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

text:
    Colon Bernard MULLIGAN, Appellant, v. CITY OF HOLLYWOOD, Appellee.
    No. 4D02-3626.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2003.
    Order Denying Rehearing and Granting Certification May 12, 2004.

      Ronald S. Guralnick, Miami, for appellant.
    Daniel Abbott, City Attorney, and Robert Oldershaw, Chief Litigation Counsel, Hollywood, for appellee.
   FARMER, C.J.

Today we consider the extent of municipal powers by ordinance to seize personal property used in the commission of a crime. In so doing, we also address whether a city’s willingness to restore the property it has thereby seized, upon payment of an “administrative” fee, conduces to a finding of validity for such an ordinance. In the end we hold the ordinance in question invalid.

First we set the factual stage. The City of Hollywood (City) has adopted a vehicle “impoundment” ordinance. It purports to authorize the City to seize motor vehicles of those accused of violations of section 796.07, Florida Statutes- — -that is, offenses involving prostitution. According to the ordinance, a vehicle is subject to seizure whenever a police officer has probable cause to believe that the vehicle was used to facilitate prostitution. Ord. § 101.46(A)(3).

Upon seizure the vehicle is towed to a facility controlled by the City. The City then gives notice to the owner that the vehicle has been seized and that the owner has the right to a preliminary hearing. § 101.46(B)(l)-(3). The owner must request the hearing in writing within five days of the written notice. § 101.46(D)(1). The police chief is then required to schedule a hearing before another City official, called a “special master”, within 96 hours. § 101.46(2).

At the preliminary hearing, the City has the burden to show probable cause to believe that the vehicle is subject to seizure. § 101.46(3). If the City official finds probable cause, the vehicle shall remain “impounded” unless the owner pays $500 plus towing and storage costs, or posts a bond in the same amount. § 101.46(4). The City must set a final hearing within 45 days from the date the vehicle was seized. § 101.46(e)(1).

The City has the burden at the final hearing to show by the greater weight of the evidence that the vehicle was properly seized under the ordinance and that the owner of the vehicle knew the vehicle was likely to be used to facilitate an act of prostitution. § 101.46(E)(2)(a), (b). If the City official finds that the City has carried its burden, the official enters a written determination that the owner is “civilly liable to the City for an administrative fee not to exceed $500, plus towing and storage costs.” § 101.46(E)(2)(b). The vehicle remains seized until and unless the penalty assessed by the official is paid. § 101.46(E)(2)(b).

Mulligan (owner) was arrested for offering to commit prostitution in violation of section 796.07. The City seized his vehicle under the authority of ordinance section 101.46. The official found probable cause and ordered him to pay $500 or forfeit the bond he had previously posted. He paid the fee, and his vehicle was returned to him. The owner then filed suit challenging the validity of the ordinance. The court certified a class of “all owners of motor vehicles impounded by the City of Hollywood under the City of Hollywood Code, section 101.46.” Both parties moved for summary judgment.

The trial court’s decision and rationale, omitting only formal parts, states as follows:

“The ordinance in question does not pass the ‘smell test.’ In a somewhat similar context it was once noted that ‘[i]mproperly used, forfeiture could become more like a roulette wheel employed to raise revenue.’ Further, ‘there is strength ... in the contention that ... [the ordinance at issue] seems to violate that justice which should be the foundation of the due process of law required by the Constitution.’ However, this Court is constrained to follow precedent and uphold the practice in question, as the court just quoted did. Unfortunately, as Justice Thomas once noted, ‘the Federal Constitution does not prohibit everything that is intensely undesirable.’ There are no fatal constitutional problems with this ordinance. Temporary impoundment is not a forfeiture scheme. The City is trying to deter illegal activity, not to punish.”

The order went on to grant the city’s motion and deny the owner’s. This appeal followed.

Although the owner raises a number of challenges to the validity of the ordinance, we find it necessary to discuss only the following issues. He contends that in essence the ordinance effects a criminal forfeiture without the kind of process due for forfeitures of private property. And as a forfeiture scheme, he argues, it conflicts with state forfeiture statutes. He also maintains that the ordinance creates a “police court” exercising essentially judicial powers in violation of our constitutional separation of powers. It denies him, he claims, a right to trial by jury before his property may be taken.

We begin with the owner’s contention that effectually impoundment under the Hollywood scheme is but a kinder, gentler description for what is actually a forfeiture. The supreme court once defined forfeiture in another context as “contemp-lat[ing] a loss of property or a right, vested in one, as a penalty for violating law....” Howard Cole & Co. v. Williams, 157 Fla. 851, 859, 27 So.2d 352, 356 (Fla. 1946). Proceedings under the ordinance do in fact begin with the police taking an owner’s vehicle as a result of an alleged facilitation of an act of prostitution. The city then transfers the vehicle to a facility controlled by the City, where the vehicle is placed beyond the owner’s control and use.

The owner is thus certainly dispossessed of that property until and unless he manages to recover it. A vehicle so seized remains “impounded” until the owner prevails or pays the “administrative fee” and all costs. Vehicles not “claimed” by prevailing at the hearings or by payment are “subject to disposal pursuant to chapter 705.” Therefore, owners who do not prevail before the City’s “special master” and who are unable to pay the “administrative fee” are thus subjected to a permanent loss of the vehicle. Hence, whether temporary (through payment of the fee) or permanent (as where the owner cannot or will not pay the “fee”), owners are deprived of certain rights in the seized vehicles “as a penalty for violating law.” Whatever meaning may otherwise attach to its title, this ordinance functions well within Howard Cole & Co. ’s general definition of a forfeiture.

A long line of authority in this State applies the principle that forfeitures are harsh remedies, not favored by the legal system, and thus forfeiture statutes are strictly construed. See Byrom v. Gallagher, 609 So.2d 24 (Fla.1992); Butterworth v. Caggiano, 605 So.2d 56 (Fla. 1992); Dep’t of Law Enforcement v. Real Property, 588 So.2d 957, 961 (Fla.1991) (“In construing the [Florida Contraband Forfeiture] Act, we note that forfeitures are considered harsh exactions, and as a general rule they are not favored either in law or equity.”); Fla. State Board of Architecture v. Seymour, 62 So.2d 1 (Fla. 1952); Boyle v. State, 47 So.2d 693 (Fla. 1950); City of Miami v. Miller, 148 Fla. 349, 4 So.2d 369 (1941). Strict construction in this context suggests that in doubtful cases the courts will construe ambiguous statutes, or even clear forfeiture provisions resting on uncertain authority, against any loss and in favor of an owner’s retention of property. See Williams v. Christian, 335 So.2d 358, 361 (Fla. 1st DCA 1976) (“Statutes imposing forfeiture will be strictly construed in a manner such as to avoid the forfeiture and will be liberally construed so as to avoid and relieve from forfeiture.”). Under this strict construction, in the absence of clear meaning and manifest authority we should construe the ordinance in question in a manner consistent with the interest of the owner and against the City.

With personal property, especially with motor vehicles, use is their critical value and for many owners their only measure. Under this ordinance, the seizure of the vehicle operates identically to a traditional forfeiture, in that it begins with the owner’s dispossession of the property and the loss of the right of use until the thing is returned. In other words, the principal— indeed often the only — reason for having the thing is lost by the act of seizure. Calling the seizure an impoundment, rather than a forfeiture, hardly distinguishes the essential nature of the deprivation thereby inflicted from an ordinary forfeiture.

With this particular ordinance, the seizure (or impoundment) may end up being only temporary rather than permanent. An owner may post the bond before any hearing and thereby gain the return of the property. At that point, the owner’s loss has certainly been ended short of permanency. Thus the ordinance is so written that any loss of possession and use of the thing may ultimately be limited to a finite duration short of the complete loss of the thing forever.

We note, however, that under the takings clauses of the State and Federal Constitutions, both temporary and permanent takings may be compensable. See U.S. Const., amend. Y; and Art. X, § 6(a), Fla. Const.; see also First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987); Keshbro v. City of Miami, 801 So.2d 864 (Fla.2001) (temporary closing of apartment complex was compensable taking). Similarly under the state criminal law of theft, there is no significant difference between a temporary taking of property and a permanent one. See § 812.014(1), Fla. Stat. (2001) (“A person commits theft if he or she knowingly obtains or uses ... the property of another with intent to, either temporarily or permanently, [e.s.] deprive the other person of a right to the property or a benefit from the property”).

These recognitions are no doubt founded on the premise that even temporary deprivations of property may significantly and adversely affect the interests and lives of the owners. In the case of a motor vehicle, a deprivation that is only temporary may yet mean the loss of the only transportation available to the owner at crucial times. Even temporary losses of transit may result in adverse consequences to an individual or a family. Jobs may be lost, medical treatments foregone, the necessaries of life made thereby unavailable. These effects may be as significant as those resulting from any permanent taking. Temporary forfeitures may therefore be just as constitutionally significant as permanent ones.

Our decision in State v. Ginn, 660 So.2d 1118 (Fla. 4th DCA 1995), is not to the contrary. In that case we considered a state statute allowing for a temporary seizure of a motor vehicle at the time of an arrest for driving under the influence. We reversed a trial court decision holding the statute facially unconstitutional. The defendant had challenged the statute as failing to provide written notice before the seizure, citing Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991), and Lamar v. Universal Supply Co. Inc., 479 So.2d 109 (Fla.1985). In finding no constitutional defect in the failure to give a pre-seizure notice apart from the arrest and its notice of the criminal violation, we said:

“In section 316.193(6)(d), the vehicles are not permanently taken; rather they are only temporarily taken, or impounded, after a conviction for drunk driving. We cannot say that the limited deprivation here requires even more constitutional protection than the permanent takings involved in Real Property and Lamar.” [e.s.]

660 So.2d at 1119. Properly understood, Ginn merely holds that temporary takings do not require more procedural process than permanent takings. Ginn implicitly recognized that temporary takings may require as much process as permanent ones; they simply do not require more. Our decision today is consistent with the as-much-but-not-more holding of Ginn.

Nor does the ability to redeem the thing for a $500 “administrative fee” (plus costs) convert what might otherwise be deemed a forfeiture into a more generously regarded “fee” or “tax”. The mere fact that an unauthorized seizer of property (whether a governmental entity, as here, or even simply a thief) is willing to return the goods unauthorizedly taken but only upon payment of a price does not eliminate the fact that the taker illegally took the goods in the first place. And the added inducement that the price he will accept is relatively small — less than its fair market value, for example — does not erase the fact that the goods were taken without authority and thus unlawfully. If the seizer lacks the authority to seize, the willingness of the seizer to be moderate in the price he charges to restore his booty to its rightful owner is hardly a reason for the law to acquiesce in his illegal seizure. It is, in fact, only the unauthorized seizure that makes it possible for the taker to wring the redemption price from its owner.

In sum, with this “impoundment” ordinance we see little distinction between a temporary seizure of property and a permanent one. If permanent deprivations of property are forfeitures, so too should even some temporary deprivations be so deemed — at least for the purposes of testing their validity and the kind of process that may be due to carry them out. And as we have shown, we are not dissuaded by any moderation in the size of the fee wrung from the owner to gain the property’s return to excuse the impropriety from seizing it in the first place. We thus proceed upon the conclusion that the ordinance effects a forfeiture of the vehicles thus seized and turn to the question of the forfeiture’s validity.

The trial court’s decision seems at first glance to be based exclusively on federal constitutional grounds, because it relies on Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996). Essentially, Bennis decided that there is no such thing in federal constitutional law as an innocent owner’s defense in forfeiture cases and that the forfeiture of an innocent owner’s interest in property used in the commission of a crime does not violate the federal constitutional proscription against takings of private property for a public purpose without just compensation. The trial court’s reliance solely on .Bennis might suggest that it decided the case merely on federal constitutional grounds.

But it is a well worn judicial canon that a court will not decide constitutional questions if an issue can be determined on any other grounds. State v. Tsavaris, 394 So.2d 418 (Fla.1981); Wooten v. State, 332 So.2d 15 (Fla.1976); Singletary v. State, 322 So.2d 551 (Fla.1975); Jones v. City of Sarasota, 89 So.2d 346 (Fla.1956); and State v. Efthimiadis, 690 So.2d 1320, 1322 (Fla. 4th DCA 1997) (fundamental maxim of judicial restraint that courts should not decide constitutional issues unnecessarily); see also State v. Boyd, 846 So.2d 458, 459 (Fla.2003) (finding no reason to decide case on constitutional grounds and adhering to settled principle of constitutional law that courts should endeavor to enforce purpose of statutes to avoid constitutional issues); State v. Mozo, 655 So.2d 1115 (Fla.1995) (same); State ex rel. City of Casselberry v. Mager, 356 So.2d 267 (Fla.1978) (courts always avoid constitutional issues); Chiapetta v. Jordan, 153 Fla. 788, 16 So.2d 641 (1943) (courts always endeavor to preserve statutes and to avoid constitutional issues). Thus before the trial judge could have reached any Bennis issue in this case, he necessarily had to have resolved all of the owner’s state law arguments in favor of the City. It would have been unnecessary to answer any federal constitutional question if the court had decided the issues in owner’s favor on state statutory or constitutional grounds. We therefore presume that he decided the state law contentions adversely to the plaintiff and look first to those issues. In so doing, we find it unnecessary to address any questions of federal constitutional law.

Owner contends that the ordinance is preempted by state statute. Under law, Florida municipalities do not have unlimited legislative authority. See Zorc v. City of Vero Beach, 722 So.2d 891 (Fla. 4th DCA 1998) (“Municipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.” See Thomas v. State, 614 So.2d 468, 470 (Fla.1993)) (“A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.”). Section 166.021(3) recognizes that cities may not legislate in an area expressly preempted by state legislation. See Art. VIII, § 2(b), Fla. Const, and § 166.021(3), Fla. Stat. (2002). Turning to a specific statute dealing with forfeitures arising from crimes, under the Florida Contraband Forfeiture Act (FCFA):

“It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders.... ”

§ 932.704(1), Fla. Stat. (2002). This statute requires that law enforcement agencies — and that term surely includes city police departments — “shall [e.s.] utilize the provisions of [FCFA]” to seize contraband employed to facilitate crimes of prostitution. We read this as an express preemption by general law of municipal criminal contraband forfeiture laws. Hence cities are precluded from legislating in this area to this extent and may not adopt ordinances on the same subject, and surely not conflicting provisions.

Having decided that FCFA preempts contrary municipal forfeiture provisions for criminal contraband, we note that FCFA pertinently defines “contraband” as:

“Any personal property, including ... any ... vehicle of any kind ... which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony....” [e.s.]

§ 932.701(2)(a)5, Fla. Stat. (2002). Forfeiture under FCFA is thus limited to acts that constitute felonies. The act for which owner was arrested was a misdemeanor. The statute’s requirement of a felony implicitly excludes forfeitures based on misdemeanors and limits forfeiture to cases involving a felony. See Farmer v. Broward County, 632 So.2d 658, 659 (Fla. 4th DCA 1994) (“Applying the familiar principle of statutory construction of expressio unius est exdusio alterius (the mention of one thing implies the exclusion of another), the inclusion only of convicted defendants in the section implies the exclusion of acquitted defendants.”). Because the ordinance purports to authorize the forfeiture of motor vehicles used in connection with mere misdemeanors, it is in direct conflict with FCFA’s limitation to felonies.

Apart from a preemption of the forfeiture area, we also note the ordinance conflicts with FCFA section 932.704(2)-(4) providing for judicial proceedings, instead of an administrative agency, and for jury trials. The ordinance fails to provide for judicial proceedings de novo and a trial by jury. Instead it relegates the important issue of the propriety of the seizure to a municipal agency, thus bypassing the court and jury. Even if the entire area of forfeitures were not preempted by FCFA, the statute would not authorize conflicting ordinances.

Because we conclude that FCFA preempts the impoundment ordinance, we reverse the final order under review and remand for proceedings in harmony with our determination.

POLEN and MAY, JJ., concur.

On Motion for Rehearing

FARMER, C.J.

We deny the City’s motion for rehearing but certify to the supreme court the following question of great public importance:

Does the Florida Contraband Forfeiture Act preempt local governments from adopting ordinances imposing forfeiture of personal property for misdemeanor offenses?

We deny all post-opinion motions by non-parties for leave to appear as amici curiae on rehearing.

POLEN, J., concurs.

MAY, J., concurs specially with opinion.

MAY, J.,

specially concurs.

I agree with the majority’s holding and reasoning that despite the fact that the City of Hollywood’s ordinance refers to “impoundment” of vehicles it is tantamount to a “forfeiture.” Howard Cole & Co. v. Williams, 157 Fla. 851, 859, 27 So.2d 352, 356 (Fla.1946). I also agree that the Florida Contraband Forfeiture Act (FCFA) is “limited to acts that constitute felonies.” It is here that I temporarily part company with the majority.

Because the FCFA is limited to felonies, it seems to me that local government may legislate with regard to misdemeanors through its municipal home rule powers. “As provided in s.2(b), Art. YIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.” § 166.021(1), Fla. Stat. (2003) (emphasis added). The FCFA does not expressly prohibit local government from legislating in the area of forfeitures with regard to misdemeanors. It does not therefore expressly preempt the impoundment ordinance.

I do not believe that because the FCFA addresses felonies that it “implicitly” excludes local government legislation concerning misdemeanors. This court has previously held that a local ordinance creating a lien for special counsel on acquitted defendants conflicted with state law limiting the attorney’s fees lien to guilty defendants. See Farmer v. Broward County, 632 So.2d 658 (Fla. 4th DCA 1994). However, in Farmer, the state law had previously expressly preempted local government from legislating with regard to such liens. The legislature had then amended the statute to limit its application to only defendants found guilty. This expressed an intent on the part of the legislature to exclude acquitted defendants from the purview of the statute. Such is not the case in the forfeiture statute.

However, the FCFA expressly provides the requisite scheme for effectuating forfeitures to assure due process. “It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders....” § 932.704(1), Fla. Stat. (2002). Thus, local government enactments relating to forfeitures would have to comply with the procedural requirements of the FCFA so as not to conflict. The City of Hollywood’s ordinance fails in this regard. Thus, I re-join the majority and agree with its alternative holding that the ordinance conflicts with the FCFA in its requisite procedural requirements. For this reason, I join in the reversal of the summary judgment in favor of the City of Hollywood.

         Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994, 1001, 134 L.Ed.2d 68 (1996), J. Thomas, concurring.

        Id. quoting J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 190, 65 L.Ed. 376 (1921).

         Bennis at 1001-02.

      . Ginn did not stress the public safety concern in eliminating the danger posed by a drunk driver. The interest of the State in temporarily impounding vehicles of drunk drivers needs no further explanation.

      . The cases in this state supporting the principle of constitutional parsimony are extensive. See also Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881 (Fla., 1974); Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973); Walsingham v. State 250 So.2d 857 (Fla.1971); Green v. State, 166 So.2d 585 (Fla.1964); State ex rel. Losey v. Willard, 54 So.2d 183 (Fla. 1951); State ex rel. North St. Lucie River Drainage Dist. v. Kanner, 152 Fla. 400, 11 So.2d 889 (1943); L. Maxcy, Inc. v. Mayo, 103 Fla. 552, 139 So. 121 (1931); State ex rel. Atlantic C.L.R. Co. v. State Bd. of Equalizers, 84 Fla. 592, 94 So. 681, (1922); State ex rel. Wolyn v. Apalachicola N.R. Co., 81 Fla. 394, 88 So. 310 (1921); Crawford v. State, 662 So.2d 1016 (Fla. 5th. DCA 1995); Matthews v. Weinberg, 645 So.2d 487 (Fla. 2nd DCA), review den., 654 So.2d 919 (Fla.1995); Freedman v. State Board of Accountancy, 370 So.2d 1168 (Fla. 4th DCA 1979); Board of County Comm’rs v. Sloan, 214 So.2d 74 (Fla. 2d DCA 1968); Green v. Peters 140 So.2d 601 (Fla. 2d DCA), cert. den. 146 So.2d 754 (Fla.1962); State ex rel. Bankers Life & Casualty Co. v. North Palm Beach, 138 So.2d 378 (Fla. 2d DCA 1962). We do well not to lose sight of this principle of parsimony, no matter how persistent advocates may be in asserting constitutional questions.


source: Caselaw Access Project

author: GUNTHER, J.

license: Public Domain

text:
    Douglas B. MANOLAKOS, Appellant, v. Amy S. MANOLAKOS, Gold Coast Chiropractic Center, P.A. and Orange Blossom Chiropractic Center, P.A., Appellees.
    No. 4D02-2071.
    District Court of Appeal of, Florida, Fourth District.
    Feb. 11, 2004.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Stuart R. Manoff of Manoff & Schütz, P.A., West Palm Beach, for appellant.
    Martin H. Colin of the Law Offices of Martin H. Colin, Lake Worth, for appellee Amy S. Manolakos.
   ON MOTION FOR CLARIFICATION

GUNTHER, J.

We withdraw our opinion filed on December 31, 2003 and substitute the following opinion. Doug Manolakos (“Former Husband”) timely appeals the Final Judgment of Dissolution of Marriage and the trial court’s Order Denying his Motion for Rehearing. Because the judgment lacks the necessary findings, we reverse and remand.

The Former Husband and -Amy Manola-kos (“Former Wife”), who are both chiropractors, were married in 1991. A short while later, the couple started Gold Coast Chiropractic Center, in which they were equal partners. The couple also took a fifty percent interest in Orange Blossom Chiropractic Center.

In 2001, the Former Wife instituted a dissolution of marriage action. The Former Wife sought permanent alimony, arguing that during the marriage the parties agreed she should stay at home with their two children. During the trial, the court suggested that the Former Wife and the Former Husband remain co-owners of the chiropractic businesses and work together after three years. However, both the Former Wife and the Former Husband rejected this suggestion.

The court orally announced its ruling and asked the parties to agree on the form of the final judgment. However, the parties could not agree. Thus, the Former Husband moved for entry of a final judgment. After a hearing on this motion, the trial court entered its Final Judgment of Dissolution of Marriage. After the final judgment was issued, the Former Husband filed a Motion for Rehearing which was denied. The Former Husband now appeals.

Under section 61.075(1), Florida Statutes (2002), assets should be distributed equally “unless there is a justification for an unequal distribution of marital assets and liabilities based on all relevant factors.” The statute then lists a number of relevant factors. § 61.075(l)(a)-(j). “[A]ny distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment ... with reference to the factors enumerated in subsection (1).” § 61.075(3).

In the final judgment, although the trial court states that “[t]he court makes an equal distribution of marital assets and liabilities, specifically finding that there is no reason for an unequal distribution based upon the factors set forth in ... [the statute],” upon an examination of the record, there was in fact an unequal distribution of assets. The Former Wife could elect not to pay the balancing payment and would then receive $29,307.25 more in assets than the Former Husband.

Furthermore, the trial court failed to make the appropriate factual findings to justify an alimony award. Section 61.08(1), Florida Statutes (2002), states that “[i]n all dissolution actions the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” It is well established that a trial court errs when it awards alimony without making findings of fact according to these statutory factors. See Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003); Allison v. Allison, 692 So.2d 1013, 1013 (Fla. 4th DCA 1997); Vitalis v. Vitalis, 799 So.2d 1127, 1131 (Fla. 5th DCA 2001) (citations omitted).

In addition to ordering the Former Husband to pay alimony, the trial court also ordered him to pay $2,971 per month in child support. The trial court’s child support award, like the equitable distribution of the parties’ property and the alimony award, lacked sufficient factual findings as required under section 61.30, Florida Statutes (2002). While a child support determination is within the discretion of the trial court, section 61.30 “provides the statutory formula which must be used to determine each parents actual dollar share.” Ondrejack, 839 So.2d at 871 (citing Stanton v. Stanton, 648 So.2d 1233, 1234 (Fla. 4th DCA 1995) (emphasis in original)). This court has previously stated that “in the absence of explicit factual findings concerning the actual incomes attributable to the Husband and the Wife, the amount and source of any imputed income, the probable and potential earnings level, and the adjustments to income, the trial court’s final judgment was deficient.” Segall v. Segall, 708 So.2d 983, 988 (Fla. 4th DCA 1998) (citations omitted). Here, the final judgment lacked these findings, and thus, the final judgment is deficient.

In the final judgment, the trial court also ordered that the Former Husband and the Former Wife remain equal owners in the chiropractic businesses. According to the judgment, the Former Husband would manage and operate these businesses for three years. During this time, he would be entitled to all the profits from the businesses. After three years, the Former Wife was to return to working with the Former Husband and when she returned, she was to begin receiving fifty percent of the net revenues. Dissolution of marriage being what it is, it is clearly an abuse of discretion for the trial court to order two parties who have stated they do not want to continue to work together after their divorce to do just that.

As the trial court abused its discretion in ordering the parties to continue to work together and in failing to make the required findings regarding the equitable distribution of the parties’ property, the alimony award, and the child support award, this court cannot properly review this case. Accordingly, except for that portion of the order dissolving the marriage, we reverse and remand for the trial court to reconsider this case in its entirety and make the appropriate findings. See Carr v. Carr, 569 So.2d 903, 904 (Fla. 4th DCA 1990) (when reversing and remanding the trial court’s erroneous equitable distribution of the parties’ property, the court stated that on remand the trial court could also reconsider the other issues in that case, such as alimony, as they were all interrelated).

REVERSED and REMANDED.

FARMER, C.J., and KRATHEN, DAVID H., Associate Judge, concur.


author: PER CURIAM.

text:
    Jamal CHINA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0442.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Rehearing Denied May 4, 2004.
    Jamal China, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as untimely. Fla. R.App. P. 9.141(c)(4)(B).

DISMISSED.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Harold LONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0197.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Rehearing Denied April 30, 2004.
    Harold Long, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the court’s order of January 16, 2004, the court has determined that the notice of appeal is untimely. Accordingly, the appeal is hereby dismissed.

DISMISSED.

BARFIELD, KAHN and HAWKES, JJ., concur.


author:
LEWIS, J.
      WEBSTER, J.,

text:
    FLORIDA DEPARTMENT OF FINANCIAL SERVICES, et al., Appellants, v. RISCORP INSURANCE COMPANY and, et al., Appellees. and Florida Department of Financial Services, et al., Appellants, v. Florida Hospitality Mutual Insurance Co., etc., Appellee.
    Nos. 1D02-3484, 1D02-3485.
    District Court of Appeal of Florida, First District.
    March 16, 2004.
    Rehearing Denied May 4, 2004.

      Charlie Crist, Attorney General; Christopher M. Kise, Solicitor General, Louis F. Hubener, Deputy Solicitor General, Lynn C. Hearn, Deputy Solicitor General, Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellants.
    Michael G. Tanner, and Frederick D. Page, of Holland & Knight, LLP, Jacksonville for Florida Hospitality Mutual Insurance Company; Timothy W. Volpe, and Michael M. Bajalia, of Volpe, Bajalia, Wickes & Rogerson, Jacksonville for RIS-CORP, for Appellees.
   LEWIS, J.

In these consolidated appeals, appellants, the Florida Department of Financial Services and Tom Gallagher, as Chief Financial Officer, seek review of the trial court’s two final judgments declaring that appellees, RISCORP Insurance Company, RISCORP Property & Casualty Insurance Company (collectively “RISCORP”), and Florida Hospitality Mutual Insurance Company (“FHM”) were entitled to refunds for their overpayment into Florida’s Special Disability Trust Fund (“SDTF”) and Workers’ Compensation Administration Trust Fund (“WCATF”). Concluding that the term “net premiums collected,” as contained in section 440.51, Florida Statutes, and the term “net premiums written,” as contained in section 440.49, Florida Statutes, include ceded reinsurance premiums, we reverse the final judgments to the extent that appellees’ refunds are attributable to reinsurance premiums. We affirm the final judgments to the extent that appellees’ refunds are attributable to brokerage fees and commissions without further discussion. We also affirm the trial court’s denial of DLES’s Motion to Amend Answer and to Withdraw Certain Responses to Admissions Requests without further discussion.

The legislative intent behind the creation of the SDTF was to “encourage the employment, reemployment, and accommodation of the physically disabled by reducing an employer’s insurance premium for reemploying an injured worker, to decrease litigation between carriers on apportionment issues, and to protect employers from excess liability for compensation and medical expense ....”§ 440.49(1), Fla. Stat. (1999). The SDTF is maintained by annual assessments upon the insurance companies writing compensation insurance in Florida, commercial self-insurers, assessable mutuals, and self-insurers. § 440.49(9)(b)l., Fla. Stat. (1999). Pursuant to section 440.49(9)(b)3., Florida Statutes (1999), “The net premiums written by the companies for workers’ compensation in this state and the net premium written applicable to the self-insurers in this state are the basis for computing the amount to be assessed as a percentage of net premiums.” (emphasis added). The annual amount necessary to fund the SDTF is to be “prorated among the insurance companies writing compensation insurance in the state and the self-insurers.” § 440.49(9)(b)2., Fla. Stat. (1999).

The legislative purpose behind the WCATF is to provide “for the payment of all expenses in respect to the administration of [chapter 440], including the vocational rehabilitation of injured employees ... and the payments due under s. 440.15(1)® and the funding of the Bureau of Workers’ Compensation Fraud within the Department of Insurance.” § 440.50(l)(a), Fla. Stat. (1999). The total expense of the administration of the WCATF is to be prorated among insurance carriers writing compensation insurance in Florida and self-insurers. § 440.51(l)(b), Fla. Stat. (1999). “The net premiums collected by the companies and the amount of premiums a self-insurer would have to pay if insured are the basis for computing the amount to be assessed.” Id. (emphasis added).

HISTORY OF THE STATUTES

In 1975, the Legislature amended sections 440.49 and 440.51, which had both used the term “gross premiums collected,” to prescribe that assessments would be based on “net premiums collected.” See Ch. 75-209, §§ 24-25, at 475-79, Laws of Fla. In 1993, the Legislature amended section 440.49, changing “net premiums collected” to “net premiums written.” See Ch. 93-415, § 43, at 177, Laws of Fla. Neither term has been statutorily defined. As a result of the 1993 amendment, DLES adopted the following rule:

Net premiums written are all premiums written less return premiums arising from policies issued by an insurer. For insurance companies, assessable mutuals and commercial self-insurance funds this is the same information you are required to report to the Department of Insurance on page 14 of the National Association of Insurance Commissioners Annual Statement.

Fla. Admin. Code R. 38F-4.001(2). This rule was repealed on December 18, 1995, as part of an effort by Governor Chiles to reduce the number of agency rules. See 21 Fla. Admin. W. 7395 (Oct. 27,1995). In 1997, the Legislature enacted a law authorizing the deduction of “any amount paid or credited as dividends or premium refunds ... by the insurer to its policyholders” from “net premiums written” and “net premiums collected,” as contained in sections 440.49 and 440.51. See § 624.5094, Fla. Stat. (1997). In 2000, in response to this .litigation, the Legislature attempted to clarify the terms at issue by setting forth:

Legislative intent. — It is the intent of the Legislature to clarify that the terms “net premiums written” and “net premiums collected” as used in chapter 440, Florida Statutes, have meant and continue to mean premiums arising from workers’ compensation policies issued by an insurer in this state as the primary insurance carrier without deduction for ceded reinsurance premiums transferred to an insurance company for reinsurance purchased or any premium expense attributable to purchasing reinsurance.

Ch. 00-150, § 1, at 564, Laws of Fla.

PROCEDURAL HISTORY

On September 10, 1999, RISCORP filed suit against DLES, alleging that, in calculating its net premiums written and its net premiums collected from 1995 to 1997, it overpaid its assessments by not deducting ceded reinsurance premiums. RISCORP sought a declaratory judgment that the term “net premiums written,” as contained in section 440.49, and the term “net premiums collected,” as contained in section 440.51, do not include reinsurance premiums. RISCORP also requested that the trial court issue an order of mandamus to compel DLES “to cause a refund to be paid” to it. FHM subsequently filed suit against DLES, essentially seeking the same relief sought by RISCORP.

- DLES filed several affidavits with the trial court, establishing that between approximately 1975 and 1993, no controversy as to the two terms at issue had arisen. Several of DLES’s past and current employees explained in their affidavits that, during these years, they only had to bill a handful of approximately 400 carriers for deficiencies in their assessment reporting. DLES’s Assessment Coordinator, Evelyn Vlasak, also explained, via affidavit, that, in 1995, only 13.6% of the carriers reporting to DLES had an underreporting discrepancy in excess of $100 with respect to their liability under section 440.49 and the SDTF. In 1995, only 17.6% of the reporting carriers had an underreporting discrepancy in excess of $100 with respect to their liability under section 440.51 and the WCATF. In 1998, only 10.8% of reporting carriers had an underreporting discrepancy in excess of $100 as to the SDTF, and only 16.4% of reporting carriers had an underreporting discrepancy in excess of $100 as to the WCATF. Vlasak further explained that such discrepancies could be due to a variety of factors, factors other than the deduction of reinsurance premiums.

The record also contains a December 16, 1997, letter written by DLES’s former General Counsel to an insurance carrier not a party to this case, an internal memorandum dated September 29, 1998, written by a Senior Attorney for DLES, and four letters written in 1998 by a former Senior Management Analyst II for DLES addressed to insurance carriers other than appellees. In each of these documents, DLES’s employees informed their respective recipients that reinsurance premiums could be deducted from the carriers’ net premiums written and net premiums collected.

On September 22, 1999, DLES sent Bulletin # 209 to all carriers and self-insured funds in Florida, explaining that the Division would collect assessments for the SDTF based on “net written premium,” which the Division interpreted to mean “all premiums written less return premiums arising from policies issued by an insurer.” Bulletin #209 further explained that the Division would collect the WCATF assessments based on “net premium collected,” which the Division interpreted to mean “all premiums, including those ceded to rein-surers.”

In the trial court’s final judgment with respect to FHM, the court found that FHM was entitled to a refund or a credit against its respective assessment obligations in lieu of a refund in the amount of $576,697 for overpayments or payments made in error to the State Treasury on its WCATF assessments for the years 1996, 1997, and 1998 and $1,044,172 for overpay-ments or payments made in error to the State Treasury on its SDTF assessments for the years 1996, 1997, and 1998. In its final judgment with respect to RISCORP, the trial court similarly found that RIS-CORP was entitled to a refund in the amount of $14,274,239 for overpayments to the State Treasury on its SDTF assessments for the years 1995, 1996, and 1997 and to a refund in the amount of $8,201,647 for overpayments to the State Treasury on its WCATF assessments for the years 1995, 1996, and 1997. These appeals followed.

ANALYSIS

In construing a statute, the plain meaning of the statute is our first consideration. See Fla. Dep’t of Educ. v. Cooper, 858 So.2d 394, 395 (Fla. 1st DCA 2003); Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 328-29 (Fla. 1st DCA 2002). It is well settled that legislative intent is the polestar that guides this Court’s statutory construction analysis. See State v. J.M., 824 So.2d 105, 110 (Fla.2002) (citation omitted). Legislative intent is determined primarily from the language of a statute. State v. Rife, 789 So.2d 288, 292 (Fla.2001) (citations omitted).

In looking at the plain language of sections 440.49(9)(b)3. and 440.51(l)(b) and the terms “net premiums written” and “net premiums collected,” it is clear that the Legislature intended that certain costs or expenses should be excluded from a carrier's assessment base. Such a conclusion is evident based upon the Legislature’s 1975 amendment of the statutes wherein it substituted the term “net” for the term “gross.” The term “gross” is defined as “[ejxclusive of deductions; total,” while the term “net” is defined as “[rjemaining after all deductions and adjustments have been made.” The American Heritage Dictionary 375, 570 (4th ed.2001); see also Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000) (holding that, when necessary, the plain and ordinary meaning of a word can be ascertained by reference to a dictionary).

The annual amounts necessary to fund the SDTF and the WCATF are to be prorated among the insurance companies writing compensation insurance in Florida and the self-insurers. §§ 440.49(9)(b)2., 440.51(l)(b), Fla. Stat. (1999). As explained by appellants, an insurance company may choose to purchase reinsurance to protect it from a risk it has already assumed. Upholding appellees’ interpretation of the statutes at issue, i.e., that net premiums written and net premiums collected do not include reinsurance premiums, would unreasonably permit a carrier who chooses to purchase reinsurance to reduce its assessment base while a carrier who chooses not to purchase reinsurance would be unable to do so. Such an outcome would be contrary to the intent of sections 440.49 and 440.51.

Our conclusion that net premiums collected and net premiums written include reinsurance premiums is also supported by the record, which establishes that no “controversy” arose with respect to the terms at issue between 1975 and 1993. By rule, DLES defined the term “net premiums written” as including reinsurance premiums. This rule was not repealed until December 18, 1995. Thus, for twenty years, carriers had knowledge that net premiums collected and net premiums written included reinsurance premiums. Even after DLES repealed the rule, the vast majority of carriers still included their reinsurance premiums in their net premiums collected and net premiums written, including appellees. As DLES’s Assessment Coordinator explained, in 1998, only 10.8% of reporting carriers had an un-derreporting discrepancy as to the SDTF and only 16.4% of reporting carriers had an underreporting discrepancy as to the WCATF. These discrepancies may have been due to a variety of factors other than the deduction of reinsurance premiums. Moreover, in 1999, DLES issued Bulletin # 209, affirming the agency’s position that net premiums collected and net premiums written include reinsurance premiums.

Accordingly, we AFFIRM in part; REVERSE in part and REMAND for further proceedings.

HAWKES, J., concurs; WEBSTER, J., concurs in result with written opinion.

WEBSTER, J.,

concurring in result.

I am unable to agree with all of the analysis in the majority’s opinion. I do, however, agree that (1) the interpretation of sections 440.49(9)(b)3 and 440.51(l)(b) urged by appellees and accepted by the trial court would produce an absurd result that could not have been intended by the legislature; (2) documents authored by employees of the agency in 1997 and 1998, upon which appellees and the trial court place significance, could not estop appellants from taking the position they have in this litigation and, therefore, have no bearing on the outcome; and (3) sections 440.49(9)(b)3 and 440.51(l)(b) do not permit ceded reinsurance premiums (or any other premium expense attributable to the purchase of reinsurance) to be treated as advocated by appellees and held by the trial court. Accordingly, I agree that the portions of the final judgments holding that appellees are entitled to refunds must be reversed to the extent those refunds are attributable to deductions for ceded reinsurance premiums. I also agree that the trial court did not abuse its discretion in denying appellants’ motions to withdraw admissions and to amend their answers. Accordingly, based on those admissions and answers, I agree, further, that the portions of the final judgments holding that appellees are entitled to refunds must be affirmed to the extent those refunds are attributable to deductions for brokerage fees and commissions. Because the result reached by the majority is consistent with that I would reach, I concur in that result.

      . All actions in these cases occurred when the Department of Labor and Employment Security ("DLES”) administered the workers’ compensation laws and when the Division of Workers’ Compensation ("Division”) was a division of DLES.


author: GRIFFIN, J.

text:
    Karen CAPUTO, Appellant, v. Stephen NOUSKHAJIAN, etc., Appellee.
    No. 5D03-413.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2004.
    Rehearing Denied April 27, 2004.

      Todd K. Norman, of Stump, Storey, Callahan & Dietrich, P.A., Orlando, and Thomas C. Shaw, of Lefkowitz, Bloom & Shaw, P.A., Orlando, for Appellant.
    Ronald H. Roby, of Roby Law Firm, Winter Park, for Appellee.
   GRIFFIN, J.

Appellant, Karen Caputo [“Karen”], appeals several orders of the trial court pertaining to her objections to the probate inventory filed by her brother, Stephen Nouskhajian [“Stephen”], the personal representative of their mother’s estate. At issue is whether Stephen could withhold from the estate and keep for himself the funds from certain bank accounts which were held jointly in his name and his mother’s with a right of survivorship.

Stephen, son and personal representative for Rouzan L. Nouskhajian [“Rouz-an”], filed a petition for administration of his mother’s estate on October 16, 2001. Rouzan’s will contained several provisions pertinent to this appeal: Stephen was named to be Rouzan’s personal representative and Richard Leigh, her attorney [“Leigh”], the alternate. Rouzan devised and bequeathed her residence located at 1311 Baldwin Drive to her daughter, Karen. Rouzan bequeathed one-half of the remainder of her estate to Stephen and directed that the other one-half fund a trust to support her mentally ill daughter, Zabelle Schlicter [“Zabelle”].

On March 14, 2002, Stephen filed a petition to determine the homestead status of the residence. In an order dated May 22, 2002, the probate court found that the mother’s residence on Baldwin Drive constituted the homestead of the decedent, the property was subject to devise, and Rouzan had devised the property to Karen.

Stephen then filed an inventory of all property of Rouzan’s estate. The inventory identified only the homestead property and $5,000 in miscellaneous assets. Karen filed an acceptance as successor trustee of Zabelle’s trust. She then filed her objection to the probate inventory on the ground that certain bank accounts and financial assets were not listed that were intended by decedent to fund the trust for Zabelle.

Before her death, Rouzan had numerous bank accounts. Her Bank of America (Na-tionsBank) account was titled in her name as well as the names of Raymond Lazarí-an and Stephen. The approximate balance in this account was $104,552.76.

Rouzan also set up an account with Washington Mutual Bank. Both she and Stephen signed the account agreement which identified it as:

[a] joint account with right of survivor-ship in our names. Upon the death of one or more of us, the funds in this account become the property of the survivor(s).

As of September 18, 2001, this account’s balance was $116,059.28. Rouzan had another account with Washington Mutual on which both Rouzan and Stephen were signatories and which also contained a statement that it was a joint account with right of survivorship. As of September 26, 2001, the balance in this account was $37,962.79. Rouzan’s account with Fairwinds Credit Union was also a joint account with Stephen with right of survivorship. Finally, Rouzan had a personal checking account at Citizens National Bank. At the time she died, there was $1,200 in the account. Stephen included this last account in the inventory.

On August 15, 2002, Stephen gave a deposition and testified that his mother had told him that he could use money in the accounts if he ever needed it, so he considered the funds to be his. He closed out these accounts after his mother died and put the funds in a joint account he held with his wife.

Stephen acknowledged that .his mother intended to fund Zabelle’s trust with half of the money in the above-described bank accounts. At the time Rouzan signed her will, he heard her say in the presence of Leigh that it was to be funded with the money in her bank accounts.

Stephen testified that he did not include the bank accounts in the inventory because he did not believe they were part of the estate. Although at the time she made the will it was his mother’s intention to fund the trust with the money in the bank accounts, he later concluded she had changed her mind because she told him that he could use the money in the accounts.

The record contains several letters that Rouzan wrote expressing her intent that the three children share her assets equally upon her death. In a letter dated August 2000 to Karen, Rouzan wrote to Karen that she would get the house and that “Steve will put all assets including [the] house together and divide it by three, and if money is there you will get cash to equalize.” It appears that this was a reference to her plan that each child receive approximately $140,000. Karen was to receive the house, worth about $140,000, and Steve and Zabelle’s trust were to split approximately $284,000 in cash.

On August 28, 2002, the trial court held a preliminary hearing on Stephen’s objection to Karen’s attempt to depose Leigh in order to discover evidence as to Rouzan’s intent. The court entered an order finding that, at the forthcoming final hearing on the objections to probate inventory, it would not allow parol evidence to be admitted to establish decedent’s intent concerning the bank accounts because the documents establishing these accounts were unambiguous. The court also found that decedent’s intent was irrelevant as to the Bank of America account because Raymond Lazarían had established the account, and, therefore, only his intent was relevant. Finally, the court ruled that Leigh’s testimony was protected by the attorney-client privilege and was neither discoverable nor admissible.

Subsequently, the judge who made these rulings, retired and was succeeded by a successor judge. That judge determined not to revisit any of these earlier rulings. Accordingly, he entered an order denying Karen’s objection to the inventory and denying her motion to remove Stephen as personal representative.

Karen argues that the trial court erred when it excluded as parol evidence Stephen’s admissions that Rouzan had intended the jointly held bank accounts to be included in the estate to fund the trust. Karen maintains that section 655.79, Florida Statutes (2000), allows the presumption permitting accounts to pass to a surviving account holder to be overcome by clear and convincing evidence of contrary intent. Stephen contends that this is not a “presumption” case because the documents executed when the accounts were originally set up are clear that a right of survivorship ivas created. Stephen argues that parol evidence would be available only if these account documents were ambiguous, but they are not.

We reject Stephen’s position on this issue for two reasons. First, the statute itself makes clear that it applies even where there are unambiguous bank documents setting up the account with a right of survivorship. The statute was enacted to validate such transfers, previously held to be ineffectual under the statute of wills, and is controlling in this case. It specifies that, absent a provision in the writing that negates a right of survivorship, a surviv- or’s right is presumed, but can be overcome by clear and convincing evidence of a contrary intent. The statute recognizes that such accounts are commonly established jointly for a myriad of reasons not associated with an intent to divest the account owner’s estate of any right to the account in the event of death.

Second, the Supreme Court of Florida in In re Estate of Combee, 601 So.2d 1165 (Fla.1992), held that, in such disputes over the inclusion of bank accounts in a probate estate, parol evidence is admissible to prove the decedent’s intent. In Combee, the decedent died testate, leaving the bulk of her estate, which included two bank accounts, to two grandchildren. In its decision, the court specifically noted that “[t]he signature card clearly indicates that it is a joint account with survivorship.” Id. at 1168. The trial court had ruled that the presumption created by section 658.56, Florida Statutes (1987), had been overcome by clear and convincing evidence that the decedent’s intent was not to create survivorship accounts. Id. at 1166. The supreme court said that the creation of a joint bank account with right of survivor-ship created a presumption that the depositor of the funds intended that, upon his or her death, the funds remaining in the account would vest in the survivors. Id. at 1166-67. The supreme court also spoke to the issue of parol evidence:

Contrary to respondents’ argument, however, we also agree that in exchange for the creation of a presumption which shifts the burden of proof to the estate under section 90.304, Florida Statutes (1987), and increases the burden to a clear and convincing standard, the estate is entitled to introduce parol evidence. (emphasis added)

Id. at 1167 n. 2. In Combee, it is apparent that the supreme court examined parol evidence regarding the decedent’s intent in reaching its decision. Id. at 1168-69.

The First District’s decision in King v. Estate of King, 554 So.2d 600 (Fla. 1st DCA 1989), also supports this outcome. In King, the court addressed the issue of whether the trial court erred when it determined that two bank accounts were assets of the decedent’s estate and did not pass by right of survivorship. Id. The appellate court concluded that the trial court did not err in finding that the statutory presumption was rebutted by clear and convincing evidence of the decedent’s contrary intent, or in permitting parol evidence to determine the decedent’s intent. Id. The court explained:

The testimony presented below included parol evidence offered to show that the accounts were not intended to pass by survivorship. Such parol evidence generally may not be used to modify the terms of a complete and unambiguous written agreement. However, section 658.56 authorizes such proof in this case with regard to the statutory presumption which may be rebutted by proof of a contrary intent.

Id. at 601-02. The trial court erred in disallowing parol evidence of Rouzan’s intent.

We agree with Karen that the trial court also erred in finding that the intent of the decedent was irrelevant to the Bank of America/NationsBank account. At the time of Raymond Lazarian’s death in June of 2000, his intent concerning the account as reflected in his will was fulfilled when the assets of his estate were distributed. At that point in time, the money became Rouzan’s, and her intent became relevant. Thus, the trial court erred in determining her intent was not relevant.

We also vacate the lower court’s order specifying that communications between Rouzan and her attorney, Leigh, are neither discoverable nor admissible in evidence because of the attorney-client privilege. Section 90.502(4)(b), Florida Statutes (2000), authorizes the introduction of an attorney’s testimony regarding evidence of the decedent’s intent when two claimants are claiming the same bank accounts through the decedent who was the attorney’s client. Section 90.502 provides:

(4)There is no lawyer-client privilege under this section when:
(b) A communication is relevant to an issue between parties who claim through the same deceased client.

Moreover, it appears that key communications were either not covered by the privilege or the privilege may have been waived.

Last, Karen argues that the trial court erred in not removing Stephen as personal representative because he held an interest adverse to the estate by claiming virtually the entire corpus of the estate for himself. We assume the trial court denied this motion because the earlier rulings of the prior judge settled the bank account issue in Stephen’s favor. In light of our disposition on appeal, we remand for the trial court to reconsider this issue.

REVERSED and REMANDED.

PLEUS and TORPY, JJ., concur.

      . Richard Leigh was named trustee, but he subsequently filed a notice of declining to serve.

      . Raymond was Rouzan’s brother who had died in June 2000.


author: LEWIS, J. WEBSTER, J.,

text:
    FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, AFL-CIO, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Florida Board of Governors, Appellees.
    No. 1D03-1190.
    District Court of Appeal of Florida, First District.
    March 22, 2004.
    Rehearing Denied May 4, 2004.

      Alma Gonzalez, Special Counsel for the Florida Public Employees Council 79, AFSCME, Tallahassee; Jerry G. Trayn-ham, Esq. and Ben R. Patterson, Esq. of Patterson & Traynham, Tallahassee, for Appellant.
    Michael Mattimore, Esq. and Robert E. Larkin, III, Esq. of Allen, Norton & Blue, P.A., Tallahassee for Florida Board of Governors; David Smolker, Esq. of Brick-lemyer, Smolker & Bolves, P.A., Tampa for New College of Florida Board of Trustees, for Appellee.
   LEWIS, J.

Appellant, the Florida Public Employees Council 79, AFSCME, AFL-CIO, seeks review of an order of appellee, the Public Employees Relations Commission (“PERC”), dismissing appellant’s petitions to amend certification. Appellant contends that PERC erred in designating the university Boards of Trustees as the public employers of their respective universities. For the following reasons, we affirm.

During a special session in 2002, the Florida Legislature passed chapter 02-387, Laws of Florida, “the Governance Act,” wherein it abolished the Florida Board of Regents, effective July 1, 2001, and established new criteria for local Boards of Trustees at each state university, effective January 7, 2003. Ch. 02-387, §§ 3, 83, at 3152, 3236, Laws of Fla. The Legislature amended section 447.203(2), Florida Statutes (2001), which set forth that “the Board of Regents shall be deemed to be the public employer with respect to all public employees within the State University System ...” by replacing the “Board of Regents” with the “university board of trustees” and prescribing that the individual boards would “be the public employer with respect to all public employees of the respective state university....” Ch. 02-387, § 1006, at 4129, Laws of Fla. Thus, section 447.203(2), Florida Statutes (2002), provides, in pertinent part, that:

With respect to all public employees determined by the commission as properly belonging to a statewide bargaining unit composed of State Career Service System employees or Selected Professional Service System employees or Selected Professional Service employees, the Governor shall be deemed to be the public employer; and the university board of trustees shall be deemed to be the public employer with respect to all public employees of the respective state university.

(emphasis added).

Thereafter, the voters of Florida . approved the following constitutional amendment to Article IX of the Florida Constitution in November 2002, which became effective on January 7, 2003:

SECTION 7. State University System.
(a) PURPOSES. In order to achieve excellence through teaching students, advancing research and providing public service for the benefit of Florida’s citizens, their communities and economies, the people hereby establish a system of governance for the state university system of Florida.
(b) STATE UNIVERSITY SYSTEM. There shall be a single state university system comprised of all public universities. A board of trustees shall administer each public university and a board of governors shall govern the state university system.
(c) LOCAL BOARDS OF TRUSTEES. Each local constituent university shall be administered by a board of trustees consisting of thirteen members dedicated to the purposes of the state university system. The board of governors shall establish the powers and duties of the boards of trustees. Each board of trustees shall consist of six citizen members appointed by the governor and five citizen members appointed by the board of governors. The appointed members shall be confirmed by the senate and serve staggered terms of five years as provided by law. The chair of the faculty senate, or the equivalent, and the president of the student body of the university shall also be members.
(d) STATEWIDE BOARD OF GOVERNORS. The board of governors shall be a body corporate consisting of seventeen members. The board shall operate, regulate, control, and be fully responsible for the management of the whole university system. These responsibilities shall include, but not be limited to, defining the distinctive mission of each constituent university and its articulation with free public schools and community colleges, ensuring the well-planned coordination and operation of the system, and avoiding wasteful duplication of facilities or programs. The board’s management shall be subject to the powers of the legislature to appropriate for the expenditure of funds, and the board shall account for such expenditures as provided by law. The governor shall appoint to the board fourteen citizens dedicated to the purposes of the state university system. The appointed members shall be confirmed by the senate and serve staggered terms of seven years as provided by law. The commissioner of education, the chair or the advisory council of faculty senates, or the equivalent, and the president of the Florida student association, or the equivalent, shall also be members of the board.

On January 7, 2003, appellee, the Board of Governors, the members of which were appointed by the Governor on December 23, 2002, unanimously met and approved a resolution “delineating the powers and duties of the university Boards of Trustees” pursuant to the powers bestowed upon it by the voters of Florida. The resolution, in pertinent part, provides that “[e]ach board of trustees is vested with the authority to govern its university, as necessary to provide proper governance and improvement of the university in accordance with law and with rules of the Board of Governors.” The resolution further provides that:

Each board of trustees shall establish the personnel program for all employees of the university, including the president, pursuant to the provisions of chapter 1012 and, in accordance with rules and guidelines of the Board of Governors, including: compensation and other conditions of employment, recruitment and selection, nonreappointment, standards for performance and conduct, evaluation, benefits and hours of work, leave policies, recognition and awards, inventions and works, travel, learning opportunities, exchange programs, academic freedom and responsibility, promotion, assignment, demotion, transfer, tenure and permanent status, ethical obligations and conflicts of interest, restrictive covenants, disciplinary actions, complaints, appeals and grievance procedures, and separation and termination from employment.... No rule of the Board of Governors shall be considered to in any way contravene the responsibility of each of the university board of trustees to act as the sole public employer with regard to all public employees of its universities for the purposes of collective bargaining in accord with chapter W Florida Statutes.
BE IT RESOLVED that it is the intent of the Board of Governors that the university boards of trustees shall be the sole public employer with respect to all public employees of the respective state universities as provided in s. 447.203(2) and (10) F.S. for the purpose of collective bargaining....

(emphasis added).

That same day, appellant filed a Petition to Amend Certification with PERC, requesting that PERC amend “Certifications numbered 730, 731, 732, and 733” to reflect that the Board of Governors, pursuant to article IX, section 7, was the successor employer of all employees whose previous employer was the Board of Education. Appellant subsequently filed an Amended Petition to Amend Certification, which, for the most part, mirrored its initial petition. PERC appointed a hearing officer, who directed the Board of Governors to respond. In his recommended order, the hearing officer found that appellant sought to substitute the Board of Governors for the Board of Education as the public employer for the purpose of collective bargaining and to challenge the Board of Governors’ resolution on constitutional grounds. According to the hearing officer, the issue did not raise disputed issues of material fact; however, the pleadings raised disputed issues of law.

In his legal analysis, the hearing officer concluded that, until ■ section 447.203(2), which provides that the Boards of Trustees are to serve as the public employers of their respective universities, was repealed by the Legislature or judicially determined to be invalid or unconstitutional, PERC was bound by it. Based upon this statute, the hearing officer concluded that the Boards of Trustees are the public employers of their individual universities for the purpose of chapter 447. While noting that appellant’s constitutional challenge to the Board of Governors’ resolution was preserved, the hearing officer noted that he would not address the challenges because PERC only had the jurisdiction, authority, and responsibility to decide the merits of the amendment to certification process. However, “assuming the constitutionality of the resolution,” and in reading the “explicit language” of article IX, section 7 to mean that the Board of Governors has a broad range of discretion in establishing the powers and duties of the Boards of Trustees, the hearing officer concluded that the Board of Governors was not the public employer because the resolution granted that authority to the Boards of Trustees.

Following the filing of appellant’s exceptions to the recommended order, PERC issued its Order Dismissing Petitions. Therein, PERC found appellant’s exception that section 447.203(2) was not controlling meritless and determined that the statute clearly and unambiguously set forth that the Boards of Trustees were deemed the public employers. PERC further determined that the statute was not qualified in any manner that would suggest that it pertained only to boards created by legislative fiat and not by constitu-tiopal amendment. PERC concluded that, until and unless section 447.203(2) was repealed or invalidated, it was bound to recognize the Boards of Trustees as the public employers, without distinction as to when or how those boards were created. In declining to address the constitutionality of the Board of Governors’ resolution, PERC determined that the resolution was superfluous based upon section 447.203(2) and that any defect in the resolution would have no effect on the Boards of Trustees’ public employer status. This appeal followed.

In denying appellant’s petitions, PERC relied solely upon section 447.203(2) and its provision that the Boards of Trustees are to serve as the public employers of their respective universities. However, as of the effective date of article IX, section 7, which was January 7, 2003, the Board of Governors was the entity that was “fully responsible for the management of the whole university system.” See Art. IX, § 7(d), Fla. Const. As of that day, the Board of Governors was also the entity responsible for establishing the “powers and duties of the boards of trustees.” See Art. IX, § 7(c), Fla. Const. In establishing the powers and duties of the Boards of Trustees, the Board of Governors, in accordance with the powers vested in it by the voters of Florida, designated the Boards of Trustees as the public employers of their respective universities. Because the Board of Governors has addressed this issue, notwithstanding the fact that it reached the same conclusion as the Legislature did, the Legislature’s pronouncement that the Boards of Trustees are to serve as the public employers of their respective universities is no longer enforceable. As such, section 447.203(2) cannot serve as the basis for PERC’s denial of appellant’s petitions.

On appeal, the Board of Governors contends that, regardless of PERC’s reliance on section 447.203(2) in denying appellant’s petitions, it reached the correct result because the Board of Governors’ action of designating the Boards of Trustees as the public employers of their respective universities constituted a legitimate exercise of constitutional authority. We agree and conclude that, pursuant to article IX, section 7(c), the Board of Governors may constitutionally grant the authority to act as the public employers of the state universities to the respective Boards of Trustees. Because the Board of Governors, pursuant to the powers bestowed upon it by the voters of Florida, designated the Boards of Trustees as the public employers of their respective universities, we affirm PERC’s order. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

AFFIRMED.

HAWKES, J., CONCURS; WEBSTER, J., CONCURS IN PART AND DISSENTS IN PART WITH WRITTEN OPINION.

WEBSTER, J.,

concurring in part and dissenting in part.

As the majority correctly notes, the dismissal of appellant’s petitions to amend certifications pursuant to which appellant represented four statewide bargaining units of state university employees was based entirely on PERC’s conclusion that language in section 447.203(2), Florida Statutes (2002), specifying that “the university board of trustees shall be deemed to be the public employer with respect to all public employees of the respective state university [sic]” controlled and that, accordingly, amendment of the certifications was not appropriate because “[t]he amendment procedure is not intended for use when a change in the bargaining unit will not allow substantial continuity in representation”; rather, “[s]uch a change requires that representation be established through a vote of the bargaining unit members.” Although I disagree somewhat with the analysis by which it arrived at its decision, I agree with the majority that PERC’s initial conclusion regarding the portion of section 447.203(2) upon which it relied was erroneous. It seems to me that, upon its effective date (January 7, 2003), the amendment to our constitution which became article IX, section 7, vested in the newly created Board of Governors of the State University System complete authority to “establish the powers and duties of the boards of trustees” called for by section 7(c). At that point, the portion of section 447.203(2) relied upon by PERC (by which the legislature bestowed upon university boards of trustees the power to engage in collective bargaining with employees) became irreconcilable with, and was superceded by, the new constitutional provision.

I agree also with the majority’s resolution of appellant’s argument that the Board of Governors could not, consistent with article IX, section 7, delegate to the various university boards of trustees complete power to engage in collective bargaining. I perceive nothing ambiguous or otherwise unclear in the pertinent language of that section. It provides, in the broadest terms, that “[t]he [Bjoard [of Governors] shall operate, regulate, control, and be fully responsible for the management of the whole university system.” Art. IX, § 7(d), Fla. Const. It then provides that “[t]he [B]oard of [Governors shall establish the powers and duties of the boards of trustees.” Id. § 7(c). There is certainly nothing in the section to suggest that the Board of Governors may not delegate to the boards of trustees such of its powers and duties as it may deem appropriate. In the absence of any ambiguity, we are obliged to give effect to the language of the constitution, as written. See, e.g., Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So.2d 1118, 1119 (Fla.1986) (“Any inquiry into the proper interpretation of a constitutional provision must begin with an examination of that provision’s explicit language. If that language is clear, unambiguous, and addresses the matter in issue, it must be enforced as written”). Accordingly, I agree that the Board of Governors could (as it did) delegate to the various boards of trustees the power to engage in collective bargaining with public employees of their respective universities.

Where I find myself obliged to part company with the majority, however, is with regard to its ultimate decision to affirm PERC’s order. I would, instead, reverse and remand for further proceedings.

Section 447.203(2) defines a “public employer” in general as “the state or any county, municipality, or special district or any subdivision or agency thereof which the commission [i.e., PERC] determines has sufficient legal distinctiveness properly to carry out the functions of a public employer.” It is clear that because PERC concluded that the legislature had designated the university boards of trustees as the “public employers” for purposes of chapter 447, including collective bargaining, it did not find it necessary to determine whether the boards of trustees (as they exist today) satisfy the general definition of a “public employer.” Because we have now concluded that PERC was not entitled to rely upon the legislature’s designation of the boards of trustees as “public employers,” it seems to me that the appropriate action is for us to reverse PERC’s decision, and to remand with directions that PERC determine whether the boards of trustees satisfy the general definition of a “public employer.”

It is apparent from the language defining a “public employer” generally that the legislature intended that whether a public entity satisfies the definition is a factual question to be resolved by PERC. Prior decisions by PERC clearly demonstrate that it has recognized as much. See, e.g., Communication Workers of Am. v. Gainesville Hous. Auth., 14 F.P.E.R. ¶ 19046, at p. 114 (1988) (stating that, in determining whether an entity qualifies as a public employer for purposes of section 447.203(2), PERC considers the “powers” the entity possesses, “includ[ing] the authority to raise revenue by issuing bonds, to- acquire property through exercise of the power of eminent domain, the ability to purchase and sell property, enter into contracts, borrow money, issue subpoenas, and to sue and be sued”); Hillsborough County Police Benevolent Ass’n v. Hillsborough County Bd. of Criminal Justice/Hillsborough County Sheriff's Dep’t, 8 F.P.E.R. ¶ 18051, at p. 94 (1981) (examining the powers of the Hillsborough County Board of Criminal Justice, and concluding they were sufficient to satisfy the requirements of section 447.203(2) for a “public employer”). Our role as an appellate court does not include resolving for the first time factual issues not resolved by the lower tribunal. See generally Hillsborough County Sch. Bd. v. Williams, 565 So.2d 852, 854 (Fla. 1st DCA 1990) (factual issues may not be resolved for the first time on appeal). Rather, our role is limited to reviewing factual determinations actually made by the lower tribunal to determine whether those determinations are supported by competent, substantial evidence. See City of St. Augustine v. Prof'l Fire Fighters, 440 So.2d 416, 417-18 (Fla. 5th DCA 1983) (whether employees qualify as “managerial employees” for purposes of section 447.203(4) is a factual issue to be determined by PERC, and a reviewing court’s role “is limited to a determination of whether there is competent, substantial evidence to support the determination”); City of Winter Park v. Fla. Pub. Employees Relations Comm’n, 349 So.2d 224, 225 (Fla. 4th DCA 1977) (same).

Here, PERC made no factual determination regarding whether the boards of trustees satisfy the general definition of a “public employer” set out in section 447.203(2). It seems to me that such a determination is required because, should PERC find that the boards of trustees do not satisfy the definition then, by default, the only other possible “public employer” regarding “public employees” of state universities would be the Board of Governors. If the Board of Governors is the “public employer,” appellant’s petitions to amend the certifications would appear, at least arguably, to have merit.

In light of the foregoing analysis, I am unable to comprehend the basis for the majority’s decision to affirm PERC’s dismissal of the petitions (as “right for the wrong reasons”) unless it is based upon some unexpressed resolution of the factual issue regarding whether the boards of trustees satisfy the general definition of a “public employer.” Because we may not resolve factual issues for the first time on appeal, I would reverse and remand with directions that PERC make that factual determination. Accordingly, I dissent from the majority’s decision to affirm.

      . This provision replaced former section 229.008, Florida Statutes, which was part of the Education Reorganization Act. See Ch. 01-170, § 3, at 1368, Laws of Fla. (abolishing the Board of Regents as of July 1, 2001).

      . The Legislature had previously created local Boards of Trustees, directing the Governor to appoint a thirteen-member board for each university no later than November 1, 2001. See Ch. 01-170, § 13, at 1391, Laws of Fla.; see also § 229.008(l)(a), Fla. Stat. (2001). After the Board of Regents was abolished, the Florida Board of Education became the public employer for purposes of collective bargaining. See § 229.003(5)(b), Fla. Stat. (2002) (providing that all the powers, duties, and functions of the Board of Regents were transferred to the Florida Board of Education).

      . This section was not amended during the 2003 legislative session.

      . Pursuant to sections 1001.71(1) and (4), Florida Statutes (2002), the Boards of Trustees were to be comprised of twelve members appointed by the Governor and confirmed by the state senate with the members to serve staggered four-year terms. The student body president of each university was to serve ex officio as a voting member of his or her university’s board. § 1001.71(1), Fla. Stat. (2002). Members could be removed by the Governor upon a recommendation of the State Board of Education. § 1001.71(3), Fla. Stat. (2002). Notably, in 2003, the Legislature amended section 1001.71(1) to correspond with article IX, section 7 with respect to the composition of the Boards of Trustees.

      . 'The hearing officer noted that, if the local Boards of Trustees, were deemed the public employers of their respective universities, then appellant’s petitions should be dismissed because the procedure to amend a certification was not designed to reconfigure existing bargaining units or to create new bargaining units but to provide parties to an existing certification the flexibility to change identities.


text:
    MARTIN ELECTRONICS, and its Workers' Compensation Insurance Servicing Agent, United Self Insured Services, Inc., Appellants, v. Curtis JONES, Appellee.
    No. 1D03-0682.
    District Court of Appeal of Florida, First District.
    March 22, 2004.
    Rehearing Denied May 4, 2004.
    Susan Sapoznikoff Foltz, Esquire of The Foltz Law Firm, P.A., Tallahassee, for Appellants.

      Arthur C. Beal, Jr., Esquire of Arthur C. Beal, Jr., P.A., Tallahassee, for Appel-lee.
   PER CURIAM.

Appellants seek reversal of an order of the judge of compensation claims awarding nonprofessional attendant care benefits to claimant’s wife. We affirm the award, except for the failure to credit appellants for the 17 days claimant spent in the hospital. See Constr. Finishing v. Combs, 569 So.2d 919, 921 (Fla. 1st DCA 1990) (reversing the “JCC’s award of attendant care ... for those periods during which claimant was hospitalized” because claimant did not meet his “burden of establishing the quantity, quality and duration of the necessary attendant care”); Aino’s Custom Slip Covers v. DeLucia, 533 So.2d 862, 866 (Fla. 1st DCA 1988) (“[Attendant care benefits are not properly due the spouse for those periods when the claimant is being cared for by an attendant, therapist or nurse provided and paid for by the E/C.”).

Affirmed, as modified.

ALLEN, WEBSTER, and BENTON, JJ., concur.


text:
    Glen E. HARRIS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D03-4198.
    District Court of Appeal of Florida, First District.
    March 22, 2004.
    Rehearing Denied May 6, 2004.
    Glen E. Harris, pro se, petitioner.
    Louis A. Vargas, General Counsel, and Beverly Wood Gibson, Assistant General Counsel, Department of Corrections, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Dowdy v. Singletary, 704 So.2d 1052 (Fla.1998).

ALLEN, WEBSTER and BENTON, JJ., concur.


text:
    Charles QUAINTANCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0279.
    District Court of Appeal of Florida, First District.
    March 23, 2004.
    Rehearing Denied May 5, 2004.
    Charles Quaintance, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

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

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Jesus CABANELA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2672.
    District Court of Appeal of Florida, Third District.
    March 25, 2004.
    Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

Appellant, Jesus Cabanela, appeals the denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, wherein he challenges his convictions and sentences for four counts of lewd assault upon a child under the age of sixteen on the grounds that these sentences violated his protection against double jeopardy, where all of these charges arose out of the same criminal episode. We find merit to his claim and reverse and remand with instructions that three of the convictions and sentences be vacated.

Cabanela was charged by amended information, under section 800.04, Florida Statutes (1995), with four counts of lewd assault upon a child under the age of sixteen on August 1, 1996 as follows: Count I — sexual battery by placing his mouth in union with the vagina of the victim and/or placing his tongue in union with the vagina of the victim; Count II — fondling and/or handling and/or touching and/or rubbing the vagina; Count III — fondling and/or handling and/or touching and/or rubbing the breasts of the victim; Count IV— placing his tongue and/or lips in union with the breast of the victim and/or licking the breast of the victim. At trial, the State’s evidence revealed that Cabanela had been a friend of the young victim’s parents and had been permitted to live in a trailer behind their house. On August 1, 1996, Cabanela visited the victim’s home and found the twelve year old victim alone in her mother’s bedroom watching television. At the time, the victim was sitting on the bed wearing shorts and a t-shirt, with a sports bra or tank top under the t-shirt.

The victim testified that Cabanela sat down on the bed next to her and started feeling on her. She stated that he first started to rub her thigh and then feel her breasts. He then laid her down on the bed, pulled up her shirt and sports bra, and started licking her breasts and kissing her neck. The victim stated that she pulled her shirt down and Cabanela started feeling her vagina over her clothes. He then pulled her shorts to the side and started licking her vagina. The victim testified that she then pushed him off and went into her aunt’s bedroom in the house and locked the door. She agreed, on cross-examination, that all of this touching lasted a few minutes.

The jury convicted Cabanela on all four counts of lewd assault and he was sentenced to the maximum 27 years, 9 months in state prison pursuant to the 1995 sentencing guidelines. On his direct appeal to this court, he raised several issues, none of which involved a double jeopardy challenge to his convictions and sentences. We affirmed his convictions, but remanded for resentencing because the State properly conceded error in that this cause was governed by the 1994 sentencing guidelines, rather than the 1995 sentencing guidelines by which he was sentenced. Cabanela v. State, 785 So.2d 1263 (Fla. 3d DCA 2001).

The trial court resentenced Cabanela to 11.6 years in state prison based upon a scoresheet that reflected one of the four counts of lewd assault as the primary offense and the other three counts of lewd assault as additional offenses. The score-sheet scored a total of 72 points for victim injury-sexual contact, 18 for each of the four convictions.

Cabanela filed a pro se notice of appeal of his resentence, and we appointed the Office of the Public Defender to represent him on this appeal. Cabanela argued that his multiple sentences for four convictions violated double jeopardy where they all arose from one criminal episode. We affirmed his sentence without prejudice to his right to seek post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Cabanela v. State, 837 So.2d 609 (Fla. 3d DCA 2003).

Thereafter, Cabanela moved for Rule 3.850 relief in the trial court, arguing that he committed one ongoing sexual assault against the victim on August 1, 1996. Thus, he argued, the multiple convictions and sentences imposed against him violated double jeopardy and his trial counsel was ineffective for failing to move for judgment of acquittal on this ground so that the error could be preserved for appellate review. The trial court denied this motion as well as his motion for rehearing. This appeal followed.

The double jeopardy provision of the U.S. Constitution protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). See also Scalf v. State, 573 So.2d 202, 203 (Fla. 1st DCA 1991) (same). Cabanela therefore argues that his multiple convictions and sentences for lewd assault upon a child pursuant to section 800.04, Florida Statutes (1995), were violative of double jeopardy where they were committed in a single criminal episode. We agree.

The Fourth District Court of Appeal initially addressed this issue in Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001). There, the court was confronted with the issue of whether the unlawful touching of the young victim’s breasts and the fondling of her vagina in a single episode could sustain two convictions for lewd assault without implicating double jeopardy. Id. at 1094. The court held that only one conviction could be sustained, stating that:

In determining what qualifies as a distinct act for purposes of deciding whether multiple acts can be charged in a single count, the spatial and temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences.

Id. at 1095. Because the record failed to show that the defendant had time to pause, reflect, and form a new criminal intent between each act, the court concluded that to deem the acts separate and distinct would violate the defendant’s right to be free from double jeopardy. Id.

Following the Eaddy decision, the Second District, in Morman v. State, 811 So.2d 714 (Fla. 2d DCA 2002), similarly found a double jeopardy violation for convictions arising out of two separate episodes from which the State charged a total of four offenses. Id. at 715. There, the victim testified that the first occurrence took place when she was lying on a couch and the defendant touched her bottom and her breasts. Id. The .second occurrence took place the next day when the defendant sat her on a counter and rubbed his clothed penis against her vagina as he squeezed her chest. Id. The State charged the defendant with a total of four different counts based upon its assertion that the touching of each separate body part constituted a separate offense. Id.

The Second District began its analysis by noting that our supreme court, in State v. Hightower, 509 So.2d 1078 (Fla.1987), had observed that section 800.04 as then worded contemplated “that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious.” Morman, 811 So.2d at 717 (quoting Hightower, 509 So.2d at 1079). Thus, the Second District reasoned that the statute’s focus was on conduct involving sexual activity and not upon the individual acts that comprise lewd and lascivious activity in the same spatial and temporal zone. Id. Based upon this reasoning, the court concluded that there were only two episodes of inappropriate sexual activity for which the defendant could be punished:

Within each day’s episode there was practically simultaneous touching of two proscribed areas (breast and buttocks areas on Friday, and breast and genital areas on Saturday). Thus, the various lewd and lascivious acts were not sufficiently discrete for them to be deemed separate offenses within each episode. Upon remand, the court must strike two convictions as violating double jeopardy.

Id.; see also Gisi v. State, 848 So.2d 1278, 1282 (Fla. 2d DCA 2003) (finding appellate counsel ineffective for failing to raise issue that two out of the defendant’s three convictions in each of the four sexual episodes were barred by double jeopardy considerations, where each episode constituted a single course of conduct).

The Fifth District, in King v. State, 834 So.2d 311 (Fla. 5th DCA 2003), citing to the Eaddy and Morman decisions, also held that double jeopardy considerations permitted only one, rather than two convictions for lewd and lascivious charges which arose from a single episode. Id. at 312. In King, the young female victim was lying down on her stomach on the living room sofa when the defendant sat on her legs and unsuccessfully attempted several times to insert his penis into her anus. Id. He also grabbed her breasts on the outside of her nightgown and kissed her. Id. The victim testified that the entire episode happened in a short period of time and was abruptly aborted when the victim’s mother entered the room. Id. The defendant was charged with and convicted of, among other things, two counts of lewd and lascivious molestation. Id. One count had charged the defendant with causing his penis to have union with the buttocks of the victim and the other count had charged the defendant with handling or fondling the breasts of the victim. Id. The defendant was sentenced on both counts. Id. The court, following Eaddy and Mor-man, reversed one of the lewd or lascivious molestation counts, finding that both charges arose from a single episode. Id. at 313. The court noted that “[t]he same victim was involved; the attack occurred solely on the sofa; and there was no meaningful temporal break in the episode.” Id. at 313.

Although we have not previously addressed this issue, we agree with our sister courts from the Fourth, Second and Fifth Districts that double jeopardy considerations preclude multiple convictions and sentences for lewd and lascivious behavior which arise out of a single criminal episode where there is no significant spatial and/or temporal break in the episode. In the instant case, it is clear to us that all of the acts for which Cabanela was charged, convicted, and sentenced arose out of a single criminal episode which the victim agreed occurred in a short period of time. There was no significant spatial and/or temporal break between any of the activities for Cabanela to pause, reflect, and form a new criminal intent to commit separate offenses. For this reason, three of his four convictions and sentences must be vacated. We note that his failure to raise his double jeopardy challenge to convictions and sentences at trial or on direct appeal is not fatal to our consideration of this issue because a double jeopardy violation constitutes fundamental error. See Gisi, 848 So.2d at 1281.

Thus, for all of the foregoing reasons, we remand with instructions that three of the appellant’s four convictions and sentences be vacated forthwith.

      . The statute was rewritten, effective October 1, 1999. Ch. 99-201 §§ 6, 17, at 1187-89, 1211, Laws of Fla.

      . This opinion shall take effect immediately notwithstanding the filing or disposition of any motion for rehearing.