author: MAKAR, J.

text:
    Jannette RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4504.
    District Court of Appeal of Florida, First District.
    June 14, 2012.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   MAKAR, J.

Jannette Ramos appeals her conviction and sentence for aggravated manslaughter of a child following the drowning death of her infant son in a retention pond close to her apartment. We affirm.

The only issue meriting discussion is whether the totality of Ramos’s acts, and failures to act, establish the culpable negligence necessary to sustain her conviction for manslaughter of a child.

Florida imposes upon parents the responsibility to superase and protect their children who are too young to care for themselves. Machin v. Walgreen Co., 835 So.2d 284 (Fla. 3d DCA 2002). Here, the legal responsibility for the care of the youngest of Ramos’s five children, Nathan Cook, nineteen months old at the time he drowned, fell squarely upon her as his immediate caregiver. Mere negligence in the care of one’s young child doesn’t necessarily amount to culpable negligence. Things happen in the care of young children that are unexpected even by experienced parents; a one-time accident or misfortune that could not be reasonably expected to result in serious harm, without more, does not generally transform a parent into a culpably negligent criminal. Close legal questions arise, however, because each tragic case involves the confluence of an innocent child’s death and a bereaved parent, whose degree of care, neglect, indifference, or callous disregard is measured against societal norms and expectations under the circumstances. What some judges might deem culpable negligence by a parent might be insufficiently egregious to others. See, e.g., Edwards v. State, 755 So.2d 443 (Miss.App.1999) (reversing, over a dissent, the culpable negligence manslaughter conviction of parents in the death of their four-year-old who drowned during camping trip due to insufficient evidence of culpable negligence). For this reason, we have reviewed the record closely to determine whether the jury was presented with sufficient evidence to believe Ramos was culpably negligent under the law.

In Florida, culpable negligence is a “gross and flagrant” violation of a duty of care that causes injury, a course of conduct showing “reckless disregard of human life,” “such wantonness or recklessness” as to equal the intentional violation of the rights of others, or an “entire want of care” raising “the presumption of indifference to consequences.” Preston v. State, 56 So.2d 543, 544 (Fla.1952); Fla. Std. Jury Instr. (Crim.) 7.7. We evaluate the totality of the circumstances, as reflected in the record, in determining whether the facts presented constitute culpable negligence. Behn v. State, 621 So.2d 534, 537 (Fla. 1st DCA 1993). If the evidence is sufficient to establish a jury question regarding whether Ramos was culpably negligent, we must affirm. State v. Nowlin, 50 So.3d 79, 81 (Fla. 1st DCA 2010) (existence of a jury question precludes dismissal).

The initial impression of the detective investigating Nathan’s death was that it was accidental. But that impression was quickly erased. Several of Ramos’s neighbors came forward to tell of many repeated instances of Ramos’s failure to supervise Nathan in the months preceding his death. The neighbors were not surprised to learn that Nathan had died; they described the situation as a tragedy waiting to happen.

The testimony regarding Ramos’s neglect of Nathan was plentiful. Seven neighbors testified at trial that Nathan would frequently “escape” from Ramos’s second floor apartment, crawling down the outside stairs and going near the retention pond, placing the infant at serious risk. Frequently, neighbors saw Nathan descend the stairs from Ramos’s apartment by himself, unsupervised. Sometimes Nathan scooted down the stairs unfazed, but neighbors also saw him fall down the stairs and hit his head on the ground on multiple occasions.

One neighbor recounted two separate incidents where Nathan was unsupervised and roaming alone, requiring her to intervene and return him to Ramos’s apartment. The first time, the neighbor found Nathan wandering, alone, clothed only in a diaper, beside the retention pond. She took Nathan home to discover the apartment door wide open and Ramos nowhere to be found; only after the neighbor entered the apartment and called out several times did Ramos appear, talking on her mobile phone and wholly unaware that Nathan had been outside. The same neighbor found Nathan near the retention pond a second time and took him home, located on the other side of the building, where Ramos was simply standing around with other adults.

Another neighbor testified that, five to ten times, she found Nathan alone and unsupervised outside of the apartment, having “bounced down the stairway” from his second floor apartment. Each time she returned Nathan to his home, the front door would be open. Ramos never accepted responsibility, always casting blame on one of her other children for allegedly leaving the door open. Several other witnesses told similar stories: they found Nathan wandering outside, returned him to the apartment with its door open and Ramos oblivious to whether Nathan was missing. Many times Ramos would simply not bother to physically take control of Nathan upon his return; instead, she was preoccupied or too busy to do so — using the computer or talking on the phone. In fact, some neighbors reported that none of Ramos’s children, including Nathan, were ever supervised while they played outside.

Yet another neighbor noticed Nathan, while scampering around the pool at the apartment complex, fall into the spa area; a maintenance worker had to rescue him. Ramos did not notice that her child had fallen into the water or appear at the pool until the neighbor reported that Nathan was unsupervised in a risky area.

On the day of Nathan’s death, a witness thought he saw three turtles in the pond, but realized his error twenty to forty-five minutes later when he saw a distraught Ramos with Nathan on the shore of the pond where the “turtles” had been. As had occurred so often before, the apartment door was open, Nathan had wandered out one last time, and ultimately fell to his death in the retention pond.

Ramos argues that this evidence, as a whole, cannot support a finding that she acted with culpable negligence; she claims her motion for judgment of acquittal should have been granted. We disagree. Applying a de novo standard, we review the evidence in a light most favorable to the State, drawing all reasonable inferences in its favor. Jones v. State, 790 So.2d 1194, 1196-97 (Fla. 1st DCA 2001).

The totality of the circumstances encompasses events both on the day of Nathan’s death and at times leading up to that day, if they are relevant to show Ramos was culpably negligent. We have little pause to conclude that the totality of Ramos’s conduct was sufficient to create a jury question of whether she was culpably negligent in breaching her duty of care toward Nathan by allowing him repeatedly to wander, unsupervised, near the retention pond. Ramos argues that evidence of her numerous failures to supervise Nathan on many previous occasions cannot establish her culpable negligence on the day of Nathan’s death (when she was in the shower, allegedly leaving Nathan’s care in the hands of a very young sibling). Had this been a single isolated incident — without the history of Ramos’s repeated indifference and inaction as to Nathan’s safety — it might fall short of a “gross and flagrant” violation of a duty of care under a culpable negligence standard. Evidence of past neglect and indifference, however, is relevant to show that Ramos acted wantonly and recklessly on a continuous basis, exhibiting a pattern that she was indifferent to the dangerous and ultimately deadly consequences of her actions. The jury was entitled to make the reasonable inference that, after the many previous close calls and despite the many altruistic attempts of neighboring Good Samaritans, Ramos exhibited a degree of behavior that established a “gross and flagrant” -violation of a duty of care for Nathan or, alternatively, an “entire want of care” that created a presumption of indifference to the consequences of her conduct. A single lapse of judgment on a single day may be insufficient to show an “entire want of care,” but the evidence here shows a recurring series of increasingly disturbing lapses. This evidence was sufficient to create a jury question, under the totality of the circumstances, that Ramos had engaged in culpable negligence that breached her duty to supervise and protect Nathan.

We also conclude that Ramos’s culpable negligence caused Nathan’s death, and the exact length of time that Nathan was outside the apartment does not change our conclusion. It is undisputed that he was seen face-down in the water at least twenty minutes before he was retrieved from the pond. While a momentary one-time lapse of judgment by a parent ordinarily would not suffice to establish culpable negligence that is the legal cause of a child’s death, Ramos’s overall and ongoing pattern of gross indifference does. This lamentable pattern entitled the jury to find that Ramos was culpably negligent and caused Nathan’s death. Ramos’s conviction and sentence for aggravated manslaughter of a child is AFFIRMED.

WOLF and RAY, JJ., concur.

      . Manslaughter is committed by act, by procurement, or by culpable negligence. § 782.07(a), Fla. Stat. (2012). To prove manslaughter by culpable negligence, the State must prove (1) the fact of the death and (2) a causative link between the death and the culpable negligence of the defendant. Jefferies v. State, 849 So.2d 401, 403 (Fla. 2d DCA 2003); § 782.07, Fla. Stat. (2009). Additionally, the death must not be the result of justifiable or excusable homicide. Id. Because this case involves aggravated manslaughter of a child, the State was additionally required to prove that (1) the deceased was under 18 and (2) defendant was a caregiver for him. § 782.07, Fla. Stat. (cross-referencing § 827.03(3)).

      . See Fla. Std. Jury Instr. (Crim.) 7.7, Manslaughter (2012) (defining excusable homicide to include “[wjhen the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent”); but see § 827.03(a), Fla. Stat. (2012) ("Neglect of a child may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.”). Florida's legislature has assigned heightened point levels for the crime of aggravated manslaughter of a child. § 921.0022, Fla. Stat. (2012) (classifying aggravated manslaughter of a child as a level 10 offense, higher than any other form of aggravated manslaughter).


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Curtis E. DUNN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5009.
    District Court of Appeal of Florida, Second District.
    June 15, 2012.
   NORTHCUTT, Judge.

Curtis E. Dunn, Jr., appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he presented one ground for relief. We affirm the postconviction court’s denial of Dunn’s claim but do so without prejudice for Dunn to refile his claim pursuant to the requirements of rule 3.800(a). In addition, we reverse the court’s finding that the motion was frivolous and successive as well as the court’s referral of Dunn to the Department of Corrections (DOC) for disciplinary sanctions.

On March 6, 1984, Dunn was sentenced to thirty years’ imprisonment for robbery, sixty years for burglary with an assault, ten years for grand theft, and ten years for grand theft of a motor vehicle. In addition, Dunn was sentenced as a Habitual Felony Offender (HFO) pursuant to section 775.084, Florida Statutes (1983), and all of his sentences were ordered to run consecutively. Dunn has since filed a rule 3.850 motion, a rule 3.800(c) motion, and four rule 3.800(a) motions.

In the present motion, Dunn alleged that his sentences should run concurrently, as consecutive HFO sentences for offenses arising out of a single criminal episode are in violation of Hale v. State, 630 So.2d 521, 525 (Fla.1993). In support, Dunn claimed that the information, police reports, and testimony from trial transcripts would establish that all of his charges occurred during a single criminal episode. He pointed out that he previously raised this claim, only to have it denied by the post-conviction court based on the erroneous finding that such a claim must be raised pursuant to rule 3.850, and that consideration under rule 3.850 would be impossible due to the two-year time bar. See Hubbard v. State, 773 So.2d 87, 88 (Fla. 2d DCA 2000). See also Speas v. State, 887 So.2d 416 (Fla. 2d DCA 2004) (noting that a Hale claim may be raised in a motion pursuant to rule 3.800(a)); but see Calla-way v. State, 642 So.2d 636 (Fla. 2d DCA 1994) (holding that “a sworn motion pursuant to rule 3.850 is the appropriate method for resolution” of Hale issue).

Pointing to its previous denial of this claim, the postconviction court found that Dunn’s current motion was malicious, successive, and an abuse of process. The court further noted that, for whatever reason, Dunn had failed to appeal the previous order. The postconviction court attached the previous order, which was indeed a denial based on the finding that the issue was a mixed question of law and fact that must be addressed pursuant to rule 3.850. However, rule 3.850 is not the exclusive means by which a defendant can attack his illegal, consecutive habitual offender sentences.

Rule 3.800(a) provides for the correction of an illegal sentence as long as the records demonstrate on their face that a defendant is entitled to the relief requested. State v. Mancino, 714 So.2d 429, 433 (Fla.1998). As such, the postconviction court erred in finding that it could only consider Dunn’s claim under rule 3.850. But to meet the requirements of rule 3.800(a) with respect to a Hale claim, Dunn had to identify with particularity the nonhearsay record documents that demonstrate that his sentences were for offenses committed in a single criminal episode. See Speas, 887 So.2d at 417-18; Harris v. State, 875 So.2d 735, 736 (Fla. 2d DCA 2004). Dunn’s current claim, which includes references to the information, police reports, and testimony from trial transcripts, fails to meet this standard. Police reports and the information do not qualify as nonhearsay record documents, see Wachter v. State, 868 So.2d 629, 630 (Fla. 2d DCA 2004), and Dunn’s reference to the transcript is vague and conelusory.

Although the reasons for the postconviction court’s denial are legally incorrect, Dunn’s Hale claim is facially insufficient and should not have been denied either on the merits or as successive. Therefore, we affirm the postconviction court’s denial without prejudice for Dunn to refile this claim with the necessary specific references to the record. Such a motion shall not be considered successive. Accordingly, we reverse the postconviction court’s finding that Dunn’s motion was frivolous and successive. On remand, the postcon-viction court shall retract its referral of Dunn to the DOC for disciplinary sanctions related to the filing of this motion.

Affirmed in part; reversed in part; remanded.

KHOUZAM and MORRIS, JJ., Concur.


author: BLACK, Judge.

text:
    Kenneth J. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4570.
    District Court of Appeal of Florida, Second District.
    June 15, 2012.

      Kenneth J. Davis, pro se.
   BLACK, Judge.

Kenneth J. Davis appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, in which he raised six claims for relief. We reverse and remand for further proceedings as to claims one and two but affirm as to the remaining claims without further comment.

Davis was convicted of six charges: felonious possession of firearms, sale of cocaine, sale of marijuana, possession of cocaine (two counts), and possession of marijuana. In his timely motion for post-conviction relief, Davis alleged in claim one that counsel was ineffective for failing to object to the admissibility of the drug evidence. In claim two, he alleged that counsel was ineffective for failing to “aggressively” cross-examine one of the police officers on the drug evidence. Specifically, Davis alleged that the total weight of the suspected marijuana and crack cocaine shown in the police reports was 223.4 grams and 4.8 grams, respectively, whereas the results of the lab analysis showed 101.0 grams and 0.9 grams. Davis’s computations are consistent with the police reports and lab documentation attached to his motion.

The postconviction court summarily denied the claims,, attaching portions of the trial transcripts. The court points out that the lab chemist took samples of each of the substances to test them rather than testing the entire mass of the substances. However, the fact that the chemist analyzed samples does not explain the weight differentials. The chemist’s written report also lists the respective weights of the several drug items. The court also notes that weights testified to by the chemist exclude the weight of the packaging. But nothing in the police documentation implies that the weights shown are inclusive of packaging.

Finally, as for claim two, the court pointed out that counsel did question the detective on various other apparent inconsistencies in the evidence. However, the fact that counsel pursued other inconsistencies but not the inconsistency in drug weights is irrelevant to that particular issue.

In short, the record before us does not refute Davis’s claim that the suspected drugs were tampered with and that trial counsel failed to address the apparent tampering. See Dodd v. State, 587 So.2d 626, 628 (Fla. 3d DCA 1988) (“On this record we cannot tell whether the cocaine [the appellant] sold and the cocaine introduced at trial are one and the same. Thus, it was error for the trial court to admit the cocaine into evidence without [additional] testimony....”); Monroe v. State, 13 So.3d 1083, 1084-85 (Fla. 2d DCA 2009) (relying on Dodd to reverse and remand on a rule 3.850 claim concerning a discrepancy in drug weights indicative of probable tampering). We therefore reverse the denial of claims one and two and remand for the postconviction court to provide record attachments that conclusively refute these claims or to conduct an evi-dentiary hearing.

Affirmed in part, reversed in part, and remanded.

WHATLEY and WALLACE, JJ., Concur.

      . The police documentation lists five separate items of suspected marijuana with "Qty" designations indicating 6.2, 88.5, 115.3, 3.6, and 9.8 grams for a total of 223.4 grams. The lab summary shows three items of marijuana weighing 23.5, 47.6, and 30.2 grams for a total of 101.3 grams. The police documentation lists three separate items of suspected crack cocaine weighing 0.2, 3.5, and 1.1 grams for a total of 4.8 grams. The lab summary shows two items, one weighing 0.9 gram and the other unweighed.

      . The detailed entries in the police documentation for each item of the suspected drugs show a "Qty" in grams, and most entries list a larger weight in grams with the label “TBW.” The ‘‘Qty” entries thus appear to be net weights.


author: PALMER, J.

text:
    Juan HIM, Appellant, v. FIRSTBANK FLORIDA, et al., Appellees.
    No. 5D10-3728.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.

      David D. Sharpe, Law Office of Dario Diaz, P.A., Tampa, for Appellant.
    Otto E. Berges and Cherish A. Thompson, Thomas Berges, P.A., Miami, for Ap-pellee.
   PALMER, J.

Juan Him (defendant) appeals the trial court’s order denying his motion to quash service of process. Determining that Firstbank Florida failed to properly obtain service of process on the defendant, we reverse.

A specific power of attorney was executed by the defendant, appointing Jorge Gu-rian to act on the defendant’s behalf in the purchase of a condominium. Gurian used the power of attorney to execute closing documents, including a promissory note and mortgage. Firstbank Florida, the holder of the note and mortgage, subsequently filed a complaint against the defendant for breach of guaranty. Service of process was made on Gurian. The defendant did not respond to the complaint, and a default was entered against him. The defendant moved to quash service of process (which, if granted, would have resulted in vacating the default), asserting that he did not authorize Gurian to accept service on his behalf. The trial court denied the motion.

The defendant contends that the service of process was invalid because the power of attorney did not authorize Gurian to accept service on his behalf. We agree.

“A power of attorney must be strictly construed and the instrument will be held to grant only those powers which are specified.” Dingle v. Prikhdina, 59 So.3d 326, 328 (Fla. 5th DCA 2011). Here, the power of attorney provided as follows:

JUAN HIM
... has made, constituted and appointed, and by these presents does make, constitute and appoint:
JORGE GURIAN
as my true and lawful attorney for me and in my name, place and stead, giving and granting unto the said JORGE GU-RIAN, my said attorney, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes and as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that said attorney or substitutes shall lawfully do or cause to be done by virtue hereof with respect to: the making, executing, accepting, delivering of any warranty deed, quit claim deed, other deed, contract, paper, mortgage, note, guaranty, satisfaction of mortgage, closing statement or other documents or papers including but not limited to any documents required by First Bank Florida concerning the purchase of the following property ...:
Condominium Unit 622, BERMUDA DUNES PRIVATE RESIDENCES....
I, the undersigned, hereby grant to JORGE GURIAN, my said attorney, full power and authority to carry out any and all acts or deeds, mortgages, contracts and to execute any and all other papers or closing documents which are necessary and required to effectuate any transaction concerning the aforementioned real property.

This power of attorney did not expressly authorize Gurian to accept service of process on behalf of the defendant. Additionally, the instrument only authorized actions “concerning the purchase of,” or “which [were] necessary and required to effectuate any transaction concerning,” the condominium. Because the language of the power of attorney was specific to the purchase of the condominium and did not expressly mention service of process, it did not authorize Gurian to accept service on behalf of the defendant.

We reject Firstbank Florida’s contention that it was entitled to an evidentiary hearing on a disputed issue of fact concerning whether Gurian represented that he had authority to accept service. Parol evidence was not admissible regarding whether the defendant intended to authorize Gurian to accept service because any ambiguity in the power of attorney is resolved by the rule of strict construction.

REVERSED and REMANDED.

SAWAYA and JACOBUS, JJ„ concur.

      . Appellate jurisdiction is proper pursuant to rules 9.030(b)(1)(B) and 9.130(a)(3)(C)(i) of the Florida Rules of Appellate Procedure.


author: PER CURIAM.

text:
    Donald ADAMSON, Appellant, v. AURORA LOAN SERVICES, LLC, et al., Appellee.
    No. 5D11-2748.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.
   PER CURIAM.

AFFIRMED. See U-M Pub., Inc. v. Home News Pub. Co., Inc., 279 So.2d 379, 381 (Fla. 3d DCA 1973) (holding judicial sale will not be set aside due to slight defects or for merely technical, formal or unimportant irregularities).

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, etc., Appellant, v. William STURDIVANT and Annette Sturdivant, Appellees.
    No. 5D11-1584.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.

      G. William Bissett, Jr., of Kubicki Draper, P.A., Miami, and Michael C. Clarke, Courtney A. Umberger and Betsy E. Gallagher, of Kubicki Draper, Tampa, for Appellant.
    Alan S. Wachs, Chris T. Harris and Michael M. Giel, of Volpe, Bajaba, Wickes, Rogerson & Wachs, P.A., Jacksonville, for Appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Pursuant to the confession of error filed by appellees, William and Annette Sturdi-vant, we reverse the Order Awarding Taxable Costs and Supplemental Judgment as to Attorneys’ Fees and Costs entered against Florida Insurance Guaranty Association (FIGA).

REVERSED.

PALMER, MONACO and SAWAYA, JJ., concur.


author: SWANSON, J.

text:
    Peter M. TYDIR, Appellant, v. Mark R. WILLIAMS, Sr., and General Mechanical Corporation, a Florida Corporation, Appellee.
    No. 1D11-5659.
    District Court of Appeal of Florida, First District.
    June 18, 2012.
    Peter A. Robertson and Kristin Davis, of The Robertson Firm, St. Augustine, for Appellant.
    John S. Cooper of the Cooper Law Firm, P.A., Starke, for Appellee.
   SWANSON, J.

Appellant, Peter M. Tydir, appeals a final judgment entered in accordance with the jury’s verdict finding he breached an oral agreement with appellee, Mark R. Williams. We affirm without further discussion Tydir’s first point on appeal. However, because we agree with Tydir’s arguments made under Points II and III, that Williams’ claim was barred by the statute of frauds, we conclude the final judgment must be reversed.

At all times relevant to the instant case, Tydir owned General Mechanical Corporation, d/b/a GMC Construction, based in Daytona Beach, Florida, and Williams owned M & R Fabricators, located in Gainesville, Florida. GMC hired M & R Fabricators to perform work in two capacities: to manage GMC’s Gainesville-area projects and to perform work on some of those projects as a subcontractor. GMC paid M & R for the work performed as follows: a fixed amount was paid twice monthly for the management services rendered, while pay applications were submitted by M & R to GMC for the construction projects it worked on as GMC’s subcontractor. M & R performed this work for GMC for several years beginning in the late 1990’s. However, in March 2009, Ty-dir terminated this business arrangement and, shortly thereafter, Williams filed suit against Tydir and GMC alleging the breach of “a valid oral agreement/contract wherein [Williams] earned a percentage of the gross profit earned by [Tydir’s] Gainesville operations.” Although the complaint contained several counts, for our purposes in the present appeal we address only Williams’ first count in which he alleged Tydir and GMC breached their agreement “by failing to pay [Williams] those sums earned, or use said sums to create and capitalize a business entity wherein [Williams was to] own[] a 50% interest.” Tydir denied the existence of this alleged oral profit-sharing agreement to create a new business entity and also affirmatively defended on the basis that any such agreement violated the statute of frauds.

At trial, according to Williams’ testimony, in 2005 he and Tydir engaged in discussions which contemplated the two ultimately becoming equal partners in a new construction business to be operated out of Gainesville. To acquire the necessary start-up funds for the new company, Tydir, according to Williams, planned that a percentage of gross profits from any job run out of Williams’ Gainesville office would be set aside in an escrow account and would be matched by funds from Tydir. The amounts set aside would increase by ten percent increments over a period of at least five years until the two had enough money for the new company to be financially stable. Unfortunately, by the end of 2008, the relationship between Tydir and Williams began to cool, and in 2009, Tydir sent Williams the aforementioned letter terminating Williams’ services and accusing him of misconduct, misappropriation of funds, and pulling permits in GMC’s name.

At the conclusion of Williams’ case-in-chief, Tydir moved for a directed verdict on all counts, arguing the evidence showed the five-year oral contract was barred by the statute of frauds and that no exception to the statute existed. The trial court reserved ruling and took the matter under advisement. After Tydir presented his defense, during which he denied ever having had a profit-sharing plan or any conversations with Williams about creating a new company, he renewed his motion for directed verdict, but the trial court, yet again, reserved ruling thereon. Upon the conclusion of Williams’ rebuttal, Tydir once more moved for a directed verdict, and, for a third time, the trial court reserved ruling.

The cause was argued before the jury and, during its deliberations, the jury submitted the following question to the trial court: “1(b)?” This epigrammatic query concerned interrogatory 1(b) on the verdict form which read, “Is the agreement to be performed within one year from the making thereof?” Despite the jury’s evident confusion, the trial court declined to elaborate, instead informing the jurors they were to rely on the rules of law on which they had been instructed and to answer the questions on the verdict form based on that law. Without further incident, the jury returned a verdict against Tydir only on count I, the breach of contract count, finding in Tydir’s favor on Williams’ remaining counts. Specifically, as to count I, the jury found (1) there was an oral agreement between GMC, Tydir, and Williams, whereby Williams was to perform personal services for GMC; (2) Williams fully performed the oral agreement; (3) the agreement was to be performed within the space of one year from the making thereof; and (4) Tydir breached the agreement. The day after the trial concluded, the trial court officially denied Tydir’s motion for directed verdict. Tydir then moved for entry of judgment in accordance with his motion for directed verdict and, alternatively, for a new trial based on the jury’s confusion over the interrogatory “1(b).” The trial court denied the motions without a hearing. Final judgment was entered against Tydir in accordance with the jury’s verdict, and this appeal ensued.

Section 725.01, Florida Statutes, Florida’s “Statute of Frauds,” states in relevant part as follows:

No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof, ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

The history and rationale of the statute was reviewed in LynkUs Communications, Inc. v. WebMD Corp., 965 So.2d 1161 (Fla. 2d DCA 2007):

“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.” Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (Fla.1938). The statute is designed “to prevent persons from being enmeshed in and harassed by claimed oral promises made in the course of negotiations not ending in contracts reduced to writing.” Cohen v. Pullman Co., 243 F.2d 725, 729 (Fla. 5th Cir.1957). “The statute should be strictly construed to prevent the fraud it was designed to correct, and so long as it can be made to effectuate this purpose, courts should be reluctant to take cases from its protection.” Yates, 181 So. at 344.

Id. at 1165. In LynkUs, the Second District Court of Appeal concluded it was “ ‘clear from the object to be accomplished ... and the surrounding circumstances’ ” that the agreement between the parties at issue was intended to extend for longer than one year. Id. (quoting Yates, 181 So. at 344). Significantly, in so ruling, the district court stressed:

The fact that the business arrangement could commence within one year of the parties’ alleged agreement [was] of no moment. The evidence before the trial court shows beyond dispute that the joint business arrangement which was contemplated by LynkUs — but never memorialized in a writing — would be a long-term arrangement or an arrangement that, by its very nature, would extend for more than a year.

Id. See also First Realty Inv. Corp. v. Gallaher, 345 So.2d 1088, 1089 (Fla. 3d DCA 1977) (holding that the trial court erred in finding the strictly oral agreement was not barred by the statute of frauds where the clear intent of the parties showed that the profits from the newly formed company from which the plaintiffs interim bonus was to be taken were not expected for at least sixteen months after the agreement’s inception). As was pointedly noted in Yates, for the statute to make an agreement unenforceable, “it must be apparent that it was the understanding of the parties that [the agreement] was not to be performed within a year from the time it was made.” Yates, 181 So. at 344. Accord Gallaher, 345 So.2d at 1089 (“The primary factor to be utilized in determining whether or not an oral contract is to be performed within the one year limitation of the statute is, of course, the intent of the parties.”)

In the present case, Williams’ testimony confirmed the agreement to fund the new company was oral, but there was no evidence to show the parties ever contemplated the funding could be completed within the space of one year. To the contrary, Williams’ testimony was clear that he would forgo payment of his share of profits for five years, at the conclusion of which he and Tydir would have the money necessary to launch the anticipated partnership. Nor can the evidence be viewed to substantiate Williams’ alternative argument that Tydir’s complaint did not allege the breach of a single five-year contract, but of five separate oral agreements, each to be performed within a year.

In light of the foregoing analysis, we conclude that no view of the evidence legally supports the conclusion that the oral agreement entered into between Tydir and Williams was exempted from the statute of frauds. Accordingly, we reverse the final judgment entered in favor of Williams on his breach of contract claim and direct that judgment be entered in favor of Tydir.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


author: SANTURRI, THOMAS R., Associate Judge.

text:
    STATE of Florida, Appellant, v. Kenneth L. HOPE, Appellee.
    No. 1D11-4787.
    District Court of Appeal of Florida, First District.
    June 18, 2012.

      Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   SANTURRI, THOMAS R., Associate Judge.

The State appeals the trial court’s order granting Appellee’s (Defendant below) Second Amended Motion to Dismiss based upon pre-arrest delay, resulting in a due process violation. The State argues that a due process violation based upon pre-ar-rest delay requires finding substantial prejudice to an accused’s right to a fair trial and finding that the delay was an intentional device used to gain a tactical advantage over the accused. We disagree and affirm.

I. Facts

On October 14, 2010, Defendant was charged by information with sale of a controlled substance, in response to a sworn complaint made June 7, 2010. The State alleged in the information that the crime occurred on November 20, 2007, almost three years before the information was filed. The trial court granted the Defendant’s Second Amended Motion to Dismiss on August 28, 2011, finding a due process violation as a result of pre-arrest delay. In reaching its decision to grant the Defendant’s Second Amended Motion to Dismiss, the trial court cumulatively considered evidence and testimony presented at four separate hearings.

The Defendant was charged with selling cocaine on November 20, 2007 to undercover officers with his half-brother and co-defendant, Merrell Hudson. To demonstrate actual prejudice caused by the pre-arrest delay, the defense presented testimony from the Defendant, Hudson, and Brooke Williams, Defendant’s former girlfriend. The Defendant testified he was not with Hudson on the date of the alleged drug buy. He saw the video from the undercover buy and testified that the picture showing a portion of someone’s head was not him. He believed he was with Williams, his girlfriend at the time, as he would have picked her up from college for the Thanksgiving break.

Williams testified that she attended Bethune-Cookman College in Daytona in 2007. She testified that she would have been in Gainesville for Thanksgiving (November 22, 2007), but she did not remember if she left school early. According to Williams, there was a strong possibility she was in Gainesville on November 20, 2007 due to early dismissal from school, but she was not certain due to the passage of time. Williams did not have a 2007 school calendar to indicate the dates of the Thanksgiving break that year.

Hudson testified that he made a plea deal, which required him to testify truthfully in all matters in relation to the drug buy. Hudson testified that he was not with the Defendant on the day in question, but that he was with K.B., his ex-girlfriend’s brother. Hudson did not know KB.’s last name and, due to the lapse in time, did not know how to locate or contact his ex-girlfriend or K.B.

The State called three witnesses, Corporal Alade, Sergeant Hood, and Sergeant O’Quinn, to testify to the reasons for the pre-arrest delay. Corporal Alade, of the Gainesville Police Department, testified that he was involved with three undercover drug buys from Hudson in 2007 and 2008, including the November 20, 2007 drug buy at issue. During the investigation, he learned that the cases might be federally prosecuted. Corporal Alade was not explicitly prohibited from discussing the cases with the State Attorney’s Office, but he testified that common protocol was to not discuss cases when a federal prosecution might proceed. Alade was not aware of when the federal investigation ceased.

Sergeant Hood, of the Alachua County Sheriffs Office, was the case agent on Hudson’s cases. He testified that he was required to sign a document which prevented him from talking about the cases. Sergeant Hood did not recall whether the document prohibited him from discussing the Hudson cases with the State Attorney’s Office. Hood testified that at the time he left Narcotics on December 21, 2008, the federal government was still investigating the cases and, around the summer of 2009, the federal government decided not to indict Hudson and the Defendant. He did not know why the case was not sent to the State Attorney’s Office when the federal government decided not to prosecute.

Sergeant O’Quinn, with the Gainesville Alachua County Drug Task Force, testified about the delay in sending the case to the State Attorney’s Office. She started working for the drug task force in March 2009, but she only became aware of this case when given a print-out of open cases around June 7, 2010. She sent this case to the State Attorney’s Office after discovering it in the print-out.

The trial court found actual prejudice based on the testimony of Williams and Hudson. Weighing the actual prejudice against the State’s reasons for the delay, the court found that the State failed to meet its burden in showing the reasons for the delay outweighed the actual prejudice.

II. Analysis

A. Standard of Review

We review a trial court’s dismissal based on pre-arrest delay for an abüse of discretion. See United States v. Vickers, 333 F. App’x 458, 459 (11th Cir.2009) (citing United States v. Foxman, 87 F.3d 1220, 1222 (11th Cir.1996)). “If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)). We, however, apply the de novo standard to the trial court’s interpretation of the due process test for pre-arrest delay, as this test involves a pure question of law. See S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319 (Fla.2005).

B. The Test for Due Process Violation based upon Pre-Arrest Delay

The statute of limitations is “the primary guarantee against bringing overly stale criminal charges.” United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). The statute of limitations, however, does not fully define a defendant’s rights regarding pre-indictment delay, and the due process clause plays a role in protecting against delay. Id. at 324, 92 S.Ct. 455; United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

Marion and Lovasco are the leading United States Supreme Court cases on due process violations caused by pre-indictment delay. In Marion, the Court acknowledged the government’s concession that due process “require[s] dismissal of the indictment if ... the pre-indictment delay ... caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” 404 U.S. at 324, 92 S.Ct. 455. The Court, however, did not address whether unintentional delay could constitute a due process violation. In Lovasco, the Court further clarified the test for a due process violation in this context, asserting that “proof of actual prejudice makes a due process claim concrete and ripe for adjudication, [but] not ... automatically valid[,]” meaning “proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” 431 U.S. at 789-90.

The Marion and Lovasco opinions have led to debate about the proper test for pre-indictment or pre-arrest delay. The test in Florida for determining whether pre-arrest delay rises to a due process violation was enunciated in Howell v. State:

[I]n evaluating an asserted due process violation based on pre-indictment delay, Lovasco and Marion require us “to consider both the reasons for the delay and the prejudice to the accused.” ... Further, the accused bears the burden of proving the prejudice and, if the threshold requirement of proof of actual prejudice is not met, the inquiry ends there.... Once actual prejudice is shown, it is necessary to engage “in a sensitive balancing of the government’s need for an investigative delay ... against the prejudice asserted by the defendant.” ... The inquiry turns on “whether the prosecution’s actions violated ‘fundamental conceptions of justice’ or the community’s sense of fair play and decency.” ... “Inherent in the adoption of a balancing process is the notion that particular reasons are to be weighed against the particular prejudice suffered on a case-by-case basis.”

418 So.2d 1164, 1170 (Fla. 1st DCA 1982) (quoting United States v. Townley, 665 F.2d 579, 581-82 (5th Cir.1982)). This test was adopted by the Florida Supreme Court in Rogers v. State, 511 So.2d 526, 531 (Fla.1987). The State contends that Townley, the basis for Howell, is no longer good law, and that we should adopt the Crouch test, which overruled the Townley test. See United States v. Crouch, 84 F.3d 1497 (5th Cir.1996) (en banc). According to Crouch,

for preindictment delay to violate the due process clause it must not only cause the accused substantial, actual prejudice, but the delay must also have been intentionally undertaken by the government for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution or for some other impermissible, bad faith purpose.

Id. at 1514. Although we recognize the Fifth Circuit went en banc in Crouch and overruled Townley, this Court is bound by Howell and Rogers. We also note that two years after Crouch, and as recently as 2007, the Florida Supreme Court has applied the test used in Howell and adopted in Rogers. See Overton v. State, 976 So.2d 586 (Fla.2007); Rivera v. State, 717 So.2d 477 (Fla.1998).

1. Actual Prejudice

A defendant has the initial burden of showing actual prejudice. Rogers, 511 So.2d at 531. “The prejudice must amount to ‘a material impairment of his capacity to prepare a defense.’ ” State v. Ingram, 736 So.2d 1215, 1216 (Fla. 5th DCA 1999) (quoting State v. Wright, 545 So.2d 360, 361 (Fla. 5th DCA 1989)). “Speculative or general allegations of prejudice, such as a disappearance of alibi witnesses or failure of memory are insufficient.” Wright, 545 So.2d at 361 (citing Rogers, 511 So.2d 526).

In this case, the trial court found actual prejudice was demonstrated through Williams’ and Hudson’s testimony. Under the specific facts of this ease, we do not believe the trial court abused its discretion in finding actual prejudice supported by articulable reasons, rather than just fuzzy memory. Williams believed there was a strong possibility she was with the Defendant on the date in question, but could not prove it due to the passage of time. While a calendar may have provided the date on which Bethune-Cookman dismissed students for the Thanksgiving break in 2007, the trial court determined that Williams’ testimony reflected that she might have left early for Thanksgiving. We cannot say the trial court’s interpretation of Williams’ testimony is unreasonable.

Further, Hudson’s testimony reflects prejudice based on more than faded memory or speculative allegations. Hudson, who was required to testify truthfully according to the terms of his plea deal, said he knew who was with him and that it was not the Defendant, but due to the passage of time, he did not know how to contact or locate this person. This caused prejudice to the Defendant by preventing him from corroborating Hudson’s testimony. Corroboration would be particularly important at trial, as the State admitted it would attack Hudson’s credibility through bias and other impeachment methods. We find that the trial court, under these specific facts, did not abuse its discretion in finding that the combination of the prejudice elicited from the testimony of Williams and Hudson would materially impair the Defendant’s ability to prepare a defense.

2. Balancing Test

Since we cannot say the trial court abused its discretion in finding actual prejudice, we must review the trial court’s balancing of the State’s reasons for the delay against the actual prejudice. “The outcome turns on whether the delay violates the fundamental conception of justice, decency and fair play embodied in the Bill of Rights and fourteenth amendment.” Rogers, 511 So.2d at 531. The State has the burden of showing why the delay was necessary. Howell, 418 So.2d at 1170.

The delay from the date of the alleged incident, November 20, 2007, to the filing of the information on October 14, 2010, was almost three years. The trial court concluded that the first half of the delay was legitimate investigative delay and the second half was negligent delay. In balancing the reasons for the delay against the prejudice, we cannot say the trial court abused its discretion.

Accordingly, we AFFIRM the trial court’s order granting Defendant’s Second Amended Motion to Dismiss.

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


text:
    WILNER HARTLEY & METCALF, P.A., and Farah & Farah, P.A., and Norwood S. Wilner, Appellants, v. HOWARD & ASSOCIATES, ATTORNEYS AT LAW, P.A., and Richard A. Daynard, Esq., Appellees.
    No. 1D12-504.
    District Court of Appeal of Florida, First District.
    June 18, 2012.
    Norwood S. Wilner and Richard J. Lan-tinberg, The Wilner Firm, Jacksonville, for Appellants.
    Douglas S. Lyons, Lyons & Farrar, Tallahassee, for Appellees.
   PER CURIAM.

At issue in this case, which involves an alleged breach of a services contract and related claims, is whether venue is proper in Leon County. We hold that it is not. Our review of the record establishes that the appellant law firms were required to perform their obligations under the contract in Duval County, Florida, and transmitted the letter repudiating the contract from Duval County, Florida. Thus, Duval County, Florida, is where the claimed causes of action accrued. See § 47.011, Fla. Stat. (2012). We note that the relationship created between the parties was not that of debtor and creditor, and thus the venue rule by which appellee could summon appellant to answer in Leon County does not apply. See RMR Enters., Inc. of S.W.F. v. T.B. Landmark Constr., Inc., 894 So.2d 1073, 1073-74 (Fla. 1st DCA 2005). Thus, contrary to the trial court’s ruling, venue is not proper in Leon County.

REVERSED and REMANDED.

BENTON, C.J., and CLARK and MAKAR, JJ., concur.


text:
    Susan L. MITCHELL, Appellant, v. NORTHEAST FLORIDA STATE HOSPITAL, Appellee.
    No. 1D12-2561.
    District Court of Appeal of Florida, First District.
    June 18, 2012.
    Julie C. Johnson, Assistant Public Defender, Macclenny, for Appellant.
    J. Melton Bessinger, Assistant State Attorney, Macclenny, for Appellee.
   PER CURIAM.

DISMISSED. Having determined that the appellant’s notice of appeal failed to timely invoke the Court’s jurisdiction, the appeal is hereby dismissed. Any remedy the appellant may have lies with the lower tribunal. Cf. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA1983).

BENTON, C.J., CLARK and MAKAR, JJ., concur.


text:
    UNIVERSITY DENTAL HEALTH CENTER, INC., Appellant, v. AGENCY FOR WORKFORCE INNOVATION, Appellee.
    No. 4D10-4668.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Linda Bellomio Commons of Law Offices of Linda Bellimio Commons, Tampa, for appellant.

      Peter Penrod, Assistant General Counsel, Tallahassee, for appellee.
   PER CURIAM.

University Dental Health Center, Inc. (“University Dental”) appeals a final order of the Agency for Workforce Innovation (“AWI”). It argues (1) AWI erred in finding a dentist to be an employee for purposes of unemployment taxation and (2) AWI’s decision violated the Equal Protection Clause of the United States Constitution. We disagree and affirm. '

The dentist worked for University Dental from June 8, 2009, through November 30, 2009. Upon termination, she filed a claim for unemployment compensation benefits. The Florida Department of Revenue (“DOR”) issued an Employee Determination Notice, finding the dentist to be an employee retroactive to her date of hire and imposing unemployment tax on her wages. University Dental filed a protest, asserting the dentist was an independent contractor whose wages were not subject to unemployment tax.

After conducting a telephonic hearing, a special deputy issued a recommended order, upholding DOR’s decision. University Dental filed exceptions to the order. AWI issued a final order in which it found competent, substantial evidence to support the special deputy’s findings of fact and no error in the special deputy’s conclusions of law.

On appeal, University Dental continues to argue that AWI erred in finding the dentist to be an employee, rather than an independent contractor. In addition to arguing the evidence did not support the factual determinations by the special deputy, University Dental asserts a denial of equal protection, claiming DOR has treated dentists at other dental clinics as independent contractors. AWI responds arguing (1) the findings of fact are supported by competent, substantial evidence and (2) there was no error in its application of law and no denial of equal protection.

We review an agency’s findings of fact to insure that they are supported by competent, substantial evidence and that the agency did not err in its conclusions of law. Rollins v. Bay HR, 968 So.2d 697, 698 (Fla. 4th DCA 2007).

Wages are subject to unemployment tax if the employment falls within the purview of section 443.1216, Florida Statutes (2009). Employment subject to unemployment taxation includes a service performed by “[a]n individual who, under the usual common-law rules applicable in determining the employer-employee relationship, is an employee.” § 443.1216(l)(a)2, Fla. Stat.

To analyze whether an employer-employee relationship exists, we apply a test from the Restatement of the Law, Agency (Second) § 220. Cantor v. Cochran, 184 So.2d 173, 174 (Fla.1966). That test requires the consideration of ten factors:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

Brayshaw v. Agency for Work Force Innovation, 58 So.3d 301, 302 (Fla. 1st DCA 2011) (citing Cantor, 184 So.2d 173).

University Dental argues that the dentist was a highly skilled professional, who operated without supervision. It suggests the professional nature of the dentist’s work in determining what treatment was necessary and in performing that treatment demonstrates that University Dental did not directly supervise the dentist. The parties agreed that the relationship was at will. Based on these factors, University Dental asserts the dentist was an independent contractor.

AWI responds that University Dental’s control over the dentist demonstrated an employer-employee relationship. University Dental provided the tools and space for the dentist. It scheduled patients and determined where and when the dentist performed services. The dentist could not refuse patients, was required to report to work at a particular time, and could leave only if there were no scheduled patients. University Dental determined the fees charged, and the dentist’s services were part of University Dental’s regular business.

The special deputy weighed these factors and found by a preponderance of the evidence that University Dental exercised sufficient control over the dentist’s work to consider her an employee. That finding is supported by competent, substantial evidence. We find Kane Furniture Corp. v. Miranda, 506 So.2d 1061 (Fla. 2d DCA 1987), upon which University Dental relies, distinguishable. We find no error in the conclusions of law.

We therefore affirm AWI’s determination that the dentist was an employee.

Affirmed.

WARNER, STEVENSON and CONNER, JJ., concur.

      . We find no merit in the equal protection argument.

      . There is a long list of exceptions, but dentists or medical professionals are not among them.


text:
    Sandra Carol WHITERS, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates Series 2005-CB7, Appellee.
    No. 4D11-997.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Jay L. Farrow of Farrow Law, P.A., Davie, for appellant.

      Kimberly S. Mello and Thomas A. Burns of Greenberg Traurig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Phadael v. Deutsche Bank Trust Co. Ams., 83 So.3d 893 (Fla. 4th DCA 2012).

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


author: WELLS, Chief Judge.

text:
    William Gilbert ROCHE, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2354.
    District Court of Appeal of Florida, Third District.
    June 20, 2012.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, C.J., and EMAS and FERNANDEZ, JJ.
   WELLS, Chief Judge.

Affirmed. See Smith v. State, 79 So.3d 127 (Fla. 3d DCA 2012); Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011) (citing State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011) [review granted, 71 So.3d 117 (Fla.2011) ], and acknowledging “the uncertainty caused by Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011)]” but reaffirming its view that section 893.13 is constitutional).


text:
    Marilyn TAYLOR-DUNCAN, Appellant, v. Errol DUNCAN, Appellee.
    No. 3D10-2108.
    District Court of Appeal of Florida, Third District.
    June 20, 2012.
    Marc Anthony Douthit, Miami, for appellant.
    Kenneth S. Mair, Fort Lauderdale, for appellee.
    Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding the decision of a trial court has the presumption of correctness, which cannot be disturbed absent a record demonstrating reversible error).


text:
    Jason Ryan PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2205.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Stacy A. Scott, Public Defender for Eighth Judicial Circuit, and George H. Nelson and Julie C. Johnson, Assistant Public Defenders, Eighth Judicial Circuit, Macclenny.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Upon consideration of the appellant’s response to the Court’s order of May 1, 2012, the Court has determined that the notice of appeal failed to timely invoke its jurisdiction. Accordingly, the appeal is dismissed. The dismissal is without prejudice to the appellant’s right to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

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


text:
    Jason Ryan PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2203.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Stacy A. Scott, Public Defender for Eighth Judicial Circuit, and George H. Nelson and Julie C. Johnson, Assistant Public Defenders, Eighth Judicial Circuit, Macclenny.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Upon consideration of the appellant’s response to the Court’s order of May 1, 2012, the Court has determined that the notice of appeal failed to timely invoke its jurisdiction. Accordingly, the appeal is dismissed. The dismissal is without prejudice to the appellant’s right to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

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


text:
    LAKEVIEW HEALTH SYSTEMS, LLC, North Florida Addiction Medicine, Inc., Combined Resources, LLC, and Michael Wynn Provines, M.D., Petitioners, v. David M. KATZ, M.D., Respondent.
    No. 1D12-2807.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Gary S. Phillips and Edward J. Pfister of Phillips, Cantor & Shalek, P.A., Hollywood, for Petitioners.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA 1995).

VAN NORTWICK, ROBERTS, and MARSTILLER, JJ., concur.


author: /s/ Justice, Supreme Court of Louisiana

text:
    In re Frank D. BARBER, III.
    No. 2012-OB-0687.
    Supreme Court of Louisiana.
    March 28, 2012.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Frank D. Barber, III, and the Office of Disciplinary Counsel,

IT IS ORDERED that Frank D. Barber, III, Louisiana Bar Roll number 1004, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

FOR THE COURT:

/s/

/s/ Justice, Supreme Court of Louisiana