Opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITUNITED STATES OF AMERICA, Plaintiff-Appellee, v. A LEXANDER R ASHKOVSKI , Defendant-Appellant.
No. 01-50374; D.C. No. CR-99-02393-J
OPINION
Appeal from the United States District Court for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Submitted June 4, 2002*—Pasadena, California
Filed August 28, 2002
Before: Ferdinand F. Fernandez, Kim McLane Wardlaw and William A. Fletcher, Circuit Judges
Opinion by Judge Wardlaw
*The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
COUNSEL
Alex Landon, San Diego, California, for the defendant-appellant.
Mark P. Edelman, Assistant U.S. Attorney, San Diego, Cali-fornia, for the plaintiff-appellee.
OPINION
WARDLAW, Circuit Judge:
Alexander Rashkovski appeals his conviction and sentence for smuggling aliens into the United States for prostitution purposes, in violation of 8 U.S.C. §§ 1324(a)(2)(B)(ii) and 1328, and 18 U.S.C. § 2422(a). His appeal presents the intriguing question whether sufficient evidence can support a conviction for persuasion or inducement to travel for the purpose of prostitution under § 2422(a), where the aliens themselves desired to leave Russia and travel to the United States, and did so having no actual intent to engage in prostitution. Rashkovski also challenges the district court’s denial of his motion to sever his trial from that of his wife and co-defendant, Nataliya Kozlova, and its determination that each smuggled alien counted as a separate § 1324(a)(2)(B)(ii) violation at sentencing. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.
I. Background
In March 1999, during an investigation of prostitution rings run through Long Beach hotels, police sergeant Paul LeBaron noticed a small ad in the L.A. Weekly ’s Adult Classified section reading "European Paradise Birds: Find your paradise." Rashkovski and Kozlova answered the ad’s phone line and offered to send a "girl" to LeBaron for $250 per hour.
A few hours later, Elena Zimina showed up at LeBaron’s Hilton hotel room. She massaged his back and gestured towards his groin, asking in broken English if he wanted "a kiss." Police officers burst into the room and arrested Zimina for prostitution.
Zimina would later testify that she had been a prostitute for several months before her arrest, having traveled from Russia to the United States in December 1998 to work as an "escort" girl. Rashkovski and Kozlova had helped her cross illegally into the United States via Mexico, rented her an apartment in Los Angeles, and explained that she would be working as a prostitute, charging $200 per hour, of which she could keep $30. When Zimina had refused, Rashkovski and Kozlova had screamed vulgarities at her and threatened to have her put in jail for illegal immigration. Unable to speak English or travel without their permission, Zimina was trapped in their employ until April 1999, when she escaped with the help of a friend.
To recruit more Russian women, Rashkovski and Kozlova flew to Moscow in June 1999 and held meetings to promote the limitless job opportunities in the dynamic field of prostitution in the United States. To the attendees at one of the meetings, which included Vlada Toulousheva and Evgenia Tsimbal, Rashkovski explained that although it was unlikely he could get visas for all of the women, he would make their travel arrangements and pay for the plane tickets. The women would repay him with the money they made in his "estabished prostitution business"— $60 per hour of the $200 they would charge.
Seizing upon the plan as the way to escape their precarious circumstances in Russia, Toulousheva and Tsimbal flew into Mexico with three other women in August 1999. Rashkovski met them at the Grand Hotel in Tijuana and prepped them for a late night border crossing, instructing them to dress as though they had been at a discotheque, to appear drunk, and to answer "Yes, U.S." to any questions asked by border officials.
Shortly after midnight on August 9, Rashkovski, Tou-lousheva, and Tsimbal attempted to drive into the United States in Rashkovski’s car. When both women claimed Amer-ican citizenship but could not speak any English, immigration agents grew suspicious and detained Rashkovski.
A federal grand jury indicted Rashkovski and Kozlova for conspiracy to bring in illegal aliens for commercial gain, 8 U.S.C. § 1324(a)(2)(B)(ii); importation of aliens for immoral purposes, 8 U.S.C. § 1328; persuading, inducing, or enticing foreign travel for the purposes of prostitution, 18 U.S.C. § 2422(a); and aiding and abetting, 18 U.S.C. § 2.
Following trial, the jury found Rashkovski and Kozlova guilty of all counts. The court sentenced Rashkovski to concurrent terms totaling 60 months. Kozlova did not appear for sentencing and remains a fugitive.
II. Discussion
[1] Two counts of the indictment relating to Toulousheva and Tsimbal charged Rashkovski with violating 18 U.S.C. § 2422(a), which states:
Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, . . . to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.
Rashkovski argues that insufficient evidence supported his convictions under these two counts because: (1) he did not persuade, induce, entice, or coerce Toulousheva and Tsimbal to travel because they willingly traveled to the United States; and (2) they had no real intention of being prostitutes.
We review claims of insufficient evidence de novo. United States v. Antonakeas , 255 F.3d 714, 723 (9th Cir. 2001). There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Crawford , 239 F.3d 1086, 1092 (9th Cir. 2001).
At trial, both women testified that they attended the recruiting meetings voluntarily. Tsimbal sought to leave "criminal Moscow" behind, while Toulousheva viewed America "as a country where you can feel safe." Both testified that, while they viewed Rashkovski’s scheme as a prime opportunity to flee Russia for the United States, they did not plan to work as prostitutes once they arrived in the country.
In light of this testimony, Rashkovski first contends that because the women desired of their own accord to travel internationally, he could not have persuaded, induced, enticed, or coerced them to do so, as required under § 2422(a). Upon examination of the relevant language, we conclude that Rash-kovski’s argument is at odds with the plain meaning of the statute.
[2] "Under the rules of statutory construction, ‘[t]he plain meaning of the statute controls, and courts will look no further, unless its application leads to unreasonable or impracticable results.’ " United States v. Leyva , 282 F.3d 623, 625 (9th Cir. 2002) (quoting United States v. Daas , 198 F.3d 1167, 1174 (9th Cir. 1999)), cert. denied , 122 S.Ct. 2374 (2002). The dictionary definition of "persuade" is "to move by argument, entreaty, or expostulation to a belief, position, or course of action"; "induce" is "to move by persuasion or influence"; and "entice" is "to attract artfully or adroitly or by arousing hope or desire: tempt." Merriam-Webster’s Collegiate Dictionary (2002); see Batsell v. United States , 403 F.2d 395, 399 (8th Cir. 1968) (The words "inducement," "persuasion," and "enticement" in § 2422 are of common usage and meaning.). None of the statutory language requires Rash-kovski to have created out of whole cloth the women’s desire to go to the United States; it merely requires that he have convinced or influenced Toulousheva and Tsimbal to actually undergo the journey, or made the possibility more appealing. Thus, it is not significant that Toulousheva and Tsimbal had pre-existing wishes to leave Russia for the United States, especially considering that they never acted upon those desires until Rashkovski made it attainable.
[3] The testimony showed that Rashkovski offered to make and pay for the necessary travel arrangements to allow Tsim-bal and Toulousheva to go to the United States. That the women accepted Rashkovski’s offer and thereafter traveled with his assistance is sufficient evidence from which a rational jury could conclude that Rashkovski persuaded, induced, or enticed them to travel. See United States v. Pelton , 578 F.2d 701, 713 (8th Cir. 1978) (concluding that defendant had induced a woman to travel by making her travel arrangements, even though the woman had been willing to travel to work as a prostitute). "When an offer to travel interstate for purposes of prostitution elicits a positive response from a woman to whom it is made, it constitutes a requisite inducement under the statute." Id.
[4] Rashkovski next contends that he could not have induced or enticed the women to travel "to engage in prostitution" under § 2422(a) because Toulousheva and Tsimbal both declared on the stand that they had no intention of working as prostitutes once they reached the United States. However, it is the defendant’s intent that forms the basis for his criminal liability, not the victims’. The question under § 2422(a) is whether Rashkovski persuaded or enticed the women to travel intending them to engage in prostitution. This is evident from Simpson v. United States , 245 F. 278, 279 (9th Cir. 1917), in which the defendant was charged with violating section 3 of the Mann Act, 36 Stat. 825, now codified at 18 U.S.C. § 2422. See Act of June 24, 1948, ch. 645, 62 Stat. 683, 812 (revising and codifying the Mann Act). There, we affirmed the sufficiency of the indictment, which "charged that the defendant’s purpose [for inducing travel] was to have the woman ‘manage a house of prostitution.’ " Simpson , 245 F. at 279 (emphasis added) (holding that the indictment set forth "the offense in the language of the statute . . . with sufficient particularity"). Under § 2422(a), the relevant intent remains the defendant’s. United States v. Drury , 582 F.2d 1181, 1184 (8th Cir. 1978) ("To have committed a Mann Act violation, appellant must have knowingly persuaded the women to travel across state lines with the intention that they engage in prostitution."). Whether Toulousheva and Tsimbal themselves intended to engage in prostitution is thus immaterial to Rashkovski’s criminal culpability.
[5] Evidence that Rashkovski recruited Russian women for his prostitution business, coupled with Elena Zimina’s testimony that Rashkovski had forced her into prostitution after bringing her into the country, sufficiently demonstrated that he intended to prostitute Toulousheva and Tsimbal when he persuaded, induced, or enticed them to travel. Because both of Rashkovski’s arguments fail, we conclude that sufficient evidence supported his convictions under § 2422(a).
We have considered Rashkovski’s contention that the district court abused its discretion in denying his motion to sever his trial from that of his wife and find it meritless. Their defenses were not mutually antagonistic and he was not prejudiced by the joinder. See United States v. Throckmorton , 87 F.3d 1069, 1072 (9th Cir. 1996) ("To be entitled to severance on the basis of mutually antagonistic defenses, a defendant must show that the core of the codefendant’s defense is so irreconcilable with the core of his own defense that the acceptance of the codefendant’s theory by the jury precludes acquittal of the defendant."). Moreover, his argument that the court erred in calculating his sentence by counting each alien smuggled as a separate violation of 8 U.S.C. § 1324(a)(2)(B)(ii) is foreclosed by United States v. Gonzalez-Torres , 273 F.3d 1181, 1189 (9th Cir. 2001) (holding that the text of § 1324(a)(2)(B) "unequivocally provides that penalties are to be assessed for ‘each alien in respect to whom a violation of this paragraph occurs’ ").
Rashkovski’s conviction and sentence are therefore
AFFIRMED.
MAGNUM CONSTRUCTION MANAGEMENT CORPORATION v. ARSO ENTERPRISES, INC. 3D02-92
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, 2002
MAGNUM CONSTRUCTION
MANAGEMENT CORPORATION,
d/b/a MCM CORPORATION,
Appellant,
vs.CASE NO. 3D02-92
ARSO ENTERPRISES, INC., d/b/a LOWER
SOL-A-TROL ALUMINUM PRODUCTS, TRIBUNAL NO.
95-20727Appellee.
Opinion filed August 14, 2002.
An Appeal from the Circuit Court for Miami-Dade County, Fredricka G. Smith, Judge.
Alvarez, Armas & Borron, J. Alfredo de Armas and Arturo Alvarez, for appellant.
Pedro F. Martell, for appellee.
Before JORGENSON, GODERICH, and SHEVIN, JJ.
PER CURIAM.
In the underlying suit, a general contractor, Magnum Construction Management Corporation d/b/a MCM Corporation [MCM], entered into an agreement with Miami-Dade County for the replacement of windows at an elderly housing facility. After the new windows were installed, they leaked. MCM filed suit against the County for nonpayment, and the County filed a counterclaim seeking damages as a result of the defective windows. MCM, in turn, amended its complaint by interlineation and sought indemnification from the manufacturer of the windows, Arso Enterprises, Inc., d/b/a Sol-A-Trol Aluminum Products. The trial court conducted a sixteen-day bench trial and specifically rejected MCM's defense that the defects were caused by the manufacturer. Accordingly, we find that the trial court properly denied MCM's claim for indemnification.
We affirm the final judgments under review.
LEON COUNTY v. BRADFORDVILLE PHIPPS LIMITED PARTNERSHIP 1D01-3275
LEON COUNTY, FLORIDA, a political subdivision in the State of Florida,
Appellant,
v.
BRADFORDVILLE PHIPPS LIMITED PARTNERSHIP, a Florida limited partnership,
Appellee.
_____________________________/
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D01-3275
Opinion filed August 14, 2002.
An appeal from Circuit Court for Leon County.
N. Sanders Sauls, Judge.
Herbert W.A. Thiele, County Attorney, and Theresa T. Sawyer, Assistant County Attorney, Tallahassee; Robert H. Freilich of Freilich, Leitner & Carlisle, Kansas City, Missouri, for Appellant.
Carl R. Pennington, Jr. and John C. Pelham of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellee.
ALLEN, C.J.
Leon County challenges a summary final judgment which was entered upon the appellee's complaint for declaratory and injunctive relief. In this order the court ruled that Leon County is estopped from applying certain ordinances to the appellee's property, and that the appellee may develop the property in accordance with prior zoning ordinances, and that Leon County shall review and grant or deny development permit applications without reference to the new ordinances (and a sector plan) with the County being enjoined from applying these provisions to the appellee's property. Because the appellee did not demonstrate the complete absence of any dispute as to all issues of material fact, and the appellee did not conclusively establish such undisputed equities as to compel an estoppel, the court should not have entered the summary judgment.
The appellee purchased property within the Bradfordville Study Area in Leon County, with the property being zoned for commercial use. Pursuant to the existing Land Use Goals and policies for this area, the county thereafter adopted interim standards addressing stormwater loading levels. The County also became involved in a road project which led to the exercise of eminent domain powers for the acquisition of a right of way and land for a stormwater management facility. During this time the appellee obtained additional property and ultimately settled the eminent domain proceeding by a stipulated judgment with Leon County whereby the appellee would be allowed to collect and transmit certain amounts of surplus waters into the stormwater management facility. Leon County subsequently rezoned a portion of the area with mixed-use districts allowing commercial use, and several homeowners associations initiated a legal proceeding challenging this action. A moratorium order was issued in that proceeding, precluding the County from permitting new development in the area until further regulations were adopted in accordance with a stormwater study pursuant to the applicable Land Use Goal. The County thereafter entered into an interim settlement with the homeowners associations and the appellee then initiated a legal action against the County, claiming that this settlement effected a taking of the appellee's property. The court eventually entered a judgment for Leon County in that case, ruling that the challenged regulatory action did not effect such a taking. Noting that the County's comprehensive plan and the Land Use Goals were already in effect when the appellee purchased the property, the court found that the appellee was aware of the resistance to intensive commercial development in the area and could have reasonably expected that further regulatory standards would be imposed and might impact the appellee's development plans.
During this time Leon County adopted Interim Development Ordinance (IDO) 99-31, providing for a temporary moratorium on development permits until a stormwater management plan and further regulations could be adopted. After completing the stormwater study the County adopted IDO 00-30 and 00-31, imposing new stormwater and commercial development standards. These ordinances amended the zoning map, and required specified methods of stormwater treatment with options for off-line or on-line retention, and the imposition of groundwater standards, etc. Certain commercial activities were also prohibited within a specified area. The appellee thereafter initiated the legal action which has led to the present appeal, filing a complaint for declaratory and injunctive relief. Describing numerous activities which were alleged to have been undertaken in furtherance of the pre-development process, the appellee asserted that it would be unjust for the County to impose the new standards in connection with the appellee's plans for development. Affidavits were filed with regard to the activities and efforts of various individuals working on the appellee's behalf. However, Leon County denied many of the appellee's averments, and maintained that the appellee had not changed its position with any good faith reliance on the County's conduct. The County further asserted that the appellee acquired the property and pursued development with the knowledge that there were ongoing studies and regulatory revisions being anticipated to ensure that any development would comport with the requirements of the comprehensive plan. Leon County also filed affidavits, but the court subsequently granted the appellee's motion for summary judgment and entered the appealed order estopping the County from applying the challenged ordinances to the appellee's property, declaring that the appellee would be entitled to develop the property in accordance with the prior zoning ordinances and that the County was enjoined from applying the new regulations or the sector plan for the area and would have to consider permit applications without reference to the new criteria.
As Leon County properly notes, the existence of disputed issues of material fact preclude entry of summary judgment, and the appellee was required to conclusively establish the nonexistence of such an issue beyond even the slightest possibility or doubt. See e.g. Cox v. CSX Intermodal , 732 So. 2d 1092 (Fla. lst DCA 1999). Furthermore, the courts should be extremely cautious in applying the estoppel which the appellee sought against the County, as this doctrine pertains against a governmental entity only under exceptional circumstances. See Dolphin Outdoor Advertising v. Department of Transportation , 582 So. 2d 709 (Fla. lst DCA 1991). Hollywood Beach Hotel v. City of Hollywood , 329 So. 2d 10 (Fla. 1976), nevertheless indicates that the government may sometimes be estopped from unjustly repudiating a zoning action upon which a property owner has reasonably and detrimentally relied. This principle has been applied in situations where the repudiated zoning designation was negotiated by the property owner or made at the property owner's request with the government being aware that the owner was being led to a substantial and detrimental change in position by relying on the agreed zoning. See Board of County Commissioners Metropolitan Dade County v. Lutz , 314 So. 2d 815 (Fla. 3d DCA 1975); Town of Largo v. Imperial Homes , 309 So. 2d 571 (Fla. 2 DCA 1975): see also Franklin County v. Leisure Properties , 430 So. 2d 475 (Fla. lst DCA 1983). But the present case has not been unequivocally shown to involve such circumstances, and may instead be within the general rule announced in cases such as Ft. Pierce v. Davis , 400 So. 2d 1242 (Fla. 4th DCA 1981), which emphasize that a property owner ordinarily may not obtain such an estoppel based on a particular zoning designation.
The affidavits which the appellee filed in this case fail to conclusively demonstrate the necessary criteria for a zoning estoppel under the cited cases , as they do not clearly establish that the earlier zoning was initiated by or made on behalf of the appellee, or that the County could be fairly charged with knowledge that the appellee would rely on such zoning when further studies and standards were being considered for the area, or that the appellee reasonably incurred any detrimental reliance on the earlier zoning designations. Indeed, under cases such as Cummins v. Allstate Indemnity , 732 So. 2d 380 (Fla. 4 DCA 1999), the question as to the reasonableness of any reliance by the appellee may itself preclude entry of summary judgment.
Because the appellee did not conclusively show that there was no disputed issue as to any material fact, or that there was such clear inequity as to require an estoppel, the trial court should not have entered the summary judgment. The appealed order is therefore reversed, and the case is remanded.
BENTON and PADOVANO, JJ., CONCUR.
MEDERI, INC. v. LITCHFIELD 1D01-3381
MEDERI, INC., and
ASSOCIATED INDUSTRIES INSURANCE COMPANY,
Appellants,
v.
CHRISTA LITCHFIELD,
Appellee.
/
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DEPOSITION THEREOF IF FILED
CASE NO. 1D01-3381
Opinion filed August 14, 2002.
An appeal from an order of the Judge of Compensation Claims.
Honorable Dan F. Turnbull, Judge.
Mary Ann Stiles, Stiles Taylor & Grace, P. A., Tampa, for Appellants.
Victor M. Arias, Lusk, Drasites & Tolisano, P. A., Cape Coral, for Appellee.
PER CURIAM.
Affirmed. See Bryant v. David Lawrence Mental Health Center , 672 So. 2d 629 (Fla. 1 DCA 1996).
BOOTH, BROWNING and POLSTON, JJ., concur.
POOLE v. STATE 1D01-3699
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PATRICK POOLE,
Appellant,
v.CASE NO.: 1D01-3699
STATE OF FLORIDA,
Appellee.
___________________/
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
Opinion filed August 14, 2002.
An appeal from the Circuit Court for Bay County.
Don T. Sirmons, Judge.
Patrick Poole, pro se.
Robert A. Butterworth, Attorney General and Janelle C. Gillaspie, Assistant Attorney General, Tallahassee, for Appellee.
VAN NORTWICK, J.
Patrick Poole, an inmate convicted of burglary and sexual battery with the use of, or threat of the use of, a dangerous weapon, challenges the denial of his motion for post-conviction relief filed under the authority of rule 3.850, Florida Rules of Criminal Procedure. Appellant timely filed a motion raising numerous issues, all of which were denied by the circuit court without benefit of an evidentiary hearing. Poole appealed and this court affirmed the denial of relief as to all issues except one, Poole's allegation that his trial counsel rendered ineffective assistance when he failed to object to an allegedly erroneous jury instruction. Poole v. State , 746 So. 2d 1207 (Fla. 1 DCA 1999). This court found that the trial court had failed to specifically considered this issue and, because the record on appeal did not refute the claim, the cause was remanded. Id.
On remand, the trial court again entered an order denying relief finding that "[t]here was no error by counsel not objecting to the instructions given by the court since the jury instructions were proper." Poole appealed once more, and this court again reversed, explaining:
the verdict form reflects appellant was charged with committing sexual battery upon a person 12 years of age or older by using or threatening to use a deadly weapon in violation of section 794.011(3), Florida Statutes (1993). However, the trial court instructed the jury on section 794.011(4), Florida Statutes (1993)(sexual battery on a person 12 years of age or older without that person's consent and under specified circumstances). The former crime is a life felony, and the latter is a first-degree felony.
Poole v. State , 778 So. 2d 1048 (Fla. 1 DCA 2001)(record citations omitted). This court instructed the trial court to conduct an evidentiary hearing on remand the second time or to attach portions of the record conclusively refuting Poole's claim that defense counsel provided ineffective assistance by failing to object to the allegedly erroneous instruction. Id.
On remand, the trial court did not hold an evidentiary hearing, but instead entered an order denying relief on the ground that appellant failed to demonstrate prejudice, as required under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). The trial court attached to its order denying relief excerpts from the trial transcript and other matters of record. In concluding that appellant failed to demonstrate prejudice, the trial court observed (i) that the instruction actually given in Poole's trial and the instruction which should have been given are quite similar, (ii) that the defense at trial was one of misidentification, and (iii) that it was uncontroverted that a sexual battery occurred and that a knife was used in furtherance of that offense. Thus, the trial court concluded that there was no reasonable probability that appellant would have prevailed at trial had the proper jury instruction been given.
While Poole's defense at trial may have been one of misidentification, it is not apparent from the record excerpts appended to the order under review that no defense was presented regarding the use of a deadly weapon. Moreover, the jury instruction actually given to the jury, while quite similar to the one which should have been given, does not contain an element regarding the use of, or the threat of use of, a deadly weapon, nor does the instruction given define "deadly weapon." Thus, the instruction given does differ significantly from the one which should have been given.
No objection was made to the sexual battery jury instruction given at trial. Thus, the issue was not preserved for appeal on direct review of appellant's conviction and sentence, absent the demonstration of fundamental error. See State v. Delva , 575 So. 2d 643, 644-45 (Fla. 1991). An incomplete and inaccurate instruction on the law may constitute fundamental error, where the error relates to the elements of the criminal offense charged. See Mercer v. State , 656 So. 2d 555, 556 (Fla. 1 DCA 1995); see also Hubbard v. State , 751 So. 2d 771, 772 (Fla. 5 DCA 2000). Here, the jury instruction actually given omitted an element of the offense for which appellant was charged and ultimately convicted. The portions of the record attached do not conclusively refute appellant's claim that his trial counsel rendered ineffective assistance and that prejudice was suffered by the failure to object to this instruction. Accordingly, the order denying relief is REVERSED, and the cause is REMANDED for an evidentiary hearing.
ERVIN AND BROWNING, JJ., CONCUR.
CONNELLY v. FLORIDA PAROLE COMMISSION 1D01-3912
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MICHAEL P. CONNELLY,
Petitioner,
v.
FLORIDA PAROLE COMMISSION and MICHAEL W. MOORE, Secretary, Florida Department of Corrections,
Respondents.
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION AND DISPOSITION THEREOF IF FILED.
CASE NO. 1D01-3912
Opinion filed August 14, 2002.
Petition for Writ of Certiorari -- Original Jurisdiction.
Michael P. Connelly, pro se, petitioner.
No appearance for respondents.
PER CURIAM.
By petition for writ of certiorari, Michael P. Connelly seeks review of an order of the circuit court. Because the order before us neither grants nor denies a request for relief, it is not reviewable. Accordingly, we deny the petition.
Connelly petitioned the Circuit Court for Baker County for a writ of habeas corpus, complaining of the procedures utilized in a hearing that resulted in revocation of his conditional release and seeking reinstatement of his conditional release. The circuit court treated the petition as seeking mandamus relief and, by order of August 9, 2001, denied the claim for failure to demonstrate exhaustion of administrative remedies. Connelly moved for rehearing arguing that there were no administrative remedies to exhaust. On September 4, 2001, the trial court entered an order ruling that Connelly did not allege facts which, if true, would mandate his immediate release, but finding that he was entitled to a conditional release hearing. The trial court granted rehearing conditioned on payment of the required filing fee. This order recited that Connelly would have 30 days from entry of the order to pay the court's filing fee or be certified as insolvent pursuant to section 57.085, Florida Statutes. According to the order, "[f]ailure to comply with the conditions of a rehearing will result in denial of the motion for rehearing." Connelly timely invoked this court's certiorari jurisdiction to review the September 4 order.
As an initial matter, we note that the circuit court has never reached the merits of Connelly's claims . The order of September 4 effectively vacated the August 9 order of dismissal. Thus, the case does not stand dismissed in the lower tribunal. Nor do we find that the case became dismissed simply by the passage of 30 days after entry of the September 4 order. See United Water Florida, Inc. v. Florida Public Service Commission , 728 So. 2d 1250 (Fla. 1st DCA 1999).
The order sought to be reviewed does not rule upon the merits of Connelly's claims. This order only preliminarily addresses the issue of insolvency; and neither grants nor denies an order of insolvency. Thus, there is no reviewable order before us. See Brown v. Champion , 757 So. 2d 535 (Fla. 1 DCA 2000).
Petition for writ of certiorari is DENIED.
WOLF, VAN NORTWICK AND BROWNING, JJ., CONCUR.
BOGGS v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT 1D01-4567
H. GLENN BOGGS,
Appellant,
v.
DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT
Appellee .
/
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D01-4567
Opinion filed August 14, 2002.
An appeal from an order of the Department of Management Services, Division of Retirement.
Lawrence A. Gonzalez, Esquire, Tallahassee, for Appellant.
Thomas Wright, Esquire, Department of Management Services, Tallahassee, for Appellee.
PER CURIAM.
Appellant appeals the denial of his petition for service credit in the Florida Retirement System. The Florida Retirement System, created by the Florida Legislature and codified in Chapter 121, Florida Statutes, provides retirement benefits for specified employees. Eligible employers participate in the Florida Retirement System by making contributions for the benefit of its employees at a rate established by law. Section 121.021(10) and Section 121.071, Florida Statutes (2001) . Service credit under the Florida Retirement System is awarded to Florida Retirement System member employees for any month of creditable service as provided for in section 121.021(17)(a), Florida Statutes (2001), in pertinent part, as "the sum of all his or her past service, prior service, military service, out-of-state or non-FRS in-state service, workers’ compensation credit, leave-of-absence credit and future service allowed within the provisions of this chapter if all required contributions have been paid and all other requirements of this chapter have been met."
From July 1, 1977 to June 4, 1981, Appellant was employed by the Florida Bar. Because it is undisputed that the Florida Bar does not participate in, or pay contributions to, the Florida Retirement System for the benefit of its employees, Appellant’s period of employment with the Florida Bar does not constitute creditable service in the Florida Retirement System pursuant to section 121.021(17)(a), Florida Statutes (2001) . Therefore, Appellant is not entitled to retirement credit pursuant to section 121.021(17)(b), Florida Statutes (2001).
AFFIRMED.
BARFIELD, MINER and POLSTON, JJ., concur.
BECKER v. STATE 1D02-829
DAVID W. BECKER, SR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________/
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D02-829
Opinion filed August 14, 2002.
An appeal from the Circuit Court for Escambia County. Kim A. Skievaski, Judge.
Appellant David Becker, pro se, Clermont.
Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED. See Banks v. State , 801 So. 2d 153 (Fla. 1st DCA 2001), petition for rev. pending , case no. SC01-2733.
KAHN, WEBSTER, and DAVIS, JJ., CONCUR.
WHITE v. PITTMAN 1D02-1965
PAUL WHITE,
Appellant,
v.
IDA PITTMAN,
Appellee.
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D02-1965
___________________________/
Opinion filed August 14, 2002.
An appeal from the Circuit Court for Leon County.
John E. Crusoe, Judge.
Appellant, pro se.
Eric M. Lipman, Tallahassee, for Appellee.
PER CURIAM.
Upon consideration of the appellant's response to the Court's order of June 27, 2002, the Court has determined that the notice of appeal was not timely filed. Accordingly, the appellee's motion is granted and the appeal is dismissed for lack of jurisdiction.
DISMISSED.
ERVIN, WOLF, and PADOVANO, JJ., CONCUR.
LEMORIN v. STATE 3D00-1733
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
ROLIN LEMORIN,
Appellant,
vs.CASE NO. 3D00-1733
THE STATE OF FLORIDA,LOWER
TRIBUNAL NO. 97-25741
Appellee.
Opinion filed August 14, 2002.
An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge.
Andrew M. Teschner, for appellant.
Robert A. Butterworth, Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
Before JORGENSON, GODERICH and SHEVIN, JJ.
PER CURIAM.
Affirmed. See Crowley v. State , 558 So. 2d 529 (Fla. 4th DCA 1990); Lopez v. State , 555 So. 2d 1298 (Fla. 3d DCA 1990); Wright v. State , 487 So. 2d 1176 (Fla. 1st DCA 1986).
PAYNE v. STATE 3D00-2037
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
DAVID JEAN PAYNE,
Appellant,
vs.CASE NO. 3D00-2037
THE STATE OF FLORIDA,LOWER
TRIBUNAL NO. 99-28184
Appellee.
Opinion filed August 14, 2002.
An Appeal from the Circuit Court for Miami-Dade County, Kevin Emas, Judge.
Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
Before JORGENSON, SHEVIN and RAMIREZ, JJ.
PER CURIAM.
Affirmed. Stoll v. State , 762 So. 2d 870, 873 (Fla. 2000).
FABREGAS v. STATE 96-38177
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
JUAN CARLOS FABREGAS,
Appellant,CASE NO. 3D00-3255
vs.
THE STATE OF FLORIDA,LOWER TRIBUNAL
CASE NO. 96-38177
Appellee.
Opinion filed August 14, 2002.
An appeal from the Circuit Court of Miami-Dade County, Pedro P. Echarte, Jr., Judge.
Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and GODERICH and FLETCHER, JJ.
FLETCHER, Judge.
Juan Carlos Fabregas (the defendant) appeals his conviction of first-degree murder, alleging error in the exclusion of rebuttal testimony as well as improper prosecutorial argument. For the reasons stated below, we reverse and remand for a new trial.
Fabregas was tried and found guilty of the premeditated murder of Kim Mio whose body was found burning in a field in northwest Miami-Dade County on November 29, 1996. The medical examiner determined the cause of death to be repeated stab wounds. Partially burned items found near the body led investigators to Fabregas. Upon arriving at his home, the officers found Fabregas sound asleep on his couch and had some difficulty waking him up. The residence was cluttered and dirty. A crack cocaine pipe was found in the living room and a bottle of wine in the kitchen. The officers also discovered evidence of blood in the defendant’s home, clothing and car. A Swiss army knife recovered from the residence was subsequently found to have the victim’s blood on it. Upon this evidence, the defendant was arrested and charged with first-degree murder.
The defense presented at trial was that of insanity due to a condition known as drug-induced psychosis. In support of this defense, the defendant presented the testimony of three expert witnesses, a psychiatrist/addictionologist and two forensic psychologists, all of whom opined that the defendant had been in a drug-induced psychosis while committing the crime. In addition, Fabregas himself took the stand to describe his long-term drug addiction, a problem which began when he was 19 years of age.
Fabregas testified that he would routinely smoke crack cocaine for up to three days at a time and then would crash with Rohypnol. Defendant testified that the victim would often come to his house to smoke crack with him. As to the events leading up to the victim’s death, Fabregas admitted that three days prior to his arrest, he and the victim had been smoking crack almost nonstop. At some point, defendant became enraged with the victim when he discovered that she had exchanged two rings, which he highly prized, for additional cocaine. According to the defendant, the two started screaming at each other and the victim attacked him. The defendant stated that he cut the victim lightly with his Swiss Army knife in order to get her to stop, but that when she instead reached for an ice pick to use against him, he stabbed her repeatedly until she passed out. Fabregas claims he then blacked out and did not awaken until a couple of hours later with a feeling of having done something wrong but not fully comprehending the seriousness of his actions. He went out to get more drugs. When he finally returned home, the defendant cleaned up the house and put the body and the bags of garbage in his car. He subsequently drove to a field where he dumped everything and set it on fire.
In order to rebut the drug-induced insanity defense, the State called Dr. Ansley, a neuropsychologist who disagreed with defense experts’ conclusions on the issue of the defendant’s sanity. Dr. Ansley acknowledged the existence of a condition known as drug-induced psychosis, but opined that defendant was not suffering from this condition at the time he committed the crime. Defense counsel attempted to demonstrate the witness’ bias against the diagnosis by a series of questions on cross-examination. Dr. Ansley, however, continued to affirm her belief in the plausibility of the diagnosis in rare occasions. Defense counsel then asked her if she recalled a meeting in the parking lot of the courthouse during which she had been introduced to defense counsel by Dr. Haber, one of the defendant’s experts, and upon being presented with the facts of the case (in order to determine her interest in consulting for the defense), she indicated that she did not believe in drug-induced psychosis. Dr. Ansley stated that she did not recall any such meeting and adamantly denied ever rejecting the existence of the diagnosis.
At this point, defense counsel requested permission to recall Dr. Haber to impeach Dr. Ansley’s testimony. Initially, the trial court summarily denied the request; however, it later conducted a Richardson hearing on the matter. A proffer of Dr. Haber’s rebuttal testimony confirmed the meeting and Dr. Ansley’s statement. The trial judge then inquired of defense counsel the reasons for his failure to disclose this evidence to the prosecution prior to trial. Defense counsel admitted that he did not list Dr. Haber as a rebuttal witness because he did not believe that rebuttal witnesses needed to be disclosed. This admission led the trial court to conclude that the discovery violation had been intentional. The court then proceeded to determine the issue of prejudice to the State. The prosecutor convincingly argued that the failure to disclose the information deprived the prosecution of the opportunity to investigate the matter and, if need be, obtain another expert. The trial court agreed that the prosecution case had been prejudiced, and consequently excluded Dr. Haber’s rebuttal testimony.
On appeal, the defendant initially argues that the failure to list Dr. Haber as a rebuttal witness did not constitute a discovery violation because the necessity of calling Dr. Haber in this capacity could not have been reasonably anticipated. Appellant contends the need did not arise until Dr. Ansley disputed the occurrence of any meeting and denied ever discrediting the diagnosis of drug-induced psychosis. As the State correctly points out, this argument was not presented to the court below. On the contrary, defense counsel explicitly admitted to the trial court that not disclosing the evidence was part of his trial strategy and instead argued that he was not required to disclose rebuttal evidence. Rebuttal witnesses, however, are not excluded from the disclosure requirements of Florida Rule of Criminal Procedure 3.220. See , e.g. , Smith v. State , 500 So. 2d 125 (Fla. 1986); Lucas v. State , 376 So. 2d 1149 (Fla. 1979); Grant v. State , 474 So. 2d 259 (Fla. 1st DCA 1985), rev. denied , 484 So. 2d 8 (Fla. 1986); Witmer v. State , 394 So. 2d 1096 (Fla. 1st DCA 1981).
The State urges affirmance of the judgment on the ground that the excluded evidence concerned a collateral issue which did not affect the defendant’s fundamental right to defend himself. We disagree. The excluded testimony went directly to the credibility of the sole prosecution expert witness to challenge the defendant’s insanity defense. As such, we cannot conclusively determine that the evidence would not have affected the outcome of the trial. "Relevant evidence should not be excluded from the jury unless no other remedy suffices." Comer v. State , 730 So. 2d 769, 774 (Fla. 1st DCA 1999), (citing Cooper v. State , 336 So. 2d 1133 (Fla. 1976), cert. denied , 431 U.S. 925 (1977)). As stated in Wheeler v. State , 754 So. 2d 827, 830 (Fla. 2d DCA 2000), "[w]hen a court determines that the State may be prejudiced because of a discovery violation, it should make every effort to find a remedy short of excluding the witness." Here, it does not appear that the trial court considered any other alternative to exclusion. The case could have been recessed for a few days in order to give the State an opportunity to investigate the matter and, if need be, obtain the services of another expert. Wheeler , 754 So. 2d at 831 ("Procedural prejudice can often be cured by a continuance."). Another remedy could have been to declare a mistrial, giving the State the opportunity of retrying the defendant with the assistance of another expert. See Mattear v. State , 657 So. 2d 46 (Fla. 4th DCA 1995); Rainey v. State , 596 So. 2d 1295 (Fla. 2d DCA 1992). Under the circumstances, we find the exclusion of Dr. Haber’s testimony too severe a remedy for the discovery violation herein. Patterson v. State , 419 So. 2d 1120 (Fla. 4th DCA 1982).
Because we are remanding this case for a new trial, we briefly address one other issue. During closing argument, the prosecutor referred to the defendant’s experts as a "wolving pack of wolves what attack cases as a team [sic]." The trial court correctly sustained defense counsel’s objection to the statement. See Kennerdy v. State , 749 So. 2d 507 (Fla. 2d DCA 1999); Ross v. State 726 So. 2d 317 (Fla. 2d DCA 1998). We trust this argument will not recur on retrial.
For these reasons, we reverse the defendant's judgment of conviction and remand for a new trial.
Reversed and remanded.
HYLAND v. STATE 3D00-3480
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
EXCELLUS HYLAND,
Appellant,
vs.
CASE NOS. 3D00-3480, 3D00-810 and 3D00-37
THE STATE OF FLORIDA,
LOWER
Appellee TRIBUNAL NOS. 97-12743,
97-10896 and 97-12395
**
Opinion filed August 14, 2002.
An Appeal from the Circuit Court for Miami-Dade County, Leon M. Firtel, and Arthur Maginnis, Judges.
Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
Before COPE, GREEN, and RAMIREZ, JJ.
PER CURIAM.
In this consolidated appeal, Excellus Hyland appeals his judgments of conviction and sentences for five counts of armed robbery and four counts of aggravated battery. We affirm Hyland’s convictions, but remand for resentencing.
Hyland was arrested in connection with a thrift store robbery and two separate robberies at the drive-throughs of fast food restaurants. He first asserts error in the trial court’s denial of his motions to suppress his confession at all three trials. Although Hyland was fifteen years of age at the time, we affirm the denials. See Rimpel v. State , 607 So. 2d 502, 503 (Fla. 3d DCA 1992) (upholding the confession of a fifteen year old juvenile).
Hyland next argues that his motion for mistrial made at the trial for the thrift store robberies should have been granted because the court intervened to question an eyewitness, leaving the jury with the impression that the court sided with the prosecution. A trial judge should be circumspect in the questioning of a witness in the middle of a defendant’s cross-examination. Given the judge’s stated reasons that the witness was confused and that the jury was given the wrong impression, the court should have waited until the end of the state’s re-direct examination to clarify the matter. A trial judge should weigh the danger of creating the wrong impression with the jury as to the judge’s impartiality against the witness’ lack of clarity. We conclude, however, that the court’s actions were not so detrimental so as to vitiate the entire trial. See Pagan v. State , 27 Fla. L. Weekly S299 (Fla. 2002) ("A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.").
Hyland also argues that the trial court erred in denying his second motion for mistrial, also made at the trial for the thrift store robberies, because the State elicited hearsay testimony that was harmful to him. We disagree. The single improper hearsay remark, to which the trial court sustained an objection and gave a curative instruction, was not so prejudicial as to deny Hyland a fair trial. See Dixon v. State , 630 So. 2d 1242, 1243 (Fla. 3d DCA 1994).
Hyland further argues that at the trial for the first drive-through robbery, the trial court erred in refusing to give the jury an additional instruction. After being charged, the jury asked the court for a clarification on the effect of age on an individual’s ability to offer a confession. The court did not give the jury any additional instruction. Instead, the original jury instruction was read again.
The offering of additional instructions is within the trial court’s discretion. Florida Rule of Criminal Procedure 3.410(a) does not require that additional jury instructions be given when the jury poses a question to the court. Thus, the trial court did not abuse its discretion by only repeating the original instructions.
We do agree, however, and the State properly concedes, that Hyland was improperly sentenced under the 1995 guidelines invalidated in Heggs v. State , 759 So. 2d 620 (Fla. 1999) for the thrift store robberies (lower tribunal case no. 97-12395). Hyland should thus be resentenced under the 1994 guidelines. We therefore remand for resentencing.
Affirmed in part, reversed in part and remanded.
RAPCIAK v. CARNIVAL CORPORATION 3D01-1547
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
JOHN RAPCIAK,
Appellant,CASE NO. 3D01-1547
vs.LOWER
TRIBUNAL NO. 99-6013
CARNIVAL CORPORATION, etc.,
et al.,
Appellee.
Opinion filed August 14, 2002.
An Appeal from the Circuit Court for Dade County, Thomas S. Wilson, Judge.
Ambrose & Cushing, P.C., and John Ambrose (Chicago, IL), for appellant.
Kaye, Rose & Maltzman, LLP, and Jeffrey B. Maltzman and Darren W. Friedman, for appellee.
Before JORGENSON, GODERICH, and SHEVIN, JJ.
PER CURIAM.
John Rapciak, the plaintiff below, appeals from an order dismissing his complaint. We find no error in the trial court's dismissal of the complaint as to defendant Carnival Corporation for the plaintiff's failure to comply with the agreed order. See Fla. R. Civ. P. 1.420(b). However, the trial court erred in dismissing the case as to the remaining defendants, which were not parties to the agreed order and had not yet appeared in the case.
Affirmed in part, reversed in part, and remanded for further proceedings.
STATE v. SILVA 3D01-1737
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
STATE OF FLORIDA,
Appellant,CASE NO. 3D01-1737
vs.
MARCOS SILVA,
LOWER TRIBUNAL
Appellee.CASE NO. 01-560
Opinion filed July 24, 2002.
An appeal from the Circuit Court of Miami-Dade County, Arthur Snyder, Judge.
Robert A. Butterworth, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellant.
Ivy R. Ginsberg and Thomas W. Mote, II, for appellee.
Before SCHWARTZ, C.J., and FLETCHER and SORONDO, JJ.
PER CURIAM.
The State of Florida appeals the trial court's ruling granting a "reserved" motion for judgment of acquittal after a jury verdict finding Marcos Silva guilty of burglary with assault or battery and battery. Our review of the record demonstrates that the State presented sufficient evidence to support the jury's determination of guilt on the charge of burglary with assault or battery. We therefore reverse the order granting the motion for judgment of acquittal, and remand with instructions to reinstate the jury's verdict on the burglary count. State v. Powell , 636 So. 2d 138 (Fla. 1st DCA), rev. dismissed , 645 So. 2d 454 (Fla. 1994). In light of the State’s concession at oral argument before this court, with which we entirely agree, we affirm the judgment of acquittal on the battery conviction as it cannot be sustained in conjunction with the burglary conviction. Torna v. State , 742 So. 2d 366 (Fla. 3d DCA 1999). Because of the unfortunate views expressed by the trial judge in connection with this case, we direct the case be reassigned to another judge for sentencing.
Affirmed in part, reversed in part, and remanded with instructions.
AMERICAN PIONEER LIFE v. GORIN 3D01-2392
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
AMERICAN PIONEER LIFE
INSURANCE COMPANY,
Appellant,
vs.CASE NO. 3D01-2392
JACOBO GORIN,LOWER
TRIBUNAL NO. 00-26430
Appellee.
Opinion filed August 14, 2002.
An Appeal from a Non-Final Order from the Circuit Court for Miami-Dade County, Celeste Hardee Muir, Judge.
Harnett Lesnick & Ripps and Judith A. Ripps (Boca Raton); Judith H. Hayes, for appellant.
Mintz, Truppman, Clein & Higer and Michael J. Higer; Ver Ploeg & Lumpkin and Brenton N. Ver Ploeg and Jason S. Mazer, for appellee.
Before JORGENSON, GODERICH and SHEVIN, JJ.
PER CURIAM.
American Pioneer Life Insurance Company appeals an order denying its motion to compel arbitration. We reverse on the authority of Benefit Ass’n Int’l, Inc. v. Mount Sinai Comprehensive Cancer Ctr. , 816 So. 2d 164 (Fla. 3d DCA 2002). Gorin’s argument as to the McCarran-Ferguson Insurance Regulation Act, 15 U.S.C. §§ 1011 - 1015, is without merit; Gorin failed to "demonstrate that application of the [Federal Arbitration Act] would invalidate, impair, or supercede a particular state law that regulates the business of insurance." American Heritage Life Ins. Co. v. Orr , 2002 WL 1306188 at *4 (5th Cir. June 14, 2002).
Reversed and remanded.
STATE FARM FIRE AND CASUALTY COMPANY v. CASTILLO 3D01-244
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
STATE FARM FIRE AND CASUALTY
COMPANY,
Appellant,
vs.CASE NO. 3D01-244
LUIS CASTILLO and MADELINE LOWER
CASTILLO,TRIBUNAL NO. 00-7754
Appellees.
Opinion filed August 14, 2002.
An appeal from the Circuit Court for Miami-Dade County, Thomas S. Wilson, Judge.
Hunter & Hunter; Elizabeth K. Russo, for appellant.
Ginsberg & Schwartz and Todd Schwartz; Sarah Steinbaum, for appellees.
Before GODERICH, GREEN, and SORONDO, JJ.
GREEN, J.
State Farm & Casualty Company ("State Farm") appeals an adverse final summary judgment entered in favor of Luis and Madeline Castillo on claims for coverage under their homeowner’s policy for structural damage to their home caused by construction blasting near their property. State Farm argues that the trial court erred in entering summary judgment in the Castillo’s favor where its policy excluded coverage for losses from any earth movement however caused. We agree and reverse.
The Castillo’s home sustained extensive cracking damage to the walls and flooring caused by earth movement below the structure of the house from nearby blasting. They made a property damage claim under their State Farm homeowner’s policy. When State Farm and the Castillo could not initially agree on the cause or amount of the losses, State Farm initiated the proceeding below seeking the appointment of an umpire pursuant to the terms of the policy. The Castillos filed their response agreeing that the appointment of an umpire by the court was necessary, but reserving their right to have any determinations as to coverage and attorney’s fees be made by the circuit court. The trial court appointed an umpire who subsequently determined that the damage to the Castillos’ home was caused by earth movement from blasting in the general vicinity, and assessed the amount of damage to be $35,638.09.
The Castillos moved for entry of an order to confirm the appraisal award, and requested the court to reserve jurisdiction to enter final judgment and award attorney’s fees and costs. State Farm filed its response asserting as defenses, among other things, that its policy excluded coverage for losses to the Castillos’ home by earth movement from blasting by virtue of the following policy exclusions:
SECTION I - LOSSES INSURED
COVERAGE A - DWELLING
We insure for accidental direct physical loss to the property described in Coverage A [the residence premises] except as provided in SECTION I - LOSSES NOT INSURED.
* * * *
SECTION I - LOSSES NOT INSURED
1. We do not insure for any loss to the property described in Coverage A [the residence premises] which consists of, or is directly and immediately caused by, one or more of the perils listed in items a through m below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
1. settling, cracking , shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs, or ceilings [.]
2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these.
b. Earth movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, mudflow, sinkhole, subsidence and erosion. Earth movement also includes volcanic explosion or lava flow, except as specifically provided in SECTION I - ADDITIONAL COVERAGES, Volcanic Action.
We do insure for any direct loss by fire, explosion other than explosion of a volcano, theft, or breakage of glass or safety glazing materials which are part of the dwelling resulting from earth movement, provided the resulting loss is itself a Loss Insured .
Both State Farm and the Castillos filed cross-motions for summary judgment on the coverage issue where the material facts were not in dispute. State Farm maintained that the above stated policy language clearly and unambiguously excluded coverage for losses to an insured’s dwelling by earth movement from blasting. The Castillos, on the other hand, contended that the language of the policy’s "earth movements" exclusion and lead-in clause were ambiguous in that it was susceptible to a reasonable interpretation that the policy excluded only natural, rather than man-made events such as construction blasting. The trial court found the terms of the earth movement exclusion and lead-in provision of the policy to be ambiguous as to whether the exclusion referred only to earth movement from natural causes. The lower court construed the ambiguity in favor of the Castillos, confirmed the appraisal award and entered final judgment in their favor, minus the policy’s $500 deductible plus prejudgment interest. State Farm took the instant appeal.
State Farm urges that based upon the undisputed record evidence that the damage to the Castillo’s dwelling was caused by earth movement generated by nearby blasting, the trial court erred in its determination that the policy did not clearly and unambiguously exclude coverage for such losses. We agree.
The question of whether a particular risk is covered by an insurance policy is a question of law when the facts are undisputed. See Cental Cold Storage, Inc. v. Lexington Ins. Co. , 452 So. 2d 1014 (Fla. 3d DCA 1984). In accordance with well-established rules of interpretation, terms utilized in an insurance policy should be given their plain and unambiguous meaning as understood by the "man-on-the-street." See State Farm and Cas. Co. v. Metropolitan Dade County , 639 So. 2d 63, 66 (Fla. 3d DCA 1994); Sanz v. Reserve Ins. Co. of Chicago, Ill. v. Chicago, Ill. , 172 So. 2d 912, 913 (Fla. 3d DCA 1965). We have said:
A court may resort to construction of a contract of insurance only when the language of the policy in its ordinary meaning is indefinite, ambiguous or equivocal. If the language employed in the policy is clear and unambiguous, there is no occasion for construction or the exercise of a choice of interpretations. In the absence of ambiguity . . . it is the function of the court to give effect to and enforce the contract as it is written.
See U.S. Fire Ins. Co. v. Morejon , 338 So. 2d 223, 225 (Fla. 3d DCA 1976). Any exclusions to coverage are to be strictly construed against the insurer and any doubt or ambiguity is to be resolved in favor of the insured. See Indiana Ins. Co. v. Miguelarcaina , 648 So. 2d 821, 823 (Fla. 3d DCA 1995) (". . . exclusionary clauses are to be narrowly and literally construed"); Hartford Accident and Indem. Co. v. Phelps , 294 So. 2d 362, 364 (Fla. 1st DCA 1974).
With these established principles in mind, we address the question of whether there is an ambiguity in the "earth movement" exclusion found in the policy in the instant case. "An ambiguity arises when more than one interpretation may fairly be given to a policy provision." See State Farm Fire and Cas. Co. v. Metropolitan Dade County , 639 So. 2d at 65, quoting Ellsworth v. Ins. Co. of N. Am. , 508 So. 2d 395, 400 (Fla. 1st DCA 1987). We cannot conclude that this exclusion is susceptible to multiple interpretations, particularly when it is read in conjunction with the lead in provision of the policy, as it must be. See Union Am. Ins. Co. v. Maynard , 752 So. 2d 1266, 1268 (Fla. 4th DCA 2000) ("to properly interpret an exclusion, the exclusion must be read in conjunction with the other provisions of the policy, from the perspective of an ordinary person.").
State Farm excludes coverage for losses caused by earth movement. The lead-in provision of this exclusion provides as follows:
We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded events or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these . . .
When construing this lead-in provision with the earth movement exclusion, as we must, it becomes clear that State Farm’s policy excludes from coverage any loss resulting from earth movement, regardless of the cause of the earth movement . We thus cannot conclude that these provisions are ambiguous or reasonably susceptible to more than one interpretation. See , e.g. , State Farm Fire and Cas. Co. v. Metropolitan Dade Co. , supra (finding this same lead-in provision and another excluded loss provision of the policy to be unambiguous ). Although no other Florida court to date has considered the specific issue presented to us, we note that a plethora of other courts which have considered this precise policy language have similarly found no ambiguity in the provisions and have enforced the same. See , e.g. , Rhoden v. State Farm Fire and Cas. Co. , 32 F.Supp.2d 907 (S.D. Miss. 1998); State Farm Fire and Cas. Co. v. Bongen , 925 P. 2d 1042 (Alaska 1996); Kula v. State Farm Fire and Cas. Co. , 628 N.Y.S. 2d 988 (N.Y. App. Div. 1995); Alf v. State Farm Fire and Cas. Co. , 850 P. 2d 1272 (Utah 1993); Rodin v. State Farm Fire and Cas. Co. , 844 S.W. 2d 537 (Mo. Ct. App. 1992); Schroeder v. State Farm Fire and Cas. Co. , 770 F.Supp. 558 (D. Nev. 1991); Millar v. State Farm Fire and Cas. Co. , 804 P. 2d 822 (Ariz. Ct. App. 1990); Village Inn Apartments v. State Farm Fire and Cas. Co. , 790 P. 2d 581 (Utah Ct. App. 1990).
The only decisions to date which have construed the precise policy at issue and found an ambiguity to exist in the earth movement exclusion are Cox v. State Farm Fire and Cas. Co. , 459 S.E. 2d 446 (Ga. Ct. App. 1995) and Murray v. State Farm Fire and Cas. Co. , 509 S.E. 2d 1 (W. Va. 1998). In Cox , as in the instant case, homeowners sought recovery under their State Farm homeowner’s policy for structural damage to their home allegedly caused by vibrations from explosions in the vicinity of their property. The case was tried to a jury and resulted in a mistrial when the jury was unable to reach a verdict. Thereafter, State Farm moved for and was granted judgment notwithstanding the mistrial based upon its argument that man-made earth movement was excluded by the lead-in clause which expanded the exclusion to cover "natural or external forces."
On appeal, the court reversed the judgment in favor of State Farm. The Cox court noted that although the policy excluded damages resulting from earth movement, the examples given in the policy all arose from natural causes. See 459 S.E. at 47. The court then decided to limit the earth movement exclusion to earth movement arising from natural disasters pursuant to the doctrine of "ejusdem generis." That doctrine essentially provides that a general term, when modified by specific terms, will be interpreted in light of those specific terms, absent a clear indication to the contrary. See generally Green v. State , 604 So. 2d 471, 473 (Fla. 1992). Thus, the court found coverage under the policy where the earth movement did not arise from natural causes.
Further, the Cox court did not find the provision excluding coverage for loss that "arises from natural or external forces," shows that a wider sense was intended. Id . at 448. The court noted that no definition of "external" appears in the State Farm policy. In the absence of a definition, the court gave "external" its usual dictionary meaning of "apart, beyond, exterior or connected to the outside" and construed this provision to exclude coverage arising from natural forces from beyond or outside the property. Id .
In Murray v. State Farm Fire and Cas. Co. , the court followed the Cox analysis and concluded, among other things, that under the construction principles of "ejusdem generis" and "cositur a sociis", the earth movement exclusion in the policy must be read to refer only to phenomena resulting from natural, rather than man made forces. Like Cox , the Murray court rejected State Farm’s argument that the "lead-in" clause in the "Losses Not Insured" section of its policy precluded coverage for all forms of earth movement, regardless of whether resulting from natural or man-made causes:
. . . The policy language at issue in this case does not define the term "external," and we must therefore give the word its "plain, ordinary meaning." We can find no definition for "external" that means anything other than outside, apart, or beyond, and we cannot define the word to include man-made forces as State Farm would have us do. As with the court in Cox , we interpret the provision as excluding from coverage natural risks arising from beyond or outside the property.
See 509 S.E. 2d at 13.
As have a number of other jurisdictions cited previously, we decline to follow the reasoning in Cox and Murray . Both Cox and Murray completely ignore the unambiguous language of the lead-in clause which states that coverage is excluded "regardless of: a) the cause of the excluded event . . ." This means that the exclusion is triggered whether the earth movement is caused naturally or by man. Moreover, we agree with the observation made by the court in State Farm Fire and Cas. v. Bongen , that Cox ’s definition of "external" is incomplete:
It is true that, standing alone, the word "external" does not refer to anything man-made. However, the word must be read in context ("We do not insure for such loss regardless of . . . whether the event . . . arises from natural or external forces. . . ."). It is apparent that, when read in context, "external" means "external from natural forces," which could only mean man-made forces.
See 925 P. 2d at 1047.
It is for these reasons that we conclude that the trial court erred in finding an ambiguity in the "earth movement" exclusion and construing that ambiguity in favor of the appellees. While it is certainly understandable that the appellees may have reasonably expected their homeowner’s policy to cover the damages in question, State Farm correctly points out that it is the policy’s terms which define the coverage, not the insureds’ reasonable expectations. See Deni Assoc. of Fla., Inc. v. State Farm Fire and Cas. Ins. Co. , 711 So. 2d 1135 (Fla. 1998). We therefore reverse the judgment under review and remand with instructions that judgment be entered in favor of State Farm.
Reverse and remanded with instructions.
UNITED AUTOMOBILE INSURANCE COMPANY v. BROOKS 3D01-2451
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
UNITED AUTOMOBILE
INSURANCE COMPANY,
Appellant,
vs. CASE NO. 3D01-2451
LOWER TRIBUNAL
VANESSA LYN BROOKS and NO.00-19971
ABCO PREMIUM FINANCE, INC.
Appellees.
Opinion filed August 14, 2002.
An appeal from the Circuit Court for Dade County, Florida, Jennifer D. Bailey, Judge.
Fowler White Burnett and Steven E. Stark and Patti A. Meeks and June Hoffman, for appellant.
Sutton & Montoto and John R. Sutton, for appellee Vanessa Lyn Brooks; Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein and Douglas H. Stein, for appellee ABCO Premium Finance, Inc.
Before GODERICH and GREEN, JJ., and NESBITT, Senior Judge.
NESBITT, Senior Judge.
Insurer United Automobile Insurance Company appeals a Final Summary Judgment Declaring Coverage for insured, Vanessa Lyn Brooks. This is a premium finance case in which premium finance company, ABCO Premium Finance, Inc., notified insurer United of the cancellation of insurance because of the non payment of the May 2000, installment. The cancellation was effective 12:01 a.m. on May 31, 2000, and the insured's automobile was in an accident later the same day.
The insurer relies on section 627.848 (1)(f), which provides:
If an insurance contract is canceled by an insurer upon the receipt of a copy of the cancellation notice from a premium finance company, and if such premium finance company has failed to provide the notice required by this subsection, the insured shall have a cause of action against the premium finance company for damages caused by such failure to provide notice . (Emphasis added.)
Supporting its position, the insurer cites to Bamboo Garden of Orlando, Inc. v. Oak Brook Prop. & Cas. Co. , 773 So. 2d 81, 83-84 (Fla. 5th DCA 2000), wherein the Fifth District observed that the legislature's intent in enacting this section was to ease the burden on insurance companies, while at the same time providing a mechanism for recovery by insureds for a failure of notice.
In the instant case, there had been an error in the recorded address of insured, which the insured thereafter brought to her agent's attention. The insurer had corrected its own records, but apparently did not notify the finance company of this correction. While informed by her agent that payment had to be made or the policy would be canceled, Brooks never received notice of cancellation from the finance company at her correct address. Faced with an insurer which knew insured's correct address and a finance company which did not , the trial court concluded that the insurer should be equitably estopped from denying coverage. However, as succinctly stated on a number of occasions:
while the doctrine of estoppel may be used to prevent a forfeiture of insurance coverage, the doctrine may not be used to create or extend coverage.
State Farm Mut. Auto. Ins. Co. v. Jones , 789 So. 2d 504, 507 (Fla. 1st DCA 2001); see Tradewinds Constr. v. Newsbaum , 606 So. 2d 708 (Fla. 1st DCA 1993); Criterion Leasing Group v. Gulf Coast Plastering & Drywall , 582 So. 2d 799, 800 (Fla. 1st DCA 1991); see also 31 Fla. Jur 2d Insurance § 2851 (2002). Here, what the trial judge did amounted to an extension of the policy. Thus, the order granting summary judgment as to coverage is reversed, with instructions that on remand, United's motion for summary judgment should be granted. As provided in section 627.848 (1)(f), Brooks has a cause of action against ABCO for damages caused by any failure to provide statutorily required notice.
Reversed and remanded.
ABOLILA v. ABOLILA 3D01-2640
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
ALAN ABOLILA,
Appellant,CASE NO. 3D01-2640
vs.LOWER
TRIBUNAL NO. 95-24001
BRIGITTE ABOLILA,
Appellee.
Opinion filed August 14, 2002.
An Appeal from the Circuit Court for Dade County, Rosa Rodriguez, Judge.
Howard W. Green, for appellant.
Robert A. Butterworth, Attorney General, and William H. Branch, Assistant Attorney General, for appellee.
Before JORGENSON, GODERICH, and SHEVIN, JJ.
PER CURIAM.
Affirmed. See Doyle v. Doyle , 789 So.2d 499, 503 (Fla. 5th DCA 2001) ("Whether to grant an award of attorney's fees is a matter within the trial court's sound discretion; therefore, absent a showing of abuse of that discretion, the decision cannot be reversed.") (citations omitted); Randle-Eastern Ambulance Service, Inc. v. Vasta , 360 So. 2d 68, 69 (Fla. 1978) (holding that voluntary dismissal terminates the trial court's jurisdiction); Miles v. Champlin , 805 So. 2d 1085, 1087 (Fla. 1st DCA 2002) ("[A] trial court has discretion to make a reduction of child support retroactive to the date the petition for modification was filed, whenever 'equity requires .'") (emphasis added); Shaw v. Shaw , 334 So. 2d 13, 16 (Fla. 1976) ("It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence," but rather the test is "whether the judgment of the trial court is supported by competent evidence.").
AFFIRMED.
COSTCO WHOLESALE CORPORATION v. MARSAN 3D01-3042
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
COSTCO WHOLESALE CORPORATION,
Appellant,CASE NO. 3D01-3042
vs.
LOWER
ARMANDO MARSAN,TRIBUNAL NO. 98-26959
Appellee.
Opinion filed August 14, 2002.
An Appeal from the Circuit Court for Dade County, Thomas S. Wilson, Jr., Judge.
Vernis & Bowling of Miami, P.A., and David W. Grossman and Misty C. Schlatter, for appellant.
Ginsberg & Schwartz and Todd R. Schwartz; Robert G. Corirossi, for appellee.
Before JORGENSON, GODERICH, and SHEVIN, JJ.
PER CURIAM.
Costco, the defendant below, appeals from a final judgment for plaintiff in a slip and fall suit. We affirm.
Armando Marsan was shopping at Costco when he stepped in a puddle of liquid laundry detergent, slipped, and fell. The detergent had leaked from a container of a customer who was waiting in line to pay. Marsan ruptured a tendon and fractured a bone in his ankle; he required two surgeries, including a fusion with surgical screws.
During discovery, Costco answered interrogatories about prior slip and fall accidents at that store location, admitting that twenty-two such incidents had occurred before plaintiff's accident. Eighteen of the falls involved liquid or semi-liquid substances; five involved detergents or soaps; five occurred in the area where Marsan had fallen.
The trial court denied Costco's motion in limine to prohibit plaintiff from introducing evidence of those other accidents at that Costco location within three years of plaintiff's accident. In doing so, the trial court did not abuse its discretion. See Maryland Maint. Serv. v. Palmieri , 559 So. 2d 74, 76 (Fla. 3d DCA 1990)(holding that constructive notice may be established "by showing that the condition occurred with regularity and, consequently, was foreseeable."); Nance v. Winn Dixie Store, Inc. , 436 So. 2d 1075, 1076 (Fla. 3d DCA 1983) (holding that "a plaintiff may use evidence of the occurrence or non-occurrence of prior or subsequent accidents to prove constructive notice of the dangerous character of a condition.").
Moreover, the jury's finding that Costco was negligent is supported by testimony by the company's representative that each 135,000 square foot store is patrolled only once each hour in a "floor walk" by an assigned "Member Service Operative," a security officer. Each floor walk lasted thirty to forty minutes: the employee was required to check the security of warehouse doors; check refrigeration temperature controls; and look for potentially dangerous conditions throughout the entire store.
We find no prejudice to defendant in the trial court's use of the itemized verdict form.
AFFIRMED.
WALLACE v. STATE 3D01-3339
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
LAWRENCE WALLACE a/k/a
STEVE ALLEN,
Appellant,
vs.CASE NO. 3D01-3339
THE STATE OF FLORIDA, LOWER
TRIBUNAL NO. 93-13837A
Appellee.93-16285B
Opinion filed August 14, 2002.
An appeal under Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Dade County, Victoria S. Sigler, Judge.
Lawrence Wallace, in proper person.
Robert A. Butterworth, Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
Before COPE, GREEN and RAMIREZ, JJ.
COPE, J.
Lawrence Wallace appeals an order denying his motion for postconviction relief. We affirm.
I.
In his postconviction motion, defendant-appellant Wallace states that he is currently serving a habitual offender sentence in Miami-Dade County circuit court case number 95-2924. He alleges that the basis for his habitualization was his earlier convictions in circuit court case numbers 93-13837 and 93-16285.
In his motion, defendant seeks to set aside the two 1993 convictions. Defendant’s motion is timely under Wood v. State , 750 So. 2d 592 (Fla. 1999).
The defendant pled guilty in the 1993 cases and was sentenced to 364 days incarceration in each case. The charges in case number 93-13837 were grand theft and burglary, while the charges in case number 93-16285 were sale and possession of cocaine.
Defendant alleges affirmative misadvice of counsel in connection with these pleas. Defendant says that he was told he would receive a withhold of adjudication in each case, and that the convictions would not be used against him in the future.
With regard to the claim that the plea bargain was for a withhold of adjudication in the 1993 cases, the judicial records refute the claim. The judgment and sentencing documents as well as the handwritten notes on the scoresheet indicate that there was an adjudication of guilt. After searching, the court reporter has been unable to locate the notes of the 1993 plea colloquy. To the extent that the defendant desires to base his claim on the plea colloquy, the claim is barred by laches. He did not seek relief from the 1993 plea until 2001, and the court reporter notes are not available. As the existing records all indicate there was an adjudication of guilt, the trial court correctly denied relief on this point.
The trial court pointed out that even if there were an impediment to using the 1993 convictions for the defendant’s 1995 habitualization, the defendant still qualifies as a habitual offender. The defendant has three other qualifying offenses, circuit court case numbers 90-19862, 91-23954, and 92-18808, all of which were sentenced on different dates. Assuming for purposes of discussion that there were any infirmity in using the 1993 convictions as predicate offenses, the defendant nonetheless qualifies as a habitual offender.
II. The defendant alleges that his counsel told him that if he entered the plea to the two 1993 cases, those convictions would not be used against him in the future. The defendant says that this advice turned out to be incorrect, and that the two 1993 convictions were used as predicate offenses for a habitual offender adjudication against him in circuit court case number 95-2924.
Under this court’s precedent, counsel’s advice that a plea could not be used against the defendant in the future "is properly viewed as addressing the civil effects of the plea, not future recidivism." Collier v. State , 796 So. 2d 629, 630 (Fla. 3d DCA 2001).
"[N]either the trial court nor counsel has a duty to advise a defendant that the defendant’s plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future." Major v. State , 814 So. 2d 424, 431 (Fla. 2002).
This court also bars postconviction relief even if counsel gives affirmative misadvice regarding the sentence enhancing consequences of a plea for a new crime committed in the future. Rhodes v. State , 701 So. 2d 388 (Fla. 3d DCA 1997); see also Ford v. State , 753 So. 2d 595 (Fla. 3d DCA 2001). That is so for practical, and public policy, reasons. "[T]he defendant is under a legal duty to refrain from committing further crimes. It makes no difference whether the defendant is given correct, or incorrect, advice regarding the possibility of enhanced punishment." Scott v. State , 813 So. 2d 1025, 1026-27 (Fla. 3d DCA 2002).
The Fourth District Court of Appeal follows a different rule. See Love v. State , 814 So. 2d 475 (Fla. 4th DCA 2002); Jones v. State , 814 So. 2d 446 (Fla. 4th DCA 2001); Smith v. State , 784 So. 2d 460 (Fla. 4th DCA 2000). As we did in McPhee v. State , 27 Fla. L. Weekly D 1521 (Fla. 3d DCA June 26, 2002), and Cifuentes v. State , 816 So. 2d 804 (Fla. 3d DCA 2002), we certify direct conflict with Smith .
Affirmed; direct conflict certified.
TISDOL v. STATE 3D01-3439
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
BYRON J. TISDOL,
Appellant,CASE NO. 3D01-3439
vs.LOWER
TRIBUNAL NOS. 93-2188
THE STATE OF FLORIDA,94-5876Appellee.
Opinion filed August 14, 2002.
An Appeal under Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Dade County, Lawrence A. Schwartz, Judge.
Byron J. Tisdol, in proper person.
Robert A. Butterworth, Attorney General, and Kristine Keaton, Assistant Attorney General, for appellee.
Before JORGENSON, GODERICH, and SHEVIN, JJ.
PER CURIAM.
Affirmed. See Smith v. State , 685 So. 2d 912 (Fla. 5th DCA 1996)("[W]here, as here, a defendant raises an issue under Rule 3.800, the lower court denies relief and the defendant fails to appeal, he may not later raise the same issue in another Rule 3.800 motion.").
HANNA v. STATE 3D01-3543
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
DERRICK HANNA,
Appellant,
vs.CASE NO. 3D01-3543
THE STATE OF FLORIDA, LOWERTRIBUNAL NOS. 88-42290B
Appellee.88-42580
88-42581
88-44011
Opinion filed August 14, 2002.
An appeal under Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Dade County, Dennis Murphy, Judge.
Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
Before JORGENSON, COPE and GODERICH, JJ.
PER CURIAM.
Derrick Hanna appeals an order denying his motion for postconviction relief. During the pendency of this appeal, the trial court corrected a scrivener’s error in the sentencing order in one of the appellant’s cases, so that as corrected, the sentencing orders now are consistent with the sentence length agreed to in the original plea bargain.
The defendant in his pro se submission argues that Walters v. State , 812 So. 2d 457 (Fla. 5th DCA 2002), prohibits the restructuring of the appellant’s sentences in order to carry out the original sentencing intent. To the contrary, the Walters decision confirms that such a restructuring is permissible.
Affirmed.
AMADOR v. FLORIDA BOARD OF REGENTS 3D02-140
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
FRANK AMADOR,
Appellant,
vs.CASE NO. 3D02-140
FLORIDA BOARD OF REGENTS
on behalf of FLORIDA
INTERNATIONAL UNIVERSITY, LOWER
TRIBUNAL NO. 99-2365
Appellee.
Opinion filed August 14, 2002.
An appeal from the Circuit Court for Dade County, Gisela Cardonne, Judge.
James H. Greason, for appellant.
Vernis & Bowling of Miami, P.A., and Scott A. Forman and Patrick H. Gonyea, for appellee.
Before COPE, GREEN and RAMIREZ, JJ.
COPE, J.
After removal of this case, the federal court entered judgment in favor of the defendants on the federal claims, and remanded the state whistle-blower claim to the state court for a decision. We agree with the trial court that federal rules of issue preclusion apply, and affirm the summary judgment entered by the trial court on the whistle-blower claim.
I.
Plaintiff-appellant Frank Amador was hired as a warehouse receiving clerk within the maintenance department at Florida International University ("FIU"). He subsequently complained to FIU’s police department that certain employees were stealing university property, including his immediate supervisor and coworkers.
Subsequently the plaintiff received a reprimand for failure to perform job duties. Ultimately he was terminated from employment. The plaintiff asserts that he also was subjected to minor incidents of harassment.
After his termination, the plaintiff filed suit against FIU alleging a violation of the federal Family Medical Leave Act, 29 U.S.C. § 2601 et seq ., because he was denied a request for leave. He also sued FIU for violation of Florida’s Whistle-Blower’s Act, § 112.3187, Florida Statutes (1997). The plaintiff also sued four FIU employees under 42 U.S.C. § 1983, contending that they impermissibly retaliated against him for exercising his First Amendment rights, namely, by reporting the wrongdoing which occurred at the FIU warehouse. The action was filed in the Florida Circuit Court.
The defendants removed the case to the United States District Court for the Southern District of Florida. Judge Middlebrooks entered summary judgment in favor of the defendants on the federal claims, and declined to exercise jurisdiction over the claim that FIU had violated the Florida Whistle-Blower’s Act. Amador v. Perello , No. 99-650-Civ-Middlebrooks (S.D. Fla. Aug. 22, 2000). The Whistle-Blower’s claim was remanded to the Florida Circuit Court. Id .
The plaintiff appealed the summary judgment on the federal claims to the United States Court of Appeals for the 11th Circuit. That court affirmed in an unpublished opinion. Amador v. Perello , Nos. 00-14725 and 01-11764 (11th Cir. Sept. 25, 2001).
On the remanded claim under the Florida Whistle-Blower’s Act, the trial court entered summary judgment for FIU, ruling that the state law claim was barred by principles of collateral estoppel. The plaintiff has appealed.
II.
Final judgment has been entered by the federal court on the federal claims in this case.
"Because the first judgment was rendered by a federal court, federal principles of collateral estoppel apply." Hochstadt v. Orange Broadcast , 588 So. 2d 51, 52 (Fla. 3d DCA 1991) (citations omitted) ; see also Agripost, Inc. v. Miami-Dade County , 195 F.3d 1225, 1230 n. 11 (11th Cir. 1999); National Union Fire Ins. Co. v. Grusky , 763 So. 2d 1206, 1207 (Fla. 3d DCA 2000); Andujar v. National Property and Casualty Underwriters , 659 So. 2d 1214, 1216 (Fla. 4th DCA 1995); Baxas Howell Mobley, Inc. v. B.P. Oil Co. , 630 So. 2d 207, 209 (Fla. 3d DCA 1993). To illustrate the point, we assume hypothetically that the plaintiff had been allowed to refile his whistler-blower claim in a lawsuit in federal court, and ask what analysis the federal courts would apply with respect to issue preclusion.
Under federal principles, "[i]dentity of parties is not required when collateral estoppel is used defensively." Hochstadt , 588 So. 2d at 51-52 (footnotes and citations omitted); see also Parklane Hosiery v. Shore , 439 U.S. 322 (1979). FIU here wishes to rely on the portion of the federal case in which the federal district court adjudicated the plaintiff’s claim against the individual defendants. Although FIU was a party to the action, FIU was not a named defendant on the section 1983 claims.
Since under federal principles FIU is allowed to invoke collateral estoppel defensively, FIU is allowed to rely on those parts of the section 1983 judgment which adjudicated the section 1983 claims against the individual defendants.
In his section 1983 claims, the plaintiff asserted that his complaints about theft in the warehouse amounted to protected speech under the First Amendment, and that he had been discharged in violation of his First Amendment rights. The federal court ruled that the plaintiff’s complaints at issue here did not amount to protected speech under the First Amendment. The federal court ruled alternatively that, assuming the speech was protected, there was no causal connection between the speech and the plaintiff’s discharge from employment. The court also ruled that there was a lack of causal connection between the plaintiff’s speech and his reprimand for failure to perform part of his job responsibilities. The federal court concluded that the reprimand and termination would have occurred even if the plaintiff had made no complaint about the conditions in the warehouse.
It follows that collateral estoppel bars the plaintiff’s claims for termination and reprimand under the Florida Whistle-Blower’s Act. That is so because of the federal finding of absence of causal connection.
III.
The plaintiff argues that his case should proceed at the least on his claims of other retaliatory conduct. He says that (a) an unidentified person put glue in his office lock; (b) an employee performing welding in an adjacent office caused the plaintiff’s office to be filled with smoke; and (c) that the plaintiff’s radio transmissions in the course of his work were interrupted by an unidentified person who made goat-like sounds over the radio. The plaintiff points out that the Florida Whistle-Blower’s Act is designed to provide remedies for an "adverse personnel action," which is defined as "the discharge, suspension, transfer, or demotion of any employee or the withholding of bonuses, the reduction in salary or benefits, or any other adverse action taken against an employee within the terms and conditions of employment by an agency or independent contractor." § 112.3187(3)(c), Fla. Stat. (1997) (emphasis added). The Act prohibits adverse personnel actions where an employee has reported wrongful conduct and provides for reinstatement of job, pay, and benefits.
While the Act is aimed primarily at adverse personnel actions in a traditional sense, such as termination, demotion, and loss of pay or benefits, we assume for present purposes that the statute would also reach acts of harassment where there is an indication that the harassment was perpetrated by senior management, or condoned by senior management after senior management became aware of it. But there is no such indication in the present case.
The placing of glue in the lock of the plaintiff’s office involved outright damage to FIU’s own property, and the welding incident posed a risk of damage. The radio incident amounted to an interruption of the ability of the plaintiff to perform his job duties. There is no evidence that senior management of FIU was implicated in these incidents or condoned them.
Even if the plaintiff could surmount that obstacle, there does not appear to be any applicable remedy under the statute. The act provides remedies in the case of a statutory violation. Id . § 112.3187(9). We assume for purposes of this discussion that the remedies provision may authorize a court to order a prohibition on retaliatory conduct or that the plaintiff be assigned to a different work unit. In the present case this issue is moot, since the plaintiff has been discharged and the federal judgment found that the discharge was for nonretaliatory reasons.
Affirmed.
COOMBS v. STATE 3D02-2007
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
PETER ERROL COOMBS,
Appellant,
vs.CASE NO. 3D02-2007
THE STATE OF FLORIDA,LOWERTRIBUNAL NO. 94-12168
Appellee.
Opinion filed August 14, 2002.
An appeal under Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Dade County, Manuel A. Crespo, Judge.
Peter Errol Coombs, in proper person.
Robert A. Butterworth, Attorney General, for appellee.
Before JORGENSON, COPE and GODERICH, JJ.
PER CURIAM.
Peter Errol Coombs appeals an order denying his motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853.
Defendant-appellant Coombs states that for purposes of his 1995 murder trial, DNA testing was performed on stains on a green cap owned by the defendant. According to defendant, the DNA testing was inconclusive as to whether the results matched the victim or the defendant. The defendant contends that under newer DNA testing techniques, a conclusive result could now be obtained. See Fla. R. Crim. P. 3.853(2).
We agree with the trial court’s denial of the motion. The motion does not contain the required statement "that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime . . . ." Id . R. 3.853(3). See Galloway v. State , 802 So. 2d 1173, 1174 (Fla. 1st DCA 2001).
Affirmed.
COLLINS v. STATE 3D02-2045
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
DAVID COLLINS,
Appellant,CASE NO. 3D02-2045
vs.LOWER
TRIBUNAL NO. 89-33606
THE STATE OF FLORIDA,Appellee.
Opinion filed August 14, 2002.
An Appeal under Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Dade County, Daryl E. Trawick, Judge.
David Collins, in proper person.
Robert A. Butterworth, Attorney General, for appellee.
Before JORGENSON, GODERICH, and SHEVIN, JJ.
PER CURIAM.
Affirmed. See Laster V. State , 486 So. 2d 88 (Fla. 5th DCA 1986) (holding that sexual battery on a child under 12 years of age is a capital felony punishable by life imprisonment with a minimum of 25 years imprisonment; it is not a life felony subject to guideline sentence and is not scored within guidelines); § 794.011(2), Fla. Stat. (1989); § 775.082, Fla. Stat. (1989).
GEVAS v. FERNANDEZ 3D02-2048
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
PHILIP GEVAS and MONIQUE
GEVAS,
Petitioners,
vs.CASE NO. 3D02-2048
TED FERNANDEZ,LOWER
TRIBUNAL NO. 01-21511
Respondent.
Opinion filed August 14, 2002.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Barbara S. Levenson, Judge.
Aragon, Burlington, Weil & Crockett and Jeffrey B. Crockett, for petitioners.
Katz, Barron, Squitero & Faust and Richard A. Morgan; Lauri Waldman Ross, for respondent.
Before COPE, SHEVIN and RAMIREZ, JJ.
SHEVIN, Judge.
The Gevases seek a writ of certiorari. We grant the petition as the order denying the motion to compel respondent’s deposition and discovery of documents departs from the essential requirements of law from which there is no adequate remedy on appeal. Medero v. Florida Power & Light Co. , 658 So. 2d 566 (Fla. 3d DCA 1995); Beekie v. Morgan , 751 So. 2d 694 (Fla. 5th DCA 2000).
In this case, despite the court’s statement that it would readdress the discovery matters if the case was not tried as scheduled, and Fernandez's counsel's representation that the requested discovery would be provided expeditiously, the court refused to consider the motion to compel discovery, believing discovery had been foreclosed at a prior hearing. Because the discovery sought was material to the central issue in the case, Lifemark Hosp. of Fla., Inc. v. Hernandez , 748 So. 2d 378 (Fla. 3d DCA 2000), certiorari is granted and the order under review is quashed.
On remand, the court is directed to compel compliance with the discovery requests as outlined in the petition and to allow a reasonable time for discovery prior to trial.
Certiorari granted; order quashed; and remanded with directions.
RANA v. FLYNN 3D02-216
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
K. RANA, M.D.,
Appellant,
vs.CASE NO. 3D02-216
MARION FLYNN,LOWER
TRIBUNAL NO. 00-10278
Appellee.
Opinion filed August 14, 2002.
An Appeal from a Non-Final Order from the Circuit Court for Miami-Dade County, Philip Bloom, Judge.
Kaye, Rose & Maltzman and Jeffrey B. Maltzman and Darren W. Friedman, for appellant.
Downs and Associates and Lee Friedland and Peggy Urbaneja, for appellee.
Before JORGENSON, GODERICH and SHEVIN, JJ.
SHEVIN, Judge.
Kamlesh Rana, M.D., appeals an order denying his motion to dismiss for lack of personal jurisdiction. We affirm.
Dr. Rana was the physician aboard Carnival Cruise Line’s Imagination . Marion Flynn, a passenger, experienced a heart attack. Flynn was attended by Dr. Rana, and staff, as the ship sailed into Florida waters, docked at the Port of Miami, and transport to a local hospital was arranged. Flynn filed a medical malpractice complaint against, inter alia , Dr. Rana, asserting that his care was inadequate. Dr. Rana filed a motion to dismiss for lack of personal jurisdiction. The court denied the motion.
Based on Athanassiadis v. National Car Rental Sys. , 699 So. 2d 330 (Fla. 5th DCA 1997), and Rossa v. Sills , 493 So. 2d 1137 (Fla. 4th DCA 1986), the court properly determined, on this record, that personal jurisdiction under the long-arm statute was proper over a defendant who allegedly commits a tort within this state. §48.193(1)(b), Fla. Stat. (2002).
Contrary to Rana’s argument, Elmlund v. Mottershead , 750 So. 2d 736 (Fla. 3d DCA 2000), is factually distinguishable and does not mandate reversal. The Elmlund court concluded that there was no long-arm jurisdiction over a cruise ship’s physician who ministered to a patient who died while on the high seas. In Elmlund , the defendant-physician never rendered treatment to the deceased in Florida, or Florida waters. The only bases for jurisdiction asserted in Elmlund were under sections 48.193(1)(a), and 48.193(2), Florida Statutes. The Elmlund court appropriately concluded that these sections did not provide bases for jurisdiction: there was no connexity between the activities causing the death at sea and the physician’s activity in Florida, §48.193(a)(1); and the physician’s personal contacts in the state were insufficient to justify jurisdiction, §48.193(2). Cf. Rossa (personal jurisdiction proper over defendant-physician who renders treatment to patient as ship sails into Florida waters, and docks at Port Everglades).
Rana, however, ministered to Flynn’s condition in Florida waters and while in the Port of Miami awaiting transportation to a Miami hospital. These facts, are sufficient to establish that the physician-defendant committed a tort within the state satisfying jurisdiction under the long-arm statute. Venetian Salami Co. v. Parthenais , 554 So. 2d 499 (Fla. 1989).
In addition, the multiplicity of contacts set forth in the complaint satisfy the minimum contacts requirements. Venetian Salami ; Burger King Corp. v. Rudzewicz , 471 U.S. 462 (1985). The defendant’s conduct was such that he could reasonably anticipate being haled into court in Florida. Rossa . Hence, the exercise of jurisdiction is justified and affirmance is required.
Affirmed.
HS OF FLORIDA NO. 5, INC. v. ESTATE OF SONIA ZIELONKA 3D02-753
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
IHS OF FLORIDA NO. 5, INC.,
and INTEGRATED HEALTH
SERVICES, INC.,
Appellants,
vs.CASE NO. 3D02-753
THE ESTATE OF SONIA ZIELONKA, LOWER
by and through MICHAELTRIBUNAL NO. 01-22136
ZIELONKA, Executor de son
Tort,
Appellee.
Opinion filed August 14, 2002.
An Appeal from a Non-Final Order from the Circuit Court for Miami-Dade County, Gerald Hubbart, Judge.
Hardeman & Suarez and Richard A. Warren, for appellants.
Wilkes & McHugh and Susan B. Morrison (Tampa), for appellee.
Before JORGENSON, GODERICH and SHEVIN, JJ.
PER CURIAM.
Affirmed. See §§ 765.101(5), .106, .401, Fla. Stat. (2000).
KAMBER v. KENILWORTH ASSOCIATION, INC. 3D02-777
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, 2002
VICTOR KAMBER and TIMOTHY
BAADE,
Appellants,
vs.CASE NO. 3D02-777
KENILWORTH ASSOCIATION, INC., LOWER
etc.,TRIBUNAL NO. 01-26366
Appellee.
Opinion filed August 14, 2002.
An Appeal from the Circuit Court for Miami-Dade County, Jennifer D. Bailey, Judge.
Phillips, Eisinger, Koss & Brown, Gary S. Phillips and Jed L. Frankel, for appellants.
Becker & Poliakoff and David H. Rogel; Douberley & Cicero and William M. Douberley, for appellee.
Before JORGENSON, GODERICH, and SHEVIN, JJ.
PER CURIAM.
Based on the facts asserted by the plaintiffs in their amended complaint, the trial court properly granted the defendant's motion for judgment on the pleadings. See Yunkers v. Yunkers , 515 So. 2d 419, 420 (Fla. 3d DCA 1987)("Judgment on the pleadings can be granted only if, on the facts as admitted for purposes of the motion, the moving party is clearly entitled to judgment.").
Affirmed.
GARCIA-MARRERO v. GARCIA-MARRERO 3D02-851
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D., 2002
ANDRES GARCIA-MARRERO,
Appellant,
vs.CASE NO. 3D02-851
THE cOF FLORIDALOWERTRIBUNAL NO. 84-4431
Appellee.
Opinion filed August 14, 2002.
An Appeal from the Circuit Court for Miami-Dade County, Maria Espinosa Dennis, Judge.
Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Michael J. Neimand, Assistant Attorney General (Fort Lauderdale), for appellee.
Before SCHWARTZ, C.J., and GERSTEN, and SORONDO, JJ.
CONFESSION OF ERROR
PER CURIAM.
Andres Garcia-Marrero ("appellant") appeals a trial court order of commitment or re-commitment and retention of jurisdiction. We reverse.
Appellant was found incompetent to stand trial for murder in March of 1984 and was committed to the Department of Health and Rehabilitative Services for placement in a secure forensic facility. Five years later, because appellant was still incompetent with no foreseeable return to competency, the charges against him were dismissed pursuant to Rule 3.213, Florida Rules of Criminal Procedure. Since the charges against him were dismissed, appellant has been re-committed three times for placement in a secure forensic facility (in 1989, 2000 and 2002).
As the State correctly concedes, once charges are dismissed based on continued incompetency, a trial court loses jurisdiction over the matter. See Amador v. State , 712 So. 2d 1179 (Fla. 3d DCA 1998); State v. Heidrick , 707 So. 2d 1165 (Fla. 3d DCA 1998); Quiala v. State , 659 So. 2d 287 (Fla. 3d DCA 1994). Thereafter, the proper procedure for any attempts to commit would be to commence civil commitment proceedings.
Accordingly, because it exceeded its jurisdiction, we reverse the trial court’s order.
Reversed.
CONVERSE v. DEPARTMENT OF CHILDREN AND FAMILIES 1D01-2119
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
FRANCIS EUGENE CONVERSE,
Appellant,
v.CASE NO. 1D01-2119
DEPARTMENT OF CHILDREN
AND FAMILIES,
Appellee.
___________________________/
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
Opinion filed August 14, 2002.
An appeal from the Circuit Court for Bradford County.
Maurice V. Giunta, Judge.
Nancy A. Daniels, Public Defender, Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
ERVIN, J.
This is an appeal from a final order civilly committing Frank Eugene Converse, appellant, as a sexually violent predator. Appellant contends that the lower court committed fundamental error by failing to instruct the jurors that before they could commit him they must find he was unable to control his dangerous behavior. We agree; accordingly, we reverse and remand the case with directions that appellant be afforded a new trial.
Appellee, the Department of Children and Families, petitioned to have Converse declared a sexually violent predator under the Jimmy Ryce Act, and to commit him to the Department for long-term care, control and treatment. During trial of this case, no evidence was presented and no finding was made that Converse lacked control over his sexually dangerous behavior. At the time of the trial, the United States Supreme Court had decided Kansas v. Hendricks , 521 U.S. 346 (1997), upholding the constitutionality of the Kansas Sexual Violent Predator Act, which is practically identical to its Florida counterpart. The Court noted that the statute required a showing of both dangerousness and mental illness in order to warrant civil commitment, thus limiting commitment "to those who suffer from a volitional impairment rendering them dangerous beyond their control." Id. at 358. The Court observed that the evidence demonstrated that Hendrix warranted civil commitment due to both a lack of volitional control and a prediction of future dangerousness. Id. at 360.
Following the conclusion of Converse's trial and his adjudication as a sexually violent predator, the Supreme Court decided Kansas v. Crane , 534 U.S. 407, 122 S.Ct. 867 (2002), wherein it concluded that one may not be civilly committed as a sexually violent predator unless a determination is made that the offender has serious difficulty controlling his or her dangerous behavior. Id. , 122 S.Ct. at 870. See also Hudson v. State , 27 Fla. L. Weekly D1774 (Fla. 1st DCA Aug. 2, 2002). As previously noted, no such proof was adduced in the instant case.
In deciding that the lower court committed fundamental error by failing to instruct the jury to determine whether Converse lacked control over his sexually violent conduct, we are aware that Florida Rule of Civil Procedure 1.470(b) provides: "No party may assign as error the giving of any charge unless that party objects thereto at such time, or the failure to give any charge unless that party requested the same." Accordingly, an appellate court will not consider an appeal involving an erroneous or omitted jury instruction unless the issue was raised below, thereby affording the trial court the opportunity to correct the error. See e.g. , City of Orlando v. Birmingham , 539 So. 2d 1133 (Fla. 1989).
Nevertheless, the Florida Supreme Court has recognized an exception to the requirement of a contemporaneous objection to a jury instruction if the error results in a denial of due process. Ray v. State , 403 So. 2d 956 (Fla. 1981). See also State v. Johnson , 616 So. 2d 1, 3 (Fla. 1993) (observing that "for an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process"). Based upon language from Crane , the omitted finding in the case at bar was basic to the validity of appellant's commitment and its omission amounts to a denial of due process, and was thus fundamental error.
In Crane , the United States Supreme Court observed that it had previously concluded in Hendricks that the Kansas statute was constitutional because the statute required a finding that the offender's dangerousness was caused by or linked with a mental abnormality or personality disorder that made it "'difficult, if not impossible, for the person to control his dangerous behavior.'" Crane , 122 S.Ct. at 869 (quoting Hendricks , 521 U.S. at 358). The Court expressly rejected the state's argument that the Constitution permits commitment of pedophiles like Hendricks without any lack- of-control determination. Crane , 122 S.Ct. at 870. Accordingly, the failure of the lower court to advise the jury of such requirement below was a denial of substantive due process, which is fundamental error.
REVERSED and REMANDED.
BARFIELD and VAN NORTWICK, JJ., CONCUR.
MOLINA v. WATKINS 3D98-1747
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
RONALD MOLINA, FINANCIAL
CAPITAL OF AMERICA, INC., and
SILVER PINES PARTNERS, LTD.,
Appellants,
vs.CASE NOS. 3D98-1747 & 3D98-2053
FLOYD WATKINS,LOWER
TRIBUNAL NOS. 90-59717
Appellee.**90-45492
Opinion filed August 14, 2002.
An appeal from the Circuit Court for Miami-Dade County, Harold Solomon, Judge.
Ronald Molina; Alan K. Marcus, for appellants.
Weiss, Serota, Helfman, Pastoriza & Guedes, P.A., and Jamie A. Cole, and Matthew H. Mandel (Ft. Lauderdale), for appellee.
Before COPE, GREEN, and RAMIREZ, JJ.
GREEN, J.
This is a consolidated appeal, brought by Ronald R. Molina, individually, and his company, Financial Capital of America, Inc. ("FCA"), from two separate judgments entered in favor of Floyd Watkins on a counterclaim. FCA’s judgment was entered pursuant to an ore tenus motion for default made by Watkins just prior to the start of trial when FCA’s counsel was permitted to withdraw. Molina’s judgment was entered pursuant to a jury verdict. For the reasons which follow we reverse both judgments, but remand with instructions that the trial court enter an interlocutory order in favor of FCA and against Watkins for counts 1, 2 and 6 of Watkins’ counterclaim and convert Molina’s judgment into an interlocutory order until such time as the trial court disposes of all other remaining issues against Molina in this case.
I
According to the operative pleadings, Molina filed suit against Watkins for tortious interference and defamation. Watkins filed a twelve count countersuit against Molina individually and against his company, FCA, for: (1) violation of Florida Securities and Investor Protection Act; (2) common law fraud; (3) breach of fiduciary duty; (4) civil remedies for criminal practices act (witness tampering in violation of sections 914.22-914.23); (5) civil remedies for criminal practices act (perjury in violation of chapter 837); (6) racketeering (securities fraud in violation of chapter 517); (7) malicious prosecution; (8) abuse of process; (9) defamation; (10) civil forfeiture and other injunctive relief; (11) injunctive relief to protect against racketeering (witness tampering in violation of sections 914.22-914.23); and (12) civil theft. All parties demanded a jury trial on all counts.
Prior to trial, the court entered summary judgment in favor of Watkins on the tortious interference count and entered summary judgment in favor of Molina (but not FCA) on count 12 (civil theft claim) of Watkins’ counterclaim. The trial court sua sponte ordered the severance of count 4 (civil remedies for criminal practices act) and count 5 (civil remedies for criminal practices act) of Watkins’ counterclaim from the plenary trial, pursuant to Rule 1.270(b) of the Florida Rules of Civil Procedure. The case was then scheduled for jury trial on the remaining counts of the complaint and counterclaim.
On the first day of trial, FCA’s legal counsel failed to appear and Molina appeared pro se. Molina orally represented to the trial court, as FCA’s president, that FCA’s legal counsel had planned to appear and make a motion to withdraw. Molina on behalf of FCA, voiced no objection to this proposed withdrawal and indicated to the court that FCA had no funds to retain new counsel. The trial court permitted the withdrawal of FCA’s counsel. Watkins then made an ore tenus motion for default against FCA since a corporate entity could not represent itself at trial and Molina was not an attorney. Molina objected and requested that no judgment be entered against FCA until the close of the evidence at trial. The trial court, however, granted Watkins’ ore tenus motion for default against FCA as to counts 1, 2, 3, 6, 7 and 8 of the counterclaim.
In its purported default judgment against FCA, the trial court reserved ruling on Watkins’ count 3 (breach of fiduciary duty); count 7 (malicious prosecution); and count 8 (abuse of process). The court also stated in this judgment that "[n]othing contained herein shall prejudice counts 3, 4, 10 and 11 of Watkins’ counterclaims." No order has been entered by the lower court on these issues.
Since Watkins was seeking liquidated damages in counts 1, 2, and 6 of the counterclaim against FCA, the trial court included such liquidated amounts including pre-judgment interest in the final default judgment. However, because Watkins sought unliquidated damages in counts 3, 7 and 8, FCA’s default judgment did not include damages for those counts which presumably were to be determined at trial. No evidence of such damages was adduced at the trial below by Watkins and the trial court never made any written rulings as to damages for counts 9, 10, 11 and 12 of the counterclaim. In fact, this case proceeded to jury trial solely on Molina’s count for defamation against Watkins and counts 1, 2, 3 and 6 of Watkins’ counterclaim against Molina.
The jury returned its verdict in favor of Watkins on Molina’s defamation claim. As to the counterclaim, the jury returned its verdict in favor of Watkins and against Molina for count 3 (breach of fiduciary duty); but in favor of Molina and against Watkins for count 1 (securities fraud); count II (common law fraud); and count 6 (securities fraud pursuant to the civil remedies for criminal practices act). A purported final judgment was entered against Molina pursuant to this jury verdict wherein execution was to issue. However, in this judgment, the court reserved for separate trial the severed counts 4 and 5 of the counterclaim pertaining to the civil remedies for criminal practices act relating to witness tampering, in violation of sections 914.22 and 914.23 and the civil remedies for criminal practices act relating to perjury, in violation of chapter 837. The court also reserved ruling on count 10 of the counterclaim relating to civil forfeiture and other injunctive relief. FCA and Molina filed separate appeals. Their respective appeals have been consolidated for purposes of our review.
II
FCA JUDGMENT
On this appeal, FCA raises three issues. First, FCA asserts that the trial court abused its discretion when it entered a default judgment against FCA pursuant to Watkins’ ore tenus motion where all parties had demanded a jury trial on all issues and where FCA had no prior notice of Watkins’ ore tenus motion for default. FCA next contends that, in any event, the default judgment for counts 1, 2, and 6 of the counterclaim cannot stand where Watkins sought to impose liability against FCA as a result of Molina’s conduct and Molina was exonerated by the jury on these counts in the trial court. Finally, FCA maintains that the purported final default judgment cannot stand where it did not dispose of all of the pending issues between the parties.
As to the first issue, we agree that the trial court abused its discretion when it entered a final default judgment against FCA prior to submitting any issues to the jury where all parties had demanded a jury trial and no party had withdrawn its demand. See , e.g. , Turner Properties, Inc. v. Marchetta , 607 So. 2d 506, 507 (Fla. 3d DCA 1991) (non-appearance by defendants does not relieve plaintiff of its obligation to introduce evidence on liability, and is not basis for entry of default); Cluett v. Krystyniak , 532 So. 2d 739, 739 (Fla. 2d DCA 1988) (trial court erred in entering default judgment where the pleadings set forth disputed issues regarding liability and there was no evidence before court prior to its determination of liability); Ortiz v. Nicolaides , 196 So. 2d 186, 187 (Fla. 3d DCA 1967) (trial court abused its discretion in entering default against defendant as to liability upon failure of defendant or counsel to appear at trial). Moreover, the entry of this final default judgment was an abuse of discretion where FCA received no prior notice of Watkins’ ore tenus application for default pursuant to Rule 1.500(h), Fla. R. Civ. P. See Maranto v. Dearborn , 687 So. 2d 940, 941 (Fla. 3d DCA 1997) (holding that "[a]ny default entered in violation of the due process notice requirement of Rule 1.500 [, Fla. R. Civ. P.] must be set aside without any regard as to whether a meritorious defense is presented or excusable neglect is established.").
Rule 1.500(b) makes clear that if a defendant such as FCA has filed or served any paper in the action, that "party shall be served with notice of the application for default." See State, Dep’t. of Rev. v. Thurmond , 721 So. 2d 827 (Fla. 2d DCA 1998) (judgment entered without notice to a party is void abinitio); Dep’t. of Transp. v. Mastrangelo , 691 So. 2d 643 (Fla. 5th DCA 1997) (order of default improper where defendant, who had filed papers in action, had not been served with notice of default). See also International Energy Corp. v. Hackett , 687 So. 2d 941, 943 (Fla. 3d DCA 1997) quoting Clearvalle, Inc. v. Cohen , 561 So. 2d 1354 (Fla. 4th DCA 1990) (stating that "failure to produce proof of service of the required notice of application for default alone renders the entry of a default judgment erroneous."). Absent extraordinary circumstances, an ore tenus motion made in open court does not constitute prior notice of default judgment, even when the party is present. See , e.g. , Iteka International v. Hinson , 671 So. 2d 204 (Fla. 4th DCA 1996). As the Iketa court explained, "[a]bsent extraordinary circumstances, proper notice should include written notice served a reasonable time before the time specified for the hearing." Id . at 206, quoting , Ingaglio v. Ennis , 443 So. 2d 459, 460 (Fla. 4th DCA 1984). Here, as in Iteka , no extraordinary circumstances justified Watkins’ failure to file and serve a written motion for default against FCA pursuant to Rule 1.500(b), Fla. R. Civ. P. We therefore reverse the final default judgment entered against FCA.
FCA next asserts, and we agree, that upon remand, judgment must be entered in its favor and against Watkins in counts 1, 2 and 6 of the counterclaim where the jury found no liability on the part of Molina, FCA’s principal and president, on those counts. The law is settled that where an agent or employee is found to have no liability, then a judgment cannot stand against the principal or employer on the basis of vicarious liability or respondeat superior. See Williams v. Hines , 86 So. 695, 702 (Fla. 1920) (where a jury by its verdict exonerates the servant but finds the master guilty, the verdict as to the master is erroneous.); Buettner v. Cellular One, Inc. , 700 So., 2d 48 (Fla. 1st DCA 1997) (when principal’s liability rests solely on respondeat superior, principal cannot be liable if agent is exonerated); See also , e.g. , Rothman, M.D., P.A. v. Hebebrand , 720 So. 2d 595 (Fla. 4th DCA 1998) (physician’s professional association, which defaulted, could not be held liable for malpractice, where association’s liability was only vicarious and jury found in favor of physician); Keyes Co. v. Sens , 382 So. 2d 1273, 1275 (Fla. 3d DCA 1980) (holding that: "defendant . . . whose liability for the acts of its employees was vicarious, based on respondeat superior . . . was not subject to a verdict or judgment for compensatory damages in excess of the amount of damage determined and found against its defendant-employees, the active tortfeasors"). According to the allegations contained in Watkins’ counterclaim, Molina acted as FCA’s agent and president at all material times. FCA correctly points out that the pleadings indicate that Watkins is attempting to hold FCA vicariously liable for Molina’s actions on a respondeat superior basis. As such, to the extent that Molina was exonerated on counts 1, 2 and 6 of the counterclaim at the trial below, judgment must likewise be entered in favor of FCA on these counts upon remand of this cause.
FCA finally challenges the form of the final default judgment entered against it. However, given the fact that we have reversed this judgment, it is unnecessary for us to address the form of this judgment and we now turn our attention to Molina’s point on appeal.
III
MOLINA JUDGMENT
On this appeal, Molina’s sole contention is that the trial court erred in issuing what purports to be a final judgment based upon the jury’s verdict and orders execution while simultaneously reserving ruling on certain counts and severing yet two more counts for separate trial. We agree.
It is axiomatic that a judgment is final for purposes of an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment. See McGurn v. Scott , 596 So. 2d 1042, 1043 (Fla. 1992), citing Gore v. Hansen , 59 So. 2d 538 (Fla. 1952). In the instant case, by reserving jurisdiction in the final judgment to address the other counts of Watkins’ counterclaim, the trial court failed to dispose of all of the pending issues between the parties and the judgment against Molina was therefore not final. By entering this judgment in the form that it did, the lower court forced Molina to prematurely take an appeal in order to protect his rights under this judgment. See , e.g. , Del Castillo v. Ralor Pharmacy, Inc. , 512 So. 2d 315 (Fla. 3d DCA 1987). If this purported final judgment is permitted to stand, there would presumably be successive appeals from the trial court’s disposition of the remaining pending issues. The piecemeal review of various issues in a case is highly disfavored by appellate courts and should be avoided. See Sax Enter., Inc. v. David & Dash, Inc. , 107 So. 2d 612, 613 (Fla. 1958) (stating that "piecemeal review of cases is not favored by an appellate court, and care should be exercised by trial judges to avoid, so far as possible, the necessity for successive appeals"). We therefore summarily reverse the judgment entered against Molina in this cause pursuant to Rule 9.315(b), Fla. R. App. P. and as we did in Hugh F. Culverhouse, Jr., P.A. v. Barth , 699 So. 2d 795 (Fla. 3d DCA 1997) and Del Castillo v. Ralor Pharmacy, Inc. , 512 So. 2d 315 (Fla. 3d DCA 1987), we remand this cause with instructions that the trial court enter an interlocutory order against Molina on the issues concluded thus far and once the remaining issues have been disposed of, that final judgment be entered to include the amounts or damages which Watkins has previously been determined to be entitled to recover. Upon entry of a final judgment, both Molina and Watkins will have then the right to take an appeal of any issue(s) they deem appropriate.
Reversed and remanded with instructions.
STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES v. T.R. 3D99-3133
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2002
STATE OF FLORIDA DEPARTMENT
OF HEALTH AND REHABILITATIVE
SERVICES n/k/a DEPARTMENT OF
CHILDREN AND FAMILIES,
Appellant,
vs. CASE NO. 3D99-3133
LOWER
T.R. and Y.H., by TRIBUNAL NO.96-5980
and through their guardian, 95-19835
BRENDA SHAPIRO,
Appellees.
Opinion filed August 14, 2002.
An appeal from the Circuit Court for Dade County, Florida, Moie Tendrich, Judge.
John G. Crabtree; Papy, Weissenborn, Poole & Vraspir, and Sheridan K. Weissenborn, for appellant.
Karen Gievers, (Tallahassee); Roy Wasson, for appellees.
Before COPE and GERSTEN, JJ., and NESBITT, Senior Judge.
NESBITT, Senior Judge.
Two girls who had been in the State's foster care program for the past thirteen years, T.R., and Y.H., brought suit against the Department of Health and Rehabilitative Services(HRS), now known as the Department of Children and Families(DCF), for negligently failing to protect them from abusive doctors, foster parents, and other third parties, and for negligently failing to arrange for their adoption. The girls had been abandoned by their mother in 1986 and placed under the Department's care. From that time until the time of trial in 1999, the girls were in the custody of the State pursuant to an adjudication of dependency.
Hearing the girls' claims, including allegations that they had been sexually and physically abused, raped, burned, and improperly medicated, a jury ultimately awarded T.R. $2,080,000, and Y.H. $2,345,000. The Department appeals that verdict. The girls cross appeal, claiming that the trial court erred in failing to allow demonstrative exhibit costs.
We agree that the girls are entitled to recover for the damages suffered as a result of the Department's negligence in certain operational decisions made in the girls' care and supervision. See Department of Health and Rehab. Servs. v. Yamuni , 529 So. 2d 258 (Fla. 1988). However, we find that several erroneous evidentiary rulings, as well as an apparent misinterpretation of section 768.28(5), Florida Statutes (2000), mandate reversal and remand for retrial. We also reverse the order on cross appeal, which should be reconsidered at the conclusion of retrial.
I. The trial court failed to distinguish planning from operational type claims.
A legion of cases point to the planning versus operational distinction in considering application of the doctrine of sovereign immunity. That distinction was fully explained in Department of Health & Rehab. Servs. v. B.J.M. , 656 So. 2d 906, 911-13 (Fla. 1995), where the court concluded that the decisions of HRS regarding the placement of a juvenile and rehabilitative services provided for a juvenile constituted performance of a discretionary governmental function for which the government was immune. Explaining its analysis the Supreme Court observed:
At the outset, we distinguish the HRS function at issue, the allocation of services, from the actions at issue in Department of Health & Rehab. Servs v. Whaley , 574 So. 2d 100 (Fla.1991), and Department of Health & Rehab. Servs. v. Yamuni , 529 So. 2d 258 (Fla.1988). Both Whaley and Yamuni involved HRS caseworker-level decisions concerning the physical safety of children within the agency's protective custody which did not implicate any "discretionary planning or judgment function" as contemplated by Trianon .[ Trianon Park Condo. Ass'n v. City of Hialeah , 468 So. 2d 912 (Fla. 1985)] Neither case involved discretionary calls with regard to choice of services. Whaley involved the physical placement of a child in a specific room in an HRS detention facility known by HRS to be occupied by dangerous juveniles. We held that placing the child in such danger was an operational function not protected by sovereign immunity. 574 So. 2d at 101. In Yamuni , we held that HRS's negligent failure to adequately protect a child from further physical abuse also occurred on an operational level. 529 So. 2d at 260. These operational level decisions exposing children to specific dangers should be distinguished from the broad discretionary authority vested by the legislature in HRS to determine an appropriate course of remedial treatment for the children that come within its custody through dependency and delinquency proceedings.
Id. at 913. Permitting a jury's consideration of evidence of both planning and operational activities when deciding a plaintiff's claim of Department negligence mandates reversal and remand for retrial. See Lee v. Dept. of Health and Rehab. Servs , 698 So. 2d 1194 (Fla. 1997). This is exactly the error the trial court made in the instant case.
A review of the record demonstrates that, over defense objection, the trial judge permitted the jury's consideration of evidence of both planning and operational activities. For example, the court permitted evidence of DCF's alleged negligence in spending $317,000,000 in Dade County and not having sufficient case workers but having too many administrators. The court also permitted evidence of the Department's actions in allowing a 40% caseworker turnover rate, as well as the Department's formation of the Family Service Planning Team Program, which plaintiffs argued did not best utilize Department resources. Thus, over the Department's objection, in addition to the evidence of negligence properly before the jury, the trial judge allowed the presentation of evidence going to planning level decisions. As was the case in Lee , the admission of this later evidence requires reversal.
II. Interpreting Section 768.28(5).
The next point mandating reversal is the trial court's misinterpretation of section 768.28(5), Florida Statutes (2000). The trial court's determination to have the jury decide the number of "incidents" of negligence reflects the court's apparent conclusion that plaintiffs could recover $100,000 per identified act of Department negligence. As previously stated, section 768.28(5) provides a limit for how much a plaintiff can recover from a government agency. The plaintiff may then seek the balance of his judgment from the Florida Legislature. See Gerard v. Dept. of Transp. , 472 So. 2d 1170, 1172-73 (Fla. 1985). Just how section 768.28(5) should be interpreted is in question. That section provides:
(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974. (Emphasis added.)
Comer v. City of Palm Bay , 147 F.Supp.2d 1292(M.D. Fla. 2001), outlines two conflicting views of the proper interpretation to be given this section. Comer explains:
[Plaintiff] alleges that because the negligent supervision claim underlying his $200,000 judgment comprised numerous discrete incidents and occurrences, he is not subject to the § 768.28(5)'s $100,000 cap with respect to his entire judgment, but rather that each incident or occurrence of negligence enjoys its own separate $100,000 cap. Accordingly (so the argument goes), Comer need only have proved "two separate incidents of negligent supervision to recover the entire $200,000 judgment." Docket No. 161 at 2. This argument would be persuasive if the $100,000 cap in § 768.28(5) were pegged to "incidents and occurrences" rather than "claim[s] or judgment[s]." Unfortunately for Comer this is not the case. Comer proved his single claim of negligent supervision through various incidents, resulting in one judgment.
In support of his novel reading of § 768.28(5), Comer cites Pierce v. Town of Hastings , 509 So. 2d 1134 (Fla. 5th D.C.A.1987). In Pierce , the plaintiff pled four separate counts in his complaint, but was not allowed to present special interrogatories to the jury. The jury returned a single verdict in the amount of $65,000, which was in excess of the lower (then $50,000) cap in § 768.28(5). The trial court limited Pierce's judicial (as opposed to legislative) recovery to $50,000. The appellate court reversed, stating that "[t]he finding by the trial court that there was only one incident because both arrests arose out of enforcement of the same ordinance is patently incorrect as a matter of law." Pierce , 509 So. 2d at 1136. The Pierce court's reasoning rests on the erroneous assumption that even if Pierce had presented multiple claims to the jury, he would have been entitled to the benefit of separate § 768.28(5) caps with respect to each one of his multiple underlying claims rather than a single cap with respect [to] the resulting judgment. This is simply an incorrect reading of § 768.28(5). (Footnote omitted.)
Id. at 1299. Thus, Comer concludes that a single plaintiff will always have at most one claim of $100,000. Pierce authorizes consideration of the number of incidents. As Comer , 147 F.Supp. 2d at 1299 n.7, explains:
The Pierce court's confusion might have been due in part to § 768.28(5)'s reference to a $200,000 cap on "all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence" [the "$200,000 clause"]. However, the $200,000 clause does not apply to a case (like Pierce ) involving a single claim and multiple incidents or occurrences. Rather, it applies only to the converse case--multiple claims arising out of a single incident or occurrence. See, e.g., Rumbough v. City of Tampa , 403 So. 2d 1139 (Fla.2d D.C.A.1981) (multiple homeowners sued a city over the operation of a single landfill).
Our task is not to set out a rule for every eventuality. Rather, we must apply the statute to the instant case. Here, for the purposes of considering the $100,000 cap of section 768.28(5), each girl had a single claim for the Department's negligence while under its care. The girls may certainly seek recovery for all injuries suffered as a result of the Department's negligence in the performance of its operational level decisions. However, the fact that the behavior at issue spanned a number of years and included a number of different actions by a number of state employees does not change the fact that the claims in full amounted to no more than each girl's single claim against the Department for the injuries she suffered while under its supervision. Therefore, the single statutory cap of $100,000 per girl must apply. Again, this is not to say that the girls may not seek their full recovery, but merely that the portion of the judgment exceeding $100,000 per girl must be sought from the Legislature. See § 768.28(5); Gerard, 472 So. 2d at 1173.
We believe the reading of the statute advocated by the plaintiffs could lead to the absurd result of making the statutory cap prescribed by section 768.28(5) meaningless. For example, such a reading would allow a plaintiff, after having been operated on, to accuse a state hospital surgeon of using the wrong medicine, performing some procedure too slowly, and closing in an improper manner, and as such performing three separate "incidents" of negligence, thereby subjecting the state hospital to three separate $100,000 caps. Moreover, in the weeks that followed, if this patient's doctors or nurses did several more things in a negligent fashion, the plaintiff could proceed to tack on a few more incidents, and take advantage of a few more $100,000 statutory caps. We do not find such an interpretation of section 768.28(5) to be either reasonable or functional.
Based on the jury's identification of eight incidents of negligence, the result, as argued by the plaintiffs, is to provide for the recovery of $800,000 from the Department, before proceeding to the Legislature. While we do not doubt the severity of the girls' injuries, their recovery must be within the bounds as set out by the Florida legislature.
III. Conclusion
Two distinct errors mandate reversal. First, the jury was allowed to hear and consider matters for which recovery was completely barred by the doctrine of sovereign immunity. Second, acting under the misapprehension that the plaintiffs could recover for each "incident" identified, the jury was instructed to identify the number of incidents of negligence which occurred. What should have been the focus of the court's inquiry was the operational level decisions which exposed the girls to specific dangers. Because the damages awarded in the instant case may have been based in part on evidence of the Department's planning level decisions, the jury's award cannot stand.
On remand, it will be the jury's task, guided by the trial judge, to determine the nature and extent of any damages these girls suffered as a result of the Department's operational level decisions. Each of the two girls may recover the statutory maximum of $100,000 from the Department and seek the balance of the jury's award from the Legislature. Reversed and remanded.
GERSTEN, J., concurs.
State of Florida Department of Health and Rehabilitative Services, etc., v. T.R. and Y.H., etc.
Case No. 3D99-3133
COPE, J. (concurring).I entirely agree with Judge Nesbitt’s opinion. I write separately to address a procedural point.
The trial court denied the request of the Department of Health and Rehabilitative Services for an interrogatory verdict, and submitted the case to the jury on a general verdict form.
On this appeal, the Department appears to take the position that where a trial court erroneously denies a request for an interrogatory verdict, it follows that the aggrieved party is entitled to an automatic reversal. The Department reasons that in the absence of an interrogatory verdict, the Department cannot address the claims of error with particularity. The law is otherwise.
The requirement for an interrogatory verdict is a means to an end, and not an end in itself. Even where the request for an interrogatory verdict has been wrongly denied, it nonetheless is incumbent on the appellant to show that there has been harmful error in the case (apart from the failure to grant the request for an interrogatory verdict).
In Ryan v. Atlantic Fertilizer & Chemical Co. , 515 So. 2d 324 (Fla. 3d DCA 1987), the trial court had denied a request for an interrogatory verdict. This court said:
Ryan’s two-count counterclaim, breach of implied warranty of fitness for a particular purpose and negligence, substantiated Atlantic’s request for a special verdict. It was error to refuse and to provide only a general verdict form. Where the court refuses a request for a special verdict and the evidence is insufficient on one theory of liability, a new trial is required. Colonial Stores, Inc. v. Scarbrough , 355 So. 2d 1181 (Fla. 1978). In Colonial Stores , the court held:
Had petitioners in the instant case requested special verdicts and objected to submission of a general verdict form to the jury, it would have been necessary for the district court to determine the sufficiency of the evidence to sustain the false imprisonment count as well as the malicious prosecution count. If there was error as to either count, the district court should then remand the case for a new trial as to both counts .
515 So. 2d at 328 (emphasis added; citation omitted); see also Barbour v. Brinker Florida, Inc. , 801 So. 2d 953, 959 (Fla. 5th DCA 2001). See generally Ryan Patrick Phair, Appellate Review of Multi-Claim General Verdicts: The Life and Premature Death of the Baldwin Principle , 4 J. App. Prac. & Process 89 (2002).
In the present case the Department has demonstrated harmful error as spelled out in the majority opinion, and for that reason we have ordered a new trial. But the failure to grant an interrogatory verdict is not a ground for a new trial unless there is a showing of harm.
SAUNDERS v. STATE 4D01-4770
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJULY TERM 2002
GEORGE SAUNDERS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
CASE NO. 4D01-4770
Opinion filed August 14, 2002
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 97-2356 CF.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant, George Saunders, appeals the trial court order summarily denying his rule 3.800(a) motion to correct illegal sentence. In this motion, appellant alleged that his sentence under the Prison Releasee Reoffender Act, section 775.082(8)(a)1, Florida Statutes (1997), for burglary of a structure was illegal because the jury did not make an express finding that the burglary was of an occupied structure. This is required for sentencing under the Act. See State v. Huggins , 802 So. 2d 276 (Fla. 2001). The amendment which removed the requirement took effect on July 1, 2001. Appellant’s offense was committed prior to that date, such that the amendment does not apply to him. See Ch. 01-239, § 1, at 2192, Laws of Fla.
Florida Rule of Criminal Procedure 3.800(a) is available for this challenge as it is apparent on the face of the record that the jury did not make an express finding that the structure was occupied. As such, appellant could not have been legally sentenced under the Prison Releasee Reoffender Act. See West v. State , 27 Fla. L. Weekly D1467 (Fla. 1st DCA June 6, 2002).
Accordingly, as in the West case, the trial court order summarily denying appellant’s rule 3.800(a) motion is reversed, and remanded for the trial court to either grant relief or attach portions of the record which conclusively refute his claim for relief.
REVERSED AND REMANDED.
GUNTHER, SHAHOOD and HAZOURI, JJ., concur.
NATIONAL JUDGMENT RECOVERY AGENCY, INC. v. HARRIS 4D01-2521
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJULY TERM 2002
NATIONAL JUDGMENT RECOVERY AGENCY, INC.,
Appellant,
v.
ROBERT G. HARRIS and ILLUSTRATED PROPERTIES REALTY, INC.,
Appellees.
CASE NO. 4D01-2521
Opinion filed August 14, 2002
Appeal of a non-final from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Timothy P. McCarthy, Judge; L.T. Case No. CL 83-4091.
Mitchell A. Dinkin of Shafritz & Dinkin, P.A., Delray Beach, for appellant.
Robert B. Roemer, Palm Beach Gardens, for appellees.
PER CURIAM.
This is a companion case to National Judgment Recovery Agency Incorporated v. Harris , No. 4D01-1195. Because the issue raised in that case is identical to the one raised in this companion case, for the reasons expressed in our en banc opinion in that case, we hereby reverse and remand for consistent proceedings.
REVERSED.
WARNER, FARMER and KLEIN, JJ., concur.
SCULLOCK v. STATE 4D01-2610
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJULY TERM 2002
WILLIE A. SCULLOCK, II,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
CASE NO. 4D01-2610
Opinion filed August 14, 2002
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Peter D. Blanc, Judge; L.T. Case No. CA 01-5599 AO.
Willie A. Scullock, II, Miami, pro se.
Rosa H. Carson, Assistant General Counsel, Department of Corrections, Tallahassee, for appellee.
PER CURIAM.
Willie Scullock, Appellant, challenges the trial court’s dismissal of his habeas corpus petition. Appellant argued below that section 944.275, Florida Statutes, which requires inmates to serve 85 percent of their sentences, is violative of the single subject requirement of the Florida Constitution. This argument was rejected in Comer v. Moore , 27 Fla. L. Weekly S245 (Fla. March 14, 2002). The trial court dismissed the petition without prejudice to Appellant reapplying for relief upon a showing that he exhausted administrative remedies. As we have addressed the merits of the petition and found Appellant’s arguments to be without merit, we affirm. However, we write to foreclose any attempt by Appellant to pursue administrative remedies on his meritless claim.
POLEN, C.J., STONE and GROSS, JJ., concur.
HEARD v. STATE 4D01-4017
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJULY TERM 2002
OTIS HEARD,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
CASE NO. 4D01-4017
Opinion filed August 14, 2002
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James I. Cohn, Judge; L.T. Case No. 96-14886 CF10A.
Otis Heard, Arcadia, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We reverse the summary denial of appellant’s motion for post-conviction relief. Appellant’s claim is that his lawyer was ineffective because he knew that the state could not locate its only witness, the victim of the alleged sex related charges, but did not inform appellant. If appellant had known, he would not have entered a plea.
The state’s response rests on a memorandum in the state attorney’s file indicating the state attorney was having difficulty finding the victim. The state’s position, which apparently persuaded the trial court, was that this memorandum was a public record which could have been obtained by the appellant in 1997, and his claim is time-barred under rule 3.850. The record, however, does not demonstrate that this was a public record.
Appellant argues that the memorandum is newly discovered evidence, only recently made available to him in proceedings brought against him under the Jimmy Ryce Act. We cannot agree with the state that, based on this record, appellant’s motion is time-barred. We therefore reverse for an evidentiary hearing.
GUNTHER, KLEIN and SHAHOOD, JJ., concur.
TOUSSAINT v. STATE 4D01-4405
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJULY TERM 2002
ELVESTRE TOUSSAINT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
CASE NO. 4D01-4405
Opinion filed August 14, 2002
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John J. Hoy, Judge; L.T. Case No. 98-2946 CFA02.
Elvestre Toussaint, Jasper, pro se.
No appearance required for appellee.
PER CURIAM.
We review the order denying Elvestre Toussaint’s rule 3.850 motion for post-conviction relief and conclude that the trial court erred in summarily denying one of the three claims alleged in appellant's motion.
Toussaint was charged, and convicted of sexual battery upon a person less than 12 years old. Toussaint argued in point one that trial counsel was ineffective having failed to present an alibi defense based on Toussaint’s work schedule during the month in question.
Toussaint alleges that his employers could have demonstrated that he was at work or en route to work at the time and therefore could not have committed the offense. Toussaint alleges further that he advised counsel of such during a pretrial visit, detailing the names of his employers.
This legally sufficient claim was not conclusively refuted by the exhibits attached to the state's response and expressly incorporated in the trial court's order. Evidence of Toussaint’s work schedules from his employers, non-family members, would have given credence to the information. Harris v. State , 804 So. 2d 457 (Fla. 4th DCA 2001).
Accordingly, we reverse the order denying relief on this claim and remand for an evidentiary hearing. We affirm as to all other claims of ineffective assistance of counsel raised in the motion.
GUNTHER, SHAHOOD and GROSS, JJ., concur.
WASHINGTON v. STATE 4D02-1131
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJULY TERM 2002
BOBBY WASHINGTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
CASE NO. 4D02-1131
Opinion filed August 14, 2002
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 90-2887 CF.
Bobby Washington, Indiantown, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed without prejudice to pursue administrative remedies. See Dep’t of Corr., State of Fla. v. Mattress , 686 So. 2d 740 (Fla. 5th DCA 1997).
POLEN, C.J., TAYLOR and MAY, JJ., concur.
GOOCH SUPPORT SYSTEMS, INC. v. LUSTER 4D02-171
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJULY TERM 2002
GOOCH SUPPORT SYSTEMS, INC., GOOCH ENTERPRISES, INC., HAL GOOCH and CHRIS GOOCH,
Appellants,
v.
MAHALEEL LEE LUSTER,
Appellee.
CASE NO. 4D02-171
Opinion filed August 14, 2002
Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No. 94-9881 (03).
William G. Crawford, Jr. of McDonald & Crawford, P.A., Ft. Lauderdale, for appellants.
Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., Ft. Lauderdale, for appellee.
PER CURIAM.
Affirmed. See Purcell v. Deli Man, Inc. , 411 So. 2d 378 (Fla. 4th DCA 1982); Perkins v. Salem , 249 So. 2d 466 (Fla. 1st DCA 1971); see also MCR Funding v. CMG Funding Corp. , 771 So. 2d 32 (Fla. 4th DCA 2000).
SHAHOOD, HAZOURI, JJ., and DELL, JOHN W., Senior Judge, concur.
MAYO v. STATE 4D02-2070
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJULY TERM 2002
ECCLES MAYO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
CASE NO. 4D02-2070
Opinion filed August 14, 2002
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dorian K. Damoorgian, Judge; L.T. Case Nos. 99-23052 CF10A & 98-24495 CF10A.
Eccles Mayo, Immokalee, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Eccles Mayo, Appellant, timely challenges the trial court’s denial of his rule 3.800(a) motion for jail credit. Appellant’s motion complied with Toro v. State , 719 So. 2d 947, 948 (Fla. 4th DCA 1998). Furthermore, the records attached to the trial court’s order denying relief appear to be nothing more than clerk’s notes and do not conclusively refute the claim. Accordingly, we reverse and remand to the trial court for attachment of records conclusively refuting the claim, if such is possible. If the record available to the trial court establishes that Appellant is entitled to the credit he requests, the court shall award him the jail credit. If the record does not refute the claim and an evidentiary hearing is necessary, the motion should be denied without prejudice to Appellant raising a timely motion for postconviction relief, pursuant to Florida Rule of Criminal Procedure 3.850.
POLEN, C.J., FARMER and TAYLOR, JJ., concur.
WEAL v. STATE 4D02-2240
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJULY TERM 2002
MICHAEL WEAL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
CASE NO. 4D02-2240
Opinion filed August 14, 2002
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case Nos. 96-11869 CF & 97-13545 CF.
Michael Weal, Century, pro se.
No appearance required for appellee.
PER CURIAM.
We affirm the trial court’s denial of appellant’s motion to correct an allegedly illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). This affirmance is without prejudice to appellant filing a timely, sworn motion pursuant to rule 3.850. To the extent of the issues raised in this appeal, such motion would be limited to the issues of whether the required prior convictions for an enhanced sentence existed and were proven, and whether appellant was given sufficient notice of the state’s intent to seek an enhanced sentence. See McCray v. State , 765 So. 2d 82 (Fla. 4th DCA), rev. denied , 776 So. 2d 276 (Fla. 2000).
POLEN, C.J., STEVENSON and GROSS, JJ., concur.