author: DAVIS, Judge.

text:
    CITY OF INDIAN ROCKS BEACH, Florida, Appellant, v. Thomas TOMALO, Camille Tomalo, and Carole Ann Keegan, Appellees.
    No. 2D02-670.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 2003.
    Andrew J. Salzman and Elita D. Cobbs of Zimmet, Unice, Salzman & Feldman, P.A., Clearwater, for Appellant.
    Deborah L. Martohue of Hayes & Mar-tohue, P.A., St. Petersburg, for Appellees.
   DAVIS, Judge.

Although this case was filed as a petition for “second-tier” certiorari review, it is more properly considered as a direct appeal. The petitioner specifically states that it does not challenge the underlying circuit court order granting certiorari relief by quashing the contested resolution, but rather challenges the subsequent order that is styled as an enforcement of that prior order.

These proceedings began when the owners of a parcel of land sought a permit to construct a dock. The City of Indian Rocks Beach, through its designated employee, administratively approved the application. However, Thomas Tomalo, Camille Tomalo, and Carole Ann Keegan, neighbors of the subject property, sought review of the approval from the City’s Board of Adjustment and Appeals (BOAA). After a de novo hearing, the BOAA voted to issue the dock permit. The Tómalos and Keegan then appealed to the City Commission, which voted to affirm the issuance of the dock permit.

Several years later, the Tómalos and Keegan submitted a “second appeal” to the BOAA based on what they claimed was newly discovered evidence. This time, BOAA voted to rescind the permit. The property owners appealed to the City Commission, which, following a tie vote, rejected BOAA’s recommendation to revoke the permit, affirmed issuance of the permit, and allowed the dock to remain.

The Tómalos and Keegan sought certio-rari review in the circuit court, which granted their petition, finding that the City Commission’s decision to uphold the dock permit violated the essential requirements of law. In granting the certiorari relief, the circuit court ordered: “[T]he Respondent’s Resolution 00-81 is quashed. The Respondent shall proceed in a manner consistent with this Order.”

The City then issued two letters to the property owners, demanding removal of the dock within sixty days. When the owners failed to remove the dock, the Tó-malos and Keegan filed in the certiorari proceeding a motion to compel compliance and a request for sanctions. The circuit court treated the motions as a motion to enforce mandate and issued an order in the nature of an injunction which directed the City to remove the dock or ensure its removal within thirty days.

A circuit court is not authorized to grant injunctive relief where it has neither been requested nor proven. See Lee County v. Fort Myers Airways, Inc., 688 So.2d 389 (Fla. 2d DCA 1997). Since the trial court here was not presented with a request for an injunction and no proof was offered to demonstrate the elements required to be proven before issuance of an injunction, the trial court was without authority to direct the City to remove the dock. Moreover, as observed in Lee County, mandatory injunctions are disfavored and should be granted sparingly. Id.

The City did rescind the permit as the prior order required. Accordingly, there were no further provisions of the prior order to be enforced. The enforcement of the city code provisions regarding an illegal dock is the subject of a different action requiring appropriate pleadings.

Therefore, the order enforcing the mandate is reversed.

BLUE, C.J., and KELLY, J., concur.

      . The owners of the subject property are not parlies to this appeal.

      . Resolution 00-81 is the resolution passed by the City Commission that affirmed the issu-anee of the permit by the BOAA.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Fermin TORRES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-81.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2003.

      Bennett H. Brummer, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Michael Neimand, Assistant Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   RAMIREZ, J.

Fermín Torres appeals his convictions for second degree murder with a firearm and unlawful possession of a firearm in the commission of a felony. We affirm because the testimony as to Torres’ prior threat to kill Alfredo Sanchez was properly admitted.

Sanchez was shot in the head at close range. Julio Deoca found Sanchez dead at the entrance to his home. Deoca owned the farm where Sanchez lived and went to the Sanchez trailer after receiving several telephone calls informing him that Torres had shot Sanchez and that Orlando David Moneada had witnessed the shooting. After Deoca discovered the body, he called the police and then directed detectives to the adjoining farm where both Torres and Moneada lived. Neither man was home.

Moneada testified at trial that he, Sanchez, and Ricardo Valdez were sitting in Sanchez’s trailer when he saw Torres walk up, put the gun to Sanchez’s head and shoot. Moneada then wrestled the gun away from Torres and Torres fled. Mon-eada left the gun where it had fallen and went home. Moneada did not call the police because he is a three-time felon who had recently been released from prison and was afraid to be sent back to prison. Valdez was never heard from again.

Moneada further testified that after he returned home, he encountered Torres who asked the gun’s whereabouts. Mon-eada then went to Gustavo Puerto who called Deoca. Moneada claims to have been home all night, hiding from Torres. He called the police the following morning from a. payphone at a nearby restaurant.

Deoca testified that two weeks prior to the shooting, he had been at Sanchez’s place when Torres pulled up to the closed gate, yelling that he wanted to kill Sanchez. Torres was drunk, but was not violent or aggressive and did not have a gun. Deoca calmed him down and Torres left. Deoca did not take the threat seriously and even forgot about it until several weeks after the shooting.

Silvio Pera-Marti had been a close friend of Torres for many years. He testified that Torres and Sanchez had lived together, but Torres had asked Sanchez to move out after several arguments over trivial matters. Pera-Marti stated that Torres called him from jail to ask him to sell some of Torres’ possessions and bring the money to the jail. Torres denied shooting Sanchez. During the third phone call, Torres told him where to find the gun and asked him to get rid of it. Pera-Marti went to Moneada to tell him about the gun, then told the police. The gun was never found. There was no physical evidence linking Torres to the shooting. Only Mon-cada’s testimony placed Torres at the scene.

Torres argues that evidence of his prior threat to kill Sanchez was improperly introduced to prove propensity and identity. Evidence of similar facts is admissible when relevant to any material issue, other than propensity or bad character. See Fla. Stat. § 90.404(2)(a)(2002). See also Williams v. State, 110 So.2d 654 (Fla.1959). Torres argues that Drake v. State, 400 So.2d 1217 (Fla.1981), requires reversal as the prior incident was dissimilar to what occurred at the actual shooting. However, Drake is distinguishable; as part of its modus operandi theory of identity, the State introduced evidence that Drake had sexually assaulted two different women on two prior occasions and both times had tied the victims’ hands behind their back. The Florida Supreme Court held that binding of the hands was not sufficiently unusual to point to the defendant and, as that was the only similarity to the current crime, the evidence was irrelevant to prove identity.

In contrast, Torres’ prior threat to kill Sanchez was relevant to establish motive and intent and was therefore admissible. While courts are strict in requiring similarity when collateral crimes are used to prove identity, the same is not the case where they are used to prove motive. See Finney v. State, 660 So.2d 674, 681-82 (Fla.1995) (“Overall similarity between the facts of the two offenses generally is necessary before the other crime evidence is considered relevant to the issue of identity. However, such is not the case when other crime evidence is used to prove motive.”) (citation omitted).

In Dennis v. State, 817 So.2d 741 (Fla.2002), the supreme court approved the use of collateral evidence that the defendant had previously stalked, threatened and assaulted the victim to prove motive. Id. at 762 (stating that “[although certainly prejudicial, the evidence of the nature of Dennis’s relationship with the victim was relevant to establish Dennis’s motive.”). Similarly, the fact that Torres had threatened to kill the victim on a prior occasion also demonstrates the nature of Torres’ relationship with the victim Sanchez. See also Brown v. State, 611 So.2d 540, 542 (Fla. 3d DCA 1992)(testimony as to prior threats to victim were properly admitted as evidence of motive, intent, and premeditation).

Affirmed.


author: STONE, J.

text:
    Luc Patrick ALEXANDRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-976.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.

      John H. Lipinski of the Law Office of John H. Lipinski, Miami, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Alexandre was convicted of burglary of an occupied dwelling. We affirm as to all issues, but address only that of an erroneous jury instruction.

The record reflects that Charmaine Dawkins, her children, and her boyfriend, Bernard, were home when there was a knock at the door. Dawkins opened the door after a voice identified himself only as “Mike.” Two individuals entered, one pulled out a gun, and said “Bernard.” Bernard got up and ran out the back door into the backyard. Dawkins heard two gunshots being fired as the man with the gun and the second individual ran after Bernard out the back door. She also saw two other men on her back patio.

A neighbor, Nolly Smart, testified to seeing two men leave a green Toyota Céli-ca and walk to Dawkins’ apartment. He saw one man knock on Dawkins’ door while the other stood behind it. He heard the door open and then heard gunshots. A few moments later, he saw the two men emerge from the side of the house. At that time, Smart overheard one of the men say that he was shot. He got in his car to follow the men and found Alexandre laying in the road bleeding. Smart identified him as one of the men who entered the apartment.

Dawkins had noticed a green Célica with four passengers in her parking lot earlier. Officer Cabrera spotted the Célica leaving the area. Cabrera detained the vehicle and the three occupants inside. The neighbor identified the individuals as participants in the incident. Flex cuffs were found under the car and duct tape was found in the car.

In a statement to the police, Alexandre stated that he had gotten a ride to Fort Lauderdale from Miami in a green Toyota with three men he knew from the neighborhood. He did not remember entering the area but said he saw two men with guns standing by the front door of the apartment. He claimed to have climbed over a wall into the Dawkins patio where he was shot.

At trial, Alexandre told a different story. He testified that a friend had dropped him off so that he could look for his cousin. Alexandre claimed to have been walking down the sidewalk when he heard gunshots. He jumped a wall and ended up inside the patio. He remembered getting shot multiple times.

The trial court instructed the jury:

Now as to Count I, before you can find the Defendant guilty of burglary, the State must prove the following three elements beyond a reasonable doubt.
Element number one, the Defendant entered or remained in a structure owned by or in the possession of Charmaine Dawkins. Element number two, the Defendant did not have the permission or consent of Charmaine Dawkins, or anyone authorized to act for her, to enter or remain in the structure at the time.
Element number three, at the time of entering or remaining in the structure the Defendant had a fully formed conscious intent to commit an offense in that structure ....
* * *
Even though an unlawful entering or remaining in a structure is proved, if the evidence does not establish that it was done with intent to commit a crime, the Defendant must be found not guilty.

The trial court erred in instructing the jury that “remaining in” a dwelling can also constitute burglary, as there is no evidence that a defendant was given consent to enter. However, no court has declared such error to be fundamental error, per se. This court has recognized that whether the error is fundamental depends on the facts of the individual case. See Couzo v. State, 830 So.2d 177 (Fla. 4th DCA 2002); Miller v. State, 828 So.2d 445 (Fla. 4th DCA 2002); Johnekins v. State, 823 So.2d 253 (Fla. 3d DCA 2002). Based on the facts of this case, the error was not fundamental and does not warrant reversal.

In Florida, burglary of a dwelling is committed in two different ways: (1) by entering a dwelling without permission with an intent to commit an offense; or (2) by remaining in a dwelling with an intent to commit an offense. § 810.02(1), Fla. Stat. (2001). The “remaining in” language applies only in situations where the accused remains in a dwelling of another surreptitiously. Delgado v. State, 776 So.2d 233, 240 (Fla.2000) Here, the facts did not support a “surreptitious remaining” and so the remaining in language did not apply and should not have been included in the instruction.

It is undisputed that if Alexandre was one of the men who entered the apartment and patio, his entry was done stealthily. There was no objection to the trial court’s instruction and the error in giving that instruction is not fundamental error where there is no plausible analysis under which the jury could have concluded that Alexandre entered the victim’s premises without criminal intent and only formed a criminal intent while “remaining in” the apartment. See Miller, 828 So.2d at 448; Johnekins, 823 So.2d at 258.

Here, there is no plausible way the jury could have concluded that Alexandre, who was seen lurking at the door of the victim’s apartment, formed the intent while he was “remaining in” the premises. The testimony was that the gunman, and a second individual identified as Alexandre, entered the apartment and immediately began firing as they ran through the apartment and out the back door, chasing the victim. There was no danger in this case that the jury might have concluded that intent was formed after entry.

Therefore, as in Couzo, Miller, and Johnekins, here, the inclusion of the “remaining in” part of the burglary instruction was mere surplusage and not fundamental error.

HAZOURI and MAY, JJ., concur.

      . The 2001 legislature amended the burglary statute with the intent of overturning Delgado by the enactment of section 810.015, Fla. Stat. The statute contains a provision making it retroactive February 2000. The events in this case appear to fall within that window as they occurred in April 2000 and so, if valid, Delgado would appear to no longer govern the instant case. The supreme court, however, has yet to formally address the retroactive effect of the statute, and because neither party on appeal addresses it and we affirm on other grounds, we also decline to address the issue.


author: PER CURIAM.

text:
    Kathleen A. KEARNEY, Secretary, Department of Children And Families, and the State of Florida, Appellants, v. Tom BARKER, Appellee.
    No. 4D01-4524.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, and Richard L. Polin, Senior Assistant Attorney General, Miami, for appellant State of Florida.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State appeals the trial court’s order granting habeas corpus from disciplinary segregation imposed on Tom Barker while he was being held by the State waiting for a Jimmy Ryce Act hearing.

The incidents leading to disciplinary segregation occurred while Barker was a ward of the Department of Children and Families and a resident of South Bay Facility, a facility which houses those waiting for Jimmy Ryce commitment proceedings. Wackenhut Corrections Company managed the facility. Wackenhut employees created a “Detainee Handbook” which detailed rules and operating procedures. Each resident received a copy upon entering the facility. The rule book stated, “Any act that is perceived as aggressive, hostile and threatening to any person will result in immediate room restriction status.” Room restriction, as detailed in the handbook, had no maximum length of confinement, no provisions for notice or hearing, and no guidelines for the duration of confinement in proportion to the severity of the offense. Wackenhut guards working at the facility testified that the duration of room restriction “depends on the situation how bad it was. It’s the officer’s perception is all we have to go on.”

Barker was placed on room restriction on and off, each time immediately following a verbal altercation with a guard. The trial court granted Barker’s habeas corpus petition from his room restriction, but withheld issuance of the writ because Barker was off room restriction by the time that the court made its decision. We affirm.

Relatively lengthy pre-trial stays in holding centers have become an unintended by-product of the Jimmy Ryce Act. See State v. Goode, 830 So.2d 817 (Fla.2002). These individuals are in limbo, having finished any time served for criminal convictions and not yet committed under the Ryce Act.

We conclude that the position of pretrial Ryce detainees is most similar to pretrial criminal detainees. They, too, have not had a final court determination of their status. Thus, we do not find the law governing Baker Act commitments determinative because, again, Barker was not yet committed to an institution.

In Bell v. Wolfish, the United States Supreme Court decided that the standard for unconstitutionality as applied to conditions for criminal pre-trial detainees is whether such conditions or restrictions amount to punishment. 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). However, the Court recognized that jail officials have an important interest in maintaining jail security, and that restraints reasonably related to maintaining jail security do not, without more, amount to unconstitutional punishment. Id. at 541, 99 S.Ct. 1861.

The Seventh Circuit, likewise, recognized that analysis of such appeals should balance the jail’s interest in security and the detainee’s interest in having as much personal freedom as possible. In Higgs v. Carver, the pre-trial detainee was placed in “lockdown segregation,” a type of solitary confinement, for 34 days without notice and an opportunity to be heard. 286 F.3d 437 (7th Cir.2002). The court reversed for the trial court to determine if the segregation was punitive, noting, “A pretrial detainee cannot be placed in segregation as a punishment for a disciplinary infraction without notice and an opportunity to be heard; due process requires no less.” Id.

In the instant case, the trial court, as fact finder, implicitly ruled that Barker’s due process rights were violated because the room restriction was a punishment for a disciplinary infraction without proper notice and an opportunity to be heard. Moreover, we acknowledge the trial court’s granting of the writ of habeas corpus was an implicit finding that room restriction was not a managerial decision to maintain facility security. Therefore, under Higgs and Bell, we affirm the trial court’s granting of habeas corpus.

POLEN, C.J., GUNTHER and HAZOURI, JJ., concur.


text:
    Samantha B. RABIN, Appellant, v. FELT HOME CARE, INC., Appellee.
    No. 4D02-2582.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Samantha B. Rabin, Millburn, New Jersey, pro se.
    Cindy S. Vova of Cindy S. Vova, P.A., Ft. Lauderdale, for appellee.
   PER CURIAM.

Appellant, who is not a resident of Florida, is the defendant in a lawsuit brought by the appellee, a provider of nursing services to appellant’s mother, a resident of Broward County. Appellant moved to dismiss based on lack of personal jurisdiction because she is a non-resident, but the trial court denied her motion to dismiss.

We affirm, concluding that appellant’s activities, which included coming to Florida, making payment in Florida for past nursing services, and agreeing to make payment in Florida for future nursing services, were sufficient to subject her to long-arm jurisdiction under section 48.193(1)(g), Florida Statutes (2001). See Stomar, Inc. v. Lucky Seven Riverboat Co., L.L.C., 821 So.2d 1183 (Fla. 4th DCA 2002); Indus. Cas. Ins. Co. v. Consultant Assocs., Inc., 603 So.2d 1355 (Fla. 3d DCA 1992). Appellant’s activities in Florida were also such that she could reasonably anticipate being hailed into court in Florida. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

POLEN, C.J., KLEIN and GROSS, JJ., concur.


text:
    A.B., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D02-3740.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Kathleen K. Pena, Fort Lauderdale, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Mother, A.B., challenges the lower court’s sua sponte imposition of a “no-contact” order with her dependent child who is in long-term relative custody.

The Department of Children and Families brought a motion to terminate protective supervision at an annual review hearing of a dependent child who had established permanency in long-term, relative placement with the maternal grandmother. The mother had been granted visitation supervised by the grandmother and had exercised such visitation. The court on its own motion entered an order requiring that the mother have no contact with the child until the mother provided the grandmother proof of completion of long-term, residential drug treatment. Neither the Department nor the Guardians Ad Litem assigned to the case had recommended that the mother not have continued supervised visitation.

The mother appeals the portion of the order directing no contact as a non-final order entered after a final order on an authorized motion. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). See Ayo v. Dep’t of Children & Family Servs., 788 So.2d 397 (Fla. 1st DCA 2001); Coy v. Dep’t of Health & Rehabilitative Servs., 623 So.2d 792 (Fla. 5th DCA 1993). On appeal, the Department continues to support the mother’s position that the mother should have supervised visitation with her child.

The trial court abused its discretion in ordering that the mother have no contact with the child, over the objections of all the parties involved, where there was no evidence that the mother’s continued supervised visitation would pose any risk of harm to the child or that the grandmother and family were incapable of assuring the safety of the child during such visits. From the record, the trial court’s no-contact order was not entered in the interest of the child’s welfare but to sanction the mother for not attending the review hearing or complying with the court’s directives. The purpose of a dependency proceeding is “the protection of the child and not the punishment of the person creating the condition of dependency.” § 39.501(2), Fla. Stat. (2002). The trial court’s imposition of a no-contact order fads the “test of reasonableness” associated with the review of discretionary, trial court decisions as set forth by the Supreme Court of Florida. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

Accordingly, the portion of the trial court’s order directing that the mother have no contact with the child is REVERSED.

GUNTHER, STEVENSON and TAYLOR, JJ., concur.


text:
    Raymondo BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2813.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for Appellant.
    Charlie Christ, Attorney General, Tallahassee, and Steven R. Parrish, Assistant Attorney General, Fort Lauderdale, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

This matter is before the court on the defendant’s motion for rehearing. We deny the rehearing, but withdraw this court’s previously issued decision and substitute the following.

The defendant appeals his conviction for burglary of an occupied dwelling and argues that the trial court committed fundamental error by including the “remaining in” language in the burglary instruction. We have reviewed the record and find that the evidence does not support the existence of consent to enter the victim’s apartment. Furthermore, the circumstances surrounding the defendant’s entry as expressed in his statement to the police, do not provide an “innocent explanation”. See Couzo v. State, 830 So.2d 177 (Fla. 4th DCA 2002) and Miller v. State, 828 So.2d 445 (Fla. 4th DCA 2002). Thus, the “remaining in” language was mere surplusage under the facts of this case and did not constitute fundamental error. See also Johnekins v. State, 823 So.2d 253 (Fla. 3d DCA 2002).

The defendant’s conviction is affirmed.

STONE, HAZOURI and MAY, JJ., concur.


author: DAVIS, J.

text:
    Winton HARRELL, Appellant, v. FLORIDA CONSTRUCTION SPECIALISTS/AARLA/AGENT FOR FWCIGA, Appellee, and Arthur Myers, Appellant, v. City of North Miami and Integrated Ins. Co., Appellees.
    Nos. 1D01-3512, 1D02-368.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2003.

      Arthur C. Beal, Jr., of Arthur C. Beal, Jr., Tallahassee; and Richard A. Sicking of Richard A. Sicking, P.A., Coral Gables, for Appellant in No. 1D01-3512.

      Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellee in No. 1D01-3512.
    Richard A. Sicking of Richard A. Sicking, P.A., Coral Gables, for Appellant in No. 1D02-368.
    William C. Robinson, Miami, for Appel-lees in No. 1D02-368.
   DAVIS, J.

Appellants/claimants, Arthur Myers and Winton Harrell, appeal orders of the judges of compensation claims holding that because appellants were injured and reached permanent total disability (PTD) prior to age sixty-two, they were not entitled to supplemental benefits after age sixty-five. In this consolidated appeal, appellants also challenge the constitutionality of section 440.15(l)(e)l., Florida Statutes (1991) and 440.15(l)(f)l., Florida Statutes (1995), the authority for the termination of appellants’ supplemental benefits, on supremacy clause and equal protection grounds. We affirm for the reasons set forth in this opinion.

Appellants both suffered industrial accidents rendering them permanently and totally disabled before the age of sixty-two. Both appellants collected disability payments and both insurance carriers terminated the payments of supplemental benefits for PTD on the basis of section 440.15(l)(e)l., Florida Statutes (1991) and 440.15(l)(f)l., Florida Statutes (1995), respectively. Appellants sought payment of the supplemental benefits for PTD after they reached the age of sixty-five, and the respective judges of compensation claims denied appellants’ claims pursuant to this court’s opinion in Wilkins v. Broward County School Board, 754 So.2d 50, 52 (Fla. 1st DCA 2000), rev. den., 766 So.2d 224 (Fla.2000) (holding that “where a claimant is injured and reaches PTD prior to age 62, the claimant is not entitled to supplemental benefits after age 65.”). Appellants initially sought reversal of the JCC’s denial of benefits on the grounds that Wilkins was not controlling because there was a horizontal conflict between sections 440.15(l)(e)l. and 440.15(10), or that there was a vertical conflict between section 440.15(l)(e)l. and 42 U.S.C. section 424a. Appellants’ counsel, however, properly conceded at oral argument that should this court reject the constitutional challenges to the statutes at issue, Wilkins does control and stare decisis requires this court to affirm the orders.

Appellants contend that section 440.15(l)(e)l., Florida Statutes (1991) and section 440.15(l)(f)l., Florida Statutes (1995), as construed by this court, are in violation of the supremacy clause of the United States Constitution and/or their equal protection rights. The JCCs properly found that they lacked jurisdiction to determine whether the statutes are unconstitutional. Hensley v. Punta Gorda, 686 So.2d 724, 725 (Fla. 1st DCA 1997) (“As an administrative officer vested with only certain limited quasi-judicial powers, a judge of compensation claims does not have jurisdiction to declare a portion of the Florida Workers’ Compensation Act unconstitutional or violative of a federal statute.”) (citing Sasso v. Ram Prop. Mgmt., 431 So.2d 204, 207-208 (Fla. 1st DCA 1983), approved 452 So.2d 932 (Fla.1984)); Bradley v. Hurricane Rest., 670 So.2d 162, 164 (Fla. 1st DCA 1996). Appellants’ eonstitu-tional challenges to the statutes are, therefore, properly before this court. Sasso, 431 So.2d at 208.

Appellants first contend that the termination of benefits under sections 440.15(l)(e)l., Florida Statutes (1991) and 440.15(l)(f)l., Florida Statutes (1995) is precluded by the Supremacy Clause of the United States Constitution because the statutes are preempted by federal law, specifically, 42 U.S.C. section 424a(d). The Supremacy Clause, found in article VI, clause 2 of the United States Constitution, provides that:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const, art. VI, cl. 2. “Consequently, Congress has the constitutional power to preempt state law.” United States v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d 359, 361 (11th Cir.1994) (citing Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986)).

Prior to 1981, the Social Security Act contained a provision for the coordination of workers’ compensation disability benefits with social security disability benefits by providing that the combination of the two benefits could not exceed 80% of a claimant’s average current earnings. If the benefits exceeded the 80% cap, the social security benefits would be offset to the 80% level. 42 U.S.C. § 424a(a) (1976). This coordination of benefits, however, contained an exception which allowed the states to choose their own method of coordinating both workers’ compensation and social security benefits. That coordination of benefits has become known as a “reverse offset,” and-it enables states to reduce the amount of workers’ compensation payments by making social security benefits payable before the workers’ compensation benefits. . Florida was among the states which exercised the option to reverse the federal offset by enacting section 440.15(10), Florida Statutes (1980). Under section 440.15(10), the combination of workers’ compensation benefits and social security benefits could not exceed 80% of an employee’s average weekly wage. The social security benefit is paid first, and the “offset,” if any, inures to the benefit of the employer/carrier at the 80% level. The offset ceases at age sixty-two.

In 1981, Congress amended 42 U:S.C. section 424a, as found in the Omnibus Budget Reconciliation Act of 1981. Congress changed the age during which the reduction of social security benefits could be made on'account of the receipt of workers’ compensation benefits from age sixty-two to age sixty-five. Congress also added the following language to 42 U.S.C. section 424a:

(d) Exception
The reduction of benefits • required by this section shall not be made if the law or plan described in subsection (a)(2) of this section under which a periodic benefit is payable provides for the reduction thereof when anyone is entitled to benefits under this subchapter on the basis of the wages and self-employment income of an individual entitled to benefits under section 423 of this title, and such law or plan so provided on February 18, 1981.

Through this amendment, Congress abolished the reverse offset for those states that had not already enacted laws for such an offset. The states, including Florida, that had already enacted reverse offset provisions were “grandfathered” in and allowed to continue to apply reverse offsets, i.e., reduce workers’ compensation benefits on account of the receipt of social security benefits.

Appellants challenge the validity of section 440.15(l)(e)l. which was first enacted in 1990 and provides for the cessation of the supplemental benefits for PTD upon an employee’s sixty-second birthday. Appellants argue that the statute operates as a reverse offset under section 440.15(10) because it reduces the workers’ compensation benefits on account of the receipt of social security benefits, arid that Florida cannot reduce such benefits unless the offset was a law in 1981. We hold that the termination of supplemental benefits pursuant to 440.15(l)(e)l., Florida Statutes (1991) and section 440.15(l)(f)l., Florida Statutes (1995) is not a reverse offset pursuant to section 440.15(10), and therefore, is not in conflict with 42 U.S.C. 424. Based on the analysis that follows, we find that the statutory provisions are also not preempted by 42 U.S.C. section 424a(d).

Congress’s constitutional power to preempt state law is not unlimited. “A federal statute does not supersede state law unless that is the clear and whole purpose of Congress.” Lot 5, 23 F.3d at 361 (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)). In Cipollone, the United States Supreme Court recognized that consideration of issues arising under the Supremacy Clause begins with the “assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” 505 U.S. at 516, 112 S.Ct. 2608 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). “Accordingly, the purpose of Congress is the ultimate touchstone of pre-emption analysis.” Id. (citations and internal quotations omitted).

The intent of Congress may be “explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Id. (citation and internal quotations omitted). Further, in the absence of an express command by Congress, state law will be pre-empted if the law “actually conflicts with federal law (citation omitted) or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.” Id. (citations and internal quotations omitted).

In State v. Stepansky, 761 So.2d 1027 (Fla.2000), the Florida Supreme Court noted several ways in which federal law can preempt state law. First, if the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it; second, if the federal legislation touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject; or third, the “object sought” by the federal legislation may reveal the same purpose. Id. at 1033-1034 (citations omitted). The exception created by Congress in 42 U.S.C. 424a(d) is not so pervasive as to require this court to infer that Congress intended to preclude the State of Florida from ever terminating benefits such as those terminated by 440.15(l)(e)l., Florida Statutes (1991) and section 440.15(l)(f)l., Florida Statutes (1995), and not offset by section 440.15(10). To the contrary, it seems clear that the purpose of 42 U.S.C. section 424a(d) was to avoid a double offset by allowing the states to shift costs to the federal government through a reverse offset program. Harris v. State of Washington, 120 Wash.2d 461, 843 P.2d 1056, 1060 (1993) (citing Sciarotta v. Bowen, 837 F.2d 135, 140 (3d Cir.1988) (quoting Swain v. Schweiker, 676 F.2d 543 (11th Cir.), cert. denied, 459 U.S. 991, 103 S.Ct. 349, 74 L.Ed.2d 388 (1982))).

In Harris, the Supreme Court of Washington rejected a similar challenge after a thorough analysis of the issue. The argument advanced in Harris is similar to the one made before this court, i.e., that 42 U.S.C. section 424a(d) is evidence of congressional intent to preempt state reverse offsets of federal benefits. As found in Harris, 42 U.S.C. section 424a not only fails to express an intent to occupy the field of coordinating benefits, it “provides for some types of state reverse offsets, thus indicating a Congressional interest in sharing the field of benefit coordination.” Id. at 1061 (emphasis supplied).

We find no inconsistency between the Florida statutes and the purposes and objectives of the federal law, 42 U.S.C. section 424a, which explicitly coordinates benefits to avoid duplication. The Florida statutes, by avoiding duplicative benefits, are consistent with federal law. We hold that 42 U.S.C. section 424a does not preempt sections 440.15(1)(e)1., Florida Statutes (1991) and 440.15(l)(f)l., Florida Statutes (1995).

Appellants alternatively argue that the cessation of the cost of living supplements for PTD, under sections 440.15(l)(e)l., Florida Statutes (1991) and 440.15(l)(f)l., Florida Statutes (1995), violates the constitutional guarantees of equal protection of the law. The equal protection clauses of the state and federal’ eonsti-tutions guarantee that all 'citizens similarly situated be treated alike. Art. I, § 2, Fla. Const.; U.S. Const, amend. XIV, § .1. Because appellants’ challenge is based on age discrimination, it is subject to the rational basis review.

We find that the termination of PTD supplemental benefits at the age of sixty-two, pursuant to sections 440.15(1)(e)1., Florida Statutes (1991) and 440.15(l)(f)l., Florida Statutes (1995), survives the rational basis test because it is reasonably related to a permissible government objective, In Wilkins, this court noted that .the legislature “could have legitimately assumed that in these cases [where a claimant is injured and reaches PTD prior to age 62] a. claimant would not continue to work after a traditional retirement age.” 754 So.2d at 52. Further, the Final Staff Analysis and Economic Impact Statement for the original enactment of the statutory language at issue in section 440.15(l)(e)l. states that the objective of the statute was to lower the premium costs for workers’ compensation coverage. Fla. H.R. Comm. on Commerce, CS/HB 3809 and CS/HBs 2671, 1099, 1499, 1611, 2265, 2871, 2957, 3007, and 3135 (1990) Staff Analysis (final July 18, 1990) (“The bill revises the Workers’ Compensation law in order to address the rising costs of worker’s compensation insurance in the state. Though some reduction in benefit levels was necessary to bring about the desired reduction in costs, benefit levels were cut only as a last resort.”). The goal of reducing the costs of premiums is not, “under the rational basis test, an illegitimate or irrelevant consideration.” Sasso, 431 So.2d at 220. Appellants have failed to meet their burden in establishing that there is no legitimate state purpose furthered by the termination of PTD supplemental benefits provision. We hold that the legislature’s statutory objective satisfies the rational basis test and that sections 440.15(l)(e)l., Florida Statutes (1991) and 440.15(l)(f)l., Florida Statutes (1995) do not violate equal protection.

Accordingly, we find that Wilkins controls because both claimants herein were injured and reached PTD prior to age sixty-two, and they are, therefore, not entitled to supplemental benefits after age sixty-five; we further find the constitutional challenges lacking in merit; and we affirm the orders on appeal.

BENTON and POLSTON, JJ„ CONCUR.

      . The language at issue, identical in both versions of the statute, is as follows: "Entitlement to these supplemental payments shall cease at age 62 if the employee is eligible for social security benefits under 42 U.S.C. §§ 402 and 423, whether or not the employee has applied for such benefits.” § 440.15(l)(e)l„ Fla. Stat. (1991), and § 440.15(1)(£) 1., Fla. Stat. (1995).

      . Initially, we note that age is not a suspect class. State v. T.M., 761 So.2d 1140, 1145-1146 (Fla. 2nd DCA 2000) (citing Gregory v. Ashcroft, 501 U.S. 452, 470, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)); State v. Walborn, 729 So.2d 504, 505 (Fla. 2nd DCA 1999); Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983) (noting that "age has not as yet, for federal equal protection purposes, been determined either a suspect or quasi/suspect class."). "Age limitations and restrictions may survive a constitutional challenge and be enforced if they pass the 'rational basis' test, i.e., the age classifications are reasonably related to a permissible governmental objective.” Wright v. State, 739 So.2d 1230, 1232 (Fla. 1st DCA 1999).


author: SHAHOOD, J.

text:
    R.K., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-185.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   SHAHOOD, J.

The sole issue presented in this appeal is whether the trial court erred in committing appellant, a juvenile, in the absence of a predisposition report. We reverse and remand for a new disposition hearing.

Following an adjudicatory hearing, the trial court found appellant guilty as charged in the Petition. The court ordered a predisposition report (PDR), specifically asking the Department of Juvenile Justice Department to determine whether sexual offender placement was required in this case in order to protect the public.

A disposition hearing was held December 20, 2001. The court announced that a PDR had not been completed by the Department by the time of the hearing. Notwithstanding this fact, the court nevertheless entered an Order of Disposition and Commitment to the Department.

Appellee, State of Florida, concedes, and we agree, that a predisposition report must be prepared and reviewed by the trial judge prior to the commitment of a juvenile. See B.B. v. State, 718 So.2d 399 (Fla. 4th DCA 1998) (before committing juvenile to the Department following adjudication of delinquency, trial court was required to consider predisposition report; record did not demonstrate that juvenile knowingly waived his right to PDR.). Seetion 985.229(2), Florida Statutes (2001), provides that: “The court shall consider the child’s entire assessment and predisposition report and shall review the records of earlier judicial proceedings prior to making a final disposition of the case.” Hence, it is reversible error for the trial court to make a disposition in a case without first considering the predisposition report. See B.B. v. State, 647 So.2d 268, 269 (Fla. 4th DCA 1994).

We accordingly reverse and remand for a new disposition hearing after the completion of a predisposition report by the Department of Juvenile Justice.

REVERSED AND REMANDED.

POLEN, C.J., and GROSS, JJ., concur.

      . Lewd and lascivious molestation on a child under the age of 12 by an offender under the age of 18 and sexual battery on a child under the age of 12 by a perpetrator under the age of 18.


author: PER CURIAM. KLEIN, J.,

text:
    Raymond GRAVES, Lori Melton, Cheryl Landphier, Patricia Allen, Margaret Graves, Nancy Johnson, Kay Gage, Sue Nelson, Caryl J. Heller, Jon J. Heller, Gini Heller, Deana Heller, Georgia Heller, Jay Heller, George Heller, Jr., Allen Heller, individually, Robert C. Stone, Personal Representative of the Estate of George Heller, Sr., and Robert C. Stone, trustee of the Revocable Trust of George H. Heller, Sr., Petitioners, v. Christina M. LAPI and Michelle T. Lapi, jointly and severally, Respondents.
    No. 4D02-2941.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Robert C. Stone of Law Offices of Robert C. Stone, P.A., Boca Raton, for petitioners.
    Anthony J. Alfero, Fort Lauderdale, for respondents.
   PER CURIAM.

Petitioners seek certiorari review of an order disqualifying an attorney and his law firm from representing them upon the motion filed by respondent Michelle T. Lapi, one of the defendants below. This petition arises from litigation concerning the estate of the decedent, George H. Heller, Sr. The attorney serves as both personal representative of the estate and trustee of his trust. The beneficiaries of the trust are plaintiffs in an action to recover assets they claim were obtained from the decedent by two women through undue influence. The order granting one defendant’s motion to disqualify the attorney from representing the plaintiffs is based on the defendant’s unrefuted allegations that the attorney is likely to be a material witness at the trial. We grant the petition in part and deny it in part.

To the extent the order disqualifies counsel from acting as the plaintiffs’ advocate at trial, we deny the petition, concluding that petitioners have not established any departure from the essential requirements of law. See R. Regulating Fla. Bar 4-3.7(a) (precluding lawyer from acting as advocate at a trial where the lawyer likely will be necessary witness on behalf of the client); Larkin v. Pirthauer, 700 So.2d 182 (Fla. 4th DCA 1997). However, we conclude that the order was too broad in not limiting the disqualification to trial advocacy, an issue which petitioners clearly raised below in their reply to the motion. See Columbo v. Puig, 745 So.2d 1106, 1107 (Fla. 3d DCA 1999) (interpreting rule’s key words “at trial” to mean that counsel should be permitted to represent party “in any proceedings before trial and after trial”); Cerillo v. Highley, 797 So.2d 1288 (Fla. 4th DCA 2001) (specifically quashing order disqualifying counsel from participating in pre-trial proceedings); Fleitman v. McPherson, 691 So.2d 37 (Fla. 1st DCA 1997).

Granted in part and denied in part.

SHAHOOD and TAYLOR, JJ., concur.

KLEIN, J., dissents with opinion.

KLEIN, J.,

dissenting.

I would grant the petition in all respects because, in my opinion, it is premature to disqualify counsel from representing plaintiffs at trial, especially where there has been no evidentiary hearing. Once the facts are developed through discovery, the trial court would then be in a position to make a more informed decision as to whether counsel should be disqualified from representing respondents at trial.

      . Petitioners, who did not furnish a transcript of the hearing on the motion, complain that there has been no evidentiary hearing. However, they do not claim to have requested one nor refute Michelle Lapi's representations that it was Petitioners who set her motion to be heard on the court’s motion calender, that she proffered her testimony would be the same as the allegations of her motion, and that Petitioners did not offer contradictory evidence on any material issue.


author: PER CURIAM. GRIFFIN, J.,

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. J.L. and B.L., Children, Appellees.
    No. 5D02-2177.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2003.
    Thomas P. Turcotte, Assistant District Legal Counsel, Department of Children and Families, Daytona Beach, for Appellant.

      No Appearance for Appellees.
   PER CURIAM.

AFFIRMED.

PLEUS, J., and COBB, W., Senior Judge, concur.

GRIFFIN, J., concurs specially, with opinion.

GRIFFIN, J.,

concurring specially.

I write to say that I think the position of the Appellant, Department of Children and Families, is probably correct. Certainly the trial judge failed to make the required written findings. Fla. R. Juv. P. 8.415(f)(7).

It is plain on the record, however, why the judge decided to delay the implementation of a plan for termination of parental rights. The mother, who is a paranoid schizophrenic, had made some recent improvement under psychiatric care. The court was provided a letter from her mental health providers reporting that:

We have been treating [P.] for a paranoid schizophrenia diagnosis since August, 2000. During the one and a half years we have been treating her, she has only recently shown some improvement in her abilities to perform everyday tasks. [P.] is compliant with her medications and with her appointments.
However, it is our opinion that it is premature to allow her, at this stage in her growth, to potentially overwhelm her with the responsibilities for caring for her children.

In this letter the trial court found reason to believe that these children may be able to be reunited with their mother. Although this letter is the thinnest of reeds for such an expectation, the trial judge chose to conclude that if the mother were given a bit more time, it could happen. The question is whether section 39.701(8)(f), Florida Statutes (2001), will permit it. The statute sets a twelve month limit for shelter and will allow an extension only if “the situation of the child is so extraordinary that the plan should be extended”. The court did not consider the children’s situation except to the extent that they have a mother who is mentally ill and cannot care for them but who is making unquantified progress in her treatment. The underlying premise of the statute is that children in shelter cannot any longer be warehoused indefinitely without a loving family and until they are no longer adoptable in the name of the parent/child bond. The parent is given a year to get into a position to be able to perform his or her responsibilities as parent. If this is not done, the child must be put in a position to get out of shelter care and to move into a functioning family. Here we have a mother who has not been able to put herself in a position to parent for at least one and -a half years, however, the reason ostensibly is that she is afflicted with an illness that possibly will be controlled by medication and therapy.

The appealed order in this case was rendered over six months ago, so the extra time the trial judge was moved to grant the mother has now expired. Either there has been or shortly will be another hearing where it is to be hoped that the question of these children’s futures can be examined more thoroughly in light of current information about whether this mother’s own mental health will permit her to parent appropriately and safely. I vote to concur with the majority only because the passage of time has rendered this appeal largely moot. The majority’s “per curiam affirmed” will cause an end to this appeal and, hopefully, prompt resolution below.

I note, by the way, that this court is committed to expediting proceedings that pertain to the status of children. If either party had asked for this case to be expedited we would have doubtless done so, and if this case again comes up on appeal, all the parties have to do is let us know the subject matter an/*d we will resolve the appeal as quickly as we can.


author: PLEUS, J.

text:
    OSI INDUSTRIES, INC., etc., et al., Appellants, v. Thomas C. CARTER, Appellee.
    No. 5D02-1559.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2003.

      I. William Spivey, II, of Greenberg Traurig, P.A., Orlando, and Elliot H. Scherker and Brenda K. Supple, of Green-berg Traurig, P.A., Miami, for Appellants.
    M. Gary Toole, John R. Reid and Sharon Lee Stedman, of Cabaniss Smith Toole & Wiggins PL, Maitland, for Appellee.
   PLEUS, J.

Sheldon Lavin appeals the denial of his motion to dismiss the second amended complaint of Thomas Carter. Lavin argues that the trial court erred in failing to conduct an evidentiary hearing before determining that personal jurisdiction existed. We affirm.

Carter filed a second amended complaint against OSI Industries, OSI Distribution and Lavin, asserting counts of fraudulent misrepresentation and negligent representation against each defendant. This appeal concerns only the counts against La-vin. The complaint alleged the following: Carter is a resident of Orange County, Florida and Lavin is a resident of Highland Park, Illinois. In March 1988, Carter was offered a job as an executive employee of OSI Distribution and OSI Industries. He was promised salary and benefits. In lieu of a traditional pension or retirement plan, he was further promised “shares of OSI Distribution or its successor entity, with a minimum of 6.7 percent equity interest guaranteed and a reasonable share of the profits of that entity” to be provided within a “reasonable time” after beginning employment. In reliance on these assurances, Carter became vice president of OSI Distribution.

The complaint further alleges that:

11. In the spring of 1993, summer of 1994 and October 1994, Carter was again repeatedly assured by representatives of OSI Industries and OSI Distribution, including but not limited to S. Thomas Clements, Sheldon Lavin, Jerry Ford and Paul Klassman that the specified equity interest was secure and would be paid to him if he continued to remain in his executive position with OSI Distribution and OSI Industries. Many of the promises and representations outlined herein were made to Carter while he was located in Florida, and were made either in person or by telephone.
34. As a principal of OSI Industries and a partner of OSI Distribution, in March 1988, and the spring, summer and fall of 1993, and October 1994, Lavin knowingly and falsely made misrepresentations to Carter throughout his years of employment, without any intent to perform, assuring him that if he accepted and continued in an executive position of employment with OSI Distribution and OSI Industries, he would receive, in lieu of traditional pension or retirement plan, shares of OSI Distribution or its successor entity....
35. In reliance upon Lavin’s false representations regarding equity payments, Carter continued in his employment and fully performed all his duties and obligations as an OSI executive employee, with many of said duties being performed in Florida.
38. The specified equity interest was to be paid to Carter in Florida, and the harm from Lavin’s fraudulent misrepresentations has occurred in Florida.

Lavin filed a motion to dismiss contesting personal jurisdiction. In his supporting affidavit, Lavin alleged that:

7. I do not believe I have ever made any false statements or misrepresentations to Plaintiff, either in person or by telephone. During 1988, 1993 and 1994 (the times on which I supposedly made false statements to Plaintiff), Plaintiff, like me, did not work or live in the state of Florida. During 1988, 1993 and 1994, I never had any in person conversation(s) with Plaintiff in the state of Florida, and I am positive I did not make any false statements to him in the state of Florida. To the extent I had any in-person conversations with Plaintiff in 1988, 1993 or 1994, those conversations necessarily took place in Illinois.
8. I do not specifically recall having any telephone conversations with Plaintiff in 1988, 1993 or 1994 while he (Plaintiff) was located in Florida and I was located somewhere else. While it is possible that such telephone conversations took place, I do not recall them; to the extent there were any such telephone conversations, they were necessarily very limited in nature (in terms of the number, duration and substance of any such telephone conversations). If I had any significant degree of telephonic contact with Plaintiff in 1988, 1993 or 1994, I would in all likelihood recall those conversations. Even assuming I had telephone conversations with Plaintiff in 1988, 1993 or 1994, I do not think those conversations were sufficiently numerous or substantive to force me (in my individual capacity) to defend a lawsuit in the state of Florida.

In response, Carter filed affidavits, which included the following allegations:

3. One of these misrepresentations was made by Sheldon Lavin directly to me by telephone while I was located in Florida. This event occurred in October 1994. Mr. Lavin called my office, and during this telephone conversation, he assured me that I would be provided the specified equity interests in OSI Distribution, L.P., or its successor entity.

At the hearing on Lavin’s motion to dismiss, the trial court heard argument from both sides and denied the motion without an evidentiary hearing. As grounds, the court stated in pertinent part:

Plaintiff also asserts that long-arm jurisdiction over Lavin is appropriate pursuant to Section 48.193(l)(b), which states that a person is subject to the jurisdiction of Florida’s courts if the person commits a tort in Florida. See § 48.193(l)(b), Fla. Stat. (2002). Plaintiff argues that Lavin’s telephone call to Plaintiff in Florida wherein Lavin allegedly fraudulently represented that Plaintiff would receive an equity interest in OSI Distribution constitutes a tort committed within Florida. Lavin states in his affidavit that he did not make any misrepresentations to Plaintiff, but it is possible he called Plaintiff while Plaintiff was in Florida. As the affidavits can be harmonized, this Court need not hold an evidentiary hearing pursuant to Venetian Salami Co. v. Parthenais; 554 So.2d 499 (Fla.1989). See Meuers & Assoc., P.A. v. Heger, 752 So.2d 3, 4 (Fla. 2d DCA 2000) (when affidavits are conflicting but can be harmonized, court may make decision based on undisputed facts without holding an evidentiary hearing).
In Acquadro v. Bergeron, 778 So.2d 1034 (Fla. 4th DCA 2001), review granted, 797 So.2d 584 (Fla. Oct.1, 2001), [sic] the complaint alleged that the defendants, Massachusetts residents, committed a tortious act in'Florida by calling people within Florida and stating defamatory remarks about the plaintiff. The defendants moved to dismiss for lack of personal jurisdiction, and filed supporting affidavits denying that they made defamatory statements, but not denying that they made the telephone calls to Florida. Id. at 1035. The appellate court held: “Because the defendants’ affidavits did not deny that the telephone communication, which was the basis of personal jurisdiction, had occurred, the trial court correctly denied the motion to dismiss.” Id.
Just as in Acquadro, although Lavin states in his affidavit that he denies that he made any misrepresentations to Plaintiff, Lavin does not deny that he may have called Plaintiff in Florida. As it is the telephone conversation that is the asserted basis of jurisdiction under Section 48.193(l)(b), and Lavin does not deny that he called Plaintiff in Florida, pursuant to Acquadro, this Court has long-arm jurisdiction over Lavin.
The second step of the inquiry, that sufficient minimum contacts between Lavin and Florida exist so that personal jurisdiction over Lavin satisfies the requirements of due process, is also met in this case. In determining this issue, the court must decide “whether [defendant] ‘should reasonably have anticipated being haled into court’ in Florida.” Koch v. Kimball, 710 So.2d 5, 7 (Fla. 2d DCA 1998). In Koch, a Georgia resident had sufficient minimum contacts with Florida to satisfy the due process requirements in an action, against her for secretly taping a telephone conversation between her (while she was in Georgia) ;and the plaintiff (while he was in Florida). Id. at 7. The appellate court found minimum contacts with Florida existed where the defendant expressly called “Florida with the-knowledge that the only impact of her action would be in Florida, [therefore] we conclude that [defendant’s] actions were not the random, fortuitous or attenuated actions that courts seek to avoid pinning jurisdiction upon.” Id.
In this case. Plaintiff asserts in his affidavit that Lavin called him in Florida and made misrepresentations regarding a promised equity interested in OSI Distribution. By calling Plaintiff in Florida, Lavin knew that his alleged misrepresentations would impact Plaintiff in Florida. Lavin knew Plaintiff worked in Florida, and thus Lavin should have realized that Plaintiffs reliance on alleged misrepresentations regarding retirement or pension plans would injure Plaintiff in Florida. Therefore, pursuant to Koch, sufficient minimum contacts exist between Lavin and Florida such that the requirements of due process are satisfied.

Lavin timely appealed this order.

Standard of Review

An appellate court must conduct a de novo review of a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002).

Arguments

Lavin argues that the trial court erred in denying his motion to dismiss without conducting an evidentiary hearing because the opposing affidavits could not be harmonized regarding the facts pertaining to personal jurisdiction. Specifically, Lavin acknowledges that he cannot deny Carter’s allegations that he had at least one telephone conversation with Carter in Florida, but denies that he made any misrepresentations in that conversation. Because the affidavits cannot be harmonized regarding the content of the telephone conversation, Lavin argues that the trial court erred in failing to conduct an evidentiary hearing.

Carter argues preliminarily that Lavin either failed to preserve or invited any alleged error by failing to request an evi-dentiary hearing and by telling the trial court that such a hearing would probably not produce anything different than what was contained in the affidavits. We have reviewed the record and find this argument to be without merit.

On the merits, Carter argues that under existing case law, the lower court is not required to determine whether a tort actually occurred, but only whether the tort as alleged occurred in Florida. Under that standard, the trial court properly harmonized the affidavits on the issue of whether the phone conversations occurred and concluded that torts (intentional and negligent misrepresentation) as alleged occurred during the phone call to Carter in Florida. Thus, there was no need for an evidentiary hearing.

Analysis

Florida has a two step inquiry for determining whether there is long-arm jurisdiction over a nonresident defendant in Florida. First, the court must determine whether the plaintiffs complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute. Second, it must determine whether there are sufficient minimum contacts between the defendant and Florida to satisfy the Fourteenth Amendment’s due process requirements. Wendt, 822 So.2d at 1257.

If the defendant challenges jurisdiction by filing a motion to dismiss, either for lack of compliance with the statute or based upon insufficient minimum contacts, the defendant must file affidavits in support of that position, which places the burden upon the plaintiff to show by affidavit the basis for jurisdiction. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). If the affidavits can be harmonized, the court may decide the issue without an evidentiary hearing. Id. If the affidavits cannot be reconciled to enable the trial court to decide the issue on undisputed facts, then a limited evidentia-ry hearing is necessary to determine the jurisdiction issue. Id. at 503.

Carter alleges a statutory basis for jurisdiction under section 48.193(l)(b), Florida Statutes, which states:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(b) Committing a tortious act within this state.

(Emphasis added). Our supreme court recently held that committing a tort under this subsection does not require physical presence in the state. Rather, a tort may occur through the nonresident defendant’s telephonic, electronic, or written communications into Florida. Wendt, 822 So.2d at 1260. However, the cause of action must arise from the communications. Id.

In the instant case, Carter’s complaint and affidavits sufficiently allege that Lavin committed a tortious act within this state during a telephone conversation in October 1994 in which Lavin intentionally or negligently misrepresented that Carter would receive an equity interest in OSI Distribution. In reliance on that promise, Carter continued to perform his duties until he was fired in 1998, without ever receiving the equity interest. Lavin’s affidavits did not deny the possibility that such conversations took place. Instead, he did not recall any such conversations. La-vin did deny making any misrepresentations to Carter at any time, on the phone or in person. The trial court found that these affidavits could be harmonized and denied the motion to dismiss.

The determinative issue for this court is whether Carter was required to prove that the tort, as alleged, occurred in Florida, or whether he was required to also prove that the tort actually occurred. The trial court relied on Acquadro v. Bergeron, 778 So.2d 1034 (Fla. 4th DCA) rev. granted, 797 So.2d 584 (Fla.2001), which is factually similar to the instant case. In Acquadro, the complaint alleged that defendants, while in Massachusetts, engaged in telephone conversations with persons in Florida in which they defamed plaintiff and made statements which were the basis of claims for false arrest and malicious prosecution. The defendants filed affidavits in which they denied making the statements but did not deny their involvement in the telephone conversations. After an eviden-tiary hearing, the trial court denied the motion to dismiss. The Fourth District Court of Appeal affirmed, holding that:

Because the defendants’ affidavits did not deny that the telephone communication, which was the basis of personal jurisdiction, had occurred, the trial court correctly denied the motion to dismiss.

Id. at 1035.

Lavin argues that Acquadro was “implicitly overruled” by Wendt, which he claims requires the trial court to determine “whether the alleged tortious act occurred.” As Carter notes, this argument misses the mark. Lavin’s argument overstates the holding in Wendt, which was:

the threshold question that must be determined is whether the allegations of the complaint state a cause of action. If the complaint does state a cause of action, then it must be determined whether the alleged cause of action arises from these communications.

Wendt, 822 So.2d at 1260 (citations omitted).

More important, however, is the fact that Acquadro is procedurally distinguishable from the instant case. Because the trial court in Acquadro conducted an evi-dentiary hearing, the appellate decision does not answer the question of whether an evidentiary hearing was required in this ease.

The answer to the question on appeal lies not in Acquadro, but in Walter Lorenz Surgical, Inc. v. Teague, 721 So.2d 358 (Fla. 1st DCA 1998). In Teague, the complaint alleged various torts against the defendants. One defendant filed a motion to dismiss with a supporting affidavit attacking personal jurisdiction. The trial court granted the motion, concluding that once the defendant filed an affidavit contesting personal jurisdiction,

the burden of proof shifted to [the plaintiff] to demonstrate by a preponderance of the evidence that [the defendant] had in fact committed the tort of civil con spiracy within Florida and was therefore subject to this Court’s long-arm jurisdiction pursuant to Section 48.193(l)(b)[.]

Id. at 359 (emphasis supplied). The First District Court of Appeal reversed, stating

We agree with appellant that the court applied an incorrect burden to [the plaintiff] in granting the motion to dismiss. The court’s sole inquiry and determination should have been whether the tort as alleged occurred in Florida, and not whether the alleged tort actually occurred.

Id. (emphasis supplied).

Based on Teague, we find that the trial court correctly harmonized the affidavits and denied the motion to dismiss. On the issue of whether the tort, as alleged, occurred in Florida, Carter’s affidavits alleged that it did in the form of a telephone conversation. Lavin’s affidavit did not deny the possibility that the telephone conversation occurred. Thus, the affidavits could be harmonized on the issue of whether the tort, as alleged, occurred in Florida. It was not necessary to harmonize the affidavits or conduct an evidentiary hearing on the issue of whether the tortious statements were actually made. Teague at 359. Accordingly, the trial court’s analysis on the statutory basis for personal jurisdiction was correct.

On the constitutional prong, although Lavin does not concede the issue of minimum contacts, he does not raise any appellate argument against the trial court’s determination that minimum contacts existed. The court relied on Koch v. Kimball, 710 So.2d 5 (Fla. 2d DCA 1998), which held that minimum contacts existed where the

defendant expressly called Florida with the knowledge that the only impact of her action would be in Florida, [therefore] we conclude that [defendant’s] actions were not the random, fortuitous, or attenuated actions that courts seek to avoid pinning jurisdiction upon.

Id. at 7. The court in the instant case found that

by calling Plaintiff in Florida, Lavin knew that his alleged misrepresentations would impact Plaintiff in Florida. Lavin knew Plaintiff worked in Florida, and thus Lavin should have realized that Plaintiffs reliance on alleged misrepresentations regarding retirement or pension plans would injure Plaintiff in Florida.

We find that the trial court was correct in concluding that sufficient minimum contacts existed.

AFFIRMED.

PETERSON, J., and COBB, W., Senior Judge, concur.

      . Similar allegations were made regarding negligent misrepresentation.


author: ORFINGER, J.

text:
    K.B., Mother of R.A.D., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-1629.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2003.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P. A., Orlando, for Appellant.

      Jodi Abramowitz of Department of Children and Family Services, Orlando, for Appellee.
   ORFINGER, J.

K.B., the mother of R.A.D., a two-year-old child, appeals the trial court’s order terminating her parental rights. While the mother concedes the existence of at least one ground for termination of parental rights under section 39.806, Florida Statutes (2002), she contends that the Department of Children and Families (DCF) failed to prove that termination was in the manifest best interest of the child and was the least restrictive means of preventing harm to the child because R.A.D. could have been placed with her maternal great-grandmother. We affirm.

The trial court’s conclusion that placement with the maternal great-grandmother was inappropriate is supported by competent, substantial evidence. We observe, as we have before, that the “least restrictive means” test set out in Padgett v. Department of Health and Rehabilitative Services, 577 So.2d 565, 571 (Fla.1991) is not intended to preserve the parental bonds at the cost of a child’s future. See Dep’t of Children & Families v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002). The “least restrictive means” test simply requires that measures short of termination be utilized if such measures would permit the safe re-establishment of the parent-child bond. The trial judge found that not to be the case here, and that conclusion is supported by the evidence.

AFFIRMED.

SHARP, W. and GRIFFIN, JJ., concur.


author: ALTENBERND, Judge.

text:
    AMERICAN HOME ASSURANCE COMPANY, Appellant, v. APAC-FLORIDA, INC., a Delaware corporation, Appellee.
    No. 2D01-4613.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 2003.
    Robert A. Bauman of Robert E. Morris, P.A., Tampa, for Appellant.

      Dana G. Toole of Dunlap & Toole, P.A., Tallahassee, for Appellee.
   ALTENBERND, Judge.

The defendant, American Home Assurance Company, appeals a final summary judgment entered in favor of the plaintiff, APAC-Florida, Inc. The judgment enforces the claims of APAC-Florida, Inc., against public construction payment and performance bonds issued by American Home. The payment and performance bonds were issued on the Department of Transportation’s standard contract bond form 375-020-27. This court has held that a surety may not invoke the notice requirements and the shorter statute of limitations provided in section 255.05(2), Florida Statutes (1995), if it agrees to be surety on a bond that fails to comply with the mandatory' notice provisions in section 255.05(6). See Am. Home Assurance Co. v. Plaza Materials, 826 So.2d 358 (Fla. 2d DCA 2002).

If a bond violates the mandatory notice provisions, it is governed by the longer statute of limitations in section 95.11, Florida Statutes (1995). Although this result is sometimes described as treating the bond as a “common law bond,” in this situation, it merely subjects the bond to the more general statute of limitations because the bond did not contain the notice essential to invoke the more favorable requirements. We do not believe that the surety should be entitled to force claimants to participate in a jury trial on the issue of whether the omission in the bond misled them when the surety could have avoided the entire issue by requiring a bond in compliance with the notice provisions. We certify that our decision conflicts with that of the Fifth District in Florida Crushed Stone Co. v. American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002).

Affirmed.

CASANUEVA and DAVIS, JJ„ Concur.


author: ERVIN, J.

text:
    ALACHUA COUNTY, Florida, Appellant, v. FLORIDA ROCK INDUSTRIES, INC., Appellee.
    No. 1D01-5008.
    District Court of Appeal of Florida, First District.
    Jan. 14, 2003.

      David Wagner, County Attorney, David C. Schwartz, Assistant County Attorney, Gainesville, for Appellant.
    John A. DeVault, III, and Courtney K. Grimm of Bedell, Dittmar, DeVault, Pil-lans & Coxe, P.A., Jacksonville, for Appel-lee.
   ERVIN, J.

Appellant, Alachua County, appeals from a final summary judgment wherein the trial court held that under section 171.062, Florida Statutes (1999), appellant no longer has the authority to enforce its developer’s agreement with appellee, Florida Rock Industries, because the City of Newberry annexed the Florida Rock property. Alachua County contends the trial court erred by concluding that the statute applies to the developer’s agreement, because the agreement is a contract rather than a law, ordinance, or regulation under section 171.062. We affirm, because the pertinent statutes provide that the local government has jurisdiction to regulate the development of property.

Alachua County’s Board of County Commissioners approved Florida Rock’s request to build a cement plant in the unincorporated area of the county. The parties entered into a developer’s agreement that required Florida Rock to implement certain environmental monitoring requirements for the site. The county asserted that it hired an environmental contractor to perform baseline monitoring under the agreement, for which Florida Rock had reimbursed the county, and that the county had incurred some nonreimbursable costs.

Florida Rock petitioned the City of Newberry to annex the Florida Rock property, which is contiguous to the city. In 1999, the city enacted an ordinance annexing the property and amended its comprehensive plan to incorporate the annexation. Pursuant to a city resolution, Florida Rock and the City of Newberry executed a reformed developer’s agreement to supplant the agreement between Alachua County and Florida Rock.

Alachua County sued Florida Rock, alleging breach of contract and seeking declaratory and injunctive relief. The trial court entered summary judgment against the county, finding that under its home rule charter, Alachua County’s land-use responsibilities extend only to its unincorporated area; that the Alachua County Code expressly provides that section 171.062 applies to annexations within the county; and that under subsections 171.062(1) and (2), Alachua County’s control over the development of the Florida Rock property passed to the City of New-berry, the county’s “successor in interest.”

Section 171.062 provides, in pertinent part:

(1) An area annexed to a municipality shall be subject to all laws, ordinances, and regulations in force in that municipality and shall be entitled to the same privileges and benefits as other parts of that municipality upon the effective date of the annexation.
(2) If the area annexed was subject to a county land use plan and county zoning or subdivision regulations, these regulations remain in full force and effect until the municipality adopts a comprehensive plan amendment that includes the annexed area.

The lower court held: ■ “As the City of Newberry has annexed Florida Rock’s property and adopted a Comprehensive Plan amendment including Florida Rock’s property, Alachua County’s regulations pertaining to Florida Rock’s property, including the Special Use Permit, the site plan approval and the [Developer’s] Agreement, are no longer in force and effect.”

Although a developer’s agreement is contractual in nature, and is not itself a law, ordinance, regulation, or land-use plan, which are the subjects of section 171.062, the statutes relevant to the issue at bar demonstrate that the county can no longer exercise control through its developer’s agreement with Florida Rock, because it is no longer the local government that has jurisdiction over Florida Rock’s property.

The authorization for local governments to enter into development agreements with developers is statutory. §§ 163.3220-.3243, Fla. Stat. (1999) (Florida Local Government Development Agreement Act). Section 163.3223 provides that a local government may enact procedures regulating the creation of such agreements pertaining to “real property located within its jurisdiction” (emphasis added). As stated above, sections 171.062(1) and (2) provide that any area a municipality annexes is subject to the city’s laws, ordinances, regulations, land-use plan, and zoning regulations. Within the Local Government Comprehensive Planning and Land Development Regulation Act, which authorizes local governments to enact comprehensive land-use plans, section 163.3171, Florida Statutes (1999), provides in subsection (1) that a municipality shall exercise authority under the act “for the total area under its jurisdiction,” and in subsection (2) that a county shall exercise authority “for the total unincorporated area under its jurisdiction ” (emphasis added). Section 163.3220(3) expressly requires the laws authorizing development agreements to conform to, further, and implement the aforementioned Local Government Comprehensive Planning and Land Development Regulation Act. Section 163.3220(5) affirms that the laws authorizing development agreements are not in derogation of any existing powers.

These statutes show that local governments may implement and supervise development agreements addressing development within their jurisdictions, and the agreements must comport with the local government’s land-use plan. When read in pari materia, the statutes reasonably imply that when jurisdiction over property changes as a result of municipal annexation, the municipality becomes the successor in interest to development agreements the county has entered into, because the county cannot exercise land-use control over property no longer within its jurisdiction, and the municipality must be able to monitor compliance with the terms of its own land-use plan incorporating the new property.

AFFIRMED.

DAVIS, J., concurs; BOOTH, J., dissents.

      . See § 171.044(1), Fla. Stat. (1999) (authorizing voluntary annexation).

      . The validity of the annexation is the subject of an action pending in circuit court. Crouch v. City of Newberry, No. 99-2226-CA (8th Cir. Ct).

      .Section 163.3239, Florida Statutes (1999), provides that any successors in interest to a development agreement take on the agreement's burdens and benefits.

      . See, e.g., Morgran Co. v. Orange County, 818 So.2d 640 (Fla. 5th DCA 2002) (defining a development agreement as a contract that provides a developer with vested rights by freezing the local government's zoning regulations in exchange for public benefits).

      . §§ 163.3161-.3215, Fla. Stat. (1999).


text:
    Roy L. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4910.
    District Court of Appeal of Florida, First District.
    Jan. 14, 2003.
    Nancy A. Daniels, Public Defender, David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Richard E. Doran, Attorney General, Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s ruling revoking appellant’s probation and the 67.2-month sentence, but remand for entry of a written revocation order. See Jones v. State, 638 So.2d 126 (Fla. 1st DCA 1994) (remanding for entry of a written order of revocation and directing that the defendant need not be present).

AFFIRMED in part and REMANDED.

ERVIN, BARFIELD and WOLF, JJ„ concur.


author: 'FULMER, Judge.

text:
    Shawn Levon JOSEPH, Petitioner, v. Cal HENDERSON, as Sheriff of Hillsborough County, Respondent.
    No. 2D01-5256.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2003.

      Shane Levon Joseph, pro se.
    A. Michael Perotti, Tampa, for Sheriff of Hillsborough County.
   'FULMER, Judge.

Shane Levon Joseph petitions this court for a writ of certiorari to review a trial court order denying his challenge to the $20 booking fee imposed by the Hillsbor-ough County Sheriffs Office pursuant to section 951.033, Florida Statutes (2000). We grant the petition because we conclude that the statute as applied violates Joseph’s right to equal protection and substantive due process. We reject all other issues raised in the petition.

After this court ordered a new sentencing hearing for him, see Joseph v. State, 752 So.2d 656 (Fla. 2d DCA 2000), Joseph was returned to the Hillsborough County Jail from state prison. Upon admittance, he was charged a $20 booking fee, which he protested through the inmate grievance procedure. The sheriffs response to the grievance stated: “Only inmates returned to our custody from DOC on writs ad testificandum are exempt for the initial per diem fee. You returned on a writ of pro-sequendum .... The fee charged to your account is appropriate.” Joseph filed a petition for writ of mandamus in the circuit court protesting the fee. The petition was denied.

Section 951.033(1) states in part: “The Legislature finds that there is an urgent need to alleviate the increasing financial burdens on local subdivisions of the state caused by the expenses of incarcerating prisoners.” In subsection (3), the statute provides that “[t]he chief correctional officer of a local subdivision may direct a prisoner to pay for all or a fair portion of daily subsistence costs.”

The sheriffs Standard Operating Procedure (SOP) 917.00(D), which governs assessment of the fee, provides:

All non-federal inmates booked into the Hillsborough County Jail System will be charged an Initial Inmate Per Diem Fee to cover administrative costs, with the following exceptions:
1. Those individuals in an “in-transit” status for another agency or jurisdiction.
2. Department of Corrections inmates brought back to Hillsborough County by the State Attorney or Public Defender’s Office on writs of testificandum only. Inmates returning on writs of prose-quendum are not exempt.

Joseph argues first that his right to habeas corpus without costs has been violated because he successfully challenged the legality of his sentence and he is being forced to pay for his right to be present at the resentencing hearing. We reject this argument because the statute does not authorize the fee as a punishment, but rather as a consequence of being a county prisoner. See Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371, 1372-73 (Fla.1998) (upholding $50 per diem charge on convicted prisoners under section 960.293(2)(b), Florida Statutes (Supp.1994), because charge “clearly relates to a permissive legislative objective of reimbursing public bodies for the costs expended in incarcerating these persons”); see also Solomos v. Jenne, 776 So.2d 953 (Fla. 4th DCA 2000) (holding that Broward County Jail’s practice of charging a one-time uniform fee of $10 and a daily subsistence fee of $2 was proper under section 951.033 and did not violate an inmate’s procedural due process rights), review dismissed, 820 So.2d 941 (Fla.2002).

Joseph next argues that the sheriffs application of the statute to inmates returning to the jail from state prison contravenes the legislative intent. He asserts that no fees should be assessed against state prisoners returning to the jail for any reason. We do not decide the issue of whether the booking fees can be fairly applied to any state inmate returning to the jail. We instead rest our decision on the narrower issue of whether, in applying the statute, the sheriff has drawn, an irrational distinction between those prisoners who are brought to the jail on writs of testificandum and those brought on writs of prosequendum. This appears to be an arbitrary distinction which bears no relationship to the object of the statute.

In order to determine whether-a statute violates substantive due process, a determination must be made as to whether it bears a reasonable relationship to a legitimate legislative objective and is not discriminatory, arbitrary or oppressive. See Ilkanic, 705 So.2d at 1372. When no fundamental right is at stake, the standard for evaluating a substantive due process challenge is the same as the rational basis test used for evaluating equal protection challenges. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668, 671 (Fla.1979). It is appropriate to apply a rational basis test in the assessment of an equal protection challenge to an agency’s rule or regulation that does not involve a suspect or quasi-suspect class. Fla. League of Cities, Inc. v. Dep’t of Envtl. Regulation, 603 So.2d 1363, 1369 (Fla. 1st DCA 1992). Regulations will be sustained as long as they are reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious. Id.

We conclude that Joseph’s rights were violated with respect to the sheriffs implementation of section 951.033. The sheriffs regulation, SOP 917.00(D), makes a distinction between state inmates who return to the county jail on writs of prosequen-dum versus inmates who are brought back to the jail by the state attorney or public defender’s office on writs of testificandum. There is nothing in the record to show how the sheriff arrived at the distinction between writs of testificandum and writs of prosequendum. Joseph asserts, and it is not disputed, that either writ could have been used to secure his presence by the trial judge. Because we cannot say that the distinction drawn between the two writs bears a fair and substantial relation to the object of the legislation, we conclude that the sheriffs standard operating procedure violates Joseph’s right to due process and equal protection in this instance. See Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966) (holding that statute which required inmate whose appeal was unsuccessful to repay the county for the cost of providing transcript violated equal protection); Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So.2d 55, 59 (Fla.2000) (holding that statute violated medical provider’s due process rights where prevailing party attorney-fee provision arbitrarily distinguished between medical providers and insureds).

Accordingly, we grant certiorari relief and remand for further proceedings consistent with this opinion.

CASANUEVA and SILBERMAN, JJ„ Concur.


text:
    In re Voluntary GUARDIANSHIP OF Melba JENSEN, Deceased. Sharon L. Shappell, Appellant, v. Richard C. Williams, Jr., as Attorney ad Litem for the Guardianship of Melba Jensen, Appellee.
    No. 2D01-4788.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2003.
    Richard L. Pearse, Jr., of Richard L. Pearse, Jr., P.A., Clearwater, for Appellant.
    No appearance on behalf of Appellee.
   ALTENBERND, Judge.

Sharon L. Shappell appeals an order of the probate court suspending her letters of guardianship in the voluntary guardianship of Melba Jensen and appointing an attorney ad litem to marshal the assets of Ms. Jensen. Ms. Jensen died in 1997. We affirm.

This proceeding involved a voluntary guardianship, in which the guardian’s authority rested upon the consent of a competent ward. See § 744.341, Fla. Stat. (2001). Moreover, any guardian’s authority over the assets of a ward terminates upon the ward’s death, at which point the assets become assets of the decedent’s estate and subject to the authority of the personal representative, if any. See, e.g., Batzle v. Baraso, 776 So.2d 1107 (Fla. 5th DCA 2001). Therefore, the guardianship terminated upon Ms. Jensen’s death, and no formal removal of the guardian pursuant to Florida Probate Rule 5.660 was necessary in order to suspend the now invalid letters of guardianship.

Because the probate judge was faced with a decedent with assets and potential claims but no personal representative, the probate court was required to take certain steps to protect the decedent’s assets. These steps could include the appointment of an administrator ad litem or a curator. See § 733.308, 501, Fla. Stat. (2001).

We therefore affirm the probate court’s order suspending the letters of guardianship. On remand, we direct the probate court to clarify that the attorney ad litem appointed by the court to garner Ms. Jensen’s assets shall act as an administrator ad litem or curator pursuant to sections 733.308 and 733.501.

Affirmed.

DAVIS and CANADY, JJ., Concur.

      . Of course, the termination of the guardianship and suspension of the letters of guardianship, although occurring by operation of law upon the ward’s death, do not suspend the guardian’s responsibility to account for the ward's assets and obtain a discharge in the guardianship case. See § 744.527, 534, Fla. Stat. (2001).


text:
    Corey Deshay SHANNON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1997.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Clayton R. Kaeiser, Miami, for appellant.
    Charlie Crist, Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Melbourne v. State, 679 So.2d 759 (Fla.1996).


text:
    James E. PRINCE, Appellant, v. Paul E. TOPPINO, Appellee.
    No. 3D01-3422.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.

      Donald E. Yates and Kathryn Yates (Key West), for appellant.
    Horan, Horan & Wallace and Patricia A. Eables (Key West), for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. Tropical Jewelers, Inc. v. Nationsbank, N.A. (South), 781 So.2d 392 (Fla. 3d DCA 2000)(“[A] secured creditor must dispose of collateral in a commercially reasonable manner.... ”).


text:
    Ellen Marie CUC, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4886.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 2003.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, Fort Lauderdale, for appellee.
   SHAHOOD, J.

The seminal issue raised by appellant, Ellen Marie Cue, is that the trial court violated her right to due process of law under the Florida and United States Constitutions when it excluded the defense of voluntary intoxication pursuant to section 775.051, Florida Statutes (2000). We affirm.

Appellant acknowledges that the United States Supreme Court held in Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), that a Montana statute similar to Florida’s 775.051 did not violate the due process clause of the Fourteenth Amendment of the United States Constitution.

In Egelhoff, after concluding that the voluntary intoxication defense is not a fundamental right of a criminal defendant, the Supreme Court held as follows:

“The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States.” Powell v. Texas, 392 U.S. 514, 535-536, 88 S.Ct. 2145, 2156, 20 L.Ed.2d 1254 (1968) (plurality opinion). The people of Montana have decided to resurrect the rule of an earlier era, disallowing consideration of voluntary intoxication when a defendant’s state of mind is at issue. Nothing in the Due Process Clause prevents them from doing so, and the judgment of the Supreme Court of Montana to the contrary must be reversed.

Id. at 56, 116 S.Ct. 2013.

As in Egelhoff, the people of the State of Florida have decided to resurrect the rule that intoxication is not a defense to specific intent crimes. See § 775.051, Fla. Stat. (2000). We accordingly affirm. We also affirm as to the second issue raised by appellant.

AFFIRMED.

POLEN, C.J., and GROSS, JJ., concur.


text:
    Jerome Ardis RANGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-808.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 2003.
    Carey Haughwout, Public Defender, and Nancy B. Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   SHAHOOD, J.

Appellant, Jerome Ardis Range, was charged by Information with battery on a police officer and after a bench trial was found guilty of assault and sentenced to time served. Appellant seeks reversal of his conviction because he was convicted of a crime which was not charged in the Information against him and which is not a lesser included offense of the crime which was charged. Appellee, State of Florida, acknowledges that the law in this district supports appellant’s position.

In K.H. v. State, 763 So.2d 1187, 1188 (Fla. 4th DCA 2000), the defendant was charged with aggravated battery and was tried by the trial court. He was found guilty of aggravated assault, a crime which is not a lesser-included offense of aggravated battery. Id. In reversing, this court held,

To be convicted of any lesser-included offense, absent a waiver, the information charging the greater offense must allege the elements of the lesser offense. See, e.g., Gay v. State, 432 So.2d 602, 604 (Fla. 2d DCA 1983). Here, the information did not allege that Appellant committed an act creating a well-founded fear that violence to the victim was imminent, as required by section 784.021, Florida Statutes. Conviction under these circumstances constitutes fundamental error. See Ray v. State, 403 So.2d 956 (Fla.1981), called into doubt on other grounds, Greene v. State, 714 So.2d 554 (Fla. 2d DCA 1998).

Accordingly, -based on K.H., we reverse appellant’s conviction for assault.

REVERSED.

STONE and GROSS, JJ., concur.


text:
    Sonia SOLA, Appellant, v. TWC THE WISE COMPUTER, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D02-1471.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Sonia Sola, in proper person.
    John D. Maher(Tallahassee), for Appel-lee, Florida Unemployment Appeals Commission.
    Before GERSTEN, and FLETCHER, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See Robinson v. Sun Bank and Trust Co., 685 So.2d 1325 (Fla. 2d DCA 1996).