KIMBERLY LYNN TIPTON, APPELLANT,
v.
WALT GALLAGHER AS ORANGE COUNTY SHERIFF, ET AL., APPELLEE
HARRIS, Chief Judge.
Kimberly Lynn Tipton sued Walt Gallagher, as sheriff, because of injuries she received from a collision with one of his deputies. Although Gallagher was timely served with (and responded to) the complaint, service on the Department of Insurance was not effected within the 120-day period required by Rule 1.070(j), Rules of Civil Procedure. The trial court dismissed the complaint on this basis. We reverse.
After the briefs in this case were filed, but before oral argument, this court decided Turner v. Gallagher, 640 So. 2d 120 (Fla. 5th DCA 1994), which is dispositive of this case. We held in Turner, and we now reaffirm, that the rule applies only to defendants in the litigation. Since the Department of Insurance is not a party defendant in this action, the court erred in dismissing the complaint.
We again acknowledge conflict with Austin v. Gaylord, 603 So. 2d 66 (Fla. 1st DCA 1992).
REVERSED.
W. SHARP and GRIFFIN, JJ., concur.
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Catalino Diaz v. State, 667 So. 2d 991 (Fla. 3d DCA 1996)…While Diaz’ 12-year sentence falls within the corrected recommended range, we are unable to conclude from this record that Diaz’ sentence would have been the same had the trial court used a correctly calculated scoresheet. See Jaramillo v. State, 646 So. 2d 840 (Fla. 2d DCA 1994); Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA), approved, 586 So. 2d 340 (Fla.1991). Accordingly, we vacate the sentence under review and remand for resentencing with a properly calculated scoresheet.…
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Abdullah Shabazz v. State, 674 So. 2d 920 (Fla. 4th DCA 1996)…a properly calculated scoresheet, we are unable to conclude that appellant’s sentence would have been the same had the trial court utilized a correctly calculated scoresheet. See Diaz v. State, 667 So. 2d 991 (Fla. 3d DCA 1996); Jaramillo v. State, 646 So. 2d 840, 842 (Fla. 2d DCA 1994); Sellers v. State, 578 So. 2d 339, 340 (Fla. 1st DCA), approved, 586 So. 2d 340 (Fla.1991); cf. Huggins v. State, 537 So. 2d 207 (Fla. 4th DCA 1989). [*921] Accordingly, this cause is remanded for resentencing based upon a pr…
Authorities Cited
- Austin v. Gaylord, 603 So. 2d 66 (Fla. 1st DCA 1992)
- Turner v. Gallagher, 640 So. 2d 120 (Fla. 5th DCA 1994)