author: POLEN, J.

text:
    Jerome RICKETTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1260.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

The defendant was convicted of violating sections 893.135(l)(a) and 893.03(l)(c), Florida Statutes (2009). He now appeals his conviction and sentence arguing (1) that the trial court improperly admitted Williams rule evidence of empty crates found in his storage unit, which alerted a drug-sniffing K9 to the presence of marijuana, and (2) that section 893.135 is facially unconstitutional. We disagree with the defendant and hold that (1) the trial court did not abuse its discretion by admitting this Williams rule evidence because the crates were relevant to prove a continuing scheme and that the defendant had knowledge of the contents of the crate delivered to him on May 6, 2009; and (2) the statutory scheme is constitutional. Accordingly, we affirm.

The standard of review for the admission of Williams rule evidence is abuse of discretion. Santiago v. State, 70 So.3d 720, 725 (Fla. 4th DCA 2011). Similar-fact evidence, or Williams rule evidence, is “admissible when 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 is inadmissible when the evidence is relevant solely to prove bad character or propensity.” DeLuise v. State, 72 So.3d 248, 251 (Fla. 4th DCA 2011) (quoting § 90.404(2)(a), Fla. Stat.). “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.” Santiago, 70 So.3d at 725.

The defendant in this case was charged with violating section 893.135 for “unlawfully and knowingly purchasing] or hav[ing] in his actual or constructive possession ... Cannabis, in an amount in excess of twenty-five (25) pounds, but less than two thousand (2,000) pounds.” (emphasis added). Section 893.135 specifically prohibits a person from “knowingly” engaging in the prohibited conduct. § 893.135(l)(a), Fla. Stat. (2009). As was the ease in Santiago, the State offered the Williams rule evidence in this case to prove that the defendant “knew of and had dominion and control over the [cannabis]” for which he was charged with trafficking. See Santiago, 70 So.3d at 724. The State’s evidence in this case consisted of other empty crates, which compared to the crate containing the cannabis at issue, had similar packaging, identical nails and wood, similar shipping labels with addresses from California, were in a storage unit rented by the defendant under an assumed name, and contained the odor of marijuana sufficient to alert a drug-sniffing K9. Because knowledge is a specific element of the crime charged, the evidence of the other crates was admissible Williams rule evidence because it was “relevant or material to some aspect of the offense being tried” rather than used simply to prove propensity. Santiago, 70 So.3d at 725. We hold, therefore, that this evidence was properly admitted as Williams rule evidence because it was relevant to prove the defendant’s participation in a continuing scheme and relevant to show that he had knowledge of the contents of the crate he received on May 6, 2009.

Although the State mentioned the evidence in closing argument and other portions of the trial, the record does not demonstrate that the Williams rule evidence became the feature of the trial. See DeLuise, 72 So.3d at 252. As in DeLuise, “[although the prosecutor did discuss the Williams rule [evidence] in closing, the focus of the case was on the [cannabis that was] the subject of the charged crime[ ].” See id. The probative value of this Williams rule evidence was, therefore, not substantially outweighed by the danger of unfair prejudice. Accordingly, the trial court did not abuse its discretion by admitting evidence of these other crates. The defendant’s conviction and sentence is affirmed.

Affirmed.

CONNER, J., and KEYSER, JANIS BRUSTARES, Associate Judge, concur.

      . The constitutionality of Chapter 893 was recently answered by the Florida Supreme Court. State v. Adkins, 96 So.3d 412 (Fla. 2012) (holding that Chapter 893 of the Florida Statutes is constitutional on its face).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shane SPAULDING, Appellant, v. STATE Of Florida, Appellee.
    No. 4D11-342.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, CIKLIN and LEVINE, JJ., concur.


text:
    William GAUDETTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-945.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, GERBER and LEVINE, JJ., concur.


text:
    Saul CONZUELO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2759.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Benjamin S. Waxman of Robbins, Tun-key, Ross, Amsel, Raben & Waxman, P.A., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 124 So.3d 757 (Fla.2012).

WARNER, DAMOORGIAN and CIKLIN, JJ., concur.


author: TAYLOR, J.

text:
    Yvette JOHANSEN has Personal Representative of the Estate of George Johansen, Appellant, v. Philip S. VUOCOLO, M.D. and Heart & Family Institute Of Port St. Lucie, Inc., Appellees.
    No. 4D11-2148.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 2013.

      Rebecca Mercier Vargas and Jane Kreusler-Walsh of Kreusler-Walsh, Com-piani & Vargas, P.A., West Palm Beach, and Brent L. Probinsky of Brent L. Pro-binsky, P.A., Sarasota, for appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellees.
   TAYLOR, J.

In this appeal from a final judgment entered on a defense verdict in a medical malpractice case, appellant/plaintiff Yvette Johansen, as Personal Representative of the Estate of George Johansen (Estate), seeks a new trial, arguing that the trial court reversibly erred in bifurcating her claims of medical malpractice and negligent hiring and retention of the primary surgeon from her claims of negligent hiring and retention of the assistant surgeon. We affirm, because the trial court did not abuse its discretion in ordering bifurcation of appellant’s claims.

Dr. Philip Vuocolo, a general and vascular surgeon employed by the Heart and Family Institute of Port St. Lucie (Institute), surgically removed a part of seventy-eight year old George Johansen’s lung after finding a suspicious lesion on his left lung. Dr. Robert Norton, a general surgeon also employed by the Institute, assisted Dr. Vuocolo in the lobectomy and post-surgical care of Mr. Johansen. Mr. Johansen developed complications after the operation and had to undergo additional procedures after he experienced excessive blood loss. He died twenty-eight days after the surgery.

The Estate filed a claim for medical malpractice against Dr. Vuocolo and a claim against the Institute for vicarious liability for the malpractice of Dr. Vuocolo. The Estate also filed a claim against the Institute for the negligent hiring and retention of Dr. Vuocolo. After filing the complaint, and after the statute of limitations period had run, the Estate discovered that Dr. Norton, the assistant surgeon, had an extensive history of medical malpractice. Although the statute of limitations precluded the Estate from filing suit against Dr. Norton individually, the trial court ruled that the negligent hiring complaint against the Institute was sufficiently pled so as to include any negligent acts Dr. Norton may have committed while caring for the decedent.

Concerned that Dr. Norton’s extensive malpractice history would have a prejudicial effect on the jury, the defendants filed multiple motions to bifurcate the medical malpractice claims from the negligent hiring and retention claims. The trial court agreed that Dr. Norton’s malpractice history would prejudice a jury in the medical malpractice action against Dr. Vuocolo and ultimately ordered two separate trials. Accordingly, the Estate’s claims based on the medical malpractice and negligent hiring of Dr. Vuocolo would be tried separately from the claims based on the medical malpractice and negligent hiring of Dr. Norton. The order stated:

The medical malpractice action against PHILIP S. VUOCOLO, MD and HEART AND FAMILY INSTITUTE OF PORT ST. LUCIE, INC. shall be tried first. Under no circumstances in the medical malpractice action against PHILIP S. VUOCOLO, MD and HEART AND FAMILY INSTITUTE OF PORT ST. LUCIE, INC., can the Plaintiff introduce evidence concerning Dr. Norton’s alleged malpractice claim history.
Then, only if the trier of fact determines that PHILIP S. VUOCOLO, MD and HEART AND FAMILY INSTITUTE OF PORT ST. LUCIE, INC are not negligent in the first trial, can a second trial proceed against HEART AND FAMILY INSTITUTE OF PORT ST. LUCIE, INC., for medical malpractice based upon vicarious liability for, non-party, Dr. Norton’s actions.

The case proceeded to trial, and the jury entered a verdict for the defense; it found that Dr. Vuocolo did not breach the standard of good medical care and that his actions were not the proximate cause of Mr. Johansen’s death. Because of this finding, the jury was not required to determine whether the Institute had negligently hired Dr. Vuocolo. This appeal followed.

A trial court’s decision to bifurcate claims and issues is reviewed for an abuse of discretion. See Valliappan v. Cruz, 917 So.2d 257, 259 (Fla. 4th DCA 2005); Roseman v. Town Square Ass’n, Inc., 810 So.2d 516, 520 (Fla. 4th DCA 2001). Florida Rule of Civil Procedure 1.270(b) governs the bifurcation of trials and permits “[t]he court in furtherance of convenience or to avoid prejudice [to] order a separate trial of any claim ... or of any separate issue or of any number of claims ... or issues.” Fla. R. Civ. P. 1.270(b).

Ordinarily, claims or issues that are interrelated and intertwined should not be bifurcated. See, e.g., Rooss v. Mayberry, 866 So.2d 174, 176 (Fla. 5th DCA 2004) (holding that a unified trial, rather than bifurcated action as to liability and damages issues, was required to affect substantial justice in medical malpractice action brought by a German national); Yost v. Am. Nat’l Bank, 570 So.2d 350, 352-53 (Fla. 1st DCA 1990) (concluding that in an action brought by lender to foreclose promissory note, defendants’ compulsory counterclaims were improperly severed for separate trial); Travelers Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3d DCA 1981) (noting that a severance for separate trial is within the discretion of the trial court, but that separate trials are appropriate only when a joint trial may prejudice a party or cause inconvenience).

As we pointed out in Roseman, “the law is well settled that bifurcation is subject to the sound discretion of the trial court,” and “bifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party.” 810 So.2d at 520-21 (internal quotations omitted). In that case, we found no abuse of discretion and reasoned that there could be no finding that the trial court abused its discretion in ordering bifurcation unless the appellate court could “conclude that no reasonable person would have allowed it under the circumstances.” Id. at 523. We further noted that “[ljike most discretionary decisions, one to bifurcate the proceedings is very difficult to overturn on appeal because of the degree of deference appellate courts give to the trial court’s superior vantage point, having viewed all of the proceedings in the case.” Id. at 523-24.

We cannot say that the trial court abused its discretion in granting the motion to bifurcate in this case. Rule 1.270(b) authorizes the court to order a separate trial of any claim or issue “to avoid prejudice.” Here, the trial court was concerned about the possibility of prejudice to the defendants resulting from evidence of Dr. Norton’s prior medical malpractice. The trial court properly exercised its discretion when it found that this evidence (relevant on the issue of whether Dr. Norton was negligently hired and retained) could irreparably damage the jury’s ability to fairly decide the issue of whether Dr. Vuocolo acted within the applicable standard of care in treating Mr. Johansen. See, e.g., Beavis ex rel. Beavis v. Campbell Cnty. Mem’l Hosp., 20 P.3d 508, 516-17 (Wyo.2001)(holding that the question of a doctor’s negligence in treating a patient was properly bifurcated from the issue of whether or not the doctor had been negligently hired and supervised); Stottlemyer v. Ghramm, 268 Va. 7, 597 S.E.2d 191, 194 (2004)(holding that in jury trial where plaintiffs cause of action against doctor for medical negligence was bifurcated from plaintiffs claim against hospital for negligent credentialing, the patient was properly precluded from cross-examining doctor about his alleged prior acts of misconduct and negligence relating to his former patients); Lai v. Sagle, 373 Md. 306, 818 A.2d 237, 247-48 (2003)(com-paring evidence of prior medical malpractice to similar act evidence in criminal trials and surveying cases from other jurisdictions holding that evidence of prior malpractice is either inadmissible as irrelevant or excessively prejudicial).

We have considered the Estate’s other arguments and find them to be without merit. We further note that the record reflects that the bifurcation order did not affect the Estate’s ability to fully and fairly litigate its claims against Dr. Vuocolo, the primary surgeon. Moreover, if it so chooses, the Estate can still proceed to trial on its claims against the Institute for the alleged negligent hiring and retention of Dr. Norton.

Affirmed.

DAMOORGIAN, J. and CORLEW, REGINALD R., Associate Judge, concur.

      . Dr. Norton had twelve prior medical malpractice claims, including two which resulted from patients’ deaths from excessive and uncontrolled bleeding.

      . See Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046, 1052 (Fla. 5 th DCA 2004)(‘‘In order to establish liability based on negligent hiring, the plaintiff must first establish that the employee committed a wrongful act that caused the injury.”).

      . Laughridge v. Moss, 163 Ga.App. 427, 294 S.E.2d 672, 674 (1982); Herbstreith v. de Bakker, 249 Kan. 67, 815 P.2d 102, 109 (1991); Cerniglia v. French, 816 So.2d 319, 322-25 (La.Ct.App.2002); Tramontin v. Glass, 668 So.2d 1252, 1256-57 (La.Ct.App.1996); Persichini v. William Beaumont Hosp., 238 Mich.App. 626, 607 N.W.2d 100, 105-06 (1999); Jones v. Tranisi, 212 Neb. 843, 326 N.W.2d 190, 192 (1982); Folgate v. Brookhaven Mem'l Hosp., 86 Misc.2d 191, 381 N.Y.S.2d 384, 386 (N.Y.Sup.1976).


text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, as Receiver for Aequicap Insurance Company, Patco Transport, Inc. and Tampa Bay Trucking, Inc., Appellees.
    No. 4D10-22.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.

      Christopher J. Nicholas and Julius F. Parker III of Butler Pappas Weihmuller Katz Craig LLP, Tallahassee, for appellant.
    Aaron Behar, Jaclyn Bentley and Jonah D. Kaplan of Aaron Behar, P.A., Coral Springs, for appellees.
   PER CURIAM.

The issue presented is whether the trial court erred in granting summary judgment in favor of appellees on their claim that appellant breached its duty to defend Tampa Bay Trucking, Inc. (“TBT”) and Pateo Transport, Inc. (“Pateo”) in an earlier personal injury action, entitling appel-lees to indemnification for costs expended in defending that action. We find that the trial court correctly determined that appel-lees were entitled to indemnification for their defense costs, and therefore, we affirm the granting of summary judgment.

Arturo Matos Ortiz entered into a subcontract agreement with TBT for the provision of trucking services to third parties. The agreement required Ortiz to maintain a policy of automobile insurance at Ortiz’s expense. Under the agreement, such insurance would be primary, and any applicable insurance carried by TBT would be excess over Ortiz’s insurance. The agreement further included an indemnity provision, which provided:

[Ortiz] shall defend, indemnify and hold harmless [TBT], Owner, Architect, and the consultants, agents, and employees of each of them from and against any and all claims, damages, losses and expenses, including but not limited to attorneys fees, arising out of or resulting from the performance of the work, provided that such claim, damage, loss or expenses is attributable to bodily injury ... but only to the extent caused by the negligent acts or omissions of [Ortiz], or of anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.

Appellant issued a policy of insurance to Ortiz, agreeing to insure Ortiz’s tractor and a non-owned attached trailer as long as the trailer was attached to the tractor. TBT was an additional insured under the policy.

Aequicap insured Pateo and TBT. An endorsement to the Aequicap policy provided that an “insured” under the policy was “[y]ou for any covered ‘auto’ only when the covered ‘auto’ is driven by an approved driver described in paragraph ‘b’ of this section.” Paragraph “B” read:

Any driver authorized as a commercial truck driver while Operating covered “auto” with your knowledge and consent under your operating authority. No coverage will apply to any driver newly placed in service after the policy begins until you report that driver to us and we advise you in writing that he/she is acceptable to us and that he/she is covered under the policy. Coverage on any such driver newly placed in service will become effective as of the date and time we advise you he/she is acceptable and that they are covered by the policy and not before.

Neither Pateo nor TBT submitted Ortiz to Aequieap for pre-approval. Both appellant’s policy and Aequicap’s policy contained “Other Insurance” clauses.

In 2006, Ortiz was involved in an auto accident with Raymond Heydenburg. After the accident but before suit was filed, appellant informed counsel for Heyden-burg that it had identified TBT and Pateo as possible omnibus insureds under its policy. Heydenburg rejected appellant’s offer to settle for the policy limits in exchange for a release of Ortiz, TBT, and Pateo. Aequieap informed its insured, Pateo, that Ortiz had not been pre-submit-ted as a driver and that it was reserving all rights as to whether it was obligated to provide coverage for the accident.

Heydenburg and his spouse then filed suit against Ortiz, TBT, and Pateo, alleging that, while in the course and scope of his relationship with TBT and Pateo, Ortiz negligently caused injuries to Heydenburg while operating his tractor and an attached trailer owned by TBT. In January 2007, counsel for TBT and Pateo, hired by -Ae-quicap, wrote to appellant for the purpose of obtaining a conflict of interest waiver. The attorney requested that appellant provide separate counsel for Ortiz, based on his “understanding that [TBT] is an additional insured under the policy issued by Progressive to Arturo Ortiz and that they intend to maintain a demand for defense and indemnity under that policy.” Appellant first provided a defense to TBT and Pateo in November 2007.

The Heydenburg litigation was settled in 2009. Before a settlement was reached, appellees filed suit against appellant, asserting a right to indemnification for attorney’s fees and costs incurred in the defense -of TBT and Pateo from January through November 2007.

Both parties moved for summary judgment. In granting appellees’ motion for summary judgment, the trial court found that appellant should have provided a defense to TBT and Pateo before November 1, 2007, and that appellant was required to indemnify appellees for attorney’s fees and costs incurred in their defense up to that time.

On appeal, appellant argues that it was entitled to judgment as a matter of law on appellees’ indemnification claim under the rule disallowing reimbursement for defense costs between insurers of a mutual insured (the “anti-subrogation rule”). Because we find that this case is controlled by the indemnification agreement between the insured parties, we disagree with appellant’s argument and affirm.

In Florida, as a general matter, “[t]he duty of each insurer to defend its insured is personal and cannot inure to the benefit of another insurer,” and for this reason, “[contribution is not allowed between insurers for expenses incurred in defense of a mutual insured.” Argonaut Ins. Co. v. Md. Cas. Co., 372 So.2d 960, 963 (Fla. 3d DCA 1979); see also Cont. Cas. Co. v. United Pac. Ins. Co., 637 So.2d 270, 272 (Fla. 5th DCA 1994) (“[T]raditional principles of subrogation will not support a reimbursement of defense costs in favor of someone who has the independent contractual duty to pay all such expenses.”).

However, “[i]ndemnity has been defined as a right which inures to a person who has discharged a duty which is owed by him but which, as between himself and another, should have been discharged by the other.” Stuart v. Hertz Corp., 351 So.2d 703, 705 (Fla.1977). In the present context, we are persuaded by the case of Continental Casualty Co. v. City of South Daytona, 807 So.2d 91 (Fla. 5th DCA 2002), which illustrates the effect that an indemnification agreement between insured parties has on the anti-subrogation rule. In Continental, a little league contracted to use the city’s facilities and agreed to indemnify the city from any and all claims, and to secure an insurance policy naming the city as a co-insured. After a coach was injured and sued both insured parties, the city’s insurance carrier was left defending the claim. The city’s insurance carrier sought reimbursement of its defense costs from the little league’s insurance carrier, which were awarded by the trial court.

The Fifth District rejected the little league’s insurance carrier’s reliance on Argonaut and its progeny, reasoning:

Argonaut, which was followed in Continental [v. United Pacific Insurance Co., 637 So.2d 270 (Fla. 5th DCA) ], held that an insurer is not entitled to recover from another insurer the costs of defending a mutual insured. These two cases, however, are inapplicable because they addressed the issue of equitable subrogation among insurers where there was no contract of indemnification between the insured parties. In the instant case, there is a specific and contractual obligation of indemnification in favor of the City that was provided by the Little League, who in turn was required to and did insure that obligation by securing the Continental policy.
We agree with the City that the agreement with the Little League shifted exposure from the City’s own liability carrier to the Little League’s liability carrier, and that the primary obligation to defend the City for an action arising out of the Little League’s use of the City’s facilities was with Continental. Continental’s failure to defend entitles the City, as the indemnitee or the additional insured, to a recovery of reasonable attorney’s fees incurred in the defense of the claim.

Id. at 92-93.

Similarly, in the present case, “there is a specific and contractual obligation of indemnification” in favor of TBT that was provided by Ortiz. The subcontract agreement “shifted exposure” from Aequicap to appellant, leaving appellant with the primary obligation to defend TBT and Pateo for an action arising out of Ortiz’s negligence. Appellant’s failure to defend TBT and Pateo from January through November of 2007 accordingly entitled appellees to a recovery of reasonable attorney’s fees and costs incurred in defending the Heydenburg claim during that period.

Appellant argues that, despite the indemnification agreement, appellees’ claim for indemnification must fail because Ortiz was an insured under the Aequicap policy. See Allstate Ins. Co. v. Fowler, 480 So.2d 1287, 1290 (Fla.1985) (holding, in part, that for a court to disregard an “other insurance” clause pursuant to a right of indemnity, “the insurance policy issued to the vicariously liable party must not cover the active tortfeasor as an additional insured”). We agree with appellees that Ortiz was not insured under the Aequicap policy. Here, Ortiz was never submitted to Aequicap for pre-approval as a driver, as required by the endorsement to Aequi-cap’s policy. Appellant argues that Aequi-cap was not entitled to maintain that Ortiz was not insured while maintaining that TBT and Pateo were insured, because Ae-quicap’s policy provided that TBT and Pateo would be insured “for any covered ‘auto’ only when the covered ‘auto’ is driven by an approved driver.” We disagree that this provision required Aequicap to categorically deny coverage for all of Hey-denburg’s injuries. Paragraph “B” of the endorsement specifically provided, “No coverage will apply to any driver newly placed in service after the policy begins until you report that driver to us and we advise you in writing that he/she is acceptable to us and that he/she is covered under the policy.” Therefore, we find that Aequicap was entitled to deny coverage for Ortiz, while maintaining that coverage existed for its named insureds, TBT and Pateo.

We have examined the other arguments raised by appellant, and find no error.

Affirmed.

TAYLOR, CIKLIN and LEVINE, JJ., concur.

      . The Florida Department of Financial Services was appointed as receiver for Aequicap during the pendency of this appeal.

      . With respect to Ortiz's tractor, the parties agree that appellant’s policy provided primary coverage. However, the parties dispute which policy provided primary coverage to the trailer under the "Other Insurance” clauses.

      . Appellant argues that the lack of an indemnification agreement between Ortiz and Pateo is dispositive of Patco's right to recover its defense costs from appellant. However, "[i]n order to be preserved for appellate review, the specific argument made on appeal must have been raised when the party objected in the trial court.” Eagleman v. Korzeniowski, 924 So.2d 855, 860 (Fla. 4th DCA 2006). In the trial court, appellant did not make this argument as a basis to be relieved of having to pay Patco's defense costs.


author: WARNER, J.

text:
    Kathy DENT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1560.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Michael Maher, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Kathy Dent, appeals her conviction for engaging in an organized scheme to defraud, in violation of section 817.034(4), Florida Statutes. The state charged and proved that Dent and others manipulated the Sheriffs overtime assignment computer system to secure more hospital guard overtime assignments than the Sheriffs policy would allow. As a result, Dent worked those assignments, earning overtime pay, which shut out other Sheriffs deputies from the opportunity to earn overtime pay. We conclude that although what Dent did may have been contrary to Sheriffs policies and procedures, it is not a criminal violation. We thus reverse.

The Palm Beach County Sheriffs Office provides deputies for hospital duty to guard an inmate or arrested person who is admitted to a hospital. Initially, a deputy on the current shift is assigned to the hospital when the prisoner is admitted, and that deputy serves until the end of his or her shift, at which time it becomes an overtime assignment. To fill these assignments, the Sheriffs department utilizes a computer program which allows deputies to sign up to work overtime shifts. The lieutenant on the shift when the prisoner is admitted to the hospital creates a computer record of the prisoner’s admittance. It generates a weekly list of overtime shifts for the week for that prisoner, although if the prisoner is released from the hospital those overtime shifts would not be used. The positions for new overtime shifts become available for signup at midnight on Sunday night for the following week. To obtain the right to work one of these shifts, deputies must log into the system and sign up for one shift at a time. Once the deputy signs up for a shift he/she must wait 48 hours before signing up for another one. No one is allowed to sign up another person for an overtime shift except supervisors who are signing deputies to cover a present shift. Lieutenants can also sign up others for overtime shifts.

Complaints were raised because several deputies noticed that the defendant, Kathy Dent, was already assigned to work various overtime shifts when the shifts became available at midnight on Sunday night. An investigation revealed that Dent was assigned on the computer system to a hospital overtime shift 388 times. Dent’s friend, Lieutenant Sandra Nealy, assigned Dent to work 100 hospital overtime shifts during a one-year period. Although Dent did not work all the overtime shifts she was assigned, she earned more than $18,000 working hospital overtime shifts.

In the information, the state charged that Dent “did engage in a scheme constituting a systematic, ongoing course of conduct with intent to defraud one or more persons, or to obtain property from one or more persons by false or fraudulent, representations, or promises, and did obtain property from one or more of such persons ....” At trial, the state presented its theory that Dent’s manipulation of the computer overtime signup system prevented other Sheriff’s deputies from signing up for overtime, and that other deputies lost the opportunity to get these assignments and earn overtime pay. Dent earned over $18,000 in overtime pay for overtime shifts that she actually worked. This was not a case, however, where she was paid for shifts that she did not work. The jury convicted her of a third degree felony, prompting this appeal.

Dent claims that the state failed to prove that she obtained “property” within the meaning of the statute when all the state proved was the inability of other deputies to sign up for the opportunity to obtain overtime. In other words, her conduct did not amount to a crime. We agree and reverse.

Section 817.034 is titled the “Florida Communications Fraud Act.” The Legislature specifically provided its intent in adopting this criminal statute:

(1) Legislative intent.—
(a) The Legislature recognizes that schemes to defraud have proliferated in the United States in recent years and that many operators of schemes to defraud use communications technology to solicit victims and thereby conceal their identities and overcome a victim’s normal resistance to sales pressure by delivering a personalized sales message.
(b) It is the intent of the Legislature to prevent the use of communications technology in furtherance of schemes to defraud by consolidating former statutes concerning schemes to defraud and organized fraud to permit prosecution of these crimes utilizing the legal precedent available under federal mail and wire fraud statutes.

The statute defines various terms, including “scheme to defraud,” “obtain,” and “property”:

(b) “Obtain” means temporarily or permanently to deprive any person of the right to property or a benefit therefrom, or to appropriate the property to one’s own use or to the use of any other person not entitled thereto.
(c) “Property” means anything of value, and includes:
1. Real property, including things growing on, affixed to, or found in land;
2. Tangible or intangible personal property, including rights, privileges, interests, and claims; and
3. Services.
(d)“Scheme to defraud” means a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.

Because the Legislature directs us to use the legal precedents under the similar federal statute, we look to those precedents and conclude that the opportunity to sign up for overtime, which was deprived to other deputies by Dent’s conduct, is not “property” within the meaning of the statute.

In United States v. Henry, 29 F.3d 112 (3d Cir.1994), two public officials were charged with bank fraud and wire fraud for corruption of the process by which banks were chosen as depositories for funds from various toll bridges. The commission in charge of the funds conducted a competitive- bidding process with various banks for their short-term deposits. The two public officials interfered with the process by notifying one bank of the bid information in advance, allowing that bank to outbid the other banks in the bidding process. In return, the public officials received campaign contributions and favorable treatment on loans from the bank.

The government asserted that what the other banks lost in this scheme was a fair opportunity to bid in the process. The court concluded, however, that this loss of opportunity was not “property” within the meaning of the bank and wire fraud statutes.

Here, however, the money had not yet been deposited, and there is no way of knowing to which, if any, of the bidding banks it would have gone. Even in a fair process, Bank A might still have won the deposits. The issue, therefore, is whether the competing banks’ interest in having a fair opportunity to bid for something that would become then-property if and when it was received is in itself property. We conclude that it is not.
.... [T]o determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right. See United States v. Evans, 844 F.2d 36, 41 (2d Cir.1988) (“That the right at issue ... has not been treated as a property right in other contexts and that there are many basic differences between it and common-law property are relevant considerations in determining whether the right is property under the federal fraud statutes.”).
The competing banks’ interest in a fair bidding opportunity does not meet this test. Clearly, each bidding bank’s chance of receiving property — the deposits if its bid were accepted — was, at least in part, dependent on the condition that the bidding process would be fair. This condition, which is all that the bidding banks allegedly lost, was thus valuable to them, but it is not a traditionally recognized, enforceable - property right. At most, the condition is a promise to the bidding banks from those in charge of the process that they would not interfere with it. It is not a grant of a right of exclusion, which is an important aspect of traditional property. See Carpenter [v. United States, 484 U.S. 19, 26-27, 108 S.Ct. 316, 321, 98 L.Ed.2d 275 (1987) ]. Violation of this condition may have affected each bidding bank’s possible future receipt of property, but that does not make the condition property.

29 F.3d at 114-15. The loss of an opportunity interest did not constitute “property” within the meaning of the wire and mail fraud statutes, whose interpretations are to govern the interpretation of section 817.034.

This reasoning was also applied in United States v. Alsugair, 256 F.Supp.2d 306 (D.N.J.2003), where the defendant was charged with wire fraud in a scheme to defraud English skills testing services by allowing imposters to take English tests for foreign students. The mail fraud statute, 18 U.S.C. § 1341, made it a crime to engage in a scheme to obtain money or property by false pretenses. The court examined what constituted a property right:

“[T]o determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right.” United States v. Henry, 29 F.3d 112, 115 (3d Cir.1994). Two of the hallmarks of traditional property are exclusivity, see Henry, 29 F.3d at 115; Carpenter, 484 U.S. at 26-27, 108 S.Ct. 316, 98 L.Ed.2d 275; see also College Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (“The hallmark of a protected property interest is the right to exclude others.”), and transferability, see Boss Co., Inc. v. Bd. of Comm’rs of the City of Atlantic City, 40 N.J. 379, 385, 192 A.2d 584, 587 (1963) (“qualities of property” include monetary value and transferability). The court should consider whether the right at issue has been treated as a property right in other contexts and whether the right has basic differences from common-law views of property. Henry, 29 F.3d at 115 (citing United States v. Evans, 844 F.2d 36, 41 (2d Cir.1988)).

256 F.Supp.2d at 313.

In Alsugair, the court found that the defendant had deprived the victim, the testing service, of at least its goodwill in its testing application, and thus denied the motion to dismiss. Important to this case is the court’s reiteration of the hallmarks of property, namely exclusivity and transferability, neither of which are present in the lost opportunity of working overtime, which is what the state sought to prove in this case.

We have also determined that expectation interests do not constitute property under similar definitions of property in the theft statute. In Balcor Property Management, Inc. v. Ahronovitz, 634 So.2d 277 (Fla. 4th DCA 1994), we considered whether a party who allegedly conspired with one of a corporation’s shareholders to transfer the assets out of the corporation could be considered to have stolen property of the other shareholder of the corporation, with the “property” being the means of recovery for the shareholder’s claims against the corporation. We held that a party must show a legally recognized property interest to recover for civil theft:

[W]hat interest did appellee have in the property stolen and what legally recognizable injury has he suffered as a result of this theft? To maintain a cause of action under the civil theft statute one must have been injured by the defendant’s violation of one or more of the provisions of the criminal theft laws found in sections 812.012-037, Florida Statutes (1989). See § 772.11, Fla.Stat. (1989). This injury can only be established if it is shown that the victim has a legally recognized property interest in the items stolen.
The mere expectation that the equipment sold to Ciro’s could be used to satisfy a judgment that appellee would eventually obtain against the corporation represents a highly speculative harm to appellee at best. Furthermore, appellee confronts yet another insurmountable obstacle in proving his claim because such a vague, amorphous, and presently unrealized interest could hardly be considered “property” subject to theft within the meaning of the criminal theft statutes. Although property is defined in the statute as anything of value and includes “rights, privileges, interests and claims”, the “owner” must be capable of having “an interest in the property upon which another person is not privileged to infringe without consent”. §§ 812.012(3)(a) and 812.012(4), Fla.Stat. (1989). Appellee has shown neither a legally recognizable interest in the property nor quantifiable injury to himself and has presented no persuasive authority to support his position.

Id. at 279-80 (internal citation omitted and emphasis added).

Similarly, in this case, what the state alleged was lost was the opportunity for other deputies to work for overtime pay. This opportunity did not belong to any one of them. It simply does not fit the definition of property traditionally used in criminal prosecutions and specifically not used in similar federal statutes. See Henry.

While Dent’s manipulation of the signup system for overtime duty may have violated the policies of the department, and may be grounds for discipline or termination, she did not obtain “property” within the meaning of the statute. Therefore, no violation of section 817.034 occurred.

We reverse and direct that Dent’s conviction and sentence be vacated.

STEVENSON, J., and STONE, BARRY J., Senior Judge, concur.

      . In determining whether the law has traditionally recognized a property right, federal courts may look to state courts for guidance. See, e.g., Cleveland v. United States, 531 U.S. 12, 23-24, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) (analyzing state law to assess alleged property interest in gaming licenses); United States v. Antico, 275 F.3d 245, 262-64 (3d Cir.2001) (analyzing state law to determine scope of public employee's obligations in honest services fraud case).


author: CIKLIN, J.

text:
    POMPANO MASONRY CORPORATION, a Florida corporation, and Julian Marie Breslow Revocable Trust, Appellants, v. Joseph S. ANASTASI, Appellee.
    No. 4D12-181.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.

      Jeffrey A. Sarrow of Jeffrey A. Sarrow, P.A., Coral Springs, for appellants.
    Todd R. Legón and William F. Rhodes of Legón Ponce & Fodiman, P.A., Miami, for appellee.
   CIKLIN, J.

Pompano Masonry Corporation (“Pompano”) and Julian Marie Breslow Revocable Trust (“Breslow Trust”) appeal an award of attorneys’ fees as a sanction pursuant to Florida Rule of Civil Procedure 1.730(c). Pompano and Breslow Trust assert that this court’s denial of appellate attorneys’ fees under rule 1.730(c) in an earlier appeal involving the same parties in the same litigation precludes the trial court from entering rule 1.730(c) sanctions in this case. Because the law of the case doctrine does not apply to this court’s previous denial of attorneys’ fees pursuant to rule 1.730(c), we affirm. Pompano and Breslow Trust next argue that the trial court’s order finding entitlement to rule 1.730(c) fees was invalid because it did not give sufficient -written findings of fact to warrant the sanction. We find this argument to be without merit because the trial court orally pronounced sufficient findings of fact to support the sanction.

Breslow Trust purchased Pompano from the Anastasi family. After the acquisition, Breslow Trust and Joseph Anastasi (“Anastasi”) entered into a consulting agreement. The agreement provided that Breslow Trust would pay Anastasi to provide his expertise in running the Pompano business.

The relationship between Breslow Trust and Anastasi soured, and Pompano terminated Anastasi. Anastasi brought suit for breach of contract against Pompano and Breslow Trust. Pompano and Breslow Trust, who were represented jointly by the same counsel, answered the complaint and brought counterclaims for rescission, breach of contract, and breach of fiduciary duty. Among other claims, Pompano and Breslow Trust alleged that Anastasi made an unauthorized payment of $250,000 from Pompano to his daughter.

The parties participated in court-ordered mediation, reached a settlement, and executed a mediation agreement (“Settlement”). The Settlement required the parties to dismiss the lawsuit with prejudice and Breslow Trust and Pompano to make payments to Anastasi. The Settlement also required the parties to mutually release their claims, and the Settlement specifically stated that Pompano and Breslow Trust’s “release shall also be in favor of [Anastasi’s] wife & children.”

After the Settlement was finalized, the trustee of Breslow Trust refused to sign the release. Pompano and Breslow Trust moved to vacate the Settlement on the grounds that the Settlement released non-parties to the action, which Pompano and Breslow Trust purported was contrary to the intent of the parties. The motion included an affidavit of the trustee of Bres-low Trust, which stated that she would not have signed the Settlement if she had known it would release the potential claim against Anastasi’s daughter for the allegedly unauthorized $250,000 payment.

The trial court denied the motion to vacate the Settlement. Pompano and Breslow Trust appealed the denial of the motion to vacate to this court. Anastasi moved for appellate attorneys’ fees under Florida Rule of Civil Procedure 1.730(c). This court affirmed the trial court’s ruling per curiam in Pompano Masonry Corp. v. Anastasi, 46 So.3d 61 (Fla. 4th DCA 2010) (“Anastasi /”) and denied Anastasi’s motion for appellate attorneys’ fees.

After the Anastasi I appeal was filed, but before this court decided the case, Anastasi moved for trial level attorneys’ fees under rule 1.730(c). The rule provides:

Imposition of Sanctions. In the event of any breach or failure to perform under the [mediation] agreement, the court upon motion may impose sanctions, including costs, attorneys’ fees, or other appropriate remedies including entry of judgment on the agreement.

Fla. R. Civ. P. 1.730(c).

At the conclusion of a hearing on Anas-tasi’s motion, the trial court orally pronounced its finding of fact on the record. The court found that Pompano and Bres-low Trust failed to perform under the Settlement by failing to execute the release, and the court determined that Pompano and Breslow Trust’s actions were not in good faith. The court then entered a written order which stated Anastasi was entitled to attorneys’ fees under rule 1.730(c), but the written order did not repeat the findings of fact.

The trial court scheduled an additional hearing to determine a reasonable amount of fees. Before the hearing was held, this court issued the decision denying appellate fees under rule 1.730(c) in Anastasi I. Pompano and Breslow Trust argued at the hearing that this court’s rejection of fees was binding law of the case, precluding the trial court from entering fees under the same rule. The trial court disagreed and entered an order granting Anastasi attorneys’ fees of over $40,000. Pompano and Breslow Trust now appeal the award.

Whether the law of the case doctrine applies is a question of law, and therefore our standard of review is de novo. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010) (stating that de novo standard applies to questions of law).

We begin by reconciling our prior decisions regarding whether an appellate court’s denial of attorneys’ fees constitutes binding law of the case on the trial court. See Langer v. Fels, 93 So.3d 1069 (Fla. 4th DCA 2012); McNamara v. City of Lake Worth, 956 So.2d 509 (Fla. 4th DCA 2007). In Langer, McNamara, and the instant case, there was a prior appeal in which this court affirmed the trial court’s ruling in favor of the appellees, but denied the ap-pellees’ motions for appellate attorneys’ fees. In each of these cases, the trial court entered attorneys’ fees under the same statutory basis rejected by this court in the prior appeal.

In Langer, we reversed the trial court’s entry of fees under sections 733.609 and 733.619, Florida Statutes. In McNamara, we affirmed the trial court’s entry of attorneys’ fees under section 57.105, Florida Statutes. The distinction between Langer and McNamara is the statutory bases underlying the motions for attorneys’ fees. Langer addressed statutes that provide attorneys’ fees as a matter of law when certain criteria are met. Thus, this court’s rejection of entitlement under those statutes was binding law of the case. In contrast, the statute at issue in McNamara involved a sanction centered around factual determinations by the trial court. Thus, this court’s rejection of attorneys’ fees under the sanction provision was not binding law of the case.

Rule 1.730(c) is a sanctions provision. Thus, we find that an appellate court’s rejection of appellate attorneys’ fees under rule 1.730(c) does not preclude the trial court from granting trial level attorneys’ fees under the same rule.

We turn now to the imposition of sanctions in this case. We review the trial court’s imposition of sanctions under the abuse of discretion standard. Kirkland’s Stores, Inc. v. Felicetty, 931 So.2d 1013, 1015 (Fla. 4th DCA 2006).

We begin by noting that in order to impose a sanction under rule 1.730(c), this court has stated “the trial court is required to make express findings of bad faith conduct on the part of’ the sanctioned party. Johnson v. Bezner, 910 So.2d 398, 401 (Fla. 4th DCA 2005). This court has recently elaborated on the findings requirement, stating the trial court must make “specific factual findings detailing [the sanctioned party’s] breach or failure to perform under the mediation agreement and identified those attorney’s fees and costs that [the party moving for fees] incurred as a result of such conduct.” Cox v. Great Am. Ins. Co., 88 So.3d 1048, 1049 (Fla. 4th DCA 2012) (citing Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002)).

We reject Pompano and Breslow Trust’s contention that the oral pronouncement of the trial court was insufficient to make the necessary detailed findings of bad faith conduct. “A court’s oral order is valid and binds the parties even though a written order has not been entered.” Lazy Flamingo, USA Inc. v. Greenfield, 834 So.2d 413, 415 (Fla. 2d DCA 2003) (citing Knott v. Knott, 395 So.2d 1196, 1198 (Fla. 3d DCA 1981)). Although it is preferable for the detailed factual findings to be written in the order, an order of rule 1.730(c) sanctions is not invalid simply because the findings of fact were made elsewhere in the record.

We thus find no abuse of discretion in the trial court’s award of attorneys’ fees under rule 1.730(c). In this case, the trial court found that Pompano and Breslow Trust failed to execute the release as required under the Settlement. That was a “failure to perform” the terms of the Settlement. Fla. R. Civ. P. 1.730(c). The trial court also made detailed oral findings on the record that Pompano and Breslow Trust were not acting in good faith. Finally, the court stated that Pompano and Breslow Trust’s failure to perform under the Settlement caused Anastasi to expend attorneys’ fees to ensure that the Settlement was followed, and the series of hearings on the amount of fees established the amounts expended by Anastasi.

We affirm the remaining issue without further comment.

Affirmed.

WARNER, J., and BLANC, PETER D., Associate Judge, concur.


author: GERBER, J.

text:
    STATE of Florida, Petitioner, v. Juan SANDOVAL, Respondent.
    No. 4D12-2436.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for petitioner.
    Howard Pinkelstein, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for respondent.
   GERBER, J.

The state petitions for a writ of certiora-ri directed to the circuit court’s non-final order sustaining the defendant’s objection to the state’s notice of intent to offer Williams rule evidence in two cases. The state argues that the court departed from the essential requirements of the law by: (1) improperly applying the standard for admission of inextricably intertwined evidence; and (2) failing to properly apply the seminal case for the admission of Williams rule evidence in child molestation cases, McLean v. State, 984 So.2d 1248 (Fla.2006). We agree with the state and grant the petition.

In one case, the state charged the defendant with lewd or lascivious molestation of his daughter, A.S. In another case, the state charged the defendant with one count of sexual battery while in a position of familial authority or custodial authority and two counts of lewd or lascivious molestation of his stepdaughter, M.H. In each case, the state filed its notice of intent to offer the alleged incidents from the other case as Williams rule evidence. The defendant objected to the state’s notice.

The court conducted an evidentiary hearing at which both M.H. and A.S. testified. M.H. was twenty-two years old at the time of the hearing. She testified that when she was eleven or twelve years old, the defendant molested her on various occasions. According to M.H., when her mother was not at the residence, the defendant would enter her room at night while she was sleeping. On one occasion, he tried to pull off her shorts. On a second occasion, he touched her breasts and vagina, took off her clothes, and penetrated her vagina with his finger. On a third occasion, he touched her breasts and vagina, took off her clothes, and penetrated her vagina with his penis. She did not tell anyone about the incidents at the time. Instead, she asked her mother to let her live with other relatives. She reported the incidents years later. However, she denied talking to A.S. about the incidents.

A.S. was thirteen years old at the time of the Williams rule hearing.- She testified that when she was eleven years old, she would stay weekends with the defendant, who was separated from her mother. During one visit, the defendant entered her room at night while she was sleeping. He touched her breasts and vagina. He tried to remove her underwear, but she prevented him from doing so by squeezing her legs together tightly. The next day, she told her mother and grandmother about the incident. She testified this was the only incident in which the defendant molested her. She also testified that M.H. told her about the earlier incidents before the defendant touched her.

After the hearing, the circuit court entered a written order sustaining the defendant’s objection. The order stated, in pertinent part:

Victim [M.H.] described various sexual acts done several years earlier on different dates, the last of which occurred in sixth or seventh grade. She is 22 now, and the allegations were made years after they are alleged to have last occurred in 2004.
The Defendant was accused in 2011 by victim [A.S.], who was 13 when she testified at the Williams Rule hearing. She testified there was only one incident and that it occurred while staying at her father’s residence during a weekend, during which she was touched by her father under her panties with his hand. The Court finds that the evidence of each incident was unnecessary to describe the charged acts, provide an intelligent account of the charged crimes, establish the context of the charged offenses, or describe the events leading up the offenses as to the other alleged victim. The Court also finds that this temporal break rendered the evidence related to each victim unnecessary to fully explain the charged conduct as to the other victim, that identity is not an issue, that the similarity between the facts alleged as to each victim are not sufficient to be relevant, arid that the prejudicial effect of the other crimes alleged substantially outweighs its probative value. See McLean v. State, 934 So.2d 1248 (Fla.2006).

This petition followed. The state argues that the circuit court departed from the essential requirements of the law by: (1) improperly applying the standard for admission of inextricably intertwined evidence; • and .(2) failing to properly apply McLean.

We agree with the state. To obtain certiorari relief from a pretrial eviden-tiary ruling, the state must show that the ruling was a violation of a clearly established principle of law resulting in a miscarriage of justice. See State v. Pettis, 520 So.2d 250, 254 (Fla.1988) (“While some pretrial evidentiary rulings may qualify for certiorari, it must be remembered that the extraordinary writ is reserved for those situations where there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.”) (citation and quotations omitted); State v. Sealy-Doe, 861 So.2d 530, 531 (Fla. 4th DCA 2003) (‘We have the authority to grant such a writ where the state establishes a violation of a clearly established principle of law, resulting in a miscarriage of justice, if the pretrial ruling substantially impairs the state’s ability to bring its case.”) (citing Pettis).

Here, the state has met this burden. The circuit court’s first finding appears to use language mirroring the definition of “inextricably intertwined” evidence. See Ward v. State, 59 So.3d 1220, 1222 (Fla. 4th DCA 2011) (“Evidence is ‘inextricably intertwined’ if it is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s).”) (citation omitted). However, neither party argued the “inextricably intertwined” evidence definition to the court, and the “inextricably intertwined” evidence definition is not the clearly established law applying to this type of issue.

The clearly established law applying to this type of issue is section 90.404(2)(b)l., Florida Statutes (2011), as interpreted by our supreme court in McLean. The statute provides: “In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.” § 90.404(2)(b)l., Fla. Stat. (2011).

In McLean, the supreme court explained the steps which a court should take when deciding whether to admit evidence under the statute. 934 So.2d at 1262. The court first must find that the state proved the other molestations by clear and convincing evidence. Id. The court then must assess whether the probative value of the other molestations is substantially outweighed by the danger of unfair prejudice. Id. In making that assessment, the trial court should evaluate:

(1) the similarity of the [other] acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the [other] acts to the act charged; (3) the frequency of the [other] acts; and (4) the presence or lack of intervening circumstances.

Id. This list is not exclusive, and the trial court should consider other factors unique to the case. Id. The trial court also “must determine whether the evidence of the [other] acts will confuse or mislead jurors by distracting them from the central issues of the trial.” Id. Also necessary is an assessment whether the evidence is needlessly cumulative of other evidence bearing on the victim’s credibility, and the purpose for which this evidence may be introduced. Id.

Here, although the circuit court ended its order by citing McLean, it does not appear from the court’s order that it followed the steps of McLean in deciding whether to admit the evidence under the statute. The court did not express whether: (1) the state proved the other molestations by clear and convincing evidence; (2) the evidence of other acts would confuse or mislead the jurors by distracting them from the central issues of the trial; or (3) the evidence would be needlessly cumulative of other evidence bearing on the victim’s credibility. Although the court’s second finding contains words which arguably resemble McLean’s four-factor list, the court’s lack of detail supporting its second finding, in addition to the three omissions described above and the court’s improper application of the “inextricably intertwined” evidence definition in its first finding, casts doubt on whether the court conducted its evaluation in the manner which McLean requires.

Thus, we conclude that the circuit court’s improper application of the “inextricably intertwined” evidence definition, in addition to the court’s lack of adherence to the steps of McLean, violates the clearly established principle of law founded in McLean. That violation results in a miscarriage of justice to the state. It would substantially impair the state’s ability to bring its case because the state’s case appears to rest solely on the credibility of the two alleged victims.

Based on the foregoing, we grant the state’s petition. We remand for the trial court to follow the steps of McLean in deciding whether to admit the state’s Williams rule evidence. See State v. Tameris, 54 So.3d 619, 621 (Fla. 5th DCA 2011) (quashing a circuit court’s order denying the state’s motion to introduce similar fact evidence of unlawful sexual activity with a minor, but remanding to permit the court to address other McLean factors in future proceedings).

Petition granted.

MAY, C.J., and TAYLOR, J., concur.

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


text:
    Shariff BULA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2859.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Benjamin S. Waxman of Robbins, Tun-key, Ross, Amsel, Raben & Waxman, P.A., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Peterson v. State, 94 So.3d 514, (Fla.2012).

CIKLIN, GERBER and LEVINE, JJ„ concur.


text:
    Jacky MILIEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2463.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Jacky Milien, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, POLEN and LEVINE, JJ., concur.


text:
    Guillermo DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1616.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Guillermo Diaz, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order that summarily denied appellant’s motion for postconviction relief and remand for an evidentiary hearing. The trial court denied the motion by adopting and attaching the State’s response. As the State concedes on appeal, the State’s response below acknowledged that an evidentiary hearing was required to resolve Ground (1) where appellant alleged that counsel had failed to convey a plea offer. We remand for an evidentiary hearing as to this claim and as to appellant’s Ground (2) wherein he alleged that he asked for an attorney before police questioning and that trial counsel should have discovered these facts and moved to suppress his confession as “coerced.”

In Ground (2), appellant, who filed his motion pro se, appears to be alleging a violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). While appellant was read and acknowledged that he understood his Miranda rights in his taped statement, he alleges that he asked for an attorney before police began recording. The subsequent Miranda warnings may not be sufficient. Wilder v. State, 40 So.3d 804, 805-06 (Fla. 1st DCA 2010) (quoting Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1219-20, 175 L.Ed.2d 1045 (2010)).

Appellant’s allegations in Ground (2) are not refuted by the record and must be accepted as true in this appeal. Kimbrough v. State, 886 So.2d 965, 981 (Fla.2004). The trial court may pass upon the truth of appellant’s allegations after conducting an evidentiary hearing and determine whether counsel was deficient under the circumstances of this case.

We affirm the denial of appellant’s other claims without discussion.

Reversed and Remanded for an eviden-tiary hearing.

POLEN, DAMOORGIAN and GERBER, JJ., concur.


text:
    Bobby RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-393.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Bobby Riley, Delray Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Bobby Riley appeals an order summarily denying his Rule 3.850 motion, which challenged fines and costs imposed at his sentencing. Although the trial court recognized that the motion was insufficient because it lacked an oath, it denied the motion on the merits, referring to the contents of Riley’s plea agreement. However, it did not attach a copy of the plea agreement or any other portions of the record to conclusively refute the defendant’s claims. We therefore reverse the order. On remand, if the trial court decides to deny the motion on the merits because the defendant’s claims are conclusively refuted by the record, the court should attach the appropriate portions of the record to the order. Fla. R.Crim. P. 3.850(d) (“In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order.”).

Reversed and Remanded for further proceedings.

WARNER, TAYLOR and LEVINE, JJ., concur.


author: STEVENSON, J.

text:
    Jimmy YORK, Appellant, v. Kenneth MASCARA, St. Lucie County Sheriff, Appellee.
    No. 4D11-4403.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.

      John J. Anastasio, Stuart, for appellant.
    Robert Wayne Evans of Allen Norton & Blue, P.A., Tallahassee, for appellee.
   STEVENSON, J.

After being terminated from his position as a captain with the St. Lucie County Sheriffs Office, appellant filed a petition for writ of mandamus seeking to compel the Sheriffs Office to either reinstate him or afford him a hearing before the review board, pursuant to section 30.076(3)(b), Florida Statutes (2010). The trial court dismissed the petition, concluding appellant was not entitled to the protections of chapter 30 because the managerial nature of appellant’s duties precluded him from being a “deputy sheriff’ as that term is defined in section 30.072(2), Florida Statutes (2010), and because appellant was terminated due to a reduction in force. We affirm the dismissal of the petition, albeit for reasons different than those relied upon by the trial court. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (recognizing that judgment of trial court must be affirmed where trial court is right for the wrong reason).

Collectively, sections 30.071 through 30.079, Florida Statutes (2010), govern the Sheriffs power to appoint deputies and limit the Sherriffs power to terminate deputies. Sections 30.073(5) and 30.076(1) prohibit the termination of a deputy sheriff for lawful off-duty political activity or for a discriminatory reason. Section 30.076 affords a terminated deputy the right to a hearing before a review board to challenge his termination and gives the board the authority to determine whether the termination was “politically or diseriminatorily motivated.” See § 30.076(2), Fla. Stat. These statutes apply to “all deputy sheriffs, with the following exceptions: (a) Deputy sheriffs in a county that, by special act of the Legislature, local charter, ordinance, or otherwise, has established nghts and procedures for deputy sheriffs which are equivalent to or greater than those pi'escribed by this act.” § 30.071(l)(a), Fla. Stat. (emphasis added).

The Career Service Act for the St. Lucie County Sheriffs Office, Chapter 89-475, Laws of Florida, applies to all certified and non-certified persons employed by that county’s sheriffs office, including deputy sheriffs. See Ch. 89^475, § 1, at 288. The special act provides that a “permanent status” employee, i.e., one who has been continuously employed for at least a calendar year, may be suspended or dismissed only for cause; that, prior to imposition of a suspension or a termination, the deputy sheriff must be afforded notice and an opportunity to be heard; and that a deputy sheriff who has been suspended or dismissed is entitled to a hearing before the Career Service Appeals Board to challenge such suspension/dismissal. See Ch. 89-475, §§ 1-2, at 288-90. The decision of the Board is binding upon both the employee and the Sheriffs Office. The comprehensive protections of Chapter 89-475 are at least equal to those afforded by chapter 30 and, consequently, appellant is not entitled to the due process procedures afforded by sections 30.071 through 30.079, Florida Statutes. Thus, for this reason, we affirm the trial court’s dismissal of the petition. Our holding renders moot appellant’s arguments regarding the scope of the term “deputy sheriff’ and the propriety of the trial court’s finding that appellant was not entitled to the protections of chapter 30 because he was in a managerial position and terminated due to a reduction in force.

Affirmed.

WARNER, J., and STONE, BARRY J., Senior Judge, concur.


text:
    HOME CONSTRUCTION MANAGEMENT, LLC, a Florida Limited Liability Company, and Abraham “Avi” Omer, a Florida resident, Individually, Appellants, v. COMET, INC., a Florida corporation, Appellee.
    Nos. 4D11-4022, 4D12-21.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Garry M. Glickman of Glickman, Witters & Marell, P.A., West Palm Beach, for appellants.

      Richard R. Chaves of Ciklin Lubitz Martens & O’Connell, West Palm Beach, for appellee.
   STEVENSON, J.

Appellants Home Construction Management, LLC (“HCM”) and HCM’s representative, Abraham “Avi” Omer, appeal a final judgment and damage award for various claims relating to providing unlicensed contracting services. The appellants were contacted by the appellee, Comet, Inc. (“Comet”), to complete the construction of a single-family residence in Lantana, Florida. On April 12, 2007, Comet and HCM entered into a written contract for completion of the project. Omer represented HCM throughout the parties’ relationship, but neither HCM nor Omer was a licensed contractor. Comet sued, in relevant part, for disgorgement of overcharges and treble damages under section 768.0425(2), Florida Statutes (2007). After a bench trial, the trial court entered a final judgment on October 7, 2011, which trebled damages in the amount of $41,747.58 in overbillings, making HCM and Omer jointly and severally liable up to the damage amount of $125,242.74.

We affirm all issues but the trial court’s application of section 768.0425 against Omer individually. The question involves the interpretation of a statute and is subject to de novo review. See Tasker v. State, 48 So.3d 798, 804 (Fla.2010). For the purpose of trebling damages, section 768.0425(1) separately defines “contractor” as “any person who contracts to perform any construction or building service which is regulated by any state or local law, including, but not limited to, chapters 489 and 633.... ” The trial court specifically found that Omer was not a party to the written contract between HCM and Comet, therefore, Omer did not “contract[ ] to perform” any service as required by section 768.0425. We narrowly construe the language “person who contracts to perform” in section 768.0425(1), as treble damages are punitive and in the nature of a fine or penalty. See Country Manors Ass’n v. Master Antenna Sys., Inc., 534 So.2d 1187, 1195 (Fla. 4th DCA 1988) (noting that treble damages under the civil theft statute are punitive); McArthur Dairy, Inc. v. Original Kielbs, Inc., 481 So.2d 535, 539-40 (Fla. 3d DCA 1986) (same); see also Holmberg v. Dep’t of Natural Res., 503 So.2d 944, 947 (Fla. 1st DCA 1987) (restating well-settled Florida law that statutes imposing a penalty or fine must be construed strictly in favor of the one against whom the penalty is imposed). We reverse the portion of the judgment trebling the damage award against Omer.

Affirmed in part, reversed in part.

GERBER and CONNER, JJ., concur.


text:
    Michael MARIANI, Appellant, v. Jay MARIANI, individually and as trustee of the Mariani Irrevocable Trust, JAY Mariani Jr., Jane Mariani, Robert Mariani, Joel Mariani, Jill Lowe, a/k/a Jill Mariani, Justine Shearer, a/k/a Justine Mariani, Kristin Mariani, Barbara Travers, a/k/a Barbara Mariani, Eric Mariani, Matthew Mariani, and Monica Kroll, a/k/a Monica Mariani, as beneficiaries of the Mariani Irrevocable Trust, Appellees.
    No. 4D11-3659.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.

      Anya M. Kudszus, Shannon L. Rountree and Jeffrey H. Skatoff of Clark Skatoff PA, Palm Beach Gardens, for appellant.
    Steven G. Schwartz and Nancy I. Stein-McCarthy of Schwartz Law Group, Boca Raton, for appellees Jay Mariani, Joel Mariani and Jane Mariani.
   STEVENSON, J.

Appellant Michael Mariani appeals an order denying his motion for summary judgment, which resulted in a final judgment disposing his entire case. The court below found that appellant is not a current beneficiary under the “clear” and “plain language” of the Jane Mariani Irrevocable Wealth Trust (“Trust”) and therefore is ineligible to request or receive discretionary distributions from, the Trust. We disagree. As the trial court was construing the plain language of the Trust, the standard of review is de novo. Burgess v. Prince, 25 So.3d 705, 706 (Fla. 2d DCA 2010). We find that the terms of the Trust are ambiguous with regard to whether the settlor intended that her grandchild, the appellant, would be eligible to receive discretionary distributions during the lifetime of his father, a clear current beneficiary under the Trust. As disputed issues of fact remained, summary judgment was improper. Accordingly, the judgment is reversed, and the matter is remanded for further proceedings. See Knauer v. Barnett, 360 So.2d 399, 405 (Fla.1978) (when the trust instrument is ambiguous, the intent of the settlor may be ascertained from extrinsic evidence).

Reversed and remanded.

GERBER and CONNER, JJ., concur.


text:
    Hillary MOFORIS, Appellant, v. Stavros MOFORIS, Appellee.
    No. 4D11-31.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Susan R. Brown of Susan R. Brown, P.A., Hollywood, for appellant.
    Nancy A. Hass of Nancy A. Hass, P.A., Hallandale Beach, for appellee.
   PER CURIAM.

We reverse and remand for the trial court to address vacation and holiday time-sharing in the final judgment. Todd v. Guillaume-Todd, 972 So.2d 1003, 1006 (Fla. 4th DCA 2008). We affirm the final judgment in all other aspects.

Affirmed in part and reversed in part.

STEVENSON, GERBER and CONNER, JJ., concur.


text:
    Jalima ROMERO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2667.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Martin J. Rivas, Coral Gables, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s motion for postconviction relief. The record conclusively refutes appellant’s claim that she pleaded unaware that she would be deported.

During the plea colloquy, the following transpired:

COURT: Are you a United States citizen?
THE DEFENDANT: No.
COURT: Do you understand that this plea will subject you to deportation?
THE DEFENDANT: Yes.
COURT: Knowing that, do you still want to plead.
THE DEFENDANT: No contest.
COURT: My question is, knowing that by pleading you are going to be deported do you still want to plead?
THE DEFENDANT: Yes.

Appellant was clearly aware that her plea in this case would result in her deportation. The Padilla claim is without merit.

Affirmed.

MAY, C.J., GERBER and CONNER, JJ., concur.

      . Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).


author: CONNER, J.

text:
    HOANG DINH DUONG, M.D., Radiology Associates of Hollywood, P.A., and Truck Insurance Exchange, Appellants, v. Olivia ZIADIE, as plenary guardian of the person and property of Francis Ziadie, incapacitated, Philip Ziadie and Paul Ziadie, Appellees.
    No. 4D10-1381.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.

      Mark Hicks, Cindy L. Ebenfeld and Dinah S. Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Cooper City, for appellants Hoang Dinh Duong, M.D. and Radiology Associates of Hollywood, P.A.
    Michael C. Rotunno of Marlow Connell Abrams Adler Newman & Lewis, Coral Gables, for appellant Truck Insurance Exchange.
    Philip M. Burlington and Bard D. Rock-enbach of Burlington & Rockenbach, P.A., West Palm Beach, and Crane A. Johnstone of Sheldon J. Schlesinger, P.A., Fort Laud-erdale, for appellees.
   CONNER, J.

Francis Ziadie suffered brain damage and permanent disability when Dr. Duong punctured his carotid artery during a cath-eterization procedure. Dr. Duong moved for a new trial after discovering two jurors did not disclose prior litigation experience during jury selection. Our supreme court has established a three-part test for determining whether a juror’s nondisclosure of information warrants a new trial. The trial court determined the withheld information was not material. We affirm the denial of the motion for new trial.

Prior to trial, the court directed the attorneys to conduct pre-qualification of over 300 jurors by requiring each of them to fill out a written questionnaire. Relevant to the issues raised in this appeal, question number 9 asked the prospective jurors:

Have you or any members of your immediate family ever been a party to a lawsuit, where you brought suit or suit was brought against you, either civil or criminal? (Give specifics).

Juror One and Juror Two answered the question by writing “No.”

After the verdict for the appellees, Dr. Duong’s counsel investigated the background of the jurors and discovered Jurors One and Two had past involvement in civil and criminal cases. Nine days after the verdict, Dr. Duong moved to interview Jurors One and Two. After the interviews, Dr. Duong moved for a new trial based upon juror misconduct, which the trial court denied.

As we said in Taylor v. Magana, 911 So.2d 1263, 1267 (Fla. 4th DCA 2005) (quoting Vanderbilt Inn on the Gulf v. Pfenninger, 834 So.2d 202; 203 (Fla. 2d DCA 2002)) (alteration omitted) (internal citations omitted) (internal quotation marks omitted):

The standard of review of a trial court’s order granting a new trial because of juror concealment of information is abuse of discretion. If reasonable people could differ as to the propriety of the court’s ruling, then the abuse of discretion standard has not been met.
Furthermore, as articulated by the court in Roberts v. Tejada, 814 So.2d 334, 345 (Fla.2002), due deference is to be granted to the trial judge because it is at the trial level that the dynamics and context of the entire trial process can best be evaluated.

Both parties agree that the operative test is set forth in De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995) (internal citations omitted):

In determining whether a juror’s nondisclosure of information during voir dire warrants a new trial, courts have generally utilized a three-part test. First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.

Materiality is the pertinent issue in this appeal as to the first prong of the test. “Materiality is only shown where the omission of the information prevented counsel from making an informed judgment— which would in all likelihood have resulted in a peremptory challenge.” State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363, 365 (Fla.2002) (internal quotations omitted). “Materiality must be analyzed on a case-by-case basis.” Gamsen v. State Farm Fire & Cas. Co., 68 So.3d 290, 293 (Fla. 4th DCA 2011).

In this case, Dr. Duong’s investigation uncovered that Juror One had been a party to five lawsuits, and Juror Two had been a party to three lawsuits. One action against Juror One was a criminal welfare fraud conviction; one was a collection action from 2007; one was an eviction in 1991; and two were paternity and child support actions brought on Juror One’s behalf by the Florida Department of Revenue. All three of the actions against Juror Two were collection actions, two of which were brought in 2005 and resulted in judgments of $9200 and $29,000 that have not been paid.

The trial court held this information was not material because there was no evidence the jurors were biased or sympathetic to the plaintiff based on their past litigation experience and because Dr. Duong’s counsel accepted another juror with similar past litigation experience.

Although all of the prior litigation experience for both jurors was dissimilar to medical malpractice litigation, Dr. Duong argues it was material, based upon cases such as Castenholz v. Bergmann, 696 So.2d 954 (Fla. 4th DCA 1997). In that medical malpractice case, a juror failed to disclose involvement in five prior legal actions, including: welfare fraud charges, a small claims action, two lawsuits to recover money owed that resulted in judgments, and a foreclosure action. Id. at 955. In Castenholz, we determined the trial court did not err in granting a new trial due to the failure to disclose prior litigation history. Id. Dr. Duong also asserts that he would have “undeniably” moved to strike Jurors One and Two because their past litigation history calls into question their honesty and trustworthiness.

Ziadie responds that a party’s failure to strike other jurors is useful in considering whether a party would have exercised a strike on a non-disclosing juror. For example, in Garnett v. McClellan, 767 So.2d 1229 (Fla. 5th DCA 2000), the court held there was no evidence to suggest the defendant would have stricken a juror who failed to disclose a prior automobile accident in which he was not injured when defense counsel did not object to another juror who was also involved in a non-injury accident and only struck jurors who were still suffering from accident injuries. Id. at 1231.

Other prospective jurors, one of whom served, had litigation experience, but they were either not questioned about the experience or challenged by Dr. Duong in this case. Ziadie points out that prospective Juror S’s husband was forced to sue an insurance company after a car accident to expedite payment, and prospective Juror S was involved in landlord-tenant actions as a landlord. Dr. Duong’s counsel accepted prospective Juror S, and it was Ziadie’s counsel who struck her. Juror F had a cousin who died as a result of paramedic malpractice, and his cousin’s parents filed a lawsuit. Dr. Duong’s counsel did not make a challenge for cause or use a preemptory challenge to remove Juror F.

Juror M was arrested for theft when he attempted to return a pair of shoes he did not purchase. Ziadie’s counsel declined to ask questions about the situation, commenting it was “not a big deal.” Dr. Duong’s counsel did not ask Juror M any questions about any litigation resulting from the arrest and did not exercise a challenge for cause or a preemptory challenge, despite Juror M’s admission of attempting to steal.

Despite the rather brief inquiries by Ziadie’s counsel, Dr. Duong’s counsel did not ask prospective Juror S or Juror F any follow-up questions about their litigation experiences and failed to ask Juror M any questions about any litigation resulting from his arrest. Ziadie argues that the failure to ask questions about litigation histories demonstrates Dr. Duong was not concerned with having jurors with past litigation experience on the panel. In reply, Dr. Duong points out that no juror had litigation histories as extensive as Jurors One and Two, and prospective Juror S, Juror F, and Juror M were all forthcoming about their litigation histories. After reviewing the transcripts of voir dire, we are not persuaded by Dr. Duong’s counter-argument.

The trial court did not abuse its discretion in determining the undisclosed lawsuits were not material. None of the undisclosed lawsuits are similar to a medical malpractice action, or involve personal injury at all, and several of Juror One’s prior lawsuits were decades before her jury service in this case. All of the recent civil lawsuits involved collection actions, but experience as a defendant in a collection action would not imply a bias or sympathy for or against a medical malpractice victim. Dr. Duong’s assertion that he would have stricken a person convicted of welfare fraud does not seem genuine given that he did not challenge or strike a juror who admitted to attempting to steal money from a store. We do not agree Dr. Duong has demonstrated that his knowledge of the undisclosed lawsuits “would in all likelihood have resulted in a peremptory challenge” of Jurors One and Two.

Dr. Duong also argues that the trial court’s reliance on whether Jurors One and Two were biased or sympathetic is misplaced because the Florida Supreme Court has directly stated that prejudice is not a factor in the De La Rosa test. State Farm, 837 So.2d at 365. It is true that whether or not a challenged juror was actually biased is not relevant to materiality. Fine v. Shands Teaching Hosp. & Clinics, 994 So.2d 426 (Fla. 1st DCA 2008). However, prejudice is relevant to determine whether the undisclosed information would imply that the juror would be biased toward an opposing party or litigation in general, such that counsel would in all likelihood use a preemptory challenge to strike the juror. See De La Rosa, 659 So.2d at 241; McCauslin v. O’Conner, 985 So.2d 558 (Fla. 5th DCA 2008).

Having determined the trial court did not abuse its discretion in finding that Dr. Duong did not meet the first prong of the De La Rosa test, we affirm. We also affirm without discussion the issue regarding jury instructions.

Affirmed.

WARNER and STEVENSON, JJ., concur.


text:
    Ashley LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2854.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Ashley Lawrence, Live Oak, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant filing a sworn and timely motion for post-conviction relief. Fla. R.Crim. P. 3.850; Johnson v. State, 60 So.3d 1045, 1049, 1052 (Fla.2011); Seplow v. State, 82 So.3d 948 (Fla. 4th DCA 2011); Buie v. State, 100 So.3d 768, 769 (Fla. 5th DCA 2012); Crawford v. State, 77 So.3d 807, 808 (Fla. 3d DCA 2011); Green v. State, 62 So.3d 1148, 1149 (Fla. 1st DCA 2011).

WARNER, GERBER and CONNER, JJ., concur.


text:
    Chadrick PRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2665.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.

      Chadrick Pray, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s rule 3.800(a) motion to correct an illegal sentence. Appellant has previously challenged his 10-20-life sentence for attempted robbery with a firearm. Appellant has not shown that any manifest injustice results from refusing to reconsider this claim where he is serving a concurrent sentence of the same length on count I and the sentence for count I is legal. State v. McBride, 848 So.2d 287, 292 (Fla.2003).

WARNER, STEVENSON and CIKLIN, JJ., concur.


text:
    Juan Alberto ROCHA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2146.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Juan Alberto Rocha, Zephyrhills, pro se.
    No appearance required for appellee.
   PER CURIAM.

Juan Alberto Rocha appeals the denial of his Rule 3.800 motion and motion for rehearing, which sought more jail credit than that awarded pursuant to his plea agreement. We affirm. See Johnson v. State, 60 So.3d 1045 (Fla.2011) (holding that challenges to plea agreement provisions regarding credit for time served are not cognizable under the rule providing a mechanism for correcting the improper denial of credit for time served, because those challenges present factual questions that cannot be resolved on the basis of the court records).

Affirmed.

TAYLOR, DAMOORGIAN and CONNER, JJ., concur.


text:
    CITY OF HOLLYWOOD, Florida, Appellant, v. Steven KOHN, Appellee.
    No. 4D12-1548.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Rehearing Denied March 20, 2013.

      Jeffrey P. Sheffel, City Attorney, and Alan Fallik, Deputy City Attorney, Hollywood, for appellant.
    Steven Kohn, Hollywood, pro se.
   PER CURIAM.

Dismissed. See Bushweiler v. Levine, 476 So.2d 725 (Fla. 4th DCA 1985).

STEVENSON, CIKLIN, JJ., and MORGAN, DAVID C., Associate Judge, concur.


text:
    Precious JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1370.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

SWARNER, STEVENSON and CIKLIN, JJ., concur.


author: LEVINE, J.

text:
    Charles UMILE, Appellant, v. Nicholas VOLPE, Appellee.
    No. 4D12-479.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Rehearing Denied April 24, 2013.

      Richard Kupfer of Richard A. Kupfer, P.A., Delray Beach, and David J. Acher, Fort Lauderdale, for appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
   LEVINE, J.

The issue presented is whether the trial court erred in granting summary judgment for appellee, where appellant was injured as he attempted to install an attic ladder in appellee’s home. We find disputed issues of material fact exist as to whether appellee agreed to assist appellant, and if so, whether appellee negligently failed to assist appellant while he descended a ladder. We reverse and remand.

Appellant had previously worked as a handyman for appellee. On this occasion, appellee hired appellant to install an attic ladder. While installing the ladder, appellant fell and sustained injuries that ultimately required the amputation of his leg. Appellant filed a complaint alleging, inter alia, that appellee participated in the installation of the ladder and that appellee negligently failed to properly assist appellant.

In his deposition, appellant testified that he agreed to install the attic ladder, but told appellee that this was a two-person installation, and appellee agreed to assist. While appellant was in the attic, he asked appellee to remove two planks of wood that were covering a hole in the attic floor so that appellant could get down. Appel-lee complied with appellant’s request. Appellant further alleged that he told appel-lee to position an A-frame ladder where appellant could reach it and to hold it while he came down. Appellant could not see appellee from the attic, but he assumed appellee had moved the ladder and positioned it properly. Appellant did not inform appellee that he was coming down the ladder, nor did he ask if appellee was holding the ladder before he began to descend. When appellant exited the attic, the ladder tipped over and appellant was seriously injured.

Appellee asserted that he was merely a passive nonparticipant in the installation and did not negligently create the condition that injured appellant. Appellee testified that he did not assist appellant, and that the extent of his involvement may have included handing tools to appellant, like he had done in the past. Appellee admitted he held the ladder when appellant went up in the attic, explaining that it was “just a natural feeling.”

After a hearing, the trial court granted summary judgment in favor of appellee. Appellant appeals.

An order granting summary judgment is reviewed de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.

“As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work.” Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So.2d 593, 595 (Fla. 4th DCA 2008). However, “[liability may be imposed if the owner actively participates and controls the manner in which the work is performed, or if the owner performs one or more specific acts of negligence.” Ahl v. Stone Sw., Inc., 666 So.2d 922, 924 (Fla. 1st DCA 1995); see also Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973).

In the present case, disputed issues of material fact exist as to whether appel-lee agreed to hold the ladder. This is a key question of fact, since the law is clear that “an action undertaken for the benefit of another, even gratuitously, must be performed in accordance with an obligation to exercise reasonable care.” Vendola v. S. Bell Tel. & Tel. Co., 474 So.2d 275, 278 (Fla. 4th DCA 1985). Thus, if appellee agreed to hold the ladder, he had a duty to perform the action with “reasonable care.” Accordingly, the trier of fact should deter mine whether appellee accepted the duty to hold the ladder, and if so, whether he negligently performed the action by not holding the ladder. Further, even if appellant descended the A-frame ladder without announcing he was coming down, that would not vitiate appellee’s duty to hold the ladder if he had previously agreed to hold it. At most, this would go to the comparative negligence of appellant, not result in a finding of no duty by appellee.

Reversed and remanded.

WARNER and CIKLIN, JJ., concur.

      . In Strickland v. Timco Aviation Services, Inc., 66 So.3d 1002, 1006 (Fla. 1st DCA 2011), the court stated that a property owner "can be held liable for damages sustained by an employee of an independent contractor where (1) the property owner actively participates in or exercises direct control over the work; or (2) the property owner negligently creates or negligently approves a dangerous condition.” (emphasis added). However, we note that the case Strickland cites for this proposition uses the word "and” rather than "or.” See Ahl, 666 So.2d at 924.


text:
    Trenton PRESTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-288.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Yaluntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, GERBER and LEVINE, JJ., concur.


text:
    Joshua BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3454.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Joshua Butler, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to Appellant filing a rule 3.800(a) motion to challenge any concurrent habitual felony offender and prison releasee reoffender sentences that are of equal length in violation of Grant v. State, 770 So.2d 655 (Fla.2000). See also Bartee v. State, 28 So.3d 119 (Fla. 5th DCA 2010).

Affirmed.

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


text:
    Jarvis HARVARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3197.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Jarvis Harvard, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Baker v. State, 878 So.2d 1236 (Fla.2004) (habeas corpus relief is not available to obtain relief available either on direct appeal or by motion in the sentencing court pursuant to Rule 3.850).

WARNER, POLEN and STEVENSON, JJ., concur.