author: POLSTON, J.

text:
    BAKER COUNTY PRESS, INC., a Florida corporation, and James C. McGauley, Appellants, v. BAKER COUNTY MEDICAL SERVICES, INC., Appellee.
    No. 1D03-803.
    District Court of Appeal of Florida, First District.
    March 4, 2004.

      Robert M. Dees, of Milam & Howard, P. A., Jacksonville, for Appellants.
    Jonathan D. Kaney, Jr., of Cobb & Cole, Daytona Beach, for First Amendment Foundation, Florida Society of Newspaper Editors, Tallahassee Democrat, Inc., News-Journal Corporation and Morris Communications Corporation, d/b/a The Florida Times, Amici Curiae.
    John D. Buchanan, Jr. and Laura Beth Faragasso, of Henry, Buchanan, Hudson, Súber & Carter, P. A., Tallahassee, for Appellee.
    James J. Kennedy, III and Edward J. Carbone, of Buchanan Ingersoll, P.C., Tampa, for Florida Hospital Association and Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital, Amici Curiae.
   POLSTON, J.

Appellants The Baker County Press, Inc. and James C. McGauley challenge the trial court’s final judgment in favor of ap-pellee Baker County Medical Services, Inc., ruling that appellants are not entitled to requested documents and minutes of board meetings' because Medical Services is not subject to the Public Records Act, chapter 119, Florida Statutes, or the Sunshine Law, chapter 286, Florida Statutes. Because we agree with Medical Services that section 395.3036, Florida Statutes (2002), provides exemptions for Medical Services from the Public Records Act and Sunshine Law, we affirm the trial court’s final judgment.

I. Background

On September 4, 2002, The Baker County Press and James McGauley, the publisher of The Baker County Press and a citizen of the state of Florida, filed an action under chapter 119, the Public Records Act, section 286.011, the Sunshine Law, and article I, section 24 of the Florida Constitution, the Sunshine Amendment, against Medical Services. The Baker County Press and Mr. McGauley requested mandamus, injunctive, and declaratory relief, asking the trial court to rule that Medical Services must comply with the Sunshine Law, the Public Records Act, and the Sunshine Amendment in accordance with the Supreme Court of Florida’s decision in Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 729 So.2d 373 (Fla.1999). The suit was based on a June 30, 2002 records request by The Baker County Press, signed by Mr. McGauley as its Publisher, for the board minutes of every meeting of Medical Services since it was formed and its financial records. Medical Services is a private company which operates the Ed Fraser Memorial Hospital, the Frank Wells Nursing Home, and the Baker Community Health Center (collectively “the Hospital”). Medical Services operates the Hospital pursuant to a lease agreement with the Baker County Hospital Authority. The Authority is a public taxing district and owns the. Hospital. The Authority was established by the Florida Legislature pursuant to chapter 28887, Laws of Florida (1953), which has since been amended, although not materially. In relevant part, the enabling legislation for this law: (1) provided for a board of commissioners to provide medical care to the public and to establish, construct, and maintain public hospitals for the public use and welfare, (2) declared the operation of such hospitals to be a public purpose, (3) gave the governing board the power to issue revenue bonds, (4) charged the Baker County Board of County Commissioners with providing the revenue for the erection, building, equipping, maintenance, and operation of the Authority’s hospitals, and (5) gave the Baker County Board of County Commissioners the power to levy taxes for these purposes. See Ch. 74-422, §§ 2-5, at 33-34, Laws of Fla.; Ch. 28887, Laws of Fla. (1953). The Hospital originally opened in 1955.

The Authority leased the Hospital to Medical Services in 1993, when the Hospital was in serious financial distress. Appellant The Baker County Press requested the same type of information that it now seeks on October 28, 1993, which was litigated in Case No. 93-559-CA, in the Circuit Court of the Eighth Judicial Circuit, in and for Baker County, Florida. After a bench trial in that case, the trial court held in favor of Medical Services, ruling that it was not subject to the Public Records Act or the Sunshine Law. The February 9, 1994 final judgment was not appealed.

The lease between Medical Services and the Authority, as amended in 1998, provides in relevant part: (1) Medical Services has operational control of the hospitals, (2) Medical Services has possession of the Authority’s existing facilities, authority to provide health care, and control over the working capital, (3) all improvements and additions to fixtures by Medical Services revert to the Authority at the termination of the lease, (4) rent includes Medical Services’ assumption of the Authority’s debt and interest payments for the bonds, (5) Medical Services is responsible for providing indigent care, (6) Medical Services is required to comply with the enabling legislation, (7) Medical Services is required to certify a budget to the Authority so that the Authority may certify the budget, for operating and maintaining the leased property, to the property appraiser, (8) Medical Services is required to allocate its revenues in priority to pay operating expenses, lease payments, and any other required contractual payments by the Authority, and (9) the Authority is to issue bonds to construct new facilities, purchase personal property, and pay for costs associated with operating the hospital.

The trial court ruled that it would not revisit its 1994 ruling in favor of Medical Services because the appellants did not present sufficient changes in circumstances, and entered final judgment denying the relief requested by The Baker County Press. The trial court erred in applying its 1994 final judgment. The public records request was made on June 30, 2002, and the law then in effect is applicable. See News-Press Publ’g Co. v. Kaune, 511 So.2d 1023, 1026 (Fla. 2d DCA 1987) (stating that, generally, “the critical date in determining whether a document is subject to examination is the date the request for examination is made”). Therefore, the Florida Supreme Court’s 1999 decision of Memorial Hospital applies. Because we agree with appellants that the instant case is indistinguishable from Memorial Hospital, Medical Services is generally subject to the Public Records Act and the Sunshine Law. However, as Medical Services argues in the alternative, the statutory exemptions must then be considered.

II. Section 395.3036 Exemption

Section 395.3036 exempts the records of a private corporation that leases a public hospital or other public health care facility from the Public Records Act and the Sunshine Law:

Confidentiality of records and meetings of corporations that lease public hospitals or other public health care facilities. — The records of a private corporation that leases a public hospital or other public health care facility are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art I of the State Constitution, and the meetings of the governing board of a private corporation are exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution when the public lessor complies with the public finance accountability provisions of s. 155.40(5) with respect to the transfer of any public funds to the private lessee and when the private lessee meets at least three of the five following criteria: ...

Section 395.3036, Florida Statutes (2002). Appellants do not dispute that Medical Services satisfies the required criteria, but argues that section 395.3036 is facially unconstitutional under article I, section 24 of the Florida Constitution and Halifax Hospital Medical Center v. News-Journal Corp., 724 So.2d 567 (Fla.1999).

Article I, Section 24(c) of the Florida Constitution provides in pertinent part that “[t]he legislature, however, may provide by general law passed by a two-thirds vote of each house for the exemption of records from the requirements of subsection (a) [public records provision] and the exemption of meetings from the requirements of subsection (b)[sunshine provision], provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law.” The Florida Supreme Court, in Halifax, held that section 395.3035(4), Florida Statutes (1995), did not conform to the requirements of article I, section 24(c), and therefore was unconstitutional. Section 395.3035(4) stated:

Those portions of a board meeting [of a governing board of a public hospital] at which the written strategic plans, including written plans for marketing its services, are discussed or reported on are exempt from the provisions of s. 286.011 and s. 24(b), Art. I of the State Constitution.

Section 395.3035(4), Florida Statutes (1995).

The legislature justified this 1995 exemption in pertinent part:

[I]t is a public necessity that portions of a public hospital’s governing board meetings be closed when confidential contracts, contract negotiations, or strategic plans are discussed. If such meetings are not closed, critical confidential information regarding contracts, contract negotiations, and strategic plans regarding, for example, growth opportunities, would be revealed, making it exceptionally difficult, if not impossible, for a public hospital to effectively compete in the marketplace against private hospitals, whose records and meetings are not required to be open to the public.

Halifax, 724 So.2d at 568-69 (quoting Ch. 95-199, § 2, at 1813, Laws of Fla.).

The Florida Supreme Court held that the statutory exemption did not meet the exacting constitutional standard of article 1, section 24(c), requiring specificity of the stated public necessity and limited breadth to accomplish that purpose, and therefore held the statute facially unconstitutional. Id. at 569. The Court noted that no statutory definition was provided for “strategic plans” nor was there a justification for the breadth of the exemption. Id. at 570. Moreover, the legislature did not define “strategic plans” or “critical confidential information” in its stated legislative justification. Id. The Court approved the trial court’s ruling: “All discussion of strategic plans is made secret solely to protect that part of the discussion which pertains to critical confidential information. This is facial overbreadth.” Id.

The statute and legislative justification in the instant ease are different from those presented in Halifax. Because all documents and meetings are exempted in section 395.3036, the definitional problems at issue in Halifax are not present in the instant case. Furthermore, the legislative justification is more specific and is sufficient to justify the breadth of the exemption:

Section 2. (1) The Legislature finds that it is a public necessity that all records of a private corporation and all meetings of the governing board of the private corporation be confidential and exempt from the public records and public meeting laws of this state when the private corporation leases a public hospital or other public health care facility from a public entity in accordance with the terms of this act. The Legislature further finds that private corporations have entered into such leases in reliance on the legal standard governing the application of the public records and open meeting laws to such lease agreements which was set forth in case law existing at the time of the transaction. That standard provided that such private lessees were not “acting on behalf of’ the public entity and, therefore, not subject to the state’s public records laws so long as the public entity did not retain control over the private lessee. No one factor was used to determine whether the public entity exerted control; instead a “totality of factors” was analyzed and the decision made on the balance of those factors. In a recent decision, however, the Fifth District Court of Appeal has now applied the standard in a manner that may cause more lessees to be subject to public records and meetings requirements. The Legislature finds that the effect of the decision has been:
(a) To create uncertainty with respect to the status of records and meetings under existing lease arrangements; and
(b) To create a disincentive for private corporations to enter into such lease agreements in the future.
(2) Public entities have chosen to privatize the operations of their public hospitals and public health care facilities in order to alleviate three problems that pose a significant threat to the continued viability of Florida’s public hospitals:
(a) A financial drain on the facilities from their forced participation in the Florida Retirement System;
(b) The competitive disadvantage placed on these facilities vis a vis their private competitors resulting from their required compliance with the state’s public records and public meeting laws; and
(c) State constitutional restrictions on public facility participation in partnerships with private corporations as a result of the limitations contained in the State Constitution. For years, the Legislature has approved and encouraged these leases, first through special acts that it has adopted authorizing the lease agreements and, more recently, through the adoption of section 155.40, Florida Statutes, which provides for the conversion of public hospital facilities to private operation by lease, as a means to provide public entities with the necessary flexibility to use these public assets in a manner that best serves the interests of the public. Through such lease arrangement, public entities have been able to obtain substantial and oftentimes desperately needed private capital investment into these facilities and to relieve the oftentimes burdensome drain on public tax revenues which resulted from public operation.
(3) In the absence of a defined and, therefore, predictable statewide standard for determining when the public records and public meetings laws apply to future lease agreements, public entities may find it difficult, if not impossible, to find a private corporation that is willing to enter into a lease to operate the public hospital or other public health care facility. This, in turn, could force the public entity:
(a)To close the hospital or other health care facility, which would result in a reduction in health care services to the public;
(b) To sell the hospital or other health care facility, which sale, if the facility has deteriorated because of inadequate capital investments over time, will likely be at a loss; or
(c) To continue operating the hospital or other health care facility using public tax dollars to subsidize recurring losses. None of these options is in the best interest of the public.
(4) The Legislature, therefore, finds that it is a public necessity for it, through this act, to clarify when the public records and public meeting laws apply to private lessees of public hospital or other public health care facilities. The Legislature further finds that it is a public necessity for these private lessees to be exempt from the public records and public meetings laws of the state so long as, applying the standard codified by this act, the public entity does not retain control over the private entity.

Ch. 98-330, § 2, at 2846-47, Laws of Fla. (footnote not in original).

Accordingly, we hold that the constitutional concerns expressed by the Florida Supreme Court in Halifax have been satisfied by the Florida Legislature in its enactment of section 395.3036. See Bryan v. State, 753 So.2d 1244, 1251 (Fla.2000)(holding that legislative findings supporting exemptions for disclosures satisfied article I, section 24(c) of the Florida Constitution). We affirm the trial court’s ruling that appellants failed to show that section 395.3036 is unconstitutional. See A.B.A. Indus., Inc. v. City of Pinellas Park, 366 So.2d 761, 763 (Fla.1979)(ruling that an act of the Legislature “will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt”); Bush v. Holmes, 767 So.2d 668, 673 (Fla. 1st DCA 2000)(ruling that “[w]hen a legislative enactment is challenged the court should be liberal in its interpretation; every doubt should be resolved in favor of the constitutionality of the law, and the law should not be held invalid unless clearly unconstitutional beyond a reasonable doubt,” quoting Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 882 (1944)); Medina v. Gulf Coast Linen Servs., 825 So.2d 1018, 1020 (Fla. 1st DCA 2002)(same). Because section 395.3036 provides an exemption from the Public Records Act and Sunshine Law, we affirm the trial court’s judgment in favor of appellee.

III. Section 155.40 Exemption

In pertinent part, section 155.40 states:

(6) Unless otherwise expressly stated in the lease documents, the transaction involving the sale or lease of a hospital shall not be construed as:
(a) A transfer of a governmental function from the county, district, or municipality to the private purchaser or lessee;
(b) Constituting a financial interest of the public lessor in the private lessee; or
(c) Making a private lessee an integral part of the public lessor’s decisionmak-ing process.
(7) The lessee of a hospital, pursuant to this section or any special act of the Legislature, operating under a lease shall not be construed to be “acting on behalf of’ the lessor as that term is used in statute, unless the lease document expressly provides to the contrary.

Section 155.40(6)-(7), Florida Statutes (2002). The apparent purpose of these provisions are to exempt private lessees from the Public Records Act and Sunshine Law, as argued by appellee in support of nondisclosure. Accordingly, the requirements for exemptions under article I, § 24(c) of the Florida Constitution must be complied with. In contrast to the enactment of section 395.3036, there are no legislative findings regarding the public necessity for the exemption in section 155.40. See Ch. 99-356, § 6, at 3633, Laws of Fla. Therefore, we agree with appellants that this statute is unconstitutional under Halifax.

Conclusion

Because we agree with Medical Services that section 395.3036, Florida Statutes (2002), provides exemptions for Medical Services from the Public Records Act and Sunshine Law, and is facially constitutional, we affirm the trial court’s final judgment.

AFFIRMED.

ERVIN and BARFIELD, JJ., concur.

      . The trial court also granted Medical Services' partial summary judgment motion against Mr. McGauley because it found that The Baker County Press, not Mr. McGauley, made the records request. We agree. Because the complaint is based on public record requests by The Baker County Press, not on any demands by Mr. McGauley individually, we affirm the trial court's granting of partial summary judgment relating to the individual claim of Mr. McGauley.

      . See News-Journal Corp. v. Memorial Hosp.-West Volusia, Inc., 695 So.2d 418 (Fla. 5th DCA 1997), approved, Memorial Hosp.-West Volusia, Inc. v. News-Journal Corp., 729 So.2d 373 (Fla.1999).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BLUEGRASS ART CAST, INC., et al, Appellant, v. CONSOLIDATED ERECTION SERVICES, INC., Appellee.
    No. 5D02-3404, 5D03-238.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.
    Rehearing Denied April 21, 2004.
    Raymond T. Elligett, Jr. and Amy S. Farrior of Schropp, Buell & Elligett, P.A., Tampa, and Richard E. Whitaker of Richard E. Whitaker, P.A., Orlando, for Appellant.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, for Appellee.
   PER CURIAM.

Bluegrass Art Cast, Inc., (“Bluegrass”), appeals a judgment entered against it in favor of Consolidated Erection Services, Inc. (“Consolidated”). Bluegrass also appeals an award of attorney’s fees that increased to $1,387,086.25 when the trial court applied a 2.2 contingency fee multiplier to the lodestar amount of $630,493.75.

In Holiday v. Nationwide Mutual Fire Insurance, 864 So.2d 1215 (Fla.App. 5th DCA 2004), we questioned the viability of the use of a multiplier under Standard Guaranty Insurance Company v. Quanstrom, 555 So.2d 828 (Fla.1990), in light of Sarkis v. Allstate Insurance Company, 863 So.2d 210 (Fla.2003). The attorney’s fees in Holiday were awarded pursuant to section 627.428, Florida Statutes (2002), the same statute that was used to award fees in the instant case. That statute does not expressly authorize the use of a multiplier nor does section 627.756, Florida Statutes (2001), which was another basis cited for the fees awarded to Consolidated.

Accordingly, and consistent with Holiday, we certify the following question as one of great public importance:

In light of the Supreme Court’s decision in Sarkis v. Allstate Insurance Company, 863 So.2d 210 (Fla.2003), may a multiplier be applied to enhance an award of attorney’s fees granted under fee shifting statutes such as sections 627.428 and 627.756, Florida Statutes (2001).

In the meantime, we follow the dictates of Quanstrom, affirm the award of attorney’s fees as well as the judgment for damages. We find no errors in the remaining issues raised by Bluegrass.

AFFIRMED; QUESTION CERTIFIED.

PETERSON, THOMPSON and ORFINGER, JJ., concur.


text:
    Myra S. VAIVADA, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5292.
    District Court of Appeal of Florida, First District.
    March 5, 2004.
    Rehearing Denied April 16, 2004.
    Robert Augustus Harper, Esq.; Michael Robert Ufferman, Esq.; of Robert Augustus Harper Law Firm, P.A., Tallahassee, FL, for Appellant.
    Charlie Crist, Attorney General; Thomas D. Winokur, Assistant Attorney General; Tallahassee, FL., for Appellee.
   PER CURIAM.

Myra S. Vaivada seeks review of the non-summary denial of her post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, wherein she raises a claim of ineffective assistance of counsel for defense counsel’s failure to investigate and pursue the defense of involuntary intoxication. After consideration of the record and briefs, we must affirm as each of the trial court’s findings are supported by competent, substantial evidence. See Kornegay v. State, 826 So.2d 1081 (Fla. 1st DCA 2002) (holding when reviewing the non-summary denial of a rule 3.850 motion, the appellate court must give deference to the trial court’s finding of facts that are supported by competent, substantial evidence and review the findings of law de novo). We decline to address the issue of whether the defense of involuntary intoxication exists under Florida law, see Mora v. State, 814 So.2d 322, 330 (Fla.2002); Carter v. State, 710 So.2d 110, 111 (Fla. 4th DCA 1998), because the issue was not addressed below. See Fleming v. Peoples First Financial Savings and Loan Ass’n, 667 So.2d 273, 274 (Fla. 1st DCA 1995).

AFFIRMED.

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


text:
    Anthony SANTIAGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2356.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Rehearing Denied April 7, 2004.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   PER CURIAM.

Anthony Santiago appeals his conviction for burglary of a conveyance. We affirm.

Defendant-appellant Santiago asserts that his motion for mistrial should have been granted. During the testimony of the lead detective, the following transpired:

Q I’m going to be brief, let’s just cut to the chase, did you at some point in time have an opportunity to take DNA evidence from the defendant in this ease.
AI did.
Q Would you please tell the jury about that?
A I’m not exactly sure of the day, but I responded to a court order to swab the defendant for DNA.
Q Okay. Why don’t you tell the jury what happened when you arrived, was it at the jail?
A At the jail correct.
Q Okay. When you arrived at the jail—
[Defense Counsel]: Your Honor, I’m going to object, and I have a motion to be made.
* * *
[Defense Counsel]: The defense, Your Honor, strenuously objects, and we ask that a mistrial be granted. I believe that the question by the prosecutor, and now that I heard it for the second time, the answer by the Detective has prejudiced this jury against this defendant. Especially when he’s saying, I don’t know when I went to the jail. Ml those facts together add up to one, and one conclusion on behalf of the defense, they heard something they shouldn’t have heard, and it’s highly prejudicial to this defendant and a mistrial should be granted.

TR. 485-87.

The court sustained the objection and offered two alternatives for a curative instruction: (1) instruct the jury that the jail is one of the DNA testing facilities and that they are not to imply that the defendant was being held in custody at the time of the testing, or (2) instruct the jury to disregard the question. While maintaining that only a mistrial would suffice, the defense opted for the latter instruction, which the court gave.

“A ruling on a motion for a mistrial is within the sound discretion of the trial court and should be ‘granted only when it is necessary to ensure that the defendant receives a fair trial.’ ” Rivera v. State, 859 So.2d 495, 512 (Fla.2003) (quoting Gore v. State, 784 So.2d 418, 427 (Fla.2001)). The trial court’s ruling in this case was within its discretion.

The most likely interpretation by the jury would have been that the defendant was incarcerated on this case because he had been unable to make bail. This was an isolated reference in a four-day trial. The judge promptly sustained the objection and gave a curative instruction. We think the curative instruction was sufficient and agree with the trial court that a mistrial was not required. See Rivera, 859 So.2d at 511-12 (mistrial not required where juror was heard to comment, “I think he did it.”); Gore v. State, 784 So.2d at 427-28 (mistrial not required where question brought out that defendant had an “intimate relationship” with a thirteen-year-old girl); Cole v. State, 701 So.2d 845, 853 (mistrial not required where witness referred to defendant’s “history” which could be interpreted as referring to defendant’s prior criminal history); Spencer v. State, 645 So.2d 377, 382-83 (Fla.1994) (mistrial not required where prosecutor made isolated reference to fact (not in evidence) that the victim carried a rifle around her house because she was afraid of the defendant).

The defendant also argues that the trial court erred by classifying the defendant as both a habitual violent felony offender and a violent career criminal. We decline to reach this issue because it was not raised in the trial court at sentencing or by a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b). See Brannon v. State, 850 So.2d 452, 458 (Fla.2003). This ruling is without prejudice to the defendant to file an appropriate postconviction motion.

Affirmed.

       The trial court excused the jury and had the testimony read back.


author: RAMIREZ, J.

text:
    STATE of Florida, Appellant, v. Michael Angelo GONZALEZ, Appellee.
    No. 3D02-2887.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Rehearing Denied April 7, 2004.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellant.
    Law Offices of Grey & Mourin, P.A., and Juan E. Mourin, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

The State of Florida appeals the trial court’s order suppressing the statements of Michael Angelo Gonzalez and suppressing the physical evidence found in his automobile. Because we find that Gonzalez’s detention was an arrest and that the police lacked probable cause to make this arrest, we find no error and thus affirm.

Gonzalez was arrested on March 15, 2001, and charged with trafficking in heroin. He subsequently filed a motion to suppress the evidence found on that day. The testimony at the suppression hearing revealed that the day before, Lucinda Den-nison was arrested in Naples for possession of heroin. Dennison identified her supplier to Detective Margarita Nelson of the DEA task force in Naples as a man in Miami named “Mike” and agreed to cooperate with law enforcement to find and arrest Mike. Dennison described Mike as a short, thin Puerto Rican male in his early twenties with dark hair and dark eyes. Dennison had never worked with law enforcement before and could not provide a last name for Mike. She also told the police that she had seen Mike driving at least four different vehicles, including a black Volkswagen Beetle.

When Dennison called Mike at the police’s direction, she tried unsuccessfully to get him to come to Naples. The next day, Detective Nelson asked Dennison to call Mike again and recorded the conversation. Dennison asked Mike if he could “do four” and he said yes. She left for Miami accompanied by Detective Nelson, members of the DEA task force, members of the Naples Narcotics Unit, and members of the Florida Department of Law Enforcement to purchase heroin from Mike.

Once in Miami, Dennison called Mike again. After some calls back and forth, they ultimately agreed to meet at a Wendy’s restaurant. Dennison told the police that Mike had been driving a black Volkswagen Beetle with a Miami Heat license plate. She also told the police that she had seen Mike in possession of a gun.

Naples Police Department Detective Sergeant Joseph David Popka then drove Dennison to the area to wait for Mike. When Popka heard the final conversation between Dennison and Mike detailing that Dennison and Mike were going to meet at Wendy’s and that Mike was driving a black Volkswagen Beetle, Popka relayed that information to the other officers. Meanwhile, Nelson drove by the Wendy’s and saw a black Volkswagen with a Miami Heat license plate with a short, thin Hispanic male behind the wheel. Nelson then reported her observations to the other members of the task force.

Several officers and agents then drove to the Wendy’s restaurant and observed a young, Hispanic male driving a black Volkswagen Beetle. He was ordering food through the drive-through window. The man parked at a designated parking spot in the Wendy’s parking lot and began to eat the food he had ordered.

Vince Weiner, Special Agent with the Florida Department of Law Enforcement, was there, along with two vehicles containing five law enforcement officers. Weiner’s special operations team (SWAT) was dressed in black military-style clothing, armed with firearms as well as submachine guns. As Weiner entered the Wendy’s parking lot, he observed the defendant exit a black Volkswagen. Gonzalez matched the general description that had been given to Weiner. Officer Weiner proceeded to explode a grenade type device for the purpose of distracting Gonzalez while the officers and agents rushed him at gun point, ordered him out of the vehicle, placed him in handcuffs and forced him to the ground. This “distraction device” is the same as a grenade, except it “only” emits a loud noise and a big flash of light. Weiner did not see Gonzalez commit any crime, or even act suspiciously. Gonzalez did not resist when he was detained. Immediately after Gonzalez was taken down, the officers began to search his vehicle.

After the search, Dennison was taken to the Wendy’s restaurant and she identified Mike as her supplier as he lay on the ground in handcuffs. She had not previously identified Mike to the officers and agents. She was then driven away from the scene. No weapons were found after the search of Gonzalez and his vehicle. Gonzalez remained handcuffed throughout the remainder of the encounter with the police during which heroin was found in his car.

After a review of all the events that led up to Gonzalez’s arrest, the trial court granted Gonzalez’s motion to suppress. The State then filed this appeal, contending that the trial court erred as a matter of law in suppressing the heroin seized and the statements Gonzalez made to the police because the evidence was obtained from a valid investigatory stop and it was based upon probable cause under the totality of the circumstances. Gonzalez counters that the trial judge did not err because his detention constituted an arrest and that arrest was not based on probable cause. We fully agree with Gonzalez.

The facts in the record and the testimony at the suppression hearing clearly reflect that Gonzalez was not simply detained, he was subjected to a full-blown arrest of the type one would expect surrounding the capture of a dangerous terrorist. When combined with a SWAT team converging on a lone, unarmed individual having lunch at Wendy’s, the net result is more akin to Iraq than the United States of America. An investigatory stop is not generally accompanied by a stun grenade, followed by an assault SWAT team operation whereby an individual is thrown to the ground at gunpoint, and handcuffed faced down on a parking lot. At that point, the individual has effectively been placed under arrest even if not told he has been placed under arrest. See London v. State, 540 So.2d 211, 212 (Fla. 2d DCA 1989). Our review of the record leaves no doubt that this was an arrest.

Furthermore, the testimony at the suppression hearing supports Gonzalez’s position and the trial court’s ruling that the officers lacked probable cause to arrest him in the Wendy’s parking lot. Without confirming that Gonzalez was “Mike,” and that he had drugs in his possession, the police could not have had probable cause to make this arrest. The police here found the heroin after Gonzalez was taken down, handcuffed and arrested. In addition, Dennison identified Gonzalez after the arrest had been made and the search of Gonzalez’s vehicle had begun. Although we appreciate the difficult and dangerous work that police officers do on a daily basis, it appears that the officers jumped the gun in making the arrest based solely on the description given to them by Denni-son. See Kimball v. State, 801 So.2d 264 (Fla. 4th DCA 2001); Miller v. State, 780 So.2d 151 (Fla. 2d DCA 2000).

Accordingly, we find no error in the trial court’s order suppressing Gonzalez’s statements and the contraband found in his car.

Affirmed.


text:
    Henry HEMHERD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-330.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Rehearing Denied April 7, 2004.
    Henry Hemherd, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GODERICH and GREEN, JJ.
   PER CURIAM.

Affirmed. Hitchcock v. State, 866 So.2d 23 (Fla.2004); Hartline v. State, 806 So.2d 595 (Fla. 5th DCA 2002).


author: WEBSTER, J. BENTON, J.,

text:
    Jerry AMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4220.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Nancy A. Daniels, Public Defender, Janice G. Scott, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant seeks review of his conviction for a lewd and lascivious battery on a child 12 years of age or older, but less than 16, and of his ensuing designation as a “sexual offender” for purposes of section 943.0435, Florida Statutes (2001). He argues that (1) the trial court should have granted his motion for a judgment of acquittal and (2) section 943.0435 violates article I, section 9, of the Florida Constitution because it does not provide for a hearing prior to designation as a “sexual offender.” We disagree and, accordingly, affirm.

We first affirm appellant’s conviction for lewd and lascivious battery. Notwithstanding his argument to the contrary, the evidence was clearly legally sufficient to support the jury’s verdict and the ensuing adjudication of guilt.

Designation as a “sexual offender” for purposes of section 943.0435 turns on a single issue — whether one has been “[c]on-victed of committing, or attempting, soliciting, or conspiring to commit” any of a number of specified offenses. § 943.0435(l)(a)l, Fla. Stat. (2001). It is undisputed that the lewd and lascivious battery of which appellant was convicted is one of those offenses. Appellant candidly concedes that he has no procedural due process claim pursuant to the Fourteenth Amendment to the United States Constitution as the result of the Supreme Court’s decision in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). Nevertheless, he argues that section 943.0435 violates his right to procedural due process found in article I, section 9, of the Florida Constitution because it does not provide for a hearing before designation as a “sexual offender.”

Appellant correctly notes that we are not necessarily precluded by Connecticut Department of Public Safety v. Doe from concluding that the Florida Constitution affords greater procedural safeguards than does the federal. See generally Traylor v. State, 596 So.2d 957, 962 (Fla.1992) (noting that, “[i]n any given state, the federal Constitution thus represents the floor for basic freedoms; the state constitution, the ceiling”). The flaw, however, in appellant’s argument lies in his initial premise that he was designated a “sexual offender” for purposes of section 943.0435 without a hearing. The only relevant consideration for determining whether appellant qualified as a “sexual offender” was whether he had been convicted of one of the offenses specified in section 943.0435(l)(a)l. That appellant met this requirement was determined after a hearing — a jury trial on the charge of lewd and lascivious battery. Appellant does not really dispute this. Rather, he argues that he was entitled to a hearing on “whether [he] should suffer the stigma of being classified as a sex offender and be subjected to the threat of criminal penalties for failure to strictly comply with all the notification and registration requirements of the statute” and “whether he is a danger to society and likely to reoffend.” However, the legislature has not made either consideration relevant for purposes of qualification as a “sexual offender.” Accordingly, the logic of the Court’s analysis in Connecticut Department of Public Safety v. Doe, applies with equal force here, and appellant has had all the process to which he was due under either the federal or the Florida Constitution. We note that the only other Florida decision we have found which addresses this precise issue has reached the same conclusion, although based on a somewhat different analysis. See Johnson v. State, 795 So.2d 82, 89 (Fla. 5th DCA 2000).

Appellant’s conviction for a lewd and lascivious battery on a child 12 years of age or older, but less than 16, and his ensuing designation as a “sexual offender” for purposes of section 943.0435, Florida Statutes (2001), are affirmed.

AFFIRMED.

ALLEN, J., concurs; BENTON, J., concurs in the judgment.

BENTON, J.,

concurring in the judgment.

I concur in the judgment. On the question whether, as a state constitutional matter, due process requires a separate hearing, I do so on the authority of Therrien v. State, 859 So.2d 585, 587, 589 (Fla. 1st DCA 2003), revieiv fending, No. SC03-2219 (Fla. Dec. 18, 2003) (holding “[a]ppel-lant is not entitled to a separate hearing [under the Florida Sexual Predators Act] to prove that he does not pose a danger or threat to society,” as a matter of “state and federal procedural due process”).


text:
    Ulysses D. FINDLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1246.
    District Court of Appeal of Florida, First District.
    March 16, 2004.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Petitioner.
    Charles Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED with prejudice.

ERVIN, ALLEN and WEBSTER, JJ., concur.


text:
    Frank DIDONATO, Appellant, v. YOUTH INVESTMENTS OF DAVIE INCORPORATED, a Florida Corporation d/b/a Little Rascals Academy-Davie, Appellee.
    No. 4D03-1394.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    Patrice A. Talisman of Hersch & Talisman, P.A., and Feinstein & Sorota, P.A., Miami, for appellant.
    Warren B. Kwavnick and John H. Richards of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 547 (Fla. 4th DCA 2003), clarified on reh’g, No. 4D03-2838, 2004 WL 433917 (Fla. 4th DCA Mar.10, 2004).

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    Frank DIDONATO, Appellant, v. YOUTH INVESTMENTS OF DAVIE INCORPORATED, a Florida Corporation d/b/a Little Rascals Academy-Davie, Appellee.
    No. 4D03-1394.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Patrice A. Talisman of Hersch & Talisman, P.A., and Feinstein & Sorota, P.A., Miami, for appellant.
    Warren B. Kwavnick and John H. Richards of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for appellee.
   ON MOTION FOR CERTIFICATION

PER CURIAM.

We grant appellant’s motion for certification and, as we did in Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 547, 548 n. 1 (Fla. 4th DCA 2004)(on rehearing), certify conflict:

One could argue there is no conflict with Goble v. Frohman, 848 So.2d 406 (Fla. 2d DCA 2003), review granted, 865 So.2d 480 (Fla. Jan. 22, 2004), which involved HMO benefits rather than Medicare. To the extent that HMO benefits and Medicare benefits are interchangeable for this subject, however, we certify conflict.

WARNER, STEVENSON and GROSS, JJ., concur.


author: PER CURIAM. POLEN, J.,

text:
    Alfred W. CERUTTI, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4162.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    Alfred W. Cerutti, Bradenton, pro se.
    No appearance required for Appellee.
   PER CURIAM.

AFFIRMED.

KLEIN and STEVENSON, JJ., concur.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I concur in affirming the denial of post-conviction relief. Cerutti raised a claim in his motion that trial counsel was ineffective in failing to call a witness at trial. Cerutti did not specifically allege that the witness was available to testify at trial.

With the exception of the second district, all the districts (including this one) have held that an allegation of availability is required to state a legally sufficient claim of this type. Highsmith v. State, 617 So.2d 825 (Fla. 1st DCA 1993); Puig v. State, 636 So.2d 121 (Fla. 3d DCA 1994); Catis v. State, 741 So.2d 1140, 1142 (Fla. 4th DCA 1998), review denied, 735 So.2d 1284 (Fla.1999); Nelson v. State, 816 So.2d 694 (Fla. 5th DCA 2002), review granted, 837 So.2d 411 (Fla.2003). But see Odom v. State, 770 So.2d 195 (Fla. 2d DCA 2000) (expressly holding to the contrary).

But for these precedents, I would disagree that a movant must allege the availability at trial of an uncalled (or uninvesti-gated) witness in order to state a legally sufficient claim of ineffective assistance of counsel. Applying such a strict pleading requirement constitutes an undue burden on incarcerated defendants who will often lack the resources to make this determination. After all, defense counsel, who is alleged to have been ineffective, had the resources and ability to determine whether a witness would be available at trial. I agree with the second district’s holding in Odom. A better practice would be to allow the state to refute such a claim by showing the witness would not have been available at trial. Our high court is currently reviewing the issue in Nelson.

Nevertheless, Cerutti’s motion failed to establish prejudice in the failure to call the witness. I join in affirming the denial of the claim on this ground.


text:
    STATE of Florida, Appellant, v. Meyawn WILLIAMS, Appellee.
    No. 1D03-369.
    District Court of Appeal of Florida, First District.
    March 18, 2004.
    Rehearing Denied April 22, 2004.

      Charles J. Crist, Jr., Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, Attorneys for Appellant.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
   PER CURIAM.

In the case before us the State is appealing the imposition of a downward departure sentence that was imposed after Appellee pled no contest to charges in several cases. We reverse.

Appellee’s Criminal Punishment Code scoresheet recommended a lowest permissible sentence of 74.7 months’ imprisonment, but the trial court sentenced Ap-pellee to concurrent terms of 60 months’ imprisonment. “Pursuant to Florida Rule of Criminal Procedure 3.703(d)(30)(A), the court must orally announce the reasons for departure and accompany the oral pronouncement with a written statement, outlining those reasons.” State v. White, 842 So.2d 257 (Fla. 1st DCA 2003).

At the sentencing hearing, the trial court failed to announce the reasons for the departure sentence. In response to Appellee’s motion to correct a sentencing error, the trial court did file written reasons to support the sentence. However, written reasons alone cannot support a departure sentence. It is a longstanding principle that a court’s oral pronouncement controls over any written sentencing document. Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003). Additionally, trial courts are not permitted to go behind the oral pronouncement to correct sentencing mistakes. Cf. id. (reversing the defendant’s habitual violent felony offender sentence because the trial court failed to pronounce such a sentence even though it was reflected in the written judgment and sentence); State v. Williams, 712 So.2d 762 (Fla.1998) (holding that special conditions of probation must be orally pronounced at sentencing in order to be included in the written probation order).

Because the trial court failed to provide oral reasons for the departure, it was error for the trial court to impose a downward departure sentence. Accordingly, we reverse and remand for resentencing.

REVERSED and REMANDED for re-sentencing.

ERVIN and BOOTH, JJ., and SMITH, LARRY G., Senior Judge, concur.


author: PETERSON, J.

text:
    BEVERLY HEALTHCARE KISSIMMEE, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 5D02-1874.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2004.

      Donna Holshouser Stinson and Maura M. Bolivar of Broad and Cassel, Tallahassee, Attorneys for Appellant.
    Karen L. Goldsmith of Goldsmith, Grout and Lewis, P.A., Winter Park, Amicus Curiae.
    Garnett W. Chisenhall, Tallahassee, Attorney for Appellee.
   ON MOTION FOR REHEARING

PETERSON, J.

We grant the motion for rehearing filed by the Agency for Health Care Administration, withdraw our previous opinion and substitute the following in its place.

Beverly Healthcare Kissimmee (Beverly), a nursing home operator, appeals a final order of the Agency for Health Care Administration (Agency) that downgrades Beverly’s state license rating from “standard” to “conditional.” The Agency’s final order rejected many of the Administrative Law Judge’s (ALJ) findings of fact and its conclusion that Beverly was entitled to a standard rating. We reverse.

The basic difference that exists between the ALJ’s conclusion and that of the Agency is the classification of three deficiencies found by the Agency’s surveyors during a routine inspection and the follow-up inspection of Beverly’s nursing home conducted pursuant to section 400.28, Florida Statutes (2001). The surveyors classified the deficiencies as Class III, while the ALJ classified them as Class IV. We need not relate the details of the first two deficiencies because they were found during the initial inspection and were corrected before the time of the follow-up visit. The third deficiency was found during the follow-up visit. In fact, only the third deficiency is actually relevant as it was the sole deficiency noted in the follow-up inspection, and it is because of this “uncorrected Class III deficiency!’ that the facility lost its standard license rating. See § 400.23(7)(b), Fla. Stat. (2001) (allowing a facility time to correct a Class III deficiency before facing a license downgrade, but providing that if, on the follow-up visit, a new Class III violation exists, strict liability attaches).

The asserted Class III deficiency discovered during the follow-up visit at Beverly involved a resident not wearing multi-po-dus boots required by the resident’s care plan, as prescribed by a medical provider. The boots are used to prevent and promote the healing of pressure sores, a condition from which the resident was suffering when he entered the facility. The absence of the boots was noticed on two occasions by the surveyor; once when the resident was lying on his bed and once when the resident was sitting in a wheelchair with street shoes on his feet and his feet resting on the footrests of the chair. To explain this deviation from the care plan, Beverly’s witness testified that the resident’s bed had a pressure mattress and, therefor, the multi-podus boots were not required. Neither was the wearing of street shoes while in the wheelchair a risk to the man because dressings had been placed on his heels and no real weight was on his feet. In fact, under Beverly’s care, one sore had healed completely and the other was much smaller.

Beverly challenges the Agency’s conclusion that this single departure from the resident’s care plan on a follow-up inspection, regardless of the circumstances and in the absence of potential for harm, constitutes a Class III deficiency warranting a conditional license. Beverly submits that this standard of perfection is unattainable and unreasonable and moreover is a departure from the law and precedent. Specifically, Beverly attacks the following conclusion of law in the Agency’s final order:

The Agency specifically rejects the legal conclusion in this paragraph [paragraph 27 of the recommended order] and elsewhere in the Recommended Order that the Agency is required to show that the facility’s failure to follow the plan of care presents potential for harm to the resident. The charge of failing to follow the plan of care requires nothing more than a showing by the Agency that the facility failed to follow the plan of care, and unless a facility disputes the underlying fact alleged as the basis for the Agency’s charging document, the facility’s request for a formal hearing before the Division of Administrative Hearing should be denied. Section 120.569(2)(c), Florida Statutes.

Beverly labels this conclusion as “arrogant” and contends that the Agency cannot impose a conditional license without a hearing and without having to show at least a potential for harm to a resident. Beverly argues that the failure to follow a care plan on one occasion, in the absence of evidence that the care plan was not followed consistently, will not support imposition of a conditional license. Rather than perfect compliance with a care plan, Beverly asserts that substantial compliance is the applicable standard.

We agree with Beverly that section 400.23 implicitly requires only “substantial compliance.” Although the statutory provision does not directly state it in that manner, section 400.23(7)(b) allows a conditional license to be given when the facility is not in substantial compliance with the statutory criteria or the rules adopted by the Agency. Inferentially then, substantial compliance is the standard by which the facility should be judged. We note that application of this standard is not novel. See Agency for Health Care Admin, v. Beverly HealthCare Lake Mary, 2002 WL 569452 (DOAH 2002), adopted, 24 F.A.L.R. 2888 (Fla. Agency for Health Care Admin.2002); Tampa Health Care Ctr. v. Agency for Health Care Admin., 2001 WL 963678 (DOAH 2001), adopted in part, 24 F.A.L.R. 2552 (Fla. Agency for Health Care Admin.2002); Cypress Manor v. Agency for Health Care Admin., 1999 WL 1483668 (DOAH 1999), adopted in part, 21 F.A.L.R. 2768 (Fla. Agency for Health Care Admin.1999). A facility may have deficient practices but may still be found to be in substantial compliance; the determining factor is the level of actual or potential harm to a resident’s health or safety.

If the Agency is bent on requiring perfect compliance with every detail of every care plan, it appears to us that every inspection of every nursing home will result in Class III deficiencies. We also venture the thought that some details of a care plan, ordered hastily or without full investigation of a patient’s medical history, could also lead to the detriment of a resident. A nursing home employee should not be intimidated into ignoring common sense for fear of incurring the wrath of the Agency. The standard imposed by the Agency — that any deviation from a care plan is cause for a Class III deficiency— ignores state standards calling for substantial, not perfect, compliance and further ignores the existence of Class IV as a valid classification for deficiencies meeting its criteria, which brings us to Beverly’s second argument.

In addition to its contention that an incorrect standard was applied, Beverly also argues that the isolated deficiency found in the follow-up survey was, as the ALJ found, more properly labeled a Class IV deficiency, not a Class III deficiency. Had a Class IV rank been assigned, just as the ALJ recommended, Beverly would have received the standard license rating. Section 400.23(8)(c) defines a Class III deficiency, with which Beverly was charged, as

a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident’s ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.

§ 400.23(8)(e), Fla. Stat. (2001). Section 400.23(8)(d), on the other hand, defines a Class IV deficiency as “a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. If the class IV deficiency is isolated, no plan of correction is required.” § 400.23(8)(d), Fla. Stat. (2001).

The Agency rejected the ALJ’s conclusion that the events were isolated and had the potential for causing no more than a minor negative impact on the resident. The Agency found the potential for harm is irrelevant and all that mattered was that there was evidence that a case plan was not followed. We disagree with the Agency’s analysis.

The entire statutory scheme is based on a classification of deficiencies, with the deficiencies being classified according to the level of harm that might or did result from the deficiency. See § 400.23(8), Fla. Stat. (2001) (requiring the agency to establish rules classifying deficiencies according to the nature and the scope of the deficiency; breaking scope down into “isolated,” “patterned,” or “widespread”; further requiring that the deficiency then be classified into one of four classes dependent upon the level of harm or impairment the deficiency caused or was likely to cause). Accordingly, the Agency has the burden to prove harm or the potential for harm upon a resident in order to substantiate its classification of any deficiency. In this case, the Agency failed in its burden by taking the hard-line position that any deviation from a care plan constitutes a deficiency. The Agency offered no evidence of actual or potential harm from the failure of the resident to wear pressure boots and gave no consideration to the fact that alternate methods of preventing pressure sores were in place. The ALJ found that the level of harm was a Class IV deficiency, a finding that is supported by the facts.

Because an agency cannot reject a finding of fact made by an administrative law judge unless there is no competent substantial evidence to support the finding, on appellate review of the agency order, the issue for the appellate court is whether the record contains evidence sufficient to support the original finding of fact by the administrative law judge. § 120.57(1)(J), Fla. Stat. (2003). As summarized by this court,

where there is competent, substantial evidence to support the referee’s findings of fact, the Commission may not reweigh the evidence and substitute its findings of fact for those of the referee. Moreover, the Commission may neither modify a referee’s findings of fact to reach a different legal conclusion, see Berry v. Scotty’s, Inc., 711 So.2d 575 (Fla. 2d DCA 1998), nor rely on facts that were not established at the hearing conducted by the referee. See Eulo v. Florida Unemployment Appeal Comm’n, 724 So.2d 636 (Fla. 2d DCA 1999).

Anderson v. Unemployment Appeals Comm’n, 822 So.2d 563, 567 (Fla. 5th DCA 2002) (footnotes omitted); see also Gross v. Department of Health, 819 So.2d 997, 1002 (Fla. 5th DCA 2002) (observing requirement that where competent substantial evidence supports findings of fact, the final order cannot reject those findings). Review of the record in the instant case indicates that competent substantial evidence supports the ALJ’s finding that the deficiency should have been classified as a Class IV deficiency. Thus, the Agency erred in rejecting that finding.

For the reasons discussed above, we reverse the Agency’s determination that Beverly’s state license rating should be downgraded and instruct the Agency to reinstate the standard rating based upon the ALJ’s findings and conclusion.

REVERSED.

PALMER and TORPY, JJ., concur.

      . It is clear that under the federal code, "substantial compliance” is indeed the standard. See 42 C.F.R. § 488.301 (defining "substantial compliance" as used in the rules governing the surveys of nursing facilities as meaning "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm”; also defining "noncompliance” as meaning "any deficiency that causes a facility to not be in substantial compliance.”). However, there is some concern that the state standards may be higher than the federal standards and thus reliance on federal statutory definitions may be,suspect.

      .We note that before the follow-up inspection was conducted, section 400.23 was amended to add Class IV designations for the first time and that classification was available to the surveyors when they performed the follow-up inspection. The surveyors did not explain why the deficiency was rated as a Class III rather than Class IV. It could be because the distinction between the classes is difficult to understand or it could be that the amendment had not yet been brought to their attention. The ALJ disagreed with the assessment that all of the deficiencies warranted a Class III label and that disagreement was explained in the ALJ’s findings.

      . This conclusion of the ALJ is supported by the testimony of one of the surveyors who admitted that the deficiency was isolated.

      . Clearly, for a deficiency to be classified, the surveyor must make a determination of the possible consequence that the deficiency might have.


text:
    Richard B. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4305.
    District Court of Appeal of Florida, Second District.
    March 19, 2004.

      Richard B. Williams, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Richard Williams challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In his motion, Williams alleged that he pleaded to trafficking in fourteen grams or more but less than twenty-eight grams of methamphetamine. He further alleged that the three-year mandatory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(l)(f)(l)(a), Florida Statutes (1999), is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). This claim is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See McCabe v. State, 844 So.2d 703, 704 (Fla. 2d DCA 2003).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. The Florida Legislature cured the single subject rule violation by reenacting the provisions originally contained in chapter 99-188. See chs. 02-208-212, Laws of Fla. In doing so, the Florida Legislature provided for the retroactive application of each reenactment to July 1, 1999, which was the effective date of chapter 99-188. However, this court in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions. But see Clayton v. State, 842 So.2d 971 (Fla. 5th DCA 2003).

Williams alleged that he committed the offense of trafficking in methamphetamine in July 2000, which is within the Taylor window. Pursuant to Green, if Williams committed the offense within the Taylor window, the trial court is required to re-sentence him under the 1997 version of section 893.135(l)(f)(l)(a). See McCabe, 844 So.2d at 705. However, the trial court denied Williams’ motion on the basis that this court’s opinion in Taylor has prospective application only. Thus, under the trial court’s reasoning, a defendant is only entitled to postconviction relief pursuant to Taylor if he committed his offense in the period from the date Taylor was issued until the date of the reenactment of the provisions of chapter 99-188 in chapters 02-208-212, which reenactment was effective April 29, 2002. In support of its ruling, the trial court relied on State v. Callaway, 658 So.2d 983 (Fla.1995), and Witt v. State, 387 So.2d 922 (Fla.1980).

The Callaway court stated: “Under Witt, a new rule of law may not be retroactively applied unless it satisfies three requirements. The new rule must (1) originate in either the United States Supreme Court or the Florida Supreme Court; (2) be constitutional in nature; and (3) have fundamental significance.” Calla-way, 658 So.2d at 986 (citing Witt, 387 So.2d at 929-30). The trial court found that our decision in Taylor does not apply retroactively because “neither the United States Supreme Court nor the Florida Supreme Court has adopted this change of law.” The trial court’s reasoning is erroneous. The law draws a distinction between a void law and one that is merely voidable. See Green, 839 So.2d at 752. A statute that was legally enacted but is later determined by a court to be unconstitutional is voidable. “When the enactment of a law fails to comport with constitutional procedural mandates, the law is illegally enacted and is thus void ab initio, as opposed to being merely voidable.” Green, 839 So.2d at 752. A law enacted in violation of the single-subject rule is void, not voidable. Id. Thus, based on the holdings of Green and Taylor, chapter 99-188 was illegally enacted and void ab initio.

In Callaway and Witt, the supreme court outlines a methodology for determining when a judicial decision regarding the application or interpretation of a constitutionally enacted statute is to have retroactive effect. For example, the supreme court in Callaway concluded that its decision in Hale v. State, 630 So.2d 521 (Fla.1993), which held that consecutive habitual offender sentences for crimes arising from a single criminal episode were not authorized by statute, was to be applied retroactively. See also State v. Stevens, 714 So.2d 347 (Fla.1998) (concluding that State v. Iacovone, 660 So.2d 1371 (Fla.1995), which held that enhanced penalties for attempted second- and third-degree murder of a law enforcement officer were not authorized by statute, applies retroactively); Bass v. State, 530 So.2d 282 (Fla.1988) (concluding that Palmer v. State, 438 So.2d 1 (Fla.1983), which held that consecutive mandatory minimum sentences for use of firearms in crimes arising from a single criminal episode were not authorized by statute, applies retroactively).

Callaway and Witt have no application when an appellate court has determined that a statute was never legally enacted. If a statute is void ab initio, a defendant can never be legally sentenced pursuant to that statute. The statute can never be applied legally until it is legally enacted. Under the trial court’s reasoning, a defendant who was sentenced under a statute that was void ab initio must serve out that sentence if the sentence was final prior to a district court’s determination that the statute was never constitutionally enacted, so long as there is no supreme court ruling on the issue.

We reverse the order of the trial court and remand for further proceedings. If, as he alleged in his motion, Williams committed the offense of trafficking in methamphetamine within the Taylor window, the trial court shall resentence Williams pursuant to section 893.135(l)(f)(l)(a), Florida Statutes (1997). We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded, with instructions.

ALTENBERND, C.J., and SALCINES and COVINGTON, JJ., concur.

      . The trial court in its order incorrectly refers to section 893.135(l)(f)(l)(b) and a seven-year mandatory minimum. However, the written sentence demonstrates the imposition of a minimum three-year mandatory term.

      . See Taylor v. State, 818 So.2d 544, 550 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

      . See Green v. State, 839 So.2d 748, 749 n. 1 (Fla. 2d DCA 2003).

      . The order in this case is one of several such orders currently on appeal in this court.

      . See Green, 839 So.2d at 749 n. 1.


text:
    Danny JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2692.
    District Court of Appeal of Florida, First District.
    March 23, 2004.
    Nancy A. Daniels, Public Defender; Nancy L. Showalter, Assistant Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant raised a facially sufficient claim that his prison releasee reof-fender sentence for burglary of a dwelling is illegal, we reverse.

After being convicted by a jury of burglary of a dwelling and other charges, the appellant was sentenced as a prison releas-ee reoffender to 15 years’ imprisonment for burglary of a dwelling. The appellant filed the present motion alleging that his prison releasee reoffender sentence is illegal because he was not convicted of burglary of an occupied dwelling. The trial court summarily denied the motion.

Section 775.082(8)(a)l.q., Florida Statutes (1997), states that a person has to be convicted of burglary of an occupied dwelling or structure in order to qualify for sentencing as a prison releasee reoffender. Additionally, this Court has held that a jury must make a specific finding that the appellant was convicted of burglary of an occupied dwelling in order for the appellant to qualify for sentencing as a prison releasee reoffender. Weems v. State, 795 So.2d 122, 125 (Fla. 1st DCA 2001). In the instant case, the record shows that the appellant was not charged with burglary of an occupied dwelling and the record shows that the jury was not presented the option of finding the appellant guilty of burglary of an occupied dwelling. Thus, the appellant has raised a facially sufficient claim that his sentence is illegal and the trial court failed to attach portions of the record to refute the appellant’s claim.

We therefore reverse the trial court’s summary denial and remand for the trial court to attach portions of the record that conclusively refute the appellant’s claim or to grant appropriate relief.

REVERSED and REMANDED.

BARFIELD, DAVIS, and BENTON, JJ., concur.


author: PER CURIAM. PADOVANO, J.,

text:
    Lance BURGESS, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, and Florida Parole Commission, Appellees.
    No. 1D03-3701.
    District Court of Appeal of Florida, First District.
    March 23, 2004.

      Lance Burgess, pro se, appellant.
    Louis A. Vargas, General Counsel, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee; Kim M. Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for appellees.
   PER CURIAM.

Appellant seeks review of an order of the circuit court which dismissed a complaint for mandamus filed pursuant to Florida Rule of Civil Procedure 1.630. We review this order by appeal. Green v. Moore, 777 So.2d 425 (Fla. 1st DCA 2000) (holding that an appeal, rather than certio-rari, is the proper method to review the circuit court’s denial of an inmate’s petition for writ of mandamus where the proceeding is concluded on grounds other than the merits). We reverse and remand for further proceedings.

Appellant is currently serving sentences imposed by the circuit courts in Orange and Lake County. In the complaint for mandamus filed in the Leon County Circuit Court, appellant challenged the revocation of his conditional release by the Florida Parole Commission (“the Commission”) and the subsequent forfeiture of gain time by the Department of Corrections (“the Department”) pursuant to section 944.28(1), Florida Statutes (2001). Appellant also argued that the Department’s sentence calculation resulted in him serving more time in incarceration than was proper.

The circuit court determined that it did not have jurisdiction over the complaint and dismissed it, citing to Schmidt v. Crusoe, 28 Fla. L. Weekly S367, — So.2d -, 2003 WL 1987971 (Fla. May 1, 2003), motion for reh’g filed, No. SC00-2512 (Fla. May 21, 2003). The circuit court held that appellant’s challenge to the computation of his criminal sentence was a “collateral criminal proceeding” to the judgment and sentence which resulted in his incarceration. Because appellant was serving a sentence which had not been imposed by the Leon County Circuit Court, that court held that it did not have jurisdiction of the “collateral criminal proceeding” stemming from a conviction and sentence entered by another circuit court. The petition was dismissed without prejudice to appellant’s ability to file in the sentencing court for the appropriate relief.

The Commission now files a motion for remand citing Massey v. Crosby, 860 So.2d 529 (Fla. 4th DCA 2003). In Massey, the circuit court, relying on Schmidt, dismissed an inmate’s petition for writ of mandamus which challenged an administrative action of the Department of Corrections refusing to award a 60-day gain time credit for completing vocational courses while imprisoned. On certiorari review, the “state concede[d] that the circuit court misapprehended the focus of Schmidt when it concluded that gain time challenges must now be brought by means of a motion for post-conviction relief.” Id. at 530. The district court agreed, quashed the order of the circuit court and remanded for further proceedings.

A review of Schmidt and the discussion therein suggests to us that the Supreme Court intended to limit the application of its holding to the question before it: whether the prisoner indigency statute applied to challenges concerning the forfeiture of gain time. The circuit court erred in concluding otherwise. The introductory paragraph in Schmidt states that the Court holds “that an inmate’s petition for writ of mandamus challenging a loss of gain time is a collateral criminal proceeding and not a civil lawsuit as contemplated by the Prisoner Indigency Statute ” (emphasis added). Schmidt, 28 Fla. L. Weekly at 367, — So.2d at --. The Court further stated that “a gain time challenge is analogous to a collateral challenge to a sentence in a criminal proceeding because the end result is the same — the inmate’s time in prison is directly affected” (emphasis added). Id. at 369. The bulk of the analysis section in Schmidt focuses on the Florida Prisoner Indigency Statute, section 57.085, Florida Statutes (2002), and the similar federal Prison Litigation Reform Act of 1995. The Supreme Court noted that both the Florida and federal statutes were principally enacted to discourage the filing of frivolous civil lawsuits, e.g., challenges to prison conditions, but not to prevent the filing of claims contesting the computation of criminal sentences.

To hold that any administrative action affecting a sentence is a “collateral criminal proceeding” and that an inmate must seek relief in the sentencing court extends the holding in Schmidt to areas not explicitly addressed and raises a whole series of issues which were not discussed by the Supreme Court in Schmidt. For example, what is the proper vehicle for bringing such a collateral challenge? Is this an original proceeding rather than a review proceeding? Who are the proper parties? What is the appropriate location for bringing the action? What is the appropriate time limitation, if any, for bringing such an action?

In this case, we are faced with the issue of the appropriate venue for the type of proceeding filed below. Although the Leon County Circuit Court dismissed the petition without prejudice to the appellant’s right to seek relief in the sentencing court, this appellant is serving sentences imposed in Orange and Lake County, and there is no guidance provided as to which sentencing court would be the proper court to consider the gain time issue. While issues concerning jail time credit are logically brought to the attention of the sentencing court, a proceeding which challenges the revocation of conditional release and the subsequent forfeiture of gain time pursuant to section 944.28(1), has to do with the inmate’s behavior on release and the penalty imposed by forfeiture of gain time after the revocation. In such a case, the Florida Parole Commission and the Department of Corrections, rather than the prosecuting authority, would be the appropriate respondents. Similarly, a prison disciplinary action which results in the forfeiture of gain time has to do with the inmate’s behavior in prison, not the original offense for which the inmate was sentenced. The Department of Corrections is the appropriate respondent in such a case. Likewise, Florida Administrative Code Rule 33-601.101 allows the Department to make incentive gain time awards so that inmates may be recognized for their individual effort in work, vocational, educational and self-betterment programs. This was the underlying issue presented in Massey and, again, concerns an inmate’s behavior in prison and does not necessarily concern the original offense for which the inmate was sentenced or the court which conducted those proceedings. We conclude that given the nature of the action at issue in this case, the sentencing court is not the appropriate venue.

Because of our concerns and those expressed by the dissent, we certify the following question to be one of great public importance:

DOES THE HOLDING IN SCHMIDT V. CRUSOE, 28 FLA. L. WEEKLY S367[, — So.2d -, 2003 WL 1987971](FLA. MAY 1, 2003), MOTION FOR REH’G FILED, NO. SC00-2512 (FLA. MAY 21, 2003), APPLY TO ALL CHALLENGES WHICH AFFECT THE LENGTH OF SENTENCE, INCLUDING THE AWARD OR FORFEITURE OF GAIN TIME, SUCH THAT ANY CHALLENGE MUST BE BROUGHT IN THE SENTENCING COURT?

REVERSED AND REMANDED for further proceedings.

WOLF, C.J., and POLSTON, J., concur. PADOVANO, J., dissents with opinion.

PADOVANO, J.,

dissenting.

The majority holds that a mandamus petition challenging the loss of gain time is not a collateral challenge to the sentence for the purpose of determining venue. In my view, this decision is inconsistent with the supreme court’s holding in Schmidt The court categorically stated in Schmidt that the inmate’s gain time challenge “should be considered a collateral criminal proceeding.”

It is true that the supreme court employed this characterization to resolve a different issue — whether the Prisoner In-digency Statute applied — but I do not think the court’s analysis would change if something else were at stake. The court did not state, or even suggest, that it was characterizing gain time petitions as collateral proceedings solely for the purpose of resolving the particular controversy presented by the case. Nor would it make sense to limit the court’s opinion in this way. The nature of a legal action does not change like a chameleon. It is either one thing or another.

The weakness in the majority’s analysis in this case is that it focuses on the context in which the supreme court characterized gain time petitions in Schmidt, while it avoids the broader implications of the characterization itself. As the majority construes the Schmidt opinion, a petition challenging the loss of gain time can somehow transform itself from a collateral proceeding into a regular civil lawsuit for the purpose of determining venue. I cannot accept this proposition. If a gain time petition is a collateral proceeding, as the supreme court has said, then I assume that it is a collateral proceeding for all purposes.

The majority reasons that a petition challenging the revocation of conditional release cannot be regarded as a collateral proceeding for the purpose of venue, because it “has to do with the inmate’s behavior on release” and not the original sentence. Likewise, the majority concludes that a challenge to the loss of gain time in a prison disciplinary proceeding is not a collateral proceeding for the purpose of venue, because “it has to do with the inmate’s behavior in prison, not the original offense for which the inmate was sentenced.” I would like to agree with this reasoning, but these are the very points the supreme court rejected in Schmidt.

The argument made by the inmate in Schmidt was that a petition contesting the forfeiture of earned gain time should be characterized as a collateral proceeding because it is “akin to a traditional habeas corpus action or a motion for post-conviction relief.” 28 Fla. L. Weekly at S368, — So.2d at-. After a detailed inquiry into the nature of the action, the supreme court agreed with the inmate and concluded that a gain time petition is, in the final analysis, a challenge to the sentence. The court emphasized this holding in the following passage of the opinion: “[I]t is apparent that an action affecting gain time does in fact affect the computation of a criminal defendant’s sentence, because the length of time the defendant will actually spend in prison is directly affected.” Id.

The majority has outlined the problems that will be encountered if a petition challenging gain time is treated as a collateral proceeding for all purposes. I agree with these observations. In fact, I think that this case is but one example of the many problems the courts will face in the wake of the Schmidt decision. These difficulties will arise, in my view, because a proceeding designed to afford appellate review of an administrative decision cannot be compared to a post-conviction proceeding in a criminal ease. The differences are both conceptual and mechanical.

The Florida courts have held that an inmate may file a petition for writ of mandamus in the circuit court to review a decision by the Department of Corrections or the Parole Commission because an appeal is not available under the Administrative Procedure Act. See Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997), aff'd, 720 So.2d 216 (Fla.1998). Although styled as a petition for writ of mandamus, the proceeding in the circuit court is essentially a review proceeding. I do not think that a petition for writ of mandamus that is used to review a decision by an administrative agency should be treated as though it were a collateral proceeding in a criminal case.

Although I disagree with the holding in Schmidt, I am bound to follow it. The majority makes a noble effort to avoid a series of potential problems by interpreting the opinion to mean much less than it says. I think the preferable course would be the one the supreme court advised us to take in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). As the supreme court observed in that case, the district courts are free “to state their reasons for advocating change,” but they are “bound to follow the case law set forth by this Court.” Id. at 434. Because I am unable to accept the limitations the majority has placed on the supreme court’s decision in Schmidt, I dissent.

      . "[A] circuit court has no jurisdiction to review the legality of a conviction in another circuit....” State v. Broom, 523 So.2d 639, 641 (Fla. 2d DCA 1988).

      . There are various methods to collaterally challenge a criminal judgment and sentence. A motion may be filed pursuant to Florida Rule of Criminal Procedure 3.800 or rule 3.850. A petition alleging ineffective assistance of appellate counsel may be filed pursuant to rule 9.141. If an inmate alleges that he is entitled to immediate release, it has generally been held that a petition for writ of habe-as corpus is the proper remedy. See Campbell v. Florida Parole Comm’n, 630 So.2d 1210 (Fla. 1st DCA 1994), rev. denied, 639 So.2d 976 (Fla.1994), vacated, 514 U.S. 1094, 115 S.Ct. 1819, 131 L.Ed.2d 742 (1995), reinstated, 657 So.2d 67 (Fla. 1st DCA), cert. denied, 516 U.S. 996, 116 S.Ct. 533, 133 L.Ed.2d 438 (1995). If an inmate is not making a claim to the right to immediate release, a petition for writ of mandamus is the proper remedy. Searcy v. Singletary, 590 So.2d 1034 n. 1 (Fla. 2d DCA 1991), receded from on other grounds, Stovall v. Cooper, 860 So.2d 5 (Fla. 2d DCA 2003); see Turner v. Singletary, 623 So.2d 537, 538 (Fla. 1st DCA 1993)(holding that in certain instances, a petition for writ of mandamus may be the proper remedy to review the denial of gain time).

      . Generally, the standards of review in an appeal are different from the standard of review in a second tier certiorari review proceeding in the district court. See Philip J. Padovano, Florida Appellate Practice Ch. 9 (2004 ed.).

      . The Florida Department of Corrections is charged with calculating an inmate’s sentence and administering the award and forfeiture of gain time for, among other things, revocation of conditional release and prison disciplinary proceedings. In contrast, the Florida Parole Commission is the agency authorized to set presumptive parole release dates and to determine whether to admit an inmate to conditional release or whether an inmate who violates parole or conditional release should be returned to incarceration.

      . A rule 3.800 or 3.850 motion is properly filed in the sentencing court. A petition for writ of habeas corpus alleging entitlement to immediate release is properly filed in the county where the inmate is being detained. See Alachua Regional Juvenile Detention Ctr. v. T.O., 684 So.2d 814, 816 (Fla.1996) ("If a prisoner files a habeas corpus petition in circuit court, the petition must be filed in the circuit court of the county in which the prisoner is detained.”). If an inmate challenges a gain time issue, but is not claiming the right to immediate release, a petition for writ of mandamus is filed in the county where the Department of Corrections is headquartered. Stovall v. Cooper, 860 So.2d 5 (Fla. 2d DCA 2003); Harris v. State, 713 So.2d 1106 (Fla. 4th DCA 1998); Barber v. State, 661 So.2d 355, 356 n. 2 (Fla. 3d DCA 1995); Singletaiy v. Powell, 602 So.2d 969 (Fla. 1st DCA 1992); Curry v. Wainwright, 419 So.2d 744 (Fla. 5th DCA 1982). See generally, Dickinson v. Florida Nat. Organization for Women, Inc., 763 So.2d 1245 (Fla. 4th DCA 2000) (holding that a petition for writ of mandamus which challenges the quasi-judicial action of an agency is filed in the county where the agency is headquartered pursuant to the general venue statute, section 47.011).

      . Rule 3.850(b) limits motions filed under that rule to two years after the judgment and sentence become final; however, rule 3.800 has no similar time limit. Rule 9.100(c)(4) imposes a 30 day time limit to file a petition challenging an order of the Department of Corrections entered in prisoner disciplinary proceedings, however, there is no similar time limit in the rules of appellate procedure to challenge other Department orders on gain time, nor orders of the Florida Parole Commission in parole revocation or presumptive parole release date proceedings.

      . Brazell v. State, 770 So.2d 189 (Fla. 2d DCA 2000); Riddle v. State, 686 So.2d 16 (Fla. 2d DCA 1996); Fulton v. State, 659 So.2d 491 (Fla. 5th DCA 1995).


author: STRINGER, Judge.

text:
    Anthony E. GUIDA, Appellant, v. Maria GUIDA, Appellee.
    No. 2D02-5736.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.

      Anthony E. Guida, pro se.
    Jana V. Jay of The Legal Aid Society of Collier County, Naples, for Appellee.
   STRINGER, Judge.

This is an appeal of a final order of dissolution of marriage between sixty-two-year-old Anthony Guida (the Husband) and forty-one-year-old Maria Guida (the Wife). No transcript of the final hearing was made, and no statement of the evidence was properly submitted. The parties were married on March 4, 1990, and have one child, a son, born on August 24, 1991. The Wife also has a daughter born on May 16, 1986. At the time of the hearing, the Wife was living in the marital home in Naples, Florida, and the Husband was serving a fifty-one-month sentence for lewd and lascivious assault against the Wife’s daughter. We affirm the portion of the final judgment granting the Wife sole parental responsibility of the son. We reverse those portions of the final judgment relating to the equitable distribution scheme and alimony and child support awards due to a lack of statutorily required findings of fact. Additionally, the final judgment improperly imposed an injunction against the Husband having any contact with the Wife or son, and we direct that such provisions be struck on remand.

Section 61.075(1), Florida Statutes (2002), “requires the trial court to distribute marital assets and liabilities between the parties beginning with the premise that an equal distribution should occur.” Feger v. Feger, 850 So.2d 611, 614-15 (Fla. 2d DCA 2003). The trial court may make an unequal distribution of assets, provided the court supplies a specific finding of fact to justify its unequal distribution. Id. at 615. The final distribution of marital assets, whether equal or unequal, must be supported by factual findings based on substantial competent evidence. Prest v. Tracy, 749 So.2d 538, 539 (Fla. 2d DCA 2000). Section 61.075(3) states in part that the final judgment shall make a clear identification of marital and nonmarital assets, an individual valuation of significant assets, and a designation of which spouse shall be entitled to each asset. Furthermore, where a trial court makes an award of lump sum alimony, it shall first determine whether the award is necessary for support or to effect an equitable distribution of marital property. Glazner v. Glazner, 693 So.2d 650, 651 (Fla. 5th DCA 1997). Failure to include the statutorily required findings of fact makes appellate review of the distribution scheme difficult, if not impossible, and requires reversal. Prest, 749 So.2d at 539.

In this case, the final judgment simply states under the heading “Distribution of Assets/Liabilities” that the Wife is entitled to the following “as lump sum alimony and unpaid child support”: the marital home in Naples “as her sole and separate property”; all personal property remaining in the home except the Husband’s clothing, tools, and family photos and history; and all remaining personal property. The final judgment fails to include any of the findings of fact required in section 61.075(3). Without the required findings of fact, we cannot adequately review the equitability of the lump sum alimony award.

If the lump sum alimony was awarded for support, the final judgment remains deficient for a lack of statutorily required findings of fact. Pursuant to section 61.08(2), Florida Statutes (2002), in determining a proper award of alimony the court shall consider all relevant economic factors, including the marital standard of living, the duration of the marriage, the age and condition of each party, the financial resources and the marital and non-marital assets and liabilities distributed to each party, any time that may be necessary to rehabilitate a party for employment, the contribution of each party to the marriage, and all sources of income available to each party. Without these statutorily required findings, this court cannot conduct an adequate review of the alimony award, and failure to include such findings is reversible error. Farley v. Farley, 800 So.2d 710 (Fla. 2d DCA 2001). In this case, the final judgment does not contain any findings regarding section 61.08 factors other than the duration of the marriage. Because the final judgment’s findings of fact are insufficient to support either an equitable distribution scheme or an award of alimony, we reverse and remand for entry of the required findings of fact.

The Husband also challenges the final judgment’s award of child support. Section 61.30, Florida Statutes (2002), contains guidelines that presumptively establish the amount of child support a finder of fact shall award, based on the combined monthly net income of the obligor and obligee. The award may deviate from the guidelines by more than five percent, provided the judgment explains why ordering the guideline payment amount would be unjust or inappropriate. § 61.30(l)(a). Further, “[i]f the recurring income is not sufficient to meet the needs of the child, the court may order child support to be paid from nonrecurring income or assets.” § 61.30(13). An order to pay child support from assets must be accompanied by a finding that the parent’s income is not sufficient to meet the guideline cash support requirement and a valuation of the asset being invaded to meet the child support obligations. Whitcomb v. Whitcomb, 669 So.2d 309, 310-11 (Fla. 2d DCA 1996); Clayton v. Lloyd, 707 So.2d 407, 408 (Fla. 4th DCA 1998).

The final judgment in this case fails to include findings as to either party’s net income and makes no reference to the child support guidelines. The judgment simply awards the Wife, as “lump sum alimony and unpaid child support,” personal property and the marital home. The judgment makes no finding that the Husband’s recurring income is insufficient to meet the child’s needs, nor does it contain a valuation of the assets being invaded to meet the child support obligation. Therefore, we reverse the child support award and remand for entry of the necessary findings of fact.

Finally, the trial court erred by including in the final judgment an injunction against the Husband having contact with the Wife or son, stating, “Husband shall make no contact with the minor son,” and “The Husband is hereby enjoined and restrained from harassing, harming, molesting, or interfering with Wife.” Section 61.052(6), Florida Statutes (2002), provides that “[a]ny injunction for protection against domestic violence arising out of the dissolution of marriage proceeding shall be issued as a separate order in compliance with chapter 741 and shall not be included in the judgment of dissolution of marriage.” Furthermore, “a permanent injunction cannot be properly granted in a suit simply on notice, without process duly served, and without formality of pleading, or presentation of proof, in the absence of waiver.” Scarbrough v. Meeks, 582 So.2d 95 (Fla. 1st DCA 1991) (citing Smith v. Hous. Auth. of Daytona Beach, 148 Fla. 195, 3 So.2d 880 (1941)). As no request for an injunction was made in the pleadings and there is no evidence of a waiver, the trial court erred by granting in the final judgment an injunction against contact with the Wife or son. Accordingly, such provisions must be struck on remand.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and SALCINES, JJ., Concur.