author: BERGER, J.

text:
    Camila ASHBY, Appellant, v. Nathan MURRAY, Appellee.
    Nos. 5D11-3650, 5D12-2958.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.

      Camila Ashby, Orlando, pro se.
    No Appearance for Appellee.
   BERGER, J.

In this paternity case, Camila Ashby (Mother), appeals the trial court’s denial of her motion to dissolve an ex parte temporary order that awarded Nathan Murray (Father) temporary custody of their minor child. Mother argues the trial court abused its discretion when it refused to dissolve the temporary order following an evidentiary hearing. Because we find Father failed to present competent, substantial evidence at the hearing to support the temporary order, we reverse.

The procedural background of this case is complicated. On February 15, 2005, the trial court entered a final judgment, which adjudicated Father as the natural father of the child, awarded Mother sole custody, and awarded Father supervised visitation. The final judgment also set forth Father’s child support obligations. Father was not present at the trial.

Three years later, Father moved to set aside the final judgment for fraud upon the court. On November 5, 2010, the trial court entered a written order setting aside the final judgment and suspending child support until it could be recalculated at a subsequent trial. Mother was found in contempt and Father was given temporary custody until November 12, 2010. The parties were ordered to return to court on November 12, for a review hearing, at which time the ease would be set for another trial to resolve the issues in the original petition and counter-petition.

Mother was not present at the November 12 review hearing because she was still in custody. At that time, Father indicated he had information from the child’s maternal uncle that Mother had previously threatened to commit suicide and kill the child. Later that day, Father filed a verified motion to transfer temporary custody of the child to him until Mother underwent a psychological evaluation.' On November 15, 2010, the trial court entered an order awarding Father temporary custody of the child during the pendency of the proceedings and gave Mother supervised contact with the child. Father was allowed to remove the child from Florida to his home in Virginia. Mother has not seen the child since November 15, 2010.

On March 8, 2011, Mother filed a motion to dissolve the ex parte temporary order transferring custody of the minor child to Father. A hearing was held on April 4, 2011, at which time Mother, Father, and the child’s maternal grandmother testified. Mother denied having suicidal ideations and filed a psychological report indicating same with the trial court. She also explained she was living and working in Orlando and capable of taking care of the child. The maternal grandmother testified the child was happy, healthy and cheerful with Mother. She also testified that Mother never indicated to her that she wanted to commit suicide or otherwise harm the child. Father testified regarding positive changes in the child’s health and academics and provided a transcript of the November 5, 2010 hearing as evidence of proof of Mother’s erratic behavior. At the conclusion of the hearing, the trial court indicated it would not disturb the status quo because it appeared the child was thriving with Father. No written order was entered.

A second hearing was held on September 20, 2011. Father offered no testimony at the hearing. At that time, Mother asked the trial court to determine whether or not Father proved the verified motion he filed on November 12, 2010. On September 22, 2011, the trial court entered an order denying Mother’s motion without further comment. This appeal followed.

To prevail on a request for a temporary modification of custody, the moving party must meet the burden of proving that (1) a substantial change in the condition of one or both of the parties has occurred, and (2) the best interests of the child will be promoted by the change. Wilson v. Roseberry, 669 So.2d 1152, 1154 (Fla. 5th DCA 1996) (citing Antonetti v. Amato, 544 So.2d 286, 287 (Fla. 1st DCA 1989)). “The best interests of the child is the primary concern in such matters, and should be dealt with in a deliberate manner with a full hearing and notice to all parties.” Berger v. Berger, 795 So.2d 113, 117 (Fla. 5th DCA 2001). In certain circumstances, an emergency ex parte order temporarily changing custody may be warranted, such as where “a child is threatened with physical harm or is about to be improperly removed from the state.” Fee v. Usler, 761 So.2d 361, 364 (Fla. 5th DCA 2000) (citing Gielchinsky v. Gielchinsky, 662 So.2d 732, 733 (Fla. 4th DCA 1995)). However, before entering an emergency modification order, every reasonable effort should be made to ensure both parties have an opportunity to be heard. Wilson, 669 So.2d at 1154. “If this is not possible ... an opportunity to be heard should be provided as soon thereafter as possible.” Id. Ex parte orders granting temporary custody follow the same procedure as the issuance of a temporary injunction without notice. Fee, 761 So.2d at 364; see also Fla. R. Civ. P. 1.610. And, a party may move to dissolve or modify the temporary injunction at any time. Fla. R. Civ. P. 1.610(d).

Father’s verified petition alleging Mother was a flight risk and had threatened to kill herself and the child, arguably, established an emergency sufficient to support the trial court’s issuance of the initial ex parte order. The issue we must now resolve is whether the trial court erred when it refused to dissolve the ex parte order after the April and September hearings on Mother’s motions. We find that it did. Where a party “challenges the entry of an ex parte order or injunction by a motion to dissolve, at the hearing on the motion the burden is on the party who obtained such a ruling ‘to show that the complaint and supporting affidavits are sufficient to support the injunction.’ ” Dep’t of Children and Families v. D.B.D., 42 So.3d 916, 920-21 (Fla. 4th DCA 2010) (quoting Matin v. Hill, 801 So.2d 1003, 1005 (Fla. 4th DCA 2001)). “[The party] who has obtained ex parte relief based simply on allegations in its complaint cannot shift the burden to the [opposing party] until it has established an evidentiary basis to support such relief.” Matin, 801 So.2d at 1006 (quoting Shea v. Cent. Diagnostic Servs., Inc., 552 So.2d 344, 346 (Fla. 5th DCA 1989)). Here, Father failed to meet his burden when the only evidence he presented was his own testimony and a transcript of the November 5, 2010 hearing where Mother was held in contempt.

Because Father presented insufficient evidence to keep the emergency ex parte order in place at the hearing on Mother’s motion to dissolve, we reverse. However, because the minor child has been living with Father for an extended period of time, the child shall remain with Father until the trial court can conduct a full and proper hearing on the issues of custody and visitation. See Pace, 715 So.2d at 1157 (ordering child to remain with father to minimize disruption to the child despite its decision to reverse the order that changed custody from the mother to the father as a punishment for contempt); Blackwood v. Anderson, 664 So.2d 37, 38 (Fla. 5th DCA 1995) (maintaining custody with appellee until the trial court could conduct a proper full hearing “[b]e-cause the nature of a custody award involves the welfare and protection of children .... ”); see also Berger v. Berger, 813 So.2d 233, 235 (Fla. 5th DCA 2002).

REVERSED and REMANDED WITH DIRECTIONS.

SAWAYA and LAWSON, JJ., concur.

      . Mother was held in contempt for refusing to provide the court with her current address, telephone number, employment, and the location of the child’s school. She was remanded to the custody of the Orange County Jail until she purged her sentence by revealing the information. Based on Mother's actions in court, the trial judge also concluded she was a flight risk.

      . Although an order releasing Mother from custody was entered by the trial court on November 10, 2010, she was not released until the afternoon of November 12, 2010, at which time the child was returned to her pursuant to the court's November 5, 2010 order.

      .Father attached to his motion an affidavit from the uncle indicating that several months prior to the hearing, Mother told him that her life had become difficult and that she wanted to end her life and that of her son. Father also attached a Facebook page indicating Mother was supposed to be working in Atlanta, Georgia the prior week, which contradicted Mother's statement, that she lived and worked in Orlando, Florida.

      . The order did not require Mother to obtain a psychological evaluation.

      . The September 22, 2011 order also denied Mother’s Sworn Ex Parte Motion to Quash and/or Dismiss Ex Parte Order of 11-5-10 for Outrageous Conduct of Court and Father’s Counsel; for Violation of Mother’s Due Process and Right to Counsel; for Violation of Rule 1.610; and Violation of F.S. 61.13, and Mother's Sworn Ex Parte Motion for Entry of Order for Immediate Return of Minor Child to Mother and for Other Sanctions.

      . Contempt orders should not be the basis for a change of custody. Berger, 795 So.2d at 117; Pace v. Solomon, 715 So.2d 1155, 1156 (Fla. 5th DCA 1998) ("A transfer of custody as punishment for one's contempt of court is not an appropriate sanction for the contempt.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cornel OSBOURNE, Appellant, v. Michelle A. DURRANT, Appellee.
    No. 5D12-3506.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.
    Cornel Osbourne, Palm Bay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979) (holding that in appellate proceedings, trial court’s decision carries presumption of correctness and appellant has burden to bring forth adequate record to demonstrate error).

ORFINGER, C.J., GRIFFIN and SAWAYA, JJ., concur.


text:
    Mariangelica QUINTERO etc., Appellant, v. Jose S. RODRIGUEZ, Appellee.
    No. 5D11-3457.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.
    Patrick John McGinley, of the Law Office of Patrick John McGinley, PA, Winter Park, and David W. Veliz, of David W. Veliz, P.A., Orlando, for Appellant.
    Nicholas A. Shannin, of The Shannin Law Firm, P.A., Orlando, and Jeffrey Feulner, of Men’s Divorce Law Firm, Orlando, for Appellee.
   PER CURIAM.

Mariangelica Quintero (“former wife”) appeals the final judgment dissolving her marriage to Jose Rodriguez (“former husband”). She first argues that the trial court erred by imputing income to her, resulting in an error in failing to award her permanent periodic alimony. Alternatively, she argues that the trial court abused its discretion by failing to award her at least $1 in nominal permanent periodic alimony. Finally, she argues that the trial court abused its discretion by failing to award her trial-level attorney’s fees and costs based upon her need and the former husband’s ability to pay. Although we find no basis to reverse the trial court’s alimony rulings, we agree that the trial court abused its discretion by failing to award the former wife attorney’s fees.

The trial court’s decision to deny the former wife’s attorney’s fee motion was premised upon the imputation of income to her, which is allowed by law. See Arouza v. Arouza, 670 So.2d 69 (Fla. 3d DCA 1995). However, even with her imputed income, the former wife is left with a negligible surplus of available funds each month (accepting the trial court’s findings as to her reasonable and necessary monthly expenses), which is clearly insufficient to pay her trial counsel’s fees. In contrast, the former husband was left with a healthy surplus each month, from which he has the ability to pay the former wife’s fees. Under these circumstances, the trial court’s denial of the former wife’s motion for fees was an abuse of discretion. Lowman v. Lowman, 724 So.2d 648, 650 (Fla. 2d DCA 1999).

Accordingly, we reverse the final dissolution order and remand this matter to the trial court with instructions to award the former wife her reasonable attorney’s fees. See § 61.16, Fla. Stat. (2010).

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

PALMER, LAWSON and COHEN, JJ., concur.

      . At trial, the former wife asserted “entitlement” to $3,500 per month in permanent alimony based on the length of the marriage, standard of living during the marriage, and the parties' incomes and expenses.


author: LaROSE, Judge.

text:
    UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellant, v. Angela STATHOPOULOS, As Trustee of the Bankruptcy Estate of Katherine M. DiGregorio and Western General Insurance Company, Appellees.
    Nos. 2D12-2412, 2D12-3606.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2013.

      Richard A. Sherman, Sr., Fort Lauder-dale, for Appellant.
    Warren B. Kwavnick of Cooney, Trybus, Kwavnick, Peets, Fort Lauderdale, for Appellant.
    Lee D. Gunn, IV, Tampa, for Appellee Stathopoulos.
    David R. Howland, Coral Gables, for Appellee Western General Insurance Co.
   ORDER ON MOTION TO DISMISS

LaROSE, Judge.

In these consolidated appeals, Universal Underwriters Insurance Company challenges a partial final judgment that resolves adversely to Universal the declaratory count of the appellees’ multicount complaint. We grant appellee Angela Sta-thopoulos’s motion to dismiss, dismiss the appeal, and certify conflict.

Katherine M. DiGregorio, now represented by Ms. Stathopoulos as bankruptcy trustee, bought a car at an automobile dealership. Shortly after she drove the car off the lot, her application for financing was rejected; the dealership instructed her to return the car. Before she could do so, her boyfriend, driving the car, had an accident that resulted in the death of another person. Appellee Western General Insurance Company, the insurer that provided coverage at the point of sale, defended and indemnified the driver in the resulting wrongful death lawsuit. That lawsuit is over; the driver consented to a $3 million judgment in favor of the deceased’s estate, assigning to the estate the proceeds of any causes of action against Universal. Universal had written the dealership’s “garage” policy and is potentially responsible for coverage because, absent financing, the car arguably belonged to the dealership while in the driver’s possession. In the subsequent lawsuit underlying this appeal, Ms. Stathopoulos and Western General filed a three-count amended complaint against Universal for declaratory relief and for breach of contract and bad faith for Universal’s failure to defend and indemnify the driver in the wrongful death lawsuit. The order on appeal declares that the driver was an insured under Universal’s policy and notes that the other two counts remain pending.

Universal argues in response to the motion to dismiss that Florida Rule of Appellate Procedure 9.110(m) and its progenitor case, Canal Insurance Co. v. Reed, 666 So.2d 888 (Fla.1996), provide this court with jurisdiction to review the order. Rule 9.110(m) provides as follows:

Exception; Insurance Coverage Appeals. Judgments that determine the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130.

However, we have construed Reed and rule 9.110(m) in a manner adverse to Universal’s position. In Centennial Insur ance Co. v. Life Bank, 953 So.2d 1 (Fla. 2d DCA 2006), we concluded that

[t]he upshot of Reed is that final declaratory judgments determining insurance coverage are appealable as final- orders regardless of whether they arise from a third-party action or from a separate suit....
It is also important to note that by its holding in Reed, the supreme court did not create jurisdiction in the district courts of appeal. Insofar as the court discerned that declaratory judgments determining coverage are final orders, the district courts already had jurisdiction to review them by appeal. Art. V, § 4(b)(1), Fla. Const. Nor did the Reed decision establish jurisdiction in the district courts to entertain appeals from nonfinal orders determining coverage.

Id. at 3-4. We also concluded that rule 9.110(m) similarly does not create a new basis of jurisdiction. Id. at 4. Rather,

the purpose of rule 9.110(m) is simply to provide a more expeditious procedure for appeals of judgments deciding coverage disputes when a claim has been made against an insured. It does not expand the district courts’ jurisdiction to entertain appeals of nonfinal orders. That being the case, the rule is purely procedural.

Id. (citation omitted). Consequently, the issue before us is not whether, for purposes of jurisdiction, the order on appeal fits a category of order defined by Reed or rule 9.110(m). Rather, we concern ourselves with whether the order on appeal is a final judgment subject to appeal under rule 9.110, or perhaps reviewable under rule 9.130, governing appeals from nonfinal orders, or pursuant to our certiorari jurisdiction.

Rule 9.110(k) provides, in pertinent part, that “[ejxcept as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case.” We consider three factors in determining whether an order disposing of less than the entire set of counts in a complaint is reviewable as a partial final judgment pursuant to this provision:

(1) Could the cause of action disposed of by the partial summary judgment be maintained independently of the other remaining causes of action? (2) Were one or more parties removed from the action when the partial summary judgment was entered? (3) Are the counts separately disposed of based on the same or different facts?

Dahly v. Dep’t of Children & Family Servs., 876 So.2d 1245, 1248 (Fla. 2d DCA 2004). Because the amended complaint reflects that the three counts are based on the same facts and are intertwined, we conclude that allowing an appeal of the declaratory count at this stage would foster impermissible piecemeal review. See Mendez v. W. Flagler Family Ass’n, 303 So.2d 1, 5 (Fla.1974). That the appellees might have been able to assert the declaratory cause of action in a separate lawsuit does not alter our conclusion. See Gulf Power Co. v. Harper, 940 So.2d 535, 536 (Fla. 1st DCA 2006) (ruling, in an appeal of a partial summary judgment resolving the declaratory count of a multicount complaint, that “while a declaratory judgment may be appealable when it is unaccompanied by other claims, that does not avoid the non-appealable [sic] nature of the order in the present case, under the dictates of Mendez ”).

We have considered whether we may exercise jurisdiction pursuant to rule 9.180, governing appeals from nonfinal orders; none of the subdivisions of the rule seem to apply. Finally, we conclude that we lack certiorari jurisdiction. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995) (requiring an aggrieved party to demonstrate that the order on review results in material injury for the remainder of the trial that cannot be corrected on postjudgment appeal). We therefore grant the motion to dismiss and dismiss the appeal.

Motion to dismiss granted; appeal dismissed; conflict certified.

DAVIS and WALLACE, JJ., Concur.

      . We note that other courts have resolved appeals in similar postures under rule 9.110(m) or Reed, albeit without explicit jurisdictional analysis. See, e.g., Wilshire Ins. Co. v. Birch Crest Apartments, Inc., 69 So.3d 975 (Fla. 4th DCA 2011); Am. Reliance Ins. Co. v. Perez, 712 So.2d 1211 (Fla. 3d DCA 1998). To the extent that the present case is in conflict with these decisions, we certify the conflict. We reach the same conclusion as did the First District in Mercury Insurance Co. of Florida v. Markham, 938 So.2d 607 (Fla. 1st DCA 2006), although by a somewhat different analysis.

      . The second factor in Dahly is not relevant to the present case.


author: VILLANTI, Judge.

text:
    Michael W. ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2950.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2013.
    Michael W. Rogers, pro se.
   VILLANTI, Judge.

Michael W. Rogers appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We reverse as to ground four and remand for further proceedings, and we affirm without further comment grounds one through three.

On March 14, 2011, Rogers entered a guilty plea to several second- and third-degree felonies in various cases. Of particular importance here are case numbers 10-21122CF and 10-19807CF, each of which contains a charge of felonious possession of a firearm for which Rogers received concurrent terms of twenty-five years’ imprisonment as a habitual felony offender (HFO).

In ground four of his rule 3.850 motion, Rogers alleged that his counsel was ineffective for failing to move to dismiss surplus charges of felonious possession of a firearm and failing to notify Rogers that the two cases charged the same offense, contained the same facts, and came from the same police report. Specifically, Rogers claimed that a careful review of the information shows that the felonious possession charge in case number 10-21122CF is based on the same facts as the corresponding charge in case number 10-19807CF. Rogers claimed that had he known of these double jeopardy violations or had his counsel taken the proper action to prevent them, he would not have entered a plea and instead would have gone to trial.

The postconviction court denied this claim, finding that a guilty plea and adjudication of guilt preclude a later double jeopardy attack. See Novaton v. State, 634 So.2d 607, 609 (Fla.1994). However, as Rogers pointed out in his motion for rehearing and brief, Novaton does not preclude a double jeopardy attack framed as a claim of ineffective assistance of counsel resulting in an involuntary plea. See Tapp v. State, 44 So.3d 666, 667 (Fla. 2d DCA 2010).

The postconviction court also relied on the record in denying this claim. Specifically, this issue was raised by Rogers’ counsel at the plea hearing, at which time the State explained that the felonious possession charge in case number 10-21122CF related to the date on which the firearm was stolen, August 26, 2010, and the same charge in case number 10-19807CF related to the date on which Rogers subsequently pawned the same firearm, August 31, 2010. The State explained that “[fit’s punishable as a separate felony for each separate day he has it,” and Rogers’ counsel did not contest this assertion. However, felonious possession of a firearm is a continuing crime. See United States v. Jones, 533 F.2d 1387, 1392 (6th Cir.1976). As such, each period of uninterrupted possession of the same firearm, regardless of length, is punishable only once. See Bailey v. State, 637 So.2d 333, 335 (Fla. 2d DCA 1994). Here, the record does not refute that Rogers “committed only one offense because of his continuous and uninterrupted possession of the same weapon.” Jones, 533 F.2d at 1390. Thus, while the State may arguably be correct that each day constitutes a different possession as a matter of historical fact, as a matter of law, Rogers committed only one offense.

Accordingly, we reverse the postconviction court’s denial of ground four and remand for the court to either attach portions of the record conclusively refuting Rogers’ claim or hold an evidentiary hearing.

Affirmed in part; reversed in part; remanded.

CASANUEVA and DAVIS, JJ., Concur.


author: DAVIS, Judge.

text:
    Adam Silva MILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6306.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2013.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Adam Silva Millan challenges his conviction and sentence for dealing in stolen property. Millan originally was charged with one count each of petit theft and dealing in stolen property. At trial, the jury found Millan guilty of both charges, and at sentencing, the trial court dismissed the petit theft, adjudicated Millan guilty of dealing in stolen property, and sentenced Millan to eight months’ county jail. We affirm that conviction and sentence. However, we write to address Millan’s argument that the trial court erred by failing to instruct the jury that pursuant to section 812.025, Florida Statutes (2011), he could not be convicted of both theft and dealing in stolen property.

Section 812.025 provides as follows:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one-or the other, but not both, of the counts.

On appeal, Millan relies on Kiss v. State, 42 So.3d 810, 812 (Fla. 4th DCA 2010), in which the Fourth District held that “the plain meaning of section 812.025[] makes it clear that the state is not entitled to have the jury convict [a defendant] of both dealing in stolen property and grand theft.... To conclude otherwise would make the language of the statute meaningless.”

However, in Williams v. State, 66 So.3d 360, 361 (Fla. 2d DCA 2011), this court concluded

that the procedural requirements in section 812.025 are unenforceable to the extent that the statute (1) attempts to establish a procedure by which a jury does not return a factual finding announcing a verdict of guilty on each of the two separately charged offenses despite its determination that the State has proven the offenses beyond a reasonable doubt and (2) requires the jury to make this selection without any legal criteria or factual basis.

Accordingly, this court affirmed Williams’ conviction and sentence for dealing in stolen property. Id. In doing so, we certified conflict with the Fourth District’s opinion in Kiss and certified three questions as being of great public importance. 66 So.3d at 361.

Pursuant to the reasoning in Williams, we affirm Millan’s conviction and sentence for dealing in stolen property and again certify conflict with the Fourth District’s opinion in Kiss. Additionally, we again certify the three questions that this court in Williams certified as being of great public importance.

Affirmed, conflict certified, and questions certified.

CASANUEVA and KHOUZAM, JJ., Concur.


author: KELLY, Judge.

text:
    Huey Lee OLDHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5549.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2013.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Huey Oldham appeals from his judgment and sentence for possession of a controlled substance and possession of drug paraphernalia. He filed a motion to suppress evidence that the trial court denied. He then entered a no contest plea to the charges, reserving his right to appeal the denial of his dispositive motion to suppress. Because we agree that the search conducted by police exceeded the scope of Mr. Oldham’s consent, we reverse.

Hillsborough County sheriffs deputies went to' Mr. Oldham’s residence to investigate a neighbor’s complaint that Mr. Old-ham was manufacturing methamphetamine on his property. As deputies approached the residence, they made contact with Mr. Oldham who was walking away from a smoldering fibre pit on the north side of the residence. One of the deputies explained they were there to investigate a complaint that he was manufacturing methamphetamine on his property, and they asked him what he was burning. Mr. Oldham stated that he was stripping and burning copper wire and scrap metal. One of the deputies asked Mr. Oldham if he could “look around” the fire pit area to verify that he was burning copper wire, not manufacturing methamphetamine. Mr. Oldham agreed.

The deputy testified that the area around the fire pit was littered with piles of “all sorts of stuff’ including copper wire, electronics, cinder blocks, and batteries. As the deputy looked around the fire pit, he saw a small “pill-style” plastic case on top of a pile of cinder blocks or electronics. A portion of a plastic baggie was sticking out of the container. The deputy opened the container and observed a white powdery substance which tested positive for methamphetamine. As he did in the trial court, Mr. Oldham contends that the officer’s search of the closed plastic container exceeded the scope of his consent to search the fire pit area. We agree.

The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is “ ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The deputy’s limited request to inspect the fire pit to confirm Mr. Old-ham was burning wire, not operating a meth lab, defined the scope of the search he intended to conduct and consequently the scope of Mr. Oldham’s consent. A reasonable person would not have understood this request to include a search of closed containers in the vicinity of the fire pit. Thus, when the deputy opened the plastic case containing the contraband, he exceeded the scope of Mr. Old-ham’s consent.

The facts here stand in contrast to those cases in which an individual has given general permission to search an area for narcotics. When the object of a search is to locate narcotics, the police may look inside unlocked containers that could contain narcotics because a typical reasonable person “may be expected to know that narcotics are. generally carried in some form of a container.” Id. Here there was no general request to search the area for drugs but rather a specific request to inspect the contents of the fire pit to confirm that Mr. Oldham had been burning wire, not manufacturing methamphetamine.

Because the search exceeded the scope of Mr. Oldham’s consent, his motion to suppress should have been granted. Accordingly, we reverse the denial of the motion to suppress, reverse the convictions and sentences, and remand for discharge.

Reversed and remanded for discharge.

CASANUEVA and MORRIS, JJ, Concur.


author: MORRIS, Judge.

text:
    Darren CORBETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3936.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2013.

      Howard L. Dimmig, II, Public Defender, and Jean-Jacques A. Darius, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Darren Corbett appeals his convictions for kidnapping and robbery with a deadly weapon. Based on the analysis that follows, we affirm his convictions. We write to explain our rejection of Corbett’s arguments regarding the admission of Williams rule evidence and a scrivener’s error in the information.

I. Background

Corbett was charged with committing the offenses of kidnapping, sexual battery, and robbery with a deadly weapon against his ex-girlfriend, Jane Doe, on November 27, 2008. The State filed a notice of intent to introduce Williams rule evidence that Corbett committed similar offenses against Mary Smith, and Corbett filed a motion to strike that evidence. At a hearing on the issue, the State pointed out that the trial court had admitted evidence of the crimes against Doe in case 2009-CF-00017, the State’s earlier prosecution against Corbett for the offenses committed against Mary Smith. Corbett argued that the crimes committed against Smith were dissimilar to the crimes committed against Doe and that any probative value of the Williams rule evidence was outweighed by undue prejudice. The trial court ruled that the Williams rule evidence was admissible.

At trial, the State presented the testimony of the victim in this case, Doe. She testified, as discussed in further detail below, that Corbett committed the charged offenses against her on November 27, 2008. Smith testified, also discussed .in further detail below, that Corbett committed similar offenses against her on January 1, 2009. The responding deputy testified that Doe was crying and had a mark under her eye. Another deputy testified that she went with Doe to the hospital and that the nursing staff handed the deputy a rape kit, which the deputy placed into property and evidence. A third deputy testified that he responded to Corbett’s residence and that Corbett denied committing the offenses against Doe. The crime scene technician testified that he was not able to lift any fingerprints from Doe’s vehicle. A DNA analyst testified that sperm found on a vaginal swab taken from Doe matched Corbett’s DNA profile.

The defense did not present any evidence at trial. The trial court denied Cor-bett’s motion for judgment of acquittal, and the jury returned verdicts of not guilty of sexual battery, guilty of kidnapping, and guilty of robbery with a deadly weapon. The trial court sentenced him to concurrent sentences of life in prison.

II. Williams rule evidence

A. Jane Doe’s testimony

At trial, Doe testified that she was in a relationship with Corbett from September 2007 to October 2008. She had ended the relationship but tried to remain friends. On November 27, 2008, Thanksgiving Day, Corbett called her and asked her to come see his mother who had just returned home from an assisted living facility in Palmetto. Doe finally agreed to visit Cor-bett’s mother, but she told Corbett that she could not stay long because she had other plans in Arcadia with her family and friends. Corbett was upset that Doe could not spend more time in Palmetto. Doe testified that Corbett wanted to talk about their relationship and was agitated that she did not have the time for him. On her drive to Palmetto, she turned around twice, but she finally decided to go see Corbett’s mother.

When Doe arrived at Corbett’s mother’s house, Corbett walked up to her car and asked her to take him to the store for his mother. She agreed because she was tired of arguing with him. She allowed him to drive her car, but then he drove in a direction opposite from the store. He drove her to a metal warehouse with a parking lot, a location where they had a history of going to have sex in the car. Corbett was mad because they had been arguing. He twice demanded that she get into the back seat, so she complied, and he put on black gloves and pulled out a knife. It looked like a carving knife about twelve to thirteen inches long. He put the knife to her throat and said, “Now the fun’s going to begin.” He ordered her to take her clothes off, and he had sex with her against her will.

Doe then tried to sit up, but Corbett pushed the knife to her, throat and asked, “Do you think this is a f — ing game?” He then began to talk about the pain that he was going through, wondering why they could not be in a relationship together. He went from one subject to another, talking about his mother and things that had happened in the past. She tried to sit up again, and he slapped her. He told her that they were going to the ATM to get some money so they could get high, and he told her to get in the front seat. He allowed her to put on her shirt.

When Doe got in the front seat, Corbett reclined her seat to the lowest position and fastened her seat belt. He used her ATM card to obtain money from a Bank of America ATM, and he returned to an area near his mother’s house, where he bought crack cocaine. He took Doe to the shed behind his mother’s house, and he started smoking the crack. He told her to sit on the bed, and he laid the knife on a bucket or stand right next to where he sat in a chair. He told her that she was going to feel his pain and smoke crack that night. She refused, and he tried to put the crack pipe in her mouth. Corbett got mad and told her to undress and lie down on the bed. She complied, and he stood over her and nudged her legs with his knee. After he stood there for a minute, he walked outside. When he walked back inside, he told her to put her clothes back on, which she did. She was crying and cold.

At one point, Corbett accused Doe of using her cell phone to call someone. He had taken her phone earlier and had taken the battery out. She told him that she could not have called someone. They got back into her car, with him driving, and he still had the knife. Her passenger seat was still reclined. They drove around, and she tried to keep up communication with him. He continued to talk about the pain he had been in and wonder why they could not be together. He became agitated again and threatened to sell her to a Mexican work camp. She told him that he could get more money out of her account at the ATM, so they went back, and he withdrew another $150.

Corbett then drove them back towards his mother’s house, where he bought more crack. He took her back to the shed, and he continued to talk. He smoked more crack. At this point, it had been hours. Corbett finally said that “in the next 15 minutes I’m going to let your night of terror end.” She did not know what that meant, but about fifteen minutes later, he told her to pick up her phone and he walked her to her car. He told her he was going to get his niece’s Lexus and drive to the waterfront and that there was where she could tell the police to find him. But then he said, “no, actually, I’m going to sit right here” and “now go tell the police whatever you need to tell them.” He opened the door and handed her the keys. She tried to drive away, but he stood in the way for a moment. He moved, and then she immediately drove to the nearest police station. Doe testified that she never tried to escape because she was terrified and did not know what was going to happen.

The doors of the police station were locked, so she called 911. A deputy arrived at her car, and she told him what happened. She was completely distraught and terrified. She filled out an affidavit, and then two deputies took her to the hospital, where she was examined.

B. Mary Smith’s testimony

Smith testified that she was in a romantic relationship with Corbett’s sister. Around 1:15 p.m. on December 31, 2008, New Year’s Eve Day, Smith was visiting a friend near Corbett’s mother’s house. Corbett waved from his mother’s porch and then walked over and joined Smith’s conversation with her friend. He did not say much, just asked what was going on with her and his sister and how she was doing. Smith told him everything was fine and that she was doing fine. She said she was on her way to work, and he said that they needed to talk. She said okay, and that was the end of the conversation.

Smith got off of work at around 2 a.m., early New Year’s Day morning. She drove to her house, and as soon as she turned onto her street, she noticed that her laundry room light was on. She called her son to ask if he had been there that day, and he said no. She parked her car right in front of her door, went inside the house and straight into the laundry room, and turned off the light. She walked to her bedroom and went to pull on the light, and she could see a figure to the left of her. As she turned around, a man covered her face, put a knife to her throat, and told her not to scream. It was a kitchen, steak-type knife.

The man told her to cooperate, and when he pulled his hand from her face, she pleaded with him to not hurt her. She did not know at that time who the man was because he was wearing a black ski mask and a hoodie. He told her to fully undress and lie on the bed nude. He told her to roll over to her stomach, and he came over to her and “touched” and “rubbed.” He allowed her to use the bathroom but then led her back to her bed.

Then, they began to talk. She asked if she had done anything wrong, and there was a lot of conversation. It went on for hours. At one point, the man asked her for money. She offered to take him to Amscot to cash her paycheck, but they went to a bank instead. Before they left, he shredded a white t-shirt, tied her hands together, and let her put on a robe. He covered her face and guided her to the car. He had her get in through the driver’s side into the passenger side seat. “He let the seat all the way back so the head part of it was in the back seat, and he put the seat belt on.”

He asked for her ATM card, and the PIN she gave him was wrong. He became agitated, and she said he was using the wrong card and gave him the correct card. He withdrew $50 from the ATM and drove them back to her house. They went back inside to her bedroom, and he removed the ties from her hands and the cover from her face. They talked again, and she told him that she was willing to hear his story since he seemed to want somebody to hear what he had to say. They talked about his family and her girlfriend. At one point in the conversation, he told her that he would reveal himself to her before he left, so she tried to do whatever it took for him to trust her. Before the man left her house, he let her feel the texture of his hair. Then he removed the top part of his hood-ie and lifted his mask, and she recognized him as being Corbett. He apologized to her for making her part of his addiction. Smith testified that “[h]e asked me when I leave would you call the police and tell them I’m sitting in my mom’s yard.”

C. Discussion

On appeal, Corbett claims that the trial court erred in admitting Williams rule testimony that Corbett had committed similar offenses against Smith. He contends that the offenses committed against Smith were unrelated and dissimilar to those in the instant case and that such evidence was impermissible proof of bad character and propensity. He argues that evidence of subsequent crimes is less probative than evidence of prior crimes and that any probative value was outweighed by the prejudice against him.

We review the trial court’s decision to admit the Williams rule evidence for abuse of discretion. See McWatters v. State, 36 So.3d 613, 628 (Fla.2010). A court “considers both similarities and dissimilarities between the collateral crimes and the charged offense when reviewing whether ‘a sufficiently unique pattern of criminal activity [justifies] admission’ ” under section 90.404(2)(a), Florida Statutes. McWatters, 36 So.3d at 627-28 (alteration in original) (quoting Peek v. State, 488 So.2d 52, 55 (Fla.1986)). “ ‘There must be identifiable points of similarity which pervade the compared factual situations.’” Peek, 488 So.2d at 55 (quoting Drake v. State, 400 So.2d 1217, 1219 (Fla.1981)). “ ‘Given sufficient similarity, in order for the similar facts to be relevant, the points of similarity must have some special character or be so unusual as to point to the defendant.’ ” Id. (quoting Drake, 400 So.2d at 1219).

“[0]ther crime evidence that is probative of a material fact in issue is not inadmissible simply because it has a tendency to suggest the commission of another crime and thus necessarily is prejudicial to the defendant.” Williams v. State, 621 So.2d 413, 415 (Fla.1993) (citing Bryan v. State, 583 So.2d 744, 747 (Fla.1988), and Williams, 110 So.2d at 660). Other crime evidence that is sufficiently similar to the charged crimes may be admissible to rebut a defense of consent by showing a common plan or scheme. See id. at 416-17.

After considering the testimony by both Doe and Smith, we conclude that the trial court did not abuse its discretion in admitting Smith’s testimony. The following similarities pervade the two separate incidents and are so unusual as to point to Corbett: (1) Corbett knew both victims; (2) both offenses took place on a holiday; (3) Corbett threatened both victims with a knife; (4) Corbett made both victims undress and stay undressed; (5) Corbett forced both victims to ride in the passenger seats with the seats fully reclined; (6) Corbett drove both victims to ATMs where he withdrew money from their accounts; (7) Corbett spent several hours with both victims, talking to them about his life and problems; and (8) Corbett finally let both victims go and told them where the police could find him. While there were some dissimilarities between the two incidents, the uniqueness of the striking similarities outweighs the differences. See McWatters, 36 So.3d at 628-29. The evidence in this case was similar and unique enough to constitute “‘fingerprint’ evidence.” Fitzsimmons v. State, 935 So.2d 125, 128 (Fla. 2d DCA 2006).

While the Williams rule evidence offered in this case involved offenses committed subsequent to the charged offenses, this does not render the evidence inadmissible. The evidence showed that Corbett committed the instant offenses against Doe on Thanksgiving Day 2008. The offenses committed against Smith occurred on New Year’s Day 2009, just over a month later. The time in between the crimes did not render the Williams rule evidence irrelevant in light of the other strong factors that render the evidence relevant. See Kent v. State, 704 So.2d 121, 124 (Fla. 1st DCA 1997) (“[T]he admissibility of subsequent acts depends heavily on its probative value and prejudicial effect, which the trial court must balance.”); cf. State v. Drolet, 549 So.2d 1172, 1172 (Fla. 2d DCA 1989) (“Evidence of acts approximately six months subsequent to the time of the charged crimes was not relevant to prove predisposition to commit those crimes.”). Corbett claims that the similar fact evidence was not relevant to prove Corbett’s state of mind at the time of the Thanksgiving Day offenses, but the evidence was not offered for that purpose. It was offered to prove a common plan or scheme and to rebut Corbett’s defense of consent.

Corbett also claims that the evidence was unduly prejudicial and that its probative value was outweighed. But the simple fact that the evidence was prejudicial against Corbett did not render it inadmissible. See generally Amoros v. State, 531 So.2d 1256, 1260 (Fla.1988) (“[Almost all evidence to be introduced by the state in a criminal prosecution will be prejudicial to a defendant.”). And the probative value of the evidence offered by Smith was not outweighed by any prejudicial effect of her being a sympathetic or emotional witness, especially where her testimony was necessary to describe the similar fact evidence, the State did not admit more evidence than was necessary to prove the similar fact evidence, and the State only referred to her testimony once during closing arguments. See Delhall v. State, 95 So.3d 134, 166 (Fla.2012) (recognizing that “ ‘relevant evidence of collateral crimes impermissibly becomes a feature of the trial when the evidence transcendfs] the bounds of relevancy to the charge being tried and the prosecution devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant’” (alteration in original) (quoting McCray v. State, 71 So.3d 848, 877 (Fla.2011)) (internal quotation marks omitted)).

III. Misspelling of victim’s name in the information

In his second point on appeal, Corbett claims that the information erroneously listed the victim’s last name. This argument was not preserved below, and even if it had been, it would not amount to a reversible error. Only “a material variance between the name alleged [in the charging document] and that proved is fatal.” Snipes v. State, 733 So.2d 1000, 1004 (Fla.1999) (citing Fla. R. Crim. P. 3.140(o) and Raulerson v. State, 358 So.2d 826 (Fla.1978)). “[T]he name of the victim as set forth in the [charging document] must be specific enough so as to not mislead the accused in the preparation of the defense or to subject the accused to a second prosecution for the same offense.” Id.

The information misspells the victim’s last name by one vowel. But defense motions filed by Corbett correctly spell the victim’s last name, indicating that Corbett was aware of the correct identity of the victim. The written order allowing the admission of Williams rule evidence entered in case 2009-CF-17 correctly identifies the victim in this case, further informing Corbett of the correct identity of the victim. And the transcript of the trial in this case correctly spells the victim’s last name. Further, on the stand, the victim spelled her name. Therefore, Corbett’s defense was not hampered and there is no risk of Corbett’s being placed in double jeopardy. Accordingly, there is no error in the information that would entitle Cor-bett to a reversal. See Snipes, 733 So.2d at 1005 (holding that misspelling of the victim’s name in the indictment should be excused where “there was no issue regarding whether the victim in this case was in fact Karl Markus Mueller” and “[w]here [defendant] was not prejudiced” by the error because “it did not hamper the preparation of his defense or place him in jeopardy of being tried twice for the same offense”); Brown v. State, 888 So.2d 130, 131 (Fla. 4th DCA 2004) (denying petition alleging ineffective assistance of counsel for failing to raise defect in the information because the variance regarding the name of the victim was not fatal; “there could be no doubt as to the true identity of the victim” because the victim himself testified at trial, and there was no “possibility of a second prosecution for the same offense”); cf. Jacob v. State, 651 So.2d 147, 148 (Fla. 2d DCA 1995) (where information identified the victim as James Neeley, the arresting officer testified at trial that he interviewed a Joseph Neeley as the victim, and the victim did not testify at trial, court was “unable to infer that these are two names for the same person” and held that the defendant remains in jeopardy of being “convicted twice for the same offenses”).

IV. Conclusion

For the reasons expressed above, we affirm Corbett’s convictions.

Affirmed.

WALLACE and BLACK, JJ., Concur.

      . Williams v. State, 110 So.2d 654, 663 (Fla.1959); see § 90.404(2)(a), Fla. Stat. (2008).

      . We use pseudonyms to refer to the victims in both cases out of respect for their privacy.

      . In case 2009-CF-17, Corbett was convicted after a jury trial of burglary of a dwelling with an assault or battery, armed kidnapping with a weapon, and robbery with a weapon against Smith. On direct appeal, he argued that the trial court improperly admitted Williams rule evidence that he had committed similar offenses against Doe. This court per curiam affirmed his convictions. See Corbett v. State, 67 So.3d 208 (Fla. 2d DCA 2011) (table decision).


author: KHOUZAM, Judge.

text:
    Ronald Lawrence GEORGE, Appellant, v. Heidi Lynn GEORGE, Appellee.
    Nos. 2D11-6193, 2D12-2687.
    District Court of Appeal of Florida, Second District.
    March 1, 2013.
    William E. McGrew and Sam R. Assini of Men’s Rights Law Firm, Cape Coral, for Appellant.
    Heidi Lynn George, pro se.
   KHOUZAM, Judge.

Ronald Lawrence George, the former husband, timely appeals two final orders attempting to modify an award of money from his Chrysler pension to Heidi Lynn George, the former wife. Because the trial court did not have jurisdiction to modify the final judgment, we are compelled to reverse.

In the final judgment of dissolution of marriage, the marital portion (67.59%) of the former husband’s Chrysler pension was equally distributed between the parties. Although the court was aware that when the former husband retired into the social security system there would be a decrease in the Chrysler pension benefit, the court did not reserve jurisdiction to modify the percentage shares of the Chrysler pension benefit as part of the equitable distribution scheme. Accordingly, the former wife was awarded 33.795% of the Chrysler pension and the former husband was awarded 66.205% (his marital share, 33.795%, plus his nonmarital share, 32.41%). The court ordered the former husband’s counsel to submit a Qualified Domestic Relations Order (“QDRO”) dividing the pension benefit by these percentages and reserved jurisdiction for enforcement.

After the former husband retired into the social security system, the former wife’s monthly benefit was reduced. She received $445.10 less each month, and the former husband correspondingly received his percentage share of the Chrysler pension as well as his full social security payment. The former wife filed a motion to clarify judgment/modify QDRO, which the court granted. The court explained that the former husband had started receiving social security payments and that his Chrysler pension had accordingly been reduced. This resulted in the ratio in the judgment being applied to the Chrysler pension only and the entire social security payment going to the former husband. The judge explained that it was his intention not to have the former wife’s income be reduced. He stated:

Such a windfall to the former husband and deficit to the former wife was not ordered in the judgment. Rather, the judgment ordered that the ratio of the former husband’s total pension benefit, whether paid from Chrysler before he retired or from Chrysler and social security after he retired, would be the same, that is, 33.795% to the former wife and 66.205% to the former husband. As stated in the judgment: “... the husband’s retirement in the social security system will not increase his income.” Likewise, it will not reduce the former wife’s income.

The judge concluded that he could properly enforce the judgment as opposed to modifying it, stating, “I think the final judgment cannot be read.any other way than to say she is entitled to 33.795 percent of the pension.” The second amended QDRO was entered in accordance with the court’s ruling. The former husband appealed both the order granting the motion to clarify and the second amended QDRO, arguing that the trial court was without jurisdiction to modify the percentage shares.

Though we recognize that the trial court’s ruling was equitable, we are compelled to reverse. “[A] court has no jurisdiction to modify property rights after those rights have been adjudicated in a final judgment of dissolution.” Bridges v. Bridges, 848 So.2d 403, 404 (Fla. 2d DCA 2003); see also Blaine v. Blaine, 872 So.2d 383, 384 (Fla. 4th DCA 2004) (holding that a QDRO must conform to the dictates of the final judgment). A general reservation of jurisdiction in a dissolution order is typically insufficient to preserve a court’s jurisdiction to subsequently alter property rights. See Mason v. Mason, 371 So.2d 226, 227 (Fla. 2d DCA 1979). And “[a] trial court may not, in the guise of an enforcement proceeding, readdress the distribution of property when the property has been previously distributed.” Janovic v. Janovic, 814 So.2d 1096, 1100-01 (Fla. 1st DCA 2002).

Here, the trial court fashioned an equitable remedy but, unfortunately, did not have jurisdiction to do so. The final judgment distributed the former husband’s Chrysler pension benefit between the parties — not his social security benefit. Though the court noted in the final judgment that the Chrysler pension benefit would change with social security, regrettably the judgment did not have a provision indicating that the distribution would be any different. Indeed, there is no indication in the final judgment that the former wife would receive an increased percentage share of the Chrysler pension in the event her monthly pension benefit was reduced when the former husband entered into the social 'security system. Because the trial court did not have jurisdiction to readdress the distribution of the Chrysler pension, we must reverse.

Reversed.

CASANUEVA and DAVIS, JJ., Concur.


author: WALLACE, Judge.

text:
    Anthony P. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2937.
    District Court of Appeal of Florida, Second District.
    March 1, 2013.
   WALLACE, Judge.

Anthony P. Williams challenges the order dismissing his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he sought to enforce the terms of a negotiated plea agreement. Because the postconviction court should have treated the motion as filed pursuant to Florida Rule of Criminal Procedure 3.850, we reverse the order and remand for further proceedings.

■ Williams alleged that he entered into a plea agreement with the State wherein he was to receive a sentence of 72.4 months’ prison. He further alleged that the trial court accepted the terms of the negotiated plea and imposed the agreed-upon prison term but sentenced him as a habitual offender when a habitual offender designation was not part of the negotiated plea agreement. The postconviction court dismissed the claim as facially insufficient under rule 3.800(a) because Williams failed to assert that it could be determined from the face of the record.

Williams did not allege that he did not qualify to be sentenced as a habitual offender, and his motion did not present a cognizable claim under rule 3.800(a). See Judge v. State, 596 So.2d 73, 78 (Fla. 2d DCA 1991) (en banc) (holding that a habitual offender sentence is illegal for purposes of rule 3.800(a) only if the terms or conditions of the sentence exceed those authorized by statute or a prior offense essential to categorize the defendant as a habitual offender does not actually exist). However, this court has held that because there is no separate postconviction procedure whereby a defendant may seek to enforce a plea agreement, such a claim must be filed pursuant to rule 3.850. Almodovar v. State, 56 So.3d 898, 899 (Fla. 2d DCA 2011); Sweet v. State, 987 So.2d 747, 747 (Fla. 2d DCA 2008). Because Williams’ motion was properly sworn to and was filed within the time limitations of rule 3.850, the postconviction court should have treated it as a motion filed under that rule. See Hettick v. State, 977 So.2d 797, 798 (Fla. 2d DCA 2008).

We therefore reverse the postconviction court’s order and remand with instructions to treat the motion as filed pursuant to rule 3.850. Should Williams be correct in his assertions, the postconviction court should resentence him in accordance with the plea agreement or allow him to withdraw his plea should he wish to do so. See Dellofano v. State, 946 So.2d 127, 129 (Fla. 5th DCA 2007). On remand, if the post-conviction court finds that the trial court accepted the terms of the negotiated sentence, we would encourage the postconviction court to resentence the defendant in accordance with the agreement.

Reversed and remanded.

CASANUEVA and LaROSE, JJ., Concur.


text:
    Alexander PHILIPPOU and Peter Philippou, Appellants, v. J.P. MORGAN MORTGAGE ACQUISITION CORPORATION, Appellee.
    No. 2D10-4771.
    District Court of Appeal of Florida, Second District.
    March 1, 2013.
    Eric Lee Bensen, Michael B. Jones, and Cynthia M. Winter of The Wheelock Law Firm, LLC, Orlando (withdrew after briefing), for Appellants.
    Alexander Philippou and Peter Philip-pou, pro se.
    Kimberly S. Mello and Thomas A. Burns of Greenberg Traurig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

Alexander and Peter Philippou challenge a final summary judgment of foreclosure entered in favor of Chase Home Finance LLC, a nonparty. The plaintiff, J.P. Morgan Mortgage Acquisition Corporation (J.P. Morgan), confesses error relating to the entry of the final summary judgment and requests that the final judgment be reversed and this case remanded to the trial court for further proceedings.

Upon consideration of J.P. Morgan’s confession of error, we reverse the final summary judgment of foreclosure and remand this case to the trial court for further proceedings. See Verizzo v. Bank of N.Y., 28 So.3d 976, 978 (Fla. 2d DCA 2010); see also Beaumont v. Bank of N.Y. Mellon, 81 So.3d 553, 554 (Fla. 5th DCA 2012).

Reversed and remanded.

WALLACE, CRENSHAW, and MORRIS, JJ., Concur.


text:
    Hector R. VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4738.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2013.
    Rehearing Denied April 9, 2013.
    Hector R. Vazquez, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Ransone v. State, 48 So.3d 692 (Fla.2010); Bagley v. State, 96 So.3d 1119 (Fla. 5th DCA 2012) (Lawson, J., concurring).

PALMER, TORPY and LAWSON, JJ., concur.


author: JACOBUS, J. SAWAYA, J.,

text:
    Howard BROWNING, Appellant, v. Lynn Anne POIRIER, Appellee.
    No. 5D12-1823.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.

      Sean P. Sheppard of Sheppard Firm, P.A., Ft. Lauderdale, for Appellant.
    Mark A. Sessums and Brian M. Monk of Sessums Law Group, P.A., Lakeland, for Appellee.
   JACOBUS, J.

Appellant, Howard Browning, timely appeals a final judgment entered on a motion for directed verdict made by Appellee, Lynn Anne Poirier. We reverse.

Browning and Poirier lived together in a romantic relationship beginning in 1991. While the two were still co-habiting, Poirier purchased a winning lottery ticket for the July 4, 2007 drawing. Poirier won $1,000,000, but refused to share the winnings with Browning.

Browning brought suit against Poirier. His second amended complaint contained five counts, including claims for breach of contract and unjust enrichment. The breach of contract count alleged that “in approximately 1993, [the parties] entered into an oral agreement in which they each agreed to purchase lottery tickets jointly on a frequent and regular basis, and to equally share in the proceeds of any winning lottery tieket(s).” The agreement was to apply whether the tickets were purchased “together, separately, in different locations, or at different times.... ” The count further alleged that “[t]his agreement was capable of being performed within one (1) year” and that the agreement had been “reaffirmed and/or ratified several times orally and by the parties’ conduct since 1993.” In her answer, Poirier denied the existence of the contract, but raised the statute of frauds as an affirmative defense to the claim. She also contended that any derivative claims would be barred by the statute of frauds.

At trial, Browning testified that the parties first made an agreement to share any lottery winnings in 1992. He explained that “the agreement that we had since we were buying tickets that we would go in and buy them together and we would play together and that if we win, we would split the money.” The agreement had most recently been reaffirmed in 1993, although Browning conceded that the agreement was to be effective only as long as they were in a romantic relationship and he had friendships with other women. He claimed that Poirier had purchased the winning ticket on the night of June 2, 2007, when they had stopped at the convenience store together to buy more tickets for the upcoming raffle; that he had given Poirier twenty dollars with which to purchase the ticket; and that they had both purchased tickets that night, but there was someone between them in line, because they wanted to purchase non-consecutive tickets.

At the close of Browning’s case, the trial court granted a directed verdict on the claim for breach of contract, finding that the action was barred by the statute of frauds because it was not in writing as required for a contract “not to be performed within the space of 1 year from the making thereof....” See § 725.01, Fla. Stat. (2007). The trial court also granted a directed verdict on Browning’s claim for unjust enrichment, holding that a party seeking to enforce an express contract cannot simultaneously disavow the contract and seek equitable relief in quasi-contract. Final judgment was then entered in favor of Poirier.

The threshold issue presented by this case is whether Browning’s action is barred by the statute of frauds. We hold that it is not. The statute provides in relevant part that:

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

Id.

The general rule is that the statute of frauds bars enforcement of oral contracts which by their terms are not to be performed within a year. Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937). The fact that a contract may not be performed within a year does not bring it within the statute. Id. “In other words, to make a parol contract void, it must be apparent that it was the understanding of the parties that it was not to be performed within a year from the time it was made.” Id.

Contracts for an indefinite period generally do not fall within the statute of frauds. Id.; Restatement (Second) of Contracts § 130 cmt. (a) (1981) (“Contracts of uncertain duration are simply excluded; the provision covers only those contracts whose performance cannot possibly be completed within a year.”). As the court explained in Yates:

When, as in this case, no definite time was fixed by the parties for the performance of their agreement, and there is nothing in its terms to show that it could not be performed within a year according to its intent and the understanding of the parties, it should not be construed as being within the statute of frauds. 25 R.C.L. 456, and cases cited. 25 R.C.L. 458.

Id. at 344. However, the general rule is subject to a “qualifying rule” that:

when no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended that it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year.

Id.

In arguing that enforcement of the contract was barred by the statute, Poirier relies on the qualifying rule outlined in Yates. She contends that parties did not intend for the agreement to be fully performed within one year as it was a “perpetual” agreement with no termination date. The flaw in her argument is the assumption that the agreement was intended to be “perpetual.” It was simply an agreement for an indefinite term which, according to Browning’s testimony, was to continue as long as the parties were involved in a romantic relationship. Although the parties contemplated that the relationship would last more than one year, there was nothing in the agreement, which was terminable at will, to show that it could not be performed within one year, or which required performance for a period of time exceeding one year. Hence, Browning’s suit for breach of contract is not barred by the statute. See, e.g., Wilcox v. Lang Equities, Inc., 588 So.2d 318 (Fla. 3d DCA 1991) (holding that statute of frauds did not bar action by hotel owner to enforce agreement pursuant to which corporation was to sell vacation packages and to remit hotel fees to hotel owner, although agreement lasted more than a year and was for indefinite period; agreement was not within the statute of frauds because no definite time was fixed for performance and there was nothing in the terms to show that it could not be performed within one year); Gulf Solar, Inc. v. Westfall, 447 So.2d 363 (Fla. 2d DCA 1984) (holding that statute of frauds did not bar action by employee under oral at will employment contract although parties contemplated employment would last more than one year); Hope v. National Airlines, 99 So.2d 244 (Fla. 3d DCA 1957) (recognizing that oral contract that employee would be employed as long as corporation was in business is generally not barred by the statute of frauds); Restatement (Second) of Contracts § 130 Illus. BB R3.4 (1981) (stating that contract that A will provide grading and B will construct a switch and maintain it as long as A needs it for shipping purposes is not barred by the statute of frauds, although A uses switch for 15 years); see also McGehee v. South Carolina Power Co., 187 S.C. 79, 196 S.E. 538 (1938) (recognizing that use of the word “indefinite” does not mean perpetually, but means uncertain as to time). The contract at issue is similar to, if not indistinguishable from, those involved in employment cases in which an employee is hired for an indefinite period. The employment contracts are considered terminable at will by either party and are enforceable although not in writing because the contracts do not fall within the statute of frauds. See, e.g., Richey v. Modular Designs, Inc., 879 So.2d 665 (Fla. 1st DCA 2004) (concluding that statute of frauds did not bar recovery because salaried employee’s contract was terminable at will, with indefinite duration; his claim was for commissions earned for past services and there was no evidence contract was intended to last beyond one year); Cabanas v. Womack & Bass, P.A., 706 So.2d 68 (Fla. 8d DCA 1998) (finding that statute of frauds did not bar claim for breach of oral employment contract for indefinite time, that was terminable at will by either party, which had been fully performed by employee, where employee was hired for work that did not require his performance beyond one year).

The cases cited by Poirier are distinguishable. They involve mostly business contracts in which the intended term of performance, while indefinite, was plainly more than one year. See, e.g., LynkUs Commc’ns, Inc. v. WebMD Corp., 965 So.2d 1161 (Fla. 2d DCA 2007) (holding that oral agreement to establish new business to continue indefinitely is barred by the statute of frauds); Ballard-Cannon Dev. Corp. v. Sandman Prop. and Dev., LLC, 933 So.2d 1251 (Fla. 1st DCA 2006) (holding that action on development contract was barred by statute of frauds, where developer’s own witnesses acknowledged that development of project would take well over a year to complete); Hosp. Corp. of Am. v. Assocs. in Adolescent Psychiatry, 605 So.2d 556 (Fla. 4th DCA 1992) (holding that oral agreement to operate joint venture for a period of fifteen years was barred by the statute of frauds, although it was conditioned on obtaining certificate of need); Khawly v. Reboul, 488 So.2d 856 (Fla. 3d DCA 1986) (holding that oral agreement to form corporation and operate sportswear business was barred by the statute of frauds, as parties intended business to continue for more than one year); Weinsier v. Soffer, 358 So.2d 61 (Fla. 3d DCA 1978) (holding that oral agreement to enter into business and share losses in ongoing business that was to continue indefinitely was barred by the statute of frauds); Food Fair Stores, Inc. v. Vanguard Invs. Co. Ltd., 298 So.2d 515 (Fla. 3d DCA 1974) (holding that parties to oral agreement with grocery chain were not allowed to enforce oral agreement which provided that any future stores of particular chain built in the Bahamas would be operated jointly by the parties, because contract was not to be performed within one year and thus came within the statute of frauds).

The line distinguishing these types of cases can sometimes be unclear. However, we are confident that the oral contract in this case is not barred by the statute of frauds because there is no evidence the contract (as opposed to the relationship) was intended to last for a period of more than a year. Moreover, we reverse the directed verdict on this count because the evidence, viewed in a light most favorable to Browning, could sustain a verdict in favor of Browning. See Benitez v. Joseph Trucking, Inc., 68 So.3d 428, 429 (Fla. 5th DCA 2011) (“A motion for directed verdict should be granted only where there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the moving party.”).

We also reverse the dismissal of Browning’s count for unjust enrichment. The trial court dismissed this count on the basis of Tobin & Tobin Ins. Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975). Logically, a party whose contract is unenforceable due to the statute of frauds cannot recover for unjust enrichment, as the law will not imply a contract where an express contract exists regarding the same subject matter. Kovtan v. Frederiksen, 449 So.2d 1, 1 (Fla. 2d DCA 1984). Thus, once it is shown that an express contract exists, the claim for unjust enrichment necessarily fails. Real Estate Value Co. Inc. v. Carnival Corp., 92 So.3d 255, 262 n. 2 (Fla. 8d DCA 2012). Here, however, Poirier denied the existence of an express contract and the jury has yet to determine whether an express contract exists. Under these circumstances, the two claims can be maintained simultaneously. Id., ThunderWave, Inc. v. Carnival Corp., 954 F.Supp. 1562, 1566 (S.D.Fla.1997) (citing Hazen v. Cobb, 96 Fla. 151, 117 So. 853, 857-58 (1928)).

REVERSED and REMANDED.

TORPY, J., concurs.

SAWAYA, J., concurs in part, dissents in part, with opinion.

SAWAYA, J.,

concurring in part, dissenting in part.

This case involves two romantically involved individuals who allegedly agreed to split the proceeds of any lottery tickets they purchased, only to have the eventual winning ticket split their romance. The purchaser of the winning ticket is Lynn Anne Poirier, the Appellee. The claimant of half of the proceeds is Howard Browning, the Appellant. Browning testified at trial that he and Poirier became romantically involved in 1991 and started living together that year. He further testified that in 1993, they entered into an oral agreement to split the proceeds of any lottery tickets they may purchase and that this agreement was to last as long as they remained romantically involved. Some fourteen years after the alleged agreement was made and while the parties were still romantically involved and living together, Poirier purchased the winning ticket, collected one million dollars, and refused Browning’s request for half of the proceeds. The displeased and disgruntled Browning then filed the underlying suit for breach of contract and unjust enrichment seeking half of the proceeds. Poirier denied the existence of any oral agreement to split future lottery proceeds and interposed the defense of the statute of frauds. The trial court directed a verdict in favor of Poirier concluding that if there was an oral agreement, Browning’s claim is barred because the parties intended it to last for far longer than one year. Browning appeals, arguing that factual issues remain that should be resolved by a jury and asks us to reverse the judgment in favor of Poirier and remand this case for a new trial.

The majority holds that the alleged oral contract to share lottery winnings is not barred by the statute of frauds and remands for a new trial only on the issue of whether the oral agreement was entered into by the parties. That holding is based on reasoning that it was possible that the alleged oral contract could have been performed within the statutory one-year performance period and, therefore, the statute does not apply to bar the claim for breach of the agreement. I believe the key factor to determine the applicability of the statute to this alleged oral contract which, as the majority concedes, is for an indefinite period of time, is whether the parties intended that the contract extend beyond the one-year statutory period. What the parties intended is a question that should be left to the jury to resolve.

The statute of frauds is found in section 725.01, Florida Statutes (2007), and provides in pertinent part:

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

The courts have consistently applied the rule that when an alleged oral contract is for an indefinite period of time, the determining factor is whether the parties intended the contract to extend beyond the one year statutory period. In Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937), the court explained:

[W]hen no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended that it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year.

Id. at 344. In Lundstrom Realty Advisors, Inc. v. Schickedanz Bros.-Riviera Ltd., 856 So.2d 1117 (Fla. 4th DCA 2003), the court explained that this holding in Yates specifically means that “[w]hen an oral agreement is silent as to time, yet capable of performance within one year, the parties’ intent will control to determine whether the statute of frauds bars enforcement. ...” Id. at 1122 (quoting Yates). In Khawly v. Reboul, 488 So.2d 856, 858 (Fla. 3d DCA 1986), the court interpreted the holding in Yates to mean that “to determine whether the statute of frauds bars enforcement of an oral contract on the ground that it is not to be performed within one year, we look to the intent of the parties.” Id. at 858. Similarly, in Hospital Corp. of America v. Associates In Adolescent Psychiatry, S.C., 605 So.2d 556 (Fla. 4th DCA 1992), the court explained:

In Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937) the court noted: “To make a parol contract void, it must be apparent that it was the understanding of the parties that it was not to be performed within a year from the time it was made.” Id. at 139, 181 So. 341. Yates establishes that the intent of the parties is determinative with regard to the question of whether the contract is to be performed within one year.

Id. at 557.

The courts have construed the statutory language found in section 725.01 “not to be performed within the space of one year” to refer to the express intent of the parties at the time they make the oral contract. See Lundstrom Realty Advisors, Inc., 856 So.2d at 1122 (“[T]o be within, and thus barred by, the provision in the statute of frauds concerning agreements ‘not to be performed within the space of one year from the making thereof,’ it must be shown that neither party’s performance was intended to be complete within one year.”); Hertz v. Salman, 718 So.2d 942, 942 (Fla. 3d DCA 1998) (“The record supports the trial court’s finding that the parties intended that the oral agreement was ‘not to be performed within the space of 1 year from the making thereof.’ ” (quoting section 725.01)); Fla. Pottery Stores of Panama City, Inc. v. Am. Nat’l Bank, 578 So.2d 801, 804 (Fla. 1st DCA 1991) (“To be within, and thus barred by, the provision in the statute of frauds concerning agreements ‘not to be performed within the space of one year from the making thereof,’ it must be shown that neither party’s performance was intended to be complete within one year.”); see also 27 Fla. Jur. 2d Statute of Frauds § 16 (2013) (“The statutory language ‘not to be performed within the space of one year from the making thereof has been construed as referring to the expressed intention and expectation of the parties at the time they contract, and subjection to the statute is not determined by the time circumstance attending the actual performance. Thus, the primary factor in determining whether an oral contract is to be performed within the one-year limitation is the intent of the parties at the time the agreement is made.” (footnotes omitted)).

Therefore, when an oral contract is for an indefinite period, the court must determine whether it was the intent of the parties that the contract be fully performed within one year. The district courts have consistently followed this rule. See LaRue v. Kalex Constr. & Dev., Inc., 97 So.3d 251, 255 (Fla. 3d DCA 2012) (“The intent of the parties is a determinative factor.”); Tydir v. Williams, 89 So.3d 1129, 1132 (Fla. 1st DCA 2012) (holding that the intent of the parties is determinative when deciding whether an oral contract is to be performed within the year limitation period of the statute of frauds); Aspsoft, Inc. v. WebClay, 983 So.2d 761, 769 (Fla. 5th DCA 2008) (“Here, neither the amended complaint nor any of the affidavits demonstrate an intent on the part of the parties that the computer consulting work would not have been completed within one year of the date of the contract. As such, the General Magistrate erred in recommending dismissal of count I based on a violation of Florida’s Statute of Frauds.”); Fla. Pottery Stores of Panama City, Inc., 578 So.2d at 804; Monogram Prods., Inc. v. Berkowitz, 392 So.2d 1353, 1355 (Fla. 2d DCA 1981) (“Where, as here, an oral contract is at issue, the Statute of Frauds does not bar enforcement of that contract if the parties intended for it to be performed within one year.”); First Realty Inv. Corp. v. Gallaher, 345 So.2d 1088, 1089 (Fla. 3d DCA 1977) (“The primary factor to be utilized in determining whether or not an oral contract is to be performed within the one year limitation of the statute is, of course, the intent of the parties.”).

The intent of the parties is a fact question that should be resolved by the finder of fact. See Lundstrom Realty Advisors, Inc., 856 So.2d at 1122 (“On remand, the finder of fact must determine, ‘from the object to be accomplished’ by the agreement and the ‘surrounding circumstances,’ whether the parties intended that the agreement was not to be performed within the space of one year.” (citing Yates and § 725.01, Fla. Stat.)); Collier v. Brooks, 632 So.2d 149, 157-58 (Fla. 1st DCA 1994) (“The parties have taken opposing positions regarding the time in which the agreement was to have been performed and summary judgment is precluded by this factual dispute, the resolution of which will determine whether section 725.01 bars Collier’s damages claim for breach of contract.” (footnotes omitted)); Fla. Pottery Stores of Panama City, Inc., 578 So.2d at 804 (“Since it appears that a factual issue existed concerning the parties’ intent to secure participation within one year, summary judgment based upon the statute of frauds should not have been granted.”); Venditti-Siravo, Inc. v. City of Hollywood, Fla., 418 So.2d 1251, 1253 (Fla. 4th DCA 1982) (“However, if by its terms it is capable of performance within one year, with the intention of the party (a fact issue) being the primary factor, it is not within the Statute.”); Monogram Prods., Inc., 392 So.2d at 1355 (“From the pleadings, affidavits and depositions, it appears' that a factual issue existed as to the intent of the parties as to whether coverage should be procured immediately ....”); see also City of W. Palm Beach v. Stevens, 408 So.2d 698, 699-700 (Fla. 1st DCA 1982) (“Although intent may be inferred from the surrounding circumstances such as the conduct of the parties, cf. Smart v. Brownlee, 195 So.2d 4 (Fla. 4th DCA 1967), it is a question for the trier of fact.”).

In resolving the issue of intent, consideration should be given to the object to be accomplished and the surrounding circumstances. See LynkUs Commc’ns, Inc. v. WebMD Corp., 965 So.2d 1161, 1165 (Fla. 2d DCA 2007) (“In the instant case, it is clear ‘from the object to be accomplished ... and the surrounding circumstances’ that the agreement alleged by LynkUs was intended to ‘extend for a longer period than a year.’ ” (quoting Yates)); see also Tydir, 89 So.3d at 1181 (“In LynkUs, the Second District Court of Appeal concluded it was ‘clear from the object to be accomplished ... and the surrounding circumstances’ that the agreement between the parties at issue was intended to extend for longer than one year. Id. (quoting Yates, 181 So. at 344).”); Collier, 632 So.2d at 158 (“On remand, the trial court must determine, ‘from the object to be accomplished’ by the agreement and the surrounding circumstances, whether ‘it clearly appears that the parties intended that it should extend for a longer period than a year.’ ” (quoting Yates, 181 So. at 344)).

The object to be accomplished was to win the lottery. The circumstances surrounding the alleged oral agreement was that it would last for as long as the parties remained romantically involved. The record reveals that the romantic relationship lasted many years after the date the agreement was allegedly made and that is a factor that can be considered in determining what the parties intended at the time the agreement was made. See Viscito v. Fred S. Carbon Co., Inc., 717 So.2d 586, 587 (Fla. 4th DCA 1998) (“The fact is undisputed that the parties’ oral agreement created a business relationship that lasted over an extended and indefinite period of time. Under the agreement, Carbon had the right to terminate the relationship at any time, and, in fact, did. As such, we believe the trial court correctly concluded that enforcement of the agreement was barred by the Statute of Frauds.”); Rafael J. Roca, P.A. v. Lytal & Reiter, Clark, Roca, Fountain & Williams, 856 So.2d 1, 5 (Fla. 4th DCA 2003) (“[T]he jury was free to look to the subsequent conduct of the parties to ascertain the parties’ intent and the agreement’s meaning.”); Smart v. Brownlee, 195 So.2d 4, 5 (Fla. 4th DCA 1967) (“ ‘Intention’, as the term is used in connection with contracting parties, is an operation of the mind, which, when not clearly expressed, may be demonstrated by conduct.”).

The majority applies the “possible” principle reasoning that it was possible that one of the parties would win the lottery and they would end their relationship within the year performance period. Appellant goes so far as to argue that it was possible that the agreement “could have been completed within 1 year based on the fact that either party could have died during the year....” In Hesston Corp. v. Roche, 599 So.2d 148, 153 (Fla. 5th DCA 1992), this court explained that even if it is possible to perform an alleged oral contract within one year, it must be shown that the parties intended and expected performance within the year. This court stated:

Similarly, in All Brand Importers, Inc. v. Tampa Crown Distributors, Inc., 864 F.2d 748, 750 (11th Cir.1989), a recent case applying Florida law, the Eleventh Circuit Court of Appeals applied the statute of frauds to an oral distributorship agreement of indefinite duration (“as long as Tampa Crown did a good job, its sales continued to grow ...”) that could have been terminated earlier than one year because the evidence showed the parties intended the contractual relationship would last more than one year. See Yates, 181 So. at 344 (where a contract is susceptible of performance within a year and the evidence shows that it was expected to have been performed within that time, it is not within the statute of frauds).

Id. (emphasis in original); see also LaRue, 97 So.3d at 255 (“Therefore, when an agreement is ‘susceptible of performance within a year, and the evidence shows that it was expected to have been performed within that time,’ it is not barred by the statute of frauds.” (quoting Yates, 181 So. at 344)). Hosp. Corp. of Am., 605 So.2d at 557.

Hence, if it was possible to perform the alleged oral agreement in one year, there is no evidence that the parties intended or expected that. To the contrary, it does not take an advanced degree in statistics or mathematics to know that the odds of winning the lottery are very slim and the odds of winning it within a year period are even slimmer. I think it stretches the “possible” principle too far to suggest that two people would enter into an agreement to split lottery winnings intending that they would both win and end their relationship either voluntarily or by death within the year period. At least death is an eventual certainty and the only question is when it will happen. Winning the lottery is an improbability and the only question is whether that will ever happen. I believe that applying the “possible” principle to this case offends the admonition enunciated in Yates and many other cases that “[t]he statute should be strictly construed to prevent the fraud it was designed to correct, and so long as it can be made to effectuate this purpose, courts should be reluctant to take cases from its protection.” Yates, 181 So. at 344.

The majority remands this case for trial so the jury can decide whether the parties entered into the alleged oral agreement. I think that in order to determine whether the alleged oral agreement was made, the jury will have to determine the terms and conditions of the alleged agreement, including what the parties intended the duration of the agreement to be. Unlike the majority, I believe those findings should determine whether the statute of frauds applies in- the instant case. Finally, I would note that even Appellant requests remand for trial so the jury can decide whether the agreement was entered into and whether the parties intended it to extend beyond the year period.

I, therefore, concur in the decision to reverse the judgment in favor of Poirier and to remand this case for a new trial. Regarding the part of the majority opinion that declares the statute of frauds inapplicable, I respectfully dissent because I believe that is an issue for the trier of fact to decide.

      . The remaining claims were waived by Browning prior to trial.

      . On remand, the unjust enrichment count of Browning’s complaint will also be resolved.


text:
    Harold Dale LINDON, Appellant, v. DALTON HOTEL CORPORATION and Roy B. Dalton, Jr., Appellees.
    No. 5D12-876.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.
    Rehearing Denied April 17, 2013.

      Bryan S. Gowdy and Jennifer Shoaf Richardson of Creed & Gowdy, P.A., Jacksonville, for Appellant.
    David B. King, Thomas A. Zehnder and Taylor F. Ford of King, Blackwell, Zehnder & Wermuth, P.A., Orlando, for Appel-lees.
   PER CURIAM.

In Lindon I, this Court reversed the trial court’s order granting a directed verdict and a judgment notwithstanding the verdict. We remanded the case to the trial court for a new trial on damages or a determination of Dalton’s motion for a new trial. On remand, a successor judge heard Dalton’s motion for new trial and, after reviewing the record, granted the motion requiring a new trial on all issues. It is from this order that Lindon appeals. Lin-don contends that there was sufficient evidence in the record for a jury to find in his favor on the merits of his claim. We agree and reverse.

The trial judge has broad discretion in granting a new trial. An appellate court gives great deference to the trial judge’s ruling on a new trial motion because the trial judge has heard all the evidence, had an opportunity to view the witnesses, and was able to observe their demeanor and form opinions as to their credibility. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959).

The same is not true when a successor judge is the one reviewing the record and making a determination as to a new trial. The successor judge is in no better position than an appellate court to make the decision. Wolkowsky v. Goodkind, 153 Fla. 267, 14 So.2d 398, 402 (1943); Nat’l Healthcorp, Ltd. Partnership v. Cascio, 725 So.2d 1190, 1193 (Fla. 2d DCA 1998). A successor judge in this case reviewed the record and made a determination that the verdict in favor of Lindon was against the manifest weight of the evidence and granted a new trial on all issues. However, our review of the record reveals that there was evidence in the record to support a verdict in favor of Lindon. A jury’s verdict is generally not against the manifest weight of the evidence if the record shows conflicting testimony from two or more witnesses. See Cascio, 725 So.2d at 1194 (citing Fitzgerald v. Molle-Teeters, 520 So.2d 645 (Fla. 2d DCA 1988)).

We find that the court abused its discretion in granting a new trial on all issues and remand this case for a trial on damages only as set forth in Lindon I.

REVERSED and REMANDED for NEW TRIAL with INSTRUCTIONS.

SAWAYA, TORPY and JACOBUS, JJ„ concur.

      . Lindon v. Dalton Hotel Corp., 49 So.3d 299 (Fla. 5th DCA 2010).


text:
    Juan C. ACOSTA and Paola Acosta, Appellants, v. BAC HOME LOANS SERVICING, LP. f/k/a etc., et al., Appellees.
    No. 5D12-2239.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2013.
    Rehearing Denied April 12, 2013.
    Juan C. Acosta, Miami, pro se.
    Robert R. Edwards of Law Offices of Marshall C. Watson, P.A., Ft. Lauderdale, for Appellee.
   PER CURIAM.

AFFIRMED. See Swartz v. CitiMortgage, Inc., 97 So.3d 267 (Fla. 5th DCA 2012).

GRIFFIN, COHEN and BERGER, JJ., concur.


text:
    Henry A. SWEENY, Appellant, v. Carla D. SWEENY, Appellee.
    Nos. 5D11-1248, 5D12-0468.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    Rehearing Denied April 11, 2013.

      Gregory E. Tucci, of The Law Offices of Gregory E. Tucci, Ocala, for Appellant.
    Shannon Mclin Carlyle and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   PER CURIAM.

In this consolidated dissolution appeal, Henry Sweeny (“former husband”) appeals from two orders — a final judgment of dissolution of marriage and a post-judgment award of fees and costs to Carla Sweeny (“former wife”). He raises nine issues on appeal — two related to the trial court’s award of $7,200 per month alimony, six related to the court’s award of approximately $1.4 million in equitable distribution to the former wife, and one final issue related to the court’s award of 60% of the former wife’s outstanding attorney’s fees, expert fees and other litigation costs. Having carefully considered each issue, we affirm the alimony award but reverse the requirement that the former husband secure the alimony award with life insurance. We also affirm the equitable distribution award in full as the former husband has failed to show a lack of competent, substantial evidence or an abuse of discretion with respect to any of the six issues relating to equitable distribution. Finally, we affirm the fees and costs award based on competent, substantial evidence of the former wife’s relative need, except for reimbursement of her CPA’s travel costs and reimbursement of her vocational expert’s travel costs and cancellation fees. We write further to address only those issues for which a reversal is warranted.

Section 61.08(3), Florida Statutes (2008), provides:

To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.

This court and other districts have held that such security is justified only if there is a demonstrated need to protect the alimony recipient, such as when he or she would be left in dire economic straits upon the death of the payor former spouse. See, e.g., Lapham v. Lapham, 778 So.2d 487, 489 (Fla. 5th DCA 2001). In Lap-ham, this court noted that cases upholding such security included those in which the recipient was disabled, elderly, or had such limited employment skills that the death of his or her former spouse would cause that person to rely on welfare or the generosity of others. Id. (citing Judge Altenbernd’s concurring opinion in Kearley v. Kearley, 745 So.2d 987, 990 (Fla. 2d DCA 1999)). In addition, “[t]he trial court must set forth specific findings of special circumstances, the payor spouse’s ability to afford the security, and whether the security exists only for arrearages, or alternatively, if the whole or a portion of the security is payable to the surviving family to minimize economic harm.” Mackoul v. Mackoul, 32 So.3d 741, 742 (Fla. 1st DCA 2010).

In this case, the trial court’s findings do not support the order requiring the former husband to secure his alimony payment obligation, and the evidence would not support the necessary findings in any event. With the large equitable distribution made to the former wife, and her ability to work to support herself, she was unable to demonstrate that the former husband’s premature death would leave her in dire economic circumstances. See also Ruberg v. Ruberg, 858 So.2d 1147, 1157 (Fla. 2d DCA 2003) (reversing security requirement in part because there was no basis in the record for concluding that former wife would face dire economic circumstances if former husband died). Accordingly, we strike the security requirement from the final judgment, and affirm as to all other issues relating to the final judgment.

With respect to the fees and costs that the former husband was required to pay, we agree that the trial court erred by including nine hours of travel time for the former wife’s CPA (at $285 per hour) and by including travel time for the former wife’s vocational expert, as well as a $1,700 cancellation fee caused by the former wife’s attorney. See In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 617 (Fla.2005); Bohner v. Bohner, 24 So.3d 622, 623 (Fla. 4th DCA 2009); Robbins v. McGrath, 955 So.2d 633, 635 (Fla. 1st DCA 2007); Chandler v. Chandler, 330 So.2d 190, 191 (Fla. 2d DCA 1976). On remand, we direct the trial court to enter an amended fee and cost order that deletes these costs.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

TORPY, LAWSON and BERGER, JJ., concur.