text:
    Alex MEANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1128.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Rehearing and Rehearing En Banc Denied Feb. 23, 2010.
    Kenneth J. Kukec, Miami, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before WELLS and SHEPHERD, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

The only arguable error presented on this appeal from a second degree murder conviction, which concerns the allegedly improper admission of “expert” testimony by a crime scene investigator, was harmless beyond a reasonable doubt. See § 924.33, Fla. Stat. (2009); State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Affirmed.


source: Caselaw Access Project

author: McCANN, JAMES, W., Associate Judge.

license: Public Domain

text:
    Duan Clayton SMITH, Appellant, v. FLORIDA HEALTHY KIDS CORPORATION and Clarendon National Insurance Company, Appellee.
    No. 4D08-2490.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 2010.
    Rehearing Denied March 9, 2010.

      Herbert B. Dell of Herbert B. Dell, P.A., Fort Lauderdale, for appellant.
    Curt Allen and Lee Craig of Butler Pap-pas Weihmuller Katz Craig, LLP., Tampa, for Clarendon National Insurance Company-
   McCANN, JAMES, W., Associate Judge.

This case involves a complaint for breach of contract brought by Duan Clayton Smith against Clarendon National Insurance Company (“Clarendon”) for failure to pay health insurance benefits under a policy issued pursuant to the Florida Healthy Kids Corporation Act (Florida Statutes § 624.91). The case proceeded to trial on a single count for breach of contract seeking, as damages, the amount of unpaid medical bills incurred by Smith as a result of injuries he sustained after being shot several times by a police officer with the Town of Jupiter Police Department. Clarendon denied coverage on the basis of a felony exclusion clause in the policy which stated, in pertinent part: “No benefits will be paid for any expenses caused by, incurred for or resulting from: ... 24. Engaging in ... any act which would constitute ... a crime punishable as a felony.”

In addition to the felony exclusion clause, Clarendon also contested the amount of damages, including the total amount of medical bills; the amount paid; total amount due; and whether Smith was owed anything under the policy.

While numerous errors involving evidentiary rulings and jury instructions are raised on appeal, all of them related to the issue of whether there was a breach of contract. The jury returned a verdict finding that Clarendon breached its contract with Smith. Accordingly, any perceived errors in the trial court’s rulings relating to the breach of contract issue are rendered harmless.

The jury rendered a zero verdict on damages, which Smith contends was the result of a compromise verdict requiring a new trial. However, Smith confuses a compromise verdict with an inconsistent verdict, and the cases cited in his brief are distinguishable and entirely inapposite when applied to the facts of this case.

Smith cites Street v. H.R. Mortgage & Realty Company, 949 So.2d 1158 (Fla. 4th DCA 2007), in support of his contention that a zero verdict in this case suggests a compromise verdict was reached by the jury. In Street, both parties agreed the damages award was clearly inadequate as the contract provided for a $550,000 commission and the jury awarded only $375,000. In contrast, it cannot be said that the damage award was clearly inadequate in this case because Smith, the only witness to testify about damages, did not know the amount of his unpaid medical bills. His testimony was anything but clear. In fact, numerous discrepancies were pointed out in the evidence including bills with another patient’s name on them, and the largest bill from St. Mary’s indicated a payment was made by insurance leaving only a small balance.

In Madsen, Sapp, Mena, Rodriguez & Company, P.A. v. Leaman, 686 So.2d 780 (Fla. 4th DCA 1997), another case cited by Smith, there was ample evidence of a clearly inadequate verdict contrary to the evidence and the law. This Court concluded that the clearly inadequate damage award in combination with the contested liability issue and the series of questions posed during the jury’s deliberations caused the conclusion that the jury compromised its verdict. It is the combination of two factors: (1) hotly contested liability; and (2) legal inadequacy of damages, that is common to all compromise verdict cases.

While the instant case also involved several questions and notes from the jury during deliberations, including a note stating they were deadlocked, as well as hotly contested liability, there is still no evidence of a clearly inadequate verdict. In fact, there was evidence from which a jury could have reasonably concluded that Smith sustained zero damages.

“It is not necessary to grant a new trial in all cases where the jury returns a zero verdict. In fact, where conflicting evidence exists concerning damages and reasonable men could believe that the plaintiff sustained no damages, a zero verdict will be upheld.”

Surety Mortgage, Inc. v. Equitable Mortgage Res., Inc., 534 So.2d 780, 781 (Fla. 2d DCA 1988); see also Steinbauer Assocs., Inc. v. Smith, 599 So.2d 746 (Fla. 3d DCA 1992).

The jury had both the contract between Clarendon and the Florida Healthy Kids Corporation (“FHKC contract”) and the MEMBER HANDBOOK containing the policy provisions in evidence. One of the provisions of the Member Handbook entitled “Health Benefit Assignment” stated the following:

All benefits payable for a Covered Child shall be paid, with or without an assignment from the Covered Child, to the Hospitals or Providers. Such benefits shall be payable for expenses incurred for services and supplies provided to the Covered Child if proper claim is submitted by the Hospital or Provider. However, no benefits shall be paid to the Hospital or Provider if such benefits have been paid by the Covered Child prior to receipt of claim by the company from such Hospital or Provider.... In no event will the company pay benefits for the same services or supplies to both the Covered Child and the Hospital or Provider, [e.s.]

Reasonable jurors could believe that Smith had not sustained any damages; that the medical providers would be paid by Clarendon pursuant to the MEMBER HANDBOOK upon their finding of a breach; and that he had not personally paid any of his medical bills which would require a damage award in his favor in a like amount. Simply stated, Smith had not proven by substantial competent evidence to the satisfaction of this jury that he sustained any damages. None of the jury’s questions, alone or considered together, indicate that this was a compromise verdict. Further, there is no agreement by both parties that there was only one correct measure of damages; nor is the zero damages award clearly inadequate and contrary to the evidence and the law as in the cases cited by Smith.

While Florida jurisprudence is replete with examples of compromise verdicts that are characterized by the common elements of hotly contested liability and legal inadequacy of damages, the Supreme Court of Connecticut has recently reiterated its longstanding definition of a compromise verdict:

“A compromise verdict is a ‘verdict which is reached only by the surrender of conscientious convictions upon one material issue by some jurors in return for a relinquishment by others of their like settled opinion upon another issue and the result is one which does not command the approval of the whole panel,’ and, as such, is not permitted.”

Monti v. Wenkert, 287 Conn. 101, 947 A.2d 261, 270 (2008) (quoting Murray v. Krenz, 94 Conn. 503, 109 A. 859, 861 (1920)).

On the facts of this case, it cannot be argued that the jury verdict reached on the issues of liability and damages necessarily evinces the surrendering of conscientiously held opposing convictions upon those two issues by jurors, which resulted in a verdict that was not approved by the entire panel. Indeed, the jury was polled after its verdict; and each confirmed their verdict.

Moreover, this Court has recently clarified the difference between a jury verdict reached by an illegal compromise, and a jury verdict reached by an entirely appropriate compromise of viewpoints which inheres in the verdict and as such, is not subject to post-trial scrutiny. We stated in Cooper Tire & Rubber Co. v. Pierre, 18 So.3d 700 (Fla. 4th DCA 2009):

“What allegedly occurred during jury deliberations in the present case does not rise to the level of reaching a verdict by aggregate or by lot. The jury negotiated a verdict by means of normal give and take, and the foreperson’s affidavit stating that two groups of jurors reached a compromise regarding the amount of damages and proportional liability merely recounts a matter that inheres in the verdict.”

Id.

This Court defined an inconsistent verdict in Crawford v. DiMicco, 216 So.2d 769, 771 (Fla. 4th DCA 1968) as follows:

“Where the findings of a jury’s verdict in two or more respects are findings ■with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court’s judgment based thereupon is erroneous.”

In other words, an inconsistent verdict is when two findings of fact are mutually exclusive. A verdict is not necessarily inconsistent simply because it fails to award enough money or, as here, no money at all. Under such circumstances, there may be an issue as to the adequacy of the award, but not its inconsistency with any other award contained within the verdict. We need not reach the question of whether the verdict was inadequate, as that issue has not been preserved for appeal.

Finding no error in any of the other issues raised by appellant in the initial appeal, or appellee in the cross-appeal, the decisions of the trial judge are affirmed without further discussion.

Affirmed.

WARNER and LEVINE, JJ., concur.

      . Smith filed a personal injury lawsuit against the Town of Jupiter Police Department and collected $695,000 in a settlement approved by court. The settlement included the payment of all Smith’s outstanding medical bills (after reductions negotiated by his attorneys with each of the health care providers). This is the subject of Clarendon’s Motion for Summary Judgment, which was denied and is the subject of Clarendon’s cross-appeal.

      . If Clarendon was also arguing on this appeal (or cross-appeal) that the verdict was clearly inadequate in order to get a new trial on the breach of contract issue, a different result might be reached on this point.


author: PER CURIAM.

text:
    Riesa P. MINAKAN, Petitioner, v. Daniel S. HUSTED, Respondent.
    No. 4D09-4439.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.

      Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for petitioner.
    Karen O’Brien Steger of Steger & Steger, P.A., Stuart, for respondent.
   PER CURIAM.

In this dissolution of marriage case, the husband filed a motion to disqualify the wife’s attorneys. The circuit court entered an order granting the motion. The wife has filed a petition for writ of certiorari seeking to quash the order. We grant the petition because the circuit court did not hear the wife’s evidence before entering its order.

In the motion, the husband alleged that, during the marriage, he and the wife had access to each other’s e-mail account. After the husband filed a petition to dissolve the marriage, he changed the password on his account. According to the husband, the wife somehow “hacked” into the husband’s account, and found an e-mail from the husband to his attorney. The wife’s sister forwarded the e-mail to the wife’s attorney. The wife’s attorney recognized that the e-mail was an attorney-client communication, and sent the husband’s attorney a letter returning the e-mail. However, the husband alleged that, because the wife’s attorney read the e-mail, the wife obtained an unfair advantage which justified disqualifying the wife’s attorney. The husband also sought sanctions against the wife for “breaking into the husband’s email.”

The -wife hired a second attorney to represent her on the motion. In a written response, the wife contended that she did not “hack” into the husband’s e-mail account, but rather used the same password she always had used. Therefore, the wife alleged, the husband failed to treat the email as confidential and waived any privilege claim over it. The wife also argued that the e-mail’s contents demonstrated that its purpose was to enable the husband to commit a crime or fraud upon her in the dissolution, thus falling under the “crime/ fraud exception” to the attorney-client privilege. See § 90.502(4)(a), Fla. Stat. (2009) (“There is no lawyer-client privilege under this section when ... [t]he services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.”).

In addition to filing a response to the motion, the wife propounded a request for production upon the husband. The request sought “e-mails between the Husband and his counsel wherein the Husband seeks assistance and/or advice in the perpetration of a fraud in the current dissolution of marriage action.” Based on the request, the husband’s attorney assumed that the wife’s second attorney read the email and was referring to his interpretation of it. The husband’s attorney responded to the request by faxing a copy of the e-mail to the wife’s second attorney on the morning of the hearing on the motion. The second attorney later claimed this was the first time he saw the e-mail.

At the hearing, the circuit court first heard the parties’ arguments. The husband contended that his e-mail was not intended to commit a fraud. Rather, the husband claimed that he merely was seeking his attorney’s advice on a financial matter involving his medical partnership. The husband also sought to disqualify the wife’s second attorney based on the second attorney reading the e-mail. The wife’s opening statement mirrored her response to the motion.

The court then proceeded to hear testimony. The husband testified consistently with his motion and discussed the e-mail’s contents. The husband also called his medical partnership’s administrator to testify regarding the e-mail’s contents.

After the husband rested, the court began addressing the issues. The wife’s attorney interjected that the court had not allowed the wife to testify regarding how she obtained the e-mail. The court did not respond. Instead, the court began ruling. The court found that the crime/fraud exception did not apply. The court reasoned that the husband was not attempting to solicit his attorney to commit a crime or fraud, but simply was asking questions of his attorney.

The court then asked whether there was some way the issue could be resolved, other than disqualifying the attorneys, if it found the attorney-client privilege was violated. The wife’s attorney responded by reminding the court that it still had not heard any testimony from the wife’s side. After a brief discussion on another topic, the court stated:

What I’ve been trying to do is figure out if there’s some other way short of requiring the attorneys to be removed from the case to handle this, and I don’t know that I can come up with any other way ... I don’t know that I can really say whether or not this issue would be raised in normal discovery, whether there is some advantage gained by having this information.

The wife’s attorney again told the court that the wife still had not been allowed to testify to refute the allegation that the wife “hacked” into the husband’s e-mail account. The court responded that it did not know whether the wife’s testimony would make a difference. The court explained that, even if it accepted the wife’s argument that the husband failed to protect the e-mail, the harm occurred when the wife had the e-mail forwarded to her attorney. The court then found that the only remedy was to grant the motion disqualifying the wife’s attorneys.

This petition followed. In Manning v. Cooper, 981 So.2d 668 (Fla. 4th DCA 2008), we recognized that “[c]ertiorari lies to review orders on motions to disqualify counsel.” Id. at 670. We then set forth the standard of review:

The petitioner has the burden to demonstrate that the trial court order constituted a departure from the essential requirements of law resulting in material harm of an irreparable nature.
As we said in Alexander v. Tandem Staffing Solutions, Inc., 881 So.2d 607, 608-09 (Fla. 4th DCA 2004):
“Disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly.” Motions for disqualification are generally viewed with skepticism because disqualification of counsel impinges on a party’s right to employ a lawyer of choice, and such motions are often interposed for tactical purposes. Confronted with a motion to disqualify, a court must be sensitive to the competing interests of requiring an attorney’s professional conduct and preserving client confidences and, on the other hand, permitting a party to hire the counsel of choice.
Orders on motions to disqualify are reviewed under a standard of abuse of discretion. The trial court’s discretion is governed by the controlling legal principles, but the appellate court will not substitute its judgment for the trial court’s express or implied findings of fact which are supported by competent substantial evidence.

Id. at 670-71 (other internal citations omitted).

The wife raises several arguments, the first of which is dispositive. The wife contends that the court violated her right to due process by not allowing her to testify and present other evidence on the factual question of whether the husband failed to treat the e-mail as confidential, thereby waiving the privilege. The husband responds that whether he failed to treat the e-mail as confidential is irrelevant because there was no question the wife had the email forwarded to her attorney, thus rendering her testimony unnecessary.

We agree with the wife that she did not receive due process. “Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on [the party’s] behalf ... and the denial of this right is fundamental error.” Pettry v. Pettry, 706 So.2d 107, 108 (Fla. 5th DCA 1998) (internal citation omitted); see also Slotnick v. Slotnick, 891 So.2d 1086, 1089 (Fla. 4th DCA 2004) (circuit court committed reversible error when it summarily disposed of factual issues by informally discussing them with attorneys without allowing either party to present evidence; summary process, while initially appearing efficient, denied former wife due process).

The wife’s evidence may have been relevant to her argument that the husband failed to treat the e-mail as confidential and waived any privilege claim over it. See § 90.502(l)(c), Fla. Stat. (2009) (“A communication between lawyer and client is ‘confidential’ if it is not intended to be disclosed to third persons.... ”); § 90.507, Fla. Stat. (2009) (“A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person ... makes the communication when he or she does not have a reasonable expectation of privacy... .”); Delap v. State, 440 So.2d 1242, 1247 (Fla.1983) (“[W]hen a party ... ceases to treat the matter as confidential, it loses its confidential character.”). The wife’s evidence also may have been relevant to whether the wife acted in bad faith in discovering and forwarding the e-mail. See Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla.1998) (discussing the “inequitable conduct doctrine” which “permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith”).

Even if the wife’s evidence would not have impressed the court, a party has the right to present evidence and to argue the case at the conclusion of all the testimony. Pettry, 706 So.2d at 108. Thus, it is necessary to grant the wife’s petition, quash the order disqualifying her counsel, and remand for continuation of the hearing, at which the wife may present her evidence.

Although we could end our review with the wife’s first argument, we choose to address the wife’s other arguments, as they may repeat themselves on remand.

The wife argues that, if the e-mail was privileged, the court failed to consider whether she obtained an unfair advantage by obtaining the e-mail. See Manning, 981 So.2d at 671 (“The trial court can take into account whether the party obtaining the privileged material actually obtained an unfair advantage.”). Citing the court’s statement that it did not know whether there was some advantage gained by having the e-mail, the wife contends that the court apparently disqualified the wife’s attorneys under the premise that disqualification was required. The husband responds that, based on the court’s question of whether there was “some other way this can be resolved other than requiring the two attorneys to withdraw,” the court did not act under the premise that disqualification was required. However, the husband argues that the mere possibility the wife gained an advantage warrants disqualification, citing our statement in Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986): “[T]he possibility that such an advantage did accrue warrants resort to this drastic remedy for the sake of the appearance of justice, if not justice itself, and the public’s interest in the integrity of the judicial process.” Id. at 506.

The husband’s reliance on General Accident is misplaced. In Applied Digital Solutions, Inc. v. Vasa, 941 So.2d 404 (Fla. 4th DCA 2006), we clarified General Accident by holding, “General Accident ... does not state a rule of automatic [disqualification], and our subsequent opinions have noted the unique nature of the factual circumstances in that case. Instead, in each case, the court must exercise its sound judgment.” Id. at 408 (emphasis in original; internal citations omitted). Despite the husband’s misplaced reliance on General Accident, we agree with the husband that, based on the court’s question regarding options other than disqualification, the court recognized there is no rule of automatic disqualification any time the opposing side obtains privileged documents. Manning, 981 So.2d at 671. However, based on the court’s statement that it did not know whether the wife gained some advantage by having the e-mail, the record does not suggest the court took that factor into account before disqualifying the wife’s attorneys. The record also does not indicate whether the court considered the possible lesser remedies of precluding any discovery based on the e-mail’s contents, precluding the use of the e-mail at trial, or both. On remand, the court can consider those matters further.

The wife next argues that the court erred in concluding the e-mail did not fall under the crime/fraud exception. It does not appear that the wife has sought remand to present evidence on this issue. Thus, based' on the evidence which the husband presented at the hearing, we find that the court did not abuse its discretion on this issue.

The wife lastly contends that the court erred in not concluding that the husband waived the privilege when: (1) his attorney faxed the e-mail to her attorneys in preparation for the hearing; and (2) when the husband testified about the email’s contents at the hearing. We agree with the husband’s response that, because the wife raised the crime/fraud exception, it was necessary for him to disclose the email’s contents to refute the crime/fraud allegation.

In sum, because the court did not allow the wife to testify and present other evidence, we grant the wife’s petition, quash the order disqualifying her counsel, and remand for continuation of the evidentiary hearing. The court should determine whether the husband treated the e-mail as confidential and, if so, whether the wife gained an unfair advantage in discovering it and having it forwarded to her attorney. If the court determines that the wife gained an unfair advantage, then disqualification of the wife’s attorneys may be appropriate. Regardless of whether the wife gained an unfair advantage, however, disqualification and other sanctions still may be appropriate under the “inequitable conduct doctrine” if the court finds that the wife, in bad faith, discovered the e-mail and had it forwarded to her attorney. If disqualification is not appropriate, the court can consider lesser remedies, such as precluding any discovery based on the email’s contents, precluding the use of the e-mail at trial, or both.

Petition granted.

STEVENSON, DAMOORGIAN and GERBER, JJ., concur.

      . The court should not apply the five-factor test outlined in General Motors Corp. v. McGee, 837 So.2d 1010, 1040 (Fla. 4th DCA 2002), because that test applies to "inadvertent disclosures,” which neither party alleges occurred here.


author: WELLS, Judge.

text:
    Lorenzo TATUM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2623.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Rehearing Denied Feb. 23, 2010.

      Lorenzo Tatum, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Lorenzo Tatum appeals from an order denying the instant collateral attack on the sentence imposed on him in 1993. Tatum’s arguments have either already been adjudicated multiple times, once by this Court, or are now time barred from further consideration.

Tatum was sentenced to 40 years in prison on December 3,1993, after pleading guilty to second degree murder, armed robbery, aggravated battery, armed burglary, unlawful possession of a firearm, and grand theft in the third degree in case number 91-42776D. In June 1995, Tatum filed his first Florida Rule of Criminal Procedure 3.800 motion claiming that he was (1) illegally sentenced as an adult in violation of section 39.059 of the Florida Statutes, and (2) denied due process because “[ajfter the direct and redirect testimonies of the witnesses’ [sic], the trial judge told Mr. Tatum, that he has determined to impose adult sanctions as opposed to juvenile sanctions in the case.”

Claiming that he had received no order on this motion, in November 1998, Tatum filed a Florida Rule of Criminal Procedure 3.850 motion claiming that his guilty plea was involuntary because he was improperly treated and sentenced as an adult rather than as a juvenile in violation of section 39.059 of the Florida Statutes and because he was denied due process since his parents were not contacted before he accepted a plea and was sentenced. In light of subsequent proceedings, this motion apparently was denied.

In July of 1999, Tatum filed his second Rule 3.800 motion, at least his third motion attacking his agreed to sentence. This motion claimed that Tatum’s sentence was illegal because:

• it violated section 39.059 of the Florida Statutes;
• absent a jury determination that he had used a firearm when he committed the second degree murder for which he was being sentenced, the maximum sentence he could receive for second degree murder, a first degree felony, was 30 years in prison rather than the 40 year sentence he received;
• a statutory three-year minimum mandatory sentence for use of a firearm was improperly imposed;
• no additional crimes should have been scored because they were all part of the same undertaking; and
• no written reasons were given for the purported departure 40 year sentence.

On August 3, 1999, the court below rejected each of these arguments confirming (1) that the maximum sentence for second degree murder with a firearm — to which Tatum more than once has conceded that he pled guilty — is life imprisonment; (2) the maximum penalty for attempted first degree murder with a firearm, armed robbery with a firearm, and armed burglary with a firearm — to which Tatum also con-cededly pled guilty — are also punishable by life imprisonment; (3) a 40 year sentence does not exceed a statutory maximum of life; (4) Tatum’s argument regarding the minimum mandatory sentence was moot since he had already served that sentence; and, (5) although Tatum’s section 39.059 claim should have been raised on direct appeal and was procedurally barred, no error could be demonstrated because the sentencing court had the discretion to determine whether to sentence Tatum, who had been charged as an adult, as a juvenile or as an adult.

Tatum appealed from that order, and in case number 3D99-2411, this Court expressly concluded that each of Tatum’s claims was without merit:

Lorenzo Tatum appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). He argues that he was a juvenile at the time he pled guilty to second degree murder and other crimes in 1993, and contends that his sentence is illegal because the sentencing court did not make findings regarding the necessity of adult sanctions. See § 39.059(7)(d), Fla. Stat. (1991). We reject that claim on authority of Summers v. State, 684 So.2d 729 (Fla.1996). We find no merit to appellant’s remaining points and reject them without discussion.

Affirmed.

Tatum v. State, 741 So.2d 1266, 1266 (Fla. 3d DCA 1999) (emphasis added).

Undeterred, in June of 2005, Tatum filed yet another Rule 3.800 motion. This motion, like the last, claimed (1) that Tatum’s second degree murder conviction should not have been “enhanced” for use of a firearm from a first degree to a life felony; (2) his scoresheet should have been scored for an “unenhanced” second degree murder, which is a first degree felony, rather than as a life felony “enhanced” for use of a firearm; and, (3) that the remainder of his convictions had been mis-scored.

In November 2005, the trial court denied the motion, confirming that these claims had already been made and previously denied. Although Tatum’s June 2005 motion did not claim that his guilty plea was predicated on an agreement that he be sentenced within sentencing guidelines, the order denying this motion also stated that the record did not reflect the existence of such an agreement:

PETITIONER LORENZO TATUM complains that the sentencing guidelines were miscalculated at the time of his guilty plea. Petitioner has filed three previous motions for collateral relief. At least one of those motions, that is, the motion Med on July IS, 1999, raised the same grounds as the grounds raised in the cuirent motion. The motion on those grounds was denied by Judge Richard Margolius on August 3, 1999. Although there is no plea colloquy available for the Court’s review, there is nothing in the court file to indicate that the guilty plea was conditioned upon an agreement that the sentence be within the sentencing guidelines. It is therefore,
ORDERED AND ADJUDGED that the defendant’s Motion to Correct Illegal Sentence is DENIED.

(Emphasis added).

On appeal, this order was reversed, without explication, “[b]ecause the record now before us fails to make the required showing [that the defendant is not entitled to any relief].” Tatum v. State, 957 So.2d 1214, 1214 (Fla. 3d DCA 2007). In February of 2008, Tatum filed a motion in the trial court to enforce this mandate. The motion to enforce, like Tatum’s prior two motions, raised the same issues raised and rejected by this court in 1999:

WHETHER TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENIAL OF DEFENDANT’S CLAIM OF IMPROPER CALCULATION OF SENTENCING GUIDELINE SCORESHEET DUE TO IMPROPER RECLASSIFICATION OF FIRST DEGREE FELONIES TO LIFE FELONIES, WHERE FIREARM WAS ESSENTIAL ELEMENT OF OFFENSES BY INCORPORATION AS DEFENDANT WAS CONVICTED AND SENTENCED FOR POSSESSION OF FIREARM AS THIS CAUSE HAS BEEN REVERSED AND REMANDED AS NO ATTACHMENTS CONCLUSIVELY DEMONSTRATED THAT DEFENDANT WAS NOT ENTITLED TO RELIEF SOUGHT, WHICH WAS APPARENT ON THE FACE OF THE RECORD AND CORRECTION IS WARRANTED IN THE INTEREST OF PREVENTING A MANIFEST INJUSTICE FROM CONTINUING TO OCCUR?

This motion also argued for the fírst time that Tatum’s attorney had assured him that his sentence for second degree murder would be within the guidelines for a first degree felony and as a consequence his guilty plea to second degree murder with a firearm (as a life felony) was involuntary.

The trial court summarily denied this motion. On yet another appeal, we treated this order as a denial of a motion to enforce our mandate in Tatum, 957 So.2d at 1214, and concluded:

Based on the decision and accompanying mandate in Tatum, the trial court had the option of denying Defendant’s motion and attaching portions of the record conclusively showing that Defendant is not entitled to relief, or granting the motion. McIntosh v. State, 914 So.2d 511 (Fla. 5th DCA 2005). Because the trial court has not yet taken either course, we grant the motion and direct the trial court to promptly comply with our previously-issued mandate.

Tatum v. State, 994 So.2d 1231, 1231 (Fla. 3d DCA 2008).

On August 11, 2009, the trial court denied Tatum’s motion for yet a third time:

PETITIONER LORENZO TATUM complains that the sentencing guidelines were miscalculated at the time of his guilty plea. Petitioner has filed three previous motions for collateral relief. At least one of these motions, that is, the motion filed on July 15, 1999, raised the same grounds as the grounds raised in the current motion. The motion on those grounds was denied by Judge Richard Margolius on August 3, 1999. Although there is no plea colloquy available for the Court’s review, there is nothing in the court file to indicate that the guilty plea was conditioned upon an agreement that the sentence be within the sentencing guidelines. It is therefore,
ORDERED AND ADJUDGED that the defendant’s Motion to Correct Illegal Sentence is DENIED. Skidmore v. State, 688 So.2d 1014 ([Fla.] 3rd DCA 1997). Speer v. State, 734 So.2d 454 ([Fla.] 4th DCA 1999). Perry v. State, 705 So.2d 615 ([Fla.] 5th DCA 1998). The clerk of the Circuit Court of the 11th Judicial Circuit is hereby,
ORDERED to attach copies of the petitioner’s motion filed July 15, 1999, Judge Margolius’ order on the motion rendered on August 3, 1999, the State’s response to the instant motion.

Tatum appeals again. For the following reasons, we affirm.

First, all of Tatum’s Rule 3.800 claims — that is his claims that his sentence is illegal because section 39.059 was improperly applied; that absent a jury determination that the second degree murder to which he pled guilty was committed with a firearm, he had to be sentenced for a first degree felony rather than for a life felony; and that the remainder of his convictions were improperly scored — have already been adjudicated by this court in Tatum, 741 So.2d at 1266. These claims were, therefore, properly rejected by the court below in November of 2005, when it denied Tatum’s June 2005 motion. See State v. McBride, 848 So.2d 287, 289, 291 (Fla.2003) (“[T]he law of the case doctrine ... requires that ‘questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.’ ... Collateral estoppel ... precludes a defendant from rearguing in a successive rule 3.800 motion the same issues argued in a prior motion.” (quoting Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001))). There is, therefore nothing further to be done, whether by further proceedings or by attachment of documents, with regard to these claims.

Second, Tatum’s suggestion (made for the first time in his February 2008 motion to enforce mandate and argued again here) that he was misadvised by his attorney as to how his second degree murder conviction would be scored, and thus that his plea was involuntary, entitles him to no remand or relief. Such claims cannot be discerned from the face of the record and do not, therefore, fall within the purview of a Rule 3.800 motion. See Fla. R.Crim. P. 3.800(a) (providing that a court may “at any time” correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served “when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief”) (emphasis added). At best, these ineffective assistance of counsel/involuntary plea claims are cognizable, if at all, under Rule 3.850 with its two year time limitation — a limitation which had long since passed when these claims were first raised. Fla. R.Crim. P. 3.850(b) (providing that except for motions seeking to vacate a sentence that exceeds the limits provided by law, motions claiming that a plea is involuntary or that a judgment or sentence is otherwise subject to collateral attack must be filed within two years after the judgment and sentence become final); see Towery v. State, 977 So.2d 774, 774 (Fla. 2d DCA 2008) (confirming that a claim that a plea was involuntarily entered based on a scoresheet miscalculation falls within the purview of Rule 3.850); Rankin v. State, 861 So.2d 1222, 1224 (Fla. 2d DCA 2003) (confirming that Rule 3.850 governs a claim that a defendant would not have entered a plea had he been aware of the correct guidelines sentence); West v. State, 935 So.2d 123, 124 (Fla. 4th DCA 2006) (stating that a “defendant may file a rule 3.850 motion to seek withdrawal of his plea based on its involuntary character due to [an] incorrect scoresheet”); see also Ey v. State, 982 So.2d 618, 625 (Fla.2008) (concluding that the two-year time limit imposed by Rule 3.850 begins to run from the date the conviction becomes final and not from the time the defendant learns of attorney mis-advice); Singleton v. State, 981 So.2d 1259, 1261 (Fla. 2d DCA 2008) (concluding that as to claim at issue, “the claim of misadvice does not depend on ‘facts’ that ‘could not have been ascertained by the exercise of due diligence’ and the exception in rule 3.850(b)(1) from the two-year time limitation on the filing of postconviction claims is therefore not applicable.”). There is, therefore, nothing for further determination in this ease.

Accordingly, the order denying Tatum’s June 2005 motion is in all respects affirmed.

      . He was simultaneously sentenced to 40 years in prison, to run concurrent with the sentence imposed in case number 91-42776D, in case number 93-3185B for armed robbery, armed burglary, and burglary. According to one of Tatum’s sworn motions, he was also sentenced to a fifteen year sentence in case number 93-3518B for conspiracy to commit armed robbery and five years in prison for grand theft. He does not complain about these sentences.

      . Although Tatum argues here that this claim was made in his June 2005 motion, no such claim appears in that motion.

      . This presumes, of course, that Tatum’s plea was a guidelines plea, a subject which at this juncture need not be addressed either below or here.


author: ROTHENBERG, J.

text:
    MASTEC, INC., and MasTec North America, Inc., Appellants, v. SUNCOAST UNDERGROUND, INC., Appellee.
    No. 3D09-814.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Rehearing Denied March 4, 2010.

      Carlton Fields, Matthew J. Conigliaro and Stephanie Zimmerman, St. Peters-burg, for appellants.
    Siegfried, Rivera, Lerner, De La Torre & Sobel, Stuart H. Sobel and H. Hugh McConnell, for appellee.
    Before COPE, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

MasTec, Inc., and MasTec North America, Inc. (collectively, “MasTec”) appeal from a final summary judgment entered in favor of Suncoast Underground, Inc., contending that genuine issues of material fact exist and summary judgment was premature. We agree. We therefore reverse and remand for further proceedings consistent with this opinion.

Background

The facts, viewed in the light most favorable to MasTec as the non-moving party, are as follows. MasTec and Suncoast entered into a contract requiring Suncoast to provide underground construction work as a subcontractor for MasTec, which had a contract with Florida Power & Light. The agreement included an indemnification clause providing that MasTec may offset any damages it incurs as a result of Sun-coast’s breach against any amount due to Suncoast.

Pursuant to the agreement, MasTec requested Suncoast perform excavation work in the City of Cocoa. Under the Underground Facility Damage Prevention and Safety Act, chapter 556, Florida Statutes (2005), the excavation work required Sun-coast to report the work to Florida’s “One Call” hotline no less than two business days before any excavation and to provide the type and location of the excavation, along with the excavator’s contact information. The One Call system must notify area utility companies, which are required to mark their underground utility lines within two days, unless they do not have accurate information as to the lines’ location. Where lines are unmarked, the excavator may proceed after two business days but must do so with “reasonable care” using “detection equipment” pursuant to sections 556.105(5)(a) and 556.105(6)(a).

Suncoast called the One Call hotline at 4:10 p.m. on Wednesday, January 4, 2006, and provided the location of its excavation and the name, phone number and email address for its representative. MasTec claims that the phone number provided by Suncoast was inaccurate. On January 6, the City’s representative responded to Suncoast’s hotline call with a “3P” response, indicating that the City did not have accurate information to mark its lines and was requesting that the excavator contact the City for further details. The notification to One Call was posted on the system’s website. At 7:17 a.m. on Monday, January 9, the One Call system sent an email to Suncoast notifying Suncoast of the City’s 3P response. Suncoast began excavating at 8 a.m. that same day, and at 1:45 p.m., it ruptured an unmarked water main.

The City sent a letter to FPL disclaiming all liability and maintaining that Sun-coast was liable for more than $72,000 in repairs because it failed to answer the City’s 3P response. FPL informed Mas-Tec it was holding MasTec liable. Mas-Tec, in turn, notified Suncoast it was holding Suncoast liable and that it would withhold money from other projects covered by the parties’ agreement pursuant to the indemnity provision of their agreement. Suncoast sued to recover the payments owed, alleging that it complied with its statutory requirements and that the City is liable because it failed to timely mark the water line and notify Suncoast. The trial court granted Suncoast final summary judgment on its breach of contract claims and rejected MasTec’s defenses and counterclaims with prejudice. This appeal followed.

Analysis

We review the entry of summary judgment de novo. Aguero v. First Am. Ins. Co., 927 So.2d 894, 897 (Fla. 3d DCA 2005). In awarding summary judgment to Sun-coast, the trial court found that the following facts were established without dispute: (1) the City failed to mark the damaged water line and timely notify Suncoast; and (2) Suncoast complied with its statutory obligations. Although we conclude that the trial court correctly determined that there were no genuine issues of material fact as to the first finding, we conclude that genuine issues of material fact remain as to the second finding, precluding summary judgment.

Did the City Satisfy Its Statutory Obligations?

The first issue we address is whether the City’s communications with the One Call system and Suncoast satisfied its statutory obligation to either mark the utilities or notify the appropriate person or entity that it was unable to do so within the statutory two-day period. Section 556.105(4)(b) requires the member operator (in this case, the City) to communicate with the person making the request (the excavator, Suncoast) if the member operator is unable to respond within two business days. Section 556.105(5)(a) provides: “If a member operator has not located and marked its underground facilities within the time allowed for marking,” then “the excavator may proceed with the excavation, provided the excavator does so with reasonable care, and provided, further, that detection equipment or other acceptable means to locate underground facilities are used.” It is undisputed that the City failed to timely communicate with Sun-coast, the “person making the request,” that it was unable to mark its underground facilities because it lacked sufficient information to do so.

Although the City issued a 3P response to the One Call hotline within two days of the One Call notification of the expected excavation, it had an obligation to contact Suncoast directly. It is undisputed that the City’s January 9, notification to Sun-coast via email — that it was unable to mark the underground facilities — was untimely. MasTec argues that the City, however, has no liability because Suncoast allegedly did not comply with its statutory duty to provide Suncoast with accurate contact information. We are unpersuaded by this argument because, even if Suncoast provided the City with an inaccurate telephone number, it is undisputed that the email address Suncoast provided was accurate and the City only attempted to notify Suncoast by email after the time limitation specified by the statute had expired. We, therefore, conclude that the trial court correctly found that the City failed to mark the underground water line and to timely notify Suncoast. Thus, Suncoast was statutorily permitted to proceed with the excavation.

Did Suncoast Comply with Its Statutory Duty?

Pursuant to section 556.105(5)(a), when a member operator fails to mark an underground facility within the time limit or to notify the excavator that it needs more time, the excavator has an obligation to use reasonable care when proceeding with the excavation. Because the record does not adequately establish what precautions were taken by Suncoast to identify underground utilities during its excavation, we cannot say that Suncoast complied with its statutory obligations. Summary judgment, therefore, was prematurely granted. Accordingly, we reverse the trial court’s order granting summary judgment in favor of Suncoast and remand for further proceedings.

MasTec’s Counterclaims

We also conclude that the trial court erred in granting summary judgment as to MasTec’s counterclaims on the basis that MasTec has not yet incurred any loss because it has paid no damages. MasTec seeks indemnification under the agreement if Suncoast is found to be at fault and MasTec is required to pay damages. Furthermore, Suncoast concedes that the trial court applied the wrong version of section 725.06 when analyzing the contract’s indemnity provision and concluding that the provision is legally unenforceable.

Piercing the Corporate Veil

The trial court found that MasTec and MasTec North America “have blurred the distinction between the parent and subsidiary throughout their dealings with Suncoast” and “neither can avoid liability to Suncoast.” Because the issue of Mas-Tec’s corporate identity was never raised, pled, or argued by Suncoast, the trial court erred in concluding that Suncoast could pierce the corporate veil.

Conclusion

Although the City failed to satisfy its statutory obligation to timely mark the utilities or notify Suncoast that it needed additional information or time to do so, summary judgment was prematurely granted where Suncoast presented no evidence that it satisfied its statutory duty to use reasonable care when proceeding with the excavation. The trial court also erred in granting Suncoast summary judgment as to MasTec’s counterclaims and in piercing MasTec’s corporate veil where the issue was not raised, pled, or argued by Suncoast. Accordingly, we reverse the order under review and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . The City is not a party to this litigation.


text:
    Frantzy JEAN-MARIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2783.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Rehearing Denied March 4, 2010.
    Frantzy Jean-Marie, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS, and CORTINAS, JJ.
   WELLS, Judge.

Frantzy Jean-Marie appeals from an order denying his March 2009 Florida Rule of Criminal Procedure 3.850 motion and the May 2009 amendment to it. We affirm the denial of these voluminous motions, but reverse any portion of the order on appeal that purports to deny Jean-Marie’s claim for ineffective assistance of appellate counsel, which he raised in a subsequent Rule 3.850 amendment.

In the March 2009 motion and the May 2009 amendment, Jean-Marie claims: error in the jury instruction on the crime of burglary; error in a jury instruction regarding the definition of resisting an officer without violence; that his conviction for burglary violated his protection against double jeopardy; that trial counsel was ineffective for advising him not to testify; that trial counsel was ineffective for failing to (a) argue facts related to his arrest, (b) file a motion to suppress, (e) object to a leading question regarding possession of a gun, (d) argue in closing that Jean-Marie did not own, possess or have a gun, (e) argue that a State witness could not accurately testify, (f) argue that the gun found was not what a detective saw being discarded, (g) attack virtually all of the crime scene technicians’ testimony, (h) investigate “other possible alibis,” (i) seek help from private technicians to check for DNA, fingerprint and other crime scene evidence and private investigators to check on prosecution witnesses, mitigating evidence, exculpatory evidence, other possible defenses, and police reports, (j) interview prospective defense, prosecution and expert witnesses, and (k) move to dismiss. He also claims error in failing to grant a judgment of acquittal on all of the charges against him.

The double jeopardy violation about which Jean-Marie complains has already been corrected. See Jean-Marie v. State, 947 So.2d 484, 489-90 (Fla. 3d DCA 2006). The alleged jury instruction errors are properly addressed not on a post-conviction motion, but on direct appeal. See Vining v. State, 827 So.2d 201, 214 (Fla.2002) (citing Thompson v. State, 759 So.2d 650 (Fla.2000) (finding that claims of instructional error are procedurally barred in post-conviction challenges because the claims “could and should be raised on direct appeal”). The remainder of Jean-Marie’s arguments — which we detail above only so as to preclude the necessity of any further consideration of them in the future — are, for the most part, legally insufficient and are, without exception, without merit. The order denying the March 2009 motion and its May 2009 amendment is, therefore, affirmed.

In August 2009, Jean-Marie filed a second amendment to his Rule 8.850 motion. That amendment addresses only the issue of ineffective assistance of appellate counsel and is to be filed in this Court. See Fla. R.App. P. 9.141(c)(2) (petitions “alleging ineffective assistance of appellate counsel shall be filed in the appellate court to which the appeal was or should have been taken”). We therefore reverse any portion of the order on appeal which purports to deny Jean-Marie’s ineffective assistance of appellate counsel claim without prejudice to filing a proper motion in this Court within 90 days of this Court’s mandate.

Finally, in October 2009, while this appeal was pending, Jean-Marie filed yet another “amendment” to his Rule 3.850 motion. However, this time the motion was filed in this Court. This amendment, like the one filed in August 2009, addresses ineffectiveness of appellate counsel, and is stricken without prejudice to refiling a proper Rule 9.141 proceeding.

Affirmed in part, reversed in part.


text:
    Anthony PARKS, Petitioner, v. CITIZENS PROPERTY INSURANCE COMPANY, Respondent.
    No. 3D09-2590.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.

      Anthony Parks, in proper person.
    Philip Cook, Miami, for respondent.
    Before RAMIREZ, C.J., and ROTHENBERG, J„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Anthony Parks petitions this Court for a writ of certiorari seeking review of an order awarding fees to a court-appointed umpire. We deny the petition.

The trial court entered the order under review on October 6, 2008. Parks previously filed an appeal, or in the alternative, a petition for writ of certiorari of a November 4, 2008 order in which the trial court denied Parks’ motion to set aside an order that granted the umpire’s Motion to Protect Special Master/Umpire’s Fee and Creation of Lien on October 6, 2008. On June 10, 2009, this Court dismissed that appeal as untimely. Parks subsequently moved for rehearing to convert the case to a petition for writ of certiorari and for clarification. He later withdrew the motion.

Parks now petitions this Court for cer-tiorari review of the October 6, 2008 order. We note that certiorari review indeed lies to review final orders such as the order now before us, as provided for in rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure. Certiorari review, however, cannot be used to circumvent the Florida Rules of Appellate Procedure that mandate compliance with the time period limitations imposed for the filing of notices of appeal. See Fla. R.App. P. 9.110(b).

Petition denied.

      . Case number 3D09-51. The trial court again considered Parks’ motion to set aside, etc. on November 13, 2008, and the court denied Parks’ motion on the same day.


author: GROSS, C.J.

text:
    DUNKIN' DONUTS FRANCHISED RESTAURANTS, LLC, a Delaware corporation, Appellant, v. 330545 DONUTS, INC., a Florida corporation, Appellee.
    No. 4D08-4930.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.

      René D. Harrod of Berger Singerman, Fort Lauderdale, and Robert L. Zisk of Gray, Plant, Mooty, Mooty & Bennett, P.A., Washington, D.C., for appellant,
    Robert Zarco, Robert F. Salkowski and Mikhael Ann Buchanan of Zarco, Einhorn, Salkowski & Brito, P.A., Miami, for appel-lee.
   GROSS, C.J.

After winning a $90,000 arbitration award, a corporate plaintiff pursued a trial de novo, which resulted in a defense verdict. This appeal concerns the defendant’s attempt to use the arbitration statute to pin attorney’s fees on the individual who controlled the corporate plaintiff. We affirm the trial court’s refusal to hold the individual liable for fees; by stipulation, the individual had been voluntarily dismissed from the lawsuit before trial, so that, under the applicable statute, he was not a “party” subject to a fee award.

Manoochehr Fallah Moghaddam had a franchisee relationship with Dunkin’ Donuts, Inc. He conducted his franchise business with Dunkin’ through a number of corporations. In 1999, Moghaddam and nine of his corporations sued Dunkin’ in a multi-count complaint. An amended complaint eliminated some of the corporate plaintiffs. In 2004, some of the counts of the amended complaint were voluntarily dismissed and others were dismissed or withdrawn in exchange for a payment.

In October, 2004, an arbitrator awarded the plaintiffs $90,000, but the plaintiffs invoked their right to a trial de novo under section 44.108(5), Florida Statutes (2004). On March 30, 2006, Dunkin’, Moghaddam, and the corporate plaintiffs filed a stipulated voluntary dismissal as to all plaintiffs except for 330545 Donuts, Inc., pursuant to Florida Rule of Civil Procedure 1.420(a)(1)(B). The stipulation for dismissal provided:

Both Plaintiffs and Defendants agree to bear their own attorneys’ fees and costs incurred with respect to this claim and the parties that are being dismissed with prejudice.

With leave of court, 330545 Donuts, Inc. filed a second amended complaint as the sole plaintiff.

There was a jury trial. Moghaddam attended as the plaintiffs corporate representative. The jury found for Dunkin’ and awarded no damages.

Dunkin’ then moved for the imposition of attorney’s fees against Moghaddam and 330545 Donuts, Inc. under section 44.103(6), Florida Statutes (2004). The circuit court awarded fees against the corporation, but declined to award fees against Moghaddam. The judge reasoned that after the voluntary dismissal and the filing of the second amended complaint by only the corporate plaintiff, Moghaddam was not a “party” or a “plaintiff’ within the meaning of section 44.103(6). Also, the court ruled that after the voluntary dismissal, it no longer had jurisdiction to award fees against Moghaddam.

The effect of a voluntary dismissal under rule 1.420(a)(1) is

to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of “jurisdiction.”

Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986) (quoting Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 69 (Fla.1978)). However, after a rule 1.420(a)(1) dismissal, a court retains jurisdiction under rule 1.540 “to relieve a party from the act of finality in a narrow range of circumstances.” Miller, 484 So.2d at 1223; see Lee & Sakahara Assocs., AIA, Inc. v. Boykin Mgmt. Co., 678 So.2d 394, 395 (Fla. 4th DCA 1996) (concluding that “the limited jurisdiction conferred on the courts by rule 1.540(b) to correct errors includes the power to correct errors after entry of a voluntary notice of dismissal”).

Because Moghaddam took a stipulated voluntary dismissal under rule 1.420(a)(1)(B), he was no longer a “party” subject to an award of attorney’s fees within the meaning of section 44.103(6). That section provides that a court “may” assess attorney’s fees against a “party” upon a “motion made by either party within 30 days after the entry of judgment.” § 44.103(6). The trigger for assessing fees against a plaintiff occurs when a plaintiff files for a trial de novo after arbitration and “the judgment upon the trial de novo is not more favorable than the arbitration decision.” § 44.103(6), Fla. Stat. (2004).

Statutes authorizing awards of attorney’s fees, such as section 44.103(6), are in derogation of common law and must be strictly construed. See Montgomery v. Larmoyeux, 14 So.3d 1067, 1072 (Fla. 4th DCA 2009) (citing Larkin v. Buranosky, 973 So.2d 1286, 1287 (Fla. 4th DCA 2008) (stating that “ ‘[a]ny statute that deviates from the common law approach must be strictly construed’ ” (quoting Hilyer Sod, Inc. v. Willis Shaw Exp., Inc., 817 So.2d 1050, 1054 (Fla. 1st DCA 2002))). A strict construction of the statute leads to the conclusion that the trial court correctly refused to assess fees against Moghaddam. The voluntary dismissal and the filing of the amended complaint eliminated Mo-ghaddam as a “party” to the lawsuit. The statute contemplates an award of fees against a “party” that demands a trial de novo and receives an unfavorable result relative to the arbitration award. As a “party,” Moghaddam did not participate in the trial de novo.

We reject Dunkin’s argument that for section 44.103(6) we should adopt the third district’s broad definition of the term “parties” in section 57.105, Florida Statutes (1985). In Lage v. Blanco, 521 So.2d 299, 300 (Fla. 3d DCA 1988), the third district held that section 57.105 fees could be assessed against attorneys who had filed a frivolous lawsuit in the name of two corporate plaintiffs, without the authorization or knowledge of the corporations. In so holding, the court adopted a definition of parties that included all “ ‘... who participate in the litigation by employing counsel, or by contributing towards the expenses thereof, or who, in any manner, have such control thereof as to be entitled to direct the course of [the] proceedings.’ ” Lage, 521 So.2d at 300 (quoting Theller v. Hershey, 89 F. 575 (C.C.N.D.Cal.1898)). Lage is a unique ease, where there was no true party plaintiff, only the attorneys who acted in bad faith and without authorization. Its reasoning does not apply to a section 44.103(6) scenario. Section 44.103(6) is directed at the miscalculation of the strength of a case after an arbitration award; the purpose of the statute is to encourage acceptance of the arbitration award, not to punish litigation misconduct. This is not a case where there was evidence that Moghaddam misused the corporate structure. See also Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1118 (Fla.1984) (“When the conception of corporate entity is employed to defraud creditors, to evade an existing obligation, to circumvent a statute, to achieve or perpetuate monopoly, or to protect knavery or crime, the courts will draw aside the web of entity ... and will do real justice between real persons.” (quoting Barnes v. Liebig, 146 Fla. 219, 1 So.2d 247, 254 (1941))).

Apart from our interpretation of section 44.103(6), a separate reason exists to affirm the circuit court’s order. The language of the stipulated dismissal stated that the parties agreed “to bear their own attorney’s fees and costs incurred with respect to this claim and the parties that are being dismissed with prejudice.” Where the dismissal so disposed of the attorney’s fee issue, the circuit court was without jurisdiction to reconsider that claim after trial against the plaintiffs dismissed from the lawsuit. See Lake County v. Ronald E. Fox, P.A., 705 So.2d 702 (Fla. 5th DCA 1998); compare Finkelstein v. N. Broward Hosp. Dist., 484 So.2d 1241, 1242-43 (Fla.1986) (holding that where a “final judgment did not dispose of’ a claim for fees under a prevailing party statute, the trial court had “continuing jurisdiction” to entertain a motion for attorney’s fees) (emphasis added)). Dunkin’ did not bring a rule 1.540 motion seeking to change the language of the stipulated dismissal.

At oral argument, Dunkin’s attorney stated that the attorney’s fee language in the stipulated dismissal was added by the plaintiffs’ attorney without the agreement of Dunkin’. This claim finds support on the face of the stipulation, which indicates that the plaintiffs’ attorney signed the stipulation on behalf of Dunkin’s attorney, with his permission. Apparently, after the stipulated dismissal was filed, the parties agreed to pretend that the attorney’s fee language in the dismissal did not exist. However, attorneys cannot stipulate to give a court jurisdiction. See Meyer v. Meyer, 525 So.2d 462, 463 (Fla. 4th DCA 1988) (quoting Oyer v. Boyer, 383 So.2d 717, 718 (Fla. 4th DCA 1980)). If the stipulated dismissal did not incorporate the parties’ agreement, Dunkin’ should have brought a rule 1.540 motion to change it.

We have considered the arguments concerning the guaranty and find them to be without merit.

Affirmed.

TAYLOR and MAY, JJ., concur.

      . In pertinent part, rule 1.420(a)(1)(B) provides that "an action may be dismissed by plaintiff without order of court ... by filing a stipulation of dismissal signed by all parties who have appeared in the action.”

        . We also distinguish Zweibach v. Gordimer, 884 So.2d 244 (Fla. 2d DCA 2004), a section 57.105 case that held that an officer and director of a dissolved corporation could be held liable for fees in light of section 607.1421(4), Florida Statutes (1997), which makes an officer or director of a dissolved corporation "personally liable for the debts, obligations, and liabilities” of a corporation. This case involves neither a dissolved corporation nor a section 57.105 claim.

      . We note that Florida Rule of Civil Procedure 1.525 “establishes a bright-line time limit requirement for motions for costs and attorneys fees.” State Farm Mut. Auto. Ins. Co. v. Stylianoudakis, 946 So.2d 647, 648 (Fla. 4th DCA 2007).

      . The plaintiffs’ attorney who signed the stipulation is not one of the attorneys on the appellee's brief. Dunkin’s attorney has moved to supplement the record with emails supporting his position, but which were not brought up in the circuit court. Because this court is not one that can establish disputed facts, we have denied the motion.


author: LEVINE, J.

text:
    David COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3407.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant appeals his conviction for failure of a sex offender to provide truthful or accurate information regarding his address, claiming the trial court erred in denying his motion to suppress his confession. The issue presented is whether the detective’s question to appellant was likely to elicit an incriminating response and, therefore, required the administration of Miranda warnings. We answer the question in the affirmative and reverse.

Appellant was required as a convicted sex offender to register his home address with law enforcement in 2006 and 2007. The address appellant provided was 1698 Blount Road, the address for a local church, Saint Lawrence Chapel. In December 2007, a detective went to the listed address to confirm if appellant, in fact, lived at that address. The detective spoke to the assistant executive director of the chapel who said that although she recalled receiving mail for appellant, she returned the mail and never saw appellant. Saint Lawrence Chapel is a daytime homeless shelter, without sleeping arrangements, open only from 8:30 a.m. to 8:30 p.m.

The detective went next door to the Broward Outreach Center, which provides temporary residential housing for the homeless. The director confirmed that appellant never resided at the center.

Shortly after the detective’s visit, appellant came to Saint Lawrence Chapel to collect his mail. Appellant was subsequently arrested and convicted of two counts of failure of a sexual offender to provide truthful or accurate information concerning his address.

During trial, appellant objected to the admission of his statement since it was elicited without Miranda warnings. Following appellant’s arrest, the detective asked appellant, “Would you like to make a post-Miranda statement?” Appellant, in response, asked what the criminal charges were, and the detective told him. At that point, before Miranda warnings were given, appellant admitted that he never lived at the shelter and that he only received his mail there. The trial court denied the motion to suppress, finding that the statements were not a result of any law enforcement interrogation.

A trial court’s ruling on a motion to suppress is presumed correct, and the appellate court must interpret the evidence and reasonable inferences in a manner most favorable to sustaining the trial court’s ruling. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). We defer to the trial court’s factual findings that are supported by competent, substantial evidence, while we review legal issues de novo. Id.

Miranda warnings are required only when the individual is in custody and subject to interrogation. Timmons v. State, 961 So.2d 378, 379 (Fla. 4th DCA 2007); see also Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (“[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”).

The United States Supreme Court in Innis explained in detail the concept of interrogation:

[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.

Id. at 301, 100 S.Ct. 1682 (footnotes omitted).

Case law is replete with examples of where a statement made by a law enforcement officer to the suspect, without benefit of Miranda warnings, is a type of interrogation prohibited by Innis. Where the agent made a specific reference to “how much trouble you are in,” that reference amounted to an interrogation requiring administration of Miranda. State v. Lebron, 979 So.2d 1093, 1095 (Fla. 3d DCA 2008). Where the law enforcement officer mentioned to the suspect that he was “looking at twenty-five years” for his involvement in the case, the officer’s statements “were reasonably likely to elicit an incriminating response from [the defendant].” Larson v. State, 753 So.2d 733, 734-35 (Fla. 2d DCA 2000). Since the defendant was not advised of his right against self-incrimination and the right to counsel, Miranda prohibited the use of the defendant’s statements. Id. at 734.

Where the defendant invokes his right to silence after being advised of his Miranda warnings, a statement by the law enforcement officer directed to the defendant could constitute improper interrogation. In Origi v. State, 912 So.2d 69, 70 (Fla. 4th DCA 2005), the trooper said to the defendant, after his invocation of rights, “That’s a lot of drugs you had.” We held that this statement directed to the defendant was clearly the “functional equivalent of interrogation.” Id. at 73. We also found the nature of the statement to be “accusatory” and “reasonably likely to elicit an incriminating response.” Id.

In Pirzadeh v. State, 854 So.2d 740, 742 (Fla. 5th DCA 2003), where the defendant invoked his right to counsel after being informed of his Miranda rights, the court found that the officer notifying the defendant of the crimes charged, possible sentence, and lack of bond was the “functional equivalent” of an interrogation likely “to elicit an incriminating response from the defendant.” “Once the detective told [the defendant] about the nature of the charges against him, he should have terminated the confrontation as it became clear that continuing the conversation would lead to an incriminating response.” Id. at 742-43.

In the present case, asking appellant to make a “post-Miranda ” statement, without the benefit of the Miranda warnings, is the type of questioning likely to elicit an incriminating response. Such questioning, without warning, is prohibited by Innis and Miranda itself. As Chief Justice Rehnquist stated in Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” As such, we find that the detective erred by failing to give Miranda warnings prior to his questioning of appellant.

Finally, we are asked to affirm on the basis of harmless error. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). In this case, although there was evidence from the associate director of the chapel and the director of the outreach center that appellant did not live at the listed premises, there was other, somewhat conflicting evidence that appellant received his mail at the premises and had just recently come there to retrieve mail. In the end, it was appellant’s unequivocal admission that he did not live at the shelter that dominated the evidence presented. Because the question is whether “there is a reasonable possibility that the error affected the verdict,” we cannot say that the defendant’s admission did not affect the verdict. Id.

For the foregoing reasons, we find the error was not harmless and we reverse and remand.

Reversed.

WARNER and STEVENSON, JJ., concur.


author: MAY, J.

text:
    Charlene ROSA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2778.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.
    Rehearing Denied March 12, 2010.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

One little word- — polygraph—does not merit a reversal of the defendant’s conviction for first degree premeditated murder and life sentence. Among other issues, the defendant argues the trial court erred in denying a defense motion to cross-examine a state witness concerning the results of a polygraph examination and the court’s denial of a subsequent motion for mistrial. We find no error and affirm.

The State indicted the defendant for first degree premeditated or felony murder for the stabbing death of the victim. The defendant worked as a caretaker for the victim, who was in her 70’s. The victim often required her caretakers to come back to collect their money days after it was due.

The victim was seen alive on July 3, 2002. Although the date of death is uncertain, phone records and an autopsy report indicate that the victim died on July 4, 2002. On that date, the victim’s neighbor saw the defendant outside, then walk into the victim’s apartment, and later leave hurriedly alone in her burgundy Ford F-150 truck.

A friend of the defendant’s testified that the defendant had been scheduled to travel to Jamaica on July 11, 2002, and had asked her to care for the victim while she was gone. On July 4, 2002 the defendant called her friend from the victim’s phone and told her that the victim was not paying her monies that were due. The defendant also changed her plane reservation from July 11th to July 5th, and again changed the reservation to leave on the evening of July 4th. She told her friend that she needed to leave early because her child was sick.

The police discovered the victim’s body on July 17, 2002. The victim had been stabbed forty-three times. The only signs of criminal activity were in the bedroom and a small amount of blood transfer in the hallway. The defendant left three fingerprints at the scene. None of the prints contained blood.

The police asked the defendant’s friend to tape record her conversations with the defendant. The tape recordings were entered into evidence, without objection, and played for the jury. In one controlled call, the defendant explained that she had sent an acquaintance known as Dutch to collect money, and that Dutch told her the victim had screamed at him and threatened to call the police. Dutch told her that he may have hit the victim with the phone.

Another of the defendant’s friends also made controlled calls. In one unrecorded call, the defendant stated that she had gone to a lady’s house to collect some money. In another controlled call, the defendant stated that she did not know what happened to the lady, but she probably died. On yet another call, the defendant continuously denied knowing anything about the victim.

The homicide investigation took two to three years until the Jamaican authorities arrested the defendant. A member of the Jamaican Fugitive Apprehension Team testified that the defendant was using a passport in the name of “Alicia Lueyen.” The defendant explained that “Alicia” was the name of a relative of her ex-husband and “Lueyen” was her ex-husband’s last name that she kept.

After her arrest, the defendant voluntarily told an authority that she worked as an aide for a woman and she confronted her about money that was owed with her friend “Frost.” She claimed the woman stabbed her with a knife, and showed the resulting scar on her hand. This led to the woman being struck in the face by Frost. They took the knife, leaving the woman on the floor bleeding, and drove away in the vehicle that had been described by the neighbor.

The defense contended that Dutch committed the murder. To support this theory, the defense attempted to introduce evidence that Dutch had failed a polygraph test administered by the Office of the State Attorney. The polygraph report revealed that two of Dutch’s answers to polygraph questions showed deception: (1) was he ever at the victim’s apartment; and (2) was he present when she was killed. The defense orally moved to cross-examine Dutch about the polygraph results. After some discussion, the court denied the defense motion. The court specifically found that the “potential relevance for impeachment and otherwise is far outweighed by the potential prejudice.”

The State called Dutch as a witness. He testified that he had collected some debts for the defendant, but he did not accompany her to the victim’s house for that purpose. During cross-examination, defense counsel asked Dutch about his trip to the State Attorney’s office.

[Defense Counsel] Did you come down here to the courthouse?

A. Pardon me?
Q. Do you recall coming down here to the courthouse?
A. Yeah, I came to the courthouse.
Q. You came to the State Attorney’s Office?
A. Yeah, I came to do a polygraph.
Q. I don’t have any further questions.

At the conclusion of Dutch’s testimony, defense counsel objected to Dutch’s response concerning the polygraph. He suggested the only way to cure the impression left by the testimony was to allow him to impeach Dutch with the polygraph results. The trial court responded:

Whether he passed or he didn’t, he said he came to take a polygraph, he didn’t say he took the polygraph, and the fact is, I’m going to tell the jury whether he did or didn’t take the polygraph, or whatever occurred, is irrelevant, not to be considered by them. The case law is very clear on this.

When the court inquired about a curative instruction, defense counsel repeated the only way to cure the problem was to allow him to impeach Dutch with the results of the polygraph. The court then asked if defense counsel waived a curative instruction. Defense counsel responded: “Well, you’re going to give the instruction you feel is appropriate.” Defense counsel then suggested that the court instruct the jury that the witness went to take a polygraph and whether he passed or not should not be considered by the jury. The court then gave the following instruction:

Ladies and gentlemen, there was a reference by the witness that he came to the courthouse to take a polygraph examination. Polygraph examinations are clearly not relevant, not admissible, and not before you. Whether he did or did not ultimately take that examination, or anything that occurred, is completely irrelevant and not something you should consider and not something before you. Okay? It just happened to be blurted out by the witness. So, A, it’s not before you whether he did actually take the polygraph; and, B, if he did take the polygraph it’s not before you what the results are.
What I’m telling you now is you are to completely disregard that answer that was blurted out. Do we understand that? Don’t assume anything. Don’t speculate, oh, he took it, he passed, or he took it, he failed. Don’t assume that he took it, don’t assume whatever any results are. Do we understand that? Can you promise me that? That’s kind of crucial.

Trial for that day ended after the curative instruction.

The next morning, defense counsel moved for a mistrial arguing Dutch’s testimony had left the jury with the impression that he had passed the polygraph, the testimony was prejudicial, and the curative instruction was insufficient to remove the taint. The court asked whether there was anything else it could do to “inoculate the jury.” Defense counsel answered “no.” After a lengthy discussion, the court denied the motion for mistrial. Defense counsel marked the polygraph report as an exhibit for appellate purposes.

The State made the following comment during closing argument.

This is a case that is building. The moment that name Dutch came out, as a good law enforcement officer, as a good investigator, you have to consider all possibilities now, all bets are off. So it’s not that anybody thought he really did it. I mean, everything she is saying, it’s all confusing.

Defense counsel did not object to the statement. After the State’s closing, defense counsel renewed the motion for mistrial and argued that the State’s closing had increased the prejudice of Dutch’s reference to the polygraph examination. The court denied the motion.

The jury returned a guilty verdict on one count of first degree murder. The court sentenced the defendant to life in prison without the possibility of parole.

The only issues we address concern the trial court’s handling of the polygraph. First, the defendant argues that the court erred in initially denying the defendant’s request to impeach Dutch with the results of the polygraph. Second, the unanticipated polygraph testimony became particularly prejudicial because it left the jury with the impression that Dutch passed the test, which directly contradicted the defendant’s theory that Dutch had committed the murder. And third, the error was compounded when the prosecutor argued in closing that Dutch had never really been a suspect.

The State has several responses. First, the issue was not preserved because the objection was untimely. Second, even if preserved, the trial court did not abuse its discretion when it denied the request to impeach Dutch with the results of the polygraph examination. Third, the trial court cured any error by its instruction. Fourth, the court did not err in denying the motion for mistrial because the jury was neither informed of whether the polygraph was taken nor of the actual results. And fifth, the error, if any, was harmless.

The admissibility of evidence lies in the sound discretion of the trial court; we will not reverse a ruling unless there has been a clear abuse of that discretion. Ray v. State, 755 So.2d 604, 610 (Fla.2000). This general rule is tempered by Florida’s “more conservative approach to the admission of [polygraph] evidence.” McFadden v. State, 540 So.2d 844, 846 (Fla. 3d DCA 1989). Absent an agreement between the state and defense, the results of a polygraph examination are inadmissible because they have not been shown to be sufficiently reliable to warrant their use in judicial proceedings. See United States v. Scheffer, 523 U.S. 303, 309, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); Davis v. State, 520 So.2d 572 (Fla.1988).

Here, there was no stipulation. Thus, initially the trial court properly denied the defense request to cross-examine Dutch about the polygraph examination. When Dutch indicated that he had gone to the Office of the State Attorney to take a polygraph, the issue arose for a second time.

While defense counsel did not immediately object, as soon as the questioning concluded, counsel brought the issue to the court’s attention. The court again advised the defense it would not allow cross-examination of Dutch and provided a thorough curative instruction, advising the jury not to consider the testimony. The court went out of its way to fashion an instruction to protect any harm the single word may have caused. The court also noted that there had been no indication that Dutch took the polygraph or what the results of the polygraph were.

A motion for mistrial is left to the sound discretion of the trial court. We review such decisions for an abuse of discretion. Salazar v. State, 991 So.2d 364, 371 (Fla.2008). A mistrial should be granted only when the error vitiates the entire trial. Id. at 372. “[N]ot every reference to a polygraph exam is inadmissible, nor does every improper admission of the taking of a polygraph exam require a mistrial.” Olivera v. State, 813 So.2d 996, 998 (Fla. 4th DCA 2002) (quoting McFadden, 540 So.2d at 845). We find the mention of the word polygraph in this case significantly distinguishable from the admission of having taken a lie detector test in Olivera.

In Olivera, the state unintentionally elicited that its only key witness had taken a lie detector test. 813 So.2d at 997. The trial court sustained the objection, gave a short curative instruction, and denied the motion for mistrial. Id. The jury convicted the defendant on all charges. Id. at 998. But we reversed, based on the unique facts of the case. Id. at 999.

In Olivera, there was no physical evidence and no witnesses placing the defendant at the scene. Id. at 997. The entire case was built on one witness alone, who testified that the defendant had made in-culpatory statements to him. Id. at 998. That witness had not come forward until two years following the murder, and only after being threatened with deportation by law enforcement and eviction by family members unless he implicated the defendant. Id. at 997. He was the son of the dead perpetrator, was on probation, had admitted to using marijuana, and had made prior inconsistent statements denying any knowledge of the crime. Id. In short, he had been significantly discredited by defense counsel. “Thus, unless the jury believed that he had passed the lie detector test, it is hard to fathom that his testimony would have led to the defendant’s conviction....” Id. at 998.

In Olivera, we cautioned “that the mention of the ‘three little words’ [lie-detector test] does not, ipso facto, require” a reversal. Id. This is just such a case. Here, Dutch’s mere mention that he went to the state attorney’s office to take a polygraph is not the same as indicating that he had in fact taken the exam or the results of the exam. Cf. Walsh v. State, 418 So.2d 1000, 1002 (Fla.1982). The comment was not elicited by the State, but came as a result of defense counsel’s cross-examination when it was clear that defense counsel wanted to cross examine Dutch about the polygraph.

Dutch did not suffer the same credibility issues as the witness in Olivera. There were multiple witnesses and substantial evidence inculpating the defendant. A friend of the defendant confirmed a conversation in which the defendant complained about not being paid for services. Other cell phone records confirmed numerous calls from the victim’s location. The defendant left the country abruptly. Recorded conversations suggested the defendant’s involvement leading to the death of the victim. Under the facts of this case, we find no error in the trial court’s denial of the motion for mistrial.

This holding is bolstered by the great lengths taken by the trial court to insure that the one little word was not considered by the jury in its deliberations. The court clearly and forcefully advised the jury that polygraph examinations were irrelevant, that it was neither to consider whether a test was taken nor the possible results. The court instructed the jury to completely disregard Dutch’s answer. At the close of the trial, the trial court instructed the jury that it was only to consider the evidence introduced in the trial, and that if it disregarded his instructions the verdict would be a miscarriage of justice. We further hold that the court’s curative instruction cured any prejudice that may have resulted.

For these reasons, we affirm the defendant’s conviction and sentence. We find no merit in the other issues raised.

Affirmed.

POLEN and GERBER, JJ., concur.

      . While defense counsel waited to object until the end of Dutch’s testimony, he later renewed the objection, and moved for mistrial. Defense counsel explained to the court that he did not immediately object so as to not draw attention to the remark. We find the issue sufficiently preserved.


text:
    Geoffrey L. OLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5939.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2010.
    Geoffrey L. Olin, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

KAHN, BENTON, and ROBERTS, JJ., concur.


text:
    Adam JOYNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0029.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2010.
    Adam Joyner, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

KAHN, BENTON, and ROBERTS, JJ., concur.


text:
    Eddie Lee BANKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6595.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2010.
    Eddie Lee Banks, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1286 (Fla.2004).

KAHN, BENTON, and ROBERTS, JJ., concur.


text:
    Christopher Donovan HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1086.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2010.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Moore v. State, 880 So.2d 826 (Fla. 1st DCA 2004); Collie v. State, 710 So.2d 1000 (Fla. 2d DCA 1998).

ROBERTS, CLARK, and ROWE, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Kendal FORD, Appellee.
    No. 3D09-1144.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 2010.

      Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellee.
    Before WELLS, CORTESIAS, and SALTER, JJ.
   PER CURIAM.

Twenty-year-old Kendal Ford was charged with grand theft of a vehicle. He had been previously convicted of five felonies, four of which were violent, in three separate cases. The State informed the trial court that Ford’s sentencing guidelines dictated 21.055 months to five years in state prison and that restitution would be sought. The State proposed a plea offer of 21.055 months, but the court offered two years of reporting probation, fifty hours of community service, and restitution “based on the need for restitution,” noting that Ford “currently has a job.” Ford accepted the court’s offer and was adjudicated guilty. The State appeals.

The Florida Criminal Punishment Code states that “[t]he primary purpose of sentencing is to punish the offender.” Section 921.002(l)(b), Fla. Stat. (2009). Therefore, a trial court’s decision to impose a downward departure sentence will be sustained on review only “if the court applied the right rule of law[,] ... if competent substantial evidence supports the ruling,” and if the court did not abuse its discretion in deciding that “departure is indeed the best sentencing option for the defendant in the pending case.” Banks v. State, 732 So.2d 1065, 1067-68 (Fla.1999). As the record before us fails to make the required showing, it is irrelevant whether the sentence is one the trial court could have legally imposed.

A victim’s need for restitution is a valid reason for a downward departure sentence only if competent, substantial evidence shows that “[t]he need for payment of restitution to the victim outweighs the need for a prison sentence.” Section 921.0026(2)(e), Fla. Stat. (2009); see Banks, 732 So.2d at 1067. In other words, “there must be some evidence of the victim’s need.” Demoss v. State, 843 So.2d 309, 312 (Fla. 1st DCA 2003). The trial court must make “findings such as the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment.” State v. Owens, 848 So.2d 1199, 1202 (Fla. 1st DCA 2003) (citing State v. Petringelo, 762 So.2d 965, 965 (Fla. 2d DCA 2000)). Here, there was no evidence presented of the victim’s need or even the likely amount of restitution. The trial court’s sole finding was that Ford had a job, a fact that has no bearing on the victim’s need. Furthermore, “there is no reason that restitution could not be made a condition of any post-incarceration probation.” State v. White, 755 So.2d 830, 832 (Fla. 5th DCA 2000); see § 775.089, Fla. Stat. (2009); § 948.03(l)(e), Fla. Stat. (2009).

Ford argues that although the record does not support the departure under section 921.0026(2)(e), it does support a departure under section 921.0026(2)(?), Florida Statutes (2009), which allows youthful offender sanctions if the defendant is between eighteen and twenty years old, is pleading guilty to a felony, and has never before been sentenced as a youthful offender. However, the trial court made no oral or written findings that it considered youthful offender sanctions as a basis for a downward departure, as is required by statute. See § 921.002(3), Fla. Stat. (2009) (“Any sentence imposed below the lowest permissible sentence must be explained in writing .... ”); accord § 921.00265(2), Fla. Stat. (2009) (requiring a “written statement ... delineating the reasons for the departure”). Ford cannot assume that the trial court would have imposed youthful offender sanctions in lieu of a downward departure for restitution, as such sanctions are discretionary. Woodson-Kenon v. State, 963 So.2d 347 (Fla. 4th DCA 2007).

For the foregoing reasons, we vacate the departure sentence imposed and remand for sentencing before a different judge, where the defendant may elect to either withdraw his plea or be resentenced within the guidelines.

Reversed and remanded.


text:
    Jorge RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3259.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 2010.

      Jorge Rodriguez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Jorge Rodriguez (“Rodriguez”) appeals the trial court’s order denying his rule 3.850 motion for postconviction relief. We affirm the denial of his motion regarding the claims alleged in grounds (2) and (3) and reverse as to the claims alleged in grounds (1), (4), (5), and (6). If the trial court summarily denies these claims on remand, it must attach those portions of the record which conclusively refute these claims, or it must conduct an evidentiary hearing.

A jury found Rodriguez guilty of burglary of an unoccupied conveyance and misdemeanor battery. However, Rodriguez was acquitted of aggravated battery, and during the trial, the State nolle prossed the criminal mischief charge. This Court affirmed the judgment and sentence, Rodriguez v. State, 11 So.3d 959 (Fla. 3d DCA 2009), and issued its mandate on June 23, 2009. On September 9, 2009, Rodriguez filed the instant motion, which was summarily denied by the trial court.

In his motion for postconviction relief, Rodriguez makes the following claims:

(1) Defense counsel deprived the defendant of his right to a fair and impartial trial and his right to effective assistance of counsel by failing to move for a mistrial when the collateral evidence was made a feature of the trial.
(2) The trial court and defense counsel deprived the defendant of his right to a fair trial when the State chose to nolle prosse the criminal mischief charge.
(3) The defendant was deprived of his right to a fair trial because defense counsel failed to move for a new trial after the trial court permitted the prosecutor to hand the verdict form to the jury.
(4) Defense counsel provided ineffective assistance of counsel by failing to object to the trial court’s answer to a question posed by the jury during its deliberations.
(5) Defense counsel provided ineffective assistance of counsel by failing to convey a favorable plea offer by the State.
(6) The cumulative effect of defense counsel’s errors deprived the defendant of a fair trial.

Claims (2) and (3) could have been raised on direct appeal and, therefore, are procedurally barred, see Esquivel v. State, 995 So.2d 575 (Fla. 3d DCA 2008), and/or of no merit. The remaining claims, however, must be conclusively refuted by the record or resolved by way of an evidentia-ry hearing. We therefore affirm the trial court’s summary denial as to claims (2) and (3) and reverse the remainder of the trial court’s order denying Rodriguez’s motion for postconviction relief, and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.


text:
    Damian Leander KELLY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2537.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 2010.
    Damian Leander Kelly, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


author: SUAREZ, J.

text:
    Byron D. WALLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2802.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 2010.
    Byron D. Waller, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

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

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    T.D.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3897.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See C.E.L. v. State, 24 So.3d 1181 (Fla.2009).

STEVENSON, MAY and LEVINE, JJ., concur.