author: KAHN, J.

text:
    Mark OSTERBACK, Appellant, v. John O. AGWUNOBI, Secretary of Department of Health, Appellee.
    No. 1D03-1589.
    District Court of Appeal of Florida, First District.
    April 26, 2004.

      Appellant Mark Osterback, pro se, Bushnell.
    Richard P. McNelis, Assistant General Counsel, Tallahassee, for Appellee.
   KAHN, J.

Appellant, Mark Osterback, appeals a final order granting summary judgment in favor of appellee,, as Secretary of the Department of Health (DOH or the Department). Because DOH failed to comply with the provisions of chapter 120, Florida Statutes, in repealing its rules regulating environmental conditions in prisons, we reverse.

I. Background

On September 9, 2000, appellant, a state prison inmate, filed a circuit court complaint for declaratory relief alleging that DOH unlawfully repealed Florida Administrative Code Chapter 10D-7 on February 8, 1996. He contended that the repeal of chapter 10D-7, which governed health and safety conditions within correctional facilities, violated rulemaking procedures under chapter 120. Appellant alleged that the action was contrary to the statutory provisions originally implemented by the rule, and it effected an improper delegation of authority to the Department of Corrections (DOC).

DOH filed a motion for summary judgment. DOH posited that because, in its view, chapter 91-297, Laws of Florida, effective July 1, 1991, repealed the statutory authority for chapter 10D-7, the Department could not adopt or reenact the rule chapter as it had previously existed. Appellant filed a cross-motion for summary judgment, arguing that chapter 91-297 merely renumbered the statutory provision authorizing chapter 10D-7, from section 381.031(l)(g)3. to section 381.006(7) (currently section 381.006(6)). Appellant reasoned that, because the statutory authority for the chapter remained, repeal of the chapter constituted an invalid exercise of delegated legislative authority because such contravened the provisions of law originally implemented by the rule.

On February 19, 2003, the trial court entered final summary judgment for DOH. The court did not address the Department’s argument regarding chapter 91-297. Instead, the trial court found that “the repeal of Chapter 10D-7 did not have the effect of creating or implementing a new rule or policy and the rule repeal is not subject to challenge.” The trial court further found that the repeal of 10D-7, and the corresponding shift of responsibility to the DOC, was consistent with the obligation of DOH to “[cjooperate with and accept assistance from federal, state, and local officials” and to “[ajdopt, repeal, and amend rules consistent with law.” See §§ 381.0011(5), (13), Fla. Stat. (1995). Under this alternative holding, the trial court concluded that even if the repeal were subject to challenge, the repeal did not constitute an invalid exercise of delegated legislative authority. Each of these holdings must be reversed.

II. Rulemaking by Repeal

We first address the trial court’s conclusion that Department’s repeal of Chapter 10D-7 was not a rule subject to challenge. An agency’s repeal of a rule is considered a rule subject to challenge when it has “the effect of creating or implementing a new rule or policy.” Fed. of Mobile Home Owners of Fla., Inc. v. Fla. Manufactured Housing Ass’n, 683 So.2d 586, 591 (Fla. 1st DCA 1996). Ordinarily, a trial court’s determination that the repeal of a rule did not have “the effect of creating or implementing a new rule or policy” would present a mixed question of fact and law. Review of such a determination requires that “the trial court’s ultimate ruling must be subjected to de novo review, but the court’s factual findings must be sustained if supported by legally sufficient evidence.” N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 626-27 (Fla. 2003) (footnote omitted). The trial court’s order in this case, however, contained no findings of fact as to the “effect” that repeal of chapter 10D-7 had on regulated parties. Thus, the trial court’s decision is renewable by the de novo standard because it rests entirely on conclusions of law.

The trial court essentially found that the repeal,of chapter 10D-7 was not a rule subject to challenge because it did not result in the replacement of chapter 10D-7 by another DOH rule or policy. The court reached this conclusion by looking at the issue “from the perspective of DOH.” This conclusion is correct only if DOH did not have a statutory duty to promulgate rules regarding the environmental conditions in prisons. As explained below, we find that such a duty does exist. Therefore, the repeal of the rule was tantamount to DOH adopting the American Correctional Association (ACA) standards, employed by DOC after repeal of chapter 10D-7.

As noted above, this court held in Federation of Mobile Home Owners that the repeal of a rule which had the “effect of creating or implementing a new rule or policy” was a rule subject to challenge. 683 So.2d at 591. In reaching that conclusion, this court observed:

To constitute “rulemaking” a rule repeal is required to satisfy independently the remainder of the definition of a “rule” in section 120.52.(16): “agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency....”

Id. at 590-91. In this case, DOH, by choosing to repeal chapter 10D-7, made a statement of general applicability prescribing a new policy pertaining to environmental conditions within prisons — adoption of the ACA standards now employed by the DOC. Because, as shown below, DOH has a statutory duty to regulate prison environmental health conditions, the fact that the policy replacing chapter 10D-7 was not promulgated by DOH is irrelevant. The net effect of the repeal is the implementation of a new set of rules. Accordingly, the trial court erred by finding the repeal not subject to challenge.

III. Requirement for Statutory Rulemaking Authority

We must consider whether the repeal was unlawful. Under chapter 120, an agency engaging in rulemaking must identify both the statutory authority for the rulemaking and a statute or act to be implemented by the rulemaking. Specifically, section 120.54(7), Florida Statutes (2000), requires that:

Each rule adopted shall be accompanied by a reference to the specific rulemaking authority pursuant to which the rule was adopted and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific.

DOH emphatically argues that chapter 91-297, Laws of Florida, required the repeal of chapter 10D-7. That argument, however, is without merit. Both in its motion for judicial notice of chapter 91-297 and its motion for summary judgment in the trial court, DOH argued that section 29 of chapter 91-297 repealed the rules promulgated under the Sanitary Code. The language cited by DOH appeared in the session law as follows:

(b) This section and rules adopted hereunder may be enforced in the manner provided in s. 881.0012 381.031(3). Such rules-s-hall-be a part-of- the Sanitary Code — of—Florida—created—by—Sr 381.031(l)(g). Any person who violates this section or any rule adopted hereunder shall be punished as provided in ss. 381.0025 38-1-1-12 and 381.0061 38-L4-14.

Ch. 91-297, § 29, at 2855, Laws of Fla. The section from which the above language was taken amends the Bottled Water Act and appears to have little or nothing to do with regulation of environmental conditions in prisons. See id. at 2853-55.

Apparently, DOH wishes us to infer that the deletion of the second sentence in the above provision requires the repeal of any rules promulgated under section 381.031(l)(g). A review of the act does not support such a conclusion. We agree that the act repealed section 381.031 in its entirety. Id., § 58, at 2876. The language in section 381.031 that granted DOH the authority to regulate environmental conditions in prisons had, however, been incorporated in the newly created section 381.006. See id. § 21, 2842-44. Both the repealed statute and the new statute required DOH to regulate sanitary practices at “all places used for the incarceration of prisoners and inmates of state institutions for the mentally ill.” Compare § 381.031(l)(g)3., Fla. Stat. (1989) with § 381.006(7), Fla. Stat. (1991). In fact, the staff analysis prepared for the bill states that section 381.006 was designed to consolidate DOH’s authority to conduct environmental health programs and to provide rulemaking authority. See Fla. H.R. Comm, on HRS, CS/CS/HB 2645 (1991) Staff Analysis 4 (final May 10, 1991). Nothing in the staff analysis indicates that by passage of the act the Legislature intended to impact DOH’s authority or duty to regulate environmental conditions in prisons.

Because DOH has failed to show that the statutory authority for regulating environmental conditions in prisons was repealed by chapter 91-297, we must consider whether DOH’s originally stated basis for the repeal of chapter 10D-7 was valid. During the rulemaking procedure, DOH stated it intended to repeal chapter 10D-7 because it was duplicative of policies already in effect. DOH cited section 381.0011(13), Florida Statutes (1995), as its authority for repealing the rule. That section provides that DOH may “[a]dopt, repeal, and amend rules consistent with law.” DOH did not initially identify a statute that would be implemented by repealing the rule. In a letter responding to an inquiry by the Joint Administrative Procedures Committee, DOH stated that the statute to be implemented was section 381.006(14), Florida Statutes (1995). That statute, however, concerns mobile home and recreational vehicle parks. The briefs and the record on appeal fail to show that DOH ever complied with requirement to identify the statute implemented by the repeal of 10D-7.

IV. DOH’s Statutory Duty to Regulate Prison Conditions

Section 381.006, Florida Statutes (1995), states that DOH “shall conduct an environmental health program as part of fulfilling the state’s public health mission.” Section 381.006(6) (formerly section 381.006(7), Florida Statutes (1991)), mandates that the State’s environmental health program include:

A public facilities function, including sanitary practices relating to state, county, municipal, and private institutions serving the public; ... all places used for the incarceration of prisoners and inmates of state institutions for the mentally ill; ... any other condition, place, or establishment necessary for the control of disease or the protection and safety of public health.

(emphasis added). In determining that the repeal was lawful, the trial court found, and DOH now argues, that the phrase, “all places used for the incarceration of prisoners and inmates of state institutions for the mentally ill,” imposes a duty on DOH to regulate conditions in mental institutions only. In its brief, DOH asserts, “It is obvious that the words ‘for the mentally ill’ operate under standard principles of statutory interpretation as a limitation on the preceding clause.” We cannot agree. The phrase “for the mentally ill” can only be seen as modifying the word “institutions.” The statute directs DOH to regulate conditions at prisons, — “places used for the incarceration of prisoners,” — and certain mental health institutions, — “places used for ... inmates of state institutions for the mentally ill.”

This conclusion is bolstered by the final phrase of section 381.006(6) which requires regulation of “any other condition, place, or establishment necessary for the control of disease or the protection and safety of the public health.” To find that regulation of conditions in state institutions housing mentally ill inmates is “necessary for the control of disease or the protection and safety of the public health”, but regulation of conditions in prisons is not, would be illogical. Each facility houses persons who are not free to leave, and each is staffed by a large number of people who enter and leave the institution on a daily basis, interacting with the general public and the inmate population.

V. Conclusion

Section 120.52(8)(a), Florida Statutes (2000) states that where an “agency has materially failed to follow the applicable rulemaking procedures set forth in this chapter,” the action constitutes an “[¡Invalid exercise of delegated legislative authority.” Section 120.56(l)(c), Florida Statutes (2000), provides:

The failure of an agency to follow the applicable rulemaking procedures or requirements set forth in this chapter shall be presumed to be material; however, the agency may rebut this presumption by showing that the substantial interests of the petitioner and the fairness of the proceedings have not been impaired.

We have found that the repeal of 10D-7 was rulemaking. Accordingly, repeal of chapter 10D-7 without reference to the statute implemented by the repeal was presumptively an invalid exercise of delegated legislative authority. DOH has not attempted to overcome the presumption of invalid rulemaking by demonstrating that the failure to identify the statute being implemented did not impair appellant’s substantial interests or the fairness of the proceedings. Further, the trial court made no such findings.

We REVERSE and REMAND for further proceedings consistent with this opinion.

VAN NORTWICK and LEWIS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.K., Father of J.K., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-3869.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2004.
    Carl S. New, Ocala, for Appellant.
    Ralph J. McMurphy, Wildwood, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See In Re Adoption of Baby E.A.W., 658 So.2d 961 (Fla.1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 719, 133 L.Ed.2d 672 (1996); T.P. v. Dept. of Children and Families, 860 So.2d 1084 (Fla. 5th DCA 2003).

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


text:
    Qinard L. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3601.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2004.

      James B. Gibson, Public Defender, and Allison Havens 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. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Chris ENOCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1113.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2004.
    Chris Enoch, Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Figarola v. State, 841 So.2d 576 (Fla. 4th DCA 2003).

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


text:
    Michael Scott KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-767.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2004.
    Michael Scott Knight, Lake City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Miller v. State, 861 So.2d 1283 (Fla. 5th DCA 2004).

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


text:
    Robert GOODEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0341.
    District Court of Appeal of Florida, First District.
    April 28, 2004.
    Rehearing Denied June 2, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General; Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

See Bates v. State, 818 So.2d 626 (Fla. 1st DCA 2002), review granted, 832 So.2d 103 (Fla.2002).

AFFIRMED.

WEBSTER, VAN NORTWICK and POLSTON, JJ., concur.


author: PLEUS, J.

text:
    Calvin WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3468.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Kreehowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Of the various issues raised on appeal, only one merits discussion.

Calvin Williams was convicted of trafficking in - cocaine between 200 and 400 grams. His sentence included a seven year mandatory minimum term for drug trafficking, which he argues violates the Ex Post Facto Clauses of the Florida and United States Constitutions.

In Chapter 99-188, Laws of Florida, the Legislature enacted provisions creating, inter alia, mandatory minimum prison terms for certain drug trafficking offenses. In Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), the Second District Court of Appeal held Chapter 99-188 unconstitutional for violating the single subject requirement. In response to Taylor, the Legislature enacted Chapters 2002-208 through 2002-212, Laws of Florida, to cure the single subject problem in Chapter 99-188. The Legislature provided that the provisions in these chapters reenacting portions of Chapter 99-188 would apply retroactively from July 1, 1999.

Against this backdrop, Williams argues Chapter 2002-212, which took effect after the offense date in this case, cannot be retroactively applied. This Court recently, in Jones v. State, 2004 WL 587635, 872 So.2d 938 (Fla. 5th DCA Mar.26, 2004), by a unanimous en banc decision, receded from its earlier decision in Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). Based on the rationale of Jones, we conclude that the retroactive application of Chapter 99-188 is an impermissible violation of the Ex Post Facto Clauses of the federal and Florida Constitutions.

Accordingly, we strike the seven year mandatory minimum provision in Williams’ sentence. See Anderson v. State, 690 So.2d 749 (Fla. 5th DCA 1997). In all other respects, the judgment and sentence are affirmed.

MANDATORY MINIMUM TERM STRICKEN; AFFIRMED AS MODIFIED.

SAWAYA, C.J., and GRIFFIN, J., concur.


author: SILBERMAN, Judge.

text:
    Joseph R. GANEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2814.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.
    Rehearing Denied June 3, 2004.

      Joseph R. Ganey, Jr., pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Joseph R. Ganey, Jr., pro se, appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Ganey argues that his no contest plea was not knowingly and voluntarily entered because it was based on incorrect information as to his sentencing guidelines range. We agree and reverse.

In December 1997 Ganey pleaded no contest to charges of DUI manslaughter (count I) and DUI with property damage or personal injury (count II). The sentencing guidelines scoresheet showed a sentencing range of 11.5 to 19.2 years’ imprisonment. Ganey entered his plea without an agreement as to the sentence, but he sought to have the trial court depart downward from the guidelines sentencing range. The sentencing judge observed that Ganey was genuine in his remorse and that society did not need protection from Ganey, but the judge stated that under the law he felt bound to impose a guidelines sentence. The judge sentenced Ganey to 11.5 years’ imprisonment followed by three years’ probation on count I and time served on count II.

Ganey later filed a motion to correct illegal sentence. He claimed that he was entitled to be resentenced because his original sentence was pursuant to the 1995 sentencing guidelines, which had been held unconstitutional in Heggs v. State, 759 So.2d 620 (Fla.2000). Although the trial court noted that Ganey’s scoresheet under the 1994 sentencing guidelines called for a sentence of 7.8 to 13 years’ imprisonment, the court denied Ganey’s motion because he could have received the same sentence under the 1994 guidelines. The court stated that the denial was without prejudice to Ganey’s seeking relief by challenging the voluntary and intelligent nature of his plea under rule 3.850 and pursuant to Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000).

Ganey then filed a rule 3.850 motion and claimed that he had not knowingly and voluntarily entered his plea because he entered it based on his belief that the 1995 sentencing guidelines applied. He alleged that he would not have entered the plea and that he would have proceeded to trial had he known the true, more favorable, sentencing range under the 1994 guidelines. The trial court determined that Ga-ney stated a facially sufficient claim for relief and ordered an evidentiary hearing.

Chris Pratt, Ganey’s trial counsel at the time of the plea, and Ganey testified at the hearing. Pratt testified that he told Ga-ney he did not think they had a strong defense case and that Ganey “might want to seriously consider entering a plea.” He added that Ganey understood “it would be a tough case at trial.” At the time, Pratt was unaware of a challenge to the 1995 sentencing guidelines and, as a result, he did not mention that to Ganey. Pratt and Ganey discussed the State’s plea offer of 14 years’ imprisonment, and Pratt advised Ganey that the guidelines range was approximately 11 to 19 years. Pratt told Ganey that if he went to trial, there was a good chance that he would receive a sentence in the upper end of the guidelines. Pratt also advised Ganey that if he entered a plea, there would be a sentencing hearing and they could ask the trial court to go to the bottom of the guidelines or even deviate below the guidelines. Pratt stated that he did not know whether Ganey would have pleaded had Ganey known that the 1995 guidelines would be held unconstitutional.

Ganey testified and acknowledged that Pratt told him the facts of the case were against him. Ganey was aware of the sentencing range under the 1995 guidelines, including the maximum sentence that could be imposed. He knew that if he went to trial and lost, he could have received a 19 year sentence. He decided to enter the plea based on counsel’s advice that by doing so, he was likely to get a downward departure sentence. For the same reason, he did not accept the State’s offer of 14 years’ imprisonment. Ganey specifically testified that had he known that a top-of-the-guidelines sentence under the 1994 guidelines was 13 years, he would not have entered his plea but would have gone to trial. He explained that while he had not been willing to risk getting a 19 year sentence by going to trial, he would have been willing to risk going to trial had he known that his exposure was only 13 years’ imprisonment.

Following the evidentiary hearing, the trial court entered its order denying Ganey’s motion. The trial court concluded that even if Ganey had been aware of a lower potential prison sentence under the 1994 guidelines, he still would have entered the plea. Based on the specific circumstances present here, particularly Ga-ney’s unrefuted testimony that he would not have entered his plea had he known that he was facing a maximum sentence of 13 years’ imprisonment under the 1994 guidelines as compared to 19 years’ imprisonment under the 1995 guidelines, we reverse.

A defendant who enters into a plea under a mistake or misapprehension about sentencing possibilities should be permitted to withdraw his plea. See Johnson v. State, 834 So.2d 384 (Fla. 2d DCA 2003) (concluding that a defendant should have been permitted to withdraw his plea when the plea was entered under the mistaken belief or misapprehension that the trial court could impose a sentence less than mandatory life imprisonment). Neither the trial court nor the parties were aware of the correct sentencing range at the time of Ganey’s plea. Moreover, although the trial court believed that Ganey’s decision to enter the plea was based on the unfavorable facts of the case rather than the potential prison exposure, Ganey’s testimony that he would not have entered the plea had he known the correct sentencing range was unrefuted. See Gonzalez v. State, 826 So.2d 410, 411 (Fla. 2d DCA 2002). Thus, we conclude that the trial court should have allowed Ganey to withdraw his plea.

Because Ganey established that his plea was not knowing and voluntary, we reverse the denial of Ganey’s motion and direct the trial court, on remand, to permit Ganey to withdraw his plea.

Reversed and remanded.

FULMER and COVINGTON, JJ., concur.

      . One judge took Ganey's plea and sentenced him. The same judge considered his motion to correct illegal sentence. A different judge considered Ganey’s rule 3.850 motion that is the subject of this appeal.

      . We note that the First, Third, and Fifth Districts have certified conflict or disagreed with Murphy. See Paul v. State, 838 So.2d 687 (Fla. 3d DCA 2003); Coppola v. State, 795 So.2d 258 (Fla. 5th DCA 2001); Foster v. State, 794 So.2d 731 (Fla. 3d DCA 2001); Regan v. State, 787 So.2d 265 (Fla. 1st DCA 2001). The Florida Supreme Court has not yet addressed the conflict.


text:
    Richard PELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3715.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2004.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard Pell, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Eddy Bernard THOMAS and Eddy Boston Thomas, Jr., Appellants, v. Osiris SANCHOYERTO and Felix Sanchoyerto, her husband, Appellees.
    Nos. 3D03-1789, 3D03-2146.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Richard A. Sherman (Ft.Lauderdale); Timothy W. Harrington, for appellants.
    Keith Chasin; Philip D. Parrish, Miami, for appellees.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

We affirm the judgments below with the exception of the attorney’s fees award which we direct the trial court to reduce to $36,175.00.

Affirmed in part, reversed in part, and remanded.


text:
    Annette SOBEL, Appellant, v. Terry D. SOBEL, Appellee.
    No. 4D03-1619.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Rehearing Denied June 8, 2004.
    Margherita Downey, P.A., West Palm Beach, for appellant.
    Christopher Chopin, and Susan G. Chopin of Chopin, Chopin & Chopin, LLP, West Palm Beach, for appellee.
   PER CURIAM.

The former wife appeals a contempt order for failure to pay child support and an attorney’s fees judgment. Among other issues, she argues that the trial court erred in ordering attorney’s fees when the former husband failed to produce a financial affidavit. We affirm the contempt order, but agree that the attorney’s fees judgment should be reversed.

The former husband filed a motion for contempt based on the former wife’s failure to make child support payments. He also requested that the court award him attorney’s fees. The former wife filed a Request to Produce Current Financial Affidavit and Support Ledger Sheet. At the hearing on the motion for attorney’s fees, the former wife advised the court that she had not received the required financial affidavit from the former husband. Nevertheless, the trial court awarded attorney’s fees to the former husband.

“Any party in an enforcement or contempt proceeding may serve upon any other party a written request to file and serve a financial affidavit if the other party’s financial circumstances are relevant in the proceeding.” Fla. Fam. L.R.P. 12.287. Further, “[bjeeause the contempt proceedings arose in the context of a dissolution involving custody, the trial court must determine need and ability to pay before awarding attorney’s fees.” Keitel v. Keitel, 716 So.2d 842, 844 (Fla. 4th DCA 1998). Without requiring the former husband to provide the requested financial affidavit, neither the former wife nor the trial court had the requisite information for determining the issue of attorney’s fees. We therefore reverse the attorney’s fees judgment. We find no error in the other issues raised.

REVERSED AND REMANDED.

POLEN, MAY, JJ., and DAMOORGIAN, DORIAN, Associate Judge, concur.


text:
    Michael DELPRETE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-277.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    David M. Lamos, Fort Pierce, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Delprete pled no contest to March 2001 charges of trafficking in oxy-codone and unlawfully filling a prescription. With respect to the trafficking charge, Delprete was sentenced to fifteen years incarceration with a three-year mandatory minimum. On appeal, as he did below, Delprete contends that the imposition of the three-year mandatory minimum for the 2001 trafficking offense is unconstitutional because (1) the 1999 legislation authorizing the mandatory minimum violated the single subject rule and (2) any retroactive application of the 2002 legislative re-enactment of the mandatory minimum violates the ex post facto clause. In Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003)(en banc), decided subsequent to the filing of Delprete’s initial brief, this court held that the legislation authorizing the mandatory minimum was not enacted in violation of the single subject rule. See also Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, 854 So.2d 659 (Fla.2003). Thus, we affirm Delprete’s sentence. As we did in Hernandez-Molina, however, we certify conflict with the Second District’s decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

STONE, STEVENSON and HAZOURI, JJ., concur.

      . See Ch. 99-188, § 9, at 1058, Laws of Fla.

      . See Ch. 02-212, §§ 1, 4, at 1454-60, 1499, Laws of Fla.


author: SHARP, W., J.

text:
    OREGRUND LIMITED PARTNERSHIP, et al., Appellants, v. Kathy D. SHEIVE, etc., et al., Appellees.
    No. 5D03-2408.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Rehearing Denied May 28, 2004.

      Robert W. Anthony of Fassett, Anthony & Taylor, P.A., Orlando, for Appellants.
    John H. Dannecker and Richard A. Burt of Shutts & Bowen, LLP, Orlando, for Appellees.
   SHARP, W., J.

Oregrund Limited Partnership (Ore-grund) and Euramerican Investment Consultants Corp. (collectively referred to herein as appellants), appeal from three orders of the trial court which collectively dismissed all of the counts set forth in their third amended complaint, with prejudice. On July 13, 2001, appellants filed suit against appellees, investors in the two transactions set forth in the complaint, on multiple grounds, all of which, save one, are based on violation of the state’s usury statutes. In dismissing the complaint, the trial court determined that, regarding the two transactions set forth in the complaint, any return to appellees was speculative. Inferentially, this is a finding that appel-lees were primarily investors, not lenders, removing the transactions from application of the usury statutes. We find that appellants’ complaint sufficiently stated a cause of action, based on violation of the usury statutes, and reverse.

The facts set forth in the complaint are taken as true at this procedural juncture and are as follows: Appellants wanted to borrow approximately $600,000.00 to be used in a business venture, known as “Port-O-Call.” Appellants also owned an 8.4 acre vacant commercial tract of land in Osceola County, located between U.S. 192 and Lake Cecile, which they wanted to develop in the future. There were plans to locate the Osceola County Convention Center immediately across from the 8.4-acre tract. It had been appraised in 1998 for $5.76 million, and was encumbered by a $1.7 million mortgage. In September of 2000, after the transactions in this case, the tract was appraised at $5,215 million, encumbered by a $1.85 million mortgage.

On January 6, 2000, the first group of investors executed an agreement which created a land trust known as the Lake Cecile Land Trust, in which they invested various sums of money in return for proportional interests. The next day, three documents were executed by the parties’ representatives: Kathy Sheive, as attorney and trustee for the land trust, and John Nadd, the general partner of Oregrund and president of Euramerican. The first document was an Agreement for Sale and Purchase of the 8.4-acre tract, by which appellants sold the land trust a one-half interest in the tract for $600,000.00. Second, appellants executed a warranty deed transferring the one-half interest in the tract to the land trust. And third, the parties executed an Option to Repurchase, which gave appellants the right to repurchase the one-half interest in the tract that they had, that day, conveyed to the land trust. Appellants were the sole option beneficiaries under the Option. Appellants received $600,000.00.

The terms of the Option were that if appellants exercised their right to repurchase the tract in the first year following the sale, the repurchase price was to be $1.2 million (twice the amount of $600,000.00 proceeds received by appellants). If the Option was exercised in the second year following the sale, the price was to be $1.8 million (three times the amount of the $600,000.00 proceeds received by appellants). If the Property was not repurchased in two years, the land trust had the right to sell its one-half interest in the tract.

If the land trust sold its one-half interest after two years, the minimum sales price had to be $1.7 million (the amount of the mortgage at that time). The land trust was entitled to keep all of any sale proceeds up to $3.5 million. Any proceeds which exceeded $3.5 million were to be split equally between appellants and appel-lees. Appellants had the sole responsibility to pay the mortgage, taxes and other expenses on the tract while the land trust owned a one-half interest in the tract.

Before the first year passed, apparently appellants incurred financial problems. Eight months after the initial transaction, on August 31, 2000, in consideration for a full interest in the tract and “the securing of refinancing,” appellees amended the land trust with respect to the Option. Pursuant to the Amendment, the land trust received Appellants’ remaining one-half interest in the tract. Appellants were given the right to repurchase the entire tract at any time in the future. The only event which triggered the termination of the option to repurchase was appellants’ sale of its Port-O-Call venture, but such sale was at appellants’ discretion. Under the Amendment, if appellants elected to repurchase the tract prior to January 1, 2001 (ie., within four months of the Amendment), the purchase price was $1.2 million. After that date, appellants’ repurchase price went up an additional $600,000, bringing the total to $1.8 million.

The mortgage payments, taxes, and other expenses on the tract continued to remain appellants’ sole obligation, and their failure to pay these expenses constituted a default, which terminated their rights as option beneficiary. Further, commencing November 1, 2000, appellants were required to pay the trustee of the land trust the sum of $5,250 per month, which was to be held in escrow and used at the trustee’s discretion in the event of a default.

On September 1, 2000, First Commercial Bank of Florida, loaned appellants an additional $150,000 to be added to the original principal mortgage balance of $1.7 million, thereby increasing the mortgage balance on the tract to $1.85 million. That same month, an appraisal was performed and the tract was valued at $5,215 million.

Appellants were unable to raise the necessary funds to exercise the option and continued to be unable to do so through June 25, 2001. They also defaulted by failing to pay the mortgage and taxes on the tract. Appellees sent a notice of default and terminated appellants rights as option beneficiaries. Appellants filed this lawsuit, claiming the transactions are usurious, for related relief therein, and to alternatively declare the deed a mortgage or cancel it.

Appellate Review

We begin our analysis by noting that the sufficiency of a complaint is a matter of law which requires a de novo review. Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204 (Fla. 5th DCA 2003). An appellate court is not free to rely on assumptions as to what may or may not be proved. Sweeney v. Integon General Ins. Corp., 806 So.2d 605 (Fla. 4th DCA 2002). All well pleaded allegations must be accepted as true. Fox v. Professional Wrecker Operators of Florida, Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001).

Review of Usury Law in Florida

The burden of proving usury is on the party who alleges it. See Phillips v. Lindsay, 102 Fla. 935, 136 So. 666 (1931); Tucker v. Fouts, 73 Fla. 1215, 76 So. 130 (1917); Swanson v. Gulf West Intern. Corp., 429 So.2d 817 (Fla. 2d DCA 1983). Although the determination of usury is one for the fact finder, Wells v. Freedman, 342 So.2d 983 (Fla. 3d DCA 1977); where there is no conflict in the material facts, it is one of law for the court. Rebman v. Flagship First National Bank of Highlands County, 472 So.2d 1360 (Fla. 2d DCA 1985).

The Legislature enacted usury laws to remedy an existing evil, and it has wide discretion in dealing with usury. Cesary v. Second National Bank of North Miami, 369 So.2d 917 (Fla.1979). Legislative classifications are not to be disturbed by the courts unless plainly unconstitutional. Cesary. The usury statutes are to be read together, and are particularly subject to construction in pari materia. Wilensky v. Fields, 267 So.2d 1 (Fla.1972); First Mortgage Corp. of Vero Beach v. Stellmon, 170 So.2d 302 (Fla. 2d DCA 1964). Each statute is to be construed so that it is meaningful in all parts. Wilensky; First Mortgage.

Florida’s usury laws are set out in Chapter 687. Section 687.02(1) defines usurious contracts as

[ajll contracts for the payment of interest upon any loan, advance of money, line of credit, or forbearance to enforce the collection of any debt, or upon any obligation whatever, at a higher rate of interest than the equivalent of 18 percent per annum simple interest are hereby declared usurious. However, if such loan, advance of money, line of credit, forbearance to enforce the collection of a debt, or obligation exceeds $500,000 in amount or value, then no contract to pay interest thereon is usurious unless the rate of interest exceeds the rate prescribed in s. 687.071. (Emphasis added)

Similarly, section 687.03(1), which defines unlawful rates of interests, provides:

Except as provided herein, it shall be usury and unlawful ... whereby the debtor is required or obligated to pay a sum of money greater than the actual principal sum received, together with interest at the rate of the equivalent of 18 percent per annum simple interest. However, if any loan, advance of money, line of credit, forbearance to enforce the collection of a debt, or obligation exceeds $500,000 in amount or value, it shall not be usury or unlawful to reserve, charge, or take interest thereon unless the rate of interest exceeds the rate prescribed in s. 687.071.... (Emphasis added)

The Legislature deems the charging of higher rates of interest as criminal, and has imposed severe penalties on persons engaged in criminal usurious practices. Section 687.071, entitled “Criminal usury, loan sharking; shylocking,” provides:

(2) Unless otherwise specifically allowed by law, any person making an extension of credit to any person, who shall willfully and knowingly charge, take, or receive interest thereon at a rate exceeding 25 percent per annum but not in excess of 15 percent per an-num, or the equivalent rate for a longer or shorter period of time, whether directly or indirectly, or conspires so to do, shall be guilty of a misdemeanor of the second degree....
(3) Unless otherwise specifically allowed by law, any person making an extension of credit to any person, who shall willfully and knowingly charge, take or receive interest thereon at a rate exceeding 15 percent per annum or the equivalent rate for a longer or shorter period of time, whether directly or indirectly or conspire so to do, shall be guilty of a felony of the third degree ... (Emphasis added)
(7) No extension of credit made in violation of any of the provisions of this section shall be an enforceable debt in the courts of this state. (Emphasis added)

A review of the above statutes reveals that for loans under $500,000, a usurious contract is present if an interest rate exceeds 18%. Sections 687.02(1), 687.03(1). But for loans exceeding $500,000 the operative statute is section 687.071. That statute provides that loans which have effective interest rates of 25% or more, but less than 45%, and loans exceeding an effective interest rate of 45%, are criminal offenses. Sections 687.071(2) and (3).

Also excluded from the usury statutes are transactions in which a portion of the investment is at speculative risk. Hurley v. Slingerland, 461 So.2d 282, 283 (Fla. 4th DCA 1985); Diversified Enterprises, Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962). This principle has been statutorily validated when the venture exceeds $500,000. See Bailey v. Harrington, 462 So.2d 861 (Fla. 3d DCA 1985).

There are four essential elements of a usurious transaction: (1) an express or implied loan; (2) a repayment requirement; (3) an agreement to pay interest in excess of the legal rate; and (4) a corrupt intent to take more than the legal rate for the money loaned. Party Yards, Inc. v. Templeton, 751 So.2d 121, 123 (Fla. 5th DCA 2000); Kraft v. Mason, 668 So.2d 679 (Fla. 4th DCA 1996); Bermil Corp. v. Sawyer, 353 So.2d 579 (Fla. 3d DCA 1978). One does not have to specifically charge interest for there to be usury. See American Acceptance Corp. v. Schoenthaler, 391 F.2d 64 (5th Cir.1968) (Florida law).

Courts look to the substance of the transaction to determine whether a transaction is usurious. Party Yards; Kay v. Amendola, 129 So.2d 170 (Fla. 2d DCA 1961). That is, a finding of usury depends on the intent and understanding of the parties. Indian Lake Estates, Inc. v. Special Investments, Inc., 154 So.2d 883 (Fla. 2d DCA 1963). A key issue is the liability of the borrower under the contract’s terms, or what may be demanded of a borrower, rather than what is demanded of him. First Mortgage.

A transaction that is either entirely or partially in the form of a sale, may be usurious when the intent is to make a loan of money for a greater profit than allowed by statute. See, e.g., Griffin v. Kelly, 92 So.2d 515 (Fla.1957); American Acceptance. (Florida law). See also Hembree v. Bradley, 528 So.2d 116 (Fla. 1st DCA 1988) (contract may have been a loan disguised as contract for purchase and sale of property). The value of the property as compared with the sum paid is an important factor in determining whether the transaction is a sale or a loan. See, e.g., Kawauchi v. Tabata, 49 Haw. 160, 413 P.2d 221 (1966).

A sale-option transaction may be considered a loan when the loan is unconditional and compels the vendor to repurchase the property for an amount that, if the loan was disguised as a sale, the “return” or profit would be usurious. Bermil Corp. v. Sawyer, 353 So.2d 579 (Fla. 3d DCA 1978) (option to repurchase not mandatory, but relative disparity between sale price and true value dictated option be exercised).

Trial Court’s Ruling

The trial judge found that the transactions in this case involved a sum in excess of $500,000 and that both the original Option to repurchase and the Amendment were structured so that any return to appellees was speculative. The judge cited to section 687.03(4), which exempts interests in profits, taken as an advance or forbearance for a loan, so long as the value of the property interest is dependent on the success of the venture in which the loan proceeds are used. See Jersey Palm-Gross, Inc. v. Paper, 639 So.2d 664, 673 (Fla. 4th DCA 1994), Farmer, J. dissenting. Profit participation is authorized by the usury statute as not constituting additional interest. Bailey v. Harrington, 462 So.2d 861 (Fla. 3d DCA 1985). See also Schwab v. Quitoni, 362 So.2d 297 (Fla. 3d DCA 1978).

In this case, however, the alleged transactions contain no provision for any interest in profits as contemplated by the statute. The record reveals that the $600,000.00 proceeds were to be used for the benefit of another entity, Port-O-Call, and not the tract. Nor do we find that the pleadings support the legal conclusion that any return to appellees would be speeula-tive. The tract was valued at in excess of $5 million on two different occasions, and based on the maximum mortgage loan against the tract ($1,850,000.00), the equity-exceeded $3,000,000.00. Appellee’s “investment” in the tract was $600,000. For $600,000.00, they received a 50% interest in the tract in the initial transaction, at a time when the value of their one-half interest exceeded $2.5 million. After the Amendment to the Option, they received a 100% interest in the tract valued in excess of $5 million, for $600,000.00. On its face, it cannot be concluded, as a matter of law, that appellees’ $600,000.00 investment was at speculative risk because of the value of the property interest they held.

Analysis of Usury Elements Sub Judice

Whether There was an Express or Implied Loan. The facts of this case illustrate that, based on the intent of the parties’ and the circumstances of the transactions, it could be established that a loan was made to appellants, who were also given an option to repurchase the tract in lieu of a mortgage. See Party Yards; Kraft; Bermil.

Whether There Was a Repayment Obligation. Although there was no specific written obligation for appellants to repurchase the property, we reject appellees’ argument that this precludes a finding that no repayment or repurchase requirement existed in this case. Instead, we agree with the third district in its holding in Bermil, where it found that the economic facts surrounding the transaction were such that repayment was required. The form of the transaction can be disregarded even though the repurchase option is technically conditional. Bermil. As in Ber-mil, a fact-finder could determine that the transactions in this case were economically binding on appellants to repurchase due to the gross disparity between the $600,000.00 proceeds given to appellants and the value of the property interest appellants conveyed to appellees. Initially, appellants conveyed a property interest to appellees that exceeded $1.7 million in value. Appellants were initially allowed to repurchase the one-half interest for $1.2 million in the first year or $1.8 million in the second. After the Amendment, appellants’ property interest exceeded $3 million in exchange for a “$600,000 investment.” The value of the property interest appel-lees received initially was almost three times their “investment” and after the Amendment, five times the amount of their loan. These values could support the conclusion that appellants were obligated to repurchase the property or suffer a tremendous economic loss.

Whether There was an Agreement For a Return Greater Than Legal Rate. Appellees argue that the Amended Option is open indefinitely, and thus a “due” date cannot be determined, which is necessary in order to calculate an interest rate. Any interest rate calculated would vary and could be reduced to non-usurious rates, depending on the number of years the “loan” was outstanding and the price for which the tract sold. They conclude usury cannot be established unless a specific rate of interest has been charged. They are incorrect. As to the latter argument, one does not have to specifically charge interest for there to be usury. American Acceptance.

Moreover, the usurious nature of a transaction is established at the incep tion of the transaction. See Home Credit Co. v. Brown, 148 So.2d 257 (Fla.1963); Shorr v. Skafte, 90 So.2d 604 (Fla.1956); Carter v. Leon Loan & Finance Co., 108 Fla. 567, 146 So. 664 (1933); Maxwell v. Jacksonville Loan & Improvement Co., 45 Fla. 425, 34 So. 255 (1903); First Mortgage; Kay v. Amendola, 129 So.2d 170 (Fla. 2d DCA 1961); Coral Gables First National Bank v. Constructors of Florida, Inc., 119 So.2d 741 (Fla. 3d DCA 1960). The exception to this rule is where an old contract is abandoned and a new one, which has been entered into free from the vice of the old, occurs. Carter.

Pursuant to the initial option, appellees would have received double the amount of their investment, $1.2 million, within one year, and triple the amount, $1.8 million, within two years. This equates to an interest rate which is calculable and which exceeds the permissible amount in section 687.071.

Nor did the execution of the Amendment alter the usurious nature of this transaction. It is well settled that when a usurious contract is renewed by a new or substituted contract, usury follows and becomes a part of the second contract. Shorr; Carter; Coral Gables. Moreover, delay in enforcement of a usurious contract does not purge it of its vices. Shorr; Carter; Coral Gables.

In this case, it cannot be concluded as a matter of law that a new contract was freely entered into by the parties. An Amendment to the land trust was executed by appellees, in which they deleted the requirement that the option be exercised in two years in exchange for appellants transferring the remaining one-half interest in the tract to them. If the original transaction was usurious, the taint was not removed with the Amendment.

Whether Appellees Acted With Corrupt Intent. Corrupt intent is established if the evidence indicates the lender knowingly charged or received excessive interest considering all the circumstances surrounding the transaction. Party Yards. The Agreement for Sale, the Option and the Amendment, are sufficient to support the claim that appellees knowingly intended to receive an interest rate which exceeded the permissible statutory rate.

In sum, we find that the allegations in the complaint are sufficient to plead a cause of action in usury, and for the related relief of quiet title and civil theft. We find nothing in the record to justify the dismissal of Count VII, which alternately pleaded for a declaration of the deed to be a mortgage, section 697.01, Blanco v. Novoa, 854 So.2d 672 (Fla. 3d DCA 2003), Smith v. Potter, 406 So.2d 1231 (Fla. 5th DCA 1981); or for cancellation of the deed, Leonard v. Howarth, 153 So.2d 743 (Fla. 2d DCA 1963). Accordingly, we reverse the trial court’s orders and remand for further action consistent with this opinion.

REVERSED and REMANDED.

SAWAYA, C.J., and TORPY, J., concur.

      . Euramerican is the sole General Partner of Oregrund.

      . Originally, the investors were: Randy Sheive, Ray Parsons, Dale Parsons, Charles H. Parsons and Ann Moncrief. In April of 2000, appellees Rajin N. Ackley, C. Allen Whitson, Craig Lewis, Lariy Y. Harrelson, Larall Enterprises (a Florida General Partnership) and Whit-Law Enterprises (a Florida General Partnership) were added.

      . The third amended complaint contained seven counts: Count 1: Usury, first transaction, under section 687.03; Count 2: Declaratory Judgment, Usury, first transaction, under section 687.071; Count 3, Declaratory Judgment, Usury, second transaction, under section 687.071; Count 4: Usury, second transaction, under section 687.03; Count 5: Quiet Title; Count 6: Civil Theft, section 772.11; and Count 7: Declaratory Judgment to declare deeds are mortgages or to cancel deeds.

      . The determination of the maximum amount of interest which may be charged for the use of money loaned is within the police power of the state. Cesary v. Second National Bank of North Miami, 369 So.2d 917 (Fla.1979). The details of the legislation, penalties, and exceptions made are within the discretion of the legislature. Cesary; Coe v. Muller, 74 Fla. 399, 77 So. 88 (1917).

      . The Florida statutes require only an intent to charge more than the law allows for the contract to be usurious. American Acceptance Corp. v. Schoenthaler, 391 F.2d 64 (5th Cir.1968) (Florida law). However, the fact that one receives more than the law permits is not fully determinative of whether usury is present. Wells v. Freedman, 342 So.2d 983 (Fla. 3d DCA 1977).

      . Section 687.03(4) provides:
      If, as provided in subsection (3), a loan, ... exceeds $500,000, then for the purposes of this chapter, interest on that loan, ... shall not include the value of the property charged, reserved, or taken as an advance or forbearance, the value of which substantially depends on the success of the venture in which are used the proceeds of that loan.... Stock options and interests in profits, receipts, or residual values are examples of the type of property the value of which would be excluded from calculation of interest under the preceding sentence. (Emphasis added).

      . $5,215,000 lowest appraised value, less $1.7 mortgage = $3.5 million: one-half = $1.7 million.

      . $5,215,000 appraised value, less $1,850,000 mortgage = $3,375,000 equity value in whole.

      . § 687.071(3), Fla. Stat.

      . The exception to this rule is where an old contract is abandoned and a new one, which has been entered into free from the vice of the old, occurs. Carter v. Leon Loan & Finance Co., 108 Fla. 567, 146 So. 664 (1933).

      . Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984) (quiet title may be founded on a written instrument).

      . See, section 772.11; Florida Desk, Inc. v. Mitchell International, Inc., 817 So.2d 1059 (Fla. 5th DCA 2002).


author: VAN NORTWICK, J.

text:
    LEON COUNTY, Florida, Appellant, v. G.J. GLUESENKAMP, Jr., et al., Appellees.
    No. 1D02-4658.
    District Court of Appeal of Florida, First District.
    May 10, 2004.
    Herbert W.A. Thiele, County Attorney; Daniel J. Rigo, Assistant County Attorney, Tallahassee; Robert H. Freilich, Esq. of Freilich, Leitner & Carlisle, Kansas City, for Appellant.

      Carl R. Pennington, Jr., Esq. of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellees.
   VAN NORTWICK, J.

In another case arising out of the disputes concerning the land use regulation in the Bradfordville area of northern Leon County, the County appeals a partial final judgment and final judgment in favor of appellees, G.J. Gluesenkamp, Jr., Josephine Gluesenkamp, and Blue Chip Investment Partnership, a partnership owned by the Gluesenkamps. In the orders on appeal, the trial court ruled that the County had breached a Development Agreement between it and appellees’ predecessors-in-interest by effectively prohibiting appel-lees from developing their Bradfordville area property pursuant to the Development Agreement and that the County’s actions resulted in a compensable temporary taking of appellees’ property. The trial court awarded appellees damages of $130,000, measured by the fair rental value of appellees’ property during the period in which the County’s actions prohibited the development of their property. Because the County’s performance of its obligations under the Development Agreement was prevented by the existence of a court-ordered injunction, we conclude that the County did not breach the Development Agreement. Further, we hold that the delay in the development of appellees’ property did not constitute a compensable temporary taking under Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002), and Bradfordville Phipps Limited Partnership v. Leon County, 804 So.2d 464 (Fla. 1st DCA 2001), review denied, 829 So.2,d 916 (Fla.2002). Accordingly, we reverse and remand for proceedings consistent with this opinion.

Factual and Procedural Background

On December 6, 1995, the County amended the 2010 Tallahassee-Leon County Comprehensive Plan by adding Land Use Goal 8 (Goal 8), which provided for the development and implementation of a comprehensive stormwater management plan for the Bradfordville Study Area (BSA). On February 24, 1998, the County entered into a Development Agreement with appel-lees’ predecessors-in-interest, Robert G. Lauder, Wilma B. Lauder, and Fred J. Petty (jointly, the Lauders), which set forth the terms under which the Lauders and the County would work together in the planning and acquisition of property for certain long-planned road expansion projects in the BSA, including a regional stormwater management facility. The real property subject to the Development Agreement included 178.58 acres owned by the Lauders and 1.3 acres owned by the Florida Department of Transportation (DOT). Pursuant to the Development Agreement, the Lauders agreed to transfer to the County 10.879 acres for the construction of regional stormwater management facilities, control structures, and inflow structures to handle any runoff from the property. The County and DOT were to be responsible for any required environmental studies and all design, engineering, regulatory approval, permitting, and construction of the stormwater facility. The Lauders agreed to pay the County a one-time maintenance fee of $90,000 in the event that improvements on their property connected to the stormwater facility. The Development Agreement also provided that the Lauders, their grantees, assignees, or lessees would be responsible for obtaining the necessary development orders for any improvements on the property governed by the Development Agreement, except for the construction of the stormwater management facility.

On April 27, 1998, various parties filed suit challenging the County’s adherence to the Comprehensive Plan including, among other things, the action of the County in entering into the Development Agreement (the Lake McBride Action). On April 30, 1998, appellees purchased three lots from the Lauders for a price of approximately $600,000; these lots were a portion of the property subject to the Development Agreement. On December 15, 1998, the trial court entered a written injunction order in the Lake McBride Action, prohibiting the County

from issuing any future building permits or other development permits authorizing construction within the Bradfordville Study Area until such time as the County comes into compliance with 8.1, 8.3.1 and 8.5.2 of the Land Use Element of the Tallahassee/Leon County Comprehensive Plan.

Although the injunction, which was to be dissolved when the County remedied its non-compliance with the Comprehensive Plan, was not to apply to any activities already grandfathered in by law, it was applicable to all pending and future permit applications. On January 12, 1999, the County and the plaintiffs in the Lake McBride Action entered into an Interim Settlement Agreement (ISA), by which the County agreed not to appeal the injunction order. The following day, the trial court modified its injunction by excluding from its scope certain properties as agreed upon by the County and the Lake McBride plaintiffs. The appellees’ property remained subject to the injunction.

In February 1999, appellees prepared plans and specifications for the purpose of constructing a single-family residence on one of their three lots and applied for a building permit and an environmental management permit. That same month, the County informed appellees by letter that it was unable to issue a development permit due to the court’s injunction in the Lake McBride Action.

On March 2, 1999, appellees filed the action against the County which is the subject of this appeal, asserting five claims for relief, including claims for inverse condemnation, declaratory relief, specific performance, breach of contract, and injunc-tive relief. With respect to the breach of contract claim, appellees alleged that the County beached the Development Agreement by failing and refusing to issue ap-pellees a building permit as required by that contract. With respect to the inverse condemnation claim, appellees alleged that the County’s acts and omissions, including entering into the ISA, agreeing to actively take steps to breach the Development Agreement, and agreeing not to appeal the injunction order, constituted a substantial interference with appellees’ property rights resulting in a taking of appellees’ property.

On December 14, 1999, as part of its efforts to comply with the Comprehensive Plan and the injunction in the Lake McBride Action, the County adopted an Interim Development Ordinance (IDO), restricting the issuance of development permits for land in the BSA. The IDO’s term, which was limited to seven months unless extended by a majority vote of the Board of County Commissioners, served to allow the County to complete all necessary studies with regard to the stormwater issues in the BSA. On July 11, 2000, the County adopted an ordinance that implemented the provisions of Goal 8. On November 22, 2000, the trial court dissolved the injunction in the Lake McBride Action. On June 5, 2001, appellees sold their three lots for a price of $1,094,050.

On April 12, 2002, the trial court in the instant action entered its partial final judgment. There, the trial court determined that appellees’ claims for declaratory judgment, specific performance, and injunctive relief were rendered moot by appellees’ sale of the property. As to the breach of contract claim, the trial court found that the County prohibited appellees from developing their property in accordance with the terms of the Development Agreement by entering into the ISA and enacting the IDO. With respect to the taking claim, the trial court ruled that appellees had suffered a loss of all or substantially all economically viable uses of the three lots sufficient to constitute a categorical taking pursuant to Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). The trial court distinguished our decision in Brad-fordville Phipps on the basis that the parties in that case had not entered into a Development Agreement which clearly sets forth the rights of the parties. The trial court’s order found that appellees’ loss of use of their property was not reasonably based upon land use planning delays. In its final judgment, the trial court ruled that appellees were entitled to damages of $130,000, which represented the fair rental value of the property for the loss of the use of the property from January 13, 1999, through November 22, 2000, for either the breach of contract or for the taking claims. This appeal followed.

Breach of Contract Claim

The County contends that the trial court erred in ruling that the County prohibited appellees from developing their property. The County argues that it was the court-ordered injunction in the Lake McBride Action which prohibited development and that the County was obligated to obey the injunction notwithstanding the terms of the Development Agreement. We agree.

“An injunction issued by a court acting within its jurisdiction must be obeyed until the injunction is vacated or withdrawn.... A contract provision the performance of which has been enjoined is unenforceable.” W.R. Grace and Co. v. Local Union 759, 461 U.S. 757, 766-67, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) (citing Restatement (Second) of Contracts §§ 261 & 264 (1981) (other citations omitted); see also The Fla. Bar v. Furman, 451 So.2d 808, 813 (Fla.1984) (holding that an injunction must be obeyed until it is vacated or modified by the court awarding it or a superior authority, or until the order or decree granting it is reversed on appeal). The rule applicable here arises from the general principle under which a party’s contractual obligation is discharged when the party’s performance of the contract is prevented by governmental order. Section 261 of the Restatement (Second) of the Law of Contracts explains:

Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.

“It is ‘a basic assumption on which the contract was made’ that the law will not directly intervene to make performance impracticable when it is due.” Restatement (Second) Law of Contracts § 264 cmt. BB 3.5 (p. 39)(1981). Thus, section 264 of the Restatement (Second) Law of Contracts provides: “If the performance of a duty is made impracticable by having to comply with a domestic or foreign governmental regulation or order, that regulation or order is an event the non-occurrence of which was a basic assumption on which the contract was made.” This rule is applicable even though the party invoking the defense, as the County here, is a governmental entity, provided the law or governmental action frustrating performance was not adopted or enacted with the intent of relieving the governmental entity of its contractual obligation. See, e.g., City Line Joint Venture v. United States, 48 Fed. Cl. 837, 840 (Fed.Cl.2001).

In the instant case, the trial court in the Lake McBride Action enjoined the County from issuing any future building or development permits authorizing construction within the BSA until the County came into compliance with certain provisions of the Comprehensive Plan. Notwithstanding the County’s decision to enter into the ISA with the Lake McBride plaintiffs and the County’s subsequent enactment of the IDO, it was not until the trial court dissolved the injunction in November 2000 that the County was able to issue building permits to appellees. Further, the record is undisputed that, in the negotiations leading up to the ISA, the County sought to exclude as much property as possible from the operation of the injunction. The record reflects that the plaintiffs in the Lake McBride Action refused to agree to exclude appellees’ land from the coverage of the injunction. Similarly, as this Court previously determined in Bradfordville Phipps, the County adopted the IDO as part of its effort to comply with both the injunction and the Comprehensive Plan. See Bradfordville Phipps, 804 So.2d at 466. Therefore, to the extent that the County had an obligation pursuant to the Development Agreement to issue permits to appellees for the development of their property, the obligation was excused based upon the trial court’s injunction in the Lake McBride proceeding. See W.R. Grace and Co., 461 U.S. at 766-67, 103 S.Ct. 2177; Furman, 451 So.2d at 813. Accordingly, the County’s actions did not constitute a breach of the Development Agreement.

Taking Claim

“[A] temporary deprivation may constitute a taking.” Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54, 58 (Fla.1994) (citing First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987)). In Brad-fordville Phipps, this Court has previously addressed the issues raised in this appeal with respect to the temporary takings claim. There, the appellant partnership challenged a trial court order which had denied its motion for summary judgment in favor of the appellee, Leon County. Bradfordville Phipps, 804 So.2d at 465. The partnership, which owned land in the BSA, had filed an inverse condemnation action against the County following the imposition of the court-ordered injunction in the Lake McBride Action. Id. As did appellees in the instant case, the partnership alleged that the County’s actions in consenting to the entry of an order enjoining it from issuing any further development permits and in agreeing not to appeal any order that may be entered enjoining the issuance of permits for the development of the subject property substantially deprived the partnership of the beneficial use of its property and constituted a taking. Id. at 466. We held that the trial court properly concluded that the partnership had not shown that it was deprived of all or substantially all economically beneficial use of its property such that a temporary regulatory taking had occurred under the test set forth in Lucas. Id. at 468.

The trial court below and the appellees on appeal seek to distinguish Bradfordville Phipps and find controlling the Florida Supreme Court’s decision in Keshbro, Inc. v. City of Miami, 801 So.2d 864 (Fla.2001). In Keshbro, the court addressed whether a compensable taking could occur under Lucas when nuisance abatement boards prospectively ordered temporary closures of a motel and an apartment complex. Both the trial court and appellees overlook, however, that we expressly distinguished Keshbro in Bradfordville Phipps. There, we explained that the factual impetuses in Keshbro, the criminal activity requiring the temporary closure of a motel and an apartment complex, were far removed from those then before this Court. Bradford-ville Phipps, 804 So.2d at 471. More importantly, in Keshbro, the supreme court explained that an “entirely different set of considerations are implicated from those in the context of nuisance abatement where a landowner is being deprived of a property’s dedicated use” in the land use and planning arena. Keshbro, 801 So.2d at 874. Thus, the reliance of the trial court and appellees upon Keshbro is misplaced.

In Bradfordville Phipps, we concluded that a temporary land use regulation could rarely, if ever, completely deprive the owner of all economically beneficial use and adopted the reasoning of the Ninth Circuit Court of Appeals’ decision in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764 (9th Cir.2000), affirmed, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). 804 So.2d at 471. Like the situation in Tahoe-Sierra, we concluded that the injunction at issue was designed to suspend certain development only until Leon County completed the stormwater study required by the Comprehensive Plan. Id. We noted that, even though a moratorium may restrict or temporarily delay the use of property for development purposes, it could hardly be said that a temporary moratorium destroys the economic value of the property. Id. In the orders on appeal, the trial court rejected the rationale of Tahoe-Sierra, finding that “[t]he land use planning rationale behind Tahoe-Sierra is clearly not applicable to the case at hand.”

Subsequent to our Bradfordville Phipps decision, the United States Supreme Court affirmed the Ninth Circuit’s decision in Tahoe-Sierra. See Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). The Supreme Court stated that the question presented was whether a moratorium on development imposed during the process of devising a comprehensive land use plan constituted a per se taking of property requiring compensation. Id. at 306, 122 S.Ct. 1465. Tahoe-Sierra involved two moratoria ordered by the respondent to maintain the status quo while studying the impact of development on Lake Tahoe. As a result of the two directives, virtually all development on a substantial portion of the property subject to the respondent’s jurisdiction was prohibited for thirty-two months. Id. The petitioners argued that a temporary deprivation, no matter how brief, of all economically viable use triggered a per se rule that a taking had occurred. Id. at 303, 122 S.Ct. 1465. The Court explained that its decisions in Lucas and in First English did not support such a categorical rule and implicitly rejected a categorical rule in the regulatory taking context. 535 U.S. at 321, 122 S.Ct. 1465. The Court held that its precedents from the physical takings context were not applicable to regulatory takings claims, id. at 324, 122 S.Ct. 1465, and that the Lucas holding that the permanent obliteration of the value of a fee simple estate constitutes a categorical taking certainly did not answer the question of whether a regulation prohibiting any economic use of land for a thirty-two month period had the same legal effect. Id. at 330-31, 122 S.Ct. 1465. The Court explained that “a permanent deprivation of the owner’s use of the entire area is a taking of ‘the parcel as a whole,’ whereas a temporary restriction that merely causes a diminution in value is not.” Id. at 333, 122 S.Ct. 1465. “Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted.” Id. The Court concluded that, rather than attempting to craft a new categorical rule applicable to regulatory monitoring, “the circumstances in this case are best analyzed within ... the framework” in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). 535 U.S. at 342, 122 S.Ct. 1465. Tahoe-Sierra emphasized that the Court’s regulatory takings jurisprudence “is characterized by ‘essentially ad hoc, factual inquiries’ ” id. at 322, 122 S.Ct. 1465, (quoting Penn Central, 438 U.S. at 124, 98 S.Ct. 2646), that are “designed to allow ‘careful examination and weighing of all the relevant circumstances,’ ” id. at 322, 122 S.Ct. 1465 (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 636, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001)). The Court noted the importance of the “multifactor inquiry generally applicable to nonpossessory governmental activity,’ ” id. at 325 n. 18, 122 S.Ct. 1465 (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 440, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982)), and that it has “ ‘generally eschewed’ any set formula for determining how far is too far, choosing instead to engage in ‘essentially ad hoc, factual inquiries.’ ” Id. at 326,122 S.Ct. 1465.

As we previously explained in Bradford-ville Phipps, a temporary land use regulation could rarely, if ever, completely deprive the landowner of all economically beneficial use. See 804 So.2d at 471. “A truly temporary land use injunction or moratorium looks more like a permitting delay than a compensable regulatory taking.” Id. Thus, “the timetable established by a commercial developer must anticipate delays, whether occasioned by holdups in the permitting process, litigation by neighboring land owners, or a temporary development injunction or moratorium.” Id. More significantly, under the Court’s holding in Tahoe-Sierra, the development moratorium could not constitute a per se taking of property under Lucas, contrary to the trial court’s ruling in the orders on appeal. See Tahoe-Sierra, 535 U.S. at 325-26,122 S.Ct. 1465.

We also conclude that the development moratorium before us does not constitute a taking under the Penn Central analysis adopted in Tahoe-Sierra. In Penn Central, the Court identified three factors to apply when engaging in an analysis of whether a regulation constitutes a taking: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. See Penn Cent., 438 U.S. at 124, 98 S.Ct. 2646.

With respect to the Penn Central economic impact criterion, a plaintiff must establish “ ‘a serious financial loss from the regulatory imposition.’ ” Bass Enters. Prod. Co. v. United States, 54 Fed. Cl. 400, 403 (Fed.Cl.2002) (quoting Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1176 (Fed.Cir.1994)). The focus of this factor is on the change in fair market value of the subject property caused by the regulatory imposition. Id. In other words, the court must compare the value that has been taken from the property with the value that remains in the property. Id. (citing Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987)); see also Cane Tenn., Inc. v. United States, 57 Fed. Cl. 115, 123 (Fed.Cl.2003) (holding that the proper measure of economic impact is a comparison of the market value of the property immediately before the governmental action with the market value of that same property immediately after the action).

In the instant case, the record contains little evidence concerning changes in the market value of appellees’ property during the period in which the injunction was in place. We note, however, that appellees purchased the three lots in 1998 for approximately $600,000 and, following the dissolution of the injunction in the Lake McBride Action, appellees sold these three lots in 2001 for $1,094.050, making a profit of almost $500,000. Thus, nothing in the record shows the County’s inability to issue appellees a building permit over the course of the injunction decreased the fair market value of appellees’ property. See Cane Tenn., Inc., 57 Fed. Cl. at 123 (noting that recoupment can be relevant in determining whether a taking has occurred and setting forth that it is less likely that a taking has occurred if a party is able to recoup its investment after the governmental action).

The Penn Central investment-backed expectation factor limits a takings recovery to plaintiffs who can establish that they “ ‘bought their property in reliance on a state of affairs that did not include the challenged regulatory regime.’ ” Bass Enters. Prod. Co., 54 Fed. Cl. at 403 (quoting Loveladies Harbor, Inc., 28 F.3d at 1176). Here, although the court-ordered injunction and the County’s inability to issue building permits during that period of time did not exist when appellees purchased their property, the Lake McBride Action had commenced prior to appellees’ purchase. Furthermore, it is undisputed that at the time appellees purchased the subject property, the development of a storm-water management plan for the BSA pursuant to the Comprehensive Plan and Goal 8 had been ongoing for many years. Under the existing regulatory regime, in 1998, any reasonable real estate investor or developer should have anticipated that future restrictive regulations were likely to be imposed and that such governmental actions might adversely affect development plans.

With respect to the Penn Central factor relating to the character of the government action, “[a] ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government ... than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Cent, 438 U.S. at 124, 98 S.Ct. 2646. In determining the character of the government action, courts must weigh the “ ‘purpose and importance of the public interest reflected in the regulatory imposition’ ” and balance appellees’ interests against the County’s needs to protect the public. See Bass Enters. Prod. Co., 54 Fed. Cl. at 403 (quoting Loveladies Harbor, Inc., 28 F.3d at 1176).

In the instant case, the Comprehensive Plan and, more specifically, Goal 8 recognized that potential stormwater problems would likely be caused by future development in the BSA and set forth objectives in furtherance of the public interest. Any interference in the County’s ability to issue appellees a building permit resulted from the court-ordered injunction that effectively forced the County to complete the necessary studies with regard to the stormwa-ter issues in the BSA. In weighing the purpose and importance of the public interest with respect to the Comprehensive Plan and appellees’ interest in developing their property, we find that it was reasonable for the County to decline to issue appellees a building permit based upon the existence of the court-ordered injunction and its attempt to comply with the Comprehensive Plan.

In summary, because the trial court erred in ruling that the County breached the Development Agreement and that a temporary taking had occurred pursuant to Lucas, we reverse both the Partial Final Judgment and the Final Judgment and remand for further proceedings.

REVERSED and REMANDED.

BOOTH and BENTON, JJ., concur.

      . The County also argues that damages as a remedy for breach of contract are not permissible because section 163.3243, Florida Statutes (1997), which is part of the Florida Local Government Development Act, prescribes that an aggrieved or adversely affected person may file an action for injunctive relief and makes no mention of damages as a breach of contract remedy. Because we hold that the County’s actions did not constitute a breach of the Development Agreement, we find it unnecessary to address this argument.

      . As did appellees in the instant case, the partnership in Bradfordville Phipps based its temporary regulatory taking claim solely on the theory that such a taking had occurred under the test in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In Lucas, the petitioner purchased two residential lots on a South Carolina barrier island, intending to build single-family residential homes. Id. at 1003, 112 S.Ct. 2886. Two years later, the South Carolina legislature enacted a statute which prohibited the petitioner from building any permanent habitual structures. Id. The Court explained that "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is to leave his property economically idle, he has suffered a taking.” Id. at 1019, 112 S.Ct. 2886. The Lucas court indicated, however, that such a situation was relatively rare. Id. at 1018, 112 S.Ct. 2886.

      . The Court noted that the only question before it was whether the rule set forth in Lucas applied. Id. at 318, 122 S.Ct. 1465.


text:
    Jaushia Demario WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3199.
    District Court of Appeal of Florida, First District.
    May 10, 2004.
    Nancy A. Daniels, Public Defender; Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Perkins v. State, Case. No. 1D03-1933, — So.2d-, 2004 WL 825592 (Fla. 1st DCA Apr.19, 2004); Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2003).

BAEFIELD, DAVIS, and BENTON, JJ., CONCUR.


text:
    Emerson Lamar DAVIDSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D03-2893, 5D03-2894.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2004.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Gary GUMBLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3021.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Darius WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3240.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2004.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Darius E. Wilson, Malone, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Joseph PADRO, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1213.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2004.
    Joseph Padro, Madison, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Campbell v. State, 696 So.2d 953 (Fla. 4th DCA 1997).

PETERSON, ORFINGER and MONACO, JJ., concur.


text:
    Ferris Lee EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1336.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2004.
    Ferris Lee Edwards, Cross City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

SHARP, W., ORFINGER and TORPY, JJ., concur.


author: STRINGER, Judge.

text:
    STATE of Florida, Appellant, v. Mark CYPHERS and Donna McKinney, Appellees.
    No. 2D03-1272.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellant.

      Henry E. Lee of Law Office of Henry Lee, Sarasota, for Appellee Mark Cyphers.
    Jackson McGill of Law Offices of R. Jackson McGill, Sarasota, for Appellee Donna McKinney.
   STRINGER, Judge.

The State seeks joint review of two orders granting Mark Cyphers’ and Donna McKinney’s motions to dismiss on the grounds that the statutory scheme they were charged under is unconstitutionally vague. Cyphers and McKinney (Defendants) were charged with keeping a gambling house, contrary to section 849.01, Florida Statutes (2003), and possession of coin-operated devices (slot machines), contrary to section 849.15, Florida Statutes (2003). Because sections 849.01, 849.15, and 849.161, Florida Statutes (2003), are not impermissibly vague, we reverse the trial court’s orders granting Defendants’ motions to dismiss and remand for further proceedings.

Defendants operated an arcade amusement center with at least fifty amusement games, which Defendants believed to be permissible as part of the section 849.161 arcade amusement center exception to chapter 849, Laws of Florida. The machines at issue in this case are operated by the player’s inserting cash into the machine and depressing a button, whereby a series of rotating icons begin to spin. The player then depresses the button to stop the spinning icons, attempting to line up the icons in combinations to be awarded credits. A certain number of credits may be exchanged for gift certificates redeemable at various specified businesses. Some businesses redeem the gift certificates for merchandise and cash. Both the State and Defendants conceded, and the court found, that skill affected the outcome in all the machines, but there was also an element of chance affecting the outcome.

Defendants challenged the informa-tions, alleging that the statutory scheme under which they were charged is unconstitutionally vague. Specifically, Defendants argued that section 849.161(l)(a)(l)’s arcade amusement center exception for machines involving the “application of skill” is vague when read in conjunction with section 849.15, which prohibits slot machines involving “any element of chance.” Additionally, Defendants argued that section 849.161(l)(a)(l) is vague in its requirement that points or coupons awarded to players could only be exchanged for merchandise, excluding cash and alcoholic beverages. The trial court agreed with Defendants’ constitutional vagueness challenges and dismissed the informations, finding that the language of sections 849.01, 849.15, and 849.161 does not provide adequate notice of the prohibited conduct, leading to arbitrary and selective enforcement of the law.

To sustain a void for vagueness claim, Defendants must have established below that the statute “is so vague and lacking in ascertainable standards of guilt that, as applied [to Defendants], it failed to give ‘a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.’ ” Palmer v. City of Euclid, 402 U.S. 544, 545, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971) (citations omitted); see also State v. Barnes, 686 So.2d 633, 637 (Fla. 2d DCA 1996). It is well settled that “[w]hen a person has received fair warning from a criminal statute that certain conduct is prohibited, that person may not attack the vagueness of the statute simply because it does not give ‘similar fair warning with respect to other conduct which might be within its broad and literal ambit.’ ” Barnes, 686 So.2d at 636-37 (quoting Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)). Thus, a defendant may not successfully challenge a statute as vague when the record shows that the defendant engaged in conduct clearly proscribed by the plain and ordinary meaning of the statute. Id. at 637; see also State v. De La Llana, 693 So.2d 1075, 1077 (Fla. 2d DCA 1997). In this case, the record shows that Defendants’ conduct is clearly not protected under the section 849.161(l)(a)(l) exception to gambling prohibitions. Thus, Defendants cannot sustain a void for vagueness claim, and we do not reach Defendants’ argument that section 849.161(l)(a)(l) is vague when read in conjunction with section 849.15.

Section 849.15 prohibits possession of any slot machine, defined in section 849.16(1), Florida Statutes (2003), as

[a]ny machine or device ... that is adapted for use in such a way that, as a result of the insertion of any piece of money, coin, or other object, such machine or device is caused to operate or may be operated and if the user, by reason of any element of chance or of any other outcome of such operation unpredictable by him or her, may: ... [rjeceive or become entitled to receive any ... thing of value ... or ... [secure additional chances....

Pursuant to section 849.161(l)(a)(l), however, section 849.15 shall not apply to an arcade amusement center with amusement games or machines “which operate by means of the insertion of a coin and which by application of skill may entitle the person playing or operating the game or machine to receive points or coupons which may be exchanged for merchandise only, excluding cash and alcoholic beverages,” not to exceed a value of seventy-five cents per game.

Defendants do not argue that their conduct does not fall within the gambling prohibitions of sections 849.01 and 849.15. Rather, Defendants argue that they believed their conduct to be exempt from prosecution pursuant to the section 849.161(l)(a)(l) exception. We find, however, that Defendants’ conduct is clearly not protected under the section 849.161(l)(a)(l) exception because Defendants’ machines were not coin operated, as required by the plain and ordinary meaning of the statute.

The definition of slot machine includes a machine that may be operated by the insertion of “any piece of money, coin, or other object.” In contrast, section 849.161(l)(a)(l) refers specifically to machines which operate by the insertion of “a coin.” Furthermore, section 849.161(l)(a)(2), creating an exception pertaining to truck stops, refers to machines operated by the insertion of “a coin or other currency.” The legislature’s use of different terms in different sections of the same statute is “strong evidence that different meanings were intended.” Clarke v. Schimmel, 774 So.2d 7, 9 (Fla. 2d DCA 2000). Thus, “[w]hen the legislature has used a term ... in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded.” Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995). In addressing this issue, the Florida Attorney General’s Office concluded that “the Legislature’s use of only the term ‘coin’ in section 849.161(l)(a)l., reflects an intent that only those machines that operate by use of a coin fall within the exception to the prohibition against slot machines.” Op. Att’y Gen. Fla.2004-12 (2004).

In this case, the record is clear that Defendants’ machines were not coin operated. Rather, Cyphers testified that the machines did not accept quarters and were operated by cash bills, with some machines accepting up to a hundred dollar bill. We find, based on the plain and ordinary meaning of the statute, that Defendants’ conduct is not protected by the section 849.161(l)(a)(l) exception to the gambling prohibitions of sections 849.01 and 849.15. Accordingly, Defendants’ vagueness challenge to sections 849.01, 849.15, and 849.161 must fail. We reverse the trial court’s orders dismissing Defendants’ in-formations and remand for further proceedings.

Reversed and remanded.

COVINGTON and VILLANTI, JJ., Concur.


text:
    Curtis HICKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-5017.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Rehearing Denied June 10, 2004.
    Curtis Hickson, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner Curtis Hickson seeks a second appeal of his convictions and sentences for aggravated battery on a police officer, simple battery and resisting arrest with violence. He has alleged three grounds for this relief. We deny grounds one and three as being without merit, but grant relief based on ground two for reasons which follow.

Ground two alleges a claim of ineffective assistance of appellate counsel. Hickson contends that his counsel failed to assert fundamental error with regard to a jury instruction that was given on forcible felony. He argues that, given his claim of self-defense at trial, the instruction was misleading and inappropriate and counsel should have argued fundamental error on appeal. We agree.

At trial, the jury was instructed as follows:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Curtis Jackson [sic] is charged if the injury to Russ E. Mager and/or Richard Jacobson resulted from the justifiable use of force not likely to cause death or great bodily harm. Curtis Hickson would be justified in using force not likely to cause death or great bodily harm against Russ Mager and/or Richard Jacobson if the following two facts are proved, one, Curtis Hickson must have reasonably believed that such conduct was necessary to defend himself against Russ Mager and/or Richard Jacobson’s imminent use of unlawful force against Curtis Hickson; and two, the use of unlawful force by Russ Mager and/or Richard Jacobson must have appeared to Curtis Hickson ready to take place.
The use of force not likely to cause death or great bodily harm is not justifiable if you find, one, Curtis Hickson was attempting to commit or committing or escaping after the commission of an aggravated battery; two, Curtis Bernard Hickson initially provoked the use of force against himself, unless the force asserted towards the defendant was so great that the defendant reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using force not likely to cause death or great bodily harm to Russ Mager and/or Richard Jacobson; in good faith, the defendant withdrew from the physical contact with Russ Mager and/or Richard Jacobson and indicated clearly to Russ Mager and Richard — and/or Richard Jacobson that the defendant wanted to withdraw and stopped the use of force no [sic] likely to cause death or great bodily harm, but Russ E. Mager and/or Richard Jacobson continued or resumed the use of force.

We agree with petitioner that the instructions given were circular and confusing to the jury because they essentially negated his only defense, that being self-defense. We find support in Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), where we held that this type of instruction is appropriate only where the defendant claiming self-defense was engaged in committing another independent forcible felony at the time, and not where the only charge against the defendant is the same act he claimed was made in self-defense.

Although trial counsel did not object to this instruction, it may have constituted fundamental error which could have been raised for the first time on direct appeal. See Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). As such, this is the type of error or omission of appellate counsel which undermines the court’s confidence in the correctness of the result of the direct appeal, so as to constitute ineffective assistance of appellate counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Estevez v. Crosby, 858 So.2d 376 (Fla. 4th DCA 2003). As we said in Estevez, however, the fundamental nature of the error can be determined only after review of the entire record on appeal. Id. See also Fair v. Crosby, 858 So.2d 1103 (Fla. 4th DCA 2003).

Therefore, we grant the petition and allow petitioner a second appeal on this issue as asserted in ground two only. This opinion shall be filed in the lower tribunal and treated as a notice of second or belated appeal of the judgments and sentences imposed in this case against petitioner in January 2001. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedure shall run from the date of this opinion. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

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