author: GERSTEN, J. COPE, J.

text:
    Carter WIGGINS, et al., Appellants, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 3D03-3295.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Rehearing Denied Oct. 6, 2004.

      Allan E. Monica, for appellants.
    Larry D. Scott, Assistant General Counsel, for appellee, Department of Management Services.
    Before COPE, GERSTEN, and GODERICH, JJ.
   GERSTEN, J.

Plaintiffs/appellants, Carter Wiggins, et al., appeal the Florida Retirement Commission’s (“commission”) summary judgment order upholding the defendant’s/ap-pellee’s, Department of Management Services, Division of Retirement (“department”), denial of special risk retirement classification. We affirm.

The Florida retirement system was created by the Legislature in 1970, and is codified in Chapter 121, Florida Statutes (2003). Florida’s retirement system is a defined benefit system that is funded by employer contributions and is comprised of several classes of employees. See, § 121.061, Fla. Stat. (2003). The members of the Special Risk Class receive an enhanced 'retirement benefit that is paid by the Florida Retirement Trust Fund. This enhanced- retirement benefit entitles Special Risk Class members to retire earlier and to receive a higher contribution rate. See, § 121.071, Fla. Stat. (2003).

The intent of the legislature in creating this class was to recognize and reward the hazardous and physically demanding nature of the work performed by persons employed in the specified job categories. Section 121.0515(1), Florida Statutes (2003), specifically recognizes the special problems associated with Special Risk Class members and states:

In creating the Special Risk Class of membership within the Florida Retirement System, it is the intent and purpose of the Legislature to recognize that persons employed in certain categories of law enforcement, firefighting, criminal detention, and emergency medical care positions are required as one of the essential functions of their positions to perform work that is physically demanding or arduous, or work that requires extraordinary agility and mental acuity, and that such persons, because of diminishing physical and mental ■ faculties, may find that they are not able, without risk to the health and safety of themselves, the public, or their coworkers, to continue performing such duties and thus enjoy the full career and retirement benefits enjoyed by persons employed in other positions and that, if they find it necessary, due to the physical and mental limitations of their age, to retire at an earlier age and usually with less service, they will suffer an economic deprivation therefrom. Therefore, as a means of recognizing the peculiar and special problems of this class of employees, it is the intent and purpose of the Legislature to establish a class of retirement membership that awards more retirement credit per year of service than that awarded to other employees; however, nothing contained herein shall require ineligibility for special risk membership upon reaching age 55.

Section 121.0515 then enumerates the specific criteria necessary to qualify as a Special Risk Class member. See § 121.0515(2)(a)-(g), Fla. Stat. (2003).

In 2000, the legislature amended Chapter 121 to add other classes of employees to the Special Risk Class, in addition to law enforcement, fire fighters, correctional officers, probation officers and paramedics. See, Ch.2000-169, Laws of Fla. Section 121.0515(2)®, Florida Statutes (2003), lists specified job titles and class codes that may qualify an employee for Special Risk classification. The definitional section of the statute specifically requires that employees meeting the criteria set forth in Section 121.0515(2)®, be employed either by the Department of Corrections, or by the Department of Children and Family Services. See § 121.021(15)(d)(2), Fla. Stat. (2003)

The appellants work in the correctional health facilities at Jackson Memorial Hospital, which is a county hospital that was established as a public health trust in 1973 pursuant to Chapter 154, Florida Statutes. The appellants are county employees and sought special risk benefits claiming their work in a hazardous environment performing the same job functions as their state employee counterparts, met the special risk eligibility requirements of Section 121.0515(f). The department and the commission denied the county workers’ request finding the statute did not apply. In its final order, the commission significantly noted:

The commission recognized that persons in positions similar to those listed by the Legislature in Section 121.0515(2)®, Florida Statutes, may in fact engage in work that constitutes 75% contact with patients or inmates in a correctional or forensic facility. Petitioners strongly urged the Commission to interpret Section 121.0515(2)®, Florida Statutes, to correct the unfairness of excluding county health care workers in county detention facilities. Because the language as “similar to” or “equivalent to” the job classifications of the Department of Corrections or Department of Children and Families, the Commission does not believe it has the legal authority to expand the Legislature’s unequivocal limits on special risk membership.

We agree with the commission’s cogent analysis. It is a basic tenet of statutory construction that courts are required to give statutory language its plain and ordinary meaning. See Green v. State, 604 So.2d 471 (Fla.1992); Southeastern Fisheries Ass’n, Inc. v. Dep’t of Natural Res., 453 So.2d 1351 (Fla.1984). The plain and ordinary meaning of Section 121.021(15)(d)(2) requires that a special risk member be employed by the Department of Corrections or the Department of Children and Family Services. Since the appellants are not employed- by the Department of Corrections or the Department of Children and Family Services, they do not qualify for special risk retirement coverage.

We empathize with the situations faced by health care providers who work in our county prisons. However, it is the function of the legislature, not the judiciary, to determine how public funds are to be used* and to ascertain the parameters of our public employee retirement system. Finding substantial competent evidence supports the commission’s statutory analysis and final determination, we affirm the order below. See Braddock v. School Bd. of Nassau County, 455 So.2d 394 (Fla. 1st DCA 1984); Boyette v. State Prof'l Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977).

Affirmed.

GODERICH, J., concurs.

COPE, J.

(concurring).

The seventeen appellants are employees of Miami-Dade County who are members of the Florida Retirement System (“FRS”). They are professional care employees who provide health or mental health care to county inmates at one of the County’s detention facilities.

The employees applied for designation as special risk members in FRS under subsections 121.0515(2)(f) and (3), Florida Statutes (2001). The State Retirement Commission denied their applications on the ground that membership under paragraph 121.0515(2)(f), Florida Statutes is limited to employees who are employed by the Florida Department of Corrections or the Florida Department of Child and Family Services.

Although initially skeptical, I conclude that the Commission has correctly interpreted the statute. That is so because chapter 121, Florida Statutes, defines “special risk member” (so far as pertinent here) as including any “member who is employed by the Department of Corrections or the Department of Children and Family Services and meets the special criteria set forth in s. 121.0515(2)®.” § 121.021(15)(d)2„ Fla. Stat. (2001); see also ch.2000-169, §§ 28-29, Laws of Fla. Thus, special risk membership based on paragraph 121.0515(2)® is restricted solely to the Departments of Correction and Children and Family Services.

In most instances under the special risk retirement statute, FRS members who are employed by a county, city, or special district are eligible for special risk membership on the same basis as state employees. That appears to be the case with respect to law enforcement officers, firefighters, correctional officers, paramedics, and community-based correctional' probation officers. See § 121.0515(2)(a)-(e),(3), Fla. Stat. (2001).

The employees argue that this classification denies them equal protection of the laws. They maintain that they are performing work which is substantively the same as that outlined in paragraph 121.0515(2)®, yet they are ineligible for special risk classification.

It seems reasonably clear, however, that there is a rational basis for the distinction. See Tiedemann v. Dept. of Mgmt. Servs., 862 So.2d 845, 847 (Fla. 4th DCA 2003). There is an additional cost to the employer associated with the special risk retirement program. When the Legislature enacted paragraph 121.0515(2)®, the Legislature made the policy decision that-the State (as employer) would be willing to bear the additional cost of adding more employees of the Departments of Corrections and Children and Family Services to the special risk rolls.

For county and local employees, however, it would be the local governmental unit which would have to pay the additional cost. Apparently the county and local governments were not willing to bear the additional expense, or at least the Legislature was not willing to impose that financial burden on local government at the time paragraph (2)(f) was enacted in 2000.

Having said all of that, I would suggest that the Legislature revisit this issue in the future. The employees assert that the duties they perform are of the type described in paragraph 121.0515(2)(f). The County endorsed the employees’ applications to be classified as special risk employees. Although ideally county and local employees should be granted the same treatment as state employees, another possibility might be to allow county and local governments the option to provide special risk benefits under paragraph (2)(f) if they so choose.

      . Section 121.021(15)(d)(2), Florida Statutes (2003), specifically states: "Effective January 1, 2001, "special risk member” includes any professional health care bargaining unit or non-unit member who is employed by the Department of Corrections or the Department of Children and Family Services and meets the special criteria set forth in s. 121.0515(2)(l).”


source: Caselaw Access Project

author: KLEIN, J.

license: Public Domain

text:
    Jesus MONESTERIO, Appellant, v. Honora MONESTERIO, Appellee.
    No. 4D03-4530.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.
    Rehearing Denied Oct. 22, 2004.
    Steven R. Brenners, Coral Springs, for appellant.
    Paula Revene of Paula Revene, P.A., Ft. Lauderdale, for appellee.
   KLEIN, J.

The trial court denied the husband’s petition for modification of alimony on the ground that the reduction in his income was not permanent. Because this finding was not supported by competent substantial evidence, we reverse.

The final judgment of dissolution, by agreement, required the husband, an American Airlines pilot earning $203,800, to pay the wife $5,000 a month permanent periodic alimony. Fourteen months later, in July 2002, the husband’s pay was reduced to $180,000 as a result of the downturn in the travel industry, and he petitioned for modification. Before the case was heard, his salary was further reduced to $161,000.

At the hearing the husband testified that his present salary of $161,000 was scheduled for an increase of six percent in May 2004, according to the union contract. He also testified that he could possibly receive increases of one percent per year in the future depending on how the airline was doing.

The trial court denied modification finding that there was no proof that the reduction in income was permanent. Viewed in a light most favorable to the wife, the husband’s income was reduced from $203,000 to $161,000, with an expected six percent increase which would bring it to $171,000. Even if we assume he will receive the possible one percent a year raises, there is no competent substantial evidence to support the trial court’s finding that the husband suffered only a temporary reduction. Reversed.

SHAHOOD, J„ and EMAS, KEVIN M„ Associate Judge, concur. .


author: PER CURIAM.

text:
    PROGRESSIVE CONSUMERS INSURANCE COMPANY, individually and as subrogee of Ronnie Chang, Appellant, v. DECO NATURAL STONE, INC., Appellee.
    No. 3D04-297.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Rehearing Denied Oct. 6, 2004.
    Markeity, Rothman Cantwell, and Mary M. Cantwell, Plantation, for appellant.
    Thomas J. Morgan, Jr., Miami, for ap-pellee.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

We reverse the trial; court’s order setting aside the jury’s verdict. See Whitt v. Silverman, 788 So.2d 210 (Fla.2001). We remand with instructions to re-instate the jury’s verdict.

Reversed and remanded with instructions.


text:
    Herbert S. ROSE, Appellant, v. The VILLAGE OF KINGS CREEK CONDOMINIUM ASSOCIATION, Appellee.
    No. 3D04-430.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Rehearing Denied Oct. 6, 2004.
    Murphy & O’Brien, and William F. Murphy, Miami, and Herbert Rose, for appellant. ;

      Hyman, Kaplan, Ganguzza, Spector Mars, and Anouk M. Villegas, and Marc Halpern, Miami, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Affirmed. See Abbey Park Homeowners Assoc. v. Bowen, 508 So.2d 554 (Fla. 4th DCA 1987).


text:
    Leonard A. DUNN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-688.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.
    Rehearing Denied Sept. 29, 2004.
    Leonard A. Dunn, Sanderson, pro se.
    No Appearance for Appellee.
   PER CURIAM.

In this almost twenty-year-old case, Leonard A. Dunn [“Dunn”] claims, as he has repeatedly in prior proceedings, that his sentence was illegal. Dunn was indicted for first-degree murder with a firearm, a crime that could have resulted in a death sentence. To avoid that risk, he entered into a negotiated guilty plea to second-degree murder, a first-degree felony punishable by life. An explicit condition of the plea agreement was the stipulation by Dunn that there were in existence factors which would validly permit the court to sentence him up to fifty years in state prison. He received the negotiated, agreed-upon, fifty-year sentence. Dunn v. State, 501 So.2d 721 (Fla. 5th DCA 1987). He received the same sentence after this court remanded for consideration of a guidelines issue.

Dunn acknowledges that this court rendered an opinion on this issue holding that Dunn’s conviction for second-degree murder constitutes a “felony of the first degree” punishable by a term of years not exceeding life, not a life felony and, therefore, the fifty-year term was legal. See Dunn v. State, 522 So.2d 41 (Fla. 5th DCA 1988). He unsuccessfully attempted to undo this ruling on rehearing and through multiple post-conviction motions filed subsequently. Now he urges that this court should allow this most recent successive attack on the legality of his sentence on the grounds of “manifest injustice.” See McBride v. State, 810 So.2d 1019, 1022 (Fla. 5th DCA 2002).

We reject this claim of manifest injustice. Contrary to Dunn’s insistent argument, it is not apparent that the court’s earlier decisions were wrong, and Dunn received the sentence he freely bargained for. Accordingly, we affirm.

AFFIRMED.

GRIFFIN, MONACO and TORPY, JJ., concur.

      . Dunn is apparently scheduled to be released from prison in five years.


author: WALLACE, Judge.

text:
    Fred A. THOMAS and Joy S. Thomas, Appellants, v. Jim SMITH, in his capacity as Property Appraiser of Pinellas County, Florida; Diane Nelson, in her capacity as Tax Collector of Pinellas County, Florida; and Jim Zingale, in his capacity as Executive Director of the State of Florida, Department of Revenue, Appellees.
    No. 2D02-4018.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2004.

      Michael S. Hooker and Guy P. McConnell of Glenn Rasmussen Fogarty & Hooker, P.A., Tampa, for Appellants.
    Susan Churuti, County Attorney, and Sarah Richardson, Senior Assistant County Attorney, Clearwater, for Appellee Diane Nelson, in her capacity as Tax Collector of Pinellas County.
    Charles J. Crist, Jr., Attorney General, and Mark T. Aliff, Assistant Attorney General, Tallahassee, for Appellee Jim Zingale in his capacity as Executive Director of the State of Florida, Department of Revenue.
    No appearance for Appellee Jim Smith, in his capacity as Property Appraiser of Pinellas County.
   WALLACE, Judge.

Fred A. Thomas and Joy S. Thomas (the Taxpayers) appeal the circuit court’s order dismissing their fifth amended complaint with prejudice. The Taxpayers argue that section 196.011(l)(b), Florida Statutes (1997), which requires disclosure of the Taxpayers’ social security numbers as a condition of obtaining a homestead tax exemption for their residence, violates their right to privacy under the Florida Constitution, the federal Privacy Act of 1974 (the Privacy Act), and the Equal Protection Clauses of the Florida and the United States Constitutions. We conclude that the circuit court’s dismissal of the Privacy Act and equal protection claims is supported by the record, and we affirm the circuit court’s order without further discussion to the extent that it dismissed those claims with prejudice. However, we agree with the Taxpayers that the circuit court erred in dismissing with prejudice their claim for an alleged violation of their right to privacy under the Florida Constitution. Therefore, we reverse the dismissal of the Taxpayers’ fifth amended complaint in part, and we remand this case for further proceedings.

I. LEGAL BACKGROUND

Article VII, section 6, of the Florida Constitution establishes a homestead tax exemption for persons who maintain a permanent residence on real property located in Florida. Pursuant to article VII, section 6(a):

Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner, shall be exempt from taxation thereon, except assessments for special benefits, up to the assessed valuation of five thousand dollars, upon establishment of right thereto in the manner prescribed by law. The real estate may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by stock ownership or membership representing the owner’s or member’s proprietary interest in a corporation owning a fee or a leasehold initially in excess of ninety-eight years.

The amount of the homestead exemption is now $25,000. Art. VII, § 6(d), Fla. Const.

The acquisition of homestead status for real property also, limits the amount that the property’s assessed value can increase in a particular year. Pursuant to article VII, section 4(c), of the Florida Constitution, popularly known as the “Save Our Homes” amendment, the annual increase in the assessed value of homestead property cannot exceed the lesser of:

a. Three percent (8%) of the assessment for the prior year.
b. The percent change in the Consumer Price Index for all urban consumers, U.S. City Average, all items 1967=100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics.

Art. VII, § 4(c)(l)(a)-(b), Fla. Const. The Save Our Homes amendment is implemented in section 193.155, Florida Statutes (1997). See generally Richard S. Franklin & Roi E. Baugher III, Protecting and Preserving the Save Our Homes Cap, 77 Fla. B.J. 34 (Oct.2003). The owner of property recognized as homestead for tax purposes thus receives a twofold benefit: (1) a tax exemption of $25,000 and (2) a cap on the amount that the assessed value of the property can rise in a given year.

Section 196.011(l)(b) requires applicants for the homestead tax exemption to supply their social security numbers on an application form as a condition to obtaining the exemption (the required disclosure). Pursuant to the statute, an applicant’s failure to provide his or her social security number waives the exemption for the year of the application. Section 196.011(l)(b) provides, in pertinent part:

The form to apply for an exemption ... must include a space for the applicant to list the social security number of the applicant and of the applicant’s spouse, if any. If an applicant files a timely and otherwise complete application, and omits the required social security numbers, the application is incomplete. In that event, the property appraiser shall contact the applicant, who may refile a complete application by April 1. Failure to file a complete application by that date constitutes a waiver of the exemption privilege for that year....

This provision was added by chapter 94-353, section 45, at 2561, Laws of' Florida, which became effective June 3, 1994. Ch. 94-353, § 75, at 2576, Laws of Fla.

Rule' 12D-7.001(4), Florida Administrative Code, ' implements 'section 196.011(l)(b):

Each new applicant for an exemption ... must provide his or her social security number and the social security number of his or her spouse, if any, in the applicable spaces provided on the application form, Form DR-501 (incorporated by reference in Rule 12D-16.002). Failure to provide such numbers will render the application incomplete. If an applicant omits the required social security numbers and files an otherwise complete application, the property appraiser shall contact that applicant and afford the applicant the opportunity to file a complete application on or before April 1. Failure tó file a completed application on or before April 1 shall constitute a waiver of the exemption for that tax' year, unless the applicant can demonstrate that failure to timely file a completed application was the result of a postal error or, upon filing a timely petition to the value adjustment board, that the failure was due to extenuating circumstances as provided in section 196.011, Florida Statutes.

Thus, pursuant to Florida’s statutory and administrative requirements, a homeowner cannot obtain the benefits of the constitutional homestead tax exemption unless he or she is willing to make the required disclosure.

II. THE TAXPAYERS’ APPLICATION

On February 24, 1997, the Taxpayers filed a timely application for ad valorem tax exemption with the Property Appraiser of Pinellas County, Florida (the Property Appraiser), seeking a. homestead exemption for their property located in Pinellas County. The Taxpayers declined to make the required disclosure. , In July 1997, the Property Appraiser notified the Taxpayers that their 1997 application had been denied. The reason for the Property Appraiser’s denial of the 1997 application was the Taxpayers’ refusal to make the required disclosure. After the denial of their homestead request, the Taxpayers filed a petition with the Pinellas County Value. Adjustment Board (the Board) to seek review of the Property Appraiser’s decision. After a hearing on the petition, a special master recommended that the Board deny the Taxpayers’ homestead request. On October 7, 1997, the Board adopted the recommendation and affirmed the denial of the Taxpayers’ 1997 application. The Board’s denial of the 1997 application was based on the Taxpayers’ refusal to make the required disclosure. It appears that the Taxpayers are otherwise fully qualified for a homestead exemption. The Taxpayers’ 'property was assessed in 1997 and in each subsequent year at issue without the benefit of the homestead exemption, and they did not have the benefit of the Save Our Homes cap.

Prior to filing their initial complaint in the circuit court, the Taxpayers paid the tax assessed on their 1997 tax bill. The Taxpayers have continued to pay their assessed taxes during subsequent years. The Taxpayers claim that by reason of the assessment of taxes against the property without the benefit of the homestead tax exemption and the absence of the Save Our Homes cap, they have paid higher amounts of property taxes than they would have paid otherwise.

III. THE PROCEEDINGS IN THE CIRCUIT COURT

On October 22, 1997, the Taxpayers filed their initial complaint in the circuit court. The Taxpayers named as defendants the Property Appraiser, the Tax Collector of Pinellas County, Florida (the Tax Collector), and the Executive Director of the State of Florida, Department of Revenue (the Department). The Taxpayers initially sought relief only with respect to tax year 1997. As the litigation progressed, the Taxpayers amended their complaint several times to seek relief with respect to subsequent tax years. The Taxpayers’ fifth amended complaint, which was ultimately dismissed by the circuit court, sought relief with respect to tax years 1997 through 2001.

The Taxpayers’ fifth amended complaint sought both declaratory relief and a refund of the additional property taxes that the Taxpayers claim to have paid on account of the denial of their application for homestead tax exemption. The Taxpayers advanced three claims in support of their request for declaratory relief. First, the Taxpayers asserted that section 196.011(l)(b) and rule 12D-7.00K4) violated their constitutional right of privacy under article I, section 23, of the Florida Constitution. Second, the Taxpayers claimed that section 196.011(l)(b) and rule 12D-7.001(4) violated provisions of the Privacy Act because the homestead application forms utilized by the Property Appraiser failed to provide all of the information required by subparagraph (b) of the Privacy Act. Third, the Taxpayers contended that section 196.011(1)(b) and rule 12D-7.001(4) violated their right to equal protection under the law as guaranteed by article I, section 2, of the Florida Constitution, and Section 1 of the Fourteenth Amendment to the United States Constitution. In addition to declaratory relief, the Taxpayers also sought a refund of the amounts that they paid in property taxes in excess of the amount that they claimed they would have paid had they been granted the homestead tax exemption for which they applied in 1997. The Taxpayers sought the difference between the total amount that they paid in taxes and the amount that they claim should have been assessed against the property after giving them the benefit of the homestead tax exemption and the Save Our Homes cap.

The taxing authorities answered the complaint and raised various defenses to the relief sought by the Taxpayers. The Property Appraiser expressed no opinion concerning the validity of the required disclosure but pointed out that he was obligated by law to follow the statute. The Tax Collector raised the defense that with respect to tax years 1998, 1999, 2000, and 2001, the refunds sought by the Taxpayers were barred by the nonclaim statute in section 194.171(6), Florida Statutes (1997). The Tax Collector alleged that the court lacked jurisdiction to hear matters involving tax years 1998, 1999, 2000, and 2001. The Department took the'lead in contesting the Taxpayers’ constitutional and Privacy Act claims.

The Taxpayers ultimately filed a motion for summary judgment on all of their claims, contending that there was no genuine issue as to any material fact and that they were entitled to a judgment as a matter' of law. None of the taxing authorities filed a cross-motion for summary judgment. After a hearing, the circuit court entered an order that denied the Taxpayers’ motion for summary judgment and dismissed with prejudice their fifth amended complaint. In its order, the circuit court ruled that the Taxpayers were unable to prove any set of facts that would entitle them to relief and rejected their privacy and equal protection claims. The Taxpayers timely appealed the circuit court’s order.

IV. JURISDICTIONAL ISSUES

The Tax Collector contends that the circuit court lacked subject matter jurisdiction as to tax years 1998 to 2001 because the Taxpayers’ claims for relief for those years are barred by the statute of non-claim in section 194.171(6), Florida Statutes (1997). At the hearing on the Taxpayers’ motion for summary judgment, the circuit court said that it would first resolve the Taxpayers’ constitutional challenge to the required disclosure. Then, if the Taxpayers were successful in their constitutional challenge, the court could address whether the Taxpayers were entitled to an exemption only for 1997 or for 1997 through 2001.

Although subject matter jurisdiction may be raised at any time, the parties acknowledge that the jurisdictional challenge is limited to a portion of the Taxpayers’ claims and its resolution will not dispose of the principal issue that lies at the heart of this case. Because the circuit court reserved jurisdiction of this issue and because the case must be remanded for further proceedings in any event, we decline to rule on the jurisdictional question. The circuit court may address this issue on remand.

V. PROCEDURAL MATTERS

The circuit court’s order denied the Taxpayers’ motion for summary judgment and dismissed with prejudice their fifth amended complaint. In its order, the circuit court specifically found that there “are no genuine issues of material fact and [the Taxpayers] are not entitled to a judgment as a matter of law.” Therefore, the effect of the circuit court’s order was to grant a summary judgment in favor of the non-moving parties — the taxing authorities. A trial court may, under certain circumstances, enter a summary judgment in favor of a nonmoving party. See Carpineta v. Shields, 70 So.2d 578, 574 (Fla.1954). Nevertheless, the better practice is to require a timely motion. See First Union Nat’l Bank of Fla. v. Maurer, 597 So.2d 429, 430 (Fla. 2d DCA 1992); City of Pinellas Park v. Cross-State Utils. Co., 176 So.2d 384, 386 (Fla. 2d DCA 1965). The entry of a summary judgment for the non-moving party is not appropriate if the party against whom the summary judgment is entered has not had an opportunity to rebut the asserted factual or legal basis for the judgment. See Manfrin v. Auto Owners Ins. Co., 805 So.2d 973, 975 (Fla. 2d DCA 2001) (Northcutt, J., concurring); John K. Brennan Co. v. Cent. Bank & Trust Co., 164 So.2d 525, 530 (Fla. 2d DCA 1964).

VI. THE STANDARD OF REVIEW

The standard of review of a summary judgment order is de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Smith v. Frontier Communications Int’l, Inc., 805 So.2d 975, 977 (Fla. 2d DCA 2001).

VII. THE RIGHT TO PRIVACY UNDER THE FLORIDA CONSTITUTION

A. The Scope of the Right to Privacy

Article I, section 23, of the Florida Constitution provides: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” The right to privacy provided for in the Florida Constitution is broader in scope than the protection provided in the United States Constitution. See Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla.1985); Berkeley v. Eisen, 699 So.2d 789, 790 (Fla. 4th DCA 1997).

One of the principal concerns of the drafters of the amendment that became article I, section 23 was the right to informational privacy. See Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 536 (Fla.1987). At the opening session of Florida’s 1977-78 Constitution Revision Commission, then Chief Justice Ben F. Overton remarked:

[W]ho, ten years ago, really understood that personal and financial data on a substantial part of our population could be collected by government or business and held for easy distribution by computer operated information systems? There is a public concern about how personal information concerning an individual citizen is used, whether it be collected by government or business. The subject of individual privacy and privacy law is in a developing stage.... It is a new problem that should probably be addressed.

Id. at 536. Therefore, “a principal aim of the constitutional provision is to afford individuals some protection against the increasing collection, retention, and use of information relating to all facets of an individual’s life.” Id. The right to privacy in the Florida Constitution “ensures that individuals are able ‘to determine for themselves when, how and to what extent information about them is communicated to others.’ ” Shaktman v. State, 553 So.2d 148, 150 (Fla.1989) (quoting A. Westin, Privacy and Freedom 7 (1967)). As the supreme court noted in Rasmussen, 500 So.2d at 536 (footnote omitted): “Although the general concept of privacy encompasses an enormously broad and diverse field of personal action and belief, there can be no doubt that the Florida amendment was intended to protect the right to determine whether or not sensitive information about oneself will be disclosed to others.” Against this background, it seems obvious that private, sensitive, and confidential information regarding individuals is protected by the privacy clause iri the Florida Constitution.

B! The Test for Assessing the Taxpayers’ Privacy Claim

Nevertheless, the right of privacy “was not intended to provide an absolute guarantee against all governmental intrusion into the private life of an individual.” Fla. Bd. of Bar Examiners re: Applicant, 443 So.2d 71, 74 (Fla.1983). “The right of privacy does not confer a complete immunity from governmental regulation and will yield to compelling governmental interests.” Winfield, 477 So.2d at 547. In Winfield, the supréme court announced the test to be used in assessing a claim of unconstitutional governmental intrusion into privacy rights under article I, section 23. Id. Courts must first determine whether the individual possesses a legitimate expectation of privacy in the information or subject at issue. If so, then the burden shifts to the State to show that (a) there is a compelling state interest warranting the intrusion into the individual’s privacy and (b) the intrusion is accomplished by the least intrusive means. Id. Legislation that infringes on the. right to privacy will be invalidated unless it can survive the compelling state interest test. See Von Eiff v. Azicri, 720 So.2d 510, 514 (Fla.1998); In re T.W., 551 So.2d 1186, 1192 (Fla.1989); Caddy v. State, Dep’t of Health, 764 So.2d 625, 629-30 (Fla. 1st DCA 2000). The Supreme Court of Florida has recently reaffirmed the applicability of the compelling state interest test to the determination of questions arising under Florida’s right of privacy. N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 620 (Fla.2003).

C. ■ The Circuit Court’s Ruling

In assessing the Taxpayers’ claims under the Florida Constitution’s right of privacy, the circuit court found that the Taxpayers had no legitimate expectation of privacy under the circumstances presented in the case. The circuit court went on to find that in the event the Taxpayers did have a. reasonable expectation of privacy, the requirement that the Taxpayers furnish their social security numbers as. a condition of obtaining the benefit of the constitutional, homestead tax exemption “forward[ed] a legitimate state interest [in] reducing homestead exemption fraud.” In making this alternative finding, the circuit court failed to apply the part of the Winfield test that called for a determination of whether a “compelling state interest” — not a “legitimate state interest”— warranted the intrusion into the Taxpayers’ privacy. The circuit court also did not address the issue of whether requiring the Taxpayers to-furnish their social. security numbers as a condition of obtaining the tax benefit accomplished the State’s goal through the use of the least intrusive means.

We disagree with the circuit court’s legal conclusion that the Taxpayers did not possess a legitimate expectation of privacy-in their social security numbers. We think the proposition that citizens of the State of Florida possess a legitimate expectation of privacy in their social security numbers is so obvious as to be hardly open to debate. Numerous authorities support this conclusion.

D. Legitimate Expectation of Privacy

1. Authority

The expectation of privacy that individuals have in their social security numbers has been acknowledged by the federal government, the State of Florida, and numerous other states. The United States Congress recognized the sensitive and confidential nature of social security numbers more than twenty-five years ago when it enacted the Privacy Act. See generally Doyle v. Wilson, 529 F.Supp. 1343, 1348 (D.Del.1982). In 2002, the Florida Legislature enacted section 119.0721 which makes social security numbers confidential and exempt from public disclosure under the public records law. Ch.2002-256, Laws of Fla. As part of its findings in support of the law, the legislature noted the “sensitive personal nature” of social security numbers and their potential for misuse as “the link to an individual’s personal, financial, medical, or familial records.” Ch.2002-256, § 2, Laws of Fla. The Supreme Court of Florida has amended the Florida Family Law Rules of Procedure to exclude documents containing social security numbers from court files in order to limit the possibility of identity theft. Amendments to the Florida Family Law Rules of Procedure, 853 So.2d 303 (Fla.2003). The supreme court has also approved amendments to the Florida Family Law Forms designed to delete unnecessary requests for social security numbers. Amendments to the Florida Family Law Forms, 817 So.2d 721 (Fla.2001). The First District Court of Appeal concluded that investigative subpoenas issued by the Attorney General to “payday” lenders did not implicate the right to privacy found, in article I, section 23, of the Florida Constitution after the Attorney General agreed to modify the subpoenas to eliminate a demand for the customers’ social security and bank account numbers. Advance Am. v. State, Office of Att’y Gen., 801 So.2d 310 (Fla. 1st DCA 2001). Other district courts of appeal have recognized the confidential and sensitive nature of personnel records containing employee social security numbers in protecting such records from wholesale disclosure. E.g., Seta Corp. of Boca, Inc. v. Office of Att’y Gen., 756 So.2d 1093 (Fla. 4th DCA 2000); CAC-Ramsay Health Plans, Inc. v. Johnson, 641 So.2d 434 (Fla. 3d DCA 1994).

Moreover, various other courts have found that individuals possess a legitimate expectation in the privacy of their social security numbers. E.g., Greidinger v. Davis, 988 F.2d 1344, 1353-54 (4th Cir.1993); Aronson v. Internal Revenue Serv., 767 F.Supp. 378, 388 (D.Mass.1991), affirmed in part and reversed in part on other grounds, 973 F.2d 962 (1st Cir.1992); Int’l Bhd. of Elec. Workers Local Union No. 5 v. United States Dep’t of Hous. & Urban Dev., 852 F.2d 87, 89 (3d Cir.1988); Arakawa v. Sakata, 133 F.Supp.2d 1223, 1229 (D.Haw.2001); State ex rel. Beacon Journal Publ’g Co. v. City of Akron, 70 Ohio St.3d 605, 640 N.E.2d 164 (1994); Tribune-Review Publ’g Co. v. Allegheny County Hous. Auth., 662 A.2d 677 (Pa.Commw.Ct.1995). But see Pontbriand v. Sundlun, 699 A.2d 856, 868-70 (R.I.1997). See generally Flavio L. Komuves, We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers, 16 J. Marshall J. Computer & Info. L. 529, 561-65 (1998).

2. The Taxing Authorities ’ Cases

The taxing authorities argued in the circuit court and have argued here that the Taxpayers did not have a legitimate expectation of privacy in their social security numbers, citing three cases in support of their position. We find these cases to be easily distinguishable. In City of North Miami v. Kurtz, 653 So.2d 1025 (Fla.1995), the Supreme Court of Florida merely held that an applicant for employment with the City of North Miami had no legitimate expectation of privacy in whether or not she used tobacco products. In State v. Conforti, 688 So.2d 350 (Fla. 4th DCA 1997), the Fourth District held that exotic dancers were not protected from prosecution against a charge of engaging in lewd acts in violation of section 796.07(3), Florida Statutes (1991), by Florida’s constitutional right to privacy. The only case cited by the taxing authorities involving a requirement that an applicant furnish a social security number to a governmental agency is Board of County Commissioners v. D.B., 784 So.2d 585 (Fla. 4th DCA 2001). However, the question of whether an individual has a legitimate expectation of privacy in his or her social security number was not before the court in D.B. The decision in D.B. must be confined to its facts, which arose in the context of an ordinance designed to regulate adult entertainment establishments. Thus D.B. is distinguishable from this case, which involves an application for a benefit guaranteed to Florida homeowners by the Florida Constitution.

3. The Circuit Court’s Analysis

The circuit court concluded that the Taxpayers did not possess a legitimate expectation of privacy in their social security numbers because they were attempting to take advantage of a tax exemption. As the circuit court correctly noted, there is no absolute right to the homestead exemption. See Horne v. Markham, 288 So.2d 196, 199 (Fla.1973). Taxpayers who otherwise qualify for the homestead exemption shall be granted an exemption only “upon establishment of right thereto in the manner prescribed by law.” Art. VII, § 6(a), Fla. Const. In this case, the manner prescribed by law includes the submission of an application containing the social security number of the applicant.

We think the circuit court’s approach is inadequate and misses the point. There are few governmental privileges or benefits, constitutional or otherwise, to which one has an absolute right. One must generally apply and complete an appropriate application or similar document. If the State or another governmental agency is able to impose disclosure as a condition of obtaining the desired governmental privilege or benefit without demonstrating a compelling state interest, then disclosure of the social security number could be imposed as a condition of obtaining virtually any governmental privilege or benefit. This view of the matter would render the constitutional right to informational privacy a dead letter.

The correct approach to a resolution of the issue is the one announced in Winfield, 477 So.2d at 547. The circuit court should first have determined whether the Taxpayers had a legitimate expectation of privacy in their social security numbers without regard to other considerations such as the necessity to submit an application in order to obtain the benefit of the homestead tax exemption. If the answer to that question was “yes,” then the burden shifted to the taxing authorities to prove both a compelling state interest and that the requirement accomplished the state’s goal by the least intrusive means. In its analysis, the circuit court failed to properly apply the Winfield test.

E. Disposition of Right to Privacy Claim

The trial court erred in concluding that the Taxpayers had no legitimate expectation of privacy in their social security numbers. Therefore, a reversal and remand for further proceedings on the Taxpayers’ privacy claim is required. On remand, the circuit court must consider the Taxpayers’ privacy claim under the correct legal standard as articulated in Winfield. The circuit court must first determine whether the taxing authorities have demonstrated a compelling state interest in requesting disclosure of an individual’s social security number on the application for homestead tax exemption. If so, the circuit court must then determine whether the required disclosure meets the least intrusive means test.

VIII. CONCLUSION

For the foregoing reasons, we reverse the circuit court’s order to the extent that it dismissed the Taxpayers’ claims for the alleged violation of their right to privacy under the Florida Constitution, and we remand for further proceedings on this claim. On remand, the circuit court may address the jurisdictional issue relating to the Taxpayers’ refund claims for alleged overpayments for tax years 1998 through 2001. In all other respects, we affirm the circuit court’s order.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

SILBERMAN and VILLANTI, JJ., Concur.

      . But see Powell v. Markham, 847 So.2d 1105 (Fla. 4th DCA), review granted by Zingale v. Powell, 860 So.2d 980 (Fla.2003) (holding that property owners who had not applied for but were otherwise qualified to obtain a homestead tax exemption on their residence were entitled to the application of the Save Our Homes cap to the increase in the assessed value of their property).

      . For reasons to be discussed in part V of this opinion, the circuit court's order dismissing the Taxpayers’ fifth amended complaint was tantamount to a summary judgment for the taxing authorities. Accordingly, we draw the facts from the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record and review them in the light most favorable to the Taxpayers as the parties against whom the summary judgment was entered. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla.2002).

      . The Property Appraiser participated in the proceedings in the circuit court but has not filed an appearance in this court. We will refer to the three defendants collectively as "the taxing authorities."

      . The Taxpayers' claim for tax year 1997 was $530.80. The total claim for all of the five years for which recovery was ultimately sought was $4,054.13.

      . In a memorandum of law filed in opposition to the Taxpayers’ motion for summary judgment, the Department requested that the circuit court enter a summary judgment against the Taxpayers on their right to privacy and equal protection claims.

      . The Tax Collector concedes that the circuit court had jurisdiction to consider the Taxpayers' claims for tax year 1997.

      . For further information on the privacy right provided for in the Florida Constitution, see generally Daniel R. Gordon, Upside Down Intentions: Weakening the State Constitutional Right to Privacy, A Florida Story of Intrigue and a Lack of Historical Integrity, 71 Temple L.Rev. 579 (1998); Ben F. Overton & Katherine E. Giddings, The Right of Privacy in Florida in the Age of Technology and the Twenty-First Century: A Need for Protection from Private and Commercial Intrusion, 25 Fla. St. U.L.Rev. 25, 34-41 (1997); John Sanchez, Constitutional Privacy in Florida: Between the Idea and the Reality Falls the Shadow, 18 Nova L.Rev. 775 (1994).

      . Gary Graves, a senior appraiser employed by the Department, testified in a deposition filed by the Taxpayers in support of their motion for summary judgment that the primary purpose of the required disclosure “is to identify potential homestead fraud.”

      . This section was originally designated as section 119.072 and was redesignated as section 119.0721 in Florida Statutes (2002).

      . For example, article I, section' 21, of the Florida Constitution guarantees that "[t]he courts shall be open to every person for the redress of any injury,” but a prospective litigant must complete and file a "civil cover sheet” in order to initiate a lawsuit. § 25.075, Fla. Stat. (2003); Form 1.997, Fla. R. Civ. P. Similarly, with some exceptions not pertinent here, article X, section 4, of the Florida Constitution makes certain types of property exempt from forced sale at the hands of creditors, but the debtor may be obliged to prepare and submit appropriate documents in order to take full advantage of the exemption right afforded by the constitution. §§ 222.02-.04, .061-.07, Fla. Stat. (2003).


text:
    James Everett WALDROP, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3490.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.

      Nancy A. Daniels, Public Defender; A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant seeks review of an order denying his motion to withdraw his plea. Because it is apparent from the record that appellant entered his plea based upon erroneous information given to him by his attorney, we reverse.

At the hearing on the motion to withdraw the plea, appellant’s attorney testified that, prior to the plea, he' misinformed appellant that a withhold of adjudication of guilt, probation, and nó sex-offender registration were possibilities at sentencing. The plea colloquy corroborated this insofar as the attorney confirmed with appellant that the trial court could withhold adjudication and order probation if it chose to do -so. The attorney further testified that the plea strategy was premised on having the opportunity to convince the trial court to withhold adjudication and place appellant on probation without requiring sex-offender registration. However, the attorney conceded that had he known that appellant’s scoresheet called for a minimum term of incarceration, he would have pursued a different strategy because it would have been fruitless to argue for a withhold of adjudication. According to the attorney, appellant entered his plea based on a false assumption. “A defendant who enters into a plea under a mistake or misapprehension about sentencing possibilities should be permitted to withdraw his plea.” Ganey v. State, 873 So.2d 445, 447 (Fla. 2d DCA 2004). Accord Johnson v. State, 834 So.2d 384 (Fla. 2d DCA 2003).

The record demonstrates that “a manifest injustice” would occur were appellant not permitted to withdraw his plea. See Fla. R.Crim. P. 3.170®. Accordingly, the trial court abused its discretion when it denied appellant’s motion to withdraw his plea. • The order denying that motion is reversed, and the case is remanded for further proceedings consistent with this opinion. ■

REVERSED and REMANDED, with directions.

WOLF, C.J., BARFIELD and WEBSTER, JJ., concur.


author: PLEUS, J.

text:
    Larry JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-776.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.
    Rehearing Denied Sept. 28, 2004.
    Larry Jenkins, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Jenkins appeals the summary denial of his petition for writ of habeas corpus. He argues that the lower court erred in denying his petition because it sufficiently alleges that he is entitled to immediate release based upon the alleged victim’s misidentification. Because Jenkins could have and should have raised this argument on direct appeal or in a motion for post conviction relief, the lower court properly denied Jenkins’ petition for writ of habeas corpus. Therefore, we affirm.

Jenkins was charged by information with, among other things, aggravated battery upon Tony Hayward. Jenkins filed a pro se motion to dismiss the aggravated battery charge on the grounds that Hayward misidentified him. Attached to the motion was Haywood’s affidavit, which stated that he told the police he believed Jenkins or his son cut him but another person approached him and apologized for cutting him. Based upon this turn of events, Hayward did not believe any longer that Jenkins was the person who cut him.

Subsequently Jenkins pled guilty pursuant to a plea agreement in three separate cases, which included the apparently reduced charge of aggravated assault in the underlying case. There is no record of Jenkins appealing his convictions.

In 2001, Jenkins filed a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 raising three claims of ineffective assistance of counsel. The Second District affirmed the summary denial of that motion in Jenkins v. State, 794 So.2d 654 (Fla. 2d DCA 2001), rev. denied, 819 So.2d 135 (Fla.2002). In addressing one of his ineffective assistance claims, the court held that the claim could have been raised on direct appeal. Id.

In the instant action, Jenkins filed a petition for writ of habeas corpus in Sumter County alleging that he was wrongfully convicted of the aggravated battery charge despite the trial court being in possession of the alleged victim’s affidavit stating that he had misidentified Jenkins. The lower court denied Jenkins’ petition finding that “the appropriate avenue for review lies in post-conviction relief in the jurisdiction where he was convicted.”

On appeal, Jenkins makes the same argument he made below, which is that the alleged victim’s misidentification entitles him to immediate relief. Jenkins fails to cite any authority for this proposition and also fails to explain why he failed to raise this issue either on direct appeal or in a post-conviction motion pursuant to Rule 3.850. The record clearly demonstrates that Jenkins could have raised his argument on direct appeal or in a post-conviction motion because.he raised it with the trial court prior to entering his guilty plea. We agree with the State that habeas corpus petitions should not be used for additional appeals on questions that could have been raised on direct appeal, in a Rule 3.850 motion or on matters that were not objected to at trial. Teffeteller v. Dugger, 734 So.2d 1009, 1025 (Fla.1999); see also Heilmann v. State, 832 So.2d 834 (Fla. 5th DCA 2002), rev. dism’d, 845 So.2d 890 (Fla.2003). Accordingly, we affirm.

AFFIRMED.

THOMPSON and MONACO, JJ., concur.


author: TAYLOR, J.

text:
    Antonio SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-5026.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2004.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

We withdraw our previously issued opinion of August 11, 2004, and substitute the following in its place.

Antonio Smith appeals his conviction and sentence for battery on a law enforcement officer, resisting arrest without violence, and possession of cannabis. He contends that the trial court erred in not finding a discovery violation for the state’s failure to disclose a material witness. The defendant also asserts that the court improperly imposed a habitual felony offender sentence without first considering a pre-sentence investigation report. Because we reverse the judgment of conviction and remand for a new trial, the sentencing issue is moot.

Deputy Edward Chavez-Velando of the Broward Sheriffs Office was patrolling an apartment complex in Lauderdale Lakes at about 2:30 a.m., when a Jeep passed him in the parking lot. The driver was smoking a marijuana cigarette. When the vehicle parked, the deputy approached it and asked the driver for identification. The driver handed the deputy the driver’s license of the defendant, Antonio Smith. The deputy examined the photo on the license and concluded that the driver was the same as the person pictured on the license. He also noted that the address listed on the license was for the apartment complex where the driver said he lived.

When the deputy conducted a consensual pat down search of the driver, he located a small one-inch sized bag of marijuana in the driver’s coin pocket. At that point it began to pour rain, and the driver began to walk away toward the building. When the deputy told the man he was under arrest, he lunged forward to flee. The deputy grabbed his shirt, but the man hit him in the chest with his elbow, sending the deputy backwards. The man fled into the apartment building before the officer could recover and disappeared.

Deputy Chavez-Velando went to the apartment shown on the driver’s license and spoke to a woman there. The woman permitted the deputy to search the apartment. The search revealed mail and other items belonging to Smith, indicating that he was in fact living there.

At trial, the driver’s license was admitted into evidence. The deputy testified that it was the same license that he obtained from the person he spoke with on the night of the incident and that he had no doubt that this person was the same as the person pictured on the license. He positively identified the defendant in court. The deputy also testified that he discovered that the vehicle the defendant was driving that night was leased to an individual whose name, address, and phone number appeared on lease papers found in the glove compartment. The deputy stated that he contacted the owner (lessee) and questioned him regarding his knowledge of the vehicle’s whereabouts and who was driving it.

Then, the prosecutor questioned the deputy as follows:

Q. What did you do as a result of speaking with that person, without going into what the person said?
A. Well, we did ask ... did he know the whereabouts of his vehicle, who had his vehicle. We also indicated to him that the vehicle was going to be held for certain procedures, that he wouldn’t be able to get the vehicle at that time. And he did indicate that he was going to make a phone call to the person—
MR. GELIN: Objection as to hearsay, Judge.
THE COURT: As to what he indicated, sustained.
Q. Okay. What did you do as a result of speaking with him and explaining to him that the vehicle was going to be towed?
A. A phone call was made to the person he had lent the vehicle to, who he indicated was Antonio Smith.
MR. GELIN: Again, Judge, objection to hearsay.
THE COURT: Overruled.
MS. FEISTMAN: Okay.
MR. GELIN: Side bar, please.
Defense counsel moved for a mistrial, asserting the state’s failure to disclose during discovery the name and address of the vehicle’s owner. He requested a Richardson hearing. The court denied the motion for mistrial, but instructed the jury not to consider the last question and answer about the officer having called the person who purportedly borrowed the car and this person identifying himself as Antonio Smith.

The court announced that, in an abundance of caution, it would hold a Richardson hearing. The court asked the prosecutor why she had not disclosed the identity of the vehicle’s owner to the defense. The prosecutor responded that she had no information about the owner. She further explained that she had moved for a continuance at the beginning of the trial to try to get that information but that the court had denied her motion. Without further inquiry, the court concluded that there had not been a violation of discovery rules.

The defendant asserted an alibi defense at trial and called four witnesses to testify that he was in Orlando at a Halloween party on the night in question. The defendant acknowledged that the driver’s license in evidence was his, but claimed that he lost his license shortly before this incident, perhaps somewhere at the apartment complex. The jury found the defendant guilty on all charges.

The defendant contends that the trial court reversibly erred in denying relief for a discovery violation by the state. The violation became apparent during trial when the arresting officer testified that he had made contact with the person who had leased the vehicle allegedly driven by the person who accosted the deputy. The identity of the vehicle’s lessee was not disclosed to the defense before trial. The trial court, however, found no discovery violation after hearing the state’s explanation that it did not know the name of the lessee and did not intend to call him as a witness at trial.

When, as here, a trial court finds no discovery violation, that conclusion is reviewed for an abuse of discretion. See State v. Evans, 770 So.2d 1174, 1183 (Fla.2000); Pender v. State, 700 So.2d 664, 667 (Fla.1997). As the defendant correctly argues, the state’s duty to disclose witnesses is not limited to listing those witnesses it intends to call at trial. Rather, the state is obligated to timely disclose, upon request, the names and addresses of all persons “known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto.” Fla. R.Crim. P. 3.220(b)(1)(A).

Further, though the rule requires disclosure of persons “known to the prosecutor,” case law makes clear that the knowledge of law enforcement officers is imputed to the prosecutor for purposes of this rule. See Griffin v. State, 598 So.2d 254, 256 (Fla. 1st DCA 1992); Hutchinson v. State, 397 So.2d 1001 (Fla. 1st DCA 1981). Thus, we agree with the defendant that the trial court abused its discretion in finding no discovery violation based on the prosecutor’s intention not to call the witness and her lack of knowledge of the witness’s name. Presumably, the officer knew the name and that was enough to trigger a full Richardson inquiry into the discovery violation.

The failure to conduct a Richardson hearing where a discovery violation occurred was per se reversible error until the Florida Supreme Court adopted the following harmless error standards in State v. Schopp, 653 So.2d 1016, 1020-21 (Fla.1995):

In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have ben-efitted the defendant. In making this determination every conceivable course of action must be considered. If the reviewing court finds that there is a reasonable possibility that the discovery violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. In other words, only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.

The burden is on the State to establish that the error is harmless. Id. at 1020.

Given appellant’s defense that he was not driving the vehicle owned by the undisclosed witness at the time these charges arose, we cannot say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation. As appellant points out, there is a reasonable possibility that this person’s evidence would have assisted defendant in the presentation of his defense. We therefore cannot consider the discovery violation harmless.

REVERSED and REMANDED.

FARMER, C.J., and GUNTHER, J., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Lolita BARTHEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1625.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2004.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Lolita Barthel appeals a final order denying her postconviction motion for relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Asserting twenty grounds for relief, the motion was summarily denied in part and finally denied, after an evidentiary hearing. We affirm without comment the trial court’s denial of Barthel’s postconviction motion in all respects except for the summary denial of ground sixteen, which must be reversed and remanded in light of a change in controlling precedent during pendency of this appeal.

In ground sixteen, Barthel alleged that her trial counsel provided ineffective assistance because he did not call a potential alibi witness to testify at Barthel’s trial. In our original opinion, we reversed the postconviction court because it applied an incorrect formulation of the law to determine if Barthel presented a facially sufficient claim for relief. In doing so, we relied on our prior opinions in Neal v. State, 854 So.2d 666, 669 (Fla. 2d DCA 2003), Odom v. State, 770 So.2d 195, 197 (Fla. 2d DCA 2000), and Prieto v. State, 573 So.2d 398, 899-400 (Fla. 2d DCA 1991).

After our original opinion issued but before issuance of the mandate pending the State’s motion for rehearing, our supreme court’s decision in Nelson v. State, 875 So.2d 579 (Fla.2004), issued and became final. - The Nelson court disapproved Odom and held that in order to allege an ineffective assistance of counsel claim for failing to call a witness, the mov-ant must set forth four requirements: (1) the identity of the prospective witness; (2) the substance of the witness’s testimony; (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial; and (4) an assertion that the witness was available to testify. Id. at 582-83. Obviously, without the benefit of Nelson, the trial court did not apply this formulation of the law to analyze Barthel’s claim. • ‘ '

Because this appeal was in the “pipeline” at the time Nelson became final, Barthel is entitled to the benefit of the controlling law in Nelson in effect at the time of appeal. See Reed v. State, 565 So.2d 708, 709 (Fla. 5th DCA 1990) (observing that the principle that the law in effect at the time of appeal should be applied extends to the pendency of motions for rehearing before issuance of the mandate); see also Winfield v. State, 503 So.2d 333, 334 (Fla. 2d DCA 1986). Accordingly, we reverse the summary denial of ground sixteen and remand for further proceedings consistent with Nelson, including granting Barthel leave to amend ground sixteen within a specified time. See Nelson, 875 So.2d at 583-84. If Barthel’s claim is facially insufficient or if the motion, files, and records in the case conclusively show that she is entitled to no relief, the claim may be summarily denied. Fla. R.Crim. P. 3.850(d).

We commend the ’ State for promptly informing us of controlling precedent.

Reversed and remanded.

CASANUEVA and COVINGTON, JJ., Concur.


text:
    Heidi RALEIGH, f/k/a Heidi Smith, Appellant, v. Derek SMITH, Appellee.
    No. 2D03-2658.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2004.

      Kinley I. Engvalson of Roberts & Engvalson, P.A., Fort Myers, for Appellant.
    Philip Steinberg of Powell & Steinberg, P.A., Cape Coral, for Appellee.
   PER CURIAM.

Heidi Raleigh (the mother) appeals from the supplemental final judgment which changes custody of the parties’ children from the mother, who resides in Massachusetts, to Derek Smith (the father), who resides in Florida. We affirm.

The mother argues that the trial court erred in changing the primary residence of the children to the father under section 61.13(4)(c)(5), Florida Statutes (2001), without considering whether the change was in the best interests of the children. That section permits a change of custody when a custodial parent refuses to honor visitation rights without proper cause if the award is in the best interest of the child. Section 61.13(4)(c) also recommends several other, less drastic measures to compel visitation, such as ordering extra visitation or rotating custody.

Here, the trial court had previously tried other options such as extended visitation, which the mother circumvented by having the Massachusetts court suspend the visitation. Because of the mother’s interference with the father’s visitation and her history of willfully refusing to comply with court orders, the court felt it would be futile to order such visitation again. The trial court concluded that anything other than a change of custody would effectively result in the termination of the father’s parental rights.

As the mother argues, “[frustration of visitation alone will not justify a change of custody. The trial court must consider whether it is in the child’s best interest to change custody.” Julian v. Bryan, 710 So.2d 1037, 1038 (Fla. 2d DCA 1998). Here, the trial court considered the mother’s hostile attitude toward the father and her interference with his visitation rights. The court found that due to the mother’s behavior it was in the best interests of the children for the father to be designated the primary residential parent and that it would be detrimental to the children not to make this change.

We agree with the mother that a change of custody to a father who has been willfully absent from the children’s lives for years seems extremely harsh. However, the mother has destroyed any standing she may have had to complain by her complete lack of regard for the trial court’s orders. Most recently, the mother has refused to allow the father to have custody of the children, even though her motions for rehearing, for relief from judgment, and for a stay were all denied. Based on her persistent noncompliance, it appears that the trial court has been proven correct in its assessment of the situation. Accordingly, we affirm.

Affirmed.

CASANUEVA, KELLY, and VILLANTI, JJ„ Concur.


text:
    Antonio VENZAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1944.
    District Court of Appeal of Florida, Third District.
    Aug. 25, 2004.
    Rehearing Denied Oct. 6, 2004.
    Antonio Venzal, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Lopez v. State, 861 So.2d 36 (Fla. 3d DCA 2004).


text:
    William ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4081.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.
    Rehearing Denied Oct. 15, 2004.
    William Ortiz, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

William Ortiz challenges the trial court’s summary denial of his rule 3.850 motion wherein he raised seven issues. We affirm in part, reverse in part, and remand for further review of one point.

Ortiz was sentenced to life as a habitual offender and prison releasee reoffender (PRR) for burglary of a dwelling with battery, in addition to his sixty and ten-year prison terms for car jacking and grand theft. He faults trial counsel for failing to advise him that he could be sentenced as a prison releasee reoffender upon conviction. According to Ortiz, had he known this and the trial court’s lack of discretion to mitigate the sentence in light of the PRR designation, he would have accepted the more favorable plea offer to a prison term of fifteen years.

We find the claim legally sufficient, warranting further review. See Cottle v. State, 733 So.2d 963, 967 (Fla.1999); Smith v. State, 825 So.2d 1012 (Fla. 4th DCA 2002), review denied, 842 So.2d 846 (Fla.2003). We recognize the State’s position that Ortiz does not allege a sufficient temporal relationship between the plea offer and the State’s notice of intent to seek enhanced sentencing. This is a factor for the court’s consideration on remand. See, e.g., Mathis v. State, 848 So.2d 1207 (Fla. 1st DCA 2003).

Affirmed in part, reversed in part, and remanded.

STONE, WARNER and STEVENSON, JJ., concur.

      . See Grant v. State, 770 So.2d 655 (Fla.2000).


text:
    Rayfield MAJOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2042.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.
    Rehearing Denied Oct. 18, 2004.
    Rayfield Major, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the order that denied Major’s motion to correct illegal sentence as the trial court lacked jurisdiction to rule on the motion filed after appellate jurisdiction had vested in this court. Martin v. State, 800 So.2d 363 (Fla. 4th DCA 2001). Accordingly, the trial court shall dismiss the motion. This dismissal is without prejudice to Major refiling following the disposition of his direct appeal. Campbell-Eley v. State, 763 So.2d 539 (Fla. 4th DCA), rev. denied, 789 So.2d 348 (Fla.2000).

POLEN, SHAHOOD and TAYLOR, JJ., concur.


author: POLEN, J.

text:
    EASTERN FUNDING, L.L.C., Appellant, v. Gilda I. ROMAN, d/b/a Unique Dry Cleaner, and Martin Roman, Appellees.
    No. 4D03-2795.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.
    Gordon A. Dieterle of McClosky, D’Anna, Ioannou & Dieterle, LLP, Boca Raton, for appellant.
    Patrick S. Cousins of Cousins Law Firm, P.A., West Palm Beach, for appellee Martin Roman.
   POLEN, J.

Appellant, Eastern Funding, L.L.C., has timely appealed a non-final order on entitlement to arbitration. The central issue below and on appeal is whether the parties’ underlying Lease Agreement evidenced a transaction involving interstate commerce so as to render it subject to the Federal Arbitration Act. This issue presents a pure question of law, therefore we apply a de novo standard of review. See Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003). For the reason that follows we affirm.

This appeal arises from an alleged breach of contract for leased dry cleaning equipment. Group Leasing entered into a Lease Agreement with Gilda Roman. The Lease Agreement provided for. monthly ■payments to be mailed to Group Leasing’s New York address. There was, also a provision in the Lease Agreement for any dispute arising from the lease to be submitted to binding arbitration with the American Arbitration Association in accordance with its rules, to take place in New York. Gilda Roman and her husband, Martin Roman, executed a personal guaranty. Shortly after the Lease Agreement was executed, Group Leasing assigned all of its rights and interest..in the Lease Agreement to the Appellant, Eastern Funding.

It is alleged that at some point, Gilda Roman failed to pay the monthly lease payments. Pursuant to the Lease Agreement, Eastern Funding elected to accelerate the remaining payments. Eastern Funding filed suit in Palm Beach County for breach of contract and breach of guaranty against the Romans. Martin Roman was timely served, but -Gilda Roman was not. Martin Roman filed a Motion to Dismiss for -failure to apply the arbitration clause, which dictated that arbitration be completed in New York. The trial court granted the motion, ordering that the parties shall arbitrate in New York pursuant to the Lease Agreement.

On appeal, Eastern Funding argues that because the arbitration was to take place in a foreign forum, the arbitration clause is not enforceable if one party objects prior to an arbitration award. See § 682.02, Fla. Stat. (2003). In Damora v. Stresscon International, Inc., 324 So.2d 80, 81-82 (Fla.1975), the Supreme Court addressed this issue, holding:

The Florida courts have no statutory authority under Chapter 682 to compel arbitration in another jurisdiction.... Absent the statutory authority of Chapter 682 to enforce the arbitration provision, the controlling law of this state clearly makes an arbitration provision voidable at the instance of either party and prohibits its being used as a bar to an action by either party in a court of competent jurisdiction.
See also Romar Transports, Ltd., Inc. v. Iron and Steel Co. of Trinidad and Tobago, Ltd., 386 So.2d 572, 574 (Fla. 4th DCA 1980). Nevertheless, there is a well-established exception to the general rule announced in Damora. In Butcher & Singer, Inc. v. Frisch, 433 So.2d 1360, 1361 (Fla. 4th DCA 1983), this court held that the general rule does not apply to valid and enforceable arbitration agreements applying federal law, even though foreign state law is incorporated in the arbitration agreement. See Coastal Health Care Group, Inc. v. Schlosser, 673 So.2d 62, 65 (Fla. 4th DCA 1996). As such, Florida courts must enforce arbitration agreements that are subject to the Federal Arbitration Act even if the arbitration agreement is not subject to Florida law.

The Federal Arbitration Act applies only to [a] written provision in ... a contract evidencing a transaction involving commerce .... 9 U.S.C. § 2. The Federal Arbitration Act was discussed in Coastal Health Care, 673 So.2d at 66, in which this court noted:

The [Supreme] Court’s recent case of Allied-Bruce Terminix Co. v. Dobson, [513 U.S. 265] 115 S.Ct. 834, 130 L.Ed.2d 753 (1995), addressed the reach of the Federal Arbitration Act and how the phrase transaction involving commerce should be construed. After noting that some state courts and federal district courts have interpreted the Act’s language as requiring the parties to a contract to have contemplated an interstate commerce connection, the Court held that such language should be read broadly. Specifically, the word involving is broad and is the functional equivalent of affecting. 115 S.Ct. at 839. The Court reiterated its earlier pronouncement that the interstate commerce language should be read broadly to extend the Act’s reach to the limits of Congress’ Commerce Clause power. [ ] 115 S.Ct. at 840; Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987).

Coastal Health Care then discussed whether an interstate transaction meant that the transaction had to turn out in fact to involve interstate commerce or whether the parties had to “contemplate” an interstate transaction. See Dobson, 513 U.S. at 276-77, 115 S.Ct. 834. Coastal Health Care held that a commerce in fact interpretation was more faithful to the statute than the contemplation of the parties interpretation which would require costly litigation. 673 So.2d at 66.

In Coastal Health Care, this court found the following transactions to be interstate transactions: (1) several meetings took place in North Carolina; (2) discussions took place by telephone across state lines; (3) a Florida corporation acquired stock through its parent Delaware corporation with its principal place of business in North Carolina; (4) North Carolina employees and residents were involved in the negotiations; (5) closing took place in North Carolina; and (6) all notices and communications were sent across state lines to North Carolina. Id.

At bar, Eastern Funding is a Delaware corporation, with its primary place of business in New York. Roman, however, was operating out of Florida. Likewise, the monthly rent payments were to be mailed from Florida across state lines to New York. Finally, all correspondence whether by mail or telephone occurred across state lines. Similar to our holding in Coastal Health Care, we hold that the Federal Arbitration Act is applicable as the Lease Agreement involves interstate commerce. Consequently, the trial court did not err in granting Roman’s Motion to Dismiss and in ordering the parties to arbitrate in New York. We find Eastern Funding’s remaining issues to be unpersuasive and hereby affirm.

AFFIRMED.

MAY, J., and GOLD, MARC H., Associate Judge, concur.


author: STONE, J.

text:
    Larry JURESKI and William Callahan, individually, and Larry Jureski, as personal representative of the estate of Stephen M. Scaduto, Appellants, v. Elizabeth SCADUTO, Appellee.
    No. 4D03-2719.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.

      Richard A. Sherman, Sr. of Richard A. Sherman, P.A., Fort Lauderdale, for appellants.
    Jeffrey B. Smith of Kelley, Herman & Smith, Fort Lauderdale, for appellee.
   STONE, J.

Larry Jureski, as personal representative, filed a petition to construe a will. A residuary beneficiary opposed the petition, contending that the will contained two irreconcilable clauses. The trial court, in construing the self-drafted will of the testator, agreed with the residuary beneficiary and concluded that the two dispository paragraphs in the will conflicted. As the conflict could not be otherwise resolved, the trial court, applying settled law, determined that the latter provision must prevail over the former, as the last statement of the testator’s intent. We affirm.

The applicable provisions of the will are:

[3.] All beneficiaries must survive me for 45 days to receive property under this will.
* * *
[4.] All personal and real property that I leave in this will shall pass subject to any encumbrances or liens placed on the property as security for the repayment of a loan or debt.
[5.] If I leave property to be shared by two or more beneficiaries, it shall be shared equally by them unless this will provides otherwise.
[6.] If I leave property to be shared by two or more beneficiaries, and any of them does not survive me, I leave his or her share to the others equally unless this will provides otherwise for that share.
[7.J Entire estate means all property I own at my death that is subject to this will.
[8.] Specific bequest refers to a gift or specifically identified property that I leave in this will.
[9.] Residuary estate means all property I own at my death that is subject to this will that does not pass under a specific bequest.
[10.] I leave ten cents U.S. funds (USDO.IO) to Lawrence Scaduto.
[11.] I leave any property that I may own at the time of my death to Larry Jureski and William Callahan in equal shares.
[12.] I leave my residuary estate to Larry Jureski, William Callahan, Glen Craig, Regina Garrido, Susan Clohan and Elizabeth Scaduto in equal shares.

By the time of death, the testator’s estate included real property, valued at $270,000.00, as well as $46,800.00 in personal property. At a hearing on the matter, Jureski argued that he and Callahan were entitled to all the property, both real and personal, pursuant to clause 11 of the will. Alternatively, Jureski suggested that both he and Callahan were at least entitled to all the testator’s real property. Elizabeth Scaduto, residuary beneficiary, argued that clauses 11 and 12 directly conflicted, making it impossible to determine the testator’s testamentary intent. Further, Scaduto asserted that, by accepting Jureski’s contention that he and Callahan should receive all the property in the estate, real and personal, the court would essentially void the operation of the residuary clause and fail to carry out the testator’s testamentary intent.

We note that none of the parties are a spouse or child of the decedent. We further note that neither party seeks a further evidentiary hearing or proffers any extraneous evidence of the testator’s intent; rather, each side left it to the trial court to construe intent from the four corners of the will.

The trial court found that the will was not clear as to what property was intended to pass under clauses 11 and 12, rejecting both of JuresM’s interpretations, and concluded that the two provisions were irreconcilable. Thus, the trial court determined that the residuary clause, as the latter provision, should prevail.

The court relied on Romaniello v. Roaniello, 760 So.2d 1083 (Fla. 5th DCA 2000), in concluding that neither Jureski nor Callahan was entitled to all of the estate property, real and personal, because the will did not contemplate a failure to fund the residuary beneficiaries. While the instant case is like Romaniello in that the testator’s will does not define the type of property meant to be devised, it is unlike Romaniello because the testator’s intent in using the term “property” is not apparent from the surrounding wording.

We conclude that Elliott v. Krause, 531 So.2d 74 (Fla.1987), is even more akin to this case. There, the court recognized that, when a will contains clauses that are in conflict, the latter clause should be given effect. Elliott, 531 So.2d at 76.

In addressing Jureski’s primary contention, we find that the will does not clearly bequeath all of the real and personal property in the estate to Jureski and Callahan. First, clause 7 defines the testator’s “entire estate” to mean “all property” owned by the testator at his death. The general bequest to Jureski and Callahan in clause 11, however, does not refer to the “entire estate” or “all the property;” rather, it leaves Jureski and Callahan “any property...:” Because the parties have provided no extrinsic evidence as to the meaning of the phrase “any property,” we find it impossible to distinguish which type of property the testator intended to bequeath under either clause 11 or clause 12. We further disagree with-Jureski’s categorization of clause 11 as a specific bequest. A specific bequest is “a gift by will of property which is particularly designated and which is to be satisfied only by the receipt of the particular property described.” In re Estate of Potter, 469 So.2d 957, 959 (Fla. 4th DCA 1985)(quoting In re Parker’s Estate, 110 So.2d 498, 500 (Fla. 1st DCA 1959)). Because the disposition in clause 11 may be generally satisfied out of the testator’s estate, rather than from a specifically designated fund or object, we find the clause to be a general bequest. Id. Thus, the two clauses are irreconcilable and the residuary clause should prevail as the last statement of the testator’s intent.

We note we do not find that clauses 11 and 12 are inconsistent merely because both include Jureski and Callahan as beneficiaries. First, assuming we interpret the term “others”- in clause 6 to refer to the residuary beneficiaries in clause 12, it is entirely possible that the testator intended that, should Jureski or Callahan predecease the testator, the surviving beneficiary would receive both his one-half share of the entire estate and a one-fifth share of the deceased beneficiary’s one-half as a residuary beneficiary. Further, the inclusion of Jureski and Callahan under both clauses 11 and 12 becomes even more practical if operating under the presumption that the testator intended to bequeath either real or personal property in clause 11, rather than the entire estate, with Jureski and Callahan also sharing in the residue.

In considering Jureski’s alternative argument that he and Callahan were entitled to at least all of the real property, with the residuary beneficiaries entitled only to the testator’s personal property, the trial court reasonably concluded that there was no indication of how the testator intended his real and personal property to be separately devised under clauses 11 and 12. While we acknowledge that the testator may have intended to convey any real property to Jureski and Callahan, we cannot make such an assumption, as a matter of law, because to do so would ignore the holding in Elliott. 531 So.2d at 76.

Therefore, because the testator’s testamentary intent as to how the real property and the personal property should be devised under clauses 11 and 12 is undiscov-erable, we cannot say that the trial court erred in concluding that clauses 11 and 12 are irreconcilable.

We recognize that there is a corresponding limiting principle of construction, as set forth in Dutcher v. Estate of Dutches 437 So.2d 788, 790 (Fla. 2d DCA 1983)(citing In Re McMillan’s Estate, 158 Fla. 898, 30 So.2d 534, 536 (1947)), that:

If there is an irreconcilable conflict between two provisions in a will, the latter provision will usually prevail as being the last expression of the intention of the testatrix where the provisions refer to the same subject matter. Of course, where possible, the two provisions are to be construed in such a manner as to harmonize them; if this is not possible, the first provision is rejected only to the extent necessary to give effect to the latter provision.

See In Re Rogers’ Estate, 180 So.2d 167, 170 (Fla. 2d DCA 1965)(emphasis added).

Here, applying the principle of rejection “only to the extent necessary,” it cannot be disputed that the testator intended some property to pass by paragraph 11 to Jure-ski and Callahan. We recognize that, although the court was not able to construe clause 11 to include either all property or any real property in the estate, clause 11 might, in rejecting clause 11 only to the extent necessary, be construed, simply, as passing the testator’s tangible personal property. However, as neither party has raised or requested that limited interpretation, we do not decide whether the will could be so construed.

STEVENSON and HAZOURI, JJ., concur.


text:
    Edward J. MOTTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2994.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.

      John A. Garcia of John A. Garcia, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Edward Motta appeals from pleas of guilty to, charges of Felony Battery and Aggravated Battery on the ground that the trial court erred by rejecting his guilty in his best interest plea once it had been accepted. Because Motta failed to preserve his right to appeal, we affirm.

Appellant pleaded guilty in his best interest to charges of Felony Battery and Aggravated Battery. Following a recitation of the factual bases for the charges, the trial court accepted .appellant’s plea of guilty to both counts. Subsequent to this acceptance, the trial court requested that appellant admit to the factual bases. Appellant’s counsel responded that, since this was a plea to the court and not a plea agreement, appellant would like to plead no contest and would agree that if,the facts were presented to a jury he could be found guilty of each charge. The trial court refused to accept a no contest plea based on the severity of the factual bases, but would accept a plea of guilty. Appellant’s counsel stated he would plead guilty as a plea in his best interest. Indicating the inappropriateness of either a no contest plea or a guilty plea in his best interest, the court requested that he enter a guilty plea or proceed to trial. Appellant then stated he pleaded, guilty, and the trial court entered the plea.

Florida Rule of Appellate Procedure 9.140(b)(2)(A) allows for a defendant to appeal from a guilty or nolo contendere plea for reasons including those applicable to this case: (I) the right to appeal is expressly reserved or (ii) in the case of the violation of a plea agreement or involuntary plea, the issue is preserved by a motion to withdraw. In this case, neither the trial court record nor the transcript indicate any expressed reservation by the appellant; further, no motion to withdraw plea was made on the record.

Therefore, the issue is not properly preserved for review, requiring that this Court affirm. See Harriel v. State, 710 So.2d 102, 104 (Fla. 4th DCA 1998)(“Recently, in Thompson v. State, 708 So.2d 289 (Fla. 4th DCA 1998), we held that the preservation requirements of section 9.140(b)(2)(B) and (d) are not jurisdictional .... ”)(en banc).

AFFIRMED.

GUNTHER, STEVENSON and HAZOURI, JJ., concur.


author: PETERSON, J.

text:
    Sharon D. BRYANT, Appellant, v. Greg BRYANT, Appellee.
    No. 5D03-3712.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.
    Rehearing Denied Oct. 7, 2004.
    Linda D. Schoonover of Linda D. Schoonover, P.A., Altamonte Springs, for Appellant.
    N. Lee Sasser, Jr., of Sasser and Weber, P.A., Orlando, for Appellee.
   PETERSON, J.

Sharon D. Bryant appeals an order denying her petition to modify a December 18, 2002 final judgment dissolving her marriage to Greg Bryant. Specifically, she requested that their pre-judgment marital settlement agreement, adopted by the dissolution judgment, be modified to allow her to relocate the parties’ minor child to Louisiana and eliminate the requirement that the primary residence be maintained in Orange, Osceola, Seminole or Lake County, Florida. The order also changes the primary residential responsibility from Sharon to Greg unless Sharon, who had already relocated her residence to Louisiana leaving the child in Florida with Greg, returned to Florida within sixty days and relocated within the Orlando area in the Lakemont Elementary School District.

Because no transcript exists of the hearing in which Sharon’s petition was considered along with Greg’s petition to change primary residential responsibility if Sharon relocated to Louisiana, our review is limited to the pleadings, judgment dissolving the marriage, post-judgment orders and arguments of counsel. Sharon, as the appellant, bears the burden of demonstrating error, and in the absence of an adequate record on appeal, a judgment that is not fundamentally erroneous must be affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). The record does not reflect that any attempt was made to reconstruct the record as allowed by Florida Rule of Appellate Procedure 9.200(b)(4).

We find no abuse of discretion by the trial court after our review that was limited by an absence of a record, except for the trial court’s requirement that Sharon must relocate to the Orlando area in the Lakemont' Elementary School District if she is to retain primary residential custody of her child. Greg’s pleadings make no such request, and neither the settlement agreement nor the judgment dissolving the marriage requires a residence within such a limited geographical area. The only residential requirement as specified in the settlement agreement is that the primary residence be maintained in Orange, Osceola, Seminole or Lake County, Florida. Narrowing the geographical area in which Sharon must reside in order to maintain primary custody violates the same provision of the settlement agreement relied upon by the trial court in denying Sharon’s petition to change her residence to Louisiana.

The October 7, 2003 order denying the relocation is affirmed with the exception of the requirement that Sharon be required to relocate to the Orlando area in the Lakemont Elementary School District if she is to continue as the primary residential parent. She is only required to relocate to the four-county Central Florida area within sixty days of the date of this order if she is to continue as the primary residential parent.

AFFIRMED IN PART; REVERSED IN PART.

GRIFFIN and PALMER, JJ., concur.