author: PALMER, J.

text:
    COLBY MATERIALS, INC., Appellant, v. CALDWELL CONSTRUCTION, INC., Appellee.
    No. 5D02-3657.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.
    Rehearing Denied March 31, 2004.
    Clifford M. Travis, Inverness, for Appellant.
    Chris Polak, Ocala, for Appellee.
   PALMER, J.

Colby Materials, Inc. appeals the final default judgment entered in favor of Caldwell Construction, Inc. Concluding that the trial court properly entered default on the showing that Colby Materials failed to properly respond to Caldwell Construction’s complaint in a timely manner, we affirm.

Caldwell Construction filed suit against Colby Materials seeking reimbursement for an alleged double payment in connection with a construction contract executed by the parties. Colby Materials responded by filing a motion to strike the complaint and a motion to dismiss the action. However, both of the motions were prepared and filed pro se by the owner of Colby Materials, not by a licensed attorney. Caldwell Construction filed a motion to strike the motions as being unauthorized and filed a separate motion for default based on the fact that Colby Materials had failed to properly respond to its complaint. Colby Materials filed a response to the motion to strike. The response was prepared by a licensed attorney, and requested that the trial court deny the motion for default and permit counsel a reasonable time to respond to the complaint. However, Colby Materials filed no affidavits in opposition to the motion for default, establishing a valid excuse for not properly responding to the complaint nor a proposed responsive pleading. The trial court conducted a hearing on the pending motions. Upon review, the trial court entered an order granting the motion to strike and the motion for default and, thereafter, entered a final judgment in favor of Caldwell Construction. This appeal followed.

Colby Materials argues that the trial court erred in entering a default judgment in this case because there is no indication that the pro se motions filed by its owner in response to Caldwell Construction’s complaint prejudiced Caldwell Construction, that the owner of Colby Materials acted with knowledge that it was improper to file pro se motions on behalf of a corporation, or that such filings could not have been cured by the later appearance of counsel. We disagree.

Rule 1.500(b) of the Florida Rules of Civil Procedure authorizes a trial court to enter a default judgment against a party when the party fails to properly defend the action. Here, the record demonstrates that Colby Materials failed to properly respond to the complaint in a timely manner, and therefore, the trial court possessed the authority to enter a default.

In challenging the trial court’s granting of the motion for a default judgment, the burden is on the appellant to show that the trial court erred. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Given that no affidavits were filed of record, Colby Materials could only have met its burden by presenting a transcript of testimony submitted at the motion hearing. However, Colby Materials failed to provide this court with either a transcript of the hearing or an approved statement of the evidence or proceeding pursuant to rule 9.200(b)(4) of the Florida Rules of Appellate Procedure. As a result, Colby Materials has failed to sustain its burden of proving any error. See All American Soup & Salad, Inc. v. Colonial Promenade, 652 So.2d 911 (Fla. 5th DCA 1995)(holding that, by failing to provide complete transcript, appellant failed to meet burden of establishing reversible error to overcome presumption of correctness afforded to trial court’s decision); see also National Enterprises, Inc. v. Foodtech Hialeah, Inc., 777 So.2d 1191 (Fla. 3d DCA 2001)(holding that in the absence of a transcript or stipulated statement reflecting any explanation as to good cause proffered to trial court, the district court of appeal could not conclude that trial court abused its discretion in dismissing the action for lack of prosecution).

AFFIRMED.

THOMPSON and MONACO, JJ., concur.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    Clay MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1580.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2004.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Clay Murphy challenges his conviction and sentence for possession of cocaine with the intent to sell. We have reviewed the record and conclude that the trial court did not abuse its discretion when it denied Murphy’s motion to withdraw his guilty plea filed pursuant to Florida Rule of Criminal Procedure 3.170.

Rule 3.170(i) allows a defendant to challenge the entry of his plea within thirty days after sentencing based on the reasons set forth in Florida Rule of Appellate Procedure 9.140(b)(2)(A). Murphy alleged that he entered his plea involuntarily, which is a ground specified in rule 9.140(b)(2)(A)(ii)(c), because he was fearful of the consequences if he proceeded to trial, he had no experience in the court system, and he did not know that he would lose his employment as a result of entering a plea.

At the hearing on his motion, Murphy stated that he thought that by entering a plea and completing his probation he would be able to keep his job. A trial court is only required to ensure that a defendant is aware of the direct consequences of his plea, those having a definite, immediate, and automatic effect on the defendant’s punishment. State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003); Watrous v. State, 793 So.2d 6, 9 (Fla. 2d DCA 2001). The trial court correctly concluded that the loss of employment was a collateral consequence of Murphy’s plea. A claim that a defendant was not informed of a collateral consequence of entering a plea is insufficient to render a plea involuntary and does not provide a basis to withdraw a plea. Watrous, 793 So.2d at 10.

Accordingly, we affirm the trial court’s denial of Murphy’s motion to withdraw his plea.

WHATLEY and CANADY, JJ., Concur.


author: WARNER, J.

text:
    Donald BATTLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-B758, 4D02-4735.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant seeks to reverse the revocation of his probation on the ground that the trial court erred in denying his motion to suppress cocaine found when an officer stopped him. He contends that the officer did not have a founded suspicion that appellant was loitering and prowling at the time he was stopped. Therefore, the stop and ensuing seizure of drugs was unlawful. We conclude that based upon the facts and circumstances presented to the officer, he had reasonable suspicion to stop appellant. We therefore affirm.

Deputy Woulard was patrolling a residential area in a marked police car at 2:15 in the morning, conducting an area check using his vehicle’s spotlight. The area was dark, with street lights more than 150 feet away. The officer was familiar with the area and considered it a high crime area, as he had made approximately 75 to 100 drug arrests in the area. While driving along, his spotlight illuminated appellant standing in the dark, in the hedges between two rooming houses. The officer recognized appellant from prior contacts. During those contacts, appellant told the officer Ms address, which was different than the address of the rooming houses where he was spotted.

When the spotlight shone on appellant, the officer observed him pull something into his person and conceal it. Appellant then began to walk away. Seeing appellant attempting to conceal something with his body, the officer called out for him to stop, as he suspected appellant was loitering and prowling. When appellant refused to stop, the officer grabbed him. In that process the officer observed appellant drop or throw a “hitter pipe” which contained cocaine and was the subject of the motion to suppress.

Appellant was arrested for possession of cocaine. At the suppression hearing the trial court concluded that based upon the time, location, and the other factors present, the officer was justified in stopping appellant to make further inquiry. The court revoked appellant’s probation and imposed sentence. This appeal follows in which appellant claims the trial court erred in denying the motion to suppress.

As the supreme court recently stated, “[a] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Doorbal v. State, 837 So.2d 940, 952 (Fla.2003) (quoting Terry v. State, 668 So.2d 954, 958 (Fla.1996)). When dealing with constitutional issues on motions to suppress, “whether the application of the law to the historical facts establishes an adequate basis for the trial court’s ruling is subject to de novo review.” Connor v. State, 803 So.2d 598, 608 (Fla.2001) (citation and footnote omitted).

Section 856.021, Florida Statutes (2002), provides:

(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct.

(Emphasis added). In E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999), we explained that the state must prove the following two elements to establish the crime: “(1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; and (2) the loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” (Citing State v. Ecker, 311 So.2d 104, 106 (Fla.1975)). The first element requires “conduct which comes close to, but falls short of, the actual commission or attempted commission of a substantive crime and which must be alarming in nature, pointing toward an imminent breach of the peace or threat to public safety.” Id.

Here, the officer observed appellant in a residential area at 2:15 a.m. Appellant was not on the street or a sidewalk, but was “in the hedges” between two rooming houses and in the dark. The officer recognized appellant and knew that the address appellant gave as his residence during prior encounters was not near the address at which appellant was spotted. We think this conduct alone shows conduct at a place, time, and manner not usual for law-abiding individuals. Lurking in the dark by residences in the wee hours of the morning is unusual for law-abiding persons. In Ecker, the court held the loitering and prowling statute constitutional and applied the statute to the facts of several consolidated cases before it. 311 So.2d at 106. When examining a case with facts very similar to those in this appeal, the court stated: “[t]he defendant’s hiding on private property behind a bush at 1:20 in the morning would cause a reasonable person to be concerned for his safety or the safety of property in the vicinity.” Id. at 110. The same can be said for appellant’s conduct.

When appellant was spotted, he concealed something on his person. Section 856.021(2) specifically provides that endeavors to conceal oneself or any object are circumstances which must be considered when determining whether alarm is warranted. Under such circumstances, alarm is presumed. See C.H.S. v. State, 795 So.2d 1087, 1090 (Fla. 2d DCA 2001) (noting “[a]larm is presumed under [856.021] if the defendant flees, conceals himself or any object, or refuses to identify himself’). In this case, the officer did not know what appellant was concealing or whether it could be a weapon. From the circumstances, appellant also could have been hiding a burglary tool. Although in C.H.S. the court found that the alarm presumed from concealment of an object was dispelled when the officers detained the individuals, id. at 1091, here appellant walked away, thus preventing the officer from dispelling any alarm by inquiry.

Based upon his observations the officer had reasonable suspicion that appellant was loitering and prowling. In Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) the court noted,

[i]n Terry, we held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. While “reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. The officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’ ” of criminal activity.

Id. at 123-24, 120 S.Ct. 673 (citations and footnote omitted).

Here, the officer sought to dispel the alarm caused by finding appellant concealing something, in the early morning hours in the hedges between two residences. The officer had a reasonable suspicion to support an investigatory stop for this purpose. Therefore, the stop of appellant was lawful, and the trial court properly denied the motion to suppress the evidence seized as a result of the stop.

Affirmed.

GROSS and HAZOURI, JJ., concur.


author: PER CURIAM.

text:
    Dominick HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3067.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Rehearing Denied March 24, 2004.

      Dominick Harris, in proper person.
    Charles J. Crist, Jr., Attorney General, and Melissa Vaughan Rubin (FtLauder-dale), for Appellee.
    Before GERSTEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Dominick Harris appeals from the trial court’s order denying his motion for post-conviction DNA testing pursuant to section 925.11, Florida Statutes (2003). We affirm.

Harris was charged with two counts of armed kidnapping, three counts of armed sexual battery, two counts of armed robbery and one count of armed carjacking. He pleaded not guilty and upon trial and conviction received a life sentence.

Harris requested post-conviction DNA testing of the evidence gathered in the case, alleging that rape kit swabs taken from the victims contain semen that is not his and that this evidence would exonerate him. The laboratory report contained in the record shows that several items were tested for DNA, including the rape kit swabs. These tests yielded no DNA from Harris. However, the trial court’s order notes that regardless of the fact that there were negative DNA results, the evidence against Harris is overwhelming. Both victims identified Harris as the man who kidnapped and assaulted them at gunpoint, and then fled with the car. Harris was later apprehended standing near the car with the victim’s earrings in his pocket. The trial court correctly concluded that all of the physical evidence collected in the case had been tested for DNA and that there was no reasonable probability that the results of those tests would have led to Harris’ acquittal at trial.

The remaining points raised by Harris are inappropriate for inclusion in a post-conviction petition for DNA testing, and should have been raised on direct appeal. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (holding that claims not raised on direct appeal are procedurally barred from consideration in a post-conviction relief motion).

Affirmed.

      . Harris includes in his motion for post-conviction DNA testing claims of suggestive lineup procedures, failure to compare latent fingerprints, and failure to interview an [unnamed] alibi witness, among others. See Fla. R.Crim. P. 3.850(f), which prohibits successive motions; Moore v. State, 820 So.2d 199 (Fla.2002) (a second or successive motion for post-conviction relief can be denied on the ground that it is an abuse of process, if there is no reason for failing to raise the issues in the previous motion).


text:
    Osvaldo R. SOMOZA, Appellant, v. SEARS SERVICE CENTER SPECIALTY RISK SERVICES, INC., and ITT Hartford, Appellees.
    No. 1D03-935.
    District Court of Appeal of Florida, First District.
    March 1, 2004.
    Rehearing Denied March 30, 2004.

      Joseph S. Silver and Catherine F. Aga-cinski of Silver & Agacinski, Tampa, Attorneys for Appellant.
    Jennifer J. Card, Scot E. Samis and Christopher L. Petruccelli of Abbey, Adams, Byelick, Kiernan, Mueller & Lancaster, LLP, St. Petersburg, Attorneys for Appellees.
   PER CURIAM.

This is an appeal of a final order of the Judge of Compensation Claims denying Claimant’s request for authorization of an MRI. The JCC also determined that Claimant’s June 24, 1984, workplace accident, as well as his 1989 workplace accident, were included in the 1990 settlement agreement.

This court has previously held that “[w]henever the purpose of a diagnostic test is to determine the cause of a claimant’s symptoms, which symptoms may be related to a compensable accident, the cost of the diagnostic test is compensable, even if it should later be determined that the claimant suffered from both compensable and noncompensable conditions.” Scott v. Bisanti Servs., Inc., 634 So.2d 292, 294 (Fla. 1st DCA 1994); see also Prince v. Prince Ins. Servs., 556 So.2d 1195 (Fla. 1st DCA 1990). Here, Dr. Nyako, Claimant’s only authorized physician, ordered the MRI to determine the causal etiology of Claimant’s symptoms. Therefore, because Dr. Nyako was an authorized physician and the diagnostic tests were to determine the causal relationship to the workplace accidents, the JCC erred in denying authorization for Claimant’s MRI.

Under contract law, a settlement agreement ratified by the JCC is interpreted as a matter of law. Brunswick Corp. v. Cummings, 648 So.2d 787, (Fla. 1st DCA 1994). However, if the settlement terms are subject to more than one construction, a factual issue arises, and the JCC must determine the intended effect of the contract. Id.; see also Barefoot v. Sears Roebuck & Co., 650 So.2d 1036 (Fla. 1st DCA 1995).

Here, the JCC found that the settlement agreement clearly and unambiguously included both accident dates. Paragraph 7 of the agreement clearly states that “all compensable accidents, injuries and occupational diseases are contemplated and settled save for medical expenses by the parties upon execution of this Joint Petition and Stipulation.” The terms of this paragraph support the JCC’s determination that the settlement agreement encompassed both the 1984 and the 1989 accidents. However, this paragraph must be construed in conjunction with the remaining provisions of the agreement. See Barefoot, 650 So.2d at 1039. At the top of the agreement, the date of accident only lists the 1989 accident. Paragraph 3 also refers only to the accident occurring on May 30, 1989, affecting Claimant’s back. The 1984 accident involved injuries to Claimant’s knees and back. Thus, the settlement agreement is susceptible to the interpretation that it only involved the 1989 accident.

Because the agreement is subject to more than one construction, the interpretation of the agreement becomes a question of fact to be determined by the JCC. Unfortunately, while the JCC outlined the testimony it admitted into evidence, the JCC did not make any factual findings regarding the intent of the parties. Therefore, we remand this case to the JCC to determine the intended scope of the settlement agreement.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


author: NORTHCUTT, Judge.

text:
    Jolene TROTTER and John Smith, Appellants, v. FORD MOTOR CREDIT CORPORATION, Appellee.
    No. 2D02-5776.
    District Court of Appeal of Florida, Second District.
    March 3, 2004.
    Keith A. Hope of the Hope Law Firm, P.A., Key Biscayne; J. Daniel Clark of Clark, Charlton and Martino, P.A., Tampa; and Theresa I. Wigginton of Teresa I. Wigginton, P.A., Brandon, for Appellants.

      Lori A. Heim of Hinshaw & Culbertson, Tampa, for Appellee.
   NORTHCUTT, Judge.

Jolene Trotter and John Smith purchased a Ford Explorer from Freedom Ford, Inc., and financed the truck. Freedom later sold the financing contract to Ford Motor Credit Corporation (FMCC). After becoming dissatisfied with their purchase, Trotter and Smith sued both companies, asserting three counts against Freedom and one count against both Freedom and FMCC. This last count, captioned “common law restitution,” is the only one at issue in this appeal. On FMCC’s motion, the circuit court dismissed the action against it, with prejudice and without leave to amend. We agree that the claim against FMCC was properly dismissed, but the circuit court erred in refusing to allow Smith and Trotter to attempt to amend it. We reverse and remand for further proceedings.

We review an order of dismissal for failure to state a cause of action de novo. McKey v. D.R. Goldenson & Co., 763 So.2d 409, 410 (Fla. 2d DCA 2000). Trotter and Smith alleged that the sales contract and the finance contract violated the Florida Motor Vehicle Retail Sales Finance Act, ch. 520, Fla. Stat. (2000), and the public policy of this state. Therefore, they claimed, the contracts were void ab initio and unenforceable. As to FMCC, they sought “restitution of all amounts paid without set-off.” The circuit court dismissed the claim against FMCC because “an action for common law restitution does not exist under Florida Law” and because Smith and Trotter failed to allege any wrongdoing on FMCC’s part that would support a cause of action.

We disagree with the court’s holding that no cause of action for common law restitution exists in Florida. But we agree that Trotter and Smith have failed to plead such a claim. Their cause of action for restitution is based solely on alleged violations of sections 520.07(2), 520.07(7), 520.12, 520.13, and 627.682, Florida Statutes (2000). They offer no theory how violations of these statutes would entitle them to restitution from FMCC, the holder of their finance contract, of all amounts paid, other than that the violations rendered the contract “void under Florida’s public policy.” Nothing in the language of the Motor Vehicle Retail Sales Finance Act, or in Florida case law, would render the entire finance contract void because of the violations of chapter 520 that Trotter and Smith have asserted. The remedies for violations of the Act are stated in sections 520.12 and 520.13. In fact, Trotter and Smith have sought these very remedies against Freedom in count III of their complaint, based on the same violations asserted against both Freedom and FMCC in count IV. While the Act does mention holders of retail installment paper, see § 520.07(6), it does not provide a remedy against a holder unless that holder has committed a willful violation. See § 520.12(2). No such allegation was made concerning FMCC. Trotter and Smith cannot circumvent their inability to state a cause of action against FMCC under the Act merely by claiming any violation renders the contract void.

Another law, section 627.682, requires that insurance companies file certain forms pertaining to credit life and credit disability insurance with the Florida Department of Insurance. Even if a violation of that statute might render an insurance contract void against public policy, Trotter and Smith would only be entitled to restitution of the premiums paid on that insurance. See London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1250 (11th Cir.2003). They have not alleged a basis for restitution of the entire amount they have paid FMCC in connection with the finance contract.

Trotter and Smith admit that their pleadings do not allege FMCC engaged in any wrongdoing. But they contend that they could amend their complaint to state claims against FMCC as a holder of the finance contract based on a Federal Trade Commission regulation known as the “Holder Rule,” 16 C.F.R. § 433.2, or chapter 627, Florida Statutes (2000), without having to assert wrongdoing on the holder’s part. A court should not dismiss a complaint without leave to amend unless the privilege of amendment has been abused or it is clear that the complaint cannot be amended to state a cause of action. Durkin v. Davis, 814 So.2d 1246, 1249 (Fla. 2d DCA 2002). The dismissed count of the complaint was the plaintiffs’ first attempt to state a claim against FMCC. And while FMCC vigorously argues that no viable causes of action can be stated against it under the Holder Rule or chapter 627, we cannot decide that question in this appeal. Trotter and Smith have not been given the chance to plead those theories. Accordingly, we hold the circuit court erred in dismissing the claim against FMCC without allowing the plaintiffs leave to attempt to amend it.

We reverse and remand with directions that the circuit court permit Trotter and Smith an opportunity to amend their complaint against FMCC.

SILBERMAN and VILLANTI, JJ., Concur.

      . We have jurisdiction to review this order because it dismisses the entire case against FMCC. Fla. R.App. P. 9.110(k).


author: THOMPSON, J.

text:
    ACCORD HUMAN RESOURCES OF FLORIDA, III, INC., Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 5D02-3511.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.

      James H. Fallace and Jesse L. Kabaser-vice of Fallace & Larkin, L.C., Melbourne, for Appellant.
    Christopher L. Nuland of Law Offices of Christopher L. Nuland, Jacksonville, for Appellee, Adam D. Koenigsberg, M.D.
    No Appearance for Appellee, Unemployment Appeals Commission.
   THOMPSON, J.

Accord Human Resources of Florida, Inc, and Florida Eye Associates (collectively, the “employers”), the employers of Dr. Adam Koenigsberg, appeal a final order rendered by the Unemployment Appeals Commission (“UAC”) reversing an appeals referee’s decision that Koenigs-berg’s termination was based on misconduct in connection with his employment. We affirm.

The employers argue that in overturning the referee’s decision, the UAC reweighed the facts. We disagree. The referee determined:

The claimant was counseled on December 10, 2001, and instructed to produce a written plan that would outline how the claimant would resolve the problems occurring with co-workers. The claimant produced a letter to the employer on 19 December 2001, that outlined several areas that he felt were problems in the office and why he felt they were problems. The claimant was informed on December 24, 2001, that the letter was not sufficient and that he had until December 27, 2001, to produce the written plan that had been ordered on December 10, 2001. On December 27, 2001, the claimant informed the employer that he was not going to address the issues, in writing or verbal, without the advise [sic] of his attorney. The claimant did not produce a plan. The claimant was discharged on December 31, 2001, due to his failure to produce the written plan of action.
The employer contends that there were a multitude of reasons for the dismissal. However, the employer’s testimony clearly showed that had the claimant produced a plan of action, he would have continued his employment. The other problems on the job may have contributed to the decision to discharge. Hoioever, the referee has accepted the evidence that the claimant was discharged due to his failure to produce a written plan of action, as instructed by his employer, as reason for dismissal.

(emphasis supplied).

Based on the referee’s specific findings of fact, that Koenigsberg was discharged from employment for failure to submit to a written corrective plan, the UAC concluded that the referee’s decision was not in accordance with the law:

The claimant was discharged after he advised the employer that he would not resubmit a written plan of action without the advice of his attorney. The referee held that the employer was within its right to require the claimant to submit such a plan and concluded that the claimant was insubordinate when he refused to produce the document. The record reflects; however, that the claimant had provided a document in response to the employer’s first directive that his attempt was not acceptable, the claimant asked for a few days’ extension of the deadline to file his response because his attorney was out of town on vacation. It was not unreasonable for claimant to seek his attorney’s advice; therefore, his failure to resubmit the corrective action document was not an intentional disregard of his duties and obligations to the employer amounting to misconduct within the meaning of the law.

As the above-quoted makes clear, the. UAC accepted the referee’s findings of fact, but disagreed regarding their legal effect. It was within the UAC’s authority to reach a different conclusion of law. Szniatkiemcz v. Unemployment Appeals Commission, 864 So.2d 498 (Fla. 4th DCA 2004). The UAC concluded that the failure to submit a written plan was not misconduct and that it was reasonable for Koenigsberg to refrain from submitting a plan until after he sought the advice of his attorney. The standard of review of a UAC’s interpretation of law is whether the interpretation is clearly erroneous, Romanenko v. Unemployment Appeals Commission, 763 So.2d 1288 (Fla. 5th DCA 2000), and in this instance, we find no error.

In the alternative, the employers argue that Koenigsberg’s conduct during the course of his employment was misconduct sufficient to warrant a denial of benefits. Essentially, this argument is a request that the referee’s fact findings be rejected. While an agency may reject a hearing officer’s conclusions of law, neither an administrative agency nor a reviewing court may reject an administrative hearing officer’s findings of fact as long as those findings are supported by competent, substantial evidence. Lucido v. Unemployment Appeals Commission, 862 So.2d 913 (Fla. 4th DCA 2003). In Jackson v. Unemployment Appeals Commission, 730 So.2d 719 (Fla. 5th DCA 1999), this court stated that a reviewing court is to determine:

Wfliether the referee’s findings of fact were based on competent, substantial evidence in the record and whether the proceedings on which the findings were based complied with the essential requirements of the law. In reviewing whether the record contains competent, substantial evidence to support the appeals referee’s findings, the reviewing court may not make determinations as to credibility or substitute its judgment for that of the referee. Thus, the appeals referee’s decision must be upheld where there is competent substantial evidence to support it. The basis for this is that the hearing officer or appeals referee in an administrative proceeding is the trier of fact, and he or she is privileged to weigh and reject conflicting evidence.

Id. at 721 (emphasis supplied).

In the instant case, despite testimony that Koenigsberg was discharged not only for his failure to submit a corrective plan, but for numerous additional reasons, there was competent, substantial evidence supporting the referee’s finding that Koe-nigsberg was discharged because he failed to submit a corrective plan. Although the evidence may have supported findings contrary to those made by the referee, the UAC and this court are bound by the referee’s findings of fact and cannot reweigh evidence or substitute our own findings. Id.; Brown v. Unemployment Appeals Commission, 820 So.2d 457 (Fla. 5th DCA 2002).

Finally, the employers contend that they were denied due process because neither the attorney for one of the employers (Accord) nor the other employer (FEA) received notice of Koenigsberg’s request for review by the UAC. We find this argument to be without merit because the UAC sent notice to Accord. Additionally, while section 443.151(4)(b)(l)-(3), Florida Statutes, requires appeals referees to provide notices of hearings, there is no similar requirement for the UAC. See § 443.151(4)(c), Fla. Stat.

AFFIRMED.

MONACO, J., concurs.

GRIFFIN, J., concurs specially in result only.


text:
    Weston OPAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-967.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.
    Rehearing Denied March 30, 2004.

      Russell E. Crawford, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan and Patrick W. Kreehowski, Assistant Attorney Generals, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Weston Opas appeals an order denying his motion to withdraw his plea. Opas contends that he entered the plea solely because the trial court threatened to sentence him to prison if he did not forego his motion to suppress and enter the plea.

Opas was charged by information with eight counts of unlawful possession of material depicting sexual performance by a child in violation of section 827.071(5), Florida Statutes (2001). Opas subsequently filed a motion to suppress the illegal material pursuant to Florida Rule of Criminal Procedure 3.190(h) and (i).

During a hearing on his motion to suppress, Opas entered a plea of guilty to one count of unlawful possession of child pornography in violation of section 827.071(5), Florida Statutes (2001). The trial court accepted the plea agreement and entered a judgment ordering that adjudication of guilt be withheld as to only one of the counts while the remaining seven counts were nolle prossed by the State. Although Opas could have been sentenced to up to five years imprisonment for one count, the court followed the State’s recommendation and only sentenced him to sixty months sex offender probation.

Less than a month later, Opas filed a Florida Rule of Criminal Procedure 3.170(1) motion to withdraw his plea alleging that his plea was involuntary and not entered by his own free will. Opas alleged that the trial judge threatened that he would receive a prison sentence if he exercised his right to a healing on his motion to suppress and did not immediately enter a plea. A hearing was held on the matter during which only the defense presented evidence. The attorney who represented Opas when the plea was entered testified that the presiding judge, at a sidebar conference, indicated that the State had made one “honey sweet of an offer” and that the offer would not be available if the judge had to sit through a hearing on a motion to suppress. Further, the presiding judge allegedly indicated to Opas’ attorney that if the motion was unfavorable to Opas, any sentence would include prison. Opas testified that he entered the plea only because he did not want to go to prison. Finding that the presiding judge was merely informing Opas’ attorney of what his client faced should his client reject the State’s offer, the trial court denied the motion to withdraw the plea and this appeal ensued.

Allowing the withdrawal of a guilty plea is within a trial court’s discretion; it is not a matter of right. Kg., Lopez v. State, 536 So.2d 226 (Fla.1988). The burden of proving a trial court abused its discretion in refusing to allow withdrawal of a guilty plea is on the defendant. Kg., Gore v. State, 552 So.2d 1185 (Fla. 5th DCA 1989). In the instant case, Opas contends that the trial court abused its discretion in denying his motion to withdraw his plea because he presented unre-butted evidence that his plea was entered as a result of the “threats” of the trial court.

A plea of guilty to a criminal charge must be completely voluntary and should be accepted only in the absence of threats or coercion. The comments by the trial judge when he accepted Opas’ plea cast suspicion upon the voluntariness of the plea. Cf. State v. Warner, 762 So.2d 507 (Fla.2000) (holding that to avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as exercise of a defendant’s right to trial).

Accordingly, we vacate the order denying Opas’ motion to withdraw his plea and remand to the trial court with instructions to allow the withdrawal. We further instruct the court to set aside the judgment ordering that adjudication of guilt be withheld along with the sentence of sex offender probation. The State will then be free to proceed with the prosecution of Opas for the eight original counts of unlawful possession of child pornography.

REVERSED AND REMANDED.

PETERSON, PLEUS and ORFINGER, JJ., concur.


text:
    FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Appellant, v. ASSOCIATED INDUSTRIES INSURANCE COMPANY, INC., Appellee. and Associated Industries Insurance Company, Inc., Cross-Appellant, v. Florida Department of Financial Services, Cross-Appellee.
    Nos. 1D03-0538, 1D03-0542.
    District Court of Appeal of Florida, First District.
    March 5, 2004.

      Charlie Crist, Attorney General; Christopher M. Kise, Solicitor General and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, for Appellant.
    Elliot B. Kula, Esq. of Greenberg Trau-rig, P.A., Miami; Barry Richard, Esq. of Greenberg Traurig, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Appellant/Cross-Appellee, the Florida Department of Financial Services (“DFS”), appeals the trial court’s Corrected Final Judgment determining that appellee/cross-appellant, Associated Industries Insurance Company (“AIIC”), was entitled to recover $3,253,657 from the Florida Department of Labor and Employment Security (“DLES”) because DLES was not authorized to collect assessments on ceded reinsurance premiums for Florida’s Special Disability Trust Fund and Workers’ Compensation Administration Trust Fund for the first half of the year 2000. The agency had sought $5,551,281 in underpaid assessments from AIIC, which AIIC paid under protest. DFS contends that the trial court erred in failing to strike the supplemental affidavit of Mary Ann Stiles filed on April 5, 2002, by AIIC in support of its motion for summary judgment because of the affidavit’s improper content and its untimeliness. We agree and, therefore, reverse the Corrected Final Judgment and remand for further proceedings.

As to the content of the supplemental affidavit, pursuant to Florida Rule of Civil Procedure 1.510(e), supporting and opposing affidavits for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by ... further affidavits.” An affidavit in support of summary judgment may not be based on factual conclusions or conclusions of law. Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. Jua, Inc., 793 So.2d 978, 979 (Fla. 2d DCA 2001). “The purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment ... and to ensure that there is an admissible eviden-tiary basis for the case rather than mere supposition or belief.” Pawlik v. Barnett Bank of Columbia County, 528 So.2d 965, 966 (Fla. 1st DCA 1988).

Stiles’ supplemental affidavit contains statements that are not based upon her personal knowledge. Rather, Stiles’ statements are based upon her “understanding” of the underlying issues and her “opinion” of such issues. Moreover, Stiles’ supplemental affidavit contains inadmissible hearsay evidence.

With respect to the timeliness of the supplemental affidavit, while a trial court may permit affidavits to be supplemented by additional affidavits, we have previously held that, under rule 1.510(e), a movant may file supplemental affidavits less than twenty days prior to the summary judgment hearing only upon written stipulation and agreement by the adverse party affected or upon leave of court granted by written order after written application, notice to the adverse party, and the opportunity for a hearing. See Marlar v. Quincy State Bank, 463 So.2d 1233, 1234 (Fla. 1st DCA 1985). This construction of rule 1.510(e) properly advances the policy that a party opposing a summary judgment motion must be given adequate time to respond. See Gulliver v. Tex. Commerce Bank, 787 So.2d 256, 259 (Fla. 5th DCA 2001).

Here, there was no written stipulation or leave of court to file the supplemental affidavit. Furthermore, AIIC provided the affidavit to DLES only three days prior to the summary judgment hearing. As a result, DLES was not provided sufficient time to respond to the affidavit.

Accordingly, the trial court erred in not striking Stiles’ supplemental affidavit. Because it appears that the trial court relied upon this affidavit in granting AIIC’s motion for summary judgment, we reverse the Corrected Final Judgment and remand for further proceedings consistent with this opinion. We note that our disposition as to this issue has rendered our consideration of the remaining issues on appeal and the issues on cross-appeal unnecessary.

REVERSED and REMANDED for further proceedings.

WEBSTER, LEWIS and HAWKES, JJ, CONCUR.

      . The proceedings below occurred when DLES administered the workers’ compensation laws. The Division of Workers’ Compensation was subsequently transferred to DFS, the appellant in this appeal.


text:
    Janet CREEL and Wayne Creel, Appellants, v. Flora J. DANISI, M.D., Appellee.
    No. 1D03-2164.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Frank E. Sheffield, Tallahassee, for Appellants.
    Harold R. Mardenborough, Jr. of McFarlain & Cassedy, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Appellants, Janet and Wayne Creel, challenge a final summary judgment finding that the statute of limitations expired prior to the filing of their complaint alleging medical malpractice against appellee, Dr. Flora J. Danisi. The parties agree the statute of limitations began to run on May 22, 2000, when Dr. Danisi performed cosmetic surgery on Janet Creel, and the Creels filed their complaint on October 14, 2002. The Creels, through their present counsel, argue that the trial court erred in concluding that a letter sent by their former attorney to Dr. Danisi in September 2001 constituted a notice of intent under the applicable statutes in chapter 766, Florida Statutes (1999).

We review this issue de novo and find that the trial court properly concluded that the September 2001 letter constituted a notice of intent. The letter stated, in its first paragraph:

This letter is to inform you that I have the privilege of representing Janet Creel for injuries she sustained as a result of your negligence on May 22, 2000. I am notifying you in accordance with Florida Statute Section 766.203 that she intends to pursue a medical malpractice action against you arising out of the injuries sustained on May 22, 2000.

This language clearly and plainly indicates that the purpose of the letter is to inform Dr. Danisi that Janet Creel intends to sue for medical malpractice. Although, as argued by the Creels, the letter contains other information at the end regarding a proposal for settlement, that information does not change the character of the letter.

The letter’s status as a notice of intent affects the applicable statute of limitations. Section 766.106(4), Florida Statutes (1999), provides:

The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.

The Florida Supreme Court has indicated that “the two-year statute of limitations under section 95.11(4)(b) is suspended (‘tolled’) for ninety days under section 766.106(4) and any extended time agreed to by the parties” under this section and “the ninety-day tolling provision of section 766.106(4) applies to all cases regardless of when the notice of intent is filed.” Hankey v. Yarian, 755 So.2d 93, 97-99 (Fla.2000). “The time of suspension provided under the tolling provision of section 766.106(4) is merely a ‘time out’ that the prospective claimant was allotted by the Legislature that is not to be counted against the two-year limitations period.” Id. at 100. Accordingly, once a claimant timely files a notice of intent, he or she automatically has an additional ninety days after the expiration of the statute of limitations to file suit. Contrary to the implication of the Creels’ argument, the statute may not be tolled a second time by a subsequent notice of intent. Cf. Melanson v. Agravat, 675 So.2d 1032 (Fla. 1st DCA 1996).

In this case, in the absence of any notice of intent, the statute of limitations would have expired on May 22, 2002. Because the September 2001 letter constituted a notice of intent, the statute of limitations expired on August 20, 2002. As the Creels did not file their complaint until October 14, 2002, the trial court properly determined that the statute of limitations had expired at that point. As the trial court further determined, no genuine issue exists as to a material fact in this case and Dr. Danisi was entitled to judgment as a matter of law. Accordingly, the trial court properly granted summary judgment.

AFFIRMED.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Peggy ANDERSON, Appellant, v. GADSDEN COUNTY SCHOOL BOARD and Florida League of Cities, Appellees.
    No. 1D03-2560.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Joe G. Durrett of Solomon, Syfrett & Durrett, Tallahassee, for Appellant.
    Lori M. Little of Edward T. LeFever, P.A., Ocala, for Appellees.
   PER CURIAM.

In this workers’ compensation case, claimant seeks review of an order denying her claim made pursuant to section 440.20(6), Florida Statutes (2002), seeking additional penalties on late payments of permanent total disability benefits. The employer and carrier paid a 20-percent penalty on the first late payment and a $5.00 penalty on each subsequent late payment. The judge of compensation claims denied the claim on the ground that all appropriate penalties had been paid. After the judge of compensation claims had entered his order we held, in a case of first impression, that, in circumstances like those presented here, section 440.20(6) required that a 20-percent penalty be paid on all late payments of non-award disability benefits. Greenberg v. Cardiology Surgical Ass’n, 855 So.2d 234 (Fla. 1st DCA 2003). Therefore, we reverse, and remand with directions that the judge of compensation claims compute the penalties to which claimant is entitled according to our decision in Greenberg.

REVERSED and REMANDED, with directions.

WEBSTER, BENTON and PADOVANO, JJ., concur.


text:
    Donald HAWTHORNE, Appellant, v. BAY COUNTY SCHOOL BOARD/YORK STB, INC., Appellees.
    No. 1D03-0458.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Arthur C. Beal, Jr., Esq. of Arthur C. Beal, Jr., P.A., Tallahassee, for Appellant.
    Alan R. Horky, Esq. of Fuller, Johnson & Farrell, P.A., Pensacola, for Appellees.
   PER CURIAM.

AFFIRMED. See Harrell v. Fla. Constr. Specialists, 834 So.2d 352 (Fla. 1st DCA 2003); Wilkins v. Broward County Sch. Bd., 754 So.2d 50 (Fla. 1st DCA 2000).

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


text:
    Robert F. CANTLEY, Jr., Appellant, v. CITY OF PORT ST. JOE and Florida League of Cities, Inc., Appellees.
    No. 1D03-0078.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Paul M. Anderson, Esquire and Terry P. Roberts, Esquire of Anderson, Culliton & Sullivan, P.A., Tallahassee, for Appellant.
    Douglas F. Miller, Esquire of Clark, Partington, Hart, Larry, Bond & Stack-house, Pensacola, for Appellees.
   PER CURIAM.

At the hearing on Robert F. Cantley, Jr.’s petition for benefits alleging psychiatric permanent and total disability caused by accidents occurring on October 15, 1991, and November 29, 1996, the judge of compensation claims excluded the depositions given by Dr. Zumarraga. This was error. Mr. Cantley is entitled to a determination on the merits of his claim for permanent and total disability benefits, a claim which has never previously been adjudicated. The judge of compensation claims should consider all evidence relevant to the claim, including Dr. Zumarra-ga’s depositions.

REVERSED and REMANDED.

KAHN, BENTON, and VAN NORTWICK, JJ., concur.


text:
    Shana Yvette BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2781.
    District Court of Appeal of Florida, First District.
    March 11, 2004.

      Nancy A. Daniels, Public Defender; Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Shana Yvette Barnes, appeals her judgment and sentence for the crime of second-degree murder. Appellant raises five issues on appeal, only one of which has merit. We reverse appellant’s second-degree murder conviction and remand for a new trial because the jury instructions on the issue of self-defense were confusing, misleading, and erroneous.

At the charge conference, the trial court granted appellant’s request for a jury instruction on self-defense and, thus, instructed the jury on self-defense. However, over appellant’s objection, the trial court also gave the State’s requested instruction on the forcible felony exception to self-defense. The forcible felony instruction was based on section 776.041(1), Florida Statutes (2002), which by its plain language indicates that it is only applicable under circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time. Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002) (citing Perkins v. State, 576 So.2d 1310 (Fla.1991)). The forcible felony instruction is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony. Giles, 831 So.2d at 1265 (citing Marshall v. State, 604 So.2d 799 (Fla.1992)). The trial court’s instruction on the forcible felony exception to self-defense was erroneous because appellant was only charged with one forcible felony, the alleged second-degree murder, an act she claimed was done in self-defense. See Giles, 831 So.2d at 1265. The effect of instructing the jury on the forcible felony exception to appellant’s self-defense instruction was to negate appellant’s only defense. See Giles, 831 So.2d at 1265 (“The instruction given improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification.”); Rich v. State, 858 So.2d 1210, 1210 (Fla. 4th DCA 2003) (citing Giles).

Although the State concedes on appeal that the instruction was erroneously given, the State argues that it was harmless error. However, we cannot conclude that the error was harmless as there is a reasonable possibility that the error contributed to the conviction. See Williams v. State, 863 So.2d 1189 (Fla.2003) (citing Goodwin v. State, 751 So.2d 537 (Fla.1999); State v. DiGuilio, 491 So.2d 1129 (Fla.1986)).

REVERSED and REMANDED for a new trial.

WEBSTER, LEWIS and HAWKES, JJ., concur.


author: DAVIS, Judge.

text:
    Dennis D. ROWLAND, Appellant/Cross-Appellee, v. Debrah Rae ROWLAND, Appellee/Cross-Appellant.
    Nos. 2D02-2391, 2D02-5823.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.

      Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant/Cross-Ap-pellee.
    Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellee/Cross-Appel-lant.
   DAVIS, Judge.

In this appeal from a final judgment of dissolution of marriage, both the Husband, Dennis D. Rowland, and the Wife, Debrah Rae Rowland, challenge numerous aspects of the second amended final judgment of dissolution. We affirm in part, reverse in part, and remand.

When the Wife filed her petition for dissolution, the parties were both forty-five years old, had been married twenty-four years, and had four children, three of whom were still minors.

The source of the parties’ income was Big D Enterprises, a sole proprietorship that the^ parties established when they were first married and built throughout their lengthy marriage. Big D was a food and game concession business that traveled to state fairs and other large events across the United States. It eventually became associated with Deggeller Attractions, a larger food and entertainment business, which allowed Big D to also follow the “Deggeller Route,” a profitable string of amusement venues across several states. Annual gross receipts for Big D were $660,632 in 1996, $732,065 in 1997, and $686,082 in 1998. By the time of the parties’ dissolution, Big D owned a number of vehicles and pieces of equipment with a total value exceeding $200,000.

Servicing events along the Deggeller Route typically caused the Husband to be away from home between forty-two and forty-five weeks a year. While he was away from home, the Husband’s living expenses, including his accommodations, vehicles, and meals, were provided by Big D. Because the parties’ business took them away from home for such long periods of time, their children were enrolled at various times in private schools and in schools operated by Deggeller.

When the parties separated in the summer of 1998, the Wife took the children to Pennsylvania. She filed her petition for dissolution on October 12, 1998. The Husband filed a counter-petition and an answer. The parties agreed to go to mediation, resulting in a mediation order directing the Husband to pay $2000 per month in temporary child support, $599 per month for the Wife’s car payment, $200 per month for automobile insurance, $500 per month for medical insurance for the Wife and children, and $121 per month for orthodontic care for the parties’ son. The mediation order also directed the Husband to continue to maintain the life insurance policy he owned, which named the Wife as the beneficiary.

On December 14, 2001, the trial court entered a final judgment of dissolution, as to which both parties moved for rehearing. After amending the final judgment of dissolution, the trial court entered a second amended final judgment of dissolution on April 4, 2002. Finally, on November 20, 2002, the court entered an order directing the Husband to pay one-half of the Wife’s attorney’s fees and costs. The appeals of the second amended final judgment and the order on attorney’s fees are consolidated for this review.

The Husband initially argues on appeal that the trial court lacked jurisdiction because the Wife failed to establish Florida residency. “Residency under section 61.021[, Florida Statutes (1998),] means ‘an actual presence in Florida coupled with an intention at that time to make Florida the residence.’ ” Copas v. Copas, 687 So.2d 885, 887 (Fla. 2d DCA 1997) (quoting Jenkins v. Jenkins, 556 So.2d 441, 442 (Fla. 4th DCA 1990)).

The Husband contends that the Wife’s move to Pennsylvania in the summer of 1998 refuted her claim that she had been a resident of Florida for the six months immediately preceding her October 1998 filing of the petition. We do not agree. The Wife testified that although she did take the children to Pennsylvania in the summer of 1998, she did not move her household furnishings until October when she filed her petition for dissolution, indicating that she intended her summer’s absence from Florida to be temporary. She also testified that she always intended to continue her residence in Florida once the dissolution was completed. Additionally, the Wife’s counsel produced the Wife’s Florida driver’s license as proof of her residency.

Section 61.052(2) allows corroboration of residency through production of a Florida voter’s registration card, a Florida driver’s license, or third-party testimony. Furthermore, a continuous presence during the entire six-month period before filing the petition is not required. Hunter v. Hunter, 736 So.2d 801 (Fla. 1st DCA 1999). We conclude that the Wife’s testimony and the production of the Wife’s Florida driver’s license provided competent, substantial evidence supporting the trial court’s findings as to the Wife’s residency and the court’s jurisdiction, and we affirm. See Copas, 687 So.2d 885.

The Husband next contends that the trial court miscalculated his income available for support. In its written order, the trial court first found that the Husband’s reported income for the year 2000, before taxes, was $90,000. The court then stated: “After adjustments are made for in-kind payments there is competent substantial evidence to establish that the Husband’s income available for support is $8594 monthly or $103,131 annually.”

However, the court did not specify the basis for this adjustment. Because the $90,000 figure was stated as a gross figure, and the $103,131 figure was described as income that was available for support, implying a net figure, it appears that the court not only added imputed in-kind payments but also calculated the tax consequences of the new gross figure. That, however, is merely a matter of speculation since actual dollar amounts are not specified. Although the record reveals that the Wife and her expert discussed what they believed the in-kind amounts would be, there is no objective record proof of those amounts or of what the tax consequences were for any given income level.

In fact, the only record evidence of the $8594 monthly income figure is the testimony of Elizabeth Townes, the Wife’s expert. While Townes did testify that the Husband had an income of $8594 per month, she later qualified that by stating that $8594 per month was the “starting point” for determining what was available for child support and alimony and that $8594 represented the Husband’s gross income, not his net income. It was also clear from her testimony that $8594 per month was a figure that Townes derived only after she added the unspecified, unsupported in-kind payment amounts to the Husband’s reported $90,000 taxable income. She explained that she had not been asked to calculate the Husband’s net income. Given these apparent inconsistencies, we conclude that the trial court improperly determined the Husband’s income available for support and alimony. Accordingly, we reverse the alimony and the child support awards and remand for recalculation.

The Husband further argues that the child support award also improperly includes $270 per month for his daughter Danielle’s special needs education. We agree. The record reveals that the $270 monthly payment was intended to pay for the special needs education that Danielle had been receiving at Sylvan Learning Center. However, Danielle had not been attending Sylvan in the months prior to trial. Additionally, the Wife was awaiting further evaluations to determine exactly what special needs education Danielle would require in the future, and it was not clear that Sylvan, and its $270 monthly charge, would be the ultimate choice. Because this determination had not yet been made, the record does not support this award. Accordingly, we reverse as to this issue.

The Husband also claims, and the Wife concedes, that the language used in the second amended final judgment of dissolution does not properly track the language of section 743.07(2), Florida Statutes (2000), which provides that child support may be extended only for those students who are dependent in fact between age eighteen and nineteen, who are still in high school, and who are performing in good faith with a reasonable expectation of graduating before age nineteen. We agree and reverse. On remand the trial court shall amend this provision to properly track the statute.

The Husband is also correct that the trial court miscalculated his child support arrearages. The Wife does not dispute the fact that she included in her arrearage worksheet certain items that the Husband had not been ordered to pay by the temporary support order. Accordingly, we reverse the trial court’s determination of child support arrearages and remand for deletion of those items not specifically ordered to be paid in the temporary support order.

Although the Husband also contends that the trial court erred in awarding the Wife rehabilitative alimony to .pursue a degree in business, we do not agree. The Wife’s testimony certainly supports her need for the award, especially in view of the fact that the trial court awarded Big D Enterprises and all of its equipment, which was the parties’ sole source of income, to the Husband. However; on remand, following a recalculation of the Husband’s income available for support, the trial court may increase, decrease, or eliminate the award of rehabilitative alimony. See Sokol v. Sokol, 441 So.2d 682 (Fla. 2d DCA 1983).

Finally, the Husband contends that the trial court erred in requiring him to maintain a $300,000 life insurance policy to secure the support awards. We conclude that, given the Husband’s history of child support arrearages, the trial court did not err in ordering the Husband to maintain a term life insurance policy as security for the alimony and child support awards. However, the court did not explain how the life insurance would be distributed in the event of the Husband’s death. Thus, on remand, the trial court is directed to determine the amount of life insurance necessary to protect the Wife’s and the children’s interests and to provide the terms of distribution. See Merkin v. Merkin, 804 So.2d 595 (Fla. 2d DCA 2002).

On cross-appeal, the Wife argues that the amount of the court’s award of permanent alimony was in error. Because we are reversing and remanding for recalculation of the Husband’s income available for alimony and child support, this award must necessarily be reconsidered.

Finally, the Wife is correct that the trial court erred in denying her request on rehearing to direct the equalizer payment on the business to be paid as a lump sum. In Harper v. Harper, 586 So.2d 1147, 1148 (Fla. 2d DCA 1991), this court held:

We think the wife should be entitled to the benefit of the award at this time, or to the extent that her entitlement is deferred, the amount of her entitlement should bear interest at the statutory rate.... Further, the amount due the wife .shall constitute a lien on the husband’s interest in the building.

Accordingly, on remand, the trial court is directed to amend the provision ordering the Husband to pay the Wife an equalizer payment so as to require such payment to follow the dictates of Harper.

Because we have found error in the trial court’s calculation of the Husband’s income, we also direct the trial court on remand to reconsider the order requiring the Husband to pay one-half of the Wife’s attorney’s fees and costs.

In sum, we reverse and remand for recalculation of the permanent alimony award, the child support award, the award for Danielle’s special education needs, the child support arrearages, and the attorney’s fee award. We direct that the child support provision properly reflect the directives contained in section 743.07(2). We also direct the trial court to enter findings in support of its life insurance provision and to follow the dictates of Harper, 586 So.2d 1147, in fashioning a provision regarding the equalizer payment. In all other respects, we affirm.

Affirmed in part; reversed in part; and remanded.

SALCINES and VILLANTI, JJ„ concur.


author: VILLANTI, Judge.

text:
    Smith DESSIN a/k/a Dessin Smith, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-186.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.

      James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Smith Dessin appeals from the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, contending that he was entitled to an evidentiary hearing-on two of his claims for relief. We affirm as to one claim and reverse as to the other.

Dessin first contends that he was entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing to object at trial to the admission of evidence that was the subject of a pretrial motion to suppress. There is no question that “[a] pretrial motion to suppress is not preserved for appellate review unless the defendant makes a specific, contemporaneous objection at the time the evidence is admitted.” Pendarvis v. State, 752 So.2d 75, 76 (Fla. 2d DCA 2000); see also D.T.N. v. State, 826 So.2d 365, 366 (Fla. 2d DCA 2002). Therefore, if trial counsel did not object at trial to the admission of the evidence that was the subject of the motion to suppress, that issue was not properly preserved for review, and counsel’s performance was deficient.

The record in this case, however, shows that trial counsel did adequately preserve the motion to suppress for review. Dessin’s pretrial motion sought to suppress a diaper bag and cocaine seized from him when he was stopped by police. It is clear from the record that if the diaper bag was illegally seized, the cocaine would have to be suppressed because it was wholly contained within the diaper bag. It is equally clear that if the diaper bag was properly seized, there was no independent basis for suppressing the cocaine. Thus, the admissibility of the cocaine depended entirely on the admissibility of the diaper bag. At trial, counsel renewed the objection to the admission of the diaper bag on the same grounds asserted in the motion to suppress. Because of the interdependence of the diaper bag and cocaine, that objection was sufficient to preserve the issues raised in the motion to suppress as to both the diaper bag and the cocaine. Thus, trial counsel properly preserved the issue for review, and trial counsel’s performance was not deficient. Accordingly, we affirm the trial court’s summary denial of this claim.

Dessin also contends that he was entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing to object to the diaper bag admitted into evidence at trial, which he contends was not the diaper bag seized from him by the police. The trial court ordered the State to respond to this claim, and Dessin contends that the trial court improperly relied on the State’s unsworn response and extra-record documents to summarily deny him relief on this claim without an eviden-tiary hearing. We agree.

Courts have repeatedly held that neither the State nor the trial court may go outside the record to refute a defendant’s allegations in a motion for postcon-viction relief. See, e.g., Flores v. State, 662 So.2d 1350, 1351-52 (Fla. 2d DCA 1995); Cintron v. State, 508 So.2d 1315 (Fla. 2d DCA 1987); Gilliam v. State, 857 So.2d 1006 (Fla. 4th DCA 2003). If the record does not conclusively refute the defendant’s claim, the trial court must hold an evidentiary hearing to allow the defendant the opportunity to challenge the State’s assertions of fact and to resolve any disputes of fact. Gilliam, 857 So.2d at 1008.

Here, the State’s unsworn response to the trial court’s order asserts that the prosecutor went to the evidence custodian and took photographs of the diaper bag actually admitted into evidence. The State’s response also asserts that the diaper bag in the photographs matches the description of the diaper bag seized from Dessin. However, besides being unsworn, the State’s response fails to even purport to establish the chain of custody of the photographed diaper bag. Moreover, the photographs themselves are outside the record, having been created by the State in response to Dessin’s motion. It is clear that the trial court relied solely on the State’s unsworn response and newly created photographs to deny Dessin’s motion without an evidentiary hearing. This was error. Dessin must be afforded an eviden-tiary hearing so that he can challenge the State’s factual assertions that the diaper bag in the photographs is, in fact, the diaper bag that was admitted at trial, as well as the one seized from him by the police. Accordingly, we reverse the summary denial of relief on this claim and remand for an evidentiary hearing on this claim only.

Affirmed in part; reversed in part; • and remanded for further proceedings.

CASANUEVA and DAVIS, JJ., concur.


author: SILBERMAN, Judge.

text:
    Leo FITZPATRICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-329.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Leo Fitzpatrick appeals his prison re-leasee reoffender sentence for robbery. He contends that he did not qualify to be sentenced as a prison releasee reoffender because he was not lawfully in custody within three years of the commission of the present offense. Because Fitzpatrick committed a qualifying crime within three years of his release from prison, we affirm his sentence.

Fitzpatrick committed the present offense of robbery on February 15, 2002. He had been released from prison on a prior offense on July 7, 1999. The prior offense occurred in 1988, and in 1989 Fitzpatrick was sentenced to twenty-five years in prison. Fitzpatrick’s release from prison in 1999 was as an “emergency release” under Gomez v. Singletary, 733 So.2d 499 (Fla.1998). Fitzpatrick was entitled to 822 days of administrative gain time because the Gomez court held that inmates must receive prison overcrowding credits in accord with the statutes in effect on the date of their offense. See id. at 505. The court held that to apply later statutes that curtailed an inmate’s receipt of these credits violated the Ex Post Facto Clause of the United States Constitution. Id. at 500.

Fitzpatrick argues that had the 822 days gain time originally been awarded to him, instead of only being credited to him after the Gomez decision, his release date would have been October 31, 1998, more than three years before the current offense. He argues, analogizing to State v. Atkinson, 831 So.2d 172 (Fla.2002), that because he should not have been in custody from October 31, 1998, to July 7, 1999, the trial court should have recognized his “true release date” as October 31,1998.

At issue in Atkinson was the application of the Jimmy Ryce Act, not the Prison Releasee Reoffender Punishment Act (the PRR Act). Atkinson was in custody on the effective date of the Jimmy Ryce Act, January 1, 1999. Atkinson was later resen-tenced pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), to a nunc pro tunc sentence of twenty-one months, which would have resulted in his release on June 25, 1998. The Florida Supreme Court determined that because Atkinson was not in lawful custody on January 1, 1999, the Jimmy Ryce Act was inapplicable to him. Atkinson, 831 So.2d at 173-74. The court stated that “it would be fundamentally unfair not to give Atkinson the benefit of Heggs by recognizing his operative release date.” Id. at 174.

Fitzpatrick argues that, similarly, he should be given the benefit of Gomez by getting recognition for the “true release date” rather than his actual release date. This argument has some appeal at first glance, especially because the overcrowding credits to which he was entitled under Gomez arise from a constitutional violation under the Ex Post Facto Clause. However, there is a substantial distinction between the Jimmy Ryce Act, which was the legislative enactment that was addressed in Atkinson, and the PRR Act that is involved here.

The Jimmy Ryce Act “ ‘applies to all persons currently in custody who have been convicted of a sexually violent offense.’ ” Id. at 173 (quoting § 394.925, Fla. Stat. (2001)). It is the defendant’s status of being in custody that makes the Jimmy Ryce Act applicable. In contrast, a defendant qualifies for sentencing under the PRR Act if the defendant commits one of the enumerated offenses, which includes the present crime of robbery, “within 3 years after being released from a state correctional facility” or another qualifying institution. § 775.082(9), Fla. Stat. (2001). Thus, it is the fact of the defendant’s release from custody, not his status of being in custody, that is relevant. Fitzpatrick is not being sentenced as a PRR due to a prior unlawful custody; rather, he is being sentenced as a PRR because he committed an enumerated offense within three years of his release date.

The legislative intent behind the PRR Act is to prevent persons released from prison from committing further serious crimes. See Ch. 97-239, Preamble, at 4398, Laws of Fla.; Jones v. State, 861 So.2d 1261, 1263 (Fla. 4th DCA 2003); Turner v. State, 745 So.2d 351, 353 (Fla. 1st DCA 1999), approved, 778 So.2d 974 (Fla.2001). The supreme court reiterated the following in Grant v. State, 770 So.2d 655, 661 (Fla.2000) (quoting Rollinson v. State, 743 So.2d 585, 589 (Fla. 4th DCA 1999), approved, 778 So.2d 971 (Fla.2001)):

The Act’s classification and increased punishment for prison releasee reof-fenders is rationally related to the legitimate state interests of punishing recidivists more severely than first time offenders and protecting the public from repeat criminal offenders. Limiting the Act’s application to re-leasees who commit one of the enumerated felonies within three years of prison release is not irrational.

Because Fitzpatrick committed a qualifying offense during the three-year period following his actual release from prison, he cannot avoid the enhanced sentence for which he qualifies under the PRR Act. The fact that he qualified for an earlier release pursuant to Gomez does not assist him, particularly in light of the legislative intent to prevent a person from committing a qualifying offense for three years after the person’s release from custody and return to society.

For the foregoing reasons, we affirm Fitzpatrick’s sentence for robbery under the PRR Act.

Affirmed.

DAVIS, «I, and THREADGILL, EDWARD F., Senior Judge, concur.


author: SALCINES, Judge.

text:
    Friedrich WAGNER, Appellant, v. Detlef UTHOFF, M.D., Appellee.
    No. 2D03-626.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.

      Thomas C. Saunders of Thomas C. Saunders, P.A., Lakeland, for Appellant.
    Stephen R. Senn and Andrea Teves Smith of Peterson & Myers, P.A., Lake-land, for Appellee.
   SALCINES, Judge.

Friedrich Wagner appeals the final money judgment for attorneys’ fees and costs awarded to Detlef Uthoff, M.D., pursuant to an offer of judgment and pursuant to section 57.105, Florida Statutes (1995 and 2000). We affirm in part and reverse in part.

In 1997, Mr. Wagner brought an action against Dr. Uthoff for damages resulting from an alleged breach of an oral agreement and fraud in the inducement of an oral agreement. The trial court dismissed the action with prejudice on April 25, 2002, based upon the determination that Mr. Wagner was a resident of Germany who had never posted a nonresident cost bond pursuant to section 57.011, Florida Statutes (1997). Mr. Wagner appealed the dismissal. On May 14, 2003, this court reversed the order which dismissed Mr. Wagner’s complaint because the cash bond required by section 57.011 had, in fact, been timely filed. Wagner v. Uthoff, 846 So.2d 1177, 1179 (Fla. 2d DCA 2003).

On July 17, 2002, while the appeal was pending, Dr. Uthoff was granted attorneys’ fees by the trial court based upon an offer of judgment and section 57.105. This second order is the subject of the present appeal. Mr. Wagner requests that this court reverse the final judgment for attorneys’ fees and costs.

Dr. Uthoff has properly conceded, on appeal, that the portion of the judgment awarding attorneys’ fees pursuant to the offer of judgment must be reversed because the underlying judgment has been reversed. See Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999); see also Fraser-Watson v. Maxim Healthcare Servs., 849 So.2d 1201 (Fla. 4th DCA 2003); Rockledge Mall Assocs., Ltd. v. Custom Fences of Brevard, Inc., 779 So.2d 558, 559 (Fla. 5th DCA 2001).

Dr. Uthoffs motion filed pursuant to section 57.105 requested fees and costs based upon the allegation that there was a complete absence of any justiciable issue of fact in the complaint. He further sought those fees and costs incurred in litigating the issue of Mr. Wagner’s foreign residency.

There has been no ruling on the merits of the complaint. Dr. Uthoff did not file a motion for summary judgment or other motion which would have allowed the trial court to rule on the merits of Mr. Wagner’s case. The trial court dismissed the complaint on the basis of a technical failure to file a bond. The trial court made certain findings in the order granting attorneys’ fees and costs concerning the validity of the complaint; however, these findings relate to the issue of attorneys’ fees pursuant to section 57.105, and they do not constitute a ruling on the merits of the case. Therefore, because the dismissal of the complaint has been reversed, the attorneys’ fees which were awarded based upon the invalidity of the complaint must be reversed.

The same is not true for the claim for attorneys’ fees relating to the issue of Mr. Wagner’s residency. Dr. Uthoff filed the motion to dismiss for failure to post the bond on December 10, 1999. In an affidavit dated January 4, 2000, Mr. Wagner stated that his formal residence had been in Polk County since 1992, although he had lived in Germany at times. Dr. Uthoff conducted discovery and obtained Mr. Wagner’s 1997 tax return which indicated that during that year he had been a resident of Germany.

In January 2000, at the time Mr. Wagner filed the affidavit relating to his residency, section 57.105 stated:

Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

See generally Gary S. Gaffney and Scott A. Mager, Section 57.105’s New Look: The Florida Legislature Encourages Courts to Sanction Unsupported Claims and Dilatory Actions, 76 Fla. B.J. 8 (Apr.2002).

In the order granting Dr. Uthoffs motion for attorneys’ fees and costs, it was noted that Mr. Wagner’s allegation concerning residency in his 2002 affidavit had been contradicted by Mr. Wagner’s sworn tax returns. The trial court made a specific finding of fact that Mr. Wagner’s “affirmative and continued reliance upon the January 4, 2002 affidavit is unsupported as defined in § 57.105(l)(a).” The trial court properly awarded Dr. Uthoff the attorneys’ fees incurred in litigating the residency claim because Mr. Wagner knew or should have known the 2002 affidavit was false. See Airtran Airways, Inc. v. Avaero Noise Reduction Joint Venture, 858 So.2d 1232, 1233 (Fla. 5th DCA 2003).

Accordingly, we affirm that portion of the trial court’s order awarding Dr. Uthoff attorneys’ fees pursuant to section 57.105, but only as to those fees relating to the issue of Mr. Wagner’s residency. On remand the trial court shall determine the amount of fees and costs which were incurred for litigating this issue alone. In all other respects the award of attorneys’ fees is reversed.

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY and SILBERMAN, JJ., concur.

      . Our reversal shall not be construed in any manner upon remand as a comment on the merits of the case,


author: ALTENBERND, Chief Judge.

text:
    Otis BLAXTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-583.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Otis Blaxton appeals sentences he received after violating his probation in circuit court case numbers 98-5646 and 99-22563. In both cases, Mr. Blaxton was initially sentenced as a youthful offender to concurrent terms of 44.25 months’ incarceration with a recommendation for the “basic training” or “boot camp” program. When Mr. Blaxton successfully completed boot camp, his sentences were modified to concurrent terms of 44 months’ probation. When Mr. Blaxton violated his probation, the circuit court sentenced him to 44 months of continued probation, with a special condition that Mr. Blaxton serve 364 days’ imprisonment. Because this sentence is not permitted under sections 958.045(5)(c) and 958.04(2)(b), Florida Statutes (1997), we reverse.

Section 958.045 outlines the parameters for the youthful offender boot camp program. Subsection (5)(e) provides in part:

Upon the offender’s completion of the basic training program, the department shall submit a report to the court that describes the offender’s performance. If the offender’s performance has been satisfactory, the court shall issue an order modifying the sentence imposed and placing the offender on probation. The term of probation may include placement in a community residential program. If the offender violates the conditions of probation, the court may revoke probation and impose any sentence that it might have originally imposed as a condition of probation.

Section 958.04(2)(b), Florida Statutes (1997), provides:

The court may impose a period of incarceration as a condition of probation or community control, which period of incarceration shall be served in either a county facility, a department probation and restitution center, or a community residential facility which is owned and operated by any public or private entity providing such services.... Placement in such a facility or center shall not exceed 364 days.

Based upon these two provisions, this court concluded in Bloodworth v. State, 769 So.2d 1117 (Fla. 2d DCA 2000), that a youthful offender who had successfully completed boot camp, had his sentence modified to a term of probation, and then violated probation could not receive a sentence of more than 364 days’ incarceration because that is the maximum sentence the court “might have originally imposed as a condition of probation.” See also Lawson v. State, 845 So.2d 986 (Fla. 1st DCA 2003); Thomas v. State, 825 So.2d 1032 (Fla. 1st DCA 2002); Burkett v. State, 816 So.2d 767 (Fla. 1st DCA 2002).

Similarly in this case, when re-sentencing Mr. Blaxton upon the violation of his probation, the circuit court could not reimpose probationary terms beyond the 364-day period of incarceration. As interpreted in Bloodworth, pursuant to section 958.045(5)(e), the court may “impose any sentence that it might have originally imposed as a condition of probation.” 769 So.2d at 1118. A court cannot impose probation as a condition of probation. Therefore the extended period of probation in Mr. Blaxton’s sentences must be stricken.

The language of section 958.045(5)(c) may warrant further review by the legislature. We doubt that the legislature actually intended the result this language has created. We are inclined to believe that the legislature intended to permit the court to impose any sentence “that it might have originally imposed.” Indeed, a judge may be hesitant to recommend boot camp in an effort to rehabilitate a youth if the judge realizes that the youth’s sentence upon a future violation of probation will be limited to such a short term of incarceration. Nevertheless, the legislature has not amended the statutes since our opinion in Bloodworth, 769 So.2d 1117, and we are constrained by the plain language of the statutes. Accordingly, we reverse the sentences imposed in case numbers 98-5646 and 99-22563 and remand with directions to strike the continued probationary terms.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.


author: CANADY, Judge.

text:
    DEPARTMENT OF REVENUE, Appellant, v. PMR RESORTS, INC., a Florida corporation, Appellee.
    No. 2D02-5256.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.

      Charles J. Crist, Jr., Attorney General, and Carrol Y. Cherry, Assistant Attorney General, Tallahassee, for Appellant.
    Gary L. Butler of Verona Law Group, P.A., St. Petersburg, for Appellee.
   CANADY, Judge.

The Department of Revenue (the Department) appeals the trial court’s ruling that the Department improperly assessed documentary stamp tax on the conveyance of encumbered real property to PMR Resorts, Inc. (PMR), from shareholders of the corporation. Because we conclude that taxable consideration was given for the conveyance of the real property, we reverse the trial court’s order.

I. BACKGROUND

Peter and Margaret Reszczynski own all the outstanding stock of PMR and are its sole officers and directors. In December 1999, Peter Reszczynski acquired title to real property on which a motel is located. The purchase of the property was financed by a loan from the First National Bank of Florida which was secured by a mortgage on the property. The note evidencing the loan was signed by both Peter and Margaret Reszczynski. PMR guaranteed the mortgage and the promissory note to First National Bank of Florida. Documentary stamp tax was paid on the warranty deed conveying the property to Peter Reszczyn-ski.

In March 2000, the Reszczynskis conveyed the property to PMR by a warranty deed which recited that PMR, the grantee, assumed and agreed to pay the mortgage. Only the minimum documentary stamp tax of $0.70 was paid on the conveyance to PMR. Subsequent to an audit, the Department ultimately imposed an assessment for documentary stamp tax and discretionary surtax in the amount of $7677.60, a penalty in the amount of $3838.80, and interest in the amount of $1182.35. The total of the tax, penalty, and interest assessed was $12,698.75. The tax was calculated based on the amount of the outstanding indebtedness secured by the mortgage at the time of the transfer — $1,096,828.87.

PMR challenged the assessment pursuant to section 72.011, Florida Statutes (2000), contending that it was not a purchaser which had given consideration for the transfer of the property. Based on the undisputed facts, the trial court granted summary judgment in favor of PMR and entered a final judgment against the Department and in favor of PMR.

II. THE DOCUMENTARY STAMP TAX STATUTE

Section 201.02(1), Florida Statutes (2000), provides:

On deeds, instruments, or writings whereby any lands, tenements, or other real property, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or any other person by his or her direction, on each $100 of the consideration therefor the tax shall be 70 cents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 70 cents for each $100 or fractional part thereof of the consideration therefor. For purposes of this section, consideration includes but is not limited to, the money paid or agreed to be paid; the discharge of an obligation; and the amount of any mortgage, purchase money mortgage lien, or other encumbrance, lohether or not the underlying indebtedness is assumed. If the consideration paid or given in exchange for real property or any interest therein includes property other than money, it is presumed that the consideration is equal to the fair market value of the real property or interest therein.

(Emphasis added). The last two sentences of this provision were added by an amendment to the law adopted by the legislature in 1990. See ch. 90-132, § 7, at 451, Laws of Fla.

III. ISSUES ON APPEAL

PMR’s liability for the documentary stamp tax turns on whether under section 201.02 it was a “purchaser” from whom “consideration” was received for the conveyance of the property. PMR successfully argued before the trial court that it was not a purchaser which had given consideration to the Reszczynskis for the transfer of the property. In reaching the conclusion that PMR had no liability under the documentary stamp tax, the trial court relied — at PMR’s urging — on Kuro, Inc. v. Department of Revenue, 713 So.2d 1021 (Fla. 2d DCA 1998), which held that no documentary stamp tax was due on the transfer of unencumbered condominium units to a corporation from the sole shareholders of the corporation. On appeal, PMR also contends that since it was already the guarantor of the obligation secured by the mortgage the assumption of the mortgage did not result in a “shifting of the economic burden” associated with the mortgage and that the amount of the outstanding mortgage indebtedness therefore should not be treated as consideration for the conveyance. PMR also relies on the fact that it had made payments on the mortgage obligation prior to acquiring title to the property. In making its argument regarding shifting of the economic burden, PMR cites Florida Department of Revenue v. De Maria, 338 So.2d 838, 839 (Fla.1976), which held that where a corporation transferred real property to its sole shareholder subject to a mortgage there was “a shifting of the economic burden of paying the purchase money mortgage from the grantor corporation to the grantee shareholder” and tax was due on the outstanding mortgage balance even though the shareholder did not assume the mortgage.

The Department argues that under section 201.02(1) the transfer of encumbered property necessarily results in the giving of “consideration” by a “purchaser.” The Department also urges that Kuro is distinguishable because the property conveyed there — unlike the property conveyed to PMR — was not encumbered. The Department responds to PMR’s argument concerning the shifting of the economic burden by asserting that De Maria and other cases applying the shifting of the economic burden test have been superseded by the 1990 amendment to section 201.02(1), which added the specific definition of consideration-including the reference to “the amount of any mortgage.” Finally the Department argues that, in any event, PMR’s assumption of the mortgage on the property resulted in a shifting of the economic burden as contemplated in De Ma-ña.

IV. ANALYSIS

This dispute between PMR and the Department arises in a context that has been the source of ongoing disputes between the Department and taxpayers. The underlying question is the extent to which transactions between corporations and their shareholders will result in tax liability.

The courts dealing with this question have struggled with the problem of identifying consideration given in transactions between corporations and their shareholders. In certain circumstances, consideration has been found lacking. See State ex rel. Palmer-Fla. Corp. v. Green, 88 So.2d 493, 495 (Fla.1956) (holding that transfer of real property from corporation to its shareholders — each receiving an undivided interest proportionate to stock ownership — was not taxable but was “a mere book transaction” because the stockholders were not purchasers and did not pay a reasonably determinable consideration for the conveyance); Kuro, 713 So.2d at 1022 (holding that where corporation “paid nothing for the transfer of condominiums[,] ... [tjhough the transactions effected a change in the legal ownership of the property, the beneficial ownership of the land remained unchanged,” and transfers “were thus mere book transactions and, otherwise, were not sales to a purchaser, as contemplated by section 201.02(1)”). In other circumstances, consideration has been found to exist in a transaction between a corporation and its shareholders. See De Maria, 338 So.2d at 839; see also Crescent Miami Ctr., LLC v. Dep’t of Revenue, 857 So.2d 904, 905 (Fla. 3d DCA 2003) (holding that “the transfer of real property from a parent company to a newly created subsidiary limited liability company owned by the general limited partner of the parent company[ ] is subject to Florida’s documentary stamp tax statute”).

In the instant case, there is no difficulty in identifying the consideration which was given by PMR for the conveyance from the Reszczynskis. Under section 201.02(1), “consideration includes ... the amount of any mortgage ... whether or not the underlying indebtedness is assumed.” Here, it is undisputed that the property transferred was encumbered by a mortgage on which the outstanding indebtedness was $1,096,828.87. A straightforward application of the plain language of the statutory definition of consideration yields the conclusion that documentary stamp tax was due from PMR on that amount.

There are two grounds for rejecting PMR’s argument based on its claim that there has been no shifting of the economic burden associated with the mortgage. First, the Department argues convincingly that the shifting of the economic burden test was superseded by the legislature’s adoption in 1990 of the specific definition of consideration which makes reference to “the amount of any mortgage.” Since the adoption of the 1990 amendment, no reported decision of the supreme court or any district court has applied the shifting of the economic burden test. The plain language of the statute, as amended in 1990, makes any inquiry into the issue of economic burden unnecessary and inappropriate. The pertinent issue is solely whether the conveyed property is encumbered by a mortgage.

Second, even if the shifting of the economic burden test had not been superseded by the 1990 amendment to the statute, we would conclude that there was a shifting of the economic burden in the instant case. Although PMR had previously guaranteed the mortgage debt, there was nonetheless a shifting of the economic burden of paying the mortgage from the shareholders to PMR because under the express language of assumption set forth in the conveyance the Reszczynskis now have a legal right — which they did not previously have — to require that PMR pay the obligation secured by the mortgage. PMR’s secondary liability as a guarantor was transformed by the express assumption of the mortgage into primary liability for the obligation secured by the mortgage. See Brownson v. Hannah, 93 Fla. 223, 111 So. 731, 733 (1927) (“By the assumption by the grantee in a deed of mortgage indebtedness the grantee thereby becomes the primary obligor for the debt.”); Prigal v. Keam, 557 So.2d 647, 648 (Fla. 4th DCA 1990) (stating that purchaser of mortgaged property who assumed mortgage obligation “became the principal debtor and the original buyer/borrower acquired the status of a surety”). Here, it thus cannot be said that “[t]he taxpayer was no more nor less obligated to pay and perform the obligation after the conveyance than before.” Dep’t of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353, 357 (Fla.1977) (holding that there was no tax liability on conveyance subject to mortgage where grantee had previously guaranteed obligation and did not assume obligation in connection with conveyance). When PMR became the principal debtor by virtue of the assumption it was “more ... obligated to pay” the mortgage than when it was merely a guarantor. Consequently, there was, as a matter of law, a shifting of the economic burden associated with the debt secured by the mortgage.

PMR’s reliance on Kuro is similarly unavailing. As the Department points out, Kuro is easily distinguishable from the case under review because the property conveyed in Kuro — unlike the property here — was unencumbered. Accordingly, the portion of the statutory definition of consideration concerning encumbered property which is applicable here was not at issue in Kuro.

V. CONCLUSION

Since the amount of the outstanding mortgage obligation on the property transferred to PMR is taxable consideration under section 201.02(1), the judgment in favor of PMR is reversed and the case is remanded with instructions that judgment be entered in favor of the Department.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.