens.

Citizens took the position that the appraisal award was subject to reduction for (a) the policy deductible, and (b) payments previously made on the claim. Citizens subtracted those items and issued a check for $106,646.27.

The insured filed a motion to compel payment of the full amount of the appraisal award, without reduction. The trial court entered an order compelling payment of the full amount, and Citizens has appealed.

II.

The appraisal clause provided that if the parties disagreed “on the values of the property or the amount of loss, either may make written demand for an appraisal of the loss.... The appraisers will state separately the value of the property and amount of loss.” The policy did not direct the appraisers to reduce their appraisal by amounts the insurer had previously paid on the claim, or by the deductible.

The award on its face reflects that no reduction was made for the policy deductible or prior payments. In addition, Citizens filed the affidavit of one of the appraisers who signed the award. That affidavit states:

1. My name is HENRY DIAZ and I am over the age of eighteen. I have personal knowledge of all the information contained herein.
2. I was appointed to serve as CITIZENS PROPERTY INSURANCE CORPORATION’S appraiser for the appraisal of the insurance claim that is the subject of the above captioned lawsuit.
3. I countersigned the appraisal award submitted by neutral umpire Marjorie Barron on June 18, 2007....
4. The $194,454.00 appraisal award represents the total amount of loss of this claim and equals the total of the line items listed in the appraisal award without reduction for applicable deductible(s) or prior payments made by CITIZENS PROPERTY INSURANCE CORPORATION.
5. Nothing written in the appraisal award was meant to indicate that the applicable policy deductible(s) and/or prior payments should not be deducted from the appraisal award according to the terms and conditions of the subject policy of insurance.

The insured submitted no contradictory evidence.

Where, as here, the appraisers set the overall amount of the loss, but do not reduce the award for prior payments or the deductible, the insurer is entitled to make those deductions. The decision in Meade v. Lumbermens Mutual Casualty Co., 423 So.2d 908 (Fla.1982), is instructive. In that uninsured motorist case, an arbitration panel issued an award for $16,709.50, but the policy limit was $10,000. The Court held that the award must be reduced to the policy limit. The Court reasoned that “the issue of the policy limits was not submitted to arbitration by the parties.... Since the policy limits were not before the arbitration panel in this case, the insurer was not precluded from raising the defense of the policy limits in the confirmation proceeding filed by petitioner.” Id. at 910. The same logic applies here. The appraisers were directed to appraise the amount of the insured’s loss. The issue of the policy deductible and prior payments was not submitted to the appraisers.

The trial court concluded that Citizens had disobeyed a prior court order to pay the full award. In this case Citizens made the reductions and timely mailed a check to the insured within thirty days after the appraisal award. Through neither party’s fault, the check was returned to Citizens undelivered. The insured filed a motion to compel payment and there was an agreed order saying that “[t]he Defendant will forward payment to the Plaintiff pursuant to the Appraisal Award on or before September 20, 2007.” Citizens timely made the (reduced) payment. The insured objected to the deductions and filed its motion to compel payment of the full amount of the appraisal award, thus bringing the issue before the trial court. While the trial court interpreted the agreed order to require payment of the full appraisal amount, we respectfully disagree. The order for Citizens to make payment “pursuant to the Appraisal Award” did not constitute an order to pay the full amount of the appraisal. Indeed, in another pleading the insured had acknowledged that the appraisal award was “subject to a reduction of possible prior payments and the policy deductible.”

The trial court also reasoned that Citizens had waived the right to make these deductions. It was the court’s view that making these deductions amounted to a modification of the appraisal award. The court concluded that Citizens had delayed unreasonably in bringing the issue to the court.

The trial court looked to the Florida Arbitration Code for guidance, and took the view that making these reductions amounted to a modification of the appraisal award under section 682.14, Florida Statutes (2007). As the trial court saw it, Citizens did not file anything which amounted to a request for modification until after the statutory ninety-day time limit had expired. The court thus concluded that Citizens had waived the point and must pay the full award.

The Florida Supreme Court has held that the Florida Arbitration Code is not applicable to appraisal cases. Allstate Ins. Co. v. Suarez, 833 So.2d 762, 763-66 (Fla.2002); see Cotton States Mut. Ins. Co. v. D’Alto, 879 So.2d 67, 70 (Fla. 1st DCA 2004); Nationwide Mut. Fire Ins. Co. v. Schweitzer, 872 So.2d 278, 279 (Fla. 4th DCA 2004). In its oral pronouncement, the trial court recognized that the Florida Arbitration Code was not applicable, because the court stated that it was looking to the Arbitration Code for guidance. In other words, even though the Arbitration Code was inapplicable, the court looked to the Code as providing a useful analogy.

We do not quarrel with referring to the Code by way of analogy, but in this case the analogy was misplaced. As already stated, the appraisers made an estimate of the total loss, without regard to the deductible or any prior payments. Citizens accepted the appraisers’ calculation, and then reduced it by the deductible and the prior payments. Under Meade, this procedure was correct. There was no requirement for Citizens to file an application for modification of what the appraisers had done, and there was no waiver of Citizens’ position under the circumstances presented here.

We therefore conclude that Citizens was entitled to reduce the award by the amount of the policy deductible and the previous payments on the loss. If the insured disagrees with Citizens’ calculation, that issue is to be resolved by the trial court. Meade, 423 So.2d at 910.

As an aside, if there should be a case in which it is not clear whether the appraisers took into account prior payments or the deductible, then the trial court has the authority to require the appraisers to clarify the basis for the award. See Moser v. Barron Chase Secs., Inc., 783 So.2d 231, 236-37 (Fla.2001). In this case, however, the situation is clear.

III.

The trial court’s judgment included a finding that the insured was entitled to an award of attorney’s fees under section 627.428, Florida Statutes (2007). The amount of attorney’s fees has not yet been set. In the exercise of discretion, we address the entitlement issue at this time, and affirm the ruling on entitlement. In this case Citizens had underpaid the insured by $106,646.27. The insured filed suit on the policy. This was followed by the appraisal and culminated in the judgment in favor of the insured for the additional sum. We affirm the award of attorney’s fees on authority of Travelers Indemnity Insurance Co. of Illinois v. Meadows MRI, LLP, 900 So.2d 676, 679 (Fla. 4th DCA 2005).

Citizens challenges the amount of prejudgment interest. The amount of interest will need to be recalculated in light of our holding regarding the reduction in the appraisal award for the policy deductible and prior payments. Citizens misreads the judgment as requiring payment of interest from September 18, 2007, through March 11, 2008, even though Citizens maintains that it paid the (reduced) award prior to March 11, 2008. The judgment actually states that prejudgment interest will run from “September 18, 2007 and continuing until the award is paid in full.... ” On remand the parties shall calculate prejudgment interest through the date of payment, as the order states.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . Nothing prevents the parties from mutually agreeing to submit the issue of prior payments, or the deductible, to the appraisers if they wish to do so. See Turnberry Assocs. v. Serv. Station Aid, Inc., 651 So.2d 1173, 1175 (Fla.1995).

      . We decline to entertain Citizens’ second point on appeal as it appears this argument was not raised in the trial court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DRAK, L.L.C., Petitioner, v. SALCINES DEVELOPMENT, INC., et al., Respondents.
    No. 3D08-3027.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2009.
    Rehearing and Rehearing En Banc Denied April 14, 2009.
    Frederick Charles Sake, Miami Beach, for petitioner.
    Garcia & Associates P.L. and Rene Jul-ián Garcia, Jr., for respondents.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We grant the petition for writ of prohibition and remand with instructions that the trial court vacate the November 3, 2008 order granting Porry and Alegre’s motion for rehearing and reconsideration. The trial court lacked jurisdiction to entertain a motion for rehearing of its October 16, 2008 order denying Porry and Alegre’s motion to set aside default final judgment. See Fla. R. Civ. P. 1.540(b); Catalano v. Catalano, 516 So.2d 77, 77 (Fla. 5th DCA 1987) (stating that motions for rehearing of orders issued under Florida Rule of Civil Procedure 1.540(b) are not authorized); Francisco v. Victoria Marine Shipping, 486 So.2d 1386 (Fla. 3d DCA 1986) (stating that an order entered under Rule 1.540 does not “rise to the level of a judgment” and, therefore, a trial court lacks authority to entertain a motion for rehearing from such order).

Petition granted.


text:
    Tony L. GARY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5383.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2009.
    Rehearing Denied April 2, 2009.

      Tony L. Gary, pro se, Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Tony L. Gary petitions for a belated appeal of an order of the Duval County Circuit Court denying and dismissing his motion for postconviction relief. We deny the petition on the merits.

The order for which belated appeal is sought was rendered on April 3, 2008, and reflects the trial court’s conclusion that the motion at issue was impermissibly successive, as it was Gary’s fourth attempt to seek relief pursuant to Florida Rule of Criminal Procedure 3.850. The order further noted that the motion was untimely, having been filed in excess of four years after Gary’s conviction became final on direct appeal.

Pursuant to rule 3.850(g), Gary had 15 days to move for rehearing of the trial court’s April 3 order, and on April 16, he mailed from his place of confinement a motion seeking an enlargement of time until May 2, 2008, to accomplish that task. As grounds for this request, he alleged in his unsworn motion that he needed the assistance of an inmate law clerk and had limited access to the law library. The trial court denied the motion for extension of time by order of May 1, 2008. Gary then mailed a motion for rehearing on May 12 (ten days after expiration of the time requested in his motion for extension of time), and the trial court denied that motion by order rendered on May 28, 2008. Gary filed a notice of appeal on June 3, but because his motion for rehearing was untimely and thus did not postpone rendition of the April 3 order, the ensuing appeal was dismissed for lack of jurisdiction in Gary v. State, 993 So.2d 96 (Fla. 1st DCA 2008).

In now seeking a belated appeal, Gary relies on this Court’s decision in Daniels v. State, 892 So.2d 526 (Fla. 1st DCA 2004). In Daniels, we granted a belated appeal based on the conclusion that the trial court improperly denied a motion for extension of time to seek rehearing where it was alleged that the movant needed to schedule time in the prison law library and to obtain the assistance of an inmate law clerk. Gary also cited to Daniels in his motion for extension of time below, evidently in the belief that it stands for the proposition that a trial court has no discretion other than to extend the time for seeking rehearing whenever it is alleged that the movant requires additional time to obtain access to the prison law library and the services of an inmate law clerk. Dan iels does not, however, mandate that result.

In addressing requests to extend the two-year deadline to seek relief under rule 8.850, the supreme court held in State v. Boyd, 846 So.2d 458 (Fla.2003), that rule 3.050 authorizes the granting of such an extension upon a showing of good cause. The court defined “good cause” in this context as follows:

We defined good cause in [In re Estate of] Goldman [79 So.2d 846 (Fla.1955) ], finding that it is “a substantial reason, one that affords a legal excuse, or a cause moving the court to its conclusion, not arbitrary or contrary to all the evidence, and not mere ignorance of law, hardship on petitioner, and reliance on [another’s] advice.” ...
The determination of good cause is based on the peculiar facts and circumstances of each case. Obviously the trial court is in the best position to weigh the equities involved, and his exercise of discretion will be overruled only upon a showing of abuse.
Dohnal v. Syndicated Offices Systems, 529 So.2d 267, 269 (Fla.1988) (quoting Goldman, 79 So.2d at 848) (citations omitted).
Boyd, 846 So.2d at 460.

In Nguyen v. State, 868 So.2d 666 (Fla. 1st DCA 2004), we recognized that the time to seek rehearing could likewise be extended upon a showing of good cause, but that whether to grant an extension is nonetheless a matter addressed to the sound discretion of the trial court.

Under the facts of this case, we conclude that the trial court did not abuse its discretion when it denied Gray’s motion for extension of time. Gary failed to articulate any specific factual basis for his claim that access to the law library and the services of an inmate law clerk were necessary to frame his motion for rehearing within the time ordinarily allotted, and since the purpose of such a motion is to point out matters overlooked or misapprehended by the court and not to raise new issues or arguments, such a conclusion is not readily apparent from the underlying circumstances here. Accordingly, we conclude that the trial court did not improperly deny Gary’s motion for extension of time to seek rehearing. That being the case, petitioner has failed to establish that he is entitled to a belated appeal.

PETITION SEEKING BELATED APPEAL DENIED.

HAWKES, C.J., KAHN and WEBSTER, JJ., concur.

      . In Whittey v. State, 965 So.2d 362 (Fla. 2d DCA 2007), the court correctly pointed out that our brief opinion in Daniels did not address the discretion of a postconviction court to act in matters of this kind. That such discretion exists and is exercised on the basis of facts and circumstances peculiar to each case is made apparent by Boyd, thus making it clear that Daniels cannot be read as establishing a per se rule that it is always improper to deny an extension of time grounded on the alleged need to schedule time in the law library and obtain assistance from an inmate law clerk.


author: BENTON, J.

text:
    Larry ALA, Appellant, v. Royce CHESSER, Appellee.
    No. 1D08-2195.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2009.

      Mark J. Feather of Mark J. Feather, P.A., Trenton, for Appellant.
    Gregory V. Beauchamp, Chiefland and Jeffrey R. Dollinger of Scruggs & Carmichael, P.A., Gainesville, for Appellee.
   BENTON, J.

Larry Ala appeals an order dismissing with prejudice, as barred by the statute of frauds, a two-count complaint he filed against Royce Chesser. We cannot agree that the statute of frauds precludes his claim seeking relief for unjust enrichment, and reverse the trial court’s dismissal of count one for that reason. We affirm the dismissal of count two seeking rescission and cancellation, however, because we conclude such relief is unavailable here.

I.

Mr. Ala’s second amended complaint alleges that, in separate proceedings initiated by Mr. Chesser before Mr. Ala agreed to convey land to him, Mr. Chesser obtained a summary final judgment in foreclosure ordering the sale of the property and application of the sale proceeds against the $88,001.53 debt Mr. Ala conceded he then owed Mr. Chesser. Before the foreclosure sale (scheduled to take place on June 19, 2006), according to the complaint, the parties agreed that Mr. Chesser would cancel the foreclosure sale in exchange for a quitclaim deed to the property and pay Mr. Ala $61,998.47 ($150,000 less the amount due under the summary final judgment of foreclosure).

Pursuant to the parties’ oral agreement, the complaint alleged, Mr. Ala executed and delivered to Mr. Chesser a quitclaim deed, after which Mr. Chesser “told third parties who were interested in purchasing the property at the foreclos[ur]e sale not to participate at the sale because he already had a deed from [Mr. Ala].” The complaint alleged that, although Mr. Ches-ser accepted the quitclaim deed, he paid Mr. Ala nothing for the property and did not cancel the foreclosure sale. As a result, the complaint alleged, Mr. Chesser was the sole bidder at the foreclosure sale and obtained the property with a bid of $100.

II.

“For purposes of ruling on the motion to dismiss, the trial court was obliged to treat as true all of the amended complaint’s well-pleaded allegations, including those that incorporate attachments, and to look no further than the amended complaint and its attachments.” Shands Teaching Hosp. and Clinics, Inc. v. Beech St. Corp., 899 So.2d 1222, 1224 (Fla. 1st DCA 2005) (quoting City of Gainesville v. State, Dep’t of Transp., 778 So.2d 519, 522 (Fla. 1st DCA 2001)). We are under the same obligation. Whether the complaint states a viable cause of ac tion is a question of law, a question we consider de novo on review. See Andrew v. Shands at Lake Shore, Inc., 970 So.2d 887, 889 (Fla. 1st DCA 2007).

In count one, appellant claimed Mr. Chesser had been unjustly enriched by “receiving] the Deed prior to the foreclosure sale without paying the value thereof’ to appellant and sought damages, interest, costs and reasonable attorney’s fees. In count two, appellant sought rescission and cancellation of the certificate of title issued following the foreclosure sale, restoration of title in himself, and cancellation and rescission of the quitclaim deed. The trial court dismissed both counts with prejudice, ruling any action barred by the statute of frauds because appellant’s claims were “founded on allegations of an oral agreement to transfer an interest in real property.”

A.

In count one, Mr. Ala sought to recover based upon Mr. Chesser’s unjust enrichment when he accepted the quitclaim deed he allegedly induced Mr. Ala to give him, without giving anything in exchange. See Williams v. Grogan, 100 So.2d 407, 410 (Fla.1958) (“The rule is well established in Florida and elsewhere to the effect that' when a person acquires title to property through the influence of a confidential relationship or otherwise obtains an advantage which he should not in good conscience be permitted to retain, a court of equity will prevent the abuse of the confidence and grant relief on the broad principle that one should not be permitted to be unjustly enriched under such circumstances at the expense of another.”).

A claim for unjust enrichment seeks restitution from a party allegedly unjustly enriched. See Restatement of Restitution § 1, at 12 (1937) (“A person who has been unjustly enriched at the expense of another is required to make restitution to the other.”). “[A]n action for restitution ... is not regarded as an action ‘upon’ the contract within the meaning or purpose of the Statute of Frauds, and the remedy is not in general affected by the Statute.” Harrison v. Pritchett, 682 So.2d 650, 652 (Fla. 1st DCA 1996) (quoting Restatement (Second) of Contracts § 141, cmt. a (1981)).

The statute of frauds “grew out of a purpose to intercept the frequency and success of actions based on nothing more than loose verbal statements or mere innuendos” and “should be strictly construed to prevent the fraud it was designed to correct.” Yates v. Ball, 132 Fla. 132, 138, 181 So. 341, 344 (Fla.1937) (stating “so long as [the statute] can be made to effectuate this purpose, courts should be reluctant to take cases from its protection”). In relevant part, the statute of frauds provides:

No action shall be brought ... upon any contract for the sale of lands ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in wiiting and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

§ 725.01, Fla. Stat. (2007). But Mr. Ala relies here on cases holding that the statute of frauds does not defeat recovery where the party seeking redress proves full performance on his part of an oral agreement for the conveyance of land. See Burke v. Napieracz, 674 So.2d 756, 758 (Fla. 1st DCA 1996) (recognizing the “longstanding exception to the statute of frauds ... [that] when a party to an oral contract has fully performed his or her obligations under the contract, the statute of frauds may not be employed as a defense” (citing Yates v. Ball, 132 Fla. 182, 181 So. 341 (1937))).

The statute of frauds is no bar to count one of appellant’s second amended complaint because it alleged that Mr. Ala fully performed. See Brodie v. All Corp. of USA, 876 So.2d 577, 579 (Fla. 4th DCA 2004) (“Full performance of an agreement takes the agreement outside the Statute of Frauds.”); W.B.D., Inc. v. Howard Johnson Co., 382 So.2d 1323, 1327 (Fla. 1st DCA 1980) (“When an oral contract has been fully performed by one party, the statute of frauds may not be employed as a defense, even though the subject matter of the contract is the conveyance of an interest in land.”); see also McGee v. Emmer Dev. Corp., 541 So.2d 1292, 1294 (Fla. 1st DCA 1989) (“Partial or complete performance removes an agreement from the statute of frauds irrespective of whether such an agreement contains as the subject the conveyance of land.” (quoting Futch v. Head, 511 So.2d 314, 319 (Fla. 1st DCA 1987))); Elliott v. Timmons, 519 So.2d 671, 672 (Fla. 1st DCA 1988) (“It is well-established that partial or complete performance removes an oral contract from the statute of frauds.” (citing Futch, 511 So.2d at 319)).

The doctrines of part and full performance apply where a party to an oral agreement for the conveyance of land seeks relief in equity, even where an action for damages at law arising out of the same agreement would be barred by the statute of frauds. Remedying unjust enrichment is affording equitable relief. See Kolski ex rel. Kolski v. Kolski, 731 So.2d 169, 172 (Fla. 3d DCA 1999) (holding statute of frauds “simply inapplicable” to claims for “unjust enrichment/restitution and the imposition of a constructive trust”). See also Harrison, 682 So.2d at 652 (holding statute of frauds could not bar a claim for quantum meruit relief, “a ... variety of restitution” (quoting B & F of Clearwater, Inc. v. Wesley Constr. Co., 237 So.2d 790, 792 (Fla. 2d DCA 1970))).

B.

Appellant also sought equitable relief in count two, in the form of rescission and cancellation both of the quitclaim deed and of the certificate of title issued to Mr. Chesser in the separate foreclosure proceeding. The statute of frauds does not bar this count, either. But other circumstances — apparent from the face of the second amended complaint and its attachments — support dismissal of this count. See D.R. Horton, Inc.— Jacksonville v. Peyton, 959 So.2d 390, 397-98 (Fla. 1st DCA 2007) (noting that under the “tipsy coachman” rule, “[w]hen the trial court reaches the right result, but for the wrong reasons, that decision will be upheld on appeal if there is any basis which would support the judgment in the record” (citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999))).

According to the allegations, Mr. Ala knew Mr. Chesser had breached their oral agreement by the time of the foreclosure sale. Mr. Ala could, therefore, have raised objections to the foreclosure sale before the clerk issued a certificate of title. See Opportunity Funding I, LLC v. Otetchestvennyi, 909 So.2d 361, 362 (Fla. 4th DCA 2005) (holding that the clerk “lacks authority to issue a certificate of title ... when an objection to a foreclosure sale is timely filed”); Nelson v. Santora, 570 So.2d 1374, 1376 (Fla. 1st DCA 1990) (observing that statute directs clerk of court to issue certificate of title following foreclosure sale within ten days only if no objections have been filed within that time and holding that “obviously,” where “the trial court has received objections to the sale[,] ... those must be resolved before title can issue”); O’Neal v. McElhiney, 172 So.2d 492, 494 (Fla. 1st DCA 1965) (recognizing power of chancellor in foreclosure proceedings “to confirm or set aside a foreclosure sale”).

By the time the original complaint was filed in the present case, moreover, Florida Rule of Civil Procedure 1.540 precluded any attempt to set aside the judgment or sale in the earlier foreclosure proceedings, more than one year having elapsed since the proceedings concluded. See Fla. R. Civ. P. 1.540(b) (2007) (providing that a “court may relieve a party ... from a final judgment, decree, order, or proceeding” based on, inter alia, “fraud ..., misrepresentation, or other misconduct of an adverse party” only if the party moves for such relief “not more than 1 year after the judgment, decree, order, or proceeding was entered or taken”).

Mr. Ala cannot, in short, reopen the foreclosure proceedings at this late date. The foreclosure judgment is res judicata. See Advisory Opinion to the Att’y Gen. re Referenda Required for Adoption and Amendment of Local Gov’t Comprehensive Land Use Plans, 938 So.2d 501, 505 (Fla.2006) (“Res judicata bars the litigation of issues that were raised or could have been raised in a prior proceeding between the same parties.”). The complaint and attachments demonstrate that Mr. Chesser holds title by virtue of the foreclosure proceedings, as well as under the quitclaim deed. Because (as appellant conceded during oral argument) res judica-ta principles preclude Mr. Ala’s claim for rescission and cancellation of the certificate of title issued after the foreclosure sale, the claim for rescission and cancellation of the quitclaim deed is moot. Rescission or cancellation of the quitclaim deed would not affect title. On this basis alone, the trial court did not err in dismissing count two of appellant’s second amended complaint.

III.

In sum, we hold that, because count one alleged that Mr. Ala fully performed under an oral agreement for the conveyance of real property and sought equitable relief based on the unjust enrichment that allegedly resulted, the statute of frauds did not authorize or justify dismissal of count one. We therefore reverse the dismissal of count one. But we affirm the trial court’s dismissal of count two for reasons unrelated to the statute of frauds.

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

KAHN and BROWNING, JJ, concur.

      . Appellant filed his initial complaint on July 25, 2007, and the second amended complaint on December 31, 2007.

      .Appellant attached the summary final judgment in foreclosure dated May 24, 2006, to his second amended complaint.

      .Appellant also attached to his complaint the certificate of title issued by the clerk of court in the foreclosure proceedings on June 29, 2006, following the foreclosure sale.

      . See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla.2002); Todd v. Johnson, 965 So.2d 255, 256-57 (Fla. 1st DCA 2007).

      . While a party may not avoid application of the statute of frauds on grounds of partial or full performance in an action solely for money damages, see Wharfside at Boca Pointe, Inc. v. Superior Bank, 741 So.2d 542, 545 (Fla. 4th DCA 1999), the statute of frauds does not bar an injured party's claims for equitable relief. See Williams v. Grogan, 100 So.2d 407, 410 (Fla.1958) (concluding that where a mother was unjustly enriched by her son’s conveyance to her of property, “[a] trust ... [was] created by operation of law” that was "not within the statute of frauds” and that could "be proved by parol evidence"); see also Guest v. Claycomb, 932 So.2d 567, 570 (Fla. 5th DCA 2006) (holding plaintiff's claims for constructive trust and equitable lien based on an alleged oral agreement concerning the conveyance of real property not barred by statute of frauds). In Elsberry v. Sexton, 61 Fla. 162, 166, 54 So. 592, 593 (Fla.1911), the supreme court held:
      Where a contract is for the sale of lands, or any interest therein, and is not in writing, no action at law can ever be maintained upon it. Part performance of such a contract is a ground for relief in equity only, and there on the principle of relieving from fraud.
      The suit here is nothing more than an action at law for the recovery of damages for alleged breach of an oral contract for the purchase of an interest in realty, which action is expressly forbidden by our statute of frauds.

        Collier v. Brooks, 632 So.2d 149, 155-56 (Fla. 1st DCA 1994) (quoting Elsberry, 54 So. at 593). See id. at 155 ("[T]he Florida Supreme Court has applied the doctrine of part performance only in suits involving specific performance of oral contracts for the conveyance of land or an interest in land.”); Williams v. Faile, 118 So.2d 599, 602 (Fla. 1st DCA 1960) (holding that "[p]art performance does not have the effect of removing the bar of the Statute of Frauds to this action at law”); see also Dwight v. Tobin, 947 F.2d 455, 459-60 (11th Cir.1991) (following established Florida rule that “part performance is an equitable doctrine only and is not available in actions for damages at law,” and noting that the "venerable rule established in Elsberry v. Sexton ... remains alive and well” notwithstanding some district court decisions failing to apply the rule).


author: STEVENSON, J.

text:
    In Re Jane DOE, Appellant.
    No. 4D09-425.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2009.
    Jane Doe, Pompano Beach, pro se.
   STEVENSON, J.

This is an appeal of an order dismissing a minor’s petition for judicial waiver of parental notice of termination of pregnancy pursuant to Florida Statutes section 390.01114 (2008). The trial court dismissed the petition on the basis that it fell “outside of the statute as the minor child’s parent is aware of the pregnancy.” We reverse.

Section 390.01114 is known as the “Parental Notice of Abortion Act” and generally requires that a physician give notice to the parents of a pregnant minor prior to the inducement or performance of a termination of the pregnancy. A minor may petition the circuit court for a waiver of the notice requirements. See § 390.01114(4), Fla. Stat. The statute provides that “[i]f the court finds, by clear and convincing evidence, that the minor is sufficiently mature to decide whether to terminate her pregnancy, the court shall issue an order authorizing the minor to consent to the performance or inducement of a termination of pregnancy without the notification of a parent or guardian.” § 390.01114(4)(c) (emphasis added). The statute further provides that in cases where there has been child or sexual abuse by one or both parents, or where the court otherwise finds that notification of the parent or guardian is not in the best interest of the minor, the court “shall” issue an order waiving the parental notification requirements. § 390.01114(4)(d). In cases where the court does not make the findings specified above in section 390.01114(4)(c) or (d), it must dismiss the petition.

In the instant case, we reverse the dismissal as we see no basis for the trial court’s conclusion that the parent’s knowledge of the minor’s pregnancy precludes application of the act. The statute is primarily concerned not with parental notice of the pregnancy but with parental notice of the termination of the pregnancy. The pertinent issue for resolution by the trial court is whether the parents should be given notice of the proposed termination of the minor’s pregnancy according to the specified statutory criteria. The statutory scheme does not require consideration of the parents’ pre-existing knowledge, or lack thereof, of the minor’s pregnancy.

We reverse the dismissal with directions that the trial court consider the merits of the petition and make an expeditious ruling thereon in compliance with the procedural and substantive requirements of section 390.01114. We note that the record on appeal reflects that the trial court has appointed the Office of Criminal Conflict and Civil Regional Counsel for the Fourth District to represent the minor.

Reversed and remanded.

TAYLOR and HAZOURI, JJ., concur.


text:
    CARAVEL INVESTMENTS, INC., a Florida Corporation, Appellant, v. WALGREEN CO., an Illinois Corporation, Appellee.
    No. 3D07-1772.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2009.
    Rehearing Denied April 13, 2009.
    Pardo & Gainsburg and Stevan J. Pardo, Miami; Joel S. Perwin, Miami, for appellant.
    Mitrani, Rynor, Adamsky & Toland and Isaac J. Mitrani and Pamela A. Chamber-lin, Miami; Greenberg Traurig and Elliot H. Seherker and Brigid F. Cech Samóle, Miami, for appellee.
    Before GERSTEN, C.J., and SHEPHERD, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Canell v. Arcola Hous. Corp., 65 So.2d 849 (Fla.1953); Skylake Ins. Agency, Inc. v. NMB Plaza, LLC, 33 Fla. L. Weekly D2215, — So.3d -, 2008 WL 4224290 (Fla. 3d DCA Sept. 17, 2008); LynkUs Commc’ns v. WebMD Corp., 965 So.2d 1161 (Fla. 2d DCA 2007); India Am. Trading Co. v. White, 896 So.2d 859 (Fla. 3d DCA 2005); Ashland Oil v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972).


text:
    Thomas O’HANLON, as Trustee of Habitat Trust, Appellant, v. Robert G. HERNDON, Appellee.
    No. 2D07-6088.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2009.
    John C. Englehardt of John C. Engle-hardt, P.A., Orlando, for Appellant.
    Sara-Jean Palmer of The Sutton Law Firm, Bartow, for Appellee.
   PER CURIAM.

Thomas O’Hanlon, as trustee of the Habitat Trust, filed this appeal of a nonfi-nal order granting Robert G. Herndon’s motion for relief from a final judgment of foreclosure. The order also granted Hern-don’s motion to rescind foreclosure sale, motion to vacate certificate of sale, and motion to vacate certificate of title. We reverse the circuit court order to the extent that it grants relief which was not requested in Herndon’s motion.

O’Hanlon, as trustee of the Habitat Trust, filed a complaint seeking to foreclose on property based on Herndon’s default on a note and mortgage. After a hearing, the circuit court granted O’Han-lon’s motion for summary final judgment and entered a final judgment of foreclosure. A foreclosure sale was held and O’Hanlon was the successful bidder at the sale. Thereafter, a certificate of sale and a certificate of title were issued for the property.

In Herndon’s motion seeking relief from the final judgment of foreclosure, he alleged that his wife was improperly allowed to act as his attorney throughout the proceedings. Herndon stated that he had been ill and had given his wife power of attorney. However, his wife mistakenly believed that she could act as Herndon’s attorney in the lawsuit. In requesting relief from the final judgment, Herndon alleged that he had four meritorious defenses to O’Hanlon’s complaint and motion for summary final judgment. One of his defenses was that the mortgage and note were void because Habitat Trust never filed a Declaration of Trust with the Secretary of State pursuant to section 609.02, Florida Statutes (2006), and therefore, it could not conduct business as a trust.

In granting Herndon’s motion for relief from the final judgment of foreclosure, the circuit court also ruled on the above defense and concluded that O’Hanlon could not lawfully bring a foreclosure action founded on the note and mortgage filed in the case. The circuit court’s ruling was improper because this issue was not a basis of the motion for relief from the final judgment of foreclosure; it was only alleged to be a possible meritorious defense to O’Hanlon’s complaint and motion for summary final judgment.

Accordingly, we affirm the order to the extent that it grants relief from the judgment of foreclosure and reopens that proceeding. However, we reverse that portion of the circuit court’s order ruling that O’Hanlon is precluded from bringing a foreclosure action founded on the note and mortgage in this case. Whether section 609.02 applies in this case and what the penalty or remedy might be for noncompliance with this statute are complex issues that we do not resolve in this appeal.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, WHATLEY, and KELLY, JJ, Concur.


author: VILLANTI, Judge.

text:
    Kevin F. WHITTY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4169.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2009.
   VILLANTI, Judge.

We affirm the order of the trial court dismissing Kevin Whitty’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850 as untimely. We write only to state that if the sworn motion contains false statements of fact, Whitty may be prosecuted for perjury. See State v. Shearer, 628 So.2d 1102, 1103 (Fla.1993).

Whitty’s motion contained the following signed oath: “UNDER PENALTIES OF PERJURY, I declare that I have read the foregoing motion for Post-Conviction Relief/Motion to Enforce Plea Agreement and that the facts stated in it are true and correct.” This is a sufficient oath upon which to base a perjury prosecution. Id. Whitty’s motion and the attachments thereto indicate that Whitty was released from prison on conditional release on March 10, 2005. In the motion, Whitty averred under oath that he would not have pleaded to the charged offenses had he been aware that he would be placed on conditional release and therefore subject to supervision upon his early release from prison. Whitty further averred that he was unaware that he would be released subject to the provisions of conditional release until the actual day of his release.

Section 947.1405(5), Florida Statutes (2003, 2004), requires that, within 180 days prior to an eligible inmate’s tentative release date or provisional release date, the inmate be interviewed in person by a representative" of the Department of Corrections for the purpose of determining the inmate’s release plan, including his planned residence and employment. The Department’s representative is then required to forward the inmate’s release plan to the Florida Parole Commission and to recommend to the Commission the terms and conditions of conditional release. Therefore, had the Department followed the strictures of section 947.1405(5), at a minimum, Whitty would have been aware that he was going to be released subject to the provisions of conditional release at a time considerably prior to the date of his actual release from prison. If this were the case, Whitty’s sworn allegation that he was unaware he was going to be released on conditional release until his actual release date of March 10, 2005, would constitute a false statement of fact under oath.

We take this opportunity to remind pro se litigants of the significance of the oaths they sign:

Postconviction movants should also remain aware that penalties for direct contempt of court or perjury may be imposed when movants are untruthful in postconviction proceedings. See Roberts v. State, 515 So.2d 434 (Fla. 5th DCA 1987) (approving a finding of direct contempt of court where the movant’s testimony was diametrically opposed to prior sworn testimony); see also Emanuel v. State, 601 So.2d 1273 (Fla. 4th DCA 1992) (explaining that a prosecution for perjury is the preferred alternative, but delineating under what circumstances direct contempt of court is appropriate).
Unless a credible threat of sanctions exists, postconviction movants have little incentive against saying whatever they choose in postconviction proceedings, regardless of truth. An organized system of justice cannot operate -without respect for truth. Those seeking justice must respect truth. As Justice Anstead has observed, “[pjerjury poisons the well from which justice flows.” Emanuel, 601 So.2d at 1276.

Oquendo v. State, 2 So.3d 1001, 1006-1007 (Fla. 4th DCA 2008).

Affirmed.

SILBERMAN and KELLY, JJ., Concur.


author: LEWIS, J.

text:
    HEALTHCARE STAFFING SOLUTIONS, INC., Successor by Merger to StarMed Staffing, Inc., Appellant, v. Helene WILKINSON, by and through Webster WILKINSON, as legal guardian of the person and property of Helene Wilkinson, and Webster Wilkinson, individually, and Danielle H. Wilkinson, individually, and Chavonne A. Wilkinson, individually, University Medical Center, Inc., and Florida Board of Regents, Appellees.
    No. 1D07-6539.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2009.
    Rehearing Denied April 2, 2009.

      Brian E. Currie and Rhonda B. Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellant.
    Harvey L. Jay, III and Travase L. Erickson of Saalfield, Shad, Jay, Stokes & Inclan, P.A., Jacksonville; Ronald L. Har-rop of Gurney & Hanley, Orlando; and Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee, for Appellees.
   LEWIS, J.

Healthcare Staffing Solutions, Inc., successor by merger to StarMed Staffing, Inc. (“StarMed”) , appeals an Amended Final Judgment finding it liable to University Medical Center (“UMC”) in an action for contribution under section 768.31, Florida Statutes (1997), and equitable subrogation. UMC’s claim for contribution against StarMed arose after the settlement of a medical malpractice suit. StarMed raises several issues on appeal, only two of which merit discussion: (1) whether the trial court erred in refusing to consider the alleged negligence of other actors for the purpose of apportioning the fault between StarMed and UMC and (2) whether the trial court committed harmful error in imposing a presumption of negligence under Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987). We find reversible error as to the first issue and harmless error as to the second. The remaining issues raised in StarMed’s initial brief are affirmed without discussion. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On April 10, 1997, Helene Wilkinson was admitted to UMC with a diagnosis of “fever of unknown origin.” She was discharged from UMC on May 1, 1997, only to return again on May 3, 1997, with the same diagnosis. The physicians who treated Mrs. Wilkinson at UMC were employees of the Florida Board of Regents (“FBOR”). Her other caregivers at UMC included non-physician employees of UMC and a traveling nurse who was working under a contract between StarMed and UMC. This nurse (“the StarMed nurse”) was primarily responsible for Mrs. Wilkinson’s nursing care during the 7:00 a.m. to 7:00 p.m. shift on May 5, 1997. During that shift, Mrs. Wilkinson collapsed and lost her pulse due to a life-threatening heart condition known as “tamponade.” Mrs. Wilkinson’s pulse was restored, but due to the length of time she was without a pulse, she became permanently comatose.

Mrs. Wilkinson, through her legal guardian, and her family (“the Wilkinson Plaintiffs”) brought a medical malpractice action against UMC and FBOR. UMC filed a third-party complaint against StarMed, alleging that it was liable for any negligence attributable to its nurse. Thereafter, UMC and FBOR settled with the Wilkinson Plaintiffs for a total sum of $6,150,000. FBOR paid $200,000, which is the amount representing the extent to which the Legislature has waived sovereign immunity. See § 768.28(5), Fla. Stat. (1997). UMC paid $5,950,000 and sought contribution and equitable subrogation from StarMed. StarMed alleged, as an affirmative defense, that the damages UMC paid were caused in all or in part by other persons or entities, including the FBOR physicians.

Prior to the non-jury trial, the trial court ruled that StarMed’s proffered evidence of the FBOR physicians’ negligence would not be considered, as it was irrelevant to an assessment of the portion of UMC’s settlement for which StarMed was liable. After the trial, the court issued an Amended Final Judgment finding the StarMed nurse negligent in several critical respects. The trial court detailed the evidence upon which its findings of negligence were based and then noted that the StarMed nurse had destroyed certain informal nursing notes related to Mrs. Wilkinson’s care. The trial court stated, “The failure to properly document Mrs. Wilkinson’s record followed by the destruction of the [informal nursing notes] further bolsters the Court’s conclusions that [the StarMed nurse] was negligent and that such negligence was the legal cause of Mrs. Wilkinson’s damages.” The court concluded, based on the destruction of the nursing notes, that UMC was entitled to a rebutta-ble presumption of negligence on the part of the StarMed nurse, pursuant to Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987). Ultimately, the trial court found that StarMed was liable for eighty-five percent of UMC’s settlement payment and UMC was responsible for fifteen percent. StarMed appealed.

II. ANALYSIS

A. Apportionment of Fault in Contribution Claims

On appeal, StarMed argues that the trial court erred in refusing to consider the FBOR physicians’ negligence in determining the amount of StarMed’s liability under the contribution claim. In Florida, the right to contribution is a creature of statute. Hyster Co. v. David, 612 So.2d 678, 680 (Fla. 1st DCA 1993). Its parameters are set forth in the Uniform Contribution Among Tortfeasors Act (“the Contribution Act”), which provides that “[n]o tortfeasor is compelled to make contribution beyond her or his own pro rata share of the entire liability.” § 768.31(2)(b), Fla. Stat. (1997). Whether the trial court erred in refusing to consider the alleged negligence of the FBOR physicians depends on whether their alleged negligence was necessary to an accurate determination of StarMed’s pro rata share of the “entire liability.” We find that the Contribution Act is clear and unambiguous on this point. Therefore, our analysis is controlled by a de novo consideration of the statute’s plain language. See City of Parker v. State, 992 So.2d 171, 176 (Fla.2008).

The Contribution Act further provides, in pertinent part, as follows:

(2)RIGHT TO CONTRIBUTION.—
(a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, ... there is a right of contribution among them even though judgment has not been recovered against all or any of them.
(b) The right of contribution exists only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability, and the tortfea-sor’s total recovery is limited to the amount paid by her or him in excess or her or his pro rata share. No tortfeasor is compelled to make contribution beyond her or his own pro rata share of the entire liability.
(d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury ... is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.
(3)PRO RATA SHARES.—In determining the pro rata shares of tortfeasors in the entire liability:
(a) Their relative degrees of fault shall be the basis for allocation of liability.

§ 768.31, Fla. Stat. (1997). To determine a contribution defendant’s pro rata share, the trial court must determine the amount of the “entire liability,” the identity of each person who contributed to the injury that gave rise to the original tort claim, and the percentage of fault attributable to each of those persons. See id.

Because the right to contribution exists only where two or more persons have become liable in tort for the “same injury,” section 768.31(2)(a), the term “liability,” as used throughout the Contribution Act, refers to liability for the injury that gave rise to the original tort claim. Naturally, then, the “entire liability” as used in section 768.31(2)(b) refers to the responsibility born by all of the tortfeasors who contributed to any degree to the original plaintiffs injury. Cf. Home Ins. Co. v. Advance Mach. Co., 500 So.2d 664, 669 (Fla. 1st DCA 1986) (defining “common liability” as “the joint causing of damage or injury”).

The Contribution Act requires that a trial court apportion each tortfeasor’s liability according to his or her relative degree of fault in causing the injury giving rise to the tort claim. § 768.31(3)(a). It is impossible to determine one party’s percentage of fault for an injury without also considering the relative degrees of fault of all other actors who contributed to the injury. Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993) (receded from on other grounds in Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249, 251-52 (Fla.1995)). Construing the comparative fault statute, the Florida Supreme Court has held that a tortfeasor’s “[liability is to be determined on the basis of the percentage of fault of each participant to the accident and not on the basis of solvency or amenability to suit of other potential defendants.” Id. at 1186. The apportionment provision of the Contribution Act is based on the same principle as Florida’s comparative fault statute, which is codified at section 768.81. Compare § 768.81(3), Fla. Stat. (1997) (providing that, in cases where the comparative fault statute applies, “the court shall enter judgment against each party liable on the basis of such party’s percentage of fault”) with § 768.31(3)(a) (providing that the tortfea-sors’ “relative degrees of fault shall be the basis for allocation of liability”). Therefore, the principles discussed in Fabre govern the determination of each party’s pro rata share of the entire liability in a contribution claim.

Here, the trial court erroneously focused on the liability UMC incurred in paying $5,950,000 in settlement to the Wilkinson Plaintiffs, instead of the liability incurred by all of the tortfeasors whose negligence contributed to Mrs. Wilkinson’s injury. The trial court was persuaded by UMC’s arguments that the FBOR physicians’ negligence was irrelevant to the contribution claim because none of the dollars UMC paid in settlement represented the physicians’ liability. UMC argued that its settlement represented the non-physician fault and that because UMC and StarMed were jointly liable only for the non-physician fault, the apportionment of fault between UMC and StarMed should be based only on the non-physician fault. This argument is not grounded in the language of the Contribution Act. The starting point for apportionment of fault under the Contribution Act is the sum of all the liability incurred by all of the tortfeasors responsible for the injury to the original plaintiff. The Act does not provide for separate amounts of “entire liability” based on the separate identities of the tortfeasors. Mrs. Wilkinson suffered one injury, which resulted from the culmination of the negligence of various caregivers, physician and non-physician alike. Thus, in apportioning fault among all of the tortfeasors who contributed to Mrs. Wilkinson’s injury, the trial court should not have accepted UMC’s subjective view that its settlement dollars paid for one part of the injury and FBOR’s settlement dollars paid for another part. If a person’s act or omission contributed to the original plaintiffs injury in any way, that person is to be counted as one of the parties responsible for the original plaintiffs injury, and that person’s degree of fault is to be assessed for the purposes of apportioning fault. Evidence of that person’s acts or omissions is relevant to determining the relative degrees of fault of all the tortfeasors, regardless of whether any party will actually be able to recover money damages from that person.

The trial court, as the trier of fact, should have considered StarMed’s evidence regarding the alleged negligence of the FBOR physicians in determining StarMed’s pro rata share of the entire liability. FBOR’s sovereign immunity should not have entered into the analysis. Because the trial court failed to consider StarMed’s evidence of the negligence attributable to FBOR, we are unable to determine whether StarMed was ordered to pay more than its pro rata share of the entire liability in violation of section 768.31(2)(b). Therefore, we reverse on this point.

B. The Valcin Presumption

StarMed also argues that the trial court erred in recognizing a presumption that the StarMed nurse was negligent based on the destruction of certain informal notes associated with Mrs. Wilkinson’s chart and nursing flowsheet. The presumption was derived from Public Health Trust of Dade County v. Valcin, 507 So.2d 596, 599-601 (Fla.1987), where the supreme court approved the application of a rebuttable presumption of negligence in cases where evidence that is “peculiarly within the knowledge of the adversary ... is not made available to the party which has the burden of proof.” To receive the benefit of the presumption, “a plaintiff must first establish to the satisfaction of the court that the absence of the [evidence] hinders his ability to establish a prima facie case.” Id. at 599. A trial court’s decision to impose the Valcin presumption is reviewed for abuse of discretion. Anesthesiology Critical Care & Pain Mgmt. Consultants, P.A. v. Kretzer, 802 So.2d 346, 349 n. 3 (Fla. 4th DCA 2001).

Here, the Valcin presumption was imposed because the StarMed nurse admitted she destroyed her informal notes relating to Mrs. Wilkinson’s care on May 5, 1997. According to the StarMed nurse’s testimony, she would typically keep informal notes on her patients and, when time permitted, transfer the information from her notes to her patients’ flowsheets and charts. She testified that she threw the notes away after putting the information in Mrs. Wilkinson’s chart. UMC argued that because Mrs. Wilkinson’s chart and flow-sheet were essentially blank, it needed the StarMed nurse’s informal notes to determine vital information such as Mrs. Wilkinson’s condition throughout the day and whether the StarMed nurse had administered IV fluids as ordered.

The trial court’s order reveals that, even without the notes, it had no difficulty concluding that the StarMed nurse was negligent for many reasons, including the failure to administer IV fluids. In fact, the trial court, as the trier of fact, expressly used the Valcin presumption only to “bolster” its conclusion, formed on the basis of other evidence, that the StarMed nurse was negligent. Thus, the trial court’s order itself reveals that UMC was able to establish a prima facie case of negligence on the part of the StarMed nurse without the nursing notes. Accordingly, the trial court abused its discretion in applying the presumption.

Ironically, our basis for finding error in applying the presumption shows why the error in this case was harmless. In a civil case, ,“[t]he test for harmful error is whether, but for such error, a different result may have been reached.” Katos v. Cushing, 601 So.2d 612, 613 (Fla. 3d DCA 1992). The trial court’s order reveals that it reached the conclusion that the StarMed nurse was negligent independently from its application of the presumption. Removing the presumption would not change the trial court’s findings. Therefore, harmless error occurred. We note the error only to assist the trial court in handling the Valcin issue should it arise again on remand.

III. Conclusion

The trial court erred in two respects: first, in refusing to consider evidence of negligence attributable to FBOR employees in determining StarMed’s pro rata share of the entire liability, and second, in applying the Valcin presumption, despite finding that UMC was able to prove a prima facie case of negligence against the StarMed nurse. Because the trial court arrived at the conclusion that the StarMed nurse was negligent without the assistance of the presumption, the recognition of the presumption was harmless. We reverse only as to the improper method of determining StarMed’s pro rata share. Accordingly, the Amended Final Judgment is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

WOLF and ROBERTS, JJ., concur.

      . Healthcare Staffing Solutions, Inc., the appellant, will also be referred to as "StarMed” for the purposes of this opinion.


text:
    Dwayne A. DEBOSE, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2143.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2009.
    Rehearing Denied April 2, 2009.
    Dwayne A. Debose, pro se, Appellant.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges a final order by which the trial court summarily denied his amended Florida Rule of Criminal Procedure 3.850 motion for postconviction relief raising seventeen grounds of ineffective assistance of trial counsel. Because we conclude that two of these grounds are facially sufficient, we reverse in part and remand for further proceedings.

In his seventh ground for relief, the appellant alleged, among other things, that his trial counsel was ineffective for failing to investigate or present certain medical evidence at trial that would have supported his assertion that he was subjected to excessive police force during the incident giving rise to the offenses at hand. In his twelfth ground for relief, he alleged that trial counsel was ineffective for failing to call a particular eyewitness to testify concerning this alleged excessive police force. We conclude that both claims are facially sufficient and reverse those portions of the order by which the trial court summarily denied them. We direct the trial court, on remand, to either attach portions of the record conclusively refuting these claims or to convene an evidentiary hearing to address the merits of these claims. The order is otherwise affirmed:

AFFIRMED in part, REVERSED in part, and REMANDED.

ALLEN, PADOVANO, and ROBERTS, JJ., concur.


text:
    Robert J. FRANCOIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3283.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2009.
    Robert J. Francois, pro se, Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal is treated as a petition for writ of prohibition and is denied.

This court issued an order directing appellant to show cause, pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), why he should not be barred from further challenging his conviction in Columbia County Circuit Court Case Number 99-637-CF, unless he were represented by counsel. We conclude from our review that appellant’s repetitive attacks on his conviction are an abuse of the legal process that has had and will have an adverse effect upon this court’s limited resources if the attacks are allowed to continue. Accordingly, we prohibit appellant from filing any further pro se pleadings in this court challenging his conviction in Columbia County Circuit Court Case Number 99-637-CF, regardless of the remedy sought or theory raised, unless he is represented in such proceeding by a member in good standing of The Florida Bar. We further direct the clerk of this court not to accept any additional pro se filings in this case from appellant.

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


author: WALLACE, Judge.

text:
    Leo BERUBE, a/k/a Leo Richard Berube, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5610.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2009.
    Rehearing Denied April 9, 2009.

      James Marion Moorman, Public Defender; Elizabeth C. Ramsey, Special Assistant Public Defender; and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Leo Berube appeals his judgment and life sentence for first-degree murder. He argues that the trial court erred when it allowed the State to present improper Williams rule testimony at his trial. Mr. Berube also argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence of premeditation. We find no merit in Mr. Berube’s claim that the trial court erred in denying his motion for judgment of acquittal. However, because the admission of the Williams rule testimony at Mr. Berube’s trial constituted harmful error, we reverse his judgment and sentence and remand for a new trial.

I. THE FACTS

Mr. Berube was charged with the murder by strangulation of a forty-two-year-old prostitute. The murder victim and her husband had become addicted to crack cocaine. As a result of their drug addiction, the couple had lost their jobs, their home, and most of their possessions. At the time of the murder, the couple had been living day-to-day in a motel located on U.S. Highway 19 in Pinellas Park for about two months. The couple’s only source of income was the victim’s earnings from prostitution.

On January 4, 2003, at approximately 3 a.m., someone strangled the victim with a cord from a lamp that hung near the bed in the couple’s motel room. Prior to this incident, the victim and her husband had been on a crack cocaine binge since New Years’ Day. About one hour before the victim was killed, the couple had exhausted both their funds and their supply of crack cocaine. The victim left the motel room to look for a customer. She encountered Mr. Berube, who had recently left a local bar. The victim solicited Mr. Berube, he accepted, and they returned to the motel room where the husband had remained.

According to the husband’s testimony, he customarily concealed himself in the bathroom while his wife entertained her customers. On the occasion that his wife was killed, he hid in the bathroom when he heard the door to the motel room begin to open. Inside the bathroom, the husband amused himself by smoking the cocaine residue from some drug paraphernalia while his wife was with her customer. The husband waited the usual period of time for his wife to complete her business. After some time passed, the husband heard a loud bump or a bang. He waited a few minutes and then shook the bathroom sink, which was a signal to his wife. However, the wife did not respond. A few seconds later the bathroom door handle jiggled. Then the lock “popped open” and the door — which opened into the bathroom— started to open.

The husband braced his foot against the door and swiped with a knife at a man standing on the other side of the door. The man retreated and told the husband, through the closed door, that he had given the victim something and that she was sleeping. The husband responded, “[J]ust get out of here and ... leave us alone.” The husband then started to leave the bathroom, but the man on the other side of the door warned him that if he came out he would kill him. After a few minutes, upon hearing the front door of the motel room open and close, the husband left the bathroom and found his wife’s naked body sprawled face up on the bed. She had been strangled to death with a lamp cord. The husband did not get a good look at the man on the other side of the bathroom door, and he did not identify Mr. Berube as that person.

The guests in the adjoining motel room also heard the single, loud bang on the wall. The impact that caused the noise had sufficient force to shake or dislodge a mirror on the wall in the adjoining tenants’ room. There were three persons in that room, a teenage boy, his mother, and her husband. Despite the lateness of the hour, the boy was awake, playing a video game. He heard the bang, saw the mirror fall, and heard a female voice whine and cry, “Help[!]” He opened the door to his motel room and saw a man leaving the victim’s room in a hurry. As the man hurried away, he looked at the boy. The boy noted that the man had a goatee and that his shirt was ripped and had blood on it. The boy closed the door and went back to bed. The adults in the room both testified that they were awakened by the noise. One of them observed that the victim and her husband were arguing again. Such arguments were a relatively common event, and the couple went back to sleep.

Pinellas Park police initially charged the husband with his wife’s murder. Several months later, law enforcement officers received the results of the DNA analyses of a blood smear on the wall above the bed in the motel room, blood found on the bathroom door frame, blood found on a wall lamp (the cord of which was used to strangle the victim), and a sample scraped from the victim’s fingernails. None of these four critical DNA samples matched the husband. However, Mr. Berube’s DNA was an exact match for the blood found on the wall above the bed, on the bathroom door frame, and on the wall lamp. In addition, although the DNA from the scrapings of the victim’s fingernails was not an exact match to Mr. Berube’s DNA profile, he could not be excluded as a contributor. The presence of the blood in the motel room was consistent with the laceration or scratch that Mr. Berube sustained to the top of his right hand that night.

Mr. Berube was also linked to the motel room by a pair of eyeglasses found on the bed near the victim’s body. An optician’s records confirmed that the eyeglasses had been fabricated for Mr. Berube. Later, during questioning by the police, Mr. Be-rube would admit his ownership of the eyeglasses. As a result of these developments, the murder charge against the husband was dropped and the police turned the focus of their investigation to Mr. Be-rube.

Mr. Berube did not take the stand on his own behalf at trial. Therefore, our record concerning his version of the events in question is limited to the statements that he made to police detectives in a videotaped interrogation. A slightly redacted version of the videotape was played for the jury at trial.

During police questioning, Mr. Berube initially vehemently denied ever going to the motel or meeting the victim on the night in question. Instead, he offered a tale about having been attacked by muggers that evening as he was walking down the street near the motel, returning home from a local bar. After the detectives revealed to Mr. Berube that his blood and eyeglasses had been found in the room, he changed his story. However, confronted with evidence placing him in the room, his explanations of the events of the evening in question varied widely, never coalescing into a single, coherent narrative.

Mr. Berube finally admitted entering the motel room with the victim for a consensual, paid sexual encounter, but he disputed the husband’s version of events. Mr. Berube’s initial story was that he entered the room with the victim, received oral sex, paid the victim $40, and then left. He denied that any altercation or argument had occurred and denied the detective’s suggestion that perhaps the victim had tried to rob him. He continued to insist that he was injured while being mugged after leaving the victim’s room. Later, he altered his story, saying that while he was with the victim, a man came out of the bathroom demanding, “What are you doing with my old lady?” In response to this, Mr. Berube claimed that he simply fled. Still later, Mr. Berube claimed that he responded to a noise coming from the bathroom by demanding to know who was there. He then tied the lamp cord around the victim’s wrists “to control her” while he investigated the noise in the bathroom. In one version of events, the husband came out, brandishing a knife in his left hand. Again, Mr. Berube claimed that he fled. In a later version, Mr. Berube claimed that the victim yelled to her husband that Mr. Berube had given her $40 but that he had more and that the husband should get it from him. Although initially denying any physical altercation with the husband, Mr. Berube then stated that the husband came at him with a knife. Mr. Berube responded by kicking the husband in the chest or stomach, and the husband retreated to the bathroom. With regard to his broken leg, Mr. Berube finally admitted that he had not been mugged at all and had broken his leg when he tripped while running from the scene.

Throughout the interview, Mr. Berube insisted that he did not remember being cut or scratched, despite incontrovertible evidence that his blood had been found at various locations in the motel room. Mr. Berube also insisted that the victim was alive, awake, yelling, and fully clothed when he left the motel room.

II. THE WILLIAMS RULE ISSUE

A. The Williams Rule Witnesses and Their Testimony

The State’s notice of intent to use similar crime evidence indicated it intended to introduce evidence of three prior incidents. The first incident involved Mr. Berube’s former girlfriend, C.C., with whom Mr. Berube had a child. C.C. claimed that Mr. Berube raped her in 1993, five months after they had separated. According to C.C., Mr. Berube tied her arms and legs and stuffed a rag in her mouth while raping her. C.C. reported the incident to the police, but Mr. Berube was never charged with a crime.

The second incident the State sought to introduce into evidence involved the murder of C.D. C.D. had been strangled in her home in August 1994. Mr. Berube was a suspect in that murder. During the investigation, he admitted to police that he had met C.D. at a local bar (the same bar he had come from the night of the victim’s murder) and accompanied her home. Mr. Berube admitted that he had engaged in consensual sexual relations with C.D. involving both vaginal and anal intercourse. He told police officers investigating the crime that when he heard a noise in the house, he grabbed his things and fled. Mr. Berube also claimed that C.D. was still alive when he left her home. No charges were ever filed in that case.

The third incident the State sought to admit into evidence concerned the rape of B.R. in December 1994. Prior to the incident in question, Mr. Berube and B.R. had been acquainted with each other. B.R. conceded that she and Mr. Berube had had consensual sexual intercourse at least once before the rape. During the attack, Mr. Berube suffocated B.R. to unconsciousness by covering her mouth and nose with his hands and then raped her anally. When B.R. regained consciousness, she began to struggle and tried to scream. Mr. Berube suffocated B.R. again by forcing her head into a pillow; then he raped her vaginally while she was unconscious. Mr. Berube was sentenced to twelve years in prison for this offense, and he was released in June 2002, about six months before the murder of the victim in this case.

The State’s notice of intent to use evidence of prior crimes stated that evidence of the three incidents would be relevant to show “a continuing plan, scheme or design; to meet the Defendant’s anticipated defense of accident, lack of intent, lack of motive and justifiable use of force; and to demonstrate a plan or pattern followed by the Defendant in committing this type of offense.” The defense filed a motion in limine to exclude the use of the Williams rule evidence. After a hearing at which both C.C. and B.R. testified, the trial court denied the defense motion in limine as to the incidents involving C.C. and B.R. but excluded the evidence concerning the unsolved murder of C.D.

The trial court ruled that the facts in the incidents involving C.C. and B.R. were “substantially similar and admissible to show a pattern or plan followed by the Defendant in committing this type of offense and to meet the Defendant’s anticipated defense of accident, lack of intent, motive[,] and justifiable use of force.” The trial court noted that C.C. and B.R. were restrained while being raped and that Mr. Berube had a preference for anal sex. The trial court found that the act of choking B.R. and the fact that Mr. Berube “stuffed a rag down [C.C.’s] throat” was evidence of motive and pattern of conduct, and was relevant to meet Mr. Berube’s anticipated defense of accident, lack of intent, lack of motive, and justifiable use of force. In excluding the evidence regarding the murder of C.D., the trial court stated, “It appears that the greatest effect of this evidence would be to establish the bad character or criminal propensity of Defendant. Even if the lower general standard in § 90.402[,] Fla. Stat.[,] were applied, the prior crime would still not be relevant.”

B. Analysis of the Williams Rule Issue

Section 90.404(2)(a), Florida Statutes (2002), which codifies Williams v. State, 110 So.2d 654 (Fla.1959), provides that a party may introduce similar crime evidence when it is “relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” In addition, the trial court should also exclude otherwise relevant evidence if the probative value of that evidence is outweighed by the danger of unfair prejudice. See § 90.403; Audano v. State, 641 So.2d 1356, 1359 (Fla. 2d DCA 1994) (“In determining the admissibility of collateral crime evidence, the trial court must make two determinations: (1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice.”).

The State’s notice of intent to use collateral crime evidence simply repeated the general language of the statute and was not tailored to the facts of this case. During the Williams rule hearing, the prosecutor argued that he filed the notice of intent to use prior similar act evidence because Mr. Berube had “set forth a defense that in this case as well [as] in three other cases, he intended certain conduct and that the victim ... was alive when he left. Identity is not the issue.” The prosecutor later added that it sought to enter the evidence, in part, to rebut Mr. Be-rube’s anticipated defense. The prosecutor explained the State’s position as follows:

The issue is under the Williams[ ] Rule case are we suggesting similar acts about people who are asphyxiated in some fashion involving sexual conduct when Mr. Berube says I had this conduct with them, but they’re alive when I leave them. He said it to everybody, every time, and he has been successful, except when he changed his plea in the [B.R.] case.
His initial statement was I had this sex with her, but it was consensual. Just because [B.R.] revived, didn’t die, is no fault of Mr. Berube.

Finally, the State argued that the evidence was relevant to rebut Mr. Berube’s defense “that the victims were alive when he left and also the general way in which the victims were killed.”

Florida courts have set a high standard of admissibility for similar fact evidence whether the fact at issue is identity or mistake or accident. See State v. Savino, 567 So.2d 892, 894 (Fla.1990) (“When the purported relevancy of past crimes is to identify the perpetrator of the crime being tried, we have required a close similarity of facts, a unique or ‘fingerprint’ type of information, for the evidence to be relevant.”). Additionally, “substantial similarity of crimes is a requirement when the [collateral crime] evidence is sought to be admitted for the specific purpose of establishing absence of mistake or accident.” Robertson v. State, 829 So.2d 901, 909 (Fla.2002).

The lack of specificity in the State’s notice of intent as well as the prosecutor’s comments reveal the State’s inability to articulate a clear and persuasive theory for presenting the desired Williams rule evidence. The most blatant flaw in the State’s logic is its argument that the testimony of the victims was necessary to rebut Mr. Berube’s anticipated defense “that the victims were alive when he left and also the general way in which the victims were killed.” Although the evidence concerning the murder of C.D. might have been relevant in this regard, the trial court excluded that evidence. However, with regard to the rapes of C.C. and B.R., this argument makes no sense. Simply put, the two rape victims were not killed. Second, the State’s claim that “identity is not the issue” is flatly wrong. A defense theory that the defendant was not there when the victim was murdered is a straightforward identity defense. Indeed, that was Mr. Berube’s main defense — -that he was not there at the time the victim was murdered.

The factual differences between the instant case and the two prior rape cases are many. Although B.R. was asphyxiated by covering her mouth, she was not strangled. C.C. was neither strangled nor asphyxiated in any fashion, despite the State’s repeated insinuations that she was. Although both women had been restrained — C.C. by the tying of her hands and legs, and B.R. by suffocation to the point of unconsciousness — neither of these victims had anything tied around her neck. Most important, of course, neither rape victim was murdered. As a result, we conclude that there was insufficient similarity between the facts in this case and the facts in the two prior rape cases to meet the relevancy test described in Savi-no.

The State further argues that the testimony of C.C. and B.R. was relevant because it tended to “rebut any contention that the victim died by accident as he engaged in the practice of erotic asphyxiation, since the evidence showed he used choking and other means of restraining his victims in order to control them and not for the purpose of heightened sexual gratification.” The State’s argument in this regard is vaguely supported by the facts: During his interrogation, Mr. Berube stated that the victim was screaming and that he grabbed her and threw her on the bed, tied her wrists, and told her to stay put, all in an effort to control her. He purportedly bound C.C. for the same reason and stuffed a rag in her mouth to keep her quiet (although there was no evidence that he choked her or restricted her breathing). He did not bind B.R.; instead, he twice suffocated her to the point of unconsciousness, ostensibly to keep her under control and quiet. Although Mr. Berube did allude to a possible scenario involving erotic asphyxiation, this occurred only in his motion for judgment of acquittal, when his defense counsel argued that the State had provided sufficient evidence of, at best, a charge of second-degree murder. In any case, this was not Mr. Berube’s primary theory of innocence.

With regard to the State’s argument that Mr. Berube’s treatment of C.C. and B.R. demonstrated a pattern or need to control or restrain his victims, we observe that the use of some means to confine and silence the victim is a feature of most rape cases. However, there was nothing distinguishing about the methods used to “control” the victims in the prior rape cases which could meet the requirement of “substantial similarity of crimes” necessary to establish absence of mistake or accident. See Robertson, 829 So.2d at 909.

Based on the above, we conclude that the testimony of the two rape victims did not bear any similarity or logical relationship to any material aspect of the crime for which Mr. Berube was being tried. As a result, the testimony of the two rape victims did nothing more than expose Mr. Berube’s bad character and his propensity to perpetrate sexual assaults against women with whom he had had a prior relationship.

C. Harmless Error Analysis

Having concluded that the admission of the Williams rule testimony was error, our next task is to decide if the error was harmless. § 59.041, Fla. Stat. (2008).

The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

The State’s proof of Mr. Berube’s identity as the killer included his presence at the scene, his inconsistent statements to the investigating officers, and the DNA evidence. But the State’s proof did not exclude the possibility that the victim’s husband or an unknown third person had actually strangled the victim. In fact, the State had initially charged the victim’s husband with the murder.

In considering the harmless error issue, we note that C.C. and B.R. were the State’s final witnesses at trial. Their testimony about the brutal attacks that they had endured at the hands of Mr. Berube was heart-rending. This testimony undoubtedly had a substantial impact on the jury. Furthermore, the prosecutor placed additional emphasis on the testimony of the two rape victims when he told the jury that the asserted similarities between the rape of B.R. and Mr. Berube’s encounter with the victim in this case proved that Mr. Berube was the killer. In light of the nature of the testimony from C.C. and B.R. and the State’s use of that testimony in closing argument, we are unable to conclude beyond a reasonable doubt that the admission of the testimony did not contribute to the verdict.

III. THE PREMEDITATION ISSUE

A. The Motion for Judgment of Acquittal

In his motion for a judgment of acquittal, Mr. Berube asserted that the evidence was sufficient — at best — to support a verdict of second-degree murder. In support of this claim, Mr. Berube argued that the State had failed to present evidence that the victim’s murder was premeditated. According to Mr. Berube, the evidence suggested that the victim had died accidentally as a result of erotic asphyxiation rather than from a conscious purpose to cause her death. The trial court denied the motion for judgment of acquittal, and the jury found Mr. Berube guilty of murder in the first degree as charged.

B. The Standard of Review

Sufficiency of the evidence to withstand a motion for judgment of acquittal is reviewed de novo. Pagan v. State, 880 So.2d 792, 803 (Fla.2002). When considering a motion for judgment of acquittal, the question is whether, “after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Fitzpatrick v. State, 900 So.2d 495, 507 (Fla.2005). In addition, the trial court’s finding on the issue of whether there is a prima facie case will be reversed on appeal only where the decision is unsupported by competent, substantial evidence. Orme v. State, 677 So.2d 258, 262 (Fla.1996).

C. Discussion of the Premeditation Issue

On appeal, Mr. Berube contends that the trial court erred in failing to grant his motion for judgment of acquittal. Mr. Berube contends that the evidence was insufficient to establish the element of premeditation. We disagree. However, before addressing his argument, we review the basic principles pertaining to premeditated murder:

Premeditation is the essential element which distinguishes first-degree murder from second-degree murder. Wilson v. State, 493 So.2d 1019 (Fla.1986). Premeditation is defined as
more than a mere intent to kill; it is a fully formed conscious purpose to kill. This purpose to kill may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.
Id. at 1021. While premeditation may be proven by circumstantial evidence, the evidence relied upon by the State must be inconsistent with every other reasonable inference. Hoefert v. State, 617 So.2d 1046 (Fla.1993). Where the State’s proof fails to exclude a reasonable hypothesis that the homicide occurred other than by premeditated design, a verdict of first-degree murder cannot be sustained. Hall v. State, 403 So.2d 1319 (Fla.1981).

Coolen v. State, 696 So.2d 738, 741 (Fla.1997).

In the trial court, Mr. Berube argued that the State failed to prove premeditation because the evidence showed that the victim could have died accidentally as a result of erotic asphyxiation. The trial court properly rejected this argument. There was no evidence before the trial court that either Mr. Berube or the victim had ever engaged in that practice. Cf. Randall v. State, 760 So.2d 892, 901-02 (Fla.2000) (concluding that the evidence presented, which included testimony concerning the defendant’s history of choking women to heighten sexual arousal, did not support a verdict finding the defendant guilty of the premeditated murder of two women who died as a result of asphyxia by manual strangulation). More important, we conclude that the evidence in this ligature strangulation case was sufficient to support a jury finding that the victim’s killing was premeditated.

Some jurisdictions hold that the length of time necessary to produce death by strangulation is sufficient by itself to support a jury finding of premeditation in a prosecution for murder in the first degree. See Perez-Ortiz v. State, 954 So.2d 1256, 1259 (Fla. 5th DCA 2007) (collecting cases); Dupree v. State, 615 So.2d 713, 718 n. 1 (Fla. 1st DCA 1993). This view does not prevail in Florida. On the contrary, the Florida courts deem evidence of killing by strangulation alone to be insufficient to support a jury finding of premeditation. See Bigham v. State, 995 So.2d 207, 212-13 (Fla.2008); Randall, 760 So.2d at 901-02; Green v. State, 715 So.2d 940, 941, 943-44 (Fla.1998); Hoefert v. State, 617 So.2d 1046, 1048-49 (Fla.1993); Perez-Ortiz, 954 So.2d at 1259. However, evidence of strangulation, in conjunction with one or more additional facts indicating that the killer had time to reflect upon his actions and to form a conscious purpose to kill, justifies submitting the question of premeditation to the jury for its determination. See Dupree, 615 So.2d at 718 n. 1. In this case, we find two such additional facts.

First, the medical examiner testified that with a constant, even pressure and no movement by the victim, it takes at least two to three minutes to kill a person by strangulation. The evidence at trial showed that there were at least five distinct ligature marks on the victim’s neck. This fact is consistent with movement of the lamp cord during a struggle, i.e., each time the victim moved, her assailant lost his grip and had to reposition the cord. Consequently, the time necessary to cause the victim’s death was extended each time the cord was released and reapplied, giving the killer additional time to reflect on his actions and their probable effect on the victim. We conclude that the repetitive nature of the killer’s actions in repositioning the cord multiple times to begin the strangulation process anew is a factor from which the jury might properly infer premeditation. In several cases, Florida courts have held that sequential or successive acts by the killer directed toward achieving the asphyxiation of the victim are probative of premeditation. See Johnston v. State, 863 So.2d 271, 285-86 (Fla.2003) (finding evidence sufficient for the jury to find premeditation where “the strangulation in this case was not a constant, continuous compression, but was ‘more of a manual throttling ... meaning it was more pressure, release, pressure, release’ ” (omission in original)); Blackwood v. State, 777 So.2d 399, 406-07 (Fla.2000) (finding evidence sufficient to support jury finding of premeditation where defendant had suffocated the victim by both manual and ligature - strangulation, placing soap and a washcloth in the victim’s mouth, and putting a pillow over the victim’s face); DeAngelo v. State, 616 So.2d 440, 441-42 (Fla.1993) (concluding that the evidence supported the jury verdict of first-degree premeditated murder where the defendant had not only strangled the victim manually but also choked her with a ligature); Perez-Ortiz, 954 So.2d at 1259-60 (holding that the issue of premeditation was properly submitted to the jury where the defendant first strangled the victim and then drowned her in a tub of water).

Second, the State presented substantial evidence of an intense struggle between the victim and her assailant. The medical examiner noted contusions on the side of the victim’s neck, her left elbow, and her thigh. Mr. Berube’s blood — most likely from his lacerated right hand — was found on the wall over the victim’s head, very near the wall lamp, the cord of which was used to strangle the victim. Taken as a whole, the evidence was consistent with a scenario in which Mr. Berube was positioned over the victim’s head and brushed or bumped against the wall during a struggle. The DNA from the victim’s fingernails, for which Mr. Berube could not be excluded as a contributor, would support an inference that the victim fought to pull her assailant’s arms or hands away from her neck. At some point, the victim cried for help, but her plea went unheeded. We conclude that the evidence of a struggle occurring shortly before or during the killer’s time-consuming process of suffocating the victim is an additional fact supporting the jury’s finding of premeditation. Proof of a struggle between the killer and the decedent in a case of murder by strangulation constitutes evidence which will support a jury finding of premeditation. See Johnston, 863 So.2d at 285-86 (finding proof sufficient for a jury to conclude that murder was premeditated where the evidence showed that the decedent struggled with her assailant and attempted to pull his hands from her face); Conde v. State, 860 So.2d 930, 943 (Fla.2003) (holding that the jury could properly conclude that the defendant’s murder by strangulation of the decedent was premeditated where the evidence showed that the defendant spent considerable time with the decedent before attacking her and that she struggled during the attack); Blackwood, 777 So.2d at 403-07 (finding that evidence of a struggle, together with other facts, was sufficient to support a jury finding of premeditated murder of a victim who was strangled to death); Holton v. State, 573 So.2d 284, 289 (Fla.1990) (finding proof sufficient to establish premeditation where the victim of a strangling had long fingernails and the defendant had fresh scratch marks on his chest the day after the murder, suggesting a struggle); Dupree, 615 So.2d at 717-19 (finding that evidence was sufficient for the jury to infer premeditation where the victim had been beaten prior to being strangled and scuffs marks on the ground at the scene of the killing suggested that a struggle had taken place).

In summary, the State presented evidence — in addition to the bare fact that the victim was strangled to death — tending to show premeditation. This evidence consisted of (1) the repositioning of the cord around the victim’s neck multiple times and (2) the ample physical evidence indicating that the victim’s strangulation occurred during or immediately after an intense struggle between the killer and the victim. We conclude that this evidence was sufficient for the jury to find beyond a reasonable doubt that the victim’s murder was premeditated. Accordingly, the trial court did not err in denying Mr. Berube’s motion for a judgment of acquittal on the charge of murder in the first degree.

IY. CONCLUSION

For the foregoing reasons, the trial court erred in admitting the Williams rule evidence at Mr. Berube’s trial and that error was not harmless. We reverse Mr. Berube’s judgment and sentence and remand this case to the trial court for a new trial on the charge of murder in the first degree.

Reversed and remanded for a new trial.

LaROSE, J., and CANADY, CHARLES T., Associate Judge, Concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . The father testified that the mirror shook violently, but did not fall. The mother testified that her son told her that the mirror “was falling off the wall.” The boy testified that his parents did not wake up. All three agreed that the time was about 3 a.m.

      . The teenage boy was later shown a photo pack, from which he identified a man with a goatee. The record is unclear concerning whether he actually identified Mr. Berube as the man he saw leaving the adjoining motel room in a hurry.

      .Shortly after leaving the victim’s motel room, Mr. Berube tripped and broke his leg. Mr. Berube was taken to a hospital emergency room for the treatment of his broken leg at approximately 6 a.m. on the morning that the victim was murdered. A report in the emergency room treatment record noted a laceration on the top of his right hand.

      . Mr. Berube told a similar tale to personnel at the hospital emergency room to explain how he had sustained a broken leg.

      . There were multiple ligature marks around the victim’s neck but there was no evidence that her wrists had been bound. During the Williams rule hearing, the State claimed that Mr. Berube admitted putting the cord around the victim's neck. Mr. Berube does not appear to dispute this. However, it is not clear from the transcript of the videotaped interrogation in our record if Mr. Berube actually made such an admission.

      . The husband stated that the victim was naked, on her back, on the bed when he found her. This was the position of the victim's body when the police arrived.

      . The trial court was correct in excluding evidence concerning C.D.’s murder, but not for the reasons stated by it. Before evidence of a collateral act may be admitted, the State must prove by clear and convincing evidence that the defendant committed the act. See McLean v. State, 934 So.2d 1248, 1256 (Fla.2006). In this regard, "mere suspicion is insufficient.” State v. Norris, 168 So.2d 541, 543 (Fla.1964). At the Williams rule hearing, the State proved only that C.D. had been murdered and that Mr. Berube had been named as a suspect in the unsolved murder investigation. However, Mr. Berube was never charged with the murder, and the State did not establish by clear and convincing evidence that he had killed C.D. For that reason, evidence concerning the C.D. murder was inadmissible at Mr. Berube's trial. Contrary to the trial court's analysis, if the State had been able to establish by clear and convincing evidence that Mr. Berube had murdered C.D., evidence concerning that crime would have been the only one of the three crimes the State sought to admit that might have been relevant and admissible under section 90.404(2)(a).