author: EMAS, KEVIN M., Associate Judge.

text:
    GILMAN + CIOCIA, INC., Appellant, v. Virginia M. WETHERALD, Appellee.
    No. 4D03-3821.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Rehearing Denied Nov. 22, 2004.

      James M. Kaplan and Dena E. Feldman of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Miami, for appellant.
    Janet Carney Croom of Clem, Polack-wich, Vocelle & Berg, L.L.P., Vero Beach, for appellee.
   EMAS, KEVIN M., Associate Judge.

Appellant, Gilman + Ciocia, Inc. (“Gil-man + Ciocia”), appeals the trial court’s non-final order denying its motion to compel arbitration and to stay proceedings pending arbitration. We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(iv).

The issues are whether the Federal Arbitration Act (9 U.S.C. §§ 1-14) applies to the employment agreement in this case and, if so, whether the trial court erred in denying Gilman + Ciocia’s motion to stay proceedings and to compel arbitration.

Gilman + Ciocia is a corporation providing tax, accounting and financial services with its principal place of business in New York. Virginia Wetherald (“Wetherald”) is a certified public accountant and insurance agent who holds a securities broker’s license and who lives and works in Florida.

This dispute arose out of an employment agreement and asset purchase agreement entered into between the parties. Pursuant to the agreements, Wetherald sold her assets to Gilman + Ciocia and became an employee of the company, providing accounting, insurance and broker services on behalf of Gilman + Ciocia.

Thereafter, Wetherald filed a civil action, alleging breach of contract, misrepresentation, fraud in the inducement, and quantum meruit. Gilman + Ciocia filed a motion to compel arbitration and to stay action pending arbitration, based upon two clauses of the employment agreement. The first provided:

All matters concerning the validity and interpretation of and performance under this Agreement shall be governed by the laws of the State of New York, without giving effect to its conflict of laws provisions.

The second clause provided:

Any controversy or claim arising out of or related to this Agreement or any breach of this Agreement, including claims of employment or other discrimination by the Employee against the Company, shall be commenced, prosecuted and resolved in New York, New York by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, and judgment upon any award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, if the Company elects to enforce its rights under Section 7 of the Agreement, the Company may commence an action in any court located in New York, New York, and the Employee hereby irrevocably consents to the jurisdiction and venue of such court. .

The trial court entered an order denying Gilman + Ciocia’s motion, finding that the arbitration clause was voidable and that Gilman + Ciocia failed to establish that the employment agreement involved interstate commerce. We reverse.

CHOICE OF LAW

Preliminarily, we must determine the validity of the clause in the contract (set forth above), which unambiguously requires arbitration by application of New York law. Florida courts are obligated to enforce choice-of-law provisions unless a showing is made that the law of the chosen forum contravenes strong public policy or that the clause is otherwise unreasonable or unjust. See Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306 (Fla.2000); Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627 (Fla. 1st DCA 1999). No such showing was made, and the choice-of-law provision in the contract is valid and enforceable.

ENFORCEABILITY OF THE ARBITRATION CLAUSE UNDER FLORIDA LAW

Because the employment agreement requires arbitration in New York under New York law, is the agreement still enforceable in Florida courts? In briefing this issue, the parties concur that the Florida Arbitration Code, chapter 682, Florida Statutes, does not apply to the employment agreement. As a general proposition, an otherwise valid arbitration agreement is voidable at the election of either party, making it unenforceable under the Florida Arbitration Code, if it incorporates an agreement to arbitrate under the laws of another state. See Damora v. Stresscon Int’l, Inc., 324 So.2d 80 (Fla.1975); Butcher & Singer, Inc. v. Frisch, 433 So.2d 1360 (Fla. 4th DCA 1983); Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981).

The trial court was correct in finding the arbitration agreement voidable at the election of either party and therefore unenforceable under Florida law. However, there is an exception to this general rule: Even if the arbitration clause is voidable under Florida law, it may still be enforceable by Florida courts under applicable Federal law.

ENFORCEABILITY OF THE ARBITRATION CLAUSE UNDER THE FEDERAL ARBITRATION ACT

Congress enacted the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-14, in response to perceived hostility of American courts to the enforcement of arbitration agreements. In enacting the FAA, Congress declared a national policy favoring arbitration,, preempting those states which required a judicial forum for resolving claims which the contracting parties agreed to resolve by arbitration. See Gilmer v., Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991).

Under the supremacy clause of the United States Constitution, the FAA supersedes any inconsistent state law, and Florida courts are obligated to enforce valid arbitration agreements within the scope of the FAA, even if such agreements would otherwise be unenforceable under Florida law. See Butcher & Singer, 433 So.2d at 1361-62; Merrill Lynch, 405 So.2d at 792; see also Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984).

The FAA provides in pertinent part:

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for ■ the revocation of any contract.

9 U.S.C.A. § 2. (emphasis supplied). A transaction involving commerce under the FAA refers to interstate commerce. See 9 U.S.C.A. § 1. Thus, the remaining questions are whether the FAA applies to employment agreements in general and to this employment agreement in particular.

The first issue has been answered by the United States Supreme Court in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). In Circuit City, Adams applied for a job as a sales counselor at an electronics retail store. The employment contract required that all employment disputes be settled by arbitration. After his hiring, Adams filed an employment discrimination action in state court. Circuit City filed for injunctive relief in federal court, seeking an order compelling arbitration.

Adams contended that the employment contract was not subject to arbitration under the FAA for two reasons: first, the FAA applies to “a contract evidencing a transaction involving commerce.” 9 U.S.C.A. § 2 (emphasis supplied). The word “transaction,” Adams argued, limited the FAA to commercial contracts, and therefore excluded all employment agreements. Second, he argued that 9 U.S.C. § 1 specifically exempts employment contracts from arbitration under the FAA.

The Supreme Court rejected both arguments, finding that Congress’ use of the word “transaction” did not evidence an intent to limit the scope of the Act to commercial ventures, or to exclude employment contracts from its reach. The Court reaffirmed its prior decisions broadly interpreting § 2 of the FAA “as implementing Congress’ intent ‘to exercise [its] commerce power to the full.’ ” Circuit City Stores, 532 U.S. at 112, 121 S.Ct. 1302 (quoting Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 277, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)). To construe § 2 in the manner urged by Adams would render superfluous the exemption in § 1, which excludes particular types of employment contracts from the scope of the FAA.

The Court noted that § 1 of the FAA specifically exempts “ ‘contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.’ ” Id. (quoting 9 U.S.C. § 1). If § 2 was to be read as applying only to commercial transactions, and therefore inapplicable to employment contracts, the exemptions in § 1 would be unnecessary. The Court found that Adams’ proposed reading of § 2 cannot be reconciled with the broad reading given by the Court in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 277, 115 S.Ct. 834 (1995), and prior cases construing the expansive reach of the FAA. See, e.g., Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987); Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984).

Addressing Adams’ second argument, the Court held that the exemption provided in § 1 was limited to the types of workers enumerated in the provision (transportation workers), and was further limited to transportation workers engaged in the actual movement of goods in interstate commerce. The Court concluded by holding that, but for that limited class of workers, arbitration agreements in employment contracts are enforceable under the Federal Arbitration Act and supersede conflicting state law.

It is therefore plain that employment agreements such as the one in this case are subject to the provisions of the FAA and enforceable in Florida courts. It is also evident that the employment agreement in this case in fact involves interstate commerce for purposes of the FAA. The agreement provides, for example, that:

1. Wetherald, a Florida resident, agreed to provide services to Gilman + Ciocia, a company whose place of business is in New York, for a minimum of five years.

2. Wetherald agreed to provide such services as buying and selling securities and other investment or financial products.

3. Wetherald was required to maintain her securities or other licenses and keep them in good standing, including Series 6, Series 7, and Series 24 licenses, and agreed to submit an application for securities industry registration with the National Association of Securities Dealers.

4. Under the terms of the agreement, Wetherald and Gilman + Ciocia would, on a regular basis, share data, exchange correspondence, and transfer funds between Florida and New York.

5. Wetherald was permitted to participate in Gilman + Cioccia’s employee stock option plan, stock purchase plan, and 401K plan. (The employment agreement indicated that Gilman + Ciocia is publicly traded on the NASDAQ Exchange under the symbol “GTAX”.).

6. Wetherald agreed to comply with all laws and rules governing insider trading of company stock.

7. Wetherald agreed that her work for Gilman + Ciocia was subject to federal and state law, and subject to the rules and regulations of all applicable regulatory agencies.

This list, while not exhaustive, illustrates that the employment agreement is “a contract evidencing a transaction in commerce” under the FAA. See, e.g., Coastal Health Care Group, Inc. v. Schlosser, 673 So.2d 62 (Fla. 4th DCA 1996); Butcher & Singer v. Frisch, 433 So.2d 1360 (Fla. 4th DCA 1983); Victor v. Dean Witter Reynolds, Inc., 606 So.2d 681 (Fla. 5th DCA 1992); ESAB Automation, Inc. v. Hesco Sales, Inc., 582 So.2d 810 (Fla. 3d DCA 1991); Donmoor, Inc. v. Sturtevant, 449 So.2d 869 (Fla. 5th DCA 1984). See also Allied-Bruce Terminix Cos., 513 U.S. at 277, 115 S.Ct. 834. In construing whether an arbitration agreement comes within the scope of the FAA, due regard must be given to the federal policy favoring arbitration, and any doubts should be resolved in favor of arbitration. See Volt Info. Sciences, Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).

We quash the order denying Appellant’s motion to compel arbitration and to stay proceedings pending arbitration, and remand for further proceedings consistent with this opinion.

KLEIN and SHAHOOD, JJ., concur.

      . The proper test for determining whether an agreement involves interstate commerce is not whether the parties contemplated engaging in activity which involves interstate commerce, but whether there is in fact activity which involves "interstate commerce” as that phrase has been interpreted. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834 (1995).


source: Caselaw Access Project

author: LEVY, Judge.

license: Public Domain

text:
    LIBERTY MUTUAL FIRE INSURANCE COMPANY, Petitioner, v. Robert S. KAUFMAN, Respondent.
    No. 3D03-1506.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Rehearing Denied Nov. 17, 2004.

      Billing, Cochran, Heath, Lyles. & Mauro and Janis Brustares Keyser, West Palm Beach, for petitioner.
    Downs & Associates and David W. Brill; Daniel Stuzin, Miami, for respondent.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   LEVY, Judge.

Liberty Mutual Fire Insurance Company (Liberty Mutual) Petitions for a Writ of Certiorari, seeking to quash an Order of the trial court which requires the production of portions of its claim file. We grant the Petition for Certiorari.

This case arises out of an underlying eviction proceeding brought by Robert S. Kaufman against two of his tenants. The tenants brought a counterclaim alleging negligent and intentional infliction of emotional distress. The eviction proceeding and the counterclaims were bifurcated for trial. During the eviction trial, on January 12,1990, Kaufman informed Liberty Mutual of the counterclaim litigation. Liberty agreed to defend Kaufman in the counterclaim under a reservation of rights. Specifically, Liberty informed Kaufman that it did not intend to cover the intentional claims in the counterclaim but that it would provide Kaufman a defense of the action and coverage for the unintentional acts. Accordingly, Liberty Mutual retained the services of the law firm of Ku-bicki Draper to represent Mr. Kaufman.

During the proceedings, the tenants’ counsel attempted to settle the matter for the policy limits. On June 25, 1990, the trial judge expressed in open court that the tenants would prevail but the amount of damages was uncertain. At the time, a $25,000.00 settlement offer from the tenants was on the table. Kaufman claims that counsel did not inform him of the pronouncement in open court, but mentioned the incident, by letter, to Liberty Mutual. Ultimately, on July 5, 1990, the trial court found in favor of the tenants on their counterclaim and awarded damages of $310,000.00. Liberty subsequently denied coverage for the compensatory and punitive damages awarded against Kaufman based on an opinion letter from Ku-bicki, Draper opining that the verdict was based on the intentional conduct.

In 1990, Kaufman filed the instant case against Liberty, seeking a declaratory decree of coverage, statutory coverage, damages for breach of contract, and damages for statutory bad faith. Kaufman also filed a separate malpractice action against Kubicki Draper. In 1995, the trial court granted Liberty’s motion for summary judgment as to the declaratory decree of coverage claim and the statutory coverage claim. The breach of contract and bad faith claims, which center on whether Liberty properly conveyed settlement demands to Kaufman and whether Liberty provided an adequate defense to Kaufman, remain.

During discovery, Kaufman requested that Liberty produce its entire claims file from the underlying litigation. Liberty objected to this request on the ground that the file was protected work product and attorney-client privilege. The matter was considered before a general master on two separate occasions. The general master found that each document in the claims file was protected, and recommended that no portion of the claims file should be produced. After Kaufman filed exceptions, the trial court appointed a special master to review the claims file in camera. The special master reviewed the claims file, and issued three reports. Liberty filed exceptions to the reports. The trial court ultimately entered an omnibus order requiring the production of portions of Liberty’s claims file. Liberty Mutual petitions this Court for a Writ of Certiorari, challenging portions of the trial court’s omnibus Order which order the production of several claims file documents. Specifically, Liberty suggests that because the trial court found that there was “no coverage” under the policy for the judgment against Kaufman, that Kaufman is precluded from compelling production of the claims file. Alternatively, Liberty suggests that the parties did not enjoy a fiduciary relationship but were in adversarial positions within months after Kaufman contacted Liberty.

ATTORNEY CLIENT PRIVILEGE

A liability insurer’s relationship with its insured is fiduciary in nature. Doe v. Allstate Ins. Co., 653 So.2d 371, 373-74 (Fla.1995); Eastern Air Lines, Inc. v. U.S. Aviation Underwriters, Inc., 716 So.2d 340, 343 (Fla. 3d DCA 1998); Allstate v. American So. Home Ins. Co., 680 So.2d 1114, 1116 (Fla. 1st DCA 1996). Thus, a liability insurer has a continuing duty to use the degree of care and diligence a person would exercise in the management of his or her own business when it undertakes to defend its insured. Doe v. Allstate, 653 So.2d at 373-74; see also Shuster v. S. Broward Hosp. Dist. Physicians’ Prof'l Liab. Ins. Trust, 591 So.2d 174 (Fla.1992); Fla. Farm Bureau Mut. Ins. Co. v. Rice, 393 So.2d 552 (Fla. 1st DCA 1980) review denied, 399 So.2d 1142 (Fla.1981). To this end, when an insurer accepts the defense obligations of its insured, certain interests of the insured and the insurer essentially merge. Such common interests bar, among other things, the attorney-client privilege from attaching to communications among the attorney, the insurer, and the insured. Allstate v. Am. S. Home Ins. Co., 680 So.2d at 1116; Doe v. Allstate, 653 So.2d at 373-74.

Section 90.502, Florida Statutes, which protects attorney client communications, includes several exceptions to the attorney-client privilege. Specific to the instant case, section 90.502(4), provides:

(4) There is no lawyer-client privilege under this section when:
* * *
(c) A communication is relevant to an issue of breach of duty by the lawyer to his client ..., arising from the lawyer-client relationship.
(e) A communication is relevant to a matter of common interest between two or more clients, ... if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients....

§ 90.502(4)(c) & (e), Fla. Stat. (2003). In the instant case, two claims remain against Liberty; Kaufman’s bad faith and breach of contract claims. Kaufman’s claims arise out of the allegation that Liberty failed to convey settlement demands and that Liberty failed to provide an adequate defense of the intentional claims raised against Kaufman. Thus, Kaufman seeks discovery of information relating to communications directly concerning his, and Liberty’s, interest.

Liberty’s reliance on Kujawa v. Manhattan Nat’l Life Ins. Co., 541 So.2d 1168 (Fla.1989) is misplaced. The Supreme Court in Kujawa specifically held that the bad faith cause of action did not abolish the attorney-client privilege or the work product immunity. However, the Court in Kujawa found that “an adversarial, not a fiduciary, relationship existed between the parties!,]” affording the insurance company protection against disclosure of its files created after the claim was made by the insured’s beneficiary. Kujawa, 541 So.2d at 1169.

In Kujaiva, Manhattan National (“the insurer”) issued a life insurance policy on John Kujawa’s life which named Penelope Kujawa as the beneficiary. John was killed in an airline crash, and the insurer initially declined to pay on the policy. Penelope sued on the policy and for bad faith processing of the claim. The insurer subsequently paid on the policy. Kujawa, 541 So.2d at 1169. During the pending suit, Penelope served the insurer with a request to produce all files pertaining to the handling of the claim. The District Court concluded, and the .Supreme Court affirmed, that no fiduciary relationship existed between the parties because the relationship was adversarial at its inception. Id.

By contrast, in the instant case, a fiduciary relationship existed between the parties whereby the parties shared common interests during the underlying proceedings. Liberty argues that the parties’ relationship became adversarial in February of 1990, after Liberty advised Kaufman that the policy did not provide coverage or indemnify him for intentional acts. While it is true that Liberty forwarded a letter to Kaufman, that letter was in line with Liberty’s fiduciary duty to advise its insured of his rights and limitations under the policy. In the instant case, much like Florida Sheriff's Self-Insurance Fund v. Escambia County, 585 So.2d 461, 463 (Fla. 1st DCA 1991), “[t]he relationship between [the parties] evolved from fiduciary to adversarial, or a combination of the two, with no clear line of demarcation separating them.”

Accordingly, in light of the fiduciary relationship during the trial, and Kaufman’s allegations against Liberty, any correspondence or communications between Liberty and Kubicki Draper concerning Kaufman and his case are not privileged and must be produced by Liberty. Fla. Sheriff’s Self-Insurance Fund v. Escambia County, 585 So.2d 461 (Fla. 1st DCA 1991). However, any communications between Liberty employees or agents and Liberty’s in-house counsel are protected as attorney/elient communications. See Progressive Am. Ins. Co. v. Lanier, 800 So.2d 689, 691 (Fla. 1st DCA 2001).

WORK PRODUCT

Florida also protects from discovery the work-product of a party, or documents prepared in anticipation of litigation. Fla. R. Civ. P. 1.280. Generally, an insurer’s claims and litigation files constitute work product and are protected from production. Fla. R. Civ. P. 1.280(b)(3) However, where there exists a fiduciary relationship between the parties, courts may compel production. Continental Cas. Co. v. Aqua Jet Filter Systems, Inc., 620 So.2d 1141 (Fla. 3d DCA 1993); see also Allstate v. Am. So. Home Ins., 680 So.2d at 1116.

Under the work-produet doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable. Fla. R. Civ. P. 1.280(b)(3). Moreover, the party objecting to the discovery of the information or document maintains the burden to show that the materials were compiled in response to some event which foreseeably could be made the basis of a claim against the insurer. Fireman’s Fund Ins. Co. v. Signorelli, 681 So.2d 720, 721 (Fla. 2d DCA 1996). In the insurance context, a document may be deemed to have been prepared in anticipation of coverage litigation if it was created after the insured tendered its claim for coverage; if it begins to appear that the insurer might deny coverage or reserve its rights; the insurer denies coverage; if coverage litigation appears imminent; or if coverage litigation commenced. Nevertheless, work-product may be discoverable if the party seeking discovery is able to show “substantial need” and the absence of the ability to obtain the substantial equivalent by other means. In Springer v. United Services Automobile Association, the Fifth District found that communications between an insured and his counsel that pertained to the defense of a claim of common interest to the insured and insurer are subject to discovery, even if their interests later became adverse. “[However,] ... communications concerning matters not pertaining to the defense or resolution of the liability case may be privileged.” Springer, 846 So.2d 1234, 1235 (Fla. 5th DCA 2003).

Liberty raised the work-product privilege with respect to several documents. Although the parties maintained a fiduciary relationship during the proceedings, it is clear that portions of the alleged acts against Kaufman were not covered by the Liberty policy. To this end, many of the documents in the claims file, including some trial notes of the underlying proceedings are protected from discovery. However, any notes, observations, or evaluations by representatives of Liberty concerning the legal work or performance by Kubicki Draper while representing Kaufman must be produced.

Accordingly, we grant the Petition for Writ of Certiorari and remand this matter with instructions that the trial court conduct an in camera review of the documents in dispute and compel production of documents consistent with this opinion.

Petition Granted.


author: ORFINGER, J.

text:
    Jason E. CATRON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2827.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 2004.
    Rehearing Denied Nov. 4, 2004.
    Jason E. Catron, Jasper, Pro Se.

      No Appearance for Appellee.
   ORFINGER, J.

Jason E. Catron appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Catron was convicted of a third degree felony (lewd and lascivious molestation), and sentenced to 12.1 months of incarceration followed by two years of probation. Catron contends that the imposition of probation following incarceration is illegal.

In denying Catron’s motion in the circuit court, the trial judge concluded that “the defendant’s motion makes no sense whatsoever; it’s totally without merit.” We agree. A probationary split sentence consisting of a period of confinement, none of which is suspended, followed by a period of probation, is a legitimate sentencing option in Florida. See Poore v. State, 531 So.2d 161, 164 (Fla.1988), superseded by statute on other grounds recognized in Crews v. State, 779 So.2d 492 (Fla. 2d DCA 2000); see also § 948.01, Fla. Stat. (2002).

AFFIRMED.

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


text:
    Richard Wayne COOK, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2736.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 2004.
    Rehearing Denied Nov. 4, 2004.
    Richard Wayne Cook, Jasper, Pro Se.
    No Appearance for Appellee.
   ORFINGER, J.

Richard Wayne Cook appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In 1999, Cook pled no contest to carrying a concealed weapon by a convicted felon, battery, and improper exhibition of a dangerous weapon, and was sentenced to an extended term in prison as an habitual felony offender. In his Rule 3.800(a) motion, Cook contends that his sentence is illegal because the razor knife used in the crimes does not fall within the statutory definition of a weapon, because of the length of the blade.

The trial court denied Cook’s motion, finding that the error raised is not apparent on the face of the record, and, therefore, is not cognizable in a Rule 3.800(a) motion. We agree. Cook is challenging his convictions, not his sentences, and such a claim cannot be asserted in a Rule 3.800(a) motion. See e.g., State v. Williams, 854 So.2d 215 (Fla. 1st DCA 2003), review denied, 869 So.2d 541 (Fla.2004); State v. Moten, 698 So.2d 1345 (Fla. 5th DCA 1997), review dismissed, 799 So.2d 218 (Fla.2001).

Finding no error in the trial court’s order, we affirm.

AFFIRMED.

SHARP, W. and PETERSON, JJ., concur.


author: SHAHOOD, J.

text:
    WCI COMMUNITIES, INC., a Delaware corporation, successor by merger to WCI Communities Limited Partnership, a Delaware limited partnership, Appellant, v. CITY OF CORAL SPRINGS, a Florida municipal corporation, Appellee.
    No. 4D03-1901.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.

      Alvin B. Davis, Thomas M. Karr and Heather L. Gatley of Steel Hector & Davis, LLP, Miami, for appellant.
    Michael T. Burke and Tamara M. Scrud-ders of Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A., Fort Laud-erdale, for appellee.
   SHAHOOD, J.

Appellant, WCI Communities, Inc. (WCI), a Delaware corporation, successor by merger to WCI Communities Limited Partnership, a Delaware limited partnership, appeals from Final Judgment entered in favor of appellee, City of Coral Springs (City).

WCI filed its initial complaint against the City seeking declaratory and injunctive relief. Thereafter, it filed a Supplemental Complaint asserting that the nine-month temporary moratorium enacted by the City on the processing of site plan applications for townhouse and multi-family development constituted procedural and substantive due process violations pursuant to 42 U.S.C. § 1983.

WCI claimed that the moratorium prevented WCI from using its multi-family parcels for multi-family residential development thereby preventing it from selling these parcels to others for such development. WCI alleged that these actions by the City disrupted and interfered with its business operations, harmed its goodwill and reputation and created uncertainty regarding its continued viability.

WCI alleged that during 1996 and 1997, WCI had a reasonable expectation of selling its multi-family properties to customers and that its properties were properly planned, zoned, and platted to meet all existing City requirements. It claimed that the City had knowledge that its moratorium would cause WCI damage. Based on allegations from the First Amended. Complaint, WCI alleged that the City knew that WCI projected sales of its mul-ti-family property in its financial plan necessary to meet its financial commitments to its lenders and, investors so as to avoid default of its loan obligations and that the City’s actions prevented WCI from meeting its financial commitments. Further, the City’s actions caused WCI to lose its ability to market and sell its multi-family parcels, and thus, lost “the time/ value of money it could have received by earlier sale” of its property.

WCI further alleged that the temporary moratorium effected a regulatory taking of its property requiring payment of just compensation. Specifically, WCI claimed that the regulations enacted by the City were unnecessary and had a negative impact upon its properties. Following a five-day non-jury trial, the trial court entered a detailed final judgment finding in favor of the City.

We hold the trial court did not err in its final judgment which found that that the city’s use of zoning in progress and its adoption of a temporary moratorium in the processing of multi-family development applications did not deprive WCI of any substantive due process rights or affect a temporary taking of WCI’s multi-family zoned parcels.

On the issue of substantive due process, courts have held that “[sjubstantive due process challenges are analyzed under the rational basis test; that is, a legislative act of the government will not be considered arbitrary and capricious if it has ‘a rational relationship with a legitimate general welfare concern.’ ” Gardens Country Club, Inc. v. Palm Beach County, 712 So.2d 398, 404 (Fla. 4th DCA 1998).

Under both substantive due process and equal protection, when the legislation being challenged does not target a protected class, the rational basis test is applied. See Restigouche, Inc. v. Jupiter, 59 F.3d 1208, 1214 n. 6 (11th Cir.1995); see also 219 S. Atl. Blvd., Inc. v. City of Ft. Lauderdale, Fla., 239 F.Supp.2d 1265, 1276 (S.D.Fla.2002). Substantive due process challenges to zoning regulations are analyzed under the rational basis test. See Restigouche, 59 F.3d at 1214. Under this test, a court gives great deference to economic and social legislation. See Gary v. City of Warner Robins, Ga., 311 F.3d 1334, 1339 (11th Cir.2002). The first step in determining whether legislation survives the rational basis test is identifying a legitimate government purpose which the governing body could have been pursuing. See Restigouche, 59 F.3d at 1214. The second step of the rational basis test asks whether a rational basis exists for the enacting government body to believe that the legislation would further the hypothesized purpose. See id. The proper inquiry is concerned with the existence of a conceivably rational basis, not whether that basis is actually considered by the legislative body. See id. The rational basis standard is highly deferential. See Gary, 311 F.3d at 1339.

A court should not set aside the determination of public officers in land use matters unless it is clear that their action has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense. See Smithfield Concerned Citizens for Fair Zoning v. Town of Smithfield, 907 F.2d 239, 243 (1st Cir.1990). The question is only whether a rational relationship exists between the ordinance and a conceivable legitimate governmental objective. See id. at 245. If the question is at least debatable, there is no substantive due process violation. See FM Props. Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir.1996).

In this case, the trial court, in its final judgment, set out the bases upon which the court must determine whether there was such a deprivation of rights. In its detailed judgment, the court determined that the stated purpose of Ordinance 97-112, establishing the moratorium on multi-family development, stated a clear, legitimate government purpose. The ordinance provided in pertinent part the following language:

Purpose: To enable the city to undertake a thorough analysis of the Comprehensive Plan and the residential development regulations for RC & RM zoning districts including, but not limited to the impact of said development on parkss. recreation and open space, the availability of infrastructure and accessibility of emergency and public service vehicular traffic and public safety and public facilities.
WHEREAS, the City Commission of the City of Coral Springs has noted the rapid development of multiple-family residential units and the consequential growing demands upon city services; and
WHEREAS, although the City Commission has incorporated numerous changes to the development regulations within the past few years which impact townhouse and multiple-family residential development, a comprehensive review is required to study the impact of townhouse and multiple-family development on transportation, public safety, adequacy of public facilities; recreation and open space, the accessibility for emergency and public service vehicular traf--fic, the adequacy of drainage facilities, and the impact on the availability of water and wastewater facilities; and
WHEREAS, the city requires time to review, consider, modify, process for adoption, and implement regulations pertaining the referenced zoning districts, and to evaluate the extent that the existing zoning laws are effectively implementing the comprehensive plan;....

The trial court held that based on the evidence adduced at trial, the City’s actions were based on its discovery that WCI was operating differently than its predecessor, Coral Ridge Properties, and that unlike site, plans submitted by Coral Ridge Properties, site, plans being submitted by WCI for multi-family parcels were at the very minimum of code requirements. In an effort to obtain better quality housing, the City began exploring regulatory action to replace what Coral Ridge Properties had previously done with enforcing deed restrictions. The court held that the temporary moratorium was an important land-use planning tool as a means of preserving the status quo during the planning process to ensure that the community’s problems were not exacerbated during the time it takes to formulate a regulatory scheme. As such, there was a rational logical nexus between the City’s conduct in adopting the regulations and the moratorium, and legitimate governmental objectives.

It is well-settled that permissible bases for land use restrictions include concern about the effect of the proposed development on traffic, on congestion, on surrounding property values, on demand for city services, and on other aspects of the general welfare. See Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1375 (11th Cir.1993). It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. See id.

In this case,' the City undertook a comprehensive review of its regulations, and during the moratorium period, enacted changes pertaining to multi-family development relating to setbacks, building length, parking, utilities, sidewalks, right-of-way width, landscaping and other concerns. The City was entitled to enact the moratorium as a land-use tool to promote effective planning and preserve the status quo during this change. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan ning Agency, 535 U.S. 302, 337, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (temporary moratoria are used widely among land-use planners to preserve the status quo while formulating a more permanent development strategy). By using this planning tool, the City prevented development inconsistent with its pending changes in development regulation. An emergency is not required to justify the use of this tool. Clearly, such a moratoria constituted a legitimate governmental purpose.

We affirm as to all other issues raised without further discussion.

AFFIRMED.

POLEN and MAY, JJ., concur.


author: PER CURIAM.

text:
    Harlan D. TERRY, Petitioner, v. BOARD OF TRUSTEES OF THE CITY PENSION FUND for Police Officers and Firefighters in the City of Pembroke Pines, Respondent.
    No. 4D04-2121.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Rehearing Denied Nov. 19, 2004.

      Richard A. Sicking, Coral Gables, for petitioner.
    No response required for respondent.
   PER CURIAM.

The petitioner seeks second-tier appellate review of the method used to calculate a set-off of his workers’ compensation settlement from his disability pension benefits. For the reasons stated below, this court is compelled to deny relief.

The facts of this case are fully set forth in Terry v. Board of Trustees of City Pension Fund, 854 So.2d 273 (Fla. 4th DCA 2003), and need not be repeated here. Our first review of this case required us to remand for the circuit court to consider the merits of Terry’s argument. Id. at 275. The circuit court thereafter addressed Terry’s contention that the method used by the Board of Trustees to calculate a set-off violated section 440.21(2), Florida Statutes. The circuit court disagreed and upheld the decision of the Board of Trustees.

Terry’s sole argument to the circuit court was the application, or misapplication, of Barragan v. City of Miami, 545 So.2d 252 (Fla.1989). Specifically, Terry complained the method employed by the pension board to set-off his workers’ compensation settlement from his disability pension effectively “wiped out” his settlement. Terry argued an alternative method should be employed.

Section 440.21(2), Florida Statutes, states “[a]n agreement by an employee to waive her or his right to compensation under this chapter is invalid.” This section has effectively been read to prevent employers from deducting workers’ compensation benefits from pension benefits. See Domutz v. So. Bell, 339 So.2d 636 (Fla.1976).

However, set-offs are permitted in certain circumstances. The Barragan court noted the “employer may not offset workers’ compensation payments against an employee’s pension benefits except to the extent that the total of the two exceeds the employee’s average monthly wage.” Id. at 255. As such, set-offs are permitted when the combination of workers’ compensation payments and pension benefits exceeds “the employee’s average monthly wage.” Id.

In the instant case, the record shows that Terry’s “average monthly wage,” as calculated under chapter 440, is $3,346.17. Terry’s pension payment is $2,794.26 per month and his workers’ compensation settlement pays $973.95 per month. Combined, Terry receives $3,768.21 per month, which exceeds his “average monthly wage.” Based on Bar-ragan, a set-off is appropriate to the extent the combined payments exceed the $3,346.17. See id.

Terry argues an alternative calculation is permissible, one that would compare the total payments with his “final monthly compensation” as calculated by his disability pension plan. The record shows Terry’s “final monthly compensation” to be $4,319.47, which, if applicable under Bar-ragan, does not exceed the total payment amount. If this figure were used, no set-off would be permitted under Barragan.

We are aware that the effect of Board’s set-off, as approved by the circuit court, may to a great extent “wipe out” the benefit of Terry’s workers’ compensation settlement. However, we are compelled, by the manner this case comes before us, to deny Terry the relief he seeks. When challenging a circuit court’s appellate decision, a petitioner, such as Terry, is afforded a limited window of review. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995); City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982) (determining whether “the circuit court afforded procedural due process and applied the correct law”). This court “should exercise [its] certiorari discretion only in these cases where there has been a ‘violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Martin County v. City of Stuart, 736 So.2d 1264, 1268 (Fla. 4th DCA 1999) (en banc) (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)).

In short, we are prevented from reviewing this case de novo and may reverse only if the lower court applied the incorrect law. A review of Barragan reveals no such error. The circuit court correctly applied the language used in Barragan, which requires a comparison between total payments and “average monthly wage.” The key word here is “wage” as this word has a specific meaning within chapter 440, distinct from “compensation.” Compare § 440.02(7) with § 440.02(28). Terry wants a comparison between the total payments and his final monthly “compensation.” Such a comparison is not warranted by the express language employed by the Barragan court. We cannot reverse, on second-tier review, based on the unsupported suggestion the supreme court inadvertently used “average monthly wage” when it meant “average monthly compensation.”

Based on the limited power of review afforded this court, and on the language used in Barragan, this court must deny certiorari relief.

FARMER, C.J., POLEN and STEVENSON, JJ., concur.


author: KLEIN, J.

text:
    Ronald ARDT, AIM Securities, Inc., and AIM Financial Advisors, Inc., Appellants, v. AMERICA’S SENIOR FINANCIAL SERVICES, INC., Appellee.
    No. 4D03-3716.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Rehearing Denied Nov. 23, 2004.

      Andrew S. Goldwyn of Paley & Goldwyn, P.L., Deerfield Beach, for appellants.
    Gary Bareus, Pembroke Pines, for ap-pellee.
   KLEIN, J.

Appellant defendants were served in Texas under section 48.181, Florida Statutes (2003), by substituted service on the Florida Secretary of State. After they failed to answer, a default judgment was entered, which they moved to set aside under rule 1.540(b), asserting that the judgment is void for insufficient service of process and lack of notice. We reverse the denial of their motion.

Plaintiff attempted to serve defendants through the Dallas County sheriff at one address and was unsuccessful. As it turned out, defendants had not occupied that address for a number of months. Without doing anything further, plaintiff alleged that the defendants were concealing their whereabouts and served the Florida Secretary of State under section 48.181. When the time expired in which to answer, plaintiff obtained a default judgment and, after being informed of the judgment, defendants moved to set aside the default asserting that none of them had received notice.

In their affidavit defendants stated that none of them had been located at the address at which the deputy had attempted to serve them, but they were available at a different Dallas address which would have been easily ascertainable. In addition, defendants pointed out that plaintiff had failed to comply with section 48.161 in that it had failed to file an affidavit of compliance with the statute, and had failed to file evidence of sending notice and a copy of process by certified mail. Valliappan v. Cruz, 871 So.2d 1035 (Fla. 4th DCA 2004).

Plaintiff did not assert in the trial court, nor has it asserted here, that it did comply with our substituted service statute. We accordingly reverse the judgment as it is void.

FARMER, C.J., and BERGER, WILLIAM J., Associate Judge, concur.


text:
    Laura Haydar LEVENTHAL, Appellant, v. Marvin LEVENTHAL, Appellee.
    No. 3D03-468.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2004.
    Rehearing Denied Nov. 10, 2004.

      John Elias, for appellant.
    Leinoff & Lemos, Coral Gables; and Cynthia L. Greene, Miami, for appellee.
    Before SCHWARTZ, C.J., and GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

In this dissolution of marriage case, the former wife Laura Haydar Leventhal appeals the trial court’s order in which the court adopted and ratified excerpts of a hearing held on the parties’ motions for rehearing, and the final judgment. We affirm the orders on appeal, but reverse the trial court’s denial of retroactive child support to the former wife because its denial constituted an abuse of discretion.

A trial court abuses its discretion when it fails to award retroactive child support from the date of the filing of a petition for dissolution of marriage where there is a need for child support and an ability to pay. See Krufal v. Jorgensen, 830 So.2d 228, 230 (Fla. 4th DCA 2002); Levi v. Levi 780 So.2d 261, 263 (Fla. 3rd DCA 2001); Bardin v. Dep’t of Rev., 720 So.2d 609, 611 (Fla. 1st DCA 1998). The record reflects that the parties’ minor child needed support and the former husband had the ability to pay at the time during which the former wife filed her counter-petition for dissolution of marriage. In her counter-petition, the former wife requested child support. She also requested child support in her subsequent motion for temporary relief. It is undisputed that the former wife was unemployed outside of the home during the parties’ long term marriage. The trial court found that the former husband had a gross annual income of $50,750.00.

We thus see no reason that would preclude an award of retroactive child support in favor of the former wife from the time of the filing of the counter-petition for dissolution of marriage. Therefore, we reverse the trial court’s denial of retroactive child support in its final judgment, and affirm the final judgment in all other respects. The order on the parties’ motions for rehearing is likewise affirmed.

Affirmed in part and reversed in part.


author: TORPY, J.

text:
    STATE of Florida, Appellant, v. Sonson JOLY, Appellee.
    No. 5D03-3974.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2004.
    Rehearing Denied Nov, 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellee.
   TORPY, J.

Appellant challenges the lower court’s order dismissing charges that Appellee violated his probation by failing to give truthful testimony, a disputed special condition of Appellee’s probation. The lower court determined that because this condition was not sufficiently orally pronounced at sentencing, it could not be enforced. We reverse and reinstate the charges.

Appellee pled guilty to conspiracy to traffic in more than 400 grams of cocaine, pursuant to a written plea agreement, signed by Appellee (under oath), his lawyer and the prosecutor. The plea agreement provided that Appellee would receive a prison sentence of 5 to 7 years, followed by 5 years of supervised probation with all standard conditions. Furthermore, the agreement expressly listed as a special probation condition that Appellee “shall testify truthfully when requested by the state, without the necessity of subpoena, in reference to any and all matters related to the facts and circumstances surrounding [Appellee’s] charges in this case.”

The plea and sentencing proceedings were combined. Upon inquiry by the sentencing judge, Appellee confirmed that he had read, understood and agreed to the plea agreement. The prosecutor informed the judge that “provid[ing] truthful testimony” would be a special condition of probation, and the written order contained that same probation condition. However, when the judge pronounced sentence, he orally stated in relevant part as follows:

Be sentenced to a period of six years department of corrections, give credit of 250 days. That’s to be followed by five years supervised probation. As a condition of the sentence, you’re to comply with the substantial assistance agreement, which is to testify truthfully. All the standard conditions, drug evaluation and/or treatment, if recommended, as a condition of the probation, drop urine samples and testing.

After Appellee allegedly gave untruthful testimony in connection with the prosecution of his co-conspirators, the instant probation violation charges were levied. The trial judge, who had not imposed the original sentence, upon review of the sentencing transcript, ruled that the oral pronouncement controlled over the written probation conditions. Furthermore, he concluded that the oral pronouncement failed to impose the “truthful testimony” requirement as a probation condition, but instead imposed it only as a condition of Appellee’s sentence. Based thereon, the lower court dismissed the charges, and this appeal timely followed. We conclude that dismissal of the charges was error.

At the outset, we disagree with the conclusion of the trial judge that the written order conflicted with the sentencing judge’s oral pronouncement. Because probation was a subpart of the overall sentence, the special probation condition was a condition of the “sentence.” That this was the intent of the sentencing judge (and fully understood by Appellee) is especially clear in this record, where Appellee expressly agreed in writing, under oath, to this condition, and the judge announced the condition after the prosecutor stated in open court, without objection, that the condition would be imposed as an agreed upon special probation condition.

Semantic distinctions aside, even assuming that a technical distinction between the oral pronouncement and the written order does exist, we still reach the same conclusion because the oral pronouncement of the special condition was not required.

Historically, a judge was required to orally pronounce special conditions of probation, and when the oral pronouncement conflicted with the written probation order, the oral pronouncement would control, irrespective of whether the written condition was otherwise objectionable. State v. Hart, 668 So.2d 589, 592 (Fla.1996). The rationale for this rule was grounded in procedural due process principles of notice and opportunity to be heard. Because written sentencing orders are not customarily provided to defendants until after court proceedings are concluded, defendants had no opportunity to interpose contemporaneous objections to such conditions unless they were orally announced during the sentencing proceeding. Id. The rule was different for general probation conditions, however, because defendants were deemed to have constructive notice of these requirements. Id.

This historic rule is apparently no longer viable, however, in light of Maddox v. State, 760 So.2d 89 (Fla.2000), a case not cited by either party to these proceedings or provided to the trial court. There, the court modified Hart, when it recognized that the reason for the different procedures used in imposing general and special probation conditions no longer obtains after the enactment of the latest version of Florida Rule of Criminal Procedure 3.800(b). Now, under rule 3.800(b), a defendant has the opportunity to interpose a substantive objection to probation conditions contained in the written order even if no contemporaneous objection is made at the sentencing proceeding. Therefore, procedural due process is satisfied without the need to orally pronounce otherwise proper special probation conditions. Id. at 105. However, when a defendant establishes that he did not have notice of the condition in time to file a rule 3.800(b) motion, the historic rule apparently still applies. Id. at 106. Nothing in this record demonstrates any excuse for failing to timely challenge the order.

Moreover, even assuming that the historic rule is still viable, we do not believe it to be applicable here. This is not a case where Appellee’s procedural due process rights were violated by the surprise imposition of a condition without notice or opportunity for objection. Appellee knew full well that “truthful testimony” was a probation condition, and he certainly had an opportunity to object when asked by the sentencing judge if he agreed to the terms of the written plea agreement.

REVERSED AND REMANDED.

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

      . This is not a case where the condition is allegedly illegal or in contravention of the plea agreement. Therefore, Appellee's only claim is the purported violation of procedural due process.

      . Ashley v. State, 850 So.2d 1265 (Fla.2003), upon which Appellee relies, is inapposite. Ashley involved a double jeopardy violation when the trial court resentenced Ashley to a more severe sentence. Moreover, nothing in Ashley manifested an intent by the court to overrule Maddox, a decision that the court did not mention. Although the Ashley court relied on Justice v. State, 674 So.2d 123 (Fla.1996), Justice was based on Hart, which the court modified in Maddox.


text:
    Vaughn A. HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1039.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    Rehearing Denied Nov. 10, 2004.

      Bennett H. Bruramer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Carpenter v. State, 785 So.2d 1182 (Fla.2001).


author: THOMPSON, J.

text:
    Frederick FRUMENTI, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3012.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.
    Rehearing Denied Nov. 10, 2004.
    Frederick Frumenti, Daytona Beach, pro se.
    No Appearance for Appellee.
   THOMPSON, J.

Frederick Frumenti appeals an order summarily denying his Rule 3.800(a) motion. We affirm.

Frumenti was sentenced for armed burglary of a dwelling, possession of a firearm by a convicted felon, grand theft of a firearm, and aggravated assault with a firearm. He was also designated a habitual felony offender pursuant to section 775.084, Florida Statutes. Frumenti claims in his motion that his habitual offender sentences are illegal under Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme Court held that factors which enhanced a defendant’s sentence from the presumptive sentencing guidelines must be decided by a jury. Id. at 2536. We conclude that Frumenti is not entitled to relief on this claim because Blakely merely applied Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Court ruled in Apprendi that: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. (emphasis supplied). Contrary to Fru-mentos position, habitual offender sentences are based solely on prior convictions. See § 775.084, Fla. Stat. Further, as this court stated in Wright v. State, 780 So.2d 216, 217 (Fla. 5th DCA 2001):

Nothing in Apprendi overrules the Florida Supreme Court’s holding in Eutsey v. State, 383 So.2d 219 (Fla.1980) that the determination that a defendant could be sentenced as an habitual felony offender was independent of the question of guilt in the underlying substantive offense and did not require the full panoply of rights afforded a defendant in the trial of the offense.

AFFIRMED.

PALMER and TORPY, JJ., concur.

      .Frumenti filed a notice of supplemental authority in the trial court, which the court treated as a Rule 3.800(a) motion since Fru-menti had nothing pending in the trial court at the time.

      . § 810.02(1), Fla. Stat.

      . § 790.23(3), Fla. Stat.

      . § 812.014(2)(c)3, Fla. Stat.

      . § 784.02 l(l)(a), Fla. Stat.


text:
    The STATE of Florida, Appellant, v. Jose RODRIGUEZ, Appellee.
    No. 3D03-639.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.
    Rehearing Denied Nov. 10, 2004.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellant.
    Craig J. Trocino, Miami, for appellee.
    Before GERSTEN, GODERICH, and GREEN, JJ.
   PER CURIAM.

The trial court’s finding that the State’s discovery violations prejudiced the defendant, Jose Rodriguez, in the preparation of his defense was not supported by the record. Therefore, the trial court abused its discretion by granting the defendant’s motion for discharge for violation of the speedy trial rule. State v. Guzman, 667 So.2d 989 (Fla. 3d DCA 1996); State v. Brown, 527 So.2d 209, 210 (Fla. 3d DCA), review denied, 534 So.2d 398 (Fla.1988); State v. Del Gaudio, 445 So.2d 605, 608 (Fla. 3d DCA), review denied, 453 So.2d 45 (Fla.1984).

Reversed.


text:
    Reginald BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2563.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
   PER CURIAM.

Affirmed without prejudice to any right Appellant may have to file a facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 seeking leave to withdraw his no contest pleas. Such a motion shall not be deemed successive.

Affirmed.

CASANUEVA, VILLANTI, and WALLACE, JJ., concur.


text:
    James L. HILL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D04-94.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2004.
    James L. Hill, Jr., Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

THOMPSON, PLEUS and ORFINGER, JJ., concur.


text:
    Zenona GLASNER-OPLUSTIL, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D04-297.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2004.
    Zenona Glasner-Oplustil, Winter Park, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

THOMPSON, PALMER and MONACO, JJ., concur.


text:
    Timothy D. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2483.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2004.
    Timothy D. Clark, Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

THOMPSON, PLEUS and ORFINGER, JJ., concur.


text:
    Adam DIRESTA, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2857.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2004.
    Adam Diresta, Zephyrhills, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Wilson v. State, 845 So.2d 142 (Fla.2003).

THOMPSON, PLEUS and ORFINGER, JJ., concur.


author: VILLANTI, Judge.

text:
    Jon L. FOERSTER, Appellant, v. Kelleen FOERSTER n/k/a Kelleen Winfree, Appellee.
    No. 2D03-5879.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2004.

      Julia A. Parker and Elizabeth A. Walch of The Parker Law Group, P.A., Sarasota, for Appellant.
    No appearance for Appellee.
   VILLANTI, Judge.

The circuit court dissolved the marriage of Jon and Kelleen Foerster on March 29, 2001. The final judgment, incorporating a settlement agreement, provided for shared parental responsibility. It awarded Mrs. Foerster primary physical custody of the children and provided Mr. Foerster visitation. In 2003, Mr. Foerster filed a motion for enforcement of the visitation provisions in the final judgment. While purporting to consider only the motion for enforcement, the trial court effectively modified the final judgment, restricting Mr. Foerster’s visitation rights. Because the trial court did not have authority to modify the final judgment, we reverse.

Mr. Foerster’s visitation rights in the final judgment depended on his successful completion of various conditions. Upon completing each condition, his visitation would be increased accordingly. Mr. Foerster would be permitted unsupervised telephonic visitation upon completion of a parenting class. The final judgment required Mr. Foerster to authorize his counselor, Michael Epstein, to provide records to a drug evaluator and then to submit to a drug evaluation. If the drug evaluation recommended outpatient treatment, Mr. Foerster would be allowed supervised visitation after he completed four months of treatment. If the recommendation was for inpatient treatment, he would have to complete inpatient treatment and four weeks of aftercare treatment before being allowed supervised visitation. The visitation would be supervised by the paternal grandmother, Sherrie Tillis. Finally, the final judgment permitted unsupervised visitation, in accordance with the standard visitation guidelines, if Mr. Foerster successfully completed the recommended drug treatment and showed a drug-free lifestyle for eight months.

Mr. Foerster completed a parenting class and submitted to a drug evaluation by Richard Campbell, a senior counselor with Tri County Human Services, Inc. Mr. Campbell recommended outpatient treatment. After completing four months of outpatient treatment, Mr. Foerster attempted to visit his children in accordance with the terms of the final judgment. Feeling that his former wife was hindering his attempts to reestablish relationships with his children, he filed a motion to enforce the visitation provisions of the final judgment.

The circuit court held a hearing on Mr. Foerster’s motion. After the hearing, it entered an order imposing new conditions on Mr. Foerster’s visitation rights. Like the final judgment, the order allowed telephonic visitation and required Mr. Foer-ster to authorize his counselor to provide his records to his drug evaluator. However, it limited his supervised visitation to one hour per week at a supervised visitation program center, rather than visitation in accordance with a standard schedule under the supervision of the paternal grandmother. The order also referred to appointment of a custody evaluator and required Mr. Foerster to again petition the court if he wanted unsupervised visitation.

Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below. Ksaibati v. Ksaibati, 824 So.2d 219, 221 (Fla. 2d DCA 2002) (citing Notarianni v. Notarianni, 622 So.2d 1144, 1145 (Fla. 2d DCA 1993), and Brady v. Jones, 491 So.2d 1272, 1273 (Fla. 2d DCA 1986)).

In this case, neither Mr. nor Mrs. Foerster had filed a petition for modification of visitation meeting the requirements of a pleading. Mr. Foerster filed a motion for enforcement of the existing visitation provisions. In response, Mrs. Foer-ster filed a motion for appointment of a guardian ad litem late on the day before the hearing. In one sentence of her motion, Mrs. Foerster alleged that there had been a substantial change in circumstances since the final judgment and claimed that telephonic visitation was having a negative effect on the children. However, her motion did not specifically ask for modification or satisfy the pleading and notice requirements. At the hearing, Mrs. Foerster’s attorney argued that there had been a substantial change in circumstances since the final judgment and asked the court to consider the best interests of the children. Mrs. Foerster’s attorney also suggested that the paternal grandmother should not be the supervisor. These suggestions did not satisfy the pleading or notice requirements. See Fisher v. Whiteside, 541 So.2d 1209, 1210-11 (Fla. 2d DCA 1988) (citing Scknicke v. Schnicke, 533 So.2d 337 (Fla. 5th DCA 1988)). Additionally, the issue of modification was not tried by the express or implied consent of both parties. See Brady, 491 So.2d at 1273. In fact, Mr. Foer-ster’s attorney specifically objected to testimony concerning whether the paternal grandmother was an appropriate supervisor, saying, “I’m going to object to this line of questioning. We’re here on a Motion to Enforce a Final Judgment, not a Motion to Modify it, not a Motion for Contempt.”

Without a petition for modification of visitation, the court could not modify the final judgment visitation provision, absent an emergency affecting the welfare of the children. See Loudermilk v. Loudermilk, 693 So.2d 666, 668 (Fla. 2d DCA 1997) (stating “such an order requires an emergency situation such as where a child is threatened with harm, or where the opposing party plans to improperly remove the child from the state”). There is no evidence of an emergency that would justify violating Mr. Foerster’s due process rights. The trial court stated in its order that it was ordering new provisions because of Mr. Foerster’s “history of substance abuse” and the need for a “gradual renewal of contact.” These issues were considered in the final judgment and' do not constitute emergency circumstances. Because there was no motion for modification satisfying the pleading requirement and no evidence of an emergency, the court was without jurisdiction to change the visitation provisions of the final judgment. See Purvis v. Carver, 303 So.2d 681, 681-82 (Fla. 4th DCA 1974).

In its order, the circuit court found that Mr. Foerster had complied with the parenting class requirement, based on his testimony that he had completed the parenting class required of all divorced parents with children and evidence of his certificate of completion. Therefore, the court correctly ordered unsupervised telephonic visitation. The court found that Mr. Foer-ster had not complied with the final judgment provision requiring him to release his records from counselor Epstein to his drug evaluator, based on Mr. Foerster’s admission. Therefore, the court correctly ordered Mr. Foerster to release the records within ten days of its order. The court should have next considered whether Mr. Foerster had completed the other conditions specified in the final judgment to receive supervised visitation. Mr. Foer-ster offered evidence that he had completed four pionths of outpatient treatment with Tri County Human Services, Inc. The court should have decided whether Mr. Foerster had in fact completed the requisite drug treatment. Upon finding compliance with the final judgment, the court should have awarded visitation under the supervision of the paternal grandmother. Instead, the trial court went beyond its authority, imposing more conditions on Mr. Foerster and restricting his visitation rights.

During the hearing, the trial court noted that its “only concern in this case [was] the best interest of the children ... [and whether it was] in the best interest of the children for Mr. Foerster to have supervised visitation ... regardless of what the final dissolution of — final judgment of dissolution of marriage says_” This observation was blatant error. In considering a motion for enforcement of a final judgment, the court’s chief concern is what the final judgment says. In light of the above, we reverse, reinstating the visitation provisions of the final judgment of dissolution and remanding the case to the trial court to decide whether Mr. Foerster has met the conditions for visitation imposed in the final judgment.

Reversed and remanded.

NORTHCUTT and KELLY, JJ., concur.


text:
    Jeronimo PANTOJA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2239.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Rehearing Denied Nov. 29, 2004.

      Steven Wisotsky of Zuckerman Spaeder LLP, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence for first degree premeditated murder. Appellant raises three issues: the sufficiency of the evidence to prove premeditation; the repeated references to gang membership and gang activity; and ineffective assistance of counsel for failure to object to the gang references. The facts of this case show that the murder occurred when appellant, angered by the victim throwing something at his car, gathered the members of his gang to fight the victim. After the victim was chased by the gang members, he was surrounded and beaten. When he was on his knees, appellant pulled out a gun, shot at the victim kneeling in front of him, missed, and then shot again, killing the victim. The first two issues raised in this appeal were not preserved by appropriate objection below. The claim of ineffectiveness of counsel is premature.

Affirmed.

WARNER, SHAHOOD and MAY, JJ., concur.


text:
    Nasedra K. LUMPKIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3753.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Nasedra K. Lumpkin, pro se.
    No appearance required for appellee.
   PER CURIAM.

Nasedra Lumpkin challenges the denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm without prejudice to his right to file a legally sufficient motion addressing his claim of entitlement to jail credit. See Trapkin v. State, 830 So.2d 172 (Fla. 4th DCA 2002); Toro v. State, 719 So.2d 947 (Fla. 4th DCA 1998); See also Gethers v. State, 838 So.2d 504 (Fla.2003); Daniels v. State, 491 So.2d 543 (Fla.1986).

STONE, WARNER and KLEIN, JJ., concur.


author: MONACO, J.

text:
    Thomas Ray RANDALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2326.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2004.
    Thomas Ray Randall, Sneads, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips and Elizabeth C. King, Assistant Attorneys General, Daytona Beach, for Appellee.
   MONACO, J.

Thomas Ray Randall appeals the summary denial by the trial court of his Rule 3.850 motion for post-conviction relief. In accordance with a plea bargain Mr. Randall pled no contest to two counts of aggravated assault with a deadly weapon, and was sentenced to concurrent five year prison terms. Although Mr. Randall raises five grounds alleging ineffective assistance of counsel in support of his appeal, only one has merit and requires further consideration.

Mr. Randall asserts that counsel allowed him to enter the pleas while he was under the influence of medication. The record reflects that there was some question about the mental status of the defendant, but that two mental health professionals had opined, and the trial court ruled, that he was sane at the time of the offenses, and competent to stand trial. He was, however, taking prescribed psychotropic medications for his mental disorders at the time of the entry of his plea. He alleges that he told his attorney prior to the plea hearing that he did not understand what was going on, and that he just wanted to go to sleep. He says further that the medications interfered with his ability to understand the nature and consequences of the plea, and that his attorney was aware of the confusion under which he was laboring. Finally, he says that his attorney told him just to agree with the judge during the plea colloquy.

In the course of the plea colloquy, Mr. Randall was never asked whether he was under the influence of any medications, despite his history of mental illness and psychiatric hospitalizations, and even though the mental health reports ordered by the trial court reflected that he was taking these medications. The colloquy itself reflects that Mr. Randall answered only yes or no to questions put to him by the trial judge, and did not otherwise engage in conversation with the court. We conclude that Mr. Randall states a facially sufficient claim.

In Doward v. State, 802 So.2d 518 (Fla. 5th DCA 2001), we held in somewhat similar circumstances that an evidentiary hearing was required because the defendant’s mental status at the time of the plea hearing was not conclusively refuted by the record. See also Rivera v. State, 746 So.2d 542 (Fla. 2d DCA 1999). The record in the present case likewise does not conclusively refute his claim. There was no inquiry during the plea hearing regarding Mr. Randall’s use of medications and the effect of them on his cognitive functions, and we cannot say from a review of the transcript of the hearing that his responses indicate that he was thinking clearly. Thus, Mr. Randall is entitled to an eviden-tiary hearing on this claim.

We have considered the other claims raised by Mr. Randall, and have determined that they are without merit. As to all other claims, therefore, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

SHARP, W„ and ORFINGER, JJ„ concur.


text:
    Claire WHIPPLE, Appellant, v. JSZ FINANCIAL COMPANY, INC., Appellee.
    Nos. 4D03-153, 4D03-3332, 4D03-3537.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Rehearing Denied Nov. 24, 2004.

      Michael A. Pfundstein of Tripp Scott, P.A., Fort Lauderdale, for appellant.
    J.H. Zidell of J.H. Zidell, P.A., Miami Beach, for appellee.
   SHAHOOD, J.

This is a consolidation of three appeals. In the first appeal, Claire Whipple (Whipple) appeals an adverse final judgment enforcing a default judgment entered against her in favor of JSZ Financial Company, Inc. (JSZ) by a Texas court. She also appeals a final judgment ordering her to pay costs to JSZ. The third appeal is by JSZ from an order denying its motion for attorney’s fees.

This case began on June 14, 1996 in Dallas County, Texas, when JSZ obtained a default judgment against Whipple in the amount of $18,566.45. JSZ subsequently recorded the judgment in Broward County, Florida, in October of that same year, and mailed notice to Whipple. In November, JSZ filed motions in the Broward County Circuit Court, seeking to enforce the judgment by having one of Whipple’s bank accounts garnished.

Whipple filed a motion to dissolve the writ of garnishment arguing, among other things, that the Texas judgment was void and of no force because she was not properly served in that action and was, therefore, not subject to the jurisdiction of the Texas court. She also filed a counterclaim against JSZ asserting the failure of service of process and the invalidity of the foreign judgment. In a supporting affidavit, Whipple stated that she first learned of the Texas action and resulting judgment when she was notified by her bank of the garnishment proceedings. The court denied Whipple’s motion for summary judgment on her counterclaim as well as JSZ’s motion to strike the counterclaim.

After JSZ obtained a Writ of Execution authorizing the seizure of Whipple’s personal property, namely her Mercedes Benz, she satisfied the judgment with a cashier’s check in the amount of $20,045.60, which included interest and the sheriffs cost. The court then granted JSZ’s motion to dismiss after filing satisfaction of judgment. The motion was first granted without prejudice and later with prejudice, with Whipple’s counterclaim being dismissed as well. This court reversed that order, holding that because the judgment was satisfied under the threat of levy of execution, the satisfaction was not voluntary and Whipple did not waive her rights to proceed with her challenge to the validity of the Texas judgment. Whipple v. JSZ Fin. Co., 717 So.2d 608, 609 (Fla. 4th DCA 1998).

On remand, following a hearing, the trial court entered final judgment in favor of JSZ, based on the following findings:

[T]he Dallas Court had jurisdiction over the Defendant and the Judgment it entered was valid. The Court finds good service when the method employed is reasonably calculated to put a party on notice. The Defendant had the indicia of residence in Texas. The Defendant admitted receiving mail at her Texas address that she chose not to open, but put in a box and brought to Florida. The burden is on the Defendant to show that the Texas Judgment is invalid, and this she has failed to do. The thirty-day time period to appeal the Texas Judgment has long expired.

Accordingly, the trial court entered final judgment in favor of JSZ, noting that the judgment had been previously satisfied. In addition, the court entered a judgment for costs against Whipple, ordering her to pay JSZ costs in the amount of $3,407.91, plus post-judgment interest. JSZ’s motion for attorney’s fees pursuant to a prior offer of judgment was denied. For the following reasons, we reverse both the final judgment and the judgment on costs against Whipple, and affirm the order denying JSZ’s motion for attorney’s fees.

In the trial court below, Whipple contested the validity of the final judgment of default on the ground that service of process in Texas was not properly effectuated. Prior to addressing the merits of this claim, we first address JSZ’s arguments that Whipple waived this issue by either failing to appeal the Texas judgment or failing to contest the default judgment when it was recorded in Florida. Neither argument has merit.

We are mindful of the fact that judgments of foreign courts are to be given full faith and credit of the law by courts in every jurisdiction. See Art. IV, § 1, U.S. Const. An exception to this requirement, however, occurs when the foreign court lacked either personal or subject matter jurisdiction. See In re Estate of O’Keefe, 833 So.2d 157, 160 (Fla. 2d DCA 2002).

The issue of whether a foreign court had jurisdiction is res judicata and not subject to collateral attack if it was previously addressed in the foreign court and the defendant had a full and fair opportunity to litigate the issue in the foreign court. See Baker v. Bennett, 633 So.2d 91 (Fla. 4th DCA 1994). If, however, the defendant did not have the opportunity to contest jurisdiction, he may raise the issue subsequently in a proceeding brought to enforce the judgment. See Wellington v. Dep’t of Revenue, 708 So.2d 1040 (Fla. 4th DCA 1998)(where foreign judgment was entered by default and defendant had no prior opportunity to answer or contest jurisdiction, he could litigate that issue in Florida court); accord Best Form, Inc. v. Richards Prods., Inc., 631 So.2d 1123, 1124 (Fla. 4th DCA 1994).

In this case, there is no dispute that the Texas judgment was entered against Whipple by default. Whipple argues that her failure to respond was because she was not properly served and therefore had no notice. The case of Archbold Health Services, Inc. v. Future Tech Business Systems, Inc., 659 So.2d 1204 (Fla. 3d DCA 1995), upon which JSZ relies, is distinguishable. In Archbold Health Services, the Third District Court of Appeal upheld a foreign default judgment where, although the defendant did not appear at the default hearing, the Georgia trial court considered the defendant’s jurisdictional arguments which had been made in a previously filed motion to dismiss the complaint. Id. at 1205. That is not the case here. It is undisputed that Whipple did not physically attend the default hearing in Texas and did not file any pleadings, arguments, evidence, or memo-randa which the trial court considered before entering the judgment. Thus, Whipple did not litigate the issue of the validity of the service of process either in person or otherwise.

JSZ’s second argument in support of waiver is that Whipple failed to object to the foreign judgment within thirty days after it was recorded in Florida; therefore, pursuant to section 55.509, Florida Statutes (1995), the issue has been waived. Section 55.509, “Stay of enforcement of foreign judgment,” states:

(1) If, within 30 days after the date the foreign judgment is recorded, the judgment debtor files an action contesting the jurisdiction of the court which entered the foreign judgment or the validity of the foreign judgment and records a lis pendens directed toward the foreign judgment, the court shall stay enforcement of the foreign judgment and the judgment lien upon the filing of the action by the judgment debtor.
(2) If the judgment debtor shows the circuit or county court any ground upon which enforcement of a judgment of any circuit or county court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

§ 55.509, Fla. Stat. (1995). This court has expressly held that the thirty-day time period applies only to the issuance of a stay of enforcement of the judgment and does not require that a collateral attack be instituted within thirty days or be forever barred. See Nichols v. Nichols, 613 So.2d 137, 138 (Fla. 4th DCA 1993)(section 55.509, Florida Statutes, means only that if the debtor does not collaterally attack the foreign judgment within thirty days, it operates as a lien and the judgment creditor may proceed to enforce it). Thus, based on the foregoing, neither of JSZ’s arguments supports a finding that Whipple waived her right to collaterally attack the foreign judgment.

The law of the state rendering the judgment governs the issue of the judgment’s validity. See Best Form, Inc., 631 So.2d at 1124 n. 1 (citation omitted). Texas requires strict compliance with the rules of procedure governing service of process. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (holding that a default judgment is void unless the record shows strict compliance with the rules governing issuance, service, and return of citation). Unless there has been strict compliance, a default judgment will not stand. See Faggett v. Hargrove, 921 S.W.2d 274, 276 (Tex.Ct.App.1995), overruled in part on other grounds by Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789 (Tex.Ct.App.1999) (en banc). There are no presumptions of valid issuance, service or return of citation when examining a default judgment. See Uvalde Country. Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985). “Jurisdiction over the defendant must affirmatively appear by a showing of due service of citation, independent of the recitals in the default judgment.” Kubovy v. Cintas Corp., No. 01-02-00521-CV, 2003 WL 21299938, *1 (Tex.Ct.App. Jun. 5, 2003)(citing Faggett, 921 S.W.2d at 276).

The Texas Rules of Civil Procedure allow-for notices to be served by individuals other than a sheriff or constable or other lawful official provided there is a written order of the court authorizing service by such person. See Tex.R. Civ. P. 103. Rule 107, Texas Rules of Civil Procedure, prescribes thé form of the Return of Service which is to be filed with the court. It requires the server to sign a verified endorsement stating the time and manner of service and containing a return receipt with the addressee’s signature. See Tex.R. Civ. P. 107.

In Brown v. Clark Cincinnati, Inc., No. 2-02-378-CV, 2003 WL 22147555 (Tex.Ct.App. Sept. 18, 2003), the defendant challenged the validity of the service on the ground that'there was no proof in the record to substantiate that the process server was authorized to serve process. The return of service in that case contained a sworn verification wherein the server stated that he executed the return, was over the age of eighteen, was not a party to the suit, and had “been authorized by the Denton County Courts to serve process for Denton County.” Id. at *5. The court held that “[b]ecause the return of service constitutes prima facie evidence of the facts asserted therein, we conclude that Wheeler was authorized by the Den-ton County courts to serve process in Den-ton County.” Id.

In this case, unlike in Brown, the process server did more than merely sign and submit a sworn statement verifying his authorization. He also submitted an Order Authorizing Individual to Serve Process. Unfortunately, the order indicated that the server’s authorization expired on December 31, 1995, and, thus, contradicted his sworn affidavit. While it may have been a voluntary act on the server’s part to submit the authorizing order, as JSZ argues, it actually served to refute the prima facie evidence of authorization provided by the affidavit and created a factual question to be resolved as to whether the process server was authorized to serve process on Whipple on February 5, 1996. Certainly JSZ did not raise the issue in court and Whipple was not present to challenge the service, so the default judgment is invalid on its face due to the failure to strictly comply with the rules of procedure.

JSZ argues that the process server merely inadvertently attached the wrong court order and points out that the return of service was later amended (albeit two years) and argues that this should correct the minor defect or technical insufficiency created by the process server’s initial error. This argument has no merit. The process server’s amended return of service was filed in the Texas trial court on November 4,1998, along with an affidavit and Order Authorizing Individual to Serve Process. The second Order Authorizing Individual to Serve Process indicated that the process server was signed on January 4, 1996 and indicated that the process server was authorized through December 31, 1996.

Rule 118, Texas Rules of Civil Procedure, states:

At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

See also TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 321 (Tex.Ct.App.2002) (Rule 118 allows for “liberal amendment of the return of service in order to show the true facts of service.”). Cases suggest that amendment after entry of the default judgment, while a case is pending in the appellate court, is insufficient to cure any error and confer personal jurisdiction. See Firman Leather Goods Corp. v. McDonald & Shaw, 217 S.W.2d 137, 139 (Tex.Civ.App.1948) (“It is to be observed that Rule 118 seems to provide some notice to parties adversely interested, for it says: ‘upon such notice * * * as it deems just’. This, it is thought, would not authorize a court to direct or sanction the amendment of a return to process after the judgment had become final, at another term, without some notice to the party adversely interested.”).

In Firman, the return of service did not comply with the rules and was not amended to show compliance until after entry of the default judgment and the filing of the writ of error in the court of appeal. Id. at 140. On these facts, the court held that the amendment could not be considered to defeat the defendant’s claim on appeal, reasoning:

It is fundamental, we think, that before a personal judgment is rendered against a defendant that the judgment roll should show personal service of the citation or an appearance by the defendant. At the time the judgment was rendered on November 4th there was no proof of personal service upon the appellant defendant.

Id.; see also Zaragoza v. De La Paz Morales, 616 S.W.2d 295, 296 (Tex.Civ.App.1981) (holding that after an appeal has been perfected, the trial court may not change the record that existed at the time the judgment was granted).

Although this case is not one in which Whipple filed an appeal that suspended proceedings below, Firman hpp'lies with greater force because these proceedings are even further removed from the Texas district court proceedings which resulted in the default judgment. Because of the potential for prejudice to Whipple, certainly a Texas court would not sanction allowing an amendment to the return of service two years after its filing and two years after entry of the default judgment. Thus, the foreign judgment is not entitled to full faith and credit in Florida because the trial court lacked personal jurisdiction over Whipple based on the invalid service of process and the default judgment is null and void.

Because the Texas court lacked personal jurisdiction over Whipple based on the invalid service of process, all subsequent proceedings are null and void, including the domestication of the judgment in Florida.

Because we are reversing the proceedings in Florida, we also reverse the costs judgment entered against Whipple in favor of JSZ. We affirm the trial court’s order denying JSZ attorney’s fees against Whipple.

AFFIRMED in part; REVERSED in part with directions to enter judgment in favor of Whipple.

STEVENSON and MAY, JJ, concur.