author: PER CURIAM.

text:
    Ex parte Earl MANASSA. (In re State of Alabama v. Earl Manassa).
    CR-02-1869.
    Court of Criminal Appeals of Alabama.
    Aug. 8, 2003.

      Sidney M. Harrell, Jr., Mobile; and Paul Bradley Murray, Mobile, for petitioner.
    Submitted on petitioner’s brief only.
   PER CURIAM.

The petitioner, Earl Manassa, filed this petition for a writ of mandamus directing Judge John R. Lockett to grant his motion to dismiss the indictment returned against him by a Mobile County grand jury. Ma-nassa was indicted for capital murder for allegedly killing six-year-old Kearis Bon-ham, who was in a dwelling, as a result of a shot aimed at police officers that misfired. Manassa moved to dismiss the indictment, arguing that the doctrine of transferred intent was not applicable in a capital-murder case. Judge Lockett denied the motion and cited this Court’s decision in State v. Phillips, 842 So.2d 27 (Ala.Crim.App.2002), in its order. Manassa then filed this mandamus petition.

Judge Lockett denied the motion to dismiss on June 3, 2003. This petition was filed on July 17, 2003. Rule 21(a), Ala. RIApp.P., states that a petition for a writ of mandamus, prohibition or other extraordinary writ should be filed in the reviewing court within a “presumptively reasonable” time. That rule further states:

“The presumptively reasonable time for filing a petition seeking review of an order of a trial court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it wás filed beyond' the presumptively reasonable time.”

This petition was filed 44 days after Judge Lockett’s ruling on the motion to dismiss. The ' certificate of service that accompanies Manassa’s petition is dated July 15, 2003 — 42 days after Judge Lock-ett’s ruling. Rule 25, Ala.R.App.P., gives a filing party the benefit of the mailing date only when the papers are mailed by certified, registered, or express mail. Rule 25(a) states:

“Papers required or permitted to be filed in an appellate court shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the papers are received by the clerk within the time fixed for filing, except that papers shall be deemed filed on the day of mailing if certified, registered, or express mail of the United States Postal Service is utilized.”

Manassa’s certificate of service does not show that certified, registered, or express mail was used to mail the petition. Ma-nassa’s petition was untimely. Moreover, the petition contains no explanation as to why it was filed outside the presumptively reasonable time.

In Ex parte Davis, 834 So.2d 830 (Ala.Crim.App.2002), this Court quoted the “Committee Comments to Amendments to Rule 21(a) and 21(e)(4)[, Ala.R.App.P.,] Effective September 1, 2000,” and noted that when determining whether an appellate court should accept a petition filed outside the presumptively reasonable time, a court should weigh

“ ‘factors such as the prejudice to the petitioner of the court’s not accepting the petition and the prejudice to the opposing party of the court’s accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged.’ ”

834 So.2d at 833.

In applying those factors to this case, we note that the issue raised in this petition is whether Manassa may be indicted for capital murder based on the doctrine of transferred intent. In State v. Phillips, supra, this Court addressed this specific question as it related to one of Manassa’s codefen-dants. In Phillips, the State appealed a trial court’s ruling allowing Phillips to' be released on bail. Phillips argued that-he was entitled to bail because the State erroneously relied on the doctrine of transferred intent- — -a doctrine that did not apply to capital cases. In reversing the trial court’s order granting bail and holding that the doctrine of transferred intent applied to the facts of the case, we stated:

“The Alabama Supreme Court and this Court have on more than one occasion held that the doctrine of transferred intent applies to capital offenses. See Ex parte Jackson, [614 So.2d 405 (Ala.1993) ]; Smith v. State, [Ms. CR-97-1258, December 22, 2000] — So.2d - (Ala.Crim.App.2000); Living v. State, 796 So.2d 1121 (Ala.Crim.App.2000); Farrior v. State, 728 So.2d 691 (Ala.Crim.App.1998).
“The Alabama Supreme Court in Jackson first addressed the doctrine of transferred intent and its relationship to capital offenses. The Court granted mandamus relief and ordered the trial court to dismiss the capital-murder charges against Jackson because the person killed was not in a motor vehicle — as alleged in the indictment. The indictment charging Jackson' with violating § 13A-5-40(a)(17), Ala.Code 1975, specifically alleged that Jackson attempted to kill George Prickett by shooting Prickett while Prickett was in an automobile and that, thereby, Jackson caused the death of Alisha Desha Roberts, who was not in a motor vehicle. The Court explained:
“ ‘Under the facts alleged in the indictment, Jackson’s intent to kill Prickett can certainly be “transferred” to the conduct that actually resulted in the death of Roberts. However, Prickett’s location (in a motor vehicle) cannot be “transferred” to Roberts so as to elevate the crime to capital murder.
“ ‘First, the clear statutory language of § 13A-5-40(a)(17), considered together with § 13A-5-40(b) and § 13A-6-2(a)(l), does not yield that result. Section 13A-5^40(b) refers to § 13A-6-2(a)(l) for the definition of “murder”; and § 13A-6-2(a)(l) codifies the doctrine of transferred intent in that definition. However, § 13A-5-40(a)(17) makes a “murder” capital only when “the victim is killed while in a motor vehicle.” That is, that section defines a factual circumstance rather than merely a state, of mind; and that factual circumstance is not present in this case. Prickett was not “killed” and Roberts was not “in a motor vehicle.” ’
614 So.2d at 407. The capital-murder indictment in Jackson was dismissed not because the doctrine of transferred intent was inapplicable to Jackson’s conduct that resulted in the victim’s death, but because the victim, when she was shot and killed, was not inside a motor vehicle, as provided under the statute defining the offense for which Jackson had been indicted. The Supreme Court noted in Jackson that § 13A-5-40(a)(17) ‘defines a factual circumstance’ that was not present in the case. The Alabama Supreme Court did not reject the doctrine of transferred intent, but rather the doctrine of transferred location.
“We have not construed Jackson as narrowly as the interpretation urged by the appellees. We have not held that the doctrine of transferred intent applies only to those situations involving the same definition of capital murder, i.e., where a" defendant intended to shoot one occupant of a vehicle but instead shot and killed another occupant of the vehicle....
“Here, the person actually killed was a six-year-old boy inside a dwelling. Section 13A-5-40(a)(15) defines a capital offense as the murder of an individual under 14 years of age. Section 13A-5-40(a)(16) defines a capital offense as the murder of an individual by use of a deadly weapon fired from outside a dwelling while the victim is inside the dwelling. The factual circumstances surrpunding the victim’s murder constituted a capital offense. - It is not a murder that defines an offense as capital but the factual circumstances surrounding the murder. The Alabama Supreme Court’s holding in Jackson recognized that the doctrine of transferred intent may apply to- transfer the intent to kill from one. individual to another but that the doctrine will not operate to transfer the factual circumstances surrounding the. murder. This is not a situation where to constitute a capital offense the circumstances surrounding the shooting of the intended victims (police officers) was transferred to the actual victim. Indeed, had one of the officers died, the offense relating to that killing could be murder made capital because the victim was a police officer who was on duty at the time of the killing. This case is not governed by the Supreme Court’s holding in Jackson.
“The trial court incorrectly held that the doctrine of transferred intent did not apply to the facts present in the complaints filed against the appellees. The appellees were lawfully charged with capital offenses. The trial court’s ruling granting habeas corpus relief to the ap-pellees is due to be, and is hereby, reversed, and the case remanded for an order or proceedings consistent with this opinion.”

842 So.2d at 28-30 (footnote omitted).

Based on our holding in Phillips that the doctrine of transferred intent was applicable to the facts presented in this case, Manassa can establish no prejudice in this Court’s failure to accept this untimely mandamus petition. Moreover, if Manassa disagrees with the holding in Phillips, as it appears he does from his mandamus petition, then the appropriate vehicle to argue a change in the law is on direct appeal if, and when, Manassa is convicted. A writ of mandamus will not issue unless the petitioner has a clear legal right to the relief sought. See Ex parte Davidson, 786 So.2d 1146 (Ala.Crim.App.1999). Judge Lockett faithfully applied the law as set out in our opinion in Phillips.

Because this cause was untimely filed, this petition is due to be dismissed for failure to comply with Rule 21(a), Ala. R.App.P.

PETITION DISMISSED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . The appellees in Phillips — Shanta Phillips, Vanda Gilmore, and Lamont Graves — are Ma-nassa’s codefendants.

      . Rule 4(b)(1), Ala.R.App.P., states that the time for filing notice of appeal from a criminal conviction is 42 days from the date of sentencing.

      .Manassa’s certificate of service states, in part, "I hereby certify that I have served a true and correct copy of the foregoing ... by depositing a copy of same in the United States mail....”

      . Phillips appealed our ruling to the Alabama Supreme Court and that Court denied certio-rari review on August 16, 2002.


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Gregory GIBBONS v. STATE of Alabama.
    CR-02-0445.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Gregory Gibbons, pro se.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   WISE, Judge.

Gregory Gibbons appeals from the circuit court’s revocation of his probation. The record reveals that on January 4, 2001, Gibbons pleaded guilty to one count of promoting prison contraband in the second degree, a violation of § 13A-10-37, Ala.Code 1975, and a Class C felony. He was sentenced to 15 years’ imprisonment and was ordered to complete the Department of Corrections substance-abuse program. On September 25, 2001, the circuit court suspended Gibbons’s sentence and placed him on supervised probation for four years.

On September 3, 2002, Gibbons’s probation officer filed a delinquency report, alleging that Gibbons had violated a condition of. his probation by being arrested for two charges, of unlawful distribution of a controlled substance. On October 17, 2002, Gibbons appeared before the circuit court and denied that he had committed the alleged offenses. When Gibbons attempted to-make additional comments to the court concerning his case, the court stated, “[D]on’t tell me anything, because your lawyer’s not here. We will have a hearing on this on [November 14].”

On November 14, 2002, Gibbons, appeared before the circuit court for a second time. Despite the court’s statement at the October 17 proceeding regarding Gibbons’s lawyer, Gibbons was not represented by counsel and was not advised of his right to request counsel. Gibbons again denied the allegations contained in the delinquency report. The court then heard testimony from Jeff Moore, an agent with the Central Alabama Drug Task Force, concerning the details of the offense. Agent Moore testified, that on June 17, 2002, .he was participating in an investigation of Gibbons. Specifically, Moore stated:

“I was doing an undercover , operation in the Westend area in Clanton, Alabama on 14th Street. As it stands right now, I believe Mr. Gibbons has approximately six distribution cases on him, which is over an amount that we usually :try to get on them to show an extended period of drug sales. The reason Mr. Gibbons . was picked up prior to Grand Jury was because he was so demanding in that area that we had to have him picked up before we could move on to another suspect.”

(R. 8.)

Following Agent Moore’s testimony, Gibbons told the court: “My folks are here and want to try to get me in a rehab and try to get me some help.” He further stated that anything he had done was because “I was only trying to support my habit.” The circuit court revoked Gibbons’s probation and reinstated the original 15-year sentence. Gibbons filed a notice of appeal, in which he claimed that his rights had been violated because he was not represented by counsel during his revocation hearing.

“[T]here is no automatic right to counsel in a probation revocation proceeding.” Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000) (citing Spence v. State, 766 So.2d 206, 207 (Ala.Crim.App.1999)). Whether a probationer is entitled to counsel is determined on a case-by-case basis. See Law, 778 So.2d at 250; Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

Rule 27.6(b), Ala.R.Crim.P., provides:

“The probationer is entitled to be present at the hearing and to be represented by counsel. Counsel will be appointed to represent an indigent probationer upon request:
“(1) If the probationer makes a color-able claim that the probationer has not committed the alleged violation of the conditions or regulations of-probation or the instructions issued by the probation officer; or
“(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.”

In Law v. State, we held:

‘[A] trial court’s failure to inform an accused of his right to request counsel is not necessarily fatal to its case. “Unless [the probationer’s] revocation proceeding was one wherein the actual appointment of counsel was necessary to satisfy applicable due process requirements of fundamental fairness, then he would not have been entitled to have his request for counsel honored and the mere failure to have informed him of the right to make such a request could not have harmed him.” Vaughn [v. Rutledge, 265 Ga. 773,] 774-775(3), 462 S.E.2d 132 [(1995)]. However, the trial, court must make the initial determination as to whether a probationer is entitled to counsel based upon the guidelines set forth in Gagnon [v. Scarpelli, 411 U.S. 778 (1973)]. Id. at 774-775(3), 462 S.E.2d 132. Because the trial court in that case failed to do so, ■ we must remand this case to the trial court for such a determination.’ ”

778 So.2d at 251 (quoting Kitchens v. State, 234 Ga.App. 785, 787, 508 S.E.2d 176, 179 (1998)).

Here, the record is ambiguous as to whether the circuit court made a determination concerning Gibbons’s right to counsel. Although the court initially cautioned Gibbons not make any statements at his initial appearance because his counsel was not present, no further mention of Gibbons’s right to counsel was made at his revocation hearing. Nor does the record indicate that the circuit court made an initial determination whether Gibbons would, in fact, have been entitled to counsel. Accordingly, we remand this case for the circuit court to make such a determination. If the circuit court determines that counsel was not necessary in these proceedings, it should set forth its findings in a written order. In the event that the circuit court determines that, in accordance with Rule 27.6(b), Ala.R.Crim.P., Gibbons raised a colorable claim or that substantial reasons exist to appoint counsel, and that he would have been entitled to counsel, the circuit court shall conduct a new probation-revocation proceeding informing Gibbons of his right to request counsel, in accordance with the guidelines set forth in Gagnon v. Scarpelli. The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to this Court within 56 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, p.j„ and COBB, BASCHAB, and SHAW, JJ., concur.

      . Although Gibbons's sentence appears to exceed the maximum range for a sentence for a Class C felony, our records reveal that Gibbons has at least two prior felony convictions; thus, he was sentenced as a habitual felony offender. Therefore, his 15-year sentence is a valid sentence. Gibbons v. State, 676 So.2d 956 (Ala.Crim.App.1995). See Nettles v. State, 731 So.2d 626, 629 (Ala.Crim.App.1998); Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992) (this Court may take judicial notice of its own records). , -


text:
    SYNTHEON, L.L.C., a Florida Limited Liability Company, Syntheon Manufacturing, L.L.C. a Florida Limited Liability Company, Thomas Bales, Scott Jahrmarkt, Charles Slater and Kevin Smith, Petitioners v. SCILOGY CORPORATION f/k/a General Science & Technology Corp., and Boston Scientific Corporation, Respondents.
    No. 3B03-598.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.
    Feldman, Gale & Weber and James A. Gale and Lawrence S. Gordon and Samuel A. Lewis and Stephanie C. Alvarez, Miami, for petitioners Syntheon.
    Mitrani, Rynor, Adamsky & Macaulay and Loren H. Cohen, Miami, for respondents.
    Before SCHWARTZ, C.J., and WELLS, J„ and WARREN H. COBB, Senior Judge.
   PER CURIAM.

The petition for writ of certiorari is hereby denied on the merits.


text:
    Maurice HOLLOMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3818.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2004.
    Rehearing Denied Aug. 12, 2004.
    Maurice Holloman, Sneads, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Tucker v. State, 726 So.2d 768 (Fla.1999); Koch v. State, 874 So.2d 606 (Fla. 5th DCA Feb.13, 2004).

PLEUS, MONACO and TORPY, JJ., concur.


author: FLETCHER, Judge.

text:
    CITY OF MIAMI, Appellant/Cross-Appellee, v. Robert CASE, et al., Appellees/Cross-Appellants.
    Nos. 3D00-2780, 3D00-2807.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Rehearing and Rehearing En Banc Denied Sept. 22, 2004.

      Alejandro Vilarello, City Attorney, and Henry J. Hunnefeld and Myrna D. Brick-er, Assistant City Attorneys; Theresa L. Girten and Lauri Waldman Ross, Miami, for appellanVcross-appellee.
    Jerome H. Wolfson; Ronald J. Cohen, Miami Lakes, for appellees/cross-appel-lants.
    Before COPE, GODERICH, and FLETCHER, JJ.
   FLETCHER, Judge.

These appeals arise from a breach of contract class action filed by retired City of Miami employees who continued their participation in the City’s group health insurance plan after their retirement. The issue is whether the forms signed by the employees upon their retirement contractually obligated the City to provide group health insurance coverage to the retirees and their dependents in perpetuity at a fixed rate. For the following reasons, we reverse the final summary judgment which determined the issue in favor of the retirees.

As part of its retirement process, the City extended to eligible employees the opportunity to continue their group health insurance coverage. During the time period relevant to this class action (approximately 1971-1983), the City asked those employees who were retiring to fill out and sign a short form, which varied somewhat through the years. The form basically asked the employees if they wished to continue participating in the health insurance program and, if so, to authorize the deduction of their health insurance premiums from their pension checks. The premium amounts shown on the forms were the employees’ contributions in effect on the date of their retirement.

In 1982, the City increased the health insurance premiums for both its active employees and participating retirees. Thereafter the insurance fund was reviewed annually and subsequent changes to the employees’ and retirees’ contributions were made when the changes became necessary by rising health costs. The instant action challenging the rate increases was filed by several retirees or their survivors. They claim that the forms the employees signed at the time of their retirement, together with the annual booklets describing the plan benefits, constituted binding contracts which permanently fixed their monthly premiums at the rate indicated therein. After considering motions and memoranda of law filed by both sides, the trial court granted summary judgment to. some of the plaintiffs. In so ruling, the trial court found the forms signed by the retirees to be enforceable contracts, which, in the absence of any mention of future premium increases; bound the City to provide insurance coverage to the retirees indefinitely in accordance with the rates stated in the forms. The final summary judgment was appealed by both the City and the excluded retirees.

We look to a well-established principle of contract law for resolution of the issue presented herein. In order for there to be a legally enforceable agreement, whether oral or in writing, the parties must have had a meeting of the minds, i.e., an agreement, as to its essential terms. See, e.g., Winter Haven Citrus Growers Ass’n v. Campbell & Sons Fruit Co., 773 So.2d 96 (Fla. 2d DCA 2000); Metropolitan Dade County v. Estate of Merida Hernandez, 591 So.2d 1124 (Fla. 3d DCA 1992); David v. Richman, 528 So.2d 25 (Fla. 3d DCA 1988). In reviewing the various forms signed by the retirees, we clearly identify an authorization by the retirees to have their contribution or premium for health insurance coverage deducted .from their pension payments. While the forms included either the amount paid by the retiree as a contribution or premium, or an election by the retiree of the desired coverage and corresponding premium, with the amount shown as that in effect at the time of retirement, this information was necessary in order for the correct deduction to be made from each retiree’s pension payment. The forms simply gave the retirees who wished to continue participating in the City’s health insurance plan a method for paying their contribution or premium cost. There is nothing in the forms whereby one could conclude that the parties agreed that the contribution or premium amount shown on the form would continue unchanged.

The judgment below is reversed and the case remanded for such further action as is consistent with this opinion.

      . The trial court limited the judgment to the class of members who retired prior to June 15, 1976, those who retired between October 1, 1980 and June 21, 1981, and those who retired after June 22, 1981, with damages in the latter group limited to retirees and not their dependents.


text:
    Louis F. SELL, Appellant, v. Marilyn Rae SELL, Appellee.
    No. 3D04-724.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Rehearing Denied Sept. 24, 2004.
    Frigola, DeVane Dorl, and William N. DeVane, Jr., Marathon, and' Edna L. Caruso,West Palm Beach, for appellant.
    Rudolph .Leacock, LLP, and Howard Rudolph, and David Leacock, West Palm Beach; and Sheri Smallwood, Chartered, Sheri Smallwood, Key West, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

ON MOTION TO DISMISS GRANTED

We grant appellee Marilyn Rae Sell’s Motion to Dismiss this appeal. Rodriguez v. Rodriguez, 640 So.2d 138 (Fla. 3d DCA 1994); Gazil v. Gazil, 343 So.2d 595, 597 (Fla.1977) (“Where the appellant has disobeyed an order of the trial court, the appellate court may, in its discretion, either entertain or dismiss an appeal.”); McLemore v. McLemore, 567 So.2d 23, 24 (Fla. 1st DCA 1990); Segall v. Downtown Assocs., 546 So.2d 11, 12 (Fla. 3d DCA 1989); Keidaish v. Smith, 400 So.2d 90, 91 (Fla. 2d DCA 1981). An appellate court, however, should ordinarily provide a grace period prior to dismissing the appeal, within which time the appellant may comply with the violated trial court order and thereby prevent dismissal. See Davidson v. District Court of Appeal, Fourth Dist., 501 So.2d 603, 604 (Fla.1987); Pasin v. Pasin, 517 So.2d 742 (Fla. 4th DCA 1987). We therefore stay this dismissal for a period of ten (10) days to comply with the trial court’s order, or post the previously ordered bond.


text:
    The STATE of Florida, Appellant, v. O’Neal BRYANT, Appellee.
    No. 3D04-72.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Rehearing and Rehearing En Banc Denied Sept. 24, 2004.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, and Adrienne Sampson, Certified Legal Intern, for appellant.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and GODERICH, JJ., and DELL, JOHN W., Senior Judge., JJ. ■
   PER CURIAM.

The State of Florida appeals the imposition of the downward departure sentence of the defendant, O’Neal Bryant. We reverse and remand.

The defendant was charged with burglary of an unoccupied conveyance and grand theft. The defendant pled guilty to both charges. Over the State’s objection, the trial court sentenced the defendant to a downward departure sentence without providing either oral or written reasons.

As the State correctly argues, the trial court reversibly erred by failing to provide either oral or written reasons for the downward departure. State v. White, 842 So.2d 257 (Fla. 1st DCA 2003); State v. Johnson, 796 So.2d 1213 (Fla. 3d DCA 2001). As such, “we reverse the downward departure sentence and remand with instructions to allow the defendant to either withdraw his plea and proceed to trial or be re-sentenced pursuant to the guidelines. Our ruling is without prejudice to the trial court to revisit the issue of downward departure on a more fully developed record.” State v. Paulk, 813 So.2d 152 (Fla. 3d DCA 2002) (citations omitted).

Reversed and remanded with instructions.


author: WARNER, J.

text:
    Victor ORTIZ, Appellants, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 4D03-1763.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    William E. Williams and J. Andrew Ber-tron, Jr. of Huey, Gilday, Tucker, Schwartz & Williams, P.A., Tallahassee, for appellant.
    Charles J. Crist, Jr., Attorney General, and Edward A. Tellechea, Assistant Attorney General, Tallahassee, for appellee Board of Medicine.
   WARNER, J.

Appellant, a cértified registered nurse anesthetist, (“CRNA”) challenges Administrative Rule 64B8-9.009(6)(b)l.a., adopted by the Board of Medicine (“Board”), which requires a surgeon in an outpatient facility to have a licensed M.D. or D.O. anesthesiologist present to supervise the- administration of anesthesia. He argues that the Board exceeded its delegated grant of authority when promulgating the rule, and the rule contravenes a specific statutory prohibition under section 458.303(2), Florida Statutes (2002). The administrative law judge determined that the Board acted within its authority when adopting the rule. However, we disagree and conclude that the Board exceeded its delegated authority. We therefore reverse.

Section 464.012, Florida Statutes (2002), of Chapter 464 governing the nursing profession, provides the criteria for becoming an advanced registered nurse practitioner, including a CRNA. Those requirements include a current license to practice nursing and one or more of the following requirements:

(a) Satisfactory completion of a formal postbasic educational program of at least one academic year, the primary purpose of which is to prepare nurses for advanced or specialized practice.
(b) Certification by an appropriate specialty board. Such certification shall be required for initial state certification and any recertification as a registered nurse anesthetist or nurse midwife. The board may by rule provide for provisional state certification of graduate nurse anesthetists and nurse midwives for a period of time determined to be appropriate for preparing for and passing the national certification examination.
(c) Graduation from a program leading to a master’s degree in a nursing clinical specialty area with preparation in specialized practitioner skills.

§ 464.012(1). When a CRNA receives that advanced license, he or she may, “to the extent authorized by established protocol approved by the medical staff of the facility in which the anesthetic service is performed,” perform a variety of medical procedures connected with the administration of anesthesia. § 464.012(4)(a).

Chapter 458 governs the practice of medicine in the state. The Legislature created the Board of Medicine to regulate physicians, See § 458.307, Fla. Stat. (2002). It conferred rulemaking authority on the Board “to implement the provisions of this chapter conferring duties upon it.” See § 458.309(1), Fla. Stat. (2002). However, in section 458.303(2), the Legislature limited the Board’s rulemaking function as follows:

Nothing in ... s. 458.309 or s. 458.331 ... shall be construed to prohibit any service rendered by a registered nurse or a licensed practical nurse, if such service is rendered under the direct supervision and control of a licensed physician who provides specific direction for any service to be performed and gives final approval to all services performed.

To insure that physicians do not practice beyond their .level of competency, the Legislature gave the Board the authority to establish rules governing standards of practice. Section 458.331, Florida Statutes (2002), sets forth grounds for disciplinary action. Section 458.331(1) lists acts that “constitute grounds for denial of a license or disciplinary action,” including:

(v) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform. The board may establish by rule standards of practice and standards of care for particular practice settings, including, but not limited to, education and training, equipment and supplies, medications including anesthetics, assistance of and delegation to other personnel, transfer agreements, sterilization, records, performance of complex or multiple proce dures, informed consent, and policy and procedure manuals.

(Emphasis added). Pursuant to that authority, the Board adopted standards of care for surgeons practicing in an office setting. See Fla. Admin. Code R. 64B8-9.009. It set different standards depending upon the level of surgery being performed. For level III surgery, the most complicated surgery which can be performed in an office setting, the Board enacted the following rule regarding training:

The surgeon must have staff privileges at a licensed .hospital to perform the same procedure in that hospital as that being performed in the office setting or must be able to document satisfactory completion of training such as Board certification or Board qualification by a Board approved by the American Board of Medical Specialties or any other board approved by the Board of Medicine or must be able to demonstrate to the accrediting organization or to the Department comparable background, training and experience. In addition, the surgeon must have knowledge of the principles of general anesthesia. If the ' anesthesia provider is not an anesthesiologist, there must be a licensed M.D., or D.O., anesthesiologist, other than the ■surgeon, to provide direct supervision of the administration and maintenance of the anesthesia.

Fla. Admin. Code R. 64B8-9.009(6)(b)l.a. (emphasis added). Appellant challenges the last sentence of this rule. Essentially, the rule requires an anesthesiologist to directly supervise the administration of anesthesia in an outpatient surgery center. If an anesthesiologist is present, then there is no need for a CRNA, as they both do essentially the same things. Indeed, “[t]he- parties stipulated that since the adoption of the challenged rule, the physicians for whom [appellant] previously provided anesthesia services four or five days a week will no longer employ him for level III Office surgeries because they believe that it is unnecessary and cost-prohibitive to pay him to provide the actual anesthesia services and an anesthesiologist to directly supervise him. Consequently, [appellant’s] revenues have been reduced and his office practice has been substantially and adversely affected.” Ortiz v. Dep’t of Health, Bd. of Med., No. 03-0011RX, at 4-5 (DOAH Apr. 7, 2003) available at http:// www.doah.state.fl.us/ros/2003/03-0011.doc.

We preface our analysis of this rule by noting that the parties agree that patient safety is not an issue in this proceeding. While the Board has studies to support its rule, this same rule was challenged on other grounds in Florida Academy of Cosmetic Surgery v. Department of Health, Board of Medicine, No. 00-0951RP (DOAH Nov. 16, 2000), and the administrative law judge found that there was no evidence to indicate any significant difference in patient outcomes whether anesthesia was administered by a CRNA or an anesthesiologist. See id. at 25. The judge’s ruling was reversed in Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc., 808 So.2d 243 (Fla. 1st DCA 2002), only because the judge used the wrong standard of review of the evidence.

A person “substantially affected” by a rule may seek an administrative determination that the rule is an invalid exercise of delegated legislative authority. See § 120.56(l)(a), Fla. Stat. (2002). As pertains to this case, section 120.52(8), Florida Statutes (2002), states:

“Invalid exercise of delegated legislative authority” means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
(b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)l.;
(c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)l.;
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation • and is not arbitrary and capricious or is within the agency’s class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute.

The appellate court reviews the issue of whether an agency has exceeded its rule-making authority de novo. See Fla. Acad. of Cosmetic Surgery, 808 So.2d at 253 (citation omitted).

Appellant contends that the Board’s rule exceeded its authority because the provisions contained in section 458.303 limit the Board’s rulemaking authority as provided in section 458.331. The Board cited sections 458.309(1) and 458.331(l)(v) as specific authority for adopting the rule. See Fla. Admin. Code R. 64B8-9.009. The issue presented is whether the provisions of section 458.303 limit the Board’s ability under. section' 458.331 to promulgate this rule.

Section 120.52(8) provides that a rule is invalid when “[t]he agency exceed[s] its grant of rulemaking authority, citation to which is required,” § 120.52(8)(b), or “[t]he rule enlarges, modifies, or contravenes the specific provisions of law implemented.” § 120.52(8)(c). Further, the rulemaking authority should be “construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute.” § 120.52(8) (emphasis , added). Where the section cited as the ground for rulemaking authority is specifically limited by another statute, interpretation of the specific powers and duties conferred upon the agency is required. See Fla. Bd. of Trs. v. Day Cruise Ass’n, 794 So.2d 696, 701 (Fla. 1st DCA 2001). Where rulemak-ing is granted in one statute, it should not be read in such a way as to negate restrictions on rulemaking authority set out in a different section. See id.

General rules of statutory construction require statutes that relate to the same subject or object be regarded in pari materia and construed together. See State v. Burkhart, 869 So.2d 1242, 1245 (Fla. 4th DCA 2004). Moreover, the more specific statute controls over the general one. See Day Cruise Ass’n, 794 So.2d at 701 (citing Gretz v. Fla. Unemployment Appeals Comm’n, 572 So.2d 1384, 1386, (Fla.1991) (“the more specific statute controls”); Adams v. Culver, 111 So.2d 665, 667 (Fla.1959) (“It is well settled ... that a special statute covering a particular subject- matter is controlling over a general statutory provision covering the same and other-subjects in general terms.”); Seven Seas Frozen Prods. v. Fast Frozen Foods, 43 So.2d 181, 182 (Fla.1949) (same)).

These principles require that the grant of rulemaking authority contained in section 458.331(l)(v) be construed together with section 458.303. Otherwise, specific legislative directives could be eliminated through the Board’s exercise of its rule-making authority. By specific reference in section 458.303(2) to both section 458.309 containing the general grant of rulemaking authority, arid section 458.331, the Legislature has circumscribed the Board’s rule-making authority.

Section 458.331(l)(v) sets forth a ground for disciplinary action against a physician. A physician is subject to discipline for practicing beyond the scope permitted by law or performing services that the physician knows he or she is not competent to perform. The'Board has rulemaking authority to develop standards of practice for particular practice settings. These standards provide notice to the physicians in those practice settings as to what acts constitute practice beyond the scope permitted bylaw: ■ ■'

However, section 458.303(2) specifically limits the reach of section 458.331. ' Pursuant to 458.303(2), the grant of rulemaking authority under section 458.309 and section 458.331 cannot be “construed to prohibit any service rendered by a registered nurse or a licensed practical nurse, if such service is rendered under the direct supervision and control of a licensed physician who provides specific direction for any service to be performed and gives final approval to all services performed.” Thus, under sections 458.331 and 458.303(2), so long as a licensed physician has direct supervision and control over the registered nurse, the fact that services are provided by that nurse cannot be a ground for discipline of the physician, and no rules can prohibit such services by a registered nurse.

By its administrative rule, the Board has exceeded its rulemaking authority because it has adopted a practice standard that precludes the provision of anesthesia in all level III outpatient surgeries by a CRNA supervised by the surgeon. The rule requires that anesthesia be administered only under the direct supervision of an anesthesiologist. Section 458.303(2) specifically prohibits the use of rulemaking authority for this purpose. While the Board says that its rule does not control the actions of CRNAs, it has done indirectly what it cannot do directly. Instead, of simply prohibiting CRNAs from administering anesthesia under the supervision of the surgeon, the Board provides grounds for disciplining the surgeon if he supervises the CRNA. Either way, section 458.303(2) prevents the use of rulemaking authority for this purpose.

The rule is also invalid under section 120.52(8)(c) because it modifies the terms of the specific provisions of the law implemented. Again, the specific limitations contained in section 458.303(2) must be construed together with the grant of authority in section 458.331. Section 458.303(2) prevents the use of the rulemaking authority to prohibit the provision of services by a registered nurse when supervised by a “licensed physician.” The effect of the Board’s rule is to modify the statute to apply in level III office surgery only when the registered nurse is supervised by a licensed anesthesiologist. In Florida Department of Health & Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980), a statute authorizing the licensing of midwives required an applicant to possess a statement from a physician attesting that the applicant had attended fifteen deliveries “under the supervision of a duly licensed and registered physician.” Id. at 455 (citing § 485.031(4)(b), Fla. Stat. (1977)). In implementing the statute, HRS adopted a rule requiring that the physician be licensed in Florida. See id. at 456. The court held that HRS exceeded its authority because it modified the statute by adding an additional requirement not included by the Legislature, namely that the physician be licensed in Florida. See id. Similarly, in this case, by limiting the services a registered nurse may provide when supervised by a licensed physician, the Board also modified the statute it was attempting to implement by adding a restriction not included by the Legislature.

The Board argues that section 458.303(2) does not apply to CRNAs because the statute refers only to “registered nurses.” This argument is without merit. A “ ‘[registered nurse’ means any person licensed in this state to practice professional nursing.” § 464.003(4), Fla. Stat. (2002). An “advanced registered nurse practitioner” is “any person licensed in this state to practice professional nursing and certified in advanced or specialized nursing practice.” § 464.003(6) (emphasis added). Therefore, any advanced registered nurse practitioner, including a CRNA, must first have a license to practice professional nursing and, thereby, is necessarily a registered nurse. See § 464.012(1).

Although not determinative of the outcome here, we note that the Legislature contemplated an overlap of the regulations governing the practice of advanced nursing practitioners and medical doctors. Therefore, it created a specific committee to resolve issues of standard of practice and protocol. Section 458.348(2), Florida Statutes (2002), provides:

Establishment of standards by joint committee. — The joint committee created by s. 464.003(3)(c) shall determine minimum standards for the content of established protocols pursuant to which an advanced registered nurse practitioner may perform medical acts ... set forth in s. [464.012(4) ] and shall determine minimum standards for supervision of such acts by the physician.... Such standards shall be based on risk to the patient and acceptable standards of medical care and shall take into account the special problems of medically under-served areas.

The Legislature created the joint committee in section 464.003(3)(c), which provides the committee shall consist of three members each from the Board of Nursing and the Board of Medicine. Because section 464.012(4)(a) provides specific acts that may be performed by a CRNA under the supervision of a licensed physician, it is up to the joint committee to work out the practice protocols and standards of supervision for the use of CRNAs. This power was not given to the Board of Medicine alone.

We reverse the order of the administrative law judge and declare that Rule 64B8-9.009(6)(b)l.a. is invalid to the extent that it requires a licensed anesthesiologist other than the surgeon to provide direct supervision of the administration and maintenance of anesthesia in level III surgery.

STONE and STEVENSON, JJ., concur.


text:
    Aurelle HERARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2682.
    District Court of Appeal of Florida, First District.
    July 22, 2004.
    Rehearing Denied Sept. 24, 2004.

      Aurelle Herard, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


author: PER CURIAM. COPE, J.

text:
    Rosa TORREALBA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-723.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Rehearing Denied Sept. 22, 2004.
    Rosa Torrealba, in proper person.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Rosa E. Torrealba filed a timely motion for mitigation of sentence under Florida Rule of Criminal Procedure 3.800(c). Tor-realba’s motion also included allegations of ineffective assistance of counsel. The trial court denied the motion, treating it solely as one for post-conviction relief for ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850. Torreal-ba appeals.

We find that Torrealba, in effect, made two motions, one under rule 3.800(c) and one under rule 3.850. The trial court ruled that Torrealba’s 3.850 motion failed for lack of sufficient factual allegations. See Ragsdale v. State, 720 So.2d 203, 207 (Fla.1998). We agree and affirm.

The trial court failed, however, to address. Torrealba’s 3.800(c) motion. Expressing no view on the merits - of the motion, we reverse the order as it pertains to the 3.800(c) motion and remand to the trial court for its further consideration. See Brown v. State, 707 So.2d 1191 (Fla. 2d DCA 1998).

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

GREEN and SHEPHERD, JJ., concur.

COPE, J.

(specially concurring).

I entirely agree with reversing the order and remanding for consideration of the motion filed by defendant-appellant Rosa Torrealba. The motion is entitled a “Motion for Mitigation and Reduction of Sentence,” and states that it is filed “pursuant to 3.800(c) of the Florida Rules of Criminal Procedure.... ” Under Rule 3.800(c) a defendant only has sixty days to file a motion to mitigate. While such motions rarely succeed, the defendant is entitled to have the trial court give it fair consideration as a motion under Rule 3.800(c).

■ I respectfully disagree with that portion of the majority ■ opinion which states that this motion was a hybrid filed under both Rule 3.800(c) and Rule 3.850. This is not a case of mislabeling by the defendant.

It is true that in her motion to mitigate, the defendant claims that her counsel did a poor job of defending her. In reading the motion, it is clear that she is simply offering this as one of several reasons why her sentence should be reduced. The only relief requested by the motion is reduction of sentence. She does not request a new trial on account of ineffective assistance of counsel.

I make these points because under Florida Rule of Criminal Procedure 3.850, successive Rule 3.850 motions are generally forbidden. See Fla. R.Crim. P. 3.850(f). By characterizing the defendant’s motion as a hybrid which included a 3.850 motion, the majority has inadvertently created a situation in which any later-filed Rule 3.850 motion may be characterized by the State as impermissibly successive.

In sum, I concur in reversing and remanding for further consideration of the Rule 3.800(c) motion to mitigate sentence. I respectfully disagree with the majority opinion insofar as it characterizes the motion as also being a Rule 3.850 motion.


text:
    Marcos Rafael ACEVEDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1591.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2004.
    Marcos Rafael Acevedo, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Burgess v. State, 831 So.2d 137 (Fla.2002) (holding that Rule 3.800(a) motion is limited to issues which can be resolved as a matter of law, without an evidentiary hearing).

SHARP, W., THOMPSON and PALMER, JJ., concur.


text:
    Glenn S. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-804.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2004.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 508 So.2d 321 (Fla.1987).

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


text:
    Dwayne TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-257.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Hector L. CHRISTIAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2293.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See A.D.J. v. State, 813 So.2d 127 (Fla. 5th DCA 2002); Slydell v. State, 792 So.2d 667 (Fla. 4th DCA 2001).

PETERSON, GRIFFIN and ORFINGER, JJ., concur.


text:
    Angel SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2050.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2004.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Reyes, 680 So.2d 1092 (Fla. 3d DCA 1996).

PETERSON, ORFINGER and GRIFFIN, JJ., concur.


text:
    BURGESS TRANSPORTATION, INC., a Florida Corporation, Underwriters Insurance Company, a foreign Corporation, and National Union Fire Insurance Company of Pittsburgh, a foreign Corporation, Appellants, v. Patricia AROSTEGUI, as Personal Representative of the Estate of Hector Arostegui, deceased, Appellee.
    No. 3D03-2528.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Nicklaus & Hyatt; Hicks & Kneale and Dinah Stein and Gary Magnarini, Miami, for appellants.
    Ratzan & Alters; Kimberly L. Boldt, for appellee.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

Burgess Transportation, Inc., Underwriters Insurance Company and National Union Fire Insurance Company of Pitts-burg appeal a final judgment after jury verdict in a wrongful death action.

We conclude that the trial court’s evidentiary rulings were within the court’s discretion. See State v. Nieto, 761 So.2d 467, 468 (Fla. 3d DCA 2000). Assuming any error on the evidentiary issues, we conclude that they were entirely harmless. See Mercury Cas. Co. v. Flores, 870 So.2d 127 (Fla. 3d DCA 2003).

The trial court’s rulings regarding the accident report privilege were correct. See Alexander v. Penske Logistics, Inc., 867 So.2d 418 (Fla. 3d DCA 2003). There was no fundamental error relating to the unobjected-to portions of the plaintiffs closing argument, see Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000), and the rulings on the objected-to portions of closing argument were within the court’s discretion. We find no merit to the argument that the verdict is contrary to the manifest weight of the evidence.

Affirmed.


text:
    STATE of Florida, Appellant, v. Lance BOUCHILLON, Appellee.
    No. 4D03-682.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.
    Rehearing Denied Oct. 11, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Michael J. Rocque and Monica L. Sherman, Fort Lauderdale, for appellee.
   PER CURIAM.

The State appeals the trial court’s failure to sentence Lance Bouehillon as a sexual predator. We affirm because we find that Bouehillon does not meet the criteria for sentencing under the Sexual Predators Act.

Bouehillon pled no contest to the charge of lewd or lascivious battery. At the sentencing hearing, the trial court found that the Sexual Predators Act, section 775.21, Florida Statues, did not apply to Bouchil-lon as he was being sentenced as a youthful offender. The State objected and argued that Bouehillon should have been sentenced under the Sexual Predators Act. The trial court disagreed and withheld adjudication, placing Bouehillon on six years probation with certain special conditions. The State now appeals.

Bouehillon was convicted of committing a lewd or lascivious battery which is a violation of section 800.04(4)(a), Florida Statutes. Bouehillon is correct that in this case, his conviction does not meet the Sexual Predators Act criteria and thus, this statute cannot be applied to him. Section 775.21(4)(a)l., Florida Statutes (2002), titled “SEXUAL PREDATOR CRITERIA” states:

an offender shall be designated as a “sexual predator” under subsection (5), and subject to registration under subsection (6) and community and public notification under subsection (7) if:
1. The felony is:
a. A capital, life or first degree felony violation, or any attempt thereof, of s. 787.01 or s. 787.02, where the victim is a minor and the defendant is not the victim’s parent, or of chapter 794, s. 800.04, or s. 847.0145, or a violation of a similar law of another jurisdiction; or
b. Any felony violation, or any attempt thereof, of s. 787.01, s. 787.02, or s. 787.025, where the victim is a minor and the defendant is not the victim’s parent; chapter 794, excluding ss. 794.011(10) and 794.0235; s. 796.03; s. 800.04; s. 825.1025(2)(b); s. 827.071; or s. 847.0145; or a violation of a similar law of another jurisdiction, and the offender has previously been convicted of or found to have committed, or has pled nolo contende-re or guilty to, regardless of adjudication, any violation of s. 787.01, s. 787.02, or s. 787.025, where the victim is a minor and the defendant is not the victim’s parent; s. 794.011(2), (3), (4), (5), or (8); s. 794.05; s. 796.03; s. .800.04; s. 825.1025. s. 827.071; s. 847.0133; s. 847.0135; or s. 847.0145, or a violation of a similar law of another jurisdiction[.] ■

Thus, to meet the criteria under section 775.21(4)(a)l.a., Bouchillon would have to have been convicted of a violation of section 800.04 which was “a capital, life or first degree felony.” Here, Bouchillon was convicted of a second degree felony violation of section 800.04. § 800.04(4). Therefore, he does not meet the sexual predator criteria under section 775.21(4)(a)l.a.

In order to meet the criteria under section 775.21(4)(a)l.b., Bouchillon would have to have been previously convicted of a violation of section 800.04 “or a violation of a similar law of another jurisdiction and ... previously ... convicted of or found to have committed, or ... pled nolo conten-dere or guilty to, regardless of adjudication a violation of’ one of the statutes listed at the end of section 775.21(4)(a)1.b. See Maceo v. State, 870 So.2d 852, 853 (Fla. 3d DCA 2003) (finding that Maceo did not qualify as a sexual predator under section 775.21(4)(a)l.b. “as he had not previously been convicted of, plead nolo or guilty to, or found to have committed any of the enumerated prior offenses which would qualify him for classification as a sexual predator”); Kidd v. State, 855 So.2d 1165, 1167 (Fla. 5th DCA 2003) (stating that section 775.21(4)(a)l.b. “requires proof of a prior felony conviction or plea to a prior felony conviction before designating a defendant a sexual predator”). Here, the State has not alleged that Bouchillon has any prior convictions, and there is no evidence in the record that Bouchillon has any prior convictions. Thus, Bouchillon does not meet the criteria for sentencing as a sexual predator under 775.21(4)(a)l.b. Because Bouchillon does not meet the criteria under either 775.21(4)(a)l.a. or 775.21(4)(a)l.b., he cannot be sentenced as a sexual predator.

Although the trial court found that Bouchillon was not a sexual predator based on his status as a youthful offender, this Court may affirm the trial court’s decision for a different reason, namely that he does not qualify for sentencing as a sexual predator. See Lowery v. State, 766 So.2d 417, 417 (Fla. 4th DCA 2000) (“This court may affirm a trial court decision deemed ‘right for a different reason’ under the ‘tipsy coachman’ rule....”) However, we also write to briefly address the trial court’s finding that Bouchillon should not be sentenced under the Sexual Predator Act because he had been designated a youthful offender.

The State correctly argues and Bouchillon concedes that there is nothing in the Sexual Predator Act which states that it cannot apply to a defendant sentenced as a youthful offender. The Florida Supreme Court has previously held that the Sexual Predator Act does not apply to juveniles charged as adults but adjudicated delinquent as they are not “criminally convicted” as required by the Sexual Predator Act. State v. J.M., 824 So.2d 105, 109 (Fla.2002). However, a youthful offender sentence “is an adult — not a juvenile — sentence.” Dejesus v. State, 862 So.2d 847, 849 (Fla. 4th DCA 2003) (emphasis in original) (citations omitted). Furthermore, in this case, Bouehillon pled no contest to his charge and adjudication was withheld. A no.contest plea where adjudication is withheld is specifically included in the Sexual Predator Act’s definition of “conviction.” § 775.21(1)(c), Fla. Stat. (2002). As the State has argued, the Sexual Predator “Act is mandatory and affords no discretion to the trial judge to designate an individual a sexual predator if -the statutory criteria are established.” Kelly v. State, 795 So.2d 135, 137 (Fla. 5th DCA 2001). Thus, Bouchillon’s classification as a youthful offender would not have . excused the trial court from sentencing him under the Sexual Predator Act. However, as already stated, because we find that Bouehillon did not meet the criteria for sentencing under the Sexual Predator Act, we affirm.

AFFIRMED.

GUNTHER, STEYENSON and HAZOURI, JJ., concur.


author: FARMER, C.J. TAYLOR, J.,

text:
    A-ALTERNATIVE RELEASE BAIL BONDS and Ranger Insurance Company, Appellants, v. MARTIN COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 4D03-1093.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.
    Rehearing Denied Oct. 15, 2004.

      John A. Garcia of John A. Garcia, P.A., West Palm Beach, for appellants.
    Stephen Fry, Martin County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for appellee.
   FARMER, C.J.

The surety on á criminal appearance bond appeals a final order estreating the bond. The standard of review on the issue raised is de novo. We reverse.

In Martin County where this case arose, surety bonds for appearances are made thus. A surety company interested in furnishing a bond (for a price, of course) prepares a proposed bond form stating the charge(s) against the defendant and the amount of the bond. The agent then submits the proposed bond for approval to an official representing the state and county. If the state’s official finds that the specific charge and the bond amount are stated correctly on the form, the official accepts the bond form and releases defendant in accordance with its terms. The bond form so accepted becomes the actual contract between the state and the surety.

The law is clear that the offense charged must be stated in an appearance bond and that thé liability of a surety cannot be extended beyond the terms of the contract. State v. All Fla. Sur. Co., 59 So.2d 849, 850-51 (Fla.1952); Bankers Ins. Co. v. State, 487 So.2d 708, 709 (Fla. 2d DCA 1983) (explaining a bail bond is a three-party contract between the state, defendant and the surety). Although the offense may be described in general terms without technical detail, .the’Surety, is obligated under the bond only in regard to the offense(s) stated therein. State Fire & Cas. Co. v. State, 88 So.2d 274, 275 (Fla.1956); Midland Ins. Co. v. State, 354 So.2d 961, 962 (Fla. 3d DCA 1978). Where the criminal charges are substantially changed from the charges on which the bail bond was originally written, the surety is no longer obligated under the bond. Id.

In'this cáse, the bond form states that the charge is “trafficking in cocaine.” For that simple charge without any specification of amounts of .cocaine involved, the mandatory penalty is a minimum of 5 years. If an amount of drugs had been stated as more than 400 grams, however, the mandatory penalty is a minimum of 15 years. The significant change in the risk to the surety from a minimum mandatory penalty of 5- years as against one for 15 years is obvious and needs no further illumination.

In this case, defendant was charged at the time of arrest with simple trafficking in cocaine without any specification. Sometime before the bond was written and accepted by the state, the State Attorney filed an Information stating a charge of trafficking in an amount greater, than 400 grams. The surety’s agent and the state’s official — both of whom were unaware of the Information — operated on the basis that the charge for which the bond was being issued was simple trafficking without any specification of amount. The official accepted the bond form so stating, and defendant was released in reliance thereon.

Needless to say, he is now “in the wind” and the surety was forced to pay the face amount of the bond. The surety argued below — and repeats the argument here — that the contract between the parties is to insure an appearance for simple trafficking, not 400+ grams trafficking, and the surety cannot be liable for defendant’s failure to appear for the more serious charge. To hold the surety so liable, it argues, is to modify the tenor of its engagement under the surety contract, something judges are not given the authority to do over, its objection.

The form and content of these appearance bonds is singularly placed in the hands of the surety and the state. Each has its own strong interest in making sure that the bond form states the correct terms, from the differing, perspective of each, of the surety’s actual engagement. For courts to find excuses to relieve one of these parties from the effects of its lack of care in preparing or accepting a specific bond is to encourage them to relax their vigilance in drafting the form in the hope that a court will “bail them out” from the effects of their own negligence. It is to make courts the ultimate drafters of these contracts.

In this instance, the contract undeniably states an engagement to insure an appearance for charges only of simple trafficking in cocaine without any specification of a larger amount beyond the lowest penalty for this crime. Yet the trial court estreat-ed the bond for the defendant’s failure to appear for charges of trafficking in an amount of 400 grams or more. That is contrary to the terms of the written bond. It is thus contrary to established Florida law. State v. All Fla. Sur. Co., 59 So.2d 849, 850-51 (Fla.1952); Bankers Ins. Co. v. State, 437 So.2d 708, 709 (Fla. 2d DCA 1983). It follows that the decision of the trial court must be, and hereby is

REVERSED.

GUNTHER, J., concurs.

TAYLOR, J., dissents with opinion.

TAYLOR, J.,

dissenting.

I respectfully dissent. Appellants did not post bond for the defendant until after the information was filed. The information charged the defendant with “Trafficking in Cocaine — 400 grams or more.” Thus, when appellants posted bond, the simple trafficking charge for which the defendant was arrested no longer existed. It was superseded by the charges filed in the formal charging document. Consequently, the only “trafficking in cocaine” charge to which the parties to the bail bond contract could have agreed was the first degree felony offense (400 grams or more) which was then pending against the defendant. The bond form was thus sufficient to obligate the surety to produce the defendant in court on the trafficking charge filed in the information. See Midland Ins. Co. v. State, 354 So.2d 961, 962 (Fla. 3d DCA 1978)(“the offense or offenses may be described by the bond in general terms without technical detail”).

Contrary to appellants’ position, this case is distinguishable from those situations where the state increased the charge or filed additional charges after bond was posted. Here, the state did not amend the information or add charges after appellants posted bond so as to relieve them of responsibility under the bond as written. I would therefore affirm the trial court’s order denying the surety’s motions to vacate and remit bond forfeiture. .

      . The phrase "in the wind” — describing one fleeing from justice who cannot be found— belongs to Michael Connelly, the author of several police procedural, mystery novels involving the character Hieronymus (Harry) Bosch.


text:
    Malke DUNAEVESCHI, Appellant, v. AMERICAN PIONEER LIFE INSURANCE COMPANY, Appellee.
    No. 3D04-789.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Reconsideration and/or Rehearing Denied Sept. 24, 2004.
    Paul H. Bass and Jared L. Gamberg, for appellant.
    Sheryl S. Natelson (Hollywood); Hes-sen, Schmimmel & Decastro, for appellee.
    Before SCHWARTZ, C.J., and COPE . and FLETCHER, JJ.
   PER CURIAM.

Affirmed.

SCHWARTZ, C.J., and FLETCHER, J., concur.

COPE, J.

(concurring).

I concur that affirmance is in order under the circumstances of this case.

Plaintiff-appellant Malke Dunaeyeschi (“insured”) is a resident of- Caracas, Venezuela. She purchased a health insurance policy from defendant-appellee American Pioneer Life Insurance Co. (“insurer”) She submitted a claim for policy benefits, which was denied.

The insured sued the insurer in circuit court and the insurer timely invoked the arbitration clause of the insurance policy. The insurance policy contains an arbitration clause which calls for arbitration in Jackson, Mississippi.

The insured argued that the arbitration clause was void. The insured reasoned that under section 627.428, Florida Statutes (2003), she would be entitled to attorney’s fees if she prevailed in her lawsuit against the insurance company. She interpreted the arbitration clause as prohibiting an award of attorneys fees. She points to the part of the arbitration clause which states, “The Company’s liability in any such arbitration shall be limited to such amounts as the arbitrators may determine are due under this policy, with such interest thereon and such costs of the arbitration proceeding, if any, as the arbitrators may direct.” The insured argued that a prohibition on the award of attorney’s fees would violate Florida law and that the arbitration clause should be declared void. The insured relied on Paladino v. Avnet, Inc., 134 F.3d 1054 (11th Cir.1998), and Mayard-Paul v. The Mega Life & Health Insurance Co., 15 Fla. L. Weekly Fed. D88, 2001 WL 1711519 (S.D.Fla. Dec. 21, 2001).

The trial court disagreed with the insured’s interpretation of the arbitration clause. The court concluded that the arbitration clause addresses the issue of compensatory damages but is silent on the issue of attorney’s fees. The trial court ruled that the arbitration clause does not prohibit an attorney’s fee award.

The trial court granted the insurer’s motion to compel arbitration, stating, “The attorneys fees (627.428) claimed under the count being arbitrated shall be determined as part of the arbitration.” The insured has appealed, contending that the entire arbitration clause is void.

I agree with the majority that under the circumstances of this case, the arbitration clause is not void. The trial court has ruled that attorney’s fees are available under section 627.428. The insurer has not cross-appealed that determination.

While the foregoing is sufficient to dispose of the present case, I write separately to point out that according to the insurance policy, the insurer in this case is headquartered in Orlando, Florida. The insured’s counsel states that the insurance policy was purchased through an agent in the Miami area. Although not addressed by the parties, both of these facts raise the question what the insurer’s obligations may be under the Florida Insurance Code. Florida has an interest in seeing that insureds are treated fairly in claim disputes, whether the insureds reside in Florida or elsewhere.

While the parties have not briefed the point, it may be that section 627.637, Florida Statutes, is applicable in this situation. If applicable, the statute would require the policy to “be construed as though its terms and provisions were in conformity with those required by this chapter [627, Florida Statutes]....” If so, that statute would support the trial court’s conclusion that section 627.428 applies in a case like the present one.

      . The arbitration clause states:
      DISPUTES AND LEGAL ACTIONS
      Any disputes arising out of this policy, or its alleged breach, may, if not resolved by the parties, be referred to arbitration by either of them. Such arbitration shall be conducted in the City of Jackson, Mississippi, USA, in accordance with Commercial Arbitration Rules of the American Arbitration Association, and Judgement on any award rendered in such arbitration may be entered in any state or federal court in such City. Such arbitration shall be the sole remedy for any alleged breach of this policy. Notices in connection with such arbitration and process in any judicial proceeding in connection [therewith may be served by personal delivery or registered mail on the Company .at its home office in Florida, and on the insured at the most current address appearing on the records o'f the Company, with the same effect as if personally served in such City. The Company’s liability in any such arbitration shall be limited to such amounts as the arbitrators may determine are due under this policy, with such interest thereon and such costs of the arbitration proceeding, if any, as the arbitrators may direct. In no event shall thé Company be liable for any extra-contractual damages whether characterized, without limitation, as consequential, exemplary, punitive, or tort damages, for. any alleged breach of the policy..

      . There is a partial statutory exemption for certain international health insurance policies, but that exemption appears to be limited to insurance policies sold at an international airport in Florida. See § 624.123, Fla. Stat. (2003).


author: GROSS, J.

text:
    Scott T. DAVIDSON, Appellant, v. Lois S. DAVIDSON, Appellee.
    No. 4D03-4260.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.
    Rehearing Denied Oct. 15, 2004.

      Scott T. Davidson, Coral Springs, pro se.
    David S. Nicnick, Fort Lauderdale, for appellee.
   GROSS, J.

Scott Davidson appeals a final judgment of dissolution of marriage, raising a number of issues. We affirm in part, reverse in part, and remand for further proceedings. .

The husband asserts that the trial court incorrectly found his disability pension to be a marital asset. He had a retirement pension at the time the wife filed her petition for dissolution on June 15, 2000. One day before that date, the husband applied to convert his retirement pension to a disability pension. His disability pension took effect in September 2000.

A retirement pension is considered a marital asset for purposes of equitable distribution. See Blaine v. Blaine, 872 So.2d 383 (Fla. 4th DCA 2004). On the other hand, a disability pension “by its very nature replaces future lost income, and thus is not a marital asset subject to equitable distribution.” Hoffner v. Hoffner, 577 So.2d 703, 704 (Fla. 4th DCA 1991); see also Hanks v. Hanks, 553 So.2d 340, 343 (Fla. 4th DCA 1989).

For the purpose of determining assets subject to equitable distribution, “[t]he cutoff date ... is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.” § 61.075(6), Fla. Stat. (2003) (emphasis added).

In this case, at the time the wife filed her petition, the husband had a retirement pension. Although he filed an application to convert it to disability the day before the petition was filed, disability did not take effect until September 2000. Therefore, the trial court properly considered the value of the pension when identifying the parties’ assets.

We agree with the husband that his child support arrearage should be recalculated.

Here, the trial court found that the husband’s net monthly income was $4,550.00 and the wife’s was $2,949.32. In his brief, the husband states that his monthly disability is $2,901.00 and his own social security benefits are $1,706.00 per month, for a total net monthly income of $4,607.00, rather than $4,550.00. Beginning in September 2000, the children’s monthly social security benefits of $864.00 were paid to the husband. On August 11, 2003, the trial court ordered the children’s social security benefits to be paid directly to the wife. In its final judgment, the trial court calculated a child support arrearage of $50,246.46 to be paid in $200.00 monthly installments.

For purposes of child support calculations, the husband’s net monthly income should be $4,607.00 (disability and social security) + $864 (children’s social security) = $5,471.00. The parties’ combined income is then $8,420.32. As the wife points out in her brief, based on the combined income, the children’s needs are $2,052.00. See § 61.30(6), Fla. Stat. (2003). The husband’s responsibility is 65% and the wife’s responsibility is 35%. See § 61.30(9), Fla. Stat. (2003). The husband’s proportionate share of child support, after factoring in health insurance paid by the wife, is $1,352.67 retroactive to the date he began receiving benefits. Multiplying that amount by the thirty-five months where the husband was receiving the children’s social security benefits (September 2000-August 2003) equals a child support arrearage of $47,343.45, and not $50,246.46 as found by the trial court. However, during that time-span, the wife concedes that the husband paid $26,293.52 in child support. Therefore, his arrearage should only be $21,049.93. On remand, the husband’s arrearage shall be recalculated.

We find no abuse of discretion in the award of $92,311.65 as lump sum alimony payable at a rate of $200 a month plus interest. As the supreme court held in Canakaris v. Canakaris, 382 So.2d 1197, (Fla.1980), “[a] judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse ' to make such payment without substantially endangering his or her economic status.” Id. at 1201; see also Karrer v. Karrer, 694 So.2d 159, 160 (Fla. 3d DCA 1997) (finding that if the husband converted his retirement pension to disability, the wife would be entitled to lump sum alimony in an amount equal to what she would have received from the pension).

Here, the trial court ordered lump sum alimony to the wife as an equalizing payment in the amount of $92,311.65. The husband’s pension totaled $279,881.49 and the wife’s 401k amounted to $132,082.46, but was offset and reduced to a value of $95,258.19. The offset represented funds the wife withdrew from her 401k to maintain the marital home, to which the husband stopped contributing in July 2000. The trial court did not abuse its discretion by ordering the alimony because it was an integral part of the. lump sum equitable distribution scheme and the husband had the ability to pay it according to the schedule provided in the final judgment.

The husband next argues that it was error for the trial court to require him to maintain a $100,000 life insurance policy with the wife as the beneficiary to protect the award of lump sum alimony.

Section 61.08(3), Florida Statutes (2003), provides:

To the extent necessary to protect an award, of alimony, the court may-order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.

Special circumstances must exist in order to require a former spouse to maintain life insurance for an alimony award. See Solomon v. Solomon, 861 So.2d 1218, 1221 (Fla. 2d DCA 2003). There must be a demonstrated need to protect the receiving spouse. See Moorehead v. Moorehead, 745 So.2d 549, 552 (Fla. 4th DCA 1999)

Here, there were at least two special circumstances, such that the imposition of the life insurance requirement was not an abuse of discretion. First, there were minor children residing in the home with the wife as primary custodian. See Moorehead, 745 So.2d at 552. Second, the husband was in arrears in his child support and his failure to contribute to the upkeep of the marital home forced the wife to spend $36,824.27 of her 401k; this expenditure constituted almost forty percent of the lump sum alimony award. See id.

However, “there was no evidence of the cost of such a policy or whether the husband could obtain or afford it.” Cozier v. Cozier, 819 So.2d 834, 837 (Fla. 2d DCA 2002). The husband’s status as a disability recipient may impact his ability to secure insurance. See Forgione v. Forgione, 845 So.2d 968, 970 (Fla. 4th DCA 2003). We therefore reverse the requirement that the husband obtain life insurance to secure the alimony payments, so that the trial court may consider “the cost and financial impact on the paying spouse.”. Id.

We have considered the other arguments raised by the husband and find no error.

FARMER, C.J., and MAY, J., concur.

      . The husband does not challenge the requirement in the final judgment that he secure a separate policy of life insurance to protect the award of child support.


text:
    FISHER ISLAND HOLDINGS, L.L.C., Appellant, v. Dr. Irwin POTASH, etc., et al., Appellees.
    No. 3D04-1528.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Rehearing Denied Sept. 24, 2004.
    Greenberg Traurig and Alan T. Dimond and Elliot H. Scherker, Miami, and Elliot B. Kula, for appellant.
    Aragon, Burlington, Weil, Schwiep, Kap-lan Blonsky; Phillips, Eisenger Brown, for appellees.
    Before SCHWARTZ, C.J. and COPE and FLETCHER, JJ.
   PER CURIAM.

Fisher Island Holdings, L.L.C. appeals the order issued by the circuit court granting in part and denying in part Fisher Island’s motion to compel arbitration and to stay litigation, or in the alternative, for enlargement of time. We reverse.

Although the trial court correctly granted Fisher Island’s motion to compel arbitration, it erred in limiting its scope to determining the definition of the term “true costs.” We find that all the issues stated in Fisher Island’s arbitration demand are arbitrable. We, therefore, remand the case for entry of an order granting the arbitration demand in toto.

Reversed and remanded.


text:
    Danny SMITH, A/K/A Mark Lewis, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2359.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2004.
    Danny Smith, a/k/a Mark Lewis, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287 (Fla.2003).

SAWAYA, C.J., PETERSON and PLEUS, JJ., concur.


text:
    Timothy Royal ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2269.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2004.
    Timothy Royal Rogers, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Boyne v. State, 728 So.2d 246 (Fla. 5th DCA 1998).

SAWAYA, C.J., SHARP, W. and MONACO, JJ., concur.


text:
    Douglas C. COLBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-940.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2004.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Douglas C. Colby, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PALMER and TORPY, JJ., concur.


text:
    Marvin STARLING, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-259.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2004.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Marvin Starling, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    TRANSOCEANIC CABLE SHIP COMPANY, INC., et al., Appellant, v. Delores BROWN, Appellee.
    No. 5D03-3917.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2004.
    John D. Kallen, Badiak, Will & Fallen, North Miami Beach, for Appellant.
    Patty Spivey of Hayden & Milliken, P.A., Cape Canaveral, for Appellant.
    David J. Gorewitz, Melbourne, for Ap-pellee.
   PER CURIAM.

See Woods v. Nova Companies Belize Ltd., 739 So.2d 617 (Fla. 4th DCA 1999), rev. denied, 766 So.2d 222 (Fla.2000); Youngblood v. Citrus Associates of New York Cotton Exchange, Inc., 276 So.2d 505 (Fla. 4th DCA), cert. denied, 285 So.2d 26 (Fla.1973).

AFFIRMED.

SAWAYA, CJ., SHARP, W., and MONACO, JJ., concur.


text:
    Frank J. GERECITANO, Petitioner, v. BARRWOOD HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Respondent.
    No. 4D04-91.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Rehearing Denied Oct. 11, 2004.

      Richard W. Glenn of Law Office of Richard W. Glenn, West Palm Beach, for petitioner.
    William H. Pincus of William H. Pincus, Attorney at Law, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner seeks certiorari review of a circuit court appellate decision which reversed a county court judgment. Because we agree with the conclusion of the circuit court, we quote the portion of its opinion which addresses the issue on which we base our denial of the petition:.

Appellant, Barrwood Homeowners Association (“Barrwood”), is.a not-for-profit corporation organized under Florida Statute Chapter . 617 and a homeowners’ association as defined by Florida Statute § 617.301(7)[now Florida Statute 720.301], Appellee, Frank J. Gerecitano (“Gerecitano”), owns two units in the Barrwood development.

Pursuant to Barrwood’s governing documents, the unit owners are required to pay monthly assessments, due on the first day of each month, and are charged a late fee for non-payment after 10 days. At the December, 1999 annual membership meeting, a $10.00 per month per unit increase in the monthly assessment was passed, in part, to pay salaries to Barrwood’s officers. Gerecitano refused to pay the increased assessment and, accordingly, underpaid his monthly assessments by $10 per month per unit from January to August 2000. In August, Gerecitano informed Barrwood that he would withhold his entire assessment. He did not pay any portion of the September 2000 assessment.

On September 2000, Barrwood filed suit against Gerecitano. Barrwood’s complaint sought either payment or foreclosure of its lien for the $10.00 per month per unit assessment for January 2000 through August 2000, the unpaid assessment and late fees for September 2000, and attorney’s fees. Gerecitano defended the action by contending the $10.00 increased assessment was not enforceable, since it was for an improper purpose pursuant to Florida Statute 468.432 and, further, that the association has no right to charge a late fee for the September 2000 assessment. After suit was filed, but prior to the final hearing, Gerecitano paid the assessment for September. 2000, less the $10.00 portion to which he had previously objected.

After a non-jury trial, the trial court entered its Final Judgment awarding Barrwood the $20.00 late fee for -the September 2000 assessments. The trial court also entered Final Judgment for the Ap-pellee Gerecitano on the additional $10.00 per month per unit assessment, specifically holding that it was an improper assessment pursuant to Florida Statute 468.432. The Court also denied Barrwood’s claim for. attorney’s fees. For the following reasons we reverse and remand with directions.

In reaching its decision, the trial court specifically relied upon Florida Statute 468.482 and Florida Statute 468.431 which provide, in pertinent part:

468.432 Licensure of community association managers; exceptions.—
(1) A person shall not manage or hold herself or himself out to the public as being able to manage a community association in this state unless she or he is licensed by the department in accordance with the provisions of this part.
468.431 Definitions.—
(2) “Community association management” means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration ...: controlling or disbursing funds of a community association, preparing budgets or other financial documents for a community association, assisting in the noticing or conduct of community association meetings, and coordinating maintenance for the residential development and other day-to-day services involved with the operation of a community association. [Emphasis supplied.]
Part VIII of Florida Chapter 468, Florida Statute 468.431 through 468.438, sets forth a statutory scheme for regulation, licensure, examination, and continuing education for community managers by the Department of Business and Professional Regulation. Pursuant to Florida Statute 468.436, the Department may undertake disciplinary proceedings against those in violation of the statute. Florida Statute 468.437 provides that a violation of any provision of Part VIII is a misdemeanor of the second degree.
Conspicuously absent from the statutory scheme, however, is any grant of private enforcement rights to individual unit owners or evidence of any legislative intent to allow individual association members to refuse to pay a validly passed assessment based upon a violation of the statute. The clear statutory scheme is to provide for discipline and regulation of community association management by the Department of Business and Professional Regulation, not a method for invalidating otherwise proper assessments. It is important to recognize that there was no challenge to the assessment as procedurally improper. Likewise, unlike Berg v. Bridle Path Homeowners Assoc., Inc., 809 So.2d 32 (Fla. 4th DCA 2002), there was no claim in the trial court that the assessment was not in compliance with the governing documents or for a purpose not allowed by those documents. While persons violating these statutes may be subject to disciplinary proceedings or criminal sanctions, there is nothing in the statute to allow a violation of the statute to be a defense to an otherwise lawful assessment. Simply put, it is not a defense to a validly passed assessment that the payments were being made to persons not “licensed.” Such an interpretation is consistent with the statutory recognition of homeowners’ associations and the powers given to them by the Legislature. See, Fla. Stat. Chapter 617,720.

Our agreement with this part of the opinion makes it unnecessary to address petitioner’s remaining arguments, and we therefore deny the petition for certiorari.

FARMER, C.J., WARNER and KLEIN, JJ., concur.


text:
    Linford Ricardo SPENCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-495.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Carey Haughwout, Public Defender, Richard B. Greene, Assistant Public Defender, West Palm Beach, and Linford Ricardo Spence, Milton, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. This court’s affirmance is without prejudice to appellant raising the sentencing issue in the trial court by petition for post-conviction relief. See Drayton v. State, 791 So.2d 522, 523 (Fla. 4th DCA 2001); Garrett v. State, 788 So.2d 328 (Fla. 4th DCA 2001). See also Boler v. State, 678 So.2d 319 (Fla.1996); Hale v. State, 630 So.2d 521, 524 (Fla.1993).

STONE, WARNER and SHAHOOD, JJ., concur.


text:
    Kaheid ASH, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2554.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Rehearing Denied Oct. 12, 2004.
    Kaheid Ash, Polk City, pro se.
    No appearance required for appellee.
   PER CURIAM.

The appellant seeks review of an order summarily denying his motion for postcon-viction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The trial court summarily denied relief on the belief the motion was untimely filed after the expiration of the two-year limitations period. The appellant claims the motion is based on newly discovered evidence which extends the time for filing such a motion. See Fla. R.Crim. P. 3.850(b)(1).

In order for the lower court to determine the timeliness of the motion it would need to hold an evidentiary hearing. See Porter v. State, 670 So.2d 1126 (Fla. 2d DCA 1996). However, such an endeavor is unnecessary, because, on the merits, thé appellant’s claim is legally insufficient to warrant relief, as he fails to show the prejudice required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Provenzano v. State, 616 So.2d .428, 430-31 (Fla.1993). The “newly discovered evidence” found by the appellant would not have led to a successful motion to suppress; thus, there is no “reasonable probability” that “undermines the confidence in the outcome” below. Bowman v. State, 748 So.2d 1082, 1085 (Fla. 4th DCA), rev. denied, 767 So.2d 454 (Fla.2000).

As such, we affirm the trial court’s summary denial under the so-called “tipsy coachman” rule. See Lowery v. State, 766 So.2d 417 (Fla. 4th DCA 2000).

GUNTHER, WARNER and TAYLOR, JJ., concur.