text:
    Joseph BALSAMO and George Sahagian, Appellants, v. GRUPPO CERAMICHE RICCHETTI, S.P.A.; Building Materials International, Inc.; and BMI Tile, Inc., Appellees.
    No. 4D02-2082.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    ' Henry B. Handler and Bruce A. Harris of Weiss & Handler, P.A., Boca Raton, for appellants.
    Steve J. Gutter of Kahn & Gutter, Plantation, for Appellee Gruppo Ceramiche Ricchetti, S.P.A.
   ON MOTION FOR REHEARING

STONE, J.

We deny Appellee’s motion for rehearing. However, we withdraw our opinion issued July 23, 2003, and substitute the following:

Balsamo and Sahagian (“Appellants”) appeal a summary judgment entered in favor of Gruppo Ceramiche Ricchetti, S.P.A. (“Appellee”) under Florida’s Uniform Fraudulent Transfers Act. We reverse.

Appellee, a judgment creditor of Building Materials, Inc. (“Building”), brought proceedings supplementary against Appellants and BMI Tile, Inc., seeking to recover the judgment amount of $35,694, plus interest. The complaint alleged that Appellants were officers, directors, and/or shareholders of Building, the judgment debtor, and that Building transferred its assets to BMI Tile in a fraudulent transfer while Building was insolvent.

The summary judgment is based on an accountant’s affidavit stating that Building had a “liquidity problem” in that its “quick ratio” (cash plus receivables divided by payables) was 55%, whereas a solvent company’s “quick ratio” should not be less that 80%.

Appellants filed the affidavits of two accountants in opposition to the motion for summary judgment, disagreeing with Building’s accountant and stating that Building was solvent based on the measurement of stockholder’s equity plus loans from stockholders and considering inventory, current assets, and the fact that Building was paying its debts as they became due.

By its summary judgment order, the trial court found that Building was insolvent at the time of the transfer of its assets and liabilities to BMI Tile, despite the fact that it also found that Building’s assets exceeded its liabilities by $326,749.00, because it was not paying its debts, specifically the Gruppo debt, as they became due. The court held that Building could not, as a matter of law, rebut the insolvency presumption of section 726.106, Florida Statutes, by presenting evidence of balance sheet solvency.

Appellants were, thus, ordered to pay the amount of the original Gruppo debt, $35,694.94, plus interest, plus attorney’s fees and costs. We note that the corporation, BMI Tile, Inc., did not participate in this appeal.

We conclude, however, that summary judgment was improperly entered against Appellants as individuals, in the absence of an order piercing the corporate veil, as the judgment debtor, Building, transferred its assets to BMI Tile and not to Appellants.

We recognize the broad scope allowed in an action under sections 59.29 and 726.102, Florida Statutes. Section 726.102(12) defines “transfer” as, “[e]very mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset....” Here, no matter how broadly the term is defined, no transfer was made to Appellants, individually.

Appellee seeks to impose liability on the ground that the individuals were “insiders” under section 726.106(2). However, the trial court did not determine liability on this basis. Furthermore, there was no evidence that a transfer was ever made to Appellants. Appellants’ status as insiders, taken alone, does not expose them to liability absent proof that the transfer was made to them or that the corporate veil should otherwise be pierced.

As it will impact the case on remand, in the event the trial court subsequently determines that Appellee is enti-tied to pierce the corporate veil to reach Appellants, we also consider whether the trial court erred in entering summary judgment under sections 726.106 and 726.103, Florida Statutes.

Here, the court found that non-payment of the judgment creditor’s debt, alone, triggered the insolvency presumption under 726.103(2) and that the presumption was never rebutted by proof of receipt of reasonably equivalent value for the transfer to BMI Tile. In doing so, it appears that the trial court confused the two factors required under section 726.106(1) to establish a fraudulent transfer with the types of evidence that can be used to rebut the presumption of insolvency under section 726.103(2).

Section 726.106(1) provides that a transfer is fraudulent as to a creditor whose claim arose before the transfer was made “if the debtor made the transfer ... without receiving reasonably equivalent value in exchange for the transfer ... and the debtor was insolvent at the time.... ”

Section 726.103 provides two relevant definitions of insolvency. Section 726.103(1) provides a definition the trial court labels the “balance sheet test.” Under the test, “[a] debtor is insolvent if the sum of the debtor’s debts is greater than all of the debtor’s assets at a fair valuation.” Section 726.103(2) provides that “[a] debtor who is generally not paying his or her debts as they become due is presumed to be insolvent.” Here, issues of fact exist on the issue of Building’s insolvency. The record before us includes affidavits attesting to the solvency of the company based on a comparison of its assets and liabilities. The affidavits further attested that the tax returns showed company profits.

There was also a lack of evidence as to failure to pay debts other than that owed the judgment creditor. In fact, the affidavits attested to timely payment of debts to others. Where the record demonstrates the existence of issues of fact or if different inferences can be reasonably drawn from the uncontroverted facts, then summary judgment is improper as a matter of law. Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996).

There is no authority to suggest that balance sheet solvency cannot be used to rebut the presumption of insolvency under section 726.103(2), thereby precluding summary judgment. Section 726.103(2) creates a rebuttable presumption of insolvency. Where failure to pay debts as they are due creates a presumption, such presumption may be logically rebutted by proof that the debtor is not insolvent. This may include proof that the sum of the debtor’s debts is not greater than all of the debtor’s assets or that other debts are being timely paid. When that occurs, summary judgment is precluded as issues of fact exist. See Levin v. Ethan Allen, Inc., 823 So.2d 132 (Fla. 4th DCA 2002)(recognizing that balance sheet test available to rebut insolvency presumption).

Therefore, as the record reflects that issues of fact remain as to the insolvency of Building, the court erred in entering summary judgment. All other issues raised are moot. We remand for further proceedings.

STEVENSON and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jessie HILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3363.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Rehearing Denied Dec. 30, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We withdraw our opinion filed on September 10, 2003 and substitute the following opinion. Jessie Hill was convicted of one count of robbery with a firearm. We find all arguments relating to Hill’s conviction unpersuasive and affirm his conviction. However, we reverse and remand Hill’s sentence.

The trial court sentenced Hill to life in prison without parole as a prison releasee reoffender under the Prison Releasee Reoffender Punishment Act in section 775.082(9)(a)3 of the Florida Statutes (“PRRPA”). The trial court also imposed a ten-year mandatory minimum sentence for the use of a firearm under sections 775.087(2) and (3) of the Florida Statutes.

When a defendant meets the requirements for sentencing under the PRRPA, a trial court may not sentence the defendant under another sentencing statute where the sentence under the other statute is equal or lesser than that imposed under the PRRPA. Smith v. State, 813 So.2d 1002, 1003 (Fla. 4th DCA 2002) (citing Grant v. State, 770 So.2d 655, 659 (Fla.2000)). A defendant who qualifies for sentencing under the PRRPA may be sentenced under another sentencing statute only when the sentence under the other statute is greater than that under the PRRPA. Id. Here, the ten-year mandatory minimum was not greater than the life sentence imposed under the PRRPA. Therefore, Hill’s sentence was illegal. See Scott v. State, 842 So.2d 1054, 1055 (Fla. 4th DCA 2003); Brady v. State, 839 So.2d 836, 837 (Fla. 4th DCA 2003); Smith, 813 So.2d at 1003.

Accordingly, we reverse Hill’s ten-year mandatory minimum sentence and remand this case with instructions to resentence Hill to a life sentence without parole under the PRRPA.

REVERSED AND REMANDED for resentencing.

FARMER, C.J., GUNTHER and TAYLOR, JJ., concur.


author: SHARP, W.,J.

text:
    Faith Carr HIBBARD, o/b/o Amanda K. Carr, Appellant, v. Michael McGRAW and Dual Incorporated, Appellee.
    No. 5D02-2154.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      Stephen C. Bullock of Brannon, Brown, Haley, Robinson & Bullock, P.A., Lake City, for Appellants.
    Francis J. Milon and Harris Brown of Harris Brown, P.A., Jacksonville, for Ap-pellees.
   SHARP, W.,J.

Amanda Carr, by her mother and guardian, Faith Carr Hibbard, appeals from a final judgment in favor of the defendants in a personal injury action and an award of attorney’s fees to the defendants based on their unaccepted proposal to settle the case. Carr raises numerous issues on appeal, only two of which involve reversible error. We reverse the judgment awarding attorney’s fees because the defendants’ proposal for settlement was ambiguous and thus will not support an award of fees under the offer of judgment statute. We also reverse the judgment in favor of the defendants because damages were incorrectly calculated, as the defendants properly concede. In all other regards, we affirm.

The ambiguity in the proposal for settlement arises because of Carr’s age, the manner in which this lawsuit was pursued and the language of the proposal itself. In August 1997, then sixteen year old Carr was a passenger in a pickup truck driven by her friend, Mark Brock. Carr and Brock were driving behind McGraw on a two-lane road in Jacksonville. McGraw proceeded slowly, so Brock drove into the left lane to pass him. Unfortunately, McGraw. was in the process of making a left turn. To avoid hitting McGraw, Brock swerved and his truck went off the road, overturned and hit a tree. Carr, who was not wearing a seatbelt or shoulder harness, fractured her pelvis.

In January 2000, Carr, through her mother, Faith Carr Hibbard, filed suit against McGraw and his employer, Dual Incorporated. By this time, Carr was eighteen years old.

On March 5, 2001, the defendants tendered the following proposal to settle the case:

Defendants, MICHAEL McGRAW and DUAL INCORPORATED, by and through their undersigned counsel, hereby submit their proposal for settlement in favor of Plaintiff, AMANDA K. CARR, in the total sum of THIRTY FIVE THOUSAND AND ONE DOLLARS ($35,001.00), exclusive of attorneys’ fees and costs, in exchange for an executed full release and voluntary dismissal with prejudice as to all claims against Defendants, MICHAEL McGRAW and DUAL INCORPORATED.
This Proposal for Settlement is for the alleged injuries and damages claimed by Plaintiff as a result of the accident which is the subject of this case.

About two weeks later, the defendants moved to amend the pleadings to show Carr as the “sole” plaintiff, since she was more than eighteen years old. The court did not rule on this motion until October 2001, about a month before trial. The court ordered that “Amanda Carr is an adult and shall appear on her own behalf as to her individual claims. Faith Carr Hibbard shall remain as a party Plaintiff as to her parental claim for general damages and claim for medical bills while Amanda Carr was a minor.”

Prior to trial, Carr moved to strike the defendants’ offer for settlement on the basis it did not specify the amount attributable to each plaintiff; ie., to Carr and to her mother. The court rejected this argument ruling that the defendants were entitled to settle with one of the plaintiffs without regard to settling with the other.

At the November 13, 2001 trial, Brock and Carr, as well as McGraw and his passenger, testified to their recollections of the accident. Numerous experts testified for both sides.

The jury found Brock 70% negligent, Carr 25% negligent and McGraw 5% negligent and awarded the following damages.

Hibbard’s economic damages for past medical expenses $104,766.44
Carr’s economic damages for future medical expenses $100,000.00
Carr’s past non-economic damages $100,000.00
Carr’s future non-economic damages $ 50,000.00
Hibbard’s loss of consortium $ 10,000.00
Total $364,766.44

Both sides moved for entry of final judgment in their favor. The defendants also moved for attorney’s fees and costs based on their proposal for settlement.

The trial court concluded the defendants were not jointly and severally liable since McGraw was found to be less than 10% at fault and less at fault than Carr. The court found the defendants’ liability amounted to $18,238.32 (5% of the total award of $364,766.44) and they were entitled to a setoff for $72,966.09 from collateral sources, which far exceeded their liability. Thus the court entered judgment in favor of the defendants. Based on the unaccepted proposal for settlement, the court ordered Carr only (not her mother) to pay the defendants $18,460.60 in attorney’s fees.

I. Offer of Judgment.

The requirements for a valid proposal for settlement are set forth in section 768.79 and Florida Rule of Civil Proee-dure 1.442. The language in rule 1.442 must be strictly construed because the offer of judgment statute and rule are in derogation of the common law rule that each party pay its own attorney’s fees. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). In Loy v. Leone, 546 So.2d 1187 (Fla. 5th DCA 1989), this court noted the purpose of rule 1.442 is to sanction a party who does not timely accept a settlement offer made pri- or to trial by shifting payment and recovery of costs after the offer is made. In effect, it is a punitive measure and therefore should be construed in favor of the party to be sanctioned. But for the offer of judgment statute, the defense would have to pay its own attorney’s fees.

Because the offer of judgment statute and related rule must be strictly construed, virtually any proposal that is ambiguous is not enforceable. Barnes v. The Kellogg Company, 846 So.2d 568 (Fla. 2d DCA 2003). For example, in Dudley v. McCormick, 799 So.2d 436 (Fla. 1st DCA 2001), the appellate court reversed the award of attorney’s fees where the defendant offered to settle with the mother, individually and as best friend and next of kin of her minor son, and her son, in their personal injury action after the son was injured in an automobile accident. The proposal for settlement did not specify separate amounts for the mother and son or designate only one plaintiff as the offer-ee.

On appeal, the court noted the mother was the real party in interest insofar as her own individual claims were concerned. However, she was not the real party in interest insofar as her son’s claims were concerned — rather she was asserting his claims as his representative. Thus the case involved two plaintiffs, not one.

The court concluded that the defendant’s offer did not comply with the offer of judgment statute or rule 1.442 because it did not state the amount attributable to each party. There were two distinct parties plaintiff — the mother individually and her son, whom she represented. The mother may have been willing to settle her individual claims for all or part of the amount offered, if she had been able to do so without compromising her son’s claims, or vise versa.

In this case, the defendants served their proposal to “Plaintiff, Amanda K. Carr” before moving to amend the pleadings to show Carr as the “sole” plaintiff. At the time the defendants served their proposal, “Plaintiff, Amanda K. Carr” was not the named plaintiff. In addition, given the defendants’ position that Carr was the sole plaintiff, it is unclear whether the proposal to settle “all claims against the Defendants” included all damages of any kind arising out of the accident (Carr’s claims as well as the claims of her mother) or only (Carr’s claims for future medical expenses, future lost earning capacity and pain and suffering) and not her mother’s claims (medical expenses and loss of consortium).

The defendants’ proposal for settlement was therefore unclear and ambiguous. Accordingly, the defendants were not entitled to an award of attorney’s fees under section 768.79. See, e.g., Stern v. Zamudio, 780 So.2d 155 (Fla. 2d DCA 2001)(sanc-tions of section 768.79 were not enforceable where lump sum offer was defective).

II. Damages.

As to the issue of damages, Carr contends the trial court erred in determining their recovery and provides this court with two different calculations for reducing the verdict to final judgment in their favor. The defendants disagree with these calculations but concede Carr is entitled to an additional $8,000 representing McGraw’s 5% liability for the non-economic damage award of $160,000.

The amount of Carr’s recovery depends on the defendants’ liability under the comparative fault statute and any applicable setoffs. At common law, under the doctrine of joint and several liability, all negligent defendants were held responsible for the total of the plaintiffs damages regardless of the extent of each defendant’s fault in causing the accident. Gouty v. Schnepel, 795 So.2d 959 (Fla.2001).

In 1986, the Legislature enacted section 768.81, the comparative fault statute. This represented a policy shift from joint and several liability to the apportionment of fault among tortfeasors. Instead of each defendant being severally responsible for all of the plaintiffs’ damages, with limited exceptions, the defendant is responsible only for the percentage of fault determined by the jury. Gouty.

In 1999, the Legislature amended section 768.81 to provide joint and several liability for economic damages based on a sliding scale, depending on whether the plaintiff was with or without fault and the percentage of fault of the defendant. The amendment made a defendant less than 10% at fault not subject to joint and several liability, regardless of whether the plaintiff had some fault or not. Basel v. McFarland & Sons, Inc., 815 So.2d 687 (Fla. 5th DCA 2002). However, this court has held the 1999 amendment to section 768.81 is prospective only and may not be applied retroactively to causes of action accruing prior to its effective date. Basel.

The 1997 version of section 768.81, in effect at the time of the accident in this case, apportioned damages as follows:

(3) Apportionment of damages. — In eases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.
* * *
(5) Applicability of joint and several liability. — Notwithstanding the provisions of this section, the doctrine of joint and several liability applies to all actions in which the total amount of damages does not exceed $25,000.

Since McGraw’s percentage of fault (5%) was less than Carr’s percentage of fault (25%) and the total amount of damages exceeded $25,000, the doctrine of joint and several liability does not apply. Metropolitan Dade County v. Frederic, 698 So.2d 291 (Fla. 3d DCA), rev.denied, 705 So.2d 9 (Fla.1997). Thus McGraw was liable only for 5% of the economic damages of $204,766.44 or $10,238.32 and 5% of the noneconomic damages of $160,000 or $8,000.

Prior to trial, Carr settled with Brock for $100,000 but this does not benefit McGraw. The provisions for setting off settlement proceeds do not apply to non-economic damages for which the defendants are only severally liable. Furthermore, these setoffs are only applicable to economic damages where the parties are subject to joint and several liability. Gouty; Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995); Metropolitan Dade County; Cohen v. Richter, 667 So.2d 899 (Fla. 4th DCA 1996).

Nevertheless, Carr received collateral source payments which do reduce economic damages. Wells; Assi v. Florida Auto Auction of Orlando, Inc., 717 So.2d 588 (Fla. 5th DCA 1998); Readon v. Lim, 697 So.2d 178 (Fla. 3d DCA 1997); Olson v. N. Cole Const, Inc., 681 So.2d 799 (Fla. 2d DCA 1996). The collateral source payments of $72,966.09 far exceed McGraw’s liability for $10,238.32 in economic damages. Thus the net recovery should have been limited to McGraw’s liability for his percentage of the noneconomic damages — $8,000.

AFFIRMED in part; REVERSED in part; REMANDED.

PETERSON and TORPY, JJ., concur.

      . The remaining issues involving the seatbelt defense, the jury's allocation of fault, allegedly improper remarks during closing arguments and jury instructions lack merit.

      . The age of majority was reduced to eighteen years in 1973. § 743.07, Fla. Stat. According to records in our file, Carr was born on March 6, 1981.

      . However, Hibbard was also a plaintiff, having her own claims for economic damages (her daughter’s medical expenses) and loss of consortium.

      . 768.79. Offer of judgment and demand for judgment
      (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award....
      (2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. An offer must:
      (a) Be in writing and state that it is being made pursuant to this section.
      (b) Name the party making it and the party to whom it is being made.
      (c) State with particularity the amount offered to settle a claim for punitive damages, if any.
      (d) State its total amount.
      The offer shall be construed as including all damages which may be awarded in a final judgment.

      . Florida Rule of Civil Procedure 1.442. Proposals for Settlement
      (c) Form and Content of Proposal for Settlement.
      (1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.
      (2) A proposal shall:
      (B) identify the claim or claims the proposal is attempting to resolve;
      (C) state with particularity any relevant conditions;
      (D) state the total amount of the proposal and state with particularity all nonmone-tary terms of the proposal;
      (F) state whether the proposal includes attorneys' fees and whether attorneys' fees are part of the legal claim; and
      (G) include a certificate of service in the form required by rule 1.080(f).
      (3) A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party....


author: THOMPSON, J.

text:
    Comer H. BRYAN, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1383.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Comer H. Bryan, III appeals his sentencing for violation of probation on the charge of driving while license suspended. We affirm.

On 13 March 2000, Bryan was charged by information with one count of felony driving while license suspended or revoked (“DWLSR”), a violation of section 322.34(2)(c), Florida Statutes (1999). The state charged that Bryan had five prior convictions for DWLSR. Bryan entered a plea of nolo contendere preserving no appellate issues and was adjudicated guilty. Pursuant to a plea agreement, the trial court imposed a sentence of 11 months and 29 days, suspended upon the successful completion of two years’ community control. In March 2002, the state charged Bryan with violating community control. Bryan moved to withdraw his original plea, asserting that his prior convictions did not elevate the offense to a third-degree felony. The trial court denied his motion to withdraw his plea. Bryan entered a plea to the violation, but did not preserve the Huss v. State, 771 So.2d 591 (Fla. 1st DCA 2000) ruling as an issue on appeal. The trial court revoked Bryan’s probation and sentenced him to 24 months in the Department of Corrections.

On appeal, Bryan argues that pursuant to Huss, his prior convictions cannot be used as a predicate for a conviction of felony DWLSR because the prior convictions occurred before section 322.34(2)(c) was amended in 1997. We disagree with this argument and affirm based upon our rulings in Martin v. State, 809 So.2d 65 (Fla. 5th DCA 2002) and Thompson v. State, 808 So.2d 284 (Fla. 5th DCA), rev. granted, 826 So.2d 994 (Fla.2002). The retroactivity argument was made to this court and rejected. In Martin, we held that “the holding in Huss is not a retroactive change in the law.” Martin, 809 So.2d 65, n. 2. In Thompson, we stated that Huss was not retroactive:

On appeal, Thompson argues that the trial court erred as a matter of law because Huss did not change the law, but merely recognized the state of the law. He is incorrect. Huss represents a change in the law, but the ruling is not retroactive. See Martin v. State, 809 So.2d 65 n. 2 (Fla. 5th DCA 2002).

AFFIRMED.

ORFINGER and MONACO, JJ., concur.

      . Bryan was convicted of DWLRS on 2 October 1989, 30 September 1988, 20 December 1991, 4 May 1992, and 19 January 1995.

      . The trial court granted Biyan's 3.800(b)(2) motion to correct Bryan’s sentence, adjudicated him guilty, and imposed the suspended sentence of 11 months and 29 days.

      . In Huss, the defendant argued that section 322.34(2)(c) had been amended effective 1 October 1997 to “require knowledge as an essential element of the offense.” Id. at 592. Huss's other convictions occurred before the statute was amended in 1997, and Huss argued that his prior convictions did not qualify as predicate convictions under the current statute because convictions under the prior statute did not require knowledge as an essential element of the offense. Id. The First District agreed that because prior convictions did not have the knowledge requirement in the statute, they could not be used as a predicate to enhance a defendant’s sentence from a misdemeanor to a third-degree felony. Id. at 593.

      . We note that the First District has certified conflict with this district's opinion in Thompson. See Stutts v. State, 821 So.2d 449 (Fla. 1st DCA 2002).


text:
    Michael LEGERE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2673.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Rehearing Denied Jan. 12, 2004.
    Michael Legere, Bushnell, pro se.
    No appearance for Appellee.
   THOMPSON, J.

Michael Joseph Legere, Jr. appeals the summary denial of his motion to correct illegal sentence. Legere argues that since the sentence he agreed to exceeds the sentencing guidelines when recalculated because of Heggs v. State, 759 So.2d 620 (Fla.2000), he is entitled to relief. We disagree and affirm.

Legere pleaded guilty to burglary of a dwelling and burglary of a conveyance, and was sentenced to community control. Legere violated community control by committing multiple burglaries and thefts. Legere entered a plea to the subsequent felonies and did not appeal the sentences imposed. Subsequently, Legere admitted violating community control and was sentenced to 33 months pursuant to a plea agreement. Again, Legere did not appeal.

Legere moved for a corrected sentence arguing that he was entitled to relief under Heggs, which invalidated the 1995 sentencing guidelines and required resentencing under the 1994 guidelines for affected persons. Legere argued that his sentence of 33 months could not have been imposed absent a departure from the 1994 guidelines. He points out that the 1994 guidelines scoresheet shows that his sentencing range would have been 17.7 months to 29.5 months; whereas, the 1995 guidelines scoresheet established a sentencing range of between 32.7 and 54.5 months. The trial court denied Legere’s motion stating that his sentence was not “illegal”' and that Legere was not entitled to Heggs relief because his plea agreement was for a specific term of years; i.e., the agreement was not conditioned upon the imposition of a sentence within a specific guideline range.

In White v. State, 816 So.2d 820 (Fla. 5th DCA 2002), this court held that when a sentence entered pursuant to a plea agreement exceeds the sentencing guidelines range, the sentence is not “illegal,” as long as it does not exceed the statutory maximum. We wrote:

In Bonilla v. State, 766 So.2d 1192, 1194 (Fla. 5th DCA 2000), this court explained that a defendant is not entitled to relief under Heggs if the sentence received was not conditioned on the guidelines. White contends that Bonilla does not apply to this case because it is clear that the agreed-upon sentence was arrived at with consideration of the guidelines. We disagree. Where a defendant enters an agreement for a term of years that exceeds the guidelines range, and has relied upon an incorrectly calculated scoresheet during negotiations, the sentence is not illegal for purposes of a rule 3.800 motion, as long as the sentence does not exceed the statutory [maximum]. Skidmore v. State, 688 So.2d 1014 (Fla. 3d DCA 1997); Perry v. State, 705 So.2d 615 (Fla. 5th DCA 1998). This is because a plea bargain is a valid ground for a departure sentence. Skidmore, 688 So.2d at 1015. The reasoning in Skidmore applies to cases involving claims for relief under Heggs. See Dunenas v. Moore, 762 So.2d 1007 (Fla. 3d DCA 2000); accord Brown v. State, 781 So.2d 484 (Fla. 4th DCA 2001). If a defendant negotiates for an exact sentence, the defendant is not entitled to relief. Vareia v. State, 777 So.2d 1168 (Fla. 3d DCA 2001). On the other hand, a defendant would be entitled to relief if the defendant negotiated for an indeterminate sentence. Id.; Brown; Dunenas; Trotter v. State, 774 So.2d 924 (Fla. 5th DCA 2001) is distinguished because there the defendant did not have specific sentence in place. . In the instant case, White is not entitled to relief because he bargained for a specific sentence.

White, 816 So.2d at 821-22; see also Dunenas v. Moore, 762 So.2d 1007, 1008 (Fla. 3d DCA 2000) (“When a negotiated plea agreement is not conditioned upon the imposition of a sentence within a specific guideline range, improper scoring of the defendant’s scoresheet will not render the plea illegal unless the sentence exceeds the statutory maximum”). Further, in Parker v. State, 767 So.2d 532, 533 (Fla. 5th DCA 2000), this court noted the options available to a defendant who enters a plea and thereafter seeks collateral relief under Heggs:

On remand, the trial court can review the record and determine if the plea agreement contemplated that [the defendant] would receive a guidelines sentence. If guidelines considerations were not part of the plea agreement, relief can be denied. If they were, the state shall have the option of taking [the defendant] to trial on all of the original charges, or re-sentencing him under the guidelines. See Rickman v. State, 713 So.2d 1115 (Fla. 5th DCA 1998); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981)

(emphasis added)(footnote omitted).

In the present case, Legere is not entitled to relief because his sentence was not conditioned upon the guidelines. See Bonilla v. State, 766 So.2d 1192 (Fla. 5th DCA 2000) (if plea agreement is not conditioned upon guidelines sentence, there is no entitlement to Heggs relief); Hall v. State, 789 So.2d 1052 (Fla. 5th DCA 2001) (defendant was not entitled to be resentenced under Heggs where the defendant’s sentence was negotiated independent of guidelines); Gentile v. State, 673 So.2d 76, 77 (Fla. 5th DCA 1996) (any scoresheet error is harmless if the negotiated plea was not conditioned upon a specific sentencing guideline); Caples v. State, 790 So.2d 1143, 1144 (Fla. 5th DCA 2001) (defendant filed Heggs-like motion based on change in law; his relief, if indeed he is entitled to relief, is by withdrawing his plea and not by receiving the benefit of a negotiated plea sweetened by an additional reduction of sentence based upon subsequent case law); McCray v. State, 796 So.2d 562, 563 (Fla. 3d DCA 2001) (defendant not entitled to relief because his case did not involve an agreement for guidelines sentencing but on the contrary, was for a specific term of years); cf. Dudek v. State, 783 So.2d 331 (Fla. 5th DCA 2001) (“[Appellant] and the State originally agreed to a sentence at the low end of the 1995 guidelines. There was no question raised at that time as to the validity of those guidelines. It was thus contemplated at the time of his plea that he would be sentenced to 85 months in prison. He was and continues to be”).

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.


author: BARFIELD, J.

text:
    Terrance WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0893.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.

      Appellant, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, for Appellee.
   BARFIELD, J.

Appellant, who was convicted of sale of cocaine after he sold drugs to an undercover police officer, seeks review of the summary denial of his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion alleged seven grounds for relief based upon claims of ineffective assistance of trial counsel. We find that grounds five and six did not contain allegations sufficient to entitle appellant to post-conviction relief, and that the attachments to the trial court’s order conclusively demonstrated that appellant was not entitled to relief on grounds one, two, and four. We therefore affirm the summary denial of those grounds.

However, we find that grounds three and seven contained sufficient allegations regarding how defense counsel’s performance was deficient and how such conduct prejudiced the outcome of the proceedings that, if true, would each entitle appellant to post-conviction relief. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ground three alleged that trial counsel deposed a potential alibi witness and called her at trial, but then failed to question her at trial regarding appellant’s whereabouts at the time of the charged drug sale. Ground seven alleged that trial counsel failed to request a jury instruction requiring the state to prove that appellant had knowledge of the illicit nature of the substance sold.

The order summarily denying the motion did not individually address each issue, but stated merely that appellant “expressly acknowledged at trial that he did not wish to present any additional witnesses to testify (page 230 of record on appeal) and had no further evidence to offer (page 231 of record on appeal).” The two pages of trial transcript attached to the order, involving a colloquy which took place before the alibi witness was called to testify, do not conclusively demonstrate that appellant is entitled to no relief on grounds three and seven. In fact, the trial court’s order does not even address ground seven. In response to this Court’s order directing it to brief the trial court’s summary denial of grounds three and seven, the state asserted merely that, with respect to each ground, it was “unable to determine, from the brief record available, whether, in fact, trial counsel made this decision as part of a sound trial strategy,” and then requested that this court affirm the summary denial of the motion, “or in the alternative, reverse and remand for an evidentiary hearing or further attachments from the record below.”

We find that affirmance of a summary denial of the two grounds at issue would be completely inappropriate under these circumstances, especially where the trial court did not even address at least one of the grounds. See Poole v. State, 746 So.2d 1207 (Fla. 1st DCA 1999), rev. denied, 767 So.2d 460 (Fla.2000). Therefore, without expressing any opinion as to the merits of grounds three and seven, we reverse the summary denial of those grounds and remand for further proceedings consistent with this opinion. Otherwise, the trial court’s order is affirmed. On remand, if the trial court again concludes that appellant is entitled to no relief with respect to each ground, it shall explain its reasons for so concluding with respect to each ground, and shall attach portions of the record conclusively so demonstrating. Otherwise, it shall hold an evidentiary hearing on grounds three and seven.

AFFIRMED in part, REVERSED in paid, and REMANDED for further proceedings.

WEBSTER and BROWNING, JJ., concur.


author: VILLANTI, Judge.

text:
    Cheri Marie BURGER, n/k/a Cheri Marie Pedigo, Appellant, v. Joshua Caleb BURGER, Appellee.
    No. 2D02-4944.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
    Rehearing Denied Jan. 30, 2004.

      Raymond J. Rafool, II, of Rafool & Ra-fool, P.A., Winter Haven, for Appellant.
    William C. Hamm, Jr., Lakeland, for Appellee.
   VILLANTI, Judge.

Cheri Marie Pedigo (the Mother) challenges the trial court’s order transferring primary residential custody of her eight-year-old son to Joshua Caleb Burger (the Father). Because the Father failed to meet the “extraordinary burden” test for child custody modification set forth in Gibbs v. Gibbs, 686 So.2d 639, 641 (Fla. 2d DCA 1996), we reverse.

Shortly after the parties married on June 14, 1996, in Lakeland, Florida, they moved to Colorado where they briefly lived as husband and wife. Their son was born on October 10, 1996, and soon after his birth, the Mother and son returned to Lakeland, where both parties have extended family. The Mother and son moved in with the maternal grandmother, where they continued to reside, on and off, until the final order modifying custody was entered.

On March 31, 2000, the court entered its final judgment of dissolution of marriage, which designated the Mother as the primary residential parent and granted the Father reasonable and liberal visitation. The court also ordered the Father to pay $616 per month in child support. On May 7, 2001, the Father petitioned the court for a modification in child support based on a substantial decrease in his income. Before the court entered an order on this modification petition and following an impasse in mediation, the Father petitioned for modification of child custody on June 26, 2001. He also requested emergency relief to temporarily remove the son from the Mother’s care.

As grounds for the petition for modification of custody and the emergency motion for temporary relief, the Father alleged, inter alia, that the Mother had failed to maintain a stable living environment by leaving the son with the maternal grandmother for “days on end” and by allowing the son to move from residence to residence; that the Mother had checked herself into a drug rehabilitation program for an ongoing drug abuse problem but left before completing the program; and that the Mother had been the victim of domestic violence in front of the son. Finally, he alleged the Mother’s whereabouts were unknown at the time he submitted his petition because she had recently left the son at the maternal grandmother’s home and disappeared. He submitted that all of these circumstances amounted to a substantial change in circumstances that resulted in detriment to the son and that it would be in the son’s best interests to reside with the Father, who could provide a stable living environment because of his military career and remarriage.

After a hearing on the emergency motion at which both parties were present, the court entered a temporary order on July 10, 2001, denying the Father’s requested relief but awarding temporary custody of the.son to the maternal grandmother, who was not a party but who was present and agreed to this arrangement. In its order, the court found that the son had resided with the maternal grandmother for the last three-and-one-half years in a stable environment in which he was well cared for. Notably, the court specifically determined that in fact no emergency existed as to the care and custody of the son. Nevertheless, apparently in view of the Mother’s ongoing drug problem, the court ordered that the Mother was allowed only supervised visitation.

On May 17, 2002, the Mother moved to be allowed unsupervised visitation with the son. Her motion alleged that she had completed counseling and had established a stable living environment. At the hearing on this motion, the maternal grandmother testified that she was certain the Mother had stopped using drugs. On the court’s recommendation, the Mother submitted to a drug test that same day after the hearing concluded. When the test revealed the presence of amphetamines, the court denied the Mother’s motion for unsupervised visitation.

The hearing on the Father’s petition to modify custody was held on September 24, 2002. At this hearing, the testimony revealed that the Mother, the son, and the Mother’s daughter from a different relationship all resided with the maternal grandmother. The Mother testified about her extensive involvement in the son’s school, where he was continuing to excel academically. She also testified that the son enjoyed a close relationship with his half-sister and described the activities she and the children enjoyed together as a family, such as playing in the yard together, reading stories together, and going on outings to family restaurants. In contrast, the Father’s visitation was limited by geography and the terms of the final judgment of dissolution of marriage, which allowed visitation on major holidays during alternating years and for six weeks during the summer.

The Mother also testified that at the time of the hearing, she was receiving treatment for methamphetamine abuse. In addition to completing treatment, she was working part time as a waitress while also a full-time student pursuing a degree in radiology. Two counselors from the Mother’s treatment program testified that she was “an inspiration” in her progress toward full success and that she was totally committed to a complete recovery. They also indicated that since the Mother began treatment, she had passed every random urinalysis. The counselors thus maintained that the Mother’s prognosis for recovery was good as long as she continued in the program, which the Mother indicated she planned to do.

The Mother’s success with drug treatment was further supported by the maternal grandmother’s testimony. On cross-examination, however, counsel for the Father impeached the maternal grandmother based on her similar testimony at the May 17, 2002, hearing, after which the Mother tested positive for amphetamines. Thus, the trial court treated the maternal grandmother’s testimony with skepticism.

Regarding the allegations of domestic violence, the maternal grandmother testified to three such incidents. The maternal grandmother actually observed only one incident, which was a fight between the Mother and the Mother’s sister in 1997 that resulted in the maternal grandmother physically removing the Mother from the house. The other two incidents did not take place in front of the maternal grandmother, and thus she testified based on hearsay reports from the Mother and the Mother’s sister. One incident involved a male spitting in the Mother’s face and perhaps slapping her; in the other, the Mother was attacked. Contrary to the Father’s allegations, none of these incidents occurred in front of the son. No evidence was presented regarding any of the Father’s other assertions in his modification petition.

At the conclusion of the hearing, the trial court granted the Father’s petition for modification of custody. As grounds for its ruling, the court made the following findings germane to our analysis:

6. That the mother has had financial instability. That the mother is not financially capable of caring for herself and her children at this time. That the mother constantly changes residences. That the mother has had a second child out of wedlock. However, these factors are insufficient in and of themselves.
7. That when adding the above factors to the mother’s undisputed history of drug abuse that has occurred at least over the last two-year period combined with the mother’s history of domestic violence when she is using drugs, that it is so substantial that the child’s continued presence in his current placement will be detrimental to him and that placing him with his father is clearly in his best interests.

(Emphasis added.)

The court correctly noted that the Mother’s financial instability, frequent residence changes, relationships with men, and birth of a child out of wedlock were not sufficient grounds to justify a custody modification. This determination was based on well-settled law, and the court cited Grumney v. Haber, 641 So.2d 906 (Fla. 2d DCA 1994). See also Blosser v. Blosser, 707 So.2d 778 (Fla. 2d DCA 1998) (fact that financial circumstances had worsened for mother, requiring her to move in with friend, not substantial change in circumstances to warrant custody change absent showing of harm to child); Kelly v. Kelly, 642 So.2d 800 (Fla. 2d DCA 1994) (evidence that mother had moved five times and was involved in verbally abusive and threatening relationship and that daughter was not as well adjusted as she had been insufficient to warrant custody modification without showing that daughter’s needs were unmet).

Despite correctly noting the above factors were not sufficient to modify custody, the court went on to conclude that the Mother’s drug abuse and domestic violence issues justified a change in custody. This was error because it departed from the analysis required by Gibbs, 686 So.2d 639, in postdissolution custody modification proceedings. In Gibbs, we established a two-prong test for determining whether primary custody can be changed. The party requesting the modification must show first that there has been a substantial change in circumstances and, second, that these changed circumstances have resulted in such a detriment to the child that a modification would be in the best interests of the child. Id. at 641-43. Significantly, a custody modification will not be justified by a mere showing that the child will be “better off’; instead, it must be clear “that any reasonable parent would understand that maintaining the status quo would be detrimental to the child’s overall best interests.” Id. at 641; accord Perez v. Perez, 767 So.2d 513 (Fla. 3d DCA 2000). Hence, the burden on the party seeking modification has been aptly named an “extraordinary burden.” See Gibbs, 686 So.2d at 641.

Here, there was insufficient evidence to pass either prong of the Gibbs test. First, the circumstances had not substantially changed since the dissolution of marriage. At the time of the dissolution of marriage, the Mother and the son were residing with the maternal grandmother; the same was true at the hearing to modify custody. The Mother’s interim residential changes did not disrupt the son’s environment, as reflected by the trial court’s order denying the Father’s emergency motion. The only indication of changed circumstances relating to the Mother’s financial stability is a positive change: namely, that she has been working and pursuing a college degree. We note that, by definition, a change of circumstances to warrant custody modification involves a change for the worse; a change for the better, or no change at all, generally could not support a custody change.

Regarding her drug abuse, the testimony established that the Mother had been using drugs, on and off, since at least 1997, well before the 2000 dissolution of marriage. Although her drug abuse is far from commendable, ironically, the only evidence of a substantial change in circumstances is the positive change the Mother has made by receiving treatment, the success of which was noted by four witnesses. Even if the trial court rejected sub silentio all of the evidence of the Mother’s finally achieving success in her rehabilitation efforts, this would only prove that the prior status of her drug addiction had not changed.

The Father also contends that the three incidents of domestic violence to which the maternal grandmother testified support a finding of substantially changed circumstances. We have two problems with this contention. First, the only incident the maternal grandmother actually witnessed occurred in 1997, well before the final judgment of dissolution of marriage awarded the Mother custody. And more significant, no instance of abuse took place in front of the son.

Finally, there was no testimony relating to any of the other allegations of changed circumstances the Father raised in his petition. Thus, there was no evidence to support some of the allegations, and the evidence that was adduced to support the other allegations does not satisfy the first prong of Gibbs. In sum, there was no competent, substantial evidence to support a finding of a substantial change in circumstances.

Second, even if a substantial change in circumstances had been shown, the best interests of the child are not clearly served by a custody change because there is no showing of an ascertainable detriment to the child. “For the trial court to consider a parent’s conduct on the issue of custody, the evidence must show a direct impact on the child. The possibility of a negative impact is not sufficient.” Willis v. Willis, 818 So.2d 530, 533 (Fla. 2d DCA 2002) (citing Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2d DCA 2000)). Moreover, “[t]he connection between the conduct and the harm to the child[ ] must have an evidentiary basis; it cannot be assumed.” Jacoby, 763 So.2d at 413.

Here, the trial court did not find that the son was suffering any detriment, nor was any proof presented to suggest such a conclusion. Rather, the trial court found only that the son’s continuing in his current custody arrangement “will be detrimental to him.” This was error. The court assumed, without evidence to support its assumption, that the son’s continuing to reside with the Mother would be detrimental to him. However, the trial court failed to reference any ascertainable indication that the son is suffering any harm as required by Jacoby and its progeny. Moreover, the evidence does not show “that a change in custody will so clearly promote or improve the child’s well-being to such an extent that any reasonable parent would understand that maintaining the status quo would be detrimental to the child’s overall best interests.” Gibbs, 686 So.2d at 641. To the contrary, the evidence clearly demonstrated that despite any financial or personal hardships the Mother may have suffered, this child was thriving. He is performing extremely well in school, enjoys normal activities for a child his age, is close to his half-sister, and appears to be surrounded by love. It is unclear to us from what evidence the trial court was able to glean any suggestion of detriment other than from its own assumptions.

Because the Father failed to satisfy Gibbs’ two-prong extraordinary burden test, the trial court abused its discretion in granting the Father’s petition to modify custody. As such, we reverse the order modifying custody and the temporary order awarding custody to the maternal grandmother and requiring the Mother to have supervised visitation. See Jackson v. Jackson, 468 So.2d 1098, 1099 (Fla. 2d DCA 1985) (“We know of no basis upon which the order granting temporary custody of the children to the husband could survive the final order denying the husband’s petition for modification.”).

Because we reverse, we decline to consider the other issue raised on appeal, i.e., whether the trial court properly considered the relocation factors of section 61.13(2)(d), Florida Statutes (2002), when it determined the child should move with the Father to California. We remand to the trial court to enter an order vacating the order granting the Father’s petition to modify custody and reaffirming the Mother’s custody as established in the final judgment of dissolution of marriage.

Reversed and remanded.

CANADY, J., and SEXTON, SUSAN, Associate Judge, concur.

      . What transpired at this hearing is unclear to us because the parties did not provide a transcript of the hearing. We note, however, that by its written order the trial court awarded temporary custody to the grandmother pursuant to section 61.13(7), Florida Statutes (2001), which provides:
      (7) In any case where the child is actually residing with a grandparent in a stable relationship, whether the court has awarded custody to the grandparent or not, the court may recognize the grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child.
      After the trial court granted the grandmother custody, she filed a petition to intervene in the custody litigation and be awarded permanent custody pursuant to section 61.13(7). The Father moved to dismiss the grandmother's petition, relying on Richardson v. Richardson, 766 So.2d 1036 (Fla.2000), in which the Florida Supreme Court determined section 61.13(7) was an unconstitutional violation of a parent's fundamental right to raise his or her child. Subsequently, the grandmother voluntarily dismissed her petition. Apparently, however, the emergency order granting the grandmother temporary custody was never vacated until the final order modifying custody was entered.

      . The issue of whether this living arrangement constituted a violation of the trial court’s restriction on the Mother’s visitation was not pursued.


text:
    Gertrudes JAIMES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5265.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.

      Paul S. Carr, Ruskin, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Gertrudes Jaimes was charged with possession of cocaine and trafficking in cocaine. After the trial court denied his legally dispositive motion to suppress evidence seized from his vehicle and his home, Jaimes pleaded no contest to the charges while reserving his right to appeal. Because the trial court erred in denying the motion to suppress, we reverse.

On September 6, 2001, law enforcement allegedly learned from a confidential informant (“C.I.”) that Jaimes was at the East-side Lounge selling cocaine. Based on this tip, they went to the Eastside Lounge to execute outstanding warrants for Jaimes’ arrest. Once there, the officers saw Jaimes get out of his vehicle, get into a truck occupied by another man, and then thirty seconds later get out of that truck and meet with a female. After observing this activity, the officers approached Jaimes, told him about the warrants, and arrested him. They read his Miranda rights, searched him, found his keys, and asked him to identify his vehicle.

When Jaimes refused to identify his vehicle, the officers first attempted to open the vehicles they had seen him exiting, with no success. The officers next used the keys to attempt to open random vehicles in the parking lot, hoping to find a match. Meanwhile, one of the officers telephoned Jaimes’ wife and told her Jaimes had been in an accident to induce her to identify the correct vehicle. Her description of the vehicle matched the first vehicle Jaimes had exited, so the officers tried the keys again, and this time, they were able to open the vehicle. Over Jaimes’ objection, the officers searched the vehicle and found sixteen grams of cocaine in a shoe on the floorboard.

During this time, backup police units arrived, and the officers handcuffed Jaimes and placed him in the back of a cruiser. However, rather than immediately taking Jaimes to jail for booking on this charge or the warrants’ execution, the officers took him to his home where they found fifty-nine grams of cocaine, a metric scale, and approximately $1500 in cash.

Jaimes moved to suppress all evidence obtained as a result of the vehicle search and the search of his home. The trial court denied this motion. Jaimes pleaded no contest to the charges while reserving his right to appeal the denial of his motion to suppress, and this appeal followed.

Absent a search warrant, there are three valid means by which law enforcement may search a vehicle: (1) incident to a valid arrest of a recent occupant of the vehicle; (2) under the “automobile exception” to the warrant requirement, which requires exigent circumstances coupled with probable cause, Union v. State, 660 So.2d 803 (Fla. 2d DCA 1995); Walker v. State, 636 So.2d 583 (Fla. 2d DCA 1994); and (3) when a vehicle has been impounded, as part of a reasonable inventory search following standardized procedure, Patty v. State, 768 So.2d 1126 (Fla. 2d DCA 2000). In this case, because law enforcement failed to obtain a warrant to search Jaimes’ vehicle, we focus on whether the search was incident to Jaimes’ arrest, whether it met the requirements of the automobile exception, or whether it constituted a valid inventory search.

The State first argues that the search of Jaimes’ vehicle was a valid search incident to arrest because Jaimes was near the vehicle he occupied when the officers arrested him. At the suppression hearing, the State relied on State v. Thomas, 711 So.2d 1241 (Fla. 2d DCA 1998), for the proposition that a search incident to arrest does not require a nexus between the arrest of the vehicle occupant and the search. However, the Florida Supreme Court quashed that decision in Thomas v. State, 761 So.2d 1010 (Fla.1999). Because the trial court accepted the State’s position, it appears that the trial court did not consider the other exceptions to the warrant requirement, which the State addresses for the first time on appeal.

The State incorrectly argues that no nexus was required between Jaimes’ arrest and the search of his vehicle. While a police officer may search a vehicle incident to the contemporaneous arrest of its occupant, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), when the occupant has voluntarily exited the vehicle before the officer initiates contact with him, the Belton rule no longer applies, Thomas, 761 So.2d at 1011. Under these circumstances, to be a valid search incident to a lawful arrest, the search instead must meet the requirements of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Thomas, 761 So.2d at 1011. Under Chimel, law enforcement may search a vehicle incident to an arrest only if necessary for officer safety or for evidence preservation. Chimel, 395 U.S. at 763, 89 S.Ct. 2034; Thomas, 761 So.2d at 1012.

In this case, the Belton rule does not apply because Jaimes had voluntarily exited his vehicle long before the officers initiated any contact with him. In fact, the officers watched him enter and exit two vehicles and begin talking to a woman before they approached him. Therefore, Jaimes unarguably exited the vehicle not because the officers initiated contact with him but of his own free will. See Thomas, 761 So.2d at 1011 (noting the distinction between arrests initiated by conduct of officer and those when defendant “voluntarily exits his car without provocation from law enforcement personnel and without knowledge of their presence”). Consequently, for the search of Jaimes’ car to be a valid search incident to arrest, the Chi mel requirements of concern for officer safety and evidence preservation had to exist.

At the suppression hearing, however, the State provided no evidence that officer safety was a concern. Moreover, evidence preservation was not a legitimate concern because the officers had control over Jaimes’ vehicle from the moment they arrested him. When the officers arrested Jaimes, they immediately handcuffed him and searched him. In this search, they obtained the keys to his vehicle. Even if the officers were uncertain which vehicle belonged to Jaimes, they could be certain that if his vehicle was indeed in the parking lot, they had its keys. The officers maintained control over the keys and therefore, ipso facto, the vehicle.

The State does not suggest that anyone else had keys to Jaimes’ vehicle, nor was there any evidence to this effect. The State’s only suggestion that evidence preservation was an issue is that the group that frequented the Eastside Lounge was “close knit” and that the officers were afraid the drugs inside the vehicle would “disappear.” The State did not, however, indicate whether Jaimes was part of this “close knit” group, nor did it provide any evidence that any member of this “close knit” group was in the parking lot or inside the Eastside Lounge at the time of Jaimes’ arrest. Moreover, the number of officers present and the fact that the officers had the keys in their possession while Jaimes was handcuffed and under arrest invalidate any concerns about the vehicle contents disappearing. Therefore, concern for evidence preservation under these circumstances was lacking. Because the Belton rule does not apply and the State did not establish the requirements for admissibility under Chimel, the vehicle search was not valid as a search incident to an arrest.

In addition to a search incident to arrest, a warrantless search of a vehicle may be conducted if probable cause to search the vehicle exists and exigent circumstances justify its immediate search. Union, 660 So.2d at 805 (citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). For the reasons set forth above, exigent circumstances were lacking. Moreover, the officers lacked probable cause to believe that Jaimes was committing, or recently had committed, a new crime.

Based on investigations from five months before the arrest, the officers knew Jaimes dealt drugs from his truck, and prior to his arrest, they saw him getting out of his truck and into and out of another truck. However, the officers did not observe Jaimes dealing drugs. Although there was some testimony that a C.I. had advised the officers that Jaimes was selling cocaine at the Eastside Lounge on that particular night, no evidence was adduced as to this C.I.’s veracity.

To determine whether information from a C.I. gives rise to probable cause, a court must look at the totality of the circumstances. The court must measure the C.I.’s veracity as well as the basis of the C.I.’s knowledge. Veracity can be established by proof that the C.I. has provided reliable information in the past or has provided detailed and verifiable information on the occasion in question.

Mitchell v. State, 787 So.2d 224, 226-27 (Fla. 2d DCA 2001) (citations omitted). Because there was no factual basis presented below to establish the C.I.’s reliability, the C.I.’s information alone could not create probable cause. Moreover, the officers’ observations prior to executing the warrant did not establish probable cause. Because the State established neither probable cause nor exigency, the vehicle search was not valid under the automobile exception to the warrant requirement.

Finally, the State contends that the search was a valid inventory search. Evidence seized from a vehicle pursuant to a valid inventory search following standardized procedure may be admissible. Patty, 768 So.2d 1126. The State argues that because the police report indicates an inventory search was conducted, the search meets the requirements of an inventory search. However, at the evidentiary hearing, the officers admitted the car was not inventoried because it had not been impounded. Moreover, there was absolutely no evidence presented that a standardized procedure was followed. Thus, we reject the State’s syllogistic argument that because the police report called it an inventory search, it was an inventory search. Simply put, the facts speak otherwise.

Because the search of Jaimes’ vehicle was not valid under any exception to the warrant requirement, the search was illegal and the evidence seized should have been suppressed. As the State properly concedes, the validity of the search of Jaimes’ home after the vehicle search depended upon the validity of the vehicle search. Thus, because the search of the vehicle was invalid, so too was the search of Jaimes’ house. Therefore, the trial court also erred in denying Jaimes’ motion to suppress the evidence seized during the search of his home. Because that motion was dispositive, we reverse and remand for discharge.

Reversed and remanded.

SALCINES and DAVIS, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . At the evidentiary hearing, the court indicated the validity of the vehicle search was “the whole trigger. If that falls, then the whole case falls.” The State replied, "Right, Your Honor.” Moreover, on appeal the State has not pursued any argument in support of the search of Jaimes’ home. See Winter Haven Citrus Growers Ass’n v. Campbell & Sons Fruit Co., 773 So.2d 96 (Fla. 2d DCA 2000) (refusing, on motion for rehearing, to consider arguments not addressed by either party on appeal); Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983) ("When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy.”).


text:
    Edgar MUNOZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3388.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
    Rehearing Denied Jan. 14, 2004.
   PER CURIAM.

Affirmed. See Davis v. State, 848 So.2d 418 (Fla. 2d DCA 2003). As this court did in Davis, we certify direct conflict with Fernandez v. State, 814 So.2d 459 (Fla. 4th DCA 2001).

Affirmed; conflict certified.

COVINGTON, CANADY, and VILLANTI, JJ., Concur.


text:
    Gaila M. ANDERSON, Petitioner, v. E.T., the Father of A.T., Broward County, Respondent.
    No. 4D02-3419.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Gaila M. Anderson, Fort Lauderdale, pro se.

      James D. Rowlee, Assistant County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and Edward A. Dion, County Attorney, Fort Lauderdale, for respondent.
   PER CURIAM.

Gaila Anderson filed a Motion for Additional Compensation, requesting $14,803 in attorney’s fees for her representation of an indigent father in a termination of parental rights case. The trial court entered an order awarding Anderson $2800 on this motion. Anderson seeks review of this award.

In February 2001, the Department of Child and Family Services instituted proceedings to terminate the parental rights of E.T., the father. In April 2001, pursuant to sections 27.53 and 925.036 of the Florida Statutes, the trial court appointed the appellant, Gaila Anderson, to represent the father, who was indigent and serving time in prison.

Before the final judgment was entered in E.T.’s case, Anderson filed a Motion for Additional Compensation of Special Public Defender. Anderson attached an exhibit to this motion showing the time she spent on specific aspects of E.T.’s case. The trial court conducted a hearing on this motion on June 13, 2002. During the hearing, minor calculation corrections made by the Court Administrative Accountant to Anderson’s bill were brought to the attention of the court. Anderson agreed that the amount she was seeking should be reduced from the $14,803 stated in her motion to $14,566. After the hearing, the trial court entered an Order for Compensation of Conflict Attorney Awarding Anderson $2800 in attorney’s fees without the necessary findings.

Following the trial court’s entry of this order, Anderson filed a Motion for Clarification of Order of Compensation, Motion for Rehearing, or Motion for Reconsideration. Anderson sought clarification as to whether the amount awarded by the court was meant to compensate her for the entire time she represented E.T. In the alternative, if the court had determined she was only entitled to $2800 for the entire time she represented E.T., Anderson was asking for a rehearing or reconsideration. In an order dated August 14, 2002, the trial court denied Anderson’s motions, stating that the court had already tried this case and that the $2800 award covered all of the time Anderson spent representing E.T. The order also stated:

[t]he Court did find that an award of fees in excess of [the] $1,000 [statutory cap outlined in section 39.0134 of the Florida Statutes] was warranted. However, the Court did not find that the amount requested by counsel was warranted based either on “extraordinary and unusual case” or “time expended.”

Anderson now seeks review.

“The proper vehicle for challenging an award of attorney’s fees to court-appointed counsel” is a petition for writ of certiorari. Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925, 928 n. 3 (Fla.2002) (citations omitted); see also Bobbitt v. State, 726 So.2d 848, 851 (Fla. 5th DCA 1999) (where an appeal challenging an order awarding attorney’s fees to court-appointed counsel was treated as a writ of certiorari) (citations omitted). The standard of review for a writ of certiorari is “whether the trial court ... departed from the essential requirements of law.” Sheppard & White, P.A., 827 So.2d at 928 n. 3 (citation omitted).

Under section 925.036 of the Florida Statutes, attorneys appointed pursuant to section 27.53 of the Florida Statutes, like Anderson, are compensated at a fixed hourly rate. Anderson does not dispute the established rate of compensation, and we do not discuss it. However, “[t]he trial court [was also required to] make findings that appointed counsel reasonably-expended a certain number of hours in representing the indigent client, and then using the established hourly rate, it must compute the fee.” Swartz v. Bd. of County Comm’rs of Manatee County, 842 So.2d 980, 982 (Fla. 2d DCA 2003) (citing Monroe County v. Garcia, 695 So.2d 823, 826 (Fla. 3d DCA 1997); Weinstein v. Palm Beach County, 588 So.2d 329 (Fla. 4th DCA 1991)). Here, the court did not make a finding as to the reasonable number of hours Anderson was being compensated for her representation of E.T. This finding was necessary to make the mathematical computation required under section 925.036 of the Florida Statutes. Weinstein, 588 So.2d at 329.

Furthermore, at the trial level, under section 39.0134(2) of the Florida Statutes, attorney’s fees are capped at $1000 for appointed counsel in a termination of parental rights proceeding. In Makemson v. Martin County, the Florida Supreme Court found there were some circumstances that could justify an attorney’s fee award in excess of a statutory limit. 491 So.2d 1109 (Fla.1986). Makemson involved an award of attorney’s fees above the statutory cap for an attorney’s representation of an indigent criminal defendant in a capital felony case. Id. at 1110-11. In Makemson, the court stated:

it is within the inherent power of Florida’s trial courts to allow, in extraordinary and unusual cases, departure from the statute’s fee guidelines when necessary in order to ensure that an attorney who has served the public by defending the accused is not compensated in an amount which is confiscatory of his or her time, energy[,] and talents.

Id. at 1115.

This exception has also been extended to eases that involve the compensation of a court-appointed attorney in a civil dependency proceeding. Bd. of County Comm’rs of Hillsborough County v. Scruggs, 545 So.2d 910, 912 (Fla. 2d DCA 1989). In Scruggs, a case which involved a dependency proceeding and a termination of parental rights, the court stated that the trial court’s decision rested on an award of attorney’s fees under the statute governing attorney’s fees for a dependency proceeding and thus, its decision was limited to the statute. Id. at 912 n. 1. The court, however, noted that there is an identical statute that applies to attorneys who represent clients in termination of parental rights cases. Id. Since Scruggs, the two sections, which awarded attorney’s fees for dependency cases and termination of parental rights cases, have been combined into section 39.0134 of the Florida Statutes. Counsel in termination of parental rights cases still have a statutory cap of $1000 at the trial level, just as the statute at issue in Scruggs. Furthermore, other cases appear to consider Scruggs as having extended Makemson to termination of parental rights cases. See Garcia, 695 So.2d at 826; Metro. Dade County v. Faber, 564 So.2d 185 (Fla. 3d DCA 1990). Thus, it follows that a court-appointed attorney in a termination of parental rights case may receive compensation above the statutory cap if his or her case is extraordinary or unusual under Makemson.

In White v. Board of County Commissioners of Pinellas County, 537 So.2d 1376, 1380 (Fla.1989), another capital case, the Florida Supreme Court clarified that an unusual and extraordinary amount of time expended on a particular case could also justify an award of attorney’s fees above the statutory cap. Applying White to termination of parental rights cases is a logical extension based on the explicit extension of Makemson in Scruggs to dependency proceedings, and the implicit extension of Makemson in Scruggs to termination of parental rights cases. Thus, under Makemson and White, in order to justify an award of attorney’s fees above the statutory limit, a court must find that the nature of the case was unusual or extraordinary in its own right or the time expended on the particular case made the case extraordinary. Here, the court did neither. Furthermore, in its order denying Anderson’s Motion for Clarification of Order of Compensation, Motion for Rehearing, or Motion for Reconsideration, the trial court explicitly stated that it was not awarding the $2800, which is beyond the statutory cap of $1000, based on this ease being an ‘extraordinary and unusual case’ or based on the ‘time expended.’ Thus, the trial court’s specific findings are inconsistent with its award exceeding the $1000 statutory cap.

As the trial court did not make findings regarding the reasonable number of hours for which Anderson was receiving compensation, this Court cannot properly review this case. Accordingly, we grant Anderson’s petition and remand for the court to recalculate the fee award. On remand, the trial court must make a finding as to the reasonable number of hours expended by Anderson on this case, and then, using the established rate, the trial court should compute the fee. Should the court decide an award greater than the statutory cap of $1000 is justified, the court should make the appropriate findings, discussed above, to support this award.

PETITION GRANTED.

GUNTHER, WARNER, and MAY, JJ., concur.


author: HAZOURI, J.

text:
    SOUTHEASTERN CONFERENCE ASSOCIATION OF SEVENTH-DAY ADVENTISTS, INC., Petitioner, v. Pastor Keith A. DENNIS, Respondent.
    No. 4D03-890.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.

      Ronald P. Ponzoli, Jr., of Richman, Greer, Weil, Brumbaugh, Mirabito & Christensen, P.A., West Palm Beach, for petitioner.
    George W. Bush, Jr., Palm Beach Gardens, for respondent.

       TAYLOR, J., participated in a portion of oral argument, but has had the opportunity to review the entire proceedings.

   HAZOURI, J.

Petitioner, Southeastern Conference Association of Seventh Day Adventists, Inc., seeks to have this court prohibit the Palm Beach County Circuit Court from exercising jurisdiction in connection with a negligence claim brought against it by respondent, Pastor Keith A. Dennis. We grant the petition for writ of prohibition and hold that the trial court does not have jurisdiction over the dispute between petitioner and respondent because the resolution of the dispute would entangle the civil court in the ecclesiastical and ministerial decisions of the petitioner.

The petitioner is a church whose general purpose is to coordinate a Christian ministry. Respondent is an ordained minister with The Seventh-Day Adventists, Inc., and an employee of the petitioner. The respondent and his wife filed a ten-count complaint against numerous defendants, including the petitioner. The complaint sought trial by jury. The claim against the petitioner is addressed in Count I.

Count I of the complaint alleges that the petitioner failed to follow its own internal church procedures in dealing -with allegations made against the respondent by a member of the respondent’s congregation charging the respondent with having made unwelcome, sexually-suggestive overtures.

The First Amendment and the ecclesiastical abstention doctrine preclude civil courts from inquiring into ecclesiastical matters. Courts may not consider employment disputes between a religious organization and its clergy because such matters necessarily involve questions of internal church discipline, faith, and organization that are governed by ecclesiastical rule, custom, and law. See Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16, 50 S.Ct. 5, 74 L.Ed. 131 (1929); see also Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir.2000). Whether an individual is qualified to be a clergy member of a particular faith is a matter to be determined by the procedures and dictates of that particular faith. See Gonzalez, 280 U.S. at 16, 50 S.Ct. 5; see also Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir.1985). Civil courts may not inquire into internal organizational disputes between different factions of a religious organization or into property disputes that would require interpreting religious doctrine or practice. See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 49 L.Ed,2d 151 (1976); Crowder v. S. Baptist Convention, 828 F.2d 718, 726 (11th Cir.1987).

Civil courts must accept “the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” See Milivojevich, 426 U.S. at 713, 96 S.Ct. 2372. However, when a church-related dispute can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy, the civil courts may adjudicate the dispute. See Jones v. Wolf, 443 U.S. 595, 602-04, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979).

-The question in the instant case is whether the circuit court can adjudicate a claim against a religious organization based on its alleged negligence in suspending one of its clergy. “[W]here religious organizations establish rules for their internal discipline and governance, and tribunals for adjudicating disputes over these matters, ‘the Constitution requires that civil courts accept their decisions as binding upon them.’ ” See Crowder, 828 F.2d at 724 (quoting Milivojevich, 426 U.S. at 723, 96 S.Ct. 2372). The interaction between a church and its pastor is an essential part of church government. See Simpson v. Wells Lamont Corp., 494 F.2d 490, 493 (5th Cir.1974). In particular, “a minister’s employment relationship with his church implicates ‘internal church discipline, faith, and organization, all of which are governed by ecclesiastical rule, custom, and law.’ ” See Lewis v. Seventh Day Adventists Lake Region Conference, 978 F.2d 940, 942 (6th Cir.1992) (quoting Hutchison v. Thomas, 789 F.2d 392, 396 (6th Cir.1986)). Thus, civil courts must abstain from deciding ministerial employment disputes or reviewing decisions of religious judicatory bodies concerning the employment of clergy, “because such state intervention would excessively inhibit religious liberty.” Id.; see generally Milivojevich, 426 U.S. at 709, 96 S.Ct. 2372 (setting forth the abstention doctrine).

The writ of prohibition is granted.

GROSS and TAYLOR, JJ., concur.

      . Since we are granting the writ of prohibition, we need not address whether Count I states a viable cause of action.


author: GROSS, J.

text:
    Marilyn TIEDEMANN, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, Division of State Group Insurance, Appellee.
    No. 4D02-3573.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and John Tiedemann, North Palm Beach, for appellant.
    Sonja P. Mathews, Tallahassee, for ap-pellee.
   GROSS, J.

Marilyn Tiedemann appeals from a final order of the Department of Management Services which denied health insurance benefits to Tiedemann and her daughter. Tiedemann argues that this denial of benefits violated her constitutional rights of substantive due process and equal protection. Finding no constitutional violations, we affirm the order of the Department.

Tiedemann and her family participated in the State of Florida Self-Insured Group Insurance Plan. The Department is the state agency charged with regulating and administering the Plan. Blue Gross and Blue Shield of Florida, Inc. is the Plan’s third-party administrator.

Before July 1, 2001, the Plan excluded from coverage those “services and supplies” received as a result of “an intentional self-inflicted injury whether the covered person was sane or insane.” The plan defined an injury as “intentionally self-inflicted” if a person “intended to perform the act that caused the injury, regardless of whether the [person] intended to cause the injury.”

Before July 1, 2001, Tiedemann and her daughter each required medical services as a result of intentionally self-inflicted injuries. Medical service providers billed Tiedemann $21,269.27 for these services. Blue Cross denied coverage on the ground that the services were not covered by the plan. Tiedemann appealed that denial to the Department, which affirmed Blue Cross’s determination to deny coverage.

Tiedemann petitioned for an administrative hearing. At the hearing, she challenged the Plan’s treatment of intentionally self-inflicted injuries as “discrimination against the mentally ill.” The Department did not dispute that Tiedemann and her daughter suffered from depression or that the medical services at issue were incurred as a result of their mental illness. Tiede-mann argued that the distinction drawn by the Plan violated principles of equal protection and due process; she questioned how the plan could “cover treatment of a disease such as major depression, but not the symptom of the disease.”

As for her equal protection challenge, Tiedemann concedes that mental illness, the basis for her claim, involves neither a suspect class nor a fundamental right. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); D.W. v. Rogers, 113 F.3d 1214, 1219 (11th Cir.1997). Therefore, the Plan’s treatment of self-inflicted injuries will survive an equal protection challenge if it is rationally related to some legitimate government purpose. See City of Cleburne, 473 U.S. at 446, 105 S.Ct. 3249. The law may differentiate between persons similarly situated if there is a rational basis for doing so.

A classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (citations omitted). The rational basis need not be apparent from the Plan itself, nor must the state produce evidence to support the classification. Id. Rather, the classification “may be [legitimately] based upon rational speculation unsupported by evidence or empirical data.” Id. (citation omitted). The burden is on the plaintiff challenging the classification to “ ‘negate every conceivable basis which might support [the classification],’ whether or not the basis has a foundation in the record.” Id. (citation omitted).

Tiedemann’s due process challenge treats the Plan as a legislative act; the Plan document is approved and adopted by the legislature. See § 110.123(5)(a), Fla. Stat. (2001). “As a general matter, the Due Process Clause does not obligate states to provide [their] citizens with substantive services, even if those services are necessary to secure citizens’ life, liberty, or property interests.” D.W., 113 F.3d at 1217. Because this case does not involve a fundamental right, the substantive due process challenge is reviewed under a rational basis test. See City of Lauderhill v. Rhames, 864 So.2d 432, 436, 2003 WL 22399699 (Fla. 4th DCA Oct.22, 2003).

As we observed in Rhames, the rational basis test in a substantive due process case does not impose a rigorous standard of review; a legislative act will withstand challenge “if the government ‘identifies a legitimate state interest that the legislature could rationally conclude was served by the statute.’ ” Id. (citations omitted). Under the rational basis test, legislation will be sustained “if there is any conceivable basis for the legislature to believe that the means they have selected will tend to accomplish the desired end.” Cash Inn of Dade, Inc. v. Metro. Dade County, 938 F.2d 1239, 1241 (11th Cir. 1991).

In this case, the equal protection and substantive due process claims give rise to essentially the same analysis of the Plan’s exclusion of intentionally self-inflicted injuries. See Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 976 n. 7 (1st Cir.1989). The rational basis or government purpose proffered by the Department to justify the exclusion is the protection of public funds. Drawing lines concerning the type of illnesses a health plan should cover and the extent of benefits afforded involve decisions where the desirability of a treatment must be weighed against its cost. This is the type of value judgment that the legislature may properly make, since it must weigh the cost of an employees’ health plan against other competing programs which the legislature must also fund. A concern about keeping costs “at an affordable level” is a legitimate state interest. See Currie v. Group Ins. Comm’n, 147 F.Supp.2d 30, 38 (D.Mass.2001) (noting that “maintaining a workable disability plan for the Commonwealth’s employees, accomplished in part by keeping premiums at an affordable level, is a legitimate state interest”).

The final order of the Department is affirmed.

WARNER and STEVENSON, JJ„ concur.

      . According to the Department’s final order, ''[a]s a result of changes at the federal level ... effective July 1, 2001 [Blue Cross] began to provide coverage for self-inflicted injuries that occurred on or after July 1, 2001 subject to the provisions and exclusions of the Plan.” On or after July 1, 2001, “group health plans may not discriminate with respect to coverage based on health factors such as mental illness and self inflicted injuries that are the result of mental illness. See Federal Register, Monday, January 8, 2001; Rules Governing the Internal Revenue Service, 26 CFR 54.9802. See also: Rules Governing Pensions and Welfare Benefits Administration, 29 CFR 2590.702; and Rules Governing the Health Care Financing Administration, 45 CFR 146.121.”


author: MAY, J.

text:
    Alexis DeJESUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2699.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Michael J. Neimand and Andrea D. England, Assistant Attorney’s General, Fort Lauderdale, for appellee.
   MAY, J.

The defendant appeals the trial court’s denial of his motion to declare section 943.0435, Florida Statutes (2002), the sexual offender statute, unconstitutional. He argues that the statute violates his procedural due process and privacy rights. He further argues that the sexual offender statute cannot be applied to him because he was sentenced as a youthful offender. Lastly, he argues that the court erred in denying his request to remove him from the sexual offender designation and registration because registration is required only after “release” from supervision. We disagree with the defendant in all respects and affirm.

The constitutional issues raised by the defendant have been addressed recently by a number of courts. The United States Supreme Court upheld a similar, but not identical, sexual offender statute in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). Both the Fifth and Second District Courts of Appeal have upheld Florida’s sexual offender statute. Johnson v. State, 795 So.2d 82 (Fla. 5th DCA 2000); Givens v. State, 851 So.2d 813 (Fla. 2d DCA 2003). More recently, this court upheld Florida’s more restrictive sexual predator statute against similar attack in Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003). For the reasons expressed in these cases, we now join the second and fifth districts in finding Florida’s sexual offender statute constitutional.

Nevertheless, the defendant argues that the sexual offender statute cannot be applied to him because he was sentenced as a juvenile under the youthful offender statute. His argument fails for two reasons. First, the defendant entered into a negotiated plea, which included both youthful offender and sex offender probation. The defendant did not timely file a motion to withdraw his plea and he has therefore failed to preserve this issue for appeal. See Fla. R.App. P. 9.140(b)(2)(A).

Second, the defendant’s reliance on C.C.M. v. State, 782 So.2d 537 (Fla. 1st DCA 2001), to suggest that a youthful offender sentence prohibits the imposition of conditions set forth in the sexual offender statute, is misplaced. C.C.M. held that the sexual offender statute was inapplicable to juvenile proceedings. However, the youthful offender sentence is an adult— not a juvenile—sentence. See State v. Richardson, 766 So.2d 1111, 1113 n. 1 (Fla. 3d DCA 2000), rev. denied, 786 So.2d 1189 (Fla.2001); Crain v. State, 653 So.2d 442 (Fla. 2d DCA 1995), rev. denied, 658 So.2d 990 (Fla.1995).

The defendant’s third issue involves his strained construction of the registration requirements of the statute. He argues that because section 944.607(9), Florida Statutes (2002), provides for the offender to register according to section 943.0435(3), and that section does not require registration until 48 hours after being released from supervision, he should not have to register until he is released from probation. Simply put, his argument lacks merit.

There is no room for doubt that the reference to “release” in section 943.0435(3) is for offenders serving prison time, not for those on probation. Section 944.607(9) provides for the registration of offenders not serving prison time and clearly requires them to register in the same “manner” as provided in section 943.0435(3). While the “manner” of registration is the same, it defies reason to suggest that a person on sexual offender probation is not required to register while in the community until after he is released from probation. Such an interpretation ignores the plain language of the applicable statutes, and the clear intent of the legislature. We will not ignore the obvious.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

GUNTHER and WARNER, JJ„ concur.


author: STONE, J.

text:
    Vernon SICHEWSKI, Appellant, v. Ji-Fen Hong SICHEWSKI, Appellee.
    Nos. 4D02-2222, 4D02-4644.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    William L. Rogers of Barrett, Rogers & Associates, P.A., North Miami Beach, for appellant.
    Ji-Fen Hong Siehewski, Fort Lauder-dale, pro se.
   STONE, J.

Vernon Siehewski appeals two orders of the trial court ordering child support payments. The appeals are consolidated. We reverse and remand as to both orders.

A final judgment of dissolution of marriage was entered in December 1999 initially designating the mother as the primary residential parent of the parties’ child with a split visitation schedule allowing each parent to spend approximately 50% of the time with the child. In June 2000, the trial court modified the original judgment, transferring primary custody of the child to the father. The trial court, however, made no adjustment in the amount of child support, pursuant to section 61.30(ll)(b), Florida Statutes, taking into account the equal amount of time each parent was to spend with the child.

In October 2001, this court reversed the initial final judgment on the issue of child support, concluding that the award must be reduced to account for the substantial amount of time the minor child spent with the father. Sichewski v. Sichewski, 796 So.2d 1233 (Fla. 4th DCA 2001). Subsequently, the trial court entered an order in furtherance of our mandate. The order reduced the father’s child support obligation to $500. However, the trial court, at the same time, denied the father’s request to be reimbursed for his overpay-ments of child support, dating back to the 1999 final judgment, which was the subject of the earlier appeal.

In a separate action, the mother filed a petition for modification of child custody, visitation, and support, contending that there had been changes warranting modification. The father filed a counter-petition. The mother withdrew her petition and, following a hearing, the court granted the father’s counter-petition. By its order, the court continued to recognize the father as the primary residential and educational custodian. Further, the court modified the visitation, reducing the mother’s visita-1 tion time to alternate weekends and midweek visitation on alternate weeks. The court did not, however, modify the father’s obligation to pay child support.

Initially, we conclude that Sichewski has failed to demonstrate that the trial court erred in applying section 61.30(l)(b), Florida Statutes, by fixing the child support award, after taking into account the 50-50 split-custody in effect until that time, at $500. Section 61.30(ll)(b) provides for an adjustment of child support when a child spends a “substantial amount of time with each parent.”

However, although the trial court complied with this court’s mandate by reducing the amount of support, the corrected amount, $500, should also have been adjusted, retroactively, to the date of the final judgment in order to comply with our opinion in Sichewski The father is entitled to a credit for each month’s overpayment subsequent to the commencement of the split visitation.

We recognize the trial court’s reluctance, given the mother’s limited resources, to impose a large lump sum obligation on her to reimburse Sichewski for the overpayments. Nevertheless, we interpret this court’s earlier opinion as holding that the award of child support had been excessive and requiring the final judgment be corrected in this respect on remand. Doing so can only be enforced by adjusting the overpayments retroactively. See Bardin v. State of Florida, Dep’t of Revenue, 720 So.2d 609 (Fla. 1st DCA 1998); Girten v. Andreu, 698 So.2d 886 (Fla. 3rd DCA 1997); State of Florida, Dep’t of Revenue v. Beal, 672 So.2d 608 (Fla. 1st DCA 1996).

With regard to the modification of visitation order, the trial court erred by ordering the father to continue paying the $500 child support obligation although the court reduced the percentage of the mother’s overnight visitation to approximately 30% of time. Section 61.30(ll)(b)(10), Florida Statutes, which was adopted just prior to father’s motion for modification of child support, provides:

[f]or purposes of adjusting any award of child support under this paragraph, ‘substantial amount of time’ means that the noncustodial parent exercises visitation at least 40 percent of the overnights of the year.

(emphasis added) Therefore, because the percentage of the mother’s overnight stays has been reduced to less than 40% of the year, the child support amount is not subject to modification under section 61.30(ll)(b), the provision applied by the trial court.

We also conclude that there is insufficient proof in the record to support Si-chewski’s contention that there had been a change of circumstances based on the income of the parties.

Therefore, we affirm the reduction of support to $500, reverse as to the failure to make that payment amount retroactive, and reverse as to continuing the $500 support after reduction of the mother’s overnight visitation.

WARNER and HAZOURI, JJ., concur.

      . Effective July 1, 2001, chapter 2001-158, section 15, Laws of Florida.