text:
    AMENDMENT TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC02-1574.
    Supreme Court of Florida.
    May 1, 2003.
    Honorable Raymond T. McNeal, Chair, Family Court Steering Committee, Ocala, FL, for Petitioner.
    Honorable Becky A. Titus, Circuit Court Judge, Twelfth Judicial Circuit, Sarasota, FL; Honorable Hugh E. Starnes, Circuit Court Judge, Twentieth Judicial Circuit, Ft. Myers, FL; Honorable Sandra Taylor, Circuit Court Judge, Sixteenth Judicial Circuit, Key West, FL; Honorable Kathleen F. Dekker, Circuit Court Judge, Second Judicial Circuit, Tallahassee, FL; Honorable Joseph P. Farina, Chief Judge, Eleventh Judicial Circuit, Miami, FL; Honorable David A. Demers, Chief Judge, Sixth Judicial Circuit, St. Petersburg, FL, and B. Elaine New, Court Counsel for the Sixth Judicial Circuit, St. Petersburg, FL; Honorable Thomas M. Gallen, Chief Judge, Twelfth Judicial Circuit, Braden-ton, FL; Honorable William L. Blackwell, Chief Judge, Twentieth Judicial Circuit, Punta Gorda, FL, and Honorable Hugh E. Starnes, Circuit Judge, Twentieth Judicial Circuit, Fort Myers, FL; Honorable Richard G. Payne, Chief Judge, Sixteenth Judicial Circuit, Key West, FL; Gregory Firestone, Ph.D., FLAFCC President, Florida Association of Family, Court and Community Professionals, Tampa, FL; Tiffany Carr, Executive Director, and Robin H. Thompson, Tallahassee, FL, on behalf of the Florida Coalition Against Domestic Violence (FCADV); Jennifer Smith on behalf of Timothy W. Barry, pro se, Orlando, FL; and Jerome Pikula, pro se, Miami, FL, Responding.
   PER CURIAM.

The Family Court Steering Committee (committee) has filed a petition with this Court seeking to amend on an emergency basis Florida Family Law Rule of Procedure 12.610, Injunctions for Domestic and Repeat Violence. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.130(a).

The committee’s charges for 2000-2002 included conducting “an assessment of how courts are handling domestic violence cases and developing] recommendations for model practices for handling these cases in a manner that helps ensure the safety of victims and children.” In re: Family Court Steering Committee, Fla. Admin. Order No. AOSC00-18 (July 13, 2000) (on file with Clerk, Fla. Sup.Ct.). Although certain aspects of this assessment are still under active consideration, the committee states that emergency consideration of the proposed amendments is necessary “to ensure safety and due process for victims, abusers and their children by providing clear, statewide standards for conducting domestic violence injunction hearings.”

The proposals were published in the October 15, 2002, edition of The Florida Bar News. Most comments received were in opposition to the proposed changes, specifically expressing concerns regarding whether assistance being provided by case management personnel who assist the judge with the processing of petitions for domestic violence injunctions would be prohibited under the amended rule. However, prior to oral argument in this case, a mediated agreement on the proposed amendments was worked out between the committee, acting through its chair, Judge Raymond T. McNeal, and those opposed to the amendment, acting through Twentieth Judicial Circuit Judge Hugh Starnes. All representatives of the circuits that had filed comments in opposition agreed with the mediated agreement. Robin Thompson, representing the Florida Coalition Against Domestic Violence (FCADV), objected to any change from the proposed rule that could compromise the fairness and safety of the court process for victims of domestic violence.

PROPOSED AMENDMENTS

The committee first proposes to amend rule 12.610(c)(1)(B), “Permanent Injunction,” to change the title of this subdivision to “Final Judgment of Injunction for Protection Against Repeat Violence.” The committee states that it is proposing this separate subdivision because the rest of its proposed changes are not relevant to repeat violence. Further, the committee proposes to amend this subdivision to delete the requirement that a full evidentiary hearing be conducted. As amended, the subdivision only provides that “a hearing” shall be held. The committee states that the qualifying terms “full evidentiary” appeared to cause confusion as to whether the rule required a formal presentation of evidence in instances where the respondent agreed to the rendering of an injunction.

The committee next proposes to add new subdivision (c)(1)(C), “Final Judgment of Injunction for Protection Against Domestic Violence,” to rule 12.610. This new subdivision requires that a hearing be held on the petition for injunction at which the court must make a finding as to whether domestic violence occurred or whether an imminent danger of domestic violence exists. New subdivision (c)(1)(C) provides that if the court determines an injunction will issue, the court shall also rule on the following issues: (1) whether the respondent will have contact with the petitioner, and if so, under what conditions; (2) exclusive use of the parties’ shared residence; (8) temporary custody of minor children; (4) whether temporary visitation will occur and whether it will be supervised; (5) whether temporary child support will be ordered; (6) whether temporary spousal support will be ordered; and (7) such other relief as the court deems necessary for the protection of the petitioner. The new commentary to subdivision (c)(1)(C) states that the judge must make these rulings after deciding to issue an injunction but before referring parties to mediation to ensure that issues involving safety are decided by the judge and are not left to the parties to resolve.

New subdivision (c)(1)(C) next provides that the court may, with the consent of the parties, refer the parties to mediation by a certified family mediator to attempt to resolve the details as to the above rulings. The commentary to the new subdivision provides that prior to ordering the parties to mediate, the court should consider risk factors in the case and the suitability of mediation. According to the commentary, the court should not refer the case to mediation if there exists (1) a degree of past violence, (2) a potential for future lethality, or (3) other factors that would compromise the mediation. The rule provides that mediation by a certified family mediator “shall be the only alternative dispute resolution process offered by the court.” Under the agreement entered into by Judges McNeal and Starnes, the new commentary also provides that court staff may engage in case management services:

In performing case management, court staff may interview the parties separately to identify and clarify their positions. Court staff may present this information to the court along with a proposed order for the court’s consideration in the hearing required by subdivision (b).

Finally, under new subdivision (c)(1)(C), the court shall review any agreement reached by the parties. If the court approves the agreement, it shall be incorporated into the final judgment. If no agreement is reached, the matters referred will be returned to the court for rulings. Regardless of whether issues are resolved in mediation, the new subdivision provides that a domestic violence injunction will be entered or extended the same day as the hearing on the petition for injunction commences.

ANALYSIS

We agree with and approve the amendments as well as the addition of the language that was agreed upon in the mediated agreement. We address only the portion of the amendment that generated the most controversy: the appropriate use of court staff to assist the court in performing its adjudicative functions.

The responsibilities placed on a judge hearing a petition for domestic violence injunction are awesome, with the safety of the victim being paramount. At the same time, the numbers of civil domestic violence petitions being filed each year and the growth in the filings are dramatic. For example, in 2001-2002 there were 60,-044 domestic violence civil filings and 20,-580 repeat violence filings statewide. Only ten years before in 1991-1992, there were 30,609 domestic violence filings and 9,235 repeat violence filings. In other words, the number of domestic violence civil filings has doubled in a ten-year period, and the number of repeat violence filings has more than doubled, no doubt as a result of increased understanding of the issue of domestic violence.

In 2001, this Court unanimously adopted the recommendations of the committee for a Model Family Court setting forth the necessary components and best practices for administering and adjudicating cases involving children and families. See In re Report of the Family Court Steering Committee, 794 So.2d 518 (Fla.2001). Included in the twelve elements identified as “fundamental to a model family court” we listed:

Case Management — Supervising, coordinating, directing and overseeing the process and progress of a case....
Domestic Violence — Ensuring that cases involving domestic violence are identified and managed in a manner that is organized, timely, and sensitive to the special dynamics involved in these cases.

Id. at 526-27. We unanimously endorsed each of the essential elements, explaining:

Without the necessary support services, the family court will be no more than a division of the circuit court that handles a specified class of cases, and the judicial system will be unable to effectively address the ever-increasing and complex needs of children and families — and the ever-increasing caseloads.

Id. at 527-28. Among the twelve Family Court Guiding Principles endorsed, the following pertain to the issues before us:

7. The court is responsible for managing its cases with due consideration of the needs of the family, the litigants, and the issues presented by the case.
8. There should be a means of differentiating among cases so that judicial resources are conserved and cases are diverted to non-judicial and quasi-judicial personnel for resolution, when appropriate and consistent with the ends of justice.
9. Trial courts must coordinate and maximize court resources and establish linkages with community resources.

Id. at 522.

We conclude that the proposed amendments to rule 12.610 serve the goals of preserving the integrity of domestic violence proceedings and the safety of the victims of domestic violence by ensuring that a judge is actively involved in reaching a final determination in the case, while affording courts the flexibility of utilizing court staff to assist in processing these cases in an efficient manner.

It is clear to us that without the assistance of well-trained staff, the judges assigned to hear domestic violence injunctions would be unable to perform their statutorily mandated responsibilities in a timely, fair, and effective manner. Further, considering the volume and varying nature of the domestic violence petitions, it is clear that no one process can fit all.

We note that although various circuit courts in the State of Florida have been utilizing court staff in the case management process for family cases, until now the circuits have had little guidance as to how such case management should be structured. The uniform procedures set forth in the proposed amendment and the commentary provide the needed guidance for judicial circuits as to the permissible and impermissible activities for court staff to engage in when assisting the court in managing its domestic violence cases. We conclude that the amendments proposed by the committee provide necessary guidelines for those circuits that are already utilizing case management procedures, as well as others that in the future may decide to use these procedures to efficiently, timely, and fairly adjudicate domestic violence cases. As these guidelines are implemented, the use of case management techniques will continue to evolve so that they more efficiently and effectively serve both petitioners and respondents in domestic violence proceedings.

In furtherance of this goal and in accord with the mediated agreement proposed by Judge McNeal and Judge Starnes, we request that the Domestic Violence Subcommittee of the Steering Committee on Families and Children in the Court (1) define appropriate case management techniques for domestic violence cases; and (2) recommend appropriate training for case managers in domestic violence.

We acknowledge the concern of the committee and FCADV that it is critical that the judicial system be aware of and sensitive to the power imbalance in most abusive relationships, thus requiring active judicial involvement and oversight. Utilizing court personnel will conserve judicial resources and at the same time, it will be the judge who ultimately considers the allegations raised and determines whether or not an injunction will issue. Thus, under the proposed amendment, the judge will remain actively and integrally involved in the injunction process, and will play the crucial role of ensuring the safety of the litigants and protecting the rights of the parties.

The Court wishes to express its sincerest gratitude to the members of the committee for their diligent and dedicated efforts in seeking to ensure safety and due process in domestic violence proceedings. Further, we thank all individuals who filed comments with this Court, especially those who participated in oral argument and provided the Court with additional valuable insight. Finally, we thank Dr. Gregory Firestone for assisting Judge Raymond T. McNeal and Judge Hugh Starnes in reaching a mediated agreement regarding the proposed rule. These efforts demonstrate that mediation and alternative dispute resolution may provide an extremely effective solution to a disputed issue.

Accordingly, we amend Florida Family Law Rule of Procedure 12.610 as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The commentaries are included for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall- become effective immediately.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 12.610. INJUNCTIONS FOR DOMESTIC AND REPEAT VIOLENCE

(a) Application. This rule shall apply only to temporary and permanent injunctions for protection against domestic violence and temporary and permanent injunctions for protection against repeat violence. All other injunctive relief sought in cases to which the Family Law Rules apply shall be governed by Florida Rule of Civil Procedure 1.610.

(b) Petitions.

(1) Requirements for Use.

(A) Domestic Violence. Any person may file a petition for an injunction for protection against domestic violence if they certify under oath that

(i) the party filing the injunction and the party against whom the injunction is sought are spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, or persons who have a child in common regardless of whether they have been married or have resided together at any time;

(ii) the party filing the petition was the victim of, or has reasonable cause to believe he or she is in imminent danger of becoming the victim of an assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death perpetrated by the party against whom the injunction is sought; and

(iii) the specific facts and circumstances upon the basis of which relief is sought are true.

(B) Repeat Violence. Any person may file a petition for an injunction for protection against repeat violence if they certify under oath that

(i) two incidents of violence, defined as any assault, battery, sexual battery, or stalking, one of which must have occurred within 6 months of the filing of the petition, have been committed by the person against whom the injunction is sought against the petitioner or the petitioner’s immediate family member; and

(ii) the specific facts and circumstances upon the basis of which relief is sought are true.

(2)Service of Petitions.

(A) Domestic Violence. Personal service by a law enforcement agency is required. The clerk of the court shall furnish a copy of the petition for an injunction for protection against domestic violence, financial affidavit (if support is sought), Uniform Child Custody Jurisdiction Act affidavit (if custody is sought), temporary injunction (if one has been entered), and notice of hearing to the appropriate sheriff or law enforcement agency of the county where the respondent resides or can be found for expeditious service of process.

(B) Repeat Violence. Personal service by a law enforcement agency is required. The clerk of the court shall furnish a copy of the petition for an injunction for protection against repeat violence, temporary injunction (if one has been entered), and notice of hearing to the appropriate sheriff or law enforcement agency of the county where the respondent resides or can be found for expeditious service of process.

(C) Additional Documents. Service of pleadings in cases .of domestic or repeat violence other than petitions, supplemental petitions, and orders granting injunctions shall be governed by rule 12.080, except that service of a motion to modify or vacate an injunction should be by notice that is reasonably calculated to apprise the nonmoving party of the pen-dency of the proceedings.

(3) Consideration by Court. Upon the filing of a petition, the court shall set a hearing to be held at the earliest possible time. A denial of a petition for an ex parte injunction shall be by written order noting the legal grounds for denial. When the only ground for denial is no appearance of an immediate and present danger of domestic violence, the court shall set a full hearing on the petition for injunction with notice at the earliest possible time. Nothing herein affects a petitioner’s right to promptly amend any petition, or otherwise be heard in person on any petition consistent with these rules.

(4) Forms.

(A) Provision of Forms. The clerk of the court or family or domestic/repeat violence intake personnel shall provide simplified forms, including instructions for completion, for any person whose circumstances meet the requirements of this rule and shall assist the petitioner in obtaining an injunction for protection against domestic or repeat violence as provided by law.

(B) Confidential Filing of Address. A petitioner’s address may be furnished to the court in a confidential filing separate from a petition or other form if, for safety reasons, a petitioner believes that the address should be concealed. The ultimate determination of a need for confidentiality must be made by the court as provided in Florida Rule of Judicial Administration 2.051.

(c) Orders of Injunction.

(1) Consideration by Court.

(A) Temporary Injunction. For the injunction for protection to be issued ex parte, it must appear to the court that an immediate and present danger of domestic or repeat violence exists. In an ex parte hearing for the purpose of obtaining an ex parte temporary injunction, the court may limit the evidence to the verified pleadings or affidavits for a determination of whether there is an imminent danger that the petitioner will become a victim of domestic or repeat violence. If the respondent appears at the hearing or has received reasonable notice of the hearing, the court may hold a hearing on the petition. If a verified petition and affidavit are amended, the court shall consider the amendments as if originally filed.

(B) Permanent Injunction. — Final Judgment of Injunction for Protection Against Repeat Violence. A full eviden-tiary hearing shall be conducted.

(C) Final Judgment of Injunction for Protection Against Domestic Violence. The court shall conduct a hearing and make a finding of whether domestic violence occurred or whether imminent danger of domestic violence exists. If the court determines that an injunction will be issued, the court shall also rule on the following:

(i) whether the respondent may have any contact with the petitioner, and if so, under what conditions;
(ii) exclusive use of the parties’ shared residence;
(iii) temporary custody of minor children;
(iv) whether temporary visitation will occur and whether it will be supervised;
(v) whether temporary child support will be ordered;
(vi) whether temporary spousal support will be ordered; and
(vii) such other relief as the court deems necessary for the protection of the petitioner.

The court, with the consent of the parties, may refer the parties to mediation by a certified family mediator to attempt to resolve the details as to the above rulings. This mediation shall be the only alternative dispute resolution process offered by the court. Any agreement reached by the parties through mediation shall be reviewed by the court and, if approved, incorporated into the final judgment. If no agreement is reached the matters referred shall be returned to the court for appropriate rulings. Regardless of whether all issues are resolved in mediation, an injunction for protection against domestic violence shall be entered or extended the same day as the hearing on the petition commences.

(2) Issuing of Injunction.

(A) Standardized Forms. The temporary and permanent injunction forms approved by the Florida Supreme Court for repeat and domestic violence injunctions shall be the forms used in the issuance of injunctions under chapters 741 and 784, Florida Statutes. Additional standard provisions, not inconsistent with the standardized portions of those forms, may be added to the special provisions section of the temporary and permanent injunction forms, or at the end of each section to which they apply, on the written approval of the chief judge of the circuit, and upon final review and written approval by the Chief Justice. Copies of such additional standard provisions, once approved by the Chief Justice, shall be sent to the chair of the Family Law Rules Committee of The Florida Bar, the chair of the Family Courts-Steering Committee Steering Committee on Families and Children in the Court, and the chair of The Governor’s Task Force on Domestic and Sexual Violence.

(B) Bond. No bond shall be required by the court for the entry of an injunction for protection against domestic or repeat violence. The clerk of the court shall provide the parties with sufficient certified copies of the order of injunction for service.

(3) Service of Injunctions.

(A) Temporary Injunction. A temporary injunction for protection against domestic or repeat violence must be personally served. When the respondent has been served previously with the temporary injunction and has failed to appear at the initial hearing on the temporary injunction, any subsequent pleadings seeking an extension of time may be served on the respondent by the clerk of the court by certified mail in lieu of personal service by a law enforcement officer. If the temporary injunction was issued after a hearing because the respondent was present at the hearing or had reasonable notice of the hearing, the injunction may be served in the manner provided for a permanent injunction.

(B) Permanent Injunction.

(i) Party Present at Hearing. The parties may acknowledge receipt of the permanent injunction for protection against domestic or repeat violence in writing on the face of the original order. If a party is present at the hearing and that party fails or refuses to acknowledge the receipt of a certified copy of the injunction, the clerk shall cause the order to be served by mailing certified copies of the injunction to the parties who were present at hearing at the last known address of each party. Service by mail is complete upon mailing. When an order is served pursuant to this subdivision, the clerk shall prepare a written certification to be placed in the court file specifying the time, date, and method of service and within 24 hours shall forward a copy of the injunction and the clerk’s affidavit of service to the sheriff with jurisdiction over the residence of the petitioner. This procedure applies to service of orders to modify or vacate injunctions for protection against domestic or repeat violence.

(ii) Party not Present at Hearing. Within 24 hours after the court issues, continues, modifies, or vacates an injunction for protection against domestic or repeat violence, the clerk shall forward a copy of the injunction to the sheriff with jurisdiction over the residence of the petitioner for service.

(4) Duration.

(A) Temporary Injunction. Any temporary injunction shall be effective for a fixed period not to exceed 15 days. A full hearing shall be set for a date no later than the date when the temporary injunction ceases to be effective. The court may grant a continuance of the temporary injunction and of the full hearing for good cause shown by any party, or upon its own motion for good cause, including failure to obtain service.

(B) Permanent Injunction. Any relief granted by an injunction for protection against domestic or repeat violence shall be granted for a fixed period or until further order of court. Such relief may be granted in addition to other civil and criminal remedies. Upon petition of the victim, the court may extend the injunction for successive periods or until further order of court. Broad discretion resides with the court to grant an extension after considering the circumstances. No specific allegations are required.

(5) Enforcement. The court may enforce violations of an injunction for protection against domestic or repeat violence in civil contempt proceedings, which are governed by rule 12.570, or in criminal contempt proceedings, which are governed by Florida Rule of Criminal Procedure 3.840, or, if the violation meets the statutory criteria, it may be prosecuted as a crime under Florida Statutes.

(6) Motion to Modify or Vacate Injunction. The petitioner or respondent may move the court to modify or vacate an injunction at any time. Service of a motion to modify or vacate injunctions shall be governed by subdivision 12.610(b)(2) of this rule. However, for service of a motion to modify to be sufficient if a party is not represented by an attorney, service must be in accord with rule 12.070, or in the alternative, there must be filed in the record proof of receipt of this motion by the nonmoving party personally.

(7) Forms. The clerk of the court or family or domestic/repeat violence intake personnel shall provide simplified forms including instructions for completion, for the persons whose circumstances meet the requirements of this rule and shall assist in the preparation of the affidavit in support of the violation of an order of injunction for protection against domestic or repeat violence.

Commentary

2003 Amendment. This rule was amended to emphasize the importance of judicial involvement in resolving injunction for protection against domestic violence cases and to establish protections if mediation is used. In performing case management, court staff may interview the parties separately to identify and clarify their positions. Court staff may present this information to the court along with a proposed order for the court’s consideration in the hearing required by subdivision (b). The first sentence of (c)(1)(C) contemplates that an injunction will not be entered unless there is a finding that domestic violence occurred or that there is imminent danger of domestic violence. Subdivision (c)(1)(C) also enumerates certain rulings that a judge must make after deciding to issue an injunction and before referring parties to mediation. This is intended to ensure that issues involving safety are decided by the judge and not left to the parties to resolve. The list is not meant to be exhaustive, as indicated by subdivision (c)(l)(C)(vii), which provides for “other relief,” such as retrieval of personal property and referrals to batterers’ intervention programs. The prohibition against use of any “alternative dispute resolution” other than mediation is intended to preclude any court-based process that encourages or facilitates, through mediation or negotiation, agreement as to one dr more issues, but does not preclude the parties through their attorneys from presenting agreements to the court. All agreements must be consistent with this rule regarding findings. Prior to ordering the parties to mediate, the court should consider risk factors in the case and the suitability of the case for mediation. The court should not refer the case to mediation if there has been a high degree of past violence, a potential for future lethality exists, or there are other factors which would compromise the mediation process.

1995 Adoption. A cause of action for an injunction for protection against domestic violence and repeat violence has been created by section 741.30, Florida Statutes (Supp.1994) (modified by chapter 95-195, Laws of Florida), and section 784.046, Florida Statutes (Supp.1994), respectively. This rule implements those provisions and is intended to be consistent with the procedures set out in those provisions except as indicated in this commentary. To the extent a domestic or repeat violence matter becomes criminal or is to be enforced by direct or indirect criminal contempt, the appropriate Florida Rules of Criminal Procedure will apply.

The facts and circumstances to be alleged under subdivision 12.610(b)(1)(A) include those set forth in Florida Supreme Court Approved Family Law Form 12.980(b). An injunction for protection against domestic or repeat violence may be sought whether or not any other cause of action is currently pending between the parties. However, the pendency of any such cause of action must be alleged in the petition. The relief the court may grant in a temporary or permanent injunction against domestic violence is set forth in section 741.30(6).

The facts and circumstances to be alleged under subdivision (b)(1)(B) include those set forth in Florida Supreme Court Approved Family Law Form 12.980(d). The relief the court may grant in a temporary or permanent injunction against repeat violence is set forth in section 784.046(7), Florida Statutes.

Subdivision (b)(4) expands sections 741.30(2)(c)l and (2)(c)2, Florida Statutes, to provide that the responsibility to assist the petitioner may be assigned not only to the clerk of court but also to the appropriate intake unit of the court. Florida Supreme Court Approved Family Law Form 12.980(b) provides the form for a petition for injunction against domestic violence. If the custody of a child is at issue, a Uniform Child Custody Jurisdiction Act affidavit must be provided and completed in conformity with Florida Supreme Court Approved Family Law Form 12.902(d). If alimony or child support is sought a Financial Affidavit must be provided and completed in conformity with Florida Family Law Rules of Procedure Form 12.902(b) or 12.902(c).

Subdivision (c)(1)(A) expands chapter 95-195, Laws of Florida, and section 784.046(6)(a), Florida Statutes, to make the limitation of evidence presented at an ex parte hearing permissive rather than mandatory given the due process concerns raised by the statutory restrictions on the taking of evidence. Unlike traditional injunctions, under subdivision (c)(2), no bond will be required for the issuance of injunctions for protection against domestic or repeat violence. This provision is consistent with the statutes except that, unlike the statutes, it does not set a precise number of copies to be provided for service.

Subdivision (c)(3)(A) makes the procedure for service of a temporary order of injunction for protection against domestic violence and repeat violence consistent. This is intended to replace the differing requirements contained in sections 741.30(7)(b)3 and (7)(c)l and 784.046(8)(a)l, Florida Statutes.

Subdivision (c)(3)(B) makes the procedure for service of a permanent order of injunction for protection against domestic violence and repeat violence consistent. This is intended to replace the differing requirements contained in sections 741.30(7)(a)3 and (7)(c)l and 784.046(8)(c)l, Florida Statutes, and to specifically clarify that service of the permanent injunction by mail is only effective upon a party who is present at the hearing which resulted in the issuance of the injunction.

Subdivision (c)(4)(A) restates sections 741.30(5)(c) and 784.046(6)(c), Florida Statutes, with some expansion. This subdivision allows the court upon its own motion to extend the protection of the temporary injunction for protection against domestic or repeat violence for good cause shown, which shall include, but not be limited to, failure to obtain service. This subdivision also makes the procedures in cases of domestic and repeat violence identical, resolving the inconsistencies in the statutes.

Subdivision (c)(4)(B) makes the procedures in cases of domestic and repeat violence identical, resolving inconsistencies in the statutes. As stated in section 741.30(l)(e), Florida Statutes, in the event a subsequent cause of action is filed under chapter 61, Florida Statutes, any orders entered therein shall take precedence over any inconsistent provisions of an injunction for protection against domestic violence which addresses matters governed by chapter 61, Florida Statutes.

Subdivision (c)(5) implements a number of statutes governing enforcement of injunctions against domestic or repeat violence. It is intended by these rules that procedures in cases of domestic and repeat violence be identical to resolve inconsistencies in the statutes. As such, the proee-dures set out in section 741.31(1), Florida Statutes, are to be followed for violations of injunctions for protection of both domestic and repeat violence. Pursuant to that statute, the petitioner may contact the clerk of the circuit court of the county in which the violation is alleged to have occurred to obtain information regarding enforcement.

Subdivision (c)(7) expands sections 741.30(2)(c)l and (2)(c)2, Florida Statutes, to provide that the responsibility to assist a petitioner may not only be assigned to the clerk of court but also to the appropriate intake unit of the court. This subdivision makes the procedures in cases of domestic and cases of repeat violence identical to resolve inconsistencies-in the statutes.

COMMITTEE NOTE

1997 Amendment. This change mandates use of the injunction forms provided with these rules to give law enforcement a standardized form to assist in enforcement of injunctions. In order to address local concerns, circuits may add special provisions not inconsistent with the mandatory portions.

      .The Family Court Steering Committee’s term expired June 30, 2002. By Administrative Order, Chief Justice Anstead merged two Supreme Court committees, the Family Court Steering Committee and the Children’s Court Improvement Committee, into the Steering Committee on Families and Children in the Court with a two-year term through June 30, 2004. See In re: Steering Committee on Families and Children in the Court, Fla. Admin. Order No. AOSC02-31 (Sept. 27, 2002) (on file with Clerk, Fla. Sup.Ct.). Nevertheless, because the petition was filed during the term of the former Family Court Steering Committee and its chair, Judge Raymond T. McNeal, any reference to the "committee” refers to the former Family Court Steering Committee. However, we have amended Florida Family Law Rule of Procedure 12.610(c)(2)(A) to reflect the change of committee.

      . The comments in opposition came primarily from judges in circuits that utilize case management procedures; specifically, the Chief Judges of the Sixth Circuit, the Eleventh Circuit, the Twelfth Circuit, the Sixteenth Circuit, and the Twentieth Circuit, and Kathleen F. Dekker, Circuit Judge of the Second Judicial Circuit.

      . However, the mediated agreement notes that Elaine New, Court Counsel for the Sixth Judicial Circuit Court, represented that although the Sixth Judicial Circuit Court would not abandon the position stated in its comment, it did not object to adding the proposed language to the commentary.

      . See Fla. R. Fam. P. 12.610(b)(3) ("Upon the filing of a petition, the court shall set a hearing to be held at the earliest possible time.”).

      . This data is derived from the Summary Reporting System (SRS) developed pursuant to section 25.075, Florida Statutes (2002), to provide the Office of State Courts Administrator (OSCA) with data to assist the Supreme Court in its role of management and oversight of the court system.

      . Over the past two decades, all three branches of government have recognized the problem of domestic violence and have taken affirmative steps to address this issue. In Weiand v. State, 732 So.2d 1044 (Fla.1999), we observed:
      Developments in all three branches of government since [1982] reflect the public’s concern regarding the plight of victims of domestic violence. For example, ... the executive branch has established a task force on domestic violence, whose purpose is the issuance of reports and recommendations which document "the extent of our awareness, and the responsiveness of our resources to battered women and their families.”
      Since [1982] the Legislature has enacted numerous laws in response to the plight of the victims of domestic violence.... [T]he provisions relating to domestic violence injunctions have been substantially revised. The injunctive relief that the trial court can now grant includes awarding the petitioner the exclusive use and possession of the dwelling the parties share. See § 741.30(6)(a)2., Fla. Stat. (1997); ch. 84-343, § 10, at 1989, Laws of Florida. The legislature has made it illegal for any person under a final domestic injunction to possess a weapon. See § 741.30(6)(f), Fla. Stat. (1998). Law enforcement officers investigating alleged incidents of domestic violence are now required to notify the victim about the various resources of protection and the steps to take in pursuing prosecution. See § 741.29(1), Fla. Stat. (1997); ch. 84-343, § 12, at 1991, Laws of Fla.
      Likewise, since [1982], the judiciary has focused judicial resources on the plight of victims of spousal abuse.... To further the goal of proper judicial response to incidents of domestic violence, this Court has been active in providing educational opportunities for judges throughout the state, and circuit and county court judges now have training available specifically addressing domestic violence and its related issues.

        Id. at 1055-56 (footnotes and citations omitted).

      . We note that although the mediated agreement contained the recommendation that the Court appoint a new committee consisting of representatives and individuals from a wide variety of employment and experiential backgrounds, we conclude that the Domestic Violence Subcommittee is well-suited to accomplish the tasks we have outlined above. Nevertheless, the subcommittee may wish to seek input from any of the individuals or groups listed in the mediated agreement.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Lisa Marlae Marie Anne JOHNSON, Appellant, v. Florence A. JOHNSON, Marlae Eileen Johnson, Heather Rosanna Johnson, and William A. Johnson, Appellees.
    No. 2D01-4037.
    District Court of Appeal of Florida, Second District.
    March 7, 2003.
    Rehearing denied May 23, 2003.
    A.J. Musial, Jr., of A.J. Musial, Jr., .P.A., Tampa, for Appellant.
    R. Craig Harrison of Lyons, Beaudry & Harrison, P.A., Sarasota, for Appellee Florence A. Johnson.
    No appearance for Appellees, Marlae Eileen Johnson, Heather Rosanna Johnson, and William A. Johnson.
   STRINGER, Judge.

Lisa Johnson challenges a partial summary judgment entered in favor of her mother-in-law, Florence Johnson, in this action to quiet title on certain real property located in Sarasota County, Florida. Because the record in this case gives rise to genuine issues of material fact with regard to Florence’s interest in the property, we find that the circuit court granted summary judgment prematurely. We therefore reverse in part.

Background

Lisa, Marlae, Heather, and William Johnson (collectively the Johnsons) were named defendants in Florence’s complaint to quiet title. The property in dispute was acquired by Florence’s late husband, Arthur Johnson, in 1971. Lisa contends that she and her husband, William, paid the consideration for the property though title remained in Arthur’s name. Lisa and William also claim to have paid the property taxes and insurance for the property since 1971. According to affidavits in the record, Arthur agreed to hold title to the property for the benefit of his minor grandchildren, Marlae and Heather Johnson, Lisa and William’s daughters. Arthur died in November 1989, and Florence inherited his entire estate, including the property in dispute.

The record indicates that in 1992 Florence executed an irrevocable trust agreement with the intention of transferring the subject property into a trust for the benefit of Marlae and Heather. Florence and William are named trustees in the trust agreement, and Lisa is named standby trustee. The trust agreement states that the “Grantor, [Florence Johnson], in consideration of the premises and the covenants herein contained, has delivered to the Trustees the property described in Schedule A attached hereto, receipt of which is acknowledged.” Lisa contends that as part of, and in consideration for, the trust agreement, she and William transferred to Florence their interest in other real property unrelated to this action. Schedule A lists three pieces of real estate purportedly subject to the trust agreement. An affidavit in the record indicates that when Florence executed the trust agreement, she also executed deeds, presumably transferring real property identified in schedule A into the trust. However, for reasons which are unclear, these deeds were never recorded.

Two years after executing the trust agreement, Florence executed and recorded a document purporting to invalidate it. This document, entitled “Invalidity of Trust,” states that the trust is invalid because the trust agreement refers to property listed in a schedule A, but no such schedule A was attached to the agreement. However, we note that a schedule A accompanies the trust agreement contained in the record on appeal.

After it became evident that Florence intended to avoid and invalidate the trust agreement, Lisa executed and recorded a “Deed of Realty in Trust” purporting to transfer the subject property from Florence to Lisa as trustee. This deed, which references the 1992 trust agreement, identifies Florence as grantor but bears only Lisa’s signature.

Procedural History

Florence’s complaint asserted an action to quiet title in count one and sought damages for slander of title in count two. When the Johnsons failed to answer her complaint or to file any paper in the action, Florence obtained clerk’s defaults against Heather and Lisa. After entry of the clerk’s defaults, a guardian ad litem was appointed to represent Marlae and Heather. The guardian ad litem filed a motion to enlarge the time to respond to the complaint and later filed an answer. The Johnsons moved to have the defaults set aside and filed supporting affidavits. These affidavits set forth facts intended to establish excusable neglect and also allege that the Johnsons have substantial defenses and a counterclaim against Florence based on the 1992 irrevocable trust agreement. The trial court never ruled on the motion to set aside the defaults.

After the guardian ad litem filed an answer on behalf of the minor children, Florence moved for summary judgment arguing that there were no genuine issues of material fact as to her status as fee simple owner. In support of her motion, Florence filed the warranty deed by which her late husband, Arthur, obtained title to the property as well as his will naming her as sole beneficiary. A certificate of distribution signed by the personal representative of Arthur’s estate was also filed indicating that the subject property was distributed to Florence in probate proceedings.

William appeared at the summary judgment hearing requesting additional time to conduct discovery and to depose James C. Fetterman, the attorney who drafted the irrevocable trust on Florence’s behalf. He argued that Attorney Fetterman was a key player whose testimony was essential to any determination concerning Florence’s interest in the subject property. William presented the court with the affidavit of Attorney Fetterman confirming that he had drafted the irrevocable trust agreement and that accompanying deeds were executed at the same time. Attorney Fet-terman’s affidavit also states that Florence left his office with the deeds in her possession, indicating that she would get them recorded, but the deeds were never recorded.

The trial court granted Florence’s motion for summary judgment, finding that Florence did not hold a trustee’s interest in the property but instead held title to the entire fee by virtue of the devise in her late husband’s will. The court’s order granting summary judgment canceled the “Deed of Realty in Trust” executed by Lisa and declared it null and void. Moreover, the order enjoins the Johnsons from asserting any adverse claim to the subject property, effectively leaving Florence free to sell it to third parties pursuant to a pending real estate contract.

Discussion

Summary judgment is only proper when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 180 (Fla.2000). This court reviews the order granting Florence’s motion for summary judgment de novo. Id. at ISO-131. “A summary judgment should not be entered until facts have been sufficiently developed to enable the court to be reasonably certain that there is no genuine issue of material fact.” Singer v. Star, 510 So.2d 637, 639 (Fla. 4th DCA 1987). Summary judgment is premature where there has been insufficient time to conduct discovery. Id.

The circuit court properly granted summary judgment as to the validity of the “Deed of Realty in Trust” because Lisa clearly had no legal interest or authority in the property which would authorize such a transfer. We therefore affirm that portion of the order which invalidated that document. Nevertheless, we conclude that the court entered summary judgment prematurely on this record because the facts were not sufficiently developed to allow the court to conclude that no genuine issues of material fact existed as to Florence’s interest in the subject property. Attorney Fetterman’s affidavit, along with affidavits filed by the Johnsons, give rise to genuine issues of material fact concerning Florence’s status as fee simple owner of the property versus her status as trustee. The “Invalidity of Trust,” which was attached to Florence’s complaint, also places this issue in dispute. In this document, Florence states that the trust agreement is invalid because there is no schedule A attached to it describing the lands in trust. However, the copy of schedule A attached to the trust agreement in the record disputes this contention. The irrevocable trust agreement declares that the property listed in schedule A was delivered to Florence as trustee. This declaration of delivery may have been effective on its own to create a trust in the property described in schedule A despite the absence of an accompanying deed.

We now consider Lisa’s argument with respect to the circuit court’s failure to rule on the motion to set aside the clerk’s defaults.

Florence did not move for entry of a default judgment after the clerk’s defaults were entered against Lisa and Heather, but instead filed a motion for summary judgment against all named defendants. Perhaps she realized that a default judgment could not be entered against the minor defendants named in the complaint without an appearance by a guardian or a guardian ad litem. See Fla. R. Civ. P. 1.500(e). In any event, the court was reminded of the pending motion to set aside the clerk’s defaults at the summary judgment hearing but nevertheless failed to rule on the motion before entering summary judgment in favor of Florence.

On remand, the court shall rule on the motion to set aside the defaults, and if the motion is granted, the defaulted parties should be allowed to proceed. See Fla. R. Civ. P. 1.500(a)(d), 1.540(b). In ruling on the motion, the court should be guided by case law indicating that clerks’ defaults may be set aside when the moving party demonstrates excusable neglect, a meritorious defense, and due diligence in seeking relief. Due consideration shall also be given to public policy favoring liberality in setting aside defaults so that suits may be decided on their merits. Coquina Beach Club Condo. Ass’n v. Wagner, 813 So.2d 1061, 1063 (Fla. 2d DCA 2002) (citing Lindell Motors, Inc. v. Morgan, 727 So.2d 1112, 1113 (Fla. 2d DCA 1999)).

Reversed in part, affirmed in part, and remanded for further proceedings.

ALTENBERND and WHATLEY, JJ., Concur.

      . Only Lisa Johnson has appeared in this appeal.

      . The order granting Florence’s motion for summary judgment does not dispose of count two. We have jurisdiction. See Fla. R.App. P. 9.130(3)(C)(ii).

      .It is unclear why Florence did not also seek defaults against Marlae and William.

      . See § 689.05, Fla. Stat. (1991); Brevard County v. Ramsey, 658 So.2d 1190, 1194 (Fla. 5th DCA 1995) ("To prove a trust created under section 689.05, it is not necessary that the writing be a deed ... [a]ll that is necessary is 'some writing’ which is signed and which manifests an intent to create a trust in the subject land by those having appropriate ownership interests.”).

      . We are uncertain what effect the defaults had since the guardian ad litem was allowed to proceed and answered the complaint on behalf of the minor children after the defaults were entered and since Florence moved for summary judgment against even the defaulted parties.


author: CASANUEVA, Judge.

text:
    Jeremy Billy VARGAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2810.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.
    Rehearing Denied May 6, 2003.

      James Marion Moorman, Public Defender, and Steven Seliger, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Jeremy Billy Vargas appeals from his conviction and sentence for the first-degree premeditated murder of his wife, Theresa, raising two issues that deal with the sufficiency of the evidence. He argues first, that the State failed to present sufficient circumstantial evidence that he was the person who killed his wife. Second, he argues that if the evidence was sufficient to submit the case to the jury that he was the murderer, the State failed to prove premeditation but proved, at most, that he committed second-degree, “depraved mind,” murder. § 782.04(2), Fla. Stat. (1999). We find no merit to his first contention and thus affirm on that issue without further discussion. Because we find that defense counsel at trial failed to preserve the premeditation issue for appellate review, we affirm that issue also.

Recitation of the horrific details of the bludgeoning to death of Theresa Vargas will serve no purpose here. Suffice it to say that at the end of the State’s case-in-chief, defense counsel made a motion for judgment of acquittal by saying, “Motion for judgment of acquittal on the basis that the State has failed to prove beyond a reasonable doubt that Jeremy Vargas killed Theresa Vargas. There is evidence suggesting it, but no evidence that actually says he did it.” The State concedes that this motion arguably preserved the issue of his identity as the murderer but was insufficient to preserve the issue of premeditation. We agree.

A motion for judgment of acquittal “must fully set forth the grounds on which it is based.” Fla. R.Crim. P. 3.380(b) (emphasis added); Woods v. State, 733 So.2d 980 (Fla.1999). The language of defense counsel’s motion, while not quite boilerplate, did not bring to the attention of the trial court the specific ground Mr. Vargas now urges us to consider. See also Archer v. State, 613 So.2d 446, 448 (Fla.1993); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). Because of this failure, we cannot reach the merits of the issue whether the State provided sufficient evidence for the jury to conclude that this murder was premeditated rather than committed in a fit of rage.

Affirmed.

FULMER and NORTHCUTT, JJ., Concur.


author: PER CURIAM.

text:
    PHYSICIANS HEALTH CARE PLANS, INC., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D03-0254.
    District Court of Appeal of Florida, First District.
    April 3, 2003.
    Michael J. Cherniga and Seann M. Frazier of Greenberg Traurig, P.A., Tallahassee, for Appellant.
    Gregory J. Philo, Tallahassee, for Appel-lee.
   PER CURIAM.

DISMISSED. See Rowell v. Dep’t of Law Enforcement, 700 So.2d 1242 (Fla. 2d DCA 1997).

BOOTH, WEBSTER and LEWIS, JJ., concur.


author: SALCINES, Judge.

text:
    Raymond C. HAGINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3534.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Raymond C. Hagins, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

The public defender brings this appeal on behalf of Raymond C. Hagins pursuant to Anders following a jury’s verdict of guilt for robbery and petit theft. In the Anders brief, the public defender presents several issues for review by this court and claims that two of the sentencing issues appear to be meritorious. The State concedes error in regard to Hagins’ sentences. We affirm Hagins’ convictions without discussion, but reverse the sentences, in part, and remand for resentencing.

Prior to sentencing, the State asked that Hagins be sentenced on his robbery conviction to twenty years as a habitual felony offender and to fifteen years as a prison releasee reoffender. Defense counsel objected, arguing that the court could not sentence Hagins as both a prison releasee reoffender and a habitual felony offender. The trial court imposed a fifteen year term of imprisonment sentencing Hagins as both a prison releasee reoffender and a habitual felony offender.

The dual enhancement was improper. See Grant v. State, 770 So.2d 655 (Fla.2000). The State concedes error on this point. Accordingly, we reverse and remand for resentencing on Hagins’ robbery conviction.

We note that the written sentence on Hagins’ petit theft conviction reflected that he was sentenced to 391 days’ imprisonment with credit for 391 days’ served. Hagins was charged with and convicted of second-degree misdemeanor petit theft, which carries a maximum sentence of sixty days’ imprisonment. §§ 812.014(3)(a), 775.082(4)(b), Fla. Stat. (1999). Although Hagins was not exposed to additional incarceration on his petit theft conviction, the sentence was technically illegal. The State again concedes error. Since the trial court must resentence Hagins on the robbery conviction, upon resentencing the trial court may correct the petit theft sentence.

Affirmed in part; reversed in part and remanded for resentencing.

SILBERMAN and KELLY, JJ„ Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Anders Briefs, 581 So.2d 149 (Fla.1991); State v. Davis, 290 So.2d 30 (Fla.1974).

      . Hagins raises five issues on his own behalf for which he claims reversible error. The pro se issues raised by Hagins lack merit.


author: BROWNING, J.

text:
    BROOKWOOD-WALTON COUNTY CONVALESCENT CENTER and Brookwood-Washington County Convalescent Center, Appellants, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D02-0830.
    District Court of Appeal of Florida, First District.
    April 8, 2003.
    Rehearing Denied May 19, 2003.

      Theodore E. Mack, of Powell & Mack, Tallahassee, for Appellants.
    Garnett W. Chisenhall, Assistant General Counsel, Tallahassee, for Appellee.
   BROWNING, J.

Brookwood-Walton County Convalescent Center and Brookwood-Washington County Convalescent Center (Appellants) appeal the final order issued by the appel-lee, Agency for Health Care Administration (AHCA), denying their request for an interim rate increase. We reverse the final order.

Appellants are licensed nursing homes in the State of Florida that participate in the Florida Medicaid Program (Medicaid), part of a joint federal-state, needs-based program providing nursing home care to persons eligible for such care who fall below a certain level of income and assets. Historically, Appellants’ two facilities involved here have been high Medicaid providers: currently, 90% (Washington County) and 85% (Walton County), compared to the statewide average of 50-55%. AHCA is responsible for the administration of Medicaid in Florida. § 409.902, Fla. Stat. (2001). Medicaid is a prospective reimbursement program in which a facility’s reimbursement is based on past costs adjusted or inflated to approximate future costs. In other words, the reimbursement rates for the current year are based on a facility’s report of its allowable costs incurred the previous year. In determining allowable reimbursable costs, AHCA utilizes the Florida Title XIX Long-Term Care Reimbursement Plan (Plan), the Federal Medicare Program’s Health Insurance Manual (HIM-15), and generally accepted accounting principles (GAAP). The Plan has been adopted and incorporated by reference in Rule 59G-6.040, Florida Administrative Code. Through incorporation, AHCA has adopted the HIM-15 as a rule. See Rules 59G-1.010(102) & -6.010, Fla. Admin. Code. In assessing what is an allowable cost, AHCA looks, first, to the Plan; second, to the HIM-15; and third, to GAAP. Generally, allowable costs are divided into the categories of property, patient care, and operating expenses. In determining the prospective rate, AHCA inflates the reportable allowable costs in each category forward, and those inflated costs are then subject to various class ceiling limitations and target limitations. A ceiling is an upper limit on the cost that will be reimbursed; a target limitation is a limit on the rate of increase of costs from year to year. Although a nursing home may be under its class ceilings, any increase in its costs that exceeds the target limit will not be recognized for reimbursement purposes. After applying the inflation factor, the class ceilings, and the target limitations to allowable costs, AHCA arrives at a per-patient, per-day rate at which the nursing home will be reimbursed for the next year. Because reimbursement is prospective and subject to certain limits, a facility may be unable to recover allowable costs if they rise unexpectedly. In such instances, the Plan provides for an interim rate adjustment under very limited circumstances. Such interim rates are covered in section IV. J. of the Plan.

In 2000, Appellants experienced a substantial increase in their liability insurance premiums. However, those increases occurred after Appellants’ 1999 insurance costs had been used to establish their 2000 reimbursement rates. Because of the lag time between the increase in insurance premiums and the filing of Appellants’ cost report, the increase could not be recovered through the standard prospective reimbursement procedures. As a result, on May 30, 2000, Appellants asked AHCA for an interim rate increase for general and professional liability insurance covering the Washington County and Walton County facilities. That request was denied, which gave Appellants a point of entry to challenge the agency’s decision. Appellants were advised that the requested change in reimbursement did not satisfy the requirements of section IV.J.2. of the Plan, for there was no requirement then for a nursing home to carry liability insurance; and no applicable federal or state law, rule, or standard had changed so as to cause Appellants’ costs to increase or to warrant an interim rate increase. After a formal administrative hearing, the administrative law judge (ALJ) issued an order recommending that Appellants receive an interim rate increase. AHCA filed exceptions to the recommendation, and Appellants filed a response. AHCA entered a final order rejecting the recommendations and denying the request for an interim rate increase.

In the recommended order, the ALJ found that several insurance companies had pulled out of the State of Florida due to increased losses in nursing home liability. This crisis is due partly from increased civil litigation brought against nursing homes pursuant to sections 400.022 and -.023, Florida Statutes. Florida’s nursing home population is significantly larger than the national average, and this state’s rate of nursing home litigation is significantly higher than the national average. From 1999 to 2000, Appellants’ liability insurance premium costs for their six Florida facilities increased from $400,000.00 to $4,000,000.00. Of that amount, the premium costs for the Walton County facility rose from $56,000.00 to $546,000.00, and the costs for the Washington County facility rose from $84,000.00 to $819,000.00. The increase in premiums occurred after Appellants’ rates had been set based on their 1999 insurance costs. Since September 2000, when Appellants’ liability insurer left the state, Appellants have been unable to obtain liability insurance for their Florida facilities. Although it was possible for Appellants to self-insure, they did not. The ALJ found that self-insurance generally is feasible only for facilities larger than Appellants’ facilities.

The Plan included provisions that allow a nursing home participating in Medicaid to request an interim change in its reimbursement rate when it incurs increased costs resulting from patient care or operating changes made to comply with existing state or federal rules, laws, or standards, and such changes in cost are at least $5,000.00 or 1% of the provider’s current total per-diem rate. § IV.J.2. In Paragraph 18 of the recommended order, the ALJ found that other subsections of section J. of the Plan, which dealt with new requirements or a new interpretation of old requirements, were inapplicable to the instant proceedings. Farther in the same paragraph, the ALJ found:

The term standards as used in Section J refers to standards in the Reimbursement Plan, Section IV titled “Standards,” the standards of care and operation detailed by the Medicaid program in its provider handbooks and such standards as are detailed in the Code of Federal Regulations, and HCFA/HHS guidelines, as well as state statutes and rules. These standards are the usual or customary method or practice used by the nursing home industry to gain reimbursement from Medicaid. The term standards inelude[s] reimbursement standards, methods or principles for [Mjedicaid providers.

AHCA rejected this finding. At the time of Appellants’ request for an interim rate increase, there was no specific requirement in the Plan or in state or federal law requiring that liability insurance be carried by a nursing home; nor was there a change in the Plan or in state or federal law or regulations requiring that liability insurance be carried by such providers. On the other hand, in Paragraph 21, which AHCA rejected, the ALJ found that the reimbursement standards or requirements set forth in the HIM-15 made it clear that a prudent Medicaid provider was expected to carry liability insurance or to self-insure in order to be reimbursed for any uninsured losses. Section 2160.2 of the Provider Reimbursement Manual stated: “Liability damages paid by the provider, either imposed by law or assumed by contract, which should reasonably have been covered by liability insurance, are not allowable.” Section 2161 of the HIM-15 stated that the reasonable costs of such insurance were allowable. Section 2162.1 of the HIM-15 stated that losses in excess of the deductible or co-insurance were allowable costs, so long as the amount of insurance was consistent with sound management practices. Section 2162.5 of the HIM-15 recognized the allowability of deductibles, so long as they did not exceed 10% of the entity’s net worth or $100,000.00 per provider. It stated also that where the deductible was set higher than those amounts (or all the risk was assumed), any losses exceeding the 10% amount or $100,000.00 would not be allowable as recognized costs.

The following finding made by the ALJ was rejected in AHCA’s final order:

23. The general implication of these and other related sections of HIM-15 is that a prudent provider is expected to carry liability insurance or be self-insured. Thus, a provider will be reimbursed for the reasonable costs of liability insurance, any reasonable deductible, and any losses in excess of reasonable insurance coverage. These limitations on loss recovery or reimbursement are standards for purposes of determining whether an interim rate increase is allowable. These standards were in effect at the time [Appellants’] premiums increased. Thus, in order to comply with Medicaid’s reimbursement standards, [Appellants] had to remain insured or self-insured. The choice of which type of insurance to utilize to meet the reimbursement standard is left to the provider. [Appellants] reasonably chose to insure through an insurance company. Since [Appellants were] required to make such a choice in order to comply or conform to Medicaid’s reimbursement standards, [Appellants are] entitled to an interim rate increase.

Acknowledging the limitation that the interim rate provisions of the Plan recognized only such rates submitted within 60 days prior to the date of the interim rate request, the ALJ recommended limiting Appellants’ rate increase to the increase in premiums incurred 60 days prior to their interim rate request.

To support the recommendation, the ALJ reached certain conclusions of law. As the petitioners, Appellants bore the burden of showing entitlement to the requested interim rate increase. Florida Dep’t of Transp. v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). The following conclusions reached by the ALJ were rejected in AHCA’s final order:

30. Section IV.J.2. of the Plan requires the changes creating the increased costs to be necessary for compliance with, “existing State or Federal rules, laws, or standards.” The requirements of HIM-15 are clearly “standards,” as that term is used in Section IV.J.2. of the Plan. In Alabama Hospital Association with Beasley, 702 F.2d 955 (11th Cir.1983) (Appendix), the Eleventh Circuit Court of Appeals discussed the “standards” for reimbursement set forth in 42 C.F.R. HIM-15 is a compilation and codification of 42 C.F.R., Medicare reimbursement principles, with are utilized by Medicare. In maintaining liability insurance for its facilities, [Appellants were] acting as a prudent provider in accordance with the standards set forth in HIM-15. Those standards require that a provider maintain liability or self-insurance or face the risk of being unreimbursed for losses.
31. Because the parties agreed that [Appellants’] liability insurance premiums were allowable costs and the increase in those costs met the threshold criteria of Section IV.J.2. of the Plan, the fact that [Appellants] incurred increased costs to comply with recognized Medicaid reimbursement standards makes [Appellants’] request for an interim rate based on those increased costs allowable under the Plan.

AHCA rejected as erroneous the ALJ’s conclusion of law that the requirements of the HIM-15 are Medicaid “standards,” as that term is used in section IV.J.2. of the Plan. Instead, AHCA concluded that “[u]nlike a law, rule or regulation, HIM-15 does not impose a requirement upon providers to purchase insurance.” In a footnote accompanying that conclusion, AHCA asserted that its conclusion was bolstered by Florida’s enactment of an insurance requirement, effective July 1, 2000, i.e., after Appellants incurred their increased expenses and requested the interim rate increase. See § 409.908(2)(b), Fla. Stat. (2000). In rejecting the ALJ’s conclusion that the HIM-15 constitutes a standard, AHCA contended that such a determination is infused with agency policy. While matters that are “susceptible of ordinary methods of proof’ are factual matters to be determined by the ALJ, “matters infused with overriding policy considerations” are left to agency consideration. Baptist Hosp., Inc. v. State Dep’t of Health & Rehab. Serv., 500 So.2d 620, 623 (Fla. 1st DCA 1986). However, an agency cannot avoid the requirement that it accept the ALJ’s findings of fact by merely alleging them to be conclusions of law within the agency’s area of discretion. Leapley v. Bd. of Regents, Florida State Univ. Syst., 423 So.2d 431 (Fla. 1st DCA 1982). Appellants argue that AHCA’s attempt to characterize the term “standard” as one that is infused with agency policy and, therefore, subject to agency interpretation is improper. We agree. “Standard,” as used in the Plan, is not a term of art in the Medicaid scheme; it has the commonly understood meaning of “[a]n acknowledged measure of comparison for quantitative or qualitative value; criterion; norm” or “[a] degree or level of requirement, excellence, or attainment.” American Heritage Dictionary of the American Language 1256 (1973). Besides being a standard as determined by the ALJ, the HIM-15 is also a rule by incorporation; thus, under either definition, it sets requirements under section IV.J.2. of the Plan. Because competent substantial evidence demonstrated that Appellants were effectively required, under the HIM-15 guidelines, to maintain liability insurance, the ALJ’s determination that the preponderance of the evidence proved that an unanticipated large increase in liability insurance .premiums justified the approval of Appellants’ interim rate request was proper and should not have been rejected by the agency.

Appellants contend that nowhere in the exhibits or testimony presented at the hearing did AHCA explain why the HIM-15 is not a standard. AHCA’s witnesses merely stated that to be their position summarily, without setting forth an underlying reason. To the contrary, Appellants, through testimony and through the cross-examination of AHCA’s witnesses, showed that in prior requests for an interim rate for increased liability insurance premiums by two other nursing homes, AHCA had set a precedent by allowing the interim rate. While attempting to excuse such a precedent as a “one-time event,” a mere “judgment call,” and a “mistake,” AHCA’s witnesses acknowledged that the agency had the power retroactively to correct such mistakes but had failed to do so. The agency failed to explain why its policy had changed abruptly when applied to Appellants, despite the lack of any intervening change in the applicable provisions. AHCA’s unexplained, inconsistent policies are contrary to established administrative principles and sound public policy. See Cleveland Clinic Florida Hosp. v. Agency for Health Care Admin., 679 So.2d 1237 (Fla. 1st DCA 1996); Health Care & Retirement Corp. of America, Inc. v. Dep’t of Health & Rehab. Serv., 559 So.2d 665, 667-68 (Fla. 1st DCA 1990) (stating that when agency seeks to validate its action based on policy that is not recorded in rules or discoverable precedents, that policy must be established by expert testimony, documentary opinions, or other evidence appropriate to nature of issues involved, and agency must expose and elucidate its reasons for its discretionary actions with competent, substantial evidence on record). Although AHCA asserts that the HIM-15 is merely advisory in nature, the HIM-15 instructs providers how they must act for their costs to be considered prudent expenditures subject to reimbursement. AHCA misplaces its reliance on the proposition that during the period at issue here, liability insurance was not a required expense and the HIM-15 did not expressly mandate that every provider have such insurance. What the HIM-15 did state was that payment for losses or damage would not be considered allowable (and thus would not be reimbursed) if the provider did not carry liability insurance. Although the government did not specifically require providers to carry liability insurance at that time, clearly, the providers would suffer adverse consequences if they failed to do so. The effect of the provisions was such that a prudent provider operating under the reimbursement principles of the HIM-15 would carry liability insurance. To suggest otherwise is disingenuous.

To the extent that the ALJ’s findings regarding the HIM-15 involve factual matters, AHCA erred by rejecting the facts that were supported by competent substantial evidence. § 120.57(1)®, Fla. Stat. (2001). To the extent the ALJ’s ruling construing the HIM-15 and its effects invokes a matter of law, AHCA erred in rejecting it without satisfying the requirements of section 120.57(1)®, which states:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.

Accordingly, we REVERSE the final order and REMAND with instructions to AHCA to enter an order adopting the ALJ’s findings and conclusions in support of granting the interim rate increase.

ERVIN and BOOTH, JJ., CONCUR.


text:
    Michael Lee MILLS, Appellant, v. Pegey MILLS, Appellee.
    Nos. 3D01-1355, 3D02-733.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Barranco, Kircher & Vogelsang; Cynthia L. Greene, for appellant.
    Bette E. Quiat; Jay M. Levy, for appel-lee.
    Before SCHWARTZ, C.J., and LEVY and RAMIREZ, JJ.
   PER CURIAM.

This is a consolidated appeal and cross-appeal from a Final Judgment entered in a dissolution of marriage action. The Husband appeals the characterization of certain assets; the Wife appeals the lower court’s decision that the couple’s Prenuptial Agreement controlled. We find that the lower court erred in finding that the Husband’s business was a marital asset subject to equitable distribution. Thus, we reverse and remand for a new trial on the issue of alimony and equitable distribution.

The record reflects that at the time of the Final Judgment, the Husband was 43 years old, and the Wife was 42 years old. The parties married in 1984, and the Wife entered the marriage with a four-year-old child from a prior marriage. During the marriage, the Husband paid for the Wife to attend school and to earn a degree in nursing. At the time of the proceedings below, the Wife was employed as a nurse, worked three days per week, and earned approximately $50,000 per year. The trial court concluded that the Husband earned a net income of $4,166 per month, and the Wife earned a net income of $3,188 per month. At the time of the Final Judgment entered in May, 2001, the Wife and daughter lived in the marital home, owned by the Husband. The Husband lived with his grandmother.

Prior to the parties’ marriage, the Husband and the Wife executed a Prenuptial Agreement (“the Agreement”). During the dissolution proceedings below, the Wife sought to set aside the Agreement, alleging that it was invalid and unenforceable because it was procured through duress. The Agreement provided, in pertinent part, that if the parties’ marriage was dissolved, each party was to receive: (1) all property owned by him or her prior to the marriage; (2) one-half of all property acquired by purchase after the marriage; (3) all property acquired by him or her during the marriage by gift from a relative (or from a person who was a friend of that party prior to the marriage); and (4) one-half of all gifts to either party from new friends made after the parties married. The attorney who prepared the Agreement also prepared a schedule of assets and liabilities that was attached to the original Agreement. The schedule listed no liabilities on behalf of the Husband. With regard to assets, the Agreement indicated that the Husband owned one-half of the rights to ownership in the 770 Lake Road house, as well as the furniture in the house. There were no values listed in the Agreement. A separate hearing was held on the validity of the Agreement. The trial court found that the Wife’s testimony was inconsistent, evasive, and without corroboration. The trial court determined that the Agreement was valid and binding and denied the Wife’s request that the Agreement be set aside.

The Husband’s grandmother, Kathryn Mills, owns and operates the Mills family business, RonLee, Inc., a quarrying and road construction business. Prior to the marriage, the Husband was employed by RonLee, Inc., and he continued to work for RonLee during the marriage. The Husband was on the company’s payroll and received a salary from RonLee, Inc.

In 1985, Kathryn opened a second company, RonLee Construction, Inc. Kathryn owned 100% of RonLee Construction and all 500 shares of the corporation were issued to her. In November, 1986, Kathryn gifted all 500 shares of her stock in Ron-Lee Construction to the Husband. The corporate books indicate that Kathryn gifted her shares to the Husband. The certified public accountant, who prepared the company’s tax returns at the time, testified that the stock was a gift from Kathryn to the Husband. The Husband testified that he received the shares as a gift from Kathryn. In 1987, Kathryn Mills gifted $281,000 to the Husband by way of three separate payments of $11,000, $20,000 and $250,000. Kathryn filed a gift tax return regarding these gifts to the Husband. The Husband deposited all of the funds into RonLee Construction, Inc., which was by then, his solely-owned company. Ron-Lee Construction, Inc. then purchased a rock pit for $600,000 from Kathryn’s company, RonLee, Inc. RonLee Construction borrowed all $600,000 needed for the purchase of the rock pit and then prepaid $200,000 of the note (using the funds Kathryn gifted to the Husband), which reduced the balance due on the note to $400,000.

In February, 1998, RonLee Construction sold the rock pit for $826,000 and RonLee, Inc. released its mortgage in order to permit the sale to go forward. RonLee, Inc. did not release the note underlying the mortgage and required that RonLee Construction issue a new note to RonLee, Inc. for the $400,000. This new note was dated February, 1998, the same date as the sale of the rock pit.

Beginning in 1990 and through at least 1995, the financial statements prepared for RonLee Construction reflected that the $400,000 due from RonLee Construction to RonLee, Inc. had been satisfied. There was no record or documentation that the note had been paid. The auditor who prepared the financial statements testified that he had assumed that the debt had been satisfied as a gift from Kathryn, through her company, RonLee, Inc., to the Husband, through his company RonLee Construction, Inc. This debt had not been paid, but the Husband signed representation letters attesting to the accuracy of the financial statements. The Husband admitted that the financial statements were wrong when he saw them because the $400,000 obligation was no longer appearing on the statements. He testified that he needed to work to support his family and without the ability of his company to obtain bonding, the company could not bid for road construction work.

In the Final Judgment, the trial judge concluded that the gift of corporate stock of RonLee Construction, Inc. to the Husband by Kathryn was not a gift because by performing services for his grandmother and her company, the Husband earned an entitlement to have the company given to him by Kathryn. Thus, the Husband’s interest in RonLee Construction, Inc. was deemed by the trial judge to be a marital asset. The value of the company was not excluded from distribution by the parties’ Prenuptial Agreement. The trial court valued the business at $610,390.00, finding that the company did not owe the $400,000 liability to RonLee, Inc. for the purchase of the rock pit, since Kathryn had filed a satisfaction of the mortgage in December, 1997. The trial court awarded the Wife an equitable distribution of one-half of the value of the company, $305,195.00, payable by the Husband to the Wife in monthly payments of $3,800 per month, plus interest at the statutory rate, secured by an equitable lien against the Husband’s non-marital home. The court noted there was a $260,704 mortgage placed on the marital home in January of 2000, that the Husband executed in favor of Kathryn. The lower court found this mortgage invalid and executed for the purpose of preventing the Wife from accessing the home for the purposes of this litigation.

The court found the Wife’s annual income to be $50,000 and the Husband’s income to be $62,500, and denied permanent periodic alimony on the basis that the parties’ income levels were relatively similar. The court found the Wife was entitled to lump sum alimony of $50,000 “in order to establish a comparable household to that of the husband,” and found special circumstances justifying such an award, including the fact that the Husband left the marriage with significant non-marital assets whereas the Wife was left with no car, no furniture and no place to live. The $50,000 consisted of $25,000 for a car, $10,000 for real estate/rental down payments, and $15,000 for furniture and appliances. The court made the award, finding a special contribution by the Wife and concluding that had the Husband worked for someone other than the grandmother, he would have likely had retirement funds to share with the Wife. The Husband then appealed, and the Wife cross-appealed.

On appeal, the Husband contends that the stock in RonLee Construction was a gift and that there is no record evidence to support the court’s conclusion that the gift was actually payment for services rendered. We agree and reverse on this issue.

Under Section 61.075(5)(b)(2), Florida Statutes (2002), assets acquired by non-interspousal gift, bequest, devise or descent are deemed non-marital assets. Furthermore, three elements must be shown to support a finding of intent to make a gift: (1) donative intent, (2) delivery or possession of the gift, and (3) surrender of dominion and control of the gift. See Eulette v. Merrill Lynch, Pierce, Fenner and Beane, 101 So.2d 603, 605 (Fla. 3d DCA 1958). Thus, a gift is made when a donor, intending to make a gift, delivers the gift to the donee and relinquishes all possession and control of the gift. See Reiner v. Reiner, 400 So.2d 1292, 1293 (Fla. 4th DCA 1981). In the case before us, the record reflects that there was no evidence to support the finding that Husband received the stock in RonLee Construction from Kathryn as compensation for services he performed for RonLee, Inc. and RonLee Construction.

The record reflects that the donor, Kathryn, intended to make a gift of the 500 shares of stock to the donee, the Husband. Kathryn relinquished complete control of the stock. Here, there was no evidence to rebut any of the testimony and evidence presented below regarding Kathryn’s gift of stock in RonLee Construction, Inc. to the Husband. The gift was recorded in the records of the 1986 annual meeting of the company’s directors, Kathryn testified that she gifted the stock to the Husband, the Husband testified that he received the shares as a gift from Kathryn, and the certified public accountant who prepared the company’s tax returns at the time testified that the stock was a gift from Kathryn to the Husband. Certainly, this Court is aware that there are circumstances where a gift is disguised, however, there was no evidence presented below that this was the case here.

In sum, there was no evidence presented to indicate that this stock transfer was anything other than a gift. Based on the foregoing, we reverse and remand for reconsideration of the equitable distribution award. Because the lower court considered the equitable distribution award in the denial of permanent alimony, as should be done according to Section 61.08(2)(d), Fla. Stat. (2002), we also remand for a new trial on alimony. We affirm on all other points on appeal and cross-appeal.

Reversed and remanded.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. Leo Maurice McCLENDON, Appellee.
    No. 4D02-1616.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Rehearing Denied April 29, 2003.

      Charles J. Crist, Jr. Attorney General, Tallahassee, and Melynda Melear, Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tara A. Finnigan, Assistant Public De-fender, West Palm Beach, for appellee.
   MAY, J.

The State appeals an order granting the defendant’s motion to suppress. We and remand for further proceedings.

Just after midnight on September 21, 2001, a deputy noticed a vehicle parked in the middle of the road. The vehicle did not have its lights on. As the deputy approached, a man who had been standing at the rear of the vehicle got into the passenger seat.

The deputy advised the driver that he stopped to find out why the vehicle was parked in the middle of the road. The passenger responded that he had gotten out of the car to change his shoes. The deputy asked the driver to step to the rear of the car so he could ask him about his license. As he did so, the passenger got out of the car, stood above the hood, and asked what was going on. The deputy could not see one of the passenger’s hands, which made him nervous. He feared he might “get shot.”

The deputy asked the passenger to get back into the car, which he did. The driver didn’t have a license and advised the deputy that it was a rental car. The deputy then asked the passenger for his license and a copy of the rental agreement. The agreement listed the passenger as an authorized driver.

The deputy returned to his car to check on both the driver and the passenger and to contact the rental company. He that the passenger’s license was During this time, a canine unit arrived in response to the deputy’s re-quest.

The deputy asked the passenger to exit the vehicle so that the canine could walk around the car. The dog alerted to the car. The deputy placed the two men in the back of his patrol car. He discovered a loaded handgun under the passenger’s seat and later discovered cocaine in the air cleaner space under the hood.

The issue raised is whether the police officer’s instruction to the passenger to get back into the car constituted an impermissible stop. We hold that under the facts of this case, it did not.

In granting the motion to suppress, the trial court relied upon Wilson v. State, 734 So.2d 1107 (Fla. 4th DCA 1999). Wilson held

that a police officer concluding a lawful traffic stop may not, as a matter of course, order a passenger who has left, the stopped vehicle to return to and remain in the vehicle until completion of the stop. The officer must have an ar-ticulable founded suspicion of criminal activity or a reasonable belief that the passenger poses a threat to the safety of the officer, himself, or others before ordering the passenger to return to and remain in the vehicle.

Id. at 1113 (emphasis added). The facts of Wilson illustrate the limited nature of its holding.

Wilson was a passenger in a vehicle stopped for a traffic violation. He exited the vehicle and began walking toward a bar located only five to ten feet away. The deputy stopped him from entering the bar and ordered him to return to the vehicle. Thus, the officer’s direction did more than secure the area around the vehicle where the investigation was ongoing, it controlled the freedom of the passenger beyond constitutionally permissible bounds. We find the Wilson facts to be distinguishable from those in this case.

In the present case, the officer saw the car parked in the middle of the road without lights after midnight. The officer testified that the passenger got out of the car, leaned on the hood, and asked the officer what was going on. While the defendant testified that he had wanted to go to a nearby gas station, he admitted he neither began to walk in that direction nor advised the officer that he wanted to leave the area of the vehicle. Further, the officer testified that he could not see one of the passenger’s hands, which made him fear for his safety.

Under these circumstances, the officer’s instruction to the passenger to sit inside the vehicle did not run afoul of the constitution. Using the balancing test articulated in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), we find the officer’s direction to the defendant to have been a “reasonable governmental invasion” of the defendant’s “personal security.” Id. at 109, 98 S.Ct. 330.

An officer’s interest in protecting himself or a fellow officer against an unsuspected assault by a driver or passenger and against accidental injury from passing traffic is both legitimate and weighty and the intrusion into the driver’s or passenger’s personal liberty is deminim-is.

Doctor v. State, 573 So.2d 157, 159 (Fla. 4th DCA 1991), aff'd in part, rev’d in part, 596 So.2d 442 (Fla.1992).

The United States Court of Appeals for the District of Columbia reviewed facts similar to the ones in this case in Rogala v. District of Columbia, 161 F.3d 44 (D.C.Cir.1998). In that opinion, the court concluded “that a police officer has the power to reasonably control the situation by requiring a passenger to remain in a vehicle during a traffic stop, particularly where, as here, the officer is alone and feels threatened.” Id. at 53. Indeed, this court in Wilson acknowledged that there would be situations where an “officer should be able to identify objective circumstances that support the reasonableness of his order” for the passenger to return to a vehicle. Id. at 1113.

We therefore reverse the order suppressing the evidence, and remand the case for further proceedings.

STONE, and GROSS, JJ., concur.


author: SILBERMAN, Judge.

text:
    Kevin WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 2D02-2503.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
    Rehearing denied May 15, 2003.
    Kevin Wilson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Respondent.
   SILBERMAN, Judge.

In his petition for writ of habeas corpus, Kevin Wilson seeks permission to file a belated petition alleging ineffective assistance of appellate counsel. Because Wilson’s allegations are facially insufficient, we deny the petition.

Wilson alleges that he was convicted of two crimes in 1989 and that the convictions and sentences were affirmed on appeal in 1991. He claims that in December 1992, he hired counsel to file a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. He further asserts that counsel agreed to file the petition but failed to do so.

Prior to 1997, a claim alleging ineffective assistance of appellate counsel was raised by way of a petition for writ of habeas corpus, and there was no specific time limitation to raise this claim. See Rogers v. Singletary, 698 So.2d 1178, 1179 (Fla.1996). However, the time to bring a claim was not unlimited because the doctrine of laches could bar a habeas corpus petition claiming ineffective assistance of appellate counsel. See McCray v. State, 699 So.2d 1366, 1368 (Fla.1997). In McCray, the supreme court concluded that any habeas corpus petition is presumed to be the result of an unreasonable delay and to prejudice the State if the petition was filed more than five years from the date the petitioner’s conviction became final; the presumption could only be overcome if the petitioner made specific factual allegations under oath that he or she was affirmatively misled by counsel about the results of the appeal. Id.

As of January 1, 1997, time limits on bringing claims of ineffective assistance of appellate counsel were governed by the rules of appellate procedure. See Fla. R.App. P. 9.140(j)(3)(B); McCray, 699 So.2d at 1367-68. Rule 9.140(j)(3)(B) is the predecessor to the current rule, Florida Rule of Appellate Procedure 9.141(c).

Rule 9.141(c)(4)(B) states that “[a] petition alleging ineffective assistance of appellate counsel shall not be filed more than 2 years after the conviction becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.” Rule 9.141(c)(4)(C) states that the “[t]ime periods under this subdivision shall not begin to run prior to January 1, 1997.” Thus, unless Wilson properly invoked the exception under the rule, the two-year time period for him to file a petition alleging ineffective assistance of appellate counsel began to run on January 1, 1997, and expired on January 1,1999. See Russell v. State, 740 So.2d 567, 568 (Fla. 1st DCA 1999).

Wilson’s petition did not contain any sworn statement that he was affirmatively misled by counsel about the results of the appeal, and it did not contain any other information explaining the nearly ten-year delay in seeking relief. As a result, Wilson’s allegations do not avoid the time bar of rule 9.141(c)(4)(B) or the doctrine of laches. See McCray, 699 So.2d at 1368.

In his request for permission to file a belated petition alleging ineffective assistance of appellate counsel, Wilson cites Williams v. State, 816 So.2d 718 (Fla. 1st DCA 2002). There, Williams filed a habe-as corpus petition alleging ineffective assistance of appellate counsel. Williams recognized that his claim was untimely under the rule, but he sought to avoid the bar of the rule by claiming that counsel was retained to collaterally attack the conviction and that counsel’s negligence resulted in the failure to timely file a petition. Id. at 719. The First District concluded that Williams stated a preliminary basis for relief and relinquished jurisdiction to the circuit court to make findings of fact and conclusions of law regarding Williams’ right to file a belated claim of ineffective assistance of appellate counsel. Id.

Williams is distinguishable from the circumstances present here. Wilson has not provided any information reflecting that he has any viable claim for ineffective assistance of appellate counsel. He fails to state when he learned that his post-appeal counsel had not filed a petition on his behalf; he offers no explanation of why he waited from December 1992, when he purportedly retained counsel to file a habeas corpus petition, to June 2002, when he filed the present petition; and he does not allege any information as to why he did not or could not timely seek habeas relief pursuant to rule 9.141(c)(4)(B).

Because Wilson’s request for permission to file a belated claim was facially insufficient to demonstrate any basis for relief, the petition is denied.

NORTHCUTT and STRINGER, JJ., Concur.