author: MAY, J.

text:
    THE CLUB AT ADMIRAL’S COVE, INC., A Florida not-for-profit-corporation, Appellant, v. Michael R. SKIGEN and Rosalind Skigen, Appellees.
    No. 4D03-3284.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Rehearing Denied Aug. 27, 2004.

      Elliot H. Scherker and Susan Fleischner Kornspan of Greenberg Traurig, P.A., West Palm Beach, for appellant.
    James D. Ryan and Lauren J. Schindler of Ryan & Ryan Attorneys, P.A., North Palm Beach, for appellees.
   MAY, J.

The Club at Admiral’s Cove appeals an order certifying a class. It argues, among other things, the class representatives do not have standing to represent the purported class. We agree and reverse.

Michael and Rosalind Skigen purchased a full golf equity membership in the Club at Admiral’s Cove under an August 15, 1989 Plan for the Offering of Memberships. In November 1999, a majority of the Club’s members, including Skigen, voted to purchase the Club’s assets from the original developer, terminate the 1989 Offering Plan, and adopt amended bylaws. The members approved a capital assessment of $7,800 for pre-November 1999 memberships and $15,000 for post-November 1999 memberships.

They also categorized the new $100,000 membership price as follows: $60,000 in capital contribution and $40,000 in nonrefundable charges. The $40,000 non-refundable charges included a $15,000 assessment for each full golf membership purchased and in effect on and after November 1, 1999, a $5,000 initiation fee for new members, and a $20,000 initiation fee.

The Skigens sold their home in 2002, and resigned their membership. As a result, the Club refunded $48,750 to them. The Skigens filed a class action on behalf of themselves and all members who purchased equity memberships prior to November 1, 1999, and resigned their memberships after November 1, 1999. They alleged breach of contract based upon the 1989 Offering Plan, seeking a larger refund than they received.

They alleged all of the claims involved: (1) a common question of law concerning the interpretation of the contract, Offering Plan, and Club’s Bylaws, and (2) common questions of fact concerning the Club’s breach of duty as defined in the Offering Plan. They further alleged the interests of the members were uniform and typical; the class was so numerous that joinder was impracticable; and the Skigens were able to fairly and adequately protect and represent the class.

The Club contended the Skigens lacked standing to adequately and fairly represent the class because the contract upon which they relied terminated by a vote in which Skigen participated. The Club further alleged the class did not meet the required tests set forth in Rule 1.220(a) or (b) of the Florida Rules of Civil Procedure. The trial court conducted an evidentiary hearing on class certification.

At the hearing, Mr. Skigen testified there were approximately 170 members in the class with individual damages ranging from $5,000 to $48,000. The measure of damages for each member would be identical. The most significantly contested issue was the Skigens’ standing. The court suggested the standing issue should have been raised by a motion to dismiss.

The court certified the class finding: (1) there are approximately Í70 claimants and joinder was impracticable; (2) common questions of law existed and predominated over all other questions; (3) all members seek the same remedy; (4) the Skigens are prepared to adequately represent the class; and (5) failure to certify the class would impair the ability of other class members to protect their interests. The court certified the class under rule 1.220(a) and (b)(1)(B).

“Florida Rule of Civil Procedure 1.220(a) defines the prerequisites of class representation as numerosity, commonality, typicality, and adequacy of representation.” Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928, 930 (Fla. 4th DCA 2002). We find no error in the court’s rulings on most of the criteria required for class certification. Our decision is limited to one issue — standing.

The Club argues the Skigens failed to allege a ease or controversy against them because they lack personal standing to bring a claim under the 1989 Offering Plan because Skigen voted to terminate the Plan. The Skigens respond the Club waived its right to raise the standing issue because it did not move to dismiss the complaint on this ground.

Standing is a preliminary question to be answered in determining commonality and typicality of a class. Murray v. Auslander, 244 F.3d 807, 810 (11th Cir. 2001); cf. Lance v. Wade, 457 So.2d 1008, 1011 n. 2 (Fla.1984) (Florida Rule of Civil Procedure 1.220 is based on Federal Rule of Civil Procedure 23); Concerned Class Members v. Sailfish Point, Inc., 704 So.2d 200, 201 (Fla. 4th DCA 1998) (federal cases may be used as persuasive authority to interpret Florida Rule of Civil Procedure 1.220). Because the standing issue necessarily required evidence, a hearing on a motion to dismiss could not have adequately addressed the issue. See Vienneau v. Metro. Life Ins. Co., 548 So.2d 856 (Fla. 4th DCA 1989) (pursuant to a motion to dismiss, the trial court’s gaze is limited to the four corners of the complaint). The standing issue did not ripen until the Ski-gens moved for class certification; thus, the Club did not waive standing by failing to raise it in a motion to dismiss.

While technical in nature, the error here lies in the pleadings. The breach is based upon a non-existent contract. The Offering Plan no longer exists because the Club members, including Skigen, voted to terminate it. Without the requisite standing, the Skigens cannot fairly and adequately represent the class. The trial court therefore erred in certifying the class. We see no error in the other issues raised regarding certification.

We reverse and remand the case to the trial court for further proceedings consistent with this opinion.

POLEN and SHAHOOD, JJ., concur.

      . It is noteworthy to mention the 1989 Offering Plan and Amended and Restated Bylaws provide the identical formula for calculating membership fee refunds. Neither document, however, provides the refundable, non-refundable allocation of the membership fee.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Pedro Juan HERNANDEZ, Petitioner, v. Charles J. McCRAY, Act. Dir. Miami etc., et al, Respondent.
    No. 3D04-1799.
    District Court of Appeal of Florida, Third District.
    July 23, 2004.
    Ricardo P. Hermida, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for respondent.
    Before SCHWARTZ, C.J., GERSTEN and FLETCHER, JJ.
   PER CURIAM.

Petitioner Pedro Juan Hernandez (“petitioner”) seeks a writ of habeas corpus, claiming his current detention is unlawful and that he is entitled to immediate release. We exercise our jurisdiction pursuant to Article V, section 4(b)(3) of the Florida Constitution and grant the petition for habeas corpus.

The petitioner was arrested for an alleged violation of Section 800.04(4)(a), Florida Statutes (2003), in December of 2003. A few weeks later, the petitioner was released on bond. The case was set for trial on May 3, 2004. Defense counsel informed the State that a defense continuance was being sought, and asked anothér attorney to cover the petitioner’s case to request a continuance on the scheduled trial day.

On the morning of the scheduled trial day, the petitioner was in the hallway outside the courtroom looking for his original defense counsel. When the case was called, the petitioner was not present and the trial judge issued an alias/capias. Substitute counsel then located the petitioner in the hallway, and both appeared in court prior to the conclusion of the morning calendar.

When the petitioner appeared in court, the trial judge set aside the alias/capias, but stated: ‘We are drug testing you too ... Drug test both of them.” The trial judge had just ordered the drug test of an earlier defendant. The trial judge did not articulate any reason for ordering the petitioner’s drug test. The petitioner was not provided with an opportunity to respond to the request for urine and was not provided with an opportunity to speak with counsel prior to being taken into the jury room “to drop.” The record further indicates the petitioner did not have a Spanish-language translator and was never advised as to any reason for the requested drug screen. The petitioner allegedly tested positive for illegal drugs and was subsequently ordered to be placed in detention without bond.

This was clearly error. Simply put, there is no evidence other than the petitioner’s tardiness to support a forced urinalysis or drug screen. At no time was the petitioner charged with violating a court order or court decorum. There are no findings that the petitioner was in any way impaired at the hearing or that the petitioner failed to comply with the conditions of the bail bond contract. There was no probable cause to take the petitioner into custody. See § 903.046, Fla. Stat. (2004).

Under these circumstances, it was error for the trial court to order the petitioner detained with no bond. Accordingly, we grant the petition for writ of habeas corpus and direct that the detention based upon the sua sponte drug test be vacated. Bond is reinstated and the respondent is ordered to immediately release the petitioner from custody.

This opinion shall take effect immediately notwithstanding the'filing of any motion for rehearing.


text:
    Torrence Lenell WILKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2632.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.

      Torrence Lenell Wilkins, Jesup, GA, pro se.
    No appearance required for appellee.
   PER CURIAM.

The appellant sought relief from his guilty and no contest pleas in twenty separate cases from 1991 to 2000. The circuit court summarily denied relief as to all the felony convictions as the petition was untimely filed. We affirm as to these cases without comment. See Wood v. State, 750 So.2d 592, 595 (Fla.1999) (“defendants adjudicated prior to this opinion shall have two years from the filing date within which to file claims traditionally cognizable under coram nobis.”).

The affirmance is without prejudice to the cases not listed by the lower court order. The circuit court did not have jurisdiction to address claims related to these eases and properly excluded these cases from its order. If not procedurally barred, the appellant may seek relief on the misdemeanor and traffic cases in the appropriate court. See State v. Woods, 400 So.2d 456, 457 (Fla.1981) (“where no appeal of the judgment has been sought ... the petition must be made to the original trial court.”).

STONE, SHAHOOD and GROSS, JJ., concur.


text:
    Paul E. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4918.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.

      Paul E. Moore, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Paul Moore appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, which raised several claims. We affirm and write to specify that the affirmance of the denial of one of the claims is without prejudice.

Moore entered a negotiated, no contest plea to several offenses, including two counts of burglary of a dwelling. The factual basis for the plea explained that Moore stole “air-conditioning units” from two homes under construction. Moore claims that his plea was involuntary because the factual basis does not support the burglary of a dwelling charges. This claim is properly raised in a 3.850 motion. Franklin v. State, 645 So.2d 166 (Fla. 4th DCA 1994).

Moore argues that the houses did not qualify as dwellings because they were under construction. See Perkins v. State, 682 So.2d 1083 (Fla.1996)(holding that an unoccupied house is afforded the same protection, under section 810.011(2), as an occupied house). Moore does not specify how the homes did not meet the definition of “dwelling” under section 810.011(2), Florida Statutes; rather, he alleges generally that the facts did not establish the crime of burglary of a dwelling and that counsel was ineffective in allowing him to enter a no contest plea to these charges.

Pro se motions should be liberally construed. Willis v. State, 840 So.2d 1135, 1136 (Fla. 4th DCA 2003). Nevertheless, Moore must show prejudice or a manifest injustice to be entitled to withdraw his plea after sentencing. Panno v. State, 517 So.2d 129, 131 (Fla. 4th DCA 1987); see Williams v. State, 316 So.2d 267, 273 (Fla.1975)(explaining the purpose of the factual basis and setting out the manifest injustice standard for withdrawing plea after sentencing).

In this case, the allegations are insufficiently specific to establish that the factual basis recited for the plea does not support the burglary of a dwelling charges. See Gonzalez v. State, 724 So.2d 126, 127 (Fla. 3d DCA 1998); Anderson v. State, 831 So.2d 702, 703 (Fla. 4th DCA 2002). See also State v. Hamilton, 660 So.2d 1038, 1044-45 (Fla.1995)(requiring some form of enclosure for “curtilage” as applied to burglary statute).

Burglary of a structure, when there is no one inside at the time, is a third-degree felony. § 810.02(4)(a), Fla. Stat. (1999). Burglary of a dwelling is a second-degree felony, whether someone is inside at the time or not. § 810.02(3)(a) & (b), Fla. Stat. (1999). While Moore might be prejudiced if he was convicted of the wrong offense under the facts of his case, he fails to adequately explain or allege facts that would meet the manifest injustice standard.

Accordingly, the denial of Moore’s claim that his plea to burglary of a dwelling was involuntary is affirmed. Mindful of the liberal standard applied to pro se motions, affirmance is without prejudice to Moore filing a sworn post-conviction motion within sixty days from the date of the issuance of the mandate in this case alleging sufficient facts, if such facts exist, in order to demonstrate that his crime did not amount to burglary of a dwelling. Moore’s other claims are affirmed with prejudice.

GUNTHER, STONE and MAY, JJ., concur.


text:
    Billy D. TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2692.
    District Court of Appeal of Florida, First District.
    July 29, 2004.
    Billy D. Turner, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(B).

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    Timothy BLACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2405.
    District Court of Appeal of Florida, First District.
    July 29, 2004.
    Timothy Black, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Gilbert v. Singletary, 632 So.2d 1104 (Fla. 4th DCA 1994).

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    Carlos J. BARNEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2408.
    District Court of Appeal of Florida, First District.
    July 29, 2004.
    Appellant, pro se.
    Charles J. Crist, Jr., Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, Franklin v. State, 854 So.2d 659 (Fla.2003).

BOOTH, BARFIELD, and ALLEN, JJ., concur.


author: ORFINGER, J.

text:
    MARINER HEALTH CARE OF METROWEST, INC., etc., Petitioner, v. Ada BEST, Respondent.
    No. 5D04-1117.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P. A., Orlando, for Petitioner.
    Michael J. Trentalange and Elizabeth V. Kelley of Trentalange & Kelley, P. A., Tampa, for Respondent.
   ORFINGER, J.

Mariner Health Care of Metrowest, Inc. (Mariner), a nursing home operator, seeks certiorari review of a discovery order compelling it to produce grievance logs of consumer and employee complaints. Mariner argues that the logs are privileged. We grant the petition and quash the circuit court’s order.

Ada Best (Best) filed an action against Mariner, asserting a violation of a nursing home resident’s rights under section 400.022, Florida Statutes (2003). Through discovery, Best sought production of records of accidents or unusual incidents, including all records of consumer or employee complaints. Mariner objected to the production of these documents, asserting a “quality assurance privilege.” Best then moved to compel production.

After an evidentiary hearing, the trial court entered an order compelling Mariner to produce, inter alia:

7. Defendant [Mariner] shall answer interrogatory number 19, with respect to consumer and employee complaints (grievance logs and related documents), and identify the custodian of those records. Moreover, with respect to items 26 and 27 of Plaintiffs [Best] request to produce, Defendant shall furnish Plaintiff with copies of any and all grievance logs and related documents filed with, or created by the facility from January 1997 through December 2002.

Mariner argues that the discovery order departs from the essential requirements of law, resulting in irreparable harm. Mariner contends that the grievance logs were generated in the context of a quality assurance program under section 400.147, Florida Statutes (2003), and, therefore, are privileged under subsection (15) of that statute. Certiorari is appropriate to review trial court orders compelling production of discovery claimed to be privileged or otherwise protected, as this would present the potential of a departure from the essential requirements of law, which would cause material harm, leaving no adequate remedy on final appeal. See Snyder v. Value Rent-A-Car, 736 So.2d 780, 781 (Fla. 4th DCA 1999) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995)).

Section 400.147(1) requires all nursing home facilities to establish internal risk management and quality assurance programs. Each nursing home is required to implement an incident reporting system based on the affirmative duty to report adverse incidents. See § 400.147(l)(d), Fla. Stat. (2003). Each risk management and quality assurance program must include the use of incident reports filed with the risk manager and facility administrator. See § 400.147(4), Fla. Stat. (2003). These incident reports are part of the work papers of the attorney defending the facility in litigation and are subject to discovery, but are not admissible as evidence in court. Id.

Section 400.147(15) provides:

(15) Information gathered by a credentialing organization under a quality assurance program is not discoverable from the credentialing organization. This subsection does not limit discovery of, access to, or use of facility records, including those records from which the credentialing organization gathered its information.

We find Mariner’s reliance on this statute misplaced. Best is not seeking the information from a credentialing organization. Consequently, subsection 15 has no applh cation here. However, as Mariner correctly argued below, in 1620 Health Partners, L.C. v. Fluitt, 830 So.2d 935 (Fla. 4th DCA 2002), the court held that certain incident reports of a nursing home could be subject to discovery, but only after an in camera inspection was conducted to review the documents and determine their discovera-bility.

In Fluitt, the estate of a nursing home patient sued the nursing home for wrongful death and violations of chapter 400, Florida Statutes. Through discovery, the estate sought “any and all records of accidents or unusual incidents referring in any way to the plaintiff.” The nursing home objected, asserting work-product, attorney-client, quality assurance, quality review and other statutory and rule privileges. The trial court compelled production of the documents without an in camera inspection. The nursing home sought certiorari relief in the Fourth District Court asserting that the reports at issue were generated and used in anticipation of litigation, and were also privileged under the quality assurance, peer review and risk management privileges set forth in various state statutes and federal rules. The appellate court concluded that if the documents were incident reports prepared in compliance with section 400.147(4), they might be discoverable. However, if the records were from quality assurance/risk management meetings or communications regarding the like, they were not discoverable. Id. at 938. As a result, the court determined that an in camera inspection was necessary for the trial court to determine the discoverability of the documents because the record did not reveal the nature of the documents being sought. Id. As to reports generated under section 400.147(4), the Fluitt court held that such documents were discoverable, but only after a showing of need and the inability without undue hardship to obtain the substantial equivalent from other sources. We agree with that assessment.

We conclude that the petition for writ of certiorari should be granted and the discovery order quashed. On remand, the trial court should hold an in camera inspection of the documents. As in Fluitt, the precise nature of the grievance logs and related documents sought by Best is unclear. If these documents were generated under section 400.147(4), under the holding in Fluitt, they would be subject to discovery. However, as Fluitt suggests, such reports would only be discoverable upon a showing of need and the inability without undue hardship to obtain a substantial equivalent from other sources.

CERTIORARI GRANTED; ORDER QUASHED.

PETERSON and PALMER, JJ., concur.

      . Section 400.119(1), Florida Statutes (2003), provides for confidentiality of “[r]ecords of meetings of the risk management and quality assurance committee of a long-term care facility ..., as well as incident reports filed with the facility's risk manager and administrator, notifications of the occurrence of an adverse incident, and adverse incident reports from the facility are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.”


author: PADOVANO, J.

text:
    COTTON STATES MUTUAL INSURANCE, Appellant, v. Paul D’ALTO, Appellee.
    No. 1D03-4313.
    District Court of Appeal of Florida, First District.
    July 30, 2004.

      Anthony J. Salzman of Moody & Salz-man, P.A., Gainesville, for Appellant.
    Terence J. Kann, Gainesville, for Appel-lee.
   PADOVANO, J.

This is an appeal from a nonfinal order denying a motion to compel an appraisal under a homeowner’s insurance policy. We conclude that the order is not appeal-able under rule 9.130(a)(3)(C)(iv) of the Florida Rules of Appellate Procedure, because it does not qualify as an order that determines entitlement to arbitration. Additionally, we are unable to afford relief by certiorari. The appellant has not shown that the trial court departed from the essential requirements of law in denying the motion to compel appraisal or that the denial of the motion will result in irreparable injury.

In September, 2002, the plaintiff, Paul D’Alto, discovered that the shower in the master bathroom of his home was leaking and he reported this to the defendant, Cotton States Mutual Insurance Company. An agent for the company examined the shower and determined that the leak was producing high levels of mold in the house. Based on this finding, the plaintiff was advised to move from the master bedroom suite to the guest room.

Cotton States engaged the services of mold remediation experts, who entered the plaintiffs home in December, 2002, to conduct a more thorough investigation of the loss. In the course of the inspection, these experts allegedly caused significant damage to the home and allowed the mold infestation to spread throughout the home. According to the complaint, they exposed the interior wall by ripping down mold-contaminated drywall, piled up the drywall on the floor, and failed to take adequate precautions to prevent the spread of the mold.

The plaintiff also claimed that Cotton States had insisted on unnecessary inspections, which delayed the repair work and added to the damage already done by the mold in his home. When the home' was first inspected by the mold remediation experts, Cotton States took the position that it would not be necessary to demolish the shower in the master bathroom. Later, the company acknowledged that the shower would have to be taken out and rebuilt, but by that time it was too late to prevent the spread of the mold throughout the entire house.

In the initial version of the complaint, the plaintiff sought to recover under the insurance policy. Cotton States moved to compel an appraisal under a provision of the policy that requires the parties to submit to an appraisal of the loss if coverage is not in dispute. Before the motion was heard, the plaintiff amended the complaint to assert a series of claims against. Cotton States for the damage that was done to his property during the course of the inspections. The first-party insurance claim was not included in the amended complaint.

The plaintiff argued that he was not required to submit to the appraisal process because he was not making a claim for benefits under the policy. He pointed out that the amended complaint was limited to claims against Cotton States for damage the company did during the inspections. In response, Cotton States argued that it had not denied coverage under the policy and that the only issue left in dispute was the amount of the plaintiffs loss. Thus, Cotton States contended that the claims were subject to the mandatory appraisal provision in the insurance policy.

The trial court agreed with the plaintiff and denied the motion to compel an appraisal. In support of this decision, the trial court concluded that the complaint does not seek benefits under the insurance policy, but rather that it is based on independent causes of action. The trial court reasoned that the appraisal provision did not apply, because the plaintiff was not seeking any first-party benefits under the policy. Cotton States filed a timely appeal to this court to seek review of the order denying its motion to compel an appraisal.

Jurisdiction to hear an appeal from a nonfinal order is limited to the kinds of orders referred to in rule 9.130 of the Florida Rules of Appellate Procedure. This rule is designed to reduce the number of appealable pretrial orders and to discourage piecemeal review. See Marina Bay Hotel & Club, Inc. v. McCallum, 733 So.2d 1133 (Fla. 4th DCA 1999); BE & K, Inc. v. Seminole Kraft Corp., 583 So.2d 361 (Fla. 1st DCA 1991). Given this objective, the courts have narrowly construed the scope of the rule so that it applies only to the orders it identifies as appealable orders. See, e.g., Valenzuela v. Valenzuela, 648 So.2d 741 (Fla. 3d DCA 1994); Outboard Marine Corp. v. Huggins, 583 So.2d 433 (Fla. 4th DCA 1991); Neilinger v. Baptist Hospital of Miami, Inc., 460 So.2d 564 (Fla. 3d DCA 1984).

The part of the rule at issue here, subdivision (a)(3)(C)(iv), authorizes an appeal from a nonfinal order that determines “the entitlement of a party to arbitration.” We have previously held that an agreement requiring the parties to submit to an appraisal is appealable under subdivision (a)(3)(C)(iv), on the theory that it is the same as an! order determining entitlement to arbitration. See Florida Farm Bureau Cas. Ins. Co. v. Sheaffer, 687 So.2d 1331 (Fla. 1st DCA 1997). This was the rule in other district courts of appeal, as well. See United Servs. Auto. Ass’n v. Modregon, 818 So.2d 562 (Fla. 2d DCA 2002); U.S. Fidelity & Guar. Co. v. Romay, 744 So.2d 467 (Fla. 3d DCA 1999); Delisfort v. Progressive Express Ins. Co., 785 So.2d 734 (Fla. 4th DCA 2001). However, we conclude that the jurisdictional principle stated in these decisions is no longer valid in light of the supreme court’s decision in Allstate Insurance Company v. Suarez, 833 So.2d 762 (Fla.2002).

In Suarez, the supreme court held that a panel of appraisers could not be compelled to apply the Florida Arbitration Code, because an agreement to submit to an appraisal is not the equivalent of an agreement to resolve a dispute by arbitration. 833 So.2d at 766, approving Allstate Ins. Co. v. Suarez, 786 So.2d 645 (Fla. 3d DCA 2001). The court disapproved of our opinion in Sheajfer, which involved a similar appraisal provision. Suarez, 833 So.2d at 765. Although the differences between appraisal and arbitration were discussed in Suarez in a different context, the rationale of the decision applies here, as well. As the Fourth District Court of Appeal concluded in Nationwide Mutual Fire Insurance Company v. Schweitzer, 872 So.2d 278 (Fla. 4th DCA 2004), the Suarez decision effectively overrules the line of cases allowing appeals from orders that determine the right to an appraisal. We agree with this assessment.

Based on the rationale of the Suarez decision, we hold that an order compelling an appraisal is not appealable under rule 9.130(a)(3)(C)(iv). This conclusion is one that flows from the analysis in Suarez, and it is also consistent with the language of the rule itself. Subdivision (a)(3) states that “[ajppeals to the district courts of appeal of nonfinal orders are limited to ” the orders enumerated in the rule, (emphasis added). Because the rule does not refer to an order determining the right to an appraisal, such an order could be ap-pealable only if it were essentially the same as another kind of order that is expressly listed in the rule. It would be logical to conclude that an appraisal order is appealable under the rule if it were the functional equivalent of an order determining the right to arbitration, but that is not the case. In Suarez, the supreme court described the appraisal process as an “informal proceeding” and explained that it was not the same as arbitration.

Cotton States requested that we review the order by certiorari if we concluded that it was unappealable, but the argument made on this point amounts to no more than a mere a recitation of the standard for reviewing a pretrial order by certiorari. The entire argument is as follows: “[Cotton States] requests that if this court determines that it does not have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), that the court treat the notice of appeal and subsequent brief as a petition for writ of certiorari for departure from the essential requirements of law which cannot be adequately remedied by appeal.”

Cotton States did not explain why the order departs from the essential requirements of law or why it would result in irreparable injury, and we are not able to find support for either of these points in the record. The triab judge denied the motion to compel an appraisal, because he believed that it was not yet ripe for consideration. We cannot say that this decision was incorrect, much less a departure from the essential requirements of law. Whether the plaintiff can assert claims that are independent of the insurance contract is an issue not yet raised or decided in the trial court. The order will not result in irreparable injury in any event, because the trial court may still order the appraisal. All the trial court has decided so far is that there is no pending disagreement that would be subject to the appraisal provision.

The request for relief by certiorari appears to be based on the assumption that certiorari is available if the order is not appealable. But certiorari is not a substitute for an appeal. As the court explained in Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla.1987), “common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule, which authorizes appeal from only a few types of nonfinal orders.” See also Belair v. Drew, 770 So.2d 1164 (Fla.2000).

In summary, we conclude that the appeal in this case must be dismissed for lack of jurisdiction. Because the order fails to meet the requirements for review by cer-tiorari, we also decline to grant relief by certiorari.

Appeal dismissed.

ALLEN and LEWIS, JJ., concur.


author: PALMER, J.

text:
    Horace HANKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1026.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.
    Horace Hankerson, Madison, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach for Ap-pellee.
   PALMER, J.

Horace Hankerson (defendant) appeals the amended order entered by the trial court denying his rule 3.800(a) motion. Concluding that the trial court lacked jurisdiction to enter the amended order, we vacate that order and dismiss the instant appeal.

The defendant filed a motion seeking rule 3.800(a) post-conviction relief. The trial court originally entered an order denying the motion on January 27, 2004, and the defendant timely filed a notice of appeal from that order. While the appeal was' pending, the trial court entered an amended order, again denying the defendant’s 3.800(a) motion. Before the trial court entered its amended order, this court had issued a decision affirming the trial court’s original order. However, because of the timely filing of a motion for rehearing, subsequently denied, the mandate did not issue in the original appeal until after the trial court entered its amended order.

The trial court lacked jurisdiction to enter the amended order because the defendant’s appeal involving the same rule 3.800(a) motion was pending in this court and the trial court had not sought leave of court to enter an amended order. See Fla. R.App. P. 9.600. As the trial court was without jurisdiction to enter the amended order, it was a nullity. Cf. Tellas v. State, 811 So.2d 756 (Fla. 1st DCA 2002). Importantly, if we were to rule on the merits of the trial court’s amended order, our decision would also be a nullity. See Daniels v. State, 712 So.2d 765 (Fla.1998)(holding that since district court of appeal properly found that the trial court lacked jurisdiction to rule on a 3.850 motion during the pendency of a direct appeal, the district court of appeal should have vacated the order rather than affirming on the merits).

Accordingly, we vacate the amended order entered by the trial court and dismiss this appeal.

DISMISSED.

PETERSON and TORPY, JJ., concur.

      . See Fla. R. Cr. P. 3.800.


text:
    Terry L. STATTON, Petitioner, v. STATE of Florida, The Department of Insurance of the State of Florida, Senior Assisted Living Services of Florida, Inc., A Florida Corporation, d/b/a Senior Assisted Living Services, Respondents.
    No. 1D04-2440.
    District Court of Appeal of Florida, First District.
    July 30, 2004.
    Terry L. Station, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999).

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


author: BROWNING, J.

text:
    MEMORIAL HEALTHCARE GROUP, INC., d/b/a Memorial Hospital Jacksonville, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, and St. Vincent’s Medical Center, Inc., Appellees.
    No. 1D03-1938.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.

      Stephen A. Ecenia and Thomas W. Konrad, of Rutledge, Ecenia, Purnell & Hoffman, P.A., Tallahassee, for Appellant.
    Greg Philo, Tallahassee, Attorney for Agency for Health Care Administration, and Stephen C. Emmanuel and Michael J. Glazer, of Ausley & McMullen, Tallahassee, Attorneys for St. Vincent’s Medical Center, Inc., d/b/a St. Vincent’s Medical Center, for Appellees.
   BROWNING, J.

Appellant seeks review of a final order dismissing for lack of standing Appellant’s petition challenging Appellee Agency for Health Care Administration AHCA’s approval of a certificate of need (CON) application filed by Appellee St. Vincent’s. We reverse.

A brief synopsis of the facts is as follows. St. Luke’s filed CON 9483 seeking to relocate 214 of its acute-care beds to a replacement hospital on the campus of the Mayo Clinic Jacksonville, and to delicense 75 beds, including 10 Neonatal Intensive Care Unit (NICU) beds. This CON was conditioned on the approval of two CONs filed by St. Vincent’s. St. Vincent’s filed CON 9484 seeking to establish a new 170-bed acute-care hospital at the existing site of St. Luke’s (the Belfort Road location), and including CON 9484P for a partial application of 135 acute-care beds. St. Vincent’s also filed CON 9481 seeking to establish Level II NICU services of up to 10 beds at the proposed new site, noting that its licensure was dependent on the delicensure of St. Luke’s NICU beds. This exchange would permit St. Luke’s to relocate all its services except for the NICU unit, which would stay on Belfort Road and be operated by St. Vincent’s. AHCA issued a notice indicating that it intended to approve CONs 9481, 9483, and 9484P, and deny 9484. 27 Fla. Admin. Weekly 52 6192 (Dec. 28, 2001).

Appellant contested AHCA’s intended approval of St. Vincent’s CON 9481, alleging that approval would substantially and adversely, affect Appellant by affecting the efficiency and extent of utilization of Appellant’s own Level II NICU services, Appellant’s financial condition, and Appellant’s ability to maintain and attract qualified staff. Appellant separately contested the approval of CON 9484P, and that challenge was consolidated with other, related CON challenges.

After a hearing on both CON challenges, the ALJ issued a recommended order wherein he found that Appellant lacked standing to challenge CON 9481 because it failed to demonstrate that it would suffer injury in fact by the issuance of the CON. The ALJ specifically found that the only change in the “status quo posed by the issuance of the CON in this proceeding is that St. Vincent’s may become the operator of the existing NICU service” at St. Luke’s (the Belfort Road location). The ALJ noted that the recommended order in the consolidated case was incorporated into the instant order to the extent it was relevant. On April 10, 2003, AHCA rendered a final order adopting the ALJ’s findings that Appellant lacks standing to challenge the application.

Standing in challenges to CON applications is statutorily defined: “[Ejxist-ing health care facilities may initiate or intervene in an administrative hearing upon a showing that an established program will be substantially affected by the issuance of any certificate of need ... to a competing proposed facility or program within the same district.” § 408.039(5)(c), Fla. Stat. (2002). Thus, to demonstrate standing, a party must show that it will be substantially affected by the approval of a CON application.

The ALJ based his determination that Appellant would not be substantially affected on the test set out in Agrico Chem. Co. v. Department of Envtl. Regulation, 406 So.2d 478 (Fla. 2nd DCA 1981). Agrico provides that

before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2). that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.

Id. at 482; see also Ybor III v. Florida Hous. Fin. Corp., 843 So.2d 344, 346 (Fla. 1st DCA 2003). The ALJ found that, because the approval of CON 9481 would not result in any new service, and denial of the CON would not result in the termination of the existing service, Appellant had not demonstrated that CON 9481, whether approved or denied, would substantially affect Appellant. However, Appellant raised three distinct arguments as to injury in fact: “new” NICU services, change in payor mix, and staffing shortages. In fact, Appellant proposed findings as to the need for a new NICU unit, the change in. payor mix, and the possibility of staffing losses. The ALJ addressed only the first of Appellant’s three arguments in either recommended order. AHCA added no new analysis to its adoption of the ALJ’s recommended order.

ALJs are required to make specific factual findings on substantial issues as here. Mayes v. Department of Children and Family Servs., 801 So.2d 980, 982 (Fla. 1st DCA 2001). Here, the ALJ eon-eluded that Appellant was not injured in a certain way, but failed to examine whether Appellant might be injured in other ways. Accordingly, the ALJ did not make findings sufficient to support his and AHCA’s conclusion that Appellant did not have standing to challenge CON 9481.

Accordingly, we REVERSE the order dismissing Appellant’s petition for lack of standing, and REMAND for the ALJ to make additional findings and to hold additional evidentiary hearings, as necessary, relating to Appellant’s standing to challenge St. Vincent’s CON 9481 application.

WOLF, C.J.; and HAWKES, J., concur.

       The party must also show that the facilities are in the same district; the facilities involved here meet that requirement.


text:
    Lorie FOSTER, Appellant, v. EG & G FLORIDA, INC. and Liberty Mutual, etc., Appellees.
    No. 1D03-3740.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    Robert A. Wohn, Jr., Cocoa; Bill McCabe, Longwood, for Appellant.
    Tara L. Sa’id, of the Law Office of Amy L. Warpinski, Jacksonville; Jeffrey R. Hussey, of the Law Office of Christopher Norris, Orlando, for Appellees.
   PER CURIAM.

Claimant, Lorie Foster, appeals the Judge of Compensation Claims’ “Order on Petition for Modification Jurisdiction” and argues that the Judge of Compensation Claims (“JCC”) erred in finding that he lacked jurisdiction to enter an order modifying his previous compensation order, notwithstanding the fact that claimant filed her petition for modification within two years of the date of her last compensation payment. We agree and, therefore, reverse and remand for a determination on the merits.

Section 440.28, Florida Statutes (1997), provides, in pertinent part, as follows:

Upon a judge of compensation claims’ own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the judge of compensation claims may, at any time prior to 2 years after the date of the last payment of compensation pursuant to the compensation order the party seeks to modify, or at any time prior to 2 years after the date copies of an order rejecting a claim are mailed to the parties at the last known address of each, review a compensation case in accordance with the procedures prescribed in respect of claims in s. 440.25 and, in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation.

As the JCC noted, the limitations period for modification of orders as provided for in section 440.28 is jurisdictional and, thus, may not be waived. See Escambia County Transit v. Stallworth, 652 So.2d 905, 907 (Fla. 1st DCA 1995). We review the JCC’s construction of section 440.28 de novo. See Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000).

In dismissing claimant’s petition for modification and amended petition for modification, the JCC set forth, “A strict reading of the statutory language does not allow a Judge of Compensation Claims to enter an Order 2 years or later from the date of last compensation paid pursuant to the order or the date the compensation order was mailed to the parties, whichever is later.” The JCC noted that, although claimant filed her petition for modification within two years of the date of her last compensation payment, claimant made no effort to have an expedited hearing or to have the matter heard prior to the two-year time frame running.

This interpretation of section 440.28 would lead to an arbitrary and absurd result and would place an unnecessary and impracticable burden on a party seeking modification to ensure that a JCC review or enter an order on the petition within the two-year time period. Therefore, we hold that a JCC has jurisdiction to rule on a petition for modification if the petition is filed within two years after the date of the last payment of compensation pursuant to the compensation order the party seeks to modify or at any time prior to two years after the date copies of an order rejecting a claim are mailed to the parties at their last known address. See, e.g., Jones v. Ludman Corp., 190 So.2d 760, 761-62 (Fla.1966) (noting that it could not ignore the explicit provision in section 440.28 by which a determination becomes final unless “modified upon petition filed within the specified time after the last payment of compensation”); Horton v. M & M Luncheonteria, Inc., 123 So.2d 332, 332 (Fla.1960) (“It is true that § 440.28 ... authorizes modification of compensation orders under § 440.28 ... provided application therefore is made within two years of the date of such order and other provisions of the statute are complied with.”); Walter Denson & Son v. Nelson, 88 So.2d 120, 121 (Fla.1956) (holding that, although section 440.28 is not strictly a statute of limitations, the provisions relative to the period within which applications for modification may be made “are certainly in the nature of statutes of limitation and are sufficiently analogous that rules applicable to the latter may appropriately be used”); Griffin v. Orlando Reg’l Med. Ctr., 578 So.2d 448, 449 (Fla. 1st DCA 1991) (holding that section 440.28 did not preclude the claimant from seeking modification because the claimant’s request was clearly made within two years following the receipt of payment of compensation under the original compensation order); Pitts v. Nimnicht Chevrolet, 569 So.2d 921, 925 (Fla. 1st DCA 1990) (reversing the JCC’s order and remanding with directions to treat the claimant’s letter as sufficient to toll section 440.28’s limitations period and to permit the filing of an amended petition for modification); Tarver v. E. Airlines, 502 So.2d 48, 49-50 (Fla. 1st DCA 1987) (holding that the claimant’s petition for modification, which “was filed June 27, 1979, clearly within the two-year limitation period,” tolled the two-year statute of limitations under section 440.28); Univ. of Fla. v. McLarthy, 483 So.2d 723, 726 (Fla. 1st DCA 1985) (“[I]f an order is entered on an initial claim, and another claim or petition to modify the order is not filed within two years ... after the last payment of compensation or furnishing of remedial treatment pursuant to order, the petition or claim will be barred.”); McKenney v. Sch. Bd. of Palm Beach County, 456 So.2d 524, 526 (Fla. 1st DCA 1984) (disagreeing with the deputy’s finding that the claimant failed to timely file a petition for modification and concluding that the claimant requested modification well within the two-year period mandated by section 440.28); Walker v. J.C. Penney Co., 448 So.2d 1028, 1029 (Fla. 1st DCA 1984) (holding that the claimant’s petition was timely because the claimant’s petition for modification was filed within two years of the date copies of the compensation order were mailed to the respective parties); see also Niedbalski v. R.C. Collins & Son, Inc., IRC Order 2-2507 (Mar. 6, 1974) (ruling that it was sufficient under section 440.28 if a petition for modification is filed within two years after the date of the last payment of compensation or at any time prior to two years after the date copies of an order rejecting a claim are mailed to the parties at the last known address of each). Accordingly, because the JCC has jurisdiction to rule on claimant’s petition for modification, we REVERSE the JCC’s order and REMAND for a determination on the merits.

WOLF, C.J., KAHN and LEWIS, JJ., concur.


author: COPE, J.

text:
    Terry WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3251.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.

      Guy Spiegelman, Miami, for appellant.
    John P. Booth, Tallahassee, for appellee.
    Before COPE, GREEN and SHEVIN, JJ.
   COPE, J.

Terry Williams appeals an order denying his petition to expunge criminal history records. We conclude that the trial court correctly interpreted the statute.

I.

Defendant-appellant Williams pled guilty to one count of false imprisonment and one count of battery. The charging document was stamped “Domestic Violence.” Adjudication was withheld and the defendant was placed on probation for one year, which he satisfactorily completed in 2003.

The defendant applied to the Florida Department of Law Enforcement (FDLE) for a certificate of eligibility for expunction. See § 943.0585(2), Fla. Stat. (2003). Obtaining such a certificate is a condition precedent to obtaining expungement of criminal history records. See id.

The FDLE denied the certificate of ex-punction, stating that domestic violence cases are statutorily ineligible for ex-pungement. See id. § 943.0585(2)3.

The defendant then filed a petition in the circuit court to expunge his criminal history records, which the trial court denied. This appeal follows.

II.

We note in passing a procedural issue. Where a certificate of expunction has been denied, the correct procedure to challenge FDLE’s ruling is to file a petition for writ of mandamus in the circuit court, naming FDLE as the respondent. See State v. Harvill, 860 So.2d 999 (Fla. 5th DCA 2003); Rowell v. State, 700 So.2d 1242 (Fla. 2d DCA 1997). The FDLE included this information in its letter of denial and the FDLE has correctly stated the procedure.

Instead of filing a petition for mandamus the defendant filed a petition to expunge records, naming the State as the respondent. See Fla. R.Crim. P. 3.989(d). That was not the correct procedure. In this case, however, when FDLE learned of the defendant’s petition, FDLE made its appearance and waived any procedural objection.

The FDLE proceeded to argue the merits in the trial court and the trial court denied the petition for expungement on the merits.

III.

Subsection 943.0585(2), Florida Statutes, lists the requirements for the FDLE to follow in issuing a certificate of eligibility for expunction. Among other things, the defendant must present a statement from the appropriate prosecutor stating one of the following: (1) that an information or other charging document was never filed in the ease, see id. § 943.0585(2)(a)l., or (2) if filed, the charge was dismissed, see id. § 943.0585(2)(a)2., or (3) if filed and not dismissed, the charge was not on the list of offenses for which expungement is prohibited. See id. § 943.0585(2)(a)3.

The present case involves the third category. The question is whether the defendant’s crime is among those for which expungement is prohibited.

The relevant part of the statute allows expungement if it is determined:

3. That the criminal history record does not relate to ... a violation enumerated in s. 907.041 where the defendant was found guilty of, or pled guilty or nolo contendere to any such offense ... without regard to whether adjudication was withheld.

Id. § 943.0585(2)(a)3. (emphasis added).

Section 907.041, Florida Statutes, is the pretrial detention statute. It contains a listing of “dangerous crimes.” Id. § 907.041(4)(a). Among these is an “[a]ct of domestic violence as defined in s. 741.28 ....”§ 907.041(4)(a)18., Fla. Stat. (2003).

Turning to Section 741.28, Florida Statutes, “Domestic violence means ... battery, ... false imprisonment, ... of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. (2003).

Based on the foregoing statutes, the trial court correctly ruled that the defendant is not eligible for expungement of criminal history records. The terms of the statute preclude expungement, based on the nature of the offenses.

The defendant argues that this ruling was contrary to this court’s opinions in Godoy v. State, 845 So.2d 1016 (Fla. 3d DCA 2003), and Anderson v. State, 692 So.2d 250 (Fla. 3d DCA 1997). The defendant is incorrect. In Godoy and Anderson, the defendants were statutorily eligible for expungement. The question in both cases was whether the trial court could deny expungement solely on the basis of the nature of the offenses the defendants had committed, or whether the trial court had to consider all of the surrounding circumstances in addition to the nature of the offense. In both cases we ruled that all circumstances had to be considered, and remanded for the trial court to do so.

In this case, by contrast, the Legislature has made the dispositive decision. It is the Legislature’s prerogative to prohibit expungement for specific crimes if it wishes to do so. The Legislature has enumerated its list of prohibited crimes in subparagraph 943.0585(2)(a)3., Florida Statutes, and the defendant’s crimes are among those for which expungement is prohibited.

Affirmed.

       Whether it is possible to combine a petition for writ of mandamus against the FDLE and a petition for expungement against the State in a single proceeding is not a point now before us.


text:
    Lino ALONSO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-517.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Lino Alonso, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, WELLS and SHEPHERD, JJ.
   COPE, J.

Lino Alonso appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

Defendant-appellant Alonso requests postconviction relief, arguing that his case proceeded to trial in violation of a stay emanating from this court. The premise of defendant’s argument is incorrect.

While criminal charges were pending against the defendant, see generally Alonso v. State, 834 So.2d 885 (Fla. 3d DCA 2002), the defendant filed a pro se motion in the trial court requesting discharge under the speedy trial rule. After discharge was denied, the defendant filed a pro se petition for writ of prohibition in this court.

This court entered an order stating, “The respondent [the State] is ordered to file a response within thirty (30) days of the date of this order to the petition for writ of prohibition.” Order, Alonso v. State, No. 3D01-828, 814 So.2d 1048 (Fla. 3d DCA April 9, 2001). The State requested extensions of time for the response. While the petition for writ of prohibition remained pending in this court, the defendant’s case proceeded to trial and the defendant was convicted. See Alonso v. State, 834 So.2d at 886. Thereafter this court dismissed the petition for writ of prohibition as moot. Order, Alonso v. State, No. 3D01-828, 814 So.2d 1048 (Fla. 3d DCA March 5, 2002).

In his request for postconvietion relief, the defendant contends that when this court ordered a response to the petition for writ of prohibition, this created a stay of proceedings in the trial court. He argues that his case was impermissibly taken to trial in violation of the stay. The defendant misapprehends the nature of the order entered in his case.

Florida Rule of Appellate Procedure 9.100(h) provides that in response to a petition for an extraordinary writ, including prohibition, this “court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. In prohibition proceedings such orders shall stay further proceedings in the lower tribunal.” Id. (emphasis added).

The defendant reasons that the order issued in his case was a “show cause” order. He argues that the issuance of the order created an automatic stay. The defendant is incorrect.

Under this court’s practice, in response to a petition for prohibition the court may either (a) order a response, or (b) issue a show cause order. See State v. Guzman, 697 So.2d 1263, 1265 n. 1 (Fla. 3d DCA 1997).

In the defendant’s case, the order quoted above simply ordered the State to file a response. This is not treated by this court as a “show cause” order and does not create a stay of proceedings in the trial court.

When the court wishes to invoke the “show cause” part of Rule 9.100(h) and thereby create a stay of proceedings in the trial court, the court issues a different standard form order. Such an order was not entered in the defendant’s case.

Of the two alternatives, simply ordering a response — the alternative used in defendant’s case — is the more frequently invoked alternative. That is so because this court is reluctant to cause a stay of proceedings in the trial court unless absolutely necessary to do so.

For the reasons stated, there was no stay in effect at the time the defendant’s case proceeded to trial. The defendant’s remaining claims are likewise without merit.

Affirmed.

       We have taken judicial notice of this courts file in Alonso v. State, No. 3D04-14, 2004 WL 1737079, 881 So.2d 622.


text:
    Arthur D. ALFRED, Appellant, v. The ESTATE OF Madeleine PORTIER, Appellee.
    No. 3D04-901.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Samuel R. Danziger, Miami, for appellant.
    David Howard Goldberg, Fort Myers, for appellee.

      Before COPE, GREEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See § 733.303(1)(a), Fla. Stat. (2003); Grant v. State, 770 So.2d 655, 660 (Fla.2000)(citing In Re Estate of Greenberg, 390 So.2d 40 (Fla.1980)); Padgett v. Estate of Gilbert, 676 So.2d 440 (Fla. 1st DCA 1996).


author: STONE, J.

text:
    C.B., the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D04-437.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.

      Pamela Wynn, Lake Worth, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   STONE, J.

C.B. (the mother) appeals the termination of her parental rights as to J.M., born six months after her parental rights were terminated as to her three other children. All the children have the same father, whose parental rights have also been terminated. The first three children have been adopted by relatives.

The order terminating parental rights to J.M. is based on a finding that the mother’s behavior is beyond reasonable hope of modification and that termination is in the best interest of J.M. We affirm.

The Department of Children & Families (“Department”) first received reports of child abuse, involving both the mother and the father, in November of 1997 when their (then) two children, S.B. and E.M., were observed having bruises on their faces and backs. Two adult-sized bite marks were also observed on S.B.’s arm and back.

The children were placed with their grandmother, but while in her custody, Department received more reports of abuse inflicted by the father. The father was arrested and charged with child abuse. While the mother was never found to have directly abused the children, Department recommended the children’s dependency based on the mother’s unwillingness to protect the children from the abuse.

As part of her case plan, the mother attended classes, underwent evaluations and therapy, and received various services from Department. The mother then gave birth to a third child, Ed.M. At that time, the court denied Department’s petition to shelter Ed.M., but ordered that there be no contact between the father and either Ed.M. or the mother. Subsequently, the mother was reunited with S.B. and E.M.

In October 2001, Department received more reports of abuse. An examination of one of the children resulted in the discovery of “25 distinct loop, linear and square marks with significant breaks on the skin.” Another child was found to have a dislocated shoulder and rib fractures, and while the mother told the doctors that the child had fallen off of a tricycle, doctors found the injuries inconsistent with the mother’s explanation.

Following his birth, the mother acknowledged that J.M. had the same father as her three prior children. Notwithstanding the court’s order, the mother and the father continued to maintain their relationship; therefore, J.M. was immediately sheltered with a maternal grandmother and the mother was given limited, supervised visitation rights. Department filed a petition to terminate the mother’s parental rights to J.M. on an expedited basis, with no case plan or goal of reunification, based on the family’s history of abuse. In September 2003, Department discovered that the maternal grandmother left J.M., without supervision, in the care of the mother. As a result, J.M. was placed with the aunt and uncle, who had recently adopted the other three children, and had since expressed a willingness to also adopt J.M.

At the hearing on the petition to terminate, a licensed psychologist testified that his psychological evaluation of the mother determined that the mother lacked the adequate psychological resources to cope with day-to-day problems, that she tended to inappropriately express anger, and that she displayed signs of depression. The psychologist further testified that the mother’s enduring personality characteristics placed J.M. at a high risk for abuse. These included symptoms of “narcissistic, paranoid, schizoid, and antisocial” personality disorders which often resulted in a difficulty delaying self-gratification. The symptoms also included an inability to take responsibility for mistakes, unresolved anger and resentment, as well as the mother’s continued engagement in abusive and dependent relationships with men. Although the witness acknowledged that the mother had some reasonable hope of partial recovery with the help of medication therapy, the psychologist provided no indication that J.M. would be protected in the foreseeable future.

A department counselor also testified and recommended termination of parental rights, based upon the family’s long history of abuse. Specifically, as the mother appeared to be again living with the father, and refused to comply with orders not to engage in unsupervised visits with J.M., the counselor testified that the circumstances under which the parental rights to S.R., E.M., and Ed.M. had been terminated, remained unchanged.

We conclude that the trial court acted reasonably in finding, due to the likelihood of prospective abuse under 39.806(l)(f), Florida Statutes, that termination of parental rights was in the best interest of J.M. See §§ 39.810(1)-(11), Fla. Stat. (2003).

A trial court has broad discretion regarding the termination of parental rights and an appellate court may not disturb an order so long as it is based on competent and substantial evidence. N.L. v. Dep’t of Children & Families, 843 So.2d 996, 999 (Fla. 1st DCA 2003).

Section 39.806, Florida Statutes, provides Department with numerous avenues by which to pursue a claim for termination of parental rights.

Pursuant to section 39.806(l)(f), parental rights may be terminated if the parent engaged in “egregious conduct” or “had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental or emotional health of the child’s sibling.” This court has interpreted section 39.806(l)(f) to also require Department to prove that reunification with the parent poses a substantial risk of harm to the child, regardless of past abuse to that child’s siblings. See J.F. v. Dep’t of Children & Families, 866 So.2d 81, 86 (Fla. 4th DCA 2004). See also F.L. v. Dep’t of Children & Families, 849 So.2d 1114, 1122 (Fla. 4th DCA 2003)(hold-ing “[Department] carries the burden not only to establish a ground for termination but the continuing substantial risk of harm to the current child”). The issue in prospective abuse cases is whether future behavior, which will adversely affect the child, can be “clearly and certainly predicted” and whether “the behavior of the parent was beyond the parent’s control, likely to continue, and placed the child at risk. D.H. v. Dep’t of Children & Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000)(quot-ing Gaines v. Dep’t, 711 So.2d 190, 193 (Fla. 5th DCA 1998)). See L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1193-94 (Fla. 1st DCA 2002); In Re J.L., 824 So.2d 1023, 1025 (Fla. 2d DCA 2002).

In T.P. v. Dep’t of Children & Families, 860 So.2d 1084, 1086 (Fla. 5th DCA 2003), the court affirmed an order terminating parental rights to one child after rights had already been terminated to five other children, notwithstanding the mother’s argument that she had produced evidence of substantial change in her life. In that case, five previous children were injured while in the care of the mother and an abusive boyfriend. Id. At the time of the hearing, regarding her sixth child, the mother was living with another man, whom she admitted physically abused her. Id. at 1088. Despite telling the court that counseling had helped her to stay away from men who exhibited violent behaviors, and that she loves all of her children, the appellate court recognized that there was substantial evidence that the mother had not made any significant changes in her life or circumstances. Id. at 1089.

We have considered C.W.W. v. Department of Children and Families, 788 So.2d 1020, 1021 (Fla. 2nd DCA 2001), where the court reversed a termination of parental rights after the child was born addicted to cocaine and the mother admitted to a serious substance abuse problem. There, the Second District concluded that the mother’s conduct did not rise to the level of egregiousness intended in section 39.806(a)(f), Florida Statutes, because there was no evidence that the mother could not resolve the issues or that she had ever attempted any type of drug treatment program. Id. at 1024. Further, while recognizing that Department “is not required to offer every parent a case plan with a goal of reunification,” there was no evidence that the mother in that case had ever been offered a case plan in the past, much less failed to comply with one. Id. at 1024.

Here, the facts are similar to those in T.P., as in both cases, a mother continued to maintain abusive relationships, that resulted in child abuse, and proved incapable or unwilling to protect the safety of her children. Here, as in T.P., the mother continues the relationship with the abusive father, as there is evidence that the two were together just days prior to the hearing and had been living together within the two months before the hearing.

Here, unlike in C.W.W., the mother has been afforded opportunities to prove her ability and willingness to change. Additionally, while the C.W.W. court found the mother had not engaged in egregious conduct, in this case, as stated by the trial court, “[i]t is inconceivable how [the mother], who has been a nursing assistant ... could not see 25 loop marks on [S.B.] or be aware of the pain the child [Ed.M.] must have experienced with his fracture.”

In addition to the grounds for termination, the record reflects that the trial court also took into account the manifest best interests of the child. Séction 39.810, Florida Statutes, provides various factors the trial court must consider when evaluating the manifest best interests of a child, including alternative permanent custody arrangements with relatives, the capacity of the parent to care for the child, the depth of the bond formed with the parent, the likelihood that the child will form a significant bond with another caretaker, and the recommendation of the guardian ad litem. Further, Department must establish that termination is the least restrictive means by which to protect the child. Padgett v. Dep’t of Health & Rehabilitative Services, 577 So.2d 565, 571 (Fla.1991). But see T.P. (where the court suggests that section 39.810, Florida Statutes, “renders the less restrictive means test obsolete, unnecessary, and meaningless”). The supreme court has recognized that, in case of severe or continuing abuse or neglect, the immediate termination of parental rights may be the least restrictive means available. In the Interest of T.M., 641 So.2d 410, 413 (Fla.1994).

The court found Department met its burden to establish, by clear and convincing evidence and considering the applicable provisions of section 39.810, Florida Statutes, that termination of parental rights was in the child’s manifest best interest and the least restrictive means of protecting the child.

The court, among other things, found that the mother did not have the capacity to safely care for or protect J.M., that J.M. had bonded with his current parental substitute and siblings, and that there was little likelihood of J.M. remaining in long-term foster care. The court also took into account the guardian ad Iitem’s recommendation. Further, while there may have been other suitable relatives available to care for J.M., the record indicates that such an arrangement would not be in J.M.’s best interest, as the other relatives, in the past, gave little credence to court orders to allow the mother only supervised visits with J.M. Therefore, the court reasonably concluded that termination was in the manifest best interest of J.M.

MAY, J., concurs.

FARMER, C.J., concurs in result only.


text:
    SOUTHERN WASTE SYSTEMS, LLC, a Florida limited liability company; Southern Waste Systems, Ltd., a Florida limited liability partnership; and Anthony Lomangino, Appellants, v. J & A TRANSFER, INC., a Florida corporation; J & A Recycling, Inc.; a dissolved Florida corporation; Riteway Recycling, Inc., a Florida corporation; NU-Way Recycling Corp., a Florida corporation; Magic Site Services, Inc., a Florida corporation; John Porter; and Anthony Masiello, Appellees.
    No. 4D03-2202.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.
    Lawrence E. Brownstein of Lawrence E. Brownstein, P.A., West Palm Beach, and Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for appellants.
    Richard J. DeSanto, Fort Lauderdale, for Appellees-John Porter & Anthony Ma-siello.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny the motion for rehearing, but withdraw our opinion dated June 2, 2004, and substitute the following opinion in its place.

We affirm a final summary judgment in favor of J & A in this action to foreclose a mortgage. The mortgage arose out of a contract between the parties for Southern Waste’s purchase of assets owned by J & A, including various businesses and real property.

The record reflects that Southern Waste’s fraud claim was dismissed with leave to amend; however, Southern Waste failed to amend the claim. Further, although Southern Waste alleged fraud in the inducement as an affirmative defense, they asserted no facts in support of their general allegation that the contract was induced by false representations with respect to future business. There is also no indication of Southern Waste’s ability to present evidence in support of the defenses.

Therefore, the record supports a conclusion that there are no genuine issues of material fact precluding summary judgment. See Holl v. Talcott, 191 So.2d 40, 45 (Fla.1966); Cufferi v. Royal Palm Dev. Co., Inc., 516 So.2d 983, 984 (Fla. 4th DCA 1987).

As to the other issues raised, we also find no reversible error and affirm.

STONE, STEVENSON and HAZOURI, JJ., concur.


author: GROSS, J. FARMER, C.J.,

text:
    Jane Ann HARRELL, Appellant, v. Raymond Lee HARRELL, Appellee.
    No. 4D04-1898.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.
    Jan Ann Harrell, Huntington, WV, pro se.
    No appearance for appellee.
   GROSS, J.

Appellant appeals an order entered on April 5, 2004. The notice of appeal was filed with the circuit court two days late, on May 7, 2004. In response to this court’s order to show cause, appellant argues that the case should not be dismissed because she turned the notice over to the post office in West Virginia for express mail on May 4, 2004. The post office label indicates a “second” day of delivery.

Timely mailing of a notice of appeal is insufficient to confer jurisdiction on this court. As the first district has observed:

Generally, a paper is deemed to be “filed” when it is delivered to the proper official and received by that official to be kept on file. Blake v. R.M.S. Holding Corp., 341 So.2d 795 (Fla. 3d DCA 1977). In order to be timely, a notice of appeal must be filed with the appropriate court within the required time, and merely mailing the notice or having the notice placed in a post office box within the required time period is not sufficient.

Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998); see also Millinger v. Broward County Mental Health Div. & Risk Mgmt., 672 So.2d 24, 26 (Fla.1996) (noting that “[i]t is a settled rule of law that mailing, as opposed to filing, a notice within the thirty-day filing period is insufficient to preserve appellate rights”); Coca Cola Foods v. Cordero, 589 So.2d 961 (Fla. 1st DCA 1991); Shields v. Colonial Penn Ins. Co., 513 So.2d 1363 (Fla. 5th DCA 1987). The mailbox rule, which applies to prisoners, has no application here. Raysor, 706 So.2d at 401.

Because we have no jurisdiction, we dismiss the appeal. See id.; Cordero, 589 So.2d at 962; Shields, 513 So.2d at 1363.

TAYLOR, J., concurs.

FARMER, C.J., dissents with opinion.

FARMER, C.J.,

dissenting.

The issue is whether a notice of appeal was filed within the time required by rule. See Fla. R.App. P. 9.110(b) (“Jurisdiction of the court under this rule shall be invoked by filing ... a notice ... with the clerk ... within 30 days of rendition of the order to be reviewed.”). If the notice is not deemed timely, we must decide whether the appeal should be dismissed.

Appellant is a parent appealing a final order changing visitation and holding her in contempt for unreasonably denying the fathers summer vacation with their child. This mother now lives in West Virginia. Although the trial on the post judgment modification/contempt proceeding was held in Palm Beach County, she participated only by telephone from West Virginia and without counsel. The final order is deemed rendered on April 5th.

To our order to show cause why we should not dismiss her appeal as untimely, she responded with a personal statement (not under oath), attaching copies of documents relating to the mailing of her notice of appeal to the trial court. Her statement recounts that on May 4th she gave her notice of appeal to the U.S. Postal Service (USPS) in West Virginia, addressed to the Delray Beach satellite courthouse (presumably where the trial judge is situated), prepaying the standard fee of $13.65 for an “Express Mail,” or overnight delivery. She says that the USPS marked the express mail for “second day” delivery instead of overnight. This was done, she says, in a section of the express mail form that is filled out by the USPS clerk, not by the sender. She asserts that the clerk never told her that he was marking the item for a second day delivery instead of an overnight. She presumes this was an honest mistake on his part, but that in any case she was not aware of it.

She admits that she knew the document had to reach the court in Florida by May 5th. She points out that the express mail form shows that she mailed the item at 1:48 p.m. on May 4th. She explains:

“If I had known that my appeal would not be sent as a “Next Day ” [e.s.], as I paid for ... I had plenty of time to take it to Federal Express or any other overnight business to handle it for me.”

She also states that she telephoned the USPS tracking number on the form and learned that the mailing was delivered in Delray Beach on May 5th at 12:47 p.m.

USPS offers an internet “track and confirm” program, so that mailers may ascertain delivery status for their mail. See United States Postal Service, at http:// www.usps.com. A check of the item number shown on the USPS express mail receipt attached to appellants statement yields the following information: “Your item arrived at 12:47 pm on May 05, 2004 in DELRAY BEACH, FL 33444. No further information is available for this item.” This is business record evidence that USPS delivered the document to the courthouse in Delray Beach on May 5th, not long past noon. A delivery before 1:00 pm should make the notice timely filed.

The papers prepared by the trial court Clerks office do not confirm this delivery, but they do not contradict it either. To be sure, the notice was sent to the Circuit Courts satellite courthouse in Delray Beach, rather than its main courthouse in West Palm Beach. I do not know whether appeals are processed in satellite courthouses in the Fifteenth Circuit, but I suspect they are sent to the main facility for such handling. In this instance, the Clerks stamp on the document (also not under oath or seal), shows a date of May 7th, suggesting that the document may not have been stamped in until it reached the appeals clerk at the main courthouse. Otherwise nothing in the few papers we have would explain why a document reaching one of the outlying courthouses on May 5th would bear a date stamp of May 7th.

The majority deems the notice untimely, and I cannot say that their conclusion is irrational, given the filing stamp. Nonetheless, it is a conclusion reached without a formal fact-finding hearing. As an appellate court, we do not hold evidentiary hearings. But the conclusion of the majority does seem contradicted with what we know from the publicly accessible business records of USPS. We could remand the case to the trial court to hold an evidentiary hearing and determine precisely when appellants notice of appeal actually reached the courthouse. That would require the personal presence of appellant before the trial judge, something she was unable to accomplish even at trial on the post judgment modification, contempt proceeding. In the end, even a trial court determination would very likely be made largely on documentary evidence rather than personal credibility.

Therefore if we are going to do the fact finding in this court on the basis of documents only, in my opinion the evidence preponderates in her favor. I would find that this notice of appeal actually reached the Delray Beach courthouse timely on May 5th, that in all probability it was not file-stamped by the Clerk until two days later because of the delay in forwarding it to the main courthouse in West Palm Beach, and that in consequence it may have been mislaid or was buried in the flow of everyday paper work.

If the majority’s factual conclusion stands, however, it suggests a pertinent legal issue not addressed in their opinion. The justification for dismissing her appeal would be that the legal rule on the time for filing is inflexible, unalterably requiring that all notices of appeal be received and stamped by the Clerk within the 30 days. If that were the actual rule, it would be sensibly consistent to hold this notice of appeal untimely. But if the law does not uncompromisingly apply a rigid rule that every mailing of a notice of appeal within 30 days of rendition but not actually reaching the court within the 30-day period is untimely, then a dismissal may not be so clearly mandated.

In spite of the clear text of what appears to be an unbending rule, Judges have carved out a mail box exception to the time requirement. Applying that exception, the courts have relieved some parties from the rigid requirement that all notices actually reach the court before the end of the prescribed deadline. In Haag v. State, 591 So.2d 614 (Fla.1992), the court adopted a mail box exception to the time requirements for filing post conviction relief motions in criminal cases, construing the rule 3.850(b) provision that “[n]o other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case.... ” Fla. R.Crim. P. 3.850(b).

The Haag exception was created by judges in spite of the clarity of the rule’s text because of a specific constitutional compulsion they thought should override its rigidity. Haag reasoned that post conviction relief under rule 8.850 “is a ‘procedural vehicle for the collateral remedy otherwise available by writ of habeas corpus.’ ” 591 So.2d at 616. As regards rule 3.850’s two-year time limit to seek such relief, the court noted:

“[Pjrisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal ... before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped ‘filed’ or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk’s process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation.”

591 So.2d at 616 (quoting Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)). In justifying an exception to the timeliness requirement, the court explained:

“[Njothing in our law suggests that the two-year limitation must be applied harshly or contrary to fundamental principles of fairness.... The fundamental guarantees enumerated in Florida’s Declaration of Rights should be available to all through simple and direct means, without needless complication or impediment, and should be fairly administered in favor of justice and not bound by technicality ... Rule 3.850 says that a person has two years to file the motion, and a full two years it must be. The state cannot subtract from that two-year period through the failure to deliver a pro se inmate’s petition until after the period has expired, even if the delay is through honest oversight. Accordingly, we hold that the mailbox rule exists as a matter of Florida law.”

591 So.2d at 616-17. Later the court added:

“We also note that this mailbox rule will prevent yet another problem implicating constitutional rights. Under the Florida Constitution, all persons have a right to equal protection of the laws, particularly in matters affecting life and liberty. Art. I, 2, Fla. Const. Obviously, this includes a right of equal access to the courts, which serve as the final arbiter of whether life or liberty may be forfeited lawfully. Compare id. with art. I, 21, Fla. Const_ Not even the hoariest precedent is permitted to violate the guarantees of habeas relief, equal protection, and equal access to the courts, or any of the other fundamental rights set forth in the Declaration of Rights. Art. I, Fla. Const.” [e.s.]

591 So.2d at 617, 618. In short, the court thought it constitutionally dubious to deny as untimely a proper claim of illegal confinement that had at least been timely placed for mailing.

The problem is that the Haag mail box exception has not been confined to cases involving only the essential rationale for its adoption — habeas corpus and claims of illegal confinement. In Wimbush v. Pasco County Sheriffs Office, 829 So.2d 296 (Fla. 2d DCA 2002), for example, the court applied the rule in a prisoner’s common law replevin action. Martin v. Dep’t of Revenue ex rel. Martin, 827 So.2d 367 (Fla. 2d DCA 2002), applied the exception in an action having to do with the nonpayment of child support and a report of the incarcerated father’s default to the credit bureau. Even the supreme court itself has applied the mail box exception in a prisoner’s civil rights complaint against prison officials for allegedly filing false disciplinary reports against him. Griffin v. Sistuenck, 816 So.2d 600 (Fla.2002). None of these decisions involve a claim of illegal confinement, and all of them involve ordinary civil claims. These holdings thus suggest that the mail box exception is as strongly based on the constitutional right of access to the courts as it is on the right to habeas corpus.

Martin involves nonpayment of child support, a subject indistinguishable from visitation and custody, the subject of appellant’s case. Once the courts ventured outside of illegal confinement cases to apply the Haag exception in ordinary civil litigation, there is not much reason to refuse to apply it in any civil case where an appellant acting seasonably is forced to entrust delivery and handling to someone else and her attempt is spoiled by circumstances beyond her control. Hence I do not think we should ask whether this particular rigid rule of timely filing can be breached in non-criminal, non-confinement cases by judicial interpretation — clearly that breach has already been made. Instead I think we should consider why the class of litigants involved in today’s case should not be allowed to reap the benefit of the judicial magnanimity created by that breach.

I think the circumstances here counsel against the application of a rigid rule. The importance of the right of access to the courts is just as crucial to parents in broken families as it is to prisoners claiming their conviction is constitutionally invalid. The Haag exception addresses the circumstance where, on account of circumstances over which a litigant may have no control, an appellant “cannot personally travel to the courthouse to see that the notice is stamped ‘filed’ or to establish the date on which the court received the notice” and is therefore compelled to entrust the filing to another.

In at least the only sense that matters, appellant stands functionally in the same predicament as any prisoner involved in ordinary civil litigation. She now lives in West Virginia and quite literally “cannot personally travel to the courthouse to see that the notice is stamped ‘filed’ or to establish the date on which the court received the notice.” 591 So.2d at 616. We know from appellate records repeated over years, that people are often compelled by circumstances after a divorce to relocate, yet they continue to be subject to the jurisdiction of the divorce court in Florida for purposes of post judgment enforcement or modification of the final decree. The difficulties thereby created are just as true for an in-state resident forced to move from southeast Florida to the panhandle, or vice versa.

We do not require an evidentiary hearing to teach us that many former marital partners and parents may be no less imprisoned by economics and issues of child or elder care, or other circumstances in a far-away place, yet may still be bound to the Florida court. Moreover, the issues they may be compelled to litigate in Florida — child custody and support, parental duties — are as important to society and families in their way as questions of illegal confinement are to prisoners. A parent’s right of access to the courts to challenge the loss or change in her custodial rights is no less dear than the prisoner’s claim to release from his prison.

We place a justifiably high regard on parental rights and duties with regard to the custody, support and visitation of children. Cf. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (“[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (recognizing fundamental liberty interest of natural parents in the care, custody, and management of their child); Fla. Dep’t of Children and Families v. F.L., 2004 WL 1516017 *3, 880 So.2d 602 (Fla. July 8, 2004) (“When a statute impinges on a fundamental liberty interest, we analyze the statute’s constitutionality under a strict scrutiny standard. Parents have a fundamental liberty interest, protected by both the Florida and federal constitutions, in determining the care and upbringing of their children.”); J.B. v. Fla. Dep’t of Children and Family Servs., 768 So.2d 1060, 1064 (Fla.2000) (significance of parental rights cannot be overstated; parent’s right to companionship, care, custody, and management of children is interest far more precious than any property right). As our supreme court has only recently emphasized:

‘We also stress the importance of embracing methods of resolving disputes that do not cause additional emotional harm to the children and families who are required to interact with the judicial system.”

In re Report of the Family Court Steering Committee, 794 So.2d 518, 519-20 (Fla.2001).

Thus, like the convicted felon serving time who is forced to entrust the handling of his papers to prison officials, this parent was just as compelled to entrust her appeal to the vagaries of the mail and a distant Clerk’s procedures for handling and time-stamping incoming papers. See Haag, 591 So.2d at 616. We have not yet recognized this mail box exception for unrepresented citizens, who pay taxes and have been convicted of no crime, but who are also physically unable to hand deliver their notices directly to the court, or to supervise their delivery. For me the real question is therefore whether we should grant the same indulgence to ordinary citizens in like circumstances that we have given to prisoners.

With the majority’s factual conclusion that her notice did not reach the courthouse within the 30 days, this seems to me to be the case to consider that issue. I would give her at least the same consideration we give prisoners and deem her notice filed when she delivered it to the USPS before the expiration of her time to appeal. Applying the mail box exception, I would find her notice of appeal timely.

      . I have no idea whether she could not afford an attorney or simply could not find one. It should not matter in these child.custody and visitation cases why a parent has no attorney, because the system of justice should facilitate the consideration of such matters.

      . I recognize that this is usually referred to as the "mail box rule." See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (twice referring to the mail box "rule"); Haag v. State, 591 So.2d 614, 617 (Fla.1992) (holding that mail box "rule” exists as a matter of Florida law). This is an unfortunate usage for Judges. The actual rule involved here is the one setting the time requirement — in this case rule 9.110. The dispensation granted by Judges from that rules requirements is quite obviously an exception or indulgence. Referring to this exception as a rule leads to an uncritical acceptance of it as a rule with all the attributes flowing from that conclusion. Soon the cases begin to treat it so. I refuse to do so.


author: POLEN, J.

text:
    Ryan PFLAUM, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1118.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.

      Helene Hvizd Morris, West Palm Beach, for appellant. ,
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Ryan Pflaum, has appealed a final adjudication of guilt to the charge of perjury in an official proceeding. Pflaum was sentenced to three years incarceration followed by two years probation. We affirm for the reasons that follow.

Pflaum was charged with making false statements in a deposition and at a subsequent trial. The underlying event leading up to the false statements was a neighborhood fight. Leonard Albritton and Conrad Urbanowski were neighbors who had a history of ill-will toward one another. Pflaum, Urbanowski, and three other individuals were involved in a fight with Al-britton. There are two stories of how the fight occurred. Neither one is particularly relevant. What is relevant is that a videotape of the events existed. Albritton was subsequently charged with aggravated battery, and his. defense was based upon presentation of this video at trial. However, the very existence of this video was denied by Pflaum in his deposition and his testimony at Albritton’s trial. Further, Pflaum falsely testified to the effect that Urba-nowski did not have a reputation as a fighter or bully. When the videotape was eventually discovered after Albritton’s trial, Pflaum was charged,with making false statements and proceeded to trial.

At the perjury trial, Pflaum admitted making the false statements, but his defense was duress or necessity. Specifically, Pflaum testified that while watching the videotape after the fight, Urbanowski told him to testify that he never saw a video camera at the fight or any resultant videotape. Pflaum further testified that Urba-nowski threatened him quite a number of times leading up to his deposition if he did not testify as instructed. According to Pflaum, Urbanowski said “you better choose the right side ... don’t make any mistakes, or I’ll kill you.” Additionally, Pflaum’s defense put on ample evidence of Urbanowski’s cruel and violent character and Pflaum’s knowledge of same. Pflaum claims that he lied at his deposition and at Albritton’s trial because he feared what Urbanowski would do to him.

In closing argument, the State focused on the immediacy of the alleged threats, arguing that future harm is not a defense to perjury. The State proceeded to argue that:

A threat of future harm is not sufficient to prove this defense. Why? Because then anybody could say that. Anybody could say, I committed the crime because somebody said if I didn’t do it, he was gonna kill me. He was gonna beat me up next week. He was gonna shoot my mom in six months from now. Anybody could use it as an excuse rather than a lawful defense.

At the conclusion of the trial, the trial court read in relevant part the following instructions to the jury:

In order to find that the defendants committed perjury in an official proceeding out of duress or necessity you must find the following ... the threatened harm must be real, imminent, and impending .... imminent and impending means the danger or emergency is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense.

The jury ultimately found Pflaum guilty as charged.

On appeal, Pflaum challenges the trial court’s jury instruction that the defense of duress cannot be established by threats of future harm, which he claims erroneously negated his sole defense. We first note that this issue was not preserved for appellate review because there was no contemporaneous objection and this argument is not saved by the fundamental error doctrine.

Florida law recognizes the defense of duress to the charge of perjury. See Hall v. State, 136 Fla. 644, 187 So. 392, 409 (1939). The jury instruction read by the trial court was the standard jury instruction on duress and necessity. See Fla. Std. Jury Instr. (Crim.) 3.6(k). Pflaum concedes that such an instruction may be correct in the context of using a weapon in self-defense, but contends that such an instruction is erroneous in the context of perjury. Pflaum’s reasoning is that in such a secure setting as “an official proceeding,” it would be absurd to think that anyone could ever have a gun held to one’s head while they testify thereby rendering such a defense a factual impossibility. We believe otherwise and view the gun to the head as a metaphorical gun. Certainly there is a way to place imminent and impending coercive pressure on a deponent or witness while they are testifying in an official proceeding. Furthermore, though official proceedings are secure, they are not always private. Imminent and impending danger directed to a close family member, by relay, may also be sufficient.

Our position is also in accord with the case law. “The compulsion or coercion which will excuse the commission of a criminal act must be present, imminent, and impending ... there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough.” Koontz v. State, 204 So.2d 224, 226 (Fla. 2d DCA 1967).

In Hall and Koontz, convictions for perjury and attempted robbery were reversed because the trial court failed to give [a duress instruction]. The instruction, of course, is proper unless the evidence is such that the trial court can decide, as a matter of law, that the defendant could not reasonably believe that the danger was real or impending ... Even if [one] had reasonable grounds to believe that the danger was real, but, as a matter of law, could not reasonably believe that the danger was impending, then the instruction is not required. In this context, the meaning of impending is not merely temporal, i.e., about to take place, but includes whether there is, no matter the lapse of time, a reasonable opportunity to escape the compulsion without committing the crime ... An imminent danger is one which cannot be guarded against by calling for the protection of the law.

Wright v. State, 402 So.2d 493, 497 n. 6 (Fla. 3d DCA 1981) (citations omitted). Consequently, we reject any notion that a special jury instruction need be given for the defense of duress or necessity in a perjury case. See Stephens v. State, 787 So.2d 747, 755 (Fla.2001) (“standard jury instructions are presumed correct and are preferred over special instructions”). We decline to address Pflaura’s remaining issue because we find it to be unpreserved.

AFFIRMED.

MAY, J., and BERNSTEIN, SCOTT M., Associate Judge, concur.


text:
    Russell HEISER, Appellant, v. Kathleen HEISER, Appellee.
    No. 4D03-3380.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.
    Russell Heiser, Chattahoochee, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed without prejudice to file writ of replevin. See Fla. R. Civ. P. 1.570(b).

WARNER, SHAHOOD, JJ., and GATES, MICHAEL, Associate Judge, concur.