author: HARRIS, Senior Judge. GRIFFIN, J.,

text:
    Lucilia LOPES, Appellant, v. Luciano LOPES, Appellee.
    No. 5D02-793.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    John Dwyer Meehan, Orlando, for Appellant.
    Gary Shader, of Law Office of Gary Shader, Maitland, for Appellee.
   HARRIS, Senior Judge.

Lucilia Lopes sued for divorce after what she assumed was a fifteen-year marriage. The trial judge, however, based on appellee’s affirmative defense and counterclaim, found that the marriage was void because the appellant had a legal husband at the time of the purported marriage. The court annulled the marriage. It was appellee’s position that appellant’s first marriage, which he contends he learned of only two to three years before the divorce was filed, was not properly terminated by the purported Dominican Republic divorce because the parties to the divorce were not residents there at the time of the divorce. The first husband was in the Dominican Republic for less than three hours and the appellant apparently appeared there only by power of attorney.

At trial (and on appeal), appellant all but conceded the invalidity of the Dominican divorce. Instead of relying on the validity of the divorce and her subsequent remarriage in Connecticut (the marriage herein annulled), she urged that it would be inequitable to annul the marriage in which the parties obtained a marriage license, went through a marriage ceremony, lived together as man and wife, bought property together, shared various bank accounts, and held themselves out as man and wife. In other words, she urged the court to find an equitable common law marriage. But common law marriages, even equitable ones, are not recognized in Florida. The issues belong to the parties; the facts to the trial court. The trial court, based on the pleadings and evidence before it, determined that the Dominican divorce was void under Florida law — the only law urged by the parties. The issues raised by the dissent, based on the dissent’s independent research, simply were not raised by Appellant either below or before this court. It is now too little, too late.

A better issue for appellant, had it been pleaded, would have been that since Connecticut does not permit a husband to challenge the validity of a divorce to which he was not a party, the Connecticut marriage was effectively valid and thus entitled to full faith and credit. But the wife did not urge that the marriage was valid in Connecticut and she did not plead or establish the law of Connecticut. Further, and of equal importance, the wife did not urge the validity of the Dominican divorce and she did not plead or establish the law of the Dominican Republic. The effect of all this is that it is presumed that the law of Connecticut and the law of the Dominican Republic are the same as the law of Florida. See Columbian Nat. Life Ins. Co. v. Lanigan, 154 Fla. 760, 19 So.2d 67 (1944).

With this presumption, the position the trial court found itself in was that there was a jurisdictional requirement in the Dominican Republic for a valid divorce which was not met. Further, without a showing that the marriage was valid in Connecticut or that Connecticut would not permit a second husband to challenge even a void divorce, our court was free to decide the issue under Florida law.

The law of Florida is that a marriage is not valid if one of the parties has a legal spouse at the time of the marriage. See Jones v. Jones, 119 Fla. 824, 161 So. 886 (1985) (The marriage of a man and woman, where one of them has a husband or wife by a prior marriage, who is then living and undivorced, is generally held to be absolutely void, and not merely voidable, and, being a nullity, no judicial decree is necessary to avoid same.) Even though it may not be necessary to get a judicial determination that no marriage exists, our supreme court has said that it is in the best interest of society to do so and that it matters not whether the determination is made by annulment or divorce, the effect is an adjudication of the nullity of the supposed marriage. Burger v. Burger, 166 So.2d 433 (Fla.1964).

Logically, it would not seem to matter why a previous marriage was still intact— whether the parties’ attempted divorce was invalid or whether the parties never attempted a divorce at all. In either event, one continues to have a living and undivorced spouse which prevents such person from entering a new, valid marriage.

It was not suggested below that the husband lacked standing to challenge the validity of the Dominican divorce because he was not a party to it. This may be the (unpleaded) Connecticut law but it is not now the law of Florida. Indeed, it would be peculiar if one seeking an annulment based on the ground that his or her spouse was married at the time of the second marriage, thus rendering the second marriage absolutely void, could not assert the invalidity of a purported divorce. Otherwise, the State through its courts would be breathing life into a nonexistent entity. If the Dominican divorce was void, it was not void only as to the parties to it; it was nonexistent as to the world. In any event, appellee was not challenging the validity of the Dominican divorce, at least not directly. He was challenging the validity of his marriage, a marriage to which he was a party, and merely relied on the fact that appellant’s divorce was void as evidence to support his position. Whether the husband could have challenged the Dominican divorce in Connecticut is immaterial. Here, the wife chose Florida as the forum for her action.

In any event, since 1851, the right of third persons to challenge the validity of a marriage has been recognized in Florida. The court in Ponder v. Graham, 4 Fla. 23, 27 (Fla.1851), stated:

But where any civil disability, as prior marriage, exists, the marriage is void absolutely, and no civil rights can be acquired under it; and it may be inquired of in any court where rights are asserted under it, though the parties be dead.
Where any civil disability exists, the judgment of the court is but declaratory; it does not make it void; for though a marriage de facto, it had no legal existence. It is competent for a party to set up the nullity of his first marriage, in bar of a sentence praying the nullity of the second marriage. Shelford, 332. Either of the parties to the marriage, or the parent or guardian of either of the parties, or any other person interested, may apply to the court, and they have a right to a declaratory sentence, and it is upon the ground that the public, as well as the parties in interest, have a right to know the real character of these domestic relations. Shelford, 334. It is, therefore, upon principle and authority, competent for executor, representing as he does the interest of distributees and creditors of this estate, to impeach the validity of this marriage.

The same logic applies now.

Even if appellee’s standing to challenge the Dominican divorce could have been asserted by appellant, as previously mentioned it was not. Although estoppel was urged by the wife as a basis for ignoring the invalidity of the marriage, it was based only on her position that appellee knew of the divorce prior to their marriage and relied on them in entering the marriage, a position contrary to the husband’s testimony. The judge was free to believe the husband’s testimony. The court rightly rejected this claim of estoppel.

Based on the record and the pleadings and proof before the trial court, we affirm.

ORFINGER, J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent.

The appellant, Lucilia Lopes [“Lucilia”], was previously married to Mario Coelho. In 1972, her former husband obtained a divorce from her in the Dominican Republic, at a time when both Lucilia and her former husband (who are Portugese) were living in Connecticut. The divorce was obtained on grounds of “mutual consent.” Coelho testified he traveled to the Dominican Republic specifically for the purpose of obtaining a divorce and was there for less than one day. Lucilia apparently appeared in the proceeding through counsel and consented to the divorce.

Lucilia married the appellee herein, Luciano Lopes [“Luciano”], in 1985. They lived together as husband and wife for approximately fifteen years, until November 2000, when Lucilia filed for divorce. Lucilia sought alimony, an equitable distribution of marital property, and attorney’s fees. In “Husband’s Response to Wife’s Petition for Dissolution of Marriage and Other Relief and Husband’s Counterpetition for Dissolution of Marriage,” Luciano sought alimony, equitable distribution, payment of his health insurance premiums, and attorney’s fees. Six months later he filed an amended petition seeking a special equity in the marital home and in a bank account. One month later, in July 2001, he filed a second amendment, in which he raised for the first time that his marriage to Lucilia was “not legal” because Lueilia’s Dominican divorce from her first husband was not valid. He contended that Lucilia was still married to Coelho at the time of their marriage, which rendered the marriage void ab initio. He separately asked the court for a declaratory judgment regarding the validity of his marriage to Lucilia and requested the partition of property held as tenants by the entireties.

Following an evidentiary hearing, the trial court granted Luciano an annulment on the basis that Florida would not give comity to a divorce obtained in the Dominican Republic, where neither Lucilia nor her former husband were residents of that country for a period of 180 days, as required by Florida law, before the divorce was issued. The trial court further refused to find that husband was estopped to contest the validity of his marriage to Lu-cilia, because “a party who obtains an inappropriate and invalid divorce cannot avail itself with the use of estoppel.” The final order found the marriage between Lucilia. and Luciano was “void ab initio” and freed each party from the “obligations of this marriage.”

I would reverse this decision. Lucilia argues on appeal that her marriage to Luciano was presumptively valid and that Luciano failed to prove that it was not. She also urges that Luciano is estopped to - attack the legality of her marriage to him. Among other things, the majority improperly relieves Luciano of the burden of proving the claim in his petition that she remained married to Coelho and could not, therefore, ever have been his wife. It was enough for the trial court and for the majority that Lucilia conceded that she had not met the residency requirements under Florida law when she was divorced in the Dominican Republic. For the majority to say Lucilia failed to argue that her first divorce was valid is both cruel and inaccurate. She can be forgiven for conceding that her Dominican divorce would not be given full faith and-credit if it had been litigated in Florida because such a concession should not matter to. the question whether Luciano and she were legally married.

Recognition of divorce decrees'rendered in foreign courts is a matter of comity involving an exercise of discretion. See Pawley v. Pawley, 46 So.2d 464 (Fla.1950); Popper v. Popper, 595 So.2d 100 (Fla. 5th DCA), review denied, 602 So.2d 942 (Fla.1992). This court has held that in order to be entitled to comity, the record must show the foreign judgment partook of the elements which would support it if it had been obtained in this state. This means that “the grounds relied upon for divorce must be sufficient under Florida law, the petitioning party must satisfy the jurisdictional requirements relating to residency or domicile, and basic due process and notice requirements must be met.” Popper, 595 So.2d at 103.

Coelho was not a resident of the Dominican Republic for a period of six months before applying for the divorce, which is the residency requirement imposed by Florida law to obtain a divorce. § 61.021, Fla. Stat. (1999). Florida courts have determined that lack of residency in the Dominican Republic equates with a lack of subject-matter jurisdiction. See, e.g., Orbe v. Orbe, 651 So.2d 1295 (Fla. 5th DCA 1995). Accordingly, even though Lucilia’s divorce from Coelho was apparently valid in the Dominican Republic, which has no residency requirements and which has, since 1971, recognized divorces for nonresident foreigners based on “mutual consent,” Florida refuses to recognize such a divorce.

However, it is one thing for Florida courts to refuse to recognize an ex parte divorce obtained by one of two Florida residents in a foreign country when suit is brought by the non-participating spouse. It is quite another to allow a third party to challenge the validity of those proceedings, particularly when they could not have been challenged in the state in which Lucilia and her first husband were living when Lucilia’s first divorce was obtained. To say that if Coelho and Lucilia had been Floridians and if, at the time of their “divorce,” one of them had attacked the Dominican divorce, Florida’s courts would not have recognized its validity proves nothing relevant to the issues in this case. They were, in fact, living in Connecticut and they are not the ones seeking to invalidate the divorce.

The issue of standing to attack the decree would appear to be governed by the marital domicile of the divorcing parties when the divorce was rendered, which in this case was Connecticut. Importantly, Connecticut law gives Luciano no right to assert the invalidity of Lucilia’s divorce from Coelho, because in that state “[a second spouse] has no standing to attack collaterally an earlier divorce decree to which he was a stranger and in which he had no legally protected interest which would have been affected by the decree itself at the time it was rendered.” Fattibene v. Fattibene, 183 Conn. 433, 441 A.2d 3, 4 (1981) (husband had no right to attack validity of wife’s prior divorce, which had been obtained in the District of Columbia, in proceeding for dissolution of marriage); Cocco v. Cocco, 23 Conn.Supp. 275, 181 A.2d 266 (1962) (plaintiff, who was not party to Mexican divorce proceedings brought by defendant against his former wife, could not collaterally attack validity of Mexican divorce decree when plaintiff, who had knowledge thereof before marriage, did not show that she had a legally protected interest which was adversely affected by the decree, but even if plaintiff had standing to attack such decree, evidence was insufficient to establish invalidity of decree); Murphy v. Murphy, 34 Conn.Supp. 251, 386 A.2d 274 (1978) (husband could not collaterally attack wife’s prior Haitian divorce in later divorce proceeding); see also Tyler v. Aspinwall, 73 Conn. 493, 47 A. 755 (1901) (strangers to potentially invalid divorce wrongfully obtained in Connecticut without residency have no such interest therein as will, permit their maintaining suit to set it aside merely because they would inherit interest in husband’s estate if marriage was set aside). Moreover, standing is a threshold issue which must be addressed before the marriage can be déclared void. Fattibene, supra.

If a direct or collateral attack on the decree would not be permitted in Connecticut, it makes no sense to permit a stranger to the marriage to mount a collateral attack on the validity of the decree in this state. Lucilia and Coelho are indisputably divorced. Even Florida law recognizes that third parties have no standing to attack the validity of a divorce between two other individuals. deMarigny v. deMarigny, 43 So.2d 442 (Fla.1949) (refusing to let second wife attack validity of divorce previously obtained in Florida by husband and husband’s first wife, although second wife alleged Florida lacked jurisdiction because it was not true domicile). In deMarigny, the court emphasized that the former divorce decree (which had been obtained in Florida, but the court was allegedly without jurisdiction as it was not the domicile or residence of either party to the decree) had not adversely affected the status or rights of the second wife existing at the time of entry of the decree. Instead, the court felt the decree had protected her, for it made the second marriage to her possible. The court thus held that the second wife had no standing to institute an independent action attacking the divorce, even though suit had been brought in the state which granted the divorce. In short, no one but the parties to the divorce (and possibly their successors in interest) have the right to complain about the validity of the proceedings which resulted in the divorce.

I also find it significant in this case that Lucilia was not a victim of some scheme by her first husband; rather, she voluntarily appeared in the proceedings in the Dominican Republic by virtue of a power of attorney. Even though a judgment obtained without proper jurisdiction is generally held to be void, such judgments are nevertheless usually given full faith and credit in later actions brought by one of the spouses who willingly participated in the divorce action. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948); Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451 (1948). Bilateral divorces must' also be given full faith and credit in actions involving third parties, who are not allowed to relitigate the validity of another’s divorce where both of the divorcing parties appeared before the foreign tribunal. See also Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951)(where decedent appeared in Florida divorce action by wife, and both parties had full opportunity to contest jurisdictional issues in that court, under Florida law, decedent’s daughter and sole legatee under his will, could not attack Florida divorce decree as beyond the jurisdiction of the rendering court, and therefore the New York courts could not permit such an attack by daughter for purpose of defeating third wife’s widow rights in decedent’s estate); Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951)(holding that Vermont court could not consider validity of wife’s Florida divorce, obtained while she and second husband were actually residents of Virginia, in action for annulment brought by second husband, to extent that husband appeared in Florida proceedings and admitted domicile). New York appears expressly to recognize bilateral foreign judgments of divorce, without domicile or residency, and does not consider it to be against the public policy of the state to afford them comity. See Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (1965) (separation agreement incorporated in valid judgment of divorce obtained in Dominican Republic by New York residents would be recognized on basis of comity, and was not against public policy of state); R.F. Chase, Annotation, Domestic Recognition of Divorce Decree Obtained in Foreign Country and Attacked for Lack of Domicil or Jurisdiction of Parties, 13 A.L.R.3d 1419 (1967); see also Perrin v. Perrin, 408 F.2d 107 (3d Cir.1969) (holding that Virgin Islands would recognize bilateral foreign divorce obtained in Mexico). Since Lucilia and Coelho are clearly divorced, the question appears to be whether Florida courts can pretend that they are not divorced (and that she was never married to Luciano) because Florida would not enforce such a divorce over the objection of either Lucilia or Coelho if they had been Floridians. The majority says the answer is “yes.” I believe the answer is “no.”

The same result is obtained in most jurisdictions, including this one, on grounds of estoppel — that is, most courts hold that those who are parties to the divorce are estopped from later questioning the validity of the decree. In most cases, estoppel is applied against those who were parties to the original divorce to prevent them from claiming a second marriage is invalid, using either a fault analysis or emphasizing that they had remarried in reliance on the earlier decrees. See, e.g., Reichert v. Appel, 74 So.2d 674 (Fla.1954) (husband was estopped from attacking jurisdiction of Illinois court which had rendered divorce decree husband was seeking to avoid because he had remarried in reliance on decree); Lambert v. Lambert, 524 So.2d 686 (Fla. 4th DCA 1988) (even if husband’s Dominican Republic divorce from his first wife was invalid, he was estopped from subsequently challenging its validity in action for divorce brought by husband’s second wife); see also Bemis v. Loftin, 127 Fla. 515, 173 So. 683 (1937) (wife who falsely acknowledged former’s husband’s residence and domicile in Florida to obtain annulment estopped from later challenging validity of annulment); Kindle v. Kindle, 629 So.2d 176 (Fla. 5th DCA 1993) (putative wife of twenty year marriage was entitled to permanent alimony following annulment where putative wife was not aware that husband was already married at the time of their purported marriage). However, es-toppel has also been applied against a non-party to the divorce who married in reliance on the decree. Lambertini v. Lambertini, 655 So.2d 142 (Fla. 3d DCA 1995).

In Lambertini, the wife had obtained a divorce from her first husband in Mexico after seeking out an attorney with the help of her second husband. She then married her second husband in Mexico. The parties later moved to Florida, where wife sought a divorce from her second husband. Husband counterpetitioned, claiming that the Mexican divorce and remarriage were void. The trial court found that husband was estopped from challenging the parties’ marital status, explaining:

The presumption of a marriage’s existence grows out of long and continuous cohabitation, the establishment and maintenance of a home and family, and recognition by the public generally and their friends and associates that the man and woman are husband and wife. In re Estate of Marden, 355 So.2d 121 (Fla. 3d DCA), cert. denied, 361 So.2d 833 (Fla.1978). The strength of that presumption increases with the passage of time during which the parties are cohabiting as husband and wife. Id.; see also 25 Fla.Jur.2d Family Law § 46 (1992). The presumption of validity of the marriage in the instant case is a strong one, regardless of the dispute whether the Mexican marriage was void ab initio. The parties cohabited and held themselves out to family, friends, and to the public as married for approximately thirty years, bore and raised two children within this time, and held property as tenants by entirety. At final hearing, the husband testified that he had honestly believed and reasonably relied on the validity of the marriage to the wife for some thirty years. There was no allegation by either party that the marriage was void until the wife made her claim for alimony in the dissolution proceedings. For these reasons the husband was equitably estopped from raising the validity of the marriage, and annulment was improper. See McMichael v. McMichael, 158 Fla. 413, 28 So.2d 692 (1947); Keller v. Keller, 521 So.2d 273 (Fla. 5th DCA 1988); Seoane v. Seoane, 514 So.2d 430 (Fla. 3d DCA 1987); Arnold v. Arnold, 500 So.2d 739 (Fla. 3d DCA 1987).

Id. at 143. The court made clear that it was not relying on the “fault” of either party in its ruling. It explained that where both parties thought the divorce was valid and neither had reason to believe otherwise, “fault” was not at issue:

Each party also claims that the other was the active procurer of the invalid Mexican marriage. However, there is no evidentiary support in the record for the argument that one of the parties is innocent while the other is necessarily culpable. Apparently, by focusing on the claimed invalidity of the Mexican divorce and marriage, the trial court misapprehended that both parties may have been duped by the unprofessional misrepresentations of the Buenos Aires attorney who procured the putative marriage certification. There is no record evidence of any fraudulent conduct by either of the parties. Both parties participated in procuring the so-called divorce and marriage from the Argentine attorney, and there is nothing in the evidence to indicate that either party had reason to believe that the Mexican divorce and marriage were not valid.

Id. at 143-144.

In this case, the parties cohabited and held themselves out to others as husband and wife for a period of fifteen years. According to Luciano, he did not marry in reliance on the divorce decree, since he testified that he did not learn about the divorce until three years prior to the hearing. However, upon learning of the divorce, he apparently remained married in reliance on the decree. Both parties testified they believed the divorce to be valid until the issue was raised in these proceedings. Lucilia not only remarried in reliance on the decree, but her ex-husband remarried in reliance on the decree and had two children with his second wife. There simply is no logic or reason under these circumstances to allow Lucilia’s second husband to attack the validity of Luci-lia’s first divorce as a means of seeking to avoid payment of alimony and an equitable distribution of the parties’ property. See Rosen v. Sitner, 274 Pa.Super. 445, 418 A.2d 490 (1980). Precluding Luciano from attacking the decree also appears consistent with section 74 of the Restatement (Second) Conflict of Laws, which sets forth the following guidelines concerning estop-pel in matrimonial actions:

A person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him to do so.

The comments to the rule explain:

The rule is not limited to situations of what might be termed “true estoppel” where one party induces another to rely to his damage upon certain representations as to the facts of the case. The rule may be applied whenever, under all the circumstances, it would be inequitable to permit a particular person to challenge the validity of a divorce decree. Such inequity may exist when action has been taken in reliance on the divorce or expectations are based on it or when the attack on the divorce is inconsistent with the earlier conduct of the attacking party.

I would hold that Luciano has no standing to make a collateral attack on the validity of Lucilia’s original divorce in order to avoid alimony or equitable distribution after fifteen years of marriage. I would also hold he has failed to prove she is not divorced from her first husband. In the alternative, Luciano should be es-topped to attack the validity of the decree. I would reverse.

      . Dominican law requires at least one spouse to be present and requires a non-attending spouse to execute a power of attorney submitting to the jurisdiction of the Dominican court. These requirements were apparently met in this case. The divorce decree, which recites that it was obtained on grounds of mutual consent, appears valid on its face and Coelho confirmed that he was present in the Dominican Republic. It must be assumed that Lucilia, who testified that she signed a paper in connection with the divorce, also submitted to the jurisdiction of the Dominican court by executing a power of attorney.

        . See, e.g., Kittel v. Kittel, 194 So.2d 640 (Fla. 3d DCA 1967) (finding no abuse of discretion in trial court's refusal to recognize "quickie divorce" obtained by the husband in Mexico, where the parties had always lived in Florida, and the divorce was obtained on grounds (incompatibility) not recognized in Florida).

      . Although it is not our job to determine, the credibility of Luciano’s testimony on this issue seems dubious. The parties socialized with other members of a close-knit Portugese community in both Connecticut and Florida. Several witnesses testified that members of the Portugese community had known about Lucilia's divorce for many years. Even Luciano's cousin testified that he knew of Lucilia’s divorce and of the remarriage of Lucilia’s former husband shortly thereafter. One witness even testified that she heard Luciano refer to Lucilia’s divorce during an argument seven years previously. The trial court did not reach the credibility issue on this point because the trial court ruled that estoppel could not be asserted by Lucilia because "a party who obtains an inappropriate and invalid divorce cannot avail itself with the use of estoppel.” This statement of law is plainly wrong.

      . There was no evidence offered by Luciano either that Lucilia's divorce was invalid under the law of the Dominican Republic or invalid under the law of the state where all these parties resided both when the divorce was obtained and when the former Mr. and Mrs. Coelho entered into their new marriages. His only claim was and is that the marriage is void because a Florida court will not give comity to the Coelho’s divorce. The (faulty) premise of the majority opinion is that Luci-lia's divorce from Coelho was void and she, therefore, remained married to him, making it impossible for her to have a marital relationship with Luciano. The fact that Florida would not give comity to the Dominican divorce because Mr. and Mrs. Coelho did not meet Florida's residency requirements does not, however, mean that Lucilia is still married to Coelho. Indeed, she is not. She married Luciano in Connecticut and, under Connecticut law, he could not have invalidated the marriage there. Coelho has himself remarried and has children by his second wife. The Coelhos' divorce was not only valid under the laws of the place where it was obtained, it would have been granted recognition in the state of the parties’ domicile. The failure of Florida to recognize such a divorce is simply a matter of public policy. To say that she became a bigamist the day she crossed the Florida state line makes no sense. Luciano cannot obtain a decree in a Florida court declaring Lucilia’s divorce void just because it didn't meet the residence requirements required for a Florida divorce. Florida should follow the law of Connecticut and not allow Luciano to set up Florida’s refusal to recognize a Dominican divorce to obtain a declaration that Luci-lia's divorce from Coelho was void.


source: Caselaw Access Project

author: SHARP, W., J.

license: Public Domain

text:
    Michael KAILING, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-2203.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    Michael Railing, Avon Park, pro se.
    No Appearance for Respondent.
   SHARP, W., J.

Railing filed a request that this court treat his petition for writ of habeas corpus for a belated appeal which asserts ineffective assistance of appellate counsel, as timely filed under the mailbox rule. We deny his petition without prejudice to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). Under the rule, Railing must provide, among other things, allegations entitling him to a belated appeal and executed by him under oath.

This is an unusual case in that if Railing’s allegations are correct, his petition challenging the effectiveness of appellate counsel was timely filed under the mailbox rule. Railing was convicted in a criminal case and his direct appeal to this court (5D99-3321) was affirmed on September 12, 2000. On September 29, 2002 (the date on which the mandate issued), the two-year time limit in which to file such a petition would have expired, absent exceptional circumstances. Fla. R.App. P. 9.141(c)(4).

In his current request, Railing claims he filed his petition on August 27, 2002, by delivering it to prison authorities, but for reasons unknown to all concerned, this court has no record of ever receiving such a document. In response to a letter of inquiry from Railing dated June 24, 2003, this court responded that our records “fail to reflect any pending or prior petition alleging ineffective assistance of appellate counsel.”

DENIED without prejudice.

PALMER and TORPY, JJ., concur.

      . Fla. R.App. P. 9.420(a)(2).


author: SHARP, W, J.,

text:
    Jamie AGUIRRE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1731.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    Jamie Aguirre, Raiford, pro se.
    No Appearance for Appellee.
   SHARP, W, J.,

Aguirre appeals from the circuit court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking post-conviction relief. The appeal was filed more than thirty days after rendition of the order sought to be appealed and Aguirre failed to respond to this court’s order to show cause why the appeal should not be dismissed for lack of jurisdiction. See Fla. R.App. P. 9.110(b).

Accordingly, we dismiss this cause without prejudice to Aguirre’s filing a petition for a belated appeal in compliance with Florida Rule of Appellate Procedure 9.141(c). See, e.g., Adams v. State, 801 So.2d 145 (Fla. 1st DCA 2001); Broxson v. State, 782 So.2d 528 (Fla. 1st DCA 2001).

DISMISSED without prejudice.

PALMER and TORPY, JJ., concur.


author: ORFINGER, J.

text:
    Angela Denise MALONE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1931.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Angela D. Malone appeals her conviction of robbery with a firearm in violation of section 812.13(2)(a), Florida Statutes (2000). Malone contends that the trial court erred in failing to adequately explore the basis for her request to discharge her court-appointed attorney, Kelly Sims, and further erred by allowing her to represent herself. We agree and reverse for a new trial.

After Malone was charged with armed robbery, the trial court determined she was indigent and appointed Sims as her counsel. Just prior to jury selection, the following discussion occurred among the trial judge, Malone and Sims:

THE DEFENDANT: I feel I need a new attorney.
THE COURT: I don’t care how you feel. You’ve got some facts?
THE DEFENDANT: I feel like my attorney isn’t in my best interest. I asked him to fill out motions for me and he just wouldn’t do it.
THE COURT: Because he’s the lawyer and you are not a lawyer, right?
THE DEFENDANT: Right.
THE COURT: So.
THE DEFENDANT: But he’s working for me.
THE COURT: But he’s the lawyer, you are not, so he does what legally is permissible, not something that you want.
THE DEFENDANT: My understanding, when you are dealing with attorneys, they are suppose to work for you.
THE COURT: That’s right, but they are not to do what you want. If your motion didn’t make sense or legally insufficient, then he has a right not to do it.
Let’s get this thing over with. You are not getting a new lawyer. You can go to trial if you want to or you can go to trial with Mr. Sims, that’s your choice.
Sit down, let’s bring the jury in.
THE DEFENDANT: I guess I’m going to have to do it by myself. I guess I’m going to have to go by myself.
THE COURT: You want to discharge Mr. Sims, is that it?
DEFENDANT: I might need him for some questions.
THE COURT: No, I don’t do that. Mr. Sims is either your lawyer or he’s back at his office doing what he wants to do. You want a lawyer, which would make sense, because you are looking at going to prison for the rest of your life and probably getting out when you are in a lying box [sic]. I’d have a lawyer if I were you, but it’s entirely up to you.
MR. SIMS: May I have a moment with her, your honor?
THE COURT: Sure.
(Whereupon, attorney confers with Defendant off the record)
THE COURT: What else?
MR. SIMS: You want me to tell the judge what it is you want to do?
THE DEFENDANT: I have to go by myself.
THE COURT: Why?
THE DEFENDANT: Um—
THE COURT: You are looking at going to prison for the rest of your life and you want to try to convince a jury that you shouldn’t be found guilty all by yourself instead of having a criminal lawyer assisting you, is that what you are telling us?
How much education do you have?
THE DEFENDANT: 12th Grade.
THE COURT: How many times have you defended yourself in court?
THE DEFENDANT: None.
THE COURT: Then why are you trying to do it now. It doesn’t make sense to me? You are entitled to do it if you want to, it’s your life. You can throw it away, but it sure doesn’t make sense to me to do it that way. Is that what you want to do.
THE DEFENDANT: I need some assistance. I need a new attorney.
THE COURT: You are not getting a new attorney.
THE DEFENDANT: I know I need some assistance.
THE COURT: Go ahead and sit down, we are getting ready to start the trial.
MR. SIMS: That would be with me, Your Honor?
THE COURT: Yes, sir.
THE DEFENDANT: I want to do it myself.
THE COURT: I didn’t hear what she said.
THE DEFENDANT: I need to do it myself. I need some assistance, but—
THE COURT: You want to try this case by yourself without a lawyer, is that what you are saying? You understand the dangers of doing something stupid like that?
THE DEFENDANT: Without Mr. Sims, I guess I’m going to have to do it by myself.
THE COURT: I didn’t understand. The trial would go a whole lot quicker if you don’t have a lawyer on your side to help you.
MR. SIMS: She informs me that she would like an attorney just not me, and if it were me, she would rather do it by herself. She would like to have me just because I have a little bit of knowledge in her eyes to be on standby position and I wouldn’t mind doing that, like a little book in the corner if she has a questions, but if Your Honor doesn’t feel that’s appropriate, then she has stated to me that she would rather try it herself because she has more faith in herself in this case than in me.
THE COURT: That’s the stupidest decision that I’ve ever heard, but she’s entitled to make stupid decisions according to the Supreme Court. Lawyer’s knowledge and experience — Lawyer’s— Mr. Sims has the experience and knowledge in the entire process, he will argue for your side during the whole trial and present the best legal argument for your defense. Jury selection qualification are governed by a number of legal procedures, he can call witnesses and question them for you, he can make closing argument for you.
THE COURT: You want Mr. Sims or you want to go by yourself?
Let me ask you this. How is it that you plan to do jury selection?
THE DEFENDANT: What do you mean how?
THE COURT: You said you don’t want Mr. Sims[J You want to be by yourself[.] You want to do jury selection[J How are you going to do that?
THE DEFENDANT: Listen to their stories and choose which once [sic] I like the best.
THE COURT: Okay. Is that what you want to do, you want to send Mr. Sims home?
THE DEFENDANT: I know I need some assistance.
THE COURT: You got some assistance. Now what you are telling mé now is you don’t want Mr. Sims and I’m telling you that Mr. Sims is the only lawyer you are going to get because I’m not going to appoint a lawyer on the morning of trial. Mr. Sims is probably one of the premiere defense lawyers in this community.
You are board certified, aren’t you, Mr. Sims?
MR. SIMS: Yes, sir.
THE DEFENDANT: Okay. I’m ready.
THE COURT: So what do you want to do?
MR. SIMS: You got to tell him something.
THE DEFENDANT: I guess I’m on my own.
THE COURT: Okay. Thank you, Mr. Sims. You are excused. She’s fired you.
MR. SIMS: May I turn over the documentation, Your Honor?
THE COURT: Yes, sir.

After defense counsel was discharged, the trial proceeded and Malone was found guilty as charged. On appeal, Malone contends that the trial court failed to conduct an adequate inquiry regarding her decision to discharge her court-appointed counsel, as required by Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

Nelson established the procedure a trial court must follow, consistent with an indigent’s right to effective representation, when a defendant expresses a desire to discharge court-appointed counsel prior to trial because of alleged incompetency. Nelson said:

If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his court-appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

Id. at 258-59; see also Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988)(adopting procedure of Nelson), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988).

If the court finds that the defendant does not have a legitimate complaint, then the court is required to advise the defendant that if his request to discharge is granted, the court is not required to appoint substitute counsel and that the defendant would be exercising his right to represent himself. Trease v. State, 768 So.2d 1050, 1053 (Fla.2000) (citing Hardwick, 521 So.2d at 1074). If a defendant continues to desire to discharge counsel, the court must determine whether the defendant is knowingly and intelligently waiving the right to court-appointed counsel, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The failure to conduct a proper Nelson hearing is reversible error. See Johnson v. State, 629 So.2d 1050, 1051 (Fla. 2d DCA 1993).

“Requests for self-representation and claims of ineffective assistance of court-appointed counsel present a real quagmire to the trial judges, who must deal with them. Such difficulties are understandable, since the case law in these areas is voluminous, complex, and at times downright inconsistent.” Angela D. McCravy, Self-Representation and Ineffective Assistance of Counsel: How Trial Judges Can Find Their Way Through the Convoluted Legacy of Faretta and Nelson, 71 Fla. B.J. 44, 44 (Oct.1997). We, like other courts, “recognize the burden placed on a trial court by Nelson and Faretta when confronted by a defendant, who is often obstreperous, claiming ineffective assistance of court-appointed counsel.” Jones v. State, 658 So.2d 122, 126 (Fla. 2d DCA 1995). These tedious and time-consuming requirements can test the frustration and patience of the most experienced trial judge, particularly when the issue “comes on the. day of trial and a jury venire of inconvenienced citizens is impatiently waiting in the courthouse for the jury selection process to begin.” Id. While there are no “magic words” necessary to properly conduct a Nelson or Faretta inquiry, the burden is on the trial court to strictly adhere to the requirements mandated therein. That was not done here. Malone told the court that she wanted to discharge her attorney because he failed to file certain requested motions. The trial court never inquired what motions she wanted to file in the case or counsel’s reasons for not filing them. The Nelson inquiry conducted here did not address the basis for Malone’s dissatisfaction with counsel.

Adherence to Nelson (and Faretta when appropriate), is mandatory. Hence, we are compelled to reverse Malone’s conviction and remand for a new trial based on our conclusion that the trial court failed to conduct an appropriate Nelson inquiry.

REVERSED AND REMANDED.

PETERSON and MONACO, JJ., concur.


author: SHARP, W., J.,

text:
    SARDON FOUNDATION, Appellant, v. NEW HORIZONS SERVICE DOGS, INC., Appellee.
    No. 5D02-2057.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.

      Howard L. Cauvel of Rano, Cauvel & Ceely, P.A., DeLand, for Appellant.
    Richard J. D’Amico, Daytona Beach, for Appellee.
   SHARP, W., J.,

The Sardón Foundation appeals from a final judgment denying its claim to foreclose a mortgage executed by New Horizons Service Dogs, Inc. and awarding New Horizons attorney’s fees pursuant to the mortgage and note. On appeal, Sardón argues the trial court should have considered a separate agreement executed by the parties as part of the mortgage. The agreement provides for forgiveness of the debt and specifies additional reasons for default under the mortgage.

We conclude the agreement, mortgage and note were meant to be read together and control the relationship of the parties, and thus should have been considered by the trial court without requiring Sardón to bring a separate breach of contract claim. We also conclude New Horizons waived its claim for attorney’s fees by failing to plead entitlement to those fees. Accordingly, we reverse the judgment and remand with directions to strike the award of attorney’s fees and to try the foreclosure action on the merits using the alleged breach of the agreement (New Horizons’ alleged failure to render proper accountings), as the ground to foreclose.

Sardón is a New Mexico non-profit corporation established by Don Sontag to provide financial support for working dogs. Such dogs are used for search and rescue operations and as guide dogs. New Horizons is a Florida non-profit organization operated by Janet Severt, which provides service dogs to disabled individuals. The two met at an American Kennel Club Dog Obedience show.

Sontag suggested to Severt that he might provide funding for New Horizons through Sardón. Severt presented him with a funding proposal which greatly impressed him. The proposal outlined how the requested funds would be used, delineated the staff and described the purpose of the organization and suggested how it could be improved through the requested funding.

The parties agreed Sontag would give Severt $15,000 quarterly. However, the first advance was for $27,000 to enable Severt, herself a disabled individual, to purchase an electric wheelchair. Later, Severt requested increased funding for a larger facility.

In December 1999, Sontag loaned Severt $140,000 to purchase property in Volusia County. Severt executed a promissary note and a mortgage on the property securing payment of the note. According to Sontag, Severt did not want the loan to be personal so the agreement was changed to their respective corporations. The amount of the loan was also increased to $149,000.

On January 31, 2000, Sontag and Severt finalized their agreements: Sardón would loan New Horizons $149,000.00 to fund the purchase of the property and New Horizons would execute a note and mortgage securing repayment of the loan to Sardón. They also executed an additional agreement which provides:

1. Sardón shall make a loan to New Horizons in the amount of One Hundred Forty-Nine Thousand Dollars ($149,000.00), subject to the terms, conditions and restrictions specified below.... New Horizons will execute the Promissory Note and Mortgage securing its repayment obligations to Sardón. Sardón intends and agrees to forgive Twenty-Nine Thousand Eight Hundred Dollars ($29,800.00) or more of the principal each year (on February 1st), plus all accrued interest on the Promissory Note, in the event New Horizons complies with the restrictions, terms and conditions specified below.
5. Sardón desires to ensure that New Horizons will continue to be operated in a professional and efficient manner. As a condition of the aforementioned loan to New Horizons, Sardón requires and New Horizons agrees to the following restrictions, requirements and obligations:
a. To provide to Sardón on the fifth day of each month following the execution of this Agreement a complete statement of all receipts and expenditures and a description of all activities, plans and goals of New Horizons for the preceding calendar month.
b. New Horizons shall continue to be operated in a professional, competent and efficient manner pursuant to the highest possible standards, in accordance with the standards of A.D.I.
6. In the event any one of more of the above-described restrictions, requirements and obligations of New Horizons is not fulfilled, in the sole and absolute discretion of Sardón, and continues for a cumulative period of six (6) months, Sardón may demand full payment of the remaining balance due, including all accrued interest, on the Promissory Note. In the event New Horizons does not pay the balance due, including all accrued interest, on the Promissory Note within thirty (30) days of the receipt of such notice to pay, New Horizons will execute a Deed in Lieu of Foreclosure transferring the Property back to Sardón. In the event New Horizons fails to execute the Deed in Lieu of Foreclosure, Sardón may bring a legal action to force New Horizons to execute the Deed in Lieu of Foreclosure or proceed to initiate foreclosure proceedings.

The note, mortgage and agreement were duly executed by Sardón and New Horizons and the mortgage was recorded. Six months later, Sardón filed this mortgage foreclosure action against New Horizons. Sardón alleged New Horizons defaulted under the note and mortgage by failing to provide monthly statements of business and activities and failing to conduct its activities in accordance with paragraph five of the parties’ agreement. Sardón attached copies of the note, mortgage and agreement to its complaint.

At trial, Sontag testified the note, mortgage and agreement were all signed at the same time and the agreement specifically referred to the note and mortgage. As quoted above, the agreement forgives the mortgage payments if certain requirements (paragraphs 5a and b) are met. Sontag has not received any payments under the note and mortgage.

Sontag testified he received reports monthly from Severt but found them inadequate because they were not verifiable and were too general and sketchy. Sontag sent Severt letters asking her to improve the reports but to no avail. Sontag filed suit immediately after the six-month time period set forth in paragraph six of the agreement, to establish default under paragraph five, had occurred.

Sontag acknowledged that paragraph five does not specify any form for New Horizons’ required statement of receipts and expenditures, and the word “verifiable” is not in the agreement. However, he testified he discussed with Severt that he wanted verifiable reports at every opportunity. When asked whether these discussions occurred before the agreement was signed, defense counsel objected. The judge sustained the objection on the basis it was outside the written documents.

Sardón also called a certified public accountant in an attempt to establish what would be reasonably expected in a donor/donee relationship in terms of reporting month-to-month expenditures and receipts. Defense counsel objected on the basis the accountant’s opinion was irrelevant because the agreement did not state the reports had to be made with generally acceptable accounting measures or procedures. Again, the judge sustained the objection “as to the documents before the court.” Sardón attempted to question the accountant about reasonable accounting practices in the community for foundations making grants to § 501c.3. corporations but defense counsel’s objection to this line of questioning was sustained.

In response to these objections, Sardón argued the note, mortgage and agreement should be considered by the court as a single document relating to a single transaction. The judge apparently concluded Sardón was required to file a separate count for breach of the agreement and ultimately entered judgment in favor of New Horizons.

Where other instruments are executed contemporaneously with a mortgage and are part of the same transaction, the mortgage may be modified by these other instruments. All the documents should be read together to determine and give effect to the intention of the parties. Boyette v. Carden, 347 So.2d 759 (Fla. 1st DCA 1977). The primary rule of construction of a mortgage is to ascertain the intention of the parties. This can be accomplished not only from the face of the instrument but also from the situation of the parties and the nature and object of the transaction. Huntington Nat’l Bk. v. Merrill Lynch Credit Corp., 779 So.2d 396 (Fla. 2d DCA 2000); Boyette.

Here the mortgage, note and agreement were all executed on the same day by the parties and involved the same transaction. In the note, New Horizons agreed to pay $29,800 each February until the loan was paid in full. In the mortgage, New Horizons agreed to pay the principal and interest provided for in the note when due. However, in the agreement, Sardón agreed to forgive the payment of $29,800 each year if New Horizons met the two requirements set forth in the agreement: 1) provide a statement of receipts and expenditures and a description of activities, and 2) continue to operate in a professional manner.

In its complaint, Sardón alleged a default under the note and mortgage caused by New Horizons’ failure to comply with the requirements set forth in the agreement. As Sardón points out, there is no basis to forgive the yearly payment unless New Horizons complies with the requirements in the parties’ agreement. In order to avoid a default, New Horizons must make the yearly payment (apparently it lacks the financial resources to do so) or comply with paragraph five of the agreement. In sum, the agreement plays an essential role in the transaction, and thus the court should have considered the terms of that agreement, along with the note and mortgage.

On remand, the trial court must attempt to ascertain the intentions of the parties to this transaction in defining the terms of the agreement, to determine if a default has occurred. If the agreement is deemed ambiguous, parol evidence, including the conduct of the parties in their course of dealings, would be admissible to ascertain the parties’ true intent. Brevard County Fair Ass’n, Inc. v. Cocoa Expo, Inc., 832 So.2d 147 (Fla. 5th DCA 2002). In addition, testimony from experts as to common business practices, requirements, and dealings between foundations and grantees (§ 501e.3.corporations), would also be relevant to assist the trial court in interpreting the meaning of the terms used in the agreement. See NCP Lake Power, Inc. v. Florida Power Corp., 781 So.2d 531 (Fla. 5th DCA 2001); D.G.D., Inc. v. Berkowitz, 605 So.2d 496 (Fla. 3d DCA 1992); Southeast Banks Trust Co., N.A. v. Higginbotham Chevrolet-Oldsmobile, Inc., 445 So.2d 347 (Fla. 5th DCA 1984); 17A Am.Jur.2d Contracts § 336, 364 (2d ed. May 2003); 21A Am.Jur.2d Customs and Usages §§ 22, 31, 35, 38 (2d ed. May 2003).

As to the award of attorney’s fees, we reverse on the additional ground that New Horizons waived its entitlement to those fees, by failing to file a pleading requesting them. It is now clearly established that a claim for attorney’s fees, whether based on statute or contract, must be pled. Caufield v. Cantele, 837 So.2d 371 (Fla.2002); Stockman v. Downs, 573 So.2d 835 (Fla.1991).

The purpose of the pleading requirement is notice — by pleading a claim to attorney’s fees, a party notifies the opposing party of the claim and prevents unfair surprise. The existence or nonexistence of a claim for attorney’s fees may often affect the decision whether to pursue, dismiss or settle a claim. For these reasons, a party may not recover attorney’s fees unless he has put the issue into play by filing a pleading seeking fees. If not pled, the claim for attorney’s fees is waived. Caufield; Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So.2d 1261 (Fla.1998); Stockman.

In this case, Sardón filed its mortgage foreclosure complaint in August 2000. In January 2001, New Horizons filed its answer but did not include a claim for attorney’s fees in that pleading. New Horizon never requested fees until its motion for attorney’s fees, filed a year later in January 2002.

A motion is not a pleading. Green; Heartland Fertilizer Co. v. Carpenter, 827 So.2d 1103 (Fla. 2d DCA 2002). Since New Horizons never filed a pleading containing a request for attorney’s fees, New Horizons failed to plead entitlement to attorney’s fees and thus waived any claim it had for attorney’s fees. Heartland Fertilizer.

New Horizons, however, claims Sardón waived any objection to its lack of pleading. In Stockman, the Florida Supreme Court held that where a party has notice that an opponent claims entitlement to fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead. Stockman, 573 So.2d at 838. New Horizons argues this exception is applicable here because the mortgage and note contain attorney’s fees provisions and Sardón never objected to its motion for attorney’s fees.

We rejected a similar argument in Taylor v. T.R. Properties, Inc. of Winter Park, 603 So.2d 1380 (Fla. 5th DCA 1992). In that case, Taylor filed a mechanic’s lien foreclosure action against the owner of a construction site and various other hen holders, including Croson. Croson answered the complaint, alleging priority of its lien but did not request attorney’s fees. Croson later amended its answer and again failed to request attorney’s fees. Several months later, Croson filed a motion for summary judgment which included a request for attorney’s fees. The trial court held Croson was entitled to priority over Taylor’s claim and awarded attorney’s fees to Croson.

On appeal, we reversed the award of attorney’s fees because Croson failed to request attorney’s fees in its pleadings. We also held the exception in Stockman did not apply:

The record in the instant case does not reflect any waiver by Taylor of Cro-son’s failure to include a demand for attorney’s fees in its answer, nor does it reflect any consent on Taylor’s part that would lull Croson into believing that it would be awarded attorney’s fees at some point in the litigation. The first time Croson asked for the fees was in its motion for summary judgment, and there is no requirement in the Florida Rules of Civil Procedure that would require Taylor to respond in any way to that demand prior to the hearing on the motion. Rule 1.510, Florida Rules of Civil Procedure, provides for the serving of opposing affidavits prior to the day of the hearing on the motion, but a review of the records does not indicate any were required in the instant case on the issues of attorney’s fees. It would have assisted this court in reviewing this matter if Taylor had moved to strike, pursuant to rule 1.150, Florida Rules of Civil Procedure, that part of the motion for summary judgment that requested the fees, but he was not burdened by such a requirement.

603 So.2d at 1381. See also Precision Tune Auto Care, Inc. v. Radcliffe, 815 So.2d 708 (Fla. 4th DCA 2002) (plaintiffs were not entitled to attorney’s fees where they failed to plead entitlement in their complaint; plaintiffs cannot avoid this obligation and shift the burden to the defendant by filing a motion for attorney’s fees two weeks before trial and then arguing defendant waived any objection by not obtaining a ruling from the court).

REVERSED and REMANDED; Award of Attorney’s Fees STRICKEN.

PETERSON and PALMER, JJ., concur.


author: THOMPSON, J.

text:
    Jay Cory DENNISON, Appellant, v. Patricia Ann DENNISON, Appellees.
    No. 5D02-744.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.

      Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Janet M. Courtney and Terry C. Young of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee.
   THOMPSON, J.

Jay Cory Dennison (“former husband”) appeals the award of permanent alimony to Patricia Ann Dennison (“former wife”). We reverse.

In the final judgment, the court found that the former husband and former wife were married in 1985. According to the judgment, in 1985, the former husband began acquiring furniture stores. The former wife obtained a computer science degree and was employed as a computer programmer until 1993. After the birth of their second child, the former husband and former wife agreed that the former wife would stay home and raise the children. In 2000, the former wife filed a petition for dissolution of marriage.

In the final judgment, the trial court ordered among other things that the former husband pay the former wife permanent periodic alimony in the amount of $3,000 per month and child support in the amount of $1,500 per month. The court found that the former husband previously had provided the former wife $6,000 to $18,000 per month with which to run the household, but it recognized a change in the economic climate and determined that the former husband’s income was currently $5500 per month. Pursuant to their joint stipulation, the court awarded the former husband and former wife approximately $363,000 each in marital assets.

On appeal, the former husband contends that even if the trial court was justified in awarding permanent alimony, the award should be reversed because the former husband is required to pay 83 percent of his monthly income for child support and alimony. There is no transcript of the hearing in the record on appeal, and issues concerning evidentiary sufficiency and the like are not reviewable where there is no transcript of the trial proceedings or stipulated statement of evidence. However, an error which appears on the face of the final judgment is reviewable. Sugrim v. Sugrim, 649 So.2d 936 (Fla. 5th DCA 1995). Here, the face of the final judgment shows that the cumulative alimony and child support award is excessive. See Casella v. Casella, 569 So.2d 848 (Fla. 4th DCA 1990) (holding that a failure to provide a transcript was not fatal where the judgment showed the trial court committed reversible error in awarding an alimony and child support award which equaled 70% of former husband’s income).

In the instant case, the trial court found that the former husband’s income was $5,500 a month. Based on the trial court’s calculations of the former husband’s income, it is evident the amount awarded for child support and alimony constituted 83 percent of the former husband’s net monthly income. Although an award of alimony or child support standing alone may not be objectionable, the cumulative effect can constitute an abuse of discretion. Gentile v. Gentile, 565 So.2d 820, 822 (Fla. 4th DCA 1990). Awards similar to that made in the instant case have been deemed to be an abuse of discretion. See Sokol v. Sokol, 441 So.2d 682 (Fla. 2d DCA 1983) (holding an award of 71% of husband’s income was an abuse of discretion); Kaylor v. Kaylor, 413 So.2d 870 (Fla. 2d DCA 1982) (holding an award of 70% of husband’s income was an abuse of discretion); Nicholson v. Nicholson, 372 So.2d 178 (Fla. 2d DCA 1979) (holding, an award of 86% of husband’s income was an abuse of discretion); Gentile, 565 So.2d at 822 (holding an award of 79% of the husband’s income for alimony and support was an abuse of discretion, and appellate courts have not hesitated to find an abuse of discretion in similar awards).

We find no merit in the former husband’s argument that the trial court failed to make requisite findings of fact pursuant to section 61.08, Florida Statutes, justifying permanent alimony. One who claims that the trial court abused its discretion in awarding alimony has the burden of presenting a record that will justify the conclusion that the judgment was arbitrary or unreasonable. Cash v. Cash, 691 So.2d 6, 7 (Fla. 5th DCA 1997). In the instant case, the trial court provided a fifteen page judgment with findings of fact that addressed almost every factor of section 61.08, Florida Statutes. Without a transcript, the former husband has failed to show that the trial court was arbitrary or unreasonable in awarding permanent alimony.

Because of the amount of the alimony awarded was excessive, it is reversed, and the cause is remanded for reconsideration.

REVERSED.

SAWAYA, C.J., and HARRIS, C., Senior Judge, concur.


text:
    Sean L. FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2210.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    Sean L. Fisher, Bushnell, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Fisher appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence. He claims the trial court erred by not giving him credit against his prison sentence for time served while he was on community control. The trial court was correct. Fisher is not entitled to credit against his prison sentence for time previously spent on probation or community control. See Young v. State, 697 So.2d 75 (Fla.1997); Toomajan v. State, 785 So.2d 1275 (Fla. 5th DCA 2001).

We also reject Fisher’s argument here because it is similar to a prior motion he filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he claimed he did not receive credit for time served on probation in this case. Thus, this motion is successive and improper, as well as without merit. We warn Fisher against filing additional successive and improper motions seeking collateral relief in this criminal case. Carlisle v. State, 849 So.2d 1146 (Fla. 5th DCA 2003); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

AFFIRMED.

PETERSON and PLEUS, JJ., concur.


author: PER CURIAM. ■

text:
    Joel DELGADO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2242.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    Joel Delgado, Indiantown, Pro Se.
    No appearance for Appellee.
   PER CURIAM. ■

We affirm the defendant’s sentence on the authority of Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). Accord Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002). We certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

AFFIRMED; CONFLICT CERTIFIED.

SHARP, W., PLEUS, and MONACO, JJ., concur.


author: MONACO, J.

text:
    Anthony HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3121.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.

      James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Anthony Houston, was convicted by jury of two counts of sexual battery based on coercion of the victim in violation of section 794.011(4)(b), Florida Statutes (2000). He was adjudged to be a habitual felony offender and sexual predator, and was sentenced for the commission of these crimes to serve two concurrent terms of life in prison. He was also ordered at sentencing to receive medroxy-progesterone acetate (“MPA”), if deemed appropriate and if ever released from prison, pursuant to section 794.0235, Florida Statutes (2000). Houston attacks his judgment and sentence on a number of grounds, only two of which require discussion. First, Houston asserts that similar fact evidence was improperly admitted in evidence at his trial. Second, Houston attacks the constitutionality of section 794.0235. We affirm the judgment and sentence in all respects except for that aspect dealing with the administration of MPA. Because the trial court failed to follow the requirements of the statute authorizing the use of MPA, we reverse that part of the sentence.

SIMILAR FACT EVIDENCE

One of the elements of the offenses that Houston was accused of committing is lack of consent on the part of the victim. Houston was convicted of having coerced sex with a homeless woman who he met at a bus station in the early morning hours on the date of the offense. The defense assertion was that the encounter was consensual. During the course of the trial, evidence of two other coerced sexual encounters with homeless women was introduced by the State. Houston contended that both of those experiences were also consensual. The two women both testified, however, that they were violently forced. Houston objected both pretrial and during trial to the introduction of the evidence of these prior acts on the ground that the testimony was not relevant and amounted to no more than an attempt to prove bad character or a propensity to commit crimes. The trial court overruled these objections. Houston continues to maintain that the introduction of the evidence of the earlier two attacks was erroneous. We disagree.

In general, evidence that is relevant to prove a fact in issue is admissible in accordance with section 90.404(2), Florida Statutes (2002), generally referred to as the Williams rule. That statutory subpart, entitled “Other crimes, wrongs, or acts,” reads in pertinent part as follows:

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Collateral crime evidence is given special evidentiary treatment because of the obvious danger of prejudicing a jury against a criminal defendant based on the bad character of the accused. Specific instances of such conduct is admissible under the statute, however, to prove identity, motive, or any of the other matters listed in section 90.404(2). It is not admissible only to show the bad character or propensity of a defendant to commit crime. See Schwab v. State, 636 So.2d 3 (Fla.), cert. denied, 513 U.S. 950, 115 S.Ct. 364, 130 L.Ed.2d 317 (1994). The evidence of prior sexual batteries on other women may be relevant in this regard to rebut the defense of consent by demonstrating that the defendant had a common plan or scheme to perpetrate the crime. See Williams v. State, 621 So.2d 413 (Fla.1993); Irons v. State, 791 So.2d 1221 (Fla. 5th DCA 2001). We conclude that the evidence was properly admitted in Houston’s trial.

In the present case the victims were all heavy-set middle aged, transient, white females with brown hair. They were alone when approached by Houston, and were attacked within a ten-block area in downtown Orlando. Houston isolated each woman either with a promise of a shortcut or a place not to be bothered by the police. The acts forced on each woman were similar in method and coerced by threats, and in each instance he claimed the consent of the woman.

Similar fact evidence relevant to prove a material fact other than identity need not meet the rigid similarity requirement applied when such evidence is used to prove identity. See Gould v. State, 558 So.2d 481, 485 (Fla. 2d DCA 1990), quashed on other grounds, 577 So.2d 1302 (Fla.1991). There is little doubt in the present case that the evidence of Houston’s collateral crimes was admissible. The points of commonality, taken as a whole, reflect a unique pattern of crime commission by Houston that the jury was entitled to consider on the question of consent.

We, likewise, do not believe that the similar fact evidence became a feature of the trial so that its prejudicial effect outweighed its probative value. The trial judge admitted into evidence only two of nine alleged attacks by Houston on various women sought to be introduced by the State. Moreover, instructions were given to the jury regarding the limited purpose of the evidence, and the sum total of the Williams rule testimony comprised only a small part of the transcript. Finally, the prosecutor did not mention the similar fact evidence in opening, and only briefly touched on it in closing argument.

Accordingly, we find no error in the admission of the collateral crime evidence.

APPLICABILITY OF SECTION 794.0235

Prior to his sentencing, Houston filed a motion seeking to have the trial court declare section 794.0235, Florida Statutes (2000), concerning chemical castration, to be unconstitutional. The primary bases argued by Houston in support of his position are that chemical castration is a “cruel or unusual punishment” viola-tive of Article I, Section 17 of the Florida Constitution, and a “cruel and unusual punishment” violative of the Eighth Amendment to the United States Constitution. Houston argues, additionally, that the statute is overbroad and requires an “extra label” use of MPA.

At sentencing Houston raised his constitutional assertions regarding the statute in a cursory manner and without substantive argument. After sentencing Houston to life terms, the court then announced:

I’m going to deny the motion to hold the M.P.A. statute to be unconstitutional. I don’t think that’s what they had in mind with the M.P.A. amendment. I’m going to order M.P.A., if deemed appropriate, and if he’s ever released.

We conclude that the trial court erred in the imposition of the MPA requirement. Section 794.0235(2)(a) requires that an order sentencing a defendant to MPA treatment shall be:

... contingent upon a determination by a court appointed medical expert, that the defendant is an appropriate candidate for treatment. Such determination is to be made no later than 60 days from the imposition of sentence.

The statute also requires the sentencing court to, “specify the duration of treatment for a specific term of years, or in the discretion of the court, up to the life of the defendant.”

The trial court did not at any time appoint a medical expert to opine on whether Houston is an appropriate candidate for treatment, and failed to specify the duration of treatment in the sentence. As these mandatory requirements of the statute were not satisfied, that portion of the sentence requiring MPA treatment is reversed. The judgment and sentence is otherwise affirmed.

AFFIRMED in part, REVERSED in part.

GRIFFIN and ORFINGER, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

      . In view of the mootness of the issue, we offer no opinion on the constitutionality of section 794.0235, Florida Statutes (2001).


author: PER CURIAM.

text:
    Clellan TYSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5462.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2003.
   PER CURIAM.

Clellan Tyson appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm because Tyson’s motion was facially insufficient.

In his motion, Tyson alleged that his sentencing guidelines scoresheet included seven prior convictions which had been “either dismissed or dropped” and that a corrected scoresheet would dictate a lower sentence. The State responded to the motion and submitted, as exhibits to its response, copies of judgments and sentences entered in some of the challenged cases to support the points scored for prior record. The exhibits were not a part of the trial court record in the proceeding in which the challenged sentence was imposed. The trial court relied upon the exhibits submitted by the State as the basis for denying Tyson’s motion on its merits. The merit of a rule 3.800(a) motion to correct a sentence can, however, be determined only by reference to the record of the proceedings in which the challenged sentence was imposed. It was thus inappropriate for the trial court to consider the extraneous records submitted by the State.

The trial court’s denial of Tyson’s motion was nonetheless correct-albeit not for the reasons articulated by the trial court. Tyson’s motion was facially insufficient because it did not “affirmatively allege!] that the court records [in the instant proceeding] demonstrate on their face an entitlement to th[e] relief’ sought. Fla. R.Crim. P. 3.800(a). The trial court should have denied the motion on the basis of that facial insufficiency.

Ordinarily, the type of error raised by Tyson will not be apparent on the face of the record and therefore will not be a basis for relief under rule 3.800(a). See Lomont v. State, 506 So.2d 1141, 1141-42 (Fla. 2d DCA 1987) (holding that trial court properly denied defendant’s motion asserting claim that prior felonies of which he was not convicted were improperly included in guidelines scoresheet computation because “the error complained of would require an evidentiary determination”); cf. McCullough v. State, 777 So.2d 1091, 1091 (Fla. 2d DCA 2001) (holding that rule 3.800(a) motion alleging improperly calculated scoresheet was cognizable because motion “alleged that the error [could] be determined from a review of [the] presentence investigation report contained in the court record”).

Because we conclude that Tyson’s motion was facially insufficient and that he is therefore not entitled to relief in this instance, we affirm the denial of his motion. Affirmed.

FULMER, DAVIS, and CANADY, JJ., Concur.


author: PLEUS, J.

text:
    WHEELED COACH INDUSTRIES, INC., Appellant, v. Valerie ANNULIS, etc., et al., Appellees.
    No. 5D02-3262.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    M. Gary Toole and Jennifer B. Locke of Cabaniss Smith Toole & Wiggins, PL, Maitland, for Appellant.
    Kenneth G. Fredericksen of Parrish & Fredericksen, P.A., Orlando, and Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellees.
   PLEUS, J.

This appeal arises from a wrongful death action. The decedent was killed at work and thereafter, his estate, by and through his widow, Valerie Annulis (Annu-lis), sued the employer, Wheeled Coach Industries, Inc. (WCI), for intentionally causing his death. WCI appeals the non-final order denying its amended motion for summary judgment. It argues that the trial court erred in denying its motion for summary judgment because the evidence established that Annulis elected the remedy of workers’ compensation and because Annulis failed to plead or prove an intentional tort.

We have jurisdiction to decide the election of remedies issue pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v) and affirm the trial court’s ruling. We decline to address the intentional tort issue for lack of jurisdiction.

The decedent worked as an electrician for WCI which is in the business of converting trucks into emergency vehicles. On May 19, 1999, he was working underneath an idling truck when it moved forward, rolling over and killing him. On May 27, 1999, WCI’s workers’ compensation carrier, Crawford & Company, tendered its first death benefit payment to Annulis, which she accepted. The carrier continued to make payments bi-weekly. On January 4, 2000, Annulis filed a Petition for Alternate Payment Schedule with the Office of the Judges of Compensation Claims (OJCC). The petition sought an order changing the payment schedule from bi-weekly to monthly. The OJCC granted the petition and Annulis continued to receive monthly benefits.

Annulis later filed a wrongful death action against various defendants. The sole count against WCI alleged that WCI “intentionally and secretly kept the defective subject truck in its assembly line despite having knowledge that it had an inoperative parking brake, and defective engine and transmission systems,” and that it ordered the decedent to work underneath the idling truck without warning him of the hazard or providing safety measures to protect him. Annulis also alleged that WCI’s conduct was substantially certain to result in injury or death.

WCI denied the allegations and later filed an Amended Motion for Summary Judgment alleging that Annulis had elected to pursue workers’ compensation benefits and failed to plead or prove an intentional tort. After a hearing, the trial court denied WCI’s motion on both grounds. On the election of remedies issue, the order stated:

In this case, Plaintiff did accept workers’ compensation benefits for her husband’s death. There is no evidence before the Court, however, that Plaintiff filed a claim for such benefits. The only evidence that plaintiff actively pursued workers’ compensation benefits is that she applied for a change in the schedule of when the benefits would be paid to her. As the court in Hernandez [v. United Contractors Corp., 766 So.2d 1249 (Fla. 3d DCA 2000)] found that a plaintiff who filed a claim for workers’ compensation benefits and then settled that claim was not precluded from bringing a wrongful death action against the employer, Hernandez, 766 So.2d at 1252-53, this Court finds that the evidence does not establish that Plaintiff had a conscious intent to elect the workers’ compensation benefits and waive her other rights. Therefore, Wheeled Coach is not entitled to summary judgment on this basis.

Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v) gives the district courts jurisdiction to review non-final orders determining “as a matter of law that a party is not entitled to workers’ compensation immunity.” Interpreting the scope of this rule, the supreme court has held that orders denying summary judgment on a claim of workers’ compensation immunity are not appealable unless the order “specifically states that, as a matter of law, such a defense is not available to a party.” Hastings v. Demming, 694 So.2d 718, 720 (Fla.1997). In a subsequent case, the court characterized the rule another way: that there is no jurisdiction to review such an order unless that order “conclusively and finally determines a party’s nonentitlement to such immunity.” Pizza Hut of America, Inc. v. Miller, 696 So.2d 340, 341 (Fla.1997).

After reviewing the order, we conclude that the order finally and conclusively determines that WCI cannot claim workers’ compensation immunity. The operative facts are un-controverted. Annulis did not file a claim for workers’ compensation benefits. Instead, WCI’s carrier voluntarily sent her benefits every two weeks. Annulis successfully petitioned to change the schedule of payments from every two weeks to once a month. Based on these undisputed facts, the trial court correctly applied Florida case law and concluded that Annulis did not actively pursue benefits, and thus WCI was not entitled to assert workers’ compensation immunity. Accordingly, this court has jurisdiction to review the order under Rule 9.130(a)(3)(C)(v). Hastings; Miller; Sch. Bd. of Broward County v. Victorin, 767 So.2d 551 (Fla. 4th DCA 2000) rev. denied, 786 So.2d 581 (Fla.2001) (accepting jurisdiction under Rule 9.130(a)(3)(C)(v) where order denying summary judgment on workers’ compensation immunity issue was decided on undisputed facts).

We also conclude that the trial court correctly determined that WCI failed to establish that Annulis made an election of remedies. The trial court noted that an employer can claim immunity based on election of remedies only when “the injured party actively pursues and receives workers’ compensation benefits,” quoting Michael v. Centex-Rooney Constr. Co., 645 So.2d 133, 135 (Fla. 4th DCA 1994). The court then cited several cases for the proposition that mere acceptance of workers’ compensation benefits does not constitute an election of remedies and does not preclude a subsequent intentional tort suit. Hernandez v. United Contractors Corp., 766 So.2d 1249 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653 (Fla. 1st DCA 1995), rev. denied, 659 So.2d 1087 (Fla.1995); Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183 (Fla. 2d DCA 1991); Velez v. Oxford Dev. Co., 457 So.2d 1388 (Fla. 3d DCA 1984), rev. denied, 467 So.2d 1000 (Fla.1985). Based on the undisputed facts, the trial court concluded that Annu-lis did not actively pursue workers’ compensation benefits.

On appeal, WCI attempts to distinguish these cases by mischaracterizing the undisputed facts in the instant case. WCI argues that Annulis “initiated a claim,” “succeeded with her workers’ compensation claim,” and “acknowledged that Mr. Annulis’ death was an accident.” There is no factual evidence to support these assertions. The trial court found that Annulis’ action of petitioning to change the schedule of payments did not evince a conscious intent to elect workers’ compensation benefits or to waive her other rights. Acceptance of payments did not constitute a petition for benefits, as defined in section 440.192, Florida Statutes. Moreover, the order granting the rescheduling of payments cannot be considered a conclusion on the merits or a final compensation order, as defined in section 440.25(4)(e). The undisputed facts are that Annulis never filed a claim for benefits, acknowledged her husband’s death was an accident, or proceeded to a conclusion on the merits in the workers’ compensation case.

The case of Lowry v. Logan, 650 So.2d at 653, is instructive. In that case, the appellate court noted that the workers’ compensation carrier voluntarily paid the plaintiffs medical bills and disability benefits without the plaintiff ever filing a claim for benefits. During this time, the plaintiff was required to fill out and sign temporary partial/wage-loss forms in order to continue receiving benefits. Yet despite the plaintiffs having accepted benefits and filling out wage-loss forms, the appellate court found that he was not precluded from filing a tort action because the workers’ compensation case was not pursued to a conclusion on the merits. The court reasoned that:

Consistent with the rule of law that to constitute an election of remedies the workers’ compensation remedy must be pursued to a determination or conclusion on the merits, Florida courts also hold that mere acceptance by a claimant of some compensation benefits is not enough to constitute an election. There must be evidence of a conscious intent by the claimant to elect the compensation remedy and to waive his other rights.

Id. at 657.

Thus, even if Annulis’ request to reschedule payments constituted a petition for benefits, she would not be precluded from filing suit because she did not pursue the workers’ compensation claim to a conclusion on the merits. Accordingly, the trial court did not err in denying WCI’s motion for summary judgment on its election of remedies claim.

We decline to address the intentional tort issue for lack of jurisdiction under rule 9.130(a)(3)(C)(v) because the court did not make a conclusive and final determination, as a matter of law, that an intentional tort was proven. Hastings, 694 So.2d at 720. Rather, the court decided that genuine issues of material fact existed on this issue. Jurisdiction does not lie under rule 9.030(b)(2)(A) either, because “certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla.1987).

AFFIRMED.

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

      . In addition to WCI, Annulis sued the manufacturers and distributors of certain products involved in the manufacture and conversion process.


text:
    Anthony WILLIAMS, Appellant, v. STATE of Florida, Appellee. Henry Polite, Appellant, v. State of Florida, Appellee.
    Nos. 5D03-3, 5D03-1086.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.

      James B. Gibson, Public Defender, and Scott Ragan and Nancy Ryan, Assistant Public Defenders, Daytona Beach, for Appellants.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTIONS TO WITHDRAW

MONACO, J.

The appellees, Anthony Williams and Henry Polite, have both been involuntarily civilly committed under the Jimmy Ryce Act, sections 394.910-394.931, Florida Statutes (2001), after having been tried by jury. Each appeals the final judgment of commitment rendered in his individual case. We consider these cases together because they raise a common question of procedure.

In each case the public defender has filed a brief in accordance with the process outlined by the Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and moved to withdraw. We write to address the issue of whether the Anders procedure applies to Jimmy Ryce cases. We conclude that it does.

The United States Supreme Court held in Anders that when appointed counsel moves to withdraw from representation of a criminal defendant on the ground that counsel finds the appeal to be wholly frivolous, the motion to withdraw is to be accompanied by a brief that refers to anything in the record that might arguably support an appeal. Thereafter, the appellate court is required to examine the record on appeal to the extent necessary to discover any errors apparent on the face of the record. If the appellate court independently finds an issue that is arguable on the merits, counsel is directed to file supplemental briefs addressing that issue for the benefit of the court. See State v. Causey, 503 So.2d 321 (Fla.1987).

Although the State Attorney is responsible for filing petitions seeking involuntary civil commitment, and although the public defender is required by statute to be assigned to represent persons who the state seeks to civilly commit, the Jimmy Ryce Act is deemed to be civil in nature, rather than criminal. See §§ 394.911, .9135, and .916, Fla. Stat. (2001); Westerheide v. State, 831 So.2d 93 (Fla.2002). As Anders was a criminal case, we must determine whether it applies to this civil proceeding.

Our task is made easier by the opinion of the Florida Supreme Court in Pullen v. State, 802 So.2d 1113 (Fla.2001), cert. denied, 536 U.S. 915, 122 S.Ct. 2381, 153 L.Ed.2d 199 (2002). There, the Court held that the Anders procedure is to be used in appeals of involuntary civil commitments under the Baker Act, § 394.451-394.4789, Fla. Stat. (2001). In broad terms, the Baker Act provides a procedure for the short-term commitment of persons who are found to be mentally ill, and who, because of the illness, present a threat of substantial harm to their own well-being, or present a danger that the patient will inflict serious bodily harm on himself or herself or on others. See § 394.467(1), Fla. Stat. (2001).

The Supreme Court in Pullen first determined that an individual who faces involuntary commitment to a mental health facility has a “liberty interest” at stake. Pullen at 1116. Obviously, a person who is involuntarily restrained in a medical facility suffers some curtailment of his or her liberty. The Court concluded by finding that “the fundamental right of liberty is implicated in both criminal proceedings and involuntary civil commitments,” and held that the Anders procedure must be applied to involuntary civil commitments under the Baker Act. Pullen at 1119-1120.

It is the “liberty interest” of the affected party that appears to be the critical element. In N.S.H. v. Florida Dept. of Children and Family Servs., 843 So.2d 898 (Fla.2003), the supreme court declined to extend the Anders procedure to cases involving the termination of parental rights. In reaching this conclusion the Court noted, among other things, that termination cases, although of enormous importance, do not involve the loss of physical liberty.

If Anders applies to Baker Act cases, then it clearly applies to cases arising out of the Jimmy Ryce Act. The Supreme Court has determined that the fundamental right of liberty is curtailed by the short-term hospitalization of persons pursuant to the Baker Act, and that the An-ders procedure is, therefore, appropriate. Given that determination, it appears that the curtailment of liberty for extended periods under the Jimmy Ryce Act should compel the Anders review process.

Persons determined to be sexually violent predators under the Jimmy Ryce Act are committed to the custody of the Department of Children and Family Services, and are required to be housed in a “secure” facility,

[ F]or control, care, and treatment until such time as the person’s mental abnormality or personality disorder has so changed that it is safe for the person to be at large.

§ 394.917(2), Fla. Stat. (2001). The person committed is then periodically examined to determine whether he or she may safely be released into society. Potentially, therefore, a person committed under this procedure could be held in a secure facility for the remainder of that person’s life. See § 394.918, Fla. Stat. (2001). Clearly, therefore, the liberty interest at stake in Jimmy Ryce Act cases justifies the application of the Anders procedure.

Indeed, the only justification for not using the Anders review process is the increased workload that it places on appellate courts, and the concomitant delay in bringing these cases to a conclusion. When weighed against the curtailment of personal liberty resulting from a possible lifetime commitment, however, workload and time considerations must give way. We, therefore, approve the use of the An-ders procedure in appeals from Jimmy Ryce Act civil commitments. A separate Anders order, therefore, will be issued in each appeal. Because we may have misinterpreted the scope of Pullen, however, we also certify to the Florida Supreme Court the following question as one of great public importance:

ARE THE ANDERS PROCEDURES APPLICABLE TO CRIMINAL CASES TO BE FOLLOWED IN CASES INVOLVING APPEALS FROM JIMMY RYCE ACT COMMITMENT ORDERS?

ORFINGER and TORPY, JJ., concur.