author: WALLACE, Judge. COVINGTON, Judge,

text:
    Lynn R. FASSY, M.D., and Pain Medicine Associates, P.A., Petitioners, v. Julia P. CROWLEY, as Personal Representative of the Estate of Julia Lea Morgan, deceased, Respondent.
    No. 2D04-1.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.

      Ross L. Fogleman, III, and Claudia Ro-senkoetter of Fogleman & Rosenkoetter, P.A., Sarasota, for Petitioners.
    Ronald S. Gilbert of Morgan, Colling & Gilbert, P.A., Orlando, for Respondent.
   WALLACE, Judge.

Lynn R. Fassy, M.D. (Dr. Fassy), and Pain Medicine Associates, P.A. (PMA), petition for a writ of certiorari seeking review of a nonfinal order that denied their motion to dismiss a complaint filed against them by Julia Crowley, as personal representative of the estate of Julia Lea Morgan, deceased (the Personal Representative). The complaint alleged that Dr. Fassy and PMA breached their statutory duty to Julia Morgan (the Decedent), a developmentally disabled person, under the Bill of Rights of Persons Who Are Developmentally Disabled, section 393.13, Florida Statutes (2002) (the Bill of Rights). Specifically, the complaint alleged that Dr. Fassy and PMA breached their duty under the Bill of Rights to keep the Decedent free from harm when she was excessively medicated through an implanted pain medication pump, causing her death. Section 393.13(3)(g) provides: “Persons who are developmentally disabled shall have a right to be free from harm, including unnecessary physical, chemical, or mechanical restraint, isolation, excessive medication, abuse, or neglect.”

In the circuit court, Dr. Fassy and PMA argued that the Personal Representative’s claim was essentially a medical malpractice action and that she had failed to follow the presuit notice and screening requirements of the Medical Malpractice Act, section 766.106, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.650, the Medical Malpractice Presuit Screening Rule. Citing Integrated, Health Care Services, Inc. v. Lang-Redway, 840 So.2d 974 (Fla.2002), the circuit court noted that the test for determining whether the presuit notice requirements of section 766.106 apply is whether the plaintiff must rely on the medical negligence standard of care as set forth in section 766.102(1). Following the analysis set forth in Integrated Health Care Services, the circuit court denied Dr. Fassy and PMA’s motion to dismiss, ruling that “since section 393.13(4)(c) sets forth its own standard of care, the presuit requirements of chapter 766 do not apply.”

The circuit court departed from the essential requirements of law when it ruled that section 393.13(4)(c) set forth a standard of care applicable to the lawsuit at issue. For the reasons set forth below, we grant the petition for a writ of certiorari.

The Limited Standard of Review on Certiorari

Certiorari generally does not lie to review the denial of a motion to dismiss. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). Nonfinal orders are generally reviewable only on plenary appeal of the final order disposing of the case. Florida Rule of Appellate Procedure 9.130(a)(3) designates those few types of nonfinal orders deemed important enough for immediate review. Certiorari review of nonfinal orders under rule 9.030(b)(2)(A) is “an extraordinary remedy which should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of nonfinal orders.” State Farm. Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993) (citing Martin-Johnson, Inc., 509 So.2d 1097). “[I]t is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since the most urgent interlocutory orders are appealable under this rule, there will be very few cases where common law certiorari will provide relief.” State v. Pettis, 520 So.2d 250, 252 (Fla.1988) (quoting rule 9.130 committee note).

A certiorari petition must satisfy three requirements before a district court can grant relief from an erroneous interlocutory order. “A petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). As the Parkway Bank court explained, the final two prongs of the test are jurisdictional. The district court must conduct the jurisdictional analysis before it is empowered to determine whether to grant relief on the merits, i.e., whether the nonfinal order departs from the essential requirements of the law. Id. at 649.

Certiorari jurisdiction may lie when chapter 766 presuit requirements are at issue. Pearlstein v. Malunney, 500 So.2d 585 (Fla. 2d DCA 1986); St. Mary’s Hosp. v. Bell, 785 So.2d 1261, 1262 (Fla. 4th DCA 2001); Okaloosa County v. Custer, 697 So.2d 1297, 1297 (Fla. 1st DCA 1997). The statutes requiring presuit notice and screening “cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance.” Parkway Bank, 658 So.2d at 649. In addition, interlocutory review may be necessary to promote the Medical Malpractice Reform Act’s purpose of encouraging settlement. Cent. Fla. Reg'l Hosp. v. Hill, 721 So.2d 404, 405 (Fla. 5th DCA 1998).

In this case, without this court’s intervention by writ of certiorari, the Personal Representative conceivably could obtain a judgment against Dr. Fassy and PMA. If, on appeal, Dr. Fassy and PMA succeed in obtaining a reversal of the judgment because the Personal Representative failed to comply with chapter 766 presuit requirements, then the appellate remedy would be inadequate to correct the error of subjecting Dr. Fassy and PMA to the very trial that presuit procedures were intended to prevent. In that event, the purposes of these cost-saving presuit procedures would be thwarted, and the appellate remedy would serve “no useful purpose.” See Pearlstein, 500 So.2d at 587. Therefore, the nonfinal order under review, if in error, would result in material injury to Dr. Fassy and PMA that cannot be corrected on postjudgment appeal.

Satisfied that the jurisdictional prongs of the certiorari standard have been met, we turn to the remaining prong of the certiorari standard: whether the error of which Dr. Fassy and PMA complain constitutes a departure from the essential requirements of the law.

The Essential Requirements of Law

A departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice. Combs v. State, 436 So.2d 93, 95-96 (Fla.1983). The inquiry is not as concerned “with the mere existence of legal error as much as with the seriousness of the error.” Id. A failure to observe the essential requirements of the law has been held synonymous with a failure to apply “the correct law.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995).

Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003), held that “ ‘clearly established law’ can derive from a variety of legal sources,” and thus “in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.” In Kakla-manos, no appellate case controlled the issue, so our supreme court looked to the intent of the personal injury protection (PIP) statute and read various parts of the statute in pari materia to find “clearly established law” upon which certiorari review could be granted. Id. at 891-92. The order reviewed in Kaklamanos failed to apply the correct law as clearly established, and the error was sufficiently egregious or fundamental to warrant certiorari review. Id. at 890.

Ivey v. Allstate Insurance Co., 774 So.2d 679, 682-83 (Fla.2000), cautioned that a misapplication of the correct law or an erroneous interpretation of a law does not rise to the necessary level. A decision “made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari.” Id. at 682 (paraphrasing Heggs, 658 So.2d at 525).

Chapter 766 Presuit Requirements in General

Chapter 766 presuit screening is required only where the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1). Integrated Health Care Servs., 840 So.2d at 980; Tenet St. Mary’s, Inc. v. Serratore, 869 So.2d 729, 731 n. 1 (Fla. 4th DCA 2004). “The key inquiry under the statute is whether the action ‘aris[es] out of any medical, dental, or surgical diagnosis, treatment, or care.’ If there is doubt as to the applicability of such a statute, the question is generally resolved in favor of the claimant.” J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla.1994) (quoting Baskerville-Donovan Eng’rs, Inc. v. Pensacola Executive House Condo. Ass’n, 581 So.2d 1301, 1303 (Fla.1991)); see also Feifer v. Galen of Fla., Inc., 685 So.2d 882, 885 (Fla. 2d DCA 1996). “[W]hen possible the presuit notice and screening statute should be construed in a manner that favors access to courts.” Integrated Health Care Servs., 840 So.2d at 980 (quoting Patry v. Capps, 633 So.2d 9, 13 (Fla.1994)).

There are generally two types of cases in which chapter 766 presuit requirements may not apply in a medical care setting. The first is where a plaintiff can successfully allege factual matters constituting ordinary negligence of a health care provider. See, e.g., Tenet St. Mary’s, 869 So.2d 729 (holding no chapter 766 presuit requirements for suit alleging simple negligence in postdialysis injury to patient’s foot by employee); Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251, 1252 (Fla. 1st DCA 2000) (holding presuit requirements inapplicable in hospital slip-and-fall negligence action where plaintiff did not seek to state medical negligence claim).

The second type of case in which a plaintiff need not comply with chapter 766 presuit requirements is one in which the statute under which suit is brought provides its own standard of care independent of chapter 766. An action under one statute that sets forth its own cause of action and standards is not subject to the requirements of a different statute. For example, in Integrated Health Care Services, 840 So.2d at 980, the Medical Malpractice Act presuit requirements were held to be inapplicable to an action alleging that a nursing home violated a resident’s rights under chapter 400, the Nursing Home Act, causing his death. The plaintiff allegedly sustained pressure sores resulting in the amputation of his leg and toe, suffered from poor nutrition and infection, and ultimately died. Id. at 975. Our supreme court explained that the Nursing Home Act created a “right to receive adequate and appropriate health care,” § 400.022(1)0), Fla. Stat. (1997), and a private right of action for deprivation of a nursing home resident’s statutory rights, § 400.023(1). More important, chapter 400 established a standard of care “consistent with ... established and recognized practice standards within the community, and with rules as adopted by the agency,” § 400.022(1)0), and it had its own separate presuit investigation requirements for cases governed by it, § 400.023(1). For these reasons, the pre-suit requirements of chapter 766 did not apply to a lawsuit seeking to enforce only those rights enumerated in section 400.022. Integrated Health Care Servs., 840 So.2d at 979-80.

The Standard of Care Under Section S9S.lS(tí(c)

The Personal Representative contends that Integrated Health Care Services is analogous to this case because the Bill of Rights created a statutory right, not mentioned in chapter 766, under section 393.13(3)(g) and a private cause of action with liability for violations under section 393.13(5). See Baumstein v. Sunrise Cmty., Inc., 738 So.2d 420, 421 (Fla. 3d DCA 1999). The Personal Representative persuaded the circuit court that a claim founded on section 393.13(3)(g) can be proved by showing a breach of a standard of care other than medical malpractice under section 766.102(1), namely, section 393.13(4)(c), which provides: “Each client shall receive prompt and appropriate medical treatment and care for physical and mental ailments and for the prevention of any illness or disability. Medical treatment shall be consistent with the accepted standards of medical practice in the community.” However, by applying section 393.13(4)(e), the circuit court applied the wrong law to the lawsuit before it.

Written into the basic structure of the Bill of Rights is a distinction between all “persons who are developmentally disabled” and “clients.” “Clients” are a subclass of developmentally disabled persons whom the Department of Children and Family Services (the Department) has determined are eligible for developmental services, § 393.063(5), and whom the Bill of Rights contemplates are receiving services authorized by the Department. The complaint alleged that the Decedent was a “person with a developmental disability” as defined in section 393.063(14), but it did not allege that she was a “client,” nor is there any suggestion in our limited record that she was a “client.”

The Bill of Rights protects two distinct categories of rights. First, section 393.13(3) identifies the “RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL DISABILITIES” regardless of whether the persons are clients of the Department. The complaint alleged a violation of section 393.13(3)(g), which protects the right of “[p]ersons who are developmentally disabled” to be free from harm. Second, section 393.13(4) identifies “CLIENT RIGHTS.” The circuit court cited the standard of care contained in section 393.13(4)(c), which guarantees the right of each “client” to receive appropriate medical care. Section 393.13(3) and (4) is fully set forth in the endnote.

A plain reading of the Bill of Rights reveals that the provisions of section 393.13(3) and section 393.13(4) cannot logically be combined in a lawsuit seeking to enforce the rights of a developmentally disabled person who is not a client. For example, section 393.13(4)(c) lists eight sub-parts prescribing procedures for monitoring a client’s drug regime and alternate methods for obtaining informed consent with specific reference to “each client in a residential facility.” These sub-parts make sense only in the context of a client receiving services authorized by the Department in a residential facility or other restricted setting. In fact, none of the subsections of section 393.13(4) can be construed as generally applicable to nonclients of the Department. E.g., § 393.13(4)(a)(l) (providing that each client shall be allowed to send and receive sealed, unopened mail); § 393.13(4)(b) (providing that each client has the right to possess his or her own clothing and personal effects). Thus the specific protections of section 393.13(4) are reserved only to clients of the Department.

By contrast, section 393.13(3) is applicable to both clients and nonclients by its express terms. Its provisions protect generally applicable rights such as religious freedom, the right to refuse treatment, and the right to vote. § 393.13(3)(b), (h), ©•

The distinction between “clients” and “all persons with developmental disabilities” is crucial, and it is carried forward to the liability provision of section 393.13(5), which provides:

LIABILITY FOR VIOLATIONS.— Any person who violates or abuses any rights or privileges of persons who are developmentally disabled provided by this act shall be liable for damages as determined by law. Any person who acts in good faith compliance with the provisions of this act shall be immune from civil or criminal liability for actions in connection with evaluation, admission, habilitative programming, education, treatment, or discharge of a client. However, this section shall not relieve any person from liability if such person is guilty of negligence, misfeasance, non-feasance, or malfeasance.

(Emphasis added.) This section contains a general liability provision for violations of the rights of all developmentally disabled persons, but it provides a specific good faith immunity for certain services provided only to clients. In this case, for example, Dr. Fassy and PMA would not be able to assert good faith immunity as an affirmative defense to the Personal Representative’s claim because the Decedent was not a “client,” even though, in the circuit court’s view, Dr. Fassy and PMA would be held to a standard of care applicable only to the “treatment” of a “client.” Compare § 393.13(4)(c) with § 393.13(5) (each referring to the “treatment” of a “client”). Section 393.13(5) illuminates the importance of the statutory distinction between clients and all persons with developmental disabilities.

This distinction, affording greater and more specific protections to clients, accords with the Bill of Rights’ legislative intent, which was chiefly concerned with promoting the deinstitutionalization of the developmentally disabled and providing meaningful treatment and habilitation through community-based services. § 393.13(2). The circuit court ignored clear legislative intent expressed on the face of the statute by merging the provisions of subsections (3) and (4) of section 393.13, applying the standard of care specifically limited to clients to a right generally guaranteed to all developmentally disabled persons in a lawsuit that sought to enforce the rights of a nonclient. Under a plain reading of the statute, section 393.13(4)(c) did not set forth a standard of care applicable to the Personal Representative’s claim against Dr. Fassy and PMA.

The circuit court’s error rises to a departure from the essential requirement of law for two reasons. First, we did not resort to rules of statutory construction in order to determine the error; a plain reading of the statute sufficed. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931): “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”); Pearlstein, 500 So.2d at 587. Thus we are not merely disagreeing with the circuit court’s interpretation of an otherwise applicable provision. Section 393.13(4)(c) does not apply.

In Kaklamanos, our supreme court found clearly established law by looking to the legislative intent underlying the PIP statute and from reading various parts of the statute in pari materia. 843 So.2d at 891-92. Likewise, we find the inapplicability of section 393.13(4)(c) by looking to the Bill of Rights’ plain language, structure, and legislative intent expressed therein. The absence of a reported appellate decision on this issue will not lead us to be “too narrow” in our determination of clearly established law. See Kaklamanos, 843 So.2d at 891.

Second, the circuit court’s error was sufficiently egregious or fundamental. See id. at 890 (explaining that a determination of the egregious or fundamental nature of the error is an essential component of certiorari review). Determining egregious or fundamental error calls for an exercise of principled discretion based on “the gravity of the error and the adequacy of other relief.” Heggs, 658 So.2d at 531 n. 14. In Pearlstein, we concluded that our legislature, by enacting presuit notice and screening in medical malpractice cases, expressed a sense of urgency such that early intervention by means of certiorari was appropriate to correct errors thwarting the presuit requirements. 500 So.2d at 588 (drawing an analogy to News-Press Publishing Co. v. Gadd, 388 So.2d 276 (Fla. 2d DCA 1980), in which the legislative policy favoring expedition of proceedings involving media access to public records warranted early intervention by means of cer-tiorari). The gravity of the error was heightened by the likelihood that “numerous similar cases, involving identical legal issues, may also be pending or forthcoming.” Id. at 587.

Medical malpractice claims remain among the most intensively litigated in trial practice and the subject of frequent attention by our legislature. The gravity and urgency of the error involving presuit requirements that we perceived in Pearl-stein in 1986 certainly has not abated in 2004. As noted, any remedy Dr. Fassy and PMA may obtain upon postjudgment appeal would be wholly inadequate for the material harm they would suffer as a result of the circuit court’s erroneous order. For these reasons, the circuit court’s error was sufficiently egregious or fundamental to warrant our intervention by writ of certiorari.

Conclusion

We grant the petition for certiorari, finding that the circuit court departed from the essential requirements of law when it ruled that section 393.13(4)(c) set forth a standard of care applicable to a lawsuit seeking to enforce the rights of a nonclient under section 393.13(3)(g). Our limited standard of review precludes us from addressing other questions this original proceeding may raise, such as whether chapter 766 presuit requirements would apply to any cause of action arising under subsection (3) of section 393.13 or subsection (4), or both subsections and, if so, under what circumstances. The order denying Dr. Fassy and PMA’s motion to dismiss is quashed, and the case is remanded in a posture as if no order had been entered. See Snyder v. Douglas, 647 So.2d 275, 279 (Fla. 2d DCA 1994).

Petition for writ of certiorari granted.

FULMER, J., concurs.

COVINGTON, J., dissents with opinion.

COVINGTON, Judge,

Dissenting.

I respectfully dissent. While I agree with the majority that the trial court erred, I would deny the petition for writ of certiorari because the error does not depart from the essential requirements of law as required to grant a petition for writ of certiorari on a nonfinal order.

As the majority correctly notes, certio-rari generally does not lie to review the denial of a motion to dismiss. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). Furthermore, “In order to be reviewable by petition for certiorari, a nonfinal order must depart from the essential requirements of law, and thus cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.” State Farm Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993).

Departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). A court’s misapplication of the correct law or “erroneous interpretation” of a law does not rise to the necessary level. Id. at 682, 684; see also Stilson v. Allstate Ins. Co., 692 So.2d 979, 982-83 (Fla. 2d DCA 1997). The court in Ivey stated: “[a] decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding reme-dia[ble] by certiorari.” 774 So.2d at 682 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995) (additional citations omitted)). That is the case here.

The trial court here made its decision “according to the form of the law and the rules prescribed for rendering it.” See id. The court applied the test set forth in Integrated Health Care Services, Inc. v. Lang-Redway, 840 So.2d 974, 977 (Fla.2002), to determine whether a defendant is entitled to section 766.106 presuit screening requirements.

Whether section 766.203 presuit requirements apply to a cause of action founded on another statutory right, such as section 393.13(3)(g) here, turns on whether the claim can be proved by showing a breach of some standard of care other than the medical malpractice standard. The answer in this case is not clearly established. Dr. Fassy and PMA argue that the trial court departed from the essential requirements of law by misinterpreting the significance of section 393.13(4)(c) to establish a standard of care outside section 766.102, Florida Statutes (2002). Section 393.13(4)(c) states:

Each client shall receive prompt and appropriate medical treatment and care for physical and mental ailments and for the prevention of any illness or disability. Medical treatment shall be consistent with the accepted standards of medical practice in the community.

I recognize that this standard of care, which the trial court ruled obviated the chapter 766 presuit requirements, applies to those disabled persons whom the statute defines as “clients.” Section 393.063(4) defines “client” as any person determined eligible by the department for developmental services. The complaint does not allege that Julia Morgan was a “client” as so defined.

The trial court thus applied the standard of care guaranteed to clients under section 393.13(4)(c) to a right generally guaranteed to all developmentally disabled persons under section 393.13(3)(g), and thereby based its ruling on a misapplication of subsection (4). Nevertheless, these misapplications or misinterpretations do not rise to the level of a departure from the essential requirements of law meriting a writ of certiorari.

In Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003), relied on by the majority, no appellate case controlled the issue and so the supreme court looked to the intent of the personal injury protection statute as “clearly established law” upon which certiorari review could be granted. More significantly, Kaklamanos was a second-tier certiorari review of a circuit court appellate decision, for which there was no further plenary appeal. See Fla. R.App. P. 9.030(b)(2)(B). In contrast, petitioners here present a nonfinal order for review.

The majority rightly acknowledge that nonfinal orders are generally reviewable only on plenary appeal of the final order disposing of the case. The supreme court has designated, in Florida Rule of Appellate Procedure 9.130(a)(3), those few types of nonfinal orders it deems important enough for immediate review. As noted by the majority, certiorari review of nonfi-nal orders under rule 9.030(b)(2)(A) is “an extraordinary remedy which should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of nonfinal orders.” State Farm Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993) (citing Martin-Johnson, 509 So.2d 1097).

I certainly recognize the difficult position that Dr. Fassy and PMA face in that they may be subjected to “the very trial that presuit procedures were intended to prevent.” Nevertheless, it is a stretch to say that relief upon postjudgment appeal would be wholly inadequate. Whatever material injury these defendants are to be dealt by virtue of the trial court’s erroneous decision can be corrected on post-judgment appeal.

Lawsuits can be litigated in a piecemeal fashion, but doing so is not efficient. Premature reviews compel the appellate court to rule on issues before they have been fleshed out at the trial court level. The supreme court certainly has it within its rule-making authority to “establish a right of nonfinal appeal if it determines that such a pretrial appeal would be appropriate and cost-effective.” Parkway Bank, 658 So.2d 646, 650 (Fla.2d DCA 1995). It has not done so, and neither should we.

      .Endnote:
      393.13 Personal treatment of persons who are developmentally disabled.—
      (1) SHORT TITLE. — This act shall be known as “The Bill of Rights of Persons Who are Developmentally Disabled.”

      (3) RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL DISABILITIES. — The rights described in this subsection shall apply to all persons with developmental disabilities, whether or not such persons are clients of the department.
      (a) Persons with developmental disabilities shall have a right to dignity, privacy, and humane care, including the right to be free from sexual abuse in residential facilities.
      (b) Persons with developmental disabilities shall have the right to religious freedom and practice. Nothing shall restrict or infringe on a person’s right to religious preference and practice.
      (c) Persons with developmental disabilities shall receive services, within available sources, which protect the personal liberty of the individual and which are provided in the least restrictive conditions necessary to achieve the purpose of treatment.
      (d) Persons who are developmentally disabled shall have a right to participate in an appropriate program of quality education and training services, within available resources, regardless of chronological age or degree of disability. Such persons may be provided with instruction in sex education, marriage, and family planning.
      (e) Persons who are developmentally disabled shall have a right to social interaction and to participate in community activities.
      (f) Persons who are developmentally disabled shall have a right to physical exercise and recreational opportunities.
      (g) Persons who are developmentally disabled shall have a right to be free from harm, including unnecessary physical, chemical, or mechanical restraint, isolation, excessive medication, abuse, or neglect.
      (h) Persons who are developmentally disabled shall have a right to consent to or refuse treatment, subject to the provisions of s. 393.12(2)(a) or chapter 744.
      (i) No otherwise qualified person shall, by reason of having a developmental disability, be excluded from participation in, or be denied the benefits of, or be subject to discrimination under, any program or activity which receives public funds, and all prohibitions set forth under any other statute shall be actionable under this statute.
      (j) No otherwise qualified person shall, by reason of having a developmental disability, be denied the right to vote in public elections.
      (4) CLIENT RIGHTS. — For purposes of this subsection, the term "client,” as defined in s. 393.063, shall also include any person served in a facility licensed pursuant to s. 393.067.
      (a) Clients shall have an unrestricted right to communication:
      1. Each client shall be allowed to receive, send, and mail sealed, unopened correspondence. No client’s incoming or outgoing correspondence shall be opened, delayed, held, or censored by the facility unless there is reason to believe that it contains items or substances which may be harmful to the client or others, in which case the chief administrator of the facility may direct reasonable examination of such mail and regulate the disposition of such items or substances.
      2. Clients in residential facilities shall be afforded reasonable opportunities for telephone communication, to make and receive confidential calls, unless there is reason to believe that the content of the telephone communication may be harmful to the client or others, in which case the chief administrator of the facility may direct reasonable observation and monitoring to the telephone communication.
      3. Clients shall have an unrestricted right to visitation subject to reasonable rules of the facility. However, nothing in this provision shall be construed to permit infringement upon other clients’ rights to privacy.
      (b) Each client has the right to the possession and use of his or her own clothing and personal effects, except in those specific instances where the use of some of these items as reinforcers is essential for training the client as part of an appropriately approved behavioral program. The chief administrator of the facility may take temporary custody of such effects when it is essential to do so for medical or safety reasons. Custody of such personal effects shall be promptly recorded in the client's record, and a receipt for such effects shall be immediately given to the client, if competent, or the client's parent or legal guardian.
      1. All money belonging to a client held by the department shall be held in compliance with s. 402.17(2).
      2. All interest on money received and held for the personal use and benefit of a client shall be the property of that client and shall not accrue to the general welfare of all clients or be used to defray the cost of residential care. Interest so accrued shall be used or conserved for the personal use or benefit of the individual client as provided in s. 402.17(2).
      3. Upon the discharge or death of a client, a final accounting shall be made of all personal effects and money belonging to the client held by the department. All such personal effects and money, including interest, shall be promptly turned over to the client or his or her heirs.
      (c)Each client shall receive prompt and appropriate medical treatment and care for physical and mental ailments and for the prevention of any illness or disability. Medical treatment shall be consistent with the accepted standards of medical practice in the community.
      1. Medication shall be administered only at the written order of a physician. Medication shall not be used as punishment, for the convenience of staff, as a substitute for implementation of an individual or family support plan or behavior modification programming, or in unnecessary or excessive quantities.
      2. Daily notation of medication received by each client in a residential facility shall be kept in the client's record.
      3. Periodically, but no less frequently than every 6 months, the drug regimen of each client in a residential facility shall be reviewed by the attending physician or other appropriate monitoring body, consistent with appropriate standards of medical practice. All prescriptions shall have a termination date.
      4. When pharmacy services are provided at any residential facility, such services shall be directed or supervised by a professionally competent pharmacist licensed according to the provisions of chapter 465.
      5. Pharmacy services shall be delivered in accordance with the provisions of chapter 465.
      6. Prior to instituting a plan of experimental medical treatment or carrying out any necessary surgical procedure, express and informed consent shall be obtained from the client, if competent, or the client’s parent or legal guardian. Information upon which the client shall make necessary treatment and surgery decisions shall include, but not be limited to:
      a. The nature and consequences of such procedures.
      b. The risks, benefits, and purposes of such procedures.
      c. Alternate procedures available.
      7. When the parent or legal guardian of the client is unknown or unlocatable and the physician is unwilling to perform surgery based solely on the client’s consent, a court of competent jurisdiction shall hold a hearing to determine the appropriateness of the surgical procedure. The client shall be physically present, unless the client’s medical condition precludes such presence, represented by counsel, and provided the right and opportunity to be confronted with, and to cross-examine, all witnesses alleging the appropriateness of such procedure. In such proceedings, the burden of proof by clear and convincing evidence shall be on the party alleging the appropriateness of such procedures. The express and informed consent of a person described in subparagraph 6. may be withdrawn at any time, with or without cause, prior to treatment or surgery.
      8. The absence of express and informed consent notwithstanding, a licensed and qualified physician may render emergency medical care or treatment to any client who has been injured or who is suffering from an acute illness, disease, or condition if, within a reasonable degree of medical certainty, delay in initiation of emergency medical care or treatment would endanger the health of the client.
      (d) Each client shall have access to individual storage space for his or her private use.
      (e) Each client shall be provided with appropriate physical exercise as prescribed in the client’s individual or family support plan. Indoor and outdoor facilities and equipment for such physical exercise shall be provided.
      (f) Each client shall receive humane discipline.

        (g) No client shall be subjected to a treatment program to eliminate bizarre or unusual behaviors without first being examined by a physician who in his or her best judgment determines that such behaviors are not organically caused.
      1. Treatment programs involving the use of noxious or painful stimuli shall be prohibited.
      2. All alleged violations of this paragraph shall be reported immediately to the chief administrative officer of the facility or the district administrator, the department head, and the Florida local advocacy council. A thorough investigation of each incident shall be conducted and a written report of the finding and results of such investigation shall be submitted to the chief administrative officer of the facility or the district administrator and to the department head within 24 hours of the occurrence or discovery of the incident.
      3. The department shall promulgate by rule a system for the oversight of behavioral programs. Such system shall establish guidelines and procedures governing the design, approval, implementation, and monitoring of all behavioral programs involving clients. The system shall ensure statewide and local review by committees of professionals certified as behavior analysts pursuant to s. 393.17. No behavioral program shall be implemented unless reviewed according to the rules established by the department under this section. Nothing stated in this section shall prohibit the review of programs by the Florida statewide or local advocacy councils.
      (h) Each client engaged in work programs which require compliance with federal wage and hour laws shall be provided with minimum wage protection and fair compensation for labor in accordance with the federal wage-per-hour regulations.
      (i) Clients shall have the right to be free from unnecessary physical, chemical, or mechanical restraint. Restraints shall be employed only in emergencies or to protect the client from imminent injury to himself or herself or others. Restraints shall not be employed as punishment, for the convenience of staff, or as a substitute for a habilitative plan. Restraints shall impose the least possible restrictions consistent with their purpose and shall be removed when the emergency ends. Restraints shall not cause physical injury to the client and shall be designed to allow the greatest possible comfort.
      1.Mechanical supports used in normative situations to achieve proper body position and balance shall not be considered restraints, but shall be prescriptively designed and applied under the supervision of a qualified professional with concern for principles of good body alignment, circulation, and allowance for change of position.
      2. Totally enclosed cribs and barred enclosures shall be considered restraints.
      3. Daily reports on the employment of physical, chemical, or mechanical restraints by those specialists authorized in the use of such restraints shall be made to the appropriate chief administrator of the facility, and a monthly summary of such reports shall be relayed to the district administrator and the Florida local advocacy council. The reports shall summarize all such cases of restraints, the type used, the duration of usage, and the reasons therefor. Districts shall submit dis-trictwide quarterly reports of these summaries to the state Developmental Disabilities Program Office.
      4. The department shall post a copy of the rules promulgated under this section in each living unit of residential facilities. A copy of the rules promulgated under this section shall be given to all staff members of licensed facilities and made a part of all preservice and inservice training programs.
      (j)l. Each client shall have a central record. The record shall include data pertaining to admission and such other information as may be required under rules of the department.
      2. Unless waived by the client, if competent, or the client's parent or legal guardian if the client is incompetent, the client's central record shall be confidential and exempt from the provisions of s. 119.07(1), and no part of it shall be released except:
      a. The record may be released to physicians, attorneys, and government agencies having need of the record to aid the client, as designated by the client, if competent, or the client's parent or legal guardian, if the client is incompetent.
      b. The record shall be produced in response to a subpoena or released to persons authorized by order of court, excluding matters privileged by other provisions of law.
      c. The record or any part thereof may be disclosed to a qualified researcher, a staff member of the facility, or an employee of the department when the administrator of the facility or the secretary of the department deems it necessary for the treatment of the client, maintenance of adequate records, compilation of treatment data, or evaluation of programs.

        d. Information from the records may be used for statistical and research purposes if the information is abstracted in such a way to protect the identity of individuals.
      3. All central records for each client in residential facilities shall be kept on uniform forms distributed by the department. The central record shall accurately summarize each client’s history and present condition.
      4. The client, if competent, or the client’s parent or legal guardian if the client is incompetent, shall be supplied with a copy of the client’s central record upon request.
      (k) Each client residing in a residential facility who is eligible to vote in public elections according to the laws of the state shall have the right to vote. Facilities operators shall arrange the means to exercise the client’s right to vote.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Rosalind VIRGIL, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-545.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    Rosalind Virgil, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa.
   VILLANTI, Judge.

Rosalind Virgil appeals the summary denial of her motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s denial of the claim raised by Virgil as being without merit. However, we remand for correction three of Virgil’s sentences because it is apparent from the face of the record before this court that the sentences are illegal. See Higgins v. State, 799 So.2d 344 (Fla. 2d DCA 2001).

In circuit court case number 95-15938, Virgil pleaded guilty to possession of cocaine with intent to sell or deliver in violation of section 893.13(l)(a), Florida Statutes (1995). The trial court sentenced her as a habitual felony offender to fifteen years in prison. Pursuant to section 775.084(l)(a)(3), Florida Statutes (1995), a defendant cannot be sentenced as a habitual felony offender for violating section 893.13 relating to the purchase or the possession of a controlled substance. See, e.g., Roberts v. State, 753 So.2d 136 (Fla. 2d DCA 2000); Woods v. State, 807 So.2d 727 (Fla. 1st DCA 2002). This includes the offense of possession of cocaine with intent to sell or deliver. See Roberts, 753 So.2d at 137-38; Ishmael v. State, 735 So.2d 509 (Fla. 2d DCA 1999). Because the habitual felony offender statute prohibited a habitual felony offender sentence for possession of cocaine, Virgil’s sentence is illegal and subject to correction under rule 8.800(a). See Carter v. State, 786 So.2d 1173, 1180 (Fla.2001) (holding that a habitual offender sentence is illegal where the habitual offender statute in effect at the time of the offense prohibited the imposition of a habitual offender sentence); Ishmael, 735 So.2d at 510 (holding that such a sentence is illegal and may be corrected pursuant to rule 3.800(a)); Ferro v. State, 782 So.2d 948 (Fla. 5th DCA 2001) (same). This court ordered the State to respond, and the State conceded that the sentence in this case is illegal. Therefore, we remand for the trial court to resentence Virgil in case number 95-15938 pursuant to the guidelines in effect at the time of the offense. See Gadsen v. State, 849 So.2d 358 (Fla. 2d DCA 2003).

It is not apparent from the limited record before this court whether Virgil was sentenced as a habitual felony offender on another count of possession of cocaine with intent to sell or deliver in circuit court case number 95-3049. Therefore, we affirm without prejudice to any right Virgil may have to raise this claim relating to her habitual felony offender sentence in case number 95-3049.

In addition, in circuit court case numbers 95-4623 and 96-06981, Virgil was sentenced as a habitual felony offender to trafficking in cocaine, 28 grams or more but less than 200 grams. These sentences are illegal because section 893.135(l)(b)(l)(a) of the Florida Statutes provides that if the quantity of the cocaine involved is 28 grams or more but less than 200 grams, the defendant shall be sentenced pursuant to the sentencing guidelines. See Wright v. State, 743 So.2d 103 (Fla. 1st DCA 1999). Therefore, Virgil could not have been sentenced as a habitual felony offender on these two trafficking offenses. See Fortner v. State, 779 So.2d 462 (Fla. 2d DCA 2000); Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000). This court ordered the State to respond, and the State conceded that the sentences in these two cases are illegal. Accordingly, we remand for the trial court to resentence Virgil on the trafficking offenses in case numbers 95-4623 and 96-06981 pursuant to the sentencing guidelines in effect at the time of the offense in each case.

If, in the above three cases, Virgil entered negotiated pleas to habitual sentences, the trial court must permit the State either to agree to resentencing or to withdraw from the plea agreement and proceed to trial. See Hughes v. State, 850 So.2d 664 (Fla. 1st DCA 2003).

Affirmed but remanded to the trial court for correction of sentences.

ALTENBERND, C.J., and WALLACE, J., Concur.

      . Both the 1993 version of the statute, applicable to circuit court case number 95-4623, and the 1995 version of the statute, applicable to circuit court case number 96-06981, require a defendant to be sentenced pursuant to the guidelines.


author: ALTENBERND, Chief Judge.

text:
    Rodney G. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2533.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
   ALTENBERND, Chief Judge.

Rodney G. Williams appeals an order “striking” his timely motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. When Mr. Williams filed his motion in circuit court, the State responded with a motion to strike Mr. Williams’ motion because it was not sworn. It appears that the State also prepared and submitted an order granting this motion to strike. The trial court entered the order prepared by the State. Mr. Williams appeals that order.

The State’s motion to strike is odd because Mr. Williams filed his motion on a form document that appears to contain all of the requirements of the form approved by the Florida Supreme Court in Florida Rule of Criminal Procedure 3.987. Mr. Williams clearly signed the unnotarized oath at the end of the document. This unnotarized oath was added to the standard form by the supreme court in 1993. See State v. Shearer, 628 So.2d 1102 (Fla.1993). Thus, the State’s motion was without merit. See Armey v. State, 880 So.2d 1269 (Fla. 2d DCA 2004); Patmore v. State, 735 So.2d 521 (Fla. 2d DCA 1999).

To further complicate matters, it is well established that a motion that is actually unsworn should not be stricken, but should be dismissed without prejudice. See Morais v. State, 640 So.2d 1227 (Fla. 2d DCA 1994). Most trial courts dismiss such pleadings with leave to amend to include the oath within twenty or thirty days. This procedure renders the order nonfínal and nonappealable and saves considerable judicial resources.

The order on appeal merely grants a motion to strike. It does not contain the language required by rule 3.850(g) notifying the movant that he has thirty days to appeal. It is not entirely clear that the trial court intended this order to be a final order, but the order does not seem to permit further action in the trial court proceeding. Accordingly, we conclude that the simplest approach is to treat the order on appeal as a final order and reverse. On remand, the trial court shall enter whatever orders are appropriate to resolve this motion.

Reversed and remanded.

COVINGTON and KELLY, JJ., Concur.


author: PER CURIAM.

text:
    Terry BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1998.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
   PER CURIAM.

Terry Barnes challenges the summary denial of his motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the order of the trial court without prejudice to any right Barnes might have to raise these same claims in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. See Drayton v. State, 786 So.2d 1196 (Fla. 2d DCA 2001).

FULMER, COVINGTON, and KELLY, JJ., Concur.


text:
    Robert EY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-98.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
   PER CURIAM.

Affirmed. See Gipson v. State, 616 So.2d 992 (Fla.1993); Boyd v. State, 880 So.2d 726 (Fla. 2d DCA 2004); McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003); Sigafoos v. State, 825 So.2d 529 (Fla. 2d DCA 2002); Cook v. State, 816 So.2d 773 (Fla. 2d DCA 2002); Caraballo v. State, 805 So.2d 882 (Fla. 2d DCA 2001); Shaw v. State, 780 So.2d 188 (Fla. 2d DCA 2001); State v. Spriggs, 754 So.2d 84 (Fla. 4th DCA 2000).

After this court held in Boyd that a claim of vindictive sentencing is not rateable in a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), the Fifth District Court of Appeal in Johnson v. State, 877 So.2d 795 (Fla. 5th DCA 2004), reversed a circuit court order denying a rule 3.800(a) motion and remanded for consideration of the claim of vindictive sentencing raised in the motion. We certify direct conflict with Johnson.

Also as this court did in McCall, we certify direct conflict with Richardson v. State, 884 So.2d 950, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003). This affir-mance is without prejudice to any right Mr. Ey might have to file with the circuit court a timely and facially sufficient sworn motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 or to file with this court a timely and facially sufficient sworn petition alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(c).

Affirmed; conflict certified.

FULMER, COVINGTON, and VILLANTI, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Nelson VELAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5750.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    James Marion Moorman, Public Defender, and Charles D. Peters, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Nelson Velazquez appeals his conviction and life sentence for attempted second-degree murder. We reverse based on fundamental error in the jury instruction on self-defense.

As part of the jury instruction on self-defense, the trial court gave an instruction on the forcible felony exception to self-defense. The trial court instructed the jury that “the use of force likely to cause death or great bodily harm is not justifiable if you find: 1. Nelson M. Velazquez was attempting to commit, committing, or escaping after the commission of Attempted Second Degree Murder with a Weapon.” This instruction, based on section 776.041(1), Florida Statutes (2002), “is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time.” Cleveland v. State, 2004 WL 1530876, 887 So.2d 362, 363 (Fla. 5th DCA July 9, 2004). Although defense counsel made no objection at trial, this court has held that the instruction essentially negates the defense and constitutes fundamental error when a defendant committed a single act and claimed self-defense. See Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004); see also Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002). We appreciate the State’s candor in briefing this issue. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

SALCINES and COVINGTON, JJ., Concur.


author: COVINGTON, Judge.

text:
    Joshua David SLOAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4782.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   COVINGTON, Judge.

Joshua David Sloan appeals the final judgment adjudicating him guilty of DUI manslaughter pursuant to section 316.193(3), Florida Statutes (2002). He argues the trial court erred in concluding it did not have discretion under the youthful offender statute to withhold adjudication. We agree and reverse.

Section 958.04, Florida Statutes (2002), “Judicial disposition of youthful offenders,” provides:

(2) In lieu of other criminal penalties authorized by law and notwithstanding any imposition of consecutive sentences, the court shall dispose of the criminal case as follows:
(a) The court may place a youthful offender under supervision on probation or in a community control program, with or without an adjudication of guilt, under such conditions as the court may lawfully impose for a period of not more than 6 years. Such period of supervision shall not exceed the maximum sentence for the offense for which the youthful offender was found guilty.

(Emphasis added.) The trial court here stated it believed the youthful offender statute could not be used to circumvent mandatory adjudication for DUI under section 316.656(1), Florida Statutes (2002), which provides:

(1) Notwithstanding the provisions of s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of s. 316.193, for manslaughter resulting from the operation of a motor vehicle, or for vehicular homicide.

(Emphasis added.) The trial court was mistaken. If the trial court classifies a defendant as a youthful offender, section 316.656(1) is inapplicable. State v. Gibron, 478 So.2d 475, 476 (Fla. 2d DCA 1985).

Accordingly, we reverse and remand with directions to the trial court to exercise its discretion as to whether withholding adjudication of guilt is appropriate. See Bristol v. State, 710 So.2d 761, 761 (Fla. 2d DCA 1998).

Reversed and remanded.

KELLY and WALLACE, JJ., Concur.


text:
    Patrick-Henry TALBERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2188.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
   ALTENBERND, Chief Judge.

Patrick-Henry Talbert appeals the trial court’s order summarily denying his timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Talbert’s motion contains two claims. We affirm without further comment the trial court’s order denying claim two, but reverse and remand for further proceedings concerning claim one.

Mr. Talbert was convicted in 1999 of racketeering, fraudulent sale of securities, and numerous other offenses. We affirmed his direct appeal in 2001. Talbert v. State, 791 So.2d 476 (Fla. 2d DCA 2001) (table decision). In his motion for post-conviction relief, Mr. Talbert’s first claim stated that the prosecutor repeatedly called him a liar and argued that Mr. Talbert was a minister who was violating the commandment, “Thou shalt not lie.” He argued that his lawyer was ineffective because he failed to object to this prosecu-torial misconduct.

The trial court summarily denied this portion of the motion without attaching any portion of the record, explaining that prosecutorial misconduct should be raised on direct appeal and not in a motion for postconviction relief. The trial court’s order cited to this court’s opinion in Gadson v. State, 773 So.2d 1183 (Fla. 2d DCA 2000). However, this court in Gadson reversed an order virtually identical to the order on appeal. In Gadson, we stated:

Gadson alleges that his trial counsel was ineffective for failing to object contemporaneously and with specificity to improper comments made by the prosecutor during closing arguments. The trial court denied the claim stating that prosecutorial misconduct should be addressed on direct appeal. The trial court is correct that prosecutorial misconduct should be addressed on appeal, but no documents were attached to the order denying relief to show that Gad-son’s counsel preserved the issue for appeal with contemporaneous objections. If counsel did not preserve the issue, it could not have been addressed on appeal unless counsel’s ineffectiveness in not objecting was apparent from the face of the record. See Eure v. State, 764 So.2d 798 (Fla. 2d DCA 2000). On remand, the trial court must determine whether Gadson’s trial counsel was ineffective in not objecting to improper closing argument and, if so, whether there is a reasonable probability that the omissions affected the outcome of the trial.

773 So.2d at 1183-84.

We reverse and remand this case with the same directions that we gave to the trial court in Gadson.

COVINGTON and KELLY, JJ., Concur.


text:
    CITY OF ST. PETERSBURG, Appellant, v. Elmer Daniel PATTERSON, Appellee.
    No. 2D04-47.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    John C. Wolfe, City Attorney, and Ernest Mueller and Thomas Bustin, Assistant City Attorneys, St. Petersburg, for Appellant.
    Jennifer J. Card and Scot E. Samis of Abbey, Adams, Byelick, Kiernan, Mueller & Lancaster, L.L.P., St. Petersburg; and Diane Bailey of Law Offices of Diane Bailey, P.A., St. Petersburg, for Appellee.
   PER CURIAM.

In this appeal, the City of St. Peters-burg challenges an order of the circuit court granting mandamus relief. We affirm and direct the Civil Service Board of the City of St. Petersburg to convene and consider Petitioner Patterson’s motion for attorney’s fees and costs.

Affirmed.

FULMER, DAVIS, and KELLY, JJ., Concur.


text:
    James Howard BLOODWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4877.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed. See State v. Rucker, 613 So.2d 460 (Fla.1993). We do not consider the State’s request to correct a scrivener’s error in the written sentencing order because the error was not brought to the trial court’s attention by way of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b).

COVINGTON, KELLY, and WALLACE, JJ., Concur.


text:
    Daniel Allen BUTLER, Petitioner, v. STATE of Florida, Respondent.
    No. 2D03-4139.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    Daniel Alen Butler, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

In this certiorari proceeding Daniel Butler challenges the circuit court’s denial of his motion to reduce, mitigate, or modify his sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). Butler contended he was entitled to credit against his prison sentence for time spent in jail awaiting sentencing. We deny the petition for writ of certiorari. See Brantley v. Holloway, 685 So.2d 31 (Fla. 2d DCA 1996). We note, however, that Butler’s argument is cognizable under rule 3.800(a). See Tinker v. State, 870 So.2d 79 (Fla. 2d DCA 2003). Our disposition is without prejudice to Butler’s right to file a motion for relief under that rule.

Petition for certiorari denied.

CANADY and VILLANTI, JJ., Concur.


author: CANADY, Judge.

text:
    OWNERS INSURANCE COMPANY, a Michigan corporation, Appellant, v. THE HARTFORD FIRE INSURANCE COMPANY, a Connecticut corporation, Appellee. The Hartford Fire Insurance Company, a Connecticut corporation, Appellant, v. Owners Insurance Company, a Michigan corporation, Appellee.
    Nos. 2D03-2188, 2D03-3182.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    Michael S. Rywant and Kerry C. McGuinn, Jr. of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Owners Insurance Company.
    Scott S. Katz and Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for The Hartford Fire Insurance Company.
   CANADY, Judge.

These consolidated cases relate to a claim made under a commercial general liability policy issued by Owners Insurance Company. The claim was for property damage which occurred during the construction of the Tampa Federal Courthouse.

The Owners policy named BCI, Inc., a subcontractor on the courthouse construction project, as the insured. Clark Construction Group, the general contractor on the project, was an additional insured under the Owners policy. Hartford Fire Insurance Company insured Clark under a builder’s risk policy. After paying Clark for the property damage to the courthouse, Hartford made a first-party claim under the Owners policy. Hartford’s claim was based on the status of Clark-Hartford’s insured-as an additional insured under the Owners policy. A partial summary judgment was entered in favor of Hartford against Owners. The summary judgment determined that under its policy Owners was liable to Hartford for any damages to the courthouse caused by the negligent work of BCI. Ultimately, Hartford obtained a judgment against Owners based on a jury verdict.

On appeal, Owners challenges the basis for the judgment on various grounds. Hartford appeals an order granting prejudgment interest and challenges the trial court’s calculation of the amount of interest awarded. We conclude that the arguments raised by Owners lack merit and, therefore, affirm the judgment in favor of Hartford. We will not further address Owner’s appeal. We conclude, however, that the trial court erred in its calculation of prejudgment interest due to Hartford. We therefore reverse the order awarding prejudgment interest.

The trial court determined that prejudgment interest was due from the date of Hartford’s payment to Clark and calculated the prejudgment interest on that basis. In the circumstances present here — where Hartford’s claim against Owners was based on Clark’s status as an additional insured under the Owners policy — the prejudgment interest awarded by the trial court was inadequate.

In Taylor v. New Hampshire Insurance Co., 489 So.2d 207, 207 (Fla. 2d DCA 1986), we held that where a claim for property damage is made by an insured on an insurance policy “prejudgment interest [is due] from the date that the proceeds would have been due under the policy.” See also Biscayne Supermarket, Inc. v. Travelers Ins. Co., 485 So.2d 861 (Fla. 3d DCA 1986). The principle set forth in Taylor applies to the instant case. We therefore reverse the order awarding prejudgment interest with instructions that the trial court recalculate the prejudgment interest based on the date the proceeds for the loss would have been due under the Owners policy.

Affirmed in part, reversed in part, and remanded.

FULMER and COVINGTON, JJ., Concur.


text:
    Melvin W. DAVIS A/K/A Robert Montgomery, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2477.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2004.
    Melvin W. Davis a/k/a Robert Montgomery, Raiford, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Sandillo v. State, 842 So.2d 1018 (Fla. 5th DCA 2003).

PETERSON, PLEUS and MONACO, JJ., concur.


text:
    Keith KELVIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3159.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.
    Rehearing Denied Oct. 18, 2004.

      Keith Kelvin, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

KAHN, WEBSTER and HAWKES, JJ., concur.


text:
    Jimmy L. ATES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3613.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.
    Robert Augustus Harper and Michael Robert Ufferman of Robert Augustus Harper Law Firm, P.A.y Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General; Robert R. Wheeler, Bureau Chief — Criminal Appeals; and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Lawrence v. State, 831 So.2d 121 (Fla.2002).

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    Amanda MORGAN, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D04-3472.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.
    Rehearing Denied Oct. 27, 2004.
    David W. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for petitioner.
    Enoch J. Whitney, General Counsel, and Rosena H. Finklea, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla.2000).

KAHN, WEBSTER and HAWKES, JJ., concur.


text:
    Heather Donene ROBALDO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4021.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 2004.
   Upon consideration of Appellant’s motion for rehearing or clarification filed August 14, 2004, it is

ORDERED that Appellant’s motion for rehearing is granted and the prior opinion filed July 30, 2004, is withdrawn. This court acknowledges the receipt of and accepts Appellant’s notice of voluntary dismissal. Accordingly, this appeal is dismissed.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.


text:
    Julian D. CARPENTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1724.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 2004.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Julian D. Carpenter, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   CANADY, Judge.

Julian D. Carpenter appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion. Counsel for Carpenter initially filed an Anders brief. We determined, however, that one of the grounds raised by Carpenter had arguable merit and accordingly ordered supplemental briefing pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Because we conclude that the summary denial of that ground raised by Carpenter was erroneous, we reverse.

Carpenter was convicted of two counts of a lewd and lascivious act on a child under the age of sixteen in violation of section 800.04, Florida Statutes (1997). He was sentenced to two concurrent prison terms of fifteen years. These sentences were for the statutory maximum applicable to Carpenter’s second-degree felony offenses. See §§ 800.04(6)(b), 775.082(3)(c), Fla. Stat. (1997). In the ground of Carpenter’s motion on which we ordered supplemental briefing, Carpenter asserted that his trial counsel rendered ineffective assistance of counsel by failing to investigate evidence relating to the date of the occurrence of the offenses for which Carpenter was convicted. The information filed against Carpenter alleged that the offenses occurred on October 5, 1998. The sentences imposed on him were based on the statutory provisions that were effective on that date. In his motion, Carpenter claimed that the alleged episode from which the charges against him arose did not occur on October 5, 1998, but on September 28,1998.

The alleged difference in the date on which the offenses occurred is significant because the Criminal Punishment Code became effective on October 1, 1998. See § 921.002, Fla. Stat. (1997). Under the Criminal Punishment Code the sentencing judge has unfettered discretion to impose the statutory maximum for offenses committed on or after October 1, 1998. See § 921.002(l)(g). Sentencing for offenses committed prior to October 1, 1998, was governed by the sentencing guidelines then in effect. See § 921.0016. Accordingly, if the offenses for which Carpenter was convicted occurred on September 28, 1998 — as Carpenter asserts — Carpenter should have been sentenced under the guidelines rather than under the Criminal Punishment Code.

Carpenter alleged in his motion that the victim testified at trial that on the morning when the offenses occurred she was “home from school.” Carpenter asserted that he informed his counsel that the incident occurred on September 28, 1998, and requested that counsel investigate school attendance records to substantiate that fact. Carpenter alleged that those records “would have conclusively demonstrated that the incident occurred on September 28, 1998,” and contended that counsel’s failure to investigate was ineffective assistance.

In rejecting Carpenter’s claim, the post-conviction trial court stated that the “Criminal Report Affidavit indicates that the offense occurred on October 5, 1998.” The court reasoned that the affidavit, which the court attached to its order, established that Carpenter’s “assertions that the incident occurred on September 28, 1998, are incorrect” and that Carpenter had therefore “failed to prove deficient conduct on the part of trial counsel” as required by Strickland.

As the State has now conceded in its supplemental brief, the postconviction trial court erred by summarily denying Carpenter’s claim that trial counsel provided ineffective assistance by failing to investigate the school attendance records. The criminal report affidavit is not sufficient to refute Carpenter’s claim. Even if the affidavit were competent evidence concerning the date of the incident — -which it is not— it would not conclusively establish that counsel’s failure to investigate the school attendance records was not deficient performance. Based on Carpenter’s allegations, school attendance records could establish that the victim was in attendance at school on October 5, but not on September 28. That would be relevant to the issue of when the offenses occurred and whether Carpenter should have been sentenced under the guidelines rather than the Criminal Punishment Code. Even competent evidence in the record showing that the offense occurred on October 5 would not conclusively refute Carpenter’s claim that his counsel should have investigated the availability of evidence that would contradict the record evidence concerning the date of the offenses.

We thus conclude that Carpenter’s claim was neither facially insufficient nor conclusively refuted by the record. Accordingly, we reverse the denial of the ground of Carpenter’s motion alleging that counsel provided ineffective assistance by failing to investigate the school attendance records. The case is remanded for further proceedings consistent with this opinion and in accordance with rule 3.850(d).

Affirmed in part, reversed in part, and remanded.

SALCINES and STRINGER, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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

      . Burgess v. State, 831 So.2d 137 (Fla.2002), held that in a proceeding pursuant to rule 3.800(a) a police report constituted hearsay that could not be used to support the determination as a matter of law that the defendant's offense — for which he had received consecutive habitual felony offender sentences — occurred in the same criminal episode. The Burgess court observed that "the information contained in police reports is ordinarily considered hearsay and inadmissible in an adversary criminal proceeding” and that "there would be great mischief in treating such reports as undisputed facts for purposes of a rule 3.800(a) motion.” Id. at 140, 142.


author: WHATLEY, Judge.

text:
    Luis Javier DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5379.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 2004.

      Alex R. Stavrou, Tampa, and Craig A. Huffman, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés and Tiffany Gatesh Fearing, Assistant Attorneys General, Tampa, for Appellee.
   WHATLEY, Judge.

Luis Javier Diaz appeals his convictions and sentences in two circuit court cases, 01-CF-016231 and 02-CF-5013. We reverse Diaz’s convictions and sentences in case number 01-CF-016231 for trafficking and possession of a controlled substance because the trial court erred in denying his motion for judgment of acquittal in that case, and we affirm without comment his convictions in case number 02-CF-5013.

In case number 01-CF-016231, Diaz and codefendant Trisha Birney were tried together at a jury trial. Diaz was convicted by the jury of one count each of trafficking in amphetamine, possession of a controlled substance (psilocybin, otherwise known as hallucinogenic mushrooms), manufacture of cannabis, and possession of cannabis. The facts adduced at trial revealed that two Tampa Police Department officers were dispatched to an apartment upon a complaint that someone could see marijuana plants growing on the balcony. The officers observed the plants and went to the door of the apartment. One of the occupants, Trisha Birney, answered the door and invited the officers into the apartment. Tanya Ohmstead, the girlfriend of the lessee of the apartment, Jonathan Granati, was also present. Diaz, Bir-ney’s boyfriend, was seated on a couch in the living room holding their infant. Officer Lee introduced himself and told Diaz that he and Detective Goodman were there in regard to the marijuana plants on the balcony. According to Officer Lee, Diaz laughed and said, “Oh, those things.” Officer Lee asked Diaz if they could search the apartment, and Diaz told them to go ahead. Diaz said that the plants were not his, he did not live there, and he was just watching the place for a friend. That friend, Granati, testified at trial that he was in jail at the time for trafficking in over 400 grams of ecstasy and that he sold ecstasy to Diaz in small amounts because Diaz never had much money.

Upon searching the apartment, the officers observed that it had three bedrooms. Detective Goodman testified that he was able to determine which bedroom Diaz and Birney were using. He and Officer Lee searched that room and they found an electronic weight scale, a glass bong, a marijuana pipe on a nightstand, and seven ecstasy pills on a VCR. On a closet shelf that was not at eye level for the 6'3" Detective Goodman, the officers found tablets of ecstasy in bags, as well as an opaque shoe box containing a trafficking amount of ecstasy and a folded up McDonald’s bag containing hallucinogenic mushrooms, $5000 in cash, and tobacco rolling papers. There was nothing in the shoe box that linked it to Diaz. Officer Lee testified that Diaz was very cooperative and when asked about the pills found in the bedroom he was using, he said that a white man with the street name of Chicago had left the shoe box the night before. Diaz told Officer Lee that he never looked inside the box; he just put it on a shelf in the bedroom closet. Officer Lee further testified that Diaz denied any knowledge of any of the pills found in the bedroom, either inside or outside of the shoe box.

At the close of the State’s case, Diaz unsuccessfully moved for judgment of acquittal on the ground that the State, in attempting to prove that he had constructive possession of the illegal drugs found during the search of the apartment, had not proven that he knew of the illicit nature of the contents of the shoe box.

Proof of constructive possession of illegal drugs requires proof “beyond a reasonable doubt that the defendant knew of their presence, was able to exercise dominion and control over them, and knew of their illicit nature.” D.M.C. v. State, 869 So.2d 575, 576 (Fla. 2d DCA 2003). In this appeal, Diaz argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove all three elements of constructive possession. “For an issue to be preserved for appeal, however, it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’ ” Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). Thus, because in moving for judgment of acquittal the only element of constructive possession that Diaz argued the State failed to prove was Diaz’s knowledge of the illicit nature of the contents of the shoe box, that is the only issue before this court in reviewing the trial court’s denial of that motion.

In light of the fact that the shoe box was accessible to the three people present in the apartment, the State was required to establish Diaz’s knowledge of the presence of the contraband by independent proof. N.K.W. v. State, 788 So.2d 1036 (Fla. 2d DCA 2001) (citing S.B. v. State, 657 So.2d 1252 (Fla. 2d DCA 1995)). The only evidence of knowledge that the State points to is the fact that Diaz placed the shoe box on a shelf where the same brand of illegal pills was located. That fact does not establish that Diaz knew the illicit nature of the contents of the shoe box. Moreover, there was no evidence that Diaz knew that the illegal pills were on the shelf when he placed the shoe box there. Detective Goodman testified that the shelf upon which the shoe box was found was above eye level for him, and he is 6'3" tall. Defense counsel noted during argument on the motion for judgment of acquittal that Diaz is somewhere around 5'2" to 5'3" tall.

Accordingly, we reverse Diaz’s convictions of trafficking in amphetamines and possession of a controlled substance (psilo-cybin) and remand for resentencing.

Reversed and remanded.

CASANUEVA and STRINGER, JJ., concur.

      . Without the ecstasy pills found in the shoe box, there would not have been a trafficking amount of pills.


text:
    Patrick D. BURNHAM, Appellant, v. Amanda A. BURNHAM, Appellee.
    No. 2D03-1012.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 2004.

      Joseph C. Hood, Tampa, for Appellant.
    No appearance for Appellee.
   CANADY, Judge.

In this appeal of a final judgment of dissolution of marriage, Patrick D. Burn-ham, the former husband, challenges (a) the determination of the circuit court that the primary residence of the couple’s only child should be with the former wife, (b) an award of attorney’s fees to the former wife, (c) a provision requiring him to maintain life insurance to secure support payments, and (d) a provision that he make a will designating the child as beneficiary of his estate in the amount of at least $25,000. We affirm the provisions concerning primary residence and visitation and reverse on the other issues.

(a) Primary Residence and Visitation

Although a substantial hearing concerning custody of the child was apparently conducted, that hearing was not transcribed. The parties stipulated to, and the trial court approved, an order establishing a statement of evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). The judgment recites several factors supporting the determination that the child’s primary residence be with the mother. The judgment states that the former wife was more likely than the former husband to allow the child frequent and continuing contact and to encourage the child to have a close and continuing relationship with the other parent. The child had been residing with- the former wife for all but three months since the parties separated. For those three months the child lived with the maternal grandmother and the former wife saw the child every day. The judgment noted that the former husband had been arrested and placed on probation for six months for an act of domestic violence against the former wife. The judgment concluded that both parents are loving ' parents who are interested in the health, welfare, and development of the child and that the child had a loving bond with both parents. The judgment also concluded that both parents could provide the child with food, clothing, and medical care. The judgment ordered that the former husband have biweekly weekend visitation, as well as visitation on alternating holidays and thirty days in the summer.

In the absence of a suitable substitute for a trial transcript, the former husband cannot overcome the presumption of correctness of the trial court’s determination. Ordinarily, the absence of a transcript of the pertinent hearing precludes appellate review of a trial court’s determination concerning custody and visitation. See Sullivan v. Sullivan, 668 So.2d 329, 330 (Fla. 4th DCA 1996); Clayton v. Clayton, 442 So.2d 310, 311 (Fla. 1st DCA 1984) (citing Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979)); see also Pignataro v. Rutledge, 841 So.2d 636, 638 (Fla. 2d DCA 2003); Alday v. Gleason, 853 So.2d 1105, 1106 (Fla. 5th DCA 2003).

The former husband does submit the statement of evidence that was approved by the trial court pursuant to rule 9.200(b)(4). We conclude, however, that the statement of evidence — which can best be described as fragmentary — provides an insufficient basis for review of the trial court’s determination concerning custody and visitation. See Bei v. Harper, 475 So.2d 912, 915 (Fla. 2d DCA 1985) (holding that statement of evidence approved by trial court was “deficient, because it purported] to recite only segments of the trial proceedings”); see also Starks v. Starks, 423 So.2d 452, 453 (Fla. 1st DCA 1982) (holding that the statement of evidence was not “a sufficient substitute for ... a hearing transcript”). The factual findings in the judgment concerning custody thus must be affirmed. See Coleman v. Coleman, 492 So.2d 782 (Fla. 2d DCA 1986); Jolly v. Jolly, 572 So.2d 566 (Fla. 1st DCA 1991); Heath v. Killian, 556 So.2d 410, 412 (Fla. 1st DCA 1989). Those findings reflect that there was a substantial basis to support the trial court’s custody determination, which was well within that court’s wide discretion in ruling on custody based on the best interest of the child. The order determining custody therefore should be affirmed. See Artuso v. Dick, 843 So.2d 942, 944 (Fla. 4th DCA 2003); Miller v. Miller, 842 So.2d 168, 169, 170 (Fla. 1st DCA 2003).

(b) Attorney’s Fees

The judgment states that the former wife has established a need for contribution to the attorney’s fees which have been incurred and that the former husband’s superior earning capacity demonstrates that he had the ability to contribute to the need. The judgment directed that the former husband pay the sum of $1750 “which represents half of the reasonable attorney fees incurred by the [former wife].” The judgment recited the financial resources of the parties and thereby contained information concerning their relative ability to pay the fees. We therefore do not disturb the trial court’s determination concerning the former wife’s entitlement to fees. The amount of the fees determined by the trial court is another matter. The judgment contains no indication of the hours worked by the former wife’s attorney or a reasonable hourly rate. Reversal of the attorney’s fee award is required, given the absence of specific findings as to the number of hours reasonably expended and an hourly rate. See Beck v. Beck, 852 So.2d 934, 937 (Fla. 2d DCA 2003); Baime v. Baime, 850 So.2d 606, 607 (Fla. 4th DCA 2003); Saporito v. Saporito, 831 So.2d 697, 701 (Fla. 5th DCA 2002). A judgment provision simply stating the amount of attorney’s fees required to be paid without any specific findings regarding the basis for the determination of the amount is facially invalid. Maas v. Maas, 541 So.2d 160 (Fla. 2d DCA 1989). On this issue we remand for further proceedings.

(c) Insurance Requirement

Section 61.13(l)(c), Florida Statutes (2003), authorizes the trial court to order the obligor to maintain a life insurance policy to the extent necessary to secure an award of child support. In determining whether to make such an order, the court should consider in addition to the need for such insurance the cost and availability of such insurance, as well as the financial impact upon the obligor. Cozier v. Cozier, 819 So.2d 834, 837 (Fla. 2d DCA 2002); Cissel v. Cissel, 845 So.2d 993, 995 (Fla. 5th DCA 2003); Forgione v. Forgione, 845 So.2d 968, 969 (Fla. 4th DCA 2003). The amount of insurance must be related to the extent of the obligation being secured. Zangari v. Cunningham, 839 So.2d 918, 920 (Fla. 2d DCA 2003). The judgment and the record in this case lack any of the required showings, and the directive to maintain life insurance therefore must be reversed. On this issue we remand for further proceedings.

(d) Direction to Make a Will

The judgment provides that the child shall be designated in the father’s will as a beneficiary of his estate in the amount of at least $25,000 and also provides that the provision for child support shall be an obligation of the estate and shall not terminate on the death of the father. The court had no authority to impose such terms in the absence of consent. A parent’s obligation to support the child terminates at death, and the court lacks authority to compel support of the child by the parent’s estate. Flagler v. Flagler, 94 So.2d 592 (Fla.1957); Riley v. Riley, 131 So.2d 491, 492 (Fla. 1st DCA 1961); see also 25A Fla. Jur.2d Family Law § 859. These directives in the judgment are facially invalid and are therefore reversed.

Conclusion

For these reasons, the judgment is affirmed with respect to the determination of the child’s primary residence and visitation. The other provisions of the judgment challenged by the former husband are reversed. The matter is remanded to the circuit court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, remanded.

DAVIS and SALCINES, JJ„ Concur.


text:
    Chad Allen LAZZARI, Appellant, v. Emily LIN, Appellee.
    No. 2D04-3473.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 2004.

      Chad Allen Lazzari, pro se.
    Emily Lin, pro se.
   PER CURIAM.

Chad Allen Lazzari (the Father) challenges a postdissolution order instructing him to assist Emily Lin (the Mother) in obtaining a replacement passport for their four-year-old daughter. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.110(a)(1). Because the Mother wishes to travel to China with the child in late September 2004, we have expedited this appeal.

The Father is a United States citizen. The Mother is a Chinese national who has been granted permanent residence status in the United States. The final judgment dissolving the parties’ marriage provided that the Father would retain possession of the child’s passport. In the final judgment the circuit court explained that

[t]his provision is not intended to prohibit the child’s travel outside the United States of America, but only to ensure the [Father] has adequate notice of any such travel. The [Father’s] request for a travel bond is denied. Neither party shall permanently remove the child from Pinellas County, Florida without Order of this Court or written permission of the other party.

The Father appealed from the final judgment of dissolution but later dismissed that appeal.

The present controversy arose when the Mother began planning a trip to China and asked the Father for the child’s passport. When it was not forthcoming, she filed a motion to have the father held in contempt. After a hearing, the circuit court ordered the Father to provide the child’s passport to the Mother. Again, the Father failed to give the child’s passport to the Mother, and she filed what she styled as an “emergency motion for assistance in obtaining the minor child’s passport.”

After a hearing, the court entered the order that is the subject of this appeal. The court found that the Father had given the child’s passport to his new brother-in-law, a police officer in Beijing, China. The passport was subsequently lost. As a result, the circuit court granted the Mother’s motion and ordered the Father to assist the Mother in obtaining a replacement passport for the child in anticipation of a September 24, 2004, trip to China to visit the Mother’s parents. The Father was also ordered to reimburse the Mother for any costs incurred in replacing the passport.

The Father’s pro se briefs do not direct our attention to any error in the circuit court proceedings. Instead, he asks this court to permanently restrict the Mother from removing the child from the United States, instruct the Mother to immediately relinquish possession of the newly obtained passport to the Father, this court, or another third party, and direct the State Department to permanently deny passport services to the Mother. The Father did not seek this relief in the trial court before coming to this court. An appellate court’s jurisdiction is limited. As stated in Florida Department of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987), the primary function of an appellate court is to “determine whether the [lower tribunal] made any ruling or conducted the proceedings in a manner contrary to established principles of law to the prejudice of the appellant” (quoting Carolina Lumber Co. v. Daniel, 97 So.2d 156, 158 (Fla. 1st DCA 1957)). In performing this function, we are constrained by the principle that the judgment of a lower tribunal is presumed to be correct and the burden is on the appellant or petitioner to demonstrate reversible error. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979). Here, rather than asking this court to perform its appellate function, the Father has attempted to treat this court as an alternate forum in which to litigate this dispute. The relief he seeks is beyond the power of this court. Accordingly, we affirm the trial court.

Affirmed.

NORTHCUTT, CASANUEVA, and KELLY, JJ., concur.

      . For a thorough discussion of the functions of appellate courts, see Philip J. Padovano, Florida Appellate Practice (2004).