text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Tollie REDMON II).
    CR-03-0104.
    Court of Criminal Appeals of Alabama.
    Jan. 23, 2004.

      Eleanor I. Brooks, district atty., and William I. Powell, asst, district atty., for petitioner.
    Kenneth H. Nixon, Jr., Montgomery; and Stacy Lott Reed, Montgomery, for respondent.
   PER CURIAM.

The district attorney for the Fifteenth Judicial District filed this petition for a writ of mandamus directing Judge Eugene W. Reese to vacate his order dismissing the State’s motion to assess additional restitution against Tollie Redmon II. On August 13, 2003, Redmon pleaded guilty to two counts of assault in the second degree in exchange for the State’s reducing the original charges and recommending a 10-year suspended sentence. Because at the sentencing hearing the three victims were unable to furnish documentation to support the award of restitution for their medical expenses, Judge Reese postponed the restitution hearing. On August 21, 2003, Judge Reese held a restitution hearing and assessed restitution for two of the victims in the amount of $46,263; however, he postponed awarding restitution to the third victim until that victim had undergone a surgical procedure that was scheduled for the following week. On September 25, 2003, the State moved to amend the restitution order to include restitution for the third victim in the amount of $12,402.97. Judge Reese held a hearing on the motion and held that pursuant to this Court’s recent decision in State v. A.J., 877 So.2d 635 (Ala.Crim.App.2003), he was without jurisdiction to modify the restitution order because more than 30 days had elapsed since Redmon had been sentenced. This petition followed.

The State argues that our holding in A.J. has no application to the award of restitution by a circuit court. Redmon argues that A.J. prevents Judge Reese from amending the restitution order more than 30 days after Redmon was sentenced.

In A.J., we held that a circuit court was without jurisdiction to grant youthful offender treatment once a defendant had completed the incarceration portion of his split sentence and had begun to serve his term of probation. We did not address the question whether a circuit court may assess restitution more than 30 days after the date of sentencing. That question was not presented to this Court in A.J. Indeed, that question was answered by the Alabama Supreme Court in Hill v. Bradford, 565 So.2d 208, 210 (Ala.1990), in which Justice Shores, writing for a unanimous court, stated:

“We do not agree that the trial court lost jurisdiction to enter this restitution judgment 30 days after Hill was sentenced to a term of imprisonment, because the restitution statute makes it clear that restitution hearings are to be held as a matter of course and that restitution may be ordered in addition to any other sentence imposed and does not require that a restitution hearing be held within 30 days of the imposition of a sentence of imprisonment or other criminal sanctions. Under the facts of this case, the hearing was timely and did not violate the United States Constitution.”

Restitution was assessed in Hill v. Bradford almost 15 months after the defendant had been sentenced.

A trial court’s authority to assess restitution against a defendant who has been convicted of a criminal offense is specifically provided for in § 15-18-65 et seq., Ala.Code 1975, entitled “Restitution to Victims of Crimes.” Section § 15-18-67, Ala.Code 1975, states:

“When a defendant is convicted of a criminal activity or conduct which has resulted in pecuniary damages or loss to a victim, the court shall hold a hearing to determine the amount or type of restitution due the victim or victims of such defendant’s criminal acts. Such restitution hearings shall be held as a matter of course and in addition to any other sentence which it may impose, the court shall order that the defendant make restitution or otherwise compensate such victim for any pecuniary damages. The defendant, the victim or victims, or their representatives or the administrator of any victim’s estate as well as the district attorney shall have the right to be present and be heard upon the issue of restitution at any such hearings.”

(Emphasis added.) This statute provides that a restitution hearing “shall” be held as a “matter.of course.” “The word ‘shall,’ when used in a statute, is mandatory.” Ex parte Nixon, 729 So.2d 277, 278 (Ala.1998).

“ ‘As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary significance, the term ‘shall’ is a word of command, and one which has always [been given] or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage “must” and is inconsistent with a concept of discretion.’ ”

Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998), quoting Black’s Law Dictionary 1375 (6th ed.1991). The term “matter of course” is defined in Black’s Law Dictionary 993 (7th ed.1999), as “something done as a part of a routine process or procedure.” These two terms as used in § 15-18-67 support the construction given that statute by the Alabama Supreme Court in Hill v. Bradford.

A trial court retains jurisdiction to hold a restitution hearing more than 80 days after the date of sentencing. Here, Judge Reese made the following entry on the case action summary sheet on August 21, 2003:

“With defendant having no objection restitution ordered for Kendall Powell in amount of $45,263, restitution ordered for Kevin Friendly in amount of $1,000 with Court reserving jurisdiction to set additional restitution if there are additional medical bills. Further, the court orders restitution for Rufus Boone with jurisdiction reserved to set amount (he is scheduled for surgery next week.) District Attorney to submit restitution order [sic] when all amounts are ascertained.”

On September 25, 2003, the State moved to amend the restitution order to assess restitution to the third victim, who had recently undergone surgery. Clearly, Judge Reese’s August 21, 2003, order was not final — -it failed to address the matter of restitution for one of Redmon’s three victims. Because this ruling was not final, it was capable of being amended to make it complete, final, and thus reviewable by a higher court. Moreover, as evidenced by the wording of § 15-18-67, Ala.Code 1975, the award of restitution is mandatory. As this Court stated in Roberts v. State, 863 So.2d 1149, 1155 (Ala.Crim.App.2002):

“[W]e conclude that restitution is not a claim that belongs to the victim; it is an important measure that the circuit court is statutorily obligated to employ as part of criminal sentencing- — a measure that has both salutary remedial and rehabilitative characteristics. Restitution is a part of the criminal sentence rather than merely a debt between the defendant and the victim.”

Our holding here is consistent with the intent of the Legislature when it enacted the Restitution to Victims of Crimes Act. As stated in § 15-18-65, Ala.Code 1975, the intent of the Legislature was to provide that all defendants “be required to fully compensate all victims of such [criminal] conduct or activity for any pecuniary loss, damage, or injury as a direct or indirect result thereof.” Clearly,, the Legislature intended to fully compensate all victims.

Before a writ of mandamus may issue, a petitioner must establish (1) a clear legal right in the petitioner to the relief sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the reviewing court. Ex parte Mardis, 628 So.2d 605, 606 (Ala.1993). The State has met its burden.

Judge Reese erroneously held that he was without jurisdiction to amend the restitution order to address the matter of restitution for the third victim, which he had not addressed in his original restitution order.

For the foregoing reasons, this petition is due to be, and is hereby, granted.

PETITION GRANTED; WRIT ISSUED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ„ concur.

      . Although Redmon pleaded guilty to two counts of assault, he agreed to pay restitution to his three victims in exchange for being permitted to plead to the reduced charges.

      . Redmon had shot the third victim in the abdomen. As a result of his injuries, part of the victim's intestines had been removed and a colostomy bag attached; it appears that he was scheduled to have the colostomy bag removed at the time that the restitution hearing was held.

      . Medical expenses are considered pecuniary damages and are recoverable as part of restitution. Pecuniary damages are defined in § 15-18-66(2), Ala.Code 1975, as follows:
      “All special damages which a person shall recover against the defendant in a civil action arising out of the facts or events constituting the defendant’s criminal activities; the term shall include, but not be limited to the money or other equivalent of property taken, broken, destroyed, or otherwise used or harmed and losses such as travel, medical, dental or burial expenses and wages including but not limited to wages lost as a result of court appearances.’’

      . However, we do not address the question whether a trial judge has the authority to award additional restitution for each victim after he has assessed restitution for all victims. Once a restitution hearing is held and a trial court has issued a restitution order it is uncertain whether that order can be modified more than 30 days after the original order was entered. ”[I]t is ... clear that the Legislature intended that restitution remain an in-tegrai part of traditional criminal sentencing.” Roberts v. State, 863 So.2d 1149, 1153 (Ala.Crim.App.2002). Well-established law holds that a trial court retains jurisdiction to modify a sentence for 30 days after the sentence is entered. See Jolly v. State, 689 So.2d 986 (Ala.Crim.App.1996), and Rule 24.4, Ala.R.Crim.P., and Rule 59, Ala.R.Civ.P.
      Whether a trial court can award more restitution after a victim has incurred additional medical expenses is not addressed by the "Restitution to Victims of Crimes” Act. At least one state has a statutory provision that specifically vests jurisdiction in a trial court "for purposes of imposing or modifying restitution until such time as the losses may be determined.” Cal.Penal Code § 1202.46 (West.1999).

      .“An appeal will not lie from an order or judgment which is not final.” Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Randy LIVINGSTON. (In re State of Alabama v. Randy Livingston).
    CR-03-0312.
    Court of Criminal Appeals of Alabama.
    Jan. 23, 2004.

      Randy Livingston, pro se.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Randy Livingston, is currently incarcerated at Bibb Correctional Facility in Bibb County. He filed this petition for a writ of mandamus directing Montgomery County Circuit Court Judge Tracy S. McCooey to transfer his petition for a writ of habeas corpus back to Bibb County.

In May 2003, Livingston filed a petition styled a “Petition for a Writ of Habeas Corpus” in the Bibb Circuit Court. He alleged that as a result of a prison disciplinary action his good-time-earning status was changed and his end-of-sentence (“EOS”) date was increased by over seven years. The Department of Corrections (“the DOC”) filed a motion to transfer the petition to the Montgomery Circuit Court — the county where the DOC maintains its offices. Bibb Circuit Court Judge Marvin Wiggins granted the motion and transferred the petition to the Montgomery Circuit Court. Livingston filed a motion in the Montgomery Circuit Court to transfer the petition back to the Bibb Circuit Court. That motion was not ruled on. It appears that approximately two months after Livingston filed the motion Judge McCooey issued an order setting a briefing schedule on the merits of the underlying habeas corpus petition. This petition for a writ of mandamus followed.

Livingston makes the following argument in this mandamus petition for the transfer of the habeas corpus petition back to Bibb County:

“In the habeas petition Livingston alleged that he had been deprived of earned good time credits in a prison disciplinary hearing without being provided due process of law as required pursuant to Administrative Regulation 403 and the Supreme Court’s holding in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Livingston’s claim was that because of the finding of guilty in the prison disciplinary hearing, his initial EOS [end of sentence] release date had been increased by 7 years and 8 months.”

(Livingston’s mandamus petition, p. 2.)

The State argues that the holding in Ex 'parte Boykins, 862 So.2d 587 (Ala.2002), specifically provides that when a petitioner is challenging the actions of the DOC the petitioner must file a petition for a writ of certiorari in the Montgomery Circuit Court — the county where DOC maintains its offices. The Alabama Supreme Court in Ex parte Boykins held that Boykins’s petition challenging the DOC’s denial of his request for incentive good time was improperly treated as a petition for a writ of habeas corpus. It held that the proper procedure to challenge Boykins’s DOC classification was for Boykin to file a petition for a writ of certiorari in the Montgomery Circuit Court seeking a review of the DOC’s action. However, the Supreme Court noted that Boykins’s petition had been incorrectly styled as a petition for a writ of habeas corpus:

“In this case, Boykins is not challenging the duration of his sentence. Neither is he asserting that he is unlawfully imprisoned because he has completed all of the time he was sentenced to serve. The facts in this case do not raise the question whether a sentence has been correctly calculated.... Rather, in this case, Boykins is challenging the propriety of the DOC’s ruling on his request for IGT. We agree with the determination of the Court of Criminal Appeals, relying on Ala.Code 1975, § 14-9-41, Coslett v. State, 697 So.2d 61 (Ala.Crim.App.1997), Parker v. State, 648 So.2d 653 (Ala.Crim.App.1994), and Gullett v. State, 613 So.2d 400 (Ala.Crim.App.1992), that Boykins does not have a liberty interest in the DOC’s ruling on his request to qualify for IGT. Boykins is not asserting that the DOC deprived him of IGT he had previously earned, as to which he would have a liberty interest. Just as a writ of habeas corpus has no application to a sentence a prisoner has not begun to serve, Heflin [v. United States, 358 U.S. 415 (1959)], neither does the writ have application to IGT Boykins has not begun to earn.”

862 So.2d at 592.

The petition Livingston filed in the Bibb Circuit Court was an example of an action that the Supreme Court stated in Boykins was the proper subject of a petition for a writ of habeas corpus. Livingston was disciplined in prison, and as a result of the disciplinary action his good-time-earning status was changed and his EOS date has been increased by over seven years. He alleges that he was denied due process of law in that prison disciplinary action. Livingston’s petition should be addressed by the Bibb Circuit Court — the circuit court closest to his place of incarceration. See Bryant v. State, 884 So.2d 929 (Ala.Crim.App.2003). The Montgomery Circuit Court should not address a habeas corpus petition filed by a state prisoner incarcerated in Bibb County. Section 15-21-6(b), Ala.Code 1975, states:

“(b) When the person is confined in the penitentiary or under a sentence, judgment or order of the supreme court or the circuit court, other than an indictment for felony, the petition must be addressed to the nearest circuit court judge.”

According to § 15-21-6, Livingston’s petition should be transferred to the Circuit Court for Bibb County — the county where he is incarcerated.

For the foregoing reasons, this petition is due to be, and is hereby, granted. Judge McCooey is directed to transfer Livingston’s habeas corpus petition to the Circuit Court of Bibb County.

PETITION GRANTED; WRIT ISSUED.

McMILLAN, p.j., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.


text:
    AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.160.
    No. SC03-2169.
    Supreme Court of Florida.
    Oct. 7, 2004.
    Stanford R. Solomon, Chair, Florida Rules of Judicial Administration Committee of the Solomon Tropp Law Group, P.A., Tampa, Florida and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
    Montgomery Blair Sibley, Pro se, Rock-ville, MD, Responding with comments.
   PER CURIAM.

The Rules of Judicial Administration Committee (Committee) has filed an out-of-cycle report proposing amendments to Florida Rule of Judicial Administration 2.160, Disqualification of Trial Judges. The Committee proposes the amendments in response to the Court’s request for a proposed amendment to rule 2.160(f) consistent with the Court’s holding in Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299, 303 (Fla.2003), that a motion for judicial disqualification “must be ruled on within thirty days following its presentation to the court.” We have jurisdiction. See art. V, 2(a), Fla. Const.; Fla. Rule Jud. Admin. 2.130(f).

We adopt the Committee’s proposed substantive and technical amendments. The technical changes clarify the rule and improve readability. The substantive changes include amendments to subdivisions (c)(3) and (e), and a new subdivision CD-

The amendment to subdivision (c)(3) requires the movant to “serve” a copy of the motion on the subject judge rather than to “send” the judge a copy of the motion, as the rule currently provides. The amendment to subdivision (e) clarifies that a motion for disqualification must be promptly reduced to writing and promptly filed. The word “may” in the last sentence of subdivision (e) is changed to “shall” to provide “a motion made during hearing or trial shall be ruled on immediately.” According to the Committee, this proposed change is intended to emphasize the need for an immediate ruling.

In response to Tableau Fine Art Group, new subdivision (j) provides that a trial judge “shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (e).” The new subdivision also provides that if the trial judge does not rule on the motion to disqualify within 30 days, “the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.”

Accordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective January 1, 2005, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 2.160. DISQUALIFICATION OF TRIAL JUDGES

(a) Application. This rule applies only to county and circuit judges in all matters in all divisions of court.

(b) Parties. Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.

(c) Motion. A motion to disqualify shall:

(1) be in writing and:]

(2) specifically allege specifically the facts and reasons relied on to show upon which the movant relies as the grounds for disqualification; and

(3) shall be sworn to by the party by signing the motion under oath or by a separate affidavit.

The attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith. In addition to filing with the clerk, the movant shall immediately send serve a copy of the motion to on the subject judge as set forth in Florida Rule of Civil Procedure 1,080.

(d) Grounds. A motion to disqualify shall show:

(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or

(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

(e) Time. A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c)7 and promptly filed. A motion made during hearing or .trial may shall be ruled on immediately.

(f) Determination — Initial Motion. The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

(g) Determination — Successive Motions. If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (d)(1), a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may pass rule on the truth of the facts alleged in support of the motion.

(h) Prior Rulings. Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.

(i) Judge’s Initiative. Nothing in this rule limits the judge’s authority to enter an order of disqualification on the judge’s own initiative.

(j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.


author: COBB, Senior Judge.

text:
    John W. SULLIVAN, D.C., and Florida Chiropractic Physicians’ Association, Inc., Appellants, v. DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE, Appellee.
    No. 3D03-2932.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Rehearing and Rehearing En Banc Denied Nov. 17, 2004.
    Neil F. Garfield (Plantation), for petitioners.
    Donna Erlick (Tallahassee), for respondent Board of Chiropractic Medicine; Robert P. Daniti (Tallahassee), for respondent Department of Health.
    Before SCHWARTZ, C.J., and LEVY, J„ and COBB, WARREN H„ Senior Judge.
   COBB, Senior Judge.

The issue posed by this appeal, which we consider de novo, is whether the Florida Legislature, while statutorily authorizing chiropractors in this state to administer vitamins and nutrients to their patients orally, has also authorized them to do so by injection'.

The Department of Health, Board of Chiropractic Medicine (“the Board”), is the state agency responsible for the licensure and regulation of chiropractic medicine. John W. Sullivan, D.C., and the Florida Chiropractic Physicians Association, Inc., (“petitioners”) filed a “Petition for Declaratory, Injunctive and Supplemental Relief’ at the Division of Administrative Hearings. The petition challenged Rule 64B2-17.0025(4), Florida Administrative Code, as an invalid exercise of delegated legislative authority by the Board. Rule 64B2-17.0025(4) provides:

All chiropractic physicians are explicitly prohibited by Chapter 460.403, Florida Statutes, from prescribing or administering to any person any legend drug. A legend drug is defined as a drug required by federal or state law to be dispensed only by prescription. For the purpose of this rule, any form of injecta-ble substance is beyond the scope of practice for chiropractors.

Petitioners claim that the statutes from which this rule was derived cannot be read to prohibit chiropractors from injecting vitamins and nutrients into patients. Rule 64B2-17.0025(4) was issued in 1990 and was essentially the Board’s interpretation of legislative changes made in 1986. Some thirty years earlier, in 1957, the Florida Legislature amended section 460.11(2)(b) to provide:

Chiropractic physicians may adjust, manipulate, or treat the human body by manual, mechanical, electrical or natural methods, or by the use of physical means, physiotherapy (including light, heat, water or exercise) or by the oral administration of foods and food concentrates, food extracts, and may apply first aid and hygiene, but chiropractic physicians are expressly prohibited from prescribing or administrating to any person any medicine or drug .... (Emphasis added).

In 1979, that section was renumbered section 460.403. In 1986, section 460.403(3)(c) was amended to provide:

Chiropractic physicians may adjust, manipulate, or treat the human body by manual, mechanical, electrical, or natural methods; by the use of physical means or physiotherapy, including light, heat, water, or exercise; by the use of acupuncture; or by the administration of foods, food concentrates, food extracts, and proprietary drugs and may apply first aid and hygiene, but chiropractic physicians are expressly prohibited from prescribing or administering to any person any legend drug ....

(Emphasis added).

In a detailed Final Order the Administrative Law Judge (“ALJ”) found Rule 64B-17.0025(4) to be a valid exercise of delegated legislative authority by the Board.

The appellate argument of the petitioners is, quite simply, that the Board’s 1990 administrative rule reinstating an oral restriction that had been removed by the legislature in 1986 constitutes an invalid exercise of delegated legislative authority. The petitioners contend the ALJ erred by inferring that the legend drug prohibition in section 460.403(3)(c) prohibits injections when the legislature specifically granted the authority to chiropractors to administer “foods, food concentrates and food extracts” (generally referred to in this cause by the parties and the ALJ as vitamins and nutrients).

The response of the Board is that section 460.403 expressly prohibits chiropractic physicians from prescribing or administering to any person any “legend drug,” that legend drugs are synonymous with prescription drugs, that both Florida and federal law consider any injected substance (except for insulin) to be a prescription drug, and that the ALJ was correct in upholding the prohibition in Rule 64B2-17.0025(4) against injections.

The ALJ, following extensive testimony and evidence, and the consideration of legal argument, made detailed findings of fact, inter alia:

63. Petitioners challenge the definition of “legend drug” provided in the rule. They must concede that Section 460.403(9) prohibits chiropractic physicians from “prescribing or administering to any person any legend drug,” except for certain named items not relevant to this case. However, petitioners contend that the statute does not define “legend drug,” and argüe that the definition set forth in the rule is in derogation of the statute. This argument is premised on the claim that since 1986, the statute has allowed chiropractic physicians to administer vitamins' and nutrients via injection but that the rule impermissibly prohibits such administration.
64. Through testimony, petitioners attempted to create the impression that the term “legend drug” is something of a mystery, a “slang term” with a murky past and no precise meaning that is here employed by the Board to circumvent the intent of the statute.
65. In response, the Board noted two definitions of the term found in the Florida Statutes. Chapter 465 regulates the practice of pharmacy. Section 465.003(8) provides:
“Medicinal drugs” or “drugs” means those substances or preparations commonly known as “prescription” or “legend” drugs which are required by federal or state law to be dispensed only on a prescription, but shall not include patents or proprietary preparations as hereafter defined.
66. Chapter 499 is the “Florida Drug and Cosmetic Act.” Section 499.003 sets forth the definitions of terms employed in the Florida Drug Cosmetic Act, and includes:
“Legend drug,” “prescription drug,” or “medicinal drug” means any drug, including but not limited to, finished dosage forms, or active ingredients subject to, defined by, or described by s. 503(b) of the Federal Food, Drug, and Cosmetic Act or s. 465.003(8), s.499.007(12), or s. 499.0122(l)(b) or (c).
68. 21 U.S.C. Section 353(b) fully supports the testimony ... as to the FDA’s methods of defining items as “drugs,” not merely based on their substance, but on their methods of use and/or collateral measures necessary to their use.
71. The term “legend drug” also appears in the practice act for physicians, which contains the following, in Section 458.331:
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician’s professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician’s professional practice, without regard to his or her intent.
72. Virtually identical grounds for denial of a license or disciplinary action in relation to “legend drugs” are found in the statutes governing osteopaths, podiatrists, naturopaths, pharmacists, dentists, and veterinarians. See respectively Sections 459.015(l)(t), 461.013(l)(o), 462.14(l)(q), 465.016(1)6), 466.028(l)(p), and 474.214(l)(ff). None of these disciplinary statutes sets forth a separate definition of the term “legend drug.”
73. The fact that Section 460.403(9) lacks a separate definition for the term “legend drug” does not empower the Board to ignore the definitions set forth in other sections of the Florida Statutes. At the time the 1986 legislation was passed, the term “legend drug” was employed in Chapter 465 and in the various professional licensure statutes cited above and was explicitly defined in Chapter 499. The Legislature must be presumed to have been aware of these uses and definitions when it employed the term “legend drug” in Chapter 86-285, Laws of Florida, and to have intended the Board to make reference to them in implementing the legislation.
74. To adopt petitioners’ view of the term, the Board would have to ignore the multifarious provisions of the Florida Statutes defining and using the term “legend drug” and further ignore the federal statutes and the authoritative pronouncements of the FDA as to the classification of injectable vitamins and nutrients as legend drugs. The Board’s imprimatur would place chiropractic physicians in jeopardy of prosecution for possessing and dispensing prescription drugs without statutory authority to do so.
75. The mere deletion of the word “oral” from the statute in the 1986 legislation cannot be considered in isolation. The same 1986 legislation changed the items that chiropractic physicians were prohibited from prescribing or administering from “any medicine or drug” to “any legend drug.” In Chapter 96-296, Section 1, Laws of Florida, the Legislature enacted specific exceptions to the legend drug prohibition, relating to medical oxygen and certain topical anesthetics. The evidence presented at the hearing overwhelmingly demonstrated that injectable vitamins are legend drugs and are not listed in the exceptions to the legend drug prohibition.
76.Section 460.403(9), considered in pari materia with the sections of the Florida Statutes that reference its meaning and the meaning of related items in conjunction with federal law, clearly prohibits chiropractic physicians from administering injectable vitamins and nutrients to their patients. The challenged rule merely makes explicit the prohibition that the statute implicitly states.

We agree with the factual findings and with the legal conclusion of the ALJ that the Board’s definition of “legend drug” is a permissible interpretation of the statute. The rule at issue is neither arbitrary nor capricious, and was supported at the administrative hearing by competent, substantial evidence. See De Groot v. Sheffield, 95 So.2d 912 (Fla.1957). The petitioners below failed to meet their burden of proof and, as observed by the ALJ, their remedy lies with the Florida Legislature, which may or may not see fit to expressly expand the scope of practice for chiropractic physicians to include injections.

Affirmed.


text:
    Tomas A. PRIETO and Marta E. Prieto, Appellants, v. ARI ROOFING CONTRACTORS, INC., a Florida Corporation, Appellee.
    No. 3D02-2392.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Rehearing Denied Nov. 17, 2004.

      Tomas A. Prieto, in proper person.
    Bradshaw Lotspeich, Miami Beach, for appellee.
    Before GERSTEN, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    Claudia LASKOWITZ, Appellant, v. Steven SHIVER, etc., Appellee.
    No. 3D03-3192.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Rehearing and Rehearing En Banc Denied Nov. 10, 2004.
    Gary B. Goldman, North Miami Beach, for appellant.
    Robert A. Ginsburg, Miami-Dade County Attorney, and James K. Kracht, Assistant County Attorney, for appellee Shiver
    Ronald S. Lowy, Miami Beach, for ap-pellees/intervenors.
    Before SCHWARTZ, C.J., and SHEVIN, J., and DAUKSCH, JAMES C., JR., Senior Judge.
   PER CURIAM.

This is an appeal from a Final Summary Judgment denying a Petition for Writ of Mandamus seeking to compel the County Manager to validate eighty-eight petitions filed for the establishment of a taxing district. We reverse.

Claudia Laskowitz petitioned for the establishment of a Sky Lake Security Guard Special Taxing District. Chapter 18 of the Miami-Dade County Code, which governs the creation and establishment of special taxing districts, provides:

Sec. 18-3(a). Petition. There shall be filed with the Clerk of the Board a petition requesting the creation and establishment of a special taxing district under the provisions of this article, signed by the County Manager or by fifty (50) percentum of the resident owners of property embraced within the proposed district.

Because the petition submitted by Las-kowitz contained the signatures of the requisite 50% of the resident property owners, the County should have validated the petitions so that the next phase of the process for establishing a special taxing district could begin. That eighty-eight of the resident property owners later signed an additional petition against the establishment of the special taxing district is of no effect, as the Miami-Dade Code is only concerned with petitions signed for the establishment of the district.

Accordingly, the Final Summary Judgment is reversed and this matter remanded for the entry of judgment for Laskow-itz.

Reversed and remanded.


author: FLETCHER, Judge.

text:
    Luis Anibal KELLY d/b/a Brazos Honduras, Appellant, v. Oscar G. VICTORIA, Individually and as the last officer and director of Victoria Equipment and Parts, Inc., a dissolved Florida corporation, Appellee.
    No. 3D03-2524.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.
    Rehearing Denied Nov. 10, 2004.
    Louis C. Arslanian (FhLauderdale), for appellant.
    Millie Laguna, for appellee.
    Before LEVY, GERSTEN, and FLETCHER, JJ.
   FLETCHER, Judge.

Luis Anibal Kelly d/b/a Brazos Honduras appeals from a final order of the trial court dismissing his lawsuit for lack of prosecution. We affirm.

Kelly contends that the court, in applying Florida Rule of Civil Procedure 1.420(e) , should utilize a “lenient standard against dismissal” to allow adjudication on the merits if the limitation period for refiling has run. Kelly does not cite to any relevant case law to support this proposition. The trial court rejected Kelly’s contention. We see no reason to effectively modify the rule — even if we could do so. (Which we can’t.) Failure to prosecute is failure to prosecute notwithstanding the status of the case vis-a-vis the applicable limitations period.

Affirmed.

      . “All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute."


text:
    George Cara WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2454.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Rehearing and Rehearing En Banc Denied Nov. 17, 2004.
    Bennett H. Brumer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda Katz and Roberta Mandel, Assistant Attorneys General, for appellee.

      Before GREEN, RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Johnekins v. State, 823 So.2d 253 (Fla. 3d DCA 2002).


author: MAY, J.

text:
    Tom HILL, Appellant, v. PALM BEACH POLO AND COUNTRY CLUB PROPERTY OWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D03-2843.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.
    Rehearing Denied Nov. 18, 2004.
    Thomas W. Hill, Jr., West Palm Beach, for appellant.
    Thomas J. Yeager of Nason, Yeager, Gerson, White & Lioce, P.A., West Palm Beach, for appellee.
   MAY, J.

A property owner appeals a final summary judgment for the property owner’s association in .-a suit to recover litigation expenses pursuant to the association bylaws. He argues the trial court erred in concluding that a prior decision in a related case controlled the outcome of this case and that he lacked standing to seek indemnity as a director, pursuant to chapter. 617, Florida Statutes (2000). We affirm.

The property owner filed a Third Amended Complaint against the developer and the property owner’s association in 1996, seeking equitable and legal relief. After numerous appeals, one count of the complaint remained viable.

The property owner then filed a declaratory action against Federal Insurance Company, the association’s insurer, to determine whether his litigation expenses “were a covered loss” under the policy. After a two-day trial, the court determined the property owner had acted “in his capacity as an individual and member owner,” not as a director, in the underlying litigation. As a result, he was not entitled to coverage under the policy. We affirmed that judgment. Hill v. Fed. Ins.Co., 833 So.2d 147 (Fla. 4th DCA 2002).

In the present case, the property owner sought to recover his litigation expenses, this time pursuant to the association’s bylaws. The bylaws provide:

Every Director and every officer of the Association shall be indemnified by the Association against any and all expenses and liabilities, including counsel fees, reasonably incurred by or imposed upon him/her in connection with any proceeding or any settlement of any proceeding to which he/she may be a party or in which he/she may become involved by reason of his/her being or having been a Director or officer at the time such expenses are incurred. ...

The association argued the trial court’s finding in Federal Insurance that the property owner acted in his individual rather than his director capacity collaterally estopped him from relitigating the issue in the present case. The court held it would be illogical and inconsistent to now decide the property owner acted in his capacity as a director when the court previously decided he acted as property owner and member. Therefore, the court granted the association’s motion for summary judgment.

Both sides argue there are no genuine issues of fact and we agree. Our review is therefore limited to whether the court erred in granting summary judgment as a matter of law.

The doctrine of collateral estop-pel resolves the legal issue. Under that doctrine, a party is estopped from relit-igating an issue he has previously had a full opportunity to litigate. S.E. Fid. Insurance Co. v. Rice, 515 So.2d 240 (Fla. 4th DCA 1987).

In cases involving the relationship of indemnitor and indemnitee, liability of more than one party is dependent upon identical issues. In such situations, when the complaining party has a full opportunity to litigate those issues against one of the parties, and has obtained a favorable judgment, he is not permitted to relitigate the same issues in a new action against the other party. He has had his day in court on the issues, and against the party of his choosing who was closely related to the other party. Under the doctrine of collateral estoppel, he is precluded from relitigating the same issues.

Billman v. Nova Prods., Inc., 328 So.2d 244, 246 (Fla. 1st DCA 1976).

We acknowledge that the bylaws are a different document than the insurance policy reviewed in Federal Insurance. However, the dispositive issue, the capacity in which the property owner acted in the underlying litigation, is the same. Here, the trial court determined in Federal Insurance that the property owner had initiated the underlying litigation as an owner/member, not as a director of the association. The property owner had a full and fair opportunity to litigate that factual issue, he lost, and this court affirmed. Federal Insurance, 833 So.2d at 147. He is therefore precluded from relit-igating the same issue in this case.

The trial court correctly entered summary judgment for the association. AFFIRMED.

POLEN, J., and BERNSTEIN, SCOTT, Associate Judge, concur.


author: RAMIREZ, J.

text:
    RACING PROPERTIES, L.P., Appellant, v. L.T. BALDWIN, III, Appellee.
    No. 3D03-2578.
    District Court of Appeal of Florida, Third District.
    Aug. 25, 2004.
    Rehearing Denied and Rehearing En Banc Nov. 17, 2004.

      Huger, Peretz, Kaplan & Berlin, and Alan Huger, and Jason S. Oletsky, Miami, for appellant.
    Johnson & Bell, and Joseph R. Marconi; Zumpano Patricios & Winker, Miami, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   RAMIREZ, J.

Racing Properties, L.P. appeals the entry of an order in which the trial court granted appellee L.T. Baldwin, Ill’s motion to enforce the parties’ mediated settlement agreement. Baldwin cross-appeals the trial court’s ruling that the default interest under the terms of the parties’ underlying agreement stopped accruing the day in which funds were escrowed. We reverse because there is no enforceable contract upon which a mediated settlement agreement could be enforced, and thus dismiss the cross-appeal.

Baldwin loaned Racing Properties the sum of $3.2 million. When Racing Properties defaulted on the loan, Baldwin filed a lis pendens. Racing Properties then sued Baldwin to quiet title and Baldwin counterclaimed for an equitable mortgage.

At the subsequent mediation, the parties reached an “agreement in principle.” For the agreement in principle to take effect, a number of conditions had to be satisfied. One of these conditions required certain documentation to be completed by May 10, 2001. The parties understood that time was of the essence. Baldwin in turn agreed to cancel the lis pendens and dismiss the litigation. The trial court eventually discharged the lis pendens.

Between May 9 and September 28, 2001, Baldwin attempted to renegotiate the terms of the agreement in principle. Baldwin, for example, requested additional collateral not provided for in the agreement in principle. He also attempted to continue the litigation which he had agreed to dismiss. Indeed, Baldwin appealed the discharge of the lis pendens. This Court denied the appeal.

On September 28, 2001, Baldwin moved to enforce the agreement in principle. The trial court’s order that granted Baldwin’s motion to enforce now forms the basis of this appeal.

We find that the agreement in principle was executory in nature and did not become effective when key aspects of the agreement were not complied with. Under well established contract law, a condition precedent is a condition which calls for the performance of an act after a contract is entered into, upon the performance or happening of which its obligation to perform is made to depend. See Cohen v. Rothman, 127 So.2d 143, 147 (Fla. 3d DCA 1961). It is elementary that there must be at least a substantial performance of conditions precedent in order to authorize a recovery as for performance of a contract. Id. Furthermore, the alteration of one of the material terms of a contract constitutes a counter-offer and rejection of said contract. See Padron v. Plantada, 632 So.2d 113, 114 (Fla. 3d DCA 1994).

Under the facts before us, the agreement in principle did not become binding because one of the express conditions precedent was not met. Paragraph 4 of the agreement in principle states: “[t]he documentation shall be completed by May 10, 2001.” On May 9, 2001, Racing Properties transmitted the required documentation to Baldwin. Baldwin was to complete the required documentation by the next day. Baldwin did not complete the required documents prior to the agreed upon deadline of May 10. Racing Properties thereafter granted Baldwin an extension until May 17, 2001, within which Baldwin could comply. Baldwin again failed to comply. To ignore one term of the agreement, but uphold the others, would be tantamount to the creation of a new contract. We thus agree with Racing Properties that Baldwin’s failure to timely complete the required documents nullified the enforceability of the contract.

Additionally, Baldwin’s request for additional collateral constituted a counter-offer, notwithstanding the fact that it was withdrawn upon objection. Baldwin’s very own appellate brief notes that collateral is one of the material terms of a loan agreement. Indeed, it is based on the notion that all material terms of the agreement are present and that collateral is one of the material terms that Baldwin seeks to enforce the agreement in principle. It is evident that Baldwin wants to have it both ways — Baldwin wants an enforceable contract, but also wants a contract that evolves on a regular basis. This is simply not possible. It is not possible legally and it is not possible according to the very terms of the agreement in principle.

We next turn to another issue raised on appeal related to the intervention of Jerome Grigoli in the underlying litigation. We find that the trial court improperly allowed Grigoli to intervene. Grigoli alleged that he had entered into a secret verbal deal with Racing Properties, which entitled him to ten percent interest in Racing Properties, as well as other entities and individuals. Grigoli later admitted that his claims were “quite dissimilar” to the claims in the underlying litigation between Baldwin and Racing Properties.

A trial court’s decision to allow an intervention shall not be disturbed without a showing of abuse of discretion. See Fasig v. Florida Society of Pathologists, 769 So.2d 1151, 1153 (Fla. 5th DCA 2000). However, the interest which entitles a person to intervention must be shown to be direct and immediate — the intervenor must show a gain or loss by the direct legal operation and effect of the judgment. See Faircloth v. Mr. Boston Distiller Corp., 245 So.2d 240 (Fla.1970); Schindler v. Schiavo, 866 So.2d 140, 141 (Fla. 2d DCA 2004).

An intervention is thus only appropriate where the issues the intervenor raises are related to the case being litigated. The intervenor in this case admitted that his claims were “quite dissimilar” from the claims in the underlying case. His claims therefore have no bearing on the underlying litigation. As such, the trial court abused its discretion in its decision to allow Grigoli’s intervention.

We therefore reverse the trial court’s order enforcing the mediated settlement agreement. In addition, we dismiss Baldwin’s cross-appeal, finding no need to address the issues raised.

      . See Baldwin v. Racing Properties, L.P., 792 So.2d 463 (Fla. 3d DCA 2001).


author: GROSS, J.

text:
    DAIWA PRODUCTS, INC., Appellant, v. NATIONSBANK, N.A., and United Mizrahi Bank, Ltd., Appellees.
    No. 4D03-2190.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Rehearing Denied Nov. 23, 2004.

      Jane Kreusler-Walsh and Rebecca Mer-cier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach, and Paul A. Shelowitz of Akerman Senterfitt, Miami, for appellant.
    Mark D. Bohm and Douglas E. Horelick of Thornton, Davis & Fein, P.A., Miami, for appellees.
   GROSS, J.

Daiwa Products, Inc. appeals an order dissolving a temporary injunction and directing an issuing bank to pay a draft drawn on a letter of credit. We affirm the trial court’s order. On the cross-appeal we remand for the assessment of interest against the injunction bond.

Daiwa imports health care products and distributes them to retailers, such as drug stores, in the United States. SAAT is an Israeli company which manufactures and distributes ear thermometers.

In September 1998, Daiwa entered into an agreement with SAAT to purchase a large quantity of ear thermometers for $229,665.60. To pay for the thermometers, Daiwa secured the issuance of a letter of credit from NationsBank that named SAAT as the beneficiary. The letter of credit specified the type of documentation that SAAT was required to present in order to be paid.

United Mizrahi Bank, which had an existing banking relationship with SAAT, acted as the advising bank on the letter of credit. An advising bank is a bank “which gives notification of the issuance of a [letter of] credit by another bank.” § 675.103(l)(e), Fla. Stat. (1997). An advising bank does not incur an obligation to honor drafts drawn under a letter of credit, but it does “assume obligation for the accuracy of its own statement[s]” made to the beneficiary. § 675.107(1), Fla. Stat. (1997).

The sales agreement required SAAT to ship the goods by March 31, 1999. On March, 30, 1999, SAAT provided United Mizrahi with documents conforming to the requirements of the letter of credit; these documents confirmed that SAAT had shipped the goods to Daiwa on March 26, 1999. At the same time, SAAT delivered to United Mizrahi a draft drawn on the line of credit in the amount of $229,665.60. The draft was given to United Mizrahi to pay on an unrelated loan the bank had made to SAAT.

Although on their face the documents conformed to the requirements of the letter of credit, they were fraudulent. SAAT’s fraud is beyond dispute. SAAT had not shipped the thermometers as the documents claimed. Daiwa never received any ear thermometers from SAAT.

On April 1, 1999, United Mizrahi presented the conforming documents to Nati-onsBank, along with the $229,665.60 draft. On April 8, 1999 Daiwa obtained a temporary injunction from the circuit court prohibiting NationsBank from releasing the funds. See § 675.114(2)(b), Fla. Stat. (1997) (providing that “a court of appropriate jurisdiction may enjoin” the honoring of a “draft or demand for payment” under the letter of credit). The court required that Daiwa post a $50,000 bond with the clerk of the court. On July 1,1999, United Mizrahi intervened in the circuit court action and sought dissolution of the temporary injunction. The dissolution issue was tried in March 2003.

As framed in the circuit court and this appeal, the primary issue is whether United Mizrahi was a holder in due course of the $229,665.60 draft. If United Mizrahi was a holder in due course, then it was entitled to payment under section 675.114(2)(a), Florida Statutes (1997), which provides, in pertinent part:

(2) Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document ... is forged or fraudulent or there is fraud in the transaction:
(a) The issuer must honor the draft or demand for payment if honor is demanded by a negotiating bank or other holder of the draft or demand which has taken the draft or demand under the [letter of] credit and under circumstances which would make it a holder in due course (s.673.3021)....

After the non-jury trial, the circuit court determined that United Mizrahi was a holder in due course. The court dissolved the temporary injunction and ordered Na-tionsBank to make payment of $229,665.60 on the draft.

Daiwa challenges the trial court’s ruling that United Mizrahi was a holder in due course. Because United Mizrahi prevailed on this issue at the evidentiary hearing on the motion to dissolve, we view the evidence in the light most favorable to it. See McPherson v. Phillips, 877 So.2d 755 (Fla. 4th DCA 2004) (on rehearing) (“In reviewing the trial court’s ruling, we are required to view the evidence taken at the hearing in the light most favorable to upholding the ruling.”); White v. Metro. Dade County, 563 So.2d 117, 134 (Fla. 3d DCA 1990) (noting that the evidence adduced during a temporary injunction hearing would be viewed on appeal in the light most favorable to the prevailing party).

From 1997-1999, SAAT financed the assembly of thermometers through loans from United Mizrahi, with the buyers’ letters of credit forming the collateral for the loans. Typically, once SAAT received a purchase order and letter of credit, United Mizrahi advanced 40% of the purchase price to begin the manufacturing process; thirty days before the anticipated delivery date, United Mizrahi advanced 30% of the purchase price; when SAAT presented the documentation required by the letter of credit, the bank advanced the remaining 30% of the purchase price. In these letter of credit transactions, United Mizrahi acted as both a creditor of SAAT and an advising bank. Daiwa’s banking expert testified that there was nothing inappropriate or unusual about a bank serving in such a dual role.

Throughout United Mizrahi’s banking relationship with SAAT, the company’s liabilities always exceeded its assets. Nevertheless, prior to the transaction here at issue, SAAT successfully completed twenty-six letter of credit transactions through United Mizrahi, always fulfilling its manufacturing and shipping obligations. The twenty-six transactions involved over $12 million in merchandise. In none of the transactions had SAAT been accused of fraud.

During the banking relationship, United Mizrahi reviewed SAAT’s annual financial statements and met periodically with its executives. Between March 1997 and March 1999, United Mizrahi representatives visited SAAT’s plant eight times.

In late February or early March 1999, Morton Nyman, Daiwa’s principal, learned from a personal friend that SAAT had canceled its order for plastic cases, a necessary component of ear thermometers. On March 9, 1999, twenty-two days before the shipping deadline, Daiwa requested an amendment to the letter of credit, asking for an increase in the order quantity and letter of credit amount, and seeking an inspection certificate to be added to the list of documents necessary to receive payment. On March 11, SAAT rejected the proposed amendments. On March 16, Da-iwa requested a second amendment, this time only asking that a certificate of inspection be added to the list of documentation required for payment. On March 18, SAAT rejected the second request.

Although Daiwa’s banking expert testified that SAAT’s rejection of the inspection certificate amendments should have raised a “red flag,” United Mizrahi’s expert disagreed. He testified that the rejection of the amendments could have occurred for other reasons, such as to avoid additional cost or inconvenience so close to the shipment date.

United Mizrahi’s loan department never received Daiwa’s certificate of inspection amendment requests. Rather, the bank’s letter of credit department received the requests and forwarded them directly to SAAT for response. The bank’s credit manager reasoned that technical amendments, such as certificates of inspection, were issues for the buyer and seller, not the bank, a position supported by an expert witness in banking practices.

In October or November 1998, United Mizrahi’s senior lending officer issued memoranda to staff expressing concerns about SAAT’s ability to continue to manufacture and ship products. The bank’s testimony at trial downplayed the significance of the memoranda as being a character flaw of that lending officer, who was something of a worrywart. After the memoranda were issued, SAAT successfully completed several orders involving $471,000 in product.

On March, 14, 1999,- United Mizrahi’s senior lending credit committee denied SAAT’s request for renewal of its $1.5 million" line of credit and asked SAAT to develop a plan to reduce borrowing. The bank did not immediately .call for payment of its outstanding loans or declare any loans in default. Prior to March 14, the bank had approved all of SAAT’s previous loan requests, including one made on March 11, 1999. The bank’s March 14 decision was a business decision not to continue its relationship with a company that was struggling to be profitable. It had no connection to the company’s ability to fill the March 30 order for Daiwa.

As part if its ongoing relationship with the company, an employee of United Mizr-ahi visited SAAT’s operational facility on March 16, 1999. The facility appeared to be fully functional. Workers were on the production line. Thousands of finished thermometers were ready for shipment. Employees in the quality control department were conducting tests on the thermometers. Electronic components for making thermometers were kept in a storage area. SAAT’s general manager and employees were on-site and working. From his observations, the bank’s employee concluded that SAAT’s plant was “fully functional” on March 16,1999.

Section 675.114(2)(a) adopts the definition of “holder in due course” contained at section 673.3021, Florida Statutes (1997). Under that section, a “holder in due course” is a “holder who takes an instrument without ‘apparent evidence of forgery or alteration’ for value, in good faith, and without notice of certain claims and defenses.” Any Kind Checks Cashed, Inc. v. Talcott, 830 So.2d 160, 164 (Fla. 4th DCA 2002) (quoting § 673.3021(1), Fla. Stat. (2001)).

In this case, the issue boiled down to whether United Mizrahi accepted the draft on March 30 and presented it to Nations-Bank on April 1 in “good faith” within the meaning of section 673.3021(l)(b)2. Section 673.1031(l)(d), Florida Statutes (1997) defines “good faith” as meaning “honesty in fact and the observance of reasonable commercial standards of fair dealing.” The legislature amended the definition of “good faith” in 1992. See Ch. 92-82, § 2, at 759, Laws of Fla, As we wrote in Any Kind Checks:

To the old, subjective good faith, “honesty in fact” standard, the legislature added an objective component — the “pure heart of the holder must now be accompanied by reasoning that assures conduct comporting with reasonable commercial standards of fair dealing.” Maine Family Fed. Credit Union v. Sun Life Assurance Co. of Canada, 727 A.2d 335, 342 (Me.1999). No longer may a holder of an instrument act with “a pure heart and an empty head and still obtain holder in due course status.” Id.

830 So.2d at 165.

In Any Kind Checks, to apply the law requiring “good faith” under section 673.3021(l)(b)2., we adopted the following analysis by the Maine Supreme Court:

The factfinder must ... determine, first, whether the conduct of the holder comported with industry or “commercial” standards applicable to the transaction and, second, whether those standards were reasonable standards intended to result in fair dealing. Each of those determinations must be made in the context of the specific transaction at hand. If the fact finder’s conclusion on each point is “yes,” the holder will be determined to have acted in good faith even if, in the individual transaction at issue, the result appears unreasonable. Thus a holder may be accorded holder in due course status where it acts pursuant to those reasonable commercial standards of fair dealing—even if it is negligent— but may lose that status, even where it complies with commercial standards, if those standards are not reasonably related to achieving fair dealing.

830 So.2d at 165-66 (quoting Maine Family, 727 A.2d at 343).

To place this case in context, it is important to understand the structure of a letter of credit transaction. Daiwa was the “customer,” the “buyer ... who eause[d] an issuer to issue” a letter of credit. § 675.103(l)(g), Fla. Stat. (1997). Nations-Bank was the “issuer” that issued the letter of credit. § 675.103(l)(c). SAAT, the seller of the goods, was the “beneficiary” of the letter of credit which “was entitled under its terms to draw or demand payment.” § 675.103(l)(d).

Three different agreements are present in the typical letter of credit transaction: (1)the contract for sale of goods between the buyer and the seller; (2) the creation of the letter of credit between the buyer (customer) and the issuer (bank), which requires the customer to reimburse the issuer for payments made on the letter of credit; and (3) the letter of credit which is an undertaking by the bank to pay the seller (beneficiary) upon the presentation of certain documents.

Significantly, the bank’s undertaking to the beneficiary “is independent of, and unrelated to, the underlying contract between the beneficiary and the applicant that purchased the letter of credit.” Banco Lavra, S.A. v. Cargil Int’l, 732 So.2d 1086, 1088 (Fla. 3d DCA 1998). Under this “independence principle,” the “issuer must pay on a proper demand from the beneficiary even though the beneficiary may have breached the underlying contract with the applicant.” James J. White & Robert S. Summers, Uniform Commercial Code § 26-2 (4th ed.1995).

Letters of credit originated in international trade as a means to orchestrate payments in sales transactions. See id. § 26-1, 26-2. From the seller’s standpoint, letters of credit are a desirable device because they substitute a solvent, stable issuer, normally a bank, for the buyer. Once the seller presents documents required under the letter of credit to the issuer, the seller gets paid. White and Summers describe the benefits of a letter of credit transaction from the seller’s standpoint:

[Djrafts drawn by a seller on an issuing bank are far more certain of payment than drafts drawn on an ordinary buyer who is committed to pay under the terms of an ordinary sales contract. The burden of pursuing litigation is also transferred to the buyer since the seller will have money in hand. In effect, the seller has bargained for the right to be the defendant instead of the plaintiff in litigation on the underlying contract. The buyer will bear the burden of litigating, often in a foreign jurisdiction, to recover under the contract.
After paying beneficiary’s draft, the issuing bank has the documents which control the goods. These secure the issuing bank’s right to get reimbursed by the applicant buyer upon payment to the beneficiary seller under the letter of credit.

Id. § 26-la. (footnote omitted).

In this case, competent substantial evidence supported the trial court’s conclusion that United Mizrahi was a holder in due course of the draft presented to Nati-onsBank.

United Mizrahi presented evidence that, as a creditor bank, it had comported with reasonable banking standards which were reasonably related to achieving fair dealing. There was no evidence that United Mizrahi knew that SAAT had fraudulently prepared the documents required under the letter of credit. In spite of its tiptoeing at the edge of solvency, SAAT had successfully completed twenty-six letter of credit sales transactions during its relationship with United Mizrahi. Two weeks before the scheduled delivery date, a bank employee visited SAAT and observed a fully functioning manufacturing facility. The bank viewed Daiwa’s request for amendments to the letter of credit as matters properly left to the buyer and seller. As the trial court implicitly held, it was not the bank’s duty as a creditor to police the sales transaction between SAAT and Dai-wa.

Many of Daiwa’s arguments are quibbles with the weight of the evidence. For example, Daiwa argues that United Mizrahi violated reasonable banking standards by failing to generate a protocol and committee meeting minutes when denying SAAT’s request to renew its credit line on March 14, 1999. Whether the absence of the protocol at trial was the smoking gun that Daiwa claimed was a matter for the trial judge, who accepted the testimony of United Mizrahi’s witnesses about what the bank knew and when the bank knew it.

This ease is unlike those cases where holder in due course status is denied because of direct evidence that the holder of a draft had actual knowledge of fraud in either documentation required by a letter of credit or the underlying transaction.

For example, in Andina Coffee, Inc. v. National Westminster Bank USA, 160 A.D.2d 104, 560 N.Y.S.2d 1 (N.Y.App.Div.1990), the creditor bank advanced $2,100,000 to a seller of coffee. The seller’s check to repay the loan bounced, and the creditor bank “was left with an unpaid $2,100,000 loan.” Id. at 2. A few weeks later, the bank received a letter of credit in the amount of $2,104,000. Six weeks before the earliest possible date for presentment under the letter of credit, the bank accepted from the seller its draft and postdated documents, including bills of lading dated six weeks in the future for goods that had not been shipped. After the issuer refused to pay the draft because of discrepancies in the documents, the creditor bank had the seller “alter[ ] and real-ter[ ]” the dates on the bills of lading in a way that made it appear “that the documents were designed more to effect payment under the letters of credit than to reflect accurately the business transactions that they were intended to evince.” Id.

The appellate court reversed a summary judgment in favor of the creditor bank. The court observed that the post-dating of the bills of lading was “a form of fraudulent practice.” Id. at 4. Equally significant was the creditor bank’s “apparently active role in obtaining the revisions of the documents, particularly after it was confronted with definite proof of [the seller’s] financial instability in the form of a bad check.” Id. at 5. Such conduct precluded a summary judgment for the creditor bank on the holder in due course issue, since it raised “questions of fact as to whether it was acting in good faith and without actual knowledge of the exporter’s fraud.” Id.; cf. Barclay Knitwear Co. v. King’swear Enters., Ltd., 141 A.D.2d 241, 533 N.Y.S.2d 724, 729 (N.Y.App.Div.1988) (holding that a creditor bank of an assignee of a letter of credit was entitled to holder in due course where there was no “direct evidence that it had notice of the alleged fraud” by the beneficiary of the letter of credit).

Brenntag International Chemicals, Inc. v. Norddeutsche Landesbank GZ, 70 F.Supp.2d 399 (S.D.N.Y.1999), is a case where a creditor bank of the beneficiary of a letter of credit accepted an undated default letter from the beneficiary and paid $2.4 million for a letter of credit, the default letter, and certain false papers. When the letter of credit came due, the creditor bank “stamped an appropriate date on the default letter and presented it along with other documentation” to the issuer for payment. Id. at 401. The court denied the creditor bank holder in due course status, because the creditor bank “knew that the undated [djefault [ljetter could not have reflected the actual condition it purported to certify.” Id. at 408.

Unlike the situations in Brenntag and Andina Coffee, the trial court did not find that United Mizrahi either had knowledge of SAAT’s wrongdoing at the time it accepted the draft in this case or participated in a manipulation of documents in order to get paid under a letter of credit.

On the cross-appeal, we agree that the trial court erred when it failed to award prejudgment interest.

Daiwa obtained the preliminary injunction authorized by section 675.114(2). To be entitled to a preliminary injunction under that section, a movant must still meet the requirements of Florida law. See White & SummeRS, supra, §§ 26-10. Florida Rule of Civil Procedure 1.610(b) requires that a bond be posted for a temporary injunction to issue. Here the trial court set a $50,000 bond. ‘When a court sets an injunction bond, the amount should reflect the court’s determination of the foreseeable damages for a wrongful injunction.” Advantage Digital Sys., Inc. v. Digital Imaging Servs., Inc., 870 So.2d 111, 116 (Fla. 2d DCA 2003). Also, a court may increase or decrease an injunction bond if its initial estimation of damages appears to be incorrect. When a preliminary injunction under section 675.114(2) prevents payment under a letter of credit, the most foreseeable damage is the loss of use of the money withheld, which is measured by prejudgment interest.

A party against whom an injunction has been wrongfully issued is entitled to damages caused by the injunction. E.g., § 60.07, Fla. Stat. (1999) (providing that on dissolution of an injunction, “the court may hear evidence and assess damages to which a defendant may be entitled under any injunction bond”); Jefferies & Co. v. Int’l Assets Holding Corp., 830 So.2d 256, 259 (Fla. 5th DCA 2002). “The standard for determining whether an injunction was wrongfully issued is simply whether the petitioning party was unentitled to injunc-tive relief.” Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018, 1021-22 (Fla.1989).

The trial court’s decision that United Mizrah was a holder in due course and the resulting dissolution of the injunction “constitutes an adjudication that [the injunction] was wrongfully issued.” Jefferies & Co., 830 So.2d at 259. United Miz-rah was therefore entitled to an award of interest against the injunction bond that compensates it for the delay in payment caused by the issuance of the preliminary injunction. See Parker Tampa, 544 So.2d at 1021-22. As the supreme court held in Parker Tampa, damages caused by a wrongfully issued injunction are limited to the amount of the injunction bond. Id.

Cromwell v. Commerce & Energy Bank of Lafayette, 528 So.2d 759 (La.Ct.App.1988), provides an example of an award of prejudgment interest for the wrongful issuance of a section 675.114(2) injunction. In that case, the trial court granted injunctions to stop issuing banks from honoring drafts drawn on letters of credit. Id. at 760. The injunctions were issued under the Louisiana Revised Statutes Annotated, Title 10, section 5-114, which is identical to section 675.114. See Cromwell v. Commerce & Energy Bank of Lafayette, 450 So.2d 1, 6 (La.Ct.App.1984). An appellate court reversed the granting of the preliminary injunctions and remanded the case for “consideration of whether damages and attorney’s fees should be awarded, and if so, the amount.” Cromwell, 528 So.2d at 761.

On remand, the trial court awarded damages of $1,151,194. The award was based on the delay in payment caused by “the improvident issuance of the preliminary injunctions.” Id. at 762. The appellate court affirmed this damage award. Id.

We affirm the order dissolving the temporary injunction. We reverse the denial of prejudgment interest and remand for an assessment of interest set against the bond amount. See Parker Tampa, 544 So.2d at 1021.

FARMER, C.J., and MAY, J., concur.

      . The parties agree that this case is covered by Article 5 of the Uniform Commercial Code, Chapter 675, Florida Statutes (1997). The 1999 amendments to Chapter 675 do not apply, because this case involves a letter of credit issued before July 1, 1999. See § 675.118(1), Fla. Stat. (2003).

      . The definitions section of Article 5, section 675.103(l)(a), Florida Statutes (1997), treats "credit'' and "letter of credit” as synonyms.

      . The court wrote, "[biased upon the evidence, lack of evidence, conflict in the evidence and the credibility and believability of witnesses, the Court finds that the intervenor, United Mizrahi Bank is a holder in due course of the subject draft.”


text:
    Jose ENRIQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2023.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Rehearing Denied Nov. 10, 2004.
    Jose Enriquez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   PER CURIAM.

A life sentence is not impermissible “indefinite imprisonment” for purposes of Article I, Section 17 of the Florida Constitution. See Alvarez v. State, 358 So.2d 10, 12 (Fla.1978) (‘We also reject petitioner’s contention that the statute is unconstitutionally vague and indefinite. Although no person can predict the maximum length of time which can be served by a prisoner under a sentence of life, this in itself does not render a life sentence impermissibly indefinite.”) (footnote omitted); Lopez v. State, 881 So.2d 36 (Fla. 3d DCA 2004).


author: PER CURIAM. COPE, J.

text:
    Donald H. WARSHAW, Appellant, v. The CITY OF MIAMI FIREFIGHTERS’ AND POLICE OFFICERS’ RETIREMENT TRUST, Appellee, Karen S. Warshaw, Intervenor.
    No. 3D03-2719.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2004.
    Rehearing Denied Dec. 2, 2004.

      Ivy R. Ginsberg, for appellant.
    Ruden, McClosky, Smith, Schuster & Russell and Bruce L. Udolf (FtLauder-dale), for appellee.
    Karen S. Warshaw, in proper person.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

Donald H. Warshaw, a former police chief of the City of Miami, appeals from an order of the Board of Trustees of the City of Miami Firefighters’ and Police Officers’ Retirement Trust [Board], which order directs the forfeiture of Warshaw’s city retirement benefits. We affirm.

The forfeiture came about because of Warshaw’s conviction of one count of mail fraud in violation of Title 18, United States Code, § 1341. This federal conviction led to the Board’s application of section 112.3173(3), Florida Statutes (2001), which reads:

“(3) FORFEITURE. — Any public officer or employee who is convicted of a specified offense committed prior to retirement, or whose office or employment is terminated by reason of his or her admitted commission, aid, or abetment of a specified offense, shall forfeit all rights and benefits under any public retirement system of which he or she is a member, except for the return of his or her accumulated contributions as of the date of termination.”

“Specified offense” is defined in section 112.3173(2)(e), Florida Statutes (2001) to include the embezzlement of public funds, or any theft by a public employee or officer from his or her employer.

Pursuant to section 112.3173(5), the Board held a hearing for the purpose of determining whether Warshaw’s pension rights and privileges should be forfeited. The Board concluded that Warshaw had been convicted of a specified offense as provided in section 112.3173, and ordered the forfeiture.

The testimony at the Board hearing revealed the following. Do The Right Thing [DTRT] is a not-for-profit corporation whose mission, as stated in its articles of incorporation, is to assist the city in recognizing and rewarding young adults and children for their contributions to the community. It was financed principally by the city and based its operations at the physical plant of the Miami Police Department, where it utilized those facilities, including conducting meetings at that location. It used the uncompensated services of at least one employee of the police department in its operations. By the terms of DTRT’s articles of incorporation, then police chief Warshaw was designated as its registered agent for service of process (at the same address as the Miami Police Department). As we observed previously the purposes of DTRT are to expand the City of Miami’s municipal practices of recognizing individuals who have made significant contributions to the community, and to form an alliance between the Police Department and area businesses for the benefit of children in high crime, disadvantaged segments of the community. The financing of DTRT has been 80 to 90 percent from the city’s criminal forfeiture proceeds contained in the city’s law enforcement trust fund. Warshaw used the powers of his public office as police chief to arrange through the Miami City Commission for the city funds to be transferred to DTRT bank accounts, preparatory for use by DTRT for the city’s purposes. Warshaw, however, used part of those transferred funds to pay for personal, unauthorized matters over a period of years.

Warshaw argues that he did not embezzle or commit a theft of public funds (thus there was no “specified offense”) as he embezzled or committed a theft only of DTRT funds. He further argues that as DTRT was a private not-for-profit corporation and not a public entity, no provision of section 112.3173 is applicable, and therefore his federal conviction was not of a specified offense, thus his pension cannot be ordered forfeited. As his support for this proposition Warshaw points out that his federal conviction was for mail fraud in violation of 18 U.S.C. § 1341 for defrauding DTRT. In simple parlance, Warshaw argues, no city public funds were embezzled or stolen by him, just DTRT’s private funds.

We reject this thoroughly disingenuous argument. Warshaw, as city police chief, arranged through the city commission for public city funds to be transferred to DTRT, which was mandated to use these city funds to carry out city functions, effectively as an alter ego of the city, and certainly as its agent. The funds never lost their character as public funds. War-shaw simply took two steps in order to have access to the public funds by (1) arranging to have the city funds transferred to DTRT, then (2) arranging for the city funds to be transferred from DTRT to him. Whether the funds remained with the city’s law enforcement trust fund or were transferred to DTRT, the funds always were slotted for public uses.

The Board also found that Warshaw had violated section 112.3173(2)(e)(6), Florida Statutes, which section is set out in footnote 3. We find it unnecessary to discuss or pass on this issue in light of our foregoing conclusions.

Affirmed.

SCHWARTZ, C.J., and FLETCHER, J., concur.

COPE, J.

(dissenting).

The majority opinion is contrary to decisions of the Florida Supreme Court, other district courts of appeal and this court which mandate a strict construction of forfeiture statutes. The majority opinion fails to address, much less apply, the correct legal standard.

I.

The appellee Pension Board has ordered the forfeiture of the pension of the former City of Miami Police Chief, Donald H. Warshaw. Warshaw pled guilty in federal court to one count of mail fraud in violation of 18 U.S.C. § 1341.

Under Florida law, a public employee’s pension may be forfeited if the public employee is convicted of an offense specified in paragraph 112.3173(2)(e), Florida Statutes (1993). The question presented by this appeal is whether the crime of which Warshaw was convicted falls within the scope of the statute.

When the possibility of a forfeiture of Warshaw’s pension was first presented to the Pension Board, the Board’s attorney-advised the Board that Warshaw’s conviction did not fall within the scope of the statute and that the pension could not be forfeited. The Board appointed outside counsel to serve as special prosecutor. The special prosecutor concluded that War-shaw’s crime fell within the scope of the statute. The Board accepted the special prosecutor’s view of the statute and, after a hearing, declared (by a 5-3 vote) that Warshaw’s pension would be forfeited.

Warshaw has appealed.

II.

The threshold question is what rule of construction to apply in interpreting this statute. The majority opinion completely ignores this point.

The Florida Supreme Court has said that “forfeitures are considered harsh ex-actions, and as a general rule they are not favored either in law or equity. Therefore, this court has long followed a policy that it must strictly construe forfeiture statutes.” Department of Law Enforcement v. Real Property, 588 So.2d 957, 961 (Fla.1991) (citing General Motors Acceptance Corp. v. State, 152 Fla. 297, 11 So.2d 482, 484 (1943); City of Miami v. Miller, 148 Fla. 349, 4 So.2d 369, 370 (1941)) (emphasis added); see also Byrom v. Gallagher, 609 So.2d 24, 26 (Fla.1992) (same).

“Forfeiture statutes are not favored and are strictly construed in favor of the party against whom the penalty is sought to be imposed.” Cabrera v. Department of Natural Resources, 478 So.2d 454, 455-56 (Fla. 3d DCA 1985) (citing inter alia, Boyle v. State, 47 So.2d 693 (Fla.1950)).

Writing about the statute now before us, the pension forfeiture statute, the First District said:

No citation of authority is required to support the rule that forfeitures are not favored in law. They are considered harsh exactions, odious, and to be avoided when possible. Statutes imposing forfeiture will be strictly construed in a manner such as to avoid the forfeiture and will be liberally construed so as to avoid and relieve from forfeiture.

Williams v. Christian, 335 So.2d 358, 361 (Fla. 1st DCA 1976) (footnote omitted; emphasis added); see Mulligan v. City of Hollywood, 871 So.2d 249, 252-53 (Fla. 4th DCA 2003) (citing Williams v. Christian).

Thus, “[t]he determinative analysis of the question before us begins, proceeds and ends with the particular terms of the authorizing statute which, because the law is said to abhor forfeitures, must be strictly construed.” Flam v. City of Miami Beach 449 So.2d 367, 368 (Fla. 3d DCA 1984) (citations omitted) (Schwartz, C.J.).

III.

The question to be decided is whether Warshaw’s crime falls within the terms of the forfeiture statute. It is not enough that Warshaw was convicted of a crime while he was public employee, nor is it enough that the crime bears some relationship to his public duties.

In order to exact a forfeiture of War-shaw’s pension, the conviction must be a “specified offense” within the terms of the forfeiture statute, section 112.3173, Florida Statutes. Further, to the extent that there is any doubt about whether War-shaw’s crime is a statutorily “specified offense,” that doubt must be resolved in favor of Warshaw and against the forfeiture.

Under the statute, a “specified offense” includes “1. The committing, aiding, or abetting of an embezzlement of public funds[.]” § 112.3173(2)(e)l., Fla. Stat. The statute does not contain a definition of “public funds.”

Public funds means “[t]he revenue or money of a governmental body.” Black’s Law Dictionary 682 (7th ed.1999). Plainly put, it means money in the City public treasury.

In this case, however, Warshaw was not convicted of embezzling city funds. He was instead convicted (pursuant to a plea bargain) of embezzling funds belonging to a private nonprofit corporation called (ironically) Do The Right Thing (“DTRT”). Warshaw was the treasurer of DTRT and misused his position to steal money from the DTRT account.

There is no dispute that the embezzled funds were in the bank account of DTRT when Warshaw took them. The federal Superseding Information set forth a list of cash amounts which Warshaw withdrew from the DTRT account and deposited in his personal account. Superseding Information at 3-4. The Superseding Information also listed eight checks which War-shaw wrote on the DTRT bank account, which were used to pay Warshaw’s personal expenses. Id. at 4. Warshaw committed mail fraud because the United States mail was used to transmit one of the checks written to carry out the fraud.

Since the funds were within DTRT’s bank account when Warshaw embezzled them, they were clearly not public funds. And if there were any doubt about the matter, the doubt would have to be resolved in favor of Warshaw. See Williams v. Christian, 335 So.2d at 361. That is so because, as this court has previously held, “Forfeiture statutes are not favored and are strictly construed in favor of the party against whom the penalty is sought to be imposed.” Cabrera, 478 So.2d at 456.

The majority contends, however, that in deciding whether Warshaw should forfeit his pension, the Pension Board may consider the fact that in his capacity as police chief, Warshaw initiated funding requests to the Miami City Commission for grants to be made from the City of Miami Law Enforcement Trust Fund (“the Trust Fund”) to DTRT. Grants from the Trust Fund were the primary source of funding for DTRT.

The majority opinion reasons that War-shaw was involved in a two-step process. In the first step, he requested grants from the Trust Fund to DTRT. These were public funds that were granted to DTRT. In the second step, Warshaw embezzled funds from the DTRT account. The majority argues that if the scheme is examined as a whole, it included acts which Warshaw carried out in his capacity as police chief (step one). According to the majority, it makes no difference that War-shaw’s conviction was solely for acts he committed at DTRT in step two.

If we were not dealing with a forfeiture statute, I would agree with the majority. However, under well established forfeiture law, the forfeiture statute must be “strictly construed in favor of the party against whom the penalty is sought to be imposed.” Cabrera, 478 So.2d at 456; see Williams v. Christian, 335 So.2d at 361.

Applying that legal standard to the facts of this case, the forfeiture cannot be upheld on the theory that Warshaw embezzled public funds. The funds lost their status as public funds when they left the City treasury. Further, the DTRT bank account included corporate donations and gifts as well as the City’s donations.

The Superseding Information only charged Warshaw with embezzling the funds of DTRT, a nonprofit corporation. That is the crime of which Warshaw was convicted. The Superseding Information does not mention, or charge Warshaw with any crime involving, the Trust Fund.

The majority opinion takes the position that it makes no difference whether the trust funds remained within the City treasury or were transferred to DTRT. The majority states that “the funds always were slotted for public uses.” Majority opinion at 6 (footnote omitted).

The majority analysis is contrary to law. The statute authorizes forfeiture of the pension if — and only if — the employee committed “an embezzlement of public funds.” § 112.3173(2)(e)l. (emphasis added). The grant funds were undoubtedly intended to be used by DTRT for public benefit, but that does not transform their character into being public funds. The majority opinion attempts to construe the statutory definition of “public funds” broadly, but under the applicable rule of construction we are obliged to construe that definition narrowly. Under the required strict construction, they were no longer “public funds” when they left the public treasury.

IV.

The Pension Board argues alternatively that the forfeiture may be justified under other provisions of the forfeiture statute. The definition of “specified offense” includes “[t]he committing, aiding, or abetting of any theft by a public officer or employee from his or her employer[.]” § 112.3173(2)(e)2„ Fla. Stat.

This claim fails as well. The charge in the Superseding Information was theft from DTRT, not theft from the City of Miami.

The Pension Board also relies on another portion of the definition of “specified offense” which states:

6. The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position.

Id. § 112.3173(2)(e)6.

This provision is likewise unavailable. Under the Superseding Information War-shaw was charged with embezzlement from DTRT. He was not charged with, or convicted of, committing criminal acts as police chief.

V.

In conclusion, the majority opinion reads the forfeiture statute broadly in favor of the government, instead of construing it strictly against the government. The majority does that by saying that the embezzled funds were “public funds” even though they had been granted to DTRT and were no longer in the City treasury.

In dealing with other legal disputes, the majority opinion might be perfectly permissible — but here we construe a forfeiture statute. When the statute is construed in the required light, it is clear that the forfeiture order must be reversed.

      . Because of her interest in the outcome, Karen S. Warshaw has been permitted to intervene.

      . “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.”

      . It also includes:
      "The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempts to realize or obtain, a'profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position.”
      § 112.3173(2)(e)(6), Fla. Stat. (2001).

      . This includes any privately contributed funds as upon contribution they became funds to be used solely for the city's public purposes.

      . For discussions of section 112.3173(2)(e)(6), see DeSoto v. Hialeah Police Pension Fund Bd. of Trustees, 870 So.2d 844 (Fla. 3d DCA 2003), and Jacobo v. Board of Trustees of the Miami Police, 788 So.2d 362 (Fla. 3d DCA 2001).

      . The Board of Trustees of the City of Miami Firefighters' and Police Officers' Retirement Trust ("the Pension Board”).

      .The applicable version of the pension forfeiture statute is the one in effect on the date of the criminal acts. See Busbee v. State Division of Retirement, 685 So.2d 914, 916-17 (Fla. 1st DCA 1996). The criminal charge to which Warshaw pled guilty was set forth in a Superseding Information filed April 27, 2001. The Superseding Information charged that the criminal scheme occurred between May 1993 and October 1995. Thus, the 1993 version of the statute is applicable. As relates to the issue now before us, there is no material difference between the 1993 statute and the present version.

      . The remainder of DTRT’s funding came from corporate donations and DTRT’s own fund-raising efforts.

      . Those donors would likely be surprised to find that their donations were converted into “public funds” by virtue of being commingled with City donations. See Majority Opinion at 895 n. 4.

      . Warshaw was originally charged by an Indictment which included other criminal charges. The Indictment included allegations that funding for DTRT came primarily from the Trust Fund. It did not, however, allege that Warshaw arranged those transfers. Warshaw entered into a plea bargain with the United States Attorney. The Government filed a Superseding Information, which omitted any reference to the Trust Fund. It is the final conviction under the Superseding Information, not the earlier (withdrawn) Indictment that is relevant for purposes of the forfeiture statute. See Williams v. Christian, 335 So.2d at 360-61.
      Even under the original Indictment, Warshaw was not charged with criminal conduct in arranging the transfers from the Trust Fund to DTRT. The Indictment charged Warshaw with multiple crimes (18 U.S.C. §§ 371, 1341, 1346, 2) relating to the Pension Fund itself and DTRT.


author: ORFINGER, J.

text:
    Wesley SNIPES, Appellant, v. CHASE MANHATTAN MORTGAGE CORPORATION, et al., Appellees.
    No. 5D03-3324.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.
    Rehearing Denied Nov. 4, 2004.
    Rodney L. Russell of Russell Law Offices, P.A., Orlando, for Appellant.
    Iris G. Hernandez of Spear and Hoffman, P.A., Coral Gables, for Appellee, Chase Manhattan Mortgage Corp.
    Tara C. Early and Michael J. Gasdick of Stanton & Gasdick, P.A., Orlando, for Ap-pellees, Consolidated Acquisition Services, LLC, Surna Construction, Inc. and South Investment Properties, Inc.
   ORFINGER, J.

Wesley Snipes appeals the denial of various post-trial motions, following the entry of a final judgment of foreclosure against him. Reduced to its essence, Snipes contends that the trial court erred by concluding that he voluntarily appeared in the action, thereby subjecting himself to the court’s jurisdiction, and further erred when it failed to set aside the final judgment because he had valid defenses to Chase Manhattan’s foreclosure complaint. We affirm.

Our standard of review of an order ruling on a motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of the trial court’s discretion. Tilden Groves Holding Corp. v. Orlando/Orange County Expressway, 816 So.2d 658 (Fla. 5th DCA 2002). Here, Snipes filed a pro se “Notice of Waiver of Service of Process and Notice of Appearance,” waiving formal service of process and entering a notice of general appearance in the foreclosure action. Snipes’s notice of general appearance acted as a waiver of any claim he might have based on a lack of personal jurisdiction. See McKelvey v. McKelvey, 323 So.2d 651, 653 (Fla. 3d DCA 1976) (holding that a general appearance ordinarily will be affected by making a motion involving the merits of plaintiffs claim and his right to maintain the suit and secure the relief sought).

Snipes further argues entitlement to relief, contending that he had meritorious defenses to the mortgage foreclosure action. Snipes’s contention notwithstanding, his failure to take the steps necessary to protect his own interest during the litigation cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent parties. “The law requires certain diligence of those subject to it, and this diligence cannot be lightly excused.” John Crescent, Inc. v. Schwartz, 382 So.2d 383, 385 (Fla. 4th DCA 1980).

Finding no abuse of discretion on the trial court’s part, the order on appeal is affirmed.

AFFIRMED.

PETERSON and GRIFFIN, JJ., concur.