author: PALMER, J.

text:
    Steven W. DOANE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-52.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2003.
    Rehearing Denied June 25, 2003.

      James B. Gibson, Public Defender, and Barbara C. Davis, 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.
   PALMER, J.

Steven Doane appeals his convictions which were entered by the trial court after a jury found him guilty of two counts of burglary of a structure and one count of grand theft. We affirm his burglary convictions, but reverse his grand theft conviction because the State failed to prove that the stolen items had a market value of $300 or more.

Doane was charged with committing the crime of grand theft which is defined, in pertinent part, as follows:

812.014. Theft.—
(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.
[2](c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:
1. Valued at $300 or more, but less than $5,000.

§ 812.014, Fla. Stat. (1999)(emphasis added).

Proof of the element of value is essential to a conviction for grand theft and must be established by the State beyond a reasonable doubt. Negron v. State, 306 So.2d 104 (Fla.l974).Value is statutorily defined as follows:

812.012 Definitions.—
(9) “Value” means value determined according to any of the following:
(a)l. Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property -within a reasonable time after the offense.

§ 812.012(9)(a)(l), Fla. Stat. (1999).

“For a conviction for grand theft, the State must establish the market value of the stolen property at the time of the theft beyond and to the exclusion of every reasonable doubt.” Gilbert v. State, 817 So.2d 980 (Fla. 4th DCA 2002). In Gilbert, the Fourth District cogently explained the nature of the burden of proof as follows:

In I.T. v. State, 796 So.2d 1220 (Fla. 4th DCA 2001), this court adopted a two pronged test for determining whether the evidence adduced at trial to prove the value of the stolen property is sufficient to withstand a motion for judgment of acquittal. First, the court must ascertain whether the person testifying is competent to testify as to the value of the property. Id. at 1221. This court explained:
“With regard to the first prong ... an owner is generally presumed as competent to testify to the value of his stolen property. The apparent rationale for this rule is that an owner necessarily knows something about the quality, cost, and condition of his property.” [Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983) Imitation omitted). Mere ownership, however, is insufficient, and the witness must have personal knowledge of the property. Id.
Id. at 1221-22. Second, if the person is competent, the court must ascertain whether the evidence adduced at trial is sufficient to prove that the property was worth over $300 at the time of the theft. Id. Absent direct testimony of the market value of the property, proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction. See Negron, 306 So.2d at 108; Taylor, 425 So.2d at 1193. The evidence is insufficient to prove the value of the property is over $300, where the value of the property is estimated and no other proof is presented. See I.T., 796 So.2d at 1222 (evidence insufficient where person testifies that two of the items are probably worth two or three hundred dollars and a third item was “worth at least that much”); Moore v. State, 183 So.2d 563 (Fla. 4th DCA 1966)(testimony that cost of replacing stolen item was approximately $300 where the approximation was not directed solely to stolen item); Toler v. State, 779 So.2d 594 (Fla. 2d DCA 2001)(own-er’s testimony that property was “roughly” in excess of $300 insufficient); In Interest of F.R., 539 So.2d 588, 590 (Fla. 1st DCA 1989) (evidence insufficient where owner estimated property’s value at “about 310 [dollars], something like that”).

Id. at 982-983.

Here, in an attempt to establish value, the State presented the testimony of James Prater, the -victim of the burglary. Prater testified that two computer monitors, two central processing units, two keyboards, a scanner, a printer, and a 35 mm Nikon camera were taken from his office. He testified that he paid $1,588 on February 6, 1997 for one of the computers, and the scanner was purchased on February 27, 1997 for $320. Prater explained that the other computer was purchased by his property manager and he did not recall how much that computer cost other than it was “several thousand dollars”. Prater stated that the cost he incurred in replacing the computers was more than $3,000, but admitted he did not replace the stolen computers with identical models. . This testimony, while certainly competent, was insufficient to prove that the property was worth over $800 at the time of the theft.

The State failed to adduce any other direct testimony of the market value of the stolen property. The State also failed to present any testimony as to the manner in which the items had been used, its general condition and quality, or its depreciation percentage. Furthermore, as computer equipment can become obsolete very quickly, the value of the stolen equipment was not “so obvious as to defy contradiction.” Compare Jackson v. State, 413 So.2d 112 (Fla. 2d DCA 1982).

Accordingly, we reverse Doane’s grand theft conviction and remand this matter for proceedings consistent with this opinion. See Gilbert v. State, 817 So.2d 980 (Fla. 4th DCA 2002).

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMPSON, C.J., and TORPY, J., concur.

      . Here, there was no testimony from Prater as to what he thought the stolen computer equipment was worth. In fact, on cross examination, Prater admitted he was not qualified to estimate the worth of the equipment.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Vilma ADORNO, Appellant, v. Edison RIVERA, Sr., Appellee.
    No. 5D02-1944.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2003.
    Rehearing Denied June 24, 2003.

      Luis F. Gomez, Sr., Orlando, for Appellant.
    Robert J. Wheelock, Orlando, for Appel-lee.
   MONACO, J.

Vilma Adorno (“Mother”), appeals a final judgment which changed primary residential custody from her to Edison Rivera, Sr. (“Father”), the natural father of a female child born to them in 1990.

The Father had little to do with the child for the first several years of her life, apparently because he was trying to save his marriage to another person. In fact, in 1991, the father was court-ordered to pay child support. Eventually, after his marriage was dissolved and he was settled into his second marriage, he filed a petition for child custody and other relief in 1998, alleging that there had been a substantial change of circumstances. The parties entered into a mediated agreement at that time in which the Father’s visitation rights were formally established. Two years later the Father filed an Amended Petition For Modification of Final Judgment in which he again alleged substantial change of circumstances. After the issues were joined, the trial court conducted an eviden-tiary hearing and rendered its Final Judgment Of Modification of Final Judgment in which it changed primary residential responsibility for the child from the Mother to the Father.

The test to be applied by a trial court in considering a modification of child custody is two-pronged. First, the party seeking to modify a custody order must plead and establish that circumstances have substantially or materially changed subsequent to the entry of the original final judgment. Second, the party seeking modification must establish that the change has such an important impact on the child that the court is justified in imposing a change of custody in the best interests of the child. See Miller v. Miller, 671 So.2d 849 (Fla. 5th DCA 1996); Schweinberg v. Click, 627 So.2d 548 (Fla. 5th DCA 1993). Moreover, the party seeking the modification carries an “extraordinary burden” of demonstrating the grounds underpinning the change. Zediker v. Zediker, 444 So.2d 1034, 1036 (Fla. 1st DCA 1984).

The final judgment entered by the trial court makes findings reflecting that the child would be better off living with her father, and that a change would, accordingly, be in her best interest. The Father is undoubtedly better off economically than the Mother, and appears to be able to provide more for the child in a material sense. The final judgment, however, makes no finding that there has been a substantial change of circumstances that would support a modification in the custody of this child who has resided with her mother her entire life.

Indeed, in reviewing the record, we can find no change of circumstances that is apparent from the record, and certainly none that would meet the “extraordinary burden” test. Accordingly, we reverse the order changing primary residential custody, and remand for a hearing on the' Mother’s counter-petition for increased child support.

REVERSED and REMANDED for proceedings consistent with this opinion.

PETERSON and PLEUS, JJ., concur.


author: PER CURIAM.

text:
    Marvin BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1876.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2003.
    Rehearing Denied June 26, 2003.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Marvin Brown appeals a written order revoking his community control. Although the trial court determined and pronounced orally that Brown violated only condition 17(c) of the terms of his community control, the written order listed violations of other conditions that the trial court determined had not been violated.

The trial court correctly revoked community control and imposed a sentence, but Brown is entitled to a correct revocation order that conforms to the oral pronouncements. Accordingly, we affirm the revocation and sentence, but vacate the written order indicating multiple violations and remand for the entry of a correct order.

AFFIRMED, in part; REVERSED in part.

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


author: POLSTON, J.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., individually and on behalf of Dealers Insurance Company, Appellants, v. Betty JONES, as Personal Representative of the Estate of Althea Jones, and as Personal Representative of The Estate of Althea Jones As Assignee of Michael Pratt, d/b/a Spruill Auto Sales, Appellees.
    No. 1D01-4350.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Rehearing Denied June 18, 2003.

      Stephen M. Masterson, Bush, Brooks & Augspurger, P.A., Tallahassee, for Appellants.
    George A. Vaka, Esquire, Vaka, Larson & Johnson, P.L., Tampa, for Appellees.
   POLSTON, J.

Appellant Florida Insurance Guaranty Association, Inc. (“FIGA”) argues that the final summary judgment in favor of appel-lee Betty Jones was entered in error because (i) appellee’s alleged causes of action are not cognizable under Florida law, (ii) appellee’s alleged causes of action are barred by the applicable statutes of limitations, and (iii) there is no lawful basis for the amount of damages awarded and interest on the judgment.

We hold that appellee’s alleged causes of action are not cognizable under Florida law, and therefore agree with appellant that the final summary judgment should be reversed. Because of our ruling, we do not reach appellant’s remaining issues and we reject appellee’s cross-appeal relating to her claims for additional damages and interest.

I. Background of Excess Judgement

In a preceding lawsuit brought by appel-lee, it was alleged that on May 18, 1994, Heath Gilliam was negligently operating a motor vehicle in Leon County, Florida, causing the death of Althea Jones. It was further alleged that Heath Gilliam operated the motor vehicle with the permission of Anthony Dixon, an employee of Spruill Auto Sales, and that Michael Pratt had given his permission to Mr. Dixon to operate the vehicle which was available for sale at Spruill Auto Sales. Appellee, as personal representative of Althea Jones’ estate, brought the preceding action under the Florida Wrongful Death Act against Heath Gilliam and Michael Pratt d/b/a Spruill Auto Sales. Michael Pratt’s insurance company, Dealers Insurance Company was declared insolvent in December, 1994. Accordingly, appellee’s claims against Michael Pratt became subject to the Florida Insurance Guaranty Association Act, section 631.50 et seq., Florida Statutes.

FIGA’s investigation and review of the insurance policy’s conditions led it to conclude that the claims against Michael Pratt were not covered by the FIGA Act and it therefore took no action to defend appel-lee’s claims against him. After a default was entered against Michael Pratt, a jury verdict on damages was returned and final judgment entered for $75,000,000. Michael Pratt assigned all of his rights against Dealers Insurance Company and/or FIGA to appellee.

This case involves appellee’s attempts to collect on the $75,000,000 judgment, which was allegedly caused by FIGA’s failure to defend Michael Pratt.

II. Alleged Causes of Action

In Counts I and II of her complaint, appellee alleges that FIGA breached its statutory and contractual obligations to Michael Pratt, which “constitute a breach of the policy obligations and caused catastrophic damages to MICHAEL PRATT d/b/a SPRUILL AUTO SALES in the form of a Judgment in the amount of $75,000,000 against MICHAEL PRATT d/b/a SPRUILL AUTO SALES with interest accruing thereon at the statutory rate.” Appellee alleges in Count III that FIGA breached its fiduciary obligations to Michael Pratt, which “resulted in the excess judgment” against Michael Pratt.

Agreeing with appellee’s allegations, the trial court ruled in the final summary judgment that FIGA “had an obligation and a duty to defend its insured, MICHAEL PRATT. Because it refused to do so, Mr. Pratt had a $75,000,000 judgment entered against him.” The trial court awarded $299,900 plus statutory interest from the date the judgment was entered against Mr. Pratt on May 16,1997, for a total amount of $433,178.84. The trial court erred because these alleged claims are not cognizable under the FIGA Act.

The FIGA Act provides “a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer.” See § 631.51(1), Fla. Stat. (1995). The Association is a statutorily-created nonprofit corporation that pays specified claims owed by insolvent insurance companies that most likely would be otherwise unpaid. See § 631.57(1), Fla. Stat. (1995). Accordingly, the Florida Legislature has treated FIGA differently from the insolvent insurance companies it pays claims for, by providing various limitations on claims FIGA is obligated to pay, a one-year statute of limitations, and immunity to FIGA. See §§ 631.57, 631.66, 631.68, 95.11(5)(d), Fla. Stat. (1995). FIGA’s immunity statute states:

There shall be no liability on the part of, and no cause of action of any nature shall arise against, any member insurer, the association or its agents or employees, the board of directors, or the department or its representatives for any action taken by them in the performance of their powers and duties under this part....

Section 631.66, Fla. Stat. (1995).

Appellee’s claims for damages, as alleged, are not covered obligations under the FIGA Act and are barred by FIGA’s immunity protection. See Fernandez v. Florida Ins. Guaranty Ass’n, Inc., 383 So.2d 974 (Fla. 3d DCA 1980)(holding that a claim for an excess judgment, alleging FIGA’s bad faith refusal to settle a claim, could not be maintained). Therefore, we hold that appellee’s alleged causes of action are not cognizable.

REVERSED and REMANDED.

VAN NORTWICK, J., and SMITH, LARRY G., Senior Judge, concur.

      . The trial court apparently limited the award to $299,900 based on section 631.57(l)(a)2., Florida Statutes, which limits the amount of covered claims to the amount which is in excess of $100 and is less than $300,000.”


text:
    The STATE of Florida, Appellant, v. Jean JOUBERT, Appellee.
    No. 3D02-1166.
    District Court of Appeal of Florida, Third District.
    May 7, 2003.
    Rehearing, Rehearing En Banc and Certification Denied June 18, 2003.
    Charlie Crist, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for Appellant.
    Kenneth P. Speiller, for Appellee.
    Before LEVY, GREEN and RAMIREZ, JJ.
   PER CURIAM.

The State of Florida appeals from a trial court Order Vacating Judgment & Sentence of the Defendant, Jean Joubert. We affirm.

The record reflects that the Defendant was convicted of murder in the second degree with a firearm on June 15, 2001. The Defendant was represented during the murder trial and his sentencing by Steven T. Scott. Scott filed a Notice of Appearance as the Defendant’s counsel on September 28, 2000.

Unknown to the State, the lower court, and the Defendant, Scott filed a petition for disciplinary resignation with the Supreme Court of Florida on March 80, 2001, along with his sworn affidavit. Scott’s sworn affidavit stated that he would cease representing clients after thirty days of signing the affidavit and that he would advise all of his then existing clients of his resignation from the Florida Bar. The Supreme Court of Florida accepted the uncontested petition for disciplinary resignation on May 24, 2001, and indicated that Scott’s resignation was accepted immediately. In its order granting Scott’s petition for disciplinary resignation, the Supreme Court noted that disciplinary resignation is tantamount to disbarment. Scott did not advise the Defendant of his disciplinary resignation.

The Defendant’s trial took place on June 12, 13, 14, and 15, 2001. After the jury rendered its verdict on June 15, 2001, the Defendant was sentenced to life imprisonment on July 2, 2001. Scott appeared as counsel of record for the Defendant during the trial and sentencing phases. The Defendant filed a Notice of Appeal on July 20, 2002.

Kenneth P. Speiller, Esq. was retained to represent the Defendant on appeal. Speiller discovered that Scott had been granted a disciplinary resignation. The Defendant filed a motion to vacate his second degree murder conviction on March 29, 2002, alleging that Scott’s disciplinary resignation and disbarment, effective May 24, 2001, deprived the Defendant of effective assistance of counsel under the Sixth Amendment to the United States Constitution. The trial court conducted a hearing on the motion on April 18, 2002. The lower court granted the motion, concluding that the facts of this case constituted a per se violation of the Sixth Amendment. This appeal followed.

On appeal, the State contends that the trial court erred as a matter of law in granting the Motion to Vacate the Conviction as a per se violation of the Sixth Amendment. The State argues that, contrary to the conclusions of the trial court, the prior unrelated disbarment of the Defendant’s counsel does not constitute a per se violation of the Sixth Amendment without a showing of prejudice according to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that there is ample authority from both the Federal circuit level and the United States Supreme Court to support application of the Strickland test to assess any Sixth Amendment violation here.

In response, the Defendant argues that while Scott had, at one time, been authorized to represent people in courts of law, that authority had been withdrawn because of an ethical lapse on his part. The Florida Supreme Court believed that what Scott did was so serious that the imposition of the most severe penalty possible was imposed. The right to effective assistance of counsel means access to a licensed attorney, who is authorized to practice law in the jurisdiction in question. A disbarred, or even suspended, attorney is simply not “counsel” for purposes of “effective assistance of counsel.” The Defendant points out that because Scott was unauthorized to practice law at the time of the trial and sentencing in this case, (1) it cannot be said that the Defendant had counsel, (2) the Defendant did not make an intelligent waiver of his right to counsel, and (3) the foregoing acts as a jurisdictional bar to a valid conviction and sentence. We agree with the Defendant that the trial court did not err in granting the Defendant’s Motion to Vacate the conviction.

We begin by noting that the standard of review on this appeal is a de novo review because it presents a pure question of law. Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000). It is clear in Florida that the State may withdraw the privilege to practice law from those who abuse it. Lambdin v. State, 150 Fla. 814, 9 So.2d 192, 193 (1942). In addition, disbarment is reserved for those who should not be permitted to associate with the honorable members of the legal profession. The Florida Bar v. Hirsch, 342 So.2d 970, 971 (Fla.1977).

The State cites to Dolan v. State, 469 So.2d 142 (Fla. 3d DCA 1985) and White v. State, 464 So.2d 185 (Fla. 3d DCA 1985) in support of its position that Scott’s disbarment does not constitute a per se violation of the Sixth Amendment. However, we disagree with the State on the applicability of Dolan and White because the facts of Dolan and White are distinguishable from the facts here.

In Dolan, the defendant alleged that he was denied the effective assistance of counsel because his court-appointed attorney was suspended as a member of the Florida Bar because of the attorney’s failure to pay required bar dues. In holding that the defendant was not denied effective assistance of counsel solely because of his attorney’s suspension, this Court noted that an attorney who is suspended from the Florida Bar for “failure to pay the dues required by Article VIII, Florida Bar Integration Rule, is automatically entitled to reinstatement upon the filing of his petition and the payment of the dues.” Id. at 143. (citations omitted).

Similarly, in White, this Court held that the defendant was not denied his right to counsel merely because his court-appointed attorney was suspended from the practice of law in this state for failure to pay bar dues. In fact, this Court in White noted that decisions in other courts had uniformly declined to adopt a per se rule that an attorney’s suspension from the practice of law gives rise to a constitutional claim of denial of the right to counsel. White v. State, 464 So.2d at 186 (citations omitted). This Court stated that it was aligning itself with these decisions.

The suspensions in Dolan and White were unrelated to any disciplinary proceeding. These were violations that were merely technical ones. Reinstatement was purely ministerial. All the attorney had to do was send a check to the Florida Bar. And as this Court in Dolan emphasized, quoting from Huckelbury v. State, 337 So.2d 400, 403 (Fla. 2d DCA 1976), the facts in Dolan dealt “with a person who merely failed to comply with some administrative prerequisite to membership in the Florida Bar, ...” Dolan, 469 So.2d at 143-44.

The facts of Huckelbury v. State are more analogous to the facts at hand. In Huckelbury, a person who had never been admitted to the Bar represented a criminal defendant who took a plea. The court ordered that the conviction and sentence be vacated and that the defendant be allowed to enter a new plea. The court found that the requirement for counsel was not fulfilled where the plea was entered upon the advice of someone who was an imposter in the legal profession. Id. at 403. The court stated,

We emphasize that we are not here dealing with a person who merely failed to comply with some administrative requirement prerequisite to membership in the Florida Bar. Rather, we are dealing with a situation where one without proper credentials as a lawyer in any state or federal jurisdiction posed as a lawyer. And, he who so posed has not been considered to be of sufficient moral fiber to bear the stamp of approval of the Florida Bar. Here, there was an actual and knowing misrepresentation on the part of Pearce to his client.

Id.

Similarly, in the instant case, at the time of the Defendant’s trial and sentencing, Scott was not a member of the Florida Bar. As the Defendant points out, each time he appeared in court on behalf of the Defendant for trial and sentencing, Scott was misrepresenting his status to the Defendant and to the court. Furthermore, Scott violated his sworn statement that he would cease representing clients and inform his clients of his resignation.

The State additionally contends that there is federal law that supports application of a Strickland analysis here, citing to United States v. Hoffman, 733 F.2d 596 (9th Cir.1984) and United States v. Mouzin, 785 F.2d 682 (9th Cir.1986). However, these cases are distinguishable. In Hoffman, the attorney was not suspended by the court in which the claim was being made until after the Defendant’s sentencing. In Mouzin, the attorney was disbarred from the appellate court during the course of the trial but was not disbarred by the trial court until after the trial had ended. These attorneys were authorized to practice law in the court in which the trials were taking place at the time of the trials. In the case at hand, however, at the time of the Defendant’s trial, Scott was not authorized to practice law in the circuit court of Florida.

Thus, based on the foregoing, we affirm the trial court’s Order granting the Defendant’s Motion to Vacate the conviction and sentence.

Affirmed.

      . The basis for the petition for disciplinary resignation was raised by Aviation Sales Co., an apparent client of Scott's, and appears to involve the failure to keep accurate records, the failure to provide an accounting, and the misappropriation of funds.

      . This opinion does not pertain to the situation where the attorney’s suspension is merely a ministerial or technical type of suspension, which the attorney, in essence, has the ability to remove by sending a check for bar dues, such as what occurred in Dolan and White.


text:
    Joseph H. TEALE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0788.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Rehearing Denied June 13, 2003.
    Joseph H. Teale, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

BROWNING, LEWIS and HAWKES, JJ., concur.


author: FLETCHER, Judge.

text:
    CORAL GABLES HOSPITAL, INC., Appellant, v. Ana VELIZ, et al., Appellees.
    Nos. 3D01-1696, 3D01-2836.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    McIntosh, Sawran, Peltz & Cartaya and Louise H. McMurray, for appellant.
    Alex Alvarez; Robert S. Glazier, Miami, for appellees.
    Before COPE, LEVY, and FLETCHER, JJ.
   FLETCHER, Judge.

Coral Gables Hospital, Inc. [the Hospital] appeals the trial court’s final judgment and denial of the Hospital’s post trial motions in this wrongful death action. After careful consideration, we reject the Hospital’s appeal and affirm the trial court.

We discuss only one of the issues raised, that is, the trial court’s denial of a Hospital motion for a directed verdict. The Hospital challenged the appellees’ right to contend in a wrongful death action that the decedent, and not the reputed father, was the true biological father of the two minor children. The trial court disagreed with the Hospital’s position and allowed the issue to be adjudicated, the result of which was the conclusion that the two minor children are the biological children of the decedent, thus entitled to an award of damages as survivors under the Wrongful Death Act.

In support of its position here, the Hospital cites Achumba v. Neustein, 793 So.2d 1013 (Fla. 5th DCA 2001), in which the Fifth District Court concluded that paternity is an issue that cannot be resolved in the context of a wrongful death action. Judge Griffin, however, dissented, pointing out (at 1017) that “there is no reason the relationship of the natural child to the wrongful death victim cannot simply be alleged and proved up in a wrongful death action.” The instant case is the proof of that pudding. The Hospital offers no suggestion as to how it was or could be prejudiced by this simplest of methods to adjudicate the issue, particularly in this time of availability of DNA testing.

Accordingly, we affirm the post trial orders and the final judgment and certify conflict with Achumba v. Neustein, 793 So.2d 1013 (Fla. 5th DCA 2001).

Affirmed.

      . DNA test results introduced at trial herein showed that the decedent was the biological father to a 99.99% chance.


author: FARMER, J.

text:
    GOLF CLUB OF PLANTATION, INC. a Florida corporation, Appellant, v. CITY OF PLANTATION, a municipal corporation, Appellee.
    No. 4D02-1506.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied July 7, 2003.
    James C. Brady of James C. Brady & Associates, Fort Lauderdale, for appellant.
    Kenneth E. Keechl of Brinkley, MeNer-ney, Morgan, Solomon & Tatum, LLP., Fort Lauderdale, for appellee.
   FARMER, J.

We reverse a summary judgment in favor of a municipality (City) and against a property owner (Owner) on inverse condemnation claims arising from the City’s failure to permit conversion of the property to a different use. In so doing, we reject the City’s argument that the County was an indispensable party to the claim alleged and that the inverse condemnation claims were not ripe.

In 1989, Owner purchased 214 acres of property. Approximately half of it is being used as a golf course, with the remaining half lying undeveloped. Relying on the representations of a City employee, Owner says that it purchased the property with the expectation that it could be converted to a single-family residential usage. Yet, when Owner purchased the property, it was designated commercial recreation under the Comprehensive Land Use Plans of both City and Broward County, permitting uses such as golf courses, tennis clubs, sports arenas, marinas, and dog or horse racing facilities.

On four separate occasions in 1990,1991, 1992, and 1994, Owner submitted applications to the City to amend the land use designation to low residential use to permit rezoning of the property and the development of a single-family residential subdivision on less than a third of the property. The City denied all of Owner’s applications.

In addition to the applications for land use plan amendment, in 1991 Owner applied for a building permit to install netting for a driving range and, in 1992, also submitted an application for building and electrical permits to install lights and lighting stanchions, together with safety netting, on part of the golf course. The City denied both applications. In 1994, Owner also petitioned Broward County to change the designation under the County’s land use plan to low residential. The County denied the petition.

Regarding Owner’s land use amendment applications from 1990 through 1994, the City maintained that the applications were inconsistent with the policies set forth in its land use plan, specifically with Policy 1.11.5, providing that “golf courses in the City, designated Commercial Recreation, are principal open spaces and shall not be converted to other uses.” With respect to the applications for building and electrical permits, the City claimed that the proposed construction would interfere with the view and light enjoyed by residents of the surrounding (residential) property.

Finally, Owner filed suit against the City seeking damages for inverse condemnation as a taking without compensation and a denial of due process. Owner also sought a declaratory judgment as to the constitutionality of the application of the City’s land use and zoning regulations to Owner’s property. The trial court entered a final summary judgment of dismissal. Owner appealed. In Golf Club of Plantation, Inc. v. City of Plantation, 717 So.2d 166 (Fla. 4th DCA 1998), we affirmed the dismissal of the declaratory judgment claim, holding that by seeking damages from inverse condemnation Owner waived any challenge to the validity of the City’s restrictions. We reversed the dismissal of the other claims, however, holding that Owner should have been granted leave to amend the takings claim, and that the City was not entitled to summary judgment on the due process claim.

On remand, Owner filed an amended complaint. As before, it alleged a takings claim arising under both the United States and Florida Constitutions; and a due process claim also arising under both constitutions. The City moved for summary judgment, arguing that it could not be liable for taking Owner’s property because Owner had failed to obtain the County’s approval to amend its land use plan and that Owner had failed to sue the County before the expiration of the statute of limitations. The City also argued that Owner’s inverse condemnation claims were not ripe for judicial review because Owner never applied for any of the alternative permissible uses for its property authorized under the “Commercial Recreation” designation of the City’s land use plan. Consequently, the City argued that the extent of the alleged taking could not be determined. The trial court granted the City’s motion and entered a final judgment of dismissal. The court held that the County was an indispensable party; that the case was not ripe; and that the corporate plaintiff had been dissolved. This appeal follows.

We start with the last ground first, the one holding that Owner is barred from bringing this suit because it was summarily dissolved by the State of Florida for failing to file one or more annual reports and pay the taxes. The trial court’s holding was based on Vacation Break of Boca Raton, Inc. v. Breeden, 765 So.2d 281 (Fla. 4th DCA 2000). The issue decided in Vacation Break is the subject of a recent en banc decision of this court. See Nat'l Judgment Recovery Agency, Inc. v. Harris, 826 So.2d 1034 (Fla. 4th DCA 2002) (holding that a corporation which has been administratively dissolved by the state for failure to file its, annual report is not required to obtain reinstatement to active corporate status to bring or defend a lawsuit), receding from Vacation Break. Under National Judgment Recovery, Owner is not barred from court and may prosecute this action. It is therefore necessary to address the other two contentions.

On the merits, Owner argues that the trial court misapplied City of Riviera Beach v. Shillingburg, 659 So.2d 1174 (Fla. 4th DCA 1995), and Karatinos v. Town of Juno Beach, 621 So.2d 469 (Fla. 4th DCA 1993), in dismissing its case. It suggests that the trial court mistakenly believed that Owner’s inverse condemnation claims were based solely on the City’s failure to grant Owner’s four residential use applications for rezoning. In truth, Owner asserts, its damages claims are founded on its contention that the City condemned its property from any other use by virtue of Policy 1.11.5 stating that the “golf courses in the city, designated Commercial Recreation, are principal open spaces and shall not be converted to other uses.” [e.s.] Thus Owner claims that it has been entirely precluded from setting its property to any residential or other recreational use purely as a result of Policy 1.11.5.

Owner did in fact plead the denials of its four residential use applications in its amended complaint, and asserted them in its own motion for summary judgment. This was necessary, Owner argues, to meet the ripeness requirements for bringing inverse condemnation claims. Owner points out that the Broward County land use plan contains a provision allowing the conversion of its golf course property to residential use by something called “flex units.” Under Policy 1.11.5, however, no other use is possible within City’s jurisdiction regardless of the County’s flex units. Owner argues that, but for Policy 1.11.5 and apart from residential uses, it could have used the property for a tennis club, sports arena, marina, a dog or horse racing track, marine amusement center, Jai-Alai fronton, or other similar recreational uses. City, in turn, responds that Owner never submitted any applications for any of these alternative uses, and thus Owner’s inverse condemnation claims are not ripe for judicial review. Because Broward County has no such requirement, Owner responds, it is only the City against whom an inverse condemnation claim could or should be made. We agree with Owner.

There is no suggestion by the City that its policy of barring all conversions of golf courses to any other uses has been imposed on it by Broward County. In fact, the record shows that the County has no such policy. As Owner pointed out at oral argument, if the City approved an alternative use that complied with the County’s comprehensive plan, there is a strong probability that County would approve the City’s change of its own plan. We note that the City did not attempt to challenge the correctness of this assertion. Even if the City did dispute the accuracy of the representation, such a factual dispute is not subject to summary determination. Owner would be allowed to present its evidence establishing that if the City approved a residential usage the County would as well.

For that reason, City of Riviera Beach v. Shillingburg, 659 So.2d 1174 (Fla. 4th DCA 1995), is not controlling. In Shilling-burg, the owner sought permission to fill submerged lands running between Singer Island and the intracoastal waterway, described as “mangroves and special estuarine bottom lands...protected by federal, State and local agencies involved in the wetlands preservation.” This filling would have required the separate approval of both state and federal agencies. There was no factual basis to believe that these agencies would give their approval even if municipal approval had been granted. In fact the city ordinance in question expressly stated that its policy before any state or federal agencies would be to oppose any applications for permits to fill the lands. Karatinos is similarly inapposite because there the city’s law expressly made its approval dependent on the state agency’s approval. No such requirement exists in this case.

City argues that even if flex units would have permitted a conversion to some form of residential use, it was necessary for Owner to make proper application for a specified use before its claims would be ripe. Similarly, City argues that Owner was required to apply for a specific recreational use for its damages claim to be ripe for adjudication. We disagree.

The City has made it clear beyond doubt that its ban against converting golf courses is absolute and that it will not approve conversions of any kind. Its position does not depend on the nature of any proposed alternative use. City bans all golf course conversions to any other uses. Hence City’s protest that Owner should first make full application for a specified, other residential or recreational use amounts to an insistence that Owner perform a futile (not to mention expensive) and (in this case) duplicative act. Owner has already made four separate applications for approval of a residential use, and all have been denied on the basis of Policy 1.11.5.

No application for an alternative recreational use has been made, but it is also abundantly clear from this record that any such application would be futile. If the City would not permit Owner to build a driving range on its golf course because the change would interfere with the neighbors’ view of its green spaces, obviously City has thereby also disapproved a Jai-Alai fronton, sports arena, race track or other such usage that would destroy the view entirely. City’s ban against changing this golf course use is absolute and does not turn on the nature of another use. All further applications are futile.

We therefore reverse the summary judgment and return the case to the trial court for consistent proceedings.

STEVENSON and HAZOURI, JJ., concur.

      . U.S. Const, amend. 5; Fla. Const, art. X, § 6.

      . U.S. Const, amend. 14; Fla. Const, art. I, § 9.


author: TAYLOR, J.

text:
    Marilyn S. BARON, individually and as trustee and Ronald I. Baron, individually, Appellants, v. Errict RHETT and Errict Rhett Youth Foundation, Inc., a Florida nonprofit corporation, Appellees.
    No. 4D02-3475.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied July 7, 2003.

      Marc Birnbaum of Law Offices of Marc Birnbaum, P.A., Miami, and Avi J. Litwin, Miami Beach, for appellants.
    Gregg H. Metzger and Jeffrey D. Feld-man of Feldman, Gale & Weber, P.A., Miami, for appellees.
   TAYLOR, J.

Appellants, Marilyn and Ronald Baron, appeal a summary judgment order quieting title to real property in favor of appel-lees, Errict Rhett and the Errict Rhett Youth Foundation, Inc. We affirm.

The current controversy began in 1998 when Deryl P. Lane, then owner of the subject property, failed to pay the ad valo-rem taxes for that year. Broward County consequently issued a tax certificate On May 28,1999. When Lane did not redeem the tax certificate within two years, the holder of the certificate applied for a tax deed sale. Pursuant to the application, the tax collector prepared a title search and forwarded Lane’s name and address to the clerk of court as the legal title holder listed in the public records and on the most current tax assessment roll. The title search was forwarded to the clerk of court on April 16, 2001. Five months later, on September 27, 2001, the clerk provided notice of the tax deed sale of the subject property to all parties listed on the tax collector’s statement and filed a certificate of mailing such notices. Lane was the only party listed on the statement.

In the interim, Rhett met with Lane on June 26, 2001, for the purpose of buying the property in connection with his youth foundation. Rhett purchased the property from Lane for $20,000 by quitclaim deed and recorded the instrument in Broward County on June 28, 2001. However, as the parties later discovered, Lane, as grantor, accidentally failed to sign the deed.

Over the next few months, Rhett spent approximately $60,000 toward completion of the home. He obtained building and zoning permits in his name as the property’s owner of record. During this time period, the Broward County Property Appraiser sent Rhett the proposed ad valo-rem tax assessment on the property for the year 2001. This assessment was sent to his home address. In November 2001, Rhett was sent a notice of ad valorem taxes on the property for that year, which he paid.

The tax sale was held on October 17, 2001, and the Barons were the successful bidders. They subsequently recorded the tax deed in Broward County. Rhett did not find out about the sale until he applied for a mortgage loan for the property on November 17, 2001. He subsequently recorded a second quitclaim deed in order to correct the absence of Lane’s signature on the original quitclaim deed.

Rhett filed suit against the Barons, seeking cancellation of the tax deed and a quiet title decree in his favor. The Barons counter-claimed for quiet title as well. Both parties filed motions for summary judgment. The trial court ruled in favor of Rhett, holding that he was entitled to notice of the tax sale. On appeal, the Barons contend that the trial court erred in cancelling their tax deed and quieting title in favor of Rhett.

Section 197.502(4), Florida Statutes, states in pertinent part:

(4) The tax collector shall deliver to the clerk of the circuit court a statement that payment has been made for all outstanding certificates or, if the certificate is held by the county, that all appropriate fees have been deposited, and stating that the following persons are to be notified prior to the sale of the property: (a) Any legal titleholder of record if the address of the owner appears on the record of conveyance of lands to the owner. However, if the legal titleholder of record is the same as the person to whom the property was assessed on the tax roll for the year in which the property was last assessed, then the notice may only be mailed to the address of the legal titleholder as it appears on the latest assessment roll.
(f) Any person to whom the property was assessed on the tax roll for the year in which the property was last assessed.

Section 197.522(l)(a), Florida Statutes, states:

The clerk of the circuit court shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed in the tax collector’s statement pursuant to s. 197.502(4) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale. If no address is listed in the tax collector’s statement, then no notice shall be required.

Neither statute requires the clerk to search all public records available to determine the actual status of ownership. Bostwick v. Clukies, 801 So.2d 961, 962 (Fla. 5th DCA 2001). Furthermore, the clerk has no general duty to determine the accuracy of the tax collector’s statement. Id. The Barons claim that because Florida law requires that the clerk notify only those people listed on the tax collector’s statement, and the law does not require the clerk to do any independent research to uncover additional interested parties, the trial court’s decision was error. We disagree. The trial court did not rule that the clerk had a ministerial duty under Chapter 197 to conduct its own title search before mailing notice of the impending tax sale. Instead, the court determined that because the clerk failed to set the October 17 tax sale and mail notice thereof within a reasonable time after the application for tax deed was filed, the clerk could not rely upon the stale April 16 tax collector’s statement in discharging its statutory and constitutional duty to provide notice of the tax sale to interested persons.

Delta Property Management v. Profile Investments, Inc., 830 So.2d 867 (Fla. 1st DCA 2002), is instructive. In that case, Delta failed to. pay its 1999 ad valorem taxes and a tax certificate was issued. When Delta did not redeem the tax certificate within two years, Profile applied for a tax deed in April of 2000. The tax collector prepared a statement using Delta’s address as it appeared on the 1999 tax assessment roll, the most recent one at the time. The tax collector forwarded the statement to the clerk on May 30, 2000. The clerk did not prepare a notice of tax sale and mail it to Delta until September 4, 2000. Delta was no longer located at the address specified in the statement. Consequently, the notice was returned to the clerk as undeliverable. Profile placed the winning bid at the tax sale and purchased the property. On appeal, Delta argued that the 2000 tax assessment had been prepared at the time the clerk mailed his notice of the tax sale. Therefore, had the clerk examined the more recent tax roll, he would have discovered that Delta’s mailing address had changed. Id. at 869.

The first district rejected Delta’s argument. First, the court held that there was no evidence that the 2000 tax roll was indeed prepared by July 1, 2000, or that it was otherwise available to the clerk pri- or to his mailing the notice. Id. Second, and more important to the court’s decision, it concluded that the trial court’s summary judgment order was correct even if the 2000 tax roll was available to the clerk before September 4, 2000, because “the clerk had no duty to look beyond the tax collector’s statement in preparing the notice of tax sale.” Id. Accordingly, because the clerk was entitled to “rely exclusively upon the information contained in the tax collector’s statement,” the court affirmed the trial court’s decision. Id. at 870.

Judge Ervin dissented. In doing so, he reasoned that when sections 197.502(4)(a) and 197.522(l)(a) are read in pari materia, the clerk was required to mail the notice to the address as it appeared on the latest assessment roll. The latest roll, he explained, was required by law to have been completed as of July 1, 2000. Therefore, when the clerk mailed the notice on September 4 using the statement prepared in April, “the clerk simply did not comply with his statutory duty.” Id. at 872 (Er-vin, J. dissenting).

He continued that according to the majority opinion, even though Delta’s correct mailing address would have been discovered had the tax collector’s statement been properly updated, the clerk was required to look no further than the original statement, “even though he knew, or had reason to know, that the information might be outdated because it was not based on the latest assessment roll, which he was aware at the time of mailing, had superceded the 1999 roll.” Id. Judge Ervin concluded:

I do not understand sections 197.502(4)(a) and 197.522(l)(a) to impose [an onerous] burden on the clerk. To me, a reasonable interpretation of them is that the clerk is simply directed to request the tax collector, once he is aware that the information contained in a statement may no longer be current because it was based on a tax roll since superceded, to supply him with a supplemental statement reflecting any updated material.

Id.

We agree with Judge Ervin, adopt the reasoning of his dissent, and certify conflict with Delta Property Management v. Profile Investments, Inc., 830 So.2d 867 (Fla. 1st DCA 2002). It is true that the statutes do not require the clerk to do anything more than rely upon the tax collector’s statement in preparing the tax sale notices. However, there could come a point in time when the tax collector’s statement no longer represents those who are entitled to notice. That is precisely what happened here. The clerk waited approximately five months before noticing and setting the tax deed sale; during the time lapse, the name on the tax assessment roll changed.

In its final summary judgment, the trial court recognized that section 197.522 does not state how soon after the filing of an application for tax deed the clerk must set the tax sale and mail notice thereof to the required persons. The court opined that “[i]t would, however, be absurd to view the absence of such an explicit provision to mean that the clerk was intended to have no time limit to act after the filing of an application for tax deed.” The court further stated:

Section 197.522, Florida Statutes should be construed to required that the clerk set the tax sale and mail advance notice thereof within a reasonable time after the filing an application for tax deed so as to minimize the chance that persons who acquire an interest in the subject Property during the gap period are thereafter deprived notice of an impending tax sale merely because they are not identified on a stale certificate of interested persons. This construction is the only one that will promote the statute’s purpose of providing due process to interested persons and that will maintain the statute’s constitutionality. If, however, section 197.522, Florida Statutes is not so construed for some reason, it is unconstitutional as applied to Rhett.

As the trial court noted, Florida’s statutory scheme for the assessment and enforcement of property taxes set forth in Chapter 197, Florida Statutes, has its underpinnings in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1988), as well as its predecessor Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In Mennonite, the Supreme Court held that an Indiana statute violated the Fourteenth Amendment in failing to afford due process to a mortgagee with an interest in certain real property that was sold at a tax sale. The statute required that notice of an impending tax sale be mailed to the property owner, but only required posting and publishing of such notice to any other interested persons, including the mortgagee, even though the mortgagee’s interest in the subject property was reasonably identifiable in the public record. The Supreme Court held that due process, at a minimum, required that the taxing authority mail the mortgagee advance notice of the tax sale so as to make a reasonable attempt to provide actual notice to a person with a reasonably identifiable interest in the subject property. In so holding, the Supreme court stated:

Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.

Mennonite, 462 U.S. at 800, 103 S.Ct. 2706, (emphasis in original).

In Dawson v. Saada, 608 So.2d 806 (Fla.1992), our supreme court expressly recognized that Florida’s scheme for enforcement of property taxes, as set forth in Chapter 197, is designed to afford due process to interested persons before real property is sold at a tax sale, as was addressed in Mennonite. Id. at 808, 103 S.Ct. 2706. Section 197.502(4), Florida Statutes enumerates certain categories of persons who have a “reasonably ascertainable” interest of record and are entitled to notice of a tax sale. These include “any person to whom the property was assessed on the tax roll for the year in which the property was last assessed.” § 197.504(4)(f). Rhett, having been assessed the subject property’s 2001 ad valo-rem taxes and paid them, fit within this category of interested persons and was thus entitled to be mailed advance notice of the tax sale.

We hold that when the clerk fails to schedule a tax sale and mail notice thereof within a reasonable time after the filing of an application for a tax deed, and a new tax roll assessment intervenes during such period of delay, the clerk must obtain an updated statement from the tax collector for notification purposes under section 197.522(l)(a), Florida Statutes. This requirement calls for no independent research and imposes minimal efforts on the clerk’s part. More important, requiring a current tax collector’s statement comports with the due process requirements of Chapter 197 to provide notice to interested persons before real property is sold for the collection of delinquent taxes.

For the reasons stated above, we affirm the final summary judgment quieting title to real property.

AFFIRMED.

WARNER and GROSS, JJ., concur.

      . In Broward County, the duties of the clerk of court are performed by the Broward County Administrator.

      . Section 193.023(1), Florida Statutes, states that the property appraiser shall complete the assessment of the value of all properly no later than July 1 of each year.


author: SCHWARTZ, Chief Judge.

text:
    ANZAC CONTRACTORS, INC., Appellant, v. TEAM LAND DEVELOPMENT, INC., et al., Appellees.
    No. 3D02-2904.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Reconsideration Denied June 25, 2003.
    Raymond L. Robinson, Coral Gables, for appellant.
    Tripp Scott and Kevin A. Fernander (Fort Lauderdale), for appellees.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

Conditioned on compliance with the stipulation in open court that the sums in question will be disbursed by the appellees to the appellant Anzac Contractors upon the tender of a section 713.20(5), Florida Statutes (2000), release, thus satisfying the condition precedent to Anzac’s entitlement under the parties’ agreement, as explained in Team Land Development, Inc. v. Anzac Contractors, Inc., 811 So.2d 698 (Fla. 3d DCA 2002), the judgment under review, which was entered in full conformance with that decision, is affirmed.


text:
    Jeremy RIGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-0245.
    District Court of Appeal of Florida, First District.
    May 15, 2003.
    Rehearing Denied June 18, 2003.

      Pro se, for Petitioner.
    Charlie Crist, Attorney General; and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Jeremy Riggs, the petitioner, seeks cer-tiorari review of the trial court’s order denying his motion for modification/reduction of sentence. We have jurisdiction. See Jolly v. State, 803 So.2d 846 (Fla. 1st DCA 2001); Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999); Roauer v. State, 697 So.2d 1303 (Fla. 2d DCA 1997). However, Petitioner has not met the rigid standard of certiorari review. See Haines City Community Development v. Heggs, 658 So.2d 523 (Fla.1995) (stating that certiorari standard of review is whether circuit court afforded due process and complied with the essential requirements of law). Riggs misplaces his reliance on factually distinguishable cases like Jolly, Davis, and Roauer permitting certiorari review of the denial of a motion to reduce sentence where the trial court procedurally erred, e.g., by mistakenly basing the denial on a finding of untimeliness. The State correctly notes that an order denying a motion to mitigate sentence is not a directly appealable order. See, e.g., Zamora v. State, 810 So.2d 1043 (Fla. 3d DCA 2002); Oser v. State, 699 So.2d 844 (Fla. 4th DCA 1997); Lee v. State, 662 So.2d 731 (Fla. 2d DCA 1995); Daniels v. State, 568 So.2d 63 (Fla. 1st DCA 1990) (dismissing based on finding that district court lacked jurisdiction to review order denying mitigation or reduction of sentence). Therefore, Petitioner has demonstrated no proper basis for relief.

PETITION DENIED.

ALLEN, C.J., WEBSTER and BROWNING, JJ., concur.


author: THOMPSON, C.J.

text:
    Kenny JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-881.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    Rehearing Denied June 26, 2003.

      Kenny Jackson, Lowell, pro se.
    No Appearance, for Appellee.
   THOMPSON, C.J.

Kenny Jackson appeals the summary denial of his Rule 3.800(a) motion to correct sentence. We affirm.

Jackson was convicted of trafficking in cocaine and was sentenced to five years’ imprisonment. The court imposed a three-year minimum mandatory'-term pursuant to section 893.135(l)(b)l.a., Florida Statutes (1999). Jackson claims that the court should not have imposed the three-year minimum mandatory term because Chapter 99-188, Laws of Florida, which amended section 893.135(l)(b)l.a. to add the minimum mandatory term, was enacted in violation of the single subject rule. He further claims that a later enactment did not cure the constitutional defect.

In Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), the court held that chapter 99-188 violated the single subject rule. In response to Taylor, the legislature enacted Chapters 02-208, 02-209, 02-210, 01-211, and 02-212, Laws of Florida, which reenacted the provisions of chapter 99-188. The 2002 chapter laws provide that they are to be applied retroactively to the extent the federal and state constitutions permit. In Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), citing Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), we held that the 2002 chapter laws could be applied retroactively without violating constitutional principles. See also Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002). In Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), however, the court held that retroactive application of chapter 02-212 would violate the ex post facto clauses of the United States and Florida constitutions. Chapter 02-212 applies in the instant case.

Based on this court’s precedent in Hersey, we affirm the order denying Jackson’s motion, but we certify conflict with Green.

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

      . Article III, section 6, of the state constitution provides in part that "[ejvery law shall embrace but one subject and matter properly connected therewith....”


author: BENTON, J.

text:
    LEVINE, BUSCH, SCHNEPPER & STEIN, P.A., Appellant, v. POOL PILING ENTERPRISES, Travelers Insurance Company and William Guzman, Appellees.
    No. 1D02-2735.
    District Court of Appeal of Florida, First District.
    May 20, 2003.
    Rehearing Denied June 18, 2003.

      Barbara Ellen Schnepper, Esquire of Barbara E. Schnepper, P.A., Miami, and David Levine, Esquire of Levine, Busch, Schnepper & Stein, P.A., Miami, for Appellant.
    Robert L. Teitler, Esquire of Walton, Lantaff, Schroeder & Carson, Miami and Esther B. Nickas, Esquire of the Law Offices of Esther B. Nickas, Miami, for Appehee Pool Piling Enterprises and Travelers Insurance Company.
    Thomas L. Hurst, Esquire of Proenza, Roberts & Hurst, P.A., Miami, for Appel-lee William Guzman.
   BENTON, J.

Levine, Busch, Schnepper & Stein, P.A. (the firm), appeals the order of the judge of compensation claims dismissing its notices of hen, which were predicated on an order entered June 19, 1987, adopting the parties’ “Stipulation for Order on Attorney’s Fees.” We reverse.

Insofar as pertinent here, the stipulation adopted by the June 19,1987 order provided that the firm “shah be paid ... $5,000 by William Guzman [the claimant] representing his share of the attorney’s fee (25%).” The firm filed a notice of lien on September 27,1995, and a second notice of hen on May 9, 2001.

On October 23,1995, Mr. Levine and the firm ceased to represent Mr. Guzman, and the first of a series of successor counsel became attorney of record. On August 25, 2000, a “washout” settlement was negotiated pursuant to section 440.20(11), Florida Statutes (2000), subject to “resolution of the hen of the firm of Levine, Busch, Schnepper & Stein, P.A.”

When Travelers Insurance Company (Travelers) declined, on behalf of Pool Piling Enterprises, the claimant’s employer, to satisfy the firm’s hen from funds allocated for the washout settlement, the firm sought an order from the judge of compensation claims requiring that Travelers pay $5,000 directly to the firm on Mr. Guzman’s behalf, before disbursing the remaining funds to him. But, in the order under review, the judge of compensation claims denied the firm all relief and, on the judge’s own motion, struck the firm’s notices of hen.

By statute, a hen for attorney’s fees attaches to a claimant’s benefits whenever a judge of compensation claims determines that the claimant is responsible for attorney’s fees incurred in obtaining compensation benefits for the claimant. See § 440.34(4), Fla. Stat. (2002) (“In such cases in which the claimant is responsible for the payment of her or his own attorney’s fees, such fees are a hen upon compensation payable to the claimant ... ”). Since originally enacted as section 440.34(3), Florida Statutes (1979), the statutory language providing for creation of such hens has remained virtually unchanged.

The hen arises when the judge of compensation claims awards the fee. See Zarahn v. City of Milton, 433 So.2d 41, 42 (Fla. 1st DCA 1983) (“[T]o enforce his right to the statutory hen, it is incumbent upon counsel to obtain an order from the deputy commissioner approving the fee ... and directing the manner of enforcing the lien.”); Seminole Inn v. Ray, 408 So.2d 1061, 1063 (Fla. 1st DCA 1981) (“Even under the new attorney’s fee statute ... expressly providing for an attorney’s fee hen upon compensation payable to the claimant ... an employer/carrier are not obligated to send compensation checks jointly payable to the claimant and his attorney until the deputy commissioner has approved a reasonable fee.”). We held that an order was required in Wekiwa Concrete v. Reddick, 396 So.2d 832, 833 (Fla. 1st DCA 1981), saying that an “attorney is not automatically entitled to a hen on compensation for merely representing the claimant,” and directing counsel to “obtain an order from the deputy [now the judge of compensation claims] approving the fee agreement and providing a method for enforcing the hen by means involving minimal burden.”

A minimal burden determination is necessary, however, only where the fee owed must be paid from a series of periodic payments. See East Coast Tire Co. v. Denmark, 381 So.2d 336, 340 (Fla. 1st DCA 1980) (“The hen may be protected by providing for periodic payments of compensation jointly to claimant and counsel to whatever extent necessary to secure payment of any fees found to be reasonable, or by other means involving minimal burden.”). Such a determination assures that a maximal portion of periodic payments remains available to the injured employee for living expenses. See Zarahn, 433 So.2d at 42 (reversing order requiring that 100% of claimant’s monthly benefits be paid to an attorney until the entire fee was paid, in order not to thwart “‘the pubhc pohcy of affording the claimant necessary minimum living funds and cast the burden of support for that person on society generally’ ” (quoting Samaha v. State, 389 So.2d 639, 640 (Fla.1980))). At this juncture, however, the present case does not involve periodic payments.

Striking the notices of hen was error. The firm’s entitlement to an attorney’s fee is clear under the order entered on June 19, 1987. The amount of attorney’s fees is not in question. Cf. Wekiwa Concrete v. Reddick, 396 So.2d at 834. Not only are the claimant’s efforts to raise a laches defense for the first time on appeal procedurally foreclosed, they fail to address the fact that the claimant, not the firm, has benefitted from the substantial delay the firm has encountered in collecting fees due for its work. A judge of compensation claims cannot extinguish a lien that the statute grants. See generally Sun Bank v. Jakubowski, 583 So.2d 782, 783 (Fla. 5th DCA 1991) (“[W]here the right to file a lien is granted by statute, and the lien is filed in compliance with the statute, the court has no discretion to strike it”).

On remand, the judge of compensation claims may be able to induce satisfaction of the lien under section 440.24(4), Florida Statutes (2002). When a claimant has been ordered to pay attorney’s fees, “the judge of compensation claims may ... suspend payments due under [the employee’s] claim [on the merits] until the employee complies with [the attorney’s fee] order.” § 440.24(4), Fla. Stat. (2002).

The order under review is reversed, and the case is remanded for further proceedings consistent with this opinion.

BOOTH and POLSTON, JJ., concur.


text:
    James L. ESTES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4295.
    District Court of Appeal of Florida, First District.
    May 20, 2003.
    Rehearing Denied June 18, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 14, 2003, the Court has determined that the notice of appeal was not timely filed. Thus, the Court lacks jurisdiction to review the order on appeal. Accordingly, the appeal is hereby dismissed.

DISMISSED.

ALLEN, C.J., WEBSTER and VAN NORTWICK, JJ., concur.


text:
    SOUTHWEST FLORIDA EQUIPMENT, INC.; South Dade Tire, Inc.; Lawrence Albregts; and Ryan Albregts, Appellants, v. TRAK INTERNATIONAL, INC., Appellee.
    No. 3D02-3067.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    Rehearing Denied June 25, 2003.
    Schneider & Heffner and Adam G. Heff-ner, for appellants.

      Moscowitz, Moscowitz & Magolnick and Joel S. Magolnick and Farah J. Martinez, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Elmore v. Florida Power & Light Co., 760 So.2d 968 (Fla. 4th DCA 2000); Carpenter Contractors of Am., Inc., v. Fastener Corp. of Am., Inc., 611 So.2d 564 (Fla. 4th DCA 1992); Evans v. Delro Indus., Inc., 509 So.2d 1262 (Fla. 1st DCA 1987).


author: STEVENSON, J.

text:
    Rafael SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1527.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.
    Rehearing Denied July 3, 2003.
    Marisa Tinkler Mendez of Marisa Tink-ler Mendez, P.A., Coral Gables, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Rafael Sanchez timely appeals his convictions for possession of cocaine, trafficking in cocaine, and possession of a firearm by a convicted felon. Sanchez advances four issues on appeal, all directed to the propriety of the trial court’s denial of his motion to suppress. We affirm and write to address only his claims that the traffic stop was simply a pretext and that the length of the stop exceeded what was necessary to issue a traffic citation.

The Evidence at the Suppression Hearing

The evidence at the hearing established that police had received an anonymous tip that Sanchez was transporting cocaine to the north from Miami, via Florida’s Turnpike. As a consequence of the tip, police began conducting surveillance on Sanchez’s home.

On November 3, 1999, the Miami police followed Sanchez when he did not take his usual route to work, but instead headed north on 1-95. When Sanchez got on the turnpike and headed north, the Miami police requested assistance from other jurisdictions. In order to effect a stop of Sanchez’s vehicle, Florida Highway Patrol Troopers Rodriguez, a canine officer, and Greco were called. Rodriguez stated that although he normally works in the Dade County area, on this particular occasion his supervisor requested that he call a Miami detective and work with him. Rodriguez was advised by the Miami detective that they were following a green Suburban that was possibly carrying drugs and was provided with the tag number. Since Rodriguez was so far south, he contacted Trooper Greco.

Greco stated that he was at mile marker sixty-six when he received the call from Rodriguez and that it took him about a half hour to locate Sanchez’s vehicle. At the time he spotted Sanchez’s vehicle, Trooper Greco was at mile marker 128. Greco testified that he followed the car for a distance and performed a “pace clock,” determining that Sanchez was traveling at seventy-eight miles per hour — eight miles per hour over the posted speed limit. Gre-co initiated a stop of Sanchez’s vehicle.

Greco testified that after Sanchez got out of his car, he informed him that he had been stopped for speeding. Greco described Sanchez as nervous and shaking. When Sanchez provided his driver’s license, Greco noticed that the license was restricted to business purposes. Consequently, Greco ran a check on the license and spoke to Sanchez regarding where he was headed and the reasons for his travel. Sometime thereafter, Trooper Rodriguez arrived. Greco could not say how long it took Rodriguez to arrive, but did testify that he was still writing the traffic ticket. Greco acknowledged that he had initially intended to issue Sanchez only a warning, but was persuaded by Rodriguez to issue a citation. According to the time listed on the traffic citation, Greco stopped Sanchez’s vehicle at 9:11 a.m.

For his part, Rodriguez testified that during his last conversation with Greco, Greco informed him that he had stopped the vehicle at mile marker 128. Rodriguez testified that he arrived on the scene about five to ten minutes after this conversation. Rodriguez approached Sanchez and asked for permission to search the car. Sanchez agreed and signed a written consent form. The time documented on the consent form was 9:30 a.m. Trooper Rodriguez’s dog, Lex, alerted to the right rear of the vehicle. Ultimately, cocaine and a firearm were recovered.

Sanchez testified that he operates a potato processing business and that he was headed north for business reasons. Sanchez confirmed that he was stopped near mile marker 120-something, but denied that he was speeding. As for the shaking, Sanchez testified that it was cold that day. Sanchez acknowledged that Greco asked him for his license and registration, taking it to his patrol car, and stated that when the officer returned, he questioned him about his destination. According to Sanchez, it was not until some twenty minutes later that the canine officer arrived. Sanchez confirmed that the canine officer had asked for his consent to search the vehicle and that he had said “yes.” According to Sanchez, however, he believed that he had no choice in the matter.

The Trial Court’s Ruling

The trial court found that Trooper Greco was a credible witness and that the stop had been made because Sanchez was speeding. The court further found that the troopers had probable cause to search the car once the dog alerted, that probable cause was obtained prior to Sanchez’s arrest, and that the officers were in the process of issuing a traffic citation. On these facts, the judge denied Sanchez’s motion to suppress.

Sanchez’s Claim that the Stop was a Pretext

Sanchez spends much of his brief arguing that the traffic stop was simply a pretext and that what the police were really intending to do was stop him because they believed that he was carrying drugs. In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court decided this issue adversely to Sanchez, holding that the officer’s subjective reasons for a stop are not significant and that the question that must be resolved is simply whether there was a reasonable suspicion as to the traffic offense. See also Holland v. State, 696 So.2d 757, 759 (Fla.1997)(adopting Whren’s objective standard in Florida).

Sanchez complains that the facts of his case are so egregious as to take them outside of Whren, arguing that police were essentially lying in wait until he committed a traffic infraction. First, we point out that, in deciding Whren, the Supreme Court considered and rejected precisely the type of argument that Sanchez advances here.

It is of course true that in principle every Fourth Amendment case, since it turns upon a “reasonableness” determination, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause....
Where probable cause has existed, the only cases in which we have found it necessary actually to perform the “balancing” analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual’s privacy or even physical interests — such as, for example, seizure by means of deadly force, unannounced entry into a home, entry into a home without a warrant, or physical penetration of the body....
Petitioners urge as an extraordinary factor in this case that the “multitude of applicable traffic and equipment regulations” is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement....
For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure.

517 U.S. at 817-19, 116 S.Ct. 1769 (citations omitted)(emphasis added).

Second, we note that jurisdictions other than Florida have considered Whren’s application under facts similar to those present here. For instance, in Damato v. State, 64 P.3d 700 (Wyo.2003), an officer stopped the defendant at about 3:30 p.m. During the stop, the officer became suspicious because the defendant was nervous, his luggage was in the back seat and not the trunk, there were a lot of fast food wrappers on the floorboard, and the defendant gave inconsistent stories regarding where he had rented the car and where he was going. The officer asked to search the car, but the defendant refused. The officer let him go without issuing a citation.

Then, the officer radioed dispatch and asked that other officers keep an eye out for the defendant, describing his observations and relaying that the defendant had declined to consent to a search. A second officer saw the defendant’s car and followed it until he was able to clock the defendant driving seventy-seven miles per hour in a seventy-five mile per hour zone. The Wyoming Supreme Court held that, under the objective standard in Whren, the traffic stop did not violate the Fourth Amendment. See 64 P.3d at 705-06; see also People v. Thompson, 283 Ill.App.3d 796, 219 Ill.Dec. 241, 670 N.E.2d 1129 (1996).

Sanchez’s Claim that he was Detained Longer than Necessary to Issue a Traffic Citation

Once a police officer stops a car for a traffic infraction, the officer is then justified in detaining the driver “only for the time reasonably necessary to issue a citation or warning, ..., unless he ha[s] a reasonable suspicion of criminal activity.” State v. Moore, 791 So.2d 1246, 1249 (Fla. 1st DCA 2001)(citing Thomas v. State, 614 So.2d 468 (Fla.1993), and Cresswell v. State, 564 So.2d 480 (Fla.1990), among others). Sanchez repeatedly asserts that some twenty to thirty minutes elapsed between Trooper Greco’s stop of his vehicle and the canine officer’s arrival. According to Sanchez, this was simply longer than necessary for the issuance of a traffic ticket.

Trooper Rodriguez’s version of events, however, is that only some five to ten minutes passed. According to Greco, during this time, he obtained Sanchez’s license and registration, ran a check on the same, noticed that Sanchez’s license was restricted to business purposes, and questioned Sanchez regarding his destination. And, more significantly, Trooper Greco stated that he was still writing the citation when Rodriguez arrived. The judge accepted the troopers’ version. Where the police are still in the process of investigating and writing the ticket, the detention is not rendered unreasonable when other law enforcement personnel, including canine officers, converge on the scene. See Sands v. State, 753 So.2d 630, 632 (Fla. 5th DCA 2000)(holding that detention was not unreasonable where only fifteen minutes had passed between the initial stop and the arrival of the canine officer and the officer was still writing the ticket), cert. denied, 531 U.S. 1178, 121 S.Ct. 1155, 148 L.Ed.2d 1016 (2001).

In reaching our decision, we are aware of the Second District’s recent decision in Nulph v. State, 838 So.2d 1244 (Fla. 2d DCA 2003). In that case, police had information that Peter Dion was staying at a particular residence and had a large quantity of drugs. The day after receiving the information, police were conducting surveillance in Dion’s neighborhood and, when his car left, they followed. The police ultimately stopped Dion’s car for careless driving. Nulph was a passenger in the car.

After determining that Dion was the driver, the officer attempted to locate a canine unit. Since the sheriffs dogs were unavailable, an officer from the City of Winter Haven Police Department assisted. It took the Winter Haven canine officer seventeen minutes to arrive. In the meantime, the officer who initiated the stop ran a driver’s license and registration check on Dion and a warrants check on both Dion and Nulph. It took about fifteen minutes for the officer to perform these tasks, and by the time the canine officer arrived, the officer who initiated the stop was standing at the back of his car waiting. In fact, the officer who initiated the stop testified that

I had finished running the warrants checks and everything, and basically I was just standing by and keeping myself organized. I was actually digging out some arrest affidavits from the trunk when he [the canine officer] showed up.

Nulph, 838 So.2d at 1245. The same officer also stated that he had made a conscious decision not to start writing the ticket because he wanted to wait for the canine officer. Ultimately, no citation was issued. On this evidence, the Second District reversed the trial court’s order denying Nulph’s motion to suppress, finding that the detention was unreasonably long. See id. at 1246.

NuVph is distinguishable from the instant case. There, the officer acknowledged that he had completed running the license and registration checks and was simply waiting for the canine officer. That is simply not the case here. Here, initially Trooper Greco attempted to determine whether appellant was complying with the “business use” only restriction on his driver’s license. Then, Greco testified that he was still in the process of writing the ticket when the canine officer arrived. Thus, unlike the situation in Nulph, appellant was not detained longer than necessary to complete the traffic stop for the purpose of waiting for other law enforcement personnel to arrive.

Accordingly, the order denying Sanchez’s motion to suppress is AFFIRMED.

HAZOURI and MAY, JJ., concur.


text:
    Sheldon SEEHARACK, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-3609.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.
    Rehearing Denied July 3, 2003.
    Carey Haughwout, Public Defender, and Jeffrey Anderson and Samuel A. Walker, Assistant Public Defenders, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003)(en banc).

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    J.J. GUMBERG CO., a Delaware corporation, Appellant, v. JANIS SERVICES, INC., a Florida corporation, and Colonia Insurance Company, a Delaware corporation, Appellees.
    No. 4D02-1953.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Rehearing Denied July 8, 2003.

      Caryn L. Bellus and Valentina Tejera of Kubicki Draper, Miami, for appellant.
    Jerome A. Pivnik of Pivnik & Nitsche, P.A., Miami, for appellee Janis Services, Inc.
   PER CURIAM.

Appellant, J.J. Gumberg Co. (Gumberg), appeals from the dismissal -with prejudice of the complaint it filed against appellee, Janis Services, Inc. (Janis), in October 2001. We affirm in part and reverse in part.

In May 1994, Jams entered into a construction contract to remodel the food court at the Coral Ridge Mall which was maintained and operated by Gumberg. On June 29,1994, an employee of Janis, Samuel Green, was injured while working at the Mall. Green filed suit against Gumberg in case number 97-12195 and Gumberg filed a third party complaint containing three counts against Janis. Count I was for contractual indemnity, Count II was for contribution, and Count III was for common law indemnity. Upon Janis’s motion to dismiss, Counts II and III were dismissed with prejudice and the remaining count, alleging contractual indemnity, was set for trial in January 2001.

Shortly before trial, Gumberg filed a motion for leave to amend its third party complaint to amend its claim for contractual indemnity and add two claims for breach of contract, and one for declaratory relief. The trial court denied the motion to amend. Gumberg settled with Green and the trial court entered a partial order of dismissal. Gumberg renewed its motion to amend which the trial court denied. The contractual indemnity suit against Janis remains pending.

In October 2001, Gumberg filed a new complaint against Janis and Colonia Insurance Company, Janis’s insurance company. There were two counts against Janis for breach of the construction contract and one count for declaratory relief against Janis and Colonia. These counts were essentially the same as three of the counts proposed in Gumberg’s motion to amend in case number 97-12195. This new cause, case number 01-17838, was transferred to the trial judge presiding over case number 97-12195.

Janis then filed a motion to dismiss Gumberg’s new complaint arguing that each claim was barred by the statute of limitations and further that the claims should be dismissed for improper splitting of causes of action. The trial court granted the motion to dismiss with prejudice as to all three counts without stating the grounds for its dismissal.

The two claims for breach of contract are based upon Gumberg’s allegations that Janis breached the provisions of the contract requiring Janis to obtain liability insurance and to keep the construction area clean and follow safety precautions. In Abbott Lab., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000), the court held that “[ujnder section 95.11(2)(b), the limitations period begins to run when ‘the last element constituting the cause of action occurs.’ § 95.031(1), Fla. Stat. (1997). The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages.”

Assuming that Janis breached the contract by failing to obtain liability insurance and by failing to clean up and maintain safety precautions at the time Green was injured in June of 1994, all the elements for a cause of action for breach of contract existed. Therefore, the trial court correctly dismissed these two claims as they are barred by the statute of limitations.

In the third count, Gumberg brought a declaratory judgment action against Janis and Colonia asking the trial court to determine the rights of Gumberg under the insurance policy issued to Janis. The issues for determination are whether Gumberg was an additional insured under the policy at the time of Green’s accident and whether Gumberg was entitled to coverage and a defense from Colonia. In this claim, the contract at issue is the insurance contract between Janis and Colonia. “In regard to insurance contracts, a specific refusal to pay a claim is the breach which triggers the cause of action and begins the statute of limitations running.” Donovan v. State Farm Fire and Cas. Co., 574 So.2d 285, 286 (Fla. 2d DCA 1991). When Gum-berg settled Green’s negligence action in January 2001, the issue of coverage under the insurance policy became ripe for determination. Therefore, this declaratory judgment action was filed well within the statute of limitations.

Janis further argues that this claim was properly dismissed because there was an improper splitting of a cause of action. This rule is inapplicable here because Gumberg has not previously filed any action on Gumberg’s right to insurance coverage under Janis’s insurance policy purchased through Colonia.

Although the statute of limitations has run on Gumberg’s claims for breach of contract between Gumberg and Janis, this does not preclude the declaratory judgment action for a determination as to whether coverage exists for Gumberg under the policy of insurance purchased by Janis from Colonia. The declaratory judgment action will determine whether there is coverage for Gumberg. It is unclear why Gumberg chose to make Janis a party to the declaratory judgment action but that issue is not before us.

Based upon the foregoing, we affirm the trial court’s dismissal of the two causes of action for breach of contract. We reverse the dismissal of the declaratory judgment action and remand for further proceedings.

AFFIRMED in part; REVERSED in part.

STEVENSON and HAZOURI, JJ., concur.

MAY, J., concurs in result only.

      . Section 95.11(2)(b), Florida Statutes (1994), provides:
      Actions other than for recovery of real property shall be commenced as follows:
      (2) Within five years.—
      (b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.


text:
    Barry KRISCHER, State Attorney and the State of Florida, Appellants, v. Michael FORD, Appellee.
    No. 4D02-2283.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Rehearing Denied July 10, 2003.

      Charles J. Crist, Jr. Attorney General, Tallahassee, and Richard L. Polin, Assistant Attorney General, Miami, for appellants.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State appeals a trial court order, which granted the defendant’s motion to enforce the plea agreement and ordered the release of the defendant from the “care, custody and control of Florida Department of Children and Families.” The defendant had been held pursuant to a probable cause finding under the Jimmy Ryce Act. We treat this appeal as a petition for writ of certiorari. Satz v. Runion, 838 So.2d 689 (Fla. 4th DCA 2003); State v. Stapleton, 764 So.2d 886 (Fla. 4th DCA 2000); State v. Pettis, 520 So.2d 250 (Fla.1988).

For the reasons set forth in Runion, we grant the petition and quash the trial court’s order. See also Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d -, 2002 WL 31728885 (Fla. Dec. 5, 2002); Krischer v. Faris, 838 So.2d 600 (Fla. 4th DCA 2003).

STONE, STEVENSON and MAY, JJ., concur.

      . We note the trial court did not have the benefit of Murray, Faris, and Runion when it ruled on the defendant's motion.


author: KLEIN, J.

text:
    Joseph M. PRICE, Jr., Appellant, v. CITY OF BOYNTON BEACH, Appellee.
    No. 4D02-2656.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Rehearing Denied July 3, 2003.

      James D. Riecks of Thero & Riecks, P.A., West Palm Beach, for appellant.
    Michael D. Cintilo, Jr. of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellee.
   KLEIN, J.

The trial court granted the city’s motion for temporary injunction for protection against repeat violence which alleged that appellant had made verbal threats against city employees. We reverse because the injunction was based on hearsay evidence.

The trial court quoted in the injunction from the deposition of a psychiatrist, which had been taken in appellant’s workers’ compensation case, in which the psychiatrist testified that appellant had made threats, talked about his guns, and was a danger. Appellant objected on the ground of hearsay, but the trial court ruled that it would be admissible simply because it was a deposition of an expert. That ruling would have been proper if the deposition had been taken in this case. It was taken, however, in a proceeding involving different issues. It does not accordingly meet the requirements of the hearsay exception for former testimony, section 90.803(22), which requires that the party against whom the testimony is offered had the opportunity and motive to cross-examine the witness in the prior proceeding. The city did not establish that the deposition complied with these requirements.

We also agree with appellant that the testimony of a witness that a workers’ compensation mediator had expressed concerns about threats made by appellant, was inadmissible as hearsay. The city argues that the mediator’s concerns were admissible as excited utterances; however, the trial court made no such finding and we cannot, on the basis of this record, assume that they were.

The court also erred in admitting a letter written by appellant’s workers’ compensation counsel, on the ground that the counsel was his agent. There was no showing that the harmful statement made by counsel was within the scope of her agency. § 90.803(18)(d), Fla. Stat. (2002).

We therefore reverse the temporary injunction.

GROSS and TAYLOR, JJ., concur.

      . This statute was held unconstitutional in a criminal case, where the witness was not shown to be unavailable, as violative of the Confrontation Clause of the Sixth Amendment. State v. Abreu, 837 So.2d 400 (Fla.2003). The statute has also been held to be unconstitutional because it violates Article V, Section 2(a) which vests the Florida Supreme Court with the sole authority to adopt rules for practice and procedure. Grabau v. Dep’t of Health, 816 So.2d 701 (Fla. 1st DCA 2002). The common law rule allowing the use of former testimony requires, among other things, that the issues are substantially the same in both cases and the witness is not available. Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984). That rule is codified in section 90.804(2)(a), which differs from section 90.803(22) in that the witness must be unavailable under section 90.804(2)(9). Our resolution of this issue does not require us to consider constitutionality-


text:
    John Edward THURSTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-565.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    John Edward Thurston, Milton, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice. See Leichtman v. Singletary, 674 So.2d 889 (Fla. 4th DCA 1996); Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981)(“[T]he remedy of habeas corpus is not available as a substitute for post-conviction relief under Rule 3.850, Fla. R.Crim. P.”).

STONE, STEVENSON and GROSS, JJ., concur.


text:
    Luis MARTINEZ, Appellant, v. Gustavo ZUBERO, Appellee.
    No. 4D03-728.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Rehearing Denied July 7, 2003.

      Luis Martinez, Jesup, Georgia, pro se.
    John F. Bradley, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. Rule 9.315(a).

FARMER, GROSS and MAY, JJ., concur.


text:
    Gary R. NIKOLITS, as Property Appraiser for Palm Beach County, Appellant, v. RUNWAY 5-23 HANGAR CONDOMINIUM ASSOCIATION, INC., a Florida condominium association, Appellee.
    No. 4D02-1202.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Rehearing Denied July 11, 2003.
    Jay R. Jacknin and Eddie E. Stephens, III, of Christiansen & Jacknin, West Palm Beach, for appellant.
    Benjamin K. Phipps of The Phipps Firm Tallahassee, for appellee.
   KLEIN, J.

The trial court held that airplane hangars, on airport land owned by a governmental entity, but leased through a condominium association to private users, were exempt from ad valorem taxation. The property appraiser appeals, and we affirm.

The Boca Raton Airport is a publicly operated general aviation facility located on land owned by the Trustees of the Internal Improvement Trust Fund (State), which is leased for ninety years to the Boca Raton Aviation Authority, a governmental entity. The aviation authority subleased the property to Boca Airport, Inc., a fixed-based operator from 1985 to 2028. The fixed base operator sub-subleased forty-one hangar spaces to Runway 5-23 Hangar Condominiums from 1993 to 2028. The condominium association leased the hangars to its members, private aircraft owners, until 2028, for a one time lump sum payment.

The condominium association alleged that the forty-one hangars were exempt from real property taxes under section 196.199(2)(a), Florida Statutes (1999), which exempts property owned and used by a governmental agency, and under section 196.012(6), Florida Statutes (1999), because this is an activity of “an aircraft full service fixed base operation which provides goods and services to the general aviation public.” The latter statute provides in part:

Governmental, municipal, or public purpose or function shall be deemed to be served or performed when the lessee under any leasehold interest created in property of the ... state ... is demonstrated to perform a function or serve a governmental purpose ... which would otherwise be a valid subject for the allocation of public funds. For purposes of the preceding sentence, an activity undertaken by a lessee which is permitted under the terms of its lease of real property designated as an aviation area on an airport layout plan which has been approved by the Federal Aviation Administration and which real property is used for the administration, operation, business offices and activities related specifically thereto in connection with the conduct of an aircraft full service fixed base operation which provides goods and services to the general aviation public in the promotion of air commence shall be deemed an activity which serves a governmental, municipal, or public purpose or function.

The hangars involved in this case are only a portion of the hangars on the airport property being used by private aircraft owners. The remaining hangars are leased by the fixed base operator directly to private aircraft owners in return for periodic payments. The property appraiser concedes that the latter are exempt from real property taxes under section 196.012(6), but differentiates the condominium hangers on the theory that they are real property owned by the association under the condominium statute, section 718.106, Florida Statutes, which provides that “a condominium parcel created by the declaration is a separate parcel of real property, even though the condominium is created on a leasehold.”

The association responds that the members of the association lease only the airspace, not the improvements, and that under the condominium declaration each member has a “leasehold condominium only and ... no interest whatsoever in the underlying fee or the leases.” It also emphasizes that this property is in fact owned by the state, just like the other hangars under short term leases, and that the rights of the members of the association to use these hangars will end in 2028. The association points out that the state has waived its immunity from real property taxes on property it owns in certain instances, for instance, where the lease is for 100 years, section 196.199(7), but none of these waivers apply here.

Section 718.106 provides that condominium parcels are separate parcels of real property; however, it does not address the question involved in this case, which is who owns the land and improvements. In the absence of any authority other than section 718.106, and the property appraiser cites none, we conclude that this property is owned by the state and is therefore not taxable. We also disagree with the appraiser’s argument that there are material issues of fact which would preclude summary judgment. Affirmed.

POLEN, C.J., and GROSS, J., concur.