author: PER CURIAM.

text:
    Esmond HENRY, Appellant, v. WINDJAMMER BAREFOOT CRUISES, etc., et al., Appellees.
    No. 3D02-93.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    Rehearing and Rehearing En Banc Denied Aug. 18, 2003.

      Sweetapple, Broeker, Varkas & Felt-man, and Paul B. Feltman, for appellant.
    Houck, Hamilton & Anderson, Jerry Hamilton, and Jennifer Quildón Miller, Miami, and Gregory A. Reed, for appel-lees.
    Before COPE, GODERICH and RAMIREZ, JJ.
   PER CURIAM.

The plaintiff, Esmond Henry, appeals from an order granting final summary judgment in favor of Windjammer Barefoot Cruises [WBC] and International Maritime Resources, Inc. [IMR]. Henry also appeals from an order granting the defendants’ motion to dismiss finding that Henry failed to establish subject matter jurisdiction under the Jones Act, 46 U.S.C. app. 688 and general maritime law. We reverse and remand for further proceedings.

Henry slipped and fell on the deck of the vessel S/V Polynesia. Henry brought this action against IMR, WBC, and Polynesia seeking damages for Jones Act negligence, unseaworthiness, and failure to provide maintenance and cure.

The trial court limited discovery to matters concerning forum non conveniens and subject matter jurisdiction. The trial court denied the motion to dismiss for forum non conveniens. Thereafter, the defendants filed a motion to dismiss alleging that the trial court lacked subject matter jurisdiction based on the factors set forth in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). WBC and IMS also filed a motion for summary judgment.

The trial court held hearings on the motions. The discovery presented at the hearing reflects that Henry signed his employment contract while aboard the S/V Polynesian in St. Maarten, and that pursuant to his employment contract, he was “governed by the Laws of the Government into which jurisdiction the vessel shall sail.” The discovery further reflected that the home port of the S/V Polynesia was Philipsburg, St. Maarten; the S/V Polynesia is a Honduran flagged vessel; the S/V Polynesia was owned by Polynesia, a Panamanian corporation; the accident occurred while the S/V Polynesia was in the waters of Philipsburg, St. Maarten; the S/V Polynesia has never called on ports in the United States; Henry is a Guyana national; following his accident, Henry was treated in St. Maarten, Guyana, and Jamaica; and Polynesia’s sole asset is the S/V Polynesia.

In opposing the motions, Henry presented evidence indicating that the S/V Polynesia is a member of the Windjammer Fleet, which is operated by several Florida corporations all based at the same Miami Beach office. The Windjammer corporations are owned and run by Captain Michael Burke and/or his six children. Further, Polynesia is a Panamanian corporation whose Director/Treasurer is Robert Rios Osorio. Mr. Osorio is also the Director/Treasurer of another Panamanian company, Gerente de Barcos. This company maintains a bank account in South Florida. Evidence was presented indicating that Burke family companies utilize the funds in that account and that funds in that account are also utilized to reimburse Polynesia for expenses.

The affidavit of IMR’s ex-Human Resource Coordinator was submitted and averred that the S/V Polynesia was part of the Windjammer Fleet; IMR, WBC, and Polynesia were in reality one and the same, that they operated out of the same office in Miami Beach, and that the monies and assets of these companies were co-mingled; all vessels, including the S/V Polynesia, were controlled by the Burke family from the Miami Beach office; the Burke family practice was to withdraw money from the “Gerente de Barcos” account and have a courier deliver the money to various vessels to pay crew members; crew members were treated as employees of the Windjammer Fleet and were freely moved from ship to ship, but this practice ended after Mr. Henry’s accident; prior to Mr. Henry’s accident, all crew member employment files were kept at the Miami Beach office; and the captains of each vessel reported solely to the Burke family. In a deposition given in another case, this ex-employee stated that in 1998, WBC wanted to go public, and therefore, an audit was performed. The audit revealed that the true owner of the Panamanian corporations was Captain Burke. As a result, a $20,000,000 fine was assessed by the Internal Revenue Service.

The deposition of Mike Burke, who is Captain Burke’s son, was submitted. He testified that he is the sole shareholder of IMR. IMR is an agent for Windjammer, Inc., a Panamanian company. As Supervisor of Human Resource Management for IMR, he advertises and solicits crew members for the Windjammer fleet of vessels. Payroll records for crews of the various ships are also kept at IMR’s Miami Beach office. IMR is compensated from the Ger-ente de Barcos account for business with Polynesia.

Following the hearings, the trial court granted the motions. Henry’s motion for reconsideration was denied. This appeal follows.

The issues presented in this appeal have been addressed by the Eleventh Circuit in Fantome, S.A. v. Frederick, No. 02-10890, 2003 WL 215812, — So.2d —(11th Cir. Jan.24, 2003), which was not available to the trial court at the time of its decision. Rather than repeat the well-reasoned analysis contained therein, we adopt the unpublished opinion of the Eleventh Circuit as the opinion of this Court. Accordingly, we reverse the orders under review and remand for further proceedings. The Fantome opinion recites as follows:

Sarah Frederick and other claimants appeal the district court’s order dismissing their action on forum non conveniens grounds. The district court concluded that United States law was inapplicable to the action and then determined that Panama, rather than the district court in Florida, was the appropriate forum. As we find that United States law is applicable to the action, we reverse.
BACKGROUND
The S/V FANTOME was a 282-foot schooner, which operated as a cruise ship in the Caribbean. It was one of seven vessels comprising the Windjammer Fleet, which is owned entirely by Captain Michael Burke and his six children. Each ship within the fleet is owned by a separate foreign corporation bearing its name. At the time of the FANTOME’s disappearance, it was owned by Fantome, S.A., a Panamanian corporation, and was flagged under the laws of Equatorial Guinea. Burke, a Miami Beach resident, was the principal shareholder of Fantome. Burke’s son, Michael D. Burke, is the president of International Maritime Resources, Inc. (IMR), the operating agent of the Windjammer Fleet. IMR was responsible for facilitating the operations of the FAN-TOME, as well as the other vessels in the fleet. The fleet’s advertising, reservations, and sales were handled by Windjammer Barefoot Cruises, Ltd. Both of these entities operate out of and are located in Miami Beach, Florida.
As was the case with each of the vessels in the Windjammer Fleet, the FANTOME never entered a United States port. The ship’s home port was in Honduras, and it had ports of call at various locations in the Caribbean, where all of the FANTOME’s day-today operations and repairs took place. Windjammer’s Miami Beach headquarters communicated with the FANTOME and the rest of the Windjammer Fleet via satellite phone, facsimile, and computer. The ship’s crew members were hired in various foreign ports, and their contracts were signed and kept on the ship.
In late October of 1998, as the ship set sail, Hurricane Mitch, a late-season Category Five hurricane, was forming in the Atlantic Ocean. When the Windjammer headquarters in Miami Beach informed the FANTOME’s captain that the hurricane was approaching the ship, a decision was made to sail to Belize and discharge all passengers and nonessential crew members. After the passengers and crew members were discharged, the ship sailed east in an attempt to outrun the hurricane. On October 27, 1998, the thirty-one crew members who remained on the ship perished when the ship disappeared and presumably sank.
Thereafter, the surviving family members of the deceased crew members filed suits in state court against Fantome, IMR, Windjammer Barefoot Cruises, Ltd., and Burke (the petitioners). The suits alleged that the petitioners negligently ordered the ship into the hurricane’s path. In response to the suits, the petitioners brought the instant action for limitation of liability pursuant to the Limitation of Vessel Owner’s Liability Act, 46 U.S.C. app. §§ 181-196, seeking to limit their liability under § 185. In turn, the family members filed claims in that action, seeking recovery for wrongful death and survival damages pursuant to the Jones Act, 46 U.S.C. app. § 688, and the Death on the High Seas Act, 46 U.S.C. app. §§ 761-768.
In August of 1999 the petitioners filed a motion to dismiss the family members’ claims under the doctrine of forum non conveniens, arguing that Honduras was the appropriate forum. Almost a year later, following a period of discovery, the petitioners filed a new motion, advocating Panama as the appropriate forum for the action. The district court eventually granted the petitioners’ second motion, dismissing the family members’ claims on the grounds that United States law was inapplicable and that Panama was the appropriate forum for the action.
STANDARD OF REVIEW
We review the district court’s choice of law determination de novo. Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1516 (11th Cir.1985). The district court’s factual findings should be disturbed only if clearly erroneous. Szumlicz v. Norwegian Am. Line, Inc., 698 F.2d 1192, 1196 (11th Cir.1983). The district court’s dismissal on grounds of forum non conve-niens is reviewed for abuse of discretion. Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424, 1429 (11th Cir.1996).
DISCUSSION
We have held that,
[wjhether the Jones Act applies in [a] case involves a question of choice of law, the determination of which requires a two-pronged inquiry. First, the court must decide, under choice of law principles, whether the law of the United States should be applied. If United States law applies, the case should not be dismissed for forum non conveniens. If the court determines that United States law does not apply, it then examines the traditional considerations of forum non conveniens to determine whether the court should exercise its discretion and decline to assert jurisdiction over the case.

Szumlicz, 698 F.2d at 1195.

Thus, before conducting its forum non conveniens analysis, the district court was obligated to determine whether the Jones Act and the Death on the High Seas Act were applicable to the facts of this case.

The Jones Act provides,

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury ... and in case of death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury .... Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

46 U.S.C. app. § 688(a).

In Lauritzen v. Larsen, 345 U.S. 571, 583-91[, 73 S.Ct. 921] (1953), the United States Supreme Court outlined the following seven factors for determining whether the Jones Act is applicable to a claim: (1) the place of the wrongful act; (2) the law of the ship’s flag; (3) the allegiance or domicile of the injured seaman; (4) the allegiance of the shipowner; (5) the place where the shipping articles were signed; (6) the accessibility of the foreign forum; and (7) the law of the forum. The Supreme Court subsequently stressed that the Lauritzen factors were neither exhaustive nor meant to be applied mechanically to the facts of each case. See Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09[, 90 S.Ct. 1731] (1970). The Court then noted the importance of an eighth factor, the “shipowner’s base of operations.” Id. at 309[, 90 S.Ct. 1731].

The district court conducted its choice of law analysis using the eight Laurit-zevr-Rhoditis factors, only four of which merited discussion and only two of which are challenged on appeal. It found that, of the four relevant factors, only the shipowner’s allegiance to the United States weighed in favor of applying United States law. It further determined that the three remaining factors — the allegiance or domicile of the injured seamen, the inaccessibility of the foreign forum, and the base of operations — weighed in favor of a finding that United States law was not applicable. The court therefore concluded that United States law was inapplicable to the dispute and proceeded with its forum non conveniens analysis.

With respect to the choice of law analysis, the family members do not challenge the district court’s factual findings with respect to the allegiance of the shipowner or the inaccessibility of the foreign forum. Thus, we need address only the domicile of the injured seamen and the ship’s and shipowners’ base of operations.

The family members challenge the district court’s finding that the allegiance or domicile of the injured seamen weighed in favor of the petitioners. The thirty-one injured crew members were from eleven different countries, but none were from the United States. The family members argue that the fact that the crew members were from eleven different countries creates a powerful argument for applying United States law. We do not agree. As none of the deceased crew members were American, there is no reason to conclude that United States law should be applied to the exclusion of the law of any other foreign country. We therefore agree with the district court that this factor does not support a conclusion that United States law is applicable.

The family members also challenge the district court’s determination that the FANTOME’s base of operations was outside of the United States. They argue that, with the exception of the captain’s ability to make decisions on the vessel, the Miami Beach headquarters controlled every aspect of the FAN-TOME’s operations, and that this fact should have led the court to conclude that Miami Beach was the ship’s base of operations.

We agree that the district court’s finding with respect to the ship’s base of operations was clearly erroneous and believe that the district court placed too much emphasis on the fact that the FANTOME never entered a United States port and too little emphasis on the extensive contacts between the United States and the shipowners. In Rho-ditis, the Supreme Court stressed the need to look beyond corporate formalities to examine both the ship’s and the shipowner’s operational contacts with the United States. Id. at 310[, 90 S.Ct. 1731]. The Court specifically recognized that if “the liberal purposes of the Jones Act are to be effectuated, the facade of the operation must be considered as minor, compared with the real nature of the operation and a cold objective look at the actual operational contacts that this ship and this owner have with the United States.” Id. Though the district court acknowledged that the shipowners had strong ties to the United States, it found that the operational contacts between the ship itself and the United States were insignificant. In contrast, we find that the shipowners’ substantial contacts with the United States are sufficient to establish that the FAN-TOME’s base of operations was Miami Beach.

It is undisputed that the FANTOME never entered a United States port and that all of its day-to-day repairs and maintenance took place at the various locations in the Caribbean at which it was docked. These activities suggest that the ship’s daily operations took place in the Caribbean, but do not prevent a finding that the corporate base of operations was the Miami Beach headquarters. See Neely v. Club Med Mgmt. Servs., Inc., 68 F.3d 166, 194 (3d Cir. 1995)(en banc)(“Moreover, because we are inquiring into the- substantiality of contacts with the United States, we consider both the base of daily operations of the vessel ... and the corporate bases of the defendants.”). It is clear that the corporate operations of the entire Windjammer Fleet were based in Miami Beach. It was there that the advertising, reservations and sales of Windjammer cruises took place, and that the supply company, purchasing agent, and ticketing agent for all of the crew and passengers were located. All of the FANTOME’s disbursements, payments, payroll, and other expenses were drawn from Windjammer bank accounts, located in Miami Beach. It was in the Miami Beach headquarters that all decisions regarding the ship’s itineraries were made and where coordination of the ship’s repairs, inspections, and supervision took place. Finally, all of the communications equipment used to interface with the ship was located in Miami Beach. Nowhere in the record is it suggested that these activities were carried out in any foreign country. Moreover, it does not appear that Windjammer had any agents located in foreign countries. Every decision that was not made on the ship appears to have been made at the Miami Beach headquarters.

The fact'that the FANTOME never entered a United States port, while significant, is not determinative of whether the ship had a United States base of operations. If the petitioners are to be believed, the ship had no permanent base of daily operations. Such being the case, the district court should have given more weight to the substantial corporate contacts between the shipowners and the United States. We believe that these contacts make it clear that the true base of operations for both the FANTOME and the entire Windjammer Fleet was Miami Beach, where almost all of the decision-making power and responsibility for the operation of the fleet was located.

Having concluded that the base of operations was Miami Beach, we return to the question of whether United States law was applicable. In making this determination, “our task is not to weigh or balance present against absent contacts, but merely to determine whether the contacts which are present are substantial.” Moncada v, Lemuria Shipping Corp., 491 F.2d 470, 472 (2d Cir.1974). Of the four relevant factors, two — the allegiance and domicile of the shipowners and the presence of a United States base of operations — establish contacts sufficient to determine that United States law is applicable. If the Supreme Court’s intention was to prevent an alien owner with extensive American contacts from avoiding the obligations of the Jones Act, it certainly would violate the spirit of Rhoditis if we allowed American owners to avoid the same obligations. 398 U.S. at 310[, 90 S.Ct. 1731] (‘We see no reason whatsoever to give the Jones Act a strained construction so that this alien owner, engaged in an extensive business operation in this country, may have an advantage over citizens engaged in the same business by allowing him to escape the obligations and responsibility of a Jones Act employer”)(internal quotation marks omitted). Our responsibility in conducting a Lauritzenr-Khoditis choice of law analysis is to “examin[e] the substance of the connections for the purpose of determining the reasonableness of applying American law under the circumstances.” Neely, 63 F.3d at 194. As the petitioners have extensive business operations in Miami Beach, we believe that it is more than reasonable to apply United States law even though the petitioners’ ships never entered a United States port.

Having resolved the choice of law question, we find it unnecessary to address the second prong of the Jones Act inquiry. Because United States law is applicable, we need not review the district court’s forum non conveniens analysis. See Szumlicz, 698 F.2d at 1195 (noting that the action should not have been dismissed for forum non conve-niens because United States law was applicable).

CONCLUSION

Accordingly, the district court’s order granting dismissal of this action is REVERSED, and this case is REMANDED to the district court for further proceedings consistent with this opinion.

      . As we find that the Jones Act is applicable, it is unnecessary to address the Death on the High Seas Act.

      . Although the Rhoditis Court referred to the "shipowner’s” base of operations, it later noted that the operational contacts of both the ship and its owner were to be considered in the choice of law analysis. Id. at 310, 90 S.Ct. 1731. Thus, throughout this opinion, we refer at various times to both the ship’s and shipowner's base of operations.

      .The court found that the following four factors weighed in favor of neither party, and thus were irrelevant to the analysis: (1) the law of the ship’s flag; (2) the place of the wrongful act; (3) the place where the shipping articles were signed; and (4) the law of the foreign forum. We do not believe that the court’s factual findings with respect to these factors were clearly erroneous. We therefore leave them undisturbed.

      . The Court made a similar statement in Lau-ritzen, noting that courts often have ignored "foreign registration to enforce against American shipowners the obligations which our law places upon them.” 345 U.S. at 587, 73 S.Ct. 921.

      . The petitioners and the district court likened this case to Villar v. Crowley Maritime Corp., 782 F.2d 1478 (9th Cir.1986). In that case, the Ninth Circuit determined that a United States base of operations alone was not a sufficient basis for applying the Jones Act where the vessel was located in Saudi Arabian waters and "was not 'earning income from cargo originating or terminating' in the United States.” Id. at 1482 (quoting Rhoditis, 398 U.S. at 310, 90 S.Ct. 1731). The court noted that "it does not follow that the application of American law is required ... [where] the only contact with the United States remains ultimate American ownership or control of the business ventures.” Id. at 1481 (alterations in original)(internal quotations marks omitted). It then concluded that other factors in the Lauritzen-Rhoditis analysis "point powerfully to the application of foreign law.” Id.

      In this case, however, there are no factors that "point powerfully to the application of foreign law.” Id. Moreover, although Villar and Rhoditis indicate that whether a vessel sails in American waters or enters American ports is significant in the "base of operations” analysis, Id. at 1482, we do not believe it to be determinative. Where, as here, the owner of a vessel has substantial contacts with the United States, the fact that the vessel never enters the navigable waters of the United States does not militate against a finding that either the ship or the shipowner has a base of operations in the United States.

      . We are not aware of any case finding substantial contacts between a vessel and the United States that has been decided based solely upon whether the vessel enters the ports or navigable waters of the United States. See Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1032 (5th Cir.1984)(finding a United States base of operations where a vessel regularly loaded cargo in Houston, all of the management operations were conducted out of the Houston office, the vessel’s shipping agent was in Houston, and over ninety percent of the shipowner's stockholders were American citizens); Szumlicz, 698 F.2d at 1196 (finding a United States base of operations for a Norwegian shipowner where the operation was financed substantially by American concerns, the shipowner maintained offices in Florida and New York, and the ship called in Florida port every two weeks); Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 473 (2d Cir.1974)(finding substantial American contacts where a shipowner was a corporation wholly owned by Americans, the management and chartering of the vessel were conducted from the United States, all of the officers of the shipowner corporation were American, and forty percent of the vessel’s voyages began or ended in the United States).


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Peter Lewis CRAWLEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3815.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    Rehearing Denied July 31, 2003.

      James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Peter Crawley challenges the order revoking his community control and the resulting judgment and sentence. We affirm these without comment. Crawley also challenges the trial court’s denial of. his motion to withdraw plea after sentencing. The standard of review for the trial court’s denial is abuse of discretion. See Celia v. State, 831 So.2d 716, 720 (Fla. 5th DCA 2002). We find that the trial court did not abuse its discretion, and thus, we affirm.

Initially, Crawley was charged with two counts of aggravated battery with a deadly weapon, a motor vehicle, in violation of section 784.045, Florida Statutes (1999), and one count ■ of. driving while license suspended or revoked, third offense, in violation of section 322.34(2)(c), Florida Statutes (1999). Pursuant to a plea agreement, Crawley received concurrent suspended sentences of ten years for the two aggravated batteries and five years for driving while licence suspended. Crawley was placed on community control for two years to be followed by a two year term of probation.

Six months thereafter, an affidavit for violation of community control was filed. A hearing on the violations was held, and the public defender was appointed to represent Crawley. After being placed under oath, Crawley admitted that he had violated the terms and conditions of his community control. Consequently, the trial court revoked his community control and sentenced him to sixty months in prison with seventy-one days’ credit for time served.

Several weeks after he was sentenced, Crawley filed a motion to withdraw his guilty plea. In the motion, Crawley submitted that his plea of guilty had not been voluntary for three reasons. First, he had not been advised that he was waiving his right to an evidentiary hearing; second, he had not “detoxed” from his prior usage of cocaine and was drugged; and last, he had not had sufficient time to consult with his attorney regarding the consequences of his plea.

We begin by noting that a probation violation hearing need not meet the strict requirements of a criminal trial. Allen v. State, 662 So.2d 380 (Fla. 4th DCA 1995). As this court recognized in Donley v. State, 557 So.2d 943, 944 (Fla. 2d DCA 1990), “At a probation revocation hearing, the court must advise the probationer of the charges, and then if admitted, the court may revoke the probation.” The record shows that Crawley was provided with an appropriate revocation hearing.

The record directly refutes Crawley’s first two contentions. After Crawley’s lawyer informed the trial court that Crawley wanted to admit violating the terms of his community control, the trial court asked Crawley if he understood that he had the right to have a hearing and if he wanted to give up that right. Crawley said that he did. In addition, the trial court asked Crawley if he was under the influence of any narcotics or alcohol. Crawley replied that he was not, and Crawley’s statements were coherent and appropriate. Thus Crawley’s own words and actions during the hearing rebut his assertions on appeal.

The record also defuses Crawley’s fi&al argument. Simply because the public defender was appointed at the time of the hearing to represent Crawley does not mean that Crawley had insufficient time to consult with his lawyer. A review of the transcript shows that Crawley’s lawyer was familiar with Crawley’s scoresheet, was aware that Crawley had been on community control for seven months, and knew that Crawley wanted to be sent to an outpatient drug treatment program. At no time, either before the plea was entered or after sentence was imposed, did Craw-ley or his lawyer request more time to meet or to prepare.

Not only did Crawley have adequate time to confer with counsel, the trial court also sufficiently advised him. In an effort to make certain that Crawley recognized the consequences of the waiver of his rights, the trial court inquired of Crawley’s lawyer as to whether he knew that Craw-ley had a ten year suspended sentence. While the public defender was not aware that Crawley had a ten year suspended sentence, Crawley himself was aware of the suspended sentence, but he thought that it was for fifty-eight and a half months. The following colloquy then transpired:

THE COURT: I show a ten-year suspended sentence on Counts 1 and 2; a five-year suspended sentence on Count 3.
[DEFENSE ATTORNEY]: Judge, he wants to admit. He has an explanation he’d like to offer to the Court.
THE COURT: Knowing he’s got a suspended sentence of ten years?
THE DEFENDANT: Yes, sir.
THE COURT: And five on the other? THE DEFENDANT: Yes, sir.

This dialogue reveals that before going further with the hearing, the trial court ascertained that Crawley knew that he was subject to a sentence of ten years on two of the charges and a sentence of five years on the third charge. Crawley himself acknowledged those facts on the record, and it was only then that the hearing continued.

The approach that Crawley’s lawyer took was to stress that even though Craw-ley was willing to admit to the violation, he had an explanation to present to the trial court. In detail, Crawley explained that he left his home without permission so that he could help his eighty-six-year-old neighbor bring her car back home. He also acknowledged that he had used cocaine, and he said that he recognized that he had a substance abuse problem.

His own words reveal that Crawley was well aware of the fact that he was looking at prison time. During the hearing Craw-ley told the court that he was afraid to go to prison and was throwing himself on the court’s mercy. Crawley then added, “I just want to get this done with. If there’s ever a way you can put me back on probation, if you can add on some kind of outpatient drug program — “

In essence, Crawley was asking the court not to sentence him to his five or ten year suspended sentence but to “show mercy” and place him on probation. Although the trial court could have sentenced Crawley to ten years in prison, it chose not to do so. Rather Crawley was sentenced to sixty months in prison, just over the fifty-eight and a half month suspended sentence that Crawley thought he had received. With the credit of seventy-one days that Crawley received, Crawley’s sentence will actually be about three weeks less than the fifty-eight and a half months Crawley thought he was subject to.

The record reflects that Crawley knew what he was doing when he entered his plea. See Washington v. State, 284 So.2d 236, 237 (Fla. 2d DCA 1973). Thus, Craw-ley s claim that his plea of guilty was not voluntary fails. For these reasons, the order denying the motion to withdraw plea and the judgment and sentence are affirmed.

Affirmed.

WHATLEY and KELLY, JJ., concur.


text:
    Scott EARLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4093.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Rehearing Denied Sept. 2, 2003.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, and Scott Earle, Indian-town, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Scott Earle challenges an order that denied his rule 3.850 motion for postcon-viction relief. We reverse and remand for the trial court to conduct an evidentiary hearing to address Earle’s sentences in light of State v. Klayman, 835 So.2d 248 (Fla.2002); State v. Travis, 808 So.2d 194 (Fla.2002); Hayes v. State, 750 So.2d 1 (Fla.1999); see also DeFreis v. State, 814 So.2d 1166 (Fla. 4th DCA 2002). We find no error with the trial court’s disposition of Earle’s other claims.

POLEN, C.J., SHAHOOD and MAY, JJ., concur.


author: TORPY, J. SAWAYA, J.,

text:
    Shannon NICHOLS, Appellant, v. STATE FARM MUTUAL, Etc., Appellee.
    No. 5D01-3851.
    District Court of Appeal of Florida, Fifth District.
    June 13, 2003.
    Certification Denied Aug. 11, 2003.

      Thomas P. Hockman, of Law Offices of Hockman, Hockman & Hockman, Winter Park, for Appellant.
    Philip D. Parrish, of Philip D. Parrish, P.A., Miami, Amicus Curiae, The Academy of Florida Trial Lawyers, on behalf of Appellant.
    Kenneth P. Hazouri, of Drage, de Beau-bien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee.
   TORPY, J.

Appellant (“Insured”) challenges an order of the county court assessing attorney’s fees and costs against her in favor of Appellee (“Insurer”) after she did not prevail in her claim for damages under the personal injury protection (“PIP”) provision of her insurance policy. Fees were awarded under the offer of judgment statute, section 768.79, Florida Statutes (1999). Insured contends that the statute does not apply to “PIP” claims. Alternatively, Insured contends that the proposal for settlement was not valid because it did not comply with the proposal for settlement rule. The county court rejected both contentions but did certify the following issue to this court as a question of great public importance:

Are proposals for settlement served pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 in actions to recover personal injury benefits valid and enforceable or applicable to PIP suits?

We exercise our discretionary jurisdiction to answer the question and review the underlying cause. Fla. R.App. P. 9.030(b)(4)(A). We rephrase the certified question, however, as follows:

May an insurer recover attorney’s fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action brought by its insured to recover under a personal injury protection policy?

We answer the question in the affirmative. However, because we agree with Insured’s alternative argument — that the proposal here was not valid — we reverse the judgment of the lower court.

Insured filed a complaint in county court alleging that she suffered injuries in an automobile accident and that Insurer, with whom she had a PIP policy, failed to pay for medical treatment and expenses arising from the injuries she suffered. Insurer defended on the ground that Insured had unreasonably refused to submit to an independent medical exam, a condition precedent to the recovery of PIP benefits.

Insurer served upon Insured a proposal for settlement in the amount of $250.00. Among the conditions contained within the proposal was a requirement that Insured “execute a general release in favor of State Farm, which will be expressly limited to all claims, causes of action, etc., that have accrued through the date of [Insured’s] acceptance of this proposal.”

The case proceeded to jury trial, and verdict was rendered in favor of Insurer. Because the judgment was of “no liability,” pursuant to section 768.79(1), Florida Statutes, the trial court awarded to Insurer its reasonable attorneys fees and costs incurred since the offer was served, in an amount totalling $23,199.00.

Although thoughtful policy arguments have been raised and cogently argued by Insured and The Academy of Florida Trial Lawyers, who appeared as amicus curiae, we believe these arguments are more appropriately addressed to the Legislature. The disposition of this case turns not on what we think is the preferred policy but on what the Legislature has clearly and unambiguously stated in the offer of judgment statute wherein it provides that it applies to “any civil action for damages filed in the courts of this state.” We agree with the holding, and generally agree with the reasoning, of our sister court in U.S. Security Insurance Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3d DCA 2000), Rev. Dismissed as Improvidently Granted by 796 So.2d 532 (Fla.2001), which addresses each of the points herein raised by the litigants and amicus curiae.

Turning our attention to the second issue, we conclude that the proposal here was defective in form and content under rule 1.442, Florida Rule of Civil Procedure. Rule 1.442 provides in pertinent part as follows:

(c) Form and Content of Proposal for Settlement.
(1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.
(2) A proposal shall:
(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) identify the claim or claims the proposal is attempting to resolve;
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;

(Emphases added).

Here, the proposal for settlement required, among other things, that Insured execute a “general release.” Although the general release was not included, the proposal stated that the release would include all “claims, causes of action, etc., that have accrued through the date” on which the Insured accepted the proposal. The proffered release was not limited, however, to claims or causes of action that were brought (or that were required to have been brought) in the instant lawsuit. Because Insured also had an outstanding claim against Insurer for uninsured motorist benefits, which claim was not a part of the instant case, Insured argued the offer was not made in good faith and that acceptance of the offer would have extinguished her UM claim. Insurer countered this argument by offering evidence that it did not intend to require the release of the UM claim as a condition of acceptance of the offer. Insurer’s counsel testified that he was unaware of the existence of the UM claim at the time he served the proposal for settlement and that had the proposal for settlement been accepted, his client would not have required that the release include the UM claim. Furthermore, counsel testified that, if Insured’s counsel had called him, he would have clarified his chent’s intent.

The trial court apparently accepted the testimony, thereby avoiding a finding of bad faith. By construing the offer in this manner, however, although possibly avoiding the bad faith problem, another problem was created in that the proposal was rendered ambiguous and thereby contravened the express language of the rule and the policy behind the rule and statute.

Rules 1.442(c)(2)(C) and (D), Florida Rules of Civil Procedure, provide that relevant conditions and all nonmone-tary terms of the offer be stated with particularity. The terms of any proffered release are subject to this rule. Zalis v. M.E.J. Rich Corp., 797 So.2d 1289 (Fla. 4th DCA 2001); Gulf Coast Transp., Inc. v. Padron, 782 So.2d 464 (Fla. 2d DCA 2001). This requirement of particularity is fundamental to the purpose underlying the statute and rule. A proposal for settlement is intended to end judicial labor, not create more. Lucas v. Calhoun, 813 So.2d 971 (Fla. 2d DCA 2002); Jamieson v. Kurland, 819 So.2d 267 (Fla. 2d DCA 2002) For this reason, a proposal for settlement should be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms "and conditions. Id. at 973 (citing United Servs. Auto. Ass’n v. Behar, 752 So.2d 663, 665 (Fla. 2d DCA 2000)). Moreover, the proposal should be capable of execution without the need for further explanation or judicial interpretation. Id. The rule and statute must be strictly construed because they are in derogation of the common law. Willis Shaw Express, Inc. v. Hilyer Sod Inc., 849 So.2d 276, 2003 WL 1089304 (Fla. March 13, 2003).

Where, as here, a release is requested as a condition of the proposal, either the proposed language of the release or a summary of the substance of the release being sought should be included within the proposal to comply with the requirement that it be “particular.” Fla. R. Civ. P. 1.442(c)(2)(C), (D). The terms and conditions of the proposal should be devoid of ambiguity, patent or latent. Moreover, use of overly broad release language or use of vague words like “et-cetera” in proposed release language ordinarily will not satisfy the particularity requirement of the rule. See Zalis, 797 So.2d at 1290, (requirement of mutual release against any future action fails to comply with rule).

Because the intent of this release condition could not be determined without resort to clarification or judicial interpretation, we find that it was not sufficiently particular and reverse the judgment awarding attorney’s fees.

We certify to the Florida Supreme Court, as a question of great public importance, however, the first question addressed in this opinion, to-wit:

May an insurer recover attorney’s fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?

REVERSED; QUESTION CERTIFIED.

GRIFFIN, J., concurs.

SAWAYA, J. concurring in part; dissenting in part, with opinion.

SAWAYA, J.,

concurring in part, dissenting in part.

I concur with the majority that the order awarding attorney’s fees must be reversed. However, I respectfully disagree' that the offer of judgment statute found in section 768.79, Florida Statutes, applies to PIP cases. In my view, application of section 768.79 to PIP cases would completely thwart and circumvent the purposes of the Florida Motor Vehicle No-Fault Law (the No-Fault Act) and PIP benefits. Moreover, I believe that the Legislature never intended a suit to recover PIP benefits to be an action for damages under section 768.79. Although I concur that this issue should be certified to the Florida Supreme Court, I believe that the question certified should be rephrased as follows to reflect the true nature of a suit to recover PIP benefits and answered in the negative:

May an insurer recover attorney’s fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action brought by its insured to recover personal injury protection benefits under the insurance policy issued to the insured?

Application of the Offer of Judgment Statute Would

Circumvent the Purposes of the No-Fault Law and Pip Beneñts

In order to properly determine whether the offer of judgment statute found in section 768.79, Florida Statutes (2001), applies to PIP cases, it is necessary to start with the firmly established rule that “[l]eg-islative intent, as always, is the polestar that guides a court’s inquiry under the Florida No-Fault Law....” United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 86 (Fla.2001). In my view, application of section 768.79 to PIP cases would completely circumvent and thwart the purposes of the No-Fault Act and the specific provisions relating to PIP benefits found in section 627.736. Therefore, it is clear to me that the Legislature certainly did not intend for; section 768.79 to apply to PIP cases.

The Florida Legislature enacted the No-Fault Act to “provide for medical, surgical, funeral, and disability insurance benefits without regard to fault” and to limit “the right to claim damages for pain, suffering, mental anguish, and inconvenience.” § 627.731, Fla. Stat. (2001). In order to accomplish this objective, section 627.736(1) requires that every owner of a motor vehicle obtain motor vehicle liability insurance that provides “personal injury protection ... for loss sustained ... as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle.... ” (Emphasis added). In exchange for abrogation of the right of the injured party to sue the tortfeasor for damages for pain, suffering, mental anguish, and inconvenience, the injured party is entitled to receive protection in the form of PIP benefits, which are limited to the following: eighty percent of all reasonable medical expenses so the insured will have access to necessary medical care and his or her medical providers will be assured of prompt payment; sixty percent of disability benefits so the insured and his or her family will have access to necessary funds for family support to replace the income lost as a result of any debilitating injury suffered by the insured; and certain death benefits to ensure prompt payment of necessary funeral expenses. § 627.736(1), Fla. Stat. (2001).

Because the injured insured is statutorily prohibited from recovering these costs from the tortfeasor whose wrongful conduct caused the injury or death, he or she is relegated to payment of these necessary costs from his or her insurance carrier unless the statutorily-imposed threshold of permanency is established. § 627.737, Fla. Stat. (2001). Thus, the injured insured becomes totally dependent on his or her insurance carrier for payment of these necessary costs. Shortly after the Legislature enacted the No-Fault Act in 1973, the Florida Supreme Court in Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974), articulated the specific purposes of the No-Fault Act, stating that central to the legislative intent was the desire to enhance the public welfare through “an assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like, in order not to drive them into dire financial circumstances with the possibility of swelling the public relief rolls.” Id. at 16 (emphasis added). In Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla.2000), the court held that “[without a doubt, the purpose of the no-fault statutory scheme is to ‘provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.’ ” Id. at 683-84 (emphasis added) (quoting Government Employees Ins. Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987)).

The assurance of swift and virtually automatic provision of PIP benefits is accomplished through the requirements of section 627.736(4)(b), which provides that PIP insurance benefits shall be overdue if not provided within thirty days after the insurer is furnished written notice of a covered loss and of the amount of same. If the insurer allows a claim to become overdue, the insurer is subject to specific penalties, which include an award of attorney’s fees to the insured. I emphasize that imposition of an award of fees against the insurance carrier is a penalty for failing to provide PIP benefits in accordance with the time limitations of the No-Fault Act. The court in Ivey explained the significance of the statutory provisions that allow for awards of attorney’s fees to the injured insured in achieving the purpose of the No-Fault Act:

Florida law is clear that in “any dispute” which leads to judgment against the insurer and in favor of the insured, attorney’s fees shall be awarded to the insured. See §§ 627.736(8), 627.428(1); see also Dun-more, 301 So.2d at 503. That is, under PIP law, the focus is outcome-oriented. If a dispute arises between an insurer and an insured, and judgment is entered in favor of the insured, he or she is entitled to attorney’s fees. It is the incorrect denial of benefits, not the presence of some sinister concept of “wrongfulness,” that generates the basic entitlement to the fees if such denial is incorrect. It is clear to us that the purpose of this provision is to level the playing field so that the economic power of insurance companies is not so overwhelming that injustice may be encouraged because people will not have the necessary means to seek redress in the courts.

Ivey, 774 So.2d at 684 (emphasis added). In Nationwide Mutual Fire Insurance Co. v. Pinnacle Medical, Inc., 753 So.2d 55 (Fla.2000), the court, in holding unconstitutional the requirement of mandatory arbitration and awards of attorney’s fees to the prevailing party under section 627.736(5), again emphasized the importance of the provision for fees to the insured under section 627.428 by explaining:

An objective of Florida’s Motor Vehicle No-Fault Law was to provide persons injured in an accident with prompt payment of benefits. [Lasky v. State Farm Ins. Co., 296 So.2d 9, 16 (Fla.1974)]. Similarly, the legislative objective of section 627.428(1), Florida Statutes, which provides for an award of attorney fees against insurers who wrongfully deny benefits, was to discourage insurance companies from contesting valid claims and to reimburse successful insureds for their attorney fees when they are compelled to sue to enforce their insurance contracts. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla.1993).

Id. at 59.

There is no provision for an award of attorney’s fees to the insurer in any of the provisions of the No-Fault Act and, I believe, for good reason. Such a provision would thwart the purpose of the PIP provisions of the statutory no-fault scheme by unleveling the playing field by giving the insurance companies far too much leverage over the insureds, who are dependent on the fair and speedy payment of their necessary medical bills from their insurance carrier so they will continue to have access to necessary medical care. Hence, an award of fees to the insurer under section 768.79 would circumvent the purposes of assuring swift and virtually automatic payment of benefits and, instead of discouraging insurers from contesting valid claims, it would have the effect of encouraging the contest of valid claims. Furthermore, an award of fees to the insurer under section 768.79 would completely vitiate the purpose of imposing a penalty on the insurer under section 627.428. Moreover, because section 768.79 is punitive in nature, an award of fees to the insurer would actually impose a penalty on the insured. I do not believe that the Legislature intended this result in enacting the No-Fault Act or section 768.79.

I also believe that imposition of attorney’s fees on the insureds pursuant to section 768.79 could totally offset the insureds’ benefit awards for these essential medical costs and leave the insureds with unpaid medical bills that could potentially cause a cessation of their medical care. In addition, imposition of fees against the insureds could leave the insureds actually owing money to their insurance company. In essence, the insureds could lose the benefits of the coverage for which they paid a premium and be saddled with a debt owed to their insurance company. Surely, the Legislature did not intend for such calamities to occur to insureds who were, according to the court in Lasky, given “an assurance that [they] would receive some economic aid in meeting medical expenses and the like_” Imposition of fees pursuant to section 768.79 would, in my view, constitute a breach of that assurance and could potentially place many injured insureds in “dire financial circumstances with the possibility of swelling the public relief rolls” — a circumstance the court in Lasky indicated should not occur.

Moreover, the stated purpose of the No-Fault Act is to “provide medical, surgical, funeral, and disability insurance benefits without regard to fault, and to require motor vehicle insurance securing such benefits....” § 627.731, Fla. Stat. (2001). This purpose is accomplished through the provisions of section 627.738, which require that every owner of a motor vehicle “maintain security as required by subsection (3)....” § 627.733(1), Fla. Stat. (2001). Subsection (3) provides that “[s]uch security shall be provided: (a) [b]y an insurance policy ... which provides the benefits and exemptions contained in ss. 627.730-627.7405.” § 627.733(3)(a), Fla. Stat. (2001). Section 627.736 contains the provisions that specify what the security requirements are: medical, disability and death benefits. As the court explained in Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172 (Fla.1977):

The provision of Section 627.733, that every owner or registrant of a motor vehicle required to be registered and licensed in the state shall maintain security, must be read in context with the rest of the Florida Automobile Reparations Reform Act. In this context, the purpose of the required security is clearly to provide financial responsibility to pay any “no-fault” personal injury protection benefits due under Section 627.736.

Id. at 1173 (emphasis added).

The point I am making is that injured insureds are provided security for the payment of their benefits. The dictionary gives the plain and ordinary meaning of the term “security”: “1. Freedom from risk or danger; safety. 2. Freedom from doubt, anxiety, or fear; confidence. 3. Something that gives or assures safety.” The American Heritage Dictionary 109 (2d ed.1985). Injured insureds who, according to Lasky, were given “an assurance ... of economic aid” should not be subjected to the uncertainties of the offer of judgment statute, which requires the injured party to make a calculated guess at the amount of benefits a jury might award and to make another calculated guess whether the award will exceed the statutory percentage provided in the statute. Payment of the injured insureds’ necessarily-incurred medical bills and continuation of their medical care is far too important to be subjected to the uncertainties of the offer of judgment statute. In my view, application of section 768.79 to PIP cases, with its inherent uncertainties and risks, has completely abrogated the security and the assurance that injured insureds were promised by the Legislature through the No-Fault Act. This is not what the Legislature intended.

I further believe that those insureds who file suit to recover their benefits in small claims court without the assistance of counsel to make this burdensome calculated guess will leave insurance companies, which are represented by attorneys, with an unfair advantage. I also believe that this will discourage many insureds from attempting to obtain the benefits for which they paid a premium, leaving the insurance companies that collected their premiums with a windfall.

The Florida Supreme Court recognized that section 627.428(1) is a “one-way street offering the potential for attorneys’ fees only to the insured or beneficiary.” Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla.1994). Because of the imposition of fees pursuant to section 768.79, instead of traveling down an unobstructed one-way street to recovery as intended by the Legislature, many injured insureds may find themselves stuck in fi’ont of a toll booth erected and maintained by their insurance companies without sufficient funds for passage through. This certainly is not the intention of the Legislature.

Section 768.79 is part of Chapter 768, Florida Statutes, wherein the Legislature included section 768.71(3), which provides that “[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.” The PIP statute found in section 627.736 specifically provides that in PIP cases, “the provisions of s. 627.428 shall apply....” § 627.736(8), Fla. Stat. (2001) (emphasis added). This provision is significant because section 627.428 would apply to PIP cases regardless of the provisions of section 627.736(8). In my view, the Legislature intended that the specific provisions of section 627.428 should apply over the general provisions of section 768.79. In other words, specifically including section 627.428 in the provisions of section 627.736(8), to the exclusion of any other statutory provision for fees, clearly indicates the Legislature’s intention that section 627.428 be the exclusive authority for an award of fees in PIP cases. See, e.g., Frazier v. Metropolitan Dade County, 701 So.2d 418 (Fla. 3d DCA 1997) (holding that section 768.71(3) applied to a conflict between the wrongful death statute (the more specific statute) under which a non-negligent survivor’s recovery cannot be reduced due to another survivor’s negligence, and the comparative negligence statute (the more general statute), which dictates that each party’s liability is limited to that party’s percentage of fault, so that the comparative fault statute had to yield to the wrongful death statute).

I note that the Legislature recently amended section 627.736 by adding- subsection (11), which requires that the insured provide the insurer with written notice of an intent to file a claim for benefits. Ch.2001-271, § 6, at 1759, Laws of Fla.; § 627.736(ll)(a), Fla. Stat. (2001). Section 627.736(ll)(d) provides that “[t]he insurer shall not be obligated to pay any attorney’s fees if the insurer pays the claim within the time prescribed by this subsection.” In my view, this provision reaffirms the Legislature’s intention that an award of fees to the insured be a one-way street, especially in light of the fact that the Legislature again failed to make provision for fees to the insurer.

Whether the Legislature Intended a Suit to Recover Pip Benefits

to be an “Action for Damages” Under Section 768.79.

I begin this section by re-emphasizing that “Legislative intent, as always, is the polestar that guides a court’s inquiry under the No-Fault Law.” Rodriguez, 808 So.2d at 85. The Legislature has clearly indicated that section 768.79 applies to “any civil action for damages.” This raises the obvious issue whether the Legislature intended a suit to recover PIP benefits to be an action for damages under section 768.79. The pin-pose of the No-Fault Act, and especially the statutory provision for PIP benefits that replaces the common law suit for damages, as discussed in the first part of my dissent, clearly indicate to me that the Legislature never intended or even considered a suit to recover PIP benefits to be an action for damages under section 768.79. Other indicators that lead me to that conclusion include the statutory rules of construction that must be applied to any interpretation of section 768.79, the plain and ordinary meaning of an “action for damages,” and the language in many of the decisions rendered by Florida courts that have discussed actions to recover PIP benefits.

The courts have specifically held that because section 768.79 is in derogation of the common law and imposes a penalty, it must be strictly construed and must never be “ ‘extended by construction.’ ” Hilyer Sod, 817 So.2d at 1054 (quoting Holmberg v. Dep’t of Natural Res., 503 So.2d 944, 947 (Fla. 1st DCA 1987)); Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fla. 4th DCA 1999). “It has long been a rule of statutory construction that statutes must be given their plain and obvious meaning and courts should assume that the legislature knew the plain and ordinary meaning of words when it chose to include them in a statute.” Hankey v. Yarian, 755 So.2d 93, 96 (Fla.2000) (citations omitted).

The plain and ordinary meaning of “civil action for damages” is what I consider to be the traditional concept of a suit for damages. In Hanna v. Martin, 49 So.2d 585 (Fla.1950), the court explained what damages are and the concept of damages in our jurisprudence:

Damage may be defined to be the loss, injury or deterioration caused by negligence, design or accident of one person to another in respect to his person or property.
The fundamental principle of the law of damages is that the person injured by breach of contract or by wrongful or negligent act or omission shall have fair and just compensation commensurate with the loss sustained in consequence of the defendant’s act which give [sic] rise to the action. In other words, the damages awarded should be equal to and precisely commensurate with the injury sustained.

Id. at 587 (citation omitted); see McLeod v. Continental Ins. Co., 591 So.2d 621 (Fla.1992). In McLeod, the court further explained that the injured party is entitled to damages that are “ ‘the natural, proximate, probable or direct consequence of the act’” and that the objective of a damage award is to make the injured party whole. McLeod, 591 So.2d at 624 (quoting Douglass Fertilizers & Chem., Inc. v. McClung Landscaping, Inc., 459 So.2d 335, 336 (Fla. 5th DCA 1984)) (citation omitted); see also Hardwick Props., Inc. v. Newbern, 711 So.2d 35, 39 (Fla. 1st DCA) (“General damages are those damages which naturally and necessarily flow or result from the injuries alleged ....”) (quoting Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla.1972)), review denied, 727 So.2d 908 (Fla.1998); Scott v. Rolling Hills Place Inc., 688 So.2d 937, 940 (Fla. 5th DCA 1996) (holding that the injured party is entitled to recover any and all damages flowing from the breach that were reasonably foreseeable by the breaching party). Moreover, “[i]t is undisputed that section 768.79, Florida Statutes, applies only to actions for money damages.” Burtman v. Porchester Holdings, Inc., 680 So.2d 631, 632 (Fla. 4th DCA 1996). Thus, the provision “action for damages” in section 768.69 applies “where the essential issue is clearly a dispute over money.” Id.

Accordingly, the plain and ordinary meaning of “any civil action for damages” is an action brought by an injured party against the wrongdoer to recover compensation in the form of money damages for the full measure of the loss or injury that was naturally and proximately caused by the wrongful act in order to make the injured party whole. The term “any” means that application of section 768.79 is not limited to negligence actions, but applies to other tort actions and to actions for breach of contract. For example, in a personal injury action, the injured party may recover for pain, suffering, and mental anguish in addition to medical and disability expenses. In a suit for breach of contract, the injured party is entitled to recover any and all damages flowing from the breach that were reasonably foreseeable by the breaching party. Scott. But a suit to recover PIP benefits does not seek compensation from the wrongdoer for all of the injured party’s injuries that are a natural and proximate consequence of the wrongful act in order to make the injured person whole. To the contrary, the expressed purpose of the No-Fault Act is to impose “a limitation of the right to claim damages for pain, suffering, mental anguish, and inconvenience,” section 627.731, and to replace the right to sue for damages “with the ability to recover uncontested benefits and an exemption from tort liability.” Pinnacle Medical, 753 So.2d at 58 (citation omitted). Moreover, the benefits that an injured insured is entitled to recover in a PIP suit are limited to eighty percent of the medical and sixty percent of the disability expenses. Hence, the statute does not even allow for full recovery of these costs.

Because a PIP suit does not fall within the plain and ordinary meaning of an “action for damages” and because we must assume that the Legislature knew the plain and ordinary meaning of an “action for damages” when it enacted section 768.79, I am convinced that the Legislature never intended a PIP suit to be subject to the provisions of section 768.79.

In my view, the Legislature has always considered the essence of a PIP action to be a suit to enforce the insurance policy by determining the coverage provided thereunder so that the insured may obtain the benefits for which he or she paid a premium. This is evident by the Legislature’s pronouncement that the purpose of PIP insurance is to “provide for medical, surgical, funeral, and disability insurance benefits. ...” § 627.731, Fla. Stat. (2001). Other provisions in section 627.736 support this view. Section 627.736(ll)(a) provides that the insurer must provide written notice “[a]s a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b).... ” Section 627.736(4) provides that “[b]enefits due from an insurer ... shall be due and payable as loss accrues ...” and section 627.736(4)(b) provides that “[personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” Section 627.736(7) applies to situations where an insurer seeks to withdraw benefits covering a treating physician’s care because the treatment, as opposed to the amount of the charge for that treatment, is not reasonable, necessary or related. If the insurer does cease benefits under this section and the insured files suit, the issue then becomes whether the treatment, not the charge, is necessary, reasonable or related. Is this a suit for money damages? In my view, the Legislature does not consider it as such.

Numerous decisions by the Florida courts support this view. In State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830 (Fla.1993), for example, the court specifically referred to the relief that may be obtained in a PIP suit when it stated:

When an insured is compelled to sue to enforce an insurance contract because the insurance company has contested a valid claim, the relief sought is both the policy proceeds and attorney’s fees pursuant to section 627.428.
Florida courts, including this Court, have consistently held that the purpose of section 627.428 is “to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts.” Lexow, 602 So.2d at 531.

Palma, 629 So.2d at 832-33 (emphasis added).

Similarly, in Pinnacle Medical, the supreme court held that under the No-Fault Act, the insureds’ right to sue for damages was replaced with the right to recover insurance benefits and that attorney’s fees must be awarded to the insureds when they sue to enforce their insurance contracts to obtain those benefits. Id. at 58. The court stated:

As explained in Smith v. Department of Insurance, 507 So.2d 1080 (Fla.1987), this Court in Lasky found that the provision of Florida’s No-Fault Law that denied a plaintiff the right to sue unless certain threshold damages existed was not a violation of access to courts because the right was replaced with the ability to recover uncontested benefits and an exemption from tort liability. Id. at 1088.
An objective of Florida’s Motor Vehicle No-Fault Law was to provide persons injured in an accident with prompt payment of benefits. Id. at 16. Similarly, the legislative objective of section 627.428(1), Florida Statutes, which provides for an award of attorney fees against insurers who wrongfully deny benefits, was to discourage insurance companies from contesting valid claims and to reimburse successful insureds for their attorney fees when they are compelled to sue to enforce their insurance contracts. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla.1993).

Pinnacle Medical, 753 So.2d at 58-59 (emphasis added). As the court in Lasky explained:

Protections are afforded the accident victim by this Act in the speedy payment by his own insurer of medical costs, lost wages, etc., while foregoing the right to recover in tort for these same benefits and (in a limited category of cases) the right to recover for intangible damages to the extent covered by the required insurance (F.S. s 627.737(1), F.S.A.); furthermore, the accident victim is assured of some recovery even where he Himself is at fault. In exchange for his former right to damages for pain and suffering in the limited category of cases where such items are preempted by the act, he receives not only a prompt recovery of his major, salient out-of-pocket losses — even where he is at fault — but also an immunity from being held liable for the pain and suffering of the other parties to the accident if they should fall within this limited class where such items are not recoverable.

Lasky, 296 So.2d at 14; see also Rodriguez, 808 So.2d at 85 (“The Law, which was enacted in 1971, was intended to provide a minimum level of insurance benefits without regard to fault_”).

As the court stated in Ivey, “[i]t is the incorrect denial of benefits, not the presence of some sinister concept of ‘wrongfulness,’ that generates the basic entitlement to the fees if such denial is incorrect.” Ivey, 774 So.2d at 684. Moreover, because the injured insured’s right to file a suit for damages has been statutorily abrogated, the insured is forced to look to his or her insurance company for coverage under the policy he or she purchased to provide these benefits. Hence, I believe that the Legislature never intended a PIP case to be a suit for damages to make the injured insured whole; rather, a PIP case is a first-party action brought by an insured against his or her insurance company to enforce the insurance policy to obtain the limited benefits that were promised to the insured in exchange for a paid premium. Pinnacle Medical; Blish v. Atlanta Cas. Co., 736 So.2d 1151 (Fla.1999); Palma; Betancourt v. U.S. Sec. Ins. Co., 823 So.2d 201 (Fla. 3d DCA 2002), review denied, No. SC02-1926, 842 So.2d 848 (Fla. Mar.4, 2003).

The Decision in U.S. Security Insurance Co. v. Cahuasqui

The majority relies on the decision in Cahuasqui in concluding that section 768.79 applies to PIP cases. Because the excellent dissenting opinion of Judge Fletcher discusses the reasons why the majority opinion in Cahuasqui is wrongly decided, I will provide only brief comment on that decision. First, unlike the majority in Cahuasqui, I discern major differences between PIP cases and other insurance cases where the courts have applied section 768.79. For example, uninsured motorist coverage differs significantly from PIP insurance because “[t]he uninsured motorist statute gives the insured the same cause of action against the insurer that he has against the uninsured/ un-derinsured third party tortfeasor for damages for bodily injury.” State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632, 634 (Fla.1982) (citing Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978)). Because PIP insurance is no-fault insurance that differs significantly from other forms of insurance, decisions which apply section 768.79 to those other forms of insurance do not compel application of the statute to PIP cases.

Second, I disagree with the majority in Cahuasqui that the decision in Scottsdale Insurance Co. v. DeSalvo, 748 So.2d 941 (Fla.1999), supports its ruling that section 768.79 applies to PIP cases to allow the insurer to recover fees from the insured. In essence, the court simply held that if an offer of settlement is made by the insurer to the insured and the insured does not recover more than the amount of the offer, the insured is limited to an award of fees, under section 627.428, through the date of the offer. I believe that DeSalvo recognizes that insurers have a remedy under section 627.428 that allows them to mitigate the amount of any award of fees to the insured. I certainly do not read DeS-alvo to hold that the insurer is entitled to fees in the event the insured does not recover more than the amount of the offer.

Conclusion

I strongly believe that the Legislature never intended that section 768.79 apply to PIP cases because its application would completely thwart the purposes of the No-Fault Act and PIP benefits. I am also convinced that the Legislature never intended a suit to enforce a PIP policy to recover the benefits provided thereunder to be an “action for damages” under section 768.79. Hence, the certified question, as rephrased, should be answered in the negative.

      . Section 768.79(7)(a), Florida Statutes, gives the trial court discretion to deny attorneys fees if the proposal is not made in good faith.

      . The UM claim was later settled for $13,000.

      . If the trial court had not allowed parol evidence to vary the terms of the proposed release, this would have been an appropriate case for finding that the proposal was not made in good faith. A proposal for settlement should not include conditions that, if accepted, would cause an offeree to give up a claim or right that it could not have otherwise lost in the litigation. See Martin v. Brousseau, 564 So.2d 240 (Fla. 4th DCA 1990). Otherwise, an offeror might seek to use the coercive aspects of the offer of judgment statute to exact concessions not legally available. When an offer contains as a condition a "general release,” care should be taken to insure that the proposed release does not seek to extinguish claims that are extrinsic to the litigation.

      . §§ 627.730-.7405, Fla. Stat. (2001).

      . United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla.2001) ("Under the language of the Florida No-Fault Law, an insurer is subject to specific penalties once a payment becomes 'overdue'; the penalties include ten percent interest and attorneys’ fees.”); January v. State Fam Mut. Ins. Co., 838 So.2d 604 (Fla. 5th DCA 2003).

      . See Hilyer Sod, Inc. v. Willis Shaw Express, Inc., 817 So.2d 1050, 1054 (Fla. 1st DCA 2002) ("Moreover, the offer of judgment statute and rule should be strictly construed because the procedure is in derogation of the common law and is penal in nature.”), approved, 849 So.2d 276, 2003 WL 1089304 (Fla. Mar. 13, 2003); Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999) (noting that "section 768.79 and Florida Rule of Civil Procedure 1.442 are punitive in nature (citing TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 614 (Fla.1995); Loy v. Leone, 546 So.2d 1187, 1189 (Fla. 5th DCA 1989)).

      . McLeod, was superseded by statute on other grounds. See Time Ins. Co. v. Burger, 712 So.2d 389 (Fla.1998).

      . See also Nelson v. Marine Group of Palm Beach, Inc., 677 So.2d 998, 999 (Fla. 4th DCA 1996) (citing Coast to Coast Real Estate, Inc. v. Waterfront Props., Inc., 668 So.2d 686 (Fla. 4th DCA 1996); V.I.P. Real Estate Corp. v. Florida Executive Realty Mgmt. Corp., 650 So.2d 199 (Fla. 4th DCA 1995)). For example, in Rosado v. Bieluch, 827 So.2d 1115 (Fla. 4th DCA 2002), review denied, No. SC02-2489, 845 So.2d 892 (Fla. Apr.22, 2003), the court held that the offer of judgment statute did not apply to a forfeiture proceeding even though the rem is money. In Miller v. Hayman, 766 So.2d 1116 (Fla. 4th DCA 2000), the court held that because the offer of judgment statute is limited to actions for damages, it does not apply to a will revocation proceeding even though the underlying issue was money.

      . In a suit for damages for personal injury, the injured party may be entitled to recover compensation not only for medical expenses, lost earnings, lost earning capacity and the spouse’s loss of consortium, but also for other elements of damages such as "[a]ny bodily injury sustained by (name) and any resulting pain and suffering [[, disability or physical impairment] [, disfigurement] [, mental anguish] [[, inconvenience] [loss of capacity for the enjoyment of life] experienced in the past [or to be experienced in the future].” Fla. Std. Jury Instr. (Civ.) 6.2(a). In a suit for breach of contract, the injured party may recover for the loss of his or her anticipated profits and any other damages which flow from the breach. Scott v. Rolling Hills Place Inc., 688 So.2d 937, 940 (Fla. 5th DCA 1996) (citing Bird Lakes Dev. Corp. v. Meruelo, 626 So.2d 234, 238 (Fla. 3d DCA 1993), review denied, 637 So.2d 233 (Fla.1994)).

      . In order to determine what the "required benefits” are that flow from the coverage provisions of a PIP insurance policy, we turn to section 627.736(1), which provides that "[e]very insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured....” (Emphasis added). That protection is the provision for medical, disability, and death benefits so the injured insured may have access to the necessary medical care and to provide for their disability in the event they are unable to provide for themselves or their families. This protection can come in different forms. In many instances, the insured flies suit to enforce the insurance policy and obtain the benefits for which he or she paid a premium. In other instances, many PIP policies contain indemnity provisions that require the insurer to indemnify the insured from liability for these necessary expenses. In these cases, the suit is clearly not a dispute about money damages but an attempt to obtain the promised protection, which is indemnity against liability. In many other instances, the insured obtains protection by assigning his or her rights under the policy to their medical care providers, who then attempt to obtain the benefits the insured was otherwise entitled to.

      . See § 627.731, Fla. Stat. (2001) ("The purpose of ss. 627.730-627.7405 is to provide ... a limitation on the right to claim damages for pain, suffering, mental anguish, and inconvenience.”); § 627.736(3), Fla. Stat. (2001) ("An injured party who is entitled to bring suit under the provisions of ss. 627.730-627.7405 ... shall have no right to recover any damages for which personal injury protection benefits are paid or payable.”).

      . U.S. Sec. Ins. Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3d DCA 2000).


text:
    CADD CENTERS OF FLORIDA, INC., Appellant, v. Timothy STRICKLAND, Appellee.
    No. 4D02-2855.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Rehearing Denied Sept. 2, 2003.

      Michael J. Higer of Mintz, Truppman, Clein & Higer, P.A., North Miami, for Appellant.
    Kenneth J. Joyce and Jonathan M. Stre-isfeld of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, Fort Lauderdale, for Appellee.
   PER CURIAM.

CADD Centers of Florida, Inc., (“CADD”), sued former employee and shareholder Timothy Strickland (“Strickland”) for specific performance of the parties’ Shareholders’ Agreement, in an effort to force Strickland to return his 429 shares of CADD stock after he was fired. Strickland filed affirmative defenses and a ten-count counterclaim, in relevant part claiming that CADD breached the parties’ separate Employment Agreement when it failed to pay him certain commissions.

The case was tried to a jury, which returned a verdict that required Strickland to return his stock to CADD and found that the value of the shares was $258,687. The jury further found that CADD owed Strickland $93,557 in commissions. CADD moved for judgment notwithstanding the verdict, arguing that the evidence did not support the jury’s valuation of the stock and the commissions owed Strickland. The final judgment ordered CADD to pay Strickland $5,961.96 plus interest for the commissions, and $214,500 for the stock. CADD appeals. Strickland cross-appeals, arguing that the trial court erred when it granted direct verdicts in favor of CADD on several of his counterclaims, and when it denied his motion for judgment on the pleadings on CADD’s specific performance claim.

At issue in this ease is the par value placed on the CADD stock. Section 5(a) of the Shareholders’ Agreement states that the par value is to be set by the shareholders at an annual meeting. Section 5(b) states that if the value is not set at three successive annual meetings, then the value is to be set by agreement between the terminating shareholder and the remaining shareholders. Failing that, par value will be established by CADD’s accountant, based on the adjusted book value of the corporation as of the applicable date.

No par value was set at three successive annual meetings of CADD’s shareholders, and Strickland and the remaining shareholders did not reach an agreement. Therefore, according to the pertinent method of valuation set forth in the Shareholders’ Agreement, CADD’s accountant set a par value of $0 on the stock. In spite of this valuation, CADD seeks on appeal to reduce the value placed on the stock to $429 total, representing a $1 par value.

Strickland claims that he introduced conflicting evidence of the value of the stock in the form of his own and a third party’s offer to purchase the entire corporation. Neither of these offers, however, value the stock according to the method set forth in the Shareholders’ Agreement; therefore, they are not competent evidence of the value of the stock under the Agreement.

Because there is no competent substantial evidence to support the $214,500 value placed on the stock, we reverse and direct that judgment be entered setting the price of the stock at $429. See Lester’s Diner II, Inc. v. Gilliam, 788 So.2d 283, 285 (Fla. 4th DCA 2000) (reversing jury verdict for lack of competent, substantial evidence); see also Home Dev. Co. of St. Petersburg v. Bursani, 178 So.2d 113, 119 (Fla.1965) (quashing decision that went outside the confínes of parties’ contract to determine the value of departing shareholder’s stock). Regarding all other issues raised on the appeal and cross-appeal, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED for entry of judgment consistent with this opinion.

GUNTHER, KLEIN and TAYLOR, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Anthony L. STRONG, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2554.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.
    Rehearing Denied Aug. 8, 2003.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Michele Taylor, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Anthony L. Strong appeals a circuit court order denying his petition for writ of habeas corpus. In the petition, Mr. Strong sought permission to file a belated motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850(b)(3), claiming that his lawyer had failed to file a timely motion. After an evidentiary hearing, the trial court denied the petition as untimely. Because the rules of procedure as currently written give us no option, we reverse. There are no prescribed time limits for filing a request for a belated postconviction motion on this ground. Compare Fla. R.Crim. P. 8.850(b)(3), mth Fla. R.Crim. P. 3.850(b)(1). A request for a belated motion on this ground can be denied only if the State establishes that laches applies to bar the claim.

Mr. Strong was convicted of felony murder and attempted robbery with a firearm and sentenced to life imprisonment on April 5, 1991. He appealed his judgment and sentence, and we affirmed without written opinion on March 4, 1992. See Strong v. State, 595 So.2d 566 (Fla. 2d DCA 1992) (unpublished table decision). Our mandate issued on March 24, 1992. Thus, the time for filing a timely motion for postconviction relief pursuant to rule 3.850 expired in 1994.

On appeal Mr. Strong was represented by Mr. J. Frank Porter, who became a county court judge after Mr. Strong filed his petition for writ of habeas corpus but prior to the evidentiary hearing on the petition. Although it is not clear from this record whether Judge Porter had any obligation or agreement to file a postconviction motion for Mr. Strong when he was still practicing law, it is undisputed that he did not file any postconviction motion in the two-year period following the appeal.

Mr. Strong filed no pro se motions until late 1998 or early 1999. In June 1999, he filed a motion for postconviction relief pursuant to rule 3.850, alleging that his trial counsel was ineffective for failing to seek suppression of his confession. This motion was summarily denied as untimely, and this court affirmed that determination on November 3, 1999. See Strong v. State, 756 So.2d 1013 (Fla. 2d DCA 1999) (unpublished table decision). We issued a mandate in that case on March 14, 2000.

Mr. Strong filed a second motion for postconviction relief pursuant to rule 3.850(b)(1) on August 31, 2000, alleging newly discovered evidence in the form of recanted testimony by a witness. This motion was summarily denied on November 17, 2000. The circuit court based its decision largely on the fact that Mr. Strong confessed to this crime. The circuit court concluded that any new evidence from the witness who had recanted would not have affected the verdict because the witness’s trial testimony had been consistent with Mr. Strong’s confession. The order denying this motion attached the trial records necessary to support the court’s conclusion. Mr. Strong appealed this order. We affirmed without opinion on April 18, 2001, see Strong v. State, 790 So.2d 421 (Fla. 2d DCA 2001) (unpublished table decision), and our mandate issued on June 15, 2001.

The current proceedings began on September 24, 2001, when Mr. Strong submitted a request to file a rule 3.850(b)(3) motion claiming that Judge Porter, who had represented Mr. Strong in his direct appeal, had promised to file a timely post-conviction motion pursuant to rule 3.850, but had not. The circuit court properly treated this motion as a petition for writ of habeas corpus pursuant to Steele v. Kehoe, 747 So.2d 931 (Fla.1999). Mr. Strong’s request does not specify what grounds he believes his lawyer would or should have included within the timely postconviction motion, but the rule does not appear to require him to plead these allegations. As required by Steele, the circuit court ordered an evidentiary hearing solely on whether Mr. Strong actually retained an attorney to file a rule 3.850 motion.

Initially, the circuit court did not appoint counsel for Mr. Strong. Instead, it ordered the State to coordinate and schedule the required evidentiary hearing. The order also compelled the State to contact Judge Porter and arrange for his appearance at the hearing. After some delay, however, the circuit court appointed counsel for Mr. Strong and ordered defense counsel to schedule the hearing. This order did not specify who was responsible for securing the attendance of Judge Porter.

At the hearing on the petition, Mr. Strong testified that initially Judge Porter had been appointed as his appellate attorney. When his direct appeal was unsuccessful, Mr. Strong asserted that he sought Judge Porter’s continued representation and retained him to file a motion for postconviction relief. According to Mr. Strong, he and Judge Porter did not initially discuss any fee for this service. However, Mr. Strong testified that he later contacted Judge Porter, who assured Mr. Strong that he would file the motion. Mr. Strong testified that during this discussion, he indicated to Judge Porter that his family was trying to obtain funds to pay him. According to Mr. Strong, after the time for filing such a motion had passed, he learned that no motion had been filed on his behalf. He then began to make efforts to gather documents from his file to prepare his own motion.

The State presented no evidence at this proceeding. At the conclusion of the hearing, the circuit court denied the petition. The court concluded that because Mr. Strong did not present the testimony of his appellate attorney, Mr. Strong had not established that he had actually retained that attorney to perform postconviction work. Moreover, the circuit court opined that even if Mr. Strong’s delay was justified, it should not have taken Mr. Strong from 1992 to 2001 to figure out how to file a pro se motion for postconviction relief.

At first glance, Mr. Strong’s request for a postconviction motion certainly seems untimely, coming as it did more than nine years after his conviction. On the other hand, if Mr. Strong’s allegations are true, he hired an attorney who simply failed to file a timely postconviction motion. Mr. Strong did not have a clearly recognized right to a belated postconviction motion until the Florida Supreme Court decided Steele, 747 So.2d 931, on May 27, 1999. As such, his request for a belated postcon-viction motion was filed approximately two years and four months after this remedy clearly became available to him. For approximately the first six months of this period, Mr. Strong had a pending, albeit untimely, motion for postconviction relief.

There is nothing in Steele, 747 So.2d 931, or in rule 3.850(b)(3) as amended by Steele, or in subsequent case law that places any time limit on a petition seeking to file a belated postconviction motion when an attorney failed to file a timely motion. There is no prescribed requirement of due diligence in filing such a motion. Cf. Fla. R.Crim. P. 3.850(b)(1) (allowing belated postconviction motion based upon facts unknown to defendant or that could not have been ascertained by exercise of due diligence); Fla. R.App. P. 9.141(c)(4)(A) (extending two-year time limit for filing petition for belated appeal if petitioner was unaware appeal had not been filed or was not advised of right to appeal and should not have ascertained such facts by exercise of due diligence). Such a limitation probably should be added to the rule, but this court has no power to add the limitation.

We have examined cases involving an analogous issue — -the proper time limit for the filing of belated direct appeals in the era prior to the promulgation of a rule of procedure setting specific limits. Based upon these cases, we conclude that a request for a belated postconviction motion can be denied as untimely only if it is barred by laches. Cf. Walker v. Wainwright, 411 So.2d 1038 (Fla. 1st DCA 1982) (recognizing, prior to enactment of specific rule related to filing belated appeal, that belated appeal could be barred by laches); Nava v. State, 652 So.2d 1264 (Fla. 4th DCA 1995) (same). To establish laches, however, the burden is on the State to prove that such a belated request was unreasonably late and resulted in some specific prejudice. Cf. Nava, 652 So.2d 1264 (involving belated appeal); Walker, 411 So.2d 1038 (same); Bashlor v. Wainwright, 374 So.2d 546 (Fla. 1st DCA 1979) (allowing belated appeal despite lengthy delay in part because right defendant asserted was not recognized at time defendant first sought relief and then gave up). We therefore reverse the trial court’s decision that Mr. Strong’s request for a belated postconviction motion was untimely. Because the State was not provided an opportunity to develop the defense of lach-es below, we remand for a new evidentiary hearing.

We note that the trial court also held that Mr. Strong failed to prove that he had retained an attorney to file a timely post-conviction motion because Judge Porter had not testified at the evidentiary hearing. As explained earlier in this opinion, an order of the trial court had required the State to procure the testimony of Judge Porter. That order was not rescinded when the trial court appointed Mr. Strong’s counsel. As a result, the trial court should not have relied on the absence of this testimony to rule against Mr. Strong. On remand, the trial court should clarify who has the responsibility to obtain the testimony of Judge Porter.

We reverse the order denying the petition for writ of habeas corpus.

NORTHCUTT and STRINGER, JJ., Concur.

      . Although Steele created a procedure whereby these motions are treated as habeas petitions, it also amended rule 3.850(b). The additional language, now rule 3.850(b)(3), seems to permit a postconviction motion to simply allege the reason the request is timely. However, that is not the procedure espoused by Steele.

      . Steele was the result of a Fifth District case which had recognized the right to file a belated postconviction motion under certain circumstances. See Steele v. Kehoe, 724 So.2d 1192 (Fla. 5th DCA 1998). The First District had previously noted that such a procedure might be available. Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987). The Fourth District had also indicated that such a right might exist but would require a defendant to first have a motion denied as untimely before seeking such relief. Medrano v. State, 719 So.2d 15 (Fla. 4th DCA 1998), overruled by Medrano v. State, 748 So.2d 986 (Fla.1999).. Thus, in 1998 only one district clearly recognized a right to file a belated postconviction motion. It appears that prior to Steele, this court had not recognized or commented upon any right of a defendant to file a belated motion for postconviction relief.

      . As noted in footnote 1, prior to May 1999, the Fourth District had held that a defendant could not seek a belated postconviction motion until a motion had been filed and held untimely. Medrano, 719 So.2d 15.

      . We recognize that in McCray v. State, 699 So.2d 1366 (Fla.1997), the Florida Supreme Court created a presumption that laches applied to any request for a belated appeal filed more than five years after the conviction became final. This opinion was issued prior to the promulgation of Florida Rule of Appellate Procedure 9.141(c) but after the case law reflected confusion over the timeliness of such requests. We decline to create and apply such a rule in this specific case. Mr. Strong’s conviction was final for more than five years before Steele was issued. Such a rule would bar his claim before it existed. Although this case illustrates that some time limitation upon the right to seek a belated postconviction motion should be established, it would be better for the limitation to be promulgated as a portion of rule 3.850.

      . Because our resolution of this appeal does not require it, we do not determine whether a defendant seeking to file a belated postconviction motion under rule 3.850(b)(3) establishes a prima facie case for relief by presenting only his or her own testimony without that of the relevant attorney.


text:
    Robert S. YOUNG, Petitioner, v. Alice G. HECTOR, Respondent.
    No. 3D03-1561.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Rehearing Denied Aug. 13, 2003.
    Karen J. Haas, Robert J. Merlin, Miami, for petitioner.
    Bette Ellen Quiat, Miami, for respondent.
    Before LEVY, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Petitioner, Robert S. Young, seeks cer-tiorari review on a plethora of issues in this tortuously over-litigated case. By and large, we deny certiorari on all issues, save one. Because the trial court exceeded its jurisdiction in freezing assets in a purported trust account without either a basis in the pleadings or the evidence, the order freezing the trust account proceeds is quashed. See Young v. Young, 816 So.2d 799 (Fla. 3d DCA 2002); City of Miami Beach v. Swedroe, 788 So.2d 404 (Fla. 3d DCA 2001); Resil v. Resil, 755 So.2d 186 (Fla. 3d DCA 2000).

We further note that the trial court would not allow the petitioner, who was neither disrespectful nor disruptive, to speak to his attorney. The court stated: “No, you may not speak to your attorney in this hearing. You may give your attorney a note. Is that clear?” This, we believe is somewhat improper.

Certiorari granted, in part; order quashed.