text:
    O.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1726.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender and Jessica del Valle and Aileen Peñate, Certified Legal Interns, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and CORTINAS, JJ.
   CORTINAS, J.

Fifteen-year-old O.B., his brother, and a Mend were on their way to play basketball at an elementary school near the brothers’ home when it began pouring rain. The youths sought shelter under a neighbor’s carport. Just as the rain was abating, a police car pulled up, and one of the officers, with his gun drawn, approached the youths. This scared them, and they ran away. O.B. became separated from the others and hid in someone’s backyard, where he was soon apprehended by a newly-arrived officer, who ordered him to lie face down in the mud and handcuffed him. Then, the boy testified, the officers kicked him in the face and threw him over a fence; when his father arrived, he found O.B.’s eye swelling shut and his shirt torn.

O.B. was charged with resisting an officer without violence. After an adjudicatory hearing at which one of the original officers and the arresting officer both testified, the trial judge indicated that she would base her ruling on the answer to a single question: Is responding to a BOLO tantamount to the lawful execution of a legal duty? Answering that question in the affirmative, the court issued O.B. a judicial warning and withheld adjudication of delinquency, which O.B. now appeals.

O.B. argues that the State failed to establish either that the officers had the requisite reasonable suspicion to detain him or that he fled with knowledge that the officers intended to detain him.

In order
[t]o convict [a defendant] of resisting or obstructing an officer without violence, the State is required to prove that (1) the officer was engaged in the lawful execution of a legal duty; and, (2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.

V.L. v. State, 790 So.2d 1140, 1142 (Fla. 5th DCA 2001) (internal citations omitted).

First, “the [S]tate must establish that the officer was engaged in the lawful scope of his or her duties.” M.M.H. v. State, 929 So.2d 628, 629 (Fla. 3d DCA 2006) (citing B.D.H. v. State, 903 So.2d 390 (Fla. 3d DCA 2005)). “The element of lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrantless arrest.” E.A.B. v. State, 851 So.2d 308, 311 (Fla. 2d DCA 2003). Otherwise, “the individual has a right to ignore the police and go about his business.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

A stop is justified when an officer observes facts giving rise to a reasonable and well-founded suspicion that criminal activity has occurred or is about to occur. In turn, whether an officer’s well-founded suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the investigatory stop and is based solely on facts known to the officer before the stop.

C.E.L. v. State, 24 So.3d 1181, 1186 (Fla.2009) (internal citations omitted). “For reasonable suspicion justifying a detention to exist, ‘the detaining officer[ ] must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Tillman v. State, 934 So.2d 1263, 1273 (Fla.2006) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). “Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), ... requires ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”’ Id. The officer “must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Once these requirements are satisfied, a Terry stop should be “ ‘a minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go his way.’ ” D.T.B. v. State, 892 So.2d 522, 524 (Fla. 3d DCA 2004) (quoting Wardlow, 528 U.S. at 126, 120 S.Ct. 673).

The trial court, on the basis of Billips v. State, 777 So.2d 1094 (Fla. 3d DCA 2001), and E.A.B., determined that, as a matter of law, simply responding to a BOLO constitutes the lawful execution of a legal duty. However, both of these cases support the opposite determination: that police officers seeking to detain an individual in response to a BOLO are not lawfully executing a legal duty unless they have the requisite reasonable suspicion. In Billips, this Court held that the fact that the defendant was driving a car matching the description in the BOLO provided the probable cause necessary to “seiz[e] the vehicle as evidence in their investigation of the crime.” Billips, 777 So.2d at 1095. In E.A.B., the Second District found that, despite the issuance of a BOLO, “[t]he testimony simply did not establish the officers’ well-founded, articulable suspicion of criminal activity,” and therefore “the State did not establish that ... the officers were engaged in the lawful execution of a legal duty when they pursued and apprehended” the defendant. E.A.B., 851 So.2d at 311—12.

Similarly, in this case, “there were no facts or circumstances supporting a reasonable suspicion that [O.B.] had committed a crime, and, hence, there was no probable cause to arrest [him].... Therefore, as there was not going to be an arrest, logically, [the juvenile] cannot be charged with having resisted an arrest.” D.T.B., 892 So.2d at 525; see also D.G. v. State, 831 So.2d 256 (Fla. 3d DCA 2002). All that the officer testified to was that he was dispatched in response to a burglary in the neighborhood. The trial court deemed the contents of the BOLO inadmissible hearsay; therefore, it is unknown whether a description of the suspects was even given, much less whether the youths matched such a description. The State says merely that the officers “observed three African-American males in the backyard,” not that they observed them engaging in any criminal or suspicious conduct.

O.B. draws parallels between his situation and Jean v. State, 987 So.2d 196 (Fla. 4th DCA 2008), and L.M. v. State, 694 So.2d 118 (Fla. 3d DCA 1997). In the former case, as here, the officers were dispatched in response to an attempted burglary in a residential neighborhood, it was the middle of the day, and Jean had “a reasonable explanation why he was in the neighborhood.” Jean, 987 So.2d at 198. Furthermore, “[d]espite the fact that Jean was found in close proximity to the scene of the crime,” the State failed to provide any “evidence that he or his companions were acting suspiciously,” and the officer’s conclusory statement that Jean met the BOLO’s description of one of the suspects was insufficient under the totality of the circumstances to “provide a reasonable suspicion of criminal activity that would justify the stop and detention.” Id. In L.M., police had detained several youths near the location of a burglary merely for wearing clothing fitting the BOLO description, although the youths were doing nothing unusual and “were not involved in any criminal activity.” L.M., 694 So.2d at 119. This Court held that the officer did not have reasonable suspicion to detain the juveniles.

The State contends that Jean and L.M. are distinguishable from the instant case because here, upon seeing the police, the youths took flight, and therefore, C.E.L. is more pertinent. There, the Florida Supreme Court found the defendant guilty of resisting arrest, basing its decision on Wardlow, which “held that a defendant’s ‘unprovoked flight upon noticing the police’ in a high-crime area was suggestive of wrongdoing and therefore provided reasonable suspicion justifying an investigatory detention.” C.E.L., 24 So.3d at 1183, n. 4 (citing Wardlow, 528 U.S. at 124-26, 120 S.Ct. 673).

“[A]s a general rule, flight, standing alone, is insufficient to form the basis of a resisting without violence charge.” C.E.L., 24 So.3d at 1186 (citing Mosley v. State, 739 So.2d 672, 675 (Fla. 4th DCA 1999)); see D.T.B., 892 So.2d at 525. Even “a suspect’s mere presence at the scene of a crime and flight therefrom is insufficient. ...” F.B. v. State, 605 So.2d 578, 578 (Fla. 3d DCA 1992) (citing M.F. v. State, 549 So.2d 225 (Fla. 3d DCA 1989)).

However, “[fjlight can support a resisting charge if the state proves that (1) the officer had an articulable well-founded suspicion of criminal activity that justifies the officer’s detention of the defendant, and (2) the defendant fled with knowledge that the officer intended to detain him or her.” V.L., 790 So.2d at 1143. As this Court observed, “Wardlow did not criminalize running from the police. Wardlow only held that running from the police in a high crime area gave the police reasonable suspicion to allow ‘officers confronted with such flight to stop the fugitive and investigate further.’” D.T.B., 892 So.2d at 524 (quoting Wardlow, 528 U.S. at 125, 120 S.Ct. 673) (emphasis added).

C.E.L. conceded the first point of V.L., “that Wardlow provided the officers with reasonable suspicion to conduct an investigatory stop,” as his flight did take place in a high-crime area. C.E.L., 24 So.3d at 1188. In contrast, O.B. maintains that the officers had no reasonable suspicion to detain him. Indeed, they did not, both for the reasons established above and because of the absence of any testimony that O.B.’s flight took place in a high-crime area, an element essential to “create” reasonable suspicion.

C.E.L. virtually admitted the second point of V.L. by failing to “argue that he was unaware of the officers’ verbal commands to stop or of their intent to detain him.” C.E.L., 24 So.3d at 1188. Here, in contrast, there is no evidence that O.B. heard any order to stop; in fact, he testified that when he “took off running,” he did not hear the officers issue a command, and he was unaware whether an officer was after him in particular. The State therefore failed to prove the second requirement, that “an individual who flees must know of the officer’s intent to detain him.” C.E.L., 24 So.3d at 1188.

Neither of the requirements in either V.L. or C.E.L. — (1) “flight in a high-crime area creating] the reasonable suspicion sufficient to warrant a lawful investigative stop,” or (2) “continued flight in knowing defiance of the officer’s lawful order to stop constituting] the offense of obstructing without violence” — is present here. Id. at 1189. We therefore find that the trial court erred in finding O.B. guilty of resisting an officer without violence.

Reversed and remanded.


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    Linda L. DICKSON, Appellant, v. ECONOMY PREMIER ASSURANCE COMPANY, Appellee.
    No. 5D09-1314.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2010.
    Rehearing Denied June 11, 2010.

      D. Paul McCaskill of Timothy H. David, P.A., The David Law Group, P.A., Mait-land, for Appellant.
    Michael M. Bell and Esteban F. Scornik, of Bell, Roper & Kohlmyer, P.A., Orlando, for Appellee.
   LAWSON, J.

Linda Dickson appeals a final summary judgment in favor of her former insurer, Economy Premier Assurance Company (“Economy”), which declared that Economy had no duty to defend Dickson or provide coverage under the general personal liability provisions of the insurance policy that it had issued to Dickson. Dickson owned a Ford Explorer, which was also insured under a motor vehicle liability and property damage section in the same policy. After she disposed of the Explorer and her policy had expired, a subsequent owner of the vehicle was seriously injured when the Explorer’s tire tread separated and caused it to roll over. The injured party sued Dickson for failing to inspect, cure and warn of the defect while she owned the Explorer. Economy defended Dickson under a reservation of rights and filed the underlying declaratory judgment action, asserting that its policy did not provide coverage because the accident did not occur within the policy period. The trial court agreed and granted Economy’s motion for summary judgment. Reviewing the matter de novo, we find that the policy did provide coverage, and reverse.

The scope of insurance coverage is defined by the policy language, which is interpreted “in light of the skill and experience of ordinary people, and given [its] everyday meaning.” Campbell, 998 So.2d at 1158 (quoting Thomas v. Prudential Prop. & Cas., 678 So.2d 141, 142 (Fla. 5th DCA 1996)). Clear and unambiguous provisions, whether basic policy provisions or exclusions, should be enforced according to their terms. Id. Ambiguous provisions, or those susceptible to two reasonable interpretations — one providing coverage, the other limiting coverage — should be construed liberally in favor of coverage to the insured and strictly against the insurer. Id. Likewise, provisions limiting or excluding coverage are construed liberally in favor of the insured and strictly against the insurer. Id. Finally, courts should not construe insurance policy provisions in isolation, but instead in light of the policy as a whole, giving every provision its full meaning and operative effect. § 627.419(1), Fla. Stat. (2009); First Prof'ls Ins. Co. v. McKinney, 973 So.2d 510, 514 (Fla. 1st DCA 2007).

Dickson was sued on the theory that her negligence (during the policy period) resulted in injury to another (outside of the policy period). The portion of Economy’s policy insuring Dickson against personal liability claims first extends broad coverage for personal liability in general terms, and then contains a number of divided sections dealing with specialized liability coverage, including “Motor Vehicle Liability Protection,” “Incidental Business Liability,” “Boaters Liability Protection,” and “Personal Injury Protection.”

The general liability provision “covered” Dickson for all “legal liability resulting from an occurrence in which there is actual accidental property damage, personal injury or death, anywhere in the world,” and defining “occurrence” as “an event, including continuous or repeated exposure to the same conditions, resulting in personal injury or property damage.... ” As Dickson argues, this general language does not require the injury to occur at the same time as the covered “occurrence” or “event” causing the injury. And, nothing in the policy’s general terms limits coverage to injuries inflicted during the policy period. Cf. Discover Prop. & Cas. Ins. Co. v. Beach Cars of W. Palm Beach, Inc., 929 So.2d 729, 733 (Fla. 4th DCA 2006) (“[i]f an insurer wishes to restrict coverage for incidents or circumstances which occur during the policy period, it is free to expressly say so. If it chooses not to, and thereby creates an ambiguity, it cannot later deny coverage claiming it would be exposed to unreasonable risks and absurd results.”).

During the summary judgment hearing below, Economy admitted that the general language in its policy would afford coverage, but argued that another provision found in the “Personal Injury Protection” (“PIP”) section of the policy limited the coverage for automobile accidents to injuries “which occur during the policy period.” That provision reads:

The Insurance under this Section applies only to accidents which occur during the policy period:
a. in the State of Florida; and
b. as respects the named insured or a relative, while occupying the insured motor vehicle outside the State of Florida but within the United States of America, its territories or possessions or Canada; and
c. as respects to the named insured, while occupying a motor vehicle of which a relative is the owner and for which security is maintained under the Florida Motor Vehicle No Fault Law, as amended, outside the State of Florida, but within the United States of America, its territories or possessions or Canada.

We reject this argument because it is clear that this provision only applies to the PIP coverage section of the policy, and not to Dickson’s general “legal liability protection.”

First, the policy states that only those exclusions listed in the “Major Exclusions” section apply to all sections of the policy. By contrast, “[ojther restrictions that apply only to particular sections will appear in the section to which they apply.” The provision Economy relies upon appears in the PIP section of the policy and states that it addresses “insurance under this section.”.

Second, the PIP language refers only to “accidents” while the general liability coverage applies more broadly to “occurrences.” While the definition of “occurrence” does refer to “accidental” personal injury, it does not use the term “accident,” and is not limited to events which result in physical injury or property damage.

Third, Dickson correctly notes that if the PIP language were applied to her general liability coverage, it would improperly retract coverage granted earlier. For example, the general personal liability provision affords coverage for occurrences “anywhere in the world,” while the PIP language limits coverage to “accidents which occur during the policy period ... in the State of Florida.... ” See Tire Kingdom, Inc. v. First Southern Ins. Co., 573 So.2d 885, 887 (Fla. 3d DCA 1990) (“An insurance policy cannot grant rights in one paragraph and then retract the very same right in another paragraph called an ‘exclusion.’ ”).

Agreeing with Dickson that the policy period limitation found in the PIP section of Economy’s policy does not apply to the general liability provisions under which she claimed coverage, we reverse the order on appeal and remand with instructions that judgment be entered in favor of Dickson.

REVERSED and REMANDED.

ORFINGER and JACOBUS, JJ., concur.

      . The injured party eventually dismissed Dickson, with prejudice, from his personal injury lawsuit, without any payment or other settlement from Dickson. The only real controversy remaining is Dickson's entitlement to attorney's fees, under section 627.428, Florida Statutes, for defending Economy’s declaratory judgment suit.

      . See, e.g., State Farm Fla. Ins. Co. v. Campbell, 998 So.2d 1151, 1153 (Fla. 5th DCA 2008).

      . As already indicated, we agree with the position taken by Economy below — that the general language in its policy does extend coverage for Dickson’s alleged negligence during the policy period, even where her negligence results in injury or damage outside of the policy period. At best, the general language is ambiguous as to this point, and any ambiguity would have to be resolved in favor of Dickson. Campbell, 998 So.2d at 1153. On appeal, Economy argues that the general language in its policy does not afford coverage. Even if Economy's position on appeal had some merit, Economy would be bound by its concession to the trial court on this point. See, e.g., Harper ex rel. Daley v. Toler, 884 So.2d 1124, 1135 (Fla. 2d DCA 2004) ("a party may not ordinarily take one position in proceedings at the trial level and then take an inconsistent position on appeal"); see also Reserve Ins. Co. v. Pollock, 270 So.2d 469, 469 (Fla. 3d DCA 1972) (holding that insurer who admitted liability under insurance policy was “estopped from taking an inconsistent position" on appeal).


author: ROBERTS, J.

text:
    Melvin MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0573.
    District Court of Appeal of Florida, First District.
    May 14, 2010.

      Robert A. Harper, III, of Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Natalie D. Kirk and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, Melvin Murray, appeals from his convictions and sentences for seven third-degree felonies in three cases. He raises two issues on appeal.

First, the appellant argues that the trial court erred by not awarding him credit for time served in the second and third cases. This issue, however, was not preserved for appellate review. The appellant neither objected at the sentencing hearing nor timely filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). See Howard v. State, 705 So.2d 947, 948 (Fla. 1st DCA 1998).

Even if preserved, the appellant’s argument is without merit. In the first case, the appellant was sentenced to two concurrent terms of five years in prison. He was awarded 232 days credit for time served. In the second case, he was sentenced to two concurrent terms of five years in prison, to run consecutive to his sentence in the first case. In the third case, he was sentenced to three concurrent terms of five years in prison, to run consecutive to his sentence in the first case but concurrent to his sentence in the second case. He was not awarded credit for time served in the second or third case. Because his sentences in the second and third cases are consecutive to his sentence in the first case, the appellant was only entitled to credit for time served on his sentence in the first case. See Steadman v. State, 23 So.3d 811 (Fla. 2d DCA 2009). Accordingly, we affirm on the first issue.

Second, the appellant argues that the trial court should have allowed him to withdraw his pleas because of misadvice of counsel involving the lowest permissible sentence. At the plea hearing, the appellant’s counsel stated that the appellant’s criminal punishment code scoresheet provided for a minimum sentence of any non-state prison sanction, meaning that he could be sentenced to less than 365 days in jail or another non-state prison sanction. See § 921.0024(2), Fla. Stat. (2008). When the trial court asked if the State had a scoresheet, the prosecutor also stated that the appellant’s minimum permissible sentence would be any non-state prison sanction. The appellant entered open pleas in all three cases.

However, when the appellant’s score was calculated for sentencing, the appellant received 50 points, resulting in a minimum non-departure sentence of 16.5 months in prison. The maximum sentence was 35 years in prison. The appellant was sentenced to a total term of 10 years in prison.

After sentencing, the appellant moved to withdraw his pleas, alleging that he would not have entered the pleas had he known he would be subject to a mandatory state prison sentence. It is apparent from the record that the appellant was misled as to the lowest permissible sentence and his pleas were entered based on erroneous information provided by his counsel and the prosecutor. Under these circumstances, the appellant’s pleas were not voluntary and he should have been permitted to withdraw them. See Waldrop v. State, 882 So.2d 1047 (Fla. 1st DCA 2004). Accordingly, we reverse and remand on the second issue for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

WEBSTER and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    Daniel E. MACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5473.
    District Court of Appeal of Florida, First District.
    May 14, 2010.
    Daniel E. Mack, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Daniel E. Mack is hereby afforded a belated appeal from his judgment and sentence in case number 2009 CF 0652 in the Circuit Court in and for Leon County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

Counsel shall be appointed to represent Mack in the ensuing appeal if he qualifies for such an appointment.

PETITION GRANTED.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Joseph D. LAMB, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5745.
    District Court of Appeal of Florida, First District.
    May 14, 2010.
    Joseph D. Lamb, Sr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Joseph D. Lamb, Sr., is hereby afforded a belated appeal from his judgments and sentences in Duval County case numbers 16-2008-CF-12728-AXXX-MA, 16-2008-CF-13869-AXXX-MA, 16-2008-CF-13870-AXXX-MA, 16-2008-CF-14183-AXXX-MA, 16-2009-CF-3611-AXXX-MA, 16-2009-CF-3612-AXXX-MA, 16-2009-CF-3613-AXXX-MA, 16-2009-CF-3614-AXXX-MA, 16-2009-CF-3615-AXXX-MA, 16-2009-CF-3617-AXXX-MA, 16-2009-CF-4385-AXXX-MA, and 16-2009-CF-4388-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.140(c)(5)(D).

The circuit court is directed to appoint counsel to represent Lamb in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    BRYAN LGH MEDICAL CENTER, Appellant, v. FLORIDA BEAUTY FLORA, INC. and Associated Industries Insurance Company, Appellees.
    No. 1D09-3181.
    District Court of Appeal of Florida, First District.
    May 20, 2010.
    Rehearing Denied June 14, 2010.
    Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, Georgia, for Appel-lees.
   PER CURIAM.

Appellant, Bryan LGH Medical Center (Bryan), a hospital, challenges an order of the Judge of Compensation Claims (JCC) which dismisses for lack of jurisdiction, its claim for payment against Appellees, an employer and carrier (E/C), for emergency medical services furnished to Carlos Carrillo, an alleged employee of Florida Beauty Flora, Inc. We agree with Bryan that it has independent standing to bring a claim for payment for medical services it alleges are due from the E/C under the Workers’ Compensation Law. See Rebich v. Burdine’s, 417 So.2d 284 (Fla. 1st DCA 1982) (interpreting 1974 amendment to section 440.10(1) as creating independent standing on behalf of physician to bring an action against insurance company for payment of bills); see also § 440.13(14), Fla. Stat. (2006) (“A health care provider may not collect or receive a fee from an injured employee within this state, except as otherwise provided by the chapter. Such providers have recourse against the employer or carrier for services rendered in accordance with this chapter.”). However, the proper forum for disposition of this dispute is within the Department of Financial Services. See § 440.13(7)(a), Fla. Stat. (2009) (providing health care provider’s petition for payment of medical services “must” be filed with Department of Financial Services); § 440.13(ll)(c), Fla. Stat. (2009) (stating Department of Financial Services has “exclusive jurisdiction to decide any matters concerning reimbursement”); Avalon Ctr. v. Hardaway, 967 So.2d 268, 273 (Fla. 1st DCA 2007) (holding JCC does not have jurisdiction over reimbursement dispute because jurisdiction is vested in another agency); see also Terners of Miami Corp. v. Freshwater, 599 So.2d 674, 675 (Fla. 1st DCA 1992) (en banc) (explaining July 1, 1990 legislative amendments vesting jurisdiction in Division of Workers’ Compensation to resolve reimbursement disputes are procedural changes that divest JCC of jurisdiction to resolve such disputes). Accordingly, because the JCC did not have jurisdiction over the particular dispute raised in Bryan’s claim, we AFFIRM.

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


text:
    Thomas E. JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6435.
    District Court of Appeal of Florida, First District.
    May 20, 2010.
    Thomas E. Jordan, pro se, Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Thomas E. Jordan, challenges the trial court’s order barring him from filing future pro se motions. The trial court stated that it was imposing the sanction due to the repetitive nature of Appellant’s motions. However, all of Appellant’s motions have been filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which allows for the filing of multiple motions. A rule 8.800(a) motion cannot be classified as successive unless it raises a claim that has previously been addressed on the merits. State v. McBride, 848 So.2d 287, 291 (Fla.2003). In this case, the trial court stopped addressing Appellant’s claims on the merits after his second motion, and none of Appellant’s ensuing motions raised those previously adjudicated claims. Thus, the trial court incorrectly classified these motions as repetitive, and it erred in sanctioning Appellant on that basis. Mims v. State, 994 So.2d 1233, 1235-36 (Fla. 3d DCA 2008). We, therefore, VACATE the trial court’s order barring Appellant from filing future pro se motions.

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Cedric Vidal WASHINGTON, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections; and State of Florida, Respondents.
    No. 1D10-2236.
    District Court of Appeal of Florida, First District.
    May 20, 2010.
    Cedric Vidal Washington, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

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

DAVIS, CLARK, and WETHERELL, JJ., concur.


text:
    M.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4544.
    District Court of Appeal of Florida, First District.
    May 21, 2010.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

M.M., a juvenile, appeals a final order of adjudication and disposition entered on August 10, 2009, adjudicating him delinquent of the offenses of grand theft of a firearm and dealing in stolen property. M.M. argues, and the State concedes, that the trial court erred in finding him delinquent for both grand theft and dealing in stolen property arising from the same course of conduct involving the same item (two firearms). We agree.

The trial court was prohibited from finding the appellant delinquent for both grand theft and dealing in stolen property in the instant case. Section 812.025, Florida Statutes (2009), provides:

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

See also C.E.C. v. State, 884 So.2d 421 (Fla. 1st DCA 2004). Accordingly, the adjudication of delinquency for grand theft is reversed and the case is remanded for further proceedings consistent with this opinion.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    David B. BILLENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0435.
    District Court of Appeal of Florida, First District.
    May 21, 2010.
    David B. Billens, pro se, Appellant.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The record does not conclusively refute the appellant’s claim that his plea was involuntary because he was under the influence of an anti-psychotic drug when he entered his plea. See Doward v. State, 802 So.2d 518, 519-520 (Fla. 5th DCA 2001) (“... because there is no transcript of the plea hearing attached to the order denying relief, we cannot determine whether the court questioned [defendant] about his medications and his ability to understand the consequences of entering a plea, nor can we determine whether [defendant] responded appropriately when questioned during the plea dialogue”); Thomas v. State, 707 So.2d 1189 (Fla. 1st DCA 1998) (holding that the court’s failure to attach portions of the record which it relied upon to deny a claim precludes this Court from conducting meaningful appellate review).

Accordingly, we reverse the summary denial of the appellant’s motion and remand for the lower court to attach portions of the record that conclusively refute the appellant’s claim or to hold an eviden-tiary hearing. We affirm without further discussion the appellant’s remaining claims.

AFFIRMED in part, REVERSED in part, and REMANDED.

HAWKES, C.J., BENTON, and LEWIS, JJ., concur.


text:
    Charles M. BROWN, Petitioner, v. FRANKLIN COUNTY SHERIFF’S OFFICE, Respondent.
    No. 1D10-0785.
    District Court of Appeal of Florida, First District.
    May 21, 2010.
    Charles M. Brown, pro se, Petitioner.
    James C. Banks of the Law Office of Banks & Morris, P.A., Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari was filed on February 8, 2010, and sought review of a July 29, 2009, forfeiture order of the circuit court. Because the petition was filed more than 30 days after rendition of the final order, this court is without jurisdiction. See Fla. R.App. P. 9.100(c).

DISMISSED.

KAHN, ROWE, and MARSTILLER, JJ., concur.


text:
    Timothy McAULIFFE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Creditguard of America, Inc., Appellees.
    No. 1D10-1324.
    District Court of Appeal of Florida, First District.
    May 21, 2010.
    Timothy McAuliffe, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, and M. Elaine Howard, Deputy General Counsel, Tallahassee, for Appellees.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. The notice of appeal was filed on February 9, 2010, and sought review of a December 16, 2009, final order. The notice of appeal was not filed within 30 days of rendition of the final order as required by Florida Rule of Appellate Procedure 9.110(c). See First Nat’l Bank in Ft. Myers v. Fla. Unemployment Appeals Comm’n, 461 So.2d 208 (Fla. 1st DCA 1984) (stating that appellant’s failure to file the notice of appeal within the requisite 30-day period is “an irremediable jurisdictional defect.”).

DISMISSED.

KAHN, ROWE, and MARSTILLER, JJ., concur.


text:
    Anthony HAWKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1877.
    District Court of Appeal of Florida, First District.
    May 21, 2010.
    Anthony Hawkins, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004) (stating that habeas corpus relief cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

KAHN, ROWE, and MARSTILLER, JJ., concur.


text:
    Roxana SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3224.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2010.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See § 948.06(8), Fla. Stat. (2007); Fla. R.Crim. P. 3.790(b)(3).

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


text:
    James HAYWARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3365.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2010.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   Appeal from the Circuit Court for Bre-vard County, George Maxwell, Judge.

AFFIRMED.

See State v. Watt, 946 So.2d 108 (Fla. 5th DCA 2007).

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


author: MARSTILLER, J.

text:
    Brian E. McQUAIG, Former Husband, Appellant, v. Ann E. McQUAIG, Former Wife, Appellee.
    No. 1D09-3551.
    District Court of Appeal of Florida, First District.
    May 26, 2010.

      Elliot Zisser and Corrine A. Bylund, Jacksonville, for Appellant.
    Dee D. Reiter of Roberts & Reiter, P.A., Jacksonville; and, Michael J. Korn and Jordan R. Biehl of Korn and Zehmer, P.A., Jacksonville, for Appellee.
   MARSTILLER, J.

Brian McQuaig (“Former Husband”) and Ann McQuaig (“Former Wife”) entered into a Consent Final Judgment of Dissolution of Marriage in October 2006. The final judgment incorporated the parties’ agreement that the Former Husband would pay $1,350 per month in child support and $8,000 per month in permanent alimony. When the parties divorced in 2006, the Former Husband’s income as a surgical products sales representative was approximately $363,000. In 2007, he became a distributor for a competing company and earned approximately $400,000, due in large part to an agreed-upon guaranteed monthly income during a 12-month non-compete period. In 2008, the Former Husband experienced a decrease in income in the wake of certain economic and industry changes.

Consequently, in September 2008, the Former Husband filed a Supplemental Petition to Modify Final Judgment seeking a reduction in his monthly alimony obligation. In April 2009, the trial court entered an order granting a temporary reduction in alimony to $5,000 per month from September 2008 to September 2010. The court further ordered the Former Husband to pay $8,500 toward the $17,200 attorney’s fee the Former Wife incurred for the modification proceedings. The Former Husband appeals the modification order, arguing the trial court erred by (1) setting an excessive alimony amount, (2) failing to deduct business expenses when computing his income, and (3) awarding partial attorney’s fees to the Former Wife when her income is now substantially greater than his. We affirm the trial court’s order because we find no abuse of discretion in the modified alimony amount or the fee award.

We start with the court’s finding as to the Former Husband’s income because from that asserted error his other issues appear to flow. In its order, the court stated:

[T]he Former Husband’s gross commissions during the year 2008 were approximately $120,000.00. The Former Husband deducted from the aforementioned gross amount various business expenses, thereby reducing his taxable net income. The Court finds that these “business expenses” were no different than expenses previously incurred that were not deductible in total because of his previous status as an employee, as opposed to a sole proprietor.

(Emphasis in original). The evidence before the court showed that as a distributor, the Former Husband still sells surgical equipment and earns commissions as he did when he was employed as a salesperson. However, the commission rate is higher, and the money making potential is greater. In 2008, the Former Husband earned $119,949 from his distributorship, McQuaig Surgical, LLC. On his 2008 tax return, he deducted $30,028 in business expenses for an unadjusted gross taxable income of $89,921. The deducted expenses included: car and truck expenses; office expense; repairs and maintenance; travel; deductible meals and entertainment; and “other expenses” (telephone; internet/phone/fax; software; passport; clothing; freight; “Spine Journal;” “Vendor Mate;” entertainment; parking).

Citing section 61.30, Florida Statutes, and cases interpreting that statute, the Former Husband argues the trial court was required to deduct his “ordinary and necessary” business expenses in calculating his gross income. The statute he relies on governs child support determinations and provides that in determining a parent’s monthly income for that purpose, gross income includes “business income,” which in turn “means gross receipts minus ordinary and necessary expenses required to produce income.” § 61.30(2)(a)3., Fla. Stat. (2008). We are not persuaded section 61.30 should be applied in this case where the relevant statute is section 61.08 governing alimony awards, and that statute speaks only in terms of “financial resources” and “all sources of income.” See § 61.08(2)(d), (g), Fla. Stat. (2008). But even assuming the definition of “business income” in section 61.30 is properly applied here, the trial court did not act unreasonably in declining to accept the Former Husband’s representations. Except for a $500 monthly car allowance the Former Husband received as a sales representative, there is no evidence in the record showing he incurs expenses in selling surgical equipment as a distributor that differ from those he incurred as a salesman or that previously were paid or reimbursed by his former employer. That the Former Husband can now deduct those expenses for tax purposes does not make them ipso facto “ordinary and necessary” for Chapter 61 income calculation purposes, and he has presented no authority — nor have we found any — to support such a proposition. Absent such authority or any competent, substantial evidence of what expenses are “ordinary and necessary” to running the Former Husband’s distributorship, the trial court did not abuse its discretion in finding that his 2008 gross income was $120,000. See Burkhart v. Burkhart, 731 So.2d 733, 734 (Fla. 1st DCA 1999).

The Former Husband also contends that the modified alimony payment is excessive because it leaves the Former Wife with 80% of the parties’ combined income, and further that the attorney’s fee award is unwarranted because the Former Wife is now in the superior financial position. The trial court temporarily reduced the $8,000 monthly alimony agreed upon by the parties in the Consent Final Judgment to $5,000 for 16 months beginning May 1, 2009, and retained jurisdiction to revisit the need for modification at the end of the 16-month period. The alimony modification is retroactive to September 2008, when the Former Husband began paying only a portion of his alimony and child support obligation every month. By the time the court entered the modification order, the Former Husband was in arrears $46,537.50; the retroactive modification reduced the arrearage to $24,037.50. As to attorney’s fees, the court found “[t]he Former Husband is in a superior financial condition to contribute to the Former Wife’s attorneys fees and has available resources to satisfy his obligation.” It thus ordered the Former Husband to pay $8,500 toward the Former Wife’s attorney’s fees of $17,200.

Generally, an order modifying alimony is reviewed for abuse of discretion; see Leonard v. Leonard, 971 So.2d 263, 266 (Fla. 1st DCA 2008), and appellate courts will only disturb such an order when the alimony amount exceeds or virtually exhausts the paying spouse’s income, see Hotaling v. Hotaling, 962 So.2d 1048, 1051 (Fla. 2d DCA 2007) and cases cited therein. Further, a trial court has the discretion to award attorney’s fees in modification proceedings after considering the parties’ financial resources. § 61.16(1), Fla. Stat. (2008). But “[wjhere there is a substantial disparity between the parties’ incomes, it may be an abuse of discretion to grant a partial attorneys’ fee award.” Mount v. Mount, 989 So.2d 1208, 1210 (Fla. 2d DCA 2008) (quoting Lowman v. Lowman, 724 So.2d 648, 650 (Fla. 2d DCA 1999)).

The evidence considered by the court included the Former Husband’s February 2009 amended financial affidavit showing $10,027 gross monthly income and the Former Wife’s April 16, 2009, amended financial affidavit reflecting $2,000 gross monthly income. When the parties divorced in 2006, agreeing to $8,000 monthly alimony, the Former Wife essentially was not working; she earned approximately $120 per month as a sales associate in a clothing store. She testified that after the Former Husband started making partial alimony payments, she increased her working hours, cut back on her expenses and nonessential expenditures, and borrowed money from her parents. She has a Vanguard IRA worth approximately $88,000 from which she made no withdrawals.

The Former Husband, on the other hand, maintains $10,547 in monthly business and personal expenses, excluding alimony and child support. He testified that prior to September 2008 he met all his financial obligations, including $9,350 in monthly alimony and child support, by using his 2007 tax refund, withdrawing roughly $20,000 from his UBS stock account, delaying payment of his 2008 self-employment taxes, and “living off credit cards.” After reducing his payments to the Former Wife, the Former Husband continued to pay his bills, debts, and expenses (including a sizeable monthly tab at a local sports bar), remaining current on all of them even at the time of the final hearing in April 2009. Between October 2008 and January 2009, he withdrew another $25,000 from his UBS stock account and on the eve of the hearing he depleted the $9,000 balance in the account. The Former Husband testified he used the $25,000 to “help pay expenses.” But the $9,000 was not earmarked for any particular expense(s) or debt(s). Rather, he withdrew the money because “I need it” and because he did not want to be “penalized.” As of the date of the final hearing, the Former Husband had not invaded his $91,000 UBS rollover retirement account, his $11,000 Wachovia IRA, or his $30,000 UPS savings plan account. Also untouched was approximately $18,000 in stock from his former employer and $30,000 in stock options from the company with which he is currently affiliated.

Based upon this evidence, we see no abuse of discretion by the trial court in setting the temporarily modified alimony payment at $5,000. This amount neither exceeds nor virtually depletes the Former Husband’s income. And the evidence demonstrates he is able, even with reduced income, to maintain the lifestyle he had prior to 2008. Furthermore, the trial court will reassess the Former Husband’s financial situation and the need for continued modification when the 16-month period expires. We also find sufficient eviden-tiary support for the trial court’s finding that the Former Husband is in a superior financial condition compared to the Former Wife. Thus the court did not abuse its discretion in granting the Former Wife a partial attorney’s fee award.

AFFIRMED.

DAVIS and BENTON, JJ., concur.


text:
    Thomas Eugene THORNE, Petitioner, v. DEPARTMENT OF CORRECTIONS and Florida Parole Commission, Respondents.
    No. 1D08-5675.
    District Court of Appeal of Florida, First District.
    May 26, 2010.
    Thomas Eugene Thorne, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, Florida Department of Corrections, and Holly N. Simcox, Assistant General Counsel, Tallahassee; Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondents.
   PER CURIAM.

Petitioner Thomas Eugene Thorne, after violating his parole and being returned to custody of the Florida Department of Corrections, was interviewed for setting his Presumptive Parole Release Date (PPRD) on May 31, 2007. The parole examiner recommended a PPRD of February 8, 2012. The Florida Parole Commission did not accept the recommendation and established the PPRD for February 8, 2034, in an order issued on July 27, 2007. Thorne wrote to the Commission on February 18, 2008, and asked for administrative review. He acknowledged that his request was untimely but explained that he had not received the July 27, 2007, order until January 14, 2008. The Commission denied the review request as untimely.

Thorne then sought relief by filing a mandamus petition in the Circuit Court for Leon County. After considering the response of the Commission and petitioner’s reply to the response, mandamus was denied. Thorne timely seeks review of the circuit court’s order by writ of certiorari. We have jurisdiction in accordance with Sheley v. Florida Parole Commn., 720 So.2d 216 (Fla.1998). For the reasons set forth below, we grant the petition for writ of certiorari, quash the circuit court’s order, and remand with directions to grant the petition for writ of mandamus.

Section 947.173(1), Florida Statutes, provides:

An inmate may request one review of his or her initial presumptive parole release date established according to s. 947.16(1) if the inmate shows cause in writing, with individual particularities, within 60 days after the date the inmate is notified of the decision on the presumptive parole release date.

Thus, the determinative fact in deciding whether Thorne’s request for review was timely was when he was “notified” of the Commission’s action. No argument is made that he received such notice other than through the July 27, 2007, order. Thorne’s claim was supported below by his circuit court petition itself (which included his statement that he did not receive the order until January 2008), properly executed under oath. He also provided the circuit court with two persuasive documents. The first, dated November 28, 2007, was an inmate request to DOC about any ruling on his PPRD. It stated that it was Thorne’s second inquiry regarding the PPRD determination. The Department’s response was that he would have been given a copy of any orders concerning his PPRD. The second inmate request, dated January 9, 2008, again asked for information regarding the PPRD determination. The response was that “there has been no communication from the Parole Commission since [the parole examiner’s] report. You will need to write them directly for an update. I have reviewed the computer and your file and there is no new information at this time.”

The Commission opposed relief on two theories in the circuit court. First, Thorne signed an acknowledgement at the time of the interview which included notice that the Commission would set a PPRD within 90 days of the interview. Therefore, according to this theory, Thorne should have begun his search for the Commission’s order sooner and, if he had done so, he would have discovered it in time to timely seek administrative review. The Commission’s second argument was based on the affidavit of one of its staff members who provided “routine practice” evidence as to how such orders are executed and mailed, and described the status of Thorne’s file which indicated his order was handled in conformance with such practices.

We find that, based on this evidence, denial of mandamus relief by the circuit court was a substantial departure from the essential requirements of law. The Commission’s argument regarding Thorne’s duty to inquire runs counter to its well-established responsibility to see that its orders are received by the party or parties to the cause. Jenkins v. State, 603 So.2d 641 (Fla. 5th DCA 1992). Its second argument combines circumstantial evidence that an order issued pursuant to the Commission’s routine practice would tend to prove that the order was in fact mailed in accordance with that practice, and the presumption that mail which is properly addressed and delivered to postal authorities is received by the addressee. See Reich v. Dep't of Health, 868 So.2d 1275 (Fla. 1st DCA 2004). However, the Commission offered no proof that the envelope containing the order was properly addressed and therefore arguably the presumption never arose. Star Lakes Estates Ass’n, Inc. v. Auerbach, 656 So.2d 271 (Fla. 3d DCA 1995). And even if the presumption did initially arise, it was a section 90.303 presumption and did not survive in the face of Thorne’s evidence of the nonexistence of the presumed fact. See Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 303.1 (2009 ed.).

In many cases of this nature, an eviden-tiary hearing will be required to determine when the recipient actually received the order. See W.T. Holding, Inc. v. Agency for Health Care Admin., 682 So.2d 1224 (Fla. 4th DCA 1996). However, here no hearing is necessary because of the failure of the Commission’s proof as discussed above and the quantum of petitioner’s proof, especially documentation by the Department of Corrections that Thorne did not receive any communication from the Commission during the time in question. See Simmons v. State, 940 So.2d 1250 (Fla. 1st DCA 2006).

The petition for writ of certiorari is granted and the order of the circuit court denying Thorne’s mandamus petition is quashed. We remand to the circuit court with directions to grant the petition for writ of mandamus, ordering the Florida Parole Commission to treat Thorne’s request for review as timely and act on it on the merits.

PETITION GRANTED.

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    ABC HOME HEALTH and AIG Claim Services, Inc., Appellants, v. Patricia LAWSON, Appellee.
    No. 1D08-4152.
    District Court of Appeal of Florida, First District.
    May 26, 2010.
    Wayne Johnson of DeCiccio & Johnson, Winter Park, for Appellants.
    Willa M. Russell, Clearwater, for Appel-lee.
   PER CURIAM.

In this workers’ compensation appeal, the employer/carrier challenges an order of the Judge of Compensation Claims (JCC) which awards lawn care, a hot tub, and a dental evaluation. We affirm the award of the hot tub and dental evaluation because competent substantial evidence supports the JCC’s findings regarding the medical necessity of this care. We reverse the award of lawn care services because no evidence established a medical need for Claimant’s yard to remain well-maintained or that there would be adverse medical consequences if the yard is not maintained. See S. Indus. v. Chumney, 613 So.2d 74, 77 (Fla. 1st DCA 1993). Absent such a showing, the statute in effect for Claimant’s date of accident expressly prohibits an award of services to assist an injured worker in performing “household duties.” See 440.13(2)(g), Fla. Stat. (Supp. 1990) (“[Attendant or custodial care means care usually rendered by trained professional attendants and beyond the scope of household duties.”).

AFFIRMED in part, REVERSED in part.

WOLF, KAHN, and ROBERTS, JJ., concur.


text:
    Kathy A. STEVENS, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 1D09-1990.
    District Court of Appeal of Florida, First District.
    May 26, 2010.
    Kathy A. Stevens, pro se, Appellant.
    Cindy Runyan of Florida Default Law Group, P.L., Tampa, for Appellee.
   PER CURIAM.

Appellant seeks review of an order granting summary judgment in favor of Appellee. However, the order on appeal did not address Appellant’s counterclaims. On April 21, 2010, this Court issued an order directing Appellant to show cause why this appeal should not be dismissed due to the pending counterclaims. Appellant failed to respond to this Court’s order. Based on the record, this Court has determined that Appellant has prematurely filed the notice of appeal. Because the counterclaims are not separate and distinct from the claims disposed of on summary judgment, the order under review is not appealable as a partial final judgment. Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008); Dempsey v. Russell, 966 So.2d 1021, 1022 (Fla. 1st DCA 2007). Accordingly, we DISMISS this appeal for lack of jurisdiction.

DAVIS, CLARK, and WETHERELL, JJ., concur.


text:
    Victoria L. JONES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Carnival Cruise Lines, Inc., Appellee.
    No. 1D09-3474.
    District Court of Appeal of Florida, First District.
    May 26, 2010.

      Victoria L. Jones, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, and Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

Victoria L. Jones appeals from a decision of the Unemployment Appeals Commission (“Commission”) affirming an appeals referee’s order deeming her ineligible for unemployment compensation because of work-related misconduct. She argues that the facts in her case do not constitute misconduct. We disagree and affirm.

Ms. Jones worked for a cruise line as a reservations sales agent. On December 2, 2008, she requested two weeks unpaid leave beginning December 14, 2008. Despite receiving an e-mail message on December 10, 2008, denying her request, Ms. Jones did not report for work on the 14th, 15th, 16th, or 17th. When contacted by her supervisor on the 17th, Ms. Jones stated she would not be returning to work until the 31st and declined to give a reason for being absent. She was discharged that day for taking an unapproved leave of absence. The appeals referee concluded that Ms. Jones was discharged by her employer for misconduct, reasoning that “[ijt was shown that the claimant was denied the [requested] leave” and that “[t]the claimant knew, or should have known, that taking the leave of absence could lead to dismissal.” The referee further found that “[t]he claimant’s actions demonstrate a violation of a standard of behavior the employer had a right to expect, and show an intentional disregard of the claimant’s duties and obligations to the employer.” The Commission upheld the referee’s order.

Under section 443.101(l)(a), Florida Statutes (2008), a person is disqualified from receiving unemployment benefits when “he or she ... has been discharged by his or her employing unit for misconduct connected with his or her work.” Section 443.036(29), Florida Statutes (2008), defines “misconduct” as follows:

“Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

Ms. Jones failed to show up to work for several days knowing that her request for time off had been denied. She refused to return when contacted by her employer and refused to give a reason for her absence. Even when testifying before the appeals referee, Ms. Jones would not explain her absence, saying only that she needed to be away from work “for personal reasons.” With no evidence in the record justifying Ms. Jones’s absence from work, we discern no error in the determination that her employment was terminated for work-related misconduct. Cf. Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 503 (Fla. 4th DCA 2004) (no misconduct where employee who was denied time off left job to care for ailing father in another country).

AFFIRMED.

KAHN, ROWE, and MARSTILLER, JJ., concur.


text:
    Ronnie Antwan RICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5954.
    District Court of Appeal of Florida, First District.
    May 26, 2010.
    Charles L. Truncate of Charles L. Truncate, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has filed a rule 3.800(a) motion asserting that his 40-year sentence for attempted robbery with a firearm is illegal. Because it appears that the appellant’s sentence exceeds the statutory maximum, the appellant is entitled to be resen-tenced.

Attempted armed robbery is a second-degree felony punishable by up to 15 years’ imprisonment. §§ 812.13(2)(a), 777.04(4)(e), 775.082(3)(c), Fla. Stat. (2006); Washington v. State, 11 So.3d 998 (Fla. 1st DCA 2009). If the lowest permissible sentence on the Criminal Punishment Code scoresheet exceeds the statutory maximum sentence, the sentence required by the Code must be imposed. See Fla. R.Crim. P. 3.704(d)(25); § 921.0024(2), Fla. Stat. (2006); Butler v. State, 838 So.2d 554, 555-56 (Fla.2003). In the instant case, the appellant’s lowest permissible sentence on the scoresheet was 16.375 years’ imprisonment, and the 40-year sentence imposed clearly exceeds both the 15-year statutory maximum and the lowest permissible sentence.

Accordingly, we reverse and remand for resentencing. We affirm without further discussion the appellant’s remaining claims.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

HAWKES, C.J., BENTON and LEWIS, JJ., concur.


author: BENTON, J.

text:
    K.W., Mother of J.T. and T.A., Minor Children, Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D09-6507.
    District Court of Appeal of Florida, First District.
    May 26, 2010.

      John D. Whitaker of Kinsell & Associates, Special Court Appointed Attorney, Gainesville and Doris Rompf, Jacksonville, for Appellant.
    Stacey Bareli Steinberg, Department of Children and Family Services, Gainesville, Ward L. Metzger, Appellate Counsel, Department of Children and Family Services, Jacksonville, for Appellee.
    Jennifer S. Paullin, Guardian Ad Litem, Tavares, and Susan Miller-Jones, Guardian Ad Litem, Gainesville.
   BENTON, J.

We affirm the final order terminating KW.’s parental rights in all respects except one. See J.C. v. Dep’t of Children & Families, 959 So.2d 431, 431 (Fla. 4th DCA 2007). The evidence to prove abandonment was not “clear and convincing [and the finding otherwise was not] supported by competent substantial evidence.” N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 1000 (Fla. 1st DCA 2003).

Here, as in J.C., however, “despite th[e] error [in ruling that K.W. abandoned the children], the termination of ... parental rights itself is affirmed, because two other grounds supporting termination were established by DCF.” 959 So.2d at 431. Accord A.B. ex rel. J.B. v. Dep’t of Children & Families, 969 So.2d 422, 422 (Fla. 1st DCA 2007) (affirming order terminating AB.’s parental rights where supported by adequate evidence on 39.806(l)(c) and (e) grounds, but reversing portion of order terminating parental rights under 39.806(b) on abandonment grounds for insufficient evidence). On the present appeal, importantly, there has been no challenge to the trial court’s ruling that the best interests of the children required termination of K.W.’s parental rights. Cf. C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520, 523 (Fla. 1st DCA 2002) (“We nevertheless remand for reconsideration of A.C.’s best interests, in accordance with section 39.810, Florida Statutes (2000), because the fact findings in the order under review are erroneous and incomplete.”).

Therefore, “we affirm the termination of [KW.’s] parental rights under section 39.806(l)(c) and (e), but reverse that portion of the order terminating her parental rights on the ground that she abandoned her children under section 39.806(l)(b) and remand for this finding to be stricken from the order.” A.B. ex rel. J.B, 969 So.2d at 422.

HAWKES, C.J. and LEWIS, J., concur.


author: GERSTEN, J. COPE, J.

text:
    PARK ADULT RESIDENTIAL FACILITY, INC., Appellant, v. DAN DESIGNS, INC., etc., Appellee.
    No. 3D09-3235.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.

      Michael I. Bernstein, for appellant.
    Koch & Trushin, Bradley H. Trushin, Fort Lauderdale, and Marcus J. Susen, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   GERSTEN, J.

Park Adult Residential Facility, Inc. (“the landlord”) appeals from an order denying its motion for immediate default and issuance of writ of possession against Dan Designs, Inc., etc. (“the tenant”). We reverse.

The landlord sued the tenant for failure to pay rent due under the parties’ lease agreement. Additionally, the landlord moved for an order directing the tenant to deposit the monthly rent into the court registry. Thereafter, the trial court ordered the tenant to deposit the rent into the court registry by November 3, 2009.

On November 4, 2009, the tenant attempted to deposit the ordered rent into the court registry, but the court clerk rejected the deposit as untimely. Subsequently, the landlord moved for an immediate default and writ of possession under section 83.232(5), Florida Statutes (2009).

Before the trial court ruled on the landlord’s motion for immediate default and writ of possession, the tenant moved for an order allowing it to deposit the rent. The tenant claimed that it was unable to deposit the rent by November 3, 2009, because law enforcement closed the offices of tenant’s attorneys, Rothstein Rosenfeldt Adler, P.A. The trial court denied the landlord’s motion for default and immediate possession. This appeal followed.

On appeal, the landlord asserts that the trial court had no discretion under section 83.232(5) to deny an immediate default and writ of possession when the tenant failed to deposit rent timely into the court registry. The tenant contends that the trial court properly exercised its discretion in light of the unusual circumstances in this case. We agree with the landlord and reverse.

Section 83.232(5) provides: “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” Florida courts consistently have held that trial courts have no discretion in entering an immediate default for possession under these circumstances. The trial court may not consider the reasons why the deposit was not timely made. See Kosoy Kendall Assocs., LLC v. Los Lati nos Rest. Inc., 10 So.3d 1168 (Fla. 3d DCA 2009), and cases cited therein.

Here, the tenant failed to deposit the rent into the court registry on the date ordered. Regardless of the tenant’s reason for failing to make the deposit, the trial court was statutorily required to enter an immediate default and writ of possession. Thus, in accordance with the law, the trial court erred in denying the landlord’s motion for entry of a default and writ of possession.

Accordingly, we reverse the order entered below, and remand for entry of an immediate default and writ of possession in this case.

Reversed and remanded.

SCHWARTZ, Senior Judge, concurs.

COPE, J.

(dissenting).

As the failure to make the payment was not the fault of the litigant, we should affirm the order now under review.

I.

This is a commercial eviction case in which Park Adult Residential Facility, Inc. is the landlord and Dan Designs, Inc. is the tenant. The property is located on Ocean Drive in Miami Beach. The tenant took possession in 2002.

In 2006, the parties renewed the lease for a five-year term. The tenant paid the landlord $150,000 upon the renewal for capital improvements and costs reimbursements.

In 2009, the landlord filed a complaint for eviction for nonpayment of rent for the month of September 2009. The landlord filed a motion for an order directing the tenant to deposit the monthly rent into the court registry.

On Thursday October 29, 2009, the court entered an agreed order directing the tenant to deposit the rent for September and October 2009 in the court registry within three days. This meant that the due date for the deposit was Tuesday November 3, 2009. See § 83.232(1), Fla. Stat. (2009).

Under the statute, there are drastic consequences if the court-ordered deadline is not met. “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” Id. § 83.232(5).

At the time the agreed order was entered, the tenant was represented by attorneys at the firm of Rothstein Rosen-feldt Adler (“RRA”) in Ft. Lauderdale, Florida. On Sunday November 1, federal authorities seized the law firm premises in connection with an alleged Ponzi scheme carried out by the law firm’s senior partner, Scott W. Rothstein.

Turmoil at the law firm ensued. According to the attorneys, the firm no longer had an ability to issue trust account checks. It was therefore necessary for the tenant to obtain cashier’s checks to deposit in the court registry.

On Monday November 2, the tenant obtained two official checks issued by Citibank, each in the amount of $21,400, for a total of $42,800. On November 3, the tenant provided these checks to counsel. Counsel arranged for one of the RRA law firm’s in-house couriers to deliver the checks to the registry of the court in Miami. The same day counsel served a notice of payment to the court registry and attached copies of the Citibank checks.

However, during the work day on November 3, the law firm employees were informed that they would no longer be paid. Many employees, including the one or ones responsible for delivering these checks, walked off the job. Accordingly the November 3 deadline passed without the checks being deposited in the registry of the court.

On November 4, counsel learned of the nondelivery of the checks. Counsel personally took the checks to the court registry in Miami on November 4 but the clerk refused to accept the checks because they were tendered a day late.

On November 9, the tenant filed a motion for the court to accept payment of the rent into the court registry. On November 19, the landlord filed an ex parte application for order of default and immediate possession.

After hearing argument, the court granted relief to the tenant, and authorized the tenant to deposit the past due rent into the court registry. The tenant did so. The landlord has appealed.

II.

I cannot agree with the assertion in the majority opinion that the trial court was without authority to grant relief. “Statutes should be construed in light of the manifest purpose to be achieved by the legislation.” Tampa-Hillsborough County Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So.2d 926, 929 (Fla.1983). The purpose of this statute is to assure that the landlord will be paid for the rent which accrues during eviction litigation. The tenant acted in accordance with the statute. The tenant timely obtained bank checks totaling $42,800 and gave them to counsel for delivery to the registry of the court. Counsel gave the checks to a law firm employee who subsequently walked off the job without delivering the checks. Counsel personally took the checks to the court the next day, but the clerk refused to accept them.

The majority opinion relies on Kosoy Kendall Assocs., LLC v. Los Latinos Restaurant, Inc., 10 So.3d 1168 (Fla. 3d DCA 2009), but that case is not like this one. In that case the deadline was February 1, 2009. The landlord filed an ex parte motion for possession on February 2. The tenant tendered payment on February 5. In that case the defendant did not come up with the funds until after the court-ordered deadline. In this case the tenant timely obtained the funds and timely arranged for delivery, only to have delivery frustrated (through no fault of the tenant) when the courier walked off the job.

In analogous circumstances, this court has granted relief. In Middleton v. Silverman, 430 So.2d 981 (Fla. 3d DCA 1983), the plaintiff attempted to file a complaint at the Dade County Courthouse on the last day of the statute of limitations. The plaintiff arrived at the courthouse after 2 p.m., only to learn that the courthouse had closed at two o’clock (instead of staying open until five o’clock) because of a civil disturbance in the City of Miami. Id. at 982. The following day, the courthouse reopened and the plaintiff filed the complaint. The trial court dismissed the complaint as being time-barred but this court reversed because “the plaintiff made a positive and identifiable attempt to commence the action within the applicable statute of limitations and because it is also undisputed that this attempt was frustrated due to the court being closed as a result of civil disorder....” Id. Filing on the next business day was deemed to be timely.

The facts of this case are analogous. Here the tenant made a positive and identifiable effort to comply with the statute by obtaining the funds in the form of official checks acceptable to the circuit clerk, and delivering them to counsel for deposit in the court registry. This effort was frustrated because of the fortuity that the RRA employee walked off the job without delivering the checks.

The trial court rightly pointed out that the dereliction in this case should not be held against the client. The Florida Supreme Court has said that a court’s decision to dismiss a case “based solely on the attorney’s neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote.” Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). In that case, plaintiffs counsel failed to amend a complaint within a court ordered deadline. The trial court dismissed the action with prejudice. On review, the Florida Supreme Court adopted factors to be considered in determining whether a trial court should grant dismissal with prejudice:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was 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 noneomplianee; and 6) whether the delay created significant problems of judicial administration.

Id. at 818; see also Beasley v. Girten, 61 So.2d 179, 181 (Fla.1952). All of the Kozel factors weigh in the tenant’s favor here. The fault was the fault of the law firm employee, not the client.

III.

To the extent that the majority opinion may be concerned about a “slippery slope” argument, the issue in this case is confined to a situation where the tenant has done what was required under the statute— timely obtained the funds which are required to be deposited in the registry of the court and timely provided the funds to the law firm for delivery to the registry of the court. It is difficult to imagine that the legislature intended the unreasonable consequence occasioned by the majority opinion. As the Florida Supreme Court has said, “We have long held that the Court should not interpret a statute in a manner resulting in unreasonable, harsh, or absurd consequences.” Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1270 (Fla.2008).

For the stated reasons, we should affirm the order which allowed the tenant to deposit the funds into the court registry (which the tenant has done), and which denied the landlord’s request for immediate eviction.

      . Although we may have "rachmones” for the tenant, see Lerner v. Brin, 608 So.2d 519 (Fla. 3d DCA 1992), the law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute.

       The alleged Ponzi scheme had nothing to do with this tenant, who was a client of the RRA law firm.


author: SUAREZ, J.

text:
    Anthrone McKINZY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-704.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.
    Rehearing Denied June 28, 2010.

      Anthrone McKinzy, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

We treat this petition as an appeal from a denial of a motion to vacate judgment. Finding no merit, we affirm.


text:
    Christopher Martin HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0028.
    District Court of Appeal of Florida, First District.
    May 26, 2010.
    William Kemper Jennings, Defuniak Springs, for Appellant.
    Bill McCollum, Attorney General and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his convictions and sentences for aggravated battery and burglary of a dwelling. Appellant raises a number of issues, only two of which merit discussion: 1) whether the trial court erred in excluding evidence of Appellant’s knowledge of the victim’s previous acts of violence that was relevant to Appellant’s claim of self-defense; and 2) whether the trial court erred in denying Appellant’s motion for judgment of acquittal on the burglary charge because there was no evidence that he intended to commit a criminal offense when he entered the dwelling. For the reasons that follow, we reverse the first issue and remand for a new trial on the aggravated battery charge and we affirm the second issue. We affirm the other issues raised by Appellant without further comment.

In December 2008, Appellant decided to take a “mini vacation” with his girlfriend in order to spend “a romantic couple of nights together with just each other.” Appellant obtained a key to a rental home in Destín without authorization from the owner and he and his girlfriend spent three days using the home. On the last day, they had an argument and physical altercation during which Appellant’s girlfriend was seriously injured. At trial, Appellant’s defense to the aggravated battery charge was that his girlfriend was threatening him with a knife and that he injured her in self-defense. He sought to introduce evidence of his knowledge of his girlfriend’s previous acts of violence against others, including specific instances of her threatening her ex-husband and current husband with knives. The trial court excluded this evidence on hearsay grounds.

On appeal, Appellant correctly argues that the evidence was not hearsay and that it was admissible to show that he knew of his girlfriend’s propensity for violence. When a defendant raises self-defense, evidence of specific prior acts of violence by the victim, which were known to the defendant, is admissible to show the reasonableness of the defendant’s apprehension at the time of the incident. See Smith v. State, 606 So.2d 641, 642-48 (Fla. 1st DCA 1992). The State concedes that the trial court erred in excluding the evidence, but argues that the error is harmless in light of the evidence of the girlfriend’s prior acts of violence that was admitted.

The trial court’s error in excluding the evidence was not harmless. “The harmless error test ... places the burden on the state ... to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1134 (Fla.1986). This test “is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test” but rather focuses the effect of the error on the trier-of-fact. McDuffie v. State, 970 So.2d 312, 328 (Fla.2007) (citing DiGuilio, 491 So.2d at 1139). Given that Appellant’s entire case rested on the theory of self-defense, we are unable to say that the error in excluding the testimony regarding his knowledge of his girlfriend’s prior acts of violence had no effect on the jury’s verdict despite the fact that the jury heard testimony about some of the acts. Because the trial court’s error was not harmless, Appellant’s aggravated battery conviction must be reversed and remanded for a new trial.

Appellant also argues that his burglary conviction should be reversed. He contends that he was merely guilty of trespass and that that the trial court erred in denying his motion for judgment of acquittal on the burglary charge because the State did not prove that he intended to commit a crime at the time that he entered the dwelling. The State contends that Appellant’s use of the rental home constituted theft and that it presented sufficient evidence for the jury to determine that Appellant had the intent to commit that offense at the time he entered the dwelling. We review this issue de novo, viewing all evidence and reasonable inferences in the light most favorable to the State. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc); State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999).

In support of his claim, Appellant relies solely on J.J.D. v. State, 973 So.2d 1254 (Fla. 2d DCA 2008). In that case, the juvenile defendant and a friend entered a vacant house and took a bank bag belonging to the owner of the house. Id. at 1254. The two boys were runaways and had been using the vacant house as a “hideaway.” Id. While the boys were gone, the owner arrived and left the bag in the house, which was missing when the owner returned. Id. The trial court determined that the defendant had committed a burglary, but the Second District Court of Appeal reversed, holding that the State failed to prove that the defendant had an intent to commit an offense when he entered the house and, therefore, the defendant was guilty of only trespass. Id. The court held that the defendant could not have had the intent to steal the bag that he did not know was in the house at the time he entered. Id.

J.J.D. is distinguishable. First, the court did not even consider whether the defendant’s use of the vacant house as a hideaway constituted theft, but rather focused on the defendant’s taking of the bag. Second, the dwelling in that case was a vacant house, not a rental home as in this case.

The State presented sufficient evidence that Appellant was guilty of burglary, which is defined as:

1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or
c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.

§ 810.02, Fla. Stat. (2007). Appellant testified that he entered the rental home with the intent to use it as lodging during a romantic “mini vacation” with his girlfriend. His use of the rental home without paying meets the statutory definition of theft:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

§ 812.014, Fla. Stat. Property is defined as anything of value and includes real property, tangible or intangible personal property including rights, privileges, interests, claims, and services. § 812.012, Fla. Stat.

Appellant’s conduct in improperly obtaining access to the rental home and using it over the course of three days falls under the definition of theft. Indeed, according to his own testimony, Appellant intended to use the home for a romantic “mini vacation,” which is clearly appropriating the property to his own use. Where Appellant had this intent upon entering the dwelling, his conduct constitutes burglary.

In sum, we affirm Appellant’s burglary of a dwelling conviction and reverse Appellant’s aggravated battery conviction. We remand this case to the trial court for a new trial on the aggravated battery charge.

AFFIRMED in part; REVERSED in part; REMANDED.

DAVIS, CLARK and WETHERELL, JJ., concur.


author: PALMER, J.

text:
    BLACK DIAMOND PROPERTIES, INC., et al., Appellant, v. Charles S. HAINES, Kathy Haines, et al., Appellee.
    No. 5D09-894.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.

      Anne S. Mason of Mason Law, P.L., Clearwater, and Edward A. Marod of Edward A. Marod, P.A., West Palm Beach for Appellant.
    Steven A. Rothenburg, Ocala, and John C. Bell, Jr., of Bell & Brigham, Augusta, GA for Appellee William Bristol.
    No Appearance for Appellees Charles S. Haines, Kathy Haines, Richard 0. Conboy, Jackson Randolph, Larry Laukka, Angelo Masut, Brenda Masut and Tom Howell.
   PALMER, J.

Black Diamond Properties, Inc. (Black Diamond) appeals the final order entered by the trial court denying its motion seeking prevailing party attorney’s fees and costs against William Bristol, a plaintiff below who voluntarily dismissed his claims against Black Diamond. Determining that Black Diamond is entitled to recover certain attorney’s fees and costs as a prevailing party, we reverse.

A group of plaintiffs, including William Bristol, filed a complaint against Black Diamond asserting three claims: (1) misleading advertising under section 817.41 of the Florida Statutes, (2) deceptive and unfair trade practices under sections 501.201 through 501.204 of the Florida Statutes, and (3) conversion.

Bristol subsequently voluntarily dismissed all of his claims against Black Diamond pursuant to rule 1.420(a)(1) of the Florida Rules of Civil Procedure. Black Diamond responded by filing a motion for prevailing party attorney’s fees and costs. After conducting a hearing on the motion, the trial court denied Black Diamond’s request for attorney’s fees and costs, holding:

This Court agrees with the Plaintiff that the Defendants are not entitled to prevailing party fees and costs merely because the Plaintiff voluntarily dismissed his claim. Section 501.2105(1) requires a final judgment and exhaustion of appeals. The case law cited by the Defendants is distinguished on the facts. Furthermore, under the circumstances the Defendants have not prevailed under the “significant issues” test. Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992). Accordingly, the Defendant are not entitled to prevailing party attorney’s fees and cost with respect to Plaintiff Bristol.

This appeal timely followed.

Section 817.41(6) of the Florida Statutes (2008) authorizes the award of prevailing party attorney’s fees as follows:

817.41 Misleading advertising published.
* * *
(6) Any person prevailing in a civil action for violation of this section shall be awarded costs, including reasonable attorney’s fees, and may be awarded punitive damages in addition to actual damages proven. This provision is in addition to any other remedies prescribed by law. § 817.41(6), Fla. Stat. (2003). Section 501.2105(1) of Florida’s Deceptive and Unfair Trade Procedure Act attorney’s fee provision provides:
Attorney’s fees.
(1) In any civil litigation resulting from an act or practice involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney’s fees and costs from the nonprevailing party.

§ 501.2105(1), Fla. Stat.(2003)(emphasis added).

Our court has held that a defendant is a prevailing party when the plaintiff voluntarily dismisses an action pursuant to rule 1.420(a)(1) and, therefore, the defendant is entitled to recover attorney’s fees under a prevailing party attorney’s fee statute. Vidibor v. Adams, 509 So.2d 973 (Fla. 5th DCA 1987). Additionally, a prevailing party is entitled to recover an award of costs pursuant to rule 1.420(d) of the Florida Rules of Civil Procedure following a voluntary dismissal.

Black Diamond sought fees and costs pursuant to sections 817.41(6) and 501.2105(1) of the Florida Statutes. Both statutes require that a party be a prevailing party in order to be entitled to recover attorney’s fees. However, section 501.2105(1) also requires that there be an entry of judgment before attorney’s fees can be awarded. In this case, attorney’s fees cannot be granted to Black Diamond under section 501.2105(1) because judgment is not entered following a voluntary dismissal. Nolan v. Altman, 449 So.2d 898, 900-901 (Fla. 1st DCA 1984). Accordingly, Black Diamond is entitled to recover its attorney’s fees under section 817.41(6) only.

Bristol contends that Black Diamond cannot be deemed a prevailing party for attorney’s fees or costs because the underlying litigation has not yet been concluded. Our court has held otherwise.

In Long v. Martin, 410 So.2d 607 (Fla. 5th DCA 1982), several plaintiffs brought an action arising out of an airplane crash. One of the plaintiffs voluntarily dismissed their action pursuant to rule 1.420(a) of the Florida Rules of Civil Procedure. The trial court awarded the defendant costs pursuant to rule 1.420(d) of the Florida Rules of Civil Procedure. On appeal, the plaintiff argued that the award of costs was premature because the action was still pending. We rejected this argument, holding that the assessment of costs was appropriate:

[Rule 1.420(d) ] makes no distinction between dismissals by a single plaintiff and by one of several plaintiffs and we see no reason to create such a distinction. The interpretation sought by plaintiff would give an advantage to one of several plaintiffs not available to a single plaintiff, and not warranted by the rule in question.

Id. See also Heston v. Vitale, 432 So.2d 744, 745-46 (Fla. 4th DCA 1983). Therefore, under Long, Black Diamond is entitled to recover costs under rule 1.420(d).

Although Long does not directly address the recovery of prevailing party attorney’s fees, we conclude that the reasoning is analogous. Here, the action between Bristol and Black Diamond has ceased due to Bristol’s voluntary dismissal. As such, Black Diamond is the prevailing party in the action. Therefore, under Long, Black Diamond is entitled to recover prevailing party attorney’s fees despite the fact that the underlying litigation was unresolved.

Black Diamond also correctly argues that the trial court’s application of the significant issues test was not appropriate. In Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807, 810 (Fla.1992), the Florida Supreme Court concluded that the prevailing party on the significant issues is the prevailing party for attorney’s fees. However, subsequent decisions by the Court have established that Moritz is not applicable in all attorney’s fee disputes. In Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla.1994), the Court stated:

In Moritz and Prosper!, on the other hand, the right to attorneys fees potentially existed for either party, whether by contract or by statute. Thus, these cases applied only where there might be some confusion as to who actually is the prevailing party-where neither party has fully won nor fully lost, but both potentially can claim attorneys’ fees. Because that is not possible here, the entire rationale for Moritz and Prosper! simply is inapplicable.

Id. Here, there is no confusion over which party prevailed below. The only party entitled to recover attorney’s fees is Black Diamond because it was the prevailing party following Bristol’s voluntary dismissal.

Accordingly, Black Diamond is entitled to recover costs under rule 1.420(d) of the Florida Rules of Civil Procedure and this court’s holding in Long. Black Diamond is also entitled to recover attorney’s fees under section 817.41(6) of the Florida Statutes and this court’s holdings in Vidibor and Long. Black Diamond is not entitled to recover attorney’s fees under section 501.2105(1) of the Florida Statutes.

In closing, we note that Black Diamond’s entitlement to recover fees and costs would generally be limited to those fees and costs directly and exclusively related to each claim of Bristol on which recovery is allowed and would exclude any fees or costs that would have been incurred even if Bristol had not been one of the named plaintiffs. Although Bristol’s and the remaining plaintiffs’ claims were found to be essentially the same by the trial court, independent review of the record reveals that there is evidence of attorney’s fees and costs which might be attributable to Bristol’s participation in the suit separate and distinct from the other plaintiffs, such as the fees and costs incurred in preparing for and attending the deposition of Bristol.

AFFIRMED in part; REVERSED in part; and REMANDED.

LAWSON and JACOBUS, JJ., concur.

      . Prosperi v.Code, Inc., 626 So.2d 1360 (Fla.1993).