author: LAWSON, J.

text:
    Gail L. BOYLE, Appellant, v. Thomas H. BOYLE, Appellee.
    No. 5D09-429.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.
    Mark S. Peters, of Eisenmenger, Berry & Peters, P.A., Viera, for Appellant.
    Robert M. Marasco, Rockledge, for Ap-pellee.
   LAWSON, J.

Gail Boyle (“the wife”) appeals from a final judgment dissolving her twenty-five year marriage to Thomas Boyle (“the husband”). She asserts that: (1) the trial court’s valuation of marital assets on the date of separation, six years prior to filing for dissolution, was unreasonable in light of the parties’ continued financial ties after separation; (2) the trial court’s unequal distribution of assets was also unreasonable in light of the nominal alimony award; and (3) there were insufficient facts to support the court’s distribution to the husband of all assets accumulated in the husband’s 401K account after separation. We agree that relief is warranted with respect to the second issue raised, and reverse for reconsideration of the distribution scheme.

The parties married in 1983 and separated in April 2001 without entering into a formal separation agreement. Almost six years later, in March 2007, the wife filed a petition for dissolution. Trial commenced in July 2008. By the time of trial, the parties’ three children were all adults. The trial court entered the final judgment on appeal in January 2009.

When the parties separated in 2001, the husband worked at Lowe’s and had a 401K account valued at $6,451.67. The parties did not own a home, and had very few assets. Although there was no formal separation agreement, the husband gave the wife $10,000 to move and $1,400 in monthly cash (plus other regular financial support, such as health insurance coverage) during the term of the separation. The parties agreed on a co-parenting plan in which the children spent eight out of fourteen nights with the wife and six with the husband.

After separation, the husband and his employer regularly contributed to his 401K account. It grew in value to $163,000 on the filing date, and then declined because of market conditions to $121,927.11 by the trial date. Although the trial court inquired about the amount of passive accumulation in the account, no evidence was presented on this issue. The husband also acquired a Benefit Restoration Plan after separation, which was valued at $23,467.88 as of the filing date.

After their separation, each party maintained separate households, bank accounts and credit cards, and each purchased separate cars. The cars were equally valued at $5,000 on the filing date. Both parties accumulated credit card debt prior to the date of filing — the wife owing $6,609.25, and the husband owing $11,158. The husband also bought a house after separation, which had $98,000 in equity by the time of trial. Based on this and other evidence, the trial court concluded that the parties “essentially operated separate households” and “led their own life” after separation. The husband’s employment at Lowe’s was terminated four months prior to trial, and he was unemployed at the time of trial. The wife had devoted herself to raising the couple’s children during most of the long-term marriage. After the separation, the wife was able to find lower-level full-time employment, earning at most between $10 and $11 per hour.

Although the court indicated it would have used the separation date to identify marital assets if it had been authorized to do so, it was constrained to designate marital assets using the filing date. See, e.g., Willman v. Willman, 944 So.2d 1151 (Fla. 1st DCA 2006) (“In the absence of a valid separation agreement, a married couple’s assets remain “marital” until the date dissolution papers are filed.”). Thus, the husband’s house, entire 401K account, and Benefit Restoration Plan were designated marital assets. However, because the court concluded that the parties had “truly separated” in April 2001, it decided to “adjust the distribution to reflect the assets and liabilities as of that date.” Contrary to the wife’s argument, this was not an abuse of discretion. See, e.g., Heslop, 716 So.2d at 278 (“The law has been clearly established that a lengthy separation is a legally sufficient justification for a court’s disparate treatment of marital assets.”); Temple, 519 So.2d at 1054 (finding no abuse of discretion for trial court to consider lengthy separation as justification for disparate treatment); Ross, 566 So.2d at 56 (following Temple ). Of course, since most of the assets to be distributed were accumulated by the husband after the separation date, this resulted in a significant disparity in the ultimate awards. The husband received a net distribution valued at $227,236.99. The wife’s net distribution totaled only $11,724.49 (which included a $10,000.00 attorney’s fee award).

With respect to alimony, the trial court correctly found that the wife qualified for and needed permanent alimony. However, the court only awarded a nominal amount of alimony, finding that the husband could not afford to pay any more in light of the termination of his job at Lowe’s. As the wife correctly argues, this decision should not have been made independently of the asset distribution decision. In other words, the trial court erred by failing to consider the assets awarded to the husband in the final judgment as a potential source of alimony. See § 61.08(2)(d), (g), Fla. Stat. (directing trial court to consider parties’ financial resources, marital and nonmarital assets and liability distributed to each party and all sources of income, in determining alimony); see also, Diffenderfer v. Diffenderfer, 491 So.2d 265, 267 (Fla.1986) (holding that retirement benefits may be considered marital property or as a source of income for alimony, but courts should be careful not to double count); Donoff v. Donoff, 940 So.2d 1221 (Fla. 4th DCA 2006) (“Property distributed to a spouse in dissolution of marriage, even a pension plan, must be considered a source of income in determining the amount of income available to a spouse seeking alimony.”). Alternatively, as the wife suggests, the trial court could have adjusted the equitable distribution scheme to account for the husband’s limited ability to pay the needed alimony in light of his unemployment. Hamlet v. Hamlet, 583 So.2d 654, 657 (Fla.1991); Doyle v. Doyle, 789 So.2d 499 (Fla. 5th DCA 2001) (because the remedies of alimony, child support and equitable distribution are interrelated parts of an overall scheme, they should be viewed as a whole, not piecemeal).

Accordingly, we reverse the final judgment and remand with instructions that the trial court reconsider the entire scheme. Guobaitis v. Sherrer, 18 So.3d 28, 33 (Fla. 3d DCA 2009).

REVERSED AND REMANDED WITH DIRECTIONS.

ORFINGER and TORPY, JJ., concur.

      . The husband argues that "[m]any courts have held that assets and liabilities acquired after separation are non-marital. However, the cases he cites in support of this assertion are either not current or do not support his assertion. In Moon v. Moon, 594 So.2d 819 (Fla. 1st DCA 1992), the appellate court remanded for a determination of whether the portion of the husband's retirement account acquired after separation was a marital or non-marital asset, but this case was decided under a former version of section 61.075, which gave the trial court discretion to use a date other than the filing date to identify marital and non-marital assets and liabilities. Thus, Moon does not comport with the current version of the statute. Neither Heslop v. Moore, 716 So.2d 276 (Fla. 3d DCA 1998) nor Palermo v. Palermo, 649 So.2d 309 (Fla. 4th DCA 1995) involved determinations that property acquired after separation was non-marital, but rather, that separation was a basis to unequally distribute such marital assets. Finally, the husband asserts that in Ross v. Bandi, 566 So.2d 55 (Fla. 4th DCA 1990), the court held that "the trial court erred when it determined the Husband’s corporate stock [acquired after separation] to be marital property.” (A.B. 13). However, a close reading of Ross reveals that this was not the holding. Instead, the husband in Ross argued that the trial court erred in determining his stock marital property. Although the court indicated that it found merit in the husband’s argument, it reversed on the basis of its decision in Temple v. Temple, 519 So.2d 1054 (Fla. 4th DCA 1988), which upheld an unequal distribution of a marital asset-a husband’s stock acquired after separation. The bottom line is that while trial courts can no longer identify assets acquired after separation as non-marital, they can use the separation as a basis to unequally distribute those assets.

      . The wife is correct that she should have been awarded not only half of the value of the husband’s 40IK on the date of separation, but also half of the passive investment income that accumulated after separation on that sum. However, because the wife did not present the trial court with an evidentiary or other basis to determine this additional amount, we find no trial court error as to this point (the wife’s third argument on appeal).


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    G.S.P., Appellant, v. K.B., n/k/a K.M., Appellee.
    No. 2D08-2350.
    District Court of Appeal of Florida, Second District.
    March 19, 2010.

      Michael B. Steeves of Michael B. Steeves, P.A., Clearwater, for Appellant.
    James R. Schaffer of James R. Schaffer, P.A., Tampa, for Appellee.
   WALLACE, Judge.

G.S.P. (the Father) appeals an order that modified a final judgment of paternity by increasing the amount of child support he is obligated to pay and that awarded additional child support to K.B. (the Mother) retroactive to the date of the filing of her petition for modification. Some of the Father’s challenges to the trial court’s findings concerning expense and income items discussed below have merit. Therefore, we reverse in part and remand for the trial court to enter an amended order in accordance with this opinion. We decline to discuss the remainder of the issues raised by the Father, and we affirm the trial court’s order in all other respects.

I.STANDARD OF REVIEW

The standard of review from a grant or denial of a petition for modification of a child support award is abuse of discretion. See Seward v. Fla. Dep’t of Revenue, 794 So.2d 614, 615 (Fla. 2d DCA 2001). This court will affirm the award of child support if it is supported by substantial, competent evidence in the record. See Reddick v. Reddick, 728 So.2d 374, 375 (Fla. 5th DCA 1999).

II.HEALTH CARE EXPENSES

The trial court’s award for retroactive child support is based, in part, on the trial court’s finding that the Mother maintained health, dental, and vision insurance on the minor child at the rate of $265 per month “during all relevant time periods.” The Father argues that the Mother’s affidavits show that she paid only $189.76 per month for health care expenses through the end of 2005 and that the figure increased to $265 per month from January 2006 forward. Our review of the record supports this claim. Although we note that the $189.76 figure does not include dental insurance premiums as does the later $265 figure, the Mother’s earlier affidavits do not include any expense for dental insurance or other medical costs.

Accordingly, on remand, the trial court shall amend the order granting the Mother’s motion for modification of final judgment of paternity to reflect an award allowing for health, dental, and vision insurance costs of $189.76 per month before January 1, 2006, and $265 per month after that date.

III.CHILD CARE EXPENSES

The trial court found that the Mother had incurred day-care expenses in the amount of $224 per month “from 2003 to 2006.” The child support guidelines worksheets attached to the modification order reflect that the trial court awarded the Mother seventy-five percent of this amount, or $169 per month, from 2003 to 2006. However, our review of the record indicates that the Mother stopped paying for child care in August 2005. On remand, the trial court shall adjust the child support guidelines worksheets as necessary to reflect this fact and shall adjust the child support award accordingly.

IV. ADJUSTMENTS TO INCOME FOR PERSONAL EXPENSES PAID BY THE FATHER’S SUB-CHAPTER S CORPORATION

“In determining the parties’ income levels under the child support guidelines, the court may consider ‘[rjeimbursed expenses or in kind payments to the extent that they reduce living expenses.’” Dep’t of Revenue v. Hinnerschietz, 850 So.2d 625, 626 (Fla. 2d DCA 2003) (alteration in original) (quoting § 61.30(2)(a)(13), Fla. Stat. (2002)); see also Cozier v. Cozier, 819 So.2d 834, 835 (Fla. 2d DCA 2002) (approving the trial court’s decision to include as income benefits such as a company car and life insurance paid for by the family business). In this case, the trial court found that the Father’s Subchapter S corporation paid for several personal expenses, including health insurance in the amount of $560 per month, life insurance in the amount of $184.91 per month, and auto insurance in the amount of $250 per month. Accordingly, the trial court included these amounts as in-kind payments in its computations of the Father’s gross income for the years 2003 through 2006. The Father challenges these additions to his gross income.

A.Health Insurance Premiums

Although the Father’s S corporation paid the health insurance premiums, the business did not deduct the cost of these premiums as an expense. Instead, these costs were included in the pass-through income reported on the Father’s personal income tax return and were therefore included in his gross personal income for each year in question. As a result, the trial court erred in treating the health insurance premiums as an in-kind payment from the S corporation reducing the Father’s personal expenses.

B. Life Insurance Premiums

Our review of the record shows that in 2003, the S corporation paid $2219 in premiums for “key man life insurance,” but the business treated these premiums as nondeductible expenses. Because the Father failed to produce his 2004 tax return and because the Mother did not obtain a copy for introduction into evidence, we do not know how the business handled the insurance premiums in 2004. In 2005, the business deducted $2966 for “insurance,” but there is no evidence proving that this amount was for the key man life insurance. The S corporation’s 2006 tax return contains no entry for life insurance.

Accordingly, the record fails to contain competent, substantial evidence to support the trial court’s finding that the key man life insurance was paid for by the business. Therefore, the inclusion of this expense as an in-kind payment reducing personal expenses was error.

C. Automobile Insurance Expense

Testimony at the hearing and evidence in the record support the trial court’s conclusion that the insurance premiums for a Ford and a Saturn driven for personal use were paid by the business. Accordingly, we conclude that the trial court’s finding that the insurance premiums for these two vehicles were paid by the S corporation was supported by substantial, competent evidence in the record. Therefore, the trial court did not err in treating these expenses as in-kind income, which reduced the Father’s personal expenses.

V. CONCLUSION

For these reasons, we reverse the trial court’s order in part and remand for the entry of a corrected order in accordance with this opinion. In all other respects, the trial court’s order is affirmed.

Affirmed in part, reversed in part, and remanded.

LaROSE and CRENSHAW, JJ., concur.

      . We attribute the minor discrepancy to rounding.

      . The wording of this subsection has not changed during the years applicable to this case.


author: GRIFFIN, J.

text:
    Rashad Corey WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1261.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.
    James S. Purdy, Public Defender, and Aliene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Rashad Corey Williams [“Williams”], complains on appeal that he was not given notice or an opportunity to be heard on the investigative costs and attorneys fees included in his criminal sentence. It appears the trial court scheduled a hearing for this purpose but, for some reason, one was not held. The State concedes that Williams is entitled to a hearing. Accordingly, we strike the investigative costs and attorney’s fees in the sentence and remand for the trial court to conduct an appropriate hearing before such costs and fees are assessed.

COSTS and FEES STRICKEN; REMANDED.

SAWAYA and LAWSON, JJ., concur.


author: PER CURIAM.

text:
    Josue LEBRON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-4150.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.
    Josué Lebrón, Clermont, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The opinion previously filed in this case is withdrawn and the following opinion is substituted.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal of the order denying the motion for post-conviction relief in case nos. 2005-CF-005221-0, 2005-CF-5306-O, 2005-CF-005571-0 and 2005-CF-007280-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, ORFINGER and TORPY, JJ., concur.


text:
    Saul VALENTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-286.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.
    Robert Wesley, Public Defender and Amber Conteras, Assistant Public Defender, Orlando, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2009-CF-002985-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, PALMER and EVANDER, JJ., concur.


text:
    Marcos AGOSTO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-309.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.
    Robert Wesley, Public Defender and Evellen H. Jewett, Assistant Public Defender, Orlando, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2008-CF-010444-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

PALMER, TORPY, and JACOBUS, JJ., concur.


text:
    Terrelle TULLIS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-691.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.
    Robert Wesley, Public Defender, And Eileen Forrester, Chief Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the judgment and sentence in Case No. CF08-15374-O in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, LAWSON and JACOBUS, JJ., concur.


text:
    Paul DARDEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0913.
    District Court of Appeal of Florida, First District.
    March 19, 2010.
    Paul Darden, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied.

WOLF, WEBSTER, and THOMAS, JJ., concur.


text:
    Charles WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0067.
    District Court of Appeal of Florida, First District.
    March 19, 2010.

      Charles Walker, pro se, Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Reddix v. State, 15 So.3d 614 (Fla. 3d DCA 2009); Johnson v. State, 974 So.2d 1152 (Fla. 3d DCA 2008), rev. granted, 17 So.3d 705 (Fla.2009); see also White v. State, 995 So.2d 1172 (Fla. 4th DCA 2008).

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    Stacy Bernard BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3051.
    District Court of Appeal of Florida, First District.
    March 19, 2010.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Meredith Charbula, Assistant attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); San Martin v. State, 717 So.2d 462 (Fla.1998).

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


author: WELLS, Judge.

text:
    Christopher HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-319.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Christopher Harris, in proper person.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   WELLS, Judge.

Christopher Harris appeals from an order denying his motion for return of property taken from him at the time of his arrest on December 12, 1992. While we dismiss the instant appeal as untimely filed, we note that the motion was properly denied on the merits. See Fla. R.App. P. 9.420(a)(2) (“A document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing.”); Davis v. State, 867 So.2d 539, 539 (Fla. 1st DCA 2004) (dismissing appeal where appellant “failed to demonstrate that the notice of appeal was placed into the hands of prison officials for mailing within 30 days of the date of the final order sought to be reviewed.”); Harris v. State, 667 So.2d 1006 (Fla. 3d DCA 1996) (concluding the matter in which the items claimed concededly were seized); see also § 705.105, Fla. Stat. (2009) (providing that title to unclaimed evidence or personal property lawfully seized and in the custody of the clerk or law enforcement agency vests permanently in the law enforcement agency 60 days after conclusion of the proceeding); Poux v. State, 985 So.2d 1191, 1192 (Fla. 4th DCA 2008) (stating that the court could “discern no reason not to apply [to a motion for return of property] section 95.11(3), Florida Statutes, mandating a four year civil statute of limitations for actions to recover personal property”).

Dismissed.


author: COPE, J.

text:
    Sammie SINGLETARY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-397.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Sammie Singletary, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   COPE, J.

This is an appeal of an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

For present purposes we assume, without deciding, that the claim of defendant-appellant Sammie Singletary is cognizable under Rule 3.800(a). The defendant maintains that his twenty-year sentence for escape should not be consecutive to his ten-year sentence for burglary. He maintains that the trial court was led into error at his sentencing, and that under the circumstances of this case, a consecutive sentence for escape is permissible, but not required.

The following transpired at sentencing:

THE COURT: What are his guidelines? [ASA]: Twenty-two to 27 years, Judge, but as the PSI indicates, he well qualifies for habitual offender. By his own testimony he admitted 21 prior convictions. I have certified copies I would like to make part of the record. There are 20 felonies and one misdemeanor petty theft. That is the basis for his admission to 21 convictions. A lot of them are burglary. It is clear for [sic] the record and the safety of the community an enhanced sentence is warranted in this case.
THE COURT: I have to tell you, Mr. Singletary, if you are not a habitual felony offender then nobody is a habitual felony offender. Not even 30 years old and you have all those felony convictions?
As to Count I, burglary of a stmcture, I am going to sentence the defendant pursuant to provisions 775.084, as a habitual felony offender. As to Count I, burglary of a structure, I will sentence the defendant to ten years. Criminal mischief, I will sentence him to time served. Battery on a police officer I will sentence him to ten years. Escape, I am yoing to sentence him to 30 years and the sentence is to run concurrent.
[ASA]: I believe the escape count must be consecutive by law.
THE COURT: I don’t think so. I think it is only—
[ASA]: I am pretty sure it has to be a consecutive sentence.
[DEFENSE COUNSEL]: I believe it does, Judge, in all honesty.
THE COURT: If it has to be consecutive, fine. I will sentence him to 20 years, consecutive. It is not my intention to give any more than 30 years. With burglary and battery on a police officer those will run concurrent with one another. The 20 year sentence will run consecutive to the ten years.

(Emphasis added).

The judge intended to impose an aggregate sentence of thirty years, and that is exactly what the defendant received. The defendant raised this issue on direct appeal and this court affirmed the sentencing order. Singletary v. State, 613 So.2d 38 (Fla. 3d DCA 1993) (table). The defendant raised the issue in Singletary v. State, 753 So.2d 749 (Fla. 3d DCA 2000), and this court denied relief.

The defendant is advised that if he files any further motions, petitions or appeals relating to this meritless claim, the court will refer this matter to the Department of Corrections for forfeiture of gain time.

Affirmed.


author: LAGOA, J.

text:
    A.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-804.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.

      Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   LAGOA, J.

A.D., a juvenile, appeals from a withhold of adjudication and judicial warning for third degree grand theft. Because there is insufficient proof that the value of the stolen items was more than $300, we are compelled to reverse and remand with instructions to reduce the finding of guilt for third degree grand theft to petit theft.

I. FACTUAL AND PROCEDURAL HISTORY

In case no. 08-4408, the State charged A.D. with burglary of an unoccupied conveyance, burglary of an occupied dwelling, criminal mischief, and grand theft in the third degree. The trial court found him not guilty of burglary of an occupied dwelling and criminal mischief. The trial court found him guilty of burglary of an unoccupied conveyance and grand theft. This appeal ensued.

II. ANALYSIS

On appeal, A.D. argues that the trial court erred in denying his motion for judgment of acquittal on the offense of grand theft in the third degree. A.D. contends that the State failed to establish that the market value of the items stolen was more than $300. We agree.

In order to establish a violation of the third-degree grand theft statute, § 812.014(2)(c)l., Fla. Stat. (2008), the State must prove that the property stolen was valued at $300 or more, as defined by section 812.012(10)(a)l., Florida Statutes (2008). “Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)l. The State may present direct testimony as to the fair market value, testimony establishing cost minus depreciation pursuant to the test set forth in Negron v. State, 306 So.2d 104 (Fla.1974), or testimony as to replacement cost if market value cannot be satisfactorily ascertained. See K.W. v. State, 13 So.3d 90 (Fla. 3d DCA 2009); Bloodsaw v. State, 994 So.2d 378 (Fla. 3d DCA 2008). Because the value of the stolen items is an essential element of the offense, the value must be established beyond a reasonable doubt. See Jackson v. State, 23 So.3d 206 (Fla. 4th DCA 2009); Smith v. State, 955 So.2d 1227 (Fla. 5th DCA 2007); Toler v. State, 779 So.2d 594 (Fla. 2d DCA 2001). An estimate of the value of the items, without more, is insufficient. See Jones v. State, 958 So.2d 585 (Fla. 2d DCA 2007); Sellers v. State, 838 So.2d 661 (Fla. 1st DCA 2003); Gilbert v. State, 817 So.2d 980 (Fla. 4th DCA 2002); Toler, 779 So.2d at 595.

Because the State concedes that insufficient evidence was presented as to the value of the cell phone, fishing rods, and iPod, we address only the evidence presented as to the truck radio and the boat battery charger. We conclude that the record does not contain sufficient evidence establishing the value of the radio and boat battery charger. The State failed to present any evidence of the value of the truck radio or the boat charger at the time and place of the offense. As such, the State failed to prove that the property stolen was valued at $300 or more as defined by section 812.012(10)(a)l. Instead, the victim testified solely as to the replacement cost of these items. Replacement cost, however, is not appropriate under the theft statute unless the State first presents evidence that the market value could not be satisfactorily ascertained. “This step [is] necessary to justify the value of the loss being ascertained by the cost of replacement of the property.” Robinson v. State, 686 So.2d 1370, 1373 (Fla. 5th DCA 1997) (holding that trial court properly adjudicated defendant guilty of petit theft, rather than grand theft, where state “made [no] effort of showing that it could not ‘satisfactorily ascertain’ the market value of the smoke detectors removed from the walls”). Here, the State failed to present any evidence that it could not “satisfactorily ascertain” the market value.

We next address the State’s argument that the finding of guilt may stand based on a finding that the minimum value of the items is self-evident. § 812.012(10)(b), Fla. Stat. (2008). “[S]uch a discretionary assessment of value is permissible only in ‘those rare cases where the minimum value of an item of property is so obvious as to defy contradiction.’ ” K.W., 13 So.3d at 92 (quoting Weatherspoon v. State, 419 So.2d 404, 405 (Fla. 2d DCA 1982)). See also Sylvester v. State, 766 So.2d 1223, 1223-24 (Fla. 5th DCA 2000) (aggregate value of stolen items in excess of $300 “ ‘is so obvious as to defy contradiction’”) (quoting Jackson, 413 So.2d at 114-115 (Fla. 2d DCA 1982) (reasonable persons could not doubt that value of less than one-year old, operable 37-foot sail boat was $100 or more)); Randolph v. State, 608 So.2d 573, 574 (Fla. 5th DCA 1992) (“There are, of course, cases in which the minimum value of an item of property is ‘so obvious as to defy contradiction.’ ” (quoting Jackson v. State, 413 So.2d at 114-115)). We decline the State’s invitation to find that the minimum value of the items is self-evident given the paucity of information on the record regarding the conditions of the items at issue.

Because the State failed to establish the value of the property, we reverse the disposition order and remand with directions to reduce the finding of guilt for grand theft to petit theft.

Reversed and remanded.

      . receded from on other grounds by F.B. v. State, 852 So.2d 226 (Fla.2003), and Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).

      . Indeed, this Court in Marrero v. State, 22 So.3d 822, 823 & n. 2 (Fla. 3d DCA 2009), specifically noted that under the criminal mischief statute, "the amount of damage is measured by the cost of repair or cost of replacement. ... By contrast, under the theft statute, the general rule is that value means fair market value at the time of theft.”


author: SALTER, J.

text:
    Georgette Donna CAMPBELL, Appellant, v. Walford Alfred CAMPBELL, Appellee, Suntrust Bank, Appellee/Intervenor.
    No. 3D09-813.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Charmaine C. Powell, for appellant.
    Walford Alfred Campbell, in proper person.
    Gray Robinson, and David S. Hendrix and Kim Hernandez Vance, for appellee, Suntrust Bank.
    Before COPE, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

Georgette Campbell, petitioner/wife in the circuit court, appeals one aspect of the final judgment dissolving her marriage to the appellee, Walford Campbell. Because the issue affected the status and repayment of the parties’ line of credit with SunTrust Bank, the Bank was permitted to intervene (and is aligned here as an appellée).

For two independently sufficient reasons, we affirm the final judgment. First, the trial judge entered the judgment after four days of trial that included evidence relating to the line of credit with the Bank. No transcript or reconstructed record of the testimony was filed here, with the result that “the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Second, it is undisputed that the line of credit with the Bank was originally used by the parties during the marriage to further their real estate investments. The former husband and former wife were jointly and severally liable for that debt. The trial court found that the former husband wrongfully drew, and then dissipated, approximately $110,000 from the line of credit.

The equitable distribution of the parties’ liabilities (no less than the distribution of their assets) is within the trial court’s broad discretion. McCants v. McCants, 984 So.2d 678, 683 (Fla. 2d DCA 2008). The trial court apportioned most of that debt to the former husband.

The former wife’s argument that the trial court should apportion the face amount of the indebtedness to the Bank (rather than the substantially lower amount the Bank agreed to accept) is obviously inequitable. The trial court correctly reasoned that the arrangement with the Bank resulted in a savings redounding to the benefit of both parties, and the liability was appropriately apportioned in section II of the final judgment.

Affirmed.


text:
    Eloy Tomas FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1164.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Rehearing Denied April 12, 2010.
    Eloy Tomas Fernandez, in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Montes v. State, 907 So.2d 1243 (Fla. 3d DCA 2005).


author: GERSTEN, J.

text:
    Raymond JANSSEN, Appellant, v. Katherine ALICEA, Appellee.
    No. 3D09-2469.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.

      Patricia A. Dempsey; Gerald I. Kornr-eich, Miami, for appellant.
    Bluestein & Wayne and Hugo E. Acebo, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   GERSTEN, J.

Raymond Janssen (“the father”) appeals an adverse final summary judgment in favor of Katherine Alicea (“the mother”) in this action to determine paternity. We reverse.

The father and mother, close friends, agreed to have a child together through artificial insemination. The father donated the sperm used for the artificial insemination, and the mother gave birth to a boy. The child’s birth certificate listed the names of both the father and the mother.

Approximately two years later, when the mother moved to California with the child, the father filed this action to establish his paternity. The mother moved for summary judgment. The mother asserted that section 742.14, Florida Statutes (2008), barred the paternity claim because the father was simply a sperm donor. The father contended that section 742.14 did not bar his paternity claim because the parties were “a commissioning couple.” The trial court entered summary judgment in favor of the mother.

On appeal, the father asserts, inter alia, that genuine issues of material fact exist which bar summary judgment. The mother contends that there are no genuine issues of material fact and that she is entitled to judgment pursuant to section 742.14. We agree with the father and reverse.

It is well settled that a party moving for summary judgment has the burden of conclusively showing that there are no genuine issues of material fact. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). In considering a motion for summary judgment, the trial court must draw every possible inference in favor of the party against whom summary judgment is sought. Romero v. All Claims Ins. Repairs, Inc., 698 So.2d 605 (Fla. 3d DCA 1997). Further, where even the slightest doubt exists on the facts, the trial court should not grant summary judgment. Klein v. Robbins, 947 So.2d 623 (Fla. 3d DCA 2007).

Section 742.14 provides: “The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement ..., shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.” Section 742.13, Florida Statutes (2008), defines “a commissioning couple” as “the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parties.”

Here, the parties hotly contested the father’s status under the statutes, and the events leading up to and following the child’s birth. The father alleged that he and the mother together planned for and purposefully conceived the child intending that they both would act as the child’s parents. The father further stated he was actively involved in the mother’s pregnancy and the first two years of the child’s life. Thus, the father claimed to be part of a commissioning couple and exempt from section 742.14.

The mother, on the other hand, alleged that she and her partner planned for and intended to parent the child. According to the mother, the father was simply asked to be a sperm donor, and the father’s subsequent limited contact with the child was at her discretion. The mother, therefore, claimed the father was a sperm donor, and does not fall within the statutory exceptions. Both parties provided factual support for their contrary positions.

In granting summary judgment, the trial court relied in part on Lamaritata v. Lucas, 823 So.2d 316 (Fla. 2d DCA 2002). Lamaritata, however, is distinguishable for two reasons. First, in Lamaritata, the donor and the recipient entered into a contract expressly stating that the sperm donor would have no parental rights or obligations. Further, as the Lamaritata court stated, “[t]here [were] no facts to show that [the parties had] any type of relationship that would fall under the rubric of ‘couple.’ ” 823 So.2d at 318-19.

Here, the parties do not have a written contract governing their relationship. In fact, the father alleged an oral agreement to co-parent the child. Further, the father claimed the parties are a commissioning couple. We find that it is possible for the court to conclude that the parties are a commissioning couple. However, there are genuine issues of material fact that cannot be determined on summary judgment.

Accordingly, we reverse the final summary judgment, and remand for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    Jude CLERMONT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2403.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Carlos J. Martinez, Public Defender, and Clayton R. Kaeiser, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Dante v. State, 903 So.2d 293 (Fla. 3d DCA 2005).


text:
    Jimmy Lee BARNES, a/k/a, Jimmy Lee Harris, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-373.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Jimmy Lee Barnes a/k/a, Jimmy Lee Haras, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Defendant-appellant Jimmy Lee Barnes a/k/a Jimmy Lee Harris, acknowledges that he previously filed the same claims and the denial of the motion was affirmed in Barnes v. State, 20 So.3d 857 (Fla. 3d DCA 2009). The defendant argues, however, that his claim should be considered under the manifest injustice exception to the res judicata doctrine. See State v. McBride, 848 So.2d 287, 291 (Fla.2003). We see no basis on which to revisit the earlier decision.

The defendant maintains that his consecutive sentences in Miami-Dade County circuit court case number 75-5643 are impermissible and that his sentences on those two counts should be concurrent. This issue was decided against the defendant on his direct appeal in Harris v. State, 338 So.2d 880, 882 (Fla. 3d DCA 1976).

The defendant argues alternatively that the sentencing court erred by allowing 161 days credit for jail time served on count one, but not the consecutive sentence on count two. The defendant’s argument is in error. See Daniels v. State, 491 So.2d 543, 545 (Fla.1986); Steadman v. State, 23 So.3d 811 (Fla. 2d DCA 2009). No manifest injustice has been shown.

Affirmed.


text:
    Keith ROBINSON a/k/a James Williams, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-172.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Keith Robinson a/k/a James Williams, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    Valda BELL, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Claire Mays, Lorenzo John Ameri and Emomotimi S. Brisibe, Appellees.
    No. 4D08-4471.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.
    Philip D. Parrish of Philip D. Parrish, P.A., Miami, and Henry A. Seiden of The Seiden Law Firm, West Palm Beach, for appellant.
    David B. Krouk and John W. Weihmul-ler of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for appellees, State Farm Mutual Automobile Insurance Company, Claire Mays and Lorenzo John Am-eri.
    Paul L. Nettleton and Andrew D. Manko of Carlton Fields, P.A., Miami, for appel-lee, Emomotimi S. Brisibe.
   PER CURIAM.

Valda Bell (“appellant”) appeals from the trial court’s order dismissing with prejudice her second amended complaint. The complaint was filed by the lead driver involved in a rear-end collision against, among others, the insurance company of the motorist in the rear vehicle. The appellant alleged that the insurance company failed to timely disclose, in violation of section 627.4137, Florida Statutes (2007), that it had agreed to provide coverage for any excess judgment.

The parties present valid arguments as to the interpretation of the terms of section 627.4137. However, we find no reversible error where the appellant was awarded a $2,690,806 verdict — which was promptly paid by the insurance company— under a policy of automobile insurance with bodily injury liability limits of $50,000 per person. See Mackey v. Reserve Ins. Co., 349 So.2d 830, 832 (Fla. 1st DCA 1977) (“The favorable verdict rendered the error harmless to appellants.”); § 59.041, Fla. Stat. (2007).

Affirmed.

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


author: BENTON, J.

text:
    Sidney Marcellus SLACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-6305.
    District Court of Appeal of Florida, First District.
    March 25, 2010.

      Nancy A. Daniels, Public Defender, Terry Carley, Assistant Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On consideration of appellee’s motion for rehearing and/or clarification, we withdraw our prior opinion and substitute the following.

Sidney Marcellus Slack appeals his conviction for fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(2), Florida Statutes (2006), on grounds the trial court erred in denying his motion for judgment of acquittal. He contends the state failed to prove that the vehicle he fled prominently displayed agency insignia. We agree that, because of this failure of proof, the trial court erred in denying the motion for judgment of acquittal. While we reverse on this basis, we remand for entry of a judgment of conviction for violation of section 316.1935(1), Florida Statutes (2006), on the authority of section 924.34, Florida Statutes (2009).

Mr. Slack was charged with violating section 316.1935(2), Florida Statutes (2006), which provides:

Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added.) The state attempted to prove the charged offense through the testimony of Deputy Sheriff Andrew Stone.

Deputy Stone testified that, on September 29, 2006, he passed an oncoming two-door Mercury vehicle, noticed in his rear-view mirror that the vehicle’s taillights were not working, turned around and decided to initiate a traffic stop. He testified he was driving a “marked patrol car, lights on top,” and was wearing a uniform at the time — the same one he was wearing at the trial. He testified that, to make the Mercury stop, he “engaged” his exterior lights and activated his siren.

At the close of the state’s case in chief, Mr. Slack moved for judgment of acquittal. Defense counsel argued, “I don’t believe there was any testimony about the insignia on the vehicle. I have a case on that that says they must establish this was a law enforcement vehicle that has a law enforcement insignia.” In arguing the motion, defense counsel highlighted Gorsuch v. State, 797 So.2d 649 (Fla. 3d DCA 2001), a case involving three police vehicles, two of which were unmarked and one of which bore a 15-inch City of Miami seal. Id. at 651. In Gorsuch, there was no evidence that any of the vehicles exhibited agency insignia or that any sirens had been activated. Id. The Third District reversed the defendant’s conviction for fleeing or attempting to elude a law enforcement officer, concluding, “while the facts demonstrate a willful attempt to elude police, ... the facts do not support the officers were ‘in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings ... with sirens ... activated.’ Id. (emphasis in original).

In the present case, the trial judge denied the motion for judgment of acquittal, reasoning: “He did refer it was a marked patrol vehicle, and he did identify himself as a member of the sheriffs department. I know by Florida law their patrol vehicles must be marked in a certain scheme as required by Florida law.” In due course, the jury was later instructed it had to find that “[t]he law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated,” in order to convict under section 316.1935(2).

On review of an order denying a motion for judgment of acquittal, we “must apply the competent, substantial evidence standard and ‘consider the evidence and all reasonable inferences from the evidence in a light most favorable to the [S]tate.’ ” State v. Konegen, 18 So.3d 697, 699 (Fla. 4th DCA 2009) (quoting Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc) (citations omitted)). Considering the evidence in this way, we review de novo the legal issue a trial court’s ruling on a motion for judgment of acquittal presents. See, e.g., Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (citing Tibbs v. State, 397 So.2d 1120 (Fla.1981)).

While Deputy Stone testified he was driving a “marked patrol car” with “lights on top” and that he activated his lights and siren, there was no evidence of “agency insignia and other jurisdictional markings prominently displayed on the vehicle.” § 316.1935(2), Fla. Stat. (2006). That not all markings on law enforcement vehicles constitute agency insignia was made clear in Gorsuch. By neglecting to adduce any evidence that Deputy Stone’s vehicle had agency insignia or other jurisdictional markings, the state failed to make out a prima facie case of fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(2), and the trial court erred in denying Mr. Slack’s motion for judgment of acquittal.

The State argues, however, that it also proved and the jury also necessarily found the appellant guilty of violating section 316.1935(1), which the state argues should be deemed a lesser-included offense:

It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree, punishable as provided in s.775.082, s.775.083, or s.775.084.

§ 316.1935(1), Fla. Stat. (2006). We agree the fact that section 316.1935(1) is punishable in the same fashion as section 316.1935(2) is not determinative. See Sanders v. State, 944 So.2d 203, 207 (Fla.2006) (“Ray[ v. State, 403 So.2d 956 (Fla.1981) ] does not require that the lesser included offense be lesser both in degree and in penalty.”).

In Sanders, the defendant was charged with attempted first-degree murder and convicted of attempted second-degree murder with a firearm, a lesser-included offense that normally carried a shorter maximum sentence but, with the application of the ten-twenty-life statute, the two offenses carried the same maximum sentence. Id. at 205. While subsections (1) and (2) of section 316.1935 are punishable in the same fashion without regard to any enhancement statute, we have interpreted Sanders in a way that makes this immaterial. See Carle v. State, 983 So.2d 693, 695 (Fla. 1st DCA 2008) (holding simple possession is a necessarily included offense of possession of diazepam with intent to sell even though both offenses are third-degree felonies that carry the same penalty because “[ljesser included offenses are determined based on the elements of the offenses, not on the penalties attached”). “Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense.” Id. (citing State v. Paul, 934 So.2d 1167, 1176 (Fla.2006)).

In the present case, the jury was instructed, with respect to the elements constituting the offense proscribed by section 316.1935(2):

To prove the crime of fleeing to elude a law enforcement officer the State must prove the following four elements beyond a reasonable doubt. Sidney Slack was operating a vehicle upon a street or highway in Florida. Secondly, a duly authorized law enforcement officer ordered the defendant to stop or remain stopped. Third, Sidney Slack knowing] he had been directed to stop by a duly authorized law enforcement officer either willfully refused or failed to stop the vehicle in compliance with the order, or having stopped the vehicle willfully fled in an attempt to elude the officer.
... Number four, the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with lights and sirens activated.

The jury was instructed that section 316.1935(1) was proven if the State proved all the elements of subsection (2) except the final element.

By finding Mr. Slack guilty of violating section 316.1935(2), the jury made a finding on every element of the lesser-ineluded offense under subsection (l). We therefore direct entry of judgment of conviction for subsection (1) on remand. Section 924.34 provides:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

See generally State v. Sigler, 967 So.2d 835, 844 (Fla.2007) (an appellate court can direct a judgment for a permissive lesser-ineluded offense under section 924.34 only if the jury verdict necessarily includes a finding on every element of that offense); Michelson v. State, 927 So.2d 890, 892-93 (Fla. 4th DCA 2005) (“Although we agree it is impermissible for an appellate court to remand for entry of a judgment of conviction for a lesser-ineluded offense or for a lesser degree of offense for which a jury has not found all essential elements, we find no constitutional prohibition against remand for conviction for a lesser degree or lesser included offense where the jury has specifically found the existence of all elements of the offense and where the error causing remand does not disturb those findings.”).

Reversed and remanded for entry of judgment of conviction for the lesser-included offense of fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(1), Florida Statutes (2006).

KAHN and CLARK, JJ., concur.

      . At trial, the defense objected to treating section 316.1935(1) as a lesser-included offense of section 316.1935(2) because both offenses are third-degree felonies.

      . Whether these elements correspond precisely to the language of section 316.1935(1) is not before us. The defense raised no objection to any element, when it objected to treating section 316.1935(1) as a lesser-ineluded offense on the basis that both section 316.1935(1) and 316.1935(2) are third-degree felonies.


text:
    Stephen L. GREEN, Jr., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and YJNK III, Inc., Appellees.
    No. 1D09-4716.
    District Court of Appeal of Florida, First District.
    March 25, 2010.

      Stephen L. Green, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See generally Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998). The motion to dismiss, filed on November 5, 2009, is denied as moot.

DAVIS, BENTON, and MARSTILLER, JJ., concur.


text:
    Geoffrey H. ANDERSON, Appellant, v. Carolyn R. ANDERSON, Appellee.
    No. 1D09-4636.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Geoffrey H. Anderson, pro se, Appellant.
    Chris DelMarco, Tallahassee, for Appel-lee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s orders of October 16, 2009, and December 10, 2009, the Court has determined that claims disposed of by the lower tribunal in the order on appeal, (Count I for false accusation, Count II for defamation, Count III for scheme to defraud, and Count V for perjury), are inextricably intertwined with those claims left pending (Count IV for theft and Count VI for intentional infliction of emotional distress). Therefore, the August 21, 2009, Order on Defendant’s Motion to Dismiss does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k). Accordingly, the appeal is hereby dismissed as premature. In light of the dismissal, all pending motions are denied as moot.

DISMISSED.

WOLF, WEBSTER, and THOMAS, JJ., concur.


text:
    PECK & PECK, INC. and Depawix Health Resources, Inc., Appellants, v. FLORIDA DEPARTMENT OF INSURANCE REGULATION, Appellee.
    No. 1D09-4939.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Michael A. O’Brien, Orlando, for Appellants.
    Steve Parton, General Counsel, Jeffrey W. Joseph, Tallahassee, for Appellee.
   PER CURIAM.

The appellee’s Motion to Dismiss Appeal, filed on October 7, 2009, is granted and the appeal is hereby DISMISSED as untimely. In light of this dismissal, the appellee’s Motion to Consolidate Cases, filed on December 21, 2009, is denied as moot.

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


text:
    Linda HUDAK, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D10-0262.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Linda Hudak, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998) (stating that the notice of appeal must be filed in the appropriate court within the appropriate time period and that mailing the notice within the time period is not sufficient).

WOLF, WEBSTER, and THOMAS, JJ., concur.


text:
    David LAWRENCE, Appellant, v. AQUARIUS SALES & SERVICE, INC. and Amerisure Insurance, Appellees.
    No. 1D09-4197.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Patrick T. DiCesare and Harold E. Baker of DiCesare, Davidson & Barker, P.A., Lakeland, for Appellant.
    Peter H. Dubbeld of Dubbeld & Kael-ber, P.A., St. Petersburg, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant seeks reversal of the Judge of Compensation Claims’ (JCC’s) findings regarding maximum medical improvement (MMI) and Claimant’s permanent impairment rating (PIR). Claimant argues that neither his status of having reached MMI, nor the extent of any permanent impairment sustained, was at issue below and, therefore, the JCC erred by making potentially prejudicial findings on these issues.

We agree that Claimant’s PIR was not at issue. A JCC may not rule on issues which are beyond the scope of the hearing, and in the circumstances of this case it was therefore error to make a finding on the issue of PIR. Scott Smith Oldsmobile v. Hoffard, 415 So.2d 886 (Fla. 1st DCA 1982). Booher v. Perkins Rest. & Bakery, 11 So.3d 1008 (Fla. 1st DCA 2009). We hereby modify the order on appeal by striking the JCC’s findings regarding Claimant’s PIR. See e.g., Belly Acres, Inc. v. Frankel, 412 So.2d 48 (Fla. 5th DCA 1982) (modifying judgment in part and affirming as modified).

The order is hereby AFFIRMED as modified.

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


author: CLARK, J.

text:
    Diane PENA, Appellant, v. VECTOUR OF FLORIDA, INC. f/k/a Travelways, Inc., a Florida corporation, David Gutierrez and Mark Alan Pennington, Appellees.
    No. 1D09-2427.
    District Court of Appeal of Florida, First District.
    March 25, 2010.

      James A. Scott, Jr., Palm Coast, for Appellant.
    L. Johnson Sarber, III of Marks, Gray, Conroy & Gibbs, and David J. Anderson of Kubicki Draper, P.A., Jacksonville, for Ap-pellees.
   CLARK, J.

Appellant Diane Pena challenges the denial of a new trial against two of the three defendants in her negligence action in the trial court. Because the trial court did not abuse its discretion, the order on appeal is affirmed.

Diane Pena was a passenger on a bus transporting her from her hotel to an off-site function during a professional conference. This bus was owned by Vectour of Florida, Inc., and driven by David Gutierrez. Shortly after leaving the hotel, the bus was rear-ended by a vehicle driven by Mark Pennington. Immediately after the accident, Pena reported feeling pain in her neck and numbness in her hand, and she subsequently underwent two surgeries to address her neck pain. She sued Pennington, Gutierrez and Vectour claiming that their combined negligence caused her injuries. After trial, the jury found no negligence by any of the defendants. Pena’s motion for new trial asserted that the verdict was against the manifest weight of the evidence. The trial judge granted Pena’s motion as to Pennington but denied new trial as to Gutierrez and Vectour.

“The appropriate standard of review applied to a trial court’s denial of a motion for new trial is whether the trial court abused its discretion.” Campbell v. Griffith, 971 So.2d 232, 235 (Fla. 2d DCA 2008). Trial court rulings on motions for new trial are given great deference on appeal. Cloud v. Fallis, 110 So.2d 669, 672-73 (Fla.1959). The possibility of reasonable disagreement does not constitute an abuse of discretion. Baptist Memorial Hosp. v. Bell, 384 So.2d 145, 146 (Fla.1980).

It is the trial court that determines whether a jury’s verdict is supported by the “manifest weight of the evidence.” Campbell, 971 So.2d at 235. An appellate court is limited to the question of whether the lower court abused its discretion in denying a new trial; “[i]n order ... to reach that conclusion, the evidence must be clear and obvious, and not conflicting.” Id. In this case, the jury was presented with conflicting evidence of the cause of Pena’s injuries and the actions of the defendants. “Where there is conflicting evidence, the weight to be given that evidence is within the province of the jury.” K-Mart Corp. v. Collins, 707 So.2d 753, 755 (Fla. 2d DCA 1998). Granting a new trial is an abuse of discretion if the trial judge merely disagrees “with the jury’s determination of what weight to accord the evidence.” Id., at 756. The judge is not authorized to act “as a seventh juror with veto power.” Id.

Here, the jury weighed the evidence and concluded that the bus driver and bus company were not negligent. The trial court reasonably held that the jury’s verdict was not an unjust decision under the facts presented and properly exercised its discretion by denying a new trial as to these defendants. Appellant simply disagrees with the trial court’s order and is seeking a more favorable outcome in this court. This court, however, “is a court of review, not simply another forum to which the dissatisfied litigant may submit his or her list of grievances in hopes of a more favorable outcome.” Steele v. Florida Unemployment Appeals Comm’n, 596 So.2d 1190, 1191 (Fla. 1st DCA 1992); see also PHILIP J. PADOVANO, FLORIDA APPELLATE PRACTICE, § 7.1 (2008 ed.).

AFFIRMED.

VAN NORTWICK, CLARK, and MARSTILLER, JJ., concur.


author: CASANUEVA, Chief Judge.

text:
    CITY OF TARPON SPRINGS, Florida, Appellant, v. William P. PLANES, Sr., a/k/a William Planes; Regina Planes; and William Planes, II, Appellees.
    No. 2D08-5837.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.

      Jay Daigneault of Frazer, Hubbard, Brandt, Trask & Yacavone L.L.P., Dunedin, for Appellant.
    Justin R. Zinzow of Zinzow Law & Mediation, L.C., Palm Harbor (withdrew after briefing), for Appellees.
    William P. Planes, Sr., Regina Planes, and William Planes, II, pro se.
   CASANUEVA, Chief Judge.

The City of Tarpon Springs appeals from the circuit court’s order granting a petition for a writ of mandamus filed by William P. Planes, Sr., Regina Planes, and William Planes, II (the Family). Because mandamus is not the appropriate vehicle to obtain the relief sought, we reverse. See City of Bradenton v. Johnson, 989 So.2d 25 (Fla. 2d DCA 2008) (reversing a grant of a petition for mandamus on the basis of inappropriate relief sought but without prejudice to the appellee/petitioner to seek further relief in the trial court if appropriate or available).

Background Facts

The City owns and operates a cemetery within city limits in which the Family, in 2004, purchased three contiguous plots. The purchase contract (the agreement) also allowed construction of three individual mausoleums, the dimensions of which were specified, and required each to be built in accordance with cemetery policies and city building codes. The cemetery’s rules and regulations were incorporated by reference into the agreement and explicitly provide that “[wjhen a grave space is purchased, the purchaser purchases the exclusive right of interment in the burial plot rather than the grave space itself, which remains the sole property of the City and under the sole control of the City.” The dispositive provision in this case, paragraph 13A, states that the agreement “may not be altered or modified except by the written agreement of all the parties hereto.”

In December 2007, after discussion among themselves and other family members about the future disposition of their earthly remains, the Family sought to change the concept from three separate mausoleums to one larger mausoleum built across the three plots. In accordance with paragraph 13A of their agreement, they wrote to the City’s director of public services, requesting the City’s approval of the new burial concept before they finalized the layout of the single structure with the mausoleum builder. Concluding that he did not have authority to grant the Family’s request to modify the agreement, the director of public services added it to the next meeting agenda of the Board of City Commissioners. At this meeting, the City’s planning department recommended denying the modification from three mausoleums to one. The meeting was continued for seven days to give the city commissioners an opportunity to view the site in the cemetery and to become better informed before voting whether to approve the change. At the reconvened meeting, the city commissioners denied the Family’s request to modify the agreement.

After being denied modification of the agreement, the Family requested relief under section 70.51, Florida Statutes (2008), the Florida Land Use and Environmental Dispute Resolution Act (the Act), but the City declined. Any landowner who believes that a development order or an enforcement action of a governmental entity is unreasonable or unfairly burdens the use of the owner’s real property may seek relief under the Act for appointment of a special magistrate to act as a facilitator or mediator to “effect a mutually acceptable solution” in an informal setting. See § 70.51(3), (17)(a). After the City declined to participate in proceedings under the Act, the Family petitioned the circuit court for a writ of mandamus to compel the City to participate in the Act’s informal dispute resolution process. After the circuit court granted the petition and issued the writ of mandamus, the City appealed.

Analysis

A. Inappropriate Remedy Sought

Writing for the court, Judge Kelly explained in City of Bradenton v. Johnson, 989 So.2d at 26-27:

As the City argues, mandamus is a common law remedy to enforce an established legal right by compelling a public officer or agency to perform a legally required ministerial duty. Smith v. State, 696 So.2d 814, 815 (Fla. 2d DCA 1997); Plymel v. Moore, 770 So.2d 242 (Fla. 1st DCA 2000). Mandamus may only be employed to enforce a right by compelling performance of a duty, but not to litigate an entitlement to a right. Butler v. City of Melbourne Police Dep't, 812 So.2d 547, 548 (Fla. 5th DCA 2002).... [W]e agree with the City that Johnson should not have sought relief via mandamus. See Fla. League of Cities v. Smith, 607 So.2d 397 (Fla.1992).

In Johnson, the petitioner attempted to use mandamus to determine whether the City of Bradenton had a right to use forfeiture contracts generally, whether his due process rights were violated, whether the agreement he entered into with the City was valid, and whether he had a right to the return of the money. Id. None of these involve a ministerial duty of the respondent governmental entity. “A ministerial duty is ‘some duty imposed expressly by law, not by contract or arising necessarily as an incident to the office, involving no discretion in its exercise, but mandatory and imperative.’ ” Escambia County v. Bell, 717 So.2d 85, 88 (Fla. 1st DCA 1998) (quoting State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21, 22-23 (1936)). For example, the clerk of the circuit court has a ministerial duty to forward notices of appeal to the district court to continue the appellate procedure which the notice of appeal, if timely filed, commenced. Allston v. State, 685 So.2d 1312, 1313 (Fla. 2d DCA 1996).

Likewise in this case, agreeing to a modification of an agreement to build one mausoleum rather than the contractually approved three was not a ministerial duty of the City of Tarpon Springs; rather, it was purely a matter of discretion on the City’s part as proprietor of the cemetery and party to the agreement. Nothing in the parties’ agreement limited this discretion to modify the agreement in any way. See Migliore v. City of Lauderhill, 415 So.2d 62, 63 (Fla. 4th DCA 1982) (stating that mandamus “is [not] proper to mandate the doing (or undoing) of a discretionary act”), approved, 431 So.2d 986 (Fla.1983). The circuit court could not compel the execution of this discretionary act. Thus it was error to grant the Family’s petition and issue the writ of mandamus.

B. Relief Under The Act

The Family attempted to clothe their clash of opinion with the City in the trappings of the Act. The City did not have a ministerial duty to submit to the dispute resolution procedures of the Act unless the dispute qualified for such informal resolution, which here it did not. Given the nature of the right held in the three cemetery plots, the Family does not qualify as an “owner” under the Act. A plain reading of the definition of “owner” precludes the Family from invoking the provisions of the Act:

“Owner” means a person with a legal or equitable interest in real property who filed an application for a development permit for the property at the state, regional, or local level and who received a development order, or who holds legal title to real property that is subject to an enforcement action of a governmental entity.

§ 70.51(2)(d). Even assuming that the Family has, at most, an equitable interest in the three cemetery plots by having interment rights therein, they did not file an application for a development permit or receive a development order. There is no merit to their argument that the City’s denial of approval to amend the contract can be likened to a development order. None of the other provisions of this definition are remotely applicable to them. Because this dispute did not qualify as a land use or environmental dispute, it was not incumbent on the City to submit to the resolution procedures of the Act. No act by the City has changed the Family’s right to use the plots for interment purposes and to build three separate mausoleums upon them in accordance with their agreement.

Conclusion

Here, the City was acting in its individual corporate persona and signatory to an agreement, not as a governmental entity exercising governmental functions, e.g., changing a zoning designation or issuing a building permit. Reducing this case to its essence, the Family requested the City to take an action under the agreement that the City had a right to refuse and did refuse. Such a case is not one for which this extraordinary writ is available, and the Family was not entitled to avail themselves of the dispute resolution procedures of the Act or compel the City to do so.

Reversed and remanded with directions to dismiss the petition for writ of mandamus.

KELLY and CRENSHAW, JJ., Concur.

      . Unfortunately, loose language was used in the agreement regarding deeds and documentary stamp taxes in contravention of the cent-etery's rules and regulations, but this is not dispositive of the case.


text:
    James Edward POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3211.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

James Edward Poole appeals his judgment and sentence for murder in the second degree. After a thorough review of the record, we conclude that the State failed to establish a prima facie case of second-degree murder. For this reason, we reverse Poole’s judgment and sentence and remand for the trial court to adjudge Poole guilty of the lesser offense of manslaughter and to resentence him accordingly.

I. THE FACTS

The State obtained an indictment against Poole for the murder in the first degree of Darryl Newsome, one of Poole’s drinking companions. Newsome had no fixed address, and his acquaintances referred to him as a “floater.” Newsome was a large man; he was six feet tall, weighed 273 pounds, and was very strong. Newsome also had a reputation for violence, especially after he had consumed alcohol or drugs.

Newsome, Poole, and several other men were regular visitors at the recreational vehicle where Jerry Headley lived in Tampa. Newsome frequently bullied Headley. Headley had cancer, and he was debilitated as a result of his illness.

On the afternoon of October 17, 2007, Newsome, G.M., and one or two other men had gathered at Headley’s recreational vehicle. The recreational vehicle was quite small, and the men congregated outside drinking beer and whiskey. Before the incident that led to his death, Newsome had also been smoking crack cocaine.

Poole arrived at Headley’s recreational vehicle when it was beginning to get dark. The drinking continued. G.M. complained to Poole that Newsome had taken Head-ley’s electric fan. G.M. was lying on the ground because of the effects of his intoxication. Newsome began to kick G.M. in the back and told him that he was going to beat him. Poole cautioned Newsome to leave G.M. alone because G.M. “was too drunk to even mess with.” Next, New-some went inside Headley’s recreational vehicle. Taking advantage of Newsome’s retreat, G.M. wisely followed Poole’s advice to leave.

Later in the evening, all of the men had left the area except Headley and Poole. The two men were inside Headley’s recreational vehicle watching a football game on television. Newsome suddenly returned a few minutes after he had departed and sat down inside the recreational vehicle. The incident that led to Newsome’s death quickly followed. Thus the only witnesses to the killing of Newsome were Headley and Poole. For reasons unexplained in our record, Headley did not testify at trial. For this reason, Poole provided the only evidence concerning what led to New-some’s death.

According to Poole, when Newsome returned to the recreational vehicle, he was visibly angry. Newsome sat in a chair with his fists balled up, his eyes as “big as half dollars,” and moving his lips but not saying anything. Poole had armed himself with a steak knife from Headley’s kitchen because he was afraid Newsome was going to hurt either him or Headley. Newsome was a larger man than Poole. Poole was afraid of Newsome; he believed that he would not be able to defeat Newsome in a fight.

Suddenly, Newsome got up and lunged at Poole in the cramped confines of the recreational vehicle. Poole removed the steak knife from his pocket and stabbed Newsome once. Poole testified that when Newsome got up and lunged at him he was in fear that Newsome was going to harm him because Newsome was still angry about the earlier incident when Poole had told Newsome to break off his attack on the obviously intoxicated G.M. Poole said that he was motivated by fear for his own safety, not hatred of Newsome or a wish to kill him. However, there was no evidence that Newsome was armed.

Poole’s single strike with the knife punctured Newsome’s heart and the left side of his diaphragm. Newsome survived long enough to stagger out of the recreational vehicle to a pay phone at a nearby convenience store. Newsome used the phone and apparently called 911. After he had used the pay phone, Newsome collapsed in the convenience store parking lot. Two Hills-borough County Sheriffs deputies who were conducting an unrelated surveillance operation saw Newsome and came to his aid. Newsome soon died as a result of internal hemorrhaging resulting from the stab wound.

Meanwhile, Poole and Headley remained in the recreational vehicle and awaited the arrival of law enforcement officers. The sheriffs deputies who responded to the scene described both men as having the odor of alcoholic beverages about their persons. Later, a toxicology screen performed on Newsome by the medical examiner showed an alcohol level of .06 percent in his blood and was also positive for the presence of cocaine.

The trial court denied the defense motion for judgment of acquittal and submitted the case to the jury on the charge of murder in the first degree. The jury returned a verdict finding Poole guilty of the lesser-included offense of second-degree murder. The trial court adjudged Poole to be guilty and sentenced him to serve a term of twenty years in prison followed by five years of drug offender probation. This appeal followed.

II. DISCUSSION

In his first point, Poole argues that the evidence was insufficient to support his conviction for second-degree murder. We agree. The evidence showed that New-some and Poole had socialized and drunk together for several years. On the day Newsome was killed, both men had been drinking with Headley and other men at Headley’s recreational vehicle. Later in the evening, Headley and Poole were alone with Newsome inside the small recreational vehicle. Newsome, who had also been smoking crack cocaine, was apparently still angry about Poole’s earlier intervention on behalf of G.M. Without warning, Newsome lunged at Poole in an apparent attack. Poole, who had nowhere to retreat, lashed out once at Newsome with the knife. Unfortunately, Poole’s single blow mortally wounded Newsome.

Newsome was unarmed, and it did not appear that he was aware that Poole had previously armed himself with a knife. Thus Poole’s act of stabbing Newsome through the heart appears excessive, and the jury could reasonably reject his theory of self-defense. However, the State failed to prove that Poole acted out of ill will, hatred, spite, or an evil intent showing the depraved mind essential to establish second-degree murder. Instead, Poole stabbed Newsome because he “knew [Newsome] was fixing to get me.” Thus the evidence showed an impulsive overreaction by Poole to Newsome’s attack that warrants a conviction for manslaughter but not second-degree murder. See Bellamy v. State, 977 So.2d 682, 684 (Fla. 2d DCA 2008); Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003); Rayl v. State, 765 So.2d 917, 919-20 (Fla. 2d DCA 2000); Williams v. State, 674 So.2d 177, 178 (Fla. 2d DCA 1996); McDaniel v. State, 620 So.2d 1308, 1308 (Fla. 4th DCA 1993); Borders v. State, 433 So.2d 1325, 1326 (Fla. 3d DCA 1983); Pierce v. State, 376 So.2d 417, 418 (Fla. 3d DCA 1979); Martinez v. State, 360 So.2d 108, 109 (Fla. 3d DCA 1978).

Accordingly, we reverse Poole’s judgment and sentence for second-degree murder with a weapon. On remand, the trial court shall adjudge Poole to be guilty of manslaughter with a weapon and resen-tence him on the lesser charge.

Poole raises two additional points in his appeal. At trial, both the defense and the State requested a jury instruction on the lesser offense of third-degree murder. The trial court declined to give the requested instruction. In his second point, Poole argues that the trial court’s denial of the requested instruction was error. Once again, we agree with Poole. See Sheridan v. State, 799 So.2d 223, 225 (Fla. 2d DCA 2001); Peterson v. State, 643 So.2d 9, 10 (Fla. 2d DCA 1994). However, our decision to reverse Poole’s second-degree murder conviction and to remand for him to be adjudicated guilty of manslaughter with a weapon renders Poole’s argument about the jury instruction a moot point. Poole’s third point is without merit and does not warrant discussion.

Reversed and remanded with instructions for the entry of a judgment for manslaughter with a weapon and for resen-tencing.

CASANUEVA, C.J., and NORTHCUTT, J., Concur.

      . § 924.34, Fla. Stat. (2007).

      . In a taped interview made after he was arrested, Poole told detectives that he believed Newsome was preparing to attack either him or Headley.


author: EVANDER, J.

text:
    Jane F. SANDERS, Appellant, v. Lynda R. GUSSIN, Trustee, etc., Appellee.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.

      Eric P. Gifford, of Gilligan, King, Good-ing & Gifford, P.A., Ocala, for Appellant.
    R. Gregg Jerald, of Landt, Wiechens, LaPeer & Ayres, LLP, Ocala, for Appel-lee.
   EVANDER, J.

Jane Sanders (hereinafter referred to as “Plaintiff’) appeals from an order dismissing her complaint with prejudice for failure to comply with orders compelling discovery. We reverse because the trial court did not make the requisite findings of fact, pursuant to Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), prior to entering its order of dismissal.

In March 2007, Plaintiff, through her counsel, filed a two-count complaint against Lynda R. Gussin, Trustee of the Family Jewels Trust, dated June 24, 2004 (hereinafter referred to as “Defendant”). At the time the complaint was filed, Plaintiff was an 84-year-old woman who had, as acknowledged by Defendant, been diagnosed with mild senile dementia and Alzheimer’s Disease.

In Count I, Plaintiff sought to establish a resulting trust in residential property located in The • Villages, Sumter County, Florida, and titled solely in Defendant’s name. Plaintiff alleged that prior to 2005, the parties were neighbors residing in Fort Myers, Florida. Defendant wanted to relocate to The Villages but was having difficulty finding an affordable home. Defendant approached Plaintiff with the suggestion that they both relocate to The Villages and jointly purchase property there. Plaintiff agreed to Defendant’s proposal and provided Defendant with $200,000 towards the purchase of a residence. In December 2005, Defendant purchased a home in The Villages for $326,000 and the parties moved in together. Approximately nine months later, Plaintiff vacated the residence due to “increased hostility” from Defendant. Plaintiff subsequently discovered that Defendant had wrongfully arranged for title to the property to be placed solely in Defendant’s name. In Count II, Plaintiff sought partition of the property. She also filed a notice of lis pendens with the complaint.

Defendant filed an answer, affirmative defenses, and a counterclaim, alleging a much different scenario. According to Defendant, the parties entered into a written contract on September 2, 2005, whereby Plaintiff agreed to give $200,000 to Defendant toward the purchase of a residence to be titled solely in Defendant’s name. In return, Defendant agreed to permit Plaintiff to reside in the residence and to amend her existing estate-planning documents to provide a life estate for Plaintiff in the event Defendant pre-deceased Plaintiff. Eighteen days later, the parties executed an amendment to the contract whereby they agreed to equally share the expenses for taxes, insurance and utilities. It was Defendant’s contention that Plaintiff had consulted with her attorney and her financial adviser prior to entering these agreements. Defendant further contended that Plaintiffs motivation for entering this arrangement had been to prevent her estranged daughter from ultimately receiving her assets.

Defendant claimed that pursuant to these agreements, she purchased a home that was larger than she needed so as to accommodate Plaintiff. Additionally, and due to Plaintiffs advanced age, Defendant purchased a home that would provide special amenities specifically requested by Plaintiff such as a small wading or therapy pool. Plaintiff voluntarily left the home on June 1, 2006, because of a desire to live “independently.” In her two-count counterclaim, Defendant sought damages for slander of title and breach of contract.

In answering the counterclaim, Plaintiff admitted to executing the two above-referenced contracts, but alleged, inter alia, that the contracts had been fraudulently procured by Defendant.

On May 23, 2008, Plaintiff was served with Defendant’s first request to produce and Defendant’s first set of interrogatories. When Plaintiff failed to timely respond to the discovery requests, Defendant filed a motion to compel. On August 8, 2008, the trial court granted the motion to compel and ordered Plaintiff to respond to the discovery requests within twenty days. When Plaintiff failed to respond within twenty days, Defendant filed a motion for sanctions. On September 10, 2008, Plaintiffs counsel filed a response to Defendant’s motion advising the court that he had difficulty communicating with Plaintiff because of her advanced age, her deteriorating mental condition and her relocation to Bonita Springs. In addition, Plaintiffs counsel noted that the parties had been engaged in settlement discussions during the prior month. On the same date as the response to Defendant’s motion for sanctions, Plaintiff served her response to Defendant’s first request to produce and first set of interrogatories. On October 2, 2008, the trial court denied Defendant’s motion for sanctions, finding that Plaintiffs failure to timely comply with the discovery requests and the trial court’s order had not been willful.

On November 6, 2008, Defendant served Plaintiff with a second request to produce and a second set of interrogatories. The interrogatories requested Plaintiff to identify and to provide certain information as to all bank accounts which Plaintiff had between June 1, 2005 and January 1, 2007. The request to produce required Plaintiff to produce all monthly statements for any bank accounts, trust accounts, savings accounts, bonds, investment and/or security accounts from January 1, 2006 through March 1, 2007, on which Plaintiff was a holder or beneficiary.

Approximately two weeks later, Plaintiff produced certain bank statements to Defendant and filed a response to Defendant’s second request to produce providing:

Statements from January 2007 to April 1, 2007 are produced. Additional documents have been requested from Am-South Bank and will be produced upon receipt.

However, Plaintiff failed to otherwise respond to Defendant’s second request to produce and second set of interrogatories and Defendant filed a motion to compel on January 27, 2009. On February 6, 2009, Plaintiffs counsel responded to the motion to compel by advising the trial court, in writing, that Plaintiff was not willfully withholding discovery and he expected that the requested information “should be available within the next ten (10) days.... ”

On February 9, 2009, the trial court granted Defendant’s motion to compel and ordered Plaintiff to comply with Defendant’s discovery requests within ten days or it would consider assessing costs and attorney’s fees. When Plaintiff failed to comply with this order, Defendant filed a motion for sanctions. After holding a hearing on March 9, 2009, the trial court granted the motion for sanctions, awarded attorney’s fees and costs, and gave Plaintiff seven more days to respond to the outstanding discovery requests or have her case dismissed. (The order was dated March 16th, but was effective as of March 9th.)

On March 13, 2009, Plaintiff filed a motion for reconsideration or alternatively motion for extension of time to comply with the court’s order. In this motion, Plaintiffs counsel advised the trial court that Plaintiff had undergone knee-replacement surgery on February 12, 2009, during which Plaintiff experienced serious cardiovascular complications. As a result of the complications, Plaintiff was required to undergo an immediate surgical procedure to install a heart monitor/pacemaker device. Following the two surgeries, Plaintiff had been transferred to a rehabilitative center from which she was expected to be released shortly. Numerous confirmatory medical records were attached to the motion.

In a memorandum opposing Plaintiffs motion, Defendant observed that Plaintiffs response to the second request to produce and second set of interrogatories had been due on December 8, 2008, approximately two months prior to Plaintiffs knee replacement surgery. Defendant further noted that the first propounded request to produce and interrogatories had necessitated a motion to compel.

On March 31, 2009, the trial court entered an order of dismissal finding “that Plaintiffs failure to respond to discovery throughout this lawsuit had been done with willful disregard or gross indifference to multiple orders of this court.”

LI — 53 A trial court has the authority to dismiss a complaint for failure to comply with discovery requests. However, because dismissal is the ultimate sanction in our adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result. Kozel, 629 So.2d at 818. Further, where the attorney is responsible for procedural error, the court should employ a sanction less severe than dismissal with prejudice. Id. In determining the appropriate sanctions, Kozel directs a trial court to consider the following factors:

1. Whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
2. Whether the attorney has previously been sanctioned;
3. Whether the client is personally involved in the act of disobedience;
4. Whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;
5. Whether the attorney offered reasonable justification for noncompliance; and
6. Whether the delay created significant problems of judicial administration.

Id.

Here, the trial court’s order failed to address each of these six factors. Defendant argues that Kozel is inapplicable to the instant case because Kozel only applies to those situations where the non-compliance with a court order was the fault of the attorney rather than the litigant. See, e.g., Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 40 (Fla. 5th DCA 2006) (“If this was a case in which only [the litigants], and not their counsel, had engaged in wrongdoing or noncompliance with the rules, Kozel would not apply.”)

However, we cannot accept Defendant’s assumption that Plaintiff herself was solely responsible for the failure to respond to Defendant’s discovery requests. First, the trial court did not make such a finding in its order of dismissal. Second, the record is inconclusive on this issue. For example, Plaintiffs initial (timely) response to the second request to produce suggests, but doesn’t expressly state, that Plaintiff produced all of the bank records within her possession. It is unclear from the record why counsel provided an ambiguous response to this request to produce and whether counsel made any effort to obtain the remaining AmSouth Bank records other than having sent his mentally impaired client a copy of the discovery request. Furthermore, the initial response to the second request to produce seems to imply that AmSouth Bank may have been Plaintiffs only bank during the relevant time period. If so, little work would have been required to prepare an adequate response to the second set of interrogatories. It cannot be ascertained from the record what efforts counsel made to have the second set of interrogatories answered.

Plaintiff also argues that the trial court’s order of dismissal was an abuse of discretion, particularly given that the last two orders to compel required compliance by February 19, 2009 and March 16, 2009, respectively, and Plaintiff was hospitalized or in a rehabilitative center from February 12th through mid-March, 2009. We de-dine to address this argument without having the benefit of the trial court’s determination of the Kozel factors. However, on remand, the trial court should determine whether there is an inconsistency between its findings on “willfulness” set forth in its March 31, 2009 order of dismissal and its October 2, 2008 order denying Defendant’s motion for sanctions. Specifically, in its order of dismissal, the trial court found that “throughout the lawsuit” Plaintiff had willfully disregarded “multiple orders” of the court. Yet, in its October 2, 2008 order, the trial court found that Plaintiffs failure to comply with its discovery orders regarding the first request to produce and first set of interrogatories had not been willful.

REVERSED and REMANDED.

MONACO, C.J. and GRIFFIN, J., concur.


author: PER CURIAM. PALMER, J.,

text:
    Christopher GEIGER, Appellant, v. Michelle SPURLOCK f/k/a Michelle Theriot, Appellee.
    No. 5D08-2871.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.
    Thomas R. Peppier of Stein, Sonnen-schein, Hochman & Peppier, Oviedo, for Appellant.
    Stewart Cohen of Stewart Cohen, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED.

TORPY and EVANDER, JJ., concur.

PALMER, J., concurs specially with opinion.

PALMER, J.,

concurring specially.

I concur in the majority’s affirmance of the trial court’s final order awarding attorney’s fees and costs pursuant to section 57.105 of the Florida Statutes (2005). I write to express my concern regarding the conflict of interest issues created by the fact that Attorney Marilyn Hochman’s law firm is representing both Geiger and Hochman in this appeal.

In the initial brief filed in this matter Hochman argued, inter alia, that it was error for the trial court to sanction her by directing her to pay half of Spurlock’s attorney’s fees. If Hochman had been successful in arguing that point, Geiger could have been responsible for paying twice as much in attorney’s fees. It is disturbing that Hochman’s firm, while purporting to represent Geiger’s interests, sought a reversal of a trial court ruling which, as a consequence, could have resulted in an assessment against Geiger of twice as much liability. See Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003); R. Regulating Fla. Bar 4-1.7. Unfortunately, we are unable to determine, from the state of the instant record, whether Hochman’s firm apprised Geiger of this conflict and the consequences of continued representation (such as whether Geiger had a financial obligation to solely fund the prosecution of this appeal even though Hochman’s firm had a financial interest in obtaining a reversal of the sanction entered against it).


text:
    Maya DERKOVIC, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-330.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.
    Maya Derkovic, Ocala, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Petitioner, Maya Derkovic, seeks a belated appeal of a judgment and sentence pursuant to Florida Rule of Appellate Procedure 9.141(c). The instant petition is facially insufficient because it does not allege that Derkovic timely requested that her counsel file an appeal. See Lincoln v. State, 948 So.2d 77 (Fla. 5th DCA 2007). Petitioner was given an opportunity to amend the petition to allege that she timely requested an appeal, but failed to do so.

PETITION DISMISSED.

GRIFFIN, ORFINGER and COHEN, JJ., concur.


text:
    David R. REIDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-619.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.
    David R. Reidy, Polk City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

David Reidy appeals the trial court’s order dismissing his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court dismissed his motion because Reidy had a pending petition alleging ineffective assistance of appellate counsel in this court. The pendency of an original petition alleging ineffective assistance of appellate counsel in this court does not divest the trial court of jurisdiction to consider a motion for postconviction relief filed pursuant to rule 3.850. White v. State, 855 So.2d 723, 724 (Fla. 3d DCA 2003). Accordingly, the order of dismissal is reversed and Reidy’s motion is reinstated for consideration by the trial court.

REVERSED AND REMANDED.

MONACO, C.J, GRIFFIN and COHEN, JJ., concur.

      . Reidy’s petition has since been denied by this court’s order dated Januaiy 27, 2010.


text:
    Johnny Cornelius FORD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-646.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.
    Robert Wesley, Public Defender and Amanda Sampaio, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2009-CF-13957-A-OR, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, C.J., PALMER, and EVANDER, JJ., concur.