author: LAWSON, J.

text:
    Levi Scott JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2838.
    District Court of Appeal of Florida, Fifth District.
    June 5, 2009.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Levi Scott Jones was charged by information with one count of attempted first-degree premeditated murder with a firearm, which was reduced at trial (on the defense’s motion for judgment of acquittal) to attempted second-degree murder with a firearm. The jury found Jones guilty of the lesser-included offense of aggravated battery with a firearm. On appeal, Jones argues that the trial court fundamentally erred by instructing the jury using a portion of standard jury instruction 3.6(f), on the justifiable use of deadly force. We affirm.

The portion of the standard instruction to which Jones’ argument is addressed simply informed the jury that they should find Jones not guilty if they had “a reasonable doubt on the question of whether the defendant was justified in the use of force likely to cause death or great bodily harm.... ” Contrary to Jones’ argument, this statement in no way shifted the burden of proof to him. Cf. Fields v. State, 988 So.2d 1185 (Fla. 5th DCA 2008) (reversing conviction where the trial court erroneously instructed the jury that they could only acquit the defendant if the defense of self-defense was established beyond a reasonable doubt). Rather, the instruction in Jones’ case simply and accurately told the jury that they could not convict Jones if they had reasonable doubt as to whether he was acting in self-defense when he shot the purported victim. Additional instructions clearly explained to the jury that the burden of proof rested solely with the State, and that Jones was not required to prove anything.

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    T.R., Mother of J.T., J.T., R.F., P.T., etc., Appellant, v. DEPT. OF CHILDREN & FAMILIES, Appellee.
    No. 5D08-4229.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2009.
    Lori Loftis, Office of Regional Counsel, Altamonte Springs and Barbara A. Eagan, Eagan Appellate Law, Orlando, for Appellant.
    Karla Perkins, Dept, of Children & Families, Miami, for Appellee.
    William R. Ponall of Kirkconnel, Lindsey, Snure and Yates, P.A., Winter Park, for Guardian Ad Litem.
   PER CURIAM.

In light of the Appellee’s confession of error, this appeal is summarily reversed pursuant to Florida Rule of Appellate Procedure 9.315(b), and remanded to the trial court for further proceedings consistent with sections 39.522 and 39.621, Florida Statutes.

REVERSED and REMANDED.

PALMER, C.J., ORFINGER and LAWSON, J.J. concur.


text:
    Bruce William RABAN, Appellant, v. FEDERAL EXPRESS and Sedgwick CMS, Appellees.
    No. 1D08-4286.
    District Court of Appeal of Florida, First District.
    June 9, 2009.
    Rehearing Denied July 16, 2009.

      Jane-Robin Wender of Wender & Associates, P.A., Delray Beach, for Appellant.
    Margaret S. Hewitt of Jones, Hurley & Hand, P.A., Orlando, for Appellees.
   PER CURIAM.

Claimant appeals the Judge of Compensation Claims’ (JCC) final order of January 29, 2008, denying penalties and interest on a lump-sum settlement. For the reasons set forth below, we reverse.

Factual Background

Claimant, represented by counsel, entered into a washout settlement agreement (Agreement) which provides, in relevant part: “The parties agree to settle this case in its entirety for the sum of $200,000.00, inclusive of Attorney Fees and Costs”; “Claimant agrees to execute a general release and waiver”; “this agreement is contingent upon excess carrier approval”; “this agreement shall survive the execution or non execution of subsequent settlement documents.” The Agreement does not address penalties and interest for late payment.

Claimant moved for approval of attorney’s fees. On October 15, 2007, the JCC issued an order approving attorney’s fees (October 15, 2007, order), which provides in relevant part, “[t]he entire settlement shall be subject to penalties and interest if payment is not rendered timely.” The order indicates it was mailed to the parties on October 17, 2007. On October 18, 2007, the Employer/Carrier (E/C) issued a check with the notation “Attorney Fee — Order 10/15/07.”

On November 20, 2007, the E/C moved to vacate the October 15, 2007, order, arguing it was never forwarded to the E/C or its counsel, and Claimant had not yet executed a release “as required as a condition precedent to the settlement agreement.” Significantly, the E/C did not argue the parties had not negotiated penalties and interest. On the same day, Claimant executed a release, which the E/C received on December 5, 2007. On December 5, 2007, the JCC summarily denied the E/C’s motion to vacate. The E/C did not appeal the denial. The settlement checks were sent on December 4 and 5, 2007. Thereafter, Claimant filed a petition for benefits seeking penalties and interest for the late payment.

At the hearing on the petition, Claimant argued the October 15, 2007, order was final and binding as to Claimant’s entitlement to penalties and interest. Claimant presented his wife’s testimony that her attendance at the mediation conference led her to believe Claimant would be entitled to penalties and interest if the settlement proceeds were paid late. The E/C presented testimony from the adjuster that she did not receive notice of the October 15, 2007, order approving attorney’s fees until November 20, 2007, and argued Claimant’s release was a condition precedent, and the order should not have been entered until the release was executed.

By final order entered July 29, 2008, the JCC denied penalties and interest. The JCC found Claimant’s wife’s testimony on the parties’ intent to negotiate penalties and interest “does not overcome the Agreement,” Claimant’s execution of a release was a condition precedent to the Agreement, the payment was not late, and, despite the October 15, 2007, order, penalties and interest were prohibited by section 440.20(ll)(c), Florida Statutes.

On appeal, Claimant first argues the payment was late, penalties and interest were negotiated as part of the Agreement, the E/C did not argue the parties had not negotiated penalties and interest, and penalties and interest were awarded by the October 15, 2007, order. Second, Claimant argues his execution of a release was not a condition precedent. Third, Claimant argues the JCC’s finding the E/C had no notice of the October 15, 2007, order is not supported by competent, substantial evidence.

Effect of October 15, 2007, Order

A JCC’s order becomes final 30 days after mailing of such order to the parties, unless appealed. See Batista v. Publix Supermarkets, Inc., 993 So.2d 570, 573 (Fla. 1st DCA 2008). A JCC “may vacate or amend an order not yet final.” Fla. Admin. Code R. 60Q-6.122(5). “Once an unambiguous order becomes final, the JCC is without jurisdiction to amend, vacate, or republish it.” RTG Furniture Corp. v. Alford, 907 So.2d 561 (Fla. 1st DCA 2005).

Here, the October 15, 2007, order was not vacated within 30 days, and it is unambiguous on its face. Accordingly, it became final on November 16, 2007. Consequently, the ruling therein that penalties and interest were due on a late payment is binding. Under RTG, the JCC lacked jurisdiction to revisit that ruling after the date the order became final, because the E/C’s motion to vacate was not filed until November 20, 2007. By the same reasoning, the JCC lacked jurisdiction to revisit that ruling in the instant final order on appeal.

Even if the JCC had jurisdiction over the motion to vacate, res judicata would bar him from ruling on the same claims in the order on appeal. See Nelson & Co. v. Holtzclaw, 566 So.2d 307 (Fla. 1st DCA 1990) (holding workers’ compensation orders are subject to the same principles of res judicata as judgments of courts). The E/C raised two claims in the motion to vacate: (1) it lacked notice of the October 15, 2007, order; (2) the condition precedent of the release had not been met. The JCC denied the motion on its merits. The E/C did not appeal the ruling. Accordingly, to the extent the order on appeal contains rulings that the E/C lacked notice of the October 15, 2007, order and that the release was a condition precedent, these rulings are error, and, in any event, do not affect the finality or applicability of the October 15, 2007, order.

The JCC rejected the October 15, 2007, order as a basis for awarding penalties and interest, reasoning, correctly, that section 440.20(1l)(c), Florida Statutes, precludes a statutory basis for an award of penalties and interest on lump-sum settlements such as Claimant’s. However, the October 15, 2007, order does not base its ruling on the statute. Claimants represented by counsel are free to negotiate, as part of a settlement agreement, for payment of an increased benefit should the payment of settlement proceeds be late. Lucas v. Englewood Cmty. Hosp., 963 So.2d 894 (Fla. 1st DCA 2007). The October 15, 2007, order expressly providing for penalties and interest is itself evidence suggesting Claimant did so here.

Timeliness Of Payment

“Payment of the lump-sum settlement amount must be made within 14 days after the date the judge of compensation claims mails the order approving the attorney’s fees.” § 440.20(ll)(e), Fla. Stat. (2007).

Here, the October 15, 2007, order approving attorney’s fees was mailed October 17, 2007, and payment was not made until December 4 and 5, 2007. Accordingly, the payment was late. This delay in payment exceeds the 14 days dictated by section 440.20(ll)(c), Florida Statutes. As discussed below, the release was not a condition precedent; therefore, the delay in the release did not affect the finality of the order approving the attorney’s fee.

Weight of wife’s testimony

It is the JCC’s responsibility to evaluate and weigh evidence. See Wintz v. Goodwill, 898 So.2d 1089, 1093 (Fla. 1st DCA 2005). A JCC’s rulings on weight and credibility are reviewed for abuse of discretion. Frederick v. United Airlines, 688 So.2d 412, 413 (Fla. 1st DCA 1997).

Here, the JCC was entitled to weigh the testimony of Claimant’s wife on the parties’ intent to negotiate penalties and interest against the Agreement. The JCC’s finding that her testimony did not overcome the written agreement was not an abuse of discretion. However, to the extent the JCC found the parties did not negotiate penalties and interest, such a finding is not supported by competent, substantial evidence, in light of the October 15, 2007, order ruling penalties and interest would be due if payment of the settlement proceeds was late.

Condition Precedent

Review of a JCC’s interpretation of a settlement agreement is de novo. Klatt v. Wal-Mart Stores, Inc., 913 So.2d 79, 80 (Fla. 1st DCA 2005). “Provisions of a contract will only be considered conditions precedent or subsequent where the express wording of the disputed provision conditions formation of a contract and or performance of the contract on the completion of the conditions.” Gunderson v. Sch. Dist. of Hillsborough County, 937 So.2d 777, 779 (Fla. 1st DCA 2006) (emphasis added). Conditions precedent are not favored. Id. (citing In re Estate of Boyar, 592 So.2d 341, 343 (Fla. 4th DCA 1992)).

Here, the Agreement provided that Claimant agreed to execute a release, but did not expressly condition formation of the Agreement on the execution of the release. In contrast, the parties used express language to make excess carrier approval a condition precedent, by providing, “this agreement is contingent upon excess carrier approval”; they did not use the same language with respect to the release. Therefore, the JCC erred in ruling that execution of the release was a condition precedent, and that payment became due upon execution of the release.

Notice

A certificate of service creates a rebutta-ble presumption that notice was received. See generally Abrams v. Paul, 453 So.2d 826 (Fla. 1st DCA 1984). Where the employer is not a self-insurer, notice to the employer is notice to the carrier. § 440.41, Fla. Stat. (2005).

Here, the JCC found that the E/C’s adjuster did not receive the October 15, 2007, order. Significantly, the JCC did not find that the E/C as a whole lacked notice of the October 15, 2007, order. Had the JCC made such a finding, it would not be supported by competent, substantial evidence. Undisputed evidence in the record indicates the E/C had notice of the order. The certificate of service shows the order was mailed, and the E/C did not present evidence that its counsel or the Employer did not receive it. Notably, the E/C’s check of October 18, 2007, disbursed for “Attorney Fee — Order 10/15/07,” indicates the E/C had timely, adequate notice.

Additionally, to the extent the JCC believed he had jurisdiction to rule on the motion to vacate, and the E/C’s argument of lack of notice was raised therein, the JCC rejected that argument when he denied the motion on its merits. Consequently, res judicata would bar any finding in the order on appeal that the E/C lacked notice of the October 15, 2007, order.

Conclusion

For the foregoing reasons, we REVERSE the JCC’s order and REMAND for proceedings consistent with this opinion.

HAWKES, C.J., ALLEN and CLARK, JJ., concur.

      . The JCC's decision to deny, rather than dismiss, the motion indicates he attempted to rule on its merits.


author: VAN NORTWICK, J.

text:
    Robert Milton FRIER, Jr., Appellant, v. Linda Richardson FRIER, Appellee.
    No. 1D09-1141.
    District Court of Appeal of Florida, First District.
    June 9, 2009.

      Franz F. Springmann, Sr., Gaylon & Associates, Sevierville, for Appellant.
    M. Blair Payne, Darby, Peele, Bowdoin & Payne, Lake City, for Appellee.
   VAN NORTWICK, J.

Robert Milton Frier, Jr., seeks review of a nonfinal “Order on Husband’s Second Motion to Dismiss.” Because the order on appeal is not an appealable nonfinal order, we dismiss this appeal for lack of jurisdiction.

The order on appeal denied a motion to dismiss that had challenged the trial court’s jurisdiction over the appellant, who had filed a similar action in another state. In this order, the trial court concluded “that it has jurisdiction of at least certain issues in the pending action.” While recognizing that its jurisdiction may be limited due to the case filed by the appellant, the trial court granted leave to counsel for both parties to “present argument and law as to issues either thinks may not fall within this court’s jurisdiction.” The order referred only to the trial court’s subject matter jurisdiction and did not address whether the trial court had personal jurisdiction over the appellant.

The appellant asserts that the order on appeal is appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)© because it determined jurisdiction of the person. Specifically, the appellant argues that the order denied his motion to dismiss, which had raised only the trial court’s lack of personal jurisdiction over him. Therefore, according to the appellant, the order necessarily determined personal jurisdiction.

The law is clear that “the term jurisdiction of the person” in rule 9.130(a)(3)(C)(i) “refers to service of process or to the applicability of the long arm statute to non-residents.” Warren v. Southeastern Leisure Sys., Inc., 522 So.2d 979, 980 (Fla. 1st DCA 1988). “Therefore, only those interlocutory orders that determine issues involving service of process or applicability of the long arm statute are appealable under this section of Florida Rule of Appellate Procedure 9.130.” Fisher v. Int’l Longshoremen’s Ass’n, 827 So.2d 1096, 1097 (Fla. 1st DCA 2002) (en banc). To fall within the scope of the rule, however, an order must actually make a determination as to personal jurisdiction. See Bill Holt Sales & Leasing, Inc. v. Cousins, 904 So.2d 502 (Fla. 1st DCA 2005) (dismissing appeal because the record failed to show that the trial court made a decision regarding personal jurisdiction even though lack of personal jurisdiction had been raised in the motion for summary judgment that was denied by the order on appeal). Therefore, where a motion challenging the trial court’s in person-am jurisdiction is denied without necessarily making a determination as to whether the court has jurisdiction over the person, the order is not appealable as an order that determined jurisdiction of the person. See id.

Similar to the order on appeal in Bill Holt Sales, the order before us did not expressly or necessarily determine personal jurisdiction. Rather, the order merely determined that the trial court had jurisdiction “of at least certain issues in the pending action.” One of the issues raised in the complaint was custody of the parties’ minor children. Under the Uniform Child Custody Jurisdiction and Enforcement Act, sections 61.501 through 61.542, Florida Statutes (2008), a trial court has jurisdiction, under certain specified conditions, to make a child custody determination without also having personal jurisdiction over a party. See § 61.514(3), Fla. Stat. (2008); Brulte v. Brulte, 967 So.2d 1087 (Fla. 1st DCA 2007). Therefore, the trial court’s determination that it had jurisdiction over some of the issues in the action did not necessarily determine personal jurisdiction over the appellant. Consequently, this court does not possess appellate jurisdiction under rule 9.130(a)(3)(C)(i).

DISMISSED.

HAWKES, C.J., and BROWNING, J., concur.


author: FULMER, Judge.

text:
    James Richard COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1981.
    District Court of Appeal of Florida, Second District.
    June 10, 2009.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

James Richard Cooper appeals from his convictions for two counts of lewd molestation and four counts of sexual battery by a person in familial authority. Of the three issues he raises on appeal, we reject Issues II and III without discussion. As to Issue I, although we agree with Cooper that the trial court erred in allowing the State to present evidence of multiple sexual acts that were not charged in the information, we conclude that the error was harmless. We therefore affirm Cooper’s convictions and sentences.

The information charged six counts, each describing a different sexual act committed against a single victim. Cooper argues that the trial court erred in allowing the State to introduce testimony of numerous other uncharged incidents of each type of act despite the lack of notice by the State required by section 90.404(2)(c)(l), Florida Statutes (2007). He asserts that the information did not put him on notice that he would be tried for numerous incidents of each sexual act. He contrasts the information in this case with the information filed in State v. Generazio, 691 So.2d 609, 610 (Fla. 4th DCA 1997), where ongoing sexual abuse was alleged to have occurred “on one or more occasions.”

The State responds first that the issue is not preserved. We reject this argument. The court granted the defense counsel a continuing objection when this issue was discussed during opening statements. The State advised the court that it preferred a continuing objection, and the defense counsel sought clarification as to the scope of the continuing objection to ensure that the objection would carry through to the witnesses and not be confined to the opening statements. Thus, the record shows that the issue was preserved for review.

On the merits, the State notes that the information alleges that the abuse occurred over a period of years, and it contends that it is “highly unlikely that Cooper, or any reasonable person, would believe that the state was alleging Cooper committed one sex act for each count that took three years to commit.” The State explains that it is not suggesting that the evidence of uncharged acts is “inextricably intertwined.” Rather, it asserts that “the Information encompasses multiple acts over a period of time that are being charged as one representative offense because the State is unable to specify the exact dates the multiple offenses occurred.” And, it contends that the law permits the State to charge sexual offenses against children in one representative count. Finally, the State argues that any error in this case is harmless.

This case is similar to Wightman v. State, 982 So.2d 74 (Fla. 2d DCA 2008), review granted, No. SC08-1240 (Fla. Nov. 18, 2008), where we reversed for a new trial because the State did not justify the presentation of evidence of ongoing abuse. Wightman had been charged with two sexual acts, and the victim was permitted to testify to repeated molestation. Id. at 75-76.

Here, as in Wightman, the information does not put the defendant on notice that he will be tried based on multiple instances of each type of sexual act. And, as in Wightman, no pretrial notice was filed under section 90.404(2)(c). In other words, the State could have justified the evidence offered in this case if it had either alleged in the information ongoing sexual acts that occurred “on one or more occasions,” see Generazio, 691 So.2d at 611, or given Cooper notice ten days before trial of the State’s intent to offer evidence of the other crimes, wrongs, or acts of child molestation, see § 90.404(2)(b), (c). But, as in Wightman, the State did neither of these things.

As to whether the error of allowing the State to present evidence of extensive abuse did or did not contribute to the verdict, we note that if the case had been presented as six distinct acts as charged, the State’s presentation of its case would have necessarily been different. On the other hand, the jury heard a taped statement where Cooper admitted engaging in sexual acts with the victim. Because the taped statement is strong evidence of Cooper’s guilt, we conclude that the error of allowing the State to present evidence of multiple sexual acts did not affect the verdict and was harmless in this case. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Affirmed.

VILLANTI, J., and CASE, JAMES R., Associate Senior Judge, Concur.

      . Section 90.404(2)(c)(l) provides:
      When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a) or paragraph (b), no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant’s counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.


author: WARNER, J.

text:
    Rebecca GEARY, as Personal Representative of the Estate of Janice White, Appellant, v. BUTZEL LONG, P.C., Jennifer Bova, Richard Geary, David Geary, and Peter Geary, Appellees.
    No. 4D08-1622.
    District Court of Appeal of Florida, Fourth District.
    June 10, 2009.
    Rehearing Denied July 29, 2009.

      Phillip T. Crenshaw of The Crenshaw Law Firm, P.A., and Charles W. Mus-grove, West Palm Beach, for appellant.
    Christine M. Robbins of Butzel Long, P.C., Boca Raton, and Christopher B. Hopkins of Butzel Long, P.C., Palm Beach, for appellee Butzel Long, P.C.
    Amy L. Cosentino, West Palm Beach, for appellees Jennifer Bova, David Geary, Peter Geary and Richard Geary.
   WARNER, J.

The personal representative of the estate of Janice White appeals a trial court order making her personally responsible for the estate’s attorneys’ fees incurred in litigation with the estate’s prior attorney, as well as ordering her to return fees that she paid to herself and the estate’s current attorney. To the extent that the trial court found that the litigation resulting in the fees was frivolous, we affirm. However, the trial court did not make that finding as to part of the litigation, and to the extent that it made the personal representative responsible for these fees, we reverse.

Janice White died in 1999, and Rebecca Geary, appellant, was appointed as personal representative, pursuant to the decedent’s will. The beneficiaries to the estate include appellees Jennifer Bova, Richard Geary, David Geary, and Peter Geary. The personal representative employed a succession of attorneys in administering the estate. Appellee Butzel Long, P.C., was retained in November 2002 and continued as counsel until 2004. It submitted its last bill in the amount of $4,127 on May 24, 2004.

Geary retained the Crenshaw Law Firm which filed an objection to the fees and sought to have Butzel Long disgorge fees previously paid. The resulting litigation over the fees lasted until November 18, 2005, when the trial court allowed Butzel Long to withdraw as counsel for the estate and awarded it the $4,127 due, finding no grounds for disgorgement of fees previously paid.

Because the estate did not pay immediately, Butzel Long filed a petition for removal of Geary as personal representative and for the appointment of an administrator who would pay its court awarded fees. It also filed a petition for payment of fees of $19,000 and costs of $4,000 it incurred during the eighteen month fee litigation. Although the estate thereafter paid the original $4,127, litigation over the fees on fees extended for two years.

During the pendency of the fees on fees litigation, appellant paid herself $18,600 as a personal representative’s commission and paid her attorney, Crenshaw, over $43,000 in fees for his representation in the litigation from the estate account. The remaining beneficiaries filed claims demanding that the personal representative disgorge the fees paid to herself and to Crenshaw. They also demanded that any amounts paid to Butzel Long should be the personal responsibility of Geary and paid from her share of the estate.

In 2007, the trial court entered an order awarding $49,000 in fees and costs to But-zel Long. However, litigation continued on the beneficiaries’ claims as well as But-zel Long’s petition to remove the personal representative so that it could receive payment of its claims.

The court conducted lengthy proceedings and entered judgment on the remaining claims. It noted that at the time But-zel Long submitted its last bill in 2004, the estate had assets and each beneficiary would have received an additional distribution. After four additional years of litigation the estate was insolvent and Butzel Long was still owed fees.

As to the personal representative’s payment of her own commission and fees to her attorney during the fees litigation, the court concluded that the personal representative should have obtained prior court permission before paying those fees where Butzel Long was a substantial creditor of the estate. The personal representative was not acting in the best interests of the estate, including creditors, where she paid her own fees and attorney’s fees when the estate did not have enough money to pay both the creditor’s claims and their own fees.

Moreover, the trial court found that incurring the fees was not reasonable. It stated:

The Personal Representative and her attorney may have been justified in litigating the $4,127 fee in the first instance. But, certainly once they lost on that issue and the attempt to surcharge Butzel Long for alleged overbilling, they reasonably should have realized that the jig was up and that they would have to pay fees on fees. The litigation resulting after Butzel Long’s initial plea for fees on fees was neither necessary nor reasonable and resulted in a substantial detriment to the Estate by prolonging the litigation, increasing the fees on fees ultimately awarded from $19,000 to $49,000 and by delaying the administration of the Estate.

(emphasis supplied). Based upon its findings, the trial court ordered Geary and Crenshaw to repay to the estate the sums that they had been paid during the fees on fees litigation. The court also made Geary personally responsible for payment of Crenshaw’s fees from 2004 through the date of the order to the extent that they were incurred in connection with the But-zel Long litigation, and the court also made Geary responsible from her portion of the estate for Butzel Long’s fees associated with the fees on fees litigation. Finally, it awarded an additional $28,000 in fees and granted a judgment against the estate, Geary’s portion of the estate, and Geary, individually. It denied Geary’s request for additional fees for extraordinary services. From that order Geary appeals.

Geary argues that the trial court erred in ordering her, as a personal representative of the estate, to be personally responsible for attorneys’ fees and costs incurred in challenging Butzel Long’s fees, in assessing Butzel Long’s fees and costs against her, and in ordering her and her attorney to refund fees they received during the fees on fees litigation. She claims that the court had to find bad faith on her part before it could take these steps. We disagree that only a showing of bad faith permits an individual assessment of fees. Engaging in essentially frivolous litigation would justify a court in assessing fees against the personal representative.

Butzel Long, as attorney for the personal representative, claimed fees pursuant to sections 733.6171 and 733.6175, Florida Statutes. See Bitterman v. Bitterman, 685 So.2d 861 (Fla. 4th DCA 1996), rev’d in part on other grounds, 714 So.2d 356 (Fla.1998). Pursuant to section 733.6175(2), Florida Statutes:

Court proceedings to determine reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administration process, and the costs, including attorneys’ fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the estate unless the court finds the requested compensation to be substantially unreasonable. The court shall direct from which part of the estate the compensation shall be paid.

In In re Estate of Lane, 562 So.2d 352 (Fla. 4th DCA 1990), we examined the propriety of a probate court’s order assessing attorney’s fees from a will contest proportionally against the specific beneficiaries as well as the residuary estate. We noted that section 733.106(4), Florida Statutes, permits the court to direct from what part of an estate a fee assessment shall be paid (just as section 733.6175(2) does). However, we explained:

This section does not give the trial court unbridled discretion to award fees from any part of the estate. Before the trial court may assesses fees against a beneficiary’s share of an estate there must be a finding of bad faith or -wrongdoing by the beneficiary or other circumstances which would warrant such an assessment.

Id. at 353. Despite our use of “bad faith and wrongdoing,” we relied on and agreed with Cohen v. Schwartz, 538 So.2d 922 (Fla. 3d DCA 1989), in which the court suggested that in trying to close a prolonged estate, the trial court could assess attorney’s fees against a beneficiary’s portion of the estate for frivolous litigation consistent with section 733.106(4). We agree that if the litigation pursued is frivolous, then the court would have the authority under that section to assess fees against a specific beneficiary’s portion of the estate.

The trial court found that the fees incurred in pursuing the fees on fees litigation constituted essentially frivolous litigation and were unreasonably incurred. Therefore, it acted within its discretion to apportion the fees for that litigation to Geary. However, the court did not make a finding that the personal representative engaged in frivolous litigation in its initial defense to Butzel Long’s motion for fees and seeking disgorgement of fees paid. To the contrary, it noted that that defense may have been justified. It found only that the fees on fees litigation, which pushed the fees and costs awarded to But-zel Long from $19,000 to $49,000 (and subsequently even more), was unreasonable and unnecessary. Therefore, while the court could properly assess the fees on fees litigation against Geary, it should not have imposed the initial $19,000 for the fees litigation on Geary’s share of the estate without a finding of wrongful conduct, bad faith, or frivolousness.

The court also required Geary to be personally responsible for fees paid to Crenshaw from May 2004 through the date of the judgment. Because the court did not find that the defense against Butzel Long’s initial request for fees was unreasonable, the court also should not have required Geary to be solely responsible for attorney Crenshaw’s fees covering the litigation up to the initial judgment in November 2005. Our ruling, however, does not determine that the amount of those fees was reasonable. That must be left for further ruling by the trial court.

In all other respects we affirm the trial court’s judgment. We remand for further proceedings consistent with this opinion.

STEVENSON and DAMOORGIAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Andrew MESSINA, Appellee.
    No. 4D08-762.
    District Court of Appeal of Florida, Fourth District.
    June 10, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

The state appeals the sentence imposed upon Andrew Messina by the trial court. Messina pleaded guilty to possession of marijuana with intent to sell pursuant to section 893.13(l)(a)2., Florida Statutes (2007), a third degree felony. Over the state’s objection, the trial court sentenced Messina to time served and withheld adjudication. The state argues the trial court imposed an illegal sentence. We agree and reverse.

In State v. Tribble, 984 So.2d 639 (Fla. 4th DCA 2008), after the defendant pleaded guilty to possession of cocaine, the trial court imposed court costs and withheld adjudication. The state objected to the sentence as illegal. The state appealed and this court held:

The result in this case is controlled by statute. Section 921.187(l)(a)3., Florida Statutes (2006), provides that the court may “[pjlace the offender on probation with or without an adjudication of guilt pursuant to s. 948.01” if a prison sentence is not imposed. Section 948.01, Florida Statutes (2006), provides that “the court ... may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt; and, in either case, it shall stay and withhold the imposition of sentence upon such defendant and shall place the defendant upon probation.” The Rules of Criminal Procedure confirm the limited options available to the trial court. “[Wjhere allowed by law, the judge may withhold an adjudication of guilt if the judge places the defendant on probation.” Fla. R.Crim. P. 3.670.

Id. at 640 (footnote omitted). Because Messina’s sentence did not include probation, it is not authorized by the law. We, accordingly, reverse and remand for resen-tencing.

Additionally, in its brief, the state also asserts that in order for Messina to have adjudication withheld, he must be sentenced under section 948.034(1), Florida Statutes (2007), which requires, among other things, that the offender reside at a community residential drug punishment center for ninety days. That section is applicable to offenders who violated section 893.13(l)(a)l., Florida Statutes (2007). Appellant violated section 893.13(l)(a)2., the third degree felony, which is not governed by section 948.034(1). Section 948.034(2)(a), Florida Statutes (2007), is the subsection applicable to Messina’s offense.

Reversed and Remanded.

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Brian KABLITZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3040.
    District Court of Appeal of Florida, Fourth District.
    June 10, 2009.
    Brian Kablitz, South Bay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

In defendant’s trial for grand theft and dealing in stolen property, his trial counsel failed to request a specific jury instruction to the effect that he could not be guilty of both charges, that the jury would have to choose only one of them if any at all. The jury convicted him of both the lesser included offense of petit theft and dealing in stolen property. On his direct appeal, his lawyer failed to raise the issue as fundamental error, and his convictions were affirmed. We now have his petition for a new appeal based on ineffective assistance of appellate counsel. We grant the petition.

In Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007), we held that this same omission constitutes fundamental error: 966 So.2d at 496. It necessarily follows that if he was denied the same “fundamental” linchpin on his direct appeal, his appellate counsel was indubitably constitutionally ineffective. See Barber v. State, 918 So.2d 1013 (Fla. 2d DCA 2006) (appellate counsel was ineffective in not raising issue that convictions for both theft and dealing in stolen property were prohibited by § 812.025).

“Because the trial court did not instruct the jury on its obligation ... to ‘determine whether the defendant is a common thief who steals property ... or whether the defendant traffics ... in stolen property,’ the court committed fundamental error. That determination by the jury is the ‘linchpin’ element that must be decided by the trier of fact when both theft and dealing in stolen property are charged.” [c.o.]

Petition granted.

FARMER, STEVENSON and LEVINE, JJ., concur.

      . See § 812.025, Fla. Stal. (2008) (although defendant may be charged in single information with both theft and dealing in stolen property, trier of fact may return a guilty verdict on one or the other, but not both, of the counts); Hall v. State, 826 So.2d 268, 271 (Fla.2002) (trier of fact may find defendant guilty of one or the other offense but not both). In the charge conference, defense counsel agreed with the State's "understanding" that the jury could convict of both and the court could adjudicate him guilty of the greater.

      . See Fla. R. App. P. 9.141(c).


author: LAGOA, J.

text:
    TROPICAL GLASS & CONSTRUCTION CO., Appellant, v. Mark GITLIN, CPA, and Ocariz, Gitlin & Zomerfeld, LLP, Appellees.
    No. 3D07-2312.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.
    Anania, Bandklayder, Blackwell, Baum-garten, Torricella & Stein and Douglas H. Stein, Miami, for appellant.
    Jose I. Rojas and Teresa Gail Sosby, Miami, for appellees.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   LAGOA, J.

Tropical Glass & Construction Co. (“Tropical”) appeals from the entry of a final summary judgment entered in favor of the defendants, Mark Gitlin, (“Gitlin”), and Ocariz, Gitlin, & Zomerfeld, LLP, (“OGZ”) (collectively “Defendants”). Because we find that a genuine issue of material fact exists as to whether Defendants negligently performed monthly bank reconciliations, we reverse the trial court’s entry of final summary judgment in favor of Defendants.

I. FACTUAL AND PROCEDURAL HISTORY

From January 2000 through January 2005, Tropical retained Gitlin, a certified public accountant, and OGZ, a certified public accounting firm, to perform accounting services. Two engagement agreements executed by the parties are at issue in this appeal. The first engagement agreement, dated October 10, 2002, contains the following provisions:

Our engagement will be designed to perform the following services:
1. Prepare the Federal Income Tax Return (Form 1120), the Florida Corporate Income/Franchise and Emergency Excise Tax Return (Form F-1120).
Our work in connection with the preparation of your income tax returns does not include procedures designed to discover defalcations or other irregularities, should any exist.

Our fee for these services will be based upon the amount of time required at standard billing rates plus out-of-pocket expenses.

The second engagement agreement, dated September 12, 2003, provides as follows:

Our engagement will be designed to perform the following services:
1. Prepare the Florida Intangible Personal Property Tax Return (Form DR-6010.
Our work in connection with the preparation of your income tax returns does not included [sic] procedures designed to discover defalcations or other irregularities, should any exist.
Our engagement cannot be relied upon to disclose errors, fraud, or illegal acts that may exist. For these reasons, you, and any successors, employees or assigns, understand, acknowledge and agree that neither our firm nor any of its employees or agents shall be liable for any act(s), omission(s), negligence (including gross negligence), breach, mistake in judgment, claims or causes of actions, whether legal or equitable, injury or damages of any kind whatsoever, arising from our engagement and that this release will survive the termination of the engagement with you. However, we will inform you of any material errors that come to our attention and any fraud or illegal acts that come to our attention, unless they are clearly inconsequential.
Our fee for these services will be based upon the amount of time required at standard billing rates plus out-of-pocket expenses....

On April 21, 2006, Tropical filed a complaint against Gitlin and OGZ, alleging that the Defendants had negligently performed monthly bank reconciliations and, as a result, the Defendants had failed to detect that Tropical’s bookkeeper had misappropriated Tropical’s funds for his own personal gain. In response, Defendants filed an answer and affirmative defenses, as well as a counterclaim for Tropical’s failure to pay accounting fees and a third party complaint.

Defendants filed a motion for summary judgment arguing that the monthly bank reconciliations were performed as a part of, and incidental to, the final preparation of Tropical’s annual tax returns. Additionally, Defendants asserted that, in accordance with the terms of the two engagement agreements, they did not have a duty to detect fraud by Tropical’s employees and, therefore, Tropical’s claim was contractually waived or released.

In response, Tropical argued that the monthly bank reconciliations were not within the scope of the services contracted for in the engagement agreements — the preparation of annual tax returns — and, therefore, the engagement letters could not relieve Defendants of liability for their alleged negligence. In support of its argument, Tropical relied upon Gitlin’s deposition testimony that performing monthly bank reconciliations was not necessary to prepare tax returns, as well as affidavits from two accounting experts to the same effect. After a hearing, the trial court granted summary judgment in favor of Defendants. This appeal followed.

II. STANDARD OF REVIEW

Summary judgment is proper if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The standard of review for summary judgment is de novo. Id. In reviewing a summary judgment, this Court “must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.” Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001). Moreover, courts must exercise great caution in granting summary judgment in negligence and malpractice actions. See Smith v. Grove Apartments, 976 So.2d 582, 585 (Fla. 3d DCA 2007). Additionally, a trial court’s decision construing a contract presents an issue of law that is subject to the de novo standard of review. Fla. Power Corp. v. City of Casselberry, 793 So.2d 1174, 1178 (Fla. 5th DCA 2001).

III. ANALYSIS

On appeal, Tropical raises two issues. First, Tropical argues that the plain language of the two engagement letters at issue does not bar its claims. Second, Tropical argues that conflicting evidence exists as to whether the monthly bank reconciliations were part of the tax return work and therefore summary judgment was inappropriate. The monthly bank reconciliations are the only accounting services Tropical alleges Defendants performed negligently.

With regard to the first issue, Tropical is correct that neither of the two engagement letters contains a specific waiver or release for the preparation of monthly bank reconciliations. However, Defendants presented evidence below that the preparation of monthly bank reconciliations was incidental to the preparation of annual tax returns, and therefore, the exculpatory language in the engagement letters applied. We, therefore, cannot conclude at this juncture that Tropical’s claims may not be potentially barred if the fact-finder determines that Defendants are correct in their assertion that the preparation of monthly bank reconciliations was not separate from, but rather incidental to, the preparation of the annual tax returns.

Notwithstanding this, we agree with Tropical as to the second issue raised, and conclude that the trial court erred in granting Defendants final summary judgment. Based upon our review of the record, conflicting evidence exists as to whether the preparation of monthly bank reconciliations was separate and distinct from the preparation of annual tax returns. On the one hand, Defendants assert that it was performing the monthly bank reconciliations in order to prepare the annual tax returns. On the other hand, Tropical submitted the affidavits of two experts to the contrary, as well as Gitlin’s own testimony that performing monthly bank reconciliations was not necessary in order to prepare tax returns. This conflicting testimony alone creates a genuine issue of material fact precluding the entry of summary judgment.

Conflicting evidence also exists regarding whether Defendants’ bills to Tropical confirm or rebut Defendants’ position. Defendants contend that the accounting services provided to Tropical consisted only of preparation of federal and Florida tax returns, and “incidental” accounting services. According to Defendants, these incidental services included the preparation of yearly financial statements and/or trial balances, periodic bank reconciliations, and interim sales tax returns that were necessary for the preparation of the annual tax returns.

Gitlin testified, however, that in addition to and separate from his hourly fees for preparing Tropical’s tax returns, Tropical paid him $350 for monthly accounting services. Gitlin testified that these separate services included the preparation of monthly sales tax and monthly bank reconciliations on Tropical’s operating account.

Defendants contend that the $350 monthly amount billed to Tropical constituted a monthly retainer, and that Tropical received a credit for these monthly fees in its year-end bill for the preparation of its annual tax returns. However, Tropical’s 2004 year-end bill shows no such credit, and furthermore, Gitlin denied knowledge of any written agreement between the parties concerning these monthly accounting services.

Accordingly, because our review of the record reveals that genuine issues of material fact exist, entry of the summary judgment below was improper and requires reversal.

Reversed and remanded.

      . We do not address the contents of the two other unexecuted engagement letters that were not pled in Defendants’ first and second affirmative defenses, and, therefore, did not form the basis of Defendants’ motion for summary judgment.

      . It is undisputed that Tropical’s bookkeeper diverted $540,000.00 for his own personal gain without Tropical’s knowledge or consent.


author: CORTIÑAS, J.

text:
    JETBROADBAND WV, LLC and Jetbroadband VA, LLC, Appellants, v. MASTEC NORTH AMERICA, INC., Appellee.
    No. 3D08-3057.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.

      Shutts & Bowen and Steven M. Ebner, Miami, for appellants.
    Vezina, Lawrence & Piscitelli and Daniel R. Vega, Coral Gables; Carlton Fields and Matthew J. Conigliaro and Stephanie C. Zimmerman, St. Petersburg, for appellee.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   CORTIÑAS, J.

We review an issue of first impression for Florida courts, that is, whether, pursuant to sections 685.101-.102, Florida Statutes (1989), parties to a commercial contract can, by agreement alone, confer personal jurisdiction on a Florida court. We hold that they can.

This lawsuit arises out of a multi-million dollar contract, whereby appellee, MasTec North America, Inc. (“MasTec”) agreed to perform services on certain cable systems in Virginia owned by appellants, Jetbroad-band WV, LLC and Jetbroadband VA, LLC, (collectively “Jet”). On appeal, Jet argues that the trial court erred in denying its motion to dismiss for lack of personal jurisdiction.

The contract included the following consent to jurisdiction and forum selection clause (“Jurisdiction Clause”):

This agreement is governed by the laws of the State of Florida, without regard to its conflict of laws rules. Contractor and Subcontractor each hereby irrevocably agree and submit to the exclusive jurisdiction of the Circuit Court, Eleventh Judicial Circuit, Miami-Dade County, Florida in the event any action or proceeding is commenced by either party arising from, related to or in connection with this Agreement.

Based on the Jurisdiction Clause, Mas-Tec, a Florida corporation, brought suit in Miami-Dade Circuit Court, alleging in paragraph five of its complaint that:

Venue is proper in Miami-Dade County because the Defendants expressly and irrevocably agreed in the contract subject to this lawsuit that the Circuit Court in and for the Eleventh Judicial Circuit in Miami Dade County, Florida was the exclusive venue and jurisdiction for any action arising from, related to or in connection with the contract....

The jurisprudence of long-arm jurisdiction in Florida has traditionally been based on section 48.193, Florida Statutes. In Venetian Salami, the Florida Supreme Court determined that the acts required by section 48.193 to confer on Florida courts personal jurisdiction over non-resident defendants, were not coextensive with those minimum contacts necessary to satisfy Due Process. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla.1989). Rather, to determine whether long-arm jurisdiction exists, two inquiries must be made. First, a court must determine whether “the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of [section 48.193]; and if it does, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Id. at 502 (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA1987)).

Generally, an agreement alone is insufficient to confer personal jurisdiction on Florida courts. McRae v. J.D./M.D., Inc., 511 So.2d 540 (Fla.1987). Decided in 1987, McRae addressed only section 48.193 and determined that “[cjonspicuously absent from the long arm statute is any provision for submission to in personam jurisdiction merely by contractual agreement.” Id. at 543.

Two years after McRae was decided, the Legislature promulgated sections 685.101-.102, which are contained within the Contract Enforcement Chapter of the Commercial Relations Title of Florida Statutes. Section 685.101, titled Choice of Law, provides in pertinent part, that:

The parties to any contract, agreement, or undertaking ... in consideration of or relating to any obligation arising out of a transaction in the aggregate not less than $250,000 ... may, to the extent permitted under the United States Constitution, agree that the law of this state will govern such contract ... whether or not such contract ... bears any relation to this state.

§ 685.101(1), Fla. Stat. (1989). However, there are limits to the reach of section 685.101. Section 685.101 does not apply to any contract, agreement, or undertaking:

(a) Regarding any transaction which does not bear a substantial or reasonable relation to this state in which every party is either or a combination of:
1. A resident and citizen of the United States, but not of this state; or
2. Incorporated or organized under the laws of another state and does not maintain a place of business in this state.

§ 685.101(2), Fla. Stat. (1989). Otherwise stated, section 685.101 “only applies if either 1) the contract bears a substantial or reasonable relation to Florida, or 2) at least one of the parties is either a resident or citizen of Florida (if a person), or is incorporated or organized under the laws of Florida or maintains a place of business in Florida (if a business).” Edward M. Mullins & Douglas J. Giuliano, Contractual Waiver of Personal Jurisdiction Under F.S. § 685.102: The Long-Arm Statute’s Little-Known Cousin, 80-May Fla. B.J. 36, 37 (2006).

Related to section 685.101 is section 685.102, titled Jurisdiction, which states that:

Notwithstanding any law that limits the right of a person to maintain an action or proceeding, any person may, to the extent permitted under the United States Constitution, maintain in this state an action or proceeding against any person or other entity residing or located outside this state, if the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of the law of this state, in whole or in part, has been made pursuant to s. 685.101 and which contains a provision by which such person or other entity residing or located outside this state agrees to submit to the jurisdiction of the courts of this state.

§ 685.102(1), Fla. Stat. (1989).

Read together, the two sections stand for the proposition that, if certain requirements are met, parties may, by contract alone, confer personal jurisdiction on the courts of Florida. To satisfy the statutory requirements, the contract, agreement, or undertaking must (1) include a choice of law provision designating Florida Law as the governing law, (2) include a provision whereby the non-resident agrees to submit to the jurisdiction of the courts of Florida, (3) involve consideration of not less than $250,000, (4) not violate the United States Constitution, and (5) either bear a substantial or reasonable relation to Florida or have at least one of the parties be a resident of Florida or incorporated under its laws. Thus, as long as one of the parties is a resident of Florida or incorporated under its laws, and the other statutory requirements are met, sections 685.101-.102 operate irrespective of whether the underlying contract bears any relation to Florida and notwithstanding any law to the contrary. See §§ 685.101 and 685.102, Fla. Stat.

The language of the statute is clear. By promulgating sections 685.101-.102, the Legislature allowed contracting parties to dispense with the more restrictive Florida long-arm limitations. See Steller Group, Inc. v. Mid-Ohio Mech., Inc., 2004 WL 5685570, at *2 (M.D.Fla. Jan. 28, 2004); E-One, Inc. v. R. Cushman & Assocs., Inc., 2006 WL 2599130, at *6 (M.D.Fla. May 15, 2006) (determining that section 685.102 provided an additional basis for jurisdiction). In section 685.102, the Legislature, by its clear terms, granted parties the very right that McRae and its progeny found conspicuously absent in section 48.193; the right to confer personal jurisdiction by agreement.

Further, we must assume the Legislature knew the existing law when it passed sections 685.101-.102. See Williams v. Jones, 326 So.2d 425, 435 (Fla.1975) (“[T]he Legislature is presumed to know the existing law when it enacts a statute and is also presumed to be acquainted with the judicial construction of former laws on the subject concerning which a later statute is enacted”) (citing Collins Inv. Co. v. Metro. Dade County, 164 So.2d 806 (Fla.1964)).

However, the Legislature could not, and did not, dispense with the due process requirements of the United States Constitution. Instead, it made the due process requirement the sole inquiry when considering the issue of personal jurisdiction in cases governed by sections 685.101-.102. Therefore, we must still determine whether there are minimum contacts sufficient to justify the trial court’s exercise of jurisdiction over defendant. Normally, courts review a number of factors to determine whether minimum contacts exist. However, in the commercial context, “the Supreme Court has held that the minimum contacts standard is met if a forum-selection clause exists that is ‘freely negotiated’ and is not ‘unreasonable and unjust.’ ” Steller Group, Inc., 2004 WL 5685570, at *3 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)); Global Satellite Commc’n Co. v. Sudline, 849 So.2d 466, 469 (Fla. 4th DCA 2003); see Desai Patel Sharma, Ltd. v. Don Bell Indus., Inc., 729 So.2d 453, 454 (Fla. 5th DCA 1999) (“Personal jurisdiction, unlike subject matter jurisdiction, may be conferred by agreement.”).

Applying the five requirements of sections 685.101-.102 to the facts of this case, we find that Jet’s motion to dismiss for lack of personal jurisdiction was properly denied. Here, the contract (1) included a choice of law provision, designating Florida as the governing law, (2) included a provision whereby Jet agreed to submit to the jurisdiction of the courts of Florida, (3) involved consideration well in excess of $250,000, (4) pursuant to Desai and Burger King Corp., created minimum contacts without violating the United States Constitution, and (5) was executed by a party incorporated under the laws of the state of Florida.

Accordingly, under sections 685.101-.102, the parties properly conferred personal jurisdiction over each other in Florida. We affirm all other issues on appeal.

Affirmed.

      . Jet is a Delaware corporation with its principal place of business in New York.

      . “Long ago, the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), held that in order to subject a defendant to an in personam judgment when he is not present within the territory of the forum, due process requires that the defendant have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Venetian Salami Co., 554 So.2d at 500.

      . Even after the Legislature passed sections 685.101-.102, courts still quote with approval the language of McRae: “Conspicuously absent from the long arm statute is any provision for submission to in personam jurisdiction merely by contractual agreement.” See Four Star Resorts Bahamas, Ltd. v. Allegro Resorts Mgmt. Servs., Ltd., 811 So.2d 809, 811 (Fla. 3d DCA 2002). These references, however, merely parrot the rule as it relates to section 48.193 and, we believe, have no effect on the impact of sections 685.101-.102.


author: BENTON, J.

text:
    Ashley Ellen GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4536.
    District Court of Appeal of Florida, First District.
    June 12, 2009.

      Michael E. Green, Orange Park, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Ashley Ellen Grant appeals her conviction for uttering an altered check in violation of section 831.09, Florida Statutes (2007). She contends her motion for judgment of acquittal should have been granted because the evidence that she knew the check had been altered and that she intended to injure or defraud was insufficient. We affirm.

Summer Miller, a teller at Vystar Credit Union, testified that Ms. Grant presented the check for payment on October 17, 2007, saying that the person who had given her the check had misspelled her name: Named as payee was “ASHALY, GRANT.” Ms. Grant endorsed the check twice, once spelling her name correctly and once spelling it as it was spelled on the front of the check, albeit without the comma between the first and last names. The teller also testified that she wrote down Ms. Grant’s address, employment, home phone number, and driver’s license number before cashing the check.

A week later, J.A. Stokes, a postal inspector, another postal inspector, and Detective Bill Roberts of the Clay County Sheriffs Office interviewed Ms. Grant at her residence where, Stokes testified, she acknowledged cashing the check: She told them that she was given the check by Laramie Gore, whom she had previously dated, acknowledging she had “doubts” about cashing the check; that she knew something was up; and that she was suspicious about what was going on. She told her interrogators that Mr. Gore told her he had the check made out to her because the person who drew the check owed him money, but he was unable to cash a check without identification. She also said she had not known that anyone owed Mr. Gore $900 (the approximate amount of the check), and that he gave her $200 after she cashed the check. She claimed this was because Mr. Gore had backed into her car two years earlier and still owed her for the damage that had caused.

Detective Roberts essentially corroborated this account of the interview. According to him, Ms. Grant told them that Laramie Gore called her and asked her to cash the check, telling her that a person who owed him money made the check payable to her because he did not have proper identification. Ms. Grant also told them, according to Detective Roberts, that, when Mr. Gore called and asked her to cash a check, she thought it was “funny” and that she should have known better, but cashed it anyway because she needed money; and that she did not think anyone should owe Laramie Gore $900.

Ms. Grant’s written statement on the day of this initial interview reads: “Laramie Gore had given me a check and told me someone he knew owed him money and they wrote him a check to cash. Laramie said he didn’t have an ID. So he said he asked the person who owed him money to sign my name on there so I could cash it for him. Laramie said that he was gonna give me some of the money for hitting my car a while ago. He followed me to the bank. I cashed the check for him, came outside, and gave him the money. I went to Vystar in Fleming Island. He took approximately $700 and I got approximately $200.... Detective and agents brought by pictures and I identified the guy as Ben, the person who lives with Laramie.”

Ms. Grant gave a second written statement at a police substation on November 13, 2007, after she was shown “photo lineups” including pictures of Laramie Gore and Ben Armington. Detective Roberts testified that between Ms. Grant’s initial interview and her second written statement, he had also shown her a still photograph made from a surveillance videotape, which depicted Ben Armington removing an envelope from a mailbox. In her second statement, Ms. Grant wrote: “Today I saw a lineup and stated that ... on the first lineup on the bottom, middle, number five was Laramie Gore and on the second lineup top, middle, number two was Ben. They had said that the person who owed the money owed it to Ben, although Laramie handed me the check and I handed Laramie the money.” Detective Roberts testified that it seemed Ms. Grant was being “more defensive” of Laramie Gore during the second interview.

Teressa Hughes testified that she had written the check, but that she had made it payable to “ASI,” an insurance company, not appellant; and that she had put it in an envelope, and placed the envelope in the mailbox behind her home, which also served as her office. Examining her bank records online a few days later, she discovered the check had been altered so that it was payable to “Ashaly, Grant.” Ms. Hughes, who has a video surveillance system outside her home, testified she reviewed tapes and found a videotape depicting a man apparently taking an envelope from her mailbox, then turned the videotape over to police.

At the close of the state’s case, the defense moved for judgment of acquittal, arguing the prosecution had not established that Ms. Grant knew the check had been altered, or proven in any other way that she had the intent to defraud or injure anyone. Defense counsel argued the case was “totally circumstantial” and that the evidence was insufficient to overcome a reasonable hypothesis of innocence. The trial judge denied the motion, ruling there was evidence that she knew or should have known the check was altered, and that, if the jury found she had knowledge of the alteration, it could infer that she presented the check intending to injure or defraud the person who had drawn it.

“The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). But the state may rely on circumstantial evidence. See Grover v. State, 581 So.2d 1379, 1380 (Fla. 4th DCA 1991) (“It is black-letter of course that intent, being a state of mind, is rarely if ever susceptible of direct proof. Almost inevitably, as here, it must be shown solely by circumstantial evidence.” (citing State v. Waters, 436 So.2d 66 (Fla.1983))); Szilagyi v. State, 564 So.2d 644, 646 (Fla. 4th DCA 1990) (“Since intent necessarily involves the state of mind of the perpetrator, very often circumstantial evidence is the only evidence available to prove intent.”). Like intent, knowledge (or its absence) must often be inferred from surrounding circumstances. See Heineman v. State, 327 So.2d 898, 898 (Fla. 3d DCA 1976) (stating knowledge is “a state of mind ... often not subject to direct proof’); State v. Norris, 384 So.2d 298, 299 (Fla. 4th DCA 1980) (stating that intent “may be inferred from ... surrounding circumstances” and that in “this respect knowledge is like intent”).

Ms. Grant argues that, because evidence that she knew the check to be altered and that she intended to injure or defraud was circumstantial, the heightened standard set forth in State v. Law, 559 So.2d 187 (Fla.1989), applies. In Law, our supreme court announced that a

special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.

Law, 559 So.2d at 188 (citations omitted). She begins from the premise that this “special standard of review,” id., applies “when proof of one or more elements of the offense depends entirely on circumstantial evidence.” Linn v. State, 921 So.2d 830, 834 (Fla. 2d DCA 2006) (citing Boyd v. State, 910 So.2d 167, 180 (Fla.2005)).

In Boyd, however, rather than classifying evidence as direct or circumstantial vis-á-vis each discrete element, the supreme court stated (consistently with the decision in Law) merely that a special standard of review applies “when a ease is based wholly on circumstantial evidence.” Boyd, 910 So.2d at 180. See Jenkins v. State, 1 So.3d 317, 320 (Fla. 3d DCA 2009) (“[W]here one or more of the elements of the crime are proven by direct evidence, this heightened standard of review is not applicable.” (citing State v. Burrows, 940 So.2d 1259, 1262 (Fla. 1st DCA 2006))). The state presented direct evidence that Ms. Grant cashed the check. See State v. Burrows, 940 So.2d 1259, 1262 (Fla. 1st DCA 2006) (“When the State presents both direct and circumstantial evidence, the special standard of review applicable to circumstantial evidence cases does not apply.” (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)) (emphasis omitted)). The present case was not based entirely on circumstantial evidence.

In any event, the evidence the state presented meets Law’s “special standard.” Assuming Ms. Grant succeeded in identifying any hypothesis of innocence— not contradicted by her own out-of-court statements which also came in evidence— the evidence as a whole was sufficient for the jury to conclude that she knew that the stranger’s check her Mend asked her to cash was not originally drawn in her favor, and that neither the drawer of the check nor anybody to whom it rightfully belonged intended any part of the proceeds for her use. Ms. Grant initially told investigators that the person who wrote the check owed money to Laramie Gore, but later said that the debtor owed Ben Arm-ington. She told investigators that she was suspicious, that she found it odd that someone would owe Mr. Gore money, and that she cashed the check anyway because she needed money. After cashing the check, she admitted, the money was divided and she took a share. In the circumstances, the jury’was free to disbelieve her protestations of innocence.

Affirmed.

LEWIS and CLARK, JJ„ concur.

      . On appeal, Ms. Grant argues that the trial judge applied an erroneous evidentiary standard in denying the motion for judgment of acquittal, citing Heath v. State, 382 So.2d 391, 392 (Fla. 1st DCA 1980); Taylor v. State, 241 So.2d 426, 426-27 (Fla. 3d DCA 1970); and Hitt v. State, 209 So.2d 689, 690 (Fla. 1st DCA 1968). But see Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (ruling that “a judgment of acquittal presents an issue of law”).
      In order to convict, the jury had to find beyond a reasonable doubt that she knew the check had been altered, and the jury was so instructed. See Linn v. State, 921 So.2d 830, 833 (Fla. 2d DCA 2006). In concluding that she "should have known” the check was altered, the trial court made a determination'— with which we agree — that the evidence met an objective test, i.e., permitted the inference that she actually knew, and so required denial of the motion for judgment of acquittal.

      . Even under the heightened standard applicable in wholly circumstantial cases,
      [t]he state is not required to "rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

        State v. Law, 559 So.2d 187, 189 (Fla.1989) (internal citation and footnote omitted).


author: DAVIS, Judge.

text:
    Raymond Burns ELY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1627.
    District Court of Appeal of Florida, Second District.
    June 12, 2009.
   DAVIS, Judge.

Raymond Burns Ely challenges the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm in part, reverse in part, and remand for further proceedings.

Ely entered open no contest pleas to aggravated stalking, making harassing telephone calls, and making obscene telephone calls. The trial court sentenced him to five years in prison on the stalking charge and to two days in jail on each of the other charges. He subsequently filed a rule 3.850 motion alleging seven claims of ineffective assistance of counsel. We affirm claims one through six without comment.

However, in his seventh claim, Ely alleged that counsel was ineffective for coercing a plea by giving erroneous advice regarding sentencing and that had he been accurately advised, he would not have entered his plea and would have instead proceeded to trial. Ely maintained that counsel advised him that if he entered an open plea, the trial court would sentence him according to his guidelines scoresheet. Ely further alleged that counsel told him, “You score for probation. The worst you could get would be work-release or house arrest. The judge can’t give prison time without an aggravating factor, which there are none in your case.” The trial court, however, ultimately sentenced Ely to five years in prison.

In summarily denying this claim, the postconviction court stated, “Once the Court advised Defendant that he could receive five years in prison for the aggravated stalking and one year in jail for the misdemeanors, Defendant could not reasonably] rely on counsel’s advice that he would get probation, house arrest, or work camp ‘if there were no mitigating factors.” To support this contention, the court cited Scheele v. State, 953 So.2d 782 (Fla. 4th DCA 2007).

While the postconviction court is correct in its reading of Scheele, such is not the law in the Second District. See Johnson v. State, 757 So.2d 586 (Fla. 2d DCA 2000). In Johnson, “[t]he [postconviction] court ... found that because Johnson was informed prior to his plea of what his potential sentence was, his claim [that counsel’s misadvice rendered his plea involuntary] was without merit.” Id. at 587. This court, however, disagreed, stating, “Johnson’s awareness of the maximum sentence he faced does not vitiate his claim that his attorney had assured him that his actual sentence would be much less than the maximum.” Id.; see also Velazquez v. State, 973 So.2d 1206, 1208 (Fla. 2d DCA 2008) (addressing a claim of ineffectiveness for failure to properly advise defendant regarding the possible sentence he faced and concluding that Velazquez’s “motion should be considered based on the extent to which he relied on counsel’s advice, if any, concerning the possibility of a lesser sentence in deciding to plead guilty rather than proceed to trial”).

In the instant case, Ely specifically alleged in his motion that his counsel advised him that he would be sentenced pursuant to the guidelines; that based on the guidelines, he would score for probation or community control; and that “[t]he judge can’t give prison time without an aggravating factor, which there are none in your case.”

Furthermore, at the plea hearing, Ely’s counsel advised the trial court that he and the assistant state attorney disagreed as to the scoresheet calculation and that the trial court would have to address the issue. Counsel represented to the court that the proper calculation would show a suggested sentence of probation, while the State insisted that the appropriate sentence would be two years in prison. The trial court acknowledged that there was still a score-sheet issue to be resolved, proceeded with the plea colloquy, and set sentencing for a future date so that a pretrial investigation could be conducted and the scoresheet issue could be resolved. During the colloquy, the trial court advised:

There is also a count of Obscene Telephone Call. Aggravated Stalking is a third-degree felony punishable by five years in prison; the misdemeanors are first-degree misdemeanors punishable by a year in the county jail apiece [sic]. You understand that’s the most the judge could sentence you to, and the most he could sentence you to is seven years?

Although the trial court did advise Ely that he could possibly receive a seven-year prison sentence, at the time of such advice, Ely was aware that there was still a score-sheet dispute to be settled, and according to the allegation in his motion, his attorney had advised him that if he scored out to probation, he would receive probation. His counsel further had advised him that for the judge to exceed the guideline sentence he would have to find aggravating circumstances but that there were none in his case. Based on these facts and allegations, we cannot conclude that the transcript attached to the order denying relief clearly refutes Ely’s allegation of misad-vice of counsel or that the trial court’s informing him that he could be sentenced to seven years necessarily advised him that he could not rely on the representations of his counsel. See Johnson, 757 So.2d at 587.

If the allegations of Ely’s motion are correct, trial counsel based the advice he gave Ely on pre-Criminal Punishment Code procedure, which limited the court’s discretion in determining the maximum sentence. Such advice would amount to deficient performance because Ely was to be sentenced under the Criminal Punishment Code, which allows the trial court to impose a statutory maximum sentence without limitation.

In conclusion, since Ely would not necessarily have been put on notice that he could not rely on counsel’s advice and since the giving of such advice would be deficient performance that prejudiced him, Ely has stated a sufficient claim for ineffective assistance of counsel that is not refuted by the attachments to the order. Accordingly, we must reverse the summary denial of claim seven and remand the claim for further consideration. If the court again summarily denies this claim, it must attach portions of the record that conclusively refute the claim. Otherwise, the court must conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

WHATLEY, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . In the requested relief section of his motion, Ely asked that he be allowed to withdraw his plea.


author: SILBERMAN, Judge.

text:
    Andrew J. KRAMPERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-552.
    District Court of Appeal of Florida, Second District.
    June 12, 2009.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Andrew Krampert appeals his conviction and sentence for failure to reregister as a sexual predator. We reverse because the trial court erred by failing to properly instruct the jury that it had to determine whether Krampert knowingly failed to re-register as a sexual predator.

Background and Trial Proceedings

In an earlier proceeding, Krampert had been designated as a sexual predator. As a result, he was required to register with the Florida Department of Law Enforcement and to periodically reregister by reporting in person to the sheriffs office in the county where he resided or was otherwise located. See § 775.21(8)(a), Fla. Stat. (2006). A sexual predator’s failure to re-register constitutes a third-degree felony. § 775.21(10)(a).

On September 15, 2006, the State charged Krampert with failing to reregis-ter in July 2006. On the morning of trial, the State requested that the trial court preclude Krampert from presenting hearsay evidence as to statements purportedly made by a deputy with the Pinellas County Sheriffs Office. The State anticipated that Krampert was going to have his mother testify that the deputy went to Krampert’s home, spoke with him, and insinuated that his reregistration had been completed as a result of the visit. The State asked the trial court to preclude Krampert or his mother from testifying concerning the deputy’s statements. Krampert argued that the statements were not hearsay because they were not being offered for the truth of the matter asserted. Instead, the statements would establish Krampert’s state of mind as to why he did not go to the sheriffs office to reregister. The State countered that it was “highly suspicious that this deputy ever made those statements or he was even at the house during that month” and that the statements did not provide a legal justification for Krampert’s failure to re-register. The trial court indicated that it would consider the issue during trial and that Krampert might have to proffer the testimony.

During the jury trial, the State established Krampert’s obligation to reregister and his failure to do so in July 2006. After the State rested, the trial court revisited the issue of whether Krampert would be permitted to present evidence regarding the deputy going to his home, speaking with him, and leading him to believe that he did not have to report in person to the sheriffs office to reregister in July 2006. The State renewed its hearsay objection and argued that the testimony would be self-serving. Krampert reiterated that the testimony would address his state of mind, the impact that the deputy’s statements had on him, and why he did not reregister. The trial court found that Krampert’s state of mind was not at issue because the question was simply “either he registered or he didn’t.” The court ruled that Kram-pert could not present evidence of what the deputy said to him during the home visit because the testimony would be inadmissible hearsay.

At a proffer outside the jury’s presence, Krampert testified about his discussion with the deputy in July 2006 and his belief, based on that discussion, that he had satisfied his reregistration obligation for the following six months. Krampert testified that the deputy went to his house and that they had a friendly conversation. The deputy said that he was new on the case and “was checking the residences and stuff like that.” The deputy listened to what Krampert “had to say about me being there” and when he was leaving, Krampert “asked him if I was okay, if I was good,” and the deputy told him “yes.” On cross-examination during the proffer, the State asked the following: “And you assumed, based on that exchange, that you were good to go for the next six months?” Krampert responded: “Yes, sir. I believed that at that time I had done everything. I had filled out the paperwork that is meant for me — meant for me to fill out to send in to Tallahassee. I had met with an officer from the unit who knew I wasn’t going anywhere.” When asked whether he filled out a reregistration form with the deputy, Krampert stated that the “only forms I filled out are normally the ones that they mail to me.”

After the proffer, the parties finished their presentation of evidence. At the conclusion, the trial court instructed the jury, in pertinent part, as follows:

Before you can find the defendant guilty of failure to register as a sexual predator, the State must prove the following two elements beyond a reasonable doubt:
One, Andrew J. Krampert is a sexual predator; two, Andrew J. Krampert, after registering as a sexual predator during the month of his birthday with the Pinellas County Sheriffs Office or with the Florida Department of Law Enforcement, Andrew J. Krampert failed to re-register as a sexual predator during the sixth month following Andrew J. Krampert’s month of birth with the Pi-nellas County Sheriffs Office or with the Florida Department of Law Enforcement.

Following deliberations, the jury returned a guilty verdict.

Issues

Krampert raises three issues on appeal. First, he argues that the trial court fundamentally erred by not instructing the jury that before it could find Krampert guilty, the State had to prove that he knowingly failed to reregister by not reporting in person at the sheriffs office during the sixth month following his birthday month. In its brief, the State concedes that Kram-pert is entitled to a new trial because the trial court did not instruct the jury as to “knowledge of a duty to register.” It recognizes that at trial, it took the position that it only had to prove that Krampert was a sexual predator and failed to register. It further recognizes that Krampert disputed the knowledge aspect and sought to introduce evidence on that point.

Krampert next argues that the trial court erred in prohibiting him from testifying regarding the deputy’s statement and its effect on Krampert’s state of mind concerning the reregistration requirement. The State contends that if the trial court erred, this error was harmless.

Finally, Krampert argues that the trial court committed fundamental error in permitting the State to make certain comments in its closing argument. The State responds that this issue is moot because a new trial is required based on the jury instruction error. We have reviewed the trial transcript and conclude that Kram-pert has not established fundamental error as to this issue, and we do not address it further.

Analysis

The parties have not cited to any case directly addressing whether section 775.21 includes a knowledge requirement as an element of the offense of failing to reregister as a sexual predator. However, they cite to State v. Giorgetti, 868 So.2d 512 (Fla.2004), and In re Standard Jury Instructions in Criminal Cases-Report No. 2007-4, 988 So.2d 531, 549 (Fla.2008), as instructive.

In Giorgetti, the Florida Supreme Court addressed whether the State was required to prove knowledge of the registration requirement as an element of the crime of failing to register as a sexual offender under section 943.0435, Florida Statutes (2000). The court stated that at common law, “guilty knowledge or mens rea was a necessary element in the proof of every crime.” 868 So.2d at 515. Further, “this rule was followed with regard to statutorily defined crimes, even if the statute did not expressly include a knowledge requirement.” Id. The court reiterated “that we will ordinarily presume that the Legislature intends statutes defining a criminal violation to contain a knowledge requirement absent an express indication of a contrary intent.” Id. at 516. Further, “[t]he group of offenses punishable without proof of any criminal intent must be sharply limited.” Id. (quoting Chicone v. State, 684 So.2d 736, 743 (Fla.1996)). The court also noted the reluctance of the United States Supreme Court to impute to Congress the intent to do away with the mens rea requirement in cases involving serious consequences. Id. at 518-19.

Regarding section 943.0435, the Florida Supreme Court observed that the failure to register as a sexual offender is a third-degree felony carrying serious consequences and that “because the statute contains no expression of any intent to remove knowledge as an element of these offenses,” it is appropriate “to construe a knowledge requirement into the statutes.” Id. at 519. The court concluded that “at a minimum ‘actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under [the sexual offender registration statutes] can stand.’” Id. at 520 (quoting Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957)); see also Newell v. State, 875 So.2d 747, 748 (Fla. 2d DCA 2004) (citing Giorgetti for the proposition “that section 943.0435 must be construed as including a knowledge requirement”).

Similar to section 943.0435, section 775.21 does not express any intent to remove knowledge as an element and it punishes the failure to comply with the statute’s registration requirements as a third-degree felony. § 775.21(10)(a). As Kram-pert argues and the State acknowledges, the reasoning in Giorgetti applies here and section 775.21 must be construed as including a knowledge element.

Krampert’s failure to object to the erroneous instruction does not preclude appellate review. “It is well settled that jury instructions are subject to the contemporaneous objection rule, and absent an objection at trial, any alleged error can be raised on appeal only if fundamental error has occurred.” Wright v. State, 975 So.2d 498, 499 (Fla. 2d DCA 2007).

The trial court instructed the jury that the State need only establish that Kram-pert was a sexual predator and that he failed to reregister as a sexual predator during the sixth month following his birth month. This instruction omitted the knowledge element and precluded the jury from determining whether Krampert knowingly failed to reregister. The instruction was an incorrect statement of the law and had the effect of negating Kram-pert’s only defense: that he did not knowingly fail to reregister.

Because the trial court erroneously concluded that knowledge was not an element of the crime, it excluded Krampert’s evidence on the issue of whether he knowingly violated the statute. Had the jury heard and accepted Krampert’s defense, that based on his discussion with the deputy he believed he had satisfied his reregistration requirement for July 2006, the jury may have returned a not guilty verdict. Thus, we conclude that the trial court’s failure to give correct instructions to the jury constitutes fundamental error, and we reverse and remand for a new trial. See id.; Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985); Williams v. State, 982 So.2d 1190, 1194 (Fla. 4th DCA 2008).

We next address Krampert’s argument that the trial court erred in sustaining the State’s hearsay objection and in preventing him from presenting evidence concerning his discussion with the deputy. We agree that the deputy’s statements were not hearsay because they were not offered to prove the truth of what the deputy stated but to prove or explain Krampert’s own subsequent conduct. See § 90.801(1)(c), Fla. Stat. (2007); Penalver v. State, 926 So.2d 1118, 1132 (Fla.2006) (reiterating that “if the statement is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case”); Miller v. State, 870 So.2d 15, 17 (Fla. 2d DCA 2003) (concluding that testimony regarding a deputy stating “Stop or I’ll shoot” was not hearsay because it was not being elicited to prove that the deputy was going to shoot the defendant but was offered to show the effect of the statement on the defendant and to explain his subsequent conduct). The evidence that Krampert offered was relevant to address the knowledge element of the crime, that his failure to reregister was not a knowing or intentional failure. Because the evidence was relevant to a material issue and was not offered to prove the truth of the deputy’s statements, the trial court erred by sustaining the State’s hearsay objection. See Penalver, 926 So.2d at 1132; Miller, 870 So.2d at 17. However, in light of our decision that the erroneous jury instructions necessitate a new trial, we decline the State’s invitation to engage in a harmless error analysis.

Reversed and remanded for new trial.

ALTENBERND and CASANUEVA, JJ., Concur.

      . The frequency of reregistration has since changed. Presently, a sexual predator must reregister during his or her birth month and every third month thereafter. § 775.21(8)(a), Fla. Stat. (2008).

      . Recently, the Florida Supreme Court approved standard jury instructions for failure to register or reregister as a sexual predator pursuant to section 775.21(8)(a). See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-4, 983 So.2d at 549. Florida Standard Jury Instruction (Criminal) 11.15 (k) includes as an element that the defendant “knowingly failed to reregister by reporting in person” during the specified time periods. The trial court did not have the benefit of these instructions.


author: KHOUZAM, Judge.

text:
    Brandon Christopher MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1532.
    District Court of Appeal of Florida, Second District.
    June 12, 2009.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

In this appeal, Brandon Christopher Miller challenges the revocation of his probation and the judgments and sentences imposed upon revocation. We affirm in part and reverse in part.

On May 9, 2006, Miller pleaded no contest to aggravated assault with a deadly weapon and improper exhibition of a dangerous weapon. The trial court withheld adjudication and placed Miller on three years’ probation for aggravated assault and a concurrent term of one year’s probation for improper exhibition of a dangerous weapon. On November 9, 2007, an affidavit was filed alleging that Miller had violated his probation. The trial court found that Miller violated his probation and sentenced him to thirty months’ imprisonment. Although the court indicated orally that the probation revocation proceeding only applied to the aggravated assault offense, the written judgments and sentences entered upon the revocation reflect that Miller’s probation was revoked on both offenses and that he was adjudicated guilty and sentenced to two concurrent terms of imprisonment for thirty months.

We affirm the revocation of probation and the resulting judgment and sentence for aggravated assault with a deadly weapon. However, the State correctly concedes that the trial court lacked jurisdiction to revoke Miller’s probation on the improper exhibition of a dangerous weapon offense because the one-year probationary period had expired prior to the commencement of the revocation proceeding. Accordingly, we reverse the revocation of probation and the resulting judgment and sentence for improper exhibition of a dangerous weapon. See Marshall v. State, 934 So.2d 665, 666 (Fla. 2d DCA 2006). On remand, the trial court shall enter a written revocation order consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.