author: PER CURIAM. GERSTEN, C.J.

text:
    Robert RODRIGUEZ, Appellant, v. Archbishop John C. FAVALORA, etc., Appellee.
    No. 3D07-1931.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Rehearing and Rehearing En Banc Denied July 2, 2009.
    Ronald P. Weil, Miami, and Manuel A. Rodriguez, Coral Gables, for appellant.
    Gaebe, Mullen, Antonelli, Esco & DiMatteo and Miriam R. Merlo, and Anne C. Sullivan, Coral Gables, for appellee.
    Before GERSTEN, C.J., and SHEPHERD and LAGOA JJ.
   PER CURIAM.

Affirmed. See Davis v. Monahan, 832 So.2d 708 (Fla.2002).

SHEPHERD and LAGOA, JJ., concur.

GERSTEN, C.J.

(dissenting).

I respectfully dissent. Although this case may not merit a footnote in the history of United States/Cuba relations, it will be an indelible part of Roberto Rodriguez’ psyche. Therefore, because I believe that equitable legal grounds and sound public policy call for delayed accrual of the statute of limitations in this childhood sexual abuse case, I would reverse.

Roberto Rodriguez (“Rodriguez”) was a “Pedro Pan” child. “Operation Pedro Pan” was a semi-clandestine operation, which in late 1960 attempted to remove children from Cuba after Fidel Castro came into power. Over 14,000 unaccompanied Cuban children came to the United States between 1960 and 1962. Approximately half of these children had no relatives or friends to receive them in the United States. Thus, upon their arrival, they were cared for by the charitable arm of the Archdiocese of Miami, the Catholic Welfare Bureau (“CWB”). CWB’s director, Father Bryan O. Walsh, set up facilities in Miami to house the children until they could be reunited with their parents. See generally Yvonne M. Conde, Operation Pedro Pan: The Untold Exodus of 14,000 Cuban Children (1999).

Rodriguez sued Archbishop John C. Fa-valora, as Archbishop of the Archdiocese of Miami (“the Archdiocese”), for damages resulting from sexual abuse which allegedly occurred while Rodriguez was under CWB care. The trial court dismissed the complaint as barred by the statute of limitations. Rodriguez appeals.

The Archdiocese contends that the suit is barred by the negligence statute of limitations. Rodriguez asserts that the doctrine of delayed discovery should be applied to delay the running of the statute. I agree with Rodriguez.

The dismissal of a complaint is reviewed de novo. The appellate court confines its review to the four corners of the complaint, accepting the allegations of the complaint as true, and construing them in the light most favorable to the plaintiff. See, e.g., Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078 (Fla. 2d DCA 2002).

Rodriguez’ complaint states that he arrived in Miami in December of 1961, when he was eleven years old. Rodriguez was transported to a CWB camp in Florida City where he stayed until the spring of 1962. At this camp, Rodriguez was sexually abused. CWB later assigned Rodriguez to a foster home where he remained for approximately two years. From there, CWB provisionally returned Rodriguez to a CWB camp in Opa-Locka in 1964.

Rodriguez spent his final years of CWB care in a Texas reformatory for delinquent children. Rodriguez believes he was sent to the Texas reformatory in an effort to silence his complaints about the abuse. Rodriguez also alleges that while at the reformatory, he was given a regimen of unknown drugs. In 1966, at the age of 16, Rodriguez was finally reunited with his parents.

Rodriguez claims that between 1961 and 1966 the Archdiocese and its agents were the functional equivalent of his parents. As such, the Archdiocese owed him an affirmative duty of care. This duty included providing for his emotional, physical, and psychological well being and development. This duty also entailed furnishing him with a safe and secure environment with appropriate supervision, counsel, and instruction.

Rodriguez alleges that the Archdiocese breached its duty because, while under the Archdiocese’s care, he was physically and emotionally threatened, sexually victimized, and generally traumatized. As a result of the Archdiocese’s breach of duty, Rodriguez claims he suffered damages.

Significantly, Rodriguez alleges in his complaint that he is unable to recall the precise acts of abuse committed against him. He attributes this memory loss to his age at the time, the drugs he was given, and the trauma he suffered. Specifically, he alleges that “memory of his assaults, abuse and victimization [were] systematically extinguished,” and that he “never recalled, or spoke of any of the acts of abuse he suffered.”

Rodriguez’ claim is based on negligence. Thus, on the motion to dismiss, the trial court had to determine when Rodriguez’ claim of negligence accrued, and whether Rodriguez filed the action within the time prescribed by the statute of limitations. This decision involves analyzing the applicable statute of limitations, and exceptions to the statute’s exclusionary effect.

A cause of action accrues when all the elements necessary to the cause of action are present. § 95.031(1), Fla. Stat. (2005). The statute of limitations for negligence provides that the action must be commenced within four years from the date of accrual. §§ 95.11(3), 95.031, Fla. Stat. (2005).

A negligence cause of action consists of three elements: (1) a duty recognized by law requiring the defendant to conform to a certain standard of conduct; (2) a failure on the part of the defendant to perform that duty; and (3) injury or damage to the plaintiff proximately caused by such failure. Stahl v. Metro. Dade County, 438 So.2d 14, 17 (Fla. 3d DCA 1983). For personal injury based on the negligent act of another, generally the date when the injury occurs is the event which triggers accrual. Cristiani v. City of Sarasota, 65 So.2d 878, 879 (Fla.1953).

Under the negligence statute of limitations, therefore, Rodriguez’ claim should have been filed four years from the date of his injury. Assuming arguendo the date of Rodriguez’ last injury coincided with the date Rodriguez was released to his parents in 1966, Rodriguez’ negligence claim should have been filed by 1970.

The statute of limitations’ exclusionary effect, however, may be circumvented in certain circumstances. One of these circumstances is referred to as the delayed discovery doctrine. Hearndon v. Graham, 767 So.2d 1179 (Fla.2000). This doctrine “generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortuous act giving rise to the cause of action.” 767 So.2d at 1184.

Hearndon involved a suit against a stepfather for damages resulting from childhood sexual abuse. The abuse allegedly began when the victim was about 8 years old, and continued until 1975, when she turned 15. However, the victim did not file her lawsuit until 1991, when she allegedly recovered her memory about the abuse.

The Hearndon Court conceded that delayed discovery is not one of the statutorily authorized grounds for tolling a limitation period. 767 So.2d at 1185; see also § 95.051, Fla. Stat. (2006). Nonetheless, the Court recognized a difference between circumstances delaying an action’s accrual and tolling a statute of limitations. Regarding the statutory prohibition of tolling on other grounds, the Court wrote:

[T]he Legislature limited the justification for tolling limitation periods to the exclusion of delayed discovery due to loss of memory, but did not likewise limit the circumstances under which accrual may have been delayed.... The Florida Statutes do not impede, however, the delay of the accrual of a cause of action.

767 So.2d at 1185 (footnotes omitted).

The Court went on to state that the majority rule and the modern trend favors allowing delayed discovery in cases alleging childhood sexual abuse. The Court took into account the doctrine’s use in other areas of tort law, such as medical malpractice. It also accepted “that the shock and confusion resultant from childhood molestation, often coupled with authoritative adult demands and threats of secrecy, may lead a child to deny or suppress such abuse from his or her consciousness.” 767 So.2d at 1186.

Finally, the Hearndon Court concluded that, given the “uniquely sinister” nature of child abuse, it would be unfair to deny child abuse victims the use of the doctrine. 767 So.2d at 1186. The Court, therefore, decided that Hearndon’s lawsuit should be allowed to proceed.

In 1992, the Legislature codified the delayed discovery doctrine in connection with intentional torts based on abuse. § 95.11(7), Fla. Stat. (1992). Subsection 7 states:

An action founded on alleged abuse ... may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later.

The amendment was not applicable in Hearndon. This case, however, requires that we decide whether the provision’s enactment mandates a different result from Hearndon.

Here, the trial court determined that section 95.11(7) bars Rodriguez’ claim. As the trial court acknowledges, section 95.11(7) “enlarge[ed] the limitations period for claims of childhood sexual abuse,” and “permits an adult who was a victim of childhood abuse to file a complaint at any point in his or her lifetime, as long as it is within four years of the date the victim discovers or realizes the harm caused by the abuse.” However, because the statute limits the delayed discovery doctrine to intentional torts, the trial court refused to extend it to Rodriguez’ negligence claim.

The majority’s per curiam affirmance, albeit in a more summary fashion, agrees with the trial court’s reasoning, based on Davis v. Monahan, 832 So.2d 708 (Fla.2002). Respectfully, I do not believe Davis is controlling here.

Davis involved claims for breach of fiduciary duty, civil theft, conspiracy, conversion, and unjust enrichment arising from family members’ misappropriation of the financial assets of an elderly relative. The plaintiff argued for application of the delayed discovery doctrine to bring her suit within the statute of limitations. The Court explained its reasons for rejecting the doctrine:

While we applied the delayed discovery doctrine to causes of action arising out of childhood sexual abuse and repressed memory in Heamdon, we did so only after considering the unique and sinister nature of childhood sexual abuse, as well as the fact that the doctrine is applicable to similar cases where the tortious acts cause the delay in discovery. We also considered the Legislature’s endorsement in amending section 95.11(7), Florida Statutes (1999), to include intentional torts based on abuse and the fact that the application of the doctrine among the states is both the majority rule and modern trend. In this case, there is no modern trend or statutory endorsement....

832 So.2d at 712.

Neither the Court’s holding in Davis nor the limited scope of the codified version of the doctrine mandate dismissal of Rodriguez’ claim, particularly at this stage of litigation. At the pleading stage, the sole consideration is whether the plaintiff can state a cause of action. Speculation about the sufficiency of plaintiffs evidence to prove the claim is irrelevant and immaterial. See, e.g., Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 205 (Fla. 3d DCA 2003).

Davis is easily distinguishable. Davis did not involve a childhood sexual abuse case. Therefore, it did not present the special circumstances discussed in Hearn-don. In Davis, the Florida Supreme Court simply restricted application of the delayed discovery doctrine, when not controlled by section 95.11(7), to childhood sexual abuse situations. Rodriguez’ claim falls squarely within this restriction. It is a childhood sexual abuse situation and is not controlled by section 95.11(7) because it is not an intentional tort.

Further, the limited scope of section 95.11(7) does not mandate dismissing Rodriguez’ claim. A well-settled principle of statutory construction is that “in those instances ‘where the language of a statute clearly limits the application to a particular class of cases, leaving no room for doubts as to the meaning of the legislature, the statute may not be enlarged or expanded to cover cases not falling within its provisions.’ ” Barruzza v. Suddath Van Lines, Inc., 474 So.2d 861, 864 (Fla. 1st DCA 1985) (quoting 49 Fla. Jur.2d, Statutes § 118 (1984)).

Section 95.11(7) clearly limits its application to intentional torts. Therefore, it may not be expanded to include other types of cases. Thus, the enactment of section 95.11(7) does not change Heamdon’s conclusion that Florida Statutes do not impede the delayed accrual of a cause of action in negligence childhood abuse cases where the plaintiff does not discover the abuse within the statutory time period.

In this case, other equitable doctrines may be applied to circumvent the preclu-sive effect of a statute of limitations. For example, equitable tolling “is used in the interests of justice to accommodate both a defendant’s right not to be called upon to defend a stale claim and a plaintiff’s right to assert a meritorious claim when equitable circumstances have prevented a timely filing.” Machules v. Dep’t of Admin., 523 So.2d 1132, 1134 (Fla.1988).

Further, equitable estoppel may also be applied “on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position.” Fla. Dep’t of Health & Rehab. Servs. v. S.A.P., 835 So.2d 1091, 1096 (Fla.2002) (citing Major League Baseball v. Morsani, 790 So.2d 1071, 1076 (Fla.2001)). Equitable estoppel operates to prevent the wrongdoer from profiting from his or her own misconduct when the misconduct results in the victim’s inability to timely raise his or her claim. Major League Baseball, 790 So.2d at 1077.

As the Florida Supreme Court stated: the fundamental purposes served by the statute of limitations and the doctrine of equitable estoppel are congruent.... [A] main purpose of the statute of limitations is to protect defendants from unfair surprise and stale claims. A prime purpose of the doctrine of equitable estoppel, on the other hand, is to prevent a party from profiting from his or her wrongdoing. Logic dictates that a defendant cannot be taken by surprise by the late filing of a suit when the defendant’s own actions are responsible for the tardiness of the filing. The two concepts, i.e., the statute of limitations and equitable estoppel, thus work hand in hand to achieve a common goal, the prevention of injustice.

Major League Baseball, 790 So.2d at 1078 (footnote omitted).

Here, the interests of justice and principles of fair play call for allowing Rodriguez’ claim to proceed beyond a motion to dismiss. Rodriguez attributes his inability to timely file his claim to the general trauma associated with childhood sexual abuse and CWB’s misconduct in giving him unknown drugs which affected his memory.

Finally, the public policy weighs heavily in favor of allowing Rodriguez’ claim to proceed. The statute of limitations’ interest of protecting defendants from enforcement of stale claims must give way to the more compelling state interest of protecting children from harm. See Jones v. State, 640 So.2d 1084, 1085 (Fla.1994) (“As evidenced by the number and breadth of the statutes concerning minors and sexual exploitation, the Florida Legislature has established an unquestionably strong policy interest in protecting minors from harmful sexual conduct.” (footnote omitted)).

Accordingly, because in my view the trial court and the majority erred both as a matter of law and as a matter of public policy in dismissing Rodriguez’ negligence claim, I respectfully dissent.

      . Pedro Pan is Spanish for Peter Pan.

      . This provision remains unchanged to date. § 95.11(7), Fla. Stat. (2008).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tairy JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2075.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Rehearing Denied June 17, 2009.

      Tairy Jones, in proper person.
    Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, and SALTER, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of the appellant’s motion for rehearing, we withdraw the opinion issued February 18, 2009, and issue the following opinion in its place.

In May 2005, the appellant entered a plea in three cases. In circuit court case number F02-24777, the agreed sentence was based on the assumption that a prior “robbery carjacking” conviction, case number F01-29279, was a sufficient predicate for qualification under the habitual violent felony offender (HVFO) statute, section 775.084(1)(b), Florida Statutes (2004). The appellant’s motion under Florida Rule of Criminal Procedure 3.800(a) alleged that the “robbery carjacking” conviction was not an enumerated offense under the HVFO statute and that his 2005 sentence was therefore illegal to that extent.

The circuit court denied the motion, attaching a copy of the transcript of the plea colloquy and the stipulations regarding the appellant’s HVFO notice and qualification. The record indicates that the appellant’s conviction in case number F01-29279 was for the offense of “carjacking” under section 812.133, Florida Statutes (2001), and that he was not convicted of a separate offense of “robbery” under section 812.13.

We conclude, as did the Fourth District, that “[cjarjacking and robbery are still classified as separate offenses,” and carjacking is not included “as a qualifying offense for HVFO status.” Brooks v. State, 837 So.2d 1125, 1126 (Fla. 4th DCA 2003). We may wonder why the Legislature has not included carjacking in the offenses enumerated in section 775.084(1)(b) (though robbery is a lesser included offense of carjacking), but ours is not to reason why. On this record, we are obligated to reverse the denial of the appellant’s motion below.

Accordingly, we reverse the order below and remand the case to the circuit court with instructions to vacate the HVFO adjudication, substituting in its place a habitual felony offender (HFO) adjudication. The trial court did not impose a mandatory minimum sentence based on the appellant’s HVFO status, with the result that the original sentencing intent can be given effect despite this change. See Blackshear v. State, 531 So.2d 956 (Fla.1988). The appellant need not be present at the new sentencing hearing.


text:
    Waymon KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5181.
    District Court of Appeal of Florida, First District.
    April 21, 2009.
    Waymon Kirkland, pro se, Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of a rule 3.800(a) motion arguing that his prison release reoffender (PRR) sentence imposed for robbery by sudden snatching is improper. A conviction for robbery by sudden snatching cannot subject the appellant to a PRR sentence. See Thomas v. State, 983 So.2d 746, 747 (Fla. 4th DCA 2008). We therefore reverse the trial court’s summary denial of the appellant’s postconviction motion and remand for the trial court to resentence the appellant without the PRR designation.

REVERSED AND REMANDED.

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.


author: ROTHENBERG, J.

text:
    Michael Letrayal REESE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2788.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.
    Rehearing Denied June 24, 2009.
    Michael Letrayal Reese, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

      Before COPE, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, J.

On March 22, 2000, the appellant, Michael Letrayal Reese (“Reese”), was convicted of trafficking in cocaine after a jury trial. His conviction and sentence were subsequently affirmed on direct appeal. Reese v. State, 793 So.2d 959 (Fla. 3d DCA 2001) (table). Reese’s motion for postcon-viction relief filed on November 14, 2001, pursuant to Florida Rule of Criminal Procedure 3.850 was also denied, and that denial was affirmed by this Court on September 11, 2002. Reese v. State, 826 So.2d 310 (Fla. 3d DCA 2002) (table). After an unsuccessful petition for writ of habeas corpus in the federal district court, Reese filed the instant petition for writ of habeas corpus with the Eleventh Judicial Circuit Court of Florida. Reese appeals the trial court’s summary denial of this petition. We affirm. See Baker v. State, 878 So.2d 1236, 1240-41 (Fla.2004) (holding that a petition for writ of habeas corpus cannot be used to test the legality of a prisoner’s conviction as a substitute for a motion for postconviction relief); Frazier v. State, 898 So.2d 1183 (Fla. 3d DCA 2005) (stating that a petition for habeas corpus cannot be used to circumvent the two-year period for filing motions for postconviction relief).

Because the claims raised in the instant petition were previously raised or could have been raised on direct appeal or in a timely filed motion for postconviction relief, we affirm the trial court’s denial of the petition.

Affirmed.


author: SUAREZ, J.

text:
    Jose A. DIAZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D09-752.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Rehearing and Rehearing En Banc Denied June 30, 2009.
    Jose A. Diaz, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   SUAREZ, J.

We deny Jose A. Diaz’s petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. See McCray v. State, 699 So.2d 1366 (Fla.1997); Melara v. State, 997 So.2d 1135 (Fla. 3d DCA 2008); Partridge v. Moore, 768 So.2d 1128 (Fla. 1st DCA 2000).

Petition denied.


author: DAVIS, Judge.

text:
    Thomas J. CREWS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5230.
    District Court of Appeal of Florida, Second District.
    May 1, 2009.
    James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Thomas J. Crews, Jr., challenges his conviction and sentence for second-degree murder. We affirm Crews’ conviction without comment but remand for the trial court to strike the cost imposed pursuant to section 775.083, Florida Statutes (2001).

The version of the statute in effect at the time Crews committed his offense required the trial court to make a finding of Crews’ ability to pay prior to imposing the fine. Id. “Because the trial court did not ... determine [appellant’s] ability to pay it, the fine must be stricken. However, the trial court may reimpose this fine if it determines that [appellant] has the ability to pay.” Love v. State, 992 So.2d 823, 824 (Fla. 2d DCA 2008) (citations omitted).

Affirmed and remanded with instructions to strike.

CASANUEVA and SILBERMAN, JJ., Concur.


author: COPE, J.

text:
    S.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1256.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.

      Carlos J. Martinez, Public Defender; and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General; and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SALTER, JJ.
   COPE, J.

S.D., a juvenile, appeals the finding that she committed the offenses of battery on a law enforcement officer and resisting an officer with violence. We affirm.

S.D. was at an indoor flea market and began fighting with two other females. An off-duty police officer provided security at the flea market. The officer broke up the fight, escorted S.D. out of the store, and told her to leave. The officer was wearing his Miami-Dade “Class B” uniform consisting of a beige polo shirt with an embroidered badge and the words “Miami-Dade Police Department” on the front, and on the back the word “Police” in large letters. After being removed and told that she could not reenter, S.D. attempted to reenter the store several times. It was clear to the officer that S.D. wanted to reenter the store and resume fighting. In trying to reenter, S.D. pushed past the officer, prompting him to restrain her. S.D. then started kicking and punching the officer, who arrested S.D.

At the adjudicatory hearing, S.D. moved for judgment of dismissal arguing that the officer was not engaged in the lawful performance of a legal police duty at the time he restrained her. The trial court denied the motion. The court found that S.D. had committed the charged acts and withheld adjudication. This appeal follows.

“A police officer can be engaged in the lawful performance of his duties when working an off-duty job.” J.A.S.R. v. State, 967 So.2d 1050, 1051 n. 2 (Fla. 5th DCA 2007). For the offense of battery on a law enforcement officer, the State must prove that the officer was “engaged in the lawful performance of his or her duties....” § 784.07(2), Fla. Stat. (2005). So far as applicable here, for the offense of resisting an officer with violence to his or her person, the State must likewise show that the officer was engaged “in the lawful execution of any legal duty.... ” Id. § 843.01.

In this case the officer broke up a fight between S.D. and the other females. In our view, breaking up a fight and separating the combatants is the lawful performance of a legal duty. Escorting S.D. off the premises, and preventing her from returning, was part of that legal duty. While the officer was performing that duty, S.D. battered the officer. The motion for a judgment of dismissal was properly denied.

S.D. relies on J.A.S.R., but her reliance on that case is misplaced. In J.A.S.R. the officer was escorting an unruly patron out of a Wet-n-Wild Amusement Park. The patron was not engaged in any criminal activity, was not trespassing, and had never been instructed to leave the park. J.A.S.R. attempted to pull his brother from the officer’s grasp and a struggle ensued in which J.A.S.R. battered the officer. The Fifth District concluded that under those facts, the officer was not engaged in the lawful performance of a legal duty at the time of the battery. In that case, unlike this one, the officer did not intervene to break up a fight. See also Bryan v. State, 865 So.2d 677 (Fla. 4th DCA 2004) (off-duty officers were patrolling apartment complex parking lot but were not investigating criminal activity at time of encounter); Nicolosi v. State, 783 So.2d 1095 (Fla. 5th DCA 2001) (off-duty officer was checking identification at nightclub entrance but not investigating criminal activity at time of encounter). None of those cases involved a situation like the present one, where the officer acted to keep the peace by breaking up the fight S.D. was engaged in, escorting her off the premises and ordering her to leave.

Affirmed.


text:
    Michael SAGARO, on behalf of Alyssa SAGARO and Alexis Sagaro, minors, Appellant, v. Maria DIAZ, Appellee.
    No. 3D08-2593.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Rehearing and Rehearing En Banc Denied June 16, 2009.
    Ronald I. Strauss and Alba Varela, Miami, for appellant.
    Susan R. Brown, Hollywood, for appel-lee.
    Before COPE, RAMIREZ, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal from an order denying Michael Sagaro’s petition, on behalf of his minor daughters, for a permanent injunction for protection against domestic violence. We affirm because the claims of evidentiary error were not properly preserved in the trial court below, see Clock v. Clock, 649 So.2d 312, 315 (Fla. 3d DCA 1995), and do not constitute fundamental error. See Saka v. Saka, 831 So.2d 709, 711 (Fla. 3d DCA 2002).

Affirmed.


author: CIKLIN, J.

text:
    Diana REISS, Ph.D., Appellant, v. OCEAN WORLD, S.A., a foreign corporation, Appellee.
    No. 4D08-3836.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.
    Rehearing Denied July 2, 2009.

      Kelly R. Melchiondo and Julie L. Fish-man of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, and Howard D. Finkelstein and Mark L. Knut-son of Finkelstein & Krinsk LLP, San Diego, CA, for appellant.
    Alexander Penalta and Colleen M. Stiger of Penalta & Stiger, PA., Boca Raton, for appellee.
   CIKLIN, J.

Appellant Diana Reiss appeals the non-final order denying her motion to dismiss appellee Ocean World’s second amended complaint for lack of personal jurisdiction. Because the facts pled in the complaint do not constitute the commission of a tortious act within Florida or otherwise establish the requisite minimum contacts with the state, we reverse.

Ocean World, S.A., a foreign corporation, entered into a contract for the purchase of twelve dolphins from Taiji, Japan, to be delivered to its amusement park in the Dominican Republic. Ocean World also entered into a contract with the Taiji Whale Museum to “cooperate in a friendly exchange to study and conserve [dolphins].” The Taiji Whale Museum obtains its dolphins from a local fishermen’s union which sells as meat any dolphins not selected by an aquarium for training or research.

When the Dominican Republic denied the permit to import the dolphins, Ocean World filed a complaint against Reiss, a nonresident of Florida, and five other defendants who oppose the capture and confinement of dolphins and the slaughter of dolphins by Japanese fishermen. The second amended complaint alleged that Reiss is “actively involved with various activist organizations such as Defendant E.I.I., working nationally and internationally, including in Florida.” The complaint further alleged that Reiss engaged in telephonic communications and in excess of 100 electronic communications with people in Florida to plan, coordinate, and block the exportation of the dolphins to the Dominican Republic. It asserted counts against Reiss for intentional interference with Ocean World’s contract to purchase the dolphins from Japan, its contract with the Taiji Whale Museum, and its business relationship with the Dominican Republic.

The exhibits to the second amended complaint included eight email messages sent from Reiss to codefendant Richard O’Barry, a Florida resident, and one email authored by Reiss and sent to another codefendant. The emails discuss and give updates and developments on attempts to urge the Dominican Republic government not to import the dolphins.

Reiss moved to dismiss the second amended complaint for lack of personal jurisdiction. In support of her motion to dismiss, Reiss submitted an affidavit in which she averred:

1. She lives in Connecticut and works in New York;

2. She has never been a Florida resident and has no regular contacts with the state;

3. She has never owned, used, possessed, or held any interests in real or personal property within Florida;

4. She has never sold any products or services, maintained a place of business or office, or had any agents in Florida;

5. She has never been a director or officer of a business having its principal place of business in Florida; and

6. Although she has occasionally visited Florida for business-related matters such as being a presenter at a scientific symposium or conference, none of her visits to Florida had any relationship to the matter for which she was being sued.

Reiss’s attorney also filed an affidavit stating that Ocean World did not have a Certificate of Authority to conduct business within Florida.

After a hearing, the trial court denied the motion. This appeal follows.

In Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), the supreme court articulated a two-step analysis to determine whether personal jurisdiction exits over a nonresident defendant. First, the court must determine whether the complaint satisfies the requirements of Florida’s long-arm statute, section 48.193, Florida Statutes (2007). Id. at 502. Second, if the long-arm statute is applicable, the court must determine whether the complaint alleges sufficient minimum contacts to satisfy due process requirements. Id. “[Cjourts are required to strictly construe the long-arm statute.” Seabra v. Int'l Specialty Imps., Inc., 869 So.2d 732, 733 (Fla. 4th DCA 2004).

A court has specific jurisdiction over a defendant where she “[c]ommit[s] a tortious act within this state.” § 48.193(1)(b), Fla. Stat. (2007). In order to commit a tortious act within this state, a defendant’s physical presence in Florida is not required. Wendt v. Horowitz, 822 So.2d 1252,1260 (Fla.2002). “[Tjelephonic, electronic, or written communications into Florida may form the basis for personal jurisdiction under section 48.193(1)(b) if the alleged cause of action arises from the communications.” Id.; see also Acquadro v. Bergeron, 851 So.2d 665 (Fla.2003); Becker v. Hooshmand, 841 So.2d 561 (Fla. 4th DCA 2003); Blumberg v. Steve Weiss & Co., 922 So.2d 361, 364 (Fla. 3d DCA 2006) (for jurisdiction to attach under section 48.193(1)(b), a defendant’s “actions must directly cause injury or damage within the state”). The requirement that the cause of action arise from the communications is necessary in order to satisfy the connexity requirement of section 48.193(1). Wendt, 822 So.2d at 1260.

The second amended complaint did not allege nor could it have alleged' — based on the facts of this case — -that the tortious interference occurred within Florida. This is fatal to Ocean World’s claim. Nothing in the contracts contemplated payment or performance in Florida, nor is Florida mentioned anywhere in the contracts. Any tortious interference with the contracts and business relationships occurred in the Dominican Republic or, alternatively, in Japan, the countries in which the contracts were to be performed.

The electronic communications into Florida did not give rise to a cause of action. Cases interpreting Wendt have held that the communication into Florida must be tortious in and of itself, such as defamatory statements or negligent legal advice to a client. Carlyle v. Palm Beach Polo Holdings, Inc., 842 So.2d 1013, 1017 (Fla. 4th DCA 2003); Acquadro, 851 So.2d 665. The email communications did not constitute tortious interference, especially as the communications were between the codefendants. Ocean World did not and cannot allege that Reiss committed a tort that produced an injury in Florida.

Although it is not necessary to consider the second prong of Venetian Salami, see Renaissance Health Publishing, LLC v. Resveratrol Partners, LLC, 982 So.2d 739, 741 (Fla. 4th DCA 2008), exercise of jurisdiction over Reiss would not comport with due process. A court can exercise personal jurisdiction only if the nonresident defendant maintains “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Execu-Tech Business Systems, Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582, 584 (Fla.2000) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Adequate minimum contacts are established if the court finds that “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). There must “be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citation omitted).

We reverse and remand with instructions to dismiss the second amended complaint as to Reiss.

POLEN and HAZOURI, JJ., concur:


text:
    Allan SUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-207.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Rehearing and Rehearing En Banc Denied June 24, 2009.
    Allan Suarez, in proper person.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTINAS and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850; Torres-Arboleda v. Dugger, 636 So.2d 1321, 1325-26 (Fla.1994).


author: LaROSE, Judge.

text:
    Felix R. FIGUERUELO, Appellant, v. Elizabeth S. FIGUERUELO, Appellee.
    No. 2D07-5546.
    District Court of Appeal of Florida, Second District.
    May 8, 2009.

      Charles E. Monty of Charles E. Monty, P.A., Clearwater, for Appellant.
    Felix R. Figueruelo, pro se.
    John R. Blue and Stephanie Zimmerman of Carlton Fields, P.A., St. Petersburg, for Appellee.
   LaROSE, Judge.

Felix Figueruelo (the Husband) appeals the final judgment dissolving his marriage to Elizabeth Figueruelo (the Wife). We find merit in two of his issues and reverse. We affirm on the remaining five issues without further discussion.

The Husband claims entitlement to an additional $5700 in equitable distribution. The Wife drew $55,000 from a credit line on the marital home. She placed $25,000 in trust for the Husband but now concedes that he should have received $27,500, $2500 more than he received. The Husband also is entitled to $3200 as his half of an investment return the Wife made with marital funds. Accordingly, we reverse the equitable distribution award with regard to these two points and remand for the trial court to credit the Husband with $5700 against the amount he owes to the Wife.

The Husband argues, and the Wife concedes, that the trial court erroneously ordered him to pay a portion of the Wife’s attorney’s fees without making the required factual findings of need and ability to pay. See § 61.16, Fla. Stat. (2004); Perrin v. Perrin, 795 So.2d 1023, 1024 (Fla. 2d DCA 2001). We reverse and remand for the trial court to do so.

Reversed and remanded.

SILBERMAN and WALLACE, JJ., Concur.


author: WHATLEY, Judge. FULMER, Judge,

text:
    Lara EMBRY, Appellant, v. Kimberly RYAN, Appellee.
    No. 2D08-1323.
    District Court of Appeal of Florida, Second District.
    May 13, 2009.

      John R. Blue and Cristina Alonso of Carlton Fields, P.A., Miami, Shannon P. Minter of National Center for Lesbian Rights, San Francisco, CA, and Karen Doering, St. Petersburg, for Appellant.
    Horatio G. Mihet, Mathew D. Staver and Anita L. Staver of Liberty Counsel, Orlando, and Mary E. McAlister and Rena M. Lindevaldsen of Liberty Counsel, Lynch-burg, VA, for Appellee.
    Alfred J. Saikali and Daniel B. Rogers of Shook, Hardy & Bacon, LLP, Miami, and Lori Alvino McGill and Elizabeth G. Wright of Latham & Watkins, LLP, Washington, DC, for Amici Curiae, The Center for Adoption Policy, The Evan B. Donaldson Adoption Institute, The National Center for Adoption Law and Policy, The University of Florida Center on Children and Families, The University of Miami School of Law Children and Youth Clinic, Mark Brown, Joan Heifetz Hollinger, and Barbara Bennett Woodhouse.
    Jon L. Mills of University of Florida Levin College of Law, Gainesville, for Ami-ci Curiae, Professors Erwin Chemerinsky, Sharon Rush, and Robert Schapiro.
   WHATLEY, Judge.

Lara Embry appeals an order dismissing with prejudice her petition for declaratory relief and petition to determine parental responsibility, contact and support as to her adopted daughter. The trial court dismissed the petitions after finding that the adoption judgment, which was entered in the state of Washington, need not be recognized in Florida. We reverse.

In 2000, Embry and Kimberly Ryan, the child’s biological mother, were engaged in a romantic relationship while living in the state of Washington. Ryan gave birth to the child on February 12, 2000, and Embry adopted her on May 10, 2000. After moving to Florida, the parties ended then-relationship in 2004. During that same year, the parties entered into a child custody, visitation and property settlement agreement. Apparently, the relationship between the parties further deteriorated, and in October 2007, Ryan refused to allow Embry to have any visitation with the child. Embry thereafter filed the petition for declaratory relief and petition to determine parental responsibility, contact and support. Ryan moved to dismiss Embry’s petitions, arguing that Florida was not required to give full faith and credit to the Washington adoption because, Ryan alleges, it is contrary to the public policy of Florida prohibiting same-sex couple adoptions. We reverse because the trial court was required to give the Washington adoption judgment full faith and credit.

The United States Constitution’s Full Faith and Credit Clause provides as follows: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const. art. IV, § 1. In interpreting the Full Faith and Credit Clause, the United States Supreme Court has held that “[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.” Baker v. Gen. Motors Corp., 522 U.S. 222, 233, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). Further, the Court held that there are no public policy exceptions to the full faith and credit which is due to judgments entered in another state. Id.

We note that Florida law specifically provides that adoption decrees from other states must be recognized in this state:

A judgment ... establishing the relationship [of parent and child] by adoption issued pursuant to due process of law by a court of any other jurisdiction within or without the United States shall be recognized in this state, and the rights and obligations of the parties on matters within the jurisdiction of this state shall be determined as though the judgment were issued by a court of this state.

§ 63.192, Fla. Stat. (2007) (emphasis added). Embry therefore must be given the same rights as any other adoptive parent in Florida.

Therefore, regardless of whether the trial court believed that the Washington adoption violated a clearly established public policy in Florida, it was improper for the trial court to refuse to give the Washington judgment full faith and credit.

Accordingly, we reverse the order granting Ryan’s motion to dismiss and remand for further proceedings consistent with this opinion.

VILLANTI, J„ Concurs.

FULMER, J., Concurs specially.

FULMER, Judge,

Specially concurring.

I agree that the trial court’s order should be reversed. I write to address the argument that was advanced on appeal as an alternative basis to affirm the trial court’s dismissal of Ms. Embry’s petitions.

On appeal, Ms. Ryan acknowledges that the trial court was required to recognize the Washington judgment under the Full Faith and Credit Clause. However, Ms. Ryan advances the alternative argument that there is a distinction between recognition and enforcement of a judgment. Ms. Ryan argues that the trial court was not required to enforce the judgment because granting parental rights to a former same-sex partner contravenes section 63.042, Florida Statutes (2007), which prohibits adoption by a homosexual.

Ms. Ryan’s argument lacks merit for several reasons. The issue before the trial court was not whether Ms. Embry should be allowed to adopt. It is undisputed that Ms. Embry adopted her child in the state of Washington where same-sex adoptions are allowed. Further, not only is Ms. Ryan’s argument being raised for the first time on appeal, but, on the merits, Florida law expressly grants parental rights to any person who has obtained the status of parent by virtue of an adoption decree from a sister state.

As noted in the majority opinion, section 63.192 not only mandates recognition of adoption judgments issued by another state but further states that “the rights and obligations of the parties on matters within the jurisdiction of this state shall be determined as though the judgment were issued by a court of this state.” In other words, Ms. Embry is entitled to the same rights and obligations that are granted to a person who became an adoptive parent by- virtue of a Florida judgment of adoption. Unlike section 63.042, section 63.192 does not exclude homosexuals from its provisions. Thus, Ms. Embry’s same-sex relationship with Ms. Ryan is irrelevant for the purpose of enforcing her rights and obligations as an adoptive parent.

      . During oral argument, counsel for Ryan conceded that the trial court was required to recognize the Washington judgment.

      . Section 63.172(1)(c), Florida Statutes (2007), also provides that an adoption judgment, whether entered by a court of this state or another state, has the effect of creating a relationship between the adopted child and the petitioner that would have existed if the adopted child were a blood descendant of the petitioner.


text:
    T & S ENTERPRISES HANDICAP ACCESSIBILITY, INC., a Florida corporation, Appellant, v. WINK INDUSTRIAL MAINTENANCE & REPAIR, INC., a Florida corporation; L.K. Industrial Services, Inc., a Florida corporation; Brian Clark and Jennifer Clark, husband and wife, Appellees.
    No. 2D08-78.
    District Court of Appeal of Florida, Second District.
    May 13, 2009.
    Rehearing Denied June 19, 2009.
    Damian B. Mallard and Sara B. Mallard of Mallard & Zimmerman, Sarasota, for Appellant.
    James M. Ragano and Cynthia M. Den-nen of Dennen Ragano, P.L.L.C., Tampa, for Appellee Wink Industrial Maintenance & Repair, Inc.
    No appearance for Appellees L.K. Industrial Services, Brian Clark, and Jennifer Clark.
   DAKAN, STEPHEN L„ Associate Senior Judge.

T & S Enterprises Handicap Accessibility, Inc., appeals the trial court’s order dismissing its third-party claim for contribution against the appellee, Wink Industrial Maintenance & Repair, Inc. We conclude that the trial court’s ruling was correct as applied to the facts alleged in this case and affirm.

Brian and Jennifer Clark filed a complaint against T & S alleging that Brian Clark was injured and suffered damages in perfoi'ming repair work on T & S’s premises as the result of the negligence of T & S. It was alleged that Brian Clark was an employee of Wink, the entity hired by T & S to perform the repairs. Wink was not made a party defendant, even though it did not have worker’s compensation insurance covering Brian Clark.

T & S filed a third-party complaint against Wink for contribution, alleging that Wink was negligent in failing to properly train Brian Clark, failing to properly supervise him, failing to provide adequate equipment, and failing to provide a proper and safe work environment.

Following a hearing on Wink’s motion to dismiss, the trial court entered its order dismissing T & S’s third-party complaint. The trial court found that the Florida Legislature abolished joint and several liability for joint tortfeasors and that section 768.31, Florida Statutes (2006), mandates that a court enter judgment against a party on the basis of that party’s percentage of fault, and not on the basis of joint and several liability. The trial court also found that the right of contribution exists only in favor of a tortfeasor who has paid more than its pro rata share of common liability and that the third-party complaint failed to state a cause of action for contribution as a matter of law.

Section 768.81, the Uniform Contribution Among Tortfeasors Act, was in effect at the time of the trial court’s ruling and is still in effect. The Act provides that when two or more persons become jointly or severally liable in tort for the same injury to person or property, there is a right of contribution among them.

In spite of the statutory language which appears to limit the right to seek contribution only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability, for over 30 years, district courts of appeal in this state have held that a defendant could file a third-party claim against another in the same case brought by the plaintiff, even though the liability of that third-party plaintiff had not yet been established. See, e.g., Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So.2d 484, 487 (Fla. 4th DCA 2000); Attorneys’ Title Ins. Fund, Inc. v. Punta Gorda Isles, Inc., 547 So.2d 1250, 1251 (Fla. 2d DCA 1989); N.H. Ins. Co. v. Petrik, 343 So.2d 48, 48-50 (Fla. 1st DCA 1977); Fla. Power Corp. v. Taylor, 332 So.2d 687, 692 (Fla. 2d DCA 1976); Nationwide Mut. Ins. Co. v. Fouts, 323 So.2d 593, 594 (Fla. 2d DCA 1975).

The rationale was that rule 1.180, Florida Rules of Civil Procedure, provides for third-party actions against a person not a party to the main action who is or may be liable to a named defendant for all or a part of the plaintiffs claim. The opinions reasoned that the Uniform Contribution Among Tortfeasors Act does not provide that the Act is the only procedural vehicle available to a defendant seeking contribution. Since the Act was, at least in part, procedural, it was subject to the rule making authority of the supreme court, and rule 1.180 permitted the third-party action as part of the original plaintiffs case.

All of these cases, however, were decided before the current version of section 768.31 was enacted. That section now provides that in negligence cases such as this one, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault “and not on the basis of the doctrine of joint and several liability.” § 768.81(3). In order to allocate any fault to a nonparty, a defendant must affirmatively plead this fault and prove it at trial “by a preponderance of the evidence.” § 768.81(3)(a) & (b).

In this case, very similar procedures are available to T & S, except that Wink would not be a named party. T & S has the opportunity to plead that Wink is partially or completely at fault and the cause of the plaintiffs’ injuries. The evidence would presumably be the same whether presented in this case under the provisions of section 768.81(3) or in an action brought under the Uniform Contribution Among Tortfeasors Act. The jury would determine the same issues under section 768.81(3) as it would in a third-party action, and it is unlikely that T & S will be required to pay more than its pro rata share of any common liability. While the cases cited in this opinion may not have been overruled by the enactment of the current version of section 768.81, they appear to have been rendered obsolete, at least in cases like this one.

This decision does not determine any rights T & S may have if it elects to settle the plaintiffs’ claims in exchange for a general release which includes Wink.

Affirmed.

ALTENBERND and FULMER, JJ., Concur.


text:
    Ronald SAMUELS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D07-359, 4D08-1.
    District Court of Appeal of Florida, Fourth District.
    May 13, 2009.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Ronald Samuels appeals multiple convictions arising from the attempted murder of his ex-wife and her husband, challenging the trial court’s refusal to excuse a potential juror for cause, the admissibility of certain evidence, and that portion of the court’s restitution order concerning medical insurance. We affirm.

In October 1997, Samuels plotted to have his ex-wife, Heather Grossman, and her husband, John Grossman, killed after Samuels lost custody of his children following an exceedingly lengthy and highly contentious dispute. Samuels owed $51,672.82 in child support arrearages and the family court judge had ordered him to pay $18,528.98 by October 14, 1997. Samuels had a $1 million life insurance policy on Heather Grossman, at the time he planned her death.

Samuels solicited the assistance of other individuals and met with them to discuss an assassination scheme. He told them he wanted his former spouse “whacked” and “taken care of’ and offered them money. He had them case the Grossmans’ workplace and home in preparation for the murder for hire.

On the morning of October 14,1997, two of Samuels’ accomplices drove to the Grossmans’ workplace and followed the Grossmans when they left for lunch. At a traffic light, one of the hit men fired two high-powered rifle shots into the Gross-mans’ vehicle, striking both of them. As a result of the shooting, Heather Grossman was rendered a quadriplegic because of a bullet that tore through her neck and partially severed her spine. Meanwhile, Sam-uels attempted to establish his alibi by picking up one of his accomplices and spending the day with him.

The state charged Samuels by indictment with two counts of attempted first-degree murder with a firearm, one count of shooting into an occupied vehicle, four counts of solicitation to commit first-degree murder, one count of conspiracy to commit first-degree murder, and one count of committing a felony causing bodily injury.

During jury selection (in 2006 — nine years after the shooting), a potential juror, Ms. Anderson, stated that she had heard people talk about the case where she was employed as a hairdresser, saw it on the news, and read about it on the internet. She did not remember very much about the incident and could not remember anything about the case other than what the trial judge had read to the venire during the jury selection process. When the court asked if she would be able to set aside everything that she might know about the case and decide it only on the evidence presented during the trial, she responded, “I would do my best, yes.” When asked if she had formed an opinion, she responded that she had not formed a “complete” opinion. When the court pressed her as to any opinion she might have, Ms. Anderson stated that if the defendant did the crime, he should face punitive consequences. The court then asked whether she had come to a partial decision, and she said, “I don’t think so.” She confirmed that she could decide the case based only on the evidence presented at trial, her evaluation of that evidence, the credibility of the witnesses, and whether the state proved its case.

The state then questioned Ms. Anderson and elicited statements that she heard about the incident right after it happened in 1997 and had not seen or heard anything since then. Ms. Anderson stated she had not formed an opinion on the defendant’s guilt or innocence. She repeated that if he did the crime, he needed to pay for it. When asked whether she could follow the law and hold the state to its burden to prove the case by what she saw and heard in the courtroom, she answered in the affirmative.

Upon further questioning by the defense counsel, Ms. Anderson again stated that she had not formed an opinion with regard to Samuels. She reiterated that if he did the crime, he should be punished. Samu-els sought to strike Ms. Anderson, asserting that she equivocated in her answers to questions about partiality and asserted that she had already reached a partial decision about the case. The court denied the challenge for cause.

During its case in chief, the state presented vast testimony from the three individuals who schemed with Samuels to kill the Grossmans. In detail, each accomplice described how Samuels masterminded the hit.

Over defense objection, the trial court admitted into evidence certain documents found at Samuels’ home during a police search. These items included forged identification documents in the name of Thomas Jordan such as tax returns, checkbooks, credit reports, a passport, and a death certificate. The court permitted the introduction of this evidence because, the court found, it corroborated testimony of an accomplice who saw some of the documentation in Samuels’ possession when the two discussed fleeing to Venezuela.

Over further defense objection, the court admitted documents showing that Samuels had hidden assets in various offshore accounts in the Cayman Islands and elsewhere, under the name of other persons. The trial court also overrode defense objections and permitted the introduction of documents and testimony which exposed the explosively combative litigation regarding child custody and support between Samuels and Heather Grossman and Sam-uels’ deceit during that litigation. The court reasoned that this evidence was admissible because it was inextricably intertwined with the state’s theory as to motive.

Samuels testified in his defense that he and Heather Grossman divorced in 1994. He admitted he sold his car dealership in 1995 for over $3 million and put the money in the Cayman Islands to conceal it from the divorce judge and to put it beyond the reach of his former wife. He admitted that he refused to pay child support despite having the financial ability to do so. Samuels denied any involvement in the crimes but admitted that on the day of the shooting, he called his lawyer to file an emergency motion for custody. He denied meeting with his alleged accomplices and denied giving them money to kill his former wife.

The jury convicted Samuels of attempted-first degree murder with a firearm of Heather Grossman (count 1); attempted second-degree murder with a firearm of John Grossman, a lesser included offense (count 2); shooting into an occupied vehicle (count 3); three counts of solicitation to commit first-degree murder (counts 5-7); conspiracy to commit first-degree murder (count 8); and committing a felony causing bodily injury (count 9). Samuels was acquitted of one solicitation charge (count 4).

The court sentenced Samuels to life in prison for count 1, thirty years for count 2 to be served consecutively to count 1, fifteen years for count 3, thirty years for counts 5, 6, and 7 to be served consecutively to count 2, and thirty years for count 8. The trial court ordered Samuels to pay restitution, including $32,927 for medical insurance premiums from October 2004 through December 2007. Samuels appeals.

Denial of Juror Challenge

An appellate court reviews a ruling on a cause challenge for abuse of discretion. Singleton v. State, 783 So.2d 970, 973 (Fla.2001); Carratelli v. State, 832 So.2d 850, 854 (Fla. 4th DCA 2002). “A juror should be excused for cause if there is any reasonable doubt about the juror’s ability to render an impartial verdict.” Carratelli, 832 So.2d at 854 (quoting Singleton, 783 So.2d at 973). A close case involving a challenge to the impartiality of a potential juror should be resolved in favor of excusing the juror rather than leaving doubt as to her impartiality. Id.

Samuels relies on Club West, Inc. v. Tropigas of Florida, Inc., 514 So.2d 426 (Fla. 3d DCA 1987), where the Third District found the trial court abused its discretion in denying a motion to excuse a potential juror for cause. The prospective juror acknowledged that she was uncertain whether she could be impartial because she had made a large profit from stock she owned in the defendant company and admitted that she might be starting with one strike against the plaintiff. Although she later indicated that she could be impartial, because of her equivocal answers, serious doubt remained concerning her ability to be impartial.

Club West is distinguishable from the instant case. Ms. Anderson had no relationship with anyone connected with the prosecution of Samuels. She never indicated that she was uncertain whether she could be impartial, and nothing she said indicated that she would start the case, as in Club West, predisposed against Samu-els. While Ms. Anderson heard something about the case nine years earlier, she had no recollection of anything that she had heard other than what was stated during jury selection. As no reasonable doubt existed as to Ms. Anderson’s ability to render an impartial verdict, the trial court did not abuse its discretion in denying the challenge for cause.

Admissibility of Evidence

Samuels contends that the trial court erred in admitting evidence of other crimes, wrongs, and acts by him, because the prejudice outweighed its probative value and because such evidence became a feature of the trial.

The admissibility of collateral crime evidence is within the discretion of the trial court as limited by the rules of evidence. LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001); Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001). Section 90.404(2)(a), Florida Statutes (2006), provides:

Similar fact evidence of other crimes, wrongs, or acts 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 it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

“[E]vidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged,” is admissible as “a relevant and inseparable part of the act which is in issue.” Griffin v. State, 639 So.2d 966, 968 (Fla.1994) (citation omitted). However, even “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2006).

The trial court correctly permitted the introduction of evidence that Samuels possessed documents in the name of Thomas Jordan, including a passport. The documents were relevant to show consciousness of guilt because Samuels was considering and discussing a plan to flee. See Straight v. State, 397 So.2d 903, 908 (Fla.1981) (“When a suspected person in any manner attempts to escape or evade a threatened prosecution by flight, concealment, resistance to lawful arrest, or other indications after the fact of a desire to evade prosecution, such fact is admissible, being relevant to the consciousness of guilt which may be inferred from such circumstance”).

Evidence of hidden assets in the Cayman Islands and in the name of others was relevant to show that Samuels had assets which he was hiding to avoid child support obligations. They were relevant to the state’s theory of the case that Samu-els wanted his ex-wife dead so that he would not have to pay child support. The documents were introduced to prove motive and not to prove Samuels’ bad character or propensity to attempt to commit crimes.

Documents from the child custody case were relevant to the state’s theory that the shootings were the culmination of a litigious battle over child custody and child support. The documents were inextricably intertwined with the state’s case in showing motive. The documents were not more prejudicial than probative, nor were they improper character evidence as the majority consisted of Samuels’ own statements.

Samuels argues that the impermissible collateral crime evidence became a feature of the trial, citing Bush v. State, 690 So.2d 670 (Fla. 1st DCA 1997). In Bush, the defendant was on trial for grand theft, but had other stolen property not related to the charged offense in her home. The First District reversed her conviction, because the collateral crime evidence became an overwhelming feature of the trial. It explained that “[a] similar offense becomes a feature instead of an incident of the trial on the charged offense where it can be said that the similar fact evidence has so overwhelmed the evidence of the charged crime as to be considered an impermissible attack on the defendant’s character or propensity to commit crimes.” Id. at 673

In contrast to Bush where the prosecutor attempted to prove the defendant’s guilt by arguing that because she had other stolen property in her house, she was guilty of the offense for which she was on trial, here the prosecutor presented no such argument. Most importantly, the documents did not become a feature of the trial.

Even if the court did err by admitting any of the subject documents, any error is harmless, as there is no reasonable possibility that their admission contributed to the conviction. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Three of Samuels’ accomplices presented exhaustive testimony pointing to Samuels as the originator, orchestrator, and principal in the attempted murders of the Grossmans. He solicited their assistance to have the Grossmans killed so that he would avoid paying child support, regain custody of his children, and receive $1 million from a life insurance policy.

Restitution

Because the trial court’s order of restitution as to the cost of medical insurance was contemplated and permitted by section 775.089, Florida Statutes (2007), we affirm.

Affirmed.

POLEN and HAZOURI, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    Bojan NASTASIC, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-195.
    District Court of Appeal of Florida, Second District.
    May 13, 2009.
   NORTHCUTT, Chief Judge.

Bojan Nastasic pleaded nolo contendere in January 2003 to the crimes of sale and possession of a controlled substance. In November 2007, he filed an amended motion pursuant to Florida Rule of Criminal Procedure 3.850 seeking to vacate his plea based on the court’s failure to advise him of its deportation consequences. See Fla. R.Crim. P. 3.172(c)(8). The postconviction court summarily denied his motion, ruling that Nastasic had not shown prejudice because he was subject to deportation for other convictions as well as the ones in this case. We affirm the postconviction court’s order however, as we shall explain, our affirmance is without prejudice to allow Mr. Nastasic to file an amended motion.

Nastasic’s motion alleged that he was not advised of the deportation consequences of his plea at the plea hearing, that he first became aware of the consequences when he received a deportation notice from the Immigration and Naturalization Service on July 10, 2007, and that he would not have entered the plea if he had known of these consequences. Thus his motion was timely. See State v. Green, 944 So.2d 208 (Fla.2006). Nastasic attached a copy of the INS notice to his motion. The notice asserted that he was subject to removal from the United States for the convictions in this case and several other unconnected convictions.

In denying the motion, the postconviction court cited Prieto v. State, 824 So.2d 924, 925 (Fla. 3d DCA 2002), for the proposition that Nastasic could not demonstrate the required prejudice because the documents attached to his motion established that he was deportable based on convictions other than the ones in this case. But in a recent case, Dumenigo v. State, 988 So.2d 1201 (Fla. 3d DCA 2008), the court allowed a defendant in similar circumstances to amend his motion. Dumenigo had been convicted of felonies in 1988 and 1997. He sought to withdraw his plea for the 1997 offense based on rule 3.172(c)(8). The Third District noted that Dumenigo’s motion was insufficient because it failed to allege that he was deportable based solely on the 1997 conviction. It affirmed without prejudice to Dumenigo’s right to file an amended motion addressing the 1988 conviction. Id. at 1202.

As did the court in Dumenigo, we affirm the summary denial challenged in this appeal. We note that Nastasic has attached documents to his brief filed in this case indicating that he is attempting to withdraw his plea agreements in other cases. He has also attached an affidavit from an attorney averring that he entered this country as a refugee and, because of his refugee status, only the convictions in this case would support deportation. Nastasic should have attached these documents to his motion, or he should have presented them to the postconviction court in a motion for rehearing. He did neither. Our affirmance is without prejudice for him to file an amended motion, addressing his other convictions. He may include any documents filed with this court in an amended motion.

Affirmed.

SILBERMAN and KELLY, JJ., Concur.


text:
    Donald Keith ROLLING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2426.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.
    Rehearing Denied June 17, 2009.
    Donald Keith Rolling, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

Affirmed. See Chanquet v. State, 646 So.2d 834 (Fla. 3d DCA 1994).


text:
    Pablo HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-441.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.
    Rehearing Denied June 16, 2009.
    Pablo Hernandez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Huff v. State, 762 So.2d 476 (Fla.2000).


author: TAYLOR, J.

text:
    Jack JEAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-5010.
    District Court of Appeal of Florida, Fourth District.
    May 13, 2009.
    Rehearing Denied July 16, 2009.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant and a co-defendant were charged by information with robbery with a firearm (Count I) and aggravated assault with a firearm (Count II). In this appeal from his convictions and sentences on these charges, appellant argues that the trial court erred in allowing the state to amend the robbery count of the information after jury selection and in imposing a mandatory minimum three-year prison term on the aggravated assault charge. We affirm.

Alexander Tyshynsky testified at trial that he was the disc jockey and night manager at Playmates Lounge on the night of the robbery. Earlier that afternoon, he removed $300 in three stacks of singles from the locked cash drawer and placed them in front of the cash register for Linda Yatsko, the bartender. Tyshyn-sky then went back to the sound booth to work. He heard a very loud bang and saw people dropping to the floor. He saw two men brandishing weapons in the air and yelling for everyone to get down. Both men had large caliber automatic pistols. One of the men jumped over the bar, pointed his gun in Tyshynsky’s face, and told him to “be cool.” The man then went to the register and grabbed the $300 at the register.

Linda Yatsko was named as the sole victim in the robbery count. At the start of trial, just after jury selection, the state moved to amend the information to name Alex Tyshynsky as an additional victim in the robbery count. Defense counsel objected, explaining to the court that he had deposed both Yatsko and Tyshyn-sky and prepared the case based on the information’s allegation that the money was taken from the custody of Linda Yat-sko. Defense counsel stated:

Mr. Tyshinsky (sic) did give a deposition, he was no where (sic) near the money neither was Linda Yatsco (sic), that was our whole defense. I have prepared and brought case law from my motion for judgment of acquittal. I have reviewed statutes and the jury instructions regarding custody and control and for now the State, who has announced ready (sic), has been in touch with their witnesses, has the benefit of the depositions, has the power to amend or seek to amend since January of 2007, hasn’t done so and is now, after we picked the jury, starting the witnesses to amend is completely prejudicial to the Defense.

Defense counsel further explained that Mr. Tyshynsky had stated at the deposition that he was in the sound booth when the robbery was committed. He argued:

He was not in possession of the money at the time, that was the taking, and I specifically asked that because this is where I’ve been going the whole time on this case. And I have case law which indicates where there are a group of employees and you cannot have the taking from any of those employees, it has to be from the one who has custody and control. And that particular case they brought the employee and made her take the money, open the cash register, take the money out and they took it from her. That was the robbery of her. They were also convicted to robbery, one of the other employees, they said, no, you can’t do that because she didn’t have custody and control of the money and that’s why I have that case law.

The prosecutor responded that defense counsel had been able to take depositions of both Yatsko and Tyshynsky and that there could be no prejudice because, as defense counsel pointed out, his defense was the same whether the named victim was Tyshynsky or Yatsko. We agree with the state that defendant did not show any prejudice resulting from the amendment and that the court did not abuse its discretion by allowing the state to amend the information. See Toussaint v. State, 755 So.2d 170, 171 (Fla. 4th DCA 2000) (quoting State v. Anderson, 537 So.2d 1373, 1375 (Fla.1989)) (“the state may substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant.”).

We further find that the trial court did not err in imposing a three-year minimum mandatory prison term on the defendant’s five-year sentence for aggravated assault under Section 775.087(2), Florida Statutes (2006), the 10/20/life statute, because the information as to Count II alleged that during the commission of said felony the defendant did actually possess a firearm, and the jury found the defendant guilty as charged. See Altieri v. State, 835 So.2d 1181, 1184-85 (Fla. 4th DCA 2002) (holding that the trial court did not err in imposing a three-year mandatory minimum under the 10/20/life statute where the jury found the defendant guilty of aggravated assault “as charged in the information” and the information alleged that the defendant “used a deadly weapon, to wit: a firearm” during the commission of the aggravated assault).

Affirmed.

HAZOURI and MAY, JJ., concur.

      . Ms. Yatsko did not appear at trial because, as the state discovered a week before trial, she was confined in an institution in Pennsylvania.


author: DAMOORGIAN, J.

text:
    D.A., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2029.
    District Court of Appeal of Florida, Fourth District.
    May 13, 2009.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

We hold that it was error for the trial court to impose costs of prosecution pursuant to section 938.27(1), Florida Statutes (2007) on D.A., a juvenile who was adjudicated delinquent.

This is an issue of statutory interpretation, which is subject to a de novo standard of review. Kasischke v. State, 991 So.2d 803, 807 (Fla.2008). Section 938.27(1), Florida Statutes (2007) provides for the imposition of costs of prosecution, as follows:

In all criminal cases, convicted persons are liable for payment of documented costs of prosecution, including investigative costs incurred by law enforcement agencies, by fire departments for arson investigations, and by investigations of the Department of Financial Services or the Office of Financial Regulation of the Financial Services Commission, if requested by such agencies. These costs shall be included and entered in the judgment rendered against the convicted person.

A juvenile who has been adjudicated delinquent has not been “convicted,” and is not a “criminal.” See § 985.35(6), Fla. Stat. (2007) ; see also A.M.P. v. State, 927 So.2d 97, 100 (Fla. 5th DCA 2006) (stating that “an adjudication of delinquency does not qualify as a ‘conviction’ for purposes of section 775.083”) (Florida Statutes); State v. N.P., 913 So.2d 1, 2 (Fla. 2d DCA 2005) (stating that juveniles are not deemed to be “convicted” by adjudications of delinquency). Thus, section 938.27, Florida Statutes (2007), which expressly applies to all “convicted persons” in “criminal cases”, does not apply to a juvenile who has been adjudicated delinquent. Cf. V.K.E. v. State, 934 So.2d 1276 (Fla.2006) (holding that a trial judge does not have the power to impose surcharges pursuant to sections 938.08 and 938.085, Florida Statutes on a juvenile in a juvenile delinquency proceeding and concluding that imposing such surcharges would conflict with the legislative intent in creating a separate juvenile justice system).

Accordingly, we reverse the order imposing costs of prosecution on D.A.

Reversed.

POLEN and STEVENSON, JJ., concur.

      . Section 985.35(6), Florida Statutes (2007) reads in relevant part:

        Excepl as the term "conviction” is used in chapter 322, and except for use in a subsequent proceeding under this chapter, an adjudication of delinquency by a court with respect to any child who has committed a delinquent act or violation of law shall not be deemed a conviction; nor shall the child be deemed to have been found guilty or to be a criminal by reason of that adjudication ....


author: POLEN, J.

text:
    Michael ANDERSON, Appellant, v. DEPARTMENT OF REVENUE o/b/o Pethy HAMILTON, Appellee.
    No. 4D08-2485.
    District Court of Appeal of Florida, Fourth District.
    May 13, 2009.
    Michael Anderson, Naples, pro se.
    No appearance for appellee.
   POLEN, J.

Appellant, Michael Anderson, appeals the trial court’s order holding him in contempt for his failure to pay child support and setting a purge of $5000. This court has jurisdiction. Fla. R.App. P. 9.030(b)(1)(A).

Anderson was divorced from his former wife by final judgment of dissolution entered on December 12, 1997. The final judgment ordered Anderson to pay child support for the couple’s son in the amount of $424.00 per month.

On June 5, 2008, a hearing officer considered the Department of Revenue’s motion for contempt. The hearing officer found that Anderson owed $50,903.35 in past child support as of May 21, 2008 and ordered Anderson to pay a purge of $5000 within forty-eight (48) hours in order to avoid incarceration. The trial court ratified and approved the report of the hearing officer on June 13, 2008. Anderson timely filed his notice of appeal and the trial court determined that Anderson was indigent for purposes of appeal.

In Marcellus v. Voltaire, 649 So.2d 944 (Fla. 4th DCA 1995) this court determined that the trial court committed reversible error when it entered an order finding that the father was in arrears in payment of his child support obligation, had the present ability to pay, and would be incarcerated if he failed to pay and shortly thereafter entered another order finding father indigent for purposes of appellate filing fees and costs. Id. at 944. We held that the finding of indigent status affirmatively established father’s inability to pay the purge. Id. (quoting Bowen v. Bowen, 471 So.2d 1274, 1279 (Fla.1985)). Similarly, in the present case, the trial court erred in holding Anderson in contempt and shortly thereafter finding him indigent for purposes of appeal. As evidenced by the court’s finding of indigence, Anderson did not have the present ability to pay the purge.

Reversed.

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


text:
    Drew C. HARTLEY, Appellant, v. FLORIDA PAROLE COMMISSION and Florida Department of Corrections, Appellees.
    No. 1D09-0612.
    District Court of Appeal of Florida, First District.
    May 13, 2009.
    Rehearing Denied June 26, 2009.
    Drew C. Hartley, pro se, Appellant.
    Sarah Rumph, Acting General Counsel, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.020(h); Fla. R. Civ. P. 1.530(b); Migliore v. Migliore, 717 So.2d 1077, 1079 (Fla. 4th DCA 1998) (holding that an untimely motion for rehearing does not toll rendition of a final judgment for purposes of appeal).

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


text:
    Nelson PALOMARES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-757.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Nelson Palomares, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and ROTHENBERG, JJ.
   PER CURIAM.

Nelson Palomares (“the defendant”) appeals the summary denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. Because the record does not conclusively refute the defendant’s claim to credit for time served on the incarcerative portion of his split sentence, we reverse and remand for further proceedings. See Isaac v. State, 992 So.2d 304 (Fla. 3d DCA 2008).

Reversed and remanded.


text:
    Wilfredo A. ZELAYA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3264.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Wilfredo A. Zelaya, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Wilfredo A. Zelaya appeals from a summary denial of a postconviction motion under Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evi-dentiary hearing.

The defendant has filed the affidavit of the victim’s mother, which he claims is newly discovered evidence. The affidavit states that the victim, who was under twelve years of age at the time of the charged crime, has told her that the crimes did not actually take place. The trial court summarily denied defendant’s motion of newly discovered evidence. Under this court’s standard of review, we are obligated to reverse “unless the record shows conclusively that the appellant is entitled to no relief....” Fla. R. App. P. 9.141(b)(2)(D). On the face of this pleading and accompanying affidavit, we cannot determine whether the recantation is true, or whether the evidence can be deemed newly discovered and was timely raised under the rules. Therefore, because the record does not at this time conclusively refute the defendant’s claim, we reverse the order now before us and remand for an evidentiary hearing for the trial court to determine whether or not this evidence qualifies as newly discovered, and for such other proceedings as may be appropriate. See Roberts v. State, 678 So.2d 1232 (Fla.1996); Jones v. State, 591 So.2d 911, 916 (Fla.1991); Brantley v. State, 912 So.2d 342 (Fla. 3d DCA 2005).

Reversed and remanded for further proceedings.


text:
    Anthony JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-889.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Anthony Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Johnson v. State, 974 So.2d 1152, 1152 (Fla. 3d DCA 2008) (finding that where a defendant agrees to a plea awarding time served from a specific date, he “waives any claim to credit for time served before that date”).


text:
    Silverio FONTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-909.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Silverio Fonte, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.