author: KAHN, J.

text:
    AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. HHCI LIMITED PARTNERSHIP, d/b/a Harborside Healthcare-Pinebrook, d/b/a Harborside Healthcare-Sarasota, d/b/a Harborside Healthcare-Nables, Appellee.
    No. 1D02-1588.
    District Court of Appeal of Florida, First District.
    Jan. 14, 2004.
    Rehearing Denied Feb. 12, 2004.

      Gregory J. Philo of Agency for Health Care Administration, Tallahassee, for Appellant.
    David K. Miller, P.A., and Donna Hol-shouser Stinson of Broad and Cassel, Tallahassee, for Appellee.
   KAHN, J.

The issue in this administrative case concerns Florida’s statutory policy of allowing reasonable costs and reasonable attorney’s fees to a petitioner that successfully challenges an administrative agency’s non-rule policy. See § 120.595(4), Fla. Stat. (2001). The administrative law judge (ALJ) read the statute expansively and allowed appellee attorney’s fees for efforts “in furtherance of the client’s causes,” notwithstanding that some amount of these fees was attributable to legal work outside the scope of the challenge to the non-rule policy under the Administrative Procedure Act (APA). Concluding that the rule of strict construction must be applied to an attorney’s fee statute, we vacate the order and remand this case for further proceedings.

Appellee HHCI Limited Partnership (HHCI), petitioner below, operates several nursing home facilities. The facilities identified in the record are known as Har-borside Healthcare-Pinebrook, Harborside Healthcare-Sarasota, and Harborside Healthcare-Naples. In October 2001, the Florida Agency for Healthcare Administration (AHCA), filed an administrative complaint seeking to revoke the licenses of the Pinebrook, Sarasota, and Naples facilities. AHCA’s petition relied upon a then-new statute providing that AHCA shall revoke or deny a nursing home license if the interest controlling the nursing home operates another facility that has been cited for two Class I deficiencies within a 30-month period. See Ch.2001-45, § 70, Laws of Fla. (codified at § 400.121(3), Fla. Stat. (2001)). The petition alleged that the Pinebrook facility had in fact been cited for two such deficiencies over a year before and, accordingly, under the new statute, appellee would have to surrender its licenses as to all three nursing homes.

HHCI, through its counsel, took the position that AHCA’s action was illegal. HHCI’s attorneys devised a multi-pronged strategy to preserve the nursing home licenses. Initially, HHCI sought a temporary injunction in circuit court, alleging that AHCA’s retroactive application of the new statute was an unconstitutional deprivation of property rights. The circuit court denied this injunction, finding that the matter should be properly resolved in the administrative tribunal.

HHCI’s attorneys then pursued other avenues. They filed administrative petitions requesting hearings on the licensure revocation actions. They also sought to resolve the issue informally by contacting AHCA, and by contacting the Lieutenant Governor, the Governor, and the senate sponsor of the new law that AHCA sought to apply. The attorneys directed then* efforts at persuading AHCA that the law could not be retroactively applied.

Finally, on October 12, 2001, the attorneys filed the action that became the underlying case supporting the ultimate award of attorney’s fees. This action was a petition for determination of invalidity of a non-rule policy. Ultimately, the ALJ determined that AHCA’s actions had violated section 120.54(l)(a), Florida Statutes (2000), providing generally that any agency statement defined as a rule must be adopted by the APA’s rulemaking procedure as soon as feasible and practicable. Upon its success in the underlying action, HHCI filed a separate administrative proceeding seeking to recover its attorney’s fees, not only for the successful challenge to a non-rule policy, but for all the activities engaged in by its counsel, including the injunction action, the administrative challenge, and the lobbying efforts.

In considering HHCI’s request for attorney’s fees, the ALJ reached the following conclusion:

The calculation of attorney’s fees in this cause is complicated by the fact that none of the fees sought would have been incurred by the Petitioner had the Agency not implemented an unlawful policy. That is, had the non-rule policy not been utilized to support Administrative Complaints against the three facilities, none of the fees sought would have been incurred. The Petitioner presented a “shot-gun” approach pursuing every avenue available (including the underlying rule challenge) to dissuade the Agency from pursuing its action against the facilities. Only the rule challenge proved successful.

Based upon this conclusion, the ALJ awarded all fees reflected on counsel’s billing worksheet, concluding that although some of these hours were for efforts beyond the successful non-rule policy challenge, such fees were “reasonable given the severity of the penalty sought by the agency and the circumstances faced by the client.” The ALJ also allowed reasonable attorney’s fees for time spent in preparation and attendance at the actual fee hearing, and awarded all costs sought by HHCI’s attorneys, without regard to whether these costs were incurred in the non-rule policy challenge.

Our analysis begins with the statute that allows fees in this case. Section 120.595(4)(a) provides, “[U]pon entry of a final order that all or part of an agency statement violates s. 120.54(l)(a), the administrative law judge shall award reasonable costs and attorney’s fees to the petitioner....” Because the issue on appeal involves application of this statutory language to undisputed facts, we review the ALJ’s order under the de novo standard.

HHCI argues that the language of section 120.595(4) does not foreclose an award of fees for related proceedings that contribute to a favorable outcome. This observation is true, but it does not contribute much to resolution of the issue before us. Under Florida law, a court may award attorney’s fees only when such award is authorized by statute or agreement of the parties. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993). Florida courts strictly construe statutes allowing attorney’s fees because, under Florida law, statutes awarding fees continue to be viewed as in derogation of the common law. See, e.g., Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003).

Here, although section 120.595(4) does not specifically foreclose recovery of all legal fees incurred by a party to whom an agency applies an unlawful non-rule policy, it does not on its face allow those fees either. In fact, the statutory subsection in question governs “CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 120.56(4).” § 120.595(4), Fla. Stat. Section 120.56(4)(a), of course, provides, “Any person substantially affected by an agency [non-rule] statement may seek an administrative determination that the statement violates s. 120.54(l)(a).” If such a petition succeeds, the agency in question “shall immediately discontinue all rebanee upon the statement ... as a basis for agency action.” § 120.56(4)(d), Fla. Stat. The attorney’s fee statute we construe here fits neatly into the statutory scheme for challenging agency statements of policy that have not been subjected to rulemaking. We would thus be remiss to overlook the clear legislative intent in devising a statute to allow attorney’s fees for successful challenges based upon section 120.56(4), which governs only the non-rule policy challenge under the APA. Accordingly, although we do not dispute the AL J’s determination that the fees awarded were reasonable, we are unable to uphold the award, beyond fees incurred in the non-rule challenge.

On remand, the ALJ must determine what fees are recoverable under our reading of the statute. Also, the ALJ must exclude from the fee award any fees expended in the attempt to prove amount, as opposed to entitlement, of attorney’s fees, as well as any fees incurred in proving entitlement to attorney’s fees for efforts beyond the section 120.56(4) challenge. See Palma, 629 So.2d at 833; Gaston v. Dep’t of Revenue, 742 So.2d 517, 522-23 (Fla. 1st DCA 1999). Finally, the ALJ must ensure that the costs awarded bear a relationship to the non-rule challenge.

We VACATE the final order and REMAND for further proceedings consistent with this opinion.

WEBSTER and VAN NORTWICK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gianna SHEINHEIT, Appellant, v. Angela GARRISON and John Garrison, Appellees.
    Nos. 3D03-555, 3D03-1120.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2004.
    Rehearing Denied Feb. 18, 2004.
    Guy M. Junger, Coral Gables, for appellant.
    Kenneth R. Duboff, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Gianna Sheinheit appeals a final judgment for damages and a permanent injunction. First, we conclude that the order striking the appellant’s pleadings is supported by the record and within the discretion allowed by Mercer v. Raine, 443 So.2d 944 (Fla.1984). We affirm the order denying the motion for disqualification on authority of Fischer v. Knuck, 497 So.2d 240 (Fla.1986) and Dura-Stress, Inc. v. Law, 634 So.2d 769 (Fla. 5th DCA 1994). The denial of the motion for continuance was within the court’s discretion. The record supports the entry of the permanent injunction.

Affirmed.


author: KELLY, Judge.

text:
    Ronald Lee CONKLIN, Jr., Appellant, v. Timothy D. CARROLL and Steven M. Carroll, individually, and d/b/a Steven M. Carroll Painting, Appellees.
    No. 2D02-2351.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.
    Rehearing Denied Feb. 17, 2004.

      Lisha Bowen and Angela E. Rodante of Swope Law Group, P.A., Tampa, for Appellant.
    John W. Boult of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Appellees.
   KELLY, Judge.

Ronald Lee Conklin, Jr., was injured when the car he was driving was hit by a truck driven by Timothy Carroll and owned by Timothy’s brother, Steven Carroll. Conklin sued the Carrolls alleging that Timothy Carroll’s negligent operation of the truck caused the accident and that Steven Carroll, individually and d/b/a Steven M. Carroll Painting, were vicariously liable under the dangerous instrumentality doctrine. The trial court entered summary judgment in favor of Steven Carroll individually and d/b/a Steven M. Carroll Painting, finding that it was undisputed that at the time of the accident, Timothy Carroll was operating the truck without Steven Carroll’s consent. The trial court also denied Conklin’s request to amend his complaint to add a claim for negligence against Steven Carroll. We conclude that the existence of a genuine issue of material fact precluded summary judgment and that the trial court abused its discretion when it refused to let Conklin amend his complaint.

Under the dangerous instrumentality doctrine, an owner who gives authority to another to operate the owner’s vehicle, by either express or implied consent, has a nondelegable obligation to ensure that the vehicle is operated safely. Hertz Corp. v. Jackson, 617 So.2d 1051 (Fla.1993). Knowledge and consent are essential elements that must be proven before the owner can be subjected to liability for damages proximately eaused by the driver’s negligence. Tribbitt v. Croum Contractors, Inc., 513 So.2d 1084 (Fla. 1st DCA 1987).

The evidence before the trial court at the summary judgment hearing established that Timothy Carroll was employed by his brother’s painting business and resided with Steven Carroll and his wife. Steven Carroll had given his brother permission to drive the truck but had told him that he was only to use it in connection with his work for the painting business. The truck was kept at the home and the keys were hung on a hook in the kitchen. There was also evidence that on the night of the accident Steven Carroll was at home and awake when Timothy Carroll left with the truck. After reviewing this evidence, the trial court entered summary judgment in favor of the Carrolls concluding that it was undisputed that Timothy Carroll did not have consent to drive the truck on the night of the accident.

In Susco Car Rental System of Florida v. Leonard, 112 So.2d 832, 837 (Fla.1959), the court explained that “while the rule governing liability of an owner of a dangerous agency who permits it to be used by another is based on consent, the essential authority or consent is simply consent to the use or operation of such an instrumentality beyond his own immediate control.” When an owner has consented to the use of his vehicle beyond his immediate control,

only a breach of custody amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse. The validity or effect of restrictions on such use, as between the parties, is a matter totally unrelated to the liabilities imposed by law upon one who owns and places in circulation an instrumentality of this nature.

Id. at 835-36. We believe this case is controlled by Susco because the facts before the trial court could support a finding that Timothy Carroll had consent to drive the truck with restrictions. Thus, the issue’ becomes whether Timothy Carroll’s violation of the restrictions' amounts to a species of conversion or theft that will relieve Steven Carroll of responsibility.

The cases Steven Carroll relies on are inapplicable because they involve situations where the owner of the car or truck explicitly directed the negligent driver not to use the car at any time, see, e.g., Duarte v. Wetzel, 682 So.2d 1200 (Fla. 4th DCA 1996); Martinez v. Hart, 270 So.2d 438 (Fla. 3d DCA 1972), or entrusted the car or truck to an employee to use on the job only and the employee went to the job site during nonworking hours- and surreptitiously took the car or truck for personal use. See, e.g., Alford v. Parker’s Mech. Constructors, Inc., 241 So.2d 759 (Fla. 1st DCA 1970); Keller v. Fla. Power & Light Co., 156 So.2d 775 (Fla. 3d DCA 1963). While at first blush this ease might appear analogous to these latter cases, we conclude that this case is distinguishable. In those cases, the car or truck involved was kept at the employer’s place of business and was not accessible to the employee during nonworking hours. - In contrast, in this case the truck was kept at the home where both the employee and employer, who were also brothers, resided. Thus, the truck and the keys were readily accessible to the employee even during nonworking hours.

These facts and the others before the trial court, especially considered in light of the familial relationship between Timothy and Steven Carroll, do not establish as a matter of law that Timothy Carroll’s use of the truck constituted a form of conversion or theft that would relieve Steven Carroll from liability under the dangerous instrumentality doctrine. “The significance of these facts should be weighed by a jury, and not the trial court.” Christenson-Sullins v. Raymer, 765 So.2d 955, 957 (Fla. 1st DCA 2000); see Marshall v. Gawel, 696 So.2d 937 (Fla. 2d DCA 1997). Because genuine issues of material fact remain regarding whether Timothy Carroll’s use of the truck was with Steven Carroll’s consent or whether his actions amounted to a form of conversion or theft, we reverse the summary judgment in favor of Steven Carroll individually and d/b/a Steven M. Carroll Painting.

Conklin also argues that the trial court erred in denying his motion to amend his complaint to add a claim for negligence against Steven Carroll. We agree. “The public policy of Florida is to freely allow amendment of pleadings.” Carter v. Ferrell, 666 So.2d 556, 557 (Fla. 2d DCA 1996); see also Fla. R. Civ. P. 1.190(a) (providing that leave of court to amend pleadings “shall be given freely when justice so requires”). A trial court’s failure to permit amendment constitutes an abuse of discretion unless it is clear that the amendment would prejudice the opposing party, the privilege to amend has been abused, or the amendment would be futile. EAC USA, Inc. v. Kawa, 805 So.2d 1 (Fla. 2d DCA 2001). In this case, the trial court found that the amendment was futile. We disagree.

Conklin contends that Steven Carroll had a duty to exercise reasonable care in allowing others access to the vehicle and that he knew or should have known that his brother used the truck for purposes other than his employment, that he knew of his brother’s prior alcohol and drug abuse, and that he kept the keys to the truck in a place which was readily accessible to anyone residing in his household. The trial court rejected the amendment based on its conclusion that Florida did not recognize a claim for negligent access to a motor vehicle. This was error.

In Thomas v. Atlantic Associates, Inc., 226 So.2d 100 (Fla.1969), Atlantic Associates allowed Henry Roberts to use a car it owned. When Roberts went out of town on a trip, he left the car keys on his dresser. His thirteen-year-old daughter, who had only recently come to live with him, took the keys, drove the car, and was involved in an accident injuring Thomas. Thomas sued Atlantic and Roberts, asserting that Atlantic was liable under the dangerous instrumentality doctrine and that Roberts was liable for negligently leaving the car keys on the dresser. The supreme court found that a jury should be allowed to decide the questions of “whether the father was negligent in leaving the keys on the dresser and failing to inquire of his daughter whether or not she drove a car and then prohibiting her from driving ... as well as the question of whether such negligence was the proximate cause of the accident.” Id. at 103. Even if a car is stolen as a result of the owner’s negligence in allowing access to the keys, if that intervening criminal act was foreseeable, the owner may be held responsible for the subsequent negligence of the thief. Schwartz v. Am. Home Assurance Co., 360 So.2d 383 (Fla.1978); Vining v. Avis Rent-A-Car Sys., Inc., 354 So.2d 54 (Fla.1977). Accordingly, the trial court abused its discretion when it denied Conklin’s request to amend his complaint to include a claim for negligence against Steven Carroll.

Reversed and remanded.

SALCINES and COVINGTON, JJ., Concur.


text:
    James ABERCROMBIE and Erin Abercrombie, Appellants, v. POLK COUNTY, a political subdivision of the State of Florida, Florida Leisure Communities Corporation, a Florida corporation, and The Huntington National Bank of Florida, a national banking corporation, As Trustee of the Ralph L. Fletcher Rollover Individual Retirement Account, Appellees.
    No. 2D03-4110.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2004.
    Rehearing Denied Feb. 10, 2004.
    Denise N. Murphy of Hardin & Murphy, P.A., Lakeland, for Appellants.
    Anne T. Gibson, Assistant County Attorney, Bartow, for Appellee Polk County.
    Amanda Peralta Jarrett and Natasha S.W. Rieger, Lakeland, for Appellee Florida Leisure Communities.
    No appearance for Appellee Huntington National Bank of Florida.
   PER CURIAM.

Because the nonfinal order being appealed is not an appealable order under Florida Rule of Civil Procedure 9.130(a)(3), this appeal is treated as a petition for writ of certiorari. The petition is dismissed as untimely.

DAVIS, SILBERMAN, and WALLACE, JJ., concur.


author: STEVENSON, J.

text:
    A-1 DURAN ROOFING, INC., a Florida Corporation, Appellant, v. SELECT CONTRACTING, INC., a Florida Corporation, and Great American Insurance Companies, a foreign Corporation, Appellees.
    No. 4D02-2176.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Rehearing Denied March 2, 2004.

      Steven M. Rosen of the Law Offices of Steven M. Rosen, Miami, for appellant.
    Richard B. Warren of Kelley & Warren, P.A., West Palm Beach, for appellee Select Contracting, Inc.
    Christopher T. McRae and David J. Metcalf of McRae & Metcalf, P.A., Tallahassee, for appellee Great American Insurance Companies.
   STEVENSON, J.

A-l Duran Roofing, Inc. (Duran) appeals the trial court’s order finding that it was not entitled to attorney’s fees following confirmation of an arbitration award. Because the arbitration award did not state the theory on which it was predicated so as to permit the trial court to determine whether Duran prevailed on the significant issues in the litigation and Duran failed to timely seek modification or clarification of the award under Florida Statutes chapter 682, we affirm.

Select Contracting, Inc. (Select), as general contractor, entered into a contract with Palm Beach County, as owner, for additions and renovations to the medical examiners facility located on Gun Club Road. Great American Insurance Companies provided the bond for the project, naming Select as principal and Palm Beach County as obligee. Later, Select subcontracted with Duran to perform roofing work on the project.

Duran subsequently filed a complaint against Select and Great American (appel-lees), alleging that it was not paid $46,450.00 for labor and materials provided for the project. The subcontract provides that any controversy between Select and Duran would be settled by arbitration and the prevailing party would be entitled to attorney’s fees. Neither the arbitration provision nor the attorney’s fee provision of the subcontract gave the arbitrator the authority to decide the issue of attorney’s fees.

The parties attended arbitration as required by the subcontract, which resulted in an award to Duran for the total sum of $41,456.00. However, the award also credited appellees $5,000. Believing themselves to have prevailed at arbitration, ap-pellees filed a motion for clarification, requesting that the arbitrator determine which party prevailed on the significant issues in the case for purposes of entitlement to attorney’s fees. Duran moved to strike and dismiss the motion, arguing that the parties had not entered into any agreement or voluntarily submitted any issue as to attorney’s fees to arbitration. The arbitrator subsequently issued a clarification award, stating that the issue of attorney’s fees was never placed before it, but, for purposes of the arbitration, there was no prevailing party.

Thereafter, Duran filed a complaint seeking to confirm and enforce the arbitration award and requesting an award of attorney’s fees. Appellees filed an answer, alleging as an affirmative defense that Duran was not the prevailing party at arbitration as the arbitrator found that neither party was the prevailing party for purposes of attorney’s fees. Nevertheless, ap-pellees filed a counterclaim stating that they should be awarded attorney’s fees because they were the prevailing parties on the significant issues during arbitration.

At the hearing on the motion for attorney’s fees, appellees argued that while the arbitrator may not have the authority to determine the amount of attorney’s fees, “the issue of entitlement, that is, who is the prevailing party,” is within the province of the arbitrator since the arbitrator heard all the evidence. Adopting this argument, the trial court found that the arbitrator had the authority to determine entitlement to attorney’s fees even where the issue was not submitted by the parties and, since the arbitrator found that neither party was the prevailing party, neither party would be awarded fees. The trial court stated:

[ Although an arbitrator doesn’t have authority ... to award fees under the procedure, expressly waives the right to have the Court decide the issues, award does not entail entitlement (sic).
As you know, attorneys’ fees are a two-step process. The first process is entitlement and the second process is an amount, a determination of the amount. The arbitrator, who is in a far better position than I am to determine entitlement, did so in determining that there was no prevailing party.

In sanctioning the arbitrator’s determination of “entitlement” to attorney’s fees in the absence of the express agreement of the parties, the trial court was in error. Although, as will be discussed, this aspect of the ruling does not control the outcome in this appeal, we address the issue because of its significance. Florida courts have noted that “there has been substantial confusion as to the procedure and appropriate forum for recovering attorney’s fees incident to arbitration proceedings,” Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 233 (Fla.2001), and that the law in this area has followed a “tortuous path.” Terrell v. AmSouth Inv. Servs., Inc., 217 F.Supp.2d 1233, 1237 (M.D.Fla.2002). Florida Statutes section 682.11 provides:

Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire’s expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.

§ 682.11, Fla. Stat. (2000)(emphasis added). This provision has been construed to vest jurisdiction for the award of attorney’s fees in the circuit court. See Terrell, 217 F.Supp.2d at 1238.

The Florida Supreme Court has reasoned that since arbitration is a voluntary alternative method for the resolution of disputes, which is strongly favored, there is no reason why the parties may not also voluntarily agree to waive the statutory limitation set forth in section 682.11 and allow the collateral issue of attorney’s fees to be decided in the same forum as the main dispute. See Turnberry Assocs. v. Serv. Station Aid, Inc., 651 So.2d 1173, 1175 (Fla.1995). In determining an arbitrator’s authority to determine attorney’s fees, Florida courts have made no distinction between entitlement and amount. Neither entitlement to attorney’s fees, nor amount, are issues that the arbitrator may decide without the agreement of the parties. See, e.g., Charbonneau v. Morse Operations, Inc., 727 So.2d 1017 (Fla. 4th DCA 1999); D.H. Blair & Co. v. Johnson, 697 So.2d 912 (Fla. 4th DCA 1997).

The difference between the arbitrator’s duty to identify and resolve the legal and factual issues upon which the determination of attorney’s fees will be based and the court’s duty to ultimately determine which party is “entitled” to attorney’s fees is subtle, but significant. As the court explained in Moser:

We hold today that where a party brings claims in arbitration based upon several theories, one or more of which provide for the recovery of attorney’s fees, the arbitration award must specify the theory under which the claimant prevailed, or otherwise clearly indicate whether the claimant has prevailed on a theory that would permit the trial court to award fees....
... We conclude that to the extent that knowledge of the basis of an award is necessary for the subsequent determination of an entitlement to attorney’s fees, an award without a basis is per se inadequate and subject to correction by the trial court.

783 So.2d at 236-37 (emphasis added). See also Kesler v. Chatfield Dean & Co., 794 So.2d 577 (Fla.2001).

We do not interpret Moser’s holding to mean that the arbitrator is required to determine entitlement to fees where the parties have not submitted the issue to arbitration. Instead, the arbitrator is merely required to state the basis upon which the award is made to assist the trial court in later determining entitlement. Where the arbitrator fails to state the basis for the award, or the record is insufficient to determine the basis upon which the party prevailed on the merits, the proper procedure for the trial court to follow is to remand the matter back to the arbitrator for an explanation of the basis for the recovery. See Cent. Fla. Invs., Inc. v. Fishkind & Assocs., Inc., 660 So.2d 380, 382 (Fla. 5th DCA 1995)(citing Lanahan Lumber Co. v. McDevitt & Street Co., 611 So.2d 591 (Fla. 4th DCA 1993)).

Though Moser makes clear that an award that fails to indicate the theory upon which the party prevailed is per se inadequate and subject to remand for correction, chapter 682 establishes pertinent time rules applicable when seeking correction. See Chatfield Dean & Co. v. Kesler, 818 So.2d 572 (Fla. 2d DCA 2002). An arbitrator may modify, correct, or clarify an award on application made within twenty days after its delivery. See § 682.10, Fla. Stat. (2000). The award so modified, corrected, or clarified is subject to the statutory provisions governing confirmation under section 682.12. See § 682.12, Fla. Stat. (2000). A party may make application to the trial court to vacate, modify or correct an award within ninety days after delivery. See §§ 682.13-14. Thus, a party desiring changes to the arbitration award is required to seek timely modification or clarification from either the arbitrator, pursuant to section 682.10, or the court, pursuant to sections 682.13 or 682.14; otherwise, the award becomes ripe for confirmation. See Lopez & Roque Tile Co. v. Clearwater Dev. Corp., 291 So.2d 126 (Fla. 2d DCA 1974).

In the instant case, the arbitrator failed to state the basis upon which the award was granted. Appellees moved to have the arbitrator clarify the award under section 682.10 to state which party prevailed for purposes of attorney’s fees. The modified or corrected order was issued, but still failed to state the theory upon which attorney’s fees could be permitted. Duran thereafter moved for confirmation of the award, which was required by the trial court under section 682.12, unless a ground for modification or clarification was sought under section 682.14. Because Duran failed to timely move for modification or clarification, and the time to do so has passed, we must affirm the trial court’s denial of fees. As the trial court correctly stated at the conclusion of the hearing:

The arbitrator ruled ... that there was no prevailing party. Neither party moved to vacate or modify that particular award. You must now live with it, like it or not.

Finally, Duran misplaces reliance on Meade v. Lumbermens Mutual Casualty Co., 423 So.2d 908, 910 (Fla.1982), where the supreme court found that the time limitations under Florida’s arbitration code for seeking modification of an arbitration award are applicable only to issues submitted to an arbitration panel. Here, while the issue of attorney’s fees was not an issue submitted to arbitration and, thus, not subject to the arbitration code’s time constraints, the theory upon which fees would be permitted was an issue for arbitration. The failure to timely seek the basis upon which the award was granted is fatal to Duran’s claim. Accordingly, we affirm the denial.

AFFIRMED.

STONE and WARNER, JJ„ concur.


author: MAY, J.

text:
    C.D., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3136.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.

      Carey Haughwout, Public Defender, and Dea Abramsehmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura F. Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The juvenile speedy trial rule is examined in an appeal from the trial court’s denial of a motion for discharge, pursuant to Florida Rule of Juvenile Procedure 8.090. Following that denial, the juvenile entered a plea and reserved his right to appeal. We find no error in the trial court’s ruling on the motion for discharge and affirm.

The chronology of events relevant to our discussion is set forth below.

November 7, 2001 - Arrest Date
January 25, 2002 - Petition Filed
February 6, 2002 - 90 days Expired
February 15, 2002 - Summons Issued
March 1, 2002 - Arraignment Date
March 11, 2002 - M/Diseharge Filed
March 18, 2002 - M/Discharge Denied
July 23, 2002 - Plea Taken

The defendant argues that the State’s failure to serve and arraign him within ninety days from the date of his arrest deprives the State of the recapture period. The State responds that the rules do not require service or arraignment within the ninety-day period to access the recapture period. Recent decisions from this court have caused the answer to be unclear. We now recede from those decisions.

The Florida Rules of Juvenile Procedure provide the procedural framework under which parties and the courts function in delinquency proceedings. While some of them are undisputedly clear, others leave room for interpretation.

Previously, this court has found room to interpret the juvenile speedy trial rule. State v. V.M., 842 So.2d 1066 (Fla. 4th DCA 2003); State v. D.L., 841 So.2d 663 (Fla. 4th DCA 2003); D.D. v. State, 817 So.2d 930 (Fla. 4th DCA 2002). By our opinion today, we recede from those cases and adhere to the plain language of Florida Rule of Juvenile Procedure 8.090(m).

Florida Rule of Juvenile Procedure 8.030(a) provides that delinquency proceedings are “initiated by the filing of a petition....” There is no provision in the rules dictating a deadline for service of the petition. When the State files a petition of delinquency, the rules provide for the child to “be brought to an adjudicatory hearing without demand within 90 days of the earlier of the following: (1) The date the child was taken into custody. (2) The date the petition was filed.” Fla. R. Juv. P. 8.090(a). Accordingly, the first step is to determine whether the State met the ninety-day deadline.

Once that determination is made, the remedy for failure to comply is set forth in subsection (m). See Fla. R. Juv. P. 8.090(b). Subsection (m) is entitled “Remedy for Failure to Try Respondent Within the Specified Time.” It is this provision that provides for a hearing within five days and the ten-day recapture period. See Fla. R. Juv. P. 8.090(m).

In this case, the State filed the petition within ninety days from the date of arrest, but served and arraigned the defendant beyond the ninety days. Simply put, the State failed to bring the defendant to trial within ninety days, giving rise to the defendant’s motion for discharge. The trial court followed the procedure outlined in subsection (m), held the requisite hearing within five days, and found none of the factors in subsection (d) to apply. The trial court denied the motion, and allowed the State the ten-day recapture period set forth in subsection (m). In doing so, the trial court not only complied with the rule, but with the principles upon which it is based.

A Little History

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court explained the constitutional parameters of the adult speedy trial rule.

The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.
As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.
The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial.

Id. at 519-22, 92 S.Ct. 2182.

The Court identified three interests to be served by the constitutional right to a speedy trial: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. at 532, 92 S.Ct. 2182. Next, the Court articulated four factors to be considered in determining whether there has been a deprivation of the right to a speedy trial: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. 2182. The Court found no constitutional basis for establishing a finite number of days within which to bring a defendant to trial. And, it suggested any attempt to do so would engage the Court “in legislative or rule-making activity, rather than in the adjudicative process to which [it] should confine [its] efforts.” Id. at 523, 92 S.Ct. 2182.

In Florida, prior to 1988, the State’s failure to bring a child to an adjudicatory hearing within ninety days resulted in the automatic discharge of the juvenile. However, in 1988, following the established process for rule changes, the State Attorneys of Florida petitioned the Supreme Court of Florida to consider an amendment to Florida Rule of Juvenile Procedure 8.180. In re Amendments to Florida Rule of Juvenile Procedure 8.180 (SPEEDY TRIAL), 536 So.2d 199 (Fla.1988). “The intended effect of the amendment [was] to repeal the remedy of automatic discharge in juvenile cases by including a notice provision.” Id. This same notice provision had already been added to the Florida Rules of Criminal Procedure just a few years before. See In re Amendments to Florida Rule of Criminal Procedure 3.191, 462 So.2d 386 (Fla.1984); see also John F. Yetter, Florida’s New Speedy Trial Rule: The Window of Recapture, 13 Fla. St. U.L.Rev. 9 (1985).

Certain attributes of the amended rule are worthy of note. First, discharge under the rule is not automatic. It “allows” the defendant to file a motion for discharge. Second, it requires the court to consider factors causing the delay before the remedy can be applied. And third, it provides only one remedy — discharge if the respondent is not brought to trial within the ten-day recapture period. See Fla. R. Juv. P. 8.090(m)(3).

In R.J.A v. Foster, 603 So.2d 1167 (Fla.1992), our supreme court reviewed the juvenile speedy trial rule and held that “the time period formally set forth in a statute or rule does not establish absolute per se prejudice but ... is ‘a triggering mechanism’ which establishes that the delay is presumptively prejudicial.” Id. at 1171. In rendering its decision, our supreme court relied upon the Court’s reasoning in Barker v. Wingo.

The Supreme Court of Florida next reviewed the juvenile speedy trial rule in P.S. v. State, 658 So.2d 92 (Fla.1995). In P.S., court held “that by entering a nol pros and then refiling identical charges after the speedy trial period has expired, the State is not entitled to extend the speedy trial period for an additional 15 days.” Id. at 94. In reaching this conclusion, the court relied on cases involving the adult speedy trial rule. Each of those cases dealt with the effect of a nol pros within the speedy trial period. See, e.g., State v. Agee, 622 So.2d 473 (Fla.1993) (the speedy trial period continues to run when the State enters a nol pros); Williams v. State, 622 So.2d 477 (Fla.1993) (a nol pros prior to expiration of speedy trial does not toll time).

Our Recent Decisions

Over the last couple of years, this court has been asked to interpret the speedy trial rule and impose some form of reasonable notice to the juvenile not provided for in the rules. In doing so, however, we entered into a judicial mine field, which has caused uncertainty for the trial courts in applying the rule. It is from this mine field that we now recede.

In A.L. v. State, 787 So.2d 942 (Fla. 4th DCA 2001), this court held that the trial court erred in failing to set an adjudicatory hearing within ten days following its denial of the defendant’s motion to dismiss on speedy trial grounds. We held that the trial court's failure to comply with the remedy provision of Florida Rule of Juvenile Procedure 8.090 warranted the defendant’s discharge. In A.L., the juvenile had been arraigned two days beyond the ninety-day speedy trial period. The motion for discharge was not filed until three months later. We noted that “it was counsel’s delay in failing to move for speedy trial discharge which delayed the trial.” Id. at 945.

In D.D. v. State, 817 So.2d 930 (Fla. 4th DCA 2002), the defendant was arrested for grand theft on September 2, 2001. The State filed a petition for delinquency on October 29, 2001. On November 1, 2001, a summons issued providing for an arraignment on November 27, 2001. The summons contained a typographical error in the defendant’s address. On November 9, 2001, the summons was returned unserved, indicating “no such address.” The State made no further attempt at service. The defendant did not appear at his arraignment. The speedy trial period expired on December 1, 2001.

The State served the defendant in February 2002, for a March 7, 2002, arraignment. The defendant appeared at his arraignment and was appointed counsel, who filed a motion to dismiss based upon the expiration of the ninety-day speedy trial period. The trial court denied the motion. This court reversed and directed the trial court to discharge D.D.

We held that since the defendant was not notified that the State was pursuing charges against him and could not move for discharge until well after the expiration of the speedy trial time, he was entitled to discharge. In doing so, we judicially imposed a requirement that the State serve the child within the speedy trial time frame.

In State v. D.L., 841 So.2d 663 (Fla. 4th DCA 2003), this court stated: “The lesson to be taken from reading A.L. and D.D. together is that, when the child is not arraigned until after the expiration of speedy trial, the availability of the recapture period turns on whether the child’s inability to move for speedy trial discharge within a short time after the expiration of the 90-day period is attributable to the child or to the State.” Id. at 666. We then held that because the delay in timely asserting his speedy trial right was attributable to the child (for failing to appear at his arraignment), the State was entitled to the recapture period.

Most recently, this court decided State v. V.M., 842 So.2d 1066 (Fla. 4th DCA 2003). In V.M., this court developed a two-step process to determine the availability of the recapture period. The first step requires a trial court to determine “whether the minor had the ability to move for speedy trial discharge within a short time after the expiration of the ninety-day period.” Id. at 1067. Second, the court must determine “whether that inability was attributable to the fault of the child or of the State.” Id. We then determined that because V.M. was arraigned only twelve days after the expiration of speedy trial, V.M. had the ability to move for discharge within a short time, and the recapture period was available to the State.

These cases create uncertainty in the trial courts because there is no guidance given as to what is meant by a “short time.” A “short time” is too imprecise a measurement. It has no logical foundation for determining when the State is entitled to the recapture time period. By our opinion today, we eliminate that uncertainty.

The Result

We adhere to the bright line that the rule already provides. When a juvenile is taken into custody, the State is given ninety days to bring the case to trial. When that does not occur, the juvenile may file a motion for discharge. The court must then set a hearing within five days to review the factors in subsection (d). If none of them apply, the State is given a ten-day window period within which to try the case. If the State fails to bring the case to trial within those ten days, the juvenile is discharged. If one of the factors in subsection (d) is found to exist, then the State is given ninety days within which to try the case.

Because the trial court properly applied the speedy trial rule and provided the State with the recapture period in this case, we affirm.

FARMER, C.J., GUNTHER, STONE, WARNER, POLEN, KLEIN, STEVENSON, SHAHOOD, GROSS, TAYLOR, and HAZOURI, JJ., concur.

      . The trial court held the hearing on the motion for discharge within the requisite five working days and set the trial within ten days, pursuant to the rule. The day before the trial date, the defendant moved for a continuance. This accounts for the delay between the date the court denied the motion and the date the defendant entered a plea.

      . While there is no provision in the rules dictating a deadline for either the filing or service of the petition, the Supreme Court of Florida has stated that the "[t]he recapture or window period provided for in rule 8.090(j) was not intended to permit the State to file, or to refile, charges against a defendant after the 90-day speedy trial time provided in the rule has expired, and then to bring the defendant to trial on the new charges in fifteen days or less.” P.S. v. State, 658 So.2d 92, 94 (Fla.1995). We have also held that the State's failure to file a petition of delinquency against a juvenile within ninety days of arrest precluded the State from availing itself of the recapture period. See State v. T.W., 679 So.2d 69 (Fla. 4th DCA 1996); see also D.A.J. v. State, 754 So.2d 817 (Fla. 2d DCA 2000). However, in this case the State filed the petition within ninety days.

      . In 1991, Florida Rule of Juvenile Procedure 8.180 was renumbered as Florida Rule of Juvenile Procedure 8.090. See In re Petition of The Florida Bar to Amend The Florida Rules of Juvenile Procedure, 589 So.2d 818, 828-29 (Fla.1991).


text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. John M. and Patricia A. HAIRE, Carolyn Seligman, Laz and Ellen Schneider, Susan B. Peterson, Stephen M. Wolfman, Robert Scherer, Susan and Hiram Frank, Judith and Bernard Macnow, Broward County, Miami-Dade County, City of Plantation, City of Fort Lauderdale, City of Pompano Beach, City of Coral Springs, Town of Davie, City of Hollywood, City of Boca Raton and Village of Pinecrest, Appellees.
    No. 4D03-2927.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Rehearing Denied March 2, 2004.

      Elliot B. Kula, Arthur J. England, Jr. and Charles M. Auslander of Greenberg Traurig, P.A., Miami, and Jerold I. Budney of Greenberg Traurig, P.A., Fort Lauder-dale, for appellant.
    Andrew J. Meyers and Edward A. Dion, Fort Lauderdale, for appellees Broward County, John M. and Patricia A. Haire, Carolyn Seligman, Laz and Ellen Schneider, Susan B. Peterson and Steven M. Wolf-man.
    Diana Grub Frieser, City Attorney and John 0. McKirehy, Assistant City Attorney, Boca Raton, for appellees City of Boca Raton, Robert Scherer, Susan and Hiram Frank, and Judith and Bernard Macnow.
    Robert A. Duvall, III, and Robert A. Ginsburg, Miami, for appellee Miami-Dade County.
    Samuel S. Goren and Michael Cirullo, Jr. of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellee City of Coral Springs.
    Ebony J. Calloway, Fort Lauderdale, for appellee City of Fort Lauderdale.
    Donald J. Lunny, Jr., Fort Lauderdale, for appellee City of Plantation.
    Gordon B. Linn and James Stokes, of Pompano Beach, for appellee City of Pompano Beach.
    Daniel L. Abbott, Hollywood, for appel-lee City of Hollywood.
    Monroe D. Kiar, Davie, for appellee Town of Davie.
    Cynthia A. Everett, Coral Gables, for appellee Pinecrest Village.
   PER CURIAM.

This non-final appeal involves another issue in the citrus canker litigation. In Florida Department of Agriculture & Consumer Services v. City of Pompano Beach, 792 So.2d 539, 541-42 (Fla. 4th DCA 2001), we detailed the history of the citrus canker eradication efforts in Florida. In Florida Department of Agriculture & Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), rev. granted, 842 So.2d 844 (Fla.2003), we considered the constitutionality of 2002 citrus canker legislation.

This ease involves review of an order granting temporary injunctive relief. The department is enjoined from destroying any citrus trees in Miami-Dade, Broward, or Palm Beach counties based on tree samples collected prior to the date of the court’s order. Any samples collected after the order are to be in accordance with the procedures outlined by the trial court’s order at issue herein. The trial court found that the department’s existing methodology did not assure compliance with section 581.184, Florida Statutes, in that the department was not using its stated methodology, and that such methodology, even if followed, would not achieve the goal of eradication. We conclude that Appel-lees were required to exhaust administrative remedies and, therefore, reverse the order granting temporary injunctive relief.

Section 581.184 defines a citrus tree exposed to infection as one located within 1,900 feet of an infected tree. Before the legislature’s enactment of section 581.184, in 2002, the 1900 foot buffer zone was a “rule” adopted by the department in accordance with the Administrative Procedure Act as an “emergency rule.” See 5BER00-4, 26 Fla. Admin. Weekly 4502 (Sept. 29, 2002). That rule was the subject of this court’s decision in City of Pompano Beach, 792 So.2d at 539.

The trial court in City of Pompano Beach concluded that the department failed to properly adopt the 1,900-foot rule and that the definition of “exposed” was contrary to the legislature’s definition. Also at issue was whether the plaintiffs had failed to exhaust administrative remedies by seeking judicial review of matters concerning the “rule.” There, we reversed and held that exhaustion of administrative remedies was required. 792 So.2d at 548. Here, we reverse for the same reason.

In the earlier Haire appeal, currently pending before the Florida Supreme Court, we considered an injunction proscribing the department from relying on the legislature’s 1,900-foot destruction radius as the trial judge ruled that the 1,900-foot radius violated substantive and procedural due process. That injunction permitted only the destruction of actually infected trees, as opposed to those merely “exposed” to citrus canker.

In Haire, the trial judge determined that the report, upon which the 1,900-foot legislation was based, was not based upon reliable science or scientific methods for collecting data and, therefore, “was not constitutionally acceptable as a basis for legislative abrogation of a property owner’s right to the full panoply of protections by our State and Federal Constitutions.” 836 So.2d at 1046. This court reversed and concluded that the 1,900-foot legislation was “amply supported by the scientific studies and Florida’s practical experience with citrus canker.” Haire, 836 So.2d at 1052. We further found that the legislature followed the recommendations of the scientific community to eradicate the disease and that the trial court erred in rejecting the legislative choice based upon its own view of the scientific evidence presented.

This case picks up where City of Pompano Beach and Haire left off. Accepting section 581.184 in light of Haire, the trial judge, considering Appellees’ renewed request for injunctive relief, outlined the procedures for the agency to follow to properly apply the 1900 foot buffer zone to assist eradication efforts. Appellees argued that the department was diagnosing infection based on speculation not proof, that even if all necessary tests were performed the department’s reckless chain of custody practices prevented reliable diagnosis, and that even if the above was corrected, the department’s lack of quality control rendered the diagnoses unreliable. Deposition testimony from the department employees was presented to support the plaintiffs’ motion.

Pursuant to City of Pompano Beach, and our reasoning therein, Appel-lees were required to exhaust administrative remedies to challenge the department’s implementation of section 581.184. Subsection (6) provides that the department shall develop, by rule, “a statewide program of decontamination to prevent and limit the spread of citrus canker disease.”

The 2002 citrus canker law requires the department to issue an immediate final order (IFO) to each person it has determined owns a citrus tree located within 1,900 feet of a tree infected with citrus canker and must, therefore, be removed. § 581.184(2)(b), Fla. Stat. (2002). The law further requires that such an IFO must be served on the property owner and provide the owner an opportunity to appeal the IFO to the district court of appeal and obtain a stay pending review.

Whether the department has accurately diagnosed a tree as infected with canker, and properly measured the 1900-foot exposure zone from that tree, are issues to be determined in the administrative appeal of an IFO.

Appellees suggest that there will be an insufficient record to support their challenges. Section 120.68(4) provides that judicial review of any agency action shall be confined to the record transmitted and any additions made thereto in accordance with paragraph (7)(a). Pursuant to 2002 legislation, the IFO provides the location of the infected tree, the distance between the infected and exposed trees, and the underlying diagnostic report. See § 581.184(2) & (4), Fla. Stat. (2002).

That the challenges are “systemic” as characterized by the plaintiffs does not alter our analysis. The challenges in City of Pompano Beach were systemic as well. The issue requiring exhaustion there involved challenges to the emergency rule requiring the destruction of trees within the buffer zone.

The reasoning in Penelas v. Arms Technology, Inc., 778 So.2d 1042 (Fla. 3rd DCA), rev. denied, 799 So.2d 218 (2001), further supports our decision. Intending to recover the costs associated with responding to firearms incidents, Miami-Dade county sued firearms manufacturers and dealers, alleging various theories of liability. The county also sought to require manufacturers to implement “lifesaving features into their products and to alter the method of firearm distribution and sale so as to better keep firearms out of criminal circulation.” Id. at 1044.

The Third District criticized the county’s use of the court’s injunctive powers to mandate the re-design of firearms and to regulate firearms and ammunition through the medium of the judiciary, but recognized that the county was frustrated with its inability to directly regulate firearms, an exercise proscribed by section 790.33, Florida Statutes, which expressly provides for the state legislature to occupy the field. Nonetheless, “the County’s frustration could not be alleviated through litigation as the judiciary is not empowered ‘to enact’ regulatory measures in the guise of injunctive relief.” Id. at 1045.

Much of the same can be said herein, where Appellees and the trial court are clearly frustrated with the department’s exercise of its statutory obligation pursuant to chapter 581. Nevertheless, the circuit court is not an “appropriate forum for resolution of disputes which are particularly within the administrative agency’s expertise.” State, Dep’t of Envtl. Prot. v. PZ Constr. Co., 633 So.2d 76, 79 (Fla. 3rd DCA 1994)(quoting Cmtys. Fin. Corp. v. Dept. of Envtl. Regulation, 416 So.2d 813, 816 (Fla. 1st DCA 1982)).

“The purpose of the exhaustion doctrine is to assure that an agency responsible for implementing a statutory scheme has a full opportunity to reach a sensitive, mature, and considered decision upon a complete record appropriate to the issue.” PZ Constr., 633 So.2d at 79. It also promotes effective implementation of policy by allowing the administrative body to adapt its rules and policies to the inequities of the individually adjudicated cases and to correct its own mistakes. See generally DeCarlo v. Town of West Miami, 49 So.2d 596 (Fla.1951); Galaxy Fireworks, Inc. v. City of Orlando, 842 So.2d 160 (Fla. 5th DCA 2003). We, therefore, reverse and remand accordingly.

STONE, POLEN and SHAHOOD, JJ., concur.

      . The trial court order states:
      a. Maintaining the integrity of the sample by complying, and requiring each employee handling the sample to certify such compliance, with effective chain of custody procedures; b. Performing all tests necessary to reliably diagnose and determine the subject tree is infected with Asian-strain citrus canker, including a hypersensitive reaction test (HR test), genetic (DNA) testing, and pathogenicity (host range) testing; c. Complying with written procedures which require the full and effective decontamination of all testing equipment and surfaces in between each sample, and individually certifying, for each sample, full compliance with such procedure. For a period of at least 20 days after delivery of all IFOs [immediate final orders] issued or to be issued, all paperwork and samples are to be made available for inspection to permit timely independent verification of the diagnosis, and: e. Precisely measuring, through more exacting GPS equipment, customary land surveying or through other means if approved in advance by this Court, the actual distance between the infected tree and each individual tree "exposed to the infection” and providing the precise tree-to-tree distance to each affected tree owner at the time the IFO is delivered.

      . This subsection of the statute is repealed effective July 1, 2005, and will be reviewed by the legislature prior to that date. See Haire, 836 So.2d at 1046, n. 1 (citing ch.2002-11, § 4, at 314, Laws of Fla.).

      . Haire held that section 581.184 was constitutional, as it neither violated substantive or procedural due process. The casé was reversed with direction to quash the temporary injunction. In light of such, the department could destroy both infected and "exposed” trees as set forth in section 581.184. The Florida Supreme Court accepted review and conducted oral argument.


author: DAVIS, Judge.

text:
    Kenneth DICKEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5768.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2004.

      James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Kenneth Dickey challenges the final judgment entered on his guilty plea to several drug offenses. He pleaded guilty after the trial court denied his dispositive motion to suppress. We reverse.

At the suppression hearing, Detective Mark Willis testified that on July 11, 2002, at about 5 p.m., he was traveling southbound on Highway 17 when he saw a blue and white Ford Bronco-type vehicle parked on the edge of the road. At that time, he did not notice any residences in the area. As he got closer to the vehicle, Willis noticed a man walking out of the woods balancing several objects on top of a large wooden box he was carrying. It was drizzling outside.

Willis decided to speak to the man because Willis believed it was unusual to see a man walking out of the woods carrying a large box. Willis also knew that citizens had complained about marijuana cultivation in the area and that, as part of a police eradication program for marijuana, officers conducting helicopter flyovers had seen indications of marijuana cultivation in the area. In addition, he knew that this general area of the county had trouble with burglaries.

However, by the time that Willis was able to turn his vehicle around and drive back to the area where he had seen the man, the man had returned to his vehicle and driven off. Willis then followed the vehicle, called for assistance, and made a traffic stop. Willis pulled up behind Dickey’s vehicle and, before Willis could get to the driver’s side, Dickey called out that he did not have a license. Willis proceeded to place Dickey under arrest for driving with a suspended license. The search subsequent to arrest led to the discovery of narcotics.

An officer is permitted to temporarily detain an individual when the officer has a founded suspicion that the individual has committed, is committing, or is about to commit an offense. Williams v. State, 769 So.2d 404 (Fla. 2d DCA 2000). That founded suspicion must be based on the “ ‘totality of the circumstances as viewed by an experienced officer.’ ” Id. at 406 (quoting Curtis v. State, 748 So.2d 370, 372 (Fla. 4th DCA 2000)).

We conclude that Detective Willis did not possess the required founded suspicion to stop Dickey based on the information he had at the time. While Detective Willis knew of alleged marijuana cultivation in the area, he admitted that no marijuana had actually been found. He also knew of burglaries in that area of the county, but not in the specific wooded area where he saw Dickey. Moreover, at the suppression hearing Detective Willis admitted that he did not see Dickey break any laws or commit any traffic offenses. Given the totality of the circumstances, Detective Willis did not possess the founded suspicion required to justify the stop.

The only evidence available to Detective Willis was that a man was carrying a large box out of the woods in the rain. While this may have appeared suspicious, in the absence of any other facts to suggest illegal activity, it did not amount to the founded suspicion necessary to effectuate a permissible stop.

Because the stop was not permissible, the narcotics that were discovered as a result should have been suppressed. Accordingly, we reverse the trial court’s denial of Dickey’s dispositive motion to suppress and vacate his conviction.

Reversed.

SILBERMAN, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    In the Interest of W.S., IV., a child. W.S., father, Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-2411.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2004.
    Debra M. Salisbury of Law Office of Debra M. Salisbury, P.A., Sarasota, for Appellant.
    Melanie Newby, Department of Children and Family Services, Sarasota, for Appellee.
   PER CURIAM.

W.S. appeals an order terminating his parental rights to W.S., IV. We reverse and remand for further proceedings.

These proceedings began as a shelter petition in August 2000, with a petition for dependency following soon thereafter in September 2000, involving two children and their mother. The appellant, W.S., was not involved in these proceedings until a petition to terminate his parental rights as to one of the children was filed in August 2002. When that child was born, W.S. suspected that he might be the father, but the mother denied he was the father. Despite the similarity in their initials, W.S., IV, does not share a name with W.S. It was not until December 2002 that paternity testing established W.S. as the biological father. By that point, W.S. was in the custody of the Department of Corrections. He is scheduled for release in the near future.

The trial court terminated parental rights on the theory that W.S. had voluntarily abandoned the child during the period when the mother denied he was the father and when no birth certificate or other legal determination established his parental obligations. We conclude that the record does not support this determination. See J.T. v. Dep’t of Children & Family Servs., 819 So.2d 270 (Fla. 2d DCA 2002); see also J.P.C. v. Dep’t of Children & Family Servs., 819 So.2d 264 (Fla. 2d DCA 2002).

W.S. also argues that the trial court has not taken adequate steps to comply with the Indian Child Welfare Act. See 25 U.S.C. § 1911 (2002). The child’s mother has at least some Native American heritage. From our record, we are not certain that the trial court has fully complied with the Act. On remand, the trial court should take all steps necessary to comply.

Reversed and remanded.

ALTENBERND, C.J., and DAVIS and SILBERMAN, JJ., Concur.


author: PLEUS, J.

text:
    James CROSBY, etc., Appellant, v. Derrick McNEAL, Appellee.
    No. 5D03-920.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    Judy Bone, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellant.
    Derrick McNeal, Daytona Beach, pro se.
   PLEUS, J.

James Crosby, secretary of the Department of Corrections, appeals a final order granting McNeal’s petition for writ of mandamus which ordered the Department of Corrections to credit McNeal on one offense with 308 days time served on another, unrelated offense. We quash the order on review.

On April 22, 1996, McNeal was sentenced for a 1995 possession of cocaine and a 1996 aggravated assault to 72.75 months for each crime, running concurrently. The concurrent sentences did not expire at the same time, primarily due to different amounts of gain time. In the 1995 possession ease, McNeal was eligible to receive up to 25 days of gain time per month under section 944.275(4)(b)2., Florida Statutes (1994). On the 1996 assault, McNeal was eligible to receive only ten days per month of gain time under section 944.275(4)(b)3., Florida Statutes (1995). Accordingly, McNeal conditionally satisfied the sentence in his 1995 case on May 22, 2000, with an award of 719 days gain time. He was not released on that date because he had not yet satisfied the sentence in his 1996 case. McNeal conditionally satisfied the sentence in the 1996 case 308 days later, on March 26, 2001, with an award of 332 days gain time. McNeal was placed on conditional release supervision.

On February 12, 2002, the Florida Parole Commission revoked McNeal’s conditional release for possession of cannabis. McNeal returned to prison to serve the amount of gain time forfeited as a result of violating his conditional release. Thus, McNeal began serving 719 days of gain time in the 1995 case and 332 days of gain time in the 1996 case.

In calculating McNeal’s new release date, the Department added 308 days on the 1995 case to account for the time he remained incarcerated on the 1996 case after his 1995 sentence had ended through an accumulation of gain time.

McNeal filed a petition for writ of habe-as corpus in the lower court arguing that he was entitled to be released because the sentences in both his 1995 and 1996 cases had expired. The lower court denied the petition on June 28, 2002, finding as follows:

The Petitioner had a total combined sentence of 2213 days based on the data provided by the Department of Corrections regarding the controlling sentence in case no. 95-1184. The Department of Corrections imposed an out-time segment of 308 days, from May 22, 2000 to March 26, 2001, for which time Petitioner did not receive credit, thereby extending his maximum sentence date. Upon Petitioner’s release from prison on March 26, 2001, he had 719 days of gain-time remaining, which constituted his maximum sentence date and maximum period of Conditional Release supervision. Duncan v. Moore, 754 So.2d 708 (Fla.2000). The Parole Commission therefore properly placed Petitioner on Conditional Release supervision until March 15, 2003.

On January 8, 2003, the First District Court of Appeal issued Bolden v. Florida Department of Corrections, 865 So.2d 1 (Fla. 1st DCA), rev. granted, Crosby v. Bolden, 848 So.2d 1153 (Fla.2003). In that case, Bolden was convicted of four charges arising from the same criminal episode and sentenced to four concurrent ten year terms. On three of the charges, Bolden was eligible for conditional release supervision. For those three charges, the release date for one of the offenses was 337 days before the other two offenses. The Department tolled his conditional release on that charge until he completed the other two sentences. When Bolden violated conditional release, the Department added 337 days to his sentence. The First DCA granted Bolden’s petition for writ of certio-rari, holding that the Department should not have tolled Bolden’s conditional release date on the first offense and was not permitted to add 337 days of tolled time to his new release date because all the charges arose from a single criminal episode.

Relying on Bolden, McNeal filed a petition for writ of mandamus asking that the 308 days of tolled time be subtracted from his new release date on the 1995 case. The lower court granted McNeal’s petition for writ of mandamus, stating:

At issue is 308 days that were tolled in Case No. 96-11834 that accrued while the defendant was in prison. The respondents are of the opinion that he was not entitled to the 308 days because he was not serving the sentence on that case at the time. This court finds that the holding in Bolden v. Moore[Florida Department of Corrections], 28 Fla. Law Weekly D187 [865 So.2d 1] (Fla. 1st DCA Jan.9[8], 2003), is controlling. Therefore, it is
FURTHER ORDERED AND ADJUDGED that the Florida Department of Corrections and/or the Florida Parole Commission shall instanter credit the defendant with the disputed 308 days and release him accordingly.

On appeal, Crosby argues that this case is controlled by Evans v. Singletary, 737 So.2d 505 (Fla.1999), not Bolden. We conclude that Evans is on point and requires reversal. In Evans, the defendant was sentenced to 15 years in prison for a 1988 cocaine offense and seven years for a 1992 manslaughter offense, running concurrently. He accumulated gain time on the manslaughter charge and became eligible for conditional release, but that was tolled until he completed the longer sentence. In 1997, the defendant was released to conditional release supervision due to accumulation of gain time. He violated conditional release and returned to prison. He petitioned for a writ of habeas corpus, arguing that his original sentences had expired.

The supreme court disagreed, reasoning as follows:

Here, the State has shown that it determined the length of Evans’ supervision period only by the gain time earned during the eligible manslaughter sentence and forfeited only the gain time awarded in that case. Allowing Evans to receive credit toward his supervision for the time he was in prison serving a completely different sentence would be contrary to logic and would result in an undue windfall for Evans. Accordingly, we find that Evans is not entitled to relief, and we hereby deny the instant petition. In doing so, we hold that while the State cannot transfer the Conditional Release supervision of an expired sentence to the end of a longer, ineligible sentence and determine the length of that supervision by the ineligible sentence (as we held in Cooper and Pressley)[], it may use an unexpired Conditional Release-eligible sentence to determine the length of the supervision and then toll the running of that supervision period until the inmate has been released from prison.

Id. at 508-09. The same fact scenario occurred in the instant case. McNeal argues that he should be given credit on his 1995 possession case for time served on his 1996 aggravated assault case. The supreme court rejected this argument in Evans. Furthermore, Bolden is distinguishable because it deals with sentences arising out of the same criminal episode. Thus, it does not apply to the instant case.

Accordingly, we quash the order on review.

ORDER QUASHED.

PALMER and TORPY, JJ., concur.

      . McNeal was also sentenced on other cases that day but these sentences are not relevant to the issues on appeal.

      . Pressley v. Singletary, 724 So.2d 97 (Fla.1997); Parole Commission v. Cooper, 701 So.2d 543 (Fla.1997).


author: GRIFFIN, J.

text:
    Danielle WAGATHA, Appellant, v. CITY OF SATELLITE BEACH, et al, Appellees.
    No. 5D03-1372.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    Rehearing Denied Feb. 18, 2004.
    Danielle Wagatha, Satellite Beach, pro se.
    Lamar D. Oxford and G. Clay Morris, of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellees.
   GRIFFIN, J.

Appellant, Danielle Wagatha, appearing pro se, appeals the trial court’s order dismissing her amended complaint with prejudice. We affirm.

Appellant filed suit against the City of Satellite Beach, Police Chief Lionel Cody, Police Officer Eric Fuller and Lieutenant James Diggers. Appellant alleged that on October 2, 1997, Luis Perez committed an assault and battery upon her and her sister, Marilyn, Perez’s estranged wife, in a bar. The complaint stated that Perez was under a restraining order at the time of the incident forbidding him from approaching his wife. Shortly afterward, appellant claimed that she went to the Satellite Beach Police Department to file a criminal complaint against Perez and Lt. Diggers would not allow her to do so. Appellant asserted that the police made remarks to her that they “had made many runs to the sisters [sic] aid when she was married to Mr. Perez the first time they were married, and more, when after their divorce, she remarried him, and that she deserved what she got.”

Appellant claims that, as she was leaving the police station, Officer Fuller offered her a ride home which she evidently accepted. She alleged that when Officer Fuller arrived at her house he would not let her exit the police vehicle after learning that her sister lived with her. Appellant maintained that Fuller talked with her sister, ignored her demands to be released, and drove her back to the bar against her will. After Fuller talked with individuals in the bar, he let appellant exit the police vehicle and she walked home.

According to appellant’s complaint, Fuller then filed a police report in which he stated that appellant was very intoxicated and barely able to walk or speak coherently. The police report stated that appellant had become very angry and abusive to her sister and appellant had tried to provoke a confrontation. Appellant also maintained that Police Chief Cody followed her home in his car, repeatedly stopped in front of her house, and made threatening gestures with his hand.

This case has a long, confused procedural history in the trial court, which it would serve no purpose to detail here. Appellant, who is appearing pro se in the litigation, has demonstrated a poor understanding of the issues and the procedures applicable to her lawsuit and she has been given more than the usual number of opportunities to plead cognizable claims and to prosecute the litigation. The trial court ultimately concluded, however, that she failed to do so. After examining the record, we agree with the trial court’s ruling, with one exception. Taking the arguments in appellant’s brief and the allegations in her pleadings as liberally as possible, we conclude that there is a barely adequate claim in count II for false imprisonment and that the trial court erred in granting the motion to dismiss count II for failure to state a cause of action.

Nevertheless, the City correctly contends that there were additional grounds set forth in their dismissal motion that would require dismissal of appellant’s complaints. Specifically, the City has raised appellant’s failure to satisfy the notice requirements of section 768.28(6), Florida Statutes (2002), which provides:

6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing; except that, if such claim is for contribution pursuant to s. 768.31, it must be so presented within 6 months after the judgment against the tortfea-sor seeking contribution has become final by lapse of time for appeal or after appellate review or, if there is no such judgment, within 6 months after the tortfeasor seeking contribution has either discharged the common liability by payment or agreed, while the action is pending against her or him, to discharge the common liability.
(b) For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues.

A plaintiff must plead compliance with the statute, although a general averment will suffice. Motor v. Citrus County Sch. Bd., 856 So.2d 1054 (Fla. 5th DCA 2003). “Under section 768.28(6), not only .must the notice be given before a suit may be maintained, but also the complaint must contain an allegation of such notice.... Where the time for such notice has expired so that it is apparent that the plaintiff cannot fulfill the requirement, the trial court has no alternative but to dismiss the complaint with prejudice.” Menendez v. North Broward Hosp. Dist., 537 So.2d 89, 91 (Fla.1988).

In this instance, appellant alleged that the incident occurred in 1997. Under the statute, appellant had until October 2000 to give notice under the statute. Appellant has not demonstrated that she has fulfilled this requirement or alleged in her complaint that she has given notice. Thus, the trial court’s dismissal of Count II of appellant’s complaint is sustainable on that basis alone.

AFFIRMED.

SAWAYA, C.J., and MONACO, J., concur.

      . The record at various times addresses the police chief as Cody or Cote.

      . On appeal, the appellant repeatedly attributes her failures to “bias” on the part of the judges assigned to her case. Our examination of the record reveals patience and courtesy on the part of all the judges.

      . Appellant does claim in her reply brief that she did actually give the required statutory notice, but the record reference she gives does not support her contention.


author: WELLS, Judge.

text:
    William BURGOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1274.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Rehearing Denied Feb. 18, 2004.

      Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   WELLS, Judge.

William Burgos appeals his conviction for resisting arrest without violence. We reverse.

Burgos was arrested and charged with resisting an officer with violence, depriving an officer of means of protection, and battery on a law enforcement officer. The charges stemmed from an incident following a police dispatch to a local trailer park. According to the officers involved, when they arrived at the trailer park, they were approached by a woman who was crying hysterically and whose face was lacerated, swollen and bleeding. This woman pointed out Burgos and told the officers that Burgos, who was then standing about twenty-five feet away talking with his mother, had caused her injuries. After Burgos refused to respond to the officers’ inquiries, they attempted to arrest him, only to be met by a fierce struggle during which Burgos kicked and punched them, attempted to obtain one of their handguns, and attempted to use one officer’s radio as a weapon. When finally subdued and arrested, Burgos was charged with resisting an officer with violence, depriving an officer of means of protection, and battery on a law enforcement officer. He was not charged with domestic battery.

On the first day of trial, the defense moved to preclude all mention of domestic violence against the battered woman who turned out to be Burgos’ girlfriend. The motion was initially granted by Judge Sil-verman. The trial was then transferred to Judge Deehl, who ultimately denied the motion, thereby paving the way for the state to elicit extensive and detailed testimony from the officers that the victim was hysterical, had a bleeding laceration to the eye, and had a swollen, lacerated and bleeding mouth; that the victim had stated that Burgos had hit her; and that the victim had told them that Burgos had stated that “she was not going to look pretty anymore.” This ruling also cleared the way for admission of a photograph depicting the victim’s bloody injuries. Burgos was ultimately convicted of the lesser included offense of resisting arrest without violence.

Burgos seeks a new trial contending that this detailed evidence relating to an uncharged domestic battery offense was not relevant to the crimes charged. The state contends that even if not directly relevant to the charges relating to the arresting officers, the evidence was properly admitted because it was necessary to adequately describe the events leading up to the offenses charged and because it was inextricably intertwined with the charged offenses. See Osborne v. State, 743 So.2d 602, 602 (Fla. 4th DCA 1999) (evidence of other crimes is admissible when “relevant and necessary to adequately describe the events leading up to the crime [s charged]”); Simmons v. State, 790 So.2d 1177, 1178 n. 2 (Fla. 3d DCA 2001)(“[e]vi-dence of an uncharged crime is inextricably intertwined with a charged offense, and therefore admissible ... ‘where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime’ ”) (citation omitted). We disagree with the state’s position.

Graphic descriptions of the girlfriend’s injuries, hammered home by photographic evidence, and her account of threats made by the defendant were unnecessary to understanding the officers’ encounter with Burgos. The officers’ presence was sufficiently explained by their testimony that they were dispatched to the trailer park and that during their investigation Burgos was identified as the subject of the investigation. See Porter v. State, 715 So.2d 1018, 1020 (Fla. 2d DCA 1998) (wife’s statement that her husband was trying to kill her was not necessary to explain deputies’ presence in light of testimony that officers were present because they had received a domestic violence call); see also, Scarboro v. State, 832 So.2d 930, 931 (Fla. 3d DCA 2002)(concluding that testimony detailing earlier criminal activity leading up to the defendant’s arrest was “not necessary for the jury’s understanding of the officers’ own encounter with the defendant”).

The testimony regarding the domestic battery also was not inextricably intertwined with defendant’s altercation with the officers as there was a “clear break” between that incident and defendant’s confrontation with the officers. See Porter, 715 So.2d at 1020. It certainly was possible to give a complete and intelligent account of the altercation between Burgos and the officers without delving into the details of the domestic battery.

The admission of the detailed testimony regarding the domestic battery was, therefore, error. Since we are unable to state that the error was harmless, we must reverse and remand for a new trial.

Our decision to reverse on this ground makes it unnecessary to reach the remaining issues raised in this appeal, including defendant’s claim that the trial court erred in denying his motions for mistrial, which were based on certain gratuitous comments made by the testifying officers and prosecutor that: prisoners teach' other prisoners to use handcuffs as a claws; “there are a lot of police officers every year who are killed with their own firearms”; and that one of the officers drew her weapon because she wanted “to go home to [her] family.” We agree, however, that these statements were comments upon matters extraneous to the trial and are to be avoided at the new trial.

Reversed and remanded.

      . The state conceded as much below:
      [THE STATE]: Let me make clear our position.
      I think, as an officer of the court, that we can certainly state that [the previously assigned trial judge] indicated that we couldn't go into the physical injuries of the victim.
      The state is not seeking to do that.
      All we're asking Your Honor to allow us to do is not describe the injuries of the victim, but just to say that they [the officers] were there pursuant to a domestic call.
      They arrived on the scene; they went up to the victim; she pointed out the defendant.
      That’s it.
      We're not asking to go into any details regarding it.

      . We do not, of course, approve the prosecutor's comment that Burgos was “acting like a caged animal” by failing to single it out in this portion of our decision.


text:
    N.W., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D03-1351.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Rehearing Denied Feb. 19, 2004.
    Frank A. Kreidler, Lake Worth, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   PER CURIAM.

N.W., the mother, appeals the final order of the circuit court terminating her parental rights to two children, A.S. and C.S., pursuant to section 39.806(l)(c), (f), Florida Statutes (2002). We find that the trial court’s order of termination is supported by competent substantial evidence in the record. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991)(“[B]ecause parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm.”).

While it appears that the trial court erred in failing to make specific findings as to why it denied the mother’s motion to allow A.S. to testify at the final hearing, see Florida Rule of Juvenile Procedure 8.255(d)(2)(C)(stating that the court shall make specific findings of fact, on the record, as to the basis for its ruling whether to allow a child witness to testify), this issue was not raised in the initial brief and is therefore abandoned. See J.A.B. Enters. v. Gibbons, 596 So.2d 1247 (Fla. 4th DCA 1992). Additionally, we find that it was proper for the trial court to take judicial notice of the prior court orders, including the dependency order, the orders from the periodic review hearings, and the order terminating the parental rights of the father. See § 90.202, Fla. Stat. (2002).

A court record is not subject to dispute: either it is or it is not a record of a court. When it is shown to the satisfaction of the trial judge that a document is a record of a court, then the judge should judicially notice it.

CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 202.6, at 59-60 (2008 ed.).

We have reviewed the other issues raised on appeal and find no error. Accordingly, the order of termination of parental rights is AFFIRMED.

WARNER, POLEN and STEVENSON, JJ., concur.

      . Section 39.806(l)(c) allows for termination of parental rights where the parent has engaged in conduct that demonstrates that the parent’s continuing involvement in the parent-child relationship would threaten the life, safety, well-being, or physical, mental or emotional health of the child irrespective of the provision of services; section 39.806(l)(f) allows for termination where the parent has engaged in egregious conduct or acts as defined in the statute.


author: COPE, J.

text:
    Alfredo CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2889.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Alfredo Cunningham, in proper person.

      Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   COPE, J.

Alfredo Cunningham appeals an order denying his motion to correct illegal sentence. We affirm.

Defendant-appellant Cunningham was convicted of conspiracy to traffic in cocaine in an amount of four hundred grams or more. The defendant was sentenced to life imprisonment with a mandatory minimum sentence of fifteen years, as a habitual violent felony offender (HVFO).

Relying on Stanford v. State, 706 So.2d 900 (Fla. 1st DCA 1998), the defendant argues that his life sentence on count one, the conviction of conspiracy to traffic in cocaine, must be vacated.

Under the applicable statute, a conviction of conspiracy to traffic in cocaine “is punishable as if he had actually committed such prohibited act.” § 893.135(5), Fla. Stat. (Supp.1996). Where the offense is trafficking in cocaine in an amount of four hundred grams or more, but less than one hundred fifty kilograms, “such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years....” Id. § 893.135(l)(b)l.e.

The defendant reads Stanford v. State to say that section 893.135, Florida Statutes controls over any contrary provision of the habitual offender statute. See 706 So.2d 901-02. He argues that since the drug trafficking statute provides only for a mandatory minimum term of fifteen years, it follows that the trial court could not sen-fence the defendant to a greater term of life as an HVFO.

We distinguish Stanford as being inapplicable here. In Stanford the defendant had been convicted of trafficking in cocaine in an amount between twenty-eight grams and two hundred grams. 706 So.2d at 901-02. Under the statute, where a defendant traffics in such an amount of cocaine, “such person shall be sentenced pursuant to the sentencing guidelines.... ” 706 So.2d at 902 (quoting § 893.135(l)(b)l.a., Fla. Stat. (1995)). Because this part of the statute specified that the sentence be under the sentencing guidelines, the First District interpreted this part of the statute to rule out application of the habitual offender statute. 706 So.2d at 901-02.

In the present case, the defendant was sentenced under a different subdivision of section 893.135. Where the amount of cocaine is four hundred grams or more, the statute makes no mention of the sentencing guidelines, but requires the imposition of a fifteen-year mandatory minimum sentence. It was the mention of the sentencing guidelines that the First District found dispositive in Stanford, and there is no such language in the statutory provision that applies to the defendant in this case. That being so, there was no prohibition on the application of the habitual offender statute to the defendant in count one, and the sentence as an HVFO to life imprisonment with a mandatory minimum sentence of fifteen years is a legal sentence.

Affirmed.

      . The crime date was August 21, 1996. The defendant was convicted of other offenses as well, but the conspiracy to traffic count is the only one at issue here.

      . We have no occasion in this case to consider whether we agree, or disagree, with the First District's analysis in Stanford of the portion of section 893.135 which deals with a cocaine amount of twenty-eight to two hundred grams.


text:
    Terrance Fontaine WILLIAMS, Petitioner, v. Sheriff Ray GEIGER, Respondent.
    No. 1D03-5312.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2004.
    Terrance Fontaine Williams, petitioner, pro se.
    No appearance for respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

BOOTH, PADOVANO and BROWNING, JJ., concur.


text:
    George Kevin COOK, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3492.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse with respect to the appellant’s first claim for relief, and affirm the denial of the remainder of the appellant’s claims without discussion.

On October 16, 2001, the appellant entered a plea pursuant to a negotiated plea agreement, which resolved several cases. The appellant alleges that at the time he entered his plea, he was taking a prescribed psychotropic medication, which impaired his ability to understand the consequences of his plea. The appellant provided a copy of an inmate medication log indicating that he consumed the prescribed medication at 10:00 p.m., on the evening before the plea hearing, and again at 8:00 a.m., and 12:00 p.m., on the day of the plea hearing. Nevertheless, the trial court summarily denied the claim because the plea hearing transcript established that there was an inquiry into the voluntariness of the appellant’s plea. However, the plea colloquy does not reflect that the trial court ever inquired into whether the appellant was under the influence of any drugs or medication. Thus, the trial court erred in summarily denying the appellant’s claim. See Barnes v. State, 801 So.2d 989 (Fla. 1st DCA 2001); Libertelli v. State, 750 So.2d 138 (Fla. 2d DCA 2000).

Accordingly, we reverse the trial court’s order with respect to the appellant’s first claim, affirm the trial court’s order with respect to the remainder of the appellant’s claims, and remand the cause to the trial court for further consideration.

REVERSED IN PART, AFFIRMED IN PART, and REMANDED.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Kenneth TOOLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3891.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s motion to vacate sentence. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

AFFIRMED.

BARFIELD, KAHN, and HAWKES, JJ., concur.


text:
    James Robert BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-275.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2004.
    James Robert Barnes, Raiford, pro se
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Ward v. State, 854 So.2d 260 (Fla. 1st DCA 2003); Wilson v. State, 846 So.2d 1220 (Fla. 5th DCA 2003); Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

SHARP, W, PETERSON and GRIFFIN, JJ, concur.


author: PER CURIAM. '

text:
    Alonzo RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3980.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2004.
    Alonzo Ruiz, Lowell, Pro Se.'
    No Appearance for Appellee.
   PER CURIAM. '

AFFIRMED. See King v. State, 808 So.2d 1237, 1248 (Fla.2002).

PALMER, ORFINGER and MONACO, JJ, concur.


text:
    Robert BISSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3481.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2004.
    Robert Bisson, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Oehling v. State, 659 So.2d 1226 (Fla. 5th DCA 1995).

SHARP, W, PALMER and TORPY, JJ, concur.


text:
    John Lovita NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2789.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2004.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and THOMPSON, JJ„ concur.


text:
    Scott OLSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-5.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Yates v. State, 823 So.2d 273 (Fla. 5th DCA 2002).

PETERSON, PALMER and ORFINGER, JJ., concur.


text:
    Garry Wayne WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4074.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2004.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Glover v. State, 815 So.2d 698 (Fla. 5th DCA 2002), approved, 863 So.2d 236 (Fla.2003).

SHARP, W., GRIFFIN and MONACO, JJ., concur.


author: COVINGTON, Judge.

text:
    Dr. James STRAMONDO, Appellant, v. JET 1, INC., f/k/a International Aviation Investments, Inc.; Scott Phillips; and Donald William Mercer, Appellees.
    No. 2D03-1876.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2004.
    Michael G. Moore, Naples, for Appellant.
    William J. Hazzard of Conroy Coleman & Hazzard, P.A., Naples, for Appellees.
   COVINGTON, Judge.

Dr. Stramondo disputes the circuit court’s interpretation of a settlement agreement between Scott Phillips, Donald Mercer, and himself relative to their respective investments in a proposed student housing project. After thoroughly reviewing the record and law, we conclude that the court correctly rejected Dr. Stramon-do’s various affirmative defenses to the enforcement of the contract and properly entered a final judgment in favor of the appellees.

We do find error, however, in the trial court’s use of a compound interest rate for prejudgment interest. Because the agreement contains no express provision for the compounding of interest, the appellees are entitled to only simple interest. See Pitts v. Pastore, 561 So.2d 297, 302 (Fla. 2d DCA 1990). We therefore reverse and remand for a recalculation of the interest on the sums determined in the final judgment. In all other respects we affirm.

Reversed and remanded for further proceedings.

DAVIS and WALLACE, JJ., Concur.


author: VILLANTI, Judge.

text:
    Michael BELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3540.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2004.
   VILLANTI, Judge.

Michael Bell challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of his motion without prejudice to any right Bell may have to seek relief in the trial court by means of a petition for writ of habeas corpus. See Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999); Johnson v. State, 862 So.2d 12 (Fla. 2d DCA 2003).

Affirmed.

SILBERMAN and WALLACE, JJ., Concur.