text:
    Peter Joseph KLAUER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3720.
    District Court of Appeal of Florida, First District.
    May 21, 2004.

      Peter J. Klauer, pro se, for Appellant.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Peter Joseph Klauer, seeks review of the trial court’s denial of his postconviction relief motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Of the multiple issues raised on appeal, we find that only one has merit and otherwise affirm. In his thirty-seventh claim for postconviction relief, which we treat as if it were a rule 3.800(a) claim, appellant asserted that he was illegally sentenced as a habitual felony offender because his federal offenses did not constitute qualified offenses pursuant to section 775.084(l)(c), Florida Statutes (1991).

Pursuant to section 775.084(l)(a) 1., Florida Statutes (1991), a habitual felony offender is a defendant who has previously been convicted of any combination of two or more felonies in Florida or other qualified offenses. A “qualified offense” is defined as:

any offense, substantially similar in elements and penalties to an offense in this state, which is in violation of a law of any other jurisdiction ... that was punishable under the law of such jurisdiction at the time of its commission by the defendant by death or imprisonment exceeding 1 year.

§ 775.084(l)(c), Fla. Stat. (1991). The State bears the burden of establishing that an out-of-state conviction is substantially similar in elements and penalties to an offense in Florida. Hemmy v. State, 835 So.2d 272, 272 (Fla. 2d DCA 2001).

' We find that the record does not establish that the State satisfied its burden in this case. Furthermore, neither the trial court’s order nor the State’s response to this Court’s order to show cause issued pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), conclusively refutes appellant’s claim that his federal offenses did not constitute qualified offenses because they are not substantially similar in elements and penalties to Florida offenses. Accordingly, we reverse the trial court’s order as to this claim and remand for resentencing. On remand, appellant may again be sentenced as a habitual felony offender if the State is able to establish the predicate convictions. See Bover v. State, 797 So.2d 1246, 1250 (Fla.2001) (remanding for proceedings consistent with the opinion and noting that the State should have the opportunity on remand to present record evidence that other prior convictions existed); Wainer v. State, 798 So.2d 885, 886 (Fla. 4th DCA 2001) (reversing for resen-tencing and noting that, on remand, the State could again seek sentencing as a habitual felony offender subject to evidence of satisfactory predicate convictions).

REVERSED and REMANDED for re-sentencing.

BARFIELD, BROWNING and LEWIS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clentis Elton LUCAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2532.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Clentis Lucas, pled nolo con-tendere to one count of solicitation to commit first degree murder of his wife and was sentenced to twenty years in prison followed by ten years probation. Appellant filed a motion for postconviction relief pursuant to Fla. R.Crim. P. 3.850 in the trial court, alleging ineffective assistance of counsel, and the trial court summarily denied the motion. Appellant contends that trial counsel failed to inform him of the existence of the defense of entrapment and that trial counsel improperly advised him as to what sentence he could expect. Because the record does not conclusively refute the appellant’s claim regarding the entrapment defense, we reverse and remand for an evidentiary hearing on the issue or attachment of records conclusively refuting the claim. See State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985)(rejecting the state’s contention that an informant receiving a benefit for cooperation and testimony in criminal prosecutions did not implicate due process concerns because government agents were not involved). We affirm the trial court’s denial in all other aspects.

AFFIRMED in part; REVERSED in part and REMANDED with directions.

ALLEN, KAHN and POLSTON, JJ., concur.


text:
    Donald L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3295.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court erred in failing to give appellant, Donald Johnson, the opportunity to present evidence or submissions relevant to sentencing before imposing sentence, pursuant to Florida Rule of Criminal Procedure 3.720(b). Whitlow v. State, 732 So.2d 441 (Fla. 1st DCA 1999); Ventura v. State, 741 So.2d 1187 (Fla. 3d DCA 1999); Beecham v. State, 652 So.2d 1275 (Fla. 3d DCA 1995). The state concedes error. We reject Johnson’s contention that he must be resentenced before a different judge. There has been no allegation or showing of bias by the trial judge.

REVERSED and REMANDED for further proceedings.

ERVIN, BENTON and LEWIS, JJ., concur.


author: PER CURIAM. ALTENBERND, Chief Judge,

text:
    Salvatore A. ITALIANO, Appellant/Cross-Appellee, v. Patricia M. ITALIANO, Appellee/Cross-Appellant.
    No. 2D03-894.
    District Court of Appeal of Florida, Second District.
    May 21, 2004.

      David A. Maney of Maney, Damsker, Jones & Kuhlman, P.A., Tampa, and Lorena L. Kiely, Plant City, for Appellant/Cross-Appellee.
    Ronald J. Russo, Tampa, for Appel-lee/Cross-Appellant.
   PER CURIAM.

Salvatore Italiano (the Husband) appeals the final judgment dissolving his marriage to Patricia Italiano (the Wife) and raises two issues. The Wife cross-appeals and raises three issues. We affirm the trial court’s marital or nonmarital classification of various payments the Husband received from his family businesses and the trial court’s classification of the appreciation of those businesses during the marriage. We also affirm the trial court’s decision concerning the alleged commingling of certain marital and nonmarital funds. However, we reverse the award of nominal permanent alimony to the Wife and the distribution of certain marital debts and remand for further proceedings on these issues.

NOMINAL PERMANENT ALIMONY

The parties married in August 1985. At that time, and during the entire course of the marriage, the Husband was chief executive officer and chief operating officer of Anthony Distributing Company and Anthony Distributors, Inc., both of which held certain beer distributorship rights in the Central Florida area. By agreement of the parties, the Wife did not work outside the home during the marriage.

During the dissolution proceedings, the parties stipulated that the Wife was entitled to permanent alimony based on the length of the marriage, the parties’ standard of living, and the parties’ relative earning potential. However, at trial, the Husband argued that the Wife should not be awarded permanent alimony because she could fully meet her needs as established during the marriage from the significant income-producing assets awarded to her in the equitable distribution scheme. The Wife agreed that she could currently meet her needs from such assets; however, she contended that she should be awarded nominal permanent alimony in case her needs changed in the future. The trial court agreed with the Wife and awarded her nominal permanent alimony of $233 per month. This was error because of the unusual circumstances of this case.

The two primary considerations when determining whether to award permanent alimony are the need of one spouse for alimony and the ability of the other spouse to pay. O’Connor v. O’Connor, 782 So.2d 502, 503 (Fla. 2d DCA 2001). This is true even when the parties stipulate that permanent alimony is generally appropriate. Id.; McCarty v. McCarty, 710 So.2d 713 (Fla. 1st DCA 1998). The determination of whether there is need and ability to pay is made at the time of the final hearing, and the trial court may not speculate on what might happen in the future. See McLean v. McLean, 652 So.2d 1178, 1180 (Fla. 2d DCA 1995); Hollinger v. Hollinger, 684 So.2d 286, 288 (Fla. 3d DCA 1996) (“Alimony awards should be based on current existing circumstances and not on possibilities likely but not yet realized.”) (quoting Winn v. Winn, 669 So.2d 1155, 1157 (Fla. 5th DCA 1996)).

In this case, the trial court specifically found that the Wife had no current need for alimony because her needs could be completely met from her income-producing assets. Despite this finding, the trial court awarded nominal permanent alimony based on its concern that the Wife’s needs might change in the future. This is an improper basis for an award of permanent alimony. Once the trial court found that the Wife’s current needs could be fully satisfied from her own assets, it was not permitted to speculate about “possibilities likely but not yet realized.” Accordingly, we reverse the award of nominal permanent alimony.

IDENTIFICATION OF MARITAL DEBTS

During the marriage, the Husband formed Multoplex, Inc., to purchase certain parcels of real property in downtown Tampa near the St. Pete Times Forum. While the Husband was the sole shareholder of Multoplex, the trial court found that Multoplex was a marital asset, primarily because it was formed during the marriage. Based on this finding, the trial court equally divided the Multoplex stock between the Husband and the Wife. The Husband also presented evidence that he had personally guaranteed various debts of Multoplex. Because the trial court had found that Multoplex was a marital asset, it also found that the Multoplex debts were marital liabilities and it equally divided them between the parties as well:

As a matter of law then, any personal debt[s] that [were] incurred in the overall project [were] also marital obligations. To the extent the Husband is personally obligated on any debts associated with the Multoplex stock or properties or to the extent the Husband personally guaranteed any such debt, those are marital liabilities. Due to the difficulty in valuing the Multoplex stock, the Court hereby awards one-half of that stock to each party. The Court also awards one-half of any debts on which the Husband is personally obligated which are associated with the Multoplex stock or properties and one-half of any debts which were personally guaranteed by the Husband associated with the Multoplex stock or properties to each party.

The final judgment does not specifically identify any of the debts associated with the Multoplex stock and on which the Husband is personally obligated. Rather, the final judgment simply makes each party responsible for half of these unidentified debts. The Wife contends that the trial court erred by distributing the debts associated with Multoplex without specifically identifying those debts.

We agree. Section 61.075(3), Florida Statutes (2002), requires the trial court to make specific written findings identifying marital liabilities and which spouse shall be responsible for them. It is reversible error for a trial court to simply indicate that marital liabilities are to be equally divided without identifying each specific liability and without identifying which spouse is responsible for each. Green v. Green, 681 So.2d 769, 770 (Fla. 2d DCA 1996); Allen v. Allen, 857 So.2d 360, 360 (Fla. 5th DCA 2003).

Here, the final judgment makes each party responsible for one half of “any debts on which the Husband is personally obligated which are associated with the Multoplex stock or properties and half of any debts which were personally guaranteed by the Husband associated with the Multoplex stock or properties.” Not only does the final judgment not identify these debts, it does not even specifically limit its ruling to those debts incurred during the marriage. Thus, this portion of the final judgment fails to comport with the requirements of section 61.075(3).

On remand, the trial court should conduct further proceedings to specifically identify the Multoplex debts that the Husband personally guaranteed during the marriage and then identify which party is responsible for each debt. Because the distribution of these debts may alter the total value of the income-producing assets awarded to the Wife, the trial court may need to reconsider the permanent alimony award in light of the revised equitable distribution scheme. In all other respects the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings.

WALLACE, J„ and THREADGILL, EDWARD F., Senior Judge, Concur.

ALTENBERND, C.J., Concurs specially.

ALTENBERND, Chief Judge,

Concurring.

I fully concur in the majority’s opinion. This was a very complicated divorce proceeding, which was made more complicated by the fact that the premarital agreement was not enforceable. I write primarily to note that alimony in the amount of $233 per month would not normally be treated as “nominal” permanent alimony. Both parties to this proceeding, however, describe the award as nominal and it is a small fraction of the amount necessary to maintain the Wife’s established lifestyle. The primary problem that remains in this case concerns the valuation of Multoplex, Inc., and the related liabilities. It is impossible to know whether the Wife has been fairly-treated or needs permanent alimony until these assets and liabilities have been established.


author: SHARP, W., J.

text:
    Jose R. VALENTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-380.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2004.
    Jose R. Valentin, Bushnell, pro se.
    No Appearance for Appellee.
   ON MOTION FOR REHEARING AND/OR MOTION TO REINSTATE BELATED APPEAL

SHARP, W., J.

Valentin files a motion for rehearing after this court dismissed his appeal from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. , On the face of the pleading it appeared Valentin’s appeal was untimely because the order sought to be appealed contained a certificate of service on Valentin’s counsel dated June 11, 2001. The notice of appeal was filed on January 13, 2004, some two years and six months late.

This court issued a show cause order to Valentin to show why his appeal should not be dismissed. He did not respond. We dismissed the appeal. However, his motion for rehearing recites under oath that Valentin did not receive the show cause order in time to make a response because he was transferred from prison in Sumter County, to the Orange County jail and this mail took a circuitous route to Tampa before arriving in Orange County. Valentin further alleges under oath that he did not receive a copy of the circuit court’s denial of his rule 3.850 motion until December of 2003, although he does not further specify those facts and circumstances nor why service on his attorney was not sufficient to constitute service on him.

We deny Valentin’s motion for rehearing or motion to reinstate but clarify that dismissal of the cause was without prejudice to Valentin to seek the appropriate remedy in such a case and circumstances — the filing of a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c) — which conforms to all of the requirements of that rule.

DENIED without prejudice.

PETERSON and PLEUS, JJ., concur.


text:
    Robert CARNEAL, Sr., Petitioner, v. Alyson CARNEAL, Respondent.
    No. 5D04-1049.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2004.

      Patricia K. Herman, Orlando, for Petitioner.
    Michael J. Barber of Michael J. Barber, P.A., Kissimmee, and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for Respondent.
   PER CURIAM.

Robert Carneal, Sr., (“the former husband”), petitions for a writ of prohibition to prevent the trial court from conducting a hearing relating to the sale of a marital residence which is the subject of a pending appeal in this court. Because the trial court has done nothing except schedule a hearing at the request of a litigant, we deny the petition.

A hearing was scheduled for April 5, 2004, at the request of the former wife, to hear arguments on her “Motion for Enforcement of Final Judgment Regarding Refinancing of Former Marital Residence.” Although counsel for the former husband informed the trial court that a matter related to the scheduled motion had been appealed, the trial court indicated that the hearing would take place. The former husband then filed this petition and this court entered an order to show cause which operated as a stay of the enforcement proceedings.

The rule limiting trial court jurisdiction pending an appeal provides:

Rule 9.600. Jurisdiction of Lower Tribunal Pending Review
(a) Concurrent Jurisdiction. Only the court may grant an extension of time for any act required by these rules. Before the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the court to render orders on any other procedural matter relating to the cause, subject to the control of the court.
(b) Further Proceedings. If the jurisdiction of the lower tribunal has been divested by an appeal from a final order, the court by order may permit the lower tribunal to proceed with specifically stated matters during the pendency of the appeal.
(c) Family Law Matters. In family law matters:
(1) The lower tribunal shall retain jurisdiction to enter and enforce orders awarding separate maintenance, child support, alimony, attorneys’ fees and costs for services rendered in the lower tribunal, temporary attorneys’ fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal.
(2) The receipt, payment, or transfer of funds or property under an order in a family law matter shall not prejudice the rights of appeal of any party. The lower tribunal shall have the jurisdiction to impose, modify, or dissolve conditions upon the receipt or payment of such awards in order to protect the interests of the parties during the appeal.
(3) Review of orders entered pursuant to this subdivision shall be by motion filed in the court within 30 days of rendition.

Fla. R.App. P. 9.600.

The trial court retains limited jurisdiction to enter and enforce orders in family matters pursuant to rule 9.600, Florida Rules of Appellate Procedure. The mere scheduling and conducting of a hearing on family law matters is contemplated by the rule and until the trial court renders an order, this court has no record, and therefore, no way to determine whether an action by the trial court exceeds its jurisdiction. We cannot speculate as to the future action of the trial court. For example, the trial court could deny the motion made by the former wife because of the pending appeal or take other action that would not overlap the issues on the appeal pending before this court. The former husband’s petition is premature and we must deny it.

PETITION DENIED.

PETERSON, R.B. ORFINGER and MONACO, JJ., concur.

      . See Merian v. Merhige, 690 So.2d 678 (Fla. 3d DCA 1997) and Johnson v. Ferguson, 383 So.2d 715 (Fla. 3d DCA 1980) for construction of rule 9.600 and an explanation of loss of jurisdiction by a trial court when issues on a pending appeal overlap an action contemplated by a trial court.


text:
    HURRICANE HATTIES, INC., a Florida Corporation, and Steven I. Jacker, Appellants, v. Daniel WING, Appellee.
    No. 1D02-2048.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Koko Head, Esquire, Koko Head, P.A., Jacksonville, for Appellants.
    Allen C. Jensen, Esquire, Jacksonville, for Appellee.
   PER CURIAM.

Affirmed. See Careers USA, Inc. v. Sanctuary of Boca, Inc., 705 So.2d 1362 (Fla.1998).

VAN NORTWICK and POLSTON, JJ., and SMITH, LARRY G., Senior Judge, concur.


author: WHATLEY, Judge.

text:
    Paulette C. WALKER, Appellant, v. Jeffrey S. WALKER, Appellee.
    No. 2D02-5691.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.
    Cynthia L. Green of Greene, Smith & Associates, P.A., Miami, and Catherine Hanford, Clearwater, for Appellant.
    Nicole L. Goetz and Victoria M. Ho of Asbell & Ho, P.A., Naples, for Appellee.
   WHATLEY, Judge.

The Wife, Paulette C. Walker, appeals an amended final judgment dissolving her marriage with the Husband, Jeffrey S. Walker. We are compelled to reverse this cause a second time for the trial court to make findings of fact in support of its alimony award.

The parties were marriéd approximately twelve years and have three minor children. The original final judgment of dissolution of marriage was entered on August 31, 2000. The final judgment awarded the Wife rehabilitative alimony in the amount of $6000 per month, which sum decreased by $2000 per month as each child attained the age of majority. The Wife appealed the final judgment, arguing that the trial court erred in awarding her rehabilitative alimony in lieu of permanent alimony.

In Walker v. Walker, 818 So.2d 711 (Fla. 2d DCA 2002), this court reversed the final judgment because it did not include necessary findings to support the alimony award. All other aspects of the original final judgment were affirmed. This court noted that this marriage falls within the gray area between short-term and long-term marriages. As such, “there is no presumption in favor of or against an award of permanent alimony.” Id. at 713. This court remanded the case for the trial court to “make such findings as are supported by the evidence and allow for meaningful review of the award.” Id. at 714.

On remand, the trial court requested that both parties submit proposed factual findings. The Wife’s counsel submitted proposed factual findings as directed, but the Husband’s counsel submitted a proposed amended final judgment. Without a single change, the trial court signed the Husband’s proposed amended final judgment of dissolution of marriage. The amended final judgment, in spite of the directions from this court in its prior opinion, was entered with no additional argument from counsel and no indication that the trial court reviewed the transcript of the proceedings or articulated any findings of fact. The amended final judgment reduced the $6000 per month rehabilitative alimony award to a period of three years.

By adopting the proposed amended final judgment verbatim, the trial court delegated its decision-making authority to the Husband’s counsel. Perlow v. Berg-Perlow, 875 So.2d 383, 2004 WL 583130 (Fla. Mar. 25, 2004), is directly on point. In Perlow, the trial court adopted verbatim the final judgment submitted by the wife’s counsel without having indicated on the record any findings of fact or conclusions of law. The Florida Supreme Court noted that this procedure creates an appearance that the trial court did not independently make factual findings and legal conclusions. Id. at 389. The court held that “prior to requesting proposed final judgments, the trial judge should, when possible, indicate on the record the court’s findings of fact and conclusions of law.” Id. at 384. We can conceive of no scenario when it would not be possible for the trial court to indicate its findings of fact and conclusions of law.

Further, the Perlow court held that submissions by parties “cannot substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge.” Id. at 390. In the present case, this court directed the trial court to make several findings of fact on remand, including findings supporting the amount of alimony, findings that demonstrated whether the trial court considered the Wife’s ability to support herself during and after the rehabilitative period in a manner reasonably commensurate with the marital lifestyle, and findings relating to the economic factors listed in section 61.08(2), Florida Statutes (1997). 818 So.2d at 713-14. Because the record contains no such findings or conclusions by the trial court, meaningful appellate review of the alimony award is impossible. Id. at 713.

We are compelled to once again reverse and remand this matter to the trial court. The trial court must comply with the previous directives of this court as to the issue of alimony. The trial court shall reconsider the type and amount of alimony to which the Wife is entitled and shall make findings of fact and conclusions of law in support of such award. As indicated in Walker, 818 So.2d at 714, we do not suggest a particular type of award but rather that the decision be set forth with specific findings so that meaningful appellate review is possible.

This matter is reversed and remanded to the trial court for proceedings consistent with this opinion.

SILBERMAN and VILLANTI, JJ., Concur.

      . The Husband’s appellate counsel did not represent him in the trial court.

      . The amended final judgment is ten pages in length and was signed on November 6, 2002.


text:
    CONTINENTAL AVIATION SERVICES, INC., and James P. Lennane, Appellants, v. CITY OF NAPLES AIRPORT AUTHORITY, Appellee.
    No. 2D02-5696.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.
    Robert E. Doyle, Jr., James T. Demar-est, and David N. Arizmendi of Quarles & Brady LLP, Naples, for Appellants.
    F. Joseph McMackin, III, and Peter J. Iacono of Bond, Schoeneck & King, P.A., Naples; Daniel S. Reimer of Kaplan Kirsch & Rockwell LLP, Denver, Colorado; Perry M. Rosen of Akin Gump Strauss Hauer & Feld LLP, Washington, DC; and Louis X. Amato of Louis X. Amato, P.A., Naples, for Appellee.
   PER CURIAM.

Continental Aviation Services, Inc. (Continental), and James P. Lennane appeal a final summary judgment in favor of the City of Naples Airport Authority (NAA). With some reluctance, we conclude that Continental and Mr. Lennane were not entitled to the relief that they requested from the circuit court in this case. Accordingly, we affirm.

Continental runs a charter jet service from hangar facilities that it leases from the NAA. The lease, which Continental assumed from Provincetown-Boston Airline in 1993, is a long-term lease that does not expire until 2013. Along with Mr. Lennane, Continental also possesses a non-public aircraft fuel dispensing permit from the NAA. Continental’s primary charter jet is a Gulfstream class aircraft, which is classified as a Stage 2 aircraft weighing less than 75,000 pounds for federal aviation noise standards under the Aviation Noise and Capacity Act of 1990. See 49 U.S.C. §§ 47524-47533 (2002).

On November 16, 2000, in an effort to implement the Aviation Noise and Capacity Act, the NAA passed and adopted Resolution No.2000-8, imposing a twenty-four-hour ban on operations by all Stage 2 aircraft weighing less than 75,000 pounds, effective January 1, 2001. Resolution 2001-4, however, deferred enforcement of the ban until July 21, 2001. After the effective date, Continental applied for and received several waivers, enabling it to continue to operate its Stage 2 aircraft. On May 23, 2002, however, the NAA denied Continental’s request for an additional waiver.

Continental and Mr. Lennane filed this lawsuit in July 2002, seeking a permanent injunction prohibiting the NAA from enforcing the resolution that it had passed pursuant to federal law. They sought the injunction primarily on the theory that the resolution was an invalid zoning ordinance under state law. Their verified complaint also sought a declaration of rights under the hangar lease and fuel permit to establish that these contracts prevented enforcement of the resolution against them. The trial court entered summary judgment, declining to treat the resolution as a zoning ordinance and concluding that the resolution could not be overcome by the terms of the lease or fuel- permit. We agree with the trial court.

Continental claimed that it could not realistically upgrade its Gulfstream aircraft to comply with the quieter Stage 3 standards. Thus, because Continental operates primarily Stage 2 aircraft, this new regulation will have a drastic impact on Continental’s business. Continental argued that it is being singled out by this resolution and that the resolution is unreasonable. It further claimed that no comparable regulation is in effect at other airports in the United States and that its ability to engage in interstate commerce is limited by this single, local regulation, which happens to regulate air traffic at its home base.

The NAA resolution has been contested in forums other than this trial court, withstanding constitutional challenges in National Business Aviation Association, Inc. v. City of Naples Airport Authority, 162 F.Supp.2d 1343 (M.D.Fla.2001). While this case was pending on appeal, however, the FAA reached an administrative decision that this Stage 2 ban is unreasonable and contrary to the NAA’s obligations under 49 U.S.C. § 47107(a)(1). See In re Compliance with Federal Obligations by the Naples Airport Authority, Naples, Florida, FAA Order No.2003-1 (Part 16, subpart G) FAA Docket No. 16-01-15, DMS No. FAA-2000-15654, Aug. 25, 2003, 2003 WL 22257716. The FAA ruling apparently imposes sanctions on the NAA by preventing it from receiving certain federal grants. This court is uncertain as to the effect the FAA decision may have upon Continental’s operations at the Naples Airport.

The fact that the FAA has found this regulation unreasonable may tempt this court to fashion a remedy for Continental, but it does not transform the NAA’s resolution into a matter regulated by state zoning law. Additionally, the FAA opinion does not make the resolution a regulation that can be overridden by the parties’ lease. The opinion from the FAA may affect operations at the airport, but it would not support injunctive or declaratory relief on the theories presented to the trial court. In this case, we simply conclude that the summary judgment denying in-junctive relief on the theories presented to the trial court was correct.

Affirmed.

ALTENBERND, C.J., and SALCINES and SILBERMAN, JJ., Concur.

      . For a more extensive discussion of the regulation of noise abatement at airports, a reader might benefit from a review of Peter D. Irvine, The Future of Stage 2 Airport Noise Restrictions: A Matter of Substantive versus Procedural Review by the Federal Aviation Ad

        ministration, 11 Geo. Mason L.Rev. 179 (2002).

      . For a more extensive discussion of these proceedings, see Peter J. Kirsh and Daniel S. Reimer, The Airport Noise Act: Safe Harbor or Procedural Hurdle?, 16-SPG Air & Space Law 14 (2002), an article written by lawyers representing the NAA in this case.

      . Continental and Mr. Lennane have limited their litigation to efforts to interpret and enforce their contractual rights. This opinion should not be construed as precluding Continental and Mr. Lennane from seeking other relief in the trial court.


author: WALLACE, Judge.

text:
    William Leslie BASS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3494.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

William Leslie Bass appeals from his judgment and sentence for driving under the influence (DUI) manslaughter arising from a crash in St. Petersburg in which Abby Priest was killed. Of three issues raised, only one merits discussion and requires reversal with respect to the imposition of certain fines, costs, and restitution. The judgment and sentence are affirmed in all other respects.

In a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), Bass preserved three challenges to the written judgment for fines and costs and the order and judgment of restitution. See Fla. RApp. P. 9.140(e)(2). The motion was not ruled upon within sixty days and is deemed denied. See O’Neill v. State, 841 So.2d 629, 629 (Fla. 2d DCA 2003). First, Bass challenges $150 imposed as a cost pursuant to section 939.18, Florida Statutes (2000). We agree — and the State concedes — that this cost must be stricken as a discretionary cost of which Bass did not receive notice at the time of sentencing. See Reyes v. State, 655 So.2d 111, 116 (Fla. 2d DCA 1995) (en banc).

Second, Bass challenges $548.71 imposed as a cost in response to the State’s oral request at the sentencing hearing for the costs of extradition. Bass contends that this cost should be stricken because the request was not made in writing with documentation of the cost. We disagree. The costs of extradition — considered discretionary costs of prosecution authorized by section 938.27(1) — may be validly imposed if the State expressly requests them and the defendant has notice before sentencing. See Thompson v. State, 699 So.2d 329, 329 (Fla. 2d DCA 1997) (considering the statute as previously numbered section 939.01); Reyes, 655 So.2d at 117 (same). Although written requests are strongly encouraged, an oral request may be sufficient to “document” the request to satisfy the statutory requirements. Reyes, 655 So.2d at 119. Accordingly, we affirm this cost, but we remand for correction of a scrivener’s error. At the sentencing hearing, the trial court orally pronounced $548.71 as the cost of extradition. The trial court’s oral pronouncement was accurate. However, the written judgment for fines and costs references $548.71 as “Court Costs / 86-15 AO.” On remand, the trial court must correct the written judgment for fines and costs to conform with the trial court’s oral pronouncement.

Third, Bass challenges $131 of the total $870 imposed as restitution to the victim’s mother for funeral expenses. In order for us to reject Bass’s challenge, there must be record evidence sufficient to support a finding that the State proved by a preponderance of the evidence that $131 was included in the amount for which Bass was required to make restitution. See § 775.089(7), Fla. Stat. (2000); Hector v. State, 784 So.2d 1207, 1207 (Fla. 2d DCA 2001). Because the record before us does not show that the State met its burden, we must direct that $131 be stricken from the order and judgment of restitution.

We reverse the sentence in part and remand for the trial court to correct the sentence in accordance with this opinion. The correction of these errors is a ministerial function of the trial court for which Bass need not be present. See Windisch v. State, 709 So.2d 606, 607 (Fla. 2d DCA 1998). We affirm the judgment and sentence in all other respects.

Conviction affirmed; sentence affirmed in part, reversed in part, and remanded.

SALCINES and COVINGTON, JJ., concur.


author: CASANUEVA, Judge.

text:
    E.T.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3064.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

E.T.R., adjudicated delinquent as a principal to attempted burglary, contends on appeal that the evidence was legally insufficient to sustain the adjudication. We agree and reverse.

The State’s petition charged E.T.R. with the delinquent act of burglary of an unoccupied dwelling. The evidence at trial revealed that the house was owned by E.T.R.’s father, William Reyes. A neighbor testified that he heard the sound of a window breaking and, looking out from his own home, saw that windows had been broken on Mr. Reyes’ house. He also saw E.T.R. running away from the house and observed “two other guys” who appeared to be accompanying E.T.R. The witness did not see E.T.R. enter Mr. Reyes’ house, nor did he see E.T.R. or anyone else inside the house. After the neighbor shouted something to him, E.T.R. returned and asked the witness if he intended to call the police. The witness responded that he would not call the police but would tell his father about his conduct.

Mr. Reyes testified that E.T.R. did not live with him. As a result of the incident, two windows were broken and some window screens were damaged. He confirmed that no one had entered his house and that he had not authorized E.T.R. to do so.

At the close of the State’s case, E.T.R. moved for dismissal pursuant to Florida Rule of Juvenile Procedure 8.110(f), arguing that the State’s proof did not sustain the petition’s allegations that E.T.R. committed burglary. E.T.R. contended that the State’s evidence could establish burglary only by circumstantial evidence and that the proof had failed to rebut E.T.R.’s reasonable hypothesis of innocence. The trial court agreed and granted the motion as to that alleged delinquent act.

After dismissing the burglary offense, the court considered the lesser-included offense of attempted burglary and allowed the State to reopen its case to offer additional testimony on the element of intent to commit an offense within the house. The State then recalled Mr. Reyes, who testified that E.T.R. had “broken into” the home in which he had been living with his father and his stepmother. This occurred about one year before the trial, when E.T.R. had left home without permission. Unlike the present scenario, however, E.T.R. opened the window of his room to enter his own residence. Apparently this occurred more than once, and once inside, E.T.R. took whatever he could. With this additional circumstantial evidence, the trial court concluded that E.T.R. had committed the offense of principal to attempted bur-glai’y and denied his motion for dismissal.

“[A]lthough the circumstantial evidence rule can be stated with certainty and ease, applying the rule is often a daunting task because ‘the nature and quantity of circumstantial evidence in each case is unique.’ ” Haugabrook v. State, 827 So.2d 1065, 1067 (Fla. 2d DCA 2002) (quoting McArthur v. State, 351 So.2d 972, 976 (Fla.1977)). Where the evidence is entirely circumstantial, no matter how strongly it might suggest guilt, unless the evidence is inconsistent with any reasonable hypothesis of innocence, a conviction may not be upheld. Davis v. State, 761 So.2d 1154, 1157-58 (Fla. 2d DCA 2000) (citing McArthur, 351 So.2d at 976 n. 12; Mayo v. State, 71 So.2d 899 (Fla.1954)). Evidence creating only a strong suspicion that an accused committed the crime is insufficient to support a conviction. Davis, 761 So.2d at 1158 (citing Scott v. State, 581 So.2d 887 (Fla.1991)). Accordingly, we must undertake the daunting task of assessing, in the light most favorable to the State, “the presence or absence of competent evidence from which [the trier of fact] could infer guilt to the exclusion of all other inferences.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

The State presented no testimony from or evidence about the two other young men observed at the scene, whom the trial court must have concluded had acted in criminal concert with E.T.R.; nor did the State present any evidence, through a confession or an admission by E.T.R. or otherwise, that E.T.R. intended to break the window of his father’s house to gain entry. Furthermore, the neighbor did not see E.T.R. at a window or even nearby. And we note that two windows were broken, not one, evidence more consistent with the elements of criminal mischief or vandalism than with attempted burglary.

Previously, this court reviewed a case in which the defendant was alleged to have committed attempted burglary of a structure by breaking the windows of a laundry room with his head. We held that “although that conduct was consistent with an intent to enter the laundry room and commit an offense inside, it was equally consistent with a simple act of vandalism .... ” Nickell v. State, 722 So.2d 924, 925 (Fla. 2d DCA 1998). We find that reasoning persuasive here. Even assuming that the evidence strongly suggests E.T.R.’s guilt of attempted burglary, it does not do so to the exclusion of all other inferences.

Therefore, we reverse E.T.R.’s adjudication as a delinquent for the act of principal to attempted burglary and remand with instructions to discharge E.T.R.

SALCINES and DAVIS, JJ., concur.


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    In re GUARDIANSHIP OF Mary GNEISER. John D. Gneiser, as Successor Trustee of the Trust of Mary Gneiser, Appellant, v. Adult Comprehensive Protection Services, Inc.; Pinellas County Board of County Commissioners; and Shipp & Deeb, P.A., Appellees.
    No. 2D03-1507.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.
    Dale L. Gross, St. Petersburg, for Appellant.
    Wayne E. Shipp of Shipp & Deeb, P.A., St. Petersburg, for Appellee Adult Comprehensive Protection Services, Inc.
    Susan Churuti, County Attorney, and Michael A. Zas, Senior Assistant County Attorney, Clearwater, for Appellee Pinel-las County Board of County Commissioners.
    No appearance for Appellee Shipp & Deeb, P.A.
   WALLACE, Judge.

This appeal from an order entered in a guardianship proceeding involves an attempt by creditors of a deceased ward to reach the assets of the ward’s revocable trust to satisfy their claims. John Gneiser, as successor trustee of the trust of Mary Gneiser (the Trustee), appeals an order entered by the guardianship court after the ward’s death that directed the Trustee to pay trust assets to three creditors to satisfy their claims for fees and costs they had incurred on the ward’s behalf prior to her death. The Trustee contends that the guardianship court did not have the authority to order him to pay trust assets to the ward’s creditors following her death. We agree and reverse.

Mary Gneiser (the Ward) established a revocable trust (the Trust) on March 27, 1987. The guardianship court declared her to be incapacitated in 2001 and appointed Adult Comprehensive Protection Services, Inc. (the Guardian), as the Ward’s plenary guardian. Upon the adjudication of the Ward’s incapacity, her son, John Gneiser, became the successor trustee of the Trust.

On July 25, 2002, approximately one month prior to the Ward’s death, the guardianship court entered an order directing that the net proceeds from the sale of real property owned by the Trust— consisting of $10,023.99 — be deposited into the attorney trust account of Dale Mackenzie Gross, the attorney for the Trustee. The guardianship court’s order provided further that distribution of the funds belonging to the Trust could only be made in accordance with “the further Orders of this Court.” The Trustee did not seek appellate review of this order, and its propriety is not before us.

The Ward died on August 27, 2002. Insofar as the record reveals, a proceeding to administer the Ward’s estate was not initiated, and no personal representative for her estate was appointed. After the Ward’s death, the Trustee obtained the guardianship court’s approval to pay the Ward’s funeral and burial expenses in the amount of $6432 from the Trust’s assets held in Mr. Gross’ attorney trust account. The Trustee subsequently petitioned the guardianship court for an order authorizing the disbursement of the remaining $3591.99 to pay attorney’s fees and costs to Mr. Gross. Upon the Guardian’s objection, the guardianship court entered an order that denied the Trustee’s petition and ordered Mr. Gross to disburse the balance of the trust assets as follows: (1) the sum of $2392 to Pinellas County for unpaid court reporter and examining committee fees incurred in connection with the proceedings to determine the Ward’s incapacity; (2) the sum of $600 to the Guardian as partial payment for its unpaid fees; and (3) the sum of $599.99 to Shipp & Deeb, P.A., attorneys for the Guardian, as partial payment for its unpaid fees. The Trustee seeks review of this order.

In support of the guardianship court’s order, the Guardian argues that the Ward’s revocable trust is liable for the expenses and obligations of her estate pursuant to sections 733.707(3) and 737.3054(1), Florida Statutes (2002). Section 733.707(3) provides, in pertinent part:

Any portion of a trust with respect to which a decedent who is the grantor has at the decedent’s death a right of revocation, as defined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration and obligations of the decedent’s estate to the extent the decedent’s estate is insufficient to pay them as provided in s. 733.607(2).

Section 733.707(3) references section 733.607(2). That section provides:

If, after providing for statutory entitlements and all devises other than residuary devises, the assets of the decedent’s estate are insufficient to pay the expenses of the administration and obligations of the decedent’s estate, the personal representative is entitled to payment from the trustee of a trust described in s. 733.707(3), in the amount the personal representative certifies in writing to be required to satisfy the insufficiency.

Section 733.707(3) is in turn referenced by section 737.3054(1), which provides:

A trustee of a trust described in s. 733.707(3) shall pay to the personal representative of a grantor’s estate any amounts that the personal representative certifies in writing to the trustee are required to pay the expenses of the administration and obligations of the grantor’s estate. Payments made by a trustee, unless otherwise provided in the trust instrument, must be charged as expenses of the trust without a contribution from anyone. The interests of all beneficiaries of such a trust are subject to the provisions of this subsection; however, the payments must be made from assets or property or the proceeds thereof, other than assets proscribed in s. 733.707(3), which are included in the grantor’s gross estate for federal estate tax purposes.

The statutory scheme established in these three sections authorizes the personal representative of a decedent’s probate estate to reach the assets of the decedent’s revocable trust under the circumstances and for the purposes set forth in the statutes. See generally Frank T. Pilotte & L. Kathleen Horton-Brown, Creditors’ Claims and Family Allowance, in Practice Under Florida Probate Code § 8.16 (Fla. Bar CLE 3d ed.2002); Jerome L. Wolf, 1995 Legislative Modifications to Florida’s Trust Claims Procedures, 69 Fla. B.J. 57, 57 (Oet.1995). However, the statutory scheme grants this right to a personal representative appointed in a proceeding for the administration of a decedent’s estate. The statutory scheme does not grant the guardian of a deceased ward or a decedent’s creditors generally the right to reach the assets of a decedent’s revocable trust. Therefore, the Guardian’s reliance on sections 733.707(3) and 737.3054(1) in support of the order under review is unavailing.

Moreover, section 737.3061(1) prohibited the guardianship court from entering an order directing the Trustee to pay the Trust’s assets to satisfy the claims of the Guardian and the decedent’s other creditors. In 2001, the Florida Legislature enacted section 737.3061 as part of the revision of the -Florida Probate Code, effective January 1, 2002. Ch.2001-226, § 189, at 2028, Laws of Fla. Section 737.3061(1) provides:

After the death of a grantor, no creditor of the grantor may bring, maintain, or continue any direct action against a trust described in s. 733.707(3), the trustee of the trust, or any beneficiary of the trust that is dependent on the individual liability of the grantor. Those claims and causes of action against the grantor shall be presented and enforced against the grantor’s estate as provided in part VII of chapter 733, and the personal representative of the grantor’s estate may obtain payment from the trustee of a trust described in s. 733.707(3) as provided in ss. 733.607(2), 733.707(3), and 737.3054(1).

In Becklund v. Fleming, 869 So.2d 1, 5 n. 2 (Fla. 2d DCA 2003), this court noted:

[Section 737.3061(1)] prohibits a creditor from filing or continuing, after the death of the grantor, a direct action against a revocable trust, the trustee, or a beneficiary of the trust based upon a claim “that is dependent on the individual liability of the grantor.” The statute directs that such claims instead be presented and enforced against the grantor’s estate.

The claims of the Guardian and the other creditors were based upon the individual liability of the Ward. Therefore, the guardianship court was not authorized to enforce the claims of the Guardian and the other creditors against the decedent’s revocable trust in the guardianship proceeding.

We have considered the other arguments advanced by the Guardian and Pi-nellas County, and we find them to be without merit. Although the guardianship court was apparently attempting to resolve this matter equitably and economically, it erred in ordering the Trustee to pay the Trust’s assets to the Ward’s creditors. Accordingly, we reverse the guardianship court’s order, and we remand this case for further proceedings.

Reversed and remanded.

SALCINES and COVINGTON, JJ., concur.

      . The obligation of the trustee of the decedent's revocable trust to make payments to the decedent's personal representative is limited by the obligation to "pay the expenses of trust administration, including compensation of trustees and their attorneys, before and in preference to the expenses of the administration and obligations of the grantor's estate.” § 737.3054(4).


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    Stephen ALLEN, Petitioner, v. STATE of Florida; The Florida Civil Commitment Center; Robert Broidy, Director, Florida Civil Commitment Center; Department of Children and Family Services; and Jerry Regier, Secretary, Department of Children and Family Services, Respondents.
    No. 2D03-1621.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.

      Julianne M. Holt, Public Defender, and Jeanine Cohen, Assistant Public Defender, Tampa, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Janet A. McDonald, Assistant Attorney General, Tampa, for Respondents.
   CASANUEVA, Judge.

Stephen Allen seeks a writ of habeas corpus ordering his immediate release from his involuntary civil commitment pursuant to chapter 394, Florida Statutes (1999). Alternatively, he seeks a writ of mandamus to order the trial court to appoint him counsel. We deny the petition for a writ of habeas corpus but grant the petition for a writ of mandamus.

Procedural History

As a result of a jury verdict determining that he is a sexually violent predator in accordance with section 394.917(1), Mr. Allen is presently detained in the Florida Civil Commitment Center located in DeSo-to County. Pursuant to section 394.917(2), Mr. Alen was committed to the custody of the Department of Children and Family Services on February 26, 2002. By statute, the commitment term will last until such time as his “mental abnormality or personality disorder has so changed that it is safe” for him to be at large. Id.

Mr. Alen is entitled to “an examination of his ... mental condition once every year.” § 394.918(1). This process began when the Department presented Mr. Alen with a form titled “Waiver of Rights under section 394.918, Florida Statutes.” The form provided, in part: “If you do not wish to have your annual clinical evaluation or do not wish to petition for release from commitment, please indicate appropriately below.” It further provided: “I hereby waive my right to my annual clinical examination for the current year-By signing this waiver, I am deciding not to file a petition for release at this time.” Mr. Allen declined to sign the form.

This behavior was consistent with Mr. Allen’s prior actions. During his time at the commitment center, Mr. Allen declined to participate in an evaluation process and refused to consent to or participate in a treatment program. Accordingly, the executive director, Dr. Robert Briody, and the clinical director, R. Michael Lipscomb, of the Florida Civil Commitment Center concluded that Mr. Allen’s mental condition had not changed so that it would be safe to release him into the community. By correspondence, this information was communicated to the circuit court that had ordered Mr. Allen committed.

Upon receipt of this information, the trial court scheduled and held a hearing on March 10, 2003. The State’s position was that Mr. Alen was not entitled to be present and that the Office of the Public Defender was not authorized to represent Mr. Alen. The trial court concluded that it was not necessary to set another hearing because of Mr. Alen’s failure to participate in the process and thereby terminated the annual review. By order dated June 3, 2002, the trial court determined that the public defender’s representation of Mr. Alen ceased upon the filing of the notice of appeal from the commitment order and would not resume until an adversarial action was pending.

On appeal, Mr. Alen asserts two arguments: first, that he was entitled to and did not receive the probable cause hearing required by section 394.918(3); and second, that he was entitled to appointed counsel.

Probable Cause Hearing

Commonly known as the Jimmy Ryce Act, Florida’s Involuntary Civil Commitment of Sexually Violent Predators Act, codified in chapter 394, creates the structure and procedural requirements for the commitment, detention, and release of those found to be sexually violent predators. The resolution of Mr. Alen’s first issue is dependent upon the statutory language. “The question of statutory interpretation is subject to de novo review. Our purpose in construing a statute is to give effect to the Legislature’s intent.... [T]he statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.” State v. Burris, 875 So.2d 408, 410, 2004 WL 742099 (Fla. Apr. 8, 2004) (citations omitted).

As we noted in Jackson v. State, 802 So.2d 1213, 1214 (Fla. 2d DCA 2002), the “Act sets forth a procedure for commitment and includes provisions for the annual examination of committed persons and judicial review of their status.” Section 394.918(1) requires that the committed person undergo an examination of his mental condition at least once a year. The results of the examination are to be provided to the circuit court that committed the person. Furthermore, “[u]pon receipt of the report, the court shall conduct a review of the person’s status.” Id. The statute does not describe the review that the circuit court is required to conduct. We conclude that the status review under section 394.918(1) requires the circuit court to review the report of the mental examination as well as to determine whether the court file contains the annual written notice of the person’s right to petition for release and the waiver of rights form, which are required to be forwarded to the court pursuant to section 394.918(2).

After performing this ministerial function, the circuit court is then required to hold the limited probable cause hearing described in section 394.918(3), at which the committed person is entitled to be represented by counsel even though he is not entitled to be present at the hearing. Section 394.918(3) states that the circuit court “shall” hold a limited probable cause hearing. It does not provide any exceptions to this requirement. For us to hold that the circuit court is not obligated to hold a limited probable cause hearing unless and until the committed person files a petition for discharge would compel us to read language into the statute that does not exist. Thus, we conclude that a committed person is entitled to an annual limited probable cause hearing.

Here, Mr. Allen was apparently afforded the opportunity to have an annual examination of his mental condition and to have the results communicated to the committing court. However, the court erred in failing to hold a limited probable cause hearing.

Our holding in this case ensures that committed persons under the Act receive procedural due process. Civil commitments under the Act constitute significant deprivations of liberty that require due process protection. See State v. Goode, 830 So.2d 817, 825 (Fla.2002). “Procedural due process requires both fair notice and a real opportunity to be heard.” Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct, 795 So.2d 940, 948 (Fla.2001). In the present case, the trial court continued the petitioner’s commitment without appointing counsel to represent him. Mr. Allen was afforded no opportunity to be heard nor, apparently, was he notified of the trial court’s ruling in his case. Without doubt, this was a procedural due process violation.

In reaching our decision, we reject the State’s argument that the circuit court is required to hold the limited probable cause hearing described in section 394.918(3) only if the committed person has filed a petition for discharge. Section 394.920, titled “Petition for release,” governs the procedure pursuant to which a committed person may file “a petition for discharge at any time after commitment” without the approval of the Department. Section 394.920 is separate from, and does not trigger, the annual limited probable cause hearing. Although section 394.920 states that a subsequent petition for discharge filed without Department approval “shall be denied unless the petition contains facts upon which a court could find that the person’s condition has so changed that a probable cause hearing is warranted,” it does not describe the procedure the circuit court is to follow the first time such a petition -is filed. However, this issue is presently not before us and we therefore do not address it at this time.

California’s Violent Predator’s Act, which is similar to the Florida Act in many respects, permits a committed person to petition “the court for conditional release and subsequent unconditional discharge without the recommendation or concurrence of the Director of Mental Health.” Cal. Welf. & Inst.Code § 6608(a) (West 2003). This provision is analogous to section 394.920 of Florida’s Act. Section 6605(b) of the California Act also requires the following:

The director shall provide the committed person with an annual written notice of his or her right to petition the court for conditional release under Section 6608. The notice shall contain a waiver of rights. The director shall forward the notice and waiver form to the court with the annual report. If the person does not affirmatively waive his or her right to petition the court for conditional release, the court shall set a show cause hearing to determine whether facts exist that warrant a hearing on whether the person’s condition has so changed that he or she would not be a danger to the health and safety of others if discharged. The committed person shall have the right to be present and to have an attorney represent him or her at the show cause hearing.

Section 394.918 of the Florida Act contains similar provisions but with important distinctions. Under the Florida Act, the committed person does not have the right to be present at the limited probable cause hearing, and the Florida Act, unlike the California Act, does not permit the circuit court to dispense with the limited probable cause hearing if the committed person affirmatively waives his right to petition the court for release.

As noted above, the Florida Act contains no exceptions to the requirement that the circuit court conduct a limited probable cause hearing in every instance, and this court cannot judicially create any exceptions. Furthermore, under the California Act, a committed person does not affirmatively waive his right to petition for conditional release when he is given the choice of petitioning for conditional release or waiving that right and he fails to select either option. See People v. Cheek, 25 Cal.4th 894, 108 Cal.Rptr.2d 181, 24 P.3d 1204, 1206 (2001). In the present case, Mr. Allen was presented with a waiver of his right to petition for release and he refused to sign the waiver.

Immediate relief is not appropriate in this case. See Jackson v. State, 802 So.2d 1213, 1215-16 (Fla. 2d DCA 2002) (holding that the failure of the circuit court to comply with section 394.918, including the failure of the circuit court to hold the limited probable cause hearing described in section 394.918(3), does not entitle a committed person to immediate release because “the alleged violations of the Act’s notice, examination, and review procedures are not the cause of [the committed person’s] detention”). Accordingly, we deny the petition for writ of habeas corpus. However, we grant the petition for writ of mandamus and direct the circuit court to hold a limited probable cause hearing pursuant to section 394.918(3), with counsel representing Mr. Allen as mandated, unless Mr. Allen has been afforded such a hearing within the last calendar year.

Petition for writ of habeas corpus denied; petition for writ of mandamus granted with directions.

NORTHCUTT and SILBERMAN, JJ., concur.

      . Pursuant to section 394.918(1), a committed person "shall have an examination of his or her mental condition” at least once every year. Because Mr. Allen did not sign the waiver form, we do not address whether the examination requirement may be waived by the committed person.

      . If, pursuant to section 394.919(1), a committed person files a petition for release with the authorization of the Department, the trial court is required to set the case for trial without first conducting a probable cause hearing.


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    David POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4163.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

We affirm the order modifying the terms of Poole’s probation but remand for correction of the order of probation to conform to the trial court’s oral pronouncement that Poole complete the drug treatment program on his first try.

Affirmed and remanded with directions.

NORTHCUTT and VILLANTI, JJ., concur.


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    Ira FERGUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2701.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Ira Ferguson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and WELLS, JJ.
   PER CURIAM.

The defendant, Ira Ferguson, appeals from an order denying his Motion for Return of Property. We reverse and remand for an evidentiary hearing.

The defendant, Ira Ferguson, filed a motion seeking the return of personal property that was seized from him when he was arrested in June 2000. In April 2001, the trial court ordered the State to return the property unless it could demonstrate that the property needs to “be retained for evidentiary value.”

In August 2002, the defendant filed a pro se Motion for Contempt and Sanctions asserting that the State had conceded that the defendant was entitled to the return of the property, but that the property had not been returned. The record does not reflect that the trial court ruled on this motion. However, on September 11, 2002, the trial court entered an order denying the defendant’s Motion for Return of Property finding that the seized property “has considerable evidentiary value in the ongoing investigation and potential prosecution of 2 robberies and a related murder case....” Although, the September 11th order indicates that the matter was heard by the trial court, there is no transcript of the hearing or anything else in the record that indicates what transpired during the hearing.

In response, the State argues that this Court should either affirm the order under review based on the defendant’s failure to provide an adequate record, or remand for an evidentiary hearing to address whether the property needs to be retained by the State for the future prosecution of any other case against the defendant.

The record indicates that when the trial court entered its September 11th order, the defendant was acting pro se. Further, the record does not indicate that the defendant was notified of the hearing or that he was present at the hearing. Therefore, the defendant should not be penalized for the lack of a transcript. Moreover, the parties cannot provide a stipulated statement as provided for in Rule 9.180(f)(4), Florida Rules of Appellate Procedure, because the defendant was not present at the hearing. Finally, because it has been almost two years since the evidentiary hearing took place and almost four years since the property has been seized, it is quite possible that the State may no longer have a need to retain the evidence. Therefore, under the circumstances, we reverse the order under review and remand for an evidentiary hearing.

Reversed and remanded.

      . Rule 9.180(f)(4) provides:

        Stipulated Record. The parties may stipulate to the contents of the record. In such a case the record shall consist of the stipulated statement and the order appealed which the lower tribunal shall certify as the record on appeal.


author: RAMIREZ, J.

text:
    Spencer Lamar LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1326.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.

      Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SHEVIN, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

Spencer Lamar Lee appeals his judgment of conviction and sentence for strong-arm robbery. We reverse because the prosecution improperly bolstered the credibility of a victim through the testimony of a police detective.

A jury convicted Lee of the crime of strong-arm robbery. The trial court sentenced Lee to a term of forty-years imprisonment as a prison release re-offender and an habitual violent felony offender with a thirty-year minimum mandatory sentence. He argues that he is entitled to a new trial because the trial court improperly allowed the police detective to testify about the victim’s credibility and that this error is not harmless beyond a reasonable doubt. We agree with Lee that the introduction of the police detective’s statements warrants a new trial.

This is a case in which the victim’s credibility was at the heart of the prosecution’s case. The victim was the only State witness that identified Lee as the perpetrator. The defense argued at trial that Lee was misidentified. The State presented no evidence to corroborate the identification. The victim testified that she was robbed on August 10, 2001, as she got out her car near her residence. Athough .she was approached from behind, she claims to have seen her assailant, whom she described as a tall and stocky black man. Ater he grabbed her purse, the robber got into a car and drove away, but the victim did not get a tag number. The description of the robber was so vague that the police were unable to prepare a BOLO or flyer on the suspect. On December 6, 2001, almost four months later, Detective Hill, who was assigned to the case, showed the victim a photo line-up. The. victim looked at the photos for 20 minutes before selecting Lee as the robber.

Detective Hill was called to testify at trial. When the prosecution asked the detective if the victim had made “any movements or [had] she point[ed], to any one of the pictures” during the photo lineup, he responded that the victim selected a specific photo, and she “was very positive” about her selection and he thought that “she was a credible witness.” The defense objected to the introduction of this testimony and moved to strike the testimony. The trial court overruled the objection. The defense also moved for a judgment of acquittal and new trial. The trial court denied the defense’s motions.

We find that the police detective’s response served to bolster the victim’s credibility, and the admission of this testimony constituted reversible error. If the trial court had sustained the objection and immediately given a curative instruction, perhaps the damage could have been mitigated, but by overruling the objection, the jury was left with the impression that it could properly take into account the detective’s opinion. In Perez v. State, 595 So.2d 1096, 1097 (Fla. 3d DCA 1992), we stated that errors committed from the improper admission of a police officer’s testimony that can be used to bolster the credibility of a victim’s trial testimony cannot be deemed harmless. See also Rodriguez v. State, 842 So.2d 1053, 1054 (Fla. 3d DCA 2003)(where we stated that “in cases such as this where the case consists of a credibility contest between the victim and the defendant, the error is not harmless.”).

The jury could have concluded that the police detective believed that the victim truthfully identified Lee as the perpetrator. In light of the fact that the prosecution’s case rested entirely on the credibility of the victim, the improper admission of the police detective’s testimony prejudiced Lee and thus cannot be deemed harmless. Justice Pariente, in Rimmer v. State, 825 So.2d 304 (Fla.2002), commented on the fallibility of eyewitness identification and the danger of relying too heavily on eyewitness identification as absolute proof of a defendant’s guilt. She first quoted Justice Brennan, in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), who addressed the very real danger of a mistaken identification arising from eyewitness testimony, by writing: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. ...” Rimmer, 825 So.2d at 336. She further wrote:

Reviewing social science research pertaining to eyewitness identification, Clinical Professor of Law Connie Mayer of Albany Law School has written on the subject of the unreliability of and inherent problems with eyewitness identifications. See Connie Mayer, Due Process Challenges To Eyewitness Identification Based On Pretrial Photographic Arrays, 13 Pace L.Rev. 815 (1994). As Professor Mayer explained in general, there is a high risk of misidentification:
[Wjhile a great deal of credibility is given to eyewitness identification, empirical studies have shown that eyewitness identification can actually be extremely unreliable. Given the weight afforded eyewitness identification, it is not surprising that studies have shown that approximately fifty percent of those wrongly convicted were convicted based on eyewitness identification evidence. This makes mistaken identity the factor most often responsible for wrongful conviction.
What makes eyewitness identification unreliable? When crime victims attempt to recall faces of strangers they have seen for only a brief period of time, many factors affect their ability to accurately remember what they have seen. Factors that may affect reliability of the identification include: lighting conditions; the duration of the event; violence; the age, sex and race of the perpetrator; the length of time between the event and the identification and the acquisition of post-event information that may distort the memory, (citations omitted).

Id. at 337. Justice Pariente continued,

In specifically discussing photographic arrays, Professor Mayer explains:
In addition to these factors, special problems exist with respect to the identification of a person from a photographic array. After a crime has been committed, it is often standard police procedure to construct a photographic array to show a witness. One danger inherent in the reliability of an identification from such an array relates to the expectation on the part of the eyewitness that the suspect is, in fact, in the photographic array. The eyewitness, believing the suspect is present in the array, will often identify the person that looks most like the criminal, rather than choosing no one. The number of photographs in an array and the physical characteristics of the participants are also factors bearing on the reliability of the photographic identification. But in addition, the photograph is merely a two-dimensional depiction of a person. Often a witness cannot discern the height and weight accurately from a photograph, (citations omitted).

Id. at 337-38.

In Rimmer, the Florida Supreme Court all agreed that it had been error to allow a detective to testify in rebuttal about his ability to see without eyeglasses where the defense had argued misidentifieation under the theory that the shooter was not wearing glasses at the time of the offense and the defendant could not see without his glasses. The majority concluded that the error was harmless where two of the three surviving victims identified Rimmer as the shooter. Additionally, when he was arrested, Rimmer had a wallet and guns tying him to the murders and to the storage unit containing the stolen merchandise. By way of contrast, the State in this ease presented absolutely no evidence to tie Lee to the robbery other than the victim’s identification.

The police detective’s inadmissible testimony cannot be justified, as the State suggests, on the basis that the prosecution did not solicit or highlight the police detective’s response. See Bowles v. State, 381 So.2d 326, 328 (Fla. 5th DCA 1980)(stating that “[pjolice officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy. A jury is inclined to give great weight to their opinions as officers of the law... Olsen v. State, 778 So.2d 422, 423 (Fla. 5th DCA 2001)(stating that a police officer’s testimony that comments on a witness’ credibility is especially harmful because of the great weight afforded the testimony of a police officer).

We therefore reverse and remand for a new trial.


text:
    Martin SMITH, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D03-1359.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.

      Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for respondent.
    Before GERSTEN, SHEVIN, and RAMIREZ, JJ.
   ON MOTION FOR REHEARING DENIED

RAMIREZ, J.

We deny the motion for rehearing, rehearing en banc and certification filed by the respondent State of Florida. Nevertheless, we withdraw our January 14, 2004 opinion and substitute the following opinion, which more fully explains our reasons for granting certiorari review.

In this criminal prosecution, the petitioner, Martin Smith, seeks a writ of cer-tiorari to review a discovery order compelling him to furnish the State a copy of two documents — a psychological history report and an addendum to that report — prepared by the defense team and provided to two mental health experts listed as defense witnesses. We quash that discovery order because it departs from the essential requirements of law.

THE FACTS AND PROCEDURE

This controversy began with the State’s motion to compel discovery pursuant to rule 3.220(d)(l)(B)(ii), Florida Rules of Criminal Procedure, under which the defense is obligated to provide the State with “reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.”

When Smith responded that its expert, Dr. Sanford Jacobson, had not prepared any reports, the State obtained an order on March 2, 2001, compelling Smith to provide “all documentation, reports, statements and any other item relied upon by the expert in order to formulate his opinion.” This order was based on the right of an adverse party to inquire into the facts underlying the opinion of an opposing expert witness. See § 90.705, Fla. Stat. (2000). The petitioner sought a writ of certiorari in case no. 3D01-631 which was initially granted but, on rehearing, the petition was denied without opinion. Smith v. State, 823 So.2d 145 (Fla. 3d DCA 2002) (Ramirez, J. dissenting).

On remand, the trial court conducted an in camera inspection of the disputed documents and ruled that some items, such as letters from defense counsel to the expert witnesses were work product and privileged from disclosure to others, while others were held not to be privileged and were ordered disclosed. The only two disputed documents on this second petition for certiorari are: (1) a 22-page psychosocial report, prepared by defense counsel with the assistance of other members of the defense team, that is in narrative form and is based on medical records, witness interviews, and mental health evaluations; and (2) a 2-page addendum to the psychosocial report.

OPINION WORK PRODUCT

The State first disputes the argument that the documents in question' constitute opinion work product which are privileged under rule 3.220(g)(1), Florida Rules of Criminal Procedure. See Smith v. Florida Power & Light Co., 632 So.2d 696, 699 (Fla. 3d DCA 1994) (stating that opinion work product is “absolutely, or nearly absolutely, privileged.”).

The trial court, after conducting an in camera inspection of the documents, found that they contained “no conclusions, strategy or opinions of the attorneys. It is simply a report of various witnesses, who I am assuming would testify in this matter.... It’s a recitation of the defendant’s testimony, statements concerning his own childhood.” The trial court seemed to find persuasive the fact that these statements were simply recorded “verbatim or almost verbatim” “without any real commentary,” such as whether the witness spoke “hesitantly.”

We cannot agree that this psycho-social report and addendum do not constitute opinion work product. Rule 3.220(d)(l)(B)(ii) requires the defendant to disclose any “[r]eports or statements of experts made in connection with the particular ease, including results of physical or mental examinations and of scientific tests, experiments or comparisons.” Clearly the report and addendum prepared by the defense do not fall under this category. On the other hand, rule 3.220(g)(1) provides:

(1) Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports or memo-randa, to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney, or members of their legal staff.

We conclude that the summary and addendum clearly constitute work product. The only issue would be whether they constitute fact or opinion work product. The Florida Supreme Court explained the rationale for the rule and the distinction between the two in Southern Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1384 (Fla.1994), as follows:

The rationale supporting the work product doctrine is that ‘one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.’ Fact work product traditionally protects that information which relates to the case and is gathered in anticipation of litigation. Opinion work product consists primarily of the attorney’s mental impressions, conclusions, opinions, and theories. Whereas fact work product is subject to discovery upon a showing of ‘need’ and ‘undue hardship,’ opinion work product generally remains protected from disclosure.

Id. at 1384 (citations omitted). The State attempted to show need or undue hardship by arguing that “failing to disclose the documents until the time of deposition would attenuate the discovery process and result in an extra expenditure of expert fees.” The trial court never made a finding of need or undue hardship, not surprising considering that, if this were to satisfy the criteria, any case involving an expert would then qualify. Furthermore, the argument assumes that the documents would have to be disclosed at the time of deposition, a premature assumption at this stage in the proceedings. In rejecting the defense argument that the documents contained their conclusions, strategy or opinions, the trial court simply ordered their production without requiring the State to make such a showing of need or undue hardship, apparently based on its conclusion that the documents did not constitute opinion work product.

With all due respect to the trial judge, the conclusion seems inescapable that the 22-page psycho-social report, prepared by defense counsel, and its addendum, constitute classic opinion work product. It is a summary of witness statements, italicizing certain portions, which unavoidably combined a selection process achieved through an interpretative filter that emphasized certain information over other, thus disclosing counsel’s opinions and strategy. We recognized in Smith that “[wjhat constitutes ‘work product’ is incapable of concise definition adequate for all occasions.” Smith, 632 So.2d at 698. See also Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla.1970). But we also stated that “an attorney’s evaluation of the relative importance of evidence falls squarely within the parameters of the privilege.” Smith, 632 So.2d at 698. The act alone of compelling an attorney to disclose a group of documents invariably reveals the counsel’s “assessment of the relative importance of each of those documents, and of their sig-nificanee as a collection.” Id. See also State v. Williams, 678 So.2d 1356, 1358 (Fla. 3d DCA 1996) (“the trial court order requiring that the State disclose to the respondents a list of the documents that it intends to use is contrary to the work-product doctrine because it would serve to highlight the thought processes and legal analysis of the attorneys involved.”).

Without citing any authority, the State argues that not every summary made by an attorney constitutes protected opinion work product. It then tries to distinguish Smith on the basis that there the attorney was required to cull the documents from a possibly infinite number of documents. While this difference may be relevant as to the burden imposed on counsel, we fail to see how a little culling can be less revealing than a lot of culling. Thus, we conclude that the trial court departed from the essential requirements of law when it concluded that the documents did not constitute work product.

WAIVER

The State also argues that the privilege was waived when the documents were disclosed to the defense expert who will be called to testify at trial. Any document, no matter how sacrosanct, would lose its privileged status when it is disclosed-to a testifying expert. Under that rationale, the letters from defense counsel to the experts, which the trial court found were privileged, would also be discoverable, but the State has chosen not to cross-appeal that decision.

To support this novel position, which is totally unprecedented in Florida law, the State relies on section 90.705, Florida Statutes, as follows:

90.705. Disclosure of facts or data underlying expert opinion.
(1) Unless otherwise required by the court, an expert may testify in terms of opinion or inferences and give reasons without prior disclosure of the underlying facts or data. On cross-examination the expert shall be required to specify the facts or data.
(2) Prior to the witness giving the opinion, a party against whom the opinion or inference is offered may conduct a voir dire examination of the witness directed to the underlying facts or data for the witness’s opinion. If the party establishes prima facie evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.

The State argues that because it would be entitled to cross-examine and conduct a voir dire examination, on the-facts underlying the expert’s opinions, and because it has a right to take the expert’s deposition prior to trial, by simply reviewing the documents in question (and assuming they were relied upon), the State should not have to wait until trial, or even until the deposition, but should be given these documents in preparation for the deposition.

The Fourth District case of Gore v. State, 614 So.2d 1111 (Fla. 4th DCA 1992), is indistinguishable from the present petition. In granting certiorari, Judge Farmer wrote a long and detailed analysis of the relevant statutes and rules of procedure to quash an order that compelled disclosure of a 22-page summary of testimony that the defendant gave in a co-defendant’s case, and 5-page summary of events, entitled “David Gore Chronology.” Id. at 1113. The Fourth District specifically rejected the State’s argument, stating that section 90.705 “supplies no foundation if applied literally for pretrial disclosure of the facts on which the expert’s opinion is based. If anything, it delays such a disclosure until the witness is in court and testifying at the trial or proceeding.” Id. at 1115 (emphasis in the original).

The State seeks to distinguish Gore by arguing that the trial court in that case did not conduct an in camera inspection, while the judge in our case did. That is a distinction without a difference because the purpose for the in camera inspection is to determine what status to accord the requested documents, which we have found to constitute opinion work product, just as the court did in Gore.

In Reaves v. State, 639 So.2d 1 (Fla.1994), it was the prosecution that refused to turn over two letters provided to its expert containing a summary of relevant facts. The Florida Supreme Court found “no error in the trial judge’s determination that letters between the prosecutor and an expert witness that contained work product. were privileged and not subject to discovery.” Id. at 6. It would seem that the rule which the State advocates today could have a greater impact on the prosecution’s discovery obligations than defense counsel. If we were to hold that all materials lose their privileged status when disclosed to an expert, we may someday jeopardize sensitive investigative materials, such as the identity of confidential informants.

To counter clear and persuasive Florida precedent vindicating the privileged nature of the documents in question, the State cites to a federal case from the first circuit. In re San Juan Dupont Plaza Hotel Fire Litigation, The Plaintiffs’ Steering Committee, 859 F.2d 1007 (1st Cir.1988). First, the exhibit lists which were ordered disclosed simply accelerated the disclosures which would inevitably take place. Id. at 1017. Second, the court specifically stated that the disclosure was “not remotely analogous to the situation where a party seeks an attorney’s personal notes and memoranda which contain his confidential assessments of the testimony of prospective witnesses.” Id.

In its motion for rehearing, the State argues that, despite the holdings in Gore and Reaves, we should rely on rule 3.220(h)(1) of the Florida Rules of Criminal Procedure, which provides that the procedure for taking the deposition in a criminal proceeding, including the scope of the examination, shall be the same as that provided in the Florida Rules of Civil Procedure. The State, however, cannot cite to any authority as to how this creates the right to discover opinion work product.

Additionally, the State argues on rehearing that we overlooked “authority to the contrary,” to wit, Charles W. Ehrhardt, Florida Evidence, § 705.1, at fn. 4 (2003 ed.), and a law review article, to wit: Charles W. Ehrhardt & Matthew D. Schultz, Pulling Skeletons From the Closet: A Look into the Work-Product Doctrine as Applied to Expert Witnesses, 31 Fla. St. U.L.Rev. 67 (Fall 2003). A careful review of Professor Ehrhardt’s article, however, does not support the State’s argument. Admittedly, the article calls for a change in the law whereby opinion work-product would lose its privileged status once it is disclosed to an expert who will be testifying at trial. It further argues that if the materials are going to be disclosed at trial, they should be made available for deposition, a position which is supported by the recent Florida Supreme Court decision in Northup v. Acken, 865 So.2d 1267 (Fla.2004). Nevertheless, Professor Eh-rhardt concedes that “[t]he result may differ in the criminal context ...” 31 Fla. St. U.L.Rev. at 87. He states that:

even if Reaves and Gore were mistaken in asserting that section 90.705 does not apply to expert depositions in criminal proceedings (as we suggest they were), Rule 3.220(g)(1) would nevertheless preclude discovery of opinion work-product known to or relied upon by an expert witness. The upshot, then, is that fact work-product remains discoverable in criminal proceedings by application of section 90.705, but opinion work-product is inviolate, at least until trial, based upon the protection afforded it under Rule 3.220(g)(1).

Id. at 87-88.

In its Addendum to its motion for rehearing, the State calls our attention to Northup v. Acken, 865 So.2d 1267 (Fla.2004), for the proposition that materials lose their privileged status and are discoverable when they are intended to be used at trial. We have been given no indication, however, that the disputed materials here, the 22-page psycho-social report, and the 2-page addendum, are reasonably expected or intended to be used at trial. If they are, we would of course agree that they are discoverable. We are not persuaded that simply because the State intends to use it in cross-examination under section 90.705 that the report and addendum qualify as “reasonably expected or intended to be used at trial.”

CONCLUSION

We thus conclude that the psychological history report and an addendum to that report prepared by the defense in this case constituted opinion work product. We also hold that the act of disclosing it to an expert witness who would be testifying at trial does not alone waive the work product privilege. For these reasons, we quash the order requiring Smith to disclose these documents to the State.

      . It is not clear from the record why the trial court did not simply order the defense to turn over all the unredacted statements. At that point, the prosecution would have everything the expert saw without the unfair benefit of seeing what the defense deemed to be important. That, however, is not before us and the motion for rehearing, rehearing en banc and certification does not address this point.

      . The state does not dispute this conclusion in its motion for rehearing.

         i briefs of the parties are available online at http://www.law.fsu.edu/li-braiy/flsupc1/795 75/79575 .html.


author: SCHWARTZ, Chief Judge.

text:
    Ervin A. HIGGS, Monroe County Property Appraiser, Appellant, v. Joseph P. KLOCK, Jr., as Personal Representative of the Estate of Richard A. Heyman, Deceased, Appellee.
    No. 3D03-2017.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    John C. Dent, Jr., and Sherri L. Johnson, for appellant.
    Steel Hector & Davis and Joseph P. Klock, Jr., for appellee.
    Before SCHWARTZ, C.J., and SHEVIN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

This case began when an estate which owns Monroe County real property sued the appraiser to reduce its 1999 tax assessment. In due course, the trial court found in its favor on the merits. On rehearing, however, the action was concededly-prop-erly-dismissed for lack of subject matter jurisdiction because the taxpayer did not pay the 2000 and 2001 taxes as required by section 194.171(5), Florida Statutes (2002). See Bystrom v. Diaz, 514 So.2d 1072 (1987). The appraiser then filed a motion to tax costs in his favor as the “party recovering judgment” under section 57.041(1), Florida Statutes (2002) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment....”). The trial judge denied the motion and the appraiser appeals. We reverse on the holding that, as the statute provides, he is entitled to an award of his taxable costs.

As we said in Weitzer Oak Park Estate, Ltd. v. Petto, 573 So.2d 990, 991 (Fla. 3d DCA 1991), under the statute, “every party who recovers a judgment in a legal proceeding is entitled as a matter of right to recover lawful court costs, and a trial judge has no discretion to deny costs to the parties recovering judgment.” Globe Auto Imports, Inc. v. Golden, 567 So.2d 899, 900 (Fla. 2d DCA 1990); Oriental Imports, Inc. v. Alilin, 559 So.2d 442 (Fla. 5th DCA 1990); see also Tacher v. Mathews, 845 So.2d 332, 333-35 (Fla. 3d DCA 2003); Thornburg v. Pursell, 476 So.2d 323, 324 (Fla. 2d DCA 1985); Kendall East Estates, Inc. v. Banks, 386 So.2d 1245 (Fla. 3d DCA 1980). Because there is no question that the defendant appraiser was the successful “party recovering judgment” in the form of a final dismissal with prejudice, the plain terms of the statute require reversal.

The only even arguable position asserted to the contrary is based on the claim that because the appraiser’s costs were expended in defense of the action on the merits, they had nothing to do with the reason he won the case. Thus, it is claimed, the costs served no “useful purpose,” see Southeast Florida Cable, Inc. v. Islandia I Condominium Ass’n, 661 So.2d 91 (Fla. 4th DCA 1995), and should therefore not be taxed. This position, for which we find no authority, see 20 Am.Jur.2d Costs § 13 (1995), is unacceptable. The application of the statute turns not on the ground upon which the favorable judgment is based, but merely upon its existence. The decisions make clear that the ultimate-judgment-getter is entitled to the costs reasonably incurred throughout the litigation, including at those stages in which he may have been less than successful. See Thornburg, 476 So.2d at 323; Hendry Tractor Co. v. Fernandez, 432 So.2d 1315 (Fla.1983); see also Lake Region Paradise Island, Inc. v. Graviss, 323 So.2d 610 (Fla. 2d DCA 1975) (costs not taxable against party causing mistrial; determination of entitlement to costs must await final judgment). As the First District Court of Appeal has pointed out:

Generally speaking, costs represent “a judicial attempt to make the winning party as whole as he was prior to the litigation.” Otis Elevator Co. v. Bryan, 489 So.2d 1189, 1190 (Fla. 1st DCA 1986).

Centennial Mortgage, Inc. v. SG/SC, Ltd., 864 So.2d 1258, 1261 (Fla. 1st DCA 2004). Under the statute and cases, the appraiser was entitled to get back all that he reasonably expended in defense of the case he won.

Accordingly, the order under review is reversed and the cause remanded to grant the motion to tax costs in favor of the appellant.

Reversed.

      . We note that, in certain contexts, there may or may not, see Spring Lake Improvement District v. Tyrrell, 868 So.2d 656 (Fla. 2d DCA 2004), be a distinction between the objectively determinable expression, "party recovering judgment,” under section 57.041, Florida Statutes (2002), and the much more legally slippery term, "prevailing party,” which is employed in many attorney's fees and costs provisions. See and compare Payne v. Cudjoe Gardens Property Owners Ass’n, 875 So.2d 669, 2004 WL 957247 (Fla. 3d DCA 2004); Padow v. Knollwood Club Ass’n, 839 So.2d 744 (Fla. 4th DCA 2003); Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985), review denied, 486 So.2d 597 (Fla.1986); 51 Island Way Condominium Ass’n v. Williams, 458 So.2d 364 (Fla. 2d DCA 1984), pet. for review denied, 476 So.2d 676 (Fla.1985).

      . The answer brief also makes the quite untenable assertion that the appraiser should have discovered the fact itself that the owner had not paid the taxes earlier and was therefore "estopped” from claiming costs thereafter. The meritlessness of this claim is self-evident.

      . Centennial Mortgage, Inc. v. SG/SC, Ltd., 864 So.2d 1258 (Fla. 1st DCA 2004) holds that an ultimately successful party may not recover the appellate costs it was required to pay when its opponent was successful on an earlier appeal. The case — with which we do not necessarily agree even on its own facts — is clearly distinguishable because of what the court thought was the effect of Florida Rule of Appellate Procedure 9.400(a), which is, of course, not involved in this case (As an aside, we have difficulty in understanding why that rule, which requires the payment of costs to a successful party on appeal, should preclude the return of those sums when the other side ultimately prevails.)


text:
    GROUPER FINANCIAL, INC., Appellant, v. WORLD GYM, NMB, INC., Appellee.
    No. 3D03-2025.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Silver, Garvett & Henkel; Hersch & Talisman and Patrice A. Talisman, Miami, for appellant.
    Zarco Einhorn & Salkowski and Alejandro Brito, Miami, for appellee.
    Before SCHWARTZ, C.J., and LEVY, J., and COBB, WARREN, Senior Judge.
   SCHWARTZ, Chief Judge.

Because the appellee’s failure to make a timely payment of rent constituted a clear and material breach of the parties’ settlement agreement, the order under review denying the application for a final judgment for removal of tenant and for possession as the agreement also provided, is reversed and the cause remanded with instructions to grant the appellant that relief. See Sublime, Inc. v. Boardman’s, Inc., 849 So.2d 470 (Fla. 4th DCA 2003); Treasure Coast, Inc. v. Ludlum Construction Co., 760 So.2d 232 (Fla. 4th DCA 2000).

Reversed and remanded.

      . The agreement specified that payment was to be made "by cashier’s check or wire transfer.” Instead, the appellee tenant tendered a simple corporate check which twice bounced.


text:
    Brent D. KLEIN and Laura M. Klein, his wife, Appellants, v. Joel W. ROBBINS, as Miami-Dade County Property Appraiser, Appellee.
    No. 3D03-1571.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.

      Spencer & Klein and Peter H. Leavy, for appellants.
    Robert A. Ginsburg, Dade County Attorney, and Thomas W. Logue, Assistant County Attorney, for appellee.
    Before COPE, LEVY, and FLETCHER, JJ.
   PER CURIAM.

We affirm the Order granting Final Summary Judgment in favor of the property appraiser on the authority of Sunset Harbour North Condominium Ass’n v. Robbins, 837 So.2d 1181 (Fla. 3d DCA) appeal pending, No. 03-520 (Fla.2003).