author: WARNER, J.

text:
    Carla R. MORRISON, Appellant, v. William E. WEST, Jr., Appellee.
    No. 4D08-1693.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Rehearing Denied April 16, 2010.

      Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., and A. Patricia Morales Christiansen of Casey, Ciklin, Lubitz, Mar-

      tens & O’Connell, West Palm Beach, for appellant.
    Gerald F. Richman and John R. Whittles of Richman Greer, P.A., West Palm Beach, for appellee.
   WARNER, J.

The issue presented in this case is whether an attorney not licensed to practice law in Florida, but who provided legal services in Florida in a probate and trust matter, is entitled to collect the quantum meruit value of his fee in an amount in excess of one million dollars. We hold that it violates public policy for a court to award a fee, even in quantum meruit, for the unlicensed practice of law. We reverse.

During the pendency of a divorce, appellant Carla Morrison’s husband, Pedro, died of a heart attack, leaving a very substantial estate. Carla Morrison (“Morrison”) was the beneficiary of a pour-over trust established by Pedro. The trust named Morrison as the income beneficiary and named her husband’s brother, Carlos, as trustee and his nephew, Tommy, as the remainder beneficiary. Disputes arose between Morrison, as the income beneficiary, and Carlos, the trustee, regarding the trust.

Initially, Morrison hired Gary Woodfield of the law firm of Edwards, Angelí, Palmer & Dodge to represent her on estate matters. One of the matters on which Woodfield began work in June of 2004 was a demand that the trust increase the amount of income to be paid to Morrison. Apparently, somewhat dissatisfied with Woodfield, Morrison learned about attorney William West through a friend. She contacted West, who was licensed to practice in North Carolina, but not in Florida. West agreed to investigate the case in exchange for a $10,000 fee and reserved the right to modify the fee arrangements if the scope of his engagement changed.

West specializes in complex transactions requiring substantial accounting knowledge. He has appeared pro hac vice in Florida cases involving complex commercial transactions. However, he admitted that he had no experience in Florida probate or trust law. After being contacted by Morrison, he purchased a book on trust law in Florida and spoke to its author in order to acquaint himself with Florida requirements.

On August 12, 2004, West wrote a letter to Morrison acknowledging that he would need to be admitted in Florida pro hac vice and to associate with Florida counsel. The next day he traveled to West Palm Beach to begin his investigation and stayed three days.

Morrison gave West a check for $10,000 which he considered his investigative fee. After West completed his initial investigation he faxed a letter to Morrison in which he agreed to attempt to increase the amount of income she was receiving from the trust and also to try to terminate one or more of the trusts. West acknowledged in the letter that, because he was not licensed to practice in Florida, he would need outside counsel to assist him. He also indicated that his fee would be 22.5% of all increases which Morrison would receive above the current monthly income of $50,000 that she was already receiving. In fact, Morrison was actually already receiving $85,000 monthly at that time. Morrison signed the agreement with West. As a result, West billed Morrison for the 22.5% of the $35,000 increase in her income, for a total of $31,500 through December 2004, even though the increase in income was not attributable to any work that West had performed.

In another letter to Morrison, he again noted that he was not a member of the Florida Bar and would have to secure the services of another attorney in Florida.

To secure representation, in September, 2004, West contacted McDonald & Crawford, lawyers he knew in Fort Lauderdale who had expertise in probate and trust matters. He drafted a motion to appear pro hac vice and sent it to this firm. A lawyer with the firm had telephone discussions with West, but West never retained the firm after McDonald sent West an email wanting to firm up a fee agreement with West. No motion was submitted to the court to admit West for practice in the probate proceedings.

Thereafter West represented Morrison in Florida at pre-suit mediation on November 22, 2004. The mediation resulted in a handwritten settlement agreement settling Morrison’s disputes with the estate and the trust. On January 19, 2005, the day before a hearing to approve the settlement, West brought the typed version of the settlement agreement to Morrison’s home to sign. Paragraph 8 of the settlement agreement states, “One million dollars paid to Carla on closing date from Trust, before Q-TIP is funded.” Along with the settlement agreement, West brought another paper for her signature which obligated Morrison to write a check to West in the amount of $1,000,000. Morrison testified that when she saw that paper, things came to a screeching halt. Early the next morning she fired West. She called Woodfield, her prior lawyer, and re-hired him to represent her at the probate confirmation hearing scheduled for later that day. Woodfield asked West to attend the hearing to answer any questions about the settlement terms. West faxed him a letter indicating that he would attend because he had a $1,000,000 fee interest in the case.

At the hearing the probate judge approved the settlement and required the $1,000,000 to be placed into Woodfield’s trust account. Later, this amount was disbursed to Morrison. Although the court subsequently ordered her to return the funds to the trust account, she was unable to do so.

Thereafter Morrison filed suit against West seeking a declaratory judgment that he had engaged in the unlicensed practice of law and was not entitled to fees for services. She also sought a refund of the fees she had already paid him. Morrison alleged that the Settlement Agreement was silent as to any fee or payment to West and that the $1,000,000 was to be paid to her, not West. Morrison contended that because West is not an attorney licensed in Florida, his fee agreement with Morrison was void ab initio and could not be enforced.

West filed a counterclaim seeking a declaration that he was entitled to the $1,000,000 fee and included counts for breach of contract, constructive trust, promissory estoppel, and unjust enrichment. After a trial on the merits, the court found that West engaged in the unauthorized practice of law and that his retainer agreement was void ab initio. The court found that West was not licensed to practice in Florida and had agreed to represent Morrison without associating with a Florida law firm or being admitted pro hac vice. The court accepted West’s testimony that the $1,000,000 in the settlement agreement constituted West’s fee. The court did not find the $1,000,000 amount to be unreasonable, because West had achieved Morrison’s objectives. The court ruled that allowing Morrison to retain the fruits of West’s representation without compensation would be unjust enrichment and awarded West a quantum meruit recovery of $1,000,000. From this final judgment, Morrison appeals the quantum meruit award, and West cross-appeals the finding that the contingency fee contract was void ab initio.

The trial court appropriately recognized that West’s letter contract with Morrison was void ab initio based upon Chan-dris, S.A. v. Yanakakis, 668 So.2d 180 (Fla.1995). In Chandris our supreme court held that entering into a contingent fee contract to provide legal services in Florida by an attorney not authorized to practice in this state was void ab initio unless the services provided fit into one of the exceptions permitted in Florida Bar v. Savitt, 363 So.2d 569 (Fla.1978). Those exceptions generally require association with a Florida attorney, or involve the communication of advice related to the application of federal law to a transaction or representation in federal administrative proceedings. None of the exceptions permit an attorney not authorized to practice law in Florida to dispense advice to, or provide representation of, Florida clients with respect to Florida law and proceedings.

The supreme court explained its holding in Chandris as supporting policy concerns related to protection of the public. The prohibition on the unauthorized practice of law in Florida derives not only from the Rules of Professional Conduct, but also from statutory law. The court in Chandris noted that section 454.23, Florida Statutes (1983), provided that “[a]ny person not licensed or otherwise authorized by the Supreme Court of Florida who shall practice law ... shall be guilty of a misdemeanor of the first degree.” Relying on long established precedent requiring admission to the bar, the court said:

Florida has a unified bar, and all persons engaged in the practice of law here must be members of that bar. Petition of Florida State Bar Ass’n, 40 So.2d 902 (Fla.1949). More than thirty years ago, we enunciated why we prohibit those who are not members of The Florida Bar from engaging in professional activities in Florida which are within the boundaries of the practice of law. This Court noted in State ex rel. Florida Bar v. Sperry, 140 So.2d 587, 595 (Fla.1962), rev’d on other grounds, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), that:
The reason for prohibiting the practice of law by those who have not been examined and found qualified to practice is frequently misunderstood. It is not done to aid or protect the members of the legal profession either in creating or maintaining a monopoly or closed shop. It is done to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control in the matter of infractions of the code of conduct which, in the public interest, lawyers are bound to observe.

Chandris, 668 So.2d at 184. Despite the experience and qualifications of the unlicensed lawyer in Chandris, the court held that he could not recover under a contingent fee contract.

In a footnote, the court conceded that while a member of The Florida Bar may not claim attorney’s fees under a void contingent fee agreement, a Florida Bar member may still be entitled to the reasonable value of his or her services in quantum meruit. Id. at 186 n. 4. While West seeks to expand this footnote to claim entitlement to his quantum meruit fee, his interpretation is clearly wrong. While a contract between a Florida Bar member and a client might be illegal, the Bar member’s provision of legal services in Florida is not illegal. In contrast, the provision of legal services by a non-Florida Bar member is illegal. See § 454.23, Fla. Stat. To award fees for illegal activities is contrary to public policy. See Spence, Payne, Mas-ington & Grossman, P.A. v. Philip M. Gerson, P.A., 483 So.2d 775 (Fla. 3d DCA 1986).

We followed Chandris in Vista Designs, Inc. v. Silverman, 774 So.2d 884 (Fla. 4th DCA 2001). Vista Designs retained Sil-verman to pursue patent infringement claims against another firm. Silverman was not licensed to practice law in Florida yet he had offices in Fort Lauderdale and New Jersey. The case proceeded to litigation in federal court in Florida, and Silver-man presented a litigation budget, indicating that he would be associating a Florida attorney. Ultimately, Vista Designs refused to pay Silverman who sued for his fees. Vista counterclaimed for disgorgement of fees previously paid to Silverman. Based upon Chandris, our court held that the oral contract of representation between Silverman and Vista Designs was void ab initio, because Silverman was not a member of The Florida Bar and had engaged in the unauthorized practice of law. We ordered the disgorgement of fees previously paid to Silverman, as Silverman’s unauthorized practice of law would have constituted a criminal offense, and public policy should not allow him to benefit from his own wrongdoing. We also specifically rejected his claim that he should be entitled to the quantum meruit value of his services.

Vista Designs requires a reversal of the quantum meruit fee in this case. Although West attempts to distinguish Vista Designs from this case, we find his attempt inadequate. The client in Vista Designs testified that he did not know that Silver-man was not admitted to practice in Florida, even though Silverman testified that he did tell the client. Nevertheless, the fact that a client knows the attorney he employs is not admitted in Florida should not permit an unlicensed attorney from recovering for illegal activity. Allowing an attorney to recover fees for the unauthorized practice of law is a violation of public policy, irrespective of the private interests and understandings of the parties. The judicial power of this state should not be used to effectuate a violation of public policy.

West argues that his activity was not illegal based upon the rules regulating The Florida Bar. When he entered into his contract for representation in August of 2004, Rule Regulating The Florida Bar 4-5.5 provided that “[a] lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” West makes the curious argument that because there was no regulation of his activities because he was not a licensed lawyer in Florida, he did not violate the regulation of the legal profession. This argument is specious. Rule 10-2.1 (c) of the rules in effect at the time West was representing Morrison provided that a “nonlawyer or nonattorney is an individual who is not a member of The Florida Bar.” A nonlawyer is not authorized to practice law in Florida. See Fla. Bar v. Rapoport, 845 So.2d 874 (Fla.2003) (rejecting an argument that an attorney not licensed in Florida could represent clients in securities arbitration matters, concluding that rule 10-2.1(c) prohibited nonlawyers from practicing in Florida). Section 454.23, Florida Statutes, prohibits the unauthorized practice of law, and West •violated that provision.

The supreme court amended Rule 4-5.5 in May, 2005, to permit multi-jurisdictional practice, and West suggests that his conduct was legal under the amended rule, which he suggests may be applied retroactively to authorize his conduct. We disagree that the rule can be applied retroactively. More fundamentally, West’s activity did not comply with the amended rule.

The amended rule permits a lawyer admitted in another state to provide legal services on a temporary basis in Florida if the services are undertaken in association with a lawyer admitted to practice in Florida or if the lawyer or a person the lawyer is assisting is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized. West argues that he anticipated securing a Florida attorney but simply did not do so before the matter settled in mediation. Although in September 2004 West drafted a motion for appearance pro hac vice and forwarded it, and a proposed order for admission, to McDonald & Crawford, that Fort Lauder-dale firm was never actually retained by Morrison. After an e-mail from the firm to West discussing its fee, the Florida firm did not have further conversations with West until well after the mediation. In fact, West did not even seek pro hac vice admission to present the settlement agreement to the probate court for approval. This can hardly be deemed a technical error when he was admitted pro hac vice in another case involving Morrison and the trust right before he was terminated by Morrison. He knew that such admission was necessary. We can only assume that he chose to ignore that essential requirement to avoid the payment of a fee to McDonald & Crawford. Regardless, he did not comply with Rule 4-5.5, and his representation of Morrison was unauthorized.

As Chandris noted, “[t]he reason for prohibiting the practice of law by those who have not been examined and found qualified to practice ... is done to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control....” 668 So.2d at 184. West engaged in the unauthorized practice of law in Florida. He did not comply with the rules which would permit him to practice in association with the services of a Florida lawyer. The court erred in awarding West a quantum meruit fee for his illegal activities in this state. See Vista Designs, 774 So.2d at 888; Spence, Payne, Masington & Gross-man, P.A., 483 So.2d at 778.

We reverse the final judgment, and based upon Vista Designs, we also order the disgorgement of the fees paid by Morrison to West.

Reversed.

LEVINE, J., and McCANN, JAMES W., Associate Judge, concur.

      . At mediation Carlos Morrison, the trustee, was represented by James Pressley, Jr.; Tommy Morrison, the nephew, was represented by Edward Downey.

      . The legislature has since amended the statute to make such conduct a felony. See § 454.23, Fla. Stat. (2004).

      . Rule 4-5.5, Rules Regulating The Florida Bar (2005), provides in relevant part: Unlicensed Practice of Law; Multijurisdic-tional Practice of Law
      * * *
      (c) Authorized Temporary Practice by Lawyer Admitted in Another United States Jurisdiction. A lawyer admitted and authorized to practice law in another United States jurisdiction ... may provide legal services on temporary basis in Florida that:
      (1) are undertaken in association with a lawyer who is admitted to practice in Florida and who actively participates in the matter;
      (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
      (3) are in or reasonably related to a pending or potential ... mediation ... in this or another jurisdiction and the services are not services for which the forum requires pro hac vice admission:
      (A) if the services are performed for a client who resides in or has an office in the lawyer's home state, or
      (B) where the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice; or
      (4)are not within subdivisions (c)(2) or (c)(3), and
      (A) are performed for a client who resides in or has an office in the jurisdiction in which the lawyer is authorized to practice, or
      (B) arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.

      . West presented Morrison with the written settlement agreement only the day before the court hearing to approve it. He had not contacted any law firm to appear with him at that hearing.


source: Caselaw Access Project

license: Public Domain

text:
    Ann Marie LEONARDIS, Appellant, v. Antonio LEONARDIS, Appellee.
    No. 4D08-2310.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Rehearing Denied April 9, 2010.

      Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    Thomas H. Dougherty of Thomas H. Dougherty, P.A., Palm Beach Gardens, for appellee.
   WARNER, J.

The wife appeals a final judgment of dissolution of marriage in which the court awarded alimony to the husband, ordered the marital home to be sold once the youngest child reaches the age of majority and provided the wife with an option to buy out the husband’s interest in the marital home. We affirm the award of alimony as no abuse of discretion in the award has been shown. However, we reverse the court’s disposition of the marital home because the use of the date of filing as the valuation date constitutes an abuse of discretion in this case, and the provisions setting the value of the husband’s interest do not correctly reflect the intended equitable distribution, should the wife not exercise her option to buy out the husband’s interest.

The wife and husband married in 1986 and have three children. The wife works as a paralegal for a law firm. The husband, who has little education, worked as a cook at the beginning of the marriage. Later, he and the wife opened a deli, which continues to be his main source of income. At the time of the dissolution, the wife earned approximately $2,000 more per month than the husband. The trial court carefully considered the factors for awarding alimony under section 61.08, Florida Statutes. Based upon the wife’s greater earnings and earning ability, as well as the husband’s limited education and prospects, the trial court awarded the husband permanent alimony of $500 per month.

The wife claims that the trial court erred in awarding alimony because her expenses already exceed her income, even though she concedes the husband’s need for alimony. Alimony awards are reviewed using an abuse of discretion standard. Costa v. Costa, 951 So.2d 924, 925 (Fla. 4th DCA 2007). “If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). “In determining whether to award permanent periodic alimony, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.” Se-gall v. Segall, 708 So.2d 983, 987 (Fla. 4th DCA 1998). Furthermore, the trial court is required to consider the statutory factors set forth in section 61.08(2), Florida Statutes. Nichols v. Nichols, 907 So.2d 620, 622 (Fla. 4th DCA 2005).

The trial court rejected the wife’s contention that she had an inability to pay alimony, finding that some of her expenses were inflated and some could be eliminated. Indeed, the wife’s own testimony, in which she acknowledged a significant increase in her expenses since the filing of the divorce, supports the trial court’s findings. In addition, for other expenses related to child support, the trial court also noted that the wife would be receiving child support from the husband. Under the circumstances, we cannot say that the trial court abused its discretion. We affirm the award of alimony.

With respect to the trial court’s valuation and disposition of the marital residence, the final judgment does not appear to effectuate what the trial court intended in its oral rulings. As written, the judgment must be reversed.

The court valued the residence at $320,000 at the date of filing of the petition for dissolution, with equity of $48,000 after deduction of the outstanding mortgage balance of $272,000. The court required that the marital home be sold when the youngest child reaches eighteen years of age, but permitted the wife to buy out the husband’s $24,000 share of the equity within ninety days of October 31, 2007, the date of the final hearing. The final judgment contained additional provisions, however, stating that the husband would receive his $24,000 interest in the house at the time of sale. In addition, if the wife did not exercise her 90-day buy-out option, she would receive credit at the time of sale for the husband’s share of mortgage payments, taxes, insurance, and extraordinary repair expenses.

The wife argues that the court improperly valued the property as of the date of the filing of the petition for dissolution, because the property had declined in value substantially since the date of the filing of the petition. On this record, we are compelled to agree. Scant evidence was presented as to the value of the home. The wife testified that fifteen months prior to the final hearing, the house was appraised at $357,000. However, since that time, property values had decreased 20-30% in Palm Beach County. She also offered in evidence the property appraiser’s valuation of the home at $267,000 for the year 2007. In contrast, the husband testified that he believed that the property was worth more, because the parties had recently completed a pool addition and other improvements to the property which, despite any decline in property values, made it still worth at least $55,000 more than the wife’s valuation. In fact, no one requested the court to value the property as of the date of the filing of the petition, nor did the parties offer testimony as to the value of the property as of that date. However, the court’s valuation of the property as of the date of the filing of the petition at $320,000 approximates the husband’s valuation of the home as of the date of the final hearing.

The standard of review for a trial court’s selection of a valuation date for a marital asset is abuse of discretion. See Byers v. Byers, 910 So.2d 336, 344 (Fla. 4th DCA 2005). Section 61.075(6), Florida Statutes (2006), provides that the date of filing of the petition for dissolution is generally the latest date for identifying and classifying marital assets, but the court may value marital assets on a date that the court determines is just and equitable. Id.

Here, the trial court may have misspoken when it rendered its oral ruling stating that it valued the property as of the date of filing. It may have meant to identify the residence as a marital asset as of the date of filing and give it the final hearing valuation to which the husband testified, believing that the amenities which the parties added increased the value of the property above that to which the wife testified. Given the widely acknowledged real estate downturn and the undisputed evidence of the general decline of property values in Palm Beach County during the pendency of these divorce proceedings, selecting the date of the filing of the petition as the valuation date for the property would have been an abuse of discretion. Moreover, the court did not select a value consistent with that date. We reverse for the trial court to reconsider the date of valuation, even though the court may come to the same conclusion about the property’s value.

The court’s final judgment with respect to the home must be reversed in other respects. When the trial court made its oral ruling, it determined that the husband’s equity in the house amounted to $24,000, based upon its valuation of the home at $320,000, less the mortgage balance then outstanding in the amount of $272,000. It permitted the wife to buy out the husband’s equity within ninety days. If the wife did not elect to purchase the husband’s equity, then the wife would be entitled to credit for the husband’s share of mortgage payments, taxes, insurance, and other extraordinary repairs at the time of sale, which the court did not order until the youngest child reached the age of majority.

When the written final judgment was rendered, however, it provided that the husband would be entitled to $24,000 upon sale, if the wife elected not to purchase his interest within the ninety days allowed in the final judgment. The trial court should not require the wife to pay the husband a sum certain for his equity in the marital home, irrespective of the amount of the eventual sale price of the home. In Schwartz v. Schwartz, 720 So.2d 531, 533 (Fla. 3d DCA 1997), the Third District addressed this issue and explained:

It is clear from the Final Judgment that the trial court determined that the wife should receive one-half the value of the marital home. We agree with the husband, however, that the language of the Final Judgment suggests otherwise. Accordingly, we reverse that portion of the Final Judgment that orders the husband to pay the wife the sum of $87,500.00. Upon remand, the Final Judgment will be corrected to indicate that the wife shall receive one-half of the proceeds of the sale of the house.

(Emphasis added). Cf. Huttig v. Huttig, 530 So.2d 1051, 1052 (Fla. 3d DCA 1988) (reversing order requiring husband to transfer interest in marital home to wife because, among other things, there was “no justification for freezing the husband’s interest in the property at a fixed amount and thereby denying him ... the right to participate in the future appreciation”).

The plain language of the final judgment in this case has the clear effect of setting the husband’s interest at a sum certain, regardless of the ultimate sale price. Pursuant to the language of the final judgment as written, the former husband’s interest in the home is frozen at $24,000— regardless of any appreciation or depreciation of the value of the home before it is ultimately sold. This could constitute a benefit or a detriment to the wife, depending upon the value of the home when sold. We hold that the court erred in fashioning the award in this manner in the final judgment.

When the court reconsiders the final judgment, it can allow a time for the wife to purchase the husband’s interest at a sum certain. However, should the wife elect not to buy out the husband’s interest, then the wife should be allowed exclusive possession of the home until the youngest child attains his majority, consistent with the provisions in the final judgment. Should compelling financial circumstances require the house’s sale prior to the date of the last child’s majority, see, e.g., Tar-nawski v. Tarrumski, 851 So.2d 239, 242 (Fla. 4th DCA 2003), the parties can either agree to a sale or the wife can petition the court to permit its sale or partition. Pursuant to the court’s rulings, the parties should equally divide the proceeds of any sale after the wife receives credit for the husband’s share of any mortgage, taxes, insurance, and necessary repairs she has paid. This, we believe, accomplishes what the court orally ruled.

Based upon the foregoing we affirm the final judgment, except as to the valuation and disposition of the marital home. We reverse for the court to reconsider these issues and revise its final judgment in accordance with this opinion.

LEVINE, J., and McCANN, JAMES W., Associate Judge, concur.

      . Despite this specific date in the final judgment, the court did not make its oral rulings until December 2007 and did not reduce them to a signed final judgment until April 2008. We assume that the trial court intended to allow the wife 90 days from the date of the final judgment to purchase the husband's interest. However, the final judgment also contains no mechanism for the actual purchase of the husband's interest.

      . The former husband's brief suggests his interpretation of the final judgment is that he receives $24,000 in equity, plus one-half of the proceeds of sale less credits due the former wife. However, this is simply incorrect. The plain language of the judgment sets forth no provision for the husband to receive any proceeds other than the $24,000 in equity. In fact, he will undoubtedly receive less, because the wife is also given credit for making his share of the mortgage, tax, and insurance payments.


author: PER CURIAM.

text:
    Michael PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1694.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Rehearing Denied April 15, 2010.
    Michael R. Porter, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the circuit court’s denial of the appellant’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find that the appellant’s first, second, fifth and sixth grounds for relief are untimely. See Bo- lender v. State, 658 So.2d 82, 85 (Fla.1995) (requiring that a rule 3.850 motion filed on the basis of newly discovered evidence be filed “within two years of the time when evidence upon which avoidance of the time limit was based could have been discovered through the exercise of due diligence”). We find that the appellant’s other grounds for relief were, or could have been, raised on direct appeal and, therefore, are unauthorized. See Fla. R.Crim. P. 3.850(c) (“This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.”).

Affirmed.

FARMER, STEVENSON and GERBER, JJ., concur.


author: WETHERELL, J.

text:
    Robert HOGAN, Appellant, v. Gray GABLE, Nassau Village Volunteer Fire Department, Inc., Appellee.
    No. 1D09-0421.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    Rehearing Denied March 22, 2010.

      John S. Mills and Jessie L. Harrell, of Mills, Creed & Gowdy, P.A., Jacksonville, and Howard C. Coker, of Coker, Schickel, Sorenson, Posgay, P.A., Jacksonville and Arthur I. Jacobs, of Coker, Schickel, Sor-enson, Posgay, P.A., Fernandina Beach, for Appellant.
    Teresa A. Arnold-Simmons and Ashley B. Winstead, of Quintamos, Prieto, Wood & Boyer, P.A., Jacksonville, and Philip J. Kantor, of Quintamos, Prieto, Wood & Boyer, P.A., Ft. Lauderdale, for Appellee.
   WETHERELL, J.

Appellant seeks review of the denial of his motion for a new trial following a defense verdict in his negligence suit against Appellee, Gray Gable, Nassau Village Volunteer Fire Department, Inc. He contends that the cumulative impact of various errors below deprived him of a fair trial and that the trial court erred in admitting evidence of a lack of prior similar accidents. We agree that the trial court erred in admitting the nonoccurrence evidence, and we therefore reverse and remand for a new trial.

Appellant was a surgeon at Baptist Medical Center-Nassau (“Baptist”). He volunteered to sit in a dunking booth at a fundraiser sponsored by Baptist and the American Cancer Society. Baptist borrowed the dunking booth from Appellee for the event. While climbing inside the booth, Appellant lacerated his hand on an attached metal mesh. As a result of the injury, Appellant can no longer perform surgery. He sued both Baptist and Appel-lee, and eventually settled with Baptist. Appellant’s case against Appellee proceeded to a nine-day jury trial, and the jury found that Appellee was not negligent. Appellant filed a motion for new trial, which was denied.

Just before the trial began, Appellee sought to offer evidence that there had been no complaints of injury related to the dunking booth since its construction in 1990. Appellant objected to the introduction of such nonoccurrence evidence, arguing that Appellee had not shown that the booth was in a substantially similar condition since 1990 in light of testimony regarding modifications that were made to the booth — including addition of the wire mesh and a door — sometime between 2000 and 2002. He also argued that Appellee could not show that the booth had been previously used at night and under the same lighting conditions. Appellee argued that a showing of substantial similarity was not necessary because the purpose of offering the evidence was to show that Appellee was not on notice of the dangerous condition of the booth. In overruling Appellant’s objection, the trial court found that a showing of substantial similarity was not necessary.

“A trial court’s decision to admit evidence of the occurrence or nonoccurrence of prior accidents under substantially similar conditions is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse.” Jackson v. H.L. Bouton Co., 630 So.2d 1173, 1176 (Fla. 1st DCA 1994) (citing Lasar Mfg. Co. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983)). Evidence of occurrence or nonoccurrence of prior accidents is admissible where the evidence pertains to the same type of equipment under substantially similar circumstances. Id. (citing Ry. Express Agency, Inc. v. Fulmer, 227 So.2d 870, 873 (Fla.1969); Ba-chanov, 436 So.2d at 236; and Warn Indus. v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977)); see also Ford Motor Co. v. Hall-Edwards, 971 So.2d 854, 860 (Fla. 3d DCA 2007) (holding that the trial court abused its discretion in admitting evidence of past accidents where a substantial similarity between the accident at issue and the past accidents had not been established).

Appellee relies on Jackson for the assertion that the trial court properly admitted the nonoccurrence evidence. In Jackson, we held that the trial court properly admitted evidence that no injuries had occurred with a model of safety goggles before Jackson suffered the eye injury that led to his claim. Jackson, 630 So.2d at 1176-77. The Jackson court stated that the nonoccurrence of previous accidents went directly to the issue of the appellee’s knowledge of the danger that was allegedly inherent in the safety goggles. Id. at 1176. Although a basis for substantially similar use was not established in Jackson, the safety goggles at issue remained unchanged.

Here, unlike Jackson, there was evidence that the dunking booth was modified from its original construction, including the addition of the wire mesh which led to Appellant’s injury. Before determining whether the nonoccurrence evidence was admissible, the trial court failed to determine whether the dunking booth was in a substantially similar condition as its previous use. The failure of the court to make such a determination and apply the established rule of law constitutes an abuse of discretion. Hall-Edwards, 971 So.2d at 859 (“[A] judge cannot simply ‘use his discretion to decide that despite a plain lack of substantial similarity in conditions he will, nevertheless, admit the evidence.’ ”) (quoting Gen. Motors Corp. v. Porritt, 891 So.2d 1056, 1058 (Fla. 2d DCA 2004)). Further, both parties agree that the lack of prior accidents became a focus of the trial. Allowing the erroneously admitted evidence to become a feature of the trial further mandates reversal. Hall-Edwards, 971 So.2d at 860. Where the trial court abused its discretion in admitting the nonoccurrence evidence, the verdict must be set aside and the matter remanded for a new trial. Id.

Appellee argues that the admission of the nonoccurrence evidence, if error, was harmless because Appellant cannot show that without the evidence, the jury verdict would have been different. The test for harmful error in a civil case, however, is “ ‘whether, but for such error, a different result may have been reached’.” Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000) (quoting Kotos v. Cushing, 601 So.2d 612, 613 (Fla. 3d DCA 1992)). In light of the testimony regarding modifications to the dunking booth and the fact that the nonoccurrence evidence was a feature of the trial, we cannot determine that without the introduction of the nonoccurrence evidence, the jury would have reached the same verdict. As such, the erroneous introduction of such evidence was not harmless and Appellant is entitled to a new trial.

We recognize that in Jackson we referred favorably to:

the trend “toward treating the question of sufficiency of similarity of conditions as primarily a matter for the trial court’s discretion, and to freely admit the evidence of the prior accident together with evidence of variations in conditions, which is treated as going to weight rather than admissibility.”

630 So.2d at 1177 (quoting Warn Indus., 343 So.2d at 46). The “trend” to which we referred does not reflect the current state of the law, nor does it relieve the trial court of its obligation to make at least a threshold determination regarding the substantial similarity of any prior occurrence or nonoeeurrence. See Ehrhardt, Florida. Evidence, § 411.2 (2009 ed.).

In light of our reversal based upon the trial court’s admission of the nonoccurrence evidence, we need not address Appellant’s claim that mistrial should have been granted due to cumulative error. However, because we are remanding for a new trial, we note for the benefit of the parties and the trial court that we are not persuaded that Appellant was denied a fair trial or that any of the issues that he raised warrant reversal, either individually or cumulatively.

For these reasons, the final judgment in favor of Appellee is REVERSED and the cause is REMANDED for a new trial.

LEWIS and THOMAS, JJ., concur.


author: MORRIS, Judge.

text:
    The ESTATE OF Caulie Jackson MURRAY, Sr., by and through Robert L. MURRAY, Sr., as Personal Representative, Appellant, v. DELTA HEALTH GROUP, INC., and P. Carolyn Antone (as to Heritage Park), Appellees.
    No. 2D08-2935.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.
    Rehearing Denied March 31, 2010.

      Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, and Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Daniel E. Dias and Allison C. Goodson of Mancuso & Dias, P.A., Tampa, for Ap-pellees.
   MORRIS, Judge.

The Estate of Caulie Jackson Murray, Sr. (the Estate), appeals a final judgment entered in favor of Delta Health Group, Inc. (Delta). We reverse the final judgment and remand for a new trial.

Caulie Jackson Murray, Sr., was a resident of a nursing home operated by Delta when he died in February 2003. In March 2004, the Estate filed a complaint against Delta alleging violations of Mr. Murray’s nursing home residents’ rights under section 400.022, Florida Statutes (2002), as well as negligence and wrongful death. After a jury trial, the jury found that there was no negligence on the part of Delta that caused injury or death to Mr. Murray. The jury also found that Delta did not infringe on or deprive Mr. Murray of his nursing home residents’ rights. The jury returned a zero verdict in favor of Delta. The Estate filed a motion for new trial, which the trial court denied. The trial court subsequently entered a final judgment in favor of Delta.

On appeal, the Estate claims that the trial court abused its discretion in allowing, over the Estate’s objection, the admission of portions of a deposition of Mr. Murray’s doctor, Dr. Desai, in which Dr. Desai opined that Delta was not negligent in its care of Mr. Murray. The Estate contends that Dr. Desai was an expert who should not have been permitted to render an opinion that applied a legal standard to the facts of the case. The Estate asserts that this invaded the province of the jury.

At trial, the Estate indicated to the court that it intended to introduce the deposition testimony of Dr. Desai after it finished calling its witnesses. During Delta’s cross-examination of the Estate’s expert witnesses, registered nurse Lucilla Yeung and Dr. Steven Bowman, Delta used Dr. Desai’s deposition to impeach their direct-examination testimony that the nursing home breached its duty to provide Mr. Murray with the appropriate standard of care. Dr. Desai’s actual deposition was not admitted into evidence until Delta presented its case-in-chief. Prior to the admission of Dr. Desai’s deposition, both sides stated that they had each designated portions of the deposition to be admitted. The Estate objected to certain portions of Dr. Desai’s testimony being admitted on the basis that it is not “proper to have him opine whether someone was negligent.” The trial court overruled the Estate’s objection, concluding that “he’s an expert that can talk about an ultimate question.”

During Delta’s admission of Dr. Desai’s deposition, Delta was permitted to introduce portions of the deposition in which Dr. Desai testified on four occasions that, in his opinion, the nursing home was not negligent. Delta also admitted several portions of the deposition in which Dr. Desai testified that he did not report any neglect of Mr. Murray and that if he had felt Mr. Murray had been neglected, he would have reported so as required of him by section 415.1034(l)(a), Florida Statutes (2002).

Dr. Desai’s deposition testimony was offered into evidence before the jury without any mention of his being an expert. Delta claims that this means Dr. Desai’s testimony was not offered as expert testimony. However, there is no requirement that the trial court make a finding that the proffered testimony is expert testimony. See Alexander v. State, 931 So.2d 946, 951 (Fla. 4th DCA 2006) (“[T]he better procedure would have been to permit the witness to testify without reference to his or her status as an expert.”); Cham-bliss v. White Motor Corp., 481 So.2d 6, 8 (Fla. 1st DCA 1985) (“[I]t is questionable whether it is proper procedure for a court to expressly declare a witness an ‘expert’ because the jury may infer from such declaration that the court is placing its approval on the opinions of the witness.”). We conclude that because all parties and the trial court considered Dr. Desai to be an expert and because the offered portions of his deposition testimony contained opinion testimony that relied on his knowledge and training, Dr. Desai’s testimony constituted expert testimony.

The trial court has broad discretion in determining the subject on which an expert may testify. See Town of Palm Beach v. Palm Beach County, 460 So.2d 879, 882 (Fla.1984). An expert may render an opinion regarding an ultimate issue in a case, but he or she is not permitted to render an opinion that applies a legal standard to a set of facts. See id.; Ruth v. State, 610 So.2d 9, 11 (Fla. 2d DCA 1992); County of Volusia v. Kemp, 764 So.2d 770, 773 (Fla. 5th DCA 2000) (“If expert testimony ... tells the jury how to decide the case, it should not be admitted.”). An expert should not be permitted to testify regarding a legal conclusion that the jury should be free to reach independently from the facts presented to it. See Town of Palm Beach, 460 So.2d at 882. Here, Dr. Desai’s deposition testimony included opinions that improperly applied the legal standard of negligence to the facts of the case and that told the jury how to decide the case. Delta could have offered Dr. Desai’s opinion that the nursing home did not breach the standard of care but not his opinion that the nursing home was not negligent. See id. (noting that the distinction is to some degree a matter of semantics but that it is a necessary distinction nonetheless).

Delta argues that the Estate opened the door to the improper expert testimony by repeatedly asking their experts whether certain acts constituted deprivations of Mr. Murray’s nursing home residents’ rights, citing Guy v. Right, 431 So.2d 653 (Fla. 5th DCA 1983). In Guy, 431 So.2d at 656, the appellants argued that the appellee’s experts drew legal conclusions and invaded the province of the court. The court held that the appellants

have not shown that they were unduly prejudiced by the allowance of the experts’ testimony, particularly because any alleged error resulting from the admission of the experts’ testimony was invited by the appellants when their own witness gave his opinions and conclusions on the same subject, prior to the admission of the appellee’s experts’ opinions.

Id. Guy is distinguishable from the instant case because the Estate did not elicit improper expert testimony on the same subject of whether the nursing home was negligent and therefore did not open the door to Delta’s doing so. The Estate asked numerous questions of its witnesses that went to another ultimate legal issue to be decided — whether Mr. Murray’s nursing home residents’ rights were violated— but Delta did not object to these questions.

In addition, Guy relied on section 90.703, Florida Statutes (1981), which provided that “ ‘[tjestimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.’ ” 431 So.2d at 656 (alteration in original). Guy was decided before Town of Palm Beach, 460 So.2d at 882, in which the supreme court held that “section 90.703 does not imply the admissibility of all opinions. If the witnesses] conclusion tells the trier of fact how to decide the case [ ] and does not assist it in determining what has occurred, then it is inadmissible.” The supreme court held that section 90.703 was not intended to be so broad as to permit an expert to direct the jury to arrive at a conclusion that the jury should be free to independently determine from the facts presented. 460 So.2d at 882.

G'ivy is further distinguishable because the court in Guy held that the admission of the experts’ testimony in that case was harmless error. The same cannot be said in this case. Delta relied heavily on Dr. Desai’s opinion testimony that the nursing home was not negligent. During deliberations, the jury asked to read Dr. Desai’s deposition and was given a copy of the portions admitted into evidence.

We conclude that the trial court abused its discretion in allowing Delta, over the Estate’s objection, to introduce Dr. Desai’s opinion testimony that the nursing home was not negligent. We reverse the final judgment entered in favor of Delta and remand for a new trial on the issues of negligence and wrongful death. Because a new trial is required, the remaining two issues raised on appeal by the Estate are moot.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.


author: CASANUEYA, Chief Judge.

text:
    CORAL LAKES COMMUNITY ASSOCIATION, INC., Appellant, v. BUSEY BANK, N.A.; Scott Haley; Ruth Haley; and Riverside Bank of the Gulf Coast, Appellees.
    No. 2D08-5062.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.

      Ashley D. Lupo and Christopher D. Donovan of Roetzel & Andress, LPA, Naples, for Appellant.
    Gordon R. Duncan of Duncan & Associates, P.A., Fort Myers, for Appellee Busey Bank, N.A.
    No appearance for Appellees Scott Haley, Ruth Haley, and Riverside Bank of the Gulf Coast.
   CASANUEYA, Chief Judge.

Coral Lakes Community Association, Inc. (the “HOA”), appeals a final summary judgment of foreclosure awarded to Busey Bank, N.A. (the “Bank”). The final judgment determined that the Bank had no liability to the HOA for past due HOA assessments that the HOA claimed pursuant to section 720.3085(2), Florida Statutes (2008). The disposition of this case is determined by the HOA’s Declaration of Covenants and Restrictions vis-a-vis the relevant regulatory statutes. As one would expect, these two competing parties possess diametrically opposed legal positions regarding whether the Bank should be liable for the mortgagors’ unpaid HOA assessments that will have accrued by the time title may be transferred to the Bank. For the reasons explained below, we conclude the Bank is not required to pay those delinquent assessments and affirm the summary judgment in foreclosure.

Background

The facts are undisputed. In May 2006, appellees Scott and Ruth Haley (“the homeowners”) executed a note and mortgage in favor of the Bank for $252,255.80 to purchase property located in the Coral Lakes community. The community’s governing document at this time, the Declaration of Covenants and Restrictions of Coral Lakes, provided the following:

9.1.6 Subordination of Lien. Where any person obtains title to a LOT pursuant to the foreclosure of a first mortgage of record, or where the holder of a first mortgage accepts a deed to a LOT in lieu of foreclosure of the first mortgage of record of such lender, such acquirer of title, its successors and assigns, shall not be liable for any ASSESSMENTS or for other moneys owed to Coral Lakes which are chargeable to the former OWNER of the LOT and which became due prior to acquisition of title as a result of the foreclosure or deed in lieu thereof, unless the payment of such funds is secured by a claim of lien recorded prior to the recording of the foreclosed or underlying mortgage.

By January 2008, the homeowners were in arrears on both their mortgage payments due the Bank and assessments due the HOA. On June 3, 2008, the Bank instituted a foreclosure action against the homeowners, adding the HOA as a party defendant because of the accrued unpaid assessments. On June 24, 2008, the HOA answered.and claimed as its first affirmative defense that pursuant to section 720.3085, Florida Statutes (2007), the Bank’s mortgage was subordinate to all of the mortgaged premises’ unpaid common expenses which accrued or came due during the time period preceding the Bank’s acquisition of title at foreclosure sale or by-deed in lieu of foreclosure. As its second affirmative defense, the HOA claimed that if a purchaser, including the Bank and its successors or assigns, purchases the mortgaged premises, including but not limited to, at a foreclosure sale, then this purchaser shall be jointly and severally liable with the previous owner to pay twelve months’ assessments which accrued preceding transfer of title or one percent of the original mortgage debt, whichever is less.

The lawsuit proceeded quickly and as a fairly routine foreclosure action. On July 23, 2008, the Bank filed a motion for summary judgment of foreclosure, claiming the execution of the note and mortgage was not disputed, the failure to timely pay the note was not disputed, the priority of the note and mortgage was not disputed, and the only matters of law to be argued were the general law of notes, mortgages, and negotiable instruments and the Bank’s entitlement to attorney’s fees and costs. The Bank also claimed that, as a matter of law, the statutory changes to section 720.3085 should not be applied retroactively to its note and mortgage that predated the statutory change.

At the hearing on the motion for summary judgment, the only contentious issue was whether the Bank was excused from paying the unpaid HOA assessments that had accrued. The Bank argued that at the time of the execution of its note and mortgage in 2006, the HOA’s Declaration gave its lien a distinct and very advantageous priority position over any HOA lien for unpaid assessments. Moreover, the Bank, by virtue of being an intended third-party beneficiary of this paragraph of the Declaration, could not have this benefit removed by operation of the statute, which was not in existence at the time it entered into its contract with the homeowners. Further, the Bank argued, citing to City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513 (1935), applying the new statutory language would impair the Bank’s contractual right, i.e., its vested lien priority. See id. at 514-15 (“A vested right has been defined as ‘an immediate, fixed right of present or future enjoyment’ and also as ‘an immediate right of present enjoyment, or a present, fixed right of future enjoyment.’ ” (quoting Pearsall v. Great N. Ry. Co., 161 U.S. 646, 673, 16 S.Ct. 705, 40 L.Ed. 838 (1896))).

The HOA countered that the issue was not retroactive application of the amended statute because the Bank had not yet taken title to the parcel; therefore, assuming that the Bank would take title at a future foreclosure sale, it would be constrained to follow the dictates of the amended 2008 version of the statute at that time. Cf LR5A-JV, LP v. Little House, LLC, 998 So.2d 1173, 1175 (Fla. 5th DCA 2008) (holding section 720.3085(2), Florida Statutes (2007), inapplicable because the appellant/mortgagee was not yet at the time of the suit the subsequent parcel owner; however, in dictum, the court stated that “[furthermore, there is nothing in the plain language of section 720.3085 that can reasonably be construed to give the Association’s lien priority over [the lender’s] mortgage”).

The trial court agreed with the Bank, noting that City of Sanford would control to preclude impairment of vested rights by a statutory change. On September 22, 2008, the trial court entered a final judgment in foreclosure with the following language specifically addressing the lien priority/unpaid assessments issue:

8. Upon filing the certificate of sale, the purchaser at the sale shall be let into possession of the property and the Defendants and all persons claiming under or against them since the filing of the Notice of Lis Pendens shall be foreclosed of all estate or claim in the property except that any purchaser other than Plaintiff [the Bank] shall be hable for unpaid assessments due [the HOA] pursuant to the provision of Section 720.3085, Florida Statutes.

Analysis

We conclude that because of the Declaration’s plain and unambiguous language subordinating any claim for unpaid HOA assessments to a first mortgagee’s claim upon foreclosure or deed in lieu of foreclosure, it controls and absolves the Bank, as first mortgagee, from liability for any assessments accruing before it acquires the parcel. “Restrictions found within a Declaration are afforded a strong presumption of validity, and a reasonable unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms.... ” Shields v. Andros Isle Prop. Owners Ass’n, 872 So.2d 1003, 1005-06 (Fla. 4th DCA 2004) (quoting Emerald, Estates Cmty. Ass’n v. Gorodetzer, 819 So.2d 190, 193 (Fla. 4th DCA 2002)). In this case, the restriction in the Declaration disadvantages the HOA, which the drafter had every right to do, and benefits all first mortgagees of homes in the community. First mortgagees in this community, although not parties to the Declaration that is the contract between the HOA and its members, are clearly third-party beneficiaries of this contract. See Green-acre Props., Inc. v. Rao, 933 So.2d 19, 23 (Fla. 2d DCA 2006) (explaining that to enforce rights under a contract like a declaration, “[a] third party must establish that the contract either expressly creates rights for them as a third party or that the provisions of the contract primarily and directly benefit the third party or a class of persons of which the third party is a member”). The HOA could have protected itself if, in drafting its Declaration, it had included language that its lien for unpaid assessments related back to the date the Declaration was recorded or that it otherwise had lien superiority over intervening mortgages. See LR5A-JV, 998 So.2d at 1175 n. 2. However, the HOA took the opposite tack to entice lenders to finance purchases in its community. The statutory change in section 720.3085 cannot disturb that prior, established contractual relationship.

To hold otherwise would implicate constitutional concerns about impairment of vested contractual rights. See art. I, § 10, Fla. Const. (“No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.”). In this state, it is a “well-accepted principle that virtually no degree of contract impairment is tolerable.” Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774, 780 (Fla.1979) (citing Yamaha Parts Distribs., Inc. v. Ehrman, 316 So.2d 557 (Fla.1975)). To avoid this longstanding principle, the HOA argues that even if applying section 720.3085 to this case would impair the Bank’s contractual rights, such impairment is constitutionally reasonable or minimal. We do not agree.

The facts of this case are similar to those in Sarasota County v. Andrews, 573 So.2d 113 (Fla. 2d DCA 1991). There, Sarasota County passed an ordinance declaring that a fine imposed by the county on property, when recorded, becomes a lien against the property that is superior to all other liens except a lien for taxes. Pursuant to this ordinance, the county imposed a fine on a property for operation of an illegal landfill and recorded it as a lien. The property at issue in the case was subject to a prior mortgage in favor of Coast Federal Savings & Loan Association. Sarasota County filed suit against the property owner to foreclose its claim of lien, added the mortgagee Coast Federal as a defendant, and sought a declaration that Coast Federal’s lien was inferior to the county’s lien. The trial court entered a final summary judgment finding Coast Federal’s lien superior because it found that the portion of the ordinance making the county’s lien superior to all nontax liens was unconstitutional, as applied. We affirmed the summary judgment, saying:

We think the priority provision of the County’s ordinance substantially impairs Coast Federal’s prior mortgage lien by subordinating it to the County’s lien. If by operation of the County’s ordinance, Coast Federal’s lien can be relegated to a secondary position, it is obviously of less value than the first-priority lien for which Coast Federal had contracted. Thus, the ordinance retrospectively impairs Coast Federal’s contractual position.

Id. at 115.

Much like the county’s argument in Sarasota County v. Andrews, the HOA here argues that any impairment is permissible as minimal. We disagreed with this argument in Sarasota County v. Andrews and disagree with it here:

[T]he priority provision [of the ordinance] has worked an immediate impairment on Coast Federal’s preexisting mortgage lien. The nature of priority is such that Coast Federal is automatically at a substantially greater risk of losing its investment if it has only a second, as opposed to a first, priority lien. Furthermore, mortgages held by commercial institutions are frequently sold on the secondary market, and the subordination of Coast Federal’s lien impairs the marketability of its mortgage. This immediate diminishment in the value of Coast Federal’s contract is repugnant to our constitutions.

Id.

More recently, this court reviewed an impairment challenge in Lee Comity v. Brown, 929 So.2d 1202 (Fla. 2d DCA 2006). There, homebuilders challenged the validity of a local ordinance imposing a school impact fee on those applying for a building permit. This court recognized that Pomponio required the application of a balancing test which “weighs the degree of impairment against the source of authority under which the law is enacted and the ‘evil’ the law is intended to remedy.” 929 So.2d at 1208 (citing Pomponio, 378 So.2d at 780). However, the Pomponio balancing test is not required under Sarasota County v. Andrews where the statutory enactment “results in an immediate diminishment in the value of the contract.” 929 So.2d at 1208-09 (citing Sarasota County v. Andrews, 573 So.2d at 115). Impairment, in this context has been defined, in part, as “to make worse; to diminish in quantity, value, excellency or strength^.]” Id. at 1208 (quoting Pompo-nio, 378 So.2d at 781 n. 41). If we were to apply the amended statute in this instance, the economic value of the Bank’s mortgage would be lessened as well as the power of its priority position.

Alternatively, were it appropriate to apply the balancing test, the HOA’s argument would still fail. While the law may deal with the economic problem facing homeowners’ associations in general, its application here would place the economic burden not on the homeowner, the root of the problem of the unpaid assessments, but on the entity that previously made the construction or purchase of the home possible. Moreover, the Declaration of Covenants and Restrictions was never altered to place a lender on notice that its economic position would be subordinate to the HOA’s claims. When balanced in this factual circumstance, the statute would operate to severely, permanently, and immediately change the parties’ economic relationship retroactively, a circumstance not supportable under the law.

Conclusion

The HOA yielded any right to claim it had a superior lien position to the Bank’s preexisting mortgage by virtue of the plain and unambiguous language of its Declaration, which the Bank had every right to rely upon when deciding to finance the homeowners’ home in the Coral Lakes community. The trial court did not err in finding the Bank’s first mortgage lien superior to the HOA’s claim for unpaid assessments notwithstanding section 720.3085.

Affirmed.

DAVIS, J., Concurs.

WALLACE, J., Concurs in result only.

      . This provision clearly favors potential first mortgage holders who generally buy the properties upon which they foreclose. We make this observation because the remaining, unquoted portion of this section does not exclude other types of buyers of homes with delinquent fees from payment of those fees. This section was likely added to the Declaration to induce lenders to aid homeowners in purchasing property in the community by awarding them priority over the HOA’s claims for unpaid assessments.

      . Riverside Bank of the Gulf Coast is apparently the holder of another, inferior lien but has not appeared in this appeal.

      . At the time of the filing of the foreclosure suit and the HOA’s answer and affirmative defenses, section 720.3085, Florida Statutes (2007), provided in part:
      (1) A parcel owner, regardless of how his or her title to property has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments that come due while he or she is the parcel owner. The parcel owner’s liability for assessments may not be avoided by waiver or suspension of the use or enjoyment of any common area or by abandonment of the parcel upon which the assessments are made.
      (2) A parcel owner is jointly and severally liable with the previous parcel owner for all unpaid assessments that came due up to the time of transfer of title. This liability is without prejudice to any right the present parcel owner may have to recover any amounts paid by the present owner from the previous owner.
      This was the initial enactment of this section, effective July 1, 2007. See ch. 2007-183, §§ 1-2, at 1603-05, Laws of Fla. On July 1, 2008, after the foreclosure complaint and the answer and affirmative defenses were filed, tire newly amended version of the statute became effective. A new subsection (1) was added (not at issue here); former subsection
      (1) was renumbered subsection (2)(a); former subsection (2) was renumbered subsection
      (2)(b); and new language was inserted, numbered subsection (2)(c), as follows:
      (c) Notwithstanding anything to the contrary contained in this section, the liability of a first mortgagee, or its successor or assignee as a subsequent holder of the first mortgage who acquires title to a parcel by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became due before the mortgagee’s acquisition of title, shall be the lesser of:
      1. The parcel’s unpaid common expenses and regular periodic or special assessments that accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association; or
      2. One percent of the original mortgage debt. The limitations on first mortgagee liability provided by this paragraph apply only if the first mortgagee filed suit against the parcel owner and initially joined the association as a defendant in the mortgagee foreclosure action. Joinder of the association is not required if, on the date the complaint is filed, the association was dissolved or did not maintain an office or agent for service of process at a location that was known to or reasonably discoverable by the mortgagee.
      Ch. 2008-175, § 1-2, at 2034-35, Laws of Fla.
      Thus, instead of being jointly and severally responsible for all unpaid assessments of a foreclosed homeowner, as of July 1, 2008, tire first mortgagee who holds title now has limited liability, either the prior twelve months’ worth of unpaid assessments or one percent of the original mortgage debt, whichever is less.

      . We note that at the time the HOA filed its answer and affirmative defenses, the homeowners were still the record titleholders of the property as there had not yet been a judgment of foreclosure, a foreclosure sale, or a certificate of sale filed. Subsequent to filing the notice of appeal in diis case, the Bank bought the home at the foreclosure sale and its certificate of title was recorded on December 24, 2008.

      . See footnote 2, above.

        . We make no comment on the HOA's argument that the Florida Legislature effectively rewrote section 9.1.6 of its Declaration when it enacted or amended section 720.3085 because that was not the basis of the trial court’s summary judgment.


author: PALMER, J.

text:
    Orion Hunter MANIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-615.
    District Court of Appeal of Florida, Fifth District.
    Feb. 19, 2010.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Orion Manis (defendant) appeals his judgments and sentences which were entered by the trial court after the court found him guilty of violating the terms of his probation. Although there was sufficient evidence presented by the State to support both claimed violations, we remand for the entry of a proper violation of probation (VOP) order.

The defendant was charged with violating two terms of his probation. Specifically, the defendant was charged with violating condition 5 by committing the new criminal offense of filing a false police report, and violating condition 7 by using the prescription medication Percocet without having a legal prescription. The matter proceeded to a VOP hearing during which the State presented ample evidence establishing both charges.

The trial court did not issue a written VOP or revocation order in this case. Rather, the court made verbal statements at the close of the VOP hearing. As to condition 7, the trial court made an express finding that the defendant violated that condition by using the prescription medicine Percocet without having a legal prescription. However, as to condition 5, the trial court verbally indicated that defendant violated condition 5, but did not make an express finding that the defendant had filed a false police report. Instead, the court made the following ambiguous statement:

You violated your probation in a substantial way and I’m sentencing you to— fifteen years in the Department of Corrections on Count I for the reasons I set forth in the record because there’s a substantial likelihood he was involved in a home invasion armed.

A trial court’s decision to revoke a defendant’s probation based on conduct not charged in the VOP affidavit violates due process and constitutes fundamental error. Wyns v. State, 679 So.2d 882 (Fla. 5th DCA 1996). In Cherington v. State, 24 So.3d 658 (Fla. 2d DCA 2009), the Second District explained:

“[A] trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation.” Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000); see also Butler v. State, 450 So.2d 1283, 1285 (Fla. 2d DCA 1984); Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003). To revoke probation based on conduct not charged in the affidavit constitutes a deprivation of the defendant’s right to due process of law. See Perkins, 842 So.2d at 277. A revocation based on uncharged conduct generally requires reversal.

Here, the trial court’s verbal ruling is ambiguous and there is no written VOP order. This court has consistently held that a “trial judge must specify in the written order or judgment what conditions the defendant violated.” Mormon v. State, 976 So.2d 1188, 1189 (Fla. 5th DCA 2008). Accord Kadyebo v. State, 15 So.3d 928 (Fla. 5th DCA 2009); Young v. State, 4 So.3d 1265 (Fla. 5th DCA 2009). Accordingly, we vacate the defendant’s judgments and sentences, and remand this matter to the trial court for the entry of a proper VOP order setting forth the specific violations of probation.

VACATED and REMANDED.

GRIFFIN and JACOBUS, JJ., concur.


text:
    Edward George JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0510.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2010.
    Rehearing Denied March 31, 2010.
    Edward George Jones, pro se, Petitioner.

      Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(5)(C).

KAHN, PADOVANO, and WETHERELL, JJ., concur.


text:
    S.T., Appellant, v. DEPARTMENT OF EDUCATION, DIVISION OF VOCATIONAL REHABILITATION, Appellee.
    No. 1D09-3767.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Rehearing Denied March 31, 2010.
    S.T., pro se, Appellant.
    Bonnie Wilmot, Assistant General Counsel, Florida Department of Education, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the final order of the Department of Education closing her vocational rehabilitation case file. Upon consideration of Appellant’s response to the court’s order to show cause, we dismiss this appeal for lack of jurisdiction because the record reflects that the notice of appeal was filed with the agency clerk on May 13, 2009, which is more than 30 days after the final order was rendered by the agency on April 9, 2009. Appellant’s failure to file the notice of appeal within the requisite 30-day period is “an irremediable jurisdictional defect.” First Nat’l Bank in Ft. Myers v. Fla. Unemployment Appeals Comm’n, 461 So.2d 208 (Fla. 1st DCA 1984); see also Crapp v. Criminal Justice Standards & Training Comm’n, 753 So.2d 787 (Fla. 3d DCA 2000) (dismissing appeal that was filed two days late because “[a]n appellate court cannot exercise jurisdiction where notice of appeal has not been timely filed”).

DISMISSED.

LEWIS, THOMAS and WETHERELL, JJ., concur.


author: CORTIÑAS, J.

text:
    Elison MIRUTIL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2127.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

Elison Mirutil was charged with multiple offenses of burglary and theft committed on four separate occasions. He pled guilty to all of the charges, and the trial court imposed juvenile sanctions, committing him to a moderate risk program with aftercare. Mirutil successfully completed the moderate risk program and was close to completing the aftercare program when he was arrested and charged with several new offenses. After a heai'ing, the trial court granted the request of the Department of Juvenile Justice to terminate supervision, revoked the juvenile sanctions, and set the case for sentencing Mirutil as an adult.

At the sentencing hearing, the State offered evidence of the new violations “to show this defendant’s danger to the community.” Defense counsel objected to the court’s consideration of any evidence related to the new crimes, arguing that it would grossly “prejudice the [cjourt on unproven charges.” The trial court accepted testimony on the new cases “for purposes of probable cause of the four corners of the arrest affidavits in those cases.” After hearing from the State’s three eyewitnesses to the new offenses, the trial court found that “[t]he State ha[d] proven probable cause that exists that [Mirutil] did in fact commit the new offenses.” It imposed sentences for the previous crimes, totaling seventy-five years in state prison, nearly the maximum dictated by the criminal punishment code scoresheet. Mirutil appeals, arguing that it was improper for the trial court to consider the subsequent offenses in sentencing him for the earlier offenses.

“The trial court may not rely upon impermissible considerations when sentencing a defendant.” Cook v. State, 647 So.2d 1066, 1067 (Fla. 3d DCA 1994). Impermissible factors include a “belief that the defendant likely had committed previous acts of violence although [he] had never been charged with committing any such acts,” Epprecht v. State, 488 So.2d 129, 130 (Fla. 3d DCA 1986); a “belief that the defendant was guilty of an offense of which he had been acquitted,” id.; and “unsubstantiated allegations of misconduct” and “unsupported speculations.” Reese v. State, 639 So.2d 1067, 1068 (Fla. 4th DCA 1994).

Mirutil argues that the trial court erred by sentencing him based on testimony concerning his subsequent arrests. The State maintains that “the statute doesn’t require a conviction.... It doesn’t say that he needs to be convicted of the new offense, just that he committed a new violation of law.” However, Section 985.565(4)(c), Florida Statutes, allows a “court [to] revoke the previous adjudication, impose an adjudication of guilt, and impose any sentence which it may lawfully impose ... if the child commits a new violation of law while under juvenile sanctions.” The trial court had already revoked Mirutil’s juvenile sanctions based on the new charges. The sentencing hearing was not tantamount to a probation violation hearing, where the court may consider the new crimes a defendant committed because he violated his probation by doing so; its sole purpose was to determine the appropriate sentence to be imposed based on the nature of the offenses for which the court had originally imposed the juvenile sanctions. Accordingly, as in any adult sentencing hearing, it was improper for the judge to consider the details of the pending charges alleged to have occurred after the offenses for which Mirutil was to be sentenced. See Gray v. State, 964 So.2d 884 (Fla. 2d DCA 2007); Seays v. State, 789 So.2d 1209, 1210 (Fla. 4th DCA 2001). “The state through its criminal process may not penalize someone merely for the status of being under indictment or otherwise accused of a crime, as it has attempted to do here.” State v. Potts, 526 So.2d 63 (Fla.1988). The State cites Whitehead v. State, 21 So.3d 157, 159-60 (Fla. 4th DCA 2009), for the proposition that pending charges may be considered for their relevance to the sentencing, if the defendant is “given the opportunity to explain or offer evidence” regarding the pending charges. However, this case is readily distinguishable because Whitehead had admitted to the charges, whereas Mi-rutil maintains his innocence.

“[T]he State has the burden to show from the record as a whole that the trial judge did not rely upon impermissible considerations in passing sentence upon the defendant where portions of the record reflect that the trial judge may have so relied.” Epprecht, 488 So.2d at 130; see Seays, 789 So.2d at 1210. The State’s sole argument is that throughout the hearings, the trial judge reiterated that she was not considering the new offenses in sentencing Mirutil but was using them solely to prove that Mirutil had violated his probation agreement.

However, testimony regarding the new offenses was the central feature of the sentencing hearing. Discussion of the new offenses comprised forty-eight pages of the transcript, or eighty-five percent of the sentencing hearing, while the testimony of Mirutil’s character witnesses comprised only nine pages. The State presented testimony from three witnesses regarding the new offenses. Their testimony could not have been but extremely prejudicial.

Because we are “not at liberty to assume that items given such emphasis by the sentencing court, did not influence the sentence,” it befalls the State, as we have said, to convince us that these items played no part in the sentence imposed in the present case. While most assuredly there is more than ample justification for the sentence imposed, and our remand in no way precludes this or some equivalent sentence, we are not convinced, as we must be, that these impermissible items played no role in the sentence.

Epprecht, 488 So.2d at 131 (quoting Townsend v. Burke, 334 U.S. 736, 740, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948)). “Based on the record and the trial court’s candid remarks it cannot be said that the trial court did not take into consideration impermissible factors in sentencing” Mirutil. Cook, 647 So.2d at 1067 (citing Epprecht). Therefore, we find that the State has not earned its burden of proving that the trial court did not rely on the later eases in sentencing Mirutil for the previous cases.

Accordingly, we reverse and remand for resentencing by a different judge, “to preclude any perception on [Mirutil’s] part that the resentencing may not be conducted in a completely fair and impartial manner....” Berry v. State, 458 So.2d 1155, 1156 (Fla. 1st DCA1984).

Reversed and remanded.

      . The scoresheet recommended between 8.12 years and eighty-five years.


author: CRENSHAW, Judge.

text:
    Andre BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3392.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.

      Joseph C. Bodiford of Bodiford Law, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Andre Bryant appeals his judgment and sentence for robbery with a firearm or deadly weapon in violation of section 812.13(1) and (2)(a), Florida Statutes (2006). We affirm his judgment and sentence without comment on all but one of the issues he raised on appeal. However, we write to address Bryant’s contention that the trial court fundamentally erred by providing jury instructions that contained the conjunction “and/or” between the names of the alleged victims. For reasons stated below, we find the use of the conjunction “and/or” in the jury instructions in this case constituted error, but not fundamental error.

After going out to dinner the night of August 3, 2006, Lori Cline drove her son Chase Cline, her daughter Erika Cline, and Erika’s friend Tia Robinson to a Wal-greens drive-through window to pick up a prescription. Chase Cline sat in the passenger seat, and the two girls sat in the back. While Lori Cline was conversing with the pharmacist, a man approached the rear window where Tia Robinson was sitting. He stuck a gun through the window towards Chase Cline’s head and demanded Lori Cline’s pocketbook. Lori Cline handed the man her wallet, and he fled into some nearby bushes. Lori Cline then drove to the front of the Walgreens, called the police, and proceeded to identify a man on Walgreens’ surveillance tape as the robber. Law enforcement thereafter arrested Bryant after they discovered him near the vicinity of the Walgreens.

Despite various issues concerning the identification of the robber, the State charged Bryant with one count of robbery with a firearm or deadly weapon. Specifically, the State’s amended information alleged Bryant “did then and there unlawfully, by force, violence, assault or putting in fear, take away from the person or custody of LORI CLINE AND/OR CHASE CLINE certain property to-wit [sic]: WALLET, with intent to permanently or temporarily deprive LORI CLINE of said property.” The case proceeded to trial. After the State and Bryant rested their cases, the following instructions on robbery were given to the jury without objection:

15.1 Robbery, F.S. 812.13
To prove the crime of Robbery, the State must prove the following elements beyond a reasonable doubt:
1. Andre Bryant took the wallet from the person or custody of Lori Cline and/or Chase Cline.
2. Force, violence or assault, or putting in fear was used in the course of the taking.
3. The property taken was of some value.
4. The taking was with the intent to permanently deprive Lori Cline and/or Chase Cline of his or her right to the property or any benefit from it or appropriate the property of Lori Cline and/or Chase Cline to his or her own use or to the use of any person not entitled to it.

On appeal, Bryant alleges the repeated use of the phrase “and/or” in the jury instruction confused the jury as to whom the actual victim of the taking was and as to whom force or fear was used against. Because Bryant did not object to the instructions at trial, he failed to adequately preserve this error for review, and thus his claim can be raised on appeal only if fundamental error occurred. See Reed v. State, 837 So.2d 366, 370 (Fla.2002); State v. Delva, 575 So.2d 643, 645 (Fla.1991); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982).

As Bryant correctly points out, this court has previously determined that the use of the phrase “and/or” in criminal jury instructions amounted to fundamental error. However, we abandoned this reasoning after the Florida Supreme Court’s opinion in Garzón v. State, 980 So.2d 1038 (Fla.2008). Garzón determined that where the jury instructions do not present a Delva or Reed error as to the elements of the crime, this court must examine “the totality of the record to determine if the ‘and/or’ instruction met the exacting requirements of fundamental instruction error.” Id. at 1043; see also Hunter v. State, 8 So.3d 1052, 1071 (Fla.2008); Bar-rientos v. State, 1 So.3d 1209,1219 (Fla. 2d DCA 2009) (noting “the appellate court must examine the overall context — for example, other jury instructions given by the court, arguments presented by the attorneys, and the evidence in the case” before determining the existence of fundamental error).

The Florida Supreme Court and this coui’t have clearly established that the use of the conjunction “and/or” in jury instructions is error. See Garzón, 980 So.2d at 1045 (condemning the use of “and/or” instructions); Hunter, 8 So.3d at 1070; Bar-rientos, 1 So.3d at 1220. Nonetheless, Garzón, Hunter, and Barrientos concern the use of the “and/or” conjunction between the names of codefendants. In this instance, Bryant is contesting the use of “and/or” between the names of the victims, and thus we will examine his argument in accordance with analogous jury instruction cases.

In Miller v. State, 918 So.2d 415 (Fla. 2d DCA 2006), Miller was terminated from her job at a bank and, in a fit of anger, made an audible threat as she got into her car. She then drove her car in the direction of Barnes, who was the bank’s security officer. Standing next to Barnes was Zevetchin, another bank employee who was walking from the parking lot to the bank. The State charged Miller by information with one count of aggravated assault with a deadly weapon for threatening Barnes “and/or” Zevetchin and creating fear in Barnes “and/or” Zevetchin. After the State and Miller rested their cases, the trial court’s jury instruction on aggravated assault required the jury to consider whether Miller intentionally and unlawfully threatened Barnes “or” Zevetchin and created a well-founded fear in the mind of Barnes “or” Zevetchin that violence was about to take place. Though this court noted the trial court used “or” in the jury-instructions rather than “and/or,” we nonetheless found the trial court’s instruction to be fundamentally erroneous because aggravated assault required that a person who is threatened experience the fear that violence is imminent. Id. at 416 (citing § 784.011, Fla. Stat. (2003)). The jury instructions improperly permitted the jury to convict Miller “of aggravated assault if one alleged victim was threatened while the other had a well-founded fear of violence.” Id. at 416-17; see also Fuller v. State, 942 So.2d 1039 (Fla. 2d DCA 2006) (reversing fundamentally erroneous jury instructions on a judgment and sentence for aggravated assault with a deadly weapon in accordance with Miller).

Other district courts have reached similar conclusions in aggravated assault or battery cases. See Comer v. State, 997 So.2d 440, 441 (Fla. 1st DCA 2008) (determining Comer’s appellate counsel was ineffective for failing to argue on appeal that the use of the “and/or” conjunctive in jury instructions for aggravated assault and resisting arrest were fundamental error); Love v. State, 971 So.2d 280, 288 (Fla. 4th DCA 2008) (finding the jury instructions for two counts of battery on a law enforcement officer using “and/or” that used the names of both officers for each count were fundamentally erroneous because it improperly allowed jury to convict on both battery counts even if they found that only one of the officers was intentionally touched or struck by Love); Tindle v. State, 832 So.2d 966, 968 (Fla. 5th DCA 2002) (determining the use of “and/or” in the jury instructions was fundamentally erroneous because the evidence presented at trial supported a finding that Tindle committed an aggravated assault against Mixon, not Williams, as Williams was not afraid for himself, but for Mixon’s safety); James v. State, 706 So.2d 64, 65 (Fla. 5th DCA 1998) (finding fundamental error in an “and/or” jury instruction based on a single count of aggravated assault with a firearm because the evidence adduced at trial established two distinct and independent offenses which lacked a necessary connection to each other).

We do not find that the use of the conjunction “and/or” in the jury instructions in this case amounted to fundamental error. For a jury instruction to constitute fundamental error, “ ‘the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Delva, 575 So.2d at 644-45 (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). “In other words, ‘fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.’ ” Id. at 645 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla. 1982)). “ ‘[Fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.’ ” Farina v. State, 937 So.2d 612, 629 (Fla.2006) (alteration in original) (quoting Ray v. State, 403 So.2d 956, 960 (Fla.1981)).

Here, the testimony at Bryant’s trial established that a robber threatened Chase Cline with a firearm. As a result of the threat, Lori Cline handed the robber her wallet. The record does not demonstrate that the robber took any property from Chase Cline or acted with the intent to permanently deprive Chase Cline of any right to such property. Hence, any mention of Chase Cline in the robbery jury instruction was error pursuant to Gar-zón’s condemnation of the phrase “and/ or.” However, the evidence does establish that a robber intended to take and permanently deprive Lori Cline of her wallet by putting her in fear through the endangerment of her son. These facts are sufficient to support a finding that a robbery was committed against Lori Cline. See Flagler v. State, 198 So.2d 313, 314 (Fla.1967) (affirming a robbery conviction upon finding the mother was put in fear through the threat of harm against her son); see also State v. Baldwin, 709 So.2d 636, 637 (Fla. 2d DCA 1998) (“[I]f the circumstances attendant to the robbery were such as to ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear for the purpose of the robbery statute, and actual fear need not be proved.”). Thus, when we review the totality of the record pursuant to Garzón, we do not find the use of the phrase “and/or” in the jury instruction constituted fundamental error.

Affirmed.

SILBERMAN and MORRIS, JJ., Concur.

      . See Green v. State, 968 So.2d 86, 89 (Fla. 2d DCA 2007); Davis v. State, 895 So.2d 1195, 1196 (Fla. 2d DCA 2005); Cabrera v. State, 890 So.2d 506, 508 (Fla. 2d DCA 2005).

      . Yet the Fourth District also found no error existed for a conviction for resisting an officer, either with or without violence, when the conjunction “and/or” was used between the arresting officers. See Provow v. State, 14 So.3d 1134 (Fla. 4th DCA 2009) (specifically explaining why the use of the locution "and/ or” in a jury instruction in that case does not constitute error).


author: ORFINGER, J.

text:
    Cameron Rashad DENARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1360.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.
    Rehearing Denied March 26, 2010.

      F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Cameron R. Denard appeals from his convictions and sentences for two counts of robbery with a firearm and three counts of aggravated assault with a firearm. His sole contention on appeal is that the trial court erred in denying his motions for judgment of acquittal. We have carefully reviewed the testimony presented at trial, and conclude that the trial court correctly denied Denard’s motions for judgment of acquittal except as to the single aggravated assault charge involving Javier Solitz.

To establish an aggravated assault, the State must prove that the defendant had the specific intent to do violence to the person of another. Swift v. State, 973 So.2d 1196, 1199 (Fla. 2d DCA 2008). This threat element addresses the defendant’s intent, not simply the reaction of the person perceiving the act. Benitez v. State, 901 So.2d 935, 937 (Fla. 4th DCA 2005). In this case, the evidence does not establish that Denard had the specific intent to threaten Solitz. As Denard and his co-defendant approached two of Solitz’s friends menacingly, Solitz rolled under a nearby truck and remained there during the robbery of his two friends. Apparently, the robbers never saw him. While Solitz could see guns, he remained under the truck during the entire incident and no one pointed a gun at him or specifically threatened him.

We reverse the aggravated assault conviction and sentence as it pertains to Javier Solitz and remand to the trial court to vacate that conviction and sentence. All other convictions and sentences are affirmed. Resentencing is not necessary.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PALMER and EVANDER, JJ., concur.


author: SUAREZ, J.

text:
    Cesar Angel RONDON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2917.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Rehearing Denied April 8, 2010.
    Cesar Angel Rondon, in proper person.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTIÑAS, JJ.
   SUAREZ, J.

Cesar Angel Rondon appeals from the trial court’s summary denial of his motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(f). A review of the record conclusively shows that the defendant’s motion to withdraw his plea was untimely filed. See Fla. R.Crim. P. 3.170(f) and (l). We therefore deny Rondon’s motion for appointment of counsel on appeal and affirm the trial court’s order denying relief.

Affirmed.


text:
    Jorge P. MIJARES-PUENTES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3245.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirm,ed. See Sloss v. State, 925 So.2d 419 (Fla. 5th DCA 2006).

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


text:
    Frank Abel HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3504.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Rehearing Denied April 12, 2010.
    Frank Abel Hernandez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Ragan v. State, 643 So.2d 1175,1176 (Fla. 3d DCA 1994).