text:
    FLORIDA BUILDING COMMISSION, Appellant, v. FLORIDA POOL AND SPA ASSOCIATION, INC. and Mark Rodrigue, Appellees.
    No. 1D03-1037.
    District Court of Appeal of Florida, First District.
    March 30, 2004.
    Rehearing Denied May 6, 2004.

      James L. Richmond, Assistant General Counsel, Department of Community Affairs, Tallahassee, for Appellant Florida Building Commission.
    Fred R. Dudley and Robert J. Telfer, III, of Akerman Senterfitt, Tallahassee, for Appellee Florida Pool and Spa Association, Inc.
    Steve Pfeiffer, David A. Theriaque and S. Brent Spain, of Theriaque & Pfeiffer, P. A., Tallahassee, for Appellee Mark Ro-drigue.
   PER CURIAM.

Appellant Florida Building Commission appeals the Administrative Law Judge’s order invalidating Florida Building Code section 424.2.17.1.9, adopted by the Commission in 2001, based upon an interpretation of section 13, chapter 2001-372, Laws of Florida. The Commission argues, in part, that the ALJ erred in interpreting section 13, chapter 2001-372 as giving effect to the rules the Commission adopted on November 28, 2000, and, therefore, evidencing the Legislature’s intent to invalidate the challenged rule. We agree with the Commission and, therefore, reverse.

I. Background

In 2000, the Legislature enacted the Residential Swimming Pool Safety Act. See ch.2000-143, Laws of Fla. (codified as chapter 515, Florida Statutes). In section 515.23, Florida Statutes (2002), the Legislature stated its intent that prior to the issuance of a certificate of completion, “all new residential swimming pools, spas, and hot tubs [must] be equipped with at least one pool safety feature as specified in [section 515.27, Florida Statutes].” In 2001, the Legislature further provided that:

[T]he Florida Building Code must provide uniform implementation of ss. 515.25, 515.27, and 515.29 by including standards and criteria for residential swimming pool barriers, pool covers, latching devices, door and window exit alarms, and other equipment required therein, which are consistent with the intent of s. 515.23.

Ch.2001-186, § 25, at 1528, Laws of Fla. (codified as section 553.73(2), Florida Statutes).

In response to this legislative pronouncement, the Commission adopted the Pool Alarm Rule, which provides:

All doors and windows providing direct access from the home to the pool shall be equipped with an exit alarm complying with UL2017 that has a minimum sound pressure rating of 85dBA at 10 feet and is either hard-wired or of the plug-in type. The exit alarm shall produce a continuous audible warning when the door and its screen are opened. The alarm shall sound immediately after the door is opened and be capable of being heard throughout the house during normal household activities. The alarm shall be equipped with a manual means to temporarily deactivate the alarm for a single opening. Such deactivation shall last no longer than 15 seconds. The deactivation switch shall be located at least 54 inches above the threshold of the door.

Fla. Bldg.Code § 424.2.17.1.9 (2002 revision) (emphasis added).

On June 17, 2002, appellee Florida Pool and Spa Association initiated an administrative rule challenge on various grounds to the Pool Alarm Rule. Appellee Mark Rodrigue later intervened. On February 12, 2002, the ALJ issued the Final Order, ultimately holding that the Pool Alarm Rule, to the extent it incorporated changes since November 28, 2000, was an invalid exercise of delegated legislative authority because it contravened section 13, chapter 2001-372, Laws of Florida. Section 13 reads as follows: “Notwithstanding section 10, the residential swimming pool safety requirements of the Florida Building Code, 424.2, relating to private swimming pools, of Rule 9B-3.047, Florida Administrative Code, as adopted November 28, 2000, shall take effect January 1, 2002.”

II. Section IS, Chapter 2001-372, Laws of Florida

The ALJ interpreted the language of section 13, chapter 2001-372 to mean that the residential swimming pool safety rules that were adopted on November 28, 2000, went into effect January 1, 2002, and continued in effect indefinitely. Therefore, the ALJ further concluded that the Legislature disapproved of the rules the Commission adopted in 2001, which included the Pool Alarm Rule, and those rules were not to have effect. The ALJ’s interpretation is erroneous because it requires construing section 13 in isolation, although it clearly refers to section 10, chapter 2001-372. Section 10 reads as follows: “Rule 9B-3.047, Florida Administrative Code, as it existed before November 28, 2000, is adopted [as of December 17, 2001, the effective date of this act] and will remain in force until the [March 1, 2002] effective date of the Florida Building Code as established in this act.” Id. §§ 2, 10, at 167, 169.

By referring to section 10, section 13 incorporates the timeline set forth in section 10 for the adoption of the new Florida Building Code rules. However, section 13 then carves out an exception to the section 10 timeline for the residential swimming pool safety requirements of the Florida Building Code. Id. § 13, at 169. Rather than making a previous version of the rules effective from December 17, 2001, until March 1, 2002, as section 10 requires, section 13 adopts a previous version of the rules from January 1, 2002, until March 1, 2002, when the new residential swimming pool safety requirements went into effect. Id. Therefore, in pertinent part, section 13 differs from section 10 only m the date the previous version of the rules became effective, not in the date on which the previous version of the rules were terminated and the new rules became effective. This interpretation harmonizes section 13 with all of chapter 2001-372 to give effect to a new uniform Florida Building Code. See Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-915 (Fla.2001) (“A basic tenet of statutory interpretation is that a ‘statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.’ ”); Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (same).

Sections 1 through 7 of chapter 2001-372 delay the effective date of the new Florida Building Code rules until March 1, 2002. See ch.2001-372, §§ 1-7, at 167-68, Laws of Fla. Specifically, section 2 states that the effective date of section 25, chapter 2001-186, which instructed the Commission to provide rules for swimming pool safety devices, “is changed to March 1, 2002.” Id. at 167. In light of these sections, it is clear that chapter 2001-372 as a whole delayed the effective date of the swimming pool safety rules and other rules of the Florida Building Code until March 1, 2002, and that section 13 in particular merely instructed that until that time, and after January 1, 2002, the November 28, 2000 rules for residential swimming pool safety would be in effect.

We, therefore, reject appellees’ argument that section 13 adopted a previous version of the Florida Building Code rules indefinitely and conclude that the ALJ’s interpretation of section 13 was in error. Accordingly, we hold that Rule 9B-3.047 (424.2.17.1.9) of the Florida Building Code [Amended 2/7/01 and 12/16/01] to the extent it incorporates changes to section 424.2.17.1.9 of the Florida Building Code is valid, and the order below is REVERSED.

WOLF, C.J., PADOVANO and POLSTON, JJ., concur.

      . Appellees argue that even if the ALJ erred in her interpretation of section 13, chapter 2001-372, this Court should nevertheless affirm the ALJ’s invalidation of the rule because the rule is an invalid exercise of delegated legislative authority. The law and the record below do not support appellees’ argument.

      . See ch.2001-372, § 13, at 169, Laws of Fla.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AT&T WIRELESS and Kemper Insurance, Appellants, v. Valerie FRAZIER, Appellee.
    No. 1D03-0911.
    District Court of Appeal of Florida, First District.
    March 30, 2004.

      Mark A. Faris, of Hinshaw & Culbertson, Fort Lauderdale, for Appellants.
    Glen Wieland, Orlando, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

The employer and the workers’ compensation insurance carrier (E/C) appeal an order of the Judge of Compensation Claims (JCC) denying their request for appointment of an Expert Medical Advis- or (EMA) pursuant to section 440.13(9), Florida Statutes, based upon substantial conflicts in the medical opinions of the treating physician and the physician who performed an independent medical examination (IME) of the claimant. They also appeal the ensuing compensation order awarding the claimant permanent total disability benefits based upon the JCC’s acceptance of the opinion of the treating physician over the opinion of the IME physician. We reverse both orders, because the record demonstrates that the JCC misconstrued section 440.13(9) and misinterpreted the interplay between that provision and the time limit requirements of section 440.25, Florida Statutes (2002).

Section 440.13(9) imposes upon the JCC a statutory duty to order that the claimant be evaluated by an EMA before ruling on the merits of the petition for benefits whenever it becomes apparent that there is a substantial conflict in the medical opinions, even if the conflict in medical opinions becomes evident only after the merits hearing has begun, and even if neither party requests appointment of an EMA. See Palm Springs General Hospital v. Cabrera, 698 So.2d 1352 (Fla. 1st DCA 1997). See also Martinez v. Healthsouth Doctor's Hospital, 817 So.2d 1080 (Fla. 1st DCA 2002); Helmsman Management Services v. Garner, 725 So.2d 1188 (Fla. 1st DCA 1998); Claims Management, Inc. v. Lake, 717 So.2d 140 (Fla. 1st DCA 1998). And see Broward Children’s Center, Inc. v. Hall 859 So.2d 623 (Fla. 1st DCA 2003); Siemens Information & Communications Network v. Collins, 854 So.2d 271 (Fla. 1st DCA 2003). We read section 440.13(9) as consistent with the legislative intent expressed in section 440.015, that chapter 440 be interpreted “so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful employment.” In Cabrera, we rejected the argument that a party who has complied fully with all pretrial orders should nevertheless be foreclosed from requesting evaluation by an EMA, if the request is made with reasonable promptness once a conflict in the medical opinions become apparent, 698 So.2d at 1354.

We find that the E/C’s request for appointment of an EMA was made with reasonable' promptness after they discovered the conflict in the opinions of the treating physician and the IME physician, and that the JCC was therefore required to grant the request, notwithstanding that this would have necessitated continuing the scheduled merits hearing. The time limitations of section 440.25 are directory, not mandatory. See Brown v. Pumpian, 504 So.2d 481 (Fla. 1st DCA 1987). See also Miller v. Oolite Industries, Inc., 336 So.2d 1152 (Fla.1976); Scottie-Craft Boat Corp. v. Smith, 336 So.2d 1150 (Fla.1976). They do not foreclose appointment of an EMA when the request is made with reasonable promptness after the conflict in the medical opinions become apparent.

We find that the cases cited by the claimant in which requests for appointment of an EMA have been found to be untimely are distinguishable on their facts. We observe that if the claimant had attended the scheduled IME as the JCC ordered, the parties would have become aware of the conflict in the medical evidence and an EMA would have been appointed many months in advance of the scheduled final compensation hearing. Furthermore, the EMA’s opinion, which is statutorily presumed to be correct, may have resolved the disputed issues prior to the scheduled hearing.

The JCC’s order denying the E/C’s request for appointment of an EMA and the ensuing compensation order are both REVERSED and the case is REMANDED to the JCC for further proceedings consistent with this opinion.

BARFIELD, KAHN, and HAWKES, JJ., CONCUR.

      . Arvida River Hills Country Club v. Van Slyke, 728 So.2d 1213 (Fla. 1st DCA 1999) (post-hearing request for appointment of EMA made nine days after rendition of the compensation award, when all the medical testimony was adduced in pretrial depositions); W.S. Badcock Corp. v. Knight, 720 So.2d 619 (Fla. 1st DCA 1998) (request made two days before the final hearing, nine months after the conflict in medical opinions became apparent); Walsdorf Sheet Metal Works, Inc. v. Gonzalez, 719 So.2d 355 (Fla. 1st DCA 1998) (request made at the conclusion of the merits hearing, after final argument, more than five months after the conflict in medical opinion became apparent).


text:
    Bobby WILLIS, Appellant, v. PUBLIX SUPER MARKETS, INC., and Publix Risk Management, Appellees.
    No. 1D03-727.
    District Court of Appeal of Florida, First District.
    March 30, 2004.
    Rehearing Denied May 6, 2004.

      Mark G. Capron, Esquire, of Smith, Feddeler, Smith & Miles, P. A., Lakeland; Susan W. Fox, Esquire, and Brendan M. Lee, Esquire, of MacFarlane Ferguson & McMullen, Tampa, for Appellant.
    Curt Harbsmeier, Esquire, of Harbsmeier, Dezayas, Appel & Harden, LLP, Lake-land, for Appellees.
   PER CURIAM.

The claimant, Bobby Willis, appeals the judge of compensation claims’s (“JCC”) order and argues that the JCC erred by (i) finding that the employer/carrier (“E/C”) complied with the 120-day “pay and investigate” rule of section 440.20(4), Florida Statutes (2001), and (ii) allowing the “updated IME” of a psychiatrist into evidence. We affirm the JCC’s evidentiary ruling on the updated IME without further comment. The JCC’s 120-day ruling is reversed.

The claimant, employed by Publix Supermarkets, Inc., as a meat cutter, alleged work-related neck pain, back pain, and carpal tunnel syndrome from a March 17, 2001 accident under a repetitive trauma theory. The E/C accepted compensability for the carpal tunnel syndrome but denied the claimant’s petition for medical indemnity benefits for his neck and back pain.

The claimant initially sought medical treatment under his group health insurance and was treated by several doctors who diagnosed him with work-related problems. The claimant received surgery on June 25, 2001, for carpel tunnel syndrome. Also on June 25, 2001, the claimant initiated a petition for workers’ compensation benefits for his neck and back conditions. Publix decided to pay and investigate pursuant to the 120-day provision contained in section 440.20(4), Fla. Stat. (2001).

An independent medical evaluation (“IME”) was conducted on October 25, 2001,123 days after the claimant first notified Publix that he was filing a petition for benefits. The IME physician opined that the claimant had osteoarthritis and that his neck and back conditions were preexisting, not work-related. Based on this recommendation, the E/C denied compens-ability on November 1, 2001, 130 days after the claimant first sought workers’ compensation benefits for his neck and back conditions. The JCC found that the E/C’s denial of the neck and back conditions was within 120 days of the claimant’s petition for benefits. The JCC also found that a four-day extension for the employer to deny compensability was warranted, thus recognizing that the E/C did not deny compensability within the time period.

The claimant contends that it was error for the JCC to allow the E/C to deny compensability for the neck and back conditions claimed on June 25, 2001, when the E/C failed to deny compensability within 120 days as required by section 440.20(4), Florida Statutes (2001). We agree and, therefore, reverse on this issue. Because the record does not show that the E/C “establish[ed] material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period,” the E/C waived its right to deny compens-ability. See Clements v. Walt Disney World Co., 819 So.2d 1014, 1016 (Fla. 1st DCA 2002) (holding that the 120-day period begins to run when the claimant specifically requests the benefit); Franklin v. Northwest Airlines, 778 So.2d 418, 421-22 (Fla. 1st DCA 2001) (requiring the E/C to pay benefits even though injury did not arise out of employment because the E/C did not comply with 120-day requirement).

AFFIRMED in part; REVERSED in part and REMANDED.

WOLF, C.J., PADOVANO and POLSTON, JJ., concur.


author: ERVIN, J.

text:
    Fred LONGO, Appellant, v. ASSOCIATED LIMO and Associated Limo Self-Insurers, Appellees.
    No. 1D03-0702.
    District Court of Appeal of Florida, First District.
    March 30, 2004.
    Helene Hvizd Morris, West Palm Beach, and Daniel T. Gross of Basso, Gross & Fried, P.A., Fort Lauderdale, for Appellant.
    Barbara B. Wagner of Wagenheim & Wagner, P.A., Fort Lauderdale, for Appel-lees.
   ERVIN, J.

In this workers’ compensation appeal, claimant/appellant, Fred Longo, who was employed by appellee, Associated Limo, as a limousine driver, challenges a final order denying the compensability of injuries he sustained while on an unpaid dinner break. Longo complains that the judge of compensation claims (JCC) erred as a matter of law by failing to take into proper consid eration his status as a traveling employee. We agree and reverse.

The facts reveal that claimant, a resident of Pompano Beach, Florida, had last deposited a fare in Plantation at 7:45 p.m. on April 19, 2000, and was assigned to pick up a customer at the Miami International Airport at 10:00 p.m. He advised the dispatcher that during the interval he would obtain dinner. His accident occurred around 8:25 p.m., while his vehicle was proceeding in the southbound lane of 1-75, which is one of several possible routes that claimant could have taken to the airport. After reviewing the evidence, the JCC concluded that because claimant was on an unpaid dinner break at the time of the accident, he was not then performing a business purpose on behalf of the employer; hence, his injuries did not arise out of the employment, and for such reason the employment could not be considered the major contributing cause of the injuries.

The fact that claimant was on an unpaid dinner break when he suffered his injuries does not disentitle him from compensation. The JCC apparently overlooked the fact that claimant was a traveling employee whose duties consisted of local travel with no fixed site of employment. The rule is firmly established that the going-and-coming rule does not apply to employees in such category, because they are “deemed to be in continuous conduct of [their] employer’s business including those times when [they are] not actually at work but [are] engaged in such normal and necessary activities as eating and sleeping.” Leonard v. Dennis, 465 So.2d 538, 540 (Fla. 2d DCA 1985).

This court’s case law applying the traveling-employee rule has not been superseded by later statutory amendments. See Ramirez v. Farish, 855 So.2d 1182 (Fla. 1st DCA 2003) (in deciding that claimant’s injuries, suffered in 2000, were compensa-ble because of his status as a traveling employee, the court relied upon a number of cases predating statutory enactments to the going-and-coming and traveling-employee rules, including Leonard); McCormick v. Auditor Gen’l., 772 So.2d 612 (Fla. 1st DCA 2000) (reversing order denying compensability, because claimant, an accountant whose job consisted primarily of conducting field audits in three counties, and who was injured in 1998, while making a one-hour drive from an audit site to her home at the end of the day, was a traveling employee exempt from the going-and-coming rule, noting that she was reimbursed for all driving expenses, and was required by her job to undertake the hazards of driving long distances home, in contrast to the 15-minute drive between the Auditor General’s office and her home); Fla. Hosp. v. Garabedian, 765 So.2d 987 (Fla. 1st DCA 2000) (affirming order holding that home-health aide, whose job consisted of making home visits to patients in her geographical area, was a traveling employee, and thus the going- and-coming rule did not bar compensability of injuries sustained in 1997, while she was' driving home, because she had not completed her normal daily routine of calling the office, calling various patients, and preparing for the next day’s work, all of which she did from home).

In our judgment, Longo’s employment status falls squarely within the traveling-employee rule. Even more than the claimants in Ramirez, McCormick and Garabedian, Longo’s work as a limousine driver consisted exclusively of traveling. In such capacity, he was deemed as a matter of law to be in the service of his employer during his dinner break. Moreover, we consider it entirely reasonable for him to take meal breaks at restaurants during the time he was on duty. Compensability of his injuries logically follows from the above deci-sional law. As a result, his injuries arose out of and in the course of employment; therefore, his employment was the major contributing cause of his injuries.

REVERSED.

BOOTH, J., and SMITH, Senior Judge, concur.


author: WOLF, C.J.

text:
    Sarah Frances PEEPLES, n/k/a Sarah Frances Potts, Appellant, v. Lemuel C. PEEPLES, Jr., Appellee.
    No. 1D02-0920.
    District Court of Appeal of Florida, First District.
    March 30, 2004.
    Neal L. Betancourt, of Rotchford & Be-tancourt, P.A., Jacksonville, for appellant.
    Glenn K. Allen and Jennifer A. Bowens, of Glenn K. Allen, P.A., Jacksonville, for appellee.
   WOLF, C.J.

The former wife challenges a final order granting the husband’s supplemental petition to vacate and set aside a Qualified Domestic Relations Order (QDRO). She asserts that the doctrine of res judicata barred the granting of the husband’s supplemental petition. We agree and reverse.

The marriage of the parties was dissolved in August 1992. The Final Judgment of Dissolution of Marriage provided, in paragraph four, for the equitable distribution of the former husband’s/appellee’s retirement fund from his employer, providing that $600 per month would be paid to the wife from the retirement fund as part of the equitable distribution of assets:

The husband shall receive exclusive use, possession, and ownership of the proceeds from his pension/retirement from his employment with ITT Rayonier, except for $600.00 per month which shall be paid to the wife as part of the equitable distribution of assets.

On June 12, 1995, the trial court entered a QDRO pursuant to paragraph four of the Final Judgment of Dissolution of Marriage; both parties signed the QDRO as consenting to its provisions. The QDRO identified the former wife/appellant as the “Alternate Payee” on the pension funds and ordered that she be awarded the sum of $600 per month “over the life of the Alternate Payee”:

Alternate Payee, Sarah Frances Potts f/k/a Sarah Frances Peeples, is awarded and the administration of the plan is directed to pay, the sum of $600.00 per month from the Member’s Plan over the life of the Alternate Payee.

On June 30, 1995, the appellee/former husband filed a “Motion to Clarify Qualified Domestic Relations Order” asking the court to enter an amended QDRO on the grounds that the QDRO “inadvertently provides for retirement benefits to be paid to the former wife ‘over the life of the alternate payee’ ” when the clause should read “over the life of the member.”

A hearing was held on appellee’s Motion to Clarify where the trial court heard argument of counsel. Following the hearing, and based on the argument provided, the trial court entered an order denying the former husband’s Motion to Clarify the QDRO. The former husband’s motion for rehearing was also denied. The former husband filed a notice of appeal of the order denying his motion to clarify, but he voluntarily dismissed the appeal.

On January 22, 1996, the appellee/for-mer husband filed a “Motion for Relief from Order” in which he argued, among other things, that the trial court should, pursuant to rule 1.540, vacate the QDRO or amend the QDRO to reflect that the wife should receive $600 per month “over the life of the member.” This motion also questioned when the payments to the former wife should begin. An evidentiary hearing was held on the “Motion for Relief from Order,” following which the court denied the former husband’s motion for relief from the QDRO.

In April 1999, the appellee/former husband filed a “Supplemental Petition to Vacate and Set Aside the Qualified Domestic Relations Order,” in which he sought essentially the same relief and made essentially the same argument as he had in the prior “Motion for Relief from Order,” that the trial court should, pursuant to rule 1.540, vacate the QDRO. After hearing arguments of counsel in regard to the petition, the court granted the Supplemental Petition. That order is being appealed here.

The conditions precedent to application of the doctrine of res judicata are 1) identity in the things sued for; 2) identity of cause of action; 3) identity of persons and parties to the action; and 4) identity of the quality of the person for or against whom the claim is made. See, e.g., Albrecht v. State, 444 So.2d 8 (Fla.1984); Poe v. State Road Dep’t, 127 So.2d 898 (Fla. 1st DCA 1961). The test for determining the cause of action, for the purpose of applying res judicata, is the identity of the facts essential to the maintenance of the action. Poe, 127 So.2d at 899 (citing Youngblood v. Taylor, 89 So.2d 503 (Fla.1956)).

The appellee/former husband has on three different occasions attacked the same provision of the QDRO. In examining the motions side by side it is apparent that the “thing sued for” in all three motions is the same — in every one the appellant sought to have the QDRO amended to read that the former wife would not receive $600 a month from his pension plan for the duration of her life. In the second and third motions the “thing sued for” also included a claim that the QDRO misstated when the payments to the former wife should begin.

The appellee argues that the cause of action is different in each petition, and therefore, there is no identity in the cause of action. However, the determining factor in deciding if a cause of action is the same for purposes of applying res judicata, is whether facts or evidence necessary to maintain the suit are the same in both actions. Albrecht v. State, 444 So.2d at 12. In the instant case the facts and evidence sufficient for the trial court to have made its determination in the order granting the appellee’s Supplemental Petition are identical to the facts and evidence which were required by the court in denying appellee’s prior two motions: the “Motion to Clarify” and the “Motion for Relief from Order.”

The order on appeal is reversed.

PADOYANO and POLSTON, JJ., CONCUR.


author: HAWKES, J.

text:
    Annette C. SCOTT, the mother, Appellant, v. The ESTATE OF Todd Barrett MYERS, Appellee.
    No. 1D02-4617.
    District Court of Appeal of Florida, First District.
    March 31, 2004.

      Gordon P. Scott, Havana, for Appellant.
    Richard E. Benton, Tallahassee, for Ap-pellee.
   HAWKES, J.

The decedent’s mother, Appellant, Annette Scott, appeals from the trial court’s order requiring portions of estate administrative costs, in particular payment of funeral expenses, to be paid from the survivors’ wrongful death action recovery. We reverse.

Scott’s son, Todd Myers, and his friend, Micheál Gruver died in an automobile accident in a vehicle driven by Gruver in which Myers was a passenger. Myers’ will named Gruver beneficiary, and Graver’s daughter, Courtney Gruver, contingent beneficiary if Gruver failed to survive him. Other than Gruver and Ms. Gruver, Myers made no provision for any other person, including his mother, Scott.

Scott paid Myers’ funeral expenses, and filed a claim for the expenses against Myers’ estate. No objection to this claim was made. The only liquid assets of Myers’ estate was a bank account containing $126,486.46, $25,000.00 of which derived from the policy limits of Myers’ UM policy and $100,000.00 of which derived from Graver’s UM policy, which Graver’s insurer tendered without litigation. The personal representative filed a wrongful death suit against Graver’s estate but, after investigation, determined the estate had no additional assets to justify expenditure of additional Myers’ estate assets to pursue the survivors’ wrongful death claim.

The personal representative tendered the $125,000.00 proceeds from both UM policies to Myers’ parents, the only survivors under the wrongful death statute, and proposed to settle the wrongful death action against the Gruver estate without further action. Scott objected to terminating the wrongful death action and demanded the personal representative continue to pursue the survivors’ claims. Scott also sought to have the personal representative removed. The dispute centered on the likelihood of recovering additional compensation for the survivors, not whether the survivors had additional uncompensated damages.

Due to the dispute between the personal representative and Scott, the trial court ordered mediation, which ended unsuccessfully. Ultimately, the trial court satisfied Scott’s claim against the estate for funeral expenses by allocating a portion of the wrongful death proceeds already tendered as a survivors’ benefit as estate satisfaction of the funeral expense claim. By ordering satisfaction of the funeral expenses claim to be paid from the survivors’ wrongful death proceeds, the trial court erred.

In a wrongful death action, the personal representative has an obligation to recover damages sustained by both the survivors and the estate. See § 768.20, Fla. Stat. (2001). The types of damages recoverable by the estate and the survivors are enumerated by statute. See § 768.21, Fla. Stat. (2001). However, the damages allowed the estate are separate and distinct from damages recoverable by the deceased’s survivors. See Fla. Crushed Stone Co. v. Johnson, 546 So.2d 1102 (Fla. 5th DCA 1989). Proceeds from a wrongful death action are not for the benefit of the estate, and are not subject to estate claims. See Estate of Barton v. Poole, 631 So.2d 315, 316 (Fla. 2d DCA 1994). Rather, they are the property of the survivors and compensation for their loss. See id. Accordingly, estate debts cannot be recovered from wrongful death proceeds recovered for survivors. See id. Under the wrongful death act, one form of damages a survivor may recover are funeral expenses paid by the survivor. See § 768.21(5), Fla. Stat. (2001).

Here, the personal representative made no attempt to allocate any part of the recovered wrongful death proceeds to Myers’ estate to pay estate expenses, although allocation could have been explored under the rationale discussed in Estate of Wiggins v. Destin, 729 So.2d 523 (Fla. 4th DCA 1999), and no evidence exists that part of the recovery proceeds was for funeral expenses. Instead, there appears to be agreement that the survivors were not fully compensated for their loss, and if additional assets were recoverable, the survivors would be entitled to benefits from those proceeds. The personal representative concluded no part of the wrongful death proceeds should go to the estate, and determined the $125,000.00 payout of the combined UM policies should go to the survivors as partial compensation for their loss. Thus, a partial, unallocated recovery was made on behalf of the survivors. The trial court may not take unallocated proceeds from a partial recovery and allocate them in a way to fully satisfy some elements of damage and leave other elements unsatisfied.

A separate claim for funeral expenses, to which there was no objection, was made against the estate. The fact that Scott paid Myers’ funeral expenses, and funeral expenses are one element of damages that may be recovered under the wrongful death act, does not preclude Scott from filing a claim against the estate unless she has been fully compensated for all of her losses under the wrongful death status. Either the trial court’s decision to sua sponte allocate a portion of the previously tendered proceeds to the survivors imper-missibly enriches the estate, or the trial court extinguished Scott’s unobjected to claim, reducing the wrongful death award to which she is entitled. Either would be error.

The trial court’s award of funeral expenses from the wrongful death proceeds is REVERSED, and the case REMANDED for entry of an order reinstating Scott’s claim for funeral expenses against the estate.

VAN NORTWICK and PADOVANO, JJ., concur.


text:
    R. B., Petitioner, v. Adonis MILES, Detention Superintendent, Respondent.
    No. 2D04-979.
    District Court of Appeal of Florida, Second District.
    March 31, 2004.

      Julianne M. Holt, Public Defender, and Kay S. Murray, Assistant Public Defender, Tampa, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Petitioner R.B., a juvenile, filed an emergency petition for writ of habeas corpus seeking to be discharged from secure detention. By prior unpublished order, we granted the petition and advised that this opinion would follow to explain our reasoning. We conclude that, under the relevant statutory provisions, R.B. could not be held in secure detention for more than twenty-one days by stacking secure detention periods.

R.B. was charged with battery on a school board employee. At a detention hearing on February 10, 2004, R.B. was ordered to home detention until February 29, 2004. While on home detention, R.B. was taken into custody and charged with armed robbery. R.B. appeared at a detention hearing on February 16, 2004, where he was found to qualify for secure detention on this new charge.

Rather than order R.B. to serve this new twenty-one day detention period concurrent with the thirteen days R.B. had left to serve on the original detention period, the trial court ordered that the two detention periods be served consecutively. The trial court verbally rescinded its February 10, 2004, order, and ordered R.B. to serve the remainder of that detention time (until February 29, 2004) in secure detention and then start serving an additional twenty-one days in secure detention for the new charge. This would have resulted in R.B. serving thirty-four days in secure detention following the detention hearing on the new charge.

Sections 985.215(5)(c) and (g), Florida Statutes (2003), provide that a child may not be held in secure detention for more than twenty-one days unless an adjudicatory hearing for the case has been commenced in good faith by the court or good cause has been shown that the nature of the charge requires additional time for the prosecution or defense of the case. Because the record does not show that the court commenced an adjudicatory hearing within twenty-one days or that either the State or the defense asked for additional time, we grant the petition.

Petition granted.

STRINGER, KELLY, and WALLACE, JJ., concur.


text:
    Leonicio D. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1144.
    District Court of Appeal of Florida, First District.
    March 31, 2004.
    Rehearing Denied May 10, 2004.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Ames v. State, 870 So.2d 203 (Fla. 1st DCA 2004).

KAHN, WEBSTER and BROWNING, JJ., concur.


author: WELLS, J.

text:
    Norberto MENENDEZ, Appellant/Cross-appellee, v. Nancy M. RODRIGUEZ-MENENDEZ, Appellee/Cross-appellant.
    Nos. 3D02-1572, 3D02-1402.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Alice Elizabeth Warwick; Greene, Smith & Associates, Miami, and Cynthia L. Greene, for appellant/cross-appellee.
    Maurice Jay Kutner & Associates and Maurice Jay Kutner, Miami, and Rodd M. Berlin, for appellee/cross-appellant.
    Before GODERICH, GREEN, and WELLS, JJ.
   WELLS, J.

The former husband appeals the distribution of assets and the custody determination contained in a final judgment of dissolution of marriage. The former wife cross appeals the court’s distribution of several assets. We affirm in part, reverse in part, and remand for further proceedings.

The couple was married in October, 1990. Prior to their marriage, they executed an “Antenuptial Agreement” that provided for the protection of the parties’ “separate assets” in the event of a dissolution of marriage. The parties separated in August, 2000. At that time, the parties’ son was a little over one year old. The former husband was self-employed as the President of Globalis, Inc., a software development and web design company, acquired and developed during the parties’ marriage. The former wife was employed as a Business Development Manager for Apple Computer.

Of the eight issues argued on appeal and cross appeal, we find merit only in the claim that the trial court erred in concluding, without sufficient evidence as to value, that the shares of Globalis should be equally distributed between the spouses. The parties correctly concede that this asset was not properly valued below and that it was improper for the trial court to leave the parties as joint owners of this closely held business. See Ross v. Bandi, 566 So.2d 55, 56 (Fla. 4th DCA 1990) (citing Saxton v. Saxton, 454 So.2d 575 (Fla. 4th DCA 1984)) (“[w]hen property valuation is an integral part of the court’s entire plan of distribution, confusion as to value requires reversal of the property award”). As we observed in Robbins v. Robbins, 549 So.2d 1033, 1033-34 (Fla. 3d DCA 1989), granting a former spouse a shared interest in the stock of a closely held corporation has the effect of “requiring the former spouses to operate as business partners. Such a financial arrangement is intolerable.”

The parties must, therefore, on remand present proper valuation evidence for Glo-balis so that the trial court may, as the parties agree, award this asset to one of the spouses and “devise a plan of distribution which causes the least interference with the ongoing business of the corporation, yet which is practical and beneficial to both spouses.” Id. at 1034. The remainder of the final judgment is affirmed subject to redistribution of the marital assets, if necessary, to effectuate distribution of Globalis.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . As we noted in Robbins, there are a number of alternatives available to provide a spouse with the cash value of his or her stock in a corporation distributed to the other spouse. See Robbins, 549 So.2d at 1034 (alternatives include: requiring one spouse to purchase the other’s stock interest within a reasonable time; directing periodic installment payments on a lump sum obligation or on a principal repayment, or both; ordering the sale of all stock with equal distribution of the proceeds).


text:
    GATEWAY INSURANCE COMPANY and Merchants and Business Men's Mutual Insurance Company, Appellants, v. Patricia KEEFREY and Jillian Maricic, Appellees.
    Nos. 4D03-1330, 4D03-195.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Rehearing Denied May 21, 2004.

      Nancy A. Copperthwaite, Marcy Levine Aldrich and Valerie B. Itkoff of Akerman Senterfitt, Miami, for appellant Gateway Insurance Company.
    Mark G. Arnold of Husch & Eppenber-ger, LLC, St. Louis, Missouri and Nancy A. Copperthwaite of Akerman Senterfitt, Miami, for appellant Merchants and Business Men’s Mutual Insurance Company.
    Edna L. Caruso of Caruso & Burlington, P.A., and Jack Scarola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, Jeffrey Orseck of Jeffrey Or-seek, P.A., Fort Lauderdale, and Brian M. Torres of Sheftall & Torres, P.A., Miami, for appellees.
   ORDER DISMISSING APPEAL

PER CURIAM.

Appeal dismissed for lack of jurisdiction. See Nationwide Mut. Fire Ins. Co. v. Schweitzer, 872 So.2d 278, 2004 WL 515547 (Fla. 4th DCA March 17, 2004).

FARMER, C.J., STEVENSON and HAZOURI, JJ., concur.


author: COPE, J.

text:
    Salustian RIVERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1896.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Rehearing Denied May 12, 2004.
    Buschel Carter Schwartzreich & Yates and Robert C. Buschel, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and GREEN, JJ.
   COPE, J.

Salustian Rivero appeals his conviction for aggravated assault with a firearm. We affirm.

First, defendant-appellant Rivero argues that the trial court should have given the jury an instruction on justifiable use of deadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(f); §§ 776.012, 776.06, Fla. Stat. (2002). However, the argument the defendant advances here was never presented in the trial court and is thus not preserved for appellate review. Assuming arguendo it had been presented in the trial court, it is without merit.

In the present case the evidence showed that the defendant pointed the gun without firing it. The use-of-force statute looks to the amount of force which is actually used. Pointing a firearm (without firing it) amounts to the use of nondeadly force. See Stewart v. State, 672 So.2d 865, 868 (Fla. 2d DCA 1996) (waving a gun in the air did not amount to the use of deadly force). By contrast, firing a firearm in the vicinity of human beings constitutes the use of deadly force as a matter of law. Miller v. State, 613 So.2d 530, 531 (Fla. 3d DCA 1993).

Because the defendant pointed the gun without firing it, this was nondeadly force. The trial court was entirely correct in giving the standard jury instruction on justifiable use of nondeadly force, Fla. Std. Jury Instr. (Crim.) 3.6(g), and omitting the instruction on justifiable use of deadly force. Id. 3.6(f).

As to the remaining point on appeal, we conclude that the evidence was legally sufficient.

Affirmed.

       The crime date was December 24, 2002.


author: KLEIN, J. STONE, J.,

text:
    BROWARD YACHTS, INC., Petitioner, v. Christopher DENISON and Marine Realty, Inc., Respondents.
    No. 4D03-4234.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Rehearing Denied May 21, 2004.
    Craig T. Galle, West Palm Beach, for petitioner.

      Romney C. Rogers of Rogers, Morris & Ziegler, Fort Lauderdale, for respondents.
   KLEIN, J.

Petitioner seeks a writ of mandamus to compel the trial court to enter a final judgment for damages awarded in nonbinding arbitration. Because respondents did not request a trial, the trial court was required by statute to enter a judgment, and we accordingly grant the petition. We reject the respondents’ argument that a judgment is premature because a trial was requested after arbitration on a claim contained in a separate count in the complaint.

Section 44.103, Florida Statutes (2003), entitled “Court-ordered, nonbinding arbitration,” authorizes trial courts to refer civil actions to nonbinding arbitration. A party dissatisfied with the result of arbitration may, within twenty days of service of the arbitration decision, file a motion for trial. If a motion for trial is not filed the trial court “shall” enter a judgment. § 44.103(5), Fla. Stat. Fla. R. Civ. P. 1.820(h). This is a “non-discretionary, mandatory duty.” Johnson v. Levine, 736 So.2d 1235, 1238 (Fla. 4th DCA 1999).

In the present case there were two counts in petitioner’s complaint which were arbitrated. The first claim was on a line of credit agreement and promissory note, and petitioner prevailed on that claim in the arbitration. The second claim involved a different agreement, which required respondents to make certain payments, contingent on future events. It provided that if the respondents breached the first agreement, they could have greater liability under the second agreement. Petitioner did not prevail in arbitration on the second claim.

Neither side moved for a trial on the first claim, but petitioner moved for a trial on the second claim. Petitioner then sought a money judgment on the first claim, which the trial court denied. The petition for writ of mandamus asks us to order that the judgment be entered on the first claim. As to the availability of the remedy, we held in Johnson that mandamus is available to direct entry of a judgment pursuant to our nonbinding arbitration statute.

The entire argument advanced by respondents is that, based on the plain language of section 44.103(5), Florida Statutes (2003), a motion for trial as to any claim precludes the entry of a judgment as to all claims. The statute provides:

The arbitration decision shall be presented to the parties in writing. An arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court. The decision shall not be made known to the judge who may preside over the case unless no request for trial de novo is made as herein provided or unless otherwise provided by law. If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court, and for which judgments execution shall issue on request of a party.

We rejected respondents’ argument in Johnson, in which the plaintiff brought a malpractice action against a number of defendants, and the nonbinding arbitration resulted in some defendants being liable for damages and others not liable. Plaintiff moved for a trial as to the defendants found not liable, but the defendants found liable did not move for a trial. We rejected the liable defendants’ argument that entry of a judgment was premature because there would be a trial on some of the claims. As Judge Farmer explained:

Plainly the text of the statute itself does not require, in so many words, that any request by a party to a separate claim operate to require a trial on a claim as to which no party has requested a trial. Nothing in the structure and purpose of the statute purports to mandate an omnibus trial in a multi-issue, multi-party case where the adverse parties to discrete claims have failed to request a trial after non-binding arbitration. Causes of action are, after all, claims by someone against someone. Each claim by this plaintiff against each separate defendant stands alone and can be treated — as, indeed, the arbitrator here did — entirely separate from and alternative to the other claims.

736 So.2d at 1240. The second district agrees with Johnson. Morgan v. Southeast Serv. Corp., 861 So.2d 1224 (Fla. 2d DCA 2003).

In the present case the claims were discrete. Although the second agreement referred to the first agreement, the agreements involved entirely separate subjects. Their only relationship was, as we noted above, that if respondents breached the first agreement, they could be liable for greater damages under the second agreement. There is no result which could obtain from the trial involving the second agreement, which would affect the liability or damages under the first agreement.

Respondents have cited no authority, nor given us any good reason why, under the separate claims advanced in this case, a judgment should not be entered on the first claim at this time. They make no argument that these claims are not discrete, nor do they address Johnson, in which we previously rejected the argument that any motion for trial precludes a judgment on another claim. We therefore grant the petition and direct the trial court to enter a judgment based on the arbitration award in favor of petitioner.

FARMER, C.J., concurs.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I would deny the petition.

I would not apply Johnson v. Levine here. Instead, I would limit its application to claims involving multiple parties. I recognize that there is language in Johnson suggesting that the case applies to multiple claims as well as multiple parties, but, in my judgment, that language constitutes dicta.

In multiple count actions, where the arbitrator has ruled in favor of a party as to a portion of an arbitration award and adversely as to the remaining portion, I would adopt the reasoning in Action Orthopedics, Inc. v. Techmedica, Inc., 775 F.Supp. 390, (M.D.Fla.1991). There, the court concluded that a party is not entitled to demand a trial de novo as to the unfavorable portion of an arbitration award, alone. Id. at 391. Under the local rule of the middle district, such a demand is applicable to the entire arbitration decision. Id. In Action Orthopedics, the court discussed several policy reasons favoring such a procedure. Id. For example, if partial trials de novo are allowed, a party who is willing to accept the entire arbitration award (part favorable and part unfavorable) is placed at a disadvantage by a last-minute demand for a partial trial de novo by the adverse party, in which case the accepting party might be time-barred from filing a demand for trial de novo as to the rest of the award. Id. Such tactics will inevitably force all parties to demand a trial de novo, although they are otherwise willing to avoid trial, in order to protect themselves from such tactics.

Here, the defendant was put in a bind. The defendant had the right to ask for a trial as to all counts, but was willing to abide by the entire decision of the arbitrator rather than risk trial. Therefore, the defendant remained silent until being hit, at the last minute, by the plaintiffs election. To put a party in this position defeats the purpose of the non-binding arbitration scheme, to ease the burden of trials on the court system.

Further, and in any event, I would not classify the claims in this case as totally unrelated. The arbitrator ruled in favor of the petitioner on a line of credit promissory note. Conversely, the arbitrator ruled against the petitioner on a side agreement involving security for the line of credit, which provided for payments to be made to charities out of proceeds received from an estate in lieu of putting up other security for the line of credit. Granted, the side agreement is not tied to the note as normal security might be, but the claims are sufficiently related to require trial on both.

At the very minimum in this close case, the trial court should have discretion to deny partial enforcement of the award, putting the burden on the plaintiff to take the award as entered or risk losing it all and, thereby, fulfilling the arbitration scheme.


author: GRIFFIN, J.

text:
    Craig Avery CASLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-299.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Rehearing Denied May 5, 2004.
    Warren W. Lindsey and William R. Po-nall, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Craig Avery Casler [“Casler”] appeals the lower court’s order denying his Rule 3.850 motion for post-conviction relief.

On November 25, 1996, Casler was charged by grand jury indictment with murder in the first degree of Judith M. Johnson by blunt force trauma to the head and neck. On May 15, 1998, the jury found and the court adjudicated Casler guilty as charged. He was sentenced to life imprisonment without the possibility of parole.

He has raised twelve grounds for post-conviction relief in his rule 3.850 motion. All were denied without a hearing except ground ten. In ground ten, he contended that his trial counsel was ineffective for communicating the State’s plea offer to him in an “informational vacuum.”

At the evidentiary hearing, Casler and his mother testified, as did trial counsel. Trial counsel testified he had concerns early on in the process regarding Casler’s competence to stand trial and his sanity at the time of the offense due to his extremely severe alcohol problem. He said that Casler was probably the most difficult client he had ever dealt with in trying to get a logical train of circumstances and events from him, and that it was difficult to get Casler to focus on any one point for any length of time. Counsel testified that Casler knew he was under arrest for first-degree murder, and that he had explained the possible penalties to him as well. He stated he had discussed the evidence with Casler and he believed Casler had understood the importance of the available evidence.

There were discussions regarding a plea to a lesser offense and counsel testified that he carried those discussions back to Casler, Casler’s mother and Casler’s stepfather. Counsel said that when he discussed a plea to second-degree murder with Casler, Casler discounted it. He said he did not recall a term of years being offered by the State, but he did recall telling Casler the twenty-year range would probably be a best case scenario. He testified that Casler never expressed an interest in pleading to second-degree murder. Counsel stated that, as trial got closer, he thought Casler should consider a plea because he did not feel Casler would be acquitted by a jury due to some of the State’s evidence and the fact that they could not find a relevant basis to impeach the State’s key witness, all of which he discussed with Casler. Counsel testified that he recommended that Casler attempt to work out a plea with the State, but that Casler’s reaction was he was not going to plead to second-degree murder. He reiterated that he believed Casler had understood the penalties he would face if he entered a plea and that he was facing life in prison if he did not enter a plea. He stated he discussed the possibility of Cas-ler entering a plea “many times.”

On cross-examination, counsel acknowledged that his assessment of the case was that there was no real evidence of premeditation on Casler’s part. He also conceded that he did not have any notations in his file regarding plea offers or any written document regarding plea offers.

Casler called his mother, Ellen Jarvis [“Jarvis”], as a rebuttal witness. Jarvis testified that counsel never discussed any plea offers made by the State with her, and never recommended to her that Casler should enter a plea to second-degree murder. She stated she remembered very few conversations with counsel.

The State then recalled counsel, who testified that he spoke very frequently with Jarvis about the case; she came down to his office on occasion and would call him on the phone regularly at home, the office or on his cell phone; and he had lunch at her residence at least twice to discuss the case.

On December 20, 2002, the court entered an order denying Casler’s motion for post-conviction relief. The court found on ground ten that, in weighing the testimony of Casler and' counsel, Casler was adequately informed of the plea offers and the surrounding circumstances.

Ineffective assistance of counsel claims are mixed questions of fact and law. Valle v. State, 778 So.2d 960, 966 (Fla.2001) (citing Stephens v. State, 748 So.2d 1028 (Fla. 1999)). When an appellate court reviews the trial court’s factual findings, it defers to those factual findings if they are supported by competent substantial evidence in the record. Id. Here, there is evidence to support the trial judge’s decision. Accordingly, we affirm.

AFFIRMED.

THOMPSON and PLEUS, JJ., concur.


text:
    Derrick A. GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-557.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Rehearing Denied May 6, 2004.
    Derrick A. Gordon, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Derrick Gordon [“Gordon”] appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

In 1999, Gordon was tried and convicted of robbery with a firearm and burglary of a dwelling with an assault or battery. He received sentences of life and fifteen years’ imprisonment as a prison releasee reoffen-der, to be served concurrently. His convictions and sentences were affirmed on appeal. See Gordon v. State, 753 So.2d 100 (Fla. 5th DCA 2000). Gordon also filed a rule 3.850 motion which was denied and affirmed on appeal in Gordon v. State, 799 So.2d 1063 (Fla. 5th DCA 2001), and a rule 3.800(a) motion which was denied and affirmed on appeal in Gordon v. State, 852 So.2d 251 (Fla. 5th DCA 2003). In addition, Gordon filed a petition alleging ineffective assistance of appellate counsel, which was denied by order in our case no. 5D01-3788.

Now, in his second rule 3.850 motion, Gordon claims newly discovered evidence. He alleges that at the time of trial, he was using timonol timoptic, an eye drop for glaucoma, which a doctor has advised him may have adverse side effects after prolonged use, such as severe headaches, confusion, hallucinations and memory dysfunction. Gordon alleges that the side effects from the medication “caused him to make unintelligent decisions not rationale [sic] during his trial,” thereby depriving him of a fair trial.

Gordon also alleges as newly discovered evidence that at the trial of a co-defendant conducted after Gordon’s trial, a State witness, Desiree Miller [“Miller”], recanted her testimony and testified that she had not seen Gordon with the co-defendants before and after the robbery. He claims that Miller testified at his trial that she saw a person wearing the same color jacket as Gordon with co-defendants Biggers and Smith before and after the robbery and that Biggers and Smith were the masked robbers, along with Gordon, who was unarmed and unmasked. Gordon states that he did not learn about the “recantation” until May of 2002 when he spoke with Biggers in prison. The trial court found that Gordon’s allegations failed to support his claim that he could not have discovered these claims at the time his first 3.850 motion was filed and denied the motion.

To qualify as newly discovered evidence, the evidence must have been unknown by the court, the party or counsel at the time of trial and could not have been known by the exercise of due diligence. In addition, the evidence must also be of such a nature that it would probably produce an acquittal on retrial. See Lightbourne v. State, 841 So.2d 431 (Fla.2003); Robinson v. State, 770 Soi2d 1167 (Fla.2000).

As to the medication, even assuming he could not have discovered the side effects in time to raise the issue in his prior timely motion, he alleges only that the side effects made him make “unintelligent decisions.” He does not allege what those decisions were or how a retrial while he was not medicated would probably produce an acquittal.

As to Miller, Gordon does not specify what evidence was presented at trial or explain the context of her testimony and why her alleged recantation would probably result in an acquittal. In fact, the initial brief in the direct appeal establishes that Gordon was identified by the two victims. Miller’s testimony is not even mentioned.

The State’s answer brief in the direct appeal reveals that Miller, the victim’s sixteen-year-old neighbor, was called by the defense. She testified that she had knocked on the victims’ door while the robbery was in progress, and that Gordon had answered and told her to go away. She said she saw Gordon in the house with two men with masks. After the robbery, she testified that Gordon exited before the masked men, but that she had seen all three men together before and after the robbery. She later clarified that she had only seen a man wearing a jacket like Gordon’s talking with the other two men. There is no reasonable likelihood that this difference in Miller’s testimony would have resulted in an acquittal on retrial.

AFFIRMED.

THOMPSON and ORFINGER, JJ., concur.


author: SAWAYA, C.J.

text:
    Morgan GILREATH, Jr., etc., Appellant, v. WESTGATE DAYTONA, LTD., etc., Appellee.
    No. 5D02-3699.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Rehearing Denied May 4, 2004.

      Gaylord A. Wood, Jr. and B. Jordan Stuart of Wood & Stuart, P.A., New Smyrna Beach and Mark T. Aliff, Assistant Attorney General, Department of Legal Affairs, Tallahassee, for Appellant.
    Michael Marder and Victor Kline of Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A., Orlando, for Appel-lee.
   SAWAYA, C.J.

Morgan Gilreath, Jr., as Volusia County Property Appraiser, appeals the judgment rendered by the trial court that quashed Gilreath’s 1998 and 1999 ad valorem tax assessments of certain condominium units owned by Westgate Daytona, Ltd. The judgment declared that these condominium units, which were situated in the Har-bour Beach Resort, were improperly assessed by Gilreath as timeshare property.

The issue we must resolve is whether the county, pursuant to its taxing authority bestowed upon it by the State of Florida, may assess a condominium for purposes of ad valorem taxes as a timeshare prior to it becoming a timeshare under Florida law. We conclude that it should not be allowed to do so until the condominium ceases to be a condominium and becomes a timeshare in accordance with Florida law. Accordingly, we affirm the judgment as to the 1998 assessment, but reverse as to the 1999 assessment.

The Florida Legislature has enacted a rather complex statutory scheme that must be complied with in order to convert a condominium into a timeshare. Unless and until these requirements are met, a condominium cannot become a timeshare. The Legislature has also enacted a specific statute that governs how timeshare estates must be assessed for purposes of ad valo-rem taxation, which clearly requires that the real property be a timeshare under Florida law in order to be assessed and taxed as such. After first discussing the factual background of the instant case, we will discuss the statutory scheme governing the creation of timeshare property in Florida and the specific statutory requirement governing assessment of timeshare property. Thereafter, we will discuss the argument presented by Gilreath that he properly assessed the condominiums according to their highest and best use which, according to Gilreath, was as timeshares.

Factual Background

Harbour Beach Resort began as a condominium complex containing 228 units. The Declaration of Condominium dated January 31, 1995, which governs Harbour Beach Resort, allowed for future creation of timeshare estates. Westgate purchased 24 condominium units in 1995 and began to market 16 units as timeshares in 1997. In the initial Public Offering Statement [POS] filed by Westgate pursuant to section 721.07, Florida Statutes, these 16 condominium units were specified for future sale as timeshare property. Although the POS was filed in February 1997, it was not approved until November 4, 1998. West-gate presented evidence that the delay in obtaining approval of the POS was largely the result of underfunding of the reserve account with the Harbour Beach Condominium Association. One of the approval requirements was that the Association adopt a new budget. Westgate did not control the Association’s budget. The Division of Florida Land Sales, Condominiums and Mobile Homes of the Department of Business and Professional Regulation [hereinafter the Division] notified West-gate of many other deficiencies that had to be corrected in order to obtain approval of the POS, which delayed approval of the POS until November 1998. There is no evidence in this record, and Gilreath does not contend, that Westgate did anything other than work diligently to correct the deficiéncies as they were presented by the Division.

Westgate began to market timeshare estates in Harbour Beach Resorts in 1997. Every contract entered into between Westgate and a prospective purchaser provided that the purchaser had the right to cancel the contract within ten. days of the delivery to the purchaser of a POS that had been finally approved by the Division. Any deed, promissory note or mortgage executed by the purchaser in accordance with the contract was held in escrow and was not delivered until closing occurred after approval of the POS. Moreover, any deposit money paid pursuant to the contract was held in escrow. On the tax returns filed by Westgate, these escrow deposits were listed as a liability because if the POS was not approved, thereby preventing Westgate from conveying title to the timeshare estate, Westgate would have to refund the money. Westgate presented evidence that it financed the sales of the units and paid all of the costs without being able to access the escrowed deposits, thereby causing Westgate to operate bn a negative cash flow basis until the actual closings took place after approval of the POS.

Gilreath began investigating the units in 1997. In 1998, when Gilreath sent West-gate the preliminary tax bills, the units were assessed as condominiums at an average assessment of $55,052 per unit. However, approximately two weeks later, Gilreath sent out the final tax bills assessing each unit as a timeshare at an average assessment of $129,166 per unit. In 1999, Gilreath assessed twenty units as timeshares and four as condominiums.

Westgate filed separate suits, subsequently consolidated, regarding the assessments for 1998 and 1999. After a non-jury trial, the trial court entered the judgment under review, quashing the assessments for both years and ordering that Gilreath reassess all of the units as condominiums. The trial court held that until the POS was approved, the sales of the timeshares had closed, the deeds were delivered and recorded, and the escrowed funds were released to Westgate, the units remained condominiums and could not be taxed as timeshares. We conclude that the assessment of the units as timeshares was proper after approval of the POS. In order to explain why we have arrived at this conclusion, we will analyze the pertinent statutory requirements that must be met in order to create a timeshare estate.

Statutory Requirements To Create A Timeshare Estate

In 1981, the Florida Legislature enacted the Florida Vacation Plan and Timeshar-ing Act found in Chapter 721, Florida Statutes, when it determined that, with respect to this relatively new form of real property interest, “a uniform and consistent method of regulation is necessary in order to safeguard Florida’s tourism industry and the state’s economic well-being.” § 721.02(5), Fla. Stat. (2002). In section 721.02, Florida Statutes, the declared purposes of the Act are to:

(1)Give statutory recognition to real property timesharing and personal property timesharing in the state.
(2) Establish procedures for the creation, sale, exchange, promotion, and operation of timeshare plans.
(3) Provide full and fair disclosure to the purchasers and prospective purchasers of timeshare plans.
(4) Require every timeshare plan offered for sale or created and existing in this state to be subjected to the provisions of this chapter.

§ 721.02(l)-(4), Fla. Stat. (2002) (emphasis added).

In order to create a timeshare estate in Florida by converting a condominium into a timeshare, the Declaration of Condominium must specifically provide that timeshare estates will or may be created in the future. § 718.1045, Fla. Stat. (2002) (“No timeshare estates shall be created with respect to any condominium unit except pursuant to provisions in the declaration expressly permitting the creation of such estates.”). Section 718.104(4)(o), Florida Statutes, specifically provides that the declaration must contain the following:

If timeshare estates will or may be created with respect to any unit in the condominium, a statement in conspicuous type declaring that timeshare estates will or may be created with respect to units in the condominium. In addition, the degree, quantity, nature, and extent of the timeshare estates that will or may be created shall be defined and described in detail in the declaration, with a specific statement as to the minimum duration of the recurring periods of rights of use, possession, or occupancy that may be created with respect to any unit.

§ 718.104(4)(o), Fla. Stat. (2002) (emphasis added).

If the Declaration of Condominium properly states that timeshare estates may be created, the developer must submit a registered public offering statement to the Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation prior to offering any timeshare plan for sale. § 721.07, Fla. Stat. (2002). A POS is defined as “the written materials describing a single-site timeshare plan or a multisite timeshare plan, including a text and any exhibits attached thereto as required by ss. 721.07, 721.55, and 721.551.” § 721.05(26), Fla. Stat. (2002). The Division must approve the POS, and until it does, “any contract regarding the sale of that timeshare plan is voidable by the purchaser.” § 721.07, Fla. Stat. (2002). The “timesharing plan” is the document that allows timesharing of real property and is defined in section 721.05(37), Florida Statutes, as

any arrangement, plan, scheme, or similar device, other than an exchange program, whether by membership, agreement, tenancy in common, sale, lease, deed, rental agreement, license, or right-to-use agreement or by any other means, whereby a purchaser, for consideration, receives ownership rights in or a right to use accommodations, and facilities, if any, for a period of time less than a full year during any given year, but not necessarily for consecutive years.

§ 721.05(37), Fla. Stat. (2002).

These statutory provisions clearly establish that no timeshare estate may be created unless these statutory provisions are complied with and the Division approves the POS. Until approval is given, a timeshare cannot exist and a condominium remains a condominium and should be taxed as such. The Florida Supreme Court held long ago that an assessment on property not existing when assessed is illegal. Seaboard Air Line Ry. Co. v. Allen, 82 Fla. 191, 89 So. 555 (1921); see also Muckenfuss v. Miller, 421 So.2d 170, 173-74 (Fla. 5th DCA 1982) (“An appraisal which ignores the actual present condition and' use of the land cannot pass just valuation muster; and to the extent it seeks to include a value for other reasons, here promised future development, it cannot stand as ‘just valuation.’ ”) (footnotes omitted), pet. for review denied, 430 So.2d 450 (Fla.), and pet. for review denied, 430 So.2d 451 (Fla.1983). Therefore, because the POS was not approved until November 1998, and in light of the requirement that the assessment must be made as of January 1 pursuant to section 192.042(1), Florida Statutes, the units were improperly assessed as timeshares for the year 1998, but not for the year 1999.

The Legislature has enacted section 192.037, Florida Statutes, which governs how timeshare property is assessed for purposes of ad valorem taxation. The provisions of that statute, which we will discuss next, support this conclusion.

Requirement That Timeshare Estates Be Assessed Pursuant To Section ■192.037, Florida Statutes

Counties do not possess inherent power to tax; the legal authority of a county to tax must derive from the state. Whitney v. Hillsborough County, 99 Fla. 628, 127 So. 486 (1930). Hence, “property taxes are ‘of a purely statutory nature which can be levied, assessed and collected only as provided by statute.’ ” Hausman v. VTSI, Inc., 482 So.2d 428, 430 (Fla. 5th DCA 1985) (quoting State ex. rel. Seaboard Air Line Ry. Co. v. Gay, 160 Fla. 445, 35 So.2d 403 (1948)), review denied, 492 So.2d 1332 (Fla.1986). This court in Hausman further held that “[a]n assessment not authorized by statute is void.” 482 So.2d at 430 (citing Lewis State Bank v. Bridges, 115 Fla. 784, 156 So. 144 (1934)). A court’s duty is to “construe tax statutes in favor of taxpayers where an ambiguity may exist.” Harbor Ventures, Inc. v. Hutches, 366 So.2d 1173, 1174 (Fla.1979) (citations omitted).

The Legislature has specifically provided for assessment of timeshare estates in section 718.120, Florida Statutes, which is entitled “Separate taxation of condominium parcels; survival of declaration after tax sale; assessment of timeshare estates.” Specifically, the Legislature has declared in section 718.120(3), Florida Statutes, that “[cjondominium property divided into fee timeshare real property shall be assessed for purposes of ad valorem taxes and special assessments as provided in s. 192.037.” Section 192.037, Florida Statutes, states in pertinent part:

(10) In making his or her assessment of timeshare real property, the property appraiser shall look first to the resale market.
(11) If there is an inadequate number of resales to provide a basis for arriving at value conclusions, then the property appraiser shall deduct from the original purchase price “usual and reasonable fees and costs of the sale.” For purposes of this subsection, “usual and reasonable fees and costs of the sale” for timeshare real property shall include all marketing costs, atypical financing costs, and those costs attributable to the right of a timeshare unit owner or user to participate in an exchange network of resorts. For timeshare real property, such “usual and reasonable fees and costs of the sale” shall be presumed to be 50 percent of the original purchase price; provided, however, such presumption shall be rebuttable.

§ 192.037(10)-(11), Fla. Stat. (2002).

We conclude that the Legislature has clearly expressed its intent that timeshare property be assessed in accordance with section 193.011. We also conclude, based on our analysis of these provisions, that when the Legislature directed that “the resale market” be the basis for a proper assessment, it intended that the resale of timeshare properties in the same building be considered as part of the resale market. Obviously, this requires that the timeshare property be legally established as timeshare property in order to effect a valid resale and hence a resale market. Moreover, the alternative of deducting the appropriate fees and costs from the sales price effectively requires a valid sale of the timeshare property. As we have discussed, any contract entered into between a developer and a prospective purchaser is voidable at the option of the purchaser until the POS is approved. Until that time, any title documents and deposit money must be held in escrow on behalf of the purchaser. Once the POS is approved and the contract is no longer voidable at the will of the purchaser, the contract becomes binding and a sale may be closed by releasing the title documents and deposit money. This establishes a valid basis for assessing timeshare property under section 193.011. Because the POS was approved in November 1998, the property could be validly assessed as of January 1, 1999, for the year 1999, but not for 1998. Therefore, the assessment for 1998 as timeshares is invalid, but the assessment for 1999 is valid.

Gilreath contends that he may nevertheless tax the condominium units as timeshares because that is the highest and best use of the property. We disagree and will next explain why.

The Highest And Best Use Factor

An ad valorem tax is a tax assessed upon the value of property. Mazourek v. Wal-Mart Stores, Inc., 831 So.2d 85 (Fla.2002). The Florida Constitution requires that “[b]y general law regulations shall be prescribed which shall secure a just valuation of all property for ad valo-rem taxation.... ” Art. VII, § 4, Fla. Const. The term “just valuation” means “fair market value.” Mazourek, 831 So.2d at 88. All real property shall be assessed according to its just value on January 1 of each year. § 192.042, Fla. Stat. (2002). The Legislature enacted section 193.011, Florida Statutes, which lists eight factors that a property appraiser must consider in determining just valuation.

Gilreath argues that the condominiums were properly assessed as timeshare property pursuant to section 193.011(2), Florida Statutes, which provides in pertinent part that in arriving at just valuation, the property appraiser shall consider:

The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property, taking into consideration any applicable judicial limitation, local or state land use regulation, or historic preservation ordinance, and considering any moratorium imposed by executive order, law, ordinance, regulation, resolution, or proclamation adopted by any governmental body or agency or the Governor when the moratorium or judicial limitation prohibits or restricts the development or improvement of property as otherwise authorized by applicable law.

§ 193.011(2), Fla. Stat. (2002). We conclude that when Gilreath assessed the condominium units as timeshares because he determined that was the highest and best use under section 193.011(2), he misapplied this statute.

In Straughn v. Tuck, 354 So.2d 368 (Fla. 1977), the court held that when determining the highest and best use of property under section 193.011(2), “[t]he uses under the statute must be immediate, not speculative, and not predicated on conversion to higher or better uses.” Id. at 371-72 (citing Lanier v. Overstreet, 175 So.2d 521 (Fla.1965)); see also Security Mgmt. Corp. v. Markham, 516 So.2d 959 (Fla. 4th DCA), review denied, 518 So.2d 1276 (Fla. 1987). In Lanier, the court explained the rationale for the rule requiring that the use be immediate:

By authorizing tax assessors to consider, as one of the factors “[i]n arriving at a just valuation” of property, the use to which the property “can be expected to be put in the immediate future” (emphasis added), the Legislature has, under the familiar rule of expressio unius est exclusio alterius, prohibited tax assessors from considering potential uses to which the property is reasonably susceptible and to which it might possibly be put in some future tax year or, even, during the current tax year. To be considered, the use must be expected, not merely potential or a “reasonably susceptible” type of use; it must be expected immediately, not at some vague uncertain time in the future. The reason for the legislative policy in this respect was well stated by Judge White in his scholarly dissenting opinion in Lanier v. Tyson, supra, 147 So.2d 365, as follows:
“Assessed valuations of land based on estimates of its highest and best potential, as distinguished from present bona fide use, are bound to be largely conjectural; and when an assessor, contrary to legislative intent and direction, determines that land despite its present value has a truly higher present value because of its potential for some other ‘higher’ purpose, he indulges in unwarranted speculation and does violence to the constitutional and statutory objective of just valuation. The assessor, like the courts, should operate within the record and not de hors it.”

Lanier, 175 So.2d at 524. Here, the use of the condominiums as timeshares under section 193.011(2) is totally dependent on conversion of the units to timeshares. Moreover, the use of timeshares is not immediate and is speculative because it depends on obtaining approval of the POS from the Division. In the instant case, a few weeks after the initial filing, Westgate received its first letter from the Division detailing at least 26 discrepancies that included budget deficiencies, underfunded reserve accounts and construction problems. As soon as the initial deficiencies were corrected, the Division provided yet another list with more deficiencies not previously mentioned. The evidence reveals that Westgate acted expeditiously to correct each new set of deficiencies as the Division pointed it out. To contend, as Gilreath does, that the conversion and use of the condominiums to timeshares was “expected immediately, not at some vague uncertain time in the future” is a gross overstatement of the evidence in the instant case. Since approval of the POS was not immediate and was speculative, assessing the condominiums as timeshares as their highest and best use prior to approval of the POS was improper.

Gilreath contends that even if there were legal impediments to the use of the property as timeshares, any use expected in the immediate future that is reflected in the current market must be considered to be the present highest and best use and that timeshare was the actual market of the property based on Westgate’s sales to the prospective buyers. Gilreath cites the following cases to support this argument: Hillsborough County v. Knight & Wall Co., 153 Fla. 346, 14 So.2d 703 (1943); Florida Rock Industries, Inc. v. Bystrom, 485 So.2d 442 (Fla. 3d DCA), review denied, 492 So.2d 1332 (Fla.1986); Palm Beach Development & Sales Corp. v. Walker, 478 So.2d 1122 (Fla. 4th DCA 1985), review denied, 488 So.2d 831 (Fla. 1986); Roden v. GAC Liquidating Trust, 462 So.2d 92 (Fla. 2d DCA), review denied, 471 So.2d 43 (Fla.1985); Miami Atlantic Development Corp. v. Blake, 334 So.2d 29 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 602 (Fla.1976); and Dade County v. Miami Herald Publishing Co., 285 So.2d 671 (Fla. 3d DCA 1973), cert. denied, 293 So.2d 713 (Fla.1974). These decisions recognize that buyers are willing to purchase property despite legal impediments to development upon the chance that, in the future, those legal impediments will be lifted. In Bystrom, the court explained:

The courts have consistently authorized property appraisers to consider sales for speculative investment as comparable sales for appraisal purposes....
Present market sales of unimproved land which may be based on the buyer’ expectations of “future potential use”, Williams v. Simpson, 209 So.2d 262 (Fla. 1st DCA 1968), cert. denied, 212 So.2d 629 (Fla.1968), are evidence of present market value. The future uses to which the property may be put is a matter of conjecture. The presence of an active sales market and of resulting market value are matters of fact, not speculation.
The courts have distinguished between conjecture as to- future uses of property and expectation of increase in value as evidenced in present market transactions. The Property Appraiser may not indulge in the former, but necessarily considers the latter every time he uses the comparable sales approach to valuation.

Bystrom, 485 So.2d at 447-48. These cases are inapplicable to the instant case. In each case, the buyer purchased property subject to certain legal impediments in arms length transactions that actually closed and resulted in transfer of title to the property subject to those legal impediments. In the instant case, the contracts were entered into subject to conversion of the condominium property to timeshare estates and were voidable at any time and for any reason by the purchaser. Closing could only take place if the POS was approved by the Division. Until that time, the contract and any monies paid were held in escrow on behalf of the purchaser. In the event the POS was not approved, the closing could not take place and title could never be transferred because timeshare estates were never created. Moreover, in the instant case, Gilreath used comparable sales in other timeshare estates in other developments that had already been converted. These are not comparable sales to the contracts entered into in the instant case because all documents and deposit monies were held in escrow until such time as timeshare estates were actually created.

Conclusion

The Legislature certainly did not intend to enact statutory requirements that must be complied with in order to create and assess timeshare property only to allow the property assessor for a particular county, under its statutory taxing authority, to actually assess and tax a condominium as a timeshare before the statutory requirements have been met. In other words, we do not believe that the Legislature intended to place such strict statutory requirements on a property owner that prohibit the use and sale of his or her condominium as a timeshare only to allow it to be taxed as a timeshare before it actually becomes a timeshare under Florida law. We also do not believe that the Legislature enacted these statutory requirements only to allow the county property appraiser to assess condominium property as timeshare based on what the property appraiser considers to be the highest and best use of the property. Moreover, based on the facts of this case, we conclude that the use of the condominiums as timeshares was not immediate; rather it was speculative and predicated on conversion to higher or better uses. Therefore, Gilreath misapplied this factor when he assessed the condominium units as timeshares.

Accordingly, we affirm the trial court’s order quashing the assessment for the year 1998 because the POS had not been approved by the Division prior to January 1, 1998. However, we reverse the order quashing the assessment for the year 1999 because the POS had been approved prior to January 1,1999.

AFFIRMED in part; REVERSED in part.

GRIFFIN and PALMER, JJ., concur.

      . See § 721.01, Fla. Stat. (2002).

      . The statutory definition of “developer” includes "[a] 'creating developer,' which means any person who creates the timeshare plan.” § 721.05(9)(a), Fla. Stat. (2002). Westgate comes within the definition of developer because it created the timeshare plan that was submitted to the Division for approval through inclusion in the POS.

      . The timesharing plan is usually incorporated in the Declaration of Condominium, see section 718.104(4)(o), Florida Statutes (2002), or is added to the existing declaration by an amendment approved by the record owners of each condominium unit and upon the joinder of the record owners of liens on each unit. See §§ 718.1045, .110(8), Fla. Stat. (2002). “An amendment of a declaration is effective when properly recorded in the public records of the county where the declaration is recorded.” § 718.110(3), Fla. Stat. (2002).

      .Although information that comes to light after January 1 may be considered, it may only be considered for assessment as of January 1. See Security Mgmt. Corp. v. Markham, 516 So.2d 959 (Fla. 4th DCA), review denied, 518 So.2d 1276 (Fla.1987). .We note the decision in Sunset Harbour North Condominium Ass’n v. Robbins, 837 So.2d 1181 (Fla. 3d DCA 2003), which held section 192.042 unconstitutional, citing Fuchs v. Robbins, 738 So.2d 338, 341-48 (Fla. 3d DCA 1999), rev’d, Fuchs v. Robbins, 818 So.2d 460 (Fla.2002). We need not decide the constitutionality of this statute because that is not an issue that has been raised in the instant case.

      . “Although an appraiser may consider information which comes to light after January 1 of the taxable year, insofar as it is relevant to the valuation as of January 1, the focus for the actual assessment remains with the January 1 date,....” Security Mgmt. Corp., 516 So.2d at 963.

      . We do not find Gilreath’s argument that Westgate rented some of the units on a weekly basis to be very persuasive. Marci Rochkind, the tax accountant and tax manager for West-gate, testified that a use fee would be charged for someone staying in one of the condo units before they actually owned it. She made no reference in the record as to the amount of this fee, just that any use fee charged would be allocated to rental income. In addition, Ms. Rochkind emphasized that since Westgate is in the business of providing vacations, Westgate goes out of its way to permit use of the condos as vacation rentals (pending deed as timeshares), when available. The only evidence of a prospective owner who may have taken advantage of the use-before-sale opportunity is a letter from a John Milanich, one of the prospective timeshare owners, who attests to the fact that he did actually stay in a Westgate villa at Harbour Beach Resort in 1997. Mr. Milanich already owned a different timeshare, which he used in October 1997. He then decided to stay a bit longer in Daytona to enjoy what appears to be a promotional rental in conjunction with a new purchase at Harbour Beach.