author: ERVIN, J. ERVIN, J.

text:
    Arthur BEGYN, Appellant, v. STATE of Florida BUSINESS AND PROFESSIONAL REGULATIONS and Risk Management, Appellees.
    No. 1D01-4848.
    District Court of Appeal of Florida, First District.
    April 15, 2003.
    Order Denying Rehearing and Rehearing En Banc July 11, 2003.

      Edward H. Hurt, Jr., of Edward H. Hurt, Jr., P.A., Orlando; Bill McCabe of Shepard, McCabe & Cooley, Longwood, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch, P.A., Orlando, for Appellees.
   ERVIN, J.

This is an appeal from a final workers’ compensation order wherein Arthur Begyn, appellanVclaimant, asserts the judge of compensation claims (JCC) erred in (1) denying his claim for permanent total disability (PTD) benefits; (2) refusing to adjust his average weekly wage (AWW) by including the cost to the employer/carrier (E/C) for health insurance provided to claimant at the time of his separation from employment, rather than at the time of his compensable accident; (3) denying his request for authorization of a medical provider on the ground that he had not exhausted the managed-care grievance procedures; and (4) denying his request for penalties, interest, costs and attorney’s fees (PICA). In that we conclude competent, substantial evidence (CSE) supports the JCC’s denial of PTD benefits, we affirm as to this issue without further comment. Based on that disposition, the second issue concerning claimant’s AWW is rendered moot, because there is no question in controversy regarding the payment of any other classification of indemnity benefits. We reverse, however, the remaining two issues and remand the case for further consistent proceedings.

Regarding the third issue, the JCC determined that he had no jurisdiction to decide claimant’s request for authorization of a medical-care provider, because claimant failed to present evidence that he had exhausted the managed-care grievance procedures before he filed his petition for benefits on May 21, 2001. See § 440.192(3), Fla. Stat. (1997) (“the employee must exhaust all managed care grievance procedures before filing a petition for benefits”); Castro v. AT & T Wireless Servs., 780 So.2d 917 (Fla. 1st DCA 2000) (holding that a JCC lacks jurisdiction to consider a petition filed before the claimant has exhausted the managed-care grievance procedures). Appellant argues that the JCC erred in so ruling in that the E/C failed to comply with the obligations required by section 440.134(14), Florida Statutes (Supp.1998), directing it to disclose to the injured worker in writing the provisions of the managed-care plan, including the grievance procedures. Additionally, claimant argues that there is no CSE to support the JCC’s ruling that he failed to exhaust the grievance procedures before filing his petition for benefits.

The record bears out appellant’s argument. Claimant’s unrefuted testimony was that he had no idea what the procedures were for requesting a doctor under the managed-care plan or what the grievance procedures were, and that no one had sent him an informational booklet of the grievance procedures. The record also shows that on January 22, 2001, claimant’s attorney made his first request by letter to Karey Ross, the insurer’s claims adjustor, stating: “I am requesting authorization for [c]are, and treatment by a new physician. I am enclosing Dr. Jackson’s correspondence within which he terminates the care of my client.” Upon receiving no response, counsel thereafter wrote to Ross on April 20, 2001, asking for “authorization for an evaluation, and treatment if necessary, by Michael N. Fulton, MD.” On each occasion, counsel requested a response in ten days. Adjustor Ross admitted that she had received these letters, and had forwarded the first letter, and possibly the second (she could not remember), to Pro-tegrity, the managed-care provider. Frustrated by the failure of either the insurer or the managed-care provider to act on the requests, claimant filed his petition for benefits on May 21, 2001.

In reaching his decision that claimant had not exhausted the grievance procedures within the managed-care plan before filing the petition, the JCC overlooked the overarching legislative intent that the workers’ compensation law be interpreted in order “to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment.” § 440.015, Fla. Stat. (1997). That express legislative purpose both predated and postdated the creation of managed-care arrangements. It is, in fact, written into the managed-care statute itself by requiring, among other things, that such services be provided with reasonable promptness, and that grievances within the system be considered in a timely manner. See § 440.134(5)(a) & (15)(d), Fla. Stat. (Supp. 1998). In drafting this mechanism as an alternative to the formal claim procedure, the legislature clearly did not contemplate that a request for medical benefits should be ignored for a protracted period of time; yet, this is precisely what happened in the present case.

It is true that section 440.134 does not explicitly state the conditions under which the managed-care grievance procedures may be defaulted and a worker given the option of proceeding with a formal petition before a JCC. Nevertheless, the legislature has granted the Agency for Health Care Administration (AHCA) broad powers to adopt rules regulating the authorization and examination of managed-care arrangements. § 440.134(25)(a), Fla. Stat. (Supp.1998). AHCA has directed that a “detailed description of the employee complaint and written grievance procedures shall be included in educational materials provided to injured employees.” Fla. Admin. Code R. 59A 23.006(2) (emphasis added). AHCA has defined a “grievance” as “a written expression of dissatisfaction with medical care by an injured worker.... Initial written requests for medical services, second opinions, or changes in providers are not grievances.” Id. at 59A-23.002(8).

The insurer or its managed-care provider has seven days to respond to an initial request for services, second opinions, and changes in providers:

The insurer or delegated entity shall evaluate requests for medical services within seven calendar days of receipt and shall notify the injured employee of the decision to grant the request, to deny it, or to request additional information. When the insurer or delegated entity denies a request it shall notify the injured employee in writing of the denial and the right to file a grievance.... If the insurer or delegated entity fails to respond within seven calendar days of receipt of the request, the injured employee may make a complaint or file a written grievance.

Id. at 59A-23.006(4)(a). Subsection (4)(b) thereafter states that if a complaint is filed and remains unresolved after 10 days of its receipt, the worker is entitled to be informed of his or her right to file a written grievance. There is no requirement, however, that a complaint be fled prior to pursuing a grievance. See id. at 59A-23.006(4)(c).

Different response times apply to grievances depending upon whether they are expedited. For expedited grievances, an answer is required within three days, and “the injured employee shall be considered to have exhausted all managed care grievance procedures after three days from receipt.” Id. at 59A-23.006(4)(c)(l). In the case of a grievance that is not expedited, the grievance coordinator

shall render a determination on the grievance within 14 calendar days of receipt. If the determination is not in favor of the aggrieved party the grievance coordinator shall notify the aggrieved party that the grievance is being forwarded to the grievance committee for further consideration unless withdrawn in writing by the employee or provider.

Id. at 59A-23.006(4)(c)(2). If forwarded to a grievance committee, the committee shall “render a determination within 30 calendar days of receipt of the grievance.” Id. at 59A-23.006(4)(c)(3). Once the grievance procedures have been completed, subsection (4)(c)(7) provides that “the insurer or delegated entity shall provide written notice to the employee of the right to file a petition for benefits with the Division.” If, however, a “determination on a grievance has not been rendered within the required timeframe specified in this section or other timeframe, as mutually agreed to in writing by the grieving party and the insurer or delegated entity,” the claimant “shall be considered to have exhausted all managed care grievance procedures.” Id. at 59A-23.006(4) (c)(6).

In the case at bar, neither the insurer nor its delegated entity complied with the responsibilities imposed on it. In our judgment, the complete and utter failure of the insurer and Protegrity to fulfill the duties specified in rule 59A-23.006 cannot be used as a means of raising a jurisdictional bar to a claim. Additionally, we note that while section 440.134(16), Florida Statutes (Supp.1998), provides a presumption that a claimant has received all necessary benefits under a managed-care system, the statute does not create a presumption that the E/C necessarily fulfilled its notice duties in the grievance process.

Initially, the E/C faded to provide claimant with any educational material following his injury, as required in rule 59A-23.006(2) and section 440.134(14). As previously stated, claimant made an initial request by letter dated January 22, 2001, for medical services, which the E/C failed to respond to within seven days, as required by rule 59A-23.006(4)(a). Dissatisfied with the E/C’s lack of response and without receiving any care, he next submitted a written request for authorization of Dr. Fulton by letter dated April 20, 2001. In our judgment, claimant’s second letter constituted a grievance, and the failure of the insurer and Protegrity to act within the time required under rule 59A-23.006(4)(c) creates a legal conclusion that claimant exhausted the required grievance procedures before he filed his petition for benefits on May 21, 2001.

We thérefore reverse on this point and remand with directions to the JCC to consider the claim for authorization of the care provider on its merits. Because of our disposition of the third issue, we reverse as well the denial of claimant’s request for PICA.

AFFIRMED in part, REVERSED in part, and REMANDED.

BOOTH and BROWNING, JJ., concur.

ON MOTION FOR REHEARING AND REHEARING EN BANC

ERVIN, J.

Appellees contend that this court’s decision overlooked or ignored controlling authority, namely, Farhangi v. Dunkin Donuts, 728 So.2d 772 (Fla. 1st DCA 1999), and Wal-Mart Stores, Inc. # H36 v. Capuano, 800 So.2d 652 (Fla. 1st DCA 2001). We disagree. Both Farhangi and Capuano were argued in the briefs and fully considered by this court.

Appellees also argue that this court overlooked Weather Engineers v. Presgraves, 774 So.2d 938 (Fla. 1st DCA 2001); Dramis v. Palm Beach County School Board, 829 So.2d 346 (Fla. 1st DCA 2002); and Florida Distillers v. Rudd, 751 So.2d 754 (Fla. 1st DCA 2000), none of which were previously cited to this court. As stated in Blinn v. Florida Department of Transportation, 781 So.2d 1103, 1110 (Fla. 1st DCA 2000) (on reh’g), denial of a motion for rehearing is “impelled by the long-established rule that authorities not cited and issues not raised in the briefs or on oral argument cannot be raised for the first time on motion for rehearing.”

All five of the cases cited are distinguishable. Although some of claimant’s arguments regarding lack of notice are similar to those raised and rejected in Farhangi, that case is distinguishable because there was no assertion in Farhangi, as there was here, that claimant had exhausted the grievance procedures. This is not a case, such as Capuano, where approved provisions of the managed care arrangement were effectively struck. Moreover, this is not a case involving resolution of a dispute about medical care arising under the managed care arrangement. Rather, it is simply a case in which this court has found an absence of competent, substantial evidence to support the judge’s finding that he lacked “jurisdiction to decide this matter as there is no evidence indicating that the managed care grievance procedures have been exhausted.” To the contrary, as explained in our opinion, the evidence clearly demonstrates that claimant followed the minimum procedures set forth in Florida Administrative Code Rule 59A-23.006, that appellees failed to timely respond to claimant’s grievance, and that the grievance procedure was exhausted by default under the time guidelines. Nothing in section 440.134, Florida Statutes (Supp.1998), or any of the above cases suggests that the JCC is without jurisdiction to proceed with a petition once the grievance procedures have been exhausted. Moreover, the fact that the petition was docketed with the JCC implies that all prerequisites to the filing were satisfied. Compare Rudd, 751 So.2d at 757.

Appellees’ motion for rehearing and rehearing en banc is DENIED.

BOOTH and BROWNING, JJ., concur.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Greg SPAIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3278.
    District Court of Appeal of Florida, Second District.
    April 16, 2003.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Greg Spain appeals the denial of his motion to withdraw his plea or, in the alternative, motion to set aside his cooperation agreement with the State.- After Spain allegedly violated the terms of the cooperation agreement, the circuit court increased his sentence. As we will explain, it had no jurisdiction to do so. We reverse and remand with directions to reimpose Spain’s original sentence.

On July 24, 2000, Spain pleaded guilty to two drug crimes and obstructing an officer without violence. The circuit court sentenced him to sixty months’ imprisonment as a habitual offender on one drug count; fifteen years’ imprisonment as a non-habitual offender on the other drug count; and time served on the obstructing charge. Then, on August 3, 2000, Spain and the State entered into an agreement under which he was to assist in narcotics investigations. The agreement called for the circuit court to vacate Spain’s sentence on count one.. Within ninety days, he was to be resentenced. The agreement provided that if Spain failed to abide by its terms, he would be señtencéd to the maximum term of imprisonment allowed, thirty years, and that under no circumstances would he be permitted to withdraw his previously entered plea. The cooperation agreement did not state what sentence Spain' would receive if he fulfilled its terms. After Spain allegedly violated the cooperation agreement, the circuit court, on April 30, 2001, sentenced him to thirty years’ imprisonment on count one and reimposed the fifteen years’ imprisonment on count two.

We need not address the question of whether Spain actually violated the cooperation agreement, although, given the agreement’s vague language, we have some doubt that he did. Instead, we set aside the agreement and the sentence imposed pursuant to it because the court had no jurisdiction to increase Spam’s sentence-. See Robie v. State, 807 So.2d 781, 783 (Fla. 2d DCA 2002) (holding that when a court renders a judgment and sentence, it has no jurisdiction to later increase that sentence).

A circuit court retains jurisdiction to correct, reduce or modify a criminal defendant’s sentence, but only under certain circumstances. For example, a court may correct an illegal sentence at any time, Fla. R.Crim. P. 3.800(a), or it may reduce or modify a sentence within sixty days of its imposition, Fla. R.Crim. P. 3.800(c). In fact, Spain filed a rule 3.800(c) motion seeking to modify his sentence, but he did not state how he wanted it modified. While that rule did give the court jurisdiction to vacate Spain’s sixty month sentence, it did not give it jurisdiction to increase his sentence some eight months later. See State v. English, 400 So.2d 570, 571 (Fla. 2d DCA 1981); see also Wolfson v. State, 437 So.2d 174, 175 (Fla. 2d DCA 1983).

The State may also reinvoke a circuit court’s jurisdiction under Florida Rule of Criminal Procedure 3.170(g) if a defendant fails to comply with the specific terms of a plea agreement. We first note that the State did not file such a motion in this case. Even if it had, it is doubtful that rule would apply. The cooperation agreement in this case was not a part of Spain’s plea agreement. Moreover, rule 3.170(g) contemplates that the defendant’s plea, as well as his sentence, will be vacated.

In short, the circuit court had no jurisdiction to honor or enforce the terms of the cooperation agreement, and the parties were not empowered to grant that jurisdiction by their contract. See State ex rel. Caraker v. Amidon, 68 So.2d 403 (Fla.1953) (holding that jurisdiction is conferred upon a court by the constitution or a statute and not by agreement between the parties).

We reverse the denial of Spain’s motion to set aside the cooperation agreement and remand with directions to reimpose the original sentence in this case.

CASANUEVA, J., and DANAHY, PAUL W., Senior Judge, Concur.


author: FULMER, Judge.

text:
    Deaunte D. REGISTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2291.
    District Court of Appeal of Florida, Second District.
    April 23, 2003.
   FULMER, Judge.

Deaunte D. Register challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Register failed to present a facially sufficient claim, we affirm the trial court’s order.

In his motion, Register alleged that the three-year mandatory minimum term of imprisonment for trafficking in cocaine was illegally imposed. Register based his claim on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of the mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying Register’s motion, the trial court found that “[a]s of April 29, 2002, the Florida Legislature cured the single subject violation by re-enacting the provisions contained in Chapter 99-188 and providing for retroactive application to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

If Register’s offense occurred within the Taylor window, he is entitled to be resen-tenced under the valid law in effect at the time of the offense. See Green, 839 So.2d 748. However, Register failed to present a facially sufficient claim for relief under rule 3.800(a) since he failed to affirmatively allege that he committed the offense on a date within the Taylor window. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003). We therefore affirm the order of the trial court without prejudice to any right Register might have to file a facially sufficient claim. See id.

Affirmed.

NORTHCUTT and STRINGER, JJ„ Concur.


author: FARMER, J. FARMER, C.J.

text:
    Kenneth ZACKERY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3909.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Order Granting Rehearing July 16, 2003.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Consuelo Maingot, Assistant Attorney General, Fort Lauderdale, for appellee.
   FARMER, J.

The issue in this conviction for armed robbery and use of a false name is whether defendant waived his right to conclude closing argument by offering into evidence two still photographs he made from a videotape entered into evidence by the state. We hold that he did waive the right by the evidence and affirm.

Rule 3.250 provides in part as follows:

“a defendant offering no testimony in his or her own behalf, except the defendant’s own, shall be entitled to the concluding argument before the jury.”

Fla. R.Crim. P. 3.250. In spite of the literal text, which appears to apply only to testimony, this rule applies as well to documentary evidence. See Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Crosby v. State, 90 Fla. 381, 106 So. 741 (1925); and Gari v. State, 364 So.2d 766, 767 (Fla. 2d DCA 1978) (“The state properly notes that, ordinarily, the introduction of documentary evidence by a defendant forfeits his right to make the concluding argument.”). Consequently, unless there is an exception to what appears to us to be a clear rule, the trial judge did not err in refusing defendant’s claim to close the argument.

Defendant argues that he is in the identical position and entitled to the same exception as the defendant in Gan. There, during the state’s case a witness interpreted a statement defendant had written for the police in Spanish. Later, defendant offered a writing of an English translation of the same document as evidence, and it was admitted. In finding that he had not thereby waived his right to conclude the argument, the court said:

“After introducing the appellant’s Spanish, handwritten statement, the state caused the statement to be read to the jury in English by a translator. It was only thereafter that the appellant introduced as an exhibit an English transcription of the same statement. Under these circumstances, the appellant’s introduction of this exhibit could not deprive him of his important right to make the concluding argument.”

364 So.2d at 767. The court’s rationale was that the written version of the translation was “actually part of the state’s evidence even though the defendant himself later introduced the note into evidence.” Id. In short, because the state had read the translation as part of its own evidence, merely adding a writing what was read could not possibly amount to a defendant “offering [evidence] in his own behalf’ as the rule provides.

The flaw in defendant’s argument here is that the state offered only the video tape. Still photographs, even if made from the tape, were not part of the state’s case. The still photos were enlarged versions of something from the video and showed in more detail what might not have been apparent merely watching the video itself. Thus, defendant offered evidence in addition to that which the state offered and thereby waived the right to conclude closing argument. See Scott v. State, 559 So.2d 269, 273 (Fla. 4th DCA 1990) (“Since appellant opted to introduce other parts of the tape in his case, the trial court did not abuse its discretion when it refused to grant him final closing argument.”).

We do not gainsay the importance of the right to conclude final argument. Nonetheless, the right is not unqualified, or the rule would not exist. Because it is a rule of clear import, it is not ours to erode by adding our own exceptions or by enlarging it beyond its clear meaning. Under the terms of the rule, if a defendant wants to preserve the right to close, he is limited to his own testimony once the case has been passed to him by the state. We do not address, however, what the outcome should be if before trial the tape had been transformed from ordinary videotape into a computer presentation and, during cross-examination of the state’s witness testifying as part of the computer presentation, the action was frozen and enlarged for questioning.

AFFIRMED.

STEVENSON and HAZOURI, JJ., concur.

On Motion For Rehearing

FARMER, C.J.

In his motion for rehearing, defendant advises for the first time that the “videotape” used by the prosecution at trial was not in fact a conventional videotape of a motion picture depicting continuous action. Instead defendant asserts that it was:

“merely a collection of [still] photographs put together by the prosecution onto a tape to simulate movement and was a mere imitation of a videotape.”

The State has responded by arguing that defendant’s description of the “videotape” is not accurate. In the words of the State, the “videotape” presented at trial was:

“a single video recording device which was fed sequentially from a number of cameras located around the store. Each shot from the cameras fed into the single recording device frame by frame, so that, as the store manager described, it did not ‘go like a normal mode,’ like if you were watching a VCR movie. It just depicts frame by frame.”

To resolve this conflict, we have ourselves actually viewed the “videotape” presented by the State at trial.

What the State neglects to admit in its response to the motion for rehearing is that cameras fed only still photographs into the recording device, not conventional motion pictures. Hence we conclude that defendant’s description is more accurate than the State’s. The “videotape” presentation at trial was nothing more than an assemblage of still photographs and not a videotape of a continuous action, motion picture, as we were led to believe in the briefs.

Applying, therefore, the rationale of our original opinion in this case, we conclude that the still photographs offered by defendant were nothing more than duplicates of individual still photographs included in the “videotape” adduced by the State. In that light, defendant’s evidence qualifies as the functional equivalent of the translation in Gari v. State, 364 So.2d 766 (Fla. 2nd DCA 1978). For that reason, it was error to refuse to afford defendant the right conferred by rule 3.250 to open and close final argument.

Accordingly, we grant the motion for rehearing. The judgment of conviction is reversed, and the case is remanded for a new trial.

STEVENSON and HAZOURI, JJ„ concur.

      . The court’s opinion does not indicate who prepared defendant's English translation or whether it differed in any respect from that which the interpreter read to the jury during the state's case. We assume from this silence that there was no material difference in the oral and written translations.


text:
    Stephen MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2953.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.
   FULMER, Judge.

Stephen Murphy challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In his motion, Murphy alleged that he pleaded to trafficking in more than 28 but less than 200 grams of cocaine. He further alleged that the three-year mandatory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(1)(b)(1)(a), Florida Statutes (1999), is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found: “As of April 29, 2002, the Florida Legislature cured the single subject rule violation by reenacting the provisions originally contained in Chapter 99-188.... In so doing, the Florida Legislature provided for the retroactive application of each reenactment to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Murphy alleged that he committed the offense of trafficking in cocaine on July 17, 1999, which is within the Taylor window. See Green, 839 So.2d at 750 n. 1. Murphy has therefore presented a facially sufficient claim. See Sims, 838 So.2d 658. We reverse the order of the trial court and remand for further consideration of Murphy’s claim. If Murphy is correct that the trial court imposed a mandatory minimum pursuant to section 893.135(l)(b)(l)(a) where the offense was committed within the Taylor window, the trial court shall resentence him under the 1997 version of that statute. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

WHATLEY and SALCINES, JJ., concur.


author: CASANUEVA, Judge.

text:
    Joe Alan GOLAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4073.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.
   CASANUEVA, Judge.

Joe Alan Golan challenges the order of the trial court dismissing his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In his motion, Golan alleged that he pleaded to trafficking in amphetamine. He further alleged that the three-year mandatory minimum term of imprisonment imposed by the trial court is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In 2002, the legislature enacted chapters 02-208, 02-209, 02-210, 02-211 and 02-212, Laws of Florida which reenacted the provisions originally contained in chapter 99-188. The reenactment was retroactive to July 1, 1999. See Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). In Green, this court held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Golan alleged that he committed the offense of trafficking in amphetamine within the Taylor window. See Green, 839 So.2d at 750 n. 1. Therefore, Golan has presented a facially sufficient claim for relief. See Sims, 838 So.2d 658. The trial court dismissed Golan’s motion without prejudice to refile pending review of Taylor in the Florida Supreme Court. However, on May 29, 2002, prior to the issuance of the trial court’s order, the State filed a voluntary dismissal of its petition for review. See State v. Taylor, 821 So.2d 302 (Fla.2002) (table).

Therefore, we reverse the order of the trial court and remand for further consideration of Golan’s claim. If Golan is correct that the trial court imposed a three-year mandatory minimum for trafficking in amphetamine where the offense was committed within the Taylor window, the trial court shall resentence him under the 1997 version of the statute. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

WHATLEY and SALCINES, JJ., Concur.


text:
    Thaddeus SLOVENSKI, Appellant, v. Lois L. WRIGHT, Appellee.
    No. 2D02-2494.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
    Rehearing Denied June 13, 2003.

      Dale Brewster, St. Petersburg, for Appellant.
    Elizabeth G. Mansfield of Carnal & Mansfield, P.A., St. Petersburg, for Appel-lee.
   CASANUEVA, Judge.

Thaddeus Slovenski appeals from a final judgment for protection against domestic violence entered against him. We reverse the judgment for three reasons. First, the trial court’s initial determination that Lois L. Wright and Thaddeus Slovenski did not meet the statutory definition of family or household members as provided by section 741.28(2), Florida Statutes (2001), was correct. Second, the trial court did not have the procedural authority to reverse its judgment in Ms. Wright’s case after hearing evidence on a petition for protection against repeat violence brought by Morris Cohen against Mr. Slovenski. And third, the evidence presented in the Cohen case did not provide a basis for reversing the judgment in this case.

Section 741.30(1), Florida Statutes (2001), provides that family or household members may seek an injunction for protection against domestic violence. Under the statute, family or household members are “persons who are presently residing together as if family or who have resided together in the past as if family.” § 741.28(2).

During the trial, Ms. Wright testified that she and Mr. Slovenski had previously been involved in a two-year romantic relationship. She also testified that they did not reside together and did not live together as a family. Ms. Wright indicated that she maintained her residence in her home while Mr. Slovenski maintained a separate residence in his condominium. Mr. Slo-venski also testified that the parties did not live together.

Following the close of evidence, the trial court concluded that Ms. Wright lacked standing to bring the action and had failed to establish the elements of domestic violence. The trial court also advised Ms. Wright of her right to appeal the court’s decision, further indicating the finality of the judgment just entered.

At the conclusion of the Wright case, the court heard a second case against Mr. Slovenski brought by Ms. Wright’s current boyfriend, Morris Cohen. After hearing the testimony in the Cohen case, the trial judge changed his mind regarding the judgment in the Wright case and granted Ms. Wright’s petition for a domestic violence injunction.

First, we address whether the trial court’s initial determination that Ms. Wright lacked standing to bring the domestic violence injunction was correct and conclude that it was. To establish standing under this statute, something more than a romantic relationship with overnight visits is required. If the parties are not related by blood or marriage — present or past, they must have resided together as though they were a family unit at some time. Because Ms. Wright and Mr. Slovenski were unrelated and maintained separate residences throughout their relationship, Ms. Wright did not establish that she was a family or household member. Thus, Ms. Wright lacked standing to bring the domestic violence petition. See Partlowe v. Gomez, 801 So.2d 968, 969 (Fla. 2d DCA 2001) (noting that the instructions for Florida Family Law Form 12.980(b), Petition for Injunction Against Domestic Violence, specifically warn that the domestic violence laws “only apply if the respondent is ... living with you now or has lived with you in the past (if you are or were living as a family)”; and, if the domestic violence injunction is not applicable, the petitioner is directed to look at the Petition for Injunction for Protection Against Repeat Violence, Florida Family Law Form 12.980(g)).

In addition, the trial court did not have the procedural authority to reverse its earlier legal determination. Although Florida Rule of Civil Procedure 1.530(d) does permit a trial court, on its own initiative, to order a new trial, the trial court never indicated to the parties its intention to invoke the rule and did not cite any legal reason permitting an award of a new trial. Furthermore, the court did not order a new trial but simply reversed its previously entered judgment.

Finally, the evidence in the Cohen case did not provide a basis for reversing the judgment in the Wright case. Assuming that the trial court could consider the evidence presented in the Cohen case, no new evidence was presented on the standing issue. Thus, there was no legal basis to conclude that the standing requirement had been met.

Reversed and remanded with instructions to enter an order denying the petition for injunction against domestic violence.

WHATLEY and SILBERMAN, JJ., concur.


author: WHATLEY, Judge.

text:
    Scott Waldemar KARO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3324.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
   WHATLEY, Judge.

Scott Waldemar Karo challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s order in part, reverse in part, and remand for further proceedings.

In his motion, Karo alleged that he entered a plea to trafficking in more than 200 grams but less than 400 grams of cocaine. He further alleged that the seven-year mandatory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(l)(b)(l)(b), Florida Statutes (1999-2000), is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Karo also alleged that he pleaded guilty in another trial court case to trafficking in more than 400 grams but less than 150 kilograms of cocaine. He alleged that the fifteen-year mandatory minimum term of imprisonment imposed pursuant to section 893.135(l)(b)(l)(c) is illegal pursuant to Taylor. A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found that the legislature cured the single subject rule violation by reenacting the provisions originally contained in chapter 99-188 and that the reenactment was retroactive to July 1, 1999. However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Karo alleged that the dates of the commission of the offenses in question fall within the Taylor window. See Green, 839 So.2d at 750 n. 1. Therefore, Karo has presented a facially sufficient claim in regard to the offense of trafficking in cocaine in an amount of more than 200 but less than 400 grams of cocaine. See Sims, 838 So.2d 658.

We reverse the order of the trial court and remand for further consideration of this particular claim. If Karo is correct that the trial court imposed a mandatory minimum pursuant to section 893.135(l)(b)(l)(b) where the offense was committed within the Taylor window, the trial court shall resentence him under the 1997 version of that statute. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Karo is not entitled to relief on his claim that the fifteen-year mandatory minimum term of imprisonment imposed pursuant to section 893.135(l)(b)(l)(c) is an illegal sentence since that section was not affected by the amendments to section 893.135 contained in chapter 99-188. See Rowe v. State, 839 So.2d 916 (Fla. 2d DCA 2003). Therefore, we affirm the denial of this claim.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.


author: OLIVER L. GREEN, Senior Judge. DAVIS, Judge,

text:
    Frank Paul CILLO, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4394.
    District Court of Appeal of Florida, Second District.
    May 7, 2003.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   OLIVER L. GREEN, Senior Judge.

Frank Paul Cilio appeals his judgments for committing a lewd, lascivious or indecent act on a child less than sixteen years of age. He argues that the trial court erred in denying the motion to suppress his confession because the confession was obtained in violation of his Miranda rights. The trial court denied the motion, finding that Mr. Cilio was not in custody when the statements were made and that the statements were voluntary. We affirm.

When reviewing a motion to suppress, the standard of review for the trial court’s application of the law to its factual findings is de novo, but a reviewing court must defer to the factual findings of the trial court that are supported by competent, substantial evidence. State v. C.F., 798 So.2d 751 (Fla. 4th DCA 2001). A trial court ruling regarding the voluntary nature of a statement comes to the appellate court with a presumption of correctness, and it cannot be reversed unless it is clearly erroneous. State v. Sawyer, 561 So.2d 278 (Fla. 2d DCA 1990).

In the instant case, Detectives Dominic lorio and Robert Bang of the Sarasota County Sheriffs Department went to Mr. Cillo’s home on the morning of May 10, 2000. Detective lorio asked Mr. Cilio if he would go to the sheriffs office and talk with them. Mr. Cilio indicated that he would but that he did not have a working vehicle. Detective lorio said that he would be “glad to provide a ride” to Mr. Cilio, and Mr. Cilio agreed to go with them. Before the interview began, Detective lor-io read Mr. Cilio his Miranda rights. Mr. Cilio responded, “I have a lawyer, but I don’t know if I can get ahold of him right now.” Detective lorio then asked Mr. Cil-io why he needed a lawyer, because “[y]ou don’t even know what we’re going to talk about.” Thereafter, Mr. Cilio stated that it depended on “what this is all about, whether I’m going to answer any questions without my lawyer.”

Mr. Cilio argues that his request for an attorney was unequivocal, and therefore, the detectives should have ended the custodial interrogation at this point. We conclude that Mr. Cillo’s request for an attorney was not an unequivocal request for counsel. See Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding that the appellant’s statement, “maybe I should talk to a lawyer,” was not a clear request for counsel); Long v. State, 517 So.2d 664 (Fla.1987) (holding that the statement, “I think I might need an attorney” was an equivocal request for counsel), overruled on other grounds, State v. Owen, 696 So.2d 715 (Fla.1997) (“If the statement is ambiguous or equivocal, then the police have no duty to clarify the suspect’s intent, and they may proceed with the interrogation.”).

However, even if Mr. Cillo’s statement was an unequivocal request for counsel, the detectives were not required to terminate the interview because Mr. Cilio was not being subjected to custodial interrogation. See Edwards v. Arizona, 451 U.S. 477, 485-486, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that absent custodial interrogation, there is no infringement of the Fifth Amendment right to have counsel present even where a suspect requests an attorney, and therefore, there would be no occasion to determine whether there had been a valid waiver of this right).

We agree with the trial court that Mr. Cilio was not in custody and was therefore not subject to custodial interrogation under Edwards. In determining whether a person is in custody for purposes of Miranda, the inquiry is whether the person was taken into custody or significantly deprived of his freedom of action. California v. Beheler, 463 U.S. 1121, 1123, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). A person is not considered to be in custody merely because the questioning took place at the police station ■ or the questioned person is one whom the police suspect. Id. at 1125,103 S.Ct. 3517.

In Ramirez v. State, 739 So.2d 568, 574 (Fla.1999), the Florida Supreme Court adopted the following four-factor test to determine whether a person is in custody:

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Here, Detective lorio testified that Mr. Cilio went to the sheriffs office voluntarily. Mr. Cilio was never told that he had to go to the sheriffs office, and he never indicated that he did not want to go. During the subsequent interview, Detective lorio asked Mr. Cilio, “You voluntarily come down here with us today?” Mr. Cilio responded in the affirmative. Therefore, the manner in which the detectives summoned Mr. Cilio for questioning did not suggest that he was “significantly deprived of his freedom of action.” Beheler, 463 U.S. at 1123, 103 S.Ct. 3517. See Bedoya v. State, 779 So.2d 574, 579 (Fla. 5th DCA 2001) (holding that appellant was not in custody where police gave him a ride to police station for interview and had incriminating evidence against him).

Regarding the second factor in Ramirez, the questioning in the case at bar took place at the sheriffs office, but there was no evidence suggesting a coercive atmosphere during the interview. Mr. Cillo’s interview was recorded on video. This panel observed the videotaped interview with varying reactions. The videotape is of excellent quality, which is probably in part due to the depicted room. The room was the size of a large walk-in closet. The only furniture in the room was three chairs, one of which Mr. Cilio occupied. Mr. Cillo’s chair was located in the corner farthest from the door. The atmosphere of the interview was conversational, and no threats or promises were made.

It appears that Mr. Cilio was at all times composed and reasonably responsive in his verbal answers. At no time did he give an appearance of being intimidated or subdued by the presence of the detectives or the questions being asked. At one point during the interview, Detective lorio leaned towards Mr. Cilio with no visible response from Cilio. On occasions, Mr. Cilio stood up abruptly to retrieve an object from his pocket. There is no visible reaction on the part of either detective to this sudden movement by Mr. Cilio.

Additionally, neither detective raised their voice during the interview. At one point, Mr. Cilio began to yell, but after Detective lorio asked him to not “disrespect” him, Mr. Cilio calmed down. Consequently, the second factor outlined in Ramirez does not suggest that Mr. Cilio was in custody at the time of the interview.

We note that even if there had been evidence of a coercive atmosphere, the Supreme Court has concluded that a noncustodial situation is not converted to a custodial one simply because, in the absence of any formal arrest or restraint on freedom of movement, the interview took place in a coercive atmosphere. Beheler, 463 U.S. at 1124, 103 S.Ct. 3517. See Davis v. State, 698 So.2d 1182, 1188 (Fla.1997) (concluding that sole fact that police had warrant for appellant’s arrest at the time he went to the police station did not establish that he was in custody). Although Mr. Cilio claims that Detective Bang’s chair was blocking the door to the interview room, it appears from the video that it is not. The detectives were able to open and close the door without having to move the chair, and the chair was not moved in front of the door when the detective sat down. However, the detectives’ presence and position in the room could have been an obstruction to Mr. Cillo’s departure from the room.

In relation to the third Ramirez factor, Detective lorio did inform Mr. Cilio of the victim’s allegations. However, this factor standing alone does not support the conclusion that Mr. Cilio was in custody. See State v. Rodriguez, 785 So.2d 759, 761 (Fla. 3d DCA 2001) (holding that appellee was not in custody when he was questioned at the police station and confronted with incriminating recorded phone calls).

The fourth factor in Ramirez is whether the suspect is informed that he or she is free to leave the place of questioning. In the instant case, before the interview began, Detective lorio told Mr. Cilio that he was not under arrest and that he could leave at any time. Consequently, the final factor in Ramirez was not indicative of a custodial interrogation. See State v. Scott, 786 So.2d 606 (Fla. 5th DCA 2001) (concluding that appellee was not in custody even though police did not tell her she was free to leave where there was nothing in the record to suggest that her freedom of movement was curtailed in any manner). Additionally, later during the interview Detective lorio asked Mr. Cilio, 'You talking to us now voluntarily?” Mr. Cilio responded in the affirmative.

We conclude that a reasonable person placed in the same position would not believe that “his or her freedom of action was curtailed to a degree associated with actual arrest.” Ramirez, 739 So.2d at 573. Based on the totality of the circumstances, in light of the discretion vested in trial judges to weigh all facts in such interviews, we conclude that the State carried its burden in establishing that the interview was not transformed into a custodial interrogation. Accordingly, we affirm Mr. Cillo’s judgments and sentences.

Affirmed.

COVINGTON, J., Concurs.

DAVIS, J., Dissents with opinion.

DAVIS, Judge,

Dissenting.

After personally reviewing the videotape of the detectives’ questioning of Cilio, I must respectfully dissent from the majority’s opinion. The legal conclusions that Cilio was not in custody for the purposes of Miranda and that Cilio did in fact waive his Miranda rights are given a de novo review. See Connor v. State, 803 So.2d 598 (Fla.2001); State v. Ernst, 809 So.2d 52 (Fla. 5th DCA 2002). Furthermore, the findings of fact of the trial court are subject to a higher review than the usual “clearly erroneous” test because this court has the opportunity to review the same evidence viewed by the trial court at the suppression hearing. See Thompson v. State, 548 So.2d 198, 204 n. 5 (Fla.1989).

My evaluation of the totality of the circumstances leads me to conclude that this was in fact a custodial interrogation and that Cilio did not knowingly and freely waive his right to counsel prior to the questioning regarding the offenses for which he was subsequently charged.

These legal conclusions are based on the location of the interview; the size of the room; the proximity of the detectives to Cilio, particularly during the questioning regarding the accusations against him; the manner of the questioning; and the intent of the detective to discourage Cilio from calling his attorney, all of which, I believe, would have caused a reasonable person to believe that he was not free to leave but rather was being questioned as though he was under arrest. See Traylor v. State, 596 So.2d 957 (Fla.1992); State v. Alioto, 588 So.2d 17 (Fla. 5th DCA 1991).

I also disagree with the majority’s conclusion that Cilio waived his right to have an attorney present during questioning. It is undisputed that when the detective advised Cilio of his right to an attorney, Cilio mentioned that he had an attorney but was unsure if he could be reached. While the majority does not interpret this statement as a request for counsel, I must disagree. Not only do I believe that a fair reading of Cillo’s statement reveals it to be a request for counsel, but the detective on the scene clearly believed it to be such, given his immediate response to Cilio, “Why do you need an attorney? You don’t even know what we are going to talk about.” The detective then attempted to dissuade Cilio from his request. Ignoring Cillo’s earlier request, the detective asked Cilio if he would talk with them, and Cilio responded, “Not if I don’t know what it’s about.” The detective responded: “Well, how am I going to explain what this is about unless I can talk to you. You tell me how I can do that without talking to you and I’ll do that. I don’t think I can. Okay?” When the detective then asked a second time if Cilio would talk with them, Cilio responded that he was not sure but that he may need his attorney depending on what the questions were about. Clearly, Cilio had not been dissuaded from his earlier request. He cannot be said to have waived his right as of that time.

Undeterred, the detective then began to ask Cilio questions regarding a recent criminal mischief incident in which Cilio had been the victim. After four to five minutes of such “safe” questioning, the detective suddenly changed gears and quickly moved his chair to within inches of Cillo’s person, resulting in a face-to-face confrontation. He then began to sharply question Cilio regarding the serious sexual accusations that had been made against him. This was the first indication of the real purpose of the interview. Given these facts, I must conclude that despite the detective’s numerous attempts to encourage Cilio to waive his right to counsel, Cilio never made a knowing and voluntary waiver of his right to an attorney, but rather acquiesced and responded to the accusations made against him.

I would therefore reverse the trial court’s denial of the motion to suppress.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Christopher GADSEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3257.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
   WHATLEY, Judge.

Christopher Gadsen appeals the summary denial of his motion to correct illegal sentence. Although we approve the trial court’s conclusion that Gadsen is not entitled to relief under Heggs v. State, 759 So.2d 620 (Fla.2000), we reverse. Gadsen was habitualized for posession of cocaine, which is not among the enumerated felonies on which a defendant may be sentenced as a habitual felony offender. See § 775.084(l)(a)(3), Fla. Stat. (1997). We therefore reverse Gadsen’s habitual felony offender sentence for possession of cocaine and remand to the trial court for resen-tencing according to the sentencing guidelines in effect at the time of his offense. Reversed and remanded for resentencing.

SALCINES and STRINGER, JJ., Concur.


text:
    Ingeborg KRIEGER, as Trustee for the Ingeborg Krieger Revocable Trust, Appellant, v. The TOWN OF LONGBOAT KEY, Appellee.
    No. 2D02-1015.
    District Court of Appeal of Florida, Second District.
    May 14, 2003.
    Rehearing Denied June 13, 2003.

      Ingeborg Krieger, pro se.
    William R. Pomeroy of William R. Pom-eroy, P.A., Sarasota, for Appellee.
   NORTHCUTT, Judge.

This dispute concerns a strip of land (the “Beach”) in the Town of Longboat Key that borders Sarasota Bay and that lies across the street from property owned by Ingeborg Krieger. Krieger and the Town disagreed about whether she had .an ownership interest in the Beach sufficient to entitle her to build a dock on the property. As a result, the Town filed a declaratory judgment action asking the circuit court to determine the ownership, posses-sory, and use rights regarding the Beach, and asserted additional claims for relief. Krieger filed a counterclaim also seeking a declaration of rights and stating sundry other bases for relief. The circuit court entered a final judgment in favor of the Town based in part on the theory that the Beach had been dedicated to public use. We agree with Krieger that the Town failed to prove a valid, dedication. Accordingly, we reverse that ruling in the final judgment. But, as we will discuss later, we affirm the rest of the judgment.

The parties’ arguments concerning the dedication of the Beach to public use centered on a plat of the Longbeach subdivision recorded January 23, 1914, by the subdivision’s owners, R.P. Jordan, Lorenz Willig, and Street Lightfoot. The plat showed lots, a park, a hotel site, an anchor basin, and streets. Along the perimeter of the subdivision, next to Sarasota Bay and the Gulf of ■ Mexico, was a strip of land marked “Beach Ave.” in some places, and “Beach” in others.

Over the next five years, lots were sold pursuant to the plat. Also during that period, Jordan acquired Wilhg’s and Light-foot’s interests in the subdivision. In 1919, Jordan conveyed to the purchasers of Lot 1 the riparian rights and “the strip of land in front of [lot 1] marked ‘Beach,’ excepting that portion of the said ‘Beach’ fifty feet wide reserved for street purposes.” Part of Lot 1 eventually became Krieger’s property.

By 1925, the Longbeach Company owned the subdivision, excluding the lots that had already been sold to private owners. It filed another plat of the Long-beach subdivision on September 28, 1925. In that plat, the Longbeach Company stated that it was the owner of all the land in the subdivision except for certain parcels. The entire block containing what is now Krieger’s property was specifically excluded from the Longbeach Company’s statement of ownership. The plat stated that Longbeach Company “dedicated to the use of the public forever all of the parks, parkways, streets, alleys, avenues, boulevards and highways shown [on] this map (or plat) of said Land.” The 1925 plat did not include the park, the hotel site, or the anchorage basin shown on the 1914 plat. Instead, those areas were divided into lots.

In 1925, the year the Longbeach Company recorded its plat, the legislature enacted chapter 10275, Laws of Florida (1925), establishing the requisites for a statutory dedication of property to public use. Previously, an owner of land could set certain lands aside for public use by a common law dedication. He could do so by filing a plat of his land showing areas devoted to streets, alleys, and public parks, and by recording the plat in the public records. City of Miami v. Fla. E. Coast Ry. Co., 79 Fla. 539, 84 So. 726, 729 (1920). The owner’s intention to dedicate had to be clearly indicated by his words or acts, and the public had to accept the dedication. Id. The owner could revoke an offer to dedicate at any time before the public accepted it. Id.

In the judgment before us the circuit court determined there were consummated dedications of the Beach property premised on offers to dedicate in the 1914 and 1925 plats. The court found that the 1914 common law offer was accepted by virtue of the public’s use of the land, and that the 1925 statutory offer was accepted by a 1950s municipal resolution and a 1960s ordinance. The evidence did not support these conclusions.

Assuming that the 1914 plat contained an offer by the owners to dedicate the Beach to public use, the 1919 deed to the buyers of Lot 1 conveying riparian rights and the adjacent portion of the Beach was, to that extent, inconsistent with the offer. Therefore, unless the public had accepted the 1914 offer to dedicate prior to the 1919 conveyance, the offer was revoked insofar as it affected the rights and property conveyed to the purchasers of Lot 1. See Marion County v. Gary, 88 So.2d 749, 750 (Fla.1956) (holding that a common law offer to dedicate may be revoked at any time before acceptance); City of Miami, 84 So. at 731 (observing that a common law offer to dedicate may be revoked by virtue of a subsequent conveyance of the property).

The Town offered no evidence at all that the public accepted the 1914 dedication. See Gary, 88 So.2d at 750 (explaining that the burden to establish dedication is on the party asserting it). It presented no documentary evidence of an official acceptance; instead, it argued that an acceptance was accomplished by public use of the Beach. See Bonifay v. Dickson, 459 So.2d 1089, 1094 (Fla. 1st DCA 1984) (noting that an acceptance of an offer of dedication may be implied from acts showing an intention to accept, such as use by the public). But the Town concedes that its proof of public use did not reach back to the years preceding 1919. It introduced evidence that the public had used the Beach for recreational purposes since at least the 1950s and possibly as early as the 1930s. That, however, did not support an acceptance of the 1914 dedication prior to the 1919 conveyance.

In fact, the 1925 plat filed by the Longbeach Company suggests that the 1914 offer to dedicate had never been accepted; otherwise, the area clearly designated as a “park” on the 1914 plat could not have become home sites on the 1925 plat. More importantly, the 1925 plat could not dedicate the portion of the Beach conveyed in Jordan’s 1919 deed because the Longbeach company did not own that land. Therefore, insofar as it affected rights and land conveyed in the 1919 deed, the circuit court’s determination that the 1925 plat gave rise to a statutory dedication was contradicted by the evidence. To the extent the judgment is founded on a dedication stemming from either the 1914 plat or the 1925 plat, it is reversed.

This holding may be of cold comfort to Krieger. As we mentioned earlier, the 1919 deed conveyed a portion of the Beach to the original purchasers of Lot 1 on the 1914 plat. But the deed to Krieger did not convey Lot 1 as such. As the circuit court correctly found, Krieger was deeded a parcel of land described only by metes and bounds. This unambiguous description did not include any part of the Beach. The circuit court also rightly found that a quitclaim deed to Krieger of an interest in a destroyed boathouse related only to personal property and did not create any ownership interest in real property. Accordingly, we affirm the judgment against Krieger on her claims for quiet title, injunctive relief concerning the Town dock, ejectment, and injunctive relief concerning her request for a dock permit, based on the fact that she does not presently own any part of the Beach.

We also affirm without comment the circuit court’s ruling that Krieger failed to prove she adversely possessed the disputed strip of land. Because the court did not reach the Town’s claims of adverse possession, prescriptive rights, or the right of customary use, our decision does not address those claims.

Reversed in part, affirmed in part.

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

      . We are aware that many problems exist in Krieger's chain of title. But those problems are not pertinent to the issue of dedication of the property to public use.

      . We realize that Lot 1 on the 1914 plat is not exactly the same as Lot 1 on the 1925 plat. This is one of the many problems in Krieger’s chain of title.


author: COVINGTON, Judge.

text:
    Jeanne BARBER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4986.
    District Court of Appeal of Florida, Second District.
    May 14, 2003.
   COVINGTON, Judge.

Jeanne Barber challenges the order of the trial court denying her motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In her motion, Barber alleged that she pleaded to trafficking in more than four but less than fourteen grams of hy-dromorphone. She further alleged that the three-year mandatory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(l)(c)(l)(a), Florida Statutes (2000), is illegal based on our opinion- in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent' on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found: “As of April 29, 2002, the Florida Legislature has cured the single subject rule violation by re-enacting the provisions originally contained in Chapter 99-188. The reenactment was retroactive to July 1, 1999.” However, this court in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Barber alleged that she committed the offense of trafficking in hydromor-phone in April 2001, which is within the Taylor window. See Green, 839 So.2d at 750 n. 1. Therefore, she has presented a facially sufficient claim. See Sims, 838 So.2d 658.

We reverse the order of the trial court and remand for further consideration of Barber’s claim. If Barber is correct that the trial court imposed a mandatory minimum pursuant to section 893.135(l)(c)(l)(a) where the offense was committed within the Taylor window, the trial court shall resentence her under the 1997 version of that statute. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

SALCINES and STRINGER, JJ., Concur.


author: COPE, J.

text:
    Robert Lee CLAY, James and Maria A. Kelly, Co-trustees of the James F. Kelly 1997 Family Trust and Edward Mauceri, John A. and Susan L. Maitner, John K. Moyant and Lichiung Moyant, and Kenneth J. Neuman, Appellants, v. MONROE COUNTY, Florida, Appellee.
    No. 3D01-2280.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Rehearing Denied July 9, 2003.

      Greenman & Manz and Franklin D. Greenman, Marathon, for Appellants.
    Morgan & Hendrick and Karen K. Cabanas, for Appellee.
    Frank A. Shepherd, Pacific Legal Foundation as Amicus Curiae.
    Before SCHWARTZ, C.J., and COPE and LEVY, JJ.
   COPE, J.

This is an appeal from the trial court’s denial of a petition for writ of mandamus and other relief. We affirm.

I.

The petitioners-appellants are owners of residential lots in improved subdivisions on Big Pine Key in Monroe County. Each applied for a building permit to construct a single family residence. In each case, Monroe County approved the building permit application. The property owners then made application under the Monroe County Rate of Growth Ordinance (“ROGO”) for an allocation which is required for the actual issuance of the building permit. See Monroe County Land Development Regulations § 9.5-120 et seq. Each owner received the required ROGO approval.

In the period 1996-98, each owner received a letter from the Monroe County Director of Planning advising that no building permit would be issued because of the concurrency requirements contained in the Land Development Regulations. The stated reason was:

Pursuant to Sections 9.5-291 and 9.5-292 of the Land Development Regulations, the Growth Management Department has been directed by the Board of County Commissioners to not issue building permits for all traffic generating development within the Big Pine Key Area due to the inadequate level of service on U.S. 1. The Planning Department will hold your allocation until the Level of Service on U.S. 1 through Big Pine [Key] reaches standard “C” or another agreement providing relief from the concurrency requirements is entered into between the County and the Department of Community Affairs (DCA).
The sixty day period during which an applicant must pick up the building permit after an allocation is issued will be put on hold until such a time comes when you are notified by the Planning Department to pick up your permit.

Standards for levels of service have been developed for U.S. Highway 1 based on methodology developed by the U.S. 1 Level of Service Task Force. Monroe County Land Development Regulations prohibit the issuance of building permits “unless the proposed use is or will be served by adequate public or private facilities.” Monroe County Land Development Regulation § 9.5-291. As relates to transportation on Big Pine Key, the definition of an adequate level of service is “C.” At the times pertinent here, the level of service on U.S. 1 in Big Pine Key was evaluated as “D” or worse.

In 1999, the owners filed their action against Monroe County, seeking a writ of mandamus requiring issuance of their building permits. The owners also requested a declaratory judgment and damages for permanent and temporary takings of their land, owing to the withholding of the building permits.

The trial court ruled in favor of Monroe County, and the owners have appealed.

II.

While this case was pending on appeal, Monroe County initiated a proceeding before a special hearing officer for a beneficial use determination on behalf of the owners of the twenty-one properties on Big Pine Key which had been held in abeyance because of the substandard service level on U.S. Highway 1. Relying on the County’s ROGO ordinance, the County requested a ruling authorizing the issuance of building permits to the twenty-one adversely affected owners. The special master recommended that the relief be granted, and in June 2002, the County Commission unanimously approved the special master’s recommendation.

Monroe County argues that as a result of the County Commission’s action, this part of the appeal has become moot. The County reasons that upon compliance with the specified conditions approved by the County Commission, the permits will be issued.

The owners maintain that the matter is not moot and ask this court to direct that a writ of mandamus be issued. The owners appear not to quarrel with most of the conditions, but do take issue with condition 2, which states:

If required, each property owner shall obtain a letter of coordination from the U.S. Fish and Wildlife Service and submit it to the Building Department prior to issuance of the building permit, unless the Habitat Conservation Plan for Big Pine Key is approved and eliminates this requirement.

As the County explained in its application to the special master, thirteen of the twenty-one properties are “required to obtain an environmental coordination letter from the U.S. Fish and Wildlife Service prior to permit issuance.” This derives from the federal agency’s jurisdiction under federal law.

It should go without saying that this court cannot override the jurisdiction of the U.S. Fish and Wildlife Service established under federal law. Condition 2 is appropriate and there is no legal basis on which we can override the jurisdiction of the federal agency. We conclude that the County Commission’s action has rendered moot that part of the case in which the owners requested issuance of a writ of mandamus and for that reason we affirm the denial of mandamus relief.

III.

The owners request that we reverse the portion of the trial court order which rejected their damages claim, and remand it for further proceedings. We decline to do so, and agree with the trial court’s rejection of that claim.

Where an owner is aggrieved by a land use ruling, the owner must exhaust the administrative remedies which are reasonably available before initiating a taking claim. Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 186-94, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Hodel v. Virginia Surface Minning & Reclamation Association, Inc., 452 U.S. 264, 297, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Galaxy Fireworks, Inc. v. City of Orlando, 842 So.2d 160, 164(Fla. 5th DCA 2003); Lost Tree Village Corporation v. City of Vero Beach, 838 So.2d 561 (Fla. 4th DCA 2002); Tinnerman v. Palm Beach County, 641 So.2d 523, 526 (Fla. 4th DCA 1994).

It appears that there were two avenues of administrative relief available to the owners. The Florida Statutes allow certain exceptions from concurrency requirements dealing with transportation facilities. § 163.3180(5)(a), Fla. Stat. (1997). This includes the allowing of a de minimis impact. Id. § 163.2180(6).

Effective in 1997, the concurrency statute stated that “an impact of a single family home on an existing lot will constitute a de minimis impact on all roadways regardless of the level of the deficiency of the roadway.” Id. See ch. 97-253, § 1, Laws of Fla. Thus, the owners had an avenue of potential relief but no request for relief under subsection 163.3180(6) was made.

Beyond that, subsection 163.3180(11), Florida Statutes, provides a specific procedure whereby local government can allow a landowner to proceed with development notwithstanding the failure to satisfy transportation concurrency, when a five-part test is met. Here too, the owners had an avenue for relief which was not pursued. Consequently, damages may not now be sought on the theory that there has been a temporary or permanent taking.

IV.

The owners argue that there was an unlawful delegation of legislative authority to the director of planning, insofar as he advised the owners that the building permits could not be issued on account of the deficiencies in U.S. Highway 1 on Big Pine Key. We agree with Judge Taylor that the planning director simply enforced the Land Development Regulations as written, and that there was no unlawful delegation.

The owners argue that each year when the level of service report was received by the County relating to U.S. Highway 1, the report had to be adopted by the County as an ordinance. We see no basis for that assertion and agree with trial court’s rejection of it.

The owners argue that the refusal to issue building permits on Big Pine Key on account of the concurrency problem amounted to a change of the map designation of the land on Big Pine Key or amounted to a building moratorium, which had to be adopted as ordinances. Again, we agree with the trial court in rejecting this claim. The Planning Director acted pursuant to an already existing ordinance which established the concurrency requirements.

V.

For the stated reasons, the trial court’s order is affirmed.

       There was, however, an exception to this exception stating that "no impact will be de minimis if it would exceed the adopted level of service standard of any affected designated hurricane evacuation route.” Id.


author: WARNER, J.

text:
    OFFICE PAVILION SOUTH FLORIDA, INC., Appellant, v. ASAL PRODUCTS, INC., a Florida Corporation, Appellee.
    No. 4D02-368.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.
    Rehearing Denied July 29, 2003.
    Mark D. Solov and Christopher L. Barnett of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, for appellant.-
    Keith T. Grumer and Maidenly Sotuyo-Macaluso of Grumer & Levin, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

Appellee, ASAL Products, Inc. (“ASAL”), an office supply wholesaler, sued appellant, Office Pavilion,. an office supply company, for breach of a contract to supply chairs. Office Pavilion contended that the contract was unenforceable, as it was not supported by consideration and was indefinite. The trial court denied all motions directed to the enforceability of the contract, and after trial, the jury returned a substantial verdict in favor of ASAL. We hold, however, that the contract for the purchase of chairs was not enforceable and reverse.

Office Pavilion (“Pavilion”) is a subsidiary of Herman Miller, Inc., a corporation which manufactures and distributes office furniture throughout the United States and Europe and is the exclusive distributor of Herman Miller office products in South Florida. Bernd Stier is a German wholesaler and reseller of office-furniture and equipment mainly in Germany but also in other parts of Europe. Stier hired Oh-ver Asel, a former employee of Pavilion, and the two formed ASAL in Florida in order to facilitate purchasing Herman Miller keyboard trays from Pavilion to resell to Stier’s customers in Europe.

Asel contacted Pavilion’s sales manager, Gary Kemp, to negotiate a contract for the sale of keyboards. After months of negotiations, on December 28, 1998, they entered into a two-year contract for keyboard trays. The contract provided, in part:

2. Purpose of Contract:
The parties agree that the purpose for entering into this agreement is for Pavilion to supply and ASAL to purchase from Pavilion products known as keyboard trays, and accessories for those keyboard trays.
3. Delivery Times:
Pavilion agrees to supply ASAL with keyboard trays & accessories ordered by ASAL within 30 days of receipt of any orders up to 2,000 units per month and any accessories ordered by ASAL to supplement ordered units.
A “unit” is defined, for purposes of this contract as a keyboard tray. ■ An accessory is not a “unit” for purposes of calculating minimum and maximum order quantities.
4. Quantities:
ASAL agrees to order a minimum of 1,000 units per year. Pavilion agrees to supply ASAL with any and all quantities ordered by ASAL up to a maximum of 2,000 units per month plus the accessories for those ordered units.

The contract further provided that the unit price would be established by a separate writing, which included volume discounts. ASAL placed three orders for keyboard trays in amounts between 100 and 150, for which ASAL timely paid and Pavilion timely delivered.

Approximately a month after the contract was signed, ASAL became interested in expanding its contract to include Herman Miller’s Aeron chair, and Asel commenced negotiations with Kemp for this modification. While these negotiations were proceeding, ASAL marketed the chair in January and February, in addition to the keyboard tray, to determine demand for the chair. On March 11, 1999, Kemp forwarded ASAL a letter regarding amending the parties’ contract for the keyboard trays to include the Aeron chairs. The letter included the price for two Aeron chair models and indicated:

The terms and conditions of the December 23, 1998 Contract and Amendment will apply to these chairs except for Paragraph 3 and 4, Delivery Times and Quantities. The following paragraph shall be added to the Contract and Amendment:
Aeron Chair Delivery Times:
Pavilion agrees to supply ASAL with Aeron chairs ordered by ASAL within its established manufacturing lead times. The lead time will normally be 6 weeks from receipt of orders until shipment to Pavilion. Shorter lead times are also available depending upon order quantity and fabric selection.

Like the keyboards, the attached price list allowed for volume discounts on the chairs. Later, the parties signed an addendum memorializing the pricing structure.

After the letter regarding the chairs was sent, ASAL purchased six chairs from Pavilion to display at a trade show in Germany. The show was such a success that ASAL immediately reevaluated its sales forecast and requested a meeting with Kemp. Asel wanted 2,450 chairs to cover sales orders from the show plus 30 chairs to use as samples. However, while ASAL wanted the chairs, it did not include a deposit with its order or specify model numbers for the chairs. Kemp replied that it could not fill the order because Herman Miller International would not approve the sale. Pavilion had authority from Herman Miller to supply its products to ASAL only for sale in Germany, and ASAL was expanding outside of Germany, contrary to Kemp’s understanding of their original contract negotiations.

ASAL filed a breach of contract action, claiming as damages its lost profits for all expected sales under the contract for its two-year duration. While Pavilion admitted the existence of the keyboard contract, it defended against the much larger chair contract, contending that the agreement lacked consideration.

At trial, Kemp- testified that he drafted the letter and addendum to expand the contract between the parties to include the chairs. He explained that the quantity paragraph from the keyboard tray contract was specifically excluded in his March 11th letter because “there was no minimum order quantities that were promised or that we agreed to for pricing for discounting purposes.” He further explained that:

Furniture industry agreements to purchase. [sic] They are not — They don’t require you to purchase unless it would specifically say you agree to by [sic] X amount. So historically what it is is [sic] it’s a license — it’s a hunting license, if you. will, is what we used to call them in the industry, to try to go after business, but with no promise that you’d ever see any business from it.

However, Kemp said that even with the lack of a quantity term provision, if Pavilion received an order from ASAL, Pavilion would fill it “within whatever terms.” Basically, with a hunting license, Pavilion “had no expectations of what would come from it.” Based upon his negotiations with Asel, Kemp did not know when or if ASAL ever was going to place these orders because Asel had been indicating for several months that the “orders were coming.”

Asel testified that he brought an order for 2,480 chairs and a check for $683,000 to the meeting with Kemp regarding the chairs. However, Kemp informed him that Herman Miller would not approve the agreement. Kemp then advised Asel to submit a smaller order, and Asel modified the amount to 1,000 chairs with a $255,000 deposit. However, that order also was not accepted. Kemp denied that Asel ever presented the $633,000 check at the meeting at which Kemp informed Asel of Herman Miller’s rejection of his order. As to the smaller order, Asel’s check for $255,000 was returned for insufficient funds, after which Pavilion rejected the order.

After the trial court denied Pavilion’s motion for directed verdict with regard to the enforceability of the contract and on the-speculative nature of the lost profits, the jury awarded ASAL $4,000,000 in damages. From this .verdict and resulting judgment, Pavilion appeals.

Pavilion contends that the chair contract between the parties was legally unenforceable for lack of consideration. We agree. While the contract for keyboards obligated ASAL to purchase a minimum of 1,000 keyboards a year from Pavilion, there was no minimum quantity term for the chairs. Essentially, Pavilion agreed to fill orders as made by ASAL, but ASAL had no obligation to place any orders at all. As Kemp said, the “agreement” was a “hunting license” which allowed ASAL to look for customers of Pavilion’s merchandise and then to place orders when it found them.

It is a fundamental principle of contract law that a promise must be supported by consideration to be enforceable. See Restatement (Second) of Contracts § 17 (1981) (“[T]he formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.”) Moreover, a modification of a contract must be supported with consideration. See Wilson v. Odom, 215 So.2d 37, 38 (Fla. 1st DCA 1968). In a contract where the parties exchange promises of performance, “[i]f either of those promises is illusory or unenforceable then there is no consideration for the other promise.” Allington Towers N., Inc. v. Rubin, 400 So.2d 86, 87 (Fla. 4th DCA 1981). As stated by the Court of Appeals for the Eleventh Circuit applying Florida law:

If, however, “one of the promises appears on its face to be so insubstantial as to impose no obligation at all on the promisor — who says, in effect, ‘I will if I want to’” — then that promise may be characterized as an “illusory” promise.... An illusory promise does not constitute consideration for the other promise, and thus the contract is unenforceable against either party.

Johnson Enter. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1311 (11th Cir.1998) (citations omitted).

The Restatement of Contracts illustrates these contract principles. Section 75 acknowledges that “a promise which is bargained for is consideration if, but only if, the promised performance would be consideration.” Restatement (Second) of Contracts § 75 (emphasis added). However, the Restatement further provides in Section 77, “[a] promise or apparent promise is not consideration if by its terms the promisor or purported promisor reserves a choice or alternative performances.” The commentary to this section explains:

Words of promise which by their terms make performance entirely optional with the “promisor” do not constitute a promise.... Where the apparent assurance of performance is illusory, it is not consideration for the return promise.

Restatement, supra at § 77 cmt. a (citation omitted). As appellant noted in its brief, the Restatement contains an example of illusory promises explaining this principle which is analogous to the alleged contract between Pavilion and ASAL.

A offers to deliver to B at $2 a bushel as many bushels of wheat, not exceeding 5,000 as B may choose to order within the next 30 days. B accepts, agreeing to buy at that price as much as he shall order from A within that time. B’s acceptance involves no promise by him, and is not consideration.

Restatement, supra at § 77 cmt. a, illus. 1. Similarly, Pavilion agreed to sell to ASAL any chairs it chose to order at the price set forth in the price list. While ASAL may have agreed, its acceptance involved no promised performance and therefore did not constitute consideration to support the contract modification for the Aeron Chairs.

ASAL responds by maintaining that mutuality of obligation is unnecessary where other consideration is present in the contract; yet, it fails to point to any other consideration. It first cites to the parties’ mutual promises in paragraph two of the contract for Pavilion to supply, and ASAL to buy, the chairs. Without the ensuing quantity term or price term, however, this “mutual promise” is illusory and unenforceable. Next, it maintains the consideration was the benefit Pavilion received from ASAL’s ongoing marketing efforts and sales of the chairs. This “benefit” also does not constitute consideration. First, the contract does not obligate ASAL to market the chairs. Second, marketing the chairs actually' benefits ASAL where it obtains orders from it. ASAL’s marketing efforts did not obligate Pavilion to sell the chairs. See, e.g., Gull Lab., Inc. v. Diagnostic Tech., Inc., 695 F.Supp. 1151, 1154 (D.Utah 1988) (holding agreement to actively market product did not supply consideration where contract failed to include requirement that purchaser had any obligation to buy a minimum quantity of product). Finally, ASAL asserts its implied promise to place future orders was consideration. Were that the case, then any promise to place orders with no obligation to do so would constitute consideration. The case law cited above rejects such an illusory promise.

Next, the parties’ contract is unenforceable for lack of an essential term, the quantity of chairs ASAL must order. That a quantity term is essential to a contract for the sale of goods is illustrated by Florida’s statute of frauds provisions adopted from the Uniform Commercial Code. Section 672.201(1), Florida Statutes (1997), provides that a contract for the sale of goods in excess of $500 must be in writing to be enforceable. “A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.” § 672.201(1) (emphasis added). Therefore, without a quantity term, this contract would be unenforceable under this section. See Merritt-Campbell, Inc. v. RxP Products, Inc., 164 F.3d 957, 962 (5th Cir.1999) (“[T]he only term that must appear in a writing to support an enforceable contract for the sale of goods is the quantity term.”). Contrary to ASAL’s argument, that pursuant to the statute the contract may still be enforceable if the parties admit the existence of the contract, the statute actually provides that a contract is enforceable, “[i]f the party against whom enforcement is sought admits in his or her pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted.” § 672.201(3)(b) (emphasis added). Not only did Pavilion not admit to an enforceable contract with respect to the sale of chairs, it did not admit any quantity of chairs governed by the contract. Therefore, the contract could not be enforceable under this exception.

Because the chair contract was illusory and unenforceable, and Pavilion did not breach the keyboard contract, the trial court erred in denying Pavilion’s motion for directed verdict. We therefore reverse the final judgment and direct entry of a judgment in favor of Pavilion.

GUNTHER, J., and HARNAGE, HENRY H., Associate Judge, concur.