author: NESBITT, Senior Judge. RAMIREZ, J.

text:
    Melida A. DEMORIZI, Appellant, v. Nestor M. DEMORIZI, Appellee.
    No. 3D02-2063.
    District Court of Appeal of Florida, Third District.
    July 30, 2003.

      Peter H. Kireher, Miami, for appellant.
    Curtis W. Brannon, Shalimar; and Mary A. Swayze, Miami, for appellee.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

This is an appeal from the trial court’s order dismissing, for lack of subject matter jurisdiction, appellant Melida A. Demori-zi’s motion to compel reimbursement for Nestor M. Demorizi’s use of $46,555 from a joint income tax deposit paid to the Internal Revenue Service. We reverse because the division of assets may not be fair to the former wife.

On June 15, 1999, while the parties were married and living together, and prior to the filing of the dissolution action, the wife issued a check for $46,555 to the IRS as an estimated tax deposit to be applied toward both parties’ tax liability. The check bore both names and came from a joint checking account into which both parties’ earnings were deposited. Months later, the parties separated and the wife filed for divorce. On March 6, 2000, the parties mediated a Settlement Agreement which was incorporated into a Final Judgment of Dissolution of Marriage on March 26, 2000. The Judgment and Agreement were silent as to the disposition of the tax deposit.

Thereafter, each party filed a separate 1999 tax return, with the husband filing first. He claimed and received credit for the entire tax deposit. When the wife later filed her return and claimed credit for half of the deposit, the IRS disallowed the credit.

In October 2000, seven months after the dissolution of their marriage, the parties returned to the trial court to litigate several issues. At that time, the wife’s counsel raised the issue of the IRS funds. Counsel for the husband objected to discussion of the issue because it had never been raised in the pleadings. The trial court agreed.

On January 10, 2001, the parties entered into a second mediated settlement which was also silent as to the IRS funds. At both of the mediation sessions, the parties were represented by counsel and had their respective forensic accountants present. In a January 29, 2001 appearance before the trial court, counsel for the wife stated that all issues had been resolved except attorney’s fees.

On November 8, 2001, more than eighteen months after the Final Judgment was entered, and more than six months after all issues had ostensibly been resolved, the wife for the first time filed a pleading addressing the IRS deposit. The husband responded that, while there was no agreement about the deposit, he was justified in claiming the entire amount because he was the sole breadwinner. The wife asserts this is false and irrelevant because both parties worked and the funds used were admittedly marital funds. After a lengthy hearing, the trial court concluded that it lacked subject matter jurisdiction to revisit the equitable distribution of the parties’ assets and liabilities.

The wife argues that the estimated tax payment was a marital asset and, because the final judgment failed to dispose of it, by operation of law the parties became tenants in common with respect to the funds.

The trial court erred in finding it did not have subject matter jurisdiction. Because the tax deposit, or the credit therefore, was an item of personal property omitted from the property settlement agreement and from the final judgment, the husband and wife became tenants in common in the property, by operation of law, upon entry of the final judgment. Powell v. Metz, 55 So.2d 915 (Fla.1952); Cleary v. Hough, 567 So.2d 1039, 1040 (Fla. 2d DCA 1990);. Pemelman v. Pemelman, 186 So.2d 552 (Fla. 2d DCA 1966); Wilkerson v. Wilkerson, 179 So.2d 592 (Fla. 2d DCA 1965).

This chancery court had, and continues to have, full jurisdiction over the parties and continuing jurisdiction to enforce its own orders and judgments. Goolsby v. Wiley, 547 So.2d 227 (Fla. 4th DCA 1989); Brandt v. Brandt, 525 So.2d 1017 (Fla. 4th DCA 1988). In enforcing the wife’s rights that were established by operation of law upon entry of the final judgment, (and may have been violated when the husband unilaterally used the entire tax deposit for his individual return), the lower court would not have to re-open the entire equitable distribution scheme, Sweeney v. Sweeney, 583 So.2d 398 (Fla. 1st DCA 1991), or redetermine property rights previously settled by final judgment. Allison v. Allison, 605 So.2d 130 (Fla. 4th DCA 1992).

The overriding concern in this proceeding is to do equity. The dissolution statute itself states that its provisions are “in addition to all other remedies available to a court to do equity between the parties.” Section 61.075(1), Florida Statutes (1999). In instances such as this we should be mindful of the duty of appellate courts to fashion equitable relief:

All courts of appeal are required to do equity. Sometimes that requires us to order that something' be done which is just and equitable. Put differently, it is the maxim “equity will do what ought to be done.”

Sterling v. Brevard County, 776 So.2d 281, 285 (Fla. 5th DCA 2000).

Once a court of equity acquires jurisdiction over a dispute, it is authorized to administer full, complete, and final relief. Cook v. Lee, 290 So.2d 65, 66 (Fla. 3d DCA 1974). Generally, courts of equity have wide discretion in fashioning remedies to satisfy the exigencies of the circumstances. Singer v. Tobin, 201 So.2d 799, 800-01 (Fla. 3d DCA 1967).

Schroeder v. Gebhart, 825 So.2d 442 (Fla. 5th DCA 2002).

Here, the trial court should have granted relief to the wife. Fairness requires that the wife should recover only that portion of the tax deposit which is shown by the evidence to be properly alio-cable to her self-employment income for 1999, the tax year in question, if any. He who seeks equity must do equity. Williamson v. Williamson, 367 So.2d 1016 (Fla.1979); Diaz v. Diaz, 418 So.2d 1064 (Fla. 3d DCA 1982). Equity delights to do justice and not by halves. Skillman v. Baker, 142 So.2d 113, 114 (Fla. 1st DCA 1962). The record does not currently contain sufficient information to make such an allocation.

While “piecemeal litigation” is to be discouraged, in this particular instance the equitable considerations outweigh the harm from any purported failure to pursue enforcement of the wife’s rights at earlier stages of the proceedings below. As stated by the Florida Supreme Court in Wicker v. Board of Public Instruction of Dade County, 106 So.2d 550, 558 (Fla.1958): “[A] court of equity is a court of conscience; it should not be shackled by rigid rules of procedure and thereby preclude justice being administered according to good conscience.”

An equity court will never be thwarted from fashioning a decree that will do right and justice between the parties. The trial court order is reversed with directions for the trial court to determine the portion of the tax deposit (if any) which should in fairness have been credited to the wife’s taxes and to enter a supplemental final judgment awarding the wife the principal sum due together with prejudgment interest, costs and attorney’s fees.

COPE, J., concurs.

RAMIREZ, J.

(dissenting).

While I agree that the trial court had subject matter jurisdiction over Melida A. Demorizi’s motion to compel reimbursement for Nestor M. Demorizi’s use of $46,000 from a joint income tax deposit paid to the Internal Revenue Service, I would nevertheless affirm because the former wife waited approximately eighteen months after the final dissolution of marriage before seeking relief from the court. The majority in effect gives the wife a third bite at the apple under the auspices of equity.

I agree with the majority that it would be inequitable to foreclose the former wife from litigating this issue if the parties had only entered into one mediated Settlement Agreement. What is troublesome about our decision is that on October 19, 2000, seven months after the dissolution of their marriage, the parties returned to the trial court to litigate several issues. By that time, the wife and her counsel both knew that the husband had used the entire estimated tax because the record reveals that counsel raised the issue of the IRS funds in October 2000. When counsel for the husband objected to discussion of the issue because it had never been raised in the pleadings, the trial court agreed. The wife never moved to amend the pleadings.

Instead, on January 10, 2001, the parties entered into a second mediated settlement which was also silent as to the IRS funds. At both of the mediation sessions, the parties were represented by counsel and had their respective forensic accountants present. As the majority acknowledges, when the parties appeared before the trial court on January 29, 2001, counsel for the wife stated that all issues had been resolved except attorney’s fees. After the wife got the benefit of her bargain, she decided to return to court almost a year later and, on November 8, 2001, the wife for the first time filed a pleading addressing the IRS deposit. We should not condone such a piecemeal approach to litigation.

Piecemeal litigation is uniformly condemned, not only in civil cases, but in all litigation. “As a general rule, piecemeal litigation of mature claims is no more permissible in workers’ compensation cases than in civil litigation. If a merits hearing occurs and mature claims are not litigated, the claims are considered waived, and later litigation is precluded by application of the doctrine of res judicata.” Correa v. Miami Airport Hilton, 813 So.2d 1070, 1070-71 (Fla. 1st DCA 2002). Our rules governing “law of the case” and venue frequently cite to the avoidance of piecemeal litigation as its rationale. See, e.g., VL Orlando Bldg. Corp. v. AGD Hospitality Design & Purchasing, Inc., 762 So.2d 956 (Fla. 4th DCA 2000) (affirming transfer of venue in the interest of justice to avoid piecemeal litigation). Our rules of criminal procedure also take into consideration the reduction of piecemeal litigation. See Haag v. State, 591 So.2d 614 (Fla.1992).

I cannot agree that a tax payment is necessarily an asset over which the parties can become tenants in common. An estimated tax, like taxes that are withheld from wage employees, are payments made to the federal government pursuant to the Internal Revenue Code in fulfillment of an individual’s tax liability. They are both “methods of collecting the income tax.” Baral v. United States, 528 U.S. 431, 436, 120 S.Ct. 1006,145 L.Ed.2d 949 (2000). In particular, the payment of estimated income taxes is considered payment to an account to be used towards the income tax liability imposed by federal statute. See 26 U.S.C. § 6315 (2003). Unlike a tax refund, the parties are not entitled to the use and benefit of the money. The money belongs to the United States Treasury.

Assuming that the wife had income during 1999 for which she had to pay estimated taxes, it is undisputed that the husband’s income created the bulk of the tax liability. I believe that the wife’s claim to a share of that money had to be made in a timely manner, and by failing to do so, she should be deemed to have waived it. Even if she was unaware that the husband would take the entire amount of the credit when she entered into the first settlement agreement, she was certainly aware of it at the time she negotiated the second agreement and her counsel represented to the court that the only remaining issue between the parties was attorney’s fees.

We condone today a piecemeal approach to litigation that encourages parties to withhold pending matters and allows them to later bring additional claims so as to extract further concessions from the other spouse. I do not, however, propose to shackle trial courts under rigid rules of procedure. Instead, I simply believe that we should bring closure to this post-marital endless litigation and would require parties to bring all their known claims at once, not piecemeal.

      . In partitioning the property of tenants in common, "[t]he first step is to determine each party's percentage of ownership of the property.” O’Donnell v. Marks, 823 So.2d 197, 199 (Fla. 4th DCA 2002). Under Florida law, "[i]n the absence of evidence to the contrary” co-tenants are presumed to own equal undivided interests. Levy v. Docktor, 185 B.R. 378, 381 (S.D.Fla.1995).


source: Caselaw Access Project

author: FLETCHER, Judge.

license: Public Domain

text:
    Rosa RODRIGUEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D03-423.
    District Court of Appeal of Florida, Third District.
    July 30, 2003.

      Rosa Rodriguez, in proper person.
    John D. Maher (Tallahassee), for appel-lee.
    Before SCHWARTZ, C.J., and GERSTEN and FLETCHER, JJ.
   FLETCHER, Judge.

Rosa Rodriguez appeals an order of the Florida Unemployment Appeals Commission [UAC] affirming the denial of unemployment compensation benefits. We reverse.

In 2002, Telemundo Network Group [Telemundo] announced pending budget cuts. As part of the cost cutting measure, Telemundo sent certain employees letters explaining the terms of a voluntary buyout agreement. Rodriguez accepted the buyout package and signed the agreement. Two months later, she applied for unemployment benefits which the UAC denied.

The UAC concedes Rodriguez most likely had good cause to leave her employment with Telemundo, but stresses that section 443.101, Florida Statutes (2002), disqualifies individuals who voluntarily leave work without “good cause attributable to the employing unit.” At the hearing before the UAC referee, Rodriguez produced a copy of the agreement, which stated the buyout would not interfere with applications for unemployment and those who accepted the buyout would acquire layoff status. Rodriguez then testified that Tel-emundo’s Human Resources representatives informed her department that three undetermined members of her division would be terminated, but employees accepting the agreement would be considered “laid off’ for unemployment purposes. The referee then asked Rodriguez if she was ever told her position, in particular, would be terminated if she did not accept the buyout. Rodriguez responded, “No.” Based on this testimony, the referee found that Rodriguez was not told and did not know, definitively, that her position would be terminated, thus her imminent loss of employment was speculative. The UAC concluded that Rodriguez’ acceptance of the buyout was a voluntary leaving. Further, the UAC found that Rodriguez did not demonstrate wrongful actions or persuasion by Telemundo and thereby did not show that she voluntarily left for “good cause attributable to the employer” pursuant to section 443.101, Florida Statutes (2002). The UAC relied on Calle v. Unemployment Appeals Comm’n, 692 So.2d 961 (Fla. 4th DCA 1997), wherein the court held there was a lack of “good cause attributable to the employer” where the claimant did not show evidence to support any employer wrongdoing.

The UAC contends that only instances of wrongdoing or bad faith on the employer’s part constitute “good cause attributable to the employer.” However, the statute is not so limited. Section 443.031 mandates that, “This chapter shall be construed liberally to accomplish its purpose to promote employment security....” The strict construction urged by UAC is thus inappropriate.

In Martell v. State of Florida Unemployment Appeals Comm’n, 654 So.2d 1203 (Fla. 1st DCA 1995), the court found that the appellant did not leave her employment without good cause where the appellant had accepted a reduction in force separation package and was specifically told, “This release does not include, however, a release of employee’s rights to a vested pension or a waiver of any rights or workman’s compensation or unemployment insurance.” Martell at 1204. We agree with the Martell court’s reasoning. Employers are to be held accountable for their actions and representations to employees, particularly when modifying terms of at-will employment and when seeking participation in voluntary layoffs, buyouts or other company initiated programs. Here Rodriguez received verbal and written representations from Telemundo about the uncertainty of her job and of a buyout package with a list of benefits, as well as assurances of eligibility for other benefits, i.e., unemployment compensation. These assurances by Telemundo were not wrongful but were designed to encourage or induce the acceptance of the voluntary buyout. Given the circumstances here and the liberal purpose of the statute authorizing unemployment benefits, the requirement of “good cause attributable to the employer” was satisfied.

The UAC order denying benefits is hereby reversed and the case remanded for further proceedings consistent with this opinion.


author: GREEN, J.

text:
    The STATE of Florida, Petitioner, v. Jorge Santiago CRUZ, Respondent.
    No. 3D03-579.
    District Court of Appeal of Florida, Third District.
    July 30, 2003.

      Charles J. Crist, Jr., Attorney General; Katherine Fernandez-Rundle, State Attorney and Angelica D. Zayas, Assistant State Attorney, for appellant.
    Bennett H. Brummer, Public Defender and Manuel Alvarez, Assistant Public Defender; Roberto Pertierra, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   GREEN, J.

The state seeks common law certiorari review of a non-final order excluding the testimony of a confidential informant at trial. We conclude that the lower court’s order departed from the essential requirements of law. Accordingly, we grant the petition and quash the order under review.

Jorge Santiago Cruz was charged with one count of attempted trafficking in cocaine and one count of conspiracy to sell, manufacture, or deliver cocaine. His defense counsel filed a request for certain information about the confidential informant (“Cl”) used in this case pursuant to Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the defense requested that the identity of the Cl, any materials that would detail or document the Cl’s career as an informant, including payment records, performance reports, etc., be disclosed. The assistant state attorney replied to defendant’s request in letter form and stated that the identity of the Cl had previously been disclosed in a discovery exhibit, and that the Cl had never been under contract as an informant with the Miami-Dade Police Department in this case or any other case of which the state was aware. The state attorney also stated that she did not have access to the requested Kyles/Brady materials because the Cl was provided to the Miami-Dade Police Department through the FBI.

After deposing the two lead detectives and the Cl in Cruz’s case, defense counsel requested a continuance alleging that the state attorney’s letter in response to the Kyles/Brady request was misleading and wrong. The defense claimed that the Cl had, in fact, been arrested in Miami-Dade County and placed on probation, and that the Cl had also been arrested in New Jersey on federal charges. In their depositions, the lead detectives stated that the Cl had been used by the department in the past, and that the Cl was possibly “working off’ his state probation by cooperating with Miami-Dade police. Defense counsel claimed that he expressly relied on the state attorney’s assertion that the Cl had no priors, and requested additional time to secure information regarding the Cl’s history.

The defense moved to exclude the Cl’s testimony and to suppress any statements made by the Cl due to the state attorney’s misrepresentations that she had no knowledge of the Cl’s past, when the Cl had previously been a state defendant. The defense claimed that any records concerning the Cl in the FBI’s possession were in the constructive possession of the state, and that the state was therefore obligated to turn those documents over to defense counsel in response to his Kyles/Brady request. At the hearing on the matter, defense counsel also claimed that the Cl made a compact with the federal government to become an informant, and was lent to the state to help them make a case against Cruz.

The state denied these assertions and argued that the deposition testimony of the lead detectives failed to establish the formation of a compact agreement. The trial court granted defendant’s motion and excluded the Cl’s testimony based upon on prosecutorial misconduct and/or lack of due diligence. The state now seeks certio-rari review.

Certiorari review of a non-final pretrial order is appropriate in a case such as this in which, if the defendant is acquitted, the state has no right to a direct appeal. State v. Pettis, 520 So.2d 250, 253-54 (Fla.1988); see also State v. Brown, 782 So.2d 526, 527 (Fla. 1st DCA 2001)(granting certiorari review of interlocutory order excluding state witness from testifying at trial).

When a trial court is made aware of a possible discovery violation by the state within the course of the proceedings, the court has discretion to determine if such violation will prejudice the defendant at trial. Richardson v. State, 246 So.2d 771, 775 (Fla.1971). However, the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Id. The court should inquire as to “ ‘whether the state’s violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.’ ” Id. (quoting Ramirez v. State, 241 So.2d 744, 747 (Fla. 4th DCA 1970)); see also Carnivale v. State, 271 So.2d 793, 795 (Fla. 3d DCA 1973)(also quoting Ramirez).

It is the trial court’s affirmative duty to conduct this “Richardson hearing.” See C.D.B. v. State, 662 So.2d 738, 741 (Fla. 1st DCA 1995)(stating that “[0]nce put on notice of a [discovery] violation, the trial court has an affirmative obligation to conduct a hearing without the defendant specifically requesting one.”). The trial court in the present case made no such effort to seek out the circumstances surrounding the state’s alleged discovery violation.

The trial judge’s ruling on defendant’s motion to exclude the Cl’s testimony was based strictly on the defendant’s argument that the state attorney’s letter regarding the Kyles/Brady information was misleading, and that the depositions of the two lead detectives in the case evidenced the formation of a compact agreement between the state and federal governments regarding the use of the Cl. No inquiry was made as to whether the state attorney’s assertions were made inadvertently or willfully, or whether they prohibited the defendant’s ability to properly prepare for trial.

Without any such evidence, the trial court erred in excluding the Cl’s testimony. Furthermore, “[t]he severe sanction of witness exclusion ... should be a last resort and reserved for extreme or aggravated circumstances, particularly when the excluded testimony relates to critical issues or facts and the testimony is not cumulative.” Austin v. State, 461 So.2d 1380, 1381 (Fla. 1st DCA 1984); see also Donaldson v. State, 656 So.2d 580, 580-81 (Fla. 1st DCA 1995)(stating that witness exclusion should be invoked only after trial court has conducted adequate inquiry as to whether any other reasonable alternatives exist to overcome or mitigate possible prejudice). Since the record does not reflect any purposeful deception on the part of the state attorney, this case does not present circumstances severe enough to support total exclusion of the Cl’s testimony.

Because the trial court did not initiate a full Richardson hearing on this matter, and because there was no information evidencing a discovery violation severe enough to support the trial court’s total exclusion of the Cl’s testimony, we find that the trial judge departed from the essential requirements of the law. Certio-rari is granted and the order under review is quashed. The cause is remanded for further proceedings consistent with this opinion.

Petition granted.

      . The defense also attempted to obtain information regarding the Cl from the FBI by issuing a subpoena duces tecum to the agency requesting documents relating to the Cl’s work for the federal government. The FBI, however, refused to accept service of the subpoena.


author: PER CURIAM.

text:
    Linnies G. SPIKES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-10.
    District Court of Appeal of Florida, Third District.
    July 30, 2003.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Linnies G. Spikes appeals an order denying his motion for postconviction relief. We affirm.

Defendant-appellant Spikes was convicted of burglary of an unoccupied conveyance and sentenced as a violent career criminal. See § 775.084(l)(c), Fla. Stat. (Supp.1996). In his motion, the defendant contends that he does not qualify as a violent career criminal because his offense at conviction was burglary of an unoccupied conveyance. He argues that the offense should not be treated as a forcible felony for these purposes.

We have previously rejected this argument. See Woody v. State, 847 So.2d 566 (Fla. 3d DCA 2003); Perez v. State, 840 So.2d 1125 (Fla. 3d DCA 2003); Rodriguez v. State, 826 So.2d 464 (Fla. 3d DCA 2002), rehearing denied with opinion, 837 So.2d 1177 (Fla. 3d DCA), review denied, No. SC03-444, 848 So.2d 1155 (Fla. 2003); Diaz v. State, 837 So.2d 436 (Fla. 3d DCA 2002); Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002).

Affirmed.

       The crime date was November 23, 1997.


text:
    James Edward BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3244.
    District Court of Appeal of Florida, Third District.
    July 30, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

We affirm the trial court’s revocation of probation and the sentence imposed upon James Edward Bell for violating his probation. However, we remand the cause for entry of a written order providing the specific reasons for concluding Bell violated his probation, as both the State and the Public Defender agree that no such written order appears in the record. See Cifuentes v. State, 717 So.2d 136 (Fla. 3d DCA 1998).

Affirmed, but remanded.


text:
    Morgan CREWS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1200.
    District Court of Appeal of Florida, First District.
    July 31, 2003.

      Robert A. Morris and James C. Banks of Banks & Morris, P.A., Tallahassee, for petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Morgan Crews’ request for a belated appeal from the judgment and sentence rendered on July 25, 2002, in Gadsden County Circuit Court case number 99-216CFA is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

WEBSTER, LEWIS and HAWKES, JJ., concur.


author: VAN NORTWICK, J.

text:
    C.C. mother of A.C., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-4553.
    District Court of Appeal of Florida, First District.
    July 31, 2003.
    Patricia L. Parker, Jacksonville, for Appellant.
    Doris Rompf, Dept, of Children and Families, Jacksonville, for Appellee.
   VAN NORTWICK, J.

C.C., the natural mother of the child A.C., appeals an order terminating C.C.’s parental rights which was entered by the trial court following a remand from this court. C.C. argues that the record evidence is insufficient to support termination. For the reasons that follow, we reverse.

In the order which was the subject of the prior appeal, the trial court had terminated the parental rights of C.C. as to the child A.C. This court reversed, holding that certain findings made in the previously entered termination order were not supported by the record. C.C. v. Department of Children and Family Services, 812 So.2d 520 (Fla. 1st DCA 2002). Our opinion stated that, on remand, the trial court was to reconsider “A.C.’s best interests, in accordance with section 39.810, Florida Statutes (2000)....” Id. at 523.

On remand, the trial court held a hearing on the child’s best interests and received additional evidence. Thereafter, the trial court entered an order styled “Order on Disposition of Manifest Best Interest Hearing” in which it set forth a six paragraph “statement of facts to be true.” Unfortunately, the trial court did not address, directly or indirectly, the factors outlined in section 39.810, Florida Statutes (2000). Because the trial court did not specifically address the factors set forth in section 39.810, it did not comply with this court’s mandate. See id.

Moreover, certain of the material findings of fact contained in the order under review are not supported by the record. For example, the trial court found that the mother was at risk for eviction. There was no specific testimony, however, establishing this fact. Although C.C. admitted she was “behind on her rent,” the report of the guardian ad litem (GAL) states in pertinent part:

[Appellant] has reportedly recently qualified for HUD housing assistance. Her landlord stated to this GAL that she was behind in her rent and that he was able to help her secure housing assistance. [Appellant] stated to this GAL that she was behind in her rent because she was forced to pay for repairs to a leaky roof in her apartment building.

The GAL further testified at the hearing following remand that the appellant’s landlord told the GAL he helped appellant get HUD housing, and that the appellant advised the GAL that she had “received clearance for HUD housing.”

Further, the testimony of the psychologist does not support the trial court’s finding that appellant lacks the parenting skills to care for the child. Rather, in the Parenting Fitness Evaluation, Philip Yates, Ph.D., stated that the appellant, “realistically]” expressed concern that she lacks “sufficient knowledge” about effectively rearing her child. Dr. Yates recommended that appellant attend parenting classes and “at that point it certainly could be considered that any type of visitation could be increased, expanded, and ultimately it is anticipated, consistent with [C.C.’s] desire, that her youngest child would be returned to her care and custody.” Overall, Dr. Yates concluded that “[o]n the basis of current studies performed, [C.C.] is found to be functioning with reasonably positive emotional stability, psychological insight, and freedom from psychopathology.”

The order on appeal is accordingly reversed, and the cause is remanded to the trial court to consider, expressly and specifically, the factors outlined in section 39.810.

REVERSED and REMANDED.

KAHN AND BROWNING, JJ., concur.


text:
    Horace J. SAWYER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D02-2279.
    District Court of Appeal of Florida, First District.
    July 31, 2003.
    Dennis E. Boothe, P.A., Tallahassee, for Petitioner.
    William L. Camper, General Counsel, and Alexandria E. Walters, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks review of the circuit court’s order denying his petition for writ of habeas corpus. He contends that the circuit court did not apply the correct law in upholding the Parole Commission’s revocation of his conditional release supervision. We agree and grant the petition.

Soon after being released on conditional release supervision, petitioner was arrested for possession of cocaine and drug paraphernalia. Although the charges were dismissed, the Parole Commission charged petitioner with violating the conditions of his supervision. After a violation hearing, the parole examiner found that petitioner did not violate the conditions of his supervision and recommended reinstating his conditional release supervision. However, the Parole Commission rejected the examiner’s findings and recommendation and revoked petitioner’s supervision.

Petitioner then filed a petition for writ of habeas corpus in the circuit court. The circuit court denied the petition, holding that sufficient evidence supported the Parole Commission’s finding that petitioner had violated his supervision. Petitioner now argues that the circuit court did not apply the correct law in reaching this determination. In light of our recent opinion in Tedder v. Florida Parole Commission, 842 So.2d 1022 (Fla. 1st DCA 2003), we agree and quash the circuit court’s order. As in Tedder, we remand this case to the circuit court for reconsideration.

BOOTH, BARFIELD and ALLEN, JJ., concur.


author: PLEUS, J.

text:
    Patrick DONNELLY and Leigh A. Donnelly, Appellants, v. MARION COUNTY, et al., Appellees.
    No. 5D02-1851.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2003.

      Richard Bennett and Lisa Bennett of Bennett & Bennett, Coral Gables, for Appellants.
    Gordon B. Johnston, Marion County Attorney, Ocala, and Gregory T. Stewart, Harry F. Chiles and Virginia Saunders Delegal of Nabors, Giblin & Nickerson, P.A., Tallahassee, and Charles R. Forman of Forman, Hanratty & Montgomery, Oca-la, for Appellees.
   PLEUS, J.

This appeal concerns the legality of using special assessments to fund “enhanced law enforcement” and “community resource facilities” in an unincorporated area of Marion County.

Patrick Donnelly, individually and on behalf of others similarly situated, and Leigh Donnelly (the plaintiffs), appeal from an adverse final judgment validating the Marion County Marion Oaks Municipal Service Taxing Unit (MSTU).

The plaintiffs, representing a class of some 14,000 landowners, sued Marion County and the MSTU seeking a declaration that a special assessment levied by the MSTU for the purpose of funding, in the words of the ordinance creating the taxing unit, “law enforcement” and “community resource facilities,” was unconstitutional. The plaintiffs alleged that the services funded by the special assessment provided no special benefit and had no logical relationship to the class members’ real property. The complaint also challenged apportionment of the assessments.

The plaintiffs and approximately 14,000 class members are owners of unimproved property within the Marion Oaks development in Marion County subject to annual levy of non ad valorem special assessments fixed by the MSTU. The actual class was certified by the trial court consisting of all owners of unimproved real estate located within the boundaries of the Marion Oaks MSTU who are listed on the current tax roll. The plaintiffs’ lots are located on paved roads but contain no structures. The MSTU and Marion County are governed by the Marion County Board of County Commissioners.

Marion County had previously created a municipal service taxing unit which provides law enforcement services in the unincorporated area of the county funded by a special ad valorem tax. That service is provided to properties in the Marion Oaks MSTU. Enhanced law enforcement (greater patrols, creation of a sheriffs substation in Marion Oaks) is provided pursuant to the instant MSTU funded by the special assessment.

The assessments fund 160 hours per month of sheriff services in Marion Oaks. The assessments have also been used to construct and operate a 450-seat auditorium and a building containing recreational areas and rent-free space for a public library, a sheriffs substation and a neighborhood watch office. The grounds contain sports courts (basketball, tennis, shuffleboard) and a children’s playground.

This MSTU was created after a referendum election in 1988 when the voting residents of Marion Oaks approved enhanced law enforcement services and a community resource facility within Marion Oaks to be funded by special assessments on properties within the development.

Ordinance 88-37, in creating the Marion Oaks MSTU, does so under section 125.01(l)(q), Florida Statutes, “for the purpose of providing law enforcement and the construction, maintenance, and operation of community resource facilities.... ” The ordinance authorized the collection of special assessments beginning in 1989 at the following rates (the assessments continue to be imposed at the same rates):

Improved Property $25
Partially Improved Property $20
Commercial Improved $25
Commercial Tracts O «e-
Greenbelt lo -e/s-

The annual resolution of the Marion County Commission imposing the assessment contains no legislative finding of special benefit from 1990-96. Beginning in 1997, the annual resolution asserts that the services funded provide a special benefit to the properties assessed. No legislative finding of fair apportionment was included in any resolution until 2001.

The MSTU currently has six employees. The MSTU contracts annually with the Sheriffs Department to provide for patrols and investigative services at Marion Oaks for a total of 160 hours per month. The MSTU construction debt has been satisfied and the annual assessments now pay for operations and maintenance of the facilities and the sheriffs services and for reserves.

The plaintiffs moved for partial summary judgment claiming Ordinance 88-37 was unconstitutional under Florida law and that the assessments made pursuant to it were invalid as a matter of law. The defendants countered with their own motion for partial summary judgment.

The trial court denied the plaintiffs’ motion and granted the defendants’ motion, finding the ordinance to be valid, facially constitutional and constitutional as applied. The court declined to rule on the actual correctness of the assessments, finding that genuine issues of material fact existed which necessitated an evidentiary hearing.

At trial, the plaintiffs’ expert, Dr. Nicholas, and the defendants’ expert, Dr. Fish-kind, testified on the issues of special benefit and fair apportionment of the special assessments. At the close of the plaintiffs’ case, the court entered judgment for the defendants on the issue of special benefit. The court found that the assessments do not fund general government services but supplement such services. The court ruled that the special assessments provide a special benefit to the assessed properties by enhancing the value of the property and creating a community identity. At the close of the trial, the court ruled that the assessments were fairly and reasonably apportioned among the benefitted properties. A final judgment incorporating these rulings was entered.

In order for a special assessment to be valid and enforceable, it must be made pursuant to legislative authority and the method prescribed by the Legislature must be substantially followed. Madison County v. Foxx, 636 So.2d 39 (Fla. 1st DCA 1994). Further, a valid special assessment requires that the property assessed must derive a direct, special benefit from the service provided and that the assessment must be fairly and reasonably apportioned among properties that receive the special benefit. City of North Lauderdale v. SMM Props., Inc., 825 So.2d 343 (Fla.2002); Workman Enters., Inc. v. Hernando County, 790 So.2d 598 (Fla. 5th DCA 2001).

Counties are authorized by the Florida Constitution to levy ad valorem taxes on real property and are authorized by general law to impose special assessments and user fees. Collier County v. State, 733 So.2d 1012 (Fla.1999). The county, in enacting Ordinance 88-37, acted pursuant to section 125.01(l)(q), Florida Statutes, which provides in relevant part that counties have the power to:

Establish, and subsequently merge or abolish those created hereunder, municipal service taxing or benefit units for any part or all of the unincorporated area of the county, within which may be provided fire protection; law enforcement; beach erosion control; recreation service and facilities; water, alternative water supplies, including, but not limited to, reclaimed water and water from aquifer storage and recovery and desalination systems; streets; sidewalks; street lighting; garbage and trash collection and disposal; waste and sewage collection and disposal; drainage; transportation; indigent health care services; mental health care services; and other essential facilities and municipal services from funds derived from service charges, special assessments, or taxes within such unit only. Subject to the consent by ordinance of the governing body of the affected municipality given either annually or for a term of years, the boundaries of a municipal service taxing or benefit unit [MSTU; MSBU] may include all or part of the boundaries of a municipality. In ad valorem taxes are levied to provide essential facilities and municipal services within the unit, the millage levied on any parcel of property for municipal purposes by all municipal service taxing units and the municipality may not exceed 10 mills. This paragraph authorizes all counties to levy additional taxes, within the limits fixed for municipal purposes, within such municipal service taxing units under the authority of the second sentence of s. 9(b), Art. VII of the State Constitution.

The concept underlying MSTUs and MSBUs developed in the late 1960s as a way of avoiding taxation of real property within municipalities to finance services rendered by the county purely for the benefit of unincorporated areas. See Sarasota County v. Town of Longboat Key, 353 So.2d 569 (Fla. 2d DCA 1978), quashed in part on other grounds, 375 So.2d 847 (Fla.1979). Section 125.01(l)(q), originally enacted in 1974, authorizes a county to provide “municipal services” and provides for a mechanism whereby only the recipient of the services pays for such services. By creation of municipal service taxing or benefit units within its unincorporated areas, the county can assess the full costs of the “municipal service” provided to that unit. Sarasota County, 353 So.2d at 570.

While the language in section 125.01(l)(q) contains an extensive list of municipal-type services and several funding alternatives, including “service charges, special assessment or taxes,” this court has read this language as being descriptive and not necessarily “authorizing all listed services to be funded by all of the devices identified.” Water Oak Mgmt. Corp. v. Lake County, 673 So.2d 135, 136 n. 3 (Fla. 5th DCA 1996), quashed in part, 695 So.2d 667 (Fla.1997). Nevertheless, case law has recognized that counties are authorized by section 125.01(l)(q) to levy special assessments to fund certain services provided through a MSTU or MSBU. See, e.g., Workman Enters., 790 So.2d at 598 (fire rescue services); Lake County, 673 So.2d at 136 (solid waste disposal and fire protection services).

The plaintiffs assert that the MSTU here, as funded by special assessments, violates article VII, section 9(b) of the Florida Constitution, which governs local taxes and provides:

(b) Ad valorem taxes, exclusive of taxes levied for the payment of bonds and taxes levied for periods not longer than two years when authorized by vote of the electors who are the owners of freeholds therein not wholly exempt from taxation, shall not be levied in excess of the following millages upon the assessed value of real estate and tangible personal property: for all county purposes, ten mills; for all municipal purposes, ten mills; for all school purposes, ten mills; for water management purposes for the northwest portion of the state lying west of the line between ranges two and three east, 0.05 mill; for water management purposes for the remaining portions of the state, 1.0 mill; and for all other special districts a millage authorized by law approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation. A county furnishing municipal services may, to the extent authorized by law, levy additional taxes within the limits fixed for municipal purposes.

(Emphasis added). Plaintiffs contend that by funding municipal services by special assessment rather than ad valorem taxes, Marion County has avoided having to include these assessments within the 10 mill limit for municipal purposes, thus circumventing the constitutional provision. Absent a claim that the effect of the special assessment is to, in fact, exceed the 10 mill cap, we find it unnecessary to address this interesting but purely academic question.

The circuit court correctly observed, in entering partial summary judgment finding Ordinance 88-37 to be facially constitutional, that “counties have the authority to impose assessments pursuant to their home rule power in the Florida Constitution and also pursuant to the broad grant of power given to the counties in § 125.01, F.S.” This is consistent with Sockol v. Kimmins Recycling Corp., 729 So.2d 998 (Fla. 4th DCA 1999), wherein the Fourth District explained that a broad interpretation of section 125.01(1) is mandated by Florida law:

The powers enumerated in section 125.01 are not all inclusive, and a county’s authority includes that which is “reasonably implied or incidental to carrying out is [sic] enumerated powers,” limited only by general or special law. Santa Rosa County v. Gulf Power Co., 635 So.2d 96, 99 (Fla. 1st DCA 1994). Section 125.01(3)(b) provides for a liberal construction of section 125.01 “in order to effectively carry out the purpose of this section and to secure for the counties the broad exercise of home rule powers authorized by the State Constitution.”

729 So.2d at 1001.

Even given that the county had the authority under section 125.01 to enact Ordinance 88-37, the plaintiffs, relying on deci-sional law, in particular the supreme court decision in Lake County, assert that the trial court erred in failing to grant their motion for summary judgment or otherwise enter judgment in their behalf on the basis that use of a special assessment for the services at issue here was improper as a matter of law.

A special assessment is a “charge assessed against property of some particular locality because that property derives some special benefit for the expenditure of money.” Workman Enters., 790 So.2d at 600 (quoting Atlantic Coast Line R.R. Co. v. City of Gainesville, 83 Fla. 275, 91 So. 118 (1922)). In Sarasota County v. Sarasota Church of Christ, Inc., 667 So.2d 180, 182-83 (Fla.1995), the supreme court distinguished a special assessment from a tax:

Taxes are levied throughout a particular taxing unit for the general benefit of residents and property and are imposed under the theory that contributions must be made by the community at large to support the various functions of the government. Consequently, many citizens may pay a tax to support a particular government function from which they receive no direct benefit. Conversely, special assessments must confer a specific benefit on the land burdened by the assessment and are imposed under the theory that the portion of the community that bears the cost of the assessment will receive a special benefit from the improvement or service for which the assessment is levied.

As a broad proposition, special assessments may be used by counties to fund certain services and are not limited to purely capital improvements. Madison County. Courts have validated special assessments to fund fire and rescue services, Workman Enterprises, waste and recycling services, Sockol, and solid waste disposal and fire protection services, Lake County. See also, Sarasota Church of Christ, Inc. (holding storm water services proper subject for special assessment); Harris v. Wilson, 693 So.2d 945 (Fla.1997) (holding solid waste operation valid subject of special assessment).

In Lake County, the supreme court was confronted with the use of special assessments to fund fire protection services through an MSTU in an unincorporated area of Lake County. The court explained that the limited inquiry in determining whether to validate a special assessment concerns whether the services at issue provide a “direct, special benefit” to the assessed property. 695 So.2d at 670. The court majority continued that in evaluating whether a special benefit is conferred to property by the services for which the assessment is imposed:

that the test is not whether the services confer a “unique” benefit or are different in type or degree from the benefit provided to the community as a whole; rather the test is whether there is a “logical relationship” between the services provided and the benefit to real property.

Id.

The majority explained that while fire protection services are generally available to the community as a whole, the greatest benefit of those services is to owners of real property who enjoy reduced fire insurance premiums and enhancement of the value of the property. In short, “there is a ‘logical relationship’ between the services provided and the benefit to real property.” Id.

In rejecting the dissent’s warning that approval of such a special assessment would open the floodgates to such assessments, the court, in dictum, observed:

Clearly, services such as general law enforcement activities, the provision of courts, and indigent health care are, like fire protection services, functions required for an organized society. However, unlike fire protection services, those services provide no direct, special benefit to real property. Whisnant [v. Stringfellow, 50 So.2d 885 (Fla.1951) ]. Thus, such services cannot be the subject of a special assessment because there is no logical relationship between the services provided and the benefit to real property.

695 So.2d at 670 (emphasis added).

This passage clearly indicates that not evéry municipal-type service provided by a county may be funded by way of special assessment. Indeed, recently in the City of North Lauderdale case, a unanimous court struck down a special assessment for emergency medical services, rejecting the City’s assertion that the special assessment confers a special benefit to real property because a logical relationship exists between the use and enjoyment of property and the emergency medical services. Justice Quince, writing for the court, explained that emergency medical services provide a personal benefit to individuals, and that while such services may afford a sense of security to individuals, neither the service nor the sense of security is provided to the property itself. Emergency medical services were distinguished from those typically associated with first response medical aid provided by firefighters as part of their normal duties. 825 So.2d at 346-47. The court declined to extend Lake County, rejecting the contention that a special assessment that provides a higher level of medical services is a natural and logical application of that decision. Id.

Rather, while acknowledging the deference to be accorded a legislative body’s determination of special benefit, the court agreed with the Fourth District’s conclusion that competent substantial evidence did not exist to support the City’s findings of special benefit. Id. at 348. The court instead found that the special assessment had the indicia of a tax, explaining:

there is no logical relationship between emergency medical services (the assessment, treatment, and transport of sick or injured people) and a special benefit to real property. Emergency medical services provide a personal benefit to individuals. There is no indication from the City or in the record how emergency medical services enhance the value of the property against which the assessment is imposed. The better argument made by the City is that the provision of emergency medical services has a logical relationship to property because these services enhance the use and enjoyment of property. See Meyer v. City of Oakland Park, 219 So.2d 417 (Fla.1969). As to the “use and enjoyment” argument, however, it does not follow that one has potential added or actual use and enjoyment of property because emergency medical services are provided to owners of that property. Although emergency medical services may provide a sense of security to individuals, neither the service nor the sense of security is provided to the property itself.

Id. at 350.

City of North Lauderdale reaffirms Florida decisional law such as Crowder v. Phillips, 146 Fla. 440, 1 So.2d 629 (1941), which struck down use of special assessments to fund hospital services. In Crow-der, the court explained:

It is clear that the tax to be imposed under the provisions of the law under attack is ad valorem on all real and personal property as distinguished from assessments for special benefits to the real property located in the district. That a hospital is a distinct advantage to the entire community because of its availability to any person who may be injured or stricken with disease cannot be gainsaid, but there is no logical relationship between the construction and maintenance of a hospital, important as it is, and the improvement of real estate situated in the district. The purpose is, of course, to provide a place where those who are so unfortunate as to be injured or to become diseased may receive the benefits of medical skill and modern apparatuses whether they be the owners of property or not, and such advantages cannot fall in the category of special benefits to real property for which assessments would be authorized.

1 So.2d at 631.

City of North Lauderdale, the dictum in Lake County, and the Collier County decision wherein the supreme court rejected the claim that an “interim governmental service fee” for “growth sensitive services” including operation of the sheriffs office, could be funded by special assessment, reflect the supreme court’s recognition of limits on the use of special assessments to fund municipal-type services that, while providing a general benefit to individuals, do not confer a direct benefit upon the land burdened by the assessment. The plaintiffs assert that the services funded here by special assessment, law enforcement and recreation/community center facilities/serviees, are precisely those type of services.

The defendants seek to distinguish this decisional law by asserting that the law enforcement services here are “enhanced” rather than general law enforcement services provided to all county residents. The defendants assert that the county commission made a finding of special benefit in resolutions imposing the assessments in 1997 and thereafter and that this legislative finding is entitled to deference, having not been shown to be arbitrary. See Sarasota Church of Christ, Inc., 667 So.2d at 180 (holding that legislative determination of special benefit will be upheld unless arbitrary; if reasonable people may differ as to whether land assessed was benefit-ted, determination will be sustained).

Merely because a special assessment is rationally related to an increased demand by residents for county services does not establish the existence of a special benefit. Collier County, 738 So.2d at 1017. Rather, the services funded must provide a direct, special benefit to the real property burdened. Id. (emphasis added).

“Enhanced” law enforcement services provide no more direct, special benefit to real property than basic law enforcement activities. The defendants’ argument confuses the nature of the service with the level or degree of such service. It is the nature of law enforcement services which precludes funding by way of special assessment because such services, while undoubtedly beneficial to individuals, do not directly benefit the real property being burdened. See Crowder.

The defendants assert that City of North Lauderdale, the dictum in Lake County and Collier County, actually stand for the principle that improvements or services such as courthouses and general law enforcement, which provide a general government benefit county-wide, may not be funded by special assessment, but that where the specific improvement or service is provided within a discrete geographic area, a special assessment is appropriate to fund the improvement or service. In other words, the funds generated here are not going into the county’s general fund but are used to provide a benefit within the Marion Oaks MSTU. Irrespective of the size of the geographic area being assessed, however, the test for the validity of a special assessment is not merely whether some benefit results from the assessment, but rather whether the improvement or service provides a direct, special benefit to the real property burdened.

The defendants rely on Rushfeldt v. Metropolitan Dade County, 630 So.2d 643 (Fla. 3d DCA 1994), for validating the special assessment in this case. Rushfeldt validated, under the Dade County Home Rule Charter, an ordinance creating the Belle Meade Security Guard Special Taxing District, whereby special assessments were used to fund a security guard gate and security guard services within the district. The appellate court opinion adopted the trial court’s summary final judgment which recites that communities in Dade County were electing to supplement police services with walled communities, neighborhood crime watch, off-duty police patrols and protected entrances, including guardhouses and gates. This finding indicates that the nature of the services in Rushfeldt, including capital improvements directly related to real property, differs significantly from the increased county sheriff patrols and recreation services funded in this case.

Even assuming arguendo that summary judgment was properly denied to the plaintiffs because of the factual nature of the issue of special benefit, the evidence presented at trial failed to establish the requisite direct, special benefit. Unlike in Lake County, where it was established that fire protection services provide for lower homeowners insurance premiums and enhanced property values, the evidence of special benefit to the real property here consisted solely of expert testimony that enhanced law enforcement protection generally renders real property more valuable and more marketable. However, so does the provision of general law enforcement services. Yet, as indicated in Lake County, such services may not form the proper basis for a special assessment. Any benefit here is not the type of direct, special benefit to real property required to validate a special assessment.

This conclusion is buttressed by City of Winter Springs v. State, 776 So.2d 255 (Fla.2001), which is actually relied upon by the defendants for the proposition that services which create a community identity and have a beneficial impact on the value of the real property may be funded by special assessment. The special assessment there actually funded improvements to subdivision entrances and boundaries which included new signs, landscaping and street lighting. Again, these capital-type improvements provided a direct, special benefit to the real property being assessed, and the fact that people outside the assessed area may have incidentally bene-fitted from the improvements was not fatal to the special assessment. Conversely, the services here, which inure to the benefit of all Marion County residents, provide at the very most, a vague, indirect benefit to the real property being assessed.

The defendants’ contention that an increase in value to real property is, in and of itself, enough of a direct benefit to sustain a special assessment, would seem to validate just about any such assessment. It is difficult to envision how the competent provision of any municipal-type service by a county would have any effect other than to enhance, to some degree, property values.

The trial court’s final judgment indicates that special benefit to the land may include benefits which, while not immediately enjoyed, may be reaped in the future:

[I]n considering the existence of special benefits and the apportionment thereof, it is proper to consider not only the benefits derived by the existing use of the property but also those which may result from any reasonable future use of the property.

In this vein, the defendants point out that the extension of water and sewer lines to unimproved property with accompanying special assessments have been upheld despite the fact that the property may not be developed for some time. However, in those situations, the direct benefit to the real property in the form of the capital improvements is clearly quantifiable. That is not evident in the instant case where the defendants’ own expert testified he was unable to say with any exactitude what the increase in the value of any particular lot in the MSTU was as a result of provision of the services at issue, even though he was confident that the lots “are more valuable and more marketable.”

The county commission “cannot by its fiat make a local improvement to that which in its essence is not such an improvement, and it cannot by its fiat make a special benefit to sustain a special assessment where there is no special benefit.” City of North Lauderdale, 825 So.2d at 348 (quoting South Trail Fire Control Dist. v. State, 273 So.2d 380, 383 (Fla.1973)). The trial court erred in failing to enter judgment for the plaintiffs on the basis that the special assessment for the services in this case was unauthorized as a matter of Florida law. Given our conclusion, we need not address whether competent, substantial evidence supports the trial court’s finding that the assessment is properly apportioned.

We reverse the partial summary judgment and final judgment and invalidate Ordinance 88-37. In doing so, we express no opinion on the issue of any refund of assessments paid, an issue which has yet to be litigated. The plaintiffs are free to raise their claim upon remand and the defendants may interpose any applicable defenses, including statute of limitations and laches.

REVERSED AND REMANDED.

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

      . Marion Oaks was developed by the Deltona Corp. which marketed the lots particularly to out-of-state buyers. As a result, some 12,000 class members reside out of state and are not qualified to vote in Marion County.

      . These facilities are located within the Marion Oaks development on land donated by the Deltona Corp. Use of the facilities is not limited to residents of Marion Oaks. There are some fee-based activities at the facility for which other county residents pay higher fees than do residents of Marion Oaks.

      . The plaintiffs’ properties are assessed at the “partially improved property” rate.

      . Art. VII, § 9(a), Fla. Const.

      . Counties need not create an MSTU or MSBU in order to levy special assessments on a portion of unincorporated lands for municipal services. Sockol v. Kimmins Recycling Corp., 729 So.2d 998 (Fla. 4th DCA 1999). Counties have the power to levy special assessments pursuant to section 125.01(5)(a) (special districts) and section 125.01(l)(r).

      . Historically, special assessments were imposed to fund capital improvements such as water and sewer lines, Meyer v. City of Oakland Park, 219 So.2d 417 (Fla.1969) and street improvements, Bodner v. City of Coral Gables, 245 So.2d 250 (Fla.1971). More recently, special assessments have been used to fund certain services.

      . Collier County involved an effort by the county to augment "growth sensitive governmental services” including the sheriff's office, libraries and parks and recreation which already received funding from ad valorem tax revenues. The county’s argument that the "interim governmental service fee” was a valid special assessment was rejected with the court finding that the fee had the indicia of a tax and that the services provide no direct special benefit to the real property being assessed.

      . WHEREAS, the Board finds that the property within the MSTU will derive a special benefit from the expenditure of money collected pursuant to this resolution and the ordinance.

      . The defendants rely on Williams v. Escambia County, 725 So.2d 392 (Fla. 1st DCA 1999). Williams is a two-paragraph decision which cites to no authority in holding that special assessments by the county on leasehold interests for mosquito control and police protection was lawful. Williams seems to be a unique case involving funding of local government services to Santa Rosa Island, an island owned by the county and leased by long term leases. Because the land was owned by the county, it escaped ad valorem taxation. In any event, the decision does not contain sufficient facts to permit it to serve as precedent for the special assessments here.

      . Even the defendants’ expert could not find any relationship between lower insurance rates and the services being provided.


author: SHARP, W, J. ORFINGER, J.,

text:
    TOWN OF OAKLAND, Appellant, v. Michael D. MERCER, Appellee.
    No. 5D02-2308.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2003.

      J. Edwin Mills, Orlando, for Appellant.
    Robert Alfert, Jr., P.A., of Broad and Cassel, Orlando, for Appellee.
   SHARP, W, J.

The Town of Oakland appeals from a final summary judgment entered against it in a forfeiture case. We affirm. The record reveals no unresolved issues of material fact, and the appellee, Michael Mercer (Mercer), is entitled to judgment as a matter of law.

The record discloses that on November 1, 2000, Oakland, acting through its police officer, Kelley, seized a 1999 Ford truck to investigate the legitimacy of its registration. He later determined that there was a 9,000 mile discrepancy in the truck’s odometer mileage reading. On that day Kelley talked with Shelby Auto Sales (Shelby), an Ohio auto dealer, who was indicated as the title holder on a title document issued by the State of Ohio found in the truck. He also spoke with Mercer, the individual to whom Shelby had transferred the title, as indicated by Shelby’s signature on the back of the title.

Oakland filed a forfeiture complaint on December 19, 2000. On the same day, Shelby made a demand for a post seizure adversarial hearing. The hearing was held on December 21, 2000, at which time Oakland had the burden of establishing probable cause for forfeiture of the property seized — a due process requirement. See § 932.703(2)(a), Fla. Stat. (2000); In re Forfeiture of One Hundred Seventy-One Thousand Nine Hundred Dollars ($171,900) in United States Currency, 711 So.2d 1269 (Fla. 3d DCA 1998).

At that hearing, the court determined that Shelby did not have standing to contest the forfeiture based on arguments presented by Oakland. When questioned by the court, Oakland’s attorney argued that Mercer was the only person who could contest the forfeiture because, as evidenced by the title certificate, Shelby had transferred ownership of the truck to Mercer. In addition, the attorney pointed out that Mercer had obtained insurance coverage from State Farm for the truck.

Shelby’s agent, Kaufman, testified that he had accepted money from Mercer for the truck, and he had executed the Ohio title to the truck to Mercer. He tried to transfer Florida title to Mercer, but the tag office in Florida refused to accept the title, since its records showed an “unre-buildable title” status. Kaufman agreed to refund Mercer’s money and take back the truck if he could not straighten out the title problems. He contacted the auction where the truck had been purchased, to clear up the title problem, and later obtained a clean title. At the conclusion of the hearing, the judge found Shelby did not have standing and thus did not reach the probable cause issue.

On January 11, 2001, Mercer filed a motion to dismiss the forfeiture complaint, or for summary judgment. At this hearing, the attorneys for both parties agreed the title issue had been cleared up and a clean title had been issued. However, the attorney for Oakland argued Mercer did not have standing to contest the forfeiture. The trial court entered final summary judgment for Mercer.

With regard to Mercer’s standing to contest the forfeiture, we agree with the ruling below for two reasons. Section 932.701(2)(h) defines “claimant,” persons who have standing to contest forfeiture of property under the act, as “any party who has a proprietary interest in property subject to forfeiture and has standing to challenge such forfeiture, including owners, registered owners, bona fide lien holders, and titleholders.” Mercer was indicated as the title holder in the first proceeding, and at this hearing on his motion to dismiss, the attorneys agreed the title issue had been resolved. At the first hearing, the title status may have been unclear since it was in the process of being transferred from Shelby to Mercer, but the undisputed fact that Mercer had paid for the vehicle, and had it insured clearly gave him a “proprietary interest” in the truck as an owner. No contrary evidence was presented at this hearing.

The second reason to affirm the trial judge in this case is judicial estoppel. See Smith v. Avatar Properties, Inc., 714 So.2d 1103, 1107 (Fla. 5th DCA 1998); Dubois v. Osborne, 745 So.2d 479, 480-1 (Fla. 1st DCA 1999). Citing to Smith v. Avatar Properties, Inc., the court in Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001) said:

A claim made or position taken in a former action or judicial proceeding will, in general, estop the party to make an inconsistent claim or to take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party.
In order to work an estoppel, the position assumed in the former trial must have been successfully maintained.

In this case Oakland successfully maintained that Shelby lacked standing to contest the forfeiture at the post seizure adversarial hearing held December 21, 2000. Shelby was in the difficult position of having sold the truck to Mercer, accepted his money, and not having been able to com-píete the title transfer due to a “mistake” in the title records. Oakland claimed only Mercer had standing, and thus it successfully avoided the merits of a probable cause hearing. Having prevailed at the December 21, 2000 hearing, on Shelby’s lack of standing because only Mercer had standing, Oakland cannot now be heard to question Mercer’s standing as owner and title holder in this proceeding.

We also agree with the trial court’s implicit ruling, that the truck in this case was “seized” on November 1, 2000, not November 22, 2000, as now argued by Oakland. Officer Kelley testified the vehicle was seized on the earlier date, and that Oakland would not have released the vehicle to either Shelby or Mercer thereafter. It thus follows that Oakland failed to give Mercer notice of the seizure of the truck within the five days provided by section 932.703(2)(a). It also follows that pursuant to section 932.704(4), Oakland’s complaint to forfeit the truck, filed on December 19, 2000, was untimely.

Section 932.704(4) requires a seizing agency to “promptly proceed” by filing a complaint in order to effect a forfeiture. Section 932.701(2)(c) defines “promptly proceed” as “to file the complaint within 45 days after seizure.” The 45 day period may be extended to 60 days for good cause, but good cause was neither alleged below nor argued on appeal. The 45-day period after seizure of the truck ended December 16, 2000. At the December 21, 2000 hearing, Oakland conceded the complaint had been filed late, on December 19, 2000.

We reject Oakland’s argument on appeal, that it did not seize the truck on November 1, 2000, but rather was merely holding it for further investigation. Oakland claims it did not decide to seize the truck until November 22, 2000. As the trial judge noted, there is nothing in the evidence that gives this date any significance.

It is the date of the seizure of the item sought to be later forfeited which starts the running of the time period in section 932.703(3), not the subjective determination by the governmental agency to seek forfeiture. In re: Forfeiture of One 1988 Lincoln Town Car, 826 So.2d 342 (Fla. 2d DCA), rev. granted, 826 So.2d 992 (Fla.2002); In re Forfeiture of One (1) 1994 Honda Prelude, 730 So.2d 334 (Fla. 5th DCA 1999). If Oakland’s interpretation were accepted, it would permit seizing agencies to retain property as long as they desired under the concept that they did not intend to seek forfeiture at the time of taking. That would eviscerate the provisions in the forfeiture statute which require a governmental agency to act promptly. Due process mandates that the provisions of the forfeiture act be strictly interpreted in favor of the persons being deprived of their property. See In re Forfeiture of 1969 Piper Navajo Model PA-31-310, S/N-31-395 U.S. Registration N-1717G, 570 So.2d 1357 (Fla. 4th DCA 1990); Cabrera v. Dept. of Natural Resources, 478 So.2d 454, 456 (Fla. 3d DCA 1985); Pheil v. Griffin, 469 So.2d 942 (Fla. 5th DCA 1985).

AFFIRM.

PETERSON, J., concurs.

ORFINGER, J., concurs specially with opinion.

ORFINGER, J.,

concurring specially.

I concur with this court’s opinion affirming the trial court’s order because I am bound to follow our earlier opinion in In re Forfeiture of One (1) 1994 Honda Prelude, 730 So.2d 334 (Fla. 5th DCA 1999). However, I believe Honda Prelude merits reexamination.

Section 932.704(4), Florida Statutes (2001), requires a seizing agency to “promptly proceed” with a civil forfeiture action by filing a forfeiture complaint within 45 days following a property seizure. See also § 932.701(2)(c), Fla. Stat. (2001). Because forfeiture statutes are to be strictly construed, Cochran v. Jones, 707 So.2d 791 (Fla. 4th DCA 1998), and the Town of Oakland failed to “promptly proceed” by filing its forfeiture complaint within 45 days following seizure of the vehicle as required by statute, the trial court held that it lacked subject matter jurisdiction to proceed, consistent with our holding in Honda Prelude. But whether the 45-day time period found in section 932.701(2)(c) (extendable to 60 days under certain circumstances) is a jurisdictional bar is a matter of some debate. For example, in In re Forfeiture of One 1988 Lincoln Town, Car, 826 So.2d 342 (Fla. 2d DCA), review granted, 826 So.2d 992 (Fla.2002), the Second District Court of Appeal held that the 45-day statutory time period found in the forfeiture statute is not jurisdictional contrary to our holding in Honda Prelude.

Lincoln Town Car represents an interpretation of the effect of such time periods consistent with that utilized by the federal courts in construing the federal forfeiture statute. In United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993), the Supreme Court addressed the issue of whether a civil forfeiture action, filed within the statute of limitations, but without complying with other statutory timing directives, deprived the court of jurisdiction, thus requiring dismissal of the action. In finding that an untimely filing did not compel dismissal so long as the action was filed within the statute of limitations, the Court noted that “ ‘many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them ... do not limit their power or render its exercise in disregard of the requisitions ineffectual’.” Id. at 63, 114 S.Ct. 492 (quoting French v. Edwards, 80 U.S. (13 Wall.) 506, 511, 20 L.Ed. 702 (1872)). Consequently, “if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.” Id. (citations omitted). The Supreme Court reasoned that, where Congress had included various “promptness” requirements in the statutory forfeiture provisions but included no statutory penalty for failure to meet those requirements, the Court would not impose its own sanction of dismissal provided that the forfeiture action was filed within the applicable statute of limitations. Id. at 64-65, 114 S.Ct. 492.

Other federal courts have reached the similar results when considering time periods established in other statutes. See, e.g., Shenango Inc. v. Apfel, 307 F.3d 174, 193 (3d Cir.2002) (statutory deadline does not, by itself, establish that Congress intended to strip an agency’s authority to act after the deadline has passed); Friends of Aquifer, Inc. v. Mineta, 150 F.Supp.2d 1297 (N.D.Fla.2001) (holding that group was not entitled to writ of mandamus, given that it was not clear that Congress intended deadlines for meeting the standards to be mandatory, even though the statute provided that the Secretary “shall” prescribe certain regulations not later than given deadlines); Bhd. of Ry. Carmen Div. v. Pena, 64 F.3d 702, 704 (D.C.Cir.1995); Canadian Fur Trappers Corp. v. United States, 691 F.Supp. 364, 12 Ct. Int’l Trade 612, 616 (1988) (holding that a statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provisions), aff'd, 884 F.2d 563 (Fed.Cir.1989).

While section 932.704(4) requires the seizing agency to “promptly proceed” against the seized property by filing a forfeiture action in the circuit court, the Legislature has not specified any sanction for the failure to proceed “promptly.” Consequently, I believe the sanction of dismissal we opted for in Honda Prelude is unwarranted. Further, our conclusion in Honda Prelude also renders the four-year statute of limitations for forfeiture proceedings found in section 95.11(3)(n), Florida Statutes (2002), meaningless. See Mosley v. State ex rel. Broward County, 363 So.2d 172 (Fla. 4th DCA 1978) (holding section 95.11(3)(n) was applicable to proceedings under section 943.44 (which was later renumbered 932.701-.704, the statutes at issue)).

Based on the reasoning of James Daniel Good Real Property and Lincoln Town Car, if not for our opinion in Honda Prelude, I would conclude that because the Legislature has not specified a consequence for noncomplianee with section 932.704(4), it did not intend to require dismissal of a forfeiture action for noncompliance with the 45-day deadline. I would recede from Honda Prelude and hold that the trial court had jurisdiction to consider the Town of Oakland’s forfeiture complaint. However, because I am bound by this court’s opinion in Honda Prelude, I concur in the opinion.

      . Odometer fraud is a third degree felony, section 319.35(5), Fla. Stat.2000, which provides a possible basis for forfeiture. See, In re: Forfeiture of One 1988 Lincoln Town Car, 826 So.2d 342 (Fla. 2d DCA), rev. granted, 826 So.2d 992 (Fla.2002); In re Forfeiture of One (1) 1994 Honda Prelude, 730 So.2d 334 (Fla. 5th DCA 1999).

      . That is, the truck had previously been in a crash and was deemed unrebuildable.

      . Section 932.703(2)(a), Fla. Stat.(2000) provides: Notice provided by certified mail must be mailed within 5 working days after the seizure and must state that a person entitled to notice may request an adversarial preliminary hearing within 15 days after receiving such notice ... Mercer as an “owner” was a party entitled to notice. § 932.701(2)(c), Fla. Stat. (2000).

      . § 932.703(3), Fla. Stat. (2000).


author: ORFINGER, J.

text:
    James RAVITCH, Appellant, v. Tess A. WHELAN, Appellee.
    No. 5D02-3893.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2003.

      Shannon L. Akins of Shannon L. Akins, P. A., Orlando, for Appellant.
    No Appearance for Appellee.
   ORFINGER, J.

James Ravitch appeals an injunction for protection against repeat violence entered against him following the termination of his relationship with Tess Whelan. Because the record contains no evidence of any violence or misconduct to justify the issuance of an injunction, we reverse.

After dating for approximately nine months, Ravitch broke up with Whelan on September 20, 2002. They attempted reconciliation but split up again about a week later, this time at Whelan’s insistence. Between September 27, 2002, and October 13, 2002, Whelan sent Ravitch five emails advising him that there would be no further effort at reconciliation. Over the course of the next month, Ravitch left messages on Whelan’s voice mail system and sent her emails, none of which were hostile or threatening.

At the hearing, Whelan testified that although the parties saw one another five or six times over the five-week period following the final split-up at a restaurant/bar they both patronized, Ravitch never tried to make contact with her. On one of these occasions, Whelan went to the restaurant, sat four tables away from where Ravitch was already seated, and dined with friends. That same evening, Ravitch visited Whe-lan’s home for the second time since the breakup, leaving some personal items belonging to Whelan on the doorstep along with two notes, a card, and a rose.

After it became apparent that no reconciliation would occur, Ravitch wrote to Whelan, asking that she repay monies allegedly owed to him. Ravitch claimed he loaned Whelan approximately $20,000 over the course of the relationship. When Whelan failed to respond, Ravitch’s attorney sent a letter to Whelan asking for repayment of the monies; again, Whelan did not respond.

Less than two weeks later, Whelan filed a petition for injunction for protection against repeat violence pursuant to section 784.046, Florida Statutes (2002). The petition alleged that the two qualifying instances of violence were (1) an attached diary of her “documentation of stalking” and (2) her statement that “on November 10, 2002, the phone lines to my house were destroyed.” After a hearing, the trial judge concluded that Ravitch had no connection with the phone line incident, but entered a final judgment of injunction for protection against repeat violence and an order taxing costs in favor of Whelan. In so doing, the court reasoned that Ravitch’s attempts to contact Whelan were willful and malicious because they were in direct contravention to her instructions after she made it known she did not want contact. Ravitch now appeals.

Section 784.046, Florida Statutes (2002), authorizes an injunction for protection for victims of repeat violence. The statute defines repeat, violence as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition.” See § 784.046(l)(b), Fla. Stat. (2002). Violence means “any assault, battery, sexual battery, or stalking by a person against any other person.” See § 784.046(l)(a), Fla. Stat. (2002). Section 784.048(2), Florida Statutes (2002), provides that anyone who “willfully, maliciously, and repeatedly follows or harasses another person” commits the crime of stalking. The term “harass” is defined as a series of acts over a period of time “directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” See § 784.048(l)(a), Fla. Stat. (2002). When determining whether an incident creates substantial emotional distress, courts use a reasonable person standard, not a subjective standard. See Bouters v. State, 659 So.2d 235, 238 (Fla.1995).

A repeat violence injunction must be supported by competent, substantial evidence of two incidents sufficient to meet the statutory definition of repeat violence. See McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001) (holding that the record contained no evidence that the cited incidents constituted stalking, nor did evidence exist in the record that a reasonable person would suffer substantial emotional distress from such incidents).

Whelan’s “documentation of stalking” lists emails, voice mail messages and phone conversations (some of which were admittedly initiated by Whelan after she reportedly told Ravitch not to contact her anymore). The evidence does not suggest that any of the emails or phone messages were threatening, hostile or abusive. Whelan also cites encounters at the restaurant that both of the parties frequented in her “documentation of stalking.” Whelan admits, however, that Ravitch never spoke to her or approached her during these encounters. Instead, just three days before filing the petition, while Ravitch and a female companion were sitting at a table in the bar, Whelan entered the bar, saw Rav-itch and opted to stay, to “demonstrate to him that she had moved on.” This does not evidence a person suffering substantial emotional distress or in fear of imminent harm, nor did Whelan testify that these incidents placed her in fear. Nothing in the record demonstrates any basis for finding that a reasonable person would suffer “substantial emotional distress” from such incidents.

We conclude that no statutory basis exists for granting injunctive relief based on the incidents cited in Whelan’s petition. No competent, substantial evidence exists that Whelan suffered any acts of violence or other prohibited conduct. See Anderson v. McGuffey ex rel. McGuffey, 746 So.2d 1257 (Fla. 1st DCA 2000) (holding that statutory elements not met where no evidence of repeat violence exists); Russell ex rel. Russell v. Hogan ex rel. Hogan, 738 So.2d 1003 (Fla. 2d DCA 1999). Accordingly, we reverse the trial court’s final judgment imposing an injunction against repeat violence and the order taxing costs against Ravitch.

REVERSED.

SAWAYA, C.J. and MONACO, J., concur.

      . This debt is now the subject of a lawsuit, Ravitch v. Whelan, Case No. 03-CA-39629, Circuit Civil, Brevard County, Florida.


text:
    Valerie FORTUNE, Appellant/Cross-Appellee, v. Allan R. PANTIN, Appellee/Cross-Appellant.
    No. 5D02-1531.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2003.
    Henry J. Martocci, Roekledge, for Appellant/Cross-Appellee.
    Valerie Fortune, Sharpes, Pro Se.
    Richard A. Manzo, Law Offices of Man-zo & Associates, P. A., Titusville, and Douglas W. Baker, of John H. Evans, P. A., Titusville, for Appellee/Cross-Appel-lant.
   PER CURIAM.

Valerie Fortune, the former wife, appeals the downward modification of the alimony obligation of her former husband, Allan R. Pantin. The former husband cross-appeals the trial court’s order denying his request for a reduction of his child support obligation.

The record before this court contains no transcript of the proceedings below. In the absence of a transcript, this court is unable to evaluate the sufficiency of the evidence considered by the trial court in support of its factual findings, and instead presumes such findings to be correct. Hirsch v. Hirsch, 642 So.2d 20, 21 (Fla. 5th DCA 1994); accord Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Our review is therefore limited to errors of law that are apparent on the face of the judgment. Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990).

Having carefully reviewed the limited record before us, we find no errors of law apparent on the face of the order being appealed. Accordingly, the order of the trial court is affirmed.

AFFIRMED.

SAWAYA, C.J., ORFINGER and MONACO, JJ., concur.


author: MONACO, J.

text:
    STATE of Florida, Appellant, v. Steven KLEIN, Appellee.
    No. 5D02-3756.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   MONACO, J.

After a jury trial finding the appellee, Steven Klein, to be a sexually violent predator, he was committed to the custody of the Department of Children and Families in accordance with the requirements of the Jimmy Ryce Act, section 394.910, et seq., Florida Statutes (2001). Thereafter, the trial court granted Klein’s motion for specific performance of a plea agreement that he entered into in the underlying criminal case that led to the Ryce Act proceeding. The State of Florida appeals an order of the trial court that granted Klein’s motion for specific performance of the plea agreement in reliance on the case of Harris v. State, 27 Fla. L. Weekly D946, — So.2d —, 2002 WL 731699 (Fla. 1st DCA Apr.26, 2002). We reverse.

Since the entry of the order being appealed in this case, the Supreme Court of Florida has held in Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d —, 2002 WL 31728885 (Fla. Dec. 5, 2002), that an involuntary commitment under the Jimmy Ryce Act is not considered to be a continued punishment for a criminal offense. Rather, the court reasoned, a commitment proceeding is separate from the criminal action that was based on the individual’s sexually violent offense. Thus, the court concluded that “any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment.” Id. at S1010, — So.2d at —. See also Sandillo v. State, 842 So.2d 1018 (Fla. 5th DCA 2003); Ritchie v. State, 842 So.2d 234 (Fla. 5th DCA 2003); Satz v. Runion, 838 So.2d 689 (Fla. 4th DCA 2003).

Accordingly, the order of the trial court granting Klein’s motion for specific performance of his plea agreement, dismissing the petition for involuntary commitment, and ordering Klein’s release is reversed and vacated, and the case is remanded with directions to deny Klein’s motion.

REVERSED, VACATED AND REMANDED.

SAWAYA, C.J., and ORFINGER, J., concur.


author: SHARP, W., J.

text:
    Tony SELLERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1986.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2003.
    Tony Sellers, Polk City, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Sellers appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking post-conviction relief. He was sentenced to 50.88 months in prison, which included a three-year minimum mandatory term for the offense of trafficking in 28 grams or more of cocaine. He argues that the minimum mandatory term is illegal because it was imposed pursuant to Chapter 99-188, which was found to be unconstitutional because it violates the single-subject rule.

This court has held that the constitutional violation in Chapter 99-188 has been retroactively cured. See Jackson v. State, 847 So.2d 1038 (Fla. 5th DCA 2003). However, as we did in that case, we certify a conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

AFFIRMED.

SAWAYA, C.J., and THOMPSON, J., concur.

      . § 893.135(l)(b)l.a., Fla. Stat. (2000).

      . Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla. 2002), superseded by statute, Herndon v. State, 842 So.2d 1026 (Fla. 2d DCA 2003).