source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., Appellants, v. Glenda E. HOOD, etc., et al., Appellees.
    No. SC04-1921.
    Supreme Court of Florida.
    Oct. 18, 2004.
    Ben R. Patterson and Jerry G. Trayn-ham of Patterson & Traynham, Tallahassee, FL, and Stephen P. Berzon, Jonathan Weissglass, Linda Lye and Danielle E. Leonard of Altshuler, Berzon, Nussbaum, Rubin & Demain, San Francisco, CA, on behalf of American Federation of Labor and Congress of Industrial Organizations, et al.; Alma Gonzalez, Tallahassee, FL, on behalf of Florida Public Employees Council 79, Tallahassee, FL; Jill Hanson, West Palm Beach, FL, and Jonathan P. Hiatt and Laurence E. Gold, Washington, D.C., on behalf of AFL-CIO; and Judith A. Scott and John J. Sullivan, Washington, D.C., on behalf of SEIU and SEIU 1199Florida, for Appellants.
    Honorable Charles J. Crist, Jr., Attorney General, Christopher M. Rise, Solicitor General, Gerald B. Curington, Assistant Deputy and Jonathan A. Glogau, Chief, Complex Litigation, Tallahassee, FL, on behalf of the Honorable Glenda Hood; and Herbert W.A. Thiele, County Attorney and Patrick T. Kinni, Assistant County Attorney, Tallahassee, FL, on behalf of Jane Sauls, for Appellees.
    Ronald A. Labasky of Landers & Parsons, P.A., Tallahassee, FL, on behalf of Bill Cowles and the Supervisor of Elections of Orange County, Florida and President of the Florida State Association of Supervisors of Elections, Inc.; and D. Andrew Byrne, Darren A. Schwartz, Jackson W. Maynard, Jr., D. Christine Thurman of Cooper, Byrne, Blue & Schwartz, PLLC, Tallahassee, FL, on behalf of Cecilia Rush, for Intervenors.
   PER CURIAM.

We have on appeal a trial court judgment certified by the district court of appeal to be of great public importance and to require immediate resolution by this Court. We have jurisdiction. See art. V, § 3(b)(5), Fla. Const.

1. Facts

In 2001, the Florida Legislature enacted legislation allowing voters to cast provisional ballots. See § 101.048, Fla. Stat. (2004). Under this legislation, a voter whose eligibility cannot be readily determined can cast a ballot, but officials will not count the ballot until the voter’s eligibility is confirmed. See id. Before the ballot will be counted, officials must confirm (1) that the voter is registered and (2) that the voter is eligible to vote at the precinct where the ballot was cast. See § 101.048(2), Fla. Stat. (2004).

On August 17, 2004, four registered voters and several labor organizations filed a petition for writ of mandamus in this Court, alleging that the precinct-specific requirement in section 101.048 violates the Florida Constitution. The Court transferred the petition to circuit court. The circuit court dismissed the petition for failing to state a prima facie case. Petitioners then filed a motion to amend the judgment and filed an amended complaint seeking declaratory and injunctive relief. The circuit court denied relief. The plaintiffs appealed and the district court certified the matter to this Court. The plaintiffs now claim that the precinct-specific provision is facially unconstitutional in that it operates as an unnecessary restriction on the right to vote, in violation of article VI, section 1, Florida Constitution, and imposes an additional qualification on the right of suffrage, in violation of article VI, section 2.

2. The Applicable Law

The plaintiffs’ facial challenge to the constitutionality of the precinct-specific provision in section 101.048, Florida Statutes (2004), is a pure question of law, subject to de novo review. See, e.g., City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002) (holding that the facial constitutionality of a statute is a pure question of law, subject to de novo review).

Article VI, section 1, Florida Constitution, entitled “Regulation of elections,” provides as follows in full:

Ml elections by the people shall be by direct and secret vote. General elections shall be determined by a plurality of votes cast. Registration and elections shall, and political party functions may, be regulated by law; however, the requirements for a candidate with no party affiliation or for a candidate of a minor party for placement of the candidate’s name on the ballot shall be no greater than the requirements for a candidate of the party having the largest number of registered voters.

Art. VI, § 1, Fla. Const, (emphasis added). Article VI, section 2, Florida Constitution, entitled “Electors,” discusses voter qualifications and provides as follows in full:

Every citizen of the United States who is at least eighteen years of age and who is a permanent resident of the state, if registered as provided by law, shall be an elector of the county where registered.

Art. VI, § 2, Fla. Const.

Section 101.045, Florida Statutes (2004), addresses general voter precinct requirements and provides as follows in relevant part:

No person shall be permitted to vote in any election precinct or district other than the one in which the person has his or her legal residence and in which the person is registered.

§ 101.045(1), Fla. Stat. (2004) (emphasis added). Section 101.048, Florida Statutes (2004), addresses provisional ballots and provides as follows in relevant part:

101.048 Provisional ballots.—
(1) At all elections, a voter claiming to be properly registered in the county and eligible to vote at the precinct in the election, but whose eligibility cannot be determined ... shall be entitled to vote a provisional ballot. Once voted, the provisional ballot shall be placed in a secrecy envelope and thereafter sealed in a provisional ballot envelope. The provisional ballot shall be deposited in a ballot box. All provisional ballots shall remain sealed in their envelopes for return to the supervisor of elections. The department shall prescribe the form of the provisional ballot envelope.
(2)(a) The county canvassing board shall examine each provisional ballot envelope to determine if the person voting that ballot was entitled to vote at the precinct where the person cast a vote in the election and that the person had not already cast a ballot in the election.
(b)(1) If it is determined that the person was registered and entitled to vote at the precinct where the person cast a vote in the election, the canvassing board shall compare the signature on the provisional ballot envelope with the signature on the voter’s registration and, if it matches, shall count the ballot.
(2) If it is determined that the person voting the provisional ballot was not registered or entitled to vote at the precinct where the person cast a vote in the election, the provisional ballot shall not be counted and the ballot shall remain in the envelope ... and the envelope shall be marked “Rejected as Illegal.”

§ 101.048, Fla. Stat. (2004) (emphasis added).

As noted above, article VI, section 1, Florida Constitution, provides that “elections shall ... be regulated by law.” Under this provision, the Legislature is directed to enact laws regulating the election process. The voter must “comply with such ... requirements of law as may be imposed upon him as a matter of policing the process by which he is authorized to cast his vote at a place and within the time, and subject to the regulations, provided by law to govern the elections themselves.” State ex rel. Gandy v. Page, 125 Fla. 348, 169 So. 854, 858 (1936) (emphasis added). The constitutional directive, however, is not plenary: legislative acts that impose “[ujnreasonable or unnecessary restraints on the elective process are prohibited.” Treiman v. Malmquist, 342 So.2d 972, 975 (Fla.1977).

3. The Present Case

As noted above, the Legislature is authorized to impose reasonable and necessary regulations on the “place” at which an elector may cast his or her vote. The traditional precinct-specific provision that applies to all voters is codified in section 101.045 and has been a feature of Florida election law for decades. See § 101.045, Fla. Stat. (2004). The plaintiffs do not challenge the validity of that provision. Rather, they challenge only the precinct-specific provision in section 101.048. Yet, the plaintiffs fail to show how section 101.048 is distinguishable from section 101.045 in this regard. Under their reasoning, if the precincUspecific provision in section 101.048 were to be held invalid, then the traditional precinct-specific provision in section 101.045 also would be infirm.

We conclude that the precinct-specific provision in section 101.048 is a regulation of the voting process, not a qualification placed on the voter, and is no more unreasonable or unnecessary than the comparable provision in section 101.045, which has been operative for decades. The Legislature reasonably may have determined that both regulations are necessary to ensure the integrity of the election process. We hold that the plaintiffs have failed to show that the precinct-specific provision in section 101.048 imposes an “[unreasonable or unnecessary restraint[ ] on the elective process.” See Treiman, 342 So.2d at 975. We affirm the trial court’s ruling upholding the facial constitutionality of section 101.048, Florida Statutes (2004), in this regard.

It is so ordered.

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


author: PARIENTE, C.J.

text:
    Thomas B. GIBSON, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. SC02-2362.
    Supreme Court of Florida.
    Oct. 21, 2004.

      Robert Augustus Harper and Michael Robert Ufferman of Robert Augustus Harper Law Firm, P.A., Tallahassee, FL, for Petitioner.
    Louis A. Vargas, General Counsel and Susan A. Maher, Deputy General Counsel, Florida Department of Corrections, Tallahassee, FL, for Respondent.
   ON REHEARING

PARIENTE, C.J.

This case concerns the statutory authority of the Department of Corrections (DOC) to forfeit gain time from an expired sentence and apply the forfeiture to a sentence being served on a different offense. We review Gibson v. Florida Department of Corrections, 828 So.2d 422 (Fla. 1st DCA 2002), in which the First District Court of Appeal certified the following question of great public importance:

Does the forfeiture penalty enunciated in Eldridge v. Moore, 760 So.2d 888 (Fla.2000), apply where a defendant receives a sentence of incarceration for one offense followed by a sentence of probation for another offense, where both crimes were scored on a single scoresheet and the trial court awards prison credit pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), upon violation of probation for the second offense?

Id. at 424.

I. FACTS AND PROCEDURAL HISTORY

In three different cases arising from crimes committed on different dates in 1993, Gibson was convicted of committing numerous counts of forgery and uttering a forged instrument or forged bills, all third-degree felonies. All the offenses were included in a single guidelines scoresheet because the cases were pending for sentencing at the same time. The trial court sentenced Gibson to consecutive terms of five years in prison in Case Nos. 93-216 and 93-297 for a total of ten years’ incarceration, followed by consecutive terms of five years on probation on the counts of uttering a forged instrument and five years on probation on the counts of forgery in Case No. 93-360 for a total of ten years’ probation. Thus, the sanctions in Case Nos. 93-216 and 93-297 contained no probationary component and, as originally imposed, the sanctions in Case No. 93-360 contained no incarceration.

Gibson completed his cumulative ten-year sentence in Case Nos. 93-216 and 93-297 through a combination of time actually served and accrued gain time. Computations by the DOC show that Gibson fulfilled his ten-year sentence (consisting of 3650 days) by serving 1660 days in prison and 21 days in county jail, for a total of 1681 days (approximately 4.6 years) actually served, and by accruing 1969 days (approximately 5.4 years) of unforfeited gain time.

Upon his release from prison in April 1998, Gibson commenced the terms of probation in Case No. 93-360. He subsequently violated the conditions of probation. The trial court revoked probation and sentenced Gibson to consecutive terms of four and three years in prison for a total of seven years’ incarceration. On Gibson’s motion, and pursuant to our decision in Tripp v. State, 622 So.2d 941 (Fla.1993), the trial court granted credit for time served of 1681 days from the completed sentences in Case Nos. 93-216 and 93-297 against the overall seven-year sentence in Case No. 93-360.

After Gibson began serving his sentences for violation of probation in Case No. 93-360, the DOC declared a forfeiture of the 1969 days of previously unforfeited gain time from the sentences in Case Nos. 93-216 and 93-297 pursuant to section 944.28(1). DOC’s policy in applying the gain time forfeiture is to compare the length of the new sentence after deduction for time previously served to the amount of the forfeiture penalty, and to require the prisoner to serve the greater of the two. Essentially, this method views the forfeiture penalty and the new sentence less time served as concurrent sentences, and ensures that the prisoner will serve no less than the forfeiture penalty.

In Gibson’s case, the new sentence of seven years (2555 days) less time previously served of 4.6 years (1681 days) would have yielded a net sentence of 2.4 years (874 days). Because the gain-time forfeiture penalty of 5.4 years (1969 days) was greater than the revocation sentence of 2.4 years after deduction of Tripp credit, the DOC in effect required Gibson to serve the forfeiture penalty. Thus, the DOC applied section 944.28(1) in a manner that required Gibson to serve the forfeiture penalty as the punishment for violation of probation.

Gibson challenged the DOC’s authority to forfeit the gain time by filing a petition for a writ of mandamus, which the trial court denied. The First District agreed with the trial court and denied his petition for common-law certiorari, concluding that the forfeiture of gain time from the expired sentences in Case Nos. 93-216 and 93-297 applied to Gibson’s sentences in Case No. 93-360. The First District explained that it was guided by this Court’s holding in Tripp that “credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second,” and its previous interpretation of Tripp “to mean that separate crimes and sentences may constitute a split sentence where both crimes were scored on a single score-sheet.” Gibson, 828 So.2d at 423 (relying on Larimore v. State, 823 So .2d 287 (Fla. 1st DCA 2002)).

In a specially concurring opinion, Judge Lewis agreed with the majority view that the forfeiture of gain time from the sentences in Case Nos. 93-216 and 93-297 could be applied to the sentence upon revocation of probation in Case No. 93-360 “because the offenses were [originally] scored on a single scoresheet and considered together in forming his scoresheet sentence.” Id. at 424-25 (Lewis, J., specially concurring). Judge Benton dissented. In his view, the gain-time forfeiture unlawfully revived the expired sentences in Case Nos. 93-216 and 93-297 and made them components of an unauthorized “general sentence.” Id. at 426-28 (Benton, J., dissenting).

II. ANALYSIS

This case involves an issue of statutory interpretation. We thus begin with the actual language of the statutes that the DOC relies upon for its assertion of authority to declare a forfeiture penalty of gain time from a sentence that was already fully served and apply it to another sentence imposed upon revocation of probation.

A. Statutory Authority

Section 944.28(1), Florida Statutes (1993), provides:

If a prisoner is convicted of escape, or if the clemency, conditional release as described in chapter 947, probation or community control as described in chapter 948, provisional release as described in s. 944.277, parole, or control release as described in s. 947.146 granted to the prisoner is revoked, the department may, without notice or hearing, declare a forfeiture of all gain-time earned according to the provisions of law by such prisoner prior to such escape or his or her release under such clemency, conditional release, probation, community control, provisional release, control release, or parole.

(Emphasis supplied.) Section 944.28(1) is one of two provisions that authorized forfeiture of gain time upon revocation of probation at the time of the offenses in this case. The other, section 948.06(6), Florida Statutes (1993), provided:

Any provision of law to the contrary notwithstanding, whenever probation, community control, or control release, including the probationary [or] community control portion of a split sentence, is violated and the probation or community control is revoked, the offender, by reason of his misconduct, may be deemed to have forfeited all gain-time or commutation of time for good conduct, as provided by law, earned up to the date of his release on probation, community control, or control release.

(Emphasis supplied.) This subsection provides general authority to forfeit gain time and specifically refers to split sentences.

The issue in this case is whether the DOC may apply the forfeiture penalty of section 944.28(1) across offenses to the guidelines sentence imposed upon violation of probation for a crime that was originally included in the same guidelines scoresheet as the offense on which the gain time was accrued. Section 944.28(1) does not specify whether the forfeiture penalty applies to split sentences. Its analog, section 948.06(6) (now section 948.06(7), Florida Statutes (2003)), specifies that the forfeiture penalty applies to the revocation of probation or community control imposed as part of a split sentence. Similarly, section 921.0017, Florida Statutes (2003), which applies to offenses committed on or after January 1, 1994, specifies that upon revocation of probation when an offender is serving a “split sentence pursuant to section 948.01,” the trial court shall only order credit for time served and not for gain time.

Although none of the statutory provisions governing forfeiture of gain time define a split sentence, two provisions in section 948.01, Florida Statutes (2003), relating to the trial courts’ sentencing options, do explain the split sentence option. Section 948.01(6) provides, in full:

Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, impose a split sentence whereby the defendant is to be placed on probation or, with respect to any such felony, into community control upon completion of any specified period of such sentence which may include a term of years or less. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant and direct that the defendant be placed upon probation or into community control after serving such period as may be imposed by the court. The period of probation or community control shall commence immediately upon the release of the defendant from incarceration, whether by parole or gain-time allowances.

Section 948.01(11) provides, in pertinent part:

The court may also impose a split sentence whereby the defendant is sentenced to a term of probation which may be followed by a period of incarceration or, with respect to a felony, into community control, as follows:
(a) If the offender meets the terms and conditions of probation or community control, any term of incarceration may be modified by court order to eliminate the term of incarceration.
(b) If the offender does not meet the terms and conditions of probation or community control, the court may revoke, modify, or continue the probation or community control as provided in s. 948.06. If the probation or community control is revoked, the court may impose any sentence that it could have imposed at the time the offender was placed on probation or community control.

Section 948.01(6) defines what this Court has described as a “true split sentence.” See Poore v. State, 531 So.2d 161, 164 (Fla.1988). In Poore, we listed the five sentencing options then available to the trial court in imposing a sentence for a criminal offense:

[A] judge has five basic sentencing alternatives in Florida: (1) a period of confinement; (2) a “true split sentence” consisting of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion; (3) a “probationary split sentence” consisting of a period of confinement, none of which is suspended, followed by a period of probation; (4) a Villery sentence, consisting of a period of probation preceded by a period of confinement imposed as a special condition; and (5) straight probation.

Id. at 164. We further explained in El-dridge that

[a] true split sentence is a prison term of a number of years with part of that prison term suspended, contingent upon completion on probation of the suspended term of years. When a defendant violates a true split sentence, the most severe sentence the trial court may impose on resentencing is to “unsuspend” the previously suspended prison term. That is, that the defendant is reincar-cerated and must actually serve the previously suspended term of years in prison.... In [the probationary split] sentence, if the defendant violates probation, the trial court may impose any sentence it might have originally imposed.

760 So.2d at 889 n. 1; see also § 948.06(1). In State v. Powell, 703 So.2d 444, 446 (Fla.1997), we recognized that section 948.01(11), enacted after Poore, authorizes a sentence not described in that case-a period of probation followed by a period of incarceration, which we labeled a “reverse split sentence.”

B. The Tripp Line of Cases

Tripp, the case principally relied upon by the DOC and the First District as justifying the imposition of a forfeiture penalty in this case, concerned credit for time served on a completed sentence when a defendant is sentenced on a different offense to a term of incarceration upon revocation of probation. In Tripp, the Court rejected the contention that because convictions for two separate crimes result in two separate sentences, the offender is not entitled to credit for time served. See 622 So.2d at 942. We determined that where a term of incarceration on one offense is followed by a term of probation on another, credit for time served on the first offense must be awarded on the guidelines sentence imposed after revocation of probation on the second offense. See id.

Although we did not identify the combined sanctions in Tripp as a true or probationary split .sentence, we emphasized that the offenses were “factors that were weighed in the original sentencing.” Id. We stated that our decision served two purposes: first, to ensure that offenses originally sentenced as a unit “continue to be treated in relation to each other, even after a portion of the sentence has been violated,” and second, to prevent offenders from receiving a sentence upon revocation of probation that, combined with the sentence originally received, exceeds the maximum guidelines sentence. Id.

In a decision issued shortly after Tripp, Horner v. State, 617 So.2d 311 (Fla.1993), we stated that the provision now found in section 948.01(6) defines “split sentencing with regard to the sentencing that the trial court is imposing for all cases against the defendant.” Id. at 313. Homer involved a “multiple-case sentence,” id. at 312, in which the defendant was sentenced in three separate cases. We concluded that because the trial court adjudicated “three cases in one hearing and imposed a single split sentence,” a term of probation on one offense that created a gap between the incarceration and probation imposed on another offense did not violate the statutory requirement that probation immediately follow incarceration in a split sentence. Id. at 313.

In subsequent decisions based on Tripp, we continued to emphasize that several sentences imposed in a single sentencing based on a single scoresheet were -to be treated as a single unit upon revocation of probation or community control. In Hodgdon v. State, 789 So.2d 958 (Fla.2001), we repeated the imperative that “offenses treated together at sentencing via a single scoresheet continue to be treated as a single unit for purposes of sentencing upon a violation of probation.” Id. at 962 n. 5 (emphasis supplied). The issue in Hodgdon was whether the defendant was entitled to have Tripp credit applied individually to the sentence for each offense on which he violated probation.. This Court held that Tripp’s requirement of credit for time previously served applies to the overall sentence imposed upon violation of probation rather than against each individual count on which probation is revoked. See id. at 963.

The driving force in Hodgdon, as in Tripp, was fairness. ■ To have applied credit against the sentence on each individual count rather than against the overall sentence would have circumvented the guidelines by providing “a sentencing boon or windfall to defendants upon violations of probation.” Id. In Hodgdon, per-count credit would also have resulted in the defendant serving no time in prison — a result surely contrary to the trial court’s intent. See id. at 962...

In another case arising from Tripp, this Court reaffirmed that because of the continuing interrelationship of sentences originally imposed together, “Tripp should be applied notwithstanding the fact that the newly imposed sentence is within the guidelines.” State v. Witherspoon, 810 So.2d 871, 873 (Fla.2002). Thus, we held in a single-scoresheet scenario that an offender was entitled to Tripp credit even though the sentence imposed upon violation of probation would not exceed the maximum overall guidelines sentence when combined with the time previously served on a different offense. Id. at 873. Most recently, in Moore v. State, 882 So.2d 977 (Fla. 2004), this Court held that Tripp does not apply to the Criminal Punishment Code, which is effective for offenses committed on or after October 1, 1998. We explained that the interrelationship of sentences under the guidelines is absent from the Criminal Punishment Code, which provides no ceiling other than the statutory maximum penalty and authorizes consecutive sentences. See id. at 980-81.

C. Tripp Meets Eldridge

In Eldridge, we construed the statutory provision applicable here in a case that involved true split sentences of prison and probation imposed for a number of offenses. See 760 So.2d at 889. We held that upon revocation of community control or probation imposed as part of a true or probationary split sentence for a single offense, both the trial court and the DOC have the authority to forfeit gain time. See id. at 892. We had previously explained, in Forbes v. Singletary, 684 So.2d 173, 174 (Fla.1996), that the trial court’s authority derives from language in section 948.06(6) providing that upon revocation of the probationary or community control portion of a split sentence, the offender may be deemed to have forfeited all gain time earned up to the date of his release. We held in Eldridge that pursuant to section 944.28(1), the DOC may forfeit the gain time even if the trial court chooses to retain it. See 760 So.2d at 891.

We recognized in Eldridge that actual time served and gain time are not the same when it comes to awarding credit to a defendant upon revocation of probation. ‘While the award of gain time reduces an inmate’s release date, just as actual time spent incarcerated, it is clearly not synonymous with actual time served. On the contrary, gain time is time not served.” Id. The DOC explained that the authority to award and forfeit gain time (as opposed to the trial court’s authority to award credit for time served) is used to “encourage good behavior in prison and on supervision.” Id. at 890. We observed that it was the “Legislature that provided for the award of gain time in the first place and it made the retention of that gain time conditional upon the satisfactory completion of the inmate’s supervision.” Id. at 892. Thus, under Eldridge, when a defendant is sentenced to a prison term upon revocation of probation imposed as part of a split sentence for a single offense, the DOC has the complete authority to forfeit all gain time previously awarded. As in the single-unit sentence scenario addressed in Tripp, the effect of this forfeiture on single-offense sentences is to require the offender to serve either the forfeiture penalty or the new sentence less time previously served, whichever is greater.

In this case, the First District concluded that the sanctions initially received by Gibson were a probationary split sentence within the meaning of Eldridge. See Gibson, 828 So.2d at 423. Relying on Tripp, Homer, Hodgdon, and Eldridge, Judge Lewis elaborated on this conclusion in his separate concurrence:

[E]ven though he was convicted of multiple offenses, Gibson received only one sentence because the offenses were scored on a single scoresheet and considered together in forming his score-sheet sentence.
As Gibson received only one sentence for his three cases, his initial sentence constituted a probationary split sentence. Thus, pursuant to Eldridge, the Department had the authority to forfeit any accrued gain time upon revocation of probation.

Id. at 424-25 (Lewis, J., specially concurring).

Judge Lewis’s analysis correctly applies our precedent in this area. We conclude that the DOC’s application of section 944.28(1) to the single-nnit sentence structure first addressed in Tripp is consistent with our prior case law in which we have recognized the continuing relationship among guidelines sentences that were originally imposed in relation to one another. Application of.section 944.28(1) to single-unit sentences also serves the Legislature’s purpose of penalizing offenders for violation of probation through the forfeiture of gain time.

We conclude that extending the interrelationship of single-unit guidelines sentences to gain-time forfeiture does not violate the requirement- in section 775.021(4)(a), Florida Statutes (2003), and Florida Rule of Criminal Procedure 3.701(d)(12) that the offender receive a sentence for each offense. An offender sentenced for multiple offenses receives a separate sentence for each offense, even though the sentences for offenses scored on a single seoresheet are viewed as a single unit out of concern for fairness and uniformity in sentencing. So long as each sentence remains within the statutory and guidelines máximums,, the application of the gain-time forfeiture does not turn separate sentences into an unauthorized general sentence.

Viewed from the perspective of fairness and. uniformity, an offender sentenced upon revocation of probation that was- imposed as part of a single-unit sentence should not be exempt from the gain-time forfeiture penalty of section 944.28(1) while an offender sentenced upon revocation of probation imposed as part of a split sentence for a single offense is subject to the forfeiture penalty. Allowing the forfeiture penalty to be applied to single-offense split sentences while precluding application of the penalty to single-unit sentences on which the offender received Tripp credit would result in disparate treatment based solely on sentence structure rather than for any purpose served by either Tripp or section 944.28(1).

We recognize that the DOC’s application of section 944.28(1) to single-unit sentences will in some cases counteract much of the benefit of Tripp credit. However, if we were to hold that section 944.28(1) does not extend to single-unit sentences, the credit for unforfeited gain- time applied to sentences imposed upon revocation of probation would give offenders such as Gibson a windfall in comparison to those sentenced to prison upon violating probation imposed as part of a single-offense split sentence. As we stated in Hodgdon, “Tripp was never intended to provide a sentencing boon or windfall to defendants upon violation of probation.” 789 So.2d at 963.

III. THIS CASE

Gibson completed his sentences in Case Nos. 93-216 and 93-297 with no post-release supervision of any kind and thus was not subject to reimprisonment in those cases. The trial court sentenced Gibson to seven years of incarceration in Case No. 93-960. When Gibson applied for Tripp credit, he received 1681 days of credit for time actually served on the previous sentences.

The First District stated that the trial court also credited unforfeited gain time accrued on the initial prison sentences. See Gibson, 828 So.2d at 423. However, the record does not indicate exactly how much credit the trial court intended to grant under Tripp. If the trial court had knowingly granted 1969 days of credit for unforfeited gain time as well as 1681 days of credit for the 1681 days actually served, see supra at 378, Gibson would have received ten years of credit on a seven-year sentence, which would have negated any punishment for violation of probation. We therefore reject Gibson’s assertion that he should have received credit for both time served and gain time from the expired sentence without being subjected to the forfeiture penalty.

Gibson also asserts that the gain-time forfeiture from the expired sentences in Case Nos. 93-216 and 93-297 caused a double jeopardy violation, because in effect the forfeiture of gain time resurrects a sentence that has been fully served. This concern is also implicit in Judge Benton’s view that a prison sentence without a probationary component cannot be revived once the sentence has expired. See Gibson, 828 So.2d at 428 (Benton, J., dissenting).

We conclude that the gain-time forfeiture did not result in a double jeopardy violation in this case. Gibson received a cumulative seven-year sentence upon revocation of probation. Had he received neither Tripp credit nor the gain-time forfeiture penalty, he would have been compelled to serve all seven years, less any newly earned gain time. However, after the trial court granted Tripp credit, the DOC subtracted 1681 days of Tripp credit on the sentences in Case Nos. 93-216 and 93-297, yielding 874 days or 2.4 years to be served on the seven-year (2555-day) term. Then, in order to effectuate intent of section 944.28(1) that the prisoner be penalized for probation violation by loss of gain time previously accrued, the DOC applied section 944.28(1) in a manner that required Gibson to serve no less than the forfeiture penalty upon revocation of probation. Because the forfeiture penalty exceeded the sentence imposed upon revocation of probation after deduction of time served on the prior sentence, Gibson served only the forfeiture penalty, rather than the seven years he would have served without either the credit or the penalty. Accordingly, he did not suffer a “Tripp penalty” in which the forfeiture of gain time from the completed sentences resulted in a sentence on violation of probation longer than he would have received without taking into consideration the completed sentence for purposes of either the Tripp credit or statutory forfeiture penalty. With no net increase in the revocation sentence based on the expired sentence, there is no double jeopardy violation.

IV. CONCLUSION

The certified question in this case asks whether the forfeiture penalty authorized by our interpretation of section 944.28(1) in Eldridge also applies to the type of sentence imposed in Tripp — i.e., those in which offenses pending for sentencing are included in the same scoresheet and incarceration is imposed for one offense and probation or community control for another. For the reasons explained herein, we answer the certified question in the affirmative and approve the decision below.

It is so ordered.

WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO and BELL, JJ., concur.

      . The First District's certification of a question of great public importance gives us discretionary jurisdiction to review its decision. See art. V, § 3(b)(4), Fla. Const. We have chosen to retain jurisdiction although Gibson’s sentence has expired so we may address the certified question and resolve uncertainty reflected in the district court opinion on the applicability of section 944.28(1), Florida Statutes (1993), to sentences like those imposed here. This is an issue affecting numerous sentences imposed upon revocation of community control or probation. Cf. Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984) ("It is well settled that mootness does not destroy an appellate court's jurisdiction ... when the questions raised are of great public importance or are likely to recur.”).

      . See Fla. R.Crim. P. 3.701(d)(1) ("One guideline scoresheet shall be utilized for each defendant covering all offenses pending before the court for sentencing.”).

      . Gibson's service of his sentence was fulfilled as follows:
      21 days Original county jail credit
      1660 days Time served in prison
      1200 days Basic gain time
      979 days Additional gain time
      -210 days Gain time forfeited for disciplinaiy reasons
      3650 days Ten years (10 x 365 days)

      . This method of calculation is more beneficial to the prisoner than adding the forfeiture penalty to the new sentence after deducting credit for time served. In Gibson’s case, treating the forfeiture penalty as consecutive to the new sentence would have resulted in his serving 288 days more than the seven-year sentence imposed.

      .In 1989, revocation of probation or community control was added to the circumstances contained in section 944.28(1) that authorize the DOC to forfeit an offender's gain time. See ch. 89-531, § 6, at 2717, Laws of Fla.; Dowdy v. Singletary, 704 So.2d 1052, 1053-54 (Fla.1998). The 1989 legislation superseded State v. Green, 547 So.2d 925 (Fla.1989), in which this Court held that under a previous version of section 944.28(1), credit both for time actually served and for gain time must be granted against a sentence imposed upon revocation of the probationary portion of a split sentence. See id. at 927. The present version is essentially unchanged from the 1993 version applicable to Gibson.

      . Section 948.06(6) was enacted in chapter 89-531, section 13, at 2720, Laws of Florida.

      . Effective May 30, 1997, forfeiture of gain time is mandatory under this provision, which was redesignated section 948.06(7). See ch. 97-239, § 5, at 4403, Laws of Fla.; ch. 97-299, § 13, at 5381-82, Laws of Fla.


text:
    Ned P. PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2091.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2004.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and, Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

ON MOTION FOR REHEARING

Ned Payne appealed his sentence which was imposed by the trial court after a jury found him guilty of committing the crime of theft. Having found no merit in the issues raised in Payne’s initial brief, we issued a per curiam affirmance. Payne filed a motion for rehearing requesting that this court recall its decision based upon the fact that defense counsel had not received a copy of the State’s answer brief and therefore he had not had the opportunity to file a reply brief. We granted Payne leave to file a reply brief; however, upon review thereof, we conclude that no reversible error has been demonstrated. Accordingly, we deny Payne's motion for rehearing.

DENIED.

SAWAYA, C.J., PLEUS and PALMER, JJ., concur.


text:
    John ALBERS, David Locker and Department of Insurance, State of Florida, Petitioners, v. Karen HINES, Respondent.
    No. 1D04-1674.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2004.
    Rehearing Denied Nov. 10, 2004.
    Robert B. Buchanan and Renee E. Thompson of Siboni, Hamer & Buchanan, P.A., Ocala, for Appellants.
    Joseph W. Little, Gainesville; Robert C. Widman, Venice, for Appellee.
   PER CURIAM.

Petitioners seek review of a nonfinal order denying their motion for summary judgment, in which they claimed entitlement to qualified immunity from respondent’s federal civil rights claims as a matter of law. Because the trial court did not rule that petitioners were not entitled to qualified immunity as a matter of law, the order is not appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vii). See Butler v. Dowling, 750 So.2d 674 (Fla. 4th DCA 1999). Treating the request as a petition for a writ of certiorari (id. at 675), we deny the request because petitioners have failed to demonstrate that the trial court’s order constitutes a departure from the essential requirements of law.

PETITION FOR WRIT OF CERTIO-RARI DENIED.

WOLF, C.J.; BARFIELD and WEBSTER, JJ., CONCUR.


author: MONACO, J.

text:
    Lamonica BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-2688.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2004.

      Susan E. Barnes of Susan E. Barnes, P.A., Orlando, for Petitioner.
    No appearance for Respondent.
   MONACO, J.

Lamonica Brown petitions this court seeking issuance of a writ of mandamus to require the trial judge to withdraw an order recusing himself from consideration of her case, and requiring the trial court to rescind an order vacating an earlier order granting Rule 3.850 relief. We deny the petition.

The facts are straight forward. After an evidentiary hearing the originally assigned trial judge, Judge Whitehead, granted Ms. Brown’s Rule 3.850 motion, and ordered a new trial. At a bench conference the same day, however, Judge Whitehead announced that he was going to recuse himself because he had been approached in church by one of Ms. Brown’s relatives, apparently seeking favorable treatment for Ms. Brown. The State immediately filed a motion to disqualify Judge Whitehead, and argued that he should also withdraw the order granting the Rule 3.850 relief. Judge Whitehead granted the motion, and rescinded the earlier order. A new judge was assigned, and although we have not been made aware of its status, the case is apparently still pending below.

Meanwhile, seventeen months passed. Ms. Brown now seeks the mandamus relief earlier referenced.

Rule 9.100, Florida Rule of Appellate Procedure, governs appellate extraordinary relief, including mandamus. Although that rule contains no specific time limit within which mandamus must be sought, it seems clear that a petitioner must act within reasonable temporal bounds. Cf. Estate of Carlton v. Rogers, 378 So.2d 1212 (Fla.), cert. denied, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980). This is particularly true since mandamus is governed by equitable principles. See State ex rel. Davis v. Adams, 238 So.2d 415 (Fla.1970). We have previously held that the thirty-day time limit applicable to seeking certiorari under Rule 1.630(c), Florida Rules of Civil Procedure, does not apply to mandamus, because mandamus is often sought to compel the rendition of an order. See Milanick v. Town of Beverly Beach, 820 So.2d 317 (Fla. 5th DCA 2001). Under those circumstances it would be illogical to apply a thirty day limitation. In the present case, however, in which the petitioner is seeking mandamus seventeen months after the re-cusal order is entered, relief is being sought in a time frame that is well in excess of the envelope of reasonability. On this ground alone a denial of the petition is justified.

Perhaps more importantly, however, Judge Whitehead did exactly what he should have done under the circumstances. By his actions he sought to maintain the confidence of the public in the impartiality of the judiciary, as he was required to do. See Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 861-864, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). As the Florida Supreme Court has noted, “no judge shall preside in a case in which he is not ‘coldly neutral,’ impartial, and independent.” See Seay v. State, 286 So.2d 532, 544 (Fla.1973), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974). If the trial judge felt his impartiality or independence was compromised, or if he concluded that there might be an appearance of impropriety, then his disclosure and recusal was appropriate. Deference should be given to the decision of a trial judge not to preside over a case. See Ingram v. Coca-Cola Enterprises, Inc., 823 So.2d 314 (Fla. 5th DCA 2002). Once the judge concluded that he should voluntarily recuse himself from the case, vacating his earlier order, while perhaps not required, was certainly within his discretion.

PETITION DENIED.

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

      . Mandamus will lie to correct a recusal based upon a mistaken determination that the premise for the recusal is sufficient. See Ingram v. Coca-Cola Enterprises, Inc., 823 So.2d 314 (Fla. 5th DCA 2002); May Invs., Inc. v. Lisa, S.A., 814 So.2d 471 (Fla. 3d DCA 2002).

      . We note, as well, that a judge must rule on a motion to disqualify filed pursuant to Rule 2.160, Florida Rules of Judicial Administration, ''immediately.” This term has been defined by the Florida Supreme Court to mean not later than 30 days after the presentation of the motion to the court. See Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299, 302 (Fla.2003).


text:
    Dale R. PHELPS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-4039.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2004.
    Rehearing Denied , Nov. 10, 2004.
    Dale R. Phelps, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


author: SHAHOOD, J.

text:
    ROBIN HOOD GROUP, INC., Jeannie B. Cook a/k/a Barbara J. Cook, Kristan J. Fewkes, Michael Fewkes, Fewkes Management Corporation, and Corey Lama, Appellants, v. FLORIDA OFFICE OF INSURANCE REGULATION and Kevin M. McCARTY, as Director, Appellees.
    No. 4D03-3376.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    Rehearing Denied Nov. 16, 2004.

      Jeffrey Deery and Richard B. Weinman of Winderweedle, Haines, Ward & Woodman, P.A., Orlando, for appellants.
    Clifford A. Taylor, Assistant General Counsel, Office of Insurance Regulation, Tallahassee, for appellees.
   SHAHOOD, J.

Appellants, Robin Hood Group, Inc. (Robin Hood), Jeannie B. Cook a/k/a Barbara J. Cook (Cook), Existan J. Fewkes, Michael Fewkes, Fewkes Management Corporation, and Corey Lama (collectively, appellants) appeal the Immediate Final Order entered by the Office of Insurance Regulation. We affirm.

Cook (and a partner'who is not involved in these proceedings) operated a company called Robin Hood International Ltd., Inc. (Robin Hood International). The company was an Illinois corporation in the viatical insurance business. In 1996, on behalf of Robin Hood International, Cook submitted an application for a license as a viatical settlement provider with the State of Florida Treasurer/Insurance Commissioner. The application was denied for several reasons, including failure to fully comply with application requirements and failure to disclose details concerning several bankruptcy filings by Cook. Cook disputed the findings and requested an administrative hearing, but later withdrew that request and the matter was closed. In September 1997, the Department of Insurance (DOI) entered a Cease and Desist order finding that, despite the denial of its application, Robin Hood International had been performing the functions of a viatical provider in Florida. DOI directed the company to immediately discontinue such activities or be subject to penalties.

In November 2000, Cook and Kristan Fewkes (Fewkes) formed Robin Hood, a Florida corporation. Two years later, on behalf of Robin Hood, Cook and Fewkes submitted an application for a viatical insurance broker license in Florida. In the application, it was explained that Robin Hood International remained a viable corporation solely for the purpose of “taking care of old business” and was not actively pursuing new business. Robin Hood was presented as being a separate entity, with the same address and “essentially the same business.” The DOI sent Cook a Notice of Denial, advising that the application was denied on the basis that Robin Hood had, in June 2001 and in June 2002, “performed the functions of a viatical settlement provider, or ha[d] entered into or solicited viatical settlement contracts without first having obtained a license from the Department, in violation of Section 626.9912, Florida Statutes.” The DOI also served Cook with an Investigative Subpoena commanding her to turn over various documents relating to her business to assist the DOI in determining “the existence of any violation of the Florida Insurance Code.”

Jay Paul Newton (Newton), a special investigator with the Florida Department of Financial Services (Office of Insurance Regulátion, formerly DOI), filed an affidavit stating that he accessed Robin Hood’s website under an assumed name to ascertain whether the company was doing viatical business without a license. He completed the information request form on the web site, giving a fictitious name and using an email address created specifically for this purpose. Three days later, he received a federal express package of information from Robin Hood sent to the Georgia address he had provided in the request. The cover letter from Robin Hood had an address in Palm Beach Gardens, Florida, as did the self-addressed envelope provided for him to return his completed Viatical/Life Settlement Application. Also included in the packet were the following: (1) Viatical/Life Settlement Application; (2) Physician Diagnosis and Competency Statement; (3) Insured Statement of Consent; (4) Notice of Disclosure; (5) Life Insurance Release Form; and a(6) Medical Release Form.

Based on Newton’s investigation, the Office of Insurance Regulation entered an Immediate Final Order finding that Robin Hood was in violation of the insurance laws for conducting viatical settlements without a license, and directing Robin Hood and all parties involved to immediately cease and desist from transacting any new viatical insurance business. In addition, Cook was directed to send a letter (to be approved by the department) to each and every via-tor, policyholder, agent, investor, broker, salesperson, etc. notifying them that no further applications would be accepted, and to deliver to the department a complete accounting of all life insurance contracts purchased, sold or negotiated since the inception of Robin Hood in Florida. The order stated that the issuance of the Immediate Final Order was “fair under the circumstances due to the potential grave harm resulting from unauthorized insurance entities engaging in the business of insurance in Florida.”

In regulating the insurance industry, the DOI is vested with the authority to issue cease and desist orders if the department “has reasonable cause to believe” that a person is engaging in conduct that, among others, is “hazardous to the insurance buying public” or which violates any provision of the Florida Insurance Code. § 624.310(3)(a)l, 2, Fla. Stat. (2003). The DOI may issue emergency cease and desist orders without first providing notice and opportunity to be heard only if the department has “reasonable cause to believe that a licensee has engaged in certain wrongful conduct, but also find[s] that such conduct requires emergency action.” United Ins. Co. of Am. v. State, Dep’t of Ins., 793 So.2d 1182, 1183 (Fla. 1st DCA 2001); see also Bank of Credit & Commerce Int’l (Overseas) Ltd. v. Lewis, 570 So.2d 383 (Fla. 1st DCA 1990) (stating, “Chapter 120, Florida Statutes, contemplates that agencies will only take summary action (action which affects the fundamental rights of a party prior to giving the party notice and opportunity to be heard) in emergency situations”).

A cease and desist order entered on an emergency basis must “recite with particularity the facts underlying such finding in the final order.” § 120.59, Fla. Stat. (2003). If the facts alleged in the complaint demonstrate “immediacy, necessity and fairness,” no hearing is required prior to emergency action. See Witmer v. Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 631 So.2d 338, 341 (Fla. 4th DCA 1994). It is not sufficient to simply allege a statutory violation. See Unimed v. State, 29 Fla. L. Weekly D889 (Fla. 1st DCA Apr.13, 2004) (holding that it is not enough to make conclusory allegations that practicing in Florida without a license is an immediate danger to the public health). The standard of review of an immediate final order is whether, on its face, the order “sufficiently states particularized facts showing an immediate danger to the public welfare.” Saviak v. Gunter, 375 So.2d 1080 (Fla. 1st DCA 1979).

The immediate final order in this case contains factual allegations demonstrating the following: “1. The, complained of conduct was likely to continue. 2. The order was necessary to stop the emergency. 3. The order was sufficiently narrowly tailored to be fair.” Bertany Ass’n for Travel & Leisure, Inc. v. Fla. Dep’t of Fin. Servs., 877 So.2d 854 (Fla. 1st DCA 2004) (citing Premier Travel Int’l, Inc. v. State, Dep’t of Agric. & Consumer Servs., 849 So.2d 1132 (Fla. 1st DCA 2003)). Consequently, we affirm the entry of the immediate final order because the facts alleged are sufficiently specific and particularized to demonstrate the risk of immediate and ongoing harm to the insurance buying public. We also affirm the second issue raised by appellant without discussion.

AFFIRMED.

KLEIN, J., and EMAS, KEVIN M., Associate Judge, concur.

      . This business involves facilitating or assisting owners of life insurance policies in selling their policies in exchange for lump sum payments.


author: WALLACE, Judge.

text:
    Scotty Lamar POE, individually, and Jessica Diane Poe, his wife; and Scotty Lamar Poe and Jessica Diane Poe, as the natural parents and next Mends of Nicholas Scott Poe, Megan Diane Poe, and Jordan David Poe, minor children, Appellants, v. IMC PHOSPHATES MP, INC., a Florida corporation; Hillsborough County, a municipal corporation; and Brainard Hunting Harris, Appellees.
    No. 2D03-4405.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.

      Paul B. Catania and Paul S. Reed of Catania & Catania, P.A., Tampa, for Appellants.
    Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellee IMC Phosphates MP, Inc.
    No appearance for Appellees Hillsbor-ough County and Brainard Hunting Harris.
   WALLACE, Judge.

This is a premises liability case. Scotty Lamar Poe and Jessica Diane Poe, his wife, individually and on behalf of their minor children, challenge a final summary judgment that dismissed their personal injury action against IMC Phosphates MP, Inc. (IMC). Mr. Poe drove his vehicle at night from the public highway onto an abandoned entrance to an old phosphate mine owned by IMC, where Mr. Poe’s vehicle crashed into a large metal pipe that IMC had positioned about twenty feet inside the entrance to its property as a barrier to vehicles. Upon a review of the record, we conclude that IMC failed to meet its burden on summary judgment of showing the absence of any genuine issue of material fact and that it was entitled to judgment as a matter of law. Accordingly, we reverse the summary judgment, and we remand this case to the circuit court for further proceedings.

THE FACTS

The accident occurred in a rural area of southeastern Hillsborough County. On the night of August 27, 1999, Mr. Poe, who had limited experience driving in the area, was traveling east on Welcome Road toward Keysville Road East, where he intended to turn. Welcome ends at Keys-ville, forming a “T” intersection. IMC’s property lies east of Keysville, directly across from the intersection with Welcome. A stop sign at the corner of Welcome and Keysville controlled the traffic traveling east on Welcome, which is required to turn at Keysville. The intersection was not illuminated, nor was the entrance to IMC’s property. Deposition testimony in the record was in sharp conflict as to whether, at the time of the accident, the stop sign was in its intended position or was bent out of place so that it would not be clearly visible to a driver approaching Keysville on Welcome. Deposition testimony from some area residents also indicated that displacement of the sign was not an unusual occurrence. One local resident testified that he had just reinserted the sign the day before the accident, but the morning after the accident, it was again out of position.

IMC’s property had a paved driveway providing an apparent entrance to the property from Keysville. The entrance, which was not illuminated, had the appearance of a continuation of Welcome. The paved portion of the entrance was formerly part of a road that extended into IMC’s property, and motorists continued to use the paved portion of the entrance as a turnaround. However, about twenty feet back from the eastern edge of Keysville, a large pipe barrier lay horizontally across the entrance at a point where the pavement ended and where the area turned into a grassy pass. IMC had placed the pipe across the entrance to block access to all-terrain vehicles. Riders on such vehicles occasionally used IMC’s old phosphate mine to ride for recreational purposes. The pipe was a rusty brown color and was neither reflective nor painted a bright col- or so as to be visible at night. Welcome slopes downward approaching Keysville, leveling at Keysville. Because of Welcome’s slope — according to a long-time area resident-the -lights of a vehicle on Welcome approaching Keysville- at night would not illuminate Keysville or the pipe on IMC’s property ■ until the vehicle reached the intersection of Keysville and Welcome. There was no sign or other warning at the entrance to IMC’s property of the large pipe just beyond the entrance.

Without stopping at Keysville, Mr. Poe drove through the “T” intersection onto the pavement at the entrance to IMC’s property and collided, head-on with the pipe. The force of the collision caused serious physical injuries to Mr. Poe and to his three young children who accompanied him in the vehicle. Mr. Poe testified at his deposition that he did not see a stop sign at Welcome and Keysville and that he thought the pavement on IMC’s property to the east of Keysville was a continuation of Welcome. Mr. Poe testified further that he did not see a sign restricting access to IMC’s property and did not see the pipe at the end of the paved portion of IMC’s property.

In opposition to IMC’s motion for summary judgment, Mr. and Mrs. Poe submitted the affidavit of an expert witness, Denny V. Kunak, who held a Doctorate of Science degree in human factors engineering and a Ph.D. in management. Dr. Ku-nak visited the accident site and reviewed the deposition testimony, the accident reports, a videotape, and photographs of the scene. Dr. Kunak opined, in substance, that the design of IMC’s entrance — coupled with the use of a nonreflective “heavy and unforgiving industrial pipe” as a vehicle stop — contributed significantly to the accident and failed to minimize possible collision damage. Dr. Kunak also observed that IMC could have achieved its purpose by using a different type of fencing together with the easily visible lightweight barricades used in road construction projects and a sign with the words “Road Closed.”

THE CIRCUIT COURT PROCEEDINGS

In the circuit court, the parties focused their arguments on whether Mr. Poe was an invitee, a licensee, or a trespasser on IMC’s property and on the resulting duty of care owed by IMC to Mr. Poe. IMC argued that Mr. Poe was a trespasser on its property, not an invitee. On appeal, IMC argues that Mr. Poe was either a trespasser or, at best, an uninvited licensee. Thus IMC’s duty to Mr. Poe was only “to avoid willful and wanton harm to him, and to warn him of a defect or condition known by the landowner to be dangerous when such danger is not open to ordinary observation by the licensee or trespasser.” Morris v. Florentes, Inc., 421 So.2d 582, 583 (Fla. 5th DCA 1982). According to IMC, the large pipe was open and obvious to motorists, and it was not foreseeable that Mr. Poe would drive past the stop sign at Welcome, cross Keysville onto IMC’s paved road segment, and crash into the pipe. IMC contended that it had not breached any duty that it may have owed to Mr. Poe.

On the other hand, Mr. and Mrs. Poe argued that Mr. Poe was on IMC’s property by an implied invitation to enter because IMC’s paved road at the top of the “T” intersection appeared to be a continuation of Welcome. If Mr. Poe was an invitee on IMC’s property, as Mr. and Mrs. Poe contended, then IMC owed him a duty to keep the property reasonably safe and to protect him from dangers of which IMC was, or should have been, aware. Post v. Lunney, 261 So.2d 146, 147 (Fla.1972). In the alternative, Mr. and Mrs. Poe argued that even if Mr. Poe was an uninvited licensee or a trespasser as IMC contended, the placement of an unmarked, nonreflec-tive rigid pipe at the end of IMC’s pavement that appeared to be a continuation of Welcome constituted willful and wanton misconduct. The circuit court entered final summary judgment in favor of IMC.

THE STANDARD OF REVIEW

Review of a summary judgment is de novo, requiring a two-pronged analysis. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). First, a summary judgment is proper only if there is no genuine issue of material fact, viewing every possible inference in favor of the party against whom summary judgment has been entered. Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000). Second, if there is no genuine issue of material fact, a summary judgment is proper only if the moving party is entitled to a judgment as a matter of law. Aberdeen at Ormond Beach, 760 So.2d at 130. The presumption of correctness generally applicable to all orders subject to appellate review is relatively weak in review of a summary judgment because the appellate court is in no less of a position than the trial court in reviewing documentary evidence. Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995); Savage-Hawk v. Premier Outdoor Prods., Inc., 474 So.2d 1242, 1244 (Fla. 2d DCA 1985). In reviewing the summary final judgment entered in this premises liability case, we are mindful that the issue of whether a negligent condition exists on premises generally involves a disputed issue of material fact which precludes summary judgment. Cold Storage Café, Inc. v. Barone, 779 So.2d 371, 373 (Fla. 2d DCA 2000).

ANALYSIS

Genuine issues of fact in the record give rise to two distinct legal theories of IMC’s liability, thus precluding summary judgment in its favor.

A. Misleading Private Way

Courts from numerous jurisdictions have held that a traveler who enters private land that appears to be a continuation of the public highway becomes an implied invitee. Under such circumstances, the owner of the land may be held liable for injuries sustained by the traveler resulting from the property owner’s failure to exercise due care to keep the property in a reasonably safe condition for travel. For example, in Beckwith v. Somerset Theatres, Inc., 139 Me. 65, 27 A.2d 596 (1942), the Supreme Judicial Court of Maine reversed a directed verdict for the defendant property owner on facts very similar to those in this case. In Somerset Theatres, the plaintiff motorist drove at night over pavement on private property made of the same surface as the public street, thinking that it was a continuation of the public street. The motorist was injured when her vehicle struck a large concrete block located on the paved portion of the private land. The Maine court reversed the directed verdict for the defendant property owner in part because there were issues of fact concerning whether the motorist was on the property by implied invitation on account of the property’s resemblance to the public road and whether the owner kept the property in a reasonably safe condition for travel. Id. at 598. The court explained:

If a person so surfaces and maintains his land abutting on a public highway as to indicate to the traveling public that such land is included in and is a part of such highway, with no sufficient warning to the contrary, he impliedly invites or allures travelers lawfully on the highway to drive over that land as if it were a part of such highway, provided such travelers did not know that the land was private property. In such circumstances, the travelers would not be trespassers on the land, but invitees, to whom the land owner owes the duty of keeping it in a reasonably safe condition for such travel.

Id.; see also Aluminum Co. of Am. v. Walden, 230 Ark. 337, 322 S.W.2d 696 (1959); Mercier v. Naugatuck Fuel Co., 139 Conn. 521, 95 A.2d 263 (1953); Williamson v. S. Ry. Co., 42 Ga.App. 9, 155 S.E. 113 (1930); Reddington v. Getchell, 40 R.I. 463, 101 A. 123 (1917). Although the facts of the case are not stated in the opinion, this court cited to the Somerset Theatres decision with approval almost fifty years ago in Atlantic Coast Line Railroad Co. v. Corsel, 99 So.2d 305 (Fla. 2d DCA 1957).

The classification of the traveler as an “implied invitee” in cases such as Somerset Theatres is a transparent legal fiction. Dean Prosser explains that “[i]t is often said in such cases that there is an implied ‘invitation’ to enter, but the true basis of liability seems to be the misrepresentation of the character of the property.” W. Page Keeton, Prosser and Keeton on Torts § 57 (5th ed.1984). Under the implied invitee approach to the misleading private way problem, the cause of Mr. Poe’s entry onto IMC’s property determines Mr. Poe’s status either as an invitee or as an uninvited licensee or a trespasser and, therefore, the extent of IMC’s responsibility. This question involves issues of material fact not subject to determination on summary judgment. “The status of the person on the premises of another is generally a question of fact.” Lukancich v. City of Tampa, 583 So.2d 1070, 1072 (Fla. 2d DCA 1991). Assuming Mr. Poe was an implied invitee on IMC’s property, additional questions of fact arise concerning whether IMC kept its property in a reasonably safe condition for travel.

The legal fiction of implying an “invitation” to enter employed in Somerset Theatres and similar cases turns a blind eye to the reality that the traveler in these cases has no intention of going on the property owner’s land and enters because he misapprehends the true state of affairs and believes that the private way is a continuation of the public road. The modern approach to these eases — which is more responsive to the facts — focuses on what caused the traveler to leave the pub-lie road and come into contact with the condition causing the injury and whether the property owner breached a duty to the traveler that contributed to that result. The Restatement (Second) of Torts, section 367 (1965), adopts such an analysis as follows:

A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway is subject to liability for physical harm caused to them, while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.

Pursuant to section 367, the familiar tripartite classification of visitors to land owned by others as invitees, licensees, and trespassers is irrelevant. Instead, “liability depend[s] upon the fact that the [traveler] reasonably believes that the land is a highway, being misled by the actor’s conduct into such belief.” Id. (Special Note, which is also applicable to sections 368, and 369).

This court approved section 367 of the Restatement in Drady v. Hillsborough County Aviation Authority, 193 So.2d 201 (Fla. 2d DCA 1966). In Drady, a motorist traveling at night struck a concrete abutment on the defendant’s property. The motorist claimed that he was misled by road conditions on and off the defendant’s property into believing that the public road continued into that property. In a decision reversing the dismissal of the motorist’s complaint with prejudice, this court described the duty of an adjacent property owner to travelers on a public highway as follows: “The adjacent property owner ... has the duty to maintain its property in a reasonably safe condition for travel after it knows or should know that others will reasonably believe it to be a public highway.” Id. at 204-05. The Third and Fourth Districts have also approved the rule stated in section 367. See Hollywood Corporate Circle Assocs. v. Amato, 604 So.2d 888 (Fla. 4th DCA 1992); Felton v. W. Gables Homes, Inc., 484 So.2d 639 (Fla. 3d DCA 1986).

Pursuant to the analysis in section 367 and this court’s decision in Drady, there were several genuine issues of material fact raised by the record. Initially, there was a question whether IMC knew or should have known that motorists such as Mr. Poe would reasonably believe that the entrance to its property was a continuation of the public highway. If so, additional questions arose concerning whether IMC had failed to exercise reasonable care to maintain the entrance to its property in a reasonably safe condition for travel and whether any such failure was a proximate cause of Mr. Poe’s collision with the large pipe.

B. Dangerous Condition Near an Existing Highway

In addition to the misleading private way theory, the facts in this case pose a separate but related question concerning whether IMC’s placement of the pipe at the end of the paved entrance to its property created a condition dangerous to persons in the vicinity traveling on Keysville or Welcome. We may assume, without deciding, that Mr. Poe was, as IMC contended, an uninvited licensee or a trespasser on its property. Even under this assumption, issues of fact precluded the entry of summary judgment. IMC knew that unauthorized persons used the abandoned entrance on Keysville to gain vehicular access to its property. Thus IMC’s knowledge of the presence of such unauthorized persons on its property was undisputed. There is an issue of fact concerning whether the placement of the large, nonreflective rigid pipe at the end of the paved entrance to IMC’s property created a hidden danger at night. There are also questions of fact concerning whether there was any adequate signage or other indication at the paved entrance on Keysville that Mr. Poe was entering IMC’s private property and not driving on a continuation of the public highway. See Brien v. Fla. Dep’t of Transp., 538 So.2d 526 (Fla. 4th DCA 1989) (reversing summary judgment for property owner because a genuine issue of material fact existed as to whether a roadway under construction with a sudden drop-off was a hidden danger at night for which warning was required to teenage trespassers who skated on the road; a second factual issue existed as to whether their presence should have been known to the owner). We also conclude that there are issues of fact in this case concerning whether the use of a large, nonreflective rigid pipe as a barrier to trespassers riding recreational vehicles, positioned at the end of a paved road that could be perceived as a continuation of the public road, could constitute the wanton and willful disregard of the safety of even a trespassing motorist. See Dyals v. Hodges, 659 So.2d 482 (Fla. 1st DCA 1995) (holding that issues of material fact precluded determination on summary judgment of the question of whether a property owner who placed stumps of wood inside his property, near a fence bounding his property through which several motorists had previously crashed and left the scene, acted with willful and wanton disregard for the safety of others).

Once, again, the Restatement provides a more modern approach to the problem. Section 368 of the Restatement (Second) of Torts addresses the issue of the liability of possessors of land for conditions dangerous to travelers on an adjacent highway. Section 368 provides:

A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.

In cases where section 368 applies, there are generally questions of fact concerning: (1) whether the excavation or other artificial condition on the property in fact involved an unreasonable risk of harm to others; (2) whether the owner realized or should have realized that an excavation or other artificial condition on his property involved an unreasonable risk to others; (3) whether the person or persons sustaining injury were traveling with reasonable care upon the highway; and (4) whether it was foreseeable that the person or persons injured might deviate from the highway in the ordinary course of travel and come into contact with the excavation or other artificial condition. Citing section 368, courts in other jurisdictions have found issues of fact precluding summary judgment or a directed verdict in favor of owners of property adjacent to a public road where a vehicle left the highway and encountered objects on the property that caused injury or death to the occupants of the vehicle. See Ousley v. Bd. of Comm’rs, 734 N.E.2d 290 (Ind.Ct.App.2000) (reversing summary judgment for property owner and remanding for trial because material issues of fact existed concerning whether it was foreseeable that motorists would leave paved highway and strike a fence post six feet from the road and whether there was an unreasonable risk to motorists who reasonably deviated from the highway because the fence post was much stronger than it needed to be); Military Highway Water Supply Corp. v. Morin, 114 S.W.3d 728 (Tex.Ct.App.2003) (holding that defendant property owner was not entitled to a directed verdict with respect to whether a vehicle reasonably deviated from the highway and whether it was reasonably foreseeable that the vehicle would land in an excavation thirty feet from the highway and flip and roll as a result of coming into contact with the excavation). Applying section 368 to this case, issues concerning whether IMC’s placement of the pipe at the entrance to its property involved an unreasonable risk to others, whether IMC realized or should have realized the danger posed by the pipe, whether Mr. Poe was traveling with reasonable care, and whether it was foreseeable that a motorist such as Mr. Poe would fail to stop at the intersection and collide with the pipe were questions of fact to be decided by a jury.

CONCLUSION

A review of the record reveals the existence of multiple issues of fact bearing on the question of IMC’s liability for the unfortunate accident at issue in this case. Accordingly, we reverse the final summary judgment in favor of IMC, and we remand this case to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., concur.

      . The facts, which are drawn from the pleadings, depositions, and affidavits in the record, are reviewed in the light most favorable to Mr. and Mrs. Poe as the nonmoving parties against whom final summary judgment was entered. Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 258-59 (Fla.2002).

      . Hillsborough County, also named as a defendant in the personal injury action, did not move for summary judgment.

      . For analysis of the three classifications of visitors upon the private property of others and the duty of care owed to a visitor on the property resulting from the applicable classification, see Wood v. Camp, 284 So.2d 691 (Fla.1973); Post v. Lunney, 261 So.2d 146 (Fla.1972); and Lukancich v. City of Tampa, 583 So.2d 1070 (Fla. 2d DCA 1991).
      Because the accident occurred before October 1, 1999, the 1999 amendments to the statute concerning immunity from liability for injury to trespassers on real property are not pertinent to the issue in this case. See ch. 99-225, § 19, at 1413-15; § 36, at 1428, Laws of Fla. (amending section 768.075).

      . In Drady, this court cited to the version of section 367 that appears in the earlier Restatement of Torts (1934). This version, which is substantially similar to the version that appears in the Restatement (Second) of Torts, provides:
      A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway, is subject to liability for bodily harm caused to them while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.

      . The First and Third Districts have both cited section 368 with approval. Scott v. Fla. Dep’t of Transp., 752 So.2d 30, 34 (Fla. 1st DCA 2000); Fla. Power & Light Co. v. Macias, 507 So.2d 1113, 1115 (Fla. 3d DCA 1987). The Supreme Court of Florida has acknowledged the rule stated in section 368 without expressly adopting it. Whitt v. Silverman, 788 So.2d 210, 215 (Fla.2001).


author: CASANUEVA, Judge.

text:
    K.A.K., a child, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4898.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

K.A.K., a seventeen-year-old juvenile, challenges an adjudication of delinquency for possession of drug paraphernalia. Finding merit in her contention that there was insufficient evidence to support the legal determination of constructive possession, we reverse.

K.A.K., driving her Dodge Neon with three friends, was involved in a serious motor vehicle accident. When Hillsbor-ough County Sheriffs Deputy Brian No-land arrived to aid in the accident investigation, the driver’s side door was open. K.A.K. admitted to him that although the car belonged to her mother, it was basically for her use. Looking into the car through the open driver’s door, Deputy Noland saw a glass or ceramic item on the floorboard of the driver’s side and, being experienced in the field, immediately recognized it as the type of pipe often used to smoke illegal substances. The deputy informed KA.K. that based on the glass pipe he saw on the floorboard he had probable cause to search the entire car. His search revealed a green, leafy substance scattered all about on the driver’s floorboard and in the driver’s seat. He obtained some of this green, leafy substance but did not perform any chemical test on it. He observed, however, that it appeared to be marijuana. He also found a box containing cigarette rolling papers and a pair of scissor-type tweezers in the open glove compartment. The tip of the tweezers appeared to have a burnt substance on its edge.

Ultimately, a juvenile petition charged K.A.K. with one count of first-degree misdemeanor possession of cannabis (less than twenty grams) and one count of first-degree misdemeanor possession of drug paraphernalia, i.e., the glass pipe, the tweezers, and the rolling papers. At K.A.K.’s adjudicatory hearing, the deputy, the State’s only witness, testified as outlined above.

K.A.K. was the only other witness to testify at the hearing. She said her three passengers received varying degrees of injury, the front of the car was badly smashed, the windshield was shattered, and the loose items inside the car flew around. The accident totaled her car. On cross-examination, she claimed that prior to the accident, no one had out any marijuana, glass pipe, rolling papers, or tweezers. Further, she did not see any of those items before getting into the car. The glove compartment was closed prior to the accident but open at the time the deputy arrived, and she assumed it opened upon the impact of the accident. She did not suspect that any of her friends would try to get her into trouble. After they arrived at the scene, the police ordered everyone to exit the car. On redirect she disclaimed any knowledge or ownership of the items prior to the accident, and she had no knowledge of anyone in her car having any of the items before the deputy pointed them out to her. She had not looked inside the glove compartment earlier and had no idea what was in there. Upon questioning by the trial court, she admitted the vehicle was for her exclusive use, no one else had driven it during the previous twenty-four hours, and although she was driving at the time of the accident, she did not recall if she had driven it during the previous twenty-four hours; she said she probably had driven it earlier that day but was not sure.

The trial court found that the State had failed to prove beyond a reasonable doubt that K.A.K. possessed the marijuana or the glass pipe. But the trial court adjudicated her delinquent for possession of the other paraphernalia-the tweezers and the rolling papers found in the glove compartment-based on constructive possession of those items.

We hold, as a matter of law, that the State failed to present a prima facie case of possession of the alleged drug paraphernalia. And although K.A.K. presents a meritorious argument that the State also failed to prove that the items were, in fact, drug paraphernalia, i.e., that they were being used for illegal rather than innocent purposes, we do not need to reach that issue as the State failed in its initial proof of constructive possession.

In a case of constructive possession, the State must prove beyond a reasonable doubt that the defendant knew of the presence of the illegal items, was able to exercise dominion and control over them, and knew of their illicit nature. Smith v. State, 687 So.2d 875 (Fla. 2d DCA 1997). A defendant’s mere proximity to the illegal items is insufficient to sustain a conviction. Downard v. State, 793 So.2d 83 (Fla. 2d DCA 2001) (holding that in a jointly-occupied vehicle proximity to contraband alone cannot sustain a constructive possession conviction). We cannot distinguish K.A.K’s case from a very similar recent case in this court, D.M.C. v. State, 869 So.2d 575 (Fla. 2d DCA 2003).

In D.M.C., the defendant was the only passenger in a small car driven by an acquaintance and was seated in the front. Upon search of the vehicle, a law enforcement officer found a scale and marijuana concealed from view in the pouch on the back of the driver’s seat and baggies of marijuana in the front passenger’s door pouch. D.M.C. had gone into the front passenger’s door pouch to retrieve identification which he failed to find there. The officer also found a bag of marijuana seeds in the pouch on the back of the front passenger seat. We reversed an adjudication of possession of drug paraphernalia and marijuana because the State had failed to prove knowledge of the presence of the contraband or ability to exercise dominion and control over it. Id. at 578. All the State had proven was mere proximity.

The only difference between K.A.K.’s case and that of the defendant in D.M.C. is that K.A.K. is the ostensible owner and driver of the jointly-occupied car in which the contraband was found in proximity to all the occupants. As K.A.K.’s small car was jointly-occupied, the open glove compartment was accessible to each occupant before and after the accident. The small distinction between D.M.C. and K.A.K.’s case is further eroded by the fact that Deputy Noland did not immediately arrive at the scene to find the incriminating items; during that lapse of time, any of the other occupants of K.A.K.’s vehicle could have put the rolling papers and tweezers in the glove compartment. No evidence or permissible inference presented at the adjudicatory hearing pointed to K.A.K. as the one who put the items there because none of the other occupants testified to disclaim knowledge or possession of those items. “In a case of a jointly-occupied vehicle, knowledge and ability to control the contraband may not be inferred, but must be established by independent proof.” E.A.M. v. State, 684 So.2d 283, 284 (Fla. 2d DCA 1996). “This proof must consist either of actual knowledge of the contraband’s presence or evidence of incriminating statements and circumstances from which the jury reasonably might infer the accused’s actual knowledge of the presence of the contraband.” AC. v. State, 658 So.2d 1173, 1174 (Fla. 2d DCA 1995).

The State failed to present such necessary independent proof that K.A.K. knew of the presence of the items or that she had the ability to control them. The trial court had correctly concluded that the State had failed to overcome reasonable doubt about KAK’s possession of the marijuana and the glass pipe, despite the fact that both were found in the driver’s area of the car. The trial court’s correct evaluation of the State’s imperfect case about the marijuana and glass pipe should have extended to the items in the glove compartment. The fact that the rolling papers and the tweezers were found in that glove compartment, rather than in the passenger area itself, was not sufficiently distinctive factually or dispositive of the case because the compartment was open to all at the time the deputy searched. No more evidence tied K.A.K. to the items inside the glove compartment than to the marijuana and the glass pipe. Cf. Cruz v. State, 744 So.2d 568 (Fla. 2d DCA 1999) (holding that dominion and control were not proven where a pipe was found in plain view on the floorboard of the car near the gas pedal while the defendant was driving with a passenger); Smith, 687 So.2d 875 (holding that constructive possession of a pound of marijuana in a green flight bag in a jointly-occupied vehicle was not proven where there was no record evidence connecting the defendant to the contraband, no fingerprints were found on the bag, the bag contained none of the defendant’s clothing, and the bag was merely in the vehicle with the defendant); Ras v. State, 610 So.2d 24 (Fla. 2d DCA 1992) (holding that while defendant knew of the cocaine’s presence, there was insufficient evidence to prove he had dominion and control over it); Cordero v. State, 589 So.2d 407 (Fla. 5th DCA 1991) (holding the evidence insufficient to prove knowledge where the defendant was the front seat passenger and the officer found a bag containing cocaine underneath the passenger seat between the transmission tunnel and the seat); Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976) (holding the evidence insufficient to prove possession in a jointly-occupied vehicle where a bag containing marijuana was found in close proximity to the defendant, a pipe was on the console between the automobile’s bucket seats, two roaches and a roach clip were in the automobile ashtray, and there was an odor of marijuana); D.J. v. State, 330 So.2d 35 (Fla. 4th DCA 1976) (holding the evidence insufficient to prove possession where there was an odor of burning marijuana, a half-burned marijuana cigarette on floor next to the defendant, another half-burned marijuana cigarette on the floor by the driver’s seat, a marijuana cigarette in an ashtray, a marijuana cigarette in the glove compartment, and numerous marijuana seeds in the driver’s seat and on the console between the two front bucket seats).

We reverse the adjudication of delinquency and remand with instructions to enter a judgment of dismissal on the remaining possession of paraphernalia count.

FULMER and SILBERMAN, JJ., Concur.

      . §§ 893.13(6)(b), — .147(1), Fla. Stat. (2003).


text:
    Nancy M. KEMMET, Appellant, v. Alvin Ray KEMMET, Jr., Appellee.
    No. 1D04-1056.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2004.

      Georgia Thomas, Fort Walton Beach, for Appellant.
    Michael T. Webster, Shalimar, for Ap-pellee.
   PER CURIAM.

In this appeal from a final judgment of dissolution of marriage, the wife seeks review of the amount of permanent periodic alimony awarded (including a provision requiring an automatic reduction of the amount when she starts receiving the 49 percent of the husband’s future military retirement pay she was awarded), and the failure to order that the husband pay any portion of her attorney’s fees and costs. Because the trial court did not make the findings of fact mandated by section 61.08(1), Florida Statutes (2003), regarding the amount of alimony it awarded and we are unable to divine from the record how it arrived at the amount (which appears somewhat low), we reverse the alimony award and remand for the required findings. The trial court may also reconsider the amount awarded, should it conclude that its previous determination was erroneous. In the event it decides to award a different amount following remand, it will be necessary for the trial court to revisit the scheme of equitable distribution, including the provision regarding automatic reduction of alimony upon commencement of payment of the husband’s retirement benefits. (We leave the latter provision undisturbed because the wife will be free to request a further modification of alimony in the future should the law and the parties’ circumstances justify one.) Finally, because the trial court failed to make findings of fact to support its refusal to require the husband to pay any portion of the wife’s attorney’s fees and costs and we are unable to divine from the record why it reached that result, we reverse that portion of the judgment as well, and remand for findings of fact. In all other respects, the final judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

KAHN, WEBSTER and POLSTON, JJ„ CONCUR.


text:
    Suzanne GUELPA, Appellant, v. Randall GUELPA, Appellee.
    No. 1D03-4790.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2004.

      E. Jane Brehany, Pensacola, for Appellant.
    Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.
   PER CURIAM.

Appellant, Suzanne Guelpa, questions several matters adjudicated in a final judgment of dissolution of marriage. Although we affirm without comment appellant’s points concerning child support and custody, the points involving distribution and evaluation of certain marital assets and liabilities must be reversed and remanded.

Although the final judgment purports to distribute marital assets and liabilities, it neglects to determine a cut-off date for determining such assets and liabilities. Florida law requires that the cut-off date for determining assets and liabilities “is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.” § 61.075(6), Fla. Stat. (2001); see also Leeds v. Adamse, 832 So.2d 125, 126 (Fla. 4th DCA 2002) (characterizing the statutes as a “bright line that was crossed by the filing of the petition for dissolution,” and finding that debt incurred by husband four days after wife filed petition for dissolution was not a marital liability subject to equitable distribution); Martin v. Martin, 816 So.2d 185, 186 (Fla. 1st DCA 2002) (concluding that statute does not allow flexibility in the identification of a marital asset); Caruso v. Caruso, 814 So.2d 498, 503 (Fla. 4th DCA 2002) (“[Discretion does not extend to permit the court to determine assets acquired after the filing of the petition to be marital assets.”); Langevin v. Langevin, 698 So.2d 601, 602 (Fla. 4th DCA 1997) (reversing and remanding where a trial court had purported to equitably distribute stock option plan shares acquired between the date of filing the petition and the date of the final judgment). The same statute, section 61.075(6), allows the trial court discretion to value assets as of different dates, but does not allow such discretion with regard to determining assets and liabilities. Because the record here does not reveal a separation agreement, the determination date for assets and liabilities is the date the petition was filed, August 22, 2001.

The trial court erred here by including on the husband’s side of the distribution, numerous liabilities incurred after the date of the filing of the petition. These liabilities include portions of the 2001 taxes, the 2002 taxes, and credit card balances, other than the CITI Platinum card listed on the original financial affidavit. By allowing the husband to assume these additional liabilities on his side of the balance sheet, the distribution is skewed to make it appear that the wife has received far more than the husband. Such was error and must be addressed on remand.

The trial court also erred in its treatment of the asset known as the Settlers Colony property. Contrary to the wife’s argument, the record does support a valuation of that property in the amount of $75,000. The trial court erred, however, by failing to acknowledge a substantial mortgage on the property and also by failing to acknowledge that the property is equally owned by the former wife’s sister, not a party to this action. Accordingly, that portion of the final judgment that credits the wife with a $75,000 asset in the form of the Settlers Colony is erroneous and should be revisited on remand.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BOOTH, and KAHN, JJ„ concur.


text:
    Jonathan FETTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5446.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2004.

      William B. Richbourg, Esq., Pensacola, for Appellant.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Jonathan Fettler, appeals from the sentence imposed upon revocation of probation, arguing that the trial court should have credited him for the time he served prior to his entrance into the boot camp program pursuant to the statutes governing youthful offenders and the youthful offenders basic training program, sections 958.04 and 958.045, Florida Statutes. Because the plain language of the statutes supports appellant’s arguments, we reverse and remand.

Upon being charged with several criminal counts, appellant initially entered a plea and was placed on probation with a thirty-six month suspended sentence for one count of attempted robbery without a firearm. After violating probation, going through drug court, and violating another term of probation, appellant’s probation was revoked and he was sentenced to three years’ imprisonment. The trial court then mitigated appellant’s sentence and designated him as a youthful offender eligible for boot camp. Appellant successfully completed boot camp and was placed on probation for the remainder of his sentence. Appellant then violated the terms of his probation and entered a plea of nolo contendere. The trial court sentenced appellant to 364 days’ imprisonment with credit for 185 days of time served. Appellant argued before the trial court that he was entitled to jail credit for all the time he had previously spent in prison, not merely the time he served in boot camp and while incarcerated awaiting sentencing in the instant case. This appeal followed.

It is well-established in the courts of Florida that when a youthful offender successfully completes boot camp, he may not be sentenced to more than 364 days of incarceration upon a violation of the subsequent period of probation. See, e.g., Mims v. State, 871 So.2d 1003, 1004 (Fla. 1st DCA 2004) (citing §§ 958.04(2)(b), 958.045(5)(c), Florida Statutes (2003)); Blaxton v. State, 868 So.2d 620, 621 (Fla. 2d DCA 2004); Mason v. State, 864 So.2d 1225, 1227 (Fla. 1st DCA 2004); Thomas v. State, 825 So.2d 1032, 1034 (Fla. 1st DCA 2002); Bloodworth v. State, 769 So.2d 1117, 1118 (Fla. 2d DCA 2000).

It is similarly well-established that an appellant is “always entitled to prison credit previously served upon violating the probationary portion of a split sentence.” Atkinson v. State, 860 So.2d 982, 984 (Fla. 1st DCA 2003) (citing Layman v. State, 787 So.2d 44, 45 (Fla. 2d DCA 2001)). Furthermore,

when probation is revoked after a defendant has been sentenced to a period of incarceration followed by a period of probation, the trial court may impose any sentence it could originally have imposed, less jail time previously served as part of the sentence .... the same is true as to youthful offenders subject to the terms of [the youthful offenders statute].

Pendergrass v. State, 487 So.2d 35, 36 (Fla. 4th DCA 1986) (citing State v. Holmes, 360 So.2d 380, 383 (Fla.1978)). Interestingly, the State made an argument in Pender-grass similar to the one it makes here, arguing that the appellant’s one-year sentence upon revocation of probation was “intended as a net sentence after allowing for the time already served on the youthful offender conviction.” 487 So.2d at 36.

Likewise, in the instant case, the State argues that the Legislature’s 364-day limitation on the sentence a youthful offender may receive upon violation of probation after successful completion of probation “was already factored into the sentence at issue imposed by the trial court.” However, while the result urged by the State may seem reasonable, it is without support by the plain meaning of the statutes or by the case law’s interpretation of such. The State has acknowledged that appellant has already served 543 days in prison, and appellant is entitled to have that period of imprisonment credited against his current sentence of 364 days’ imprisonment. See, e.g., Mims, 871 So.2d at 1004; Pendergrass, 487 So.2d at 36. Accordingly, appellant’s sentence is reversed and remanded for the trial court to credit him for all time previously served.

REVERSED and REMANDED.

DAVIS, LEWIS and POLSTON, JJ., CONCUR.