text:
    Governor John Ellis “Jeb” BUSH; Attorney General Charlie Crist; Chief Financial Officer Tom Gallagher; Commissioner of Agriculture Charles H. Bronson, in their official capacities; The Florida Department of Education; and the State Board of Education, Brenda McShane, Dermita Merkman, Tracy Richardson, Sharon Mallety, Barbara Landrum, on behalf of themselves and minor children; and Urban League of Greater Miami, Inc., Appellants, v. Ruth D. HOLMES, Gregory and Susan Watson, Rebecca Hale, John Rigsby, Queen E. Nelson, Samuel Watts, Linda Lerner, Betsy H. Kaplan, on behalf of themselves and minor children; Florida State Conference of Branches of NAACP; Citizens’ Coalition for Public Schools; The Florida Congress of Parents and Teachers (a/k/a “Florida PTA”); League of Women Voters of Florida, Inc.; Florida Education Association/United, AFT AFL-CIO, a labor organization and Florida taxpayer; Pat Tornillo, Jr., Andy Ford, Rita Moody, Mary Lopez, and Robert F. Lee, as Florida taxpayers, Appellees.
    Nos. 1D02-3160, 1D02-3163, 1D02-3199.
    District Court of Appeal of Florida, First District.
    March 23, 2004.
    Barry Richard, Greenberg Traurig, P.A., Tallahassee; Charlie Crist, Attorney General, Christopher M. Kise, Solicitor General, Office of the Attorney General, Tallahassee; Raquel A. Rodriguez, General Counsel, Office of the Governor, Tallahassee; and Daniel Woodring, General Counsel, Florida Department of Education, Tallahassee, for Appellants Governor Jeb Bush, et al.
    Kenneth W. Sukhia, Fowler, White, Boggs, Banker, PA„ Tallahassee, Clint Bolick, Clark M. Neily, Robert M. Freedman, Institute for Justice, Washington, D.C., for Appellants Brenda McShane, et al.
    -Ronald G. Meyer, Meyers and Brooks, P. A., Tallahassee; Robert H. Chanin, John M. West, and Alice O’Brien, of Bred-hoff & Kaiser, P.L.L.C., Washington, D.C.; Pamela- L. Cooper of Florida Education Association, Tallahassee; Randall Marshall of American Civil Liberties Union Foundation of Florida, Inc., Miami; Joan Peppard of Anti-Defamation League, Miami; Steven Freeman and Steven Sheinberg of Anti-Defamation League, New York, New York; Steven K. Green and Ayesha N. Khan of Americans United for Separation of Church and State, Washington, D.C.; Jeffrey P. Sinensky and Kara H. Stein of American Jewish Committee, New York, New York; Elliot M. Mincberg and Judith E. Schaeffer, of People for the American Way Foundation, Washington, D.C.; Steven R. Shapiro, American Civil Liberties Union Foundation, New York, New York; David Strom of American Federation of Teachers, Washington, D.C.; Michael A. Sussman, National Association for the Advancement of Colored People, Goshen, New York; Marc D. Stern of American Jewish Congress, New York, New York; Julie Underwood of National School Board’s Association, Alexandria, VA, for Appellees.
    Frank A. Shepherd, Independent Voices for Better Education, Teachers for Better Education, Ira J. Paul, Robert N. Wright, and Pacific Legal Foundation, Coral Gables, Amici Curiae.
   ORDER ON MOTION TO REVIEW ORDER CONDITIONING AUTOMATIC STAY ON BOND

POLSTON, J.

Appellants seek the removal of the bond the trial court required as a condition of the automatic stay in effect while their appeal of the trial court’s final judgment is pending. The trial court’s final judgment held that the Opportunity Scholarship Program, section 229.0537, Florida Statutes (1999), is unconstitutional under Article I, section 3, of the Florida Constitution. The trial court required appellants to post a bond or letter of credit to secure reimbursement of funds lost to the school districts while this case is appealed. The trial court required $2,500,000 to be posted for the 2002-03 school year and an additional $2,380,576 for the 2003-04 school year.

Florida Rule of Appellate Procedure 9.310(b)(2) provides “the state, any public officer in an official capacity, board, commission, or other public body” an automatic stay pending review without the necessity of posting a bond. The Florida Supreme Court has interpreted its rule as “allowing trial and appellate courts the discretion to require governmental entities to post supersedeas bonds in suits where the judgment concerns operational-level functions but find[s] that no authority exists to lawfully require such bonds in planning-level governmental functions.” City of Lauderdale Lakes v. Corn, 415 So.2d 1270, 1272 (Fla.1982).

The trial court, in Com, declared a municipal zoning ordinance unconstitutional, and the city appealed the adverse ruling. Id. at 1271. The trial court granted a motion by Corn, a land developer, to require the city to post a $1,140,000 bond for potential damages for delay. Id. The Fourth District Court of Appeal affirmed the trial court’s requirement for a bond. Id. at 1272. Quashing the district court’s decision, the Florida Supreme Court stated: “We can conceive no justification for this Court to require the government to pay for judicial review of legislative actions.” Id. “It is paramount for governmental bodies to have unrestricted appellate court review of their authority to act in a legislative capacity.” Id. As in Corn, the Florida Legislature’s enactment of the Opportunity Scholarship Program, at issue in this case, is clearly a planning-level governmental function that does not require a bond for review of the trial court’s declaration that it is unconstitutional.

Therefore, we grant appellants’ motion to review the trial court’s orders conditioning the automatic stay with the posting of a bond and hold that the automatic stay will remain in effect pending review without appellants posting a bond or letter of credit as required by the trial court. We do not reach the other arguments raised by appellants in support of their motion.

VAN NORTWICK, J. AND SMITH, LARRY G., Senior Judge, concur.

      . "The only exception is when no justiciable issue is present and when the record establishes that the governmental body is seeking review in bad faith solely as a delaying tactic." Id. Appellees, in response, do not argue that an exception applies, but instead assert that laches bars appellants' motion. Because the prejudice argued by appellees is speculative, laches does not bar the motion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Maria GALLO, Appellant, v. FLORIDA COMMISSION ON HUMAN RELATIONS, Appellee.
    No. 1D03-4787.
    District Court of Appeal of Florida, First District.
    March 23, 2004.
    Merette Oweis, Lakeland, for Appellant.
    Cecil Howard, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 9, 2003, the Court has determined that, because the order on appeal has. not been filed with the agency clerk, it has not been rendered. See Hill v. Division of Retirement, 687 So.2d 1376 (Fla. 1st DCA 1997)(describing the essential attributes of reviewable final orders under the Administrative Procedure Act). Accordingly, the appeal is hereby dismissed as premature.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Romeo SIFUENTES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3185.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Carey Haughwout, Public Defender, and Eunice T. Baros, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.140(b)(2)(A)(ii); Robinson v. State, 373 So.2d 898 (Fla.1979).

WARNER, SHAHOOD and GROSS, JJ., concur.


author: FARMER, C.J.

text:
    Willie Clayton MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3280.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

The state concedes that defendant’s dual convictions for grand theft and robbery of the same property constitute double jeopardy. We agree with that concession. See Sirmons v. State, 634 So.2d 153 (Fla.1994) (holding that convictions for strong armed robbery and grand theft for taking of same property constitute double jeopardy); Junior v. State, 763 So.2d 1056 (Fla. 4th DCA 1999) (same).

In addition, grand theft is a lesser included offense of robbery. Fla. Std. Jury Instr. (Crim.) 295; Santos v. State, 644 So.2d 171 (Fla. 4th DCA 1994) (conviction of robbery and grand theft error under Sirmons). Accordingly, we affirm the robbery conviction and vacate the grand theft conviction. Because eliminating the grand theft conviction will not affect appellant’s sentence, however, there may be no need for resentencing. Santos, 644 So.2d at 172. We leave that decision up to the trial judge.

REVERSED.

POLEN, J., and ANDREWS, ROBERT LANCE, Associate Judge, concur.


author: GROSS, J.

text:
    Earnest F. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3397.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

A jury found appellant Earnest Jackson guilty of dealing in stolen property and grand theft. Both charges involved the same property.

The trial court orally indicated that it would adjudicate Jackson only on the dealing in stolen property count and that the grand theft count would be dismissed. However, a written order sentenced Jackson to five years in prison on both counts.

Jackson filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2) to correct the sentencing error, contending that although the trial court only adjudicated him guilty of dealing in stolen property, it sentenced him to prison on both counts. The trial court did not rule within sixty days, so the motion was deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B).

Section 812.025, Florida Statutes (2002), expressly prohibits an individual from being convicted of theft and dealing in stolen property in connection with one scheme or course of conduct. We remand this case to the circuit court to vacate the sentence on the grand theft charge. See Eugene v. State, 828 So.2d 1055 (Fla. 4th DCA 2002).

WARNER and STEVENSON, JJ„ concur.


text:
    David SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4080.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See San Martin v. State, 705 So.2d 1337 (Fla.1997).

GUNTHER, POLEN and MAY, JJ„ concur.


text:
    RICHMOND HEALTH CARE, INC., (as to Sunrise Health and Rehabilitation Center), Appellant, v. The ESTATE OF Geraldine A. COLANDRO, by and through Eileen M. NILES, Personal Representative, Appellee.
    No. 4D02-4520.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Dirán V. Seropian of Peterson, Bernard, Vandenberg, Zei, Geisler & Martin, West Palm Beach, and Jennifer S. Mason of Peterson, Bernard, Vandenberg, Zei, Geis-ler & Martin, Fort Lauderdale, for appellant.
    Susan B. Morrison of Wilkes • & McHugh, P.A., Tampa, for appellee,
   PER CURIAM.

Affirmed. See Romano v. Manor Health Care, Inc., 861 So.2d 59 (Fla. 4th DCA 2004).

FARMER, C.J., GUNTHER and WARNER, JJ., concur.


text:
    Spencer A. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4611.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant moved to correct his sentence pursuant to rule 3.800(b)(1), Florida Rules of Criminal Procedure, but the trial court failed to rule within sixty days as required under the rule. Thus, the motion was deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B). Although the court later granted the motion and reduced his sentence, that order is considered a nullity. See Cliatt v. State, 773 So.2d 610, 611 (Fla. 5th DCA 2000). Nevertheless, in case number 01-14442, the state concedes that appellant’s sentence should have been reduced to nine months, as the trial court did in its untimely order.

Reversed and remanded for resentenc-ing in accordance with this opinion.

WARNER, STEVÉNSON and GROSS, Jj., concur.


text:
    Danny HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-918.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr.,'Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Jacobs, 437 So.2d 166 (Fla. 5th DCA 1983).

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    C.S., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D03-1498, 4D03-2164.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Judith B. Migdal-Mack of Migdal & Midgal, P.A., Boynton Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

Affirmed. See C.T. v. State, 819 So.2d 869 (Fla. 4th DCA 2002).

GUNTHER, POLEN and MAY, JJ., concur.


text:
    Robert SPIEGEL, Appellant, v. H. ALLEN HOLMES, INC., a Florida Corporation, et al., Appellee.
    No. 4D03-1956.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Steven M. Selz of Selz & Muvdi Selz, P.A., Palm Beach, for appellant.
    John L. Avery, Jr., of the Law Offices of John L. Avery, Jr., Jupiter, for appellee.
   FARMER, C.J.

We reverse the final judgment enforcing the parties’ settlement agreement because we find that the trial judge added a provision that was not part of the agreement. The agreement executed by the parties did not provide that payment of costs and attorneys fees for enforcing the agreement would be a condition for the delivery of the satisfaction of lien, the exchange of mutual general releases, and the dismissal of the claims of the respective parties.

On remand the trial court shall enter the following amended final judgment as to the enforcement of the settlement agreement:

“In accord with the Settlement Agreement of September 20, 2001, defendants H. Allen Holmes, Inc., and H. Allen Holmes, individually, shall have and recover from plaintiff Robert Spiegel the sum of $13,250, together with pre-judgment interest at the lawful rate from September 20, 2001, to the date of this judgment to be paid as follows.
“Upon a tender of the sum provided in the foregoing paragraph by plaintiff to counsel for defendants, such sum shall be held by counsel in escrow until:
(i) the parties have exchanged mutual general releases of all matters by and between plaintiff and defendants;
(ii) each party has filed a dismissal of their respective claims pursuant to Florida Rule of Civil Procedure 1.420, and
(iii) defendants have delivered a Satisfaction of Lien in recordable form as to any outstanding lien existent on the real property that is the subject of defendants’ lien foreclosure action in this matter.
“Upon the complete performance of the conditions in paragraphs (i)-(iii) ■above, counsel may then release the sum to his clients.”

The trial court may add to the amended final judgment on the enforcement of the settlement agreement customary formalities and anything required by statute.

We affirm the cost judgment in all respects, specifically including the addition of post agreement interest to the settlement amount, as indicated by the foregoing paragraphs, and the award and amount of attorneys fees incurred by defendants in the enforcement of the agreement.

SHAHOOD and TAYLOR, JJ., concur.

      . See § 687.01, Fla. Stat. (2003) (“In all cases where interest shall accrue without a special contract for the rate thereof, the rate is the rate provided for in s. 55.03.”); and § 55.03, Fla. Stat. (2003) (setting interest rate for judgments).


text:
    FAMILY DOLLAR STORES OF FLORIDA, INC., Appellant, v. Vensy JONES, Appellee.
    No. 4D03-2465.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Naomi R. Boyle and Edward Levine of Wagenfeld Levine, Miami, for appellant.
    Richard B. Doyle, Jr. of Loughren & Doyle, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant, Family Dollar Stores of Florida, Inc., (“Family Dollar”) appeals the trial court’s final judgment which awarded the Appellee costs. We reverse as to the taxation of costs of a $400 expert witness fee when the witness did not testify at trial and his deposition was not used at trial. See Thellman v. Tropical Acres Steakhouse, Inc., 557 So.2d 683, 684 (Fla. 4th DCA 1900) (stating that “[i]t is not appropriate to tax as costs the fees of witnesses who are neither qualified as experts by the court nor testify at trial”); Otis Elevator Co. v. Bryan, 489 So.2d 1189,1190-91 (Fla. 1st DCA 1986) (stating that “the taxation of expert witness fees for discovery depositions taken in preparation for trial simply because the attorney says that he used the discovery deposition to prepare for cross examination of the witness at trial” was improper). Furthermore, the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions specifically states that expert witness fees “for the giving of a deposition when the deposition is not used in whole or in part at the trial ... should not be taxed as a cost item.” Reeser v. Boats Unlimited, Inc., 432 So.2d 1346, 1349 n. 2 (Fla. 4th DCA 1983) (containing the administrative order reciting section 2G of the guidelines).

Accordingly, we reverse and remand for proceedings consistent with this opinion. We affirm as to all other issues on appeal.

AFFIRMED in part, REVERSED AND REMANDED in part.

POLEN, MAY, JJ., and DAMOORGIAN, DORIAN K„ Associate Judge, concur.


text:
    CATALFUMO CONSTRUCTION LTD., a Florida limited partnership, Petitioner, v. ELIZABETH JASON CORPORATION, a Florida corporation; P. Daniel Orlich and Diana S. Orlich, Respondents.
    No. 4D03-4821.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Ronald E. Crescenzo of Boose Casey Ciklin Lubitz Martens McBane & O’Con-nell, West Palm Beach, for petitioner.
    Steven M. Katzman and Charles J. Ben-nardini of Katzman, Wasserman & Ben-nardini, P.A., Boca Raton, for respondents.
   FARMER, C.J.

GRANTED. We hold that the 20-day provision in section 713.21(4), Florida Statutes (2003), does not begin to run until the Clerk has issued a show cause summons, which was not done in this case. We quash the order canceling petitioner’s lien and return this cause to the trial court for further proceedings consistent with this holding.

WARNER and STEVENSON, JJ., concur.


author: THOMPSON, J.

text:
    Fernando HINESTROZA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3582.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.

      James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Fernando Hinestroza appeals several convictions after pleas of guilty followed by a violation of probation/community control. On appeal, he contends that the convictions on several of the counts were fundamental error.

We agree with Hinestroza that he was improperly convicted of theft and dealing in stolen property in case number GO-32195. A person may not be convicted of both theft and dealing in stolen property where the charges arose out of the same course of conduct. Hall v. State, 826 So.2d 268 (Fla.2002). The failure to preserve this issue is not a bar to relief on appeal. See id. at n. 3 (noting that there was no objection below on this basis when the defendant pleaded nolo contendere to grand theft and dealing in stolen property). Therefore, the conviction and sentence for theft in case number 00-32195 are vacated. All other convictions and sentences are affirmed as no reversible error has been shown.

AFFIRMED in part; REVERSED in part.

GRIFFIN and MONACO, JJ., concur.


text:
    Norman J. BOTARF, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1072.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Based on the State’s concession of error, for which we commend it, the order finding Botarf in violation of his probation and the sentence imposed thereafter is reversed. On remand, the State may proceed on the original affidavit alleging that Botarf violated his probation, or may amend it. See Ray v. State, 855 So.2d 1260 (Fla. 4th DCA 2003).

REVERSED AND REMANDED.

PLEUS, PALMER and ORFINGER, JJ., concur.


text:
    Michael SHINGEL and Tracey Shingel, Appellants, v. Gerald PETERS, Joann Peters and Karen Martin, Appellees.
    No. 5D03-1865.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Brian J. Welke, Eustis, for Appellants.
    Victoria C. Spetter, of Law Firm of Victoria C. Spetter, P.L., Winter Park, for Appellees.
   PER CURIAM.

Appellants challenge the lower court’s order that enforced an Illinois court’s judgment under which Appellees, the maternal grandmother and maternal great-grandmother of two children, were given rights of visitation with the children, who now reside in this state with their mother and father. Appellants acknowledge that our decision today is controlled by our prior decision in Bellow v. Bellow, 736 So.2d 759 (Fla. 5th DCA 1999), but urge that we recede from Bellow in light of the Fourth District’s decision in M.S. v. D.C., 763 So.2d 1051 (Fla. 4th DCA 1999). We decline Appellant’s request that we recede from Bellow but certify conflict with M.S. v. D.C.

AFFIRMED; CONFLICT CERTIFIED.

SAWAYA, C.J., SHARP, W., and TORPY, JJ., concur.


author: ORFINGER, J.

text:
    FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION, Appellant, v. MELBOURNE CENTRAL CATHOLIC HIGH SCHOOL, et al., Appellee.
    No. 5D03-3437.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.

      Leonard E. Ireland, Jr. and Jennifer R. Williams of Clayton-Johnston, P. ‘ A., Gainesville, for Appellant.
    Douglas D. Marks of Boyd & Marks, L.L.C., Melbourne, for Appellee.
   ORFINGER, J.

The Florida High School Athletic Association (FHSAA) appeals the entry of a temporary injunction prohibiting it from enforcing its decision that Robert Morris, a student at Melbourne Central Catholic High School (MCC), was ineligible to represent MCC in interscholastic sports during the 2003-2004 school year. We have jurisdiction. See Fla. R.App. P. 9.130(a). For the reasons that follow, we reverse.

BACKGROUND

The FHSAA, a non-profit corporation, is designated by statute to regulate high school athletic programs in member schools. See § 1006.20, Fla. Stat. (2003). Organized under the laws of Florida, FHSAA is a voluntary, not-for-profit corporation comprised of members, including public, private, parochial and institutional schools in Florida. As required by law, FHSAA, acting through its member schools, adopts rules regarding eligibility and similar matters related to interscholastic athletic competition.

Robert Morris attended MCC during his sophomore year of high school and for the first semester of his junior year. Morris performed well academically, played football, and was considered a ■ player with talents sufficient to be considered for a college football scholarship. Following the conclusion of the first semester of his junior year, Morris transferred to Palm Bay High School. Upon transferring, Morris was told by MGC officials that he was free to return to MCC if things did not work out for him at Palm Bay.

During the summer of 2003, Morris attended a'football camp at the University of Florida. Tim Lester, a coach at the camp, had recently agreed to coach- football at MCC for the upcoming season. Lester testified that he had never been to MCC and did not know who Morris was. Nevertheless, Lester and Morris had contact with each other during the camp, confined solely, according to Lester, to a discussion regarding Lester’s NFL career. However, when school began again in the Fall of 2003, Morris withdrew from Palm Bay and returned to MCC.

FHSAA has promulgated rules which prohibit the recruiting of students for athletic purposes. Based on a belief that a rule violation may have occurred, FHSAA began an investigation of MCC regarding alleged recruiting violations. On August 6, 2003, FHSAA notified MCC of alleged recruiting violations and requested a response. On August 12, 2003, MCC responded to FHSAA’s request, and on August 20, 2003, after considering MCC’s response, FHSAA ruled that Morris was ineligible to represent MCC in interscholastic sports for a period of one year.

FHSAA relied primarily on FHSAA bylaw 11.4.12 in establishing that Morris had been recruited by Lester. FHSAA bylaw 11.4.12 raises a presumption of recruiting, and provides, in pertinent part:

Participation by a student in non-school athletics (i.e. AAU, American Legion, club settings, etc.) on a team that is affiliated with any school other than the school which the student attends, or attended the prior year, followed by enrollment by that student in the affiliated school shall be considered prima facie evidence of recruiting by the school to which that student enrolled, or that the student enrolled in that school in whole or in part for athletic reasons.... A team affiliated with the school is one that is organized by and/or coached by any member of the coaching staff at, or any other person affiliated with, -that school; and/or on which the majority of the members of the team (participants in practice and/or competition) are students who attend that school.

Pursuant to the appeals process set out in section 1006.20(7)(a) and FHSAA bylaws, MCC and Morris appealed the ineligibility ruling to FHSAA’s sectional appeals committee. On September 11, 2003, the sectional appeals committee denied the appeal. MCC and Morris were advised that they had a right to appeal the sectional appeals committee’s denial to the FHSAA Board of Directors at its next scheduled meeting on September 28, 2003. MCC and Morris elected not to follow the appeals process required by section 1006.20(7)(e) and FHSAA bylaws, and, instead, filed the instant action in the circuit court, seeking a temporary injunction restoring Morris’s eligibility.

FHSAA moved to dismiss the circuit court action, contending that MCC and Morris had failed to exhaust the available administrative remedies. On October 13, 2003, a hearing was held on Morris’s motion for temporary injunction and on FHSAA’s motion to dismiss. Several days later, the circuit court entered a temporary injunction, restoring Morris’s eligibility and enjoining FHSAA from enforcing its decision that Morris was ineligible to represent MCC in interscholastic athletic competition for the 2003-2004 school year. This appeal followed.

ANALYSIS

“A temporary injunction is an extraordinary and drastic remedy which should be sparingly granted.” Cordis Corp. v. Prooslin, 482 So.2d 486, 489 (Fla. 3d DCA 1986). Generally, a party seeking a temporary injunction must establish: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the petitioner outweighs any possible harm to the respondent; and (4) that the granting of a temporary injunction will not harm the public, interest. Id. at 489-90.

As a general rule, one seeking judicial review of administrative action must first exhaust such administrative remedies as are available and adequate to afford the relief sought. A reviewing court may not entertain a suit when the complaining party has not exhausted available administrative remedies. Orange County, Fla. v. Game & Fresh Water Fish Comm’n, 397 So.2d 411 (Fla. 5th DCA 1981). The doctrine of exhaustion of administrative remedies is based on the need to avoid prematurely interrupting the administrative process, and to enable the agency or association to apply its discretion and expertise in the first instance to technical subject matter. Baillie v. Dep’t of Nat. Res., Div. of Beaches & Shores, 632 So.2d 1114 (Fla. 1st DCA 1994). The exhaustion doctrine promotes judicial efficiency by giving the agency or association an opportunity to correct its own mistakes, thereby mooting controversies and eliminating the need for court intervention. DeCarlo v. Town of West Miami, 49 So.2d 596 (Fla.1950).

In its order, the circuit court made the following findings:

1. The Defendant’s Motion to Dismiss Plaintiffs Complaint is premised upon the doctrine of exhaustion of administrative remedies. The general rule is that a plaintiff must exhaust administrative remedies. An issue exists in this case as to whether the Plaintiff is subject to this rule in connection with the Defendant Florida High School Athletic Association. There are no cases directly on point on this issue. However, the court need not address this issue as the Supreme Court of Florida has stated in Flo-Sun, Inc. v. Kirk, 783 So.2d 1029 (Fla.2001), in discussing the doctrines of exhaustion of administrative remedies and primary jurisdiction, that some agency errors are so egregious and devastating as to render administrative remedies too little, too late. In Lewis Oil Company, Inc. v. Alachua County, 496 So.2d 184 (Fla. 1st DCA 1986) the court stated that administrative remedies must be both available and adequate.
2. The court finds that even if the doctrine of administrative remedies were applicable to the Plaintiff the administrative remedies afforded to him were futile based upon the following findings:
a) The only thing that matters to Plaintiff Morris is his ability to play in ten football games.
b) By the time the first hearing was afforded him on September 11, 2003 three football games had been played.
c) The September 11, 2003[sie] was not focused on Morris and this procedure was inappropriate denying him an adequate remedy. This is especially true since the other recruiting violations focused on at the September 11, 2003 hearing were determined by the Defendant to be unfounded.
d) The appeal of the September 11, 2003 hearing to the Board of Directors of the FHSAA was not until September 28, 2003. By this time five football games had been played. Plaintiffs did not pursue this appeal.
e) While Defendant contends that this appeal is still available to the Plaintiffs, this appeal would not be heard until; two weeks after the football season had ended.
f) At the time of the hearing on this matter there were four football games remaining to be played.
g) The court will take judicial notice that it took the Plaintiffs thirty (30) days to get a hearing on their motion for temporary injunction.
3. The Defendants next argue that for the court to grant the relief sought by the Plaintiffs the court would be im-permissibly interfering in the affairs of a private organization. The cases of Florida Youth Soccer Association v. Sumner, 528 So.2d 4 (Fla. 5th DCA 1988); Florida High School Activities Association v. Bradshaw, 369 So.2d 398 (Fla. 2d DCA 1979) and Suit v. Gilbert, 148 Fla. 31, 3 So.2d 729 (1941) involved no constitutional issues. In Lee v. Florida High School Activities Assoc., 291 So.2d 636 (Fla. 3d DCA 1974) the court found that the Association’s conduct is state action subject to the requirements of due process. The court finds that this constitutional standard has been violated for the same reasons articulated in paragraph 2 of this order.
4. On the basis of the foregoing, the Defendant’s Motion to Dismiss Plaintiffs Complaint be and the same is hereby denied.

Both section 1006.20 and FHSAA bylaws provide a two-tier appeals process on rulings regarding a student athlete’s eligibility to participate in interseholastic activities. Section 1006.20(7) provides:

(a)'The' organization shall establish a procedure of dué process which ensures each student the opportunity to appeal an unfavorable ruling with regard to his or her eligibility to compete. The initial appeal shall be made to a committee on appeals within the administrative region in which the student lives. The organization’s bylaws shall establish the number, size, and composition of the committee on appeals.
(b) No member of the board of directors is eligible to serve on the committee on appeals.
* * *
(e) A student athlete or member school that receives an unfavorable ruling from a committee on appeals shall be entitled to appeal that decision to the board of directors at its next regularly scheduled meeting or called meeting. The board of directors shall have the authority to uphold, reverse, or amend the decision of the committee on appeals. In all such cases, the decision of the board of directors shall be final.

MCC and Morris contend that the doctrine of exhaustion of administrative remedies is inapplicable because FHSAA is not a state agency, as defined in section 120.52, Florida Statutes. While we agree that FHSAA is not a Chapter 120 agency, we disagree with the contention that the exhaustion doctrine is inapplicable.

Generally, the exhaustion doctrine applies not only to state agencies, but also to voluntary associations. Westlake Cmty. Hosp. v. Superior Court, 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410 (1976); Trustees of Cal. State Univ. & Colleges v. Nat’l Collegiate Athletic Ass’n, 82 Cal. App.3d 461, 147 Cal.Rptr. 187 (Cal.Ct.App.1978). Under the common law, associations may require their members to exhaust all internal remedies within the association before resorting to any court or tribunal outside of the association. As a general rule, when a private organization has procedures for internal review of its decisions, those procedures must be exhausted before seeking redress from a court. 6 Am.Jur.2d Associations and Clubs § 30 (1999). Only under exceptional circumstances will a court intervene without the aggrieved party having exhausted the organization’s remedies. Such circumstances may be found to exist where the proceedings are not conducted in accordance with the rules, but contrary to law, or where a resort to the internal remedies would be a useless undertaking, would be meaningless or would subject the complainant to unreasonable delay or hardship. Id. When a method of appeal from an administrative ruling has been provided, such method must generally be followed to the exclusion of any other system of review. When an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act. Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961); City of Coral Gables v. Sakolsky, 215 So.2d 329 (Fla. 3d DCA 1968).

In an alternative argument, MCC and Morris contended in their complaint that FHSAA’s actions violated both then-state and federal due process rights. In its order, the trial court found no constitutional violations; rather, it reweighed the evidence considered by the FHSAA appeals committee and reached an opposite conclusion. That was improper. Inferentially, the trial court identified a possible protectable interest in Morris’s potential for an athletic scholarship. However the possibility of a scholarship is not a protect-able property interest. See Indiana High Sch. Athletic Ass’n v. Carlberg, 694 N.E.2d 222, 241 (1998). See also Schaill v. Tippecanoe County Sch. Corp., 679 F.Supp. 833, 855 (N.D.Ind.1988) (“[S]tudent’s aspirations for a college scholarship from high school sports ... do not establish any legally protected interests.”), aff'd, 864 F.2d 1309 (7th Cir.1988). Assuming that MCC and Morris were entitled to due process, there is no evidence that they were denied the procedure that was due.

At first blush, the contentions by Morris and MCC that they were denied federal and state due process argue in favor of allowing court intervention without first exhausting available administrative remedies. Caso v. N.Y. State Public High Sch. Athletic Ass’n, Inc., 78 A.D.2d 41, 434 N.Y.S.2d 60 (1980). However, there has been no constitutional violation demonstrated in this case. The harshness resulting from the application of a high school athletic association’s eligibility rules is not grounds for judicial interference. Id. More importantly, the complaint fails to allege, and the evidence fails to demonstrate, the deprivation by FHSAA of a constitutionally protected right. While FHSAA action is state action for constitutional purposes, Florida High School Activities Association, Inc. v. Bradshaw, 369 So.2d 398, 401 (Fla. 2d DCA 1979), we find no constitutional violation here. The federal due process clause does not protect against every alleged injury at the hands of the state. See Mitchell v. La. High Sch. Athletic Ass’n, 430 F.2d 1155, 1157-58 (5th Cir.1970). The opportunity to participate in interscholastic athletic activities, standing alone, is hot a constitutionally protected right. “If an individual student [Morris] has no constitutionally protected right or privilege to participate in interscholastic sports activities, then it follows that, without more, a school’s football team- [MCC] as a group has no such constitutionally protected right or privilege.” Bradshaw, 369 So.2d at 403.

Unless athletic association regulations deny an athlete a protected fundamental right or classify him or her on a suspect basis, e.g., religion or race, athletic programs are not subject to federal scrutiny. Albach v. Odle, 531 F.2d 983 (10th Cir.1976). We agree with the federal courts that a student’s interest in participating in interscholastic sports is a mere expectation, and not a constitutionally protected property right. Walsh v. La. High Sch. Athletic Ass’n, 616 F.2d 152 (5th Cir.1980); Mitchell.

Neither does Morris’s claim merit state constitutional due process protection. Participation in interscholastic high school competitions is not a substantial right unless' denial is based on an abuse of a student’s fundamental rights or predicated on a suspect basis. Caso, 78 A.D.2d at 46-47, 434 N.Y.S.2d 60. Assuming arguendo, that the right was one meriting state constitutional protection, Morris’s claim would still fail. Morris’s claimed due process violation was that he was declared ineligible without an opportunity for a hearing. However, section 1006.20, Florida Statutes (2003), and the FHSAA bylaws provide a two-tier appeals process on rulings regarding a student athlete’s eligibility to participate in interscholastic activities. FHSAA provides athletes and schools with, notice of the allegations against them, an opportunity to respond before an eligibility determination is made, and an appeals process to review all questions of eligibility. Morris chose not to avail himself of this procedure, and, accordingly, he was not denied a forum to have the question of his eligibility reviewed.

Although there are recognized exceptions to the exhaustion doctrine, those narrow exceptions do not appear to be applicable here. The law recognizes that exhaustion of remedies within an association is not required where the proceedings were so irregular that the tribunal acted without jurisdiction, or in excess thereof, or the member has been denied due process or a fair .procedure. See 7 C.J.S. Associations § 25a. (1980). Internal remedies need not be exhausted where they are inadequate or nonexistent, or where resort to them would be futile. Id. In addition, parties need not resort to administrative remedies where agency errors are so “egregious or devastating that the promised administrative remedies are too little or too late.” Communities Fin. Corp. v. Fla. Dep’t of Envtl. Regulation, 416 So.2d 813, 816 (Fla. 1st DCA 1982); see also State ex rel. Dep’t of Gen. Servs. v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977).

The trial court determined that “even if the doctrine .of administrative remedies were applicable to the Plaintiff[,] .the administrative remedies afforded to him were futile.” The trial court based its determination that ah appeal to the Board of Directors would be futile on the following factual findings:

a) The only thing that matters to Plaintiff Morris is his ability to play in ten football games.
b) By the time the first hearing was afforded him on September 11, 2003 three football games had been played.
c) The September 11, 2003[sic] was not focused on Morris and this procedure was inappropriate denying him an adequate remedy. This is especially true since the other recruiting violations focused on at the September 11, 2003 hearing were determined by the Defendant to be unfounded.
d) The appeal of the September 11, 2003 hearing to the Board of Directors of the FHSAA was not until September 28, 2003. By this time five football games had been played. Plaintiffs did not pursue this appeal.
e) While Defendant contends that this appeal is still available to the Plaintiffs, this appeal would not be heard until; two weeks after the football season had ended.
f) At the time of the hearing on this matter there were four football games remaining to be played.
g) The court will, take judicial notice that it took the Plaintiffs thirty (30) days to get a hearing on their motion for temporary injunction.

The trial court’s finding that the administrative remedies afforded to Morris were futile is not supported by competent substantial evidence. Apparently, the trial court based its ruling on time factors, and emphasized that as time progressed, Morris was losing opportunities to play in football games. However, this reasoning fails in light of a review of the actual sequence of events in this case. Morris filed his complaint for injunctive relief in the circuit court on September 16, 2003. The next meeting of the FHSAA Board of Directors, at which Morris was entitled to appeal the decision of the sectional appeals committee, was scheduled on September 28, 2003. The temporary injunction hearing was not held until October 13, 2003, and a final order granting the injunction was issued on October 16, 2003. The injunction hearing, occurring over two weeks after the final appeal would have been heard, actually delayed the process.

Adequate remedies were available to Morris which he simply chose not to pursue. Rather than appealing through the proper channels to the FHSAA Board of Directors, Morris sought injunctive relief in the trial court. Had Morris pursued the administrative remedy made available to him through the Florida Statutes and FHSAA bylaws, the issue may have been resolved as early as September 28, 2003, making the proceeding below, as well as this appeal, unnecessary.

We continue to adhere to the rule that courts should exercise limited interference with the internal affairs and rules of a voluntary membership association:

Under Florida law a court may intervene in the internal affairs of a private association only in exceptional circumstances. “It is a well established proposition in Florida law that ordinarily courts will not intervene in the internal affairs of labor unions or other voluntary associations!]” Rewolinski v. Fisher, 444 So.2d 54, 58 (Fla. 3d DCA), review denied, 453 So.2d 43 (Fla.1984) (citations omitted). Thus, “the results of internal association processes are subject to judicial reversal only if (1) the association’s action adversely affects ‘substantial property, contract or other economic rights’ and the association’s own internal procedures were inadequate or unfair, or if (2) the association acted maliciously or in bad faith.” Id. (summarizing McCune v. Wilson, 237 So.2d 169 (Fla.1970)); see also Suit v. Gilbert, 148 Fla. 31, 3 So.2d 729 (1941).

Nat’l Collegiate Athletic Assoc, v. Brinkworth, 680 So.2d 1081, 1084 (Fla. 3d DCA 1996) (footnote omitted). Here, the trial court was clearly sympathetic to the plight of this young athlete and attempted to exercise “equitable” power for Morris’s benefit. However, the first principle of equity jurisdiction is that equity follows the law. “ ‘Courts of equity simply have no power to issue rulings which they consider to be in the best interest of justice without regard to established law.’ ” Fla. High Sch. Activities Ass’n, Inc. v. Adderly, 574 So.2d 158, 159 (Fla. 4th DCA 1990) (quoting Bank of S. Palm Beaches v. Stockton, 473 So.2d 1358, 1361 (Fla. 4th DCA 1985)).

We conclude that the entry of the temporary injunction was error. Accordingly, the trial court’s order is reversed and this matter is remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

PETERSON and PALMER, JJ., concur.

      . 1006.20. Athletics in public K-12 schools
      (1) Governing nonprofit organization.— The Florida High School Athletic Association is designated as the , governing nonprofit organization of athletics in Florida public schools. If the Florida High School Athletic Association fails to meet the provisions of this section, the commissioner shall designate a nonprofit organization to govern athletics with the approval of the State Board of Education. The organization is not to be a state agency as defined in s. 120.52. The organization shall be subject to the provisions of s. 1006.19. A private school that wishes to engage in high school athletic competition with a public high school may become a member of the organization. The bylaws of the organization are to be the rules by which high school athletic programs in its member schools, and the students who participate in them, are governed, unless otherwise specifically provided by statute. For the purposes of this section, "high school” includes grades 6 through 12.

      . In addition to allegations involving Morris, there were allegations as to ten other students and two coaches.

      . Section 1006.20(7)(a) provides:
      (a) The organization shall establish a procedure of due process which ensures each student the opportunity to appeal an unfavorable ruling with regard to his or her eligibility to compete. The initial appeal shall be made to a committee on appeals within the administrative region in which the student lives. The organization's bylaws shall establish the number, size, and composition of the committee on appeals.

        : We note that the hearing on MCC and Morris's injunction request occurred October 13, 2003. Their second tier appeal, had they pursued it, would have taken place September 28, 2003, some two weeks earlier.

      . Section 1006.20(1) states, “The organization [FHSAA] is not to be a state agency as defined in s. 120.52.”

      . Whether such alleged due process violations were substantive or procedural was not specified in the complaint.

      . The due process clause of the Fourteenth Amendment to the United States Constitution provides in pertinent part: No state shall ... deprive any person of life, liberty, or property, without due process of law.... U.S. Constitution Amendment 14, section 1. The due process provision of the Florida Constitution in relevant part provides: No person shall be deprived of life, liberty or property without due process of law ... Florida Constitution, Article I, section 9.

      . FHSAA’s rules, and its enforcement thereof, and those of similar associations are the source of much litigation. The number of cases illustrate that a substantial number of these cases result in published opinions in the federal and state reporters. The courts of Florida have been reviewing FHSAA rules and decisions for many years, and continue to do so to this day. See, e.g., High Sch. Activities Ass’n, Inc. v. Marsonek, 805 So.2d 868 (Fla. 2d DCA 2001); Fla. High Sch., Activities, Inc. v. Latimer, 750 So.2d 762 (Fla. 3d DCA 2000); Fla. High Sch. Activities Ass’n v. Kartenovich, 749 So.2d 1290 (Fla. 3d DCA 2000); Fla. High Sch. Activities Ass’n, Inc. v. Benitez, 748 So.2d 358 (Fla. 5th DCA 1999).


text:
    Y.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-1020.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.

      Kevin Coyle Colbert, for appellant.
    Calianne P. Lantz, for appellee.
    Hillary S. Kambour, Guardian Ad Li-tem.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Although we agree that the trial court erred in accepting hearsay testimony, the record otherwise contains sufficient evidence to support the adjudication of dependency.

Affirmed.


text:
    Steven C. FLEISCHMANN, Appellant, v. Betty Macway FLEISCHMANN, Appellee.
    No. 4D02-4230.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Helene Hvizd Morris, West Palm Beach, and Andrew E. Pastor, Palm Beach Gardens, for appellant.
    George P. Ord of Murphy, Reid, Pilotte, Ord & Austin, Palm Beach, for appellee.
   PER CURIAM.

Appellant, the former husband, who is paying child support pursuant to the 1999 version of section 61.30, Florida Statutes, seeks a downward departure based solely on the 2001 amendments to the statute, although the final judgment of dissolution became final prior to the effective date of the amendment. We affirm the trial court’s determination that the 2001 amendments cannot serve as the sole basis for modification where the former husband has failed to demonstrate some independent substantial change in circumstance to justify modification. Nevertheless, we remand for the trial court to reconsider the petition due to a misapprehension of certain financial matters in the record.

The parties’ eight-year marriage was dissolved by final judgment of dissolution on November 29, 1999. The final judgment incorporated the parties’ November 23, 1999 child custody, property, and marital settlement agreement. The parties adopted one child during the marriage, Alexis Marie Fleischmann, who was three years old at the time of the settlement agreement. The settlement agreement provided that the parties would share parental responsibility, the former wife would be the primary residential custodial parent, and the former husband would have the child 43% of the time. The former husband, taking into account his bonuses, agreed to pay the former wife what amounted to roughly $1100-$1200 per month in child support.

In 2001, the Florida Legislature amended section 61.30, which became effective on July 1, 2001. See Ch.2001-158, §§ 15, 16, at 1303-06, Laws of Fla. On August 2, 2001, almost two years after the parties’ divorce became final, former husband filed a petition seeking to modify his child support on the basis that the 2001 amendments require that the payor-spouse’s child support be reduced when the child spends at least 40% of the time with the noncustodial parent. Former husband also argued that his child support should decrease as a result of the $35 per week reduction in daycare costs now that Alexis is attending public school.

The trial court denied the petition for modification, finding that there had been no change in visitation since entry of the agreement in 1999; that both former wife’s and former husband’s income had increased; and that there was no legitimate basis for a downward modification. The trial court, however, mistakenly stated in the order that daycare costs were lowered by $35 monthly, instead of weekly.

We first note that the version of section 61.30 in effect at the time of the parties’ dissolution gave former husband the option to seek reduction of his child support based on certain enumerated factors, including the substantial amount of time spent with each parent:

Whenever a particular shared parental arrangement provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support, based upon:
1.The amount of time each child will spend with each parent under the shared parental arrangement.
2. The needs of each child.
3. The direct and indirect financial expenses for each child.

§ 61.30(ll)(b)l.-3., Fla. Stat. (1999). The 2001 amendments continued to require that the trial court adjust the child support award if the child spends a “substantial amount of time with each parent,” but provided a more definitive formula for calculating the adjustment and defined what qualifies as a “substantial amount of time.”

For purposes of adjusting any award of child support under this paragraph, “substantial amount of time” means that the noncustodial parent exercises visitation at least 40 percent of the overnights of the year.

§ 61.30(ll)(b)10„ Fla. Stat. (2001); Ch.2001-158, § 16, at 1305-06, Laws of Fla.

Despite having the availability to reduce his child support obligation in 1999 because the child spends a substantial amount of time with him, the former husband agreed to pay $1200 in child support. Former husband’s agreement was incorporated into the final judgment and the case had been closed for two years. Former husband cannot now seek modification of his child support by arguing that the 2001 amendments amount to a substantial change in circumstance, where the right to seek a reduction for the reasons addressed in the amendments was always available. Moreover, it appears from the record that, in including a percentage of his bonus in his child support obligation, the father voluntarily agreed to pay more than he was required under either version of section 61.30.

This case is similar to those where the payor-spouse sought a downward modification of child support, after the entry of final judgment, based solely on the argument that the amount exceeded the statutory guidelines. Florida courts have consistently held in those cases that the payor-spouse could not use the statute as the sole basis for relief from an agreed-to, judicially adopted child support order without a showing of independent changed circumstances. See Turner v. Turner, 695 So.2d 422 (Fla. 3d DCA 1997); see also Ervin v. Chason, 750 So.2d 148 (Fla. 1st DCA 2000); Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997).

Accordingly, we affirm the trial court’s determination that the 2001 amendments cannot provide the sole basis upon which to seek a modification of child support. However, because the record demonstrates that the court may have believed that the daycare expenses were reduced by $35 monthly rather than weekly, we remand for the trial court to consider whether this factor is an independent substantial change in circumstance, warranting a downward modification of former husband’s child support obligation.

AFFIRMED and REMANDED for further proceedings.

STEVENSON, MAY, JJ., and CHAVIES, MICHAEL B., Associate Judge, concur.


text:
    Eugene J. O’NEILL, Appellant, v. Marylee O’NEILL, Appellee.
    No. 4D02-4414.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Rehearing Denied March 5, 2004.

      Eugene J. O’Neill, Vero Beach, pro se.
    Chet E. Weinbaum, Fort Pierce, for ap-pellee.
   PER CURIAM.

This appeal arises out of the dissolution of the marriage of Eugene and Marylee O’Neill. According to the husband, the trial court erred in fashioning the equitable distribution of the couple’s retirement account, failed to consider the tax consequences of utilizing the retirement account to equalize the equitable distribution scheme, and awarded excessive alimony. We affirm the final judgment in all respects and write to address the claims regarding the equitable distribution of the retirement account.

The husband brought the retirement account into the marriage in July of 1984. At that time, the account balance was $27,111.25. As of October 2000, the retirement account had a balance of $397,045.90. The trial court found that any return on investment or enhancement in value of the original $27,111.25 was a marital asset as a consequence of the husband’s active management of the account during the marriage. The husband challenges this finding on appeal.

Our legislature has defined which assets will be deemed “marital” and subject to equitable distribution and which are “non-marital.” Section 61.075(5)(a), Florida Statutes (2000), provides in relevant part that a “marital” asset includes: assets acquired during the marriage; “[t]he enhancement in value and appreciation of nonmarital assets resulting ... from the efforts of either party during the marriage”; and “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.” In contrast, “nonmarital” assets include assets acquired before the marriage and all income derived from nonmarital assets during the marriage, unless the parties treat such income as a marital asset. See § 61.075(5)(b).

First, the husband contests the trial court’s factual finding that he actively managed the account, insisting that any efforts on his part were negligible. The husband, himself an attorney, has elected to provide this court with only excerpts of the hearing held before the trial court, rather than a complete transcript. Consequently, he cannot meet his appellate burden, i.e., demonstrating that the trial court’s factual findings are not supported by competent substantial evidence. See Kovalchick v. Kovalchick, 841 So.2d 669 (Fla. 4th DCA 2003). Further, despite the husband’s assertions to the contrary, the excerpts that have been provided do not demonstrate that the increase in value of the retirement account was solely the result of passive earnings. The husband’s expert, Jerry Reese, did not testify that the approximately nine percent annualized rate of return on the account had nothing to do with Mr. O’Neill and was simply the result of market conditions.

Alternatively, the husband argues that regardless of how much marital effort he put into managing the account, such efforts should not serve to deprive him of the passive earnings that have accumulated on the nonmarital portion of the account. In essence, the husband argues that any increase in value of the $27,111.25 should be apportioned between the increase due to marital labor and the increase due to time and market conditions, with the latter being designated a nonmar-ital asset that is not subject to equitable distribution. See Young v. Young, 606 So.2d 1267 (Fla. 1st DCA 1992).

Under the apportionment approach exemplified by Young, the utilization of marital labor would not necessarily serve to render any and all increases in value on the nonmarital portion of the account a marital asset. In such an approach, once it is established that marital labor was used, the burden falls to the party claiming that the increase is nonmarital to establish whether any part of the increase was the result of passive market conditions and, thus, is exempt from equitable distribution. See id. at 1270. The only evidence in the excerpted record before us is that (1) in some years the retirement account was up by as much as twenty percent and, in others, down by as much as seven; (2) the account enjoyed an annualized rate of return of nine percent; and (3) this annualized nine percent rate of return was somewhat lower than the rate achieved by other clients of the husband’s expert. There is, however, no evidence that this nine percent was purely the result of time and market conditions. In the absence of such evidence, even if this court applied the apportionment approach, the husband has not demonstrated reversible error.

AFFIRMED.

POLEN, KLEIN and STEVENSON, JJ., concur.


text:
    Kevin M. JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4070.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Rehearing Denied April 12, 2004.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Kevin M. Joseph appeals his conviction of the sale of MDMA, commonly known as ecstasy. We affirm, finding no error in the prosecutor’s cross-examination of Joseph.

Joseph 'was charged with trafficking in MDMA.

The State’s Case at Trial

The state’s case at trial established that Detective Golino of the Port St. Lucie Police Department met with a confidential informant (Cl) to purchase 400 MDMA pills from Joseph, at $9 a pill. The plan was to meet Joseph in a McDonald’s parking lot, with the detective giving Joseph the money for the pills.

The Cl received a phone call and informed the detective that Joseph was on the line. The detective and the Cl then separately drove to the McDonald’s. The Cl parked his car in the parking lot; the detective parked his unmarked vehicle on the other side of the building, and walked to the restaurant.

About twenty minutes later, Joseph pulled into the parking lot and parked next to the Cl’s auto. An individual later identified as Sean Springer was in the passenger seat of Joseph’s vehicle.

Detective Golino then received a phone call from the Cl, which was the prearranged signal that Joseph had displayed the pills. The detective then walked out into the parking lot and stood in between the Cl’s car and Joseph’s car. Joseph immediately asked the detective to change the location of the transaction to a 7-11 down the street. Detective Golino refused.

The detective asked Joseph if he had the pills. Joseph then pulled a bag of pills from underneath his leg. Joseph again asked to change locations, and the detective again refused. The detective went to his vehicle to retrieve money, and then walked back to the Cl and Joseph’s cars. Joseph stood by the rear bumper of the Cl’s car. Springer remained inside Joseph’s automobile.

Joseph said that the pills were under the floor mat of the front seat of the Cl’s vehicle. Joseph went into the rear passenger seat and the detective sat in the front passenger seat of the Cl’s car. The detective reached under the floor mat and grabbed the bag of pills. The detective then handed Joseph $3,600. Both Joseph and Springer were arrested at the scene.

After Joseph received his Miranda warnings, he claimed that he received the pills from someone named A1 Gordon and that he was going to be paid $100 for the transaction.

After bonding out of jail, Joseph came to the detective bureau and changed his story, claiming that it was Springer, and not Gordon, who was the supplier of the drugs. Joseph said that Springer had recently threatened him.

Joseph’s Case at Trial

Joseph’s version of the events at trial differed from that of the state.

On December 6, 2001, Springer came to Joseph’s home around 9:30 a.m. and asked if he wanted to go to McDonald’s for breakfast. Joseph drove Springer’s car because Springer said he did not have a driver’s license. When they arrived at the McDonald’s, Springer told Joseph to pull up next to a green car, which Joseph recognized as being the Cl’s.

Detective Golino walked up and asked if they had any pills. Springer pulled out some pills and suggested that they go to a 7-11, but the detective said that he wanted to do the deal right there, and then walked to his car to get some money. Joseph claimed he had no prior knowledge of these pills and got nervous when he realized what was happening.

Joseph returned to the Cl’s car and sat inside. Springer got into the car and threw the pills onto the Cl’s lap. The Cl took the pills and placed them under the floor mat by Joseph’s feet. Joseph got out of the car. Detective Golino told him to sit in the front seat of the car and count the money. Joseph looked at the detective “funny” because he had nothing to do with the transaction.

While Joseph remained outside the car, Detective Golino sat in the front seat, and asked where the pills were located. The Cl said that the pills were on the floor. When the detective went to pick up the pills, Joseph began to walk away from the car. Numerous officers then approached and arrested Joseph and Springer.

Joseph denied making any statements to Detective Golino when he was arrested. He also denied ever saying that he was going to receive $100 for the drug transaction. He insisted that he told Detective Golino that he was not involved in the transaction.

Joseph was released on bond. Two weeks after the arrest, he received threatening calls from Springer and his friends. Joseph and his mother went to talk to Detective Golino about these threats, and the detective told them they could fill out a police report. Detective Golino kept asking Joseph if he knew A1 Gordon, but he said that he did not know that person.

The Cross-Examination at Issue

The sole point on appeal concerns the following exchange between the prosecutor and Joseph on his cross-examination:

Appellant: [Detective Golino] read me my Miranda rights, but he did not ask me about, you know, anything that was involving like, you know, A1 Gordon or Mr. Springer at that time.
Prosecutor: So he read you your rights, but he didn’t ask you any questions, is that what you’re saying?
Appellant: He read me rights there át that time and he did not ask me no questions at that time when we was arrested on McDonald’s premises.
Prosecutor: Okay. So that was wrong also.
Appellant: Yes.
Prosecutor: What Detective Golino just testified?
Defense Attorney: Objection, Your Hon- or, Counsel is asking a witness to comment on some other witnesses’ testimony.
The Court: Rephrase it.
Prosecutor: So it — it’s not accurate that Detective Golino talked to you in that parking lot at—
Defense Counsel: Same objection, Your Honor.
The Court: Overruled.
Prosecutor: At McDonald’s — that’s not accurate?
Appellant: No.
Prosecutor: Is that what you said?
Appellant: No.

(Emphasis added).

Discussion

Joseph claims that the trial court reversibly erred when it allowed the prosecutor to ask him whether certain parts of Detective Golino’s testimony were “not accurate.”

It is clear that a prosecutor may not ask a witness whether another witness was lying. See Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993); Boatwright v. State, 452 So.2d 666, 668 (Fla. 4th DCA 1984); Toomer v. State, 599 So.2d 780 (Fla. 3d DCA 1992) (following Boatwright); McKinney v. State, 579 So.2d 393 (Fla. 3d DCA 1991) (same); Mosley v. State, 569 So.2d 832 (Fla. 2d DCA 1990) (same). All of these cases involve a direct question posed to a witness as to whether another witness at trial had been lying.

For example, in Knowles, the state asked the defendant over objection, “whether he thought the state’s witness was lying and why.” 632 So.2d at 65. Citing to Boatwright, the supreme court held that such a line of questioning was improper and gave three reasons for its ruling:

First, allowing one witness to offer a personal view on the credibility of a fellow witness is an invasion of the province of the jury to determine a witness’s credibility. Second, although the fact that two witnesses disagree does not necessarily establish that one is lying, such questioning may lead the jury to conclude that the witness being questioned is actually lying. Finally, unless there is {evidence that the witness is privy to the thought processes of the other witness, the witness is not competent to testify concerning the other’s state of mind.

Knowles, 632 So.2d at 65-66.

A related line of cases holds that it is error for one witness to give an opinion about the credibility of another witness. See Acosta v. State, 798 So.2d 809, 810 (Fla. 4th DCA 2001); Page v. State, 733 So.2d 1079, 1081 (Fla. 4th DCA 1999); Johnson v. State, 682 So.2d 215, 216 (Fla. 5th DCA 1996).

Here, the prosecutor’s question about whether Golino’s testimony was “not accurate” did not run afoul of either line of cases. Joseph was not asked if the detective was “lying.” He was not asked for his opinion of the detective’s credibility. Joseph “was not required to choose between conceding the point or branding” the detective “as a liar.” United States v. Gaines, 170 F.3d 72, 82 (1st Cir.1999). Asking whether another witness is “wrong,” “not accurate,” or “mistaken” is very different from asking whether the witness is a liar. Regarding the last locution, the Second Circuit Court of Appeals has written:

Asking a witness whether a previous witness who gave conflicting testimony is “mistaken” highlights the objective conflict without requiring the witness to condemn the prior witness as a purveyor of deliberate falsehood, i.e., a “liar.”

United States v. Gaind, 31 F.3d 73, 77 (2d Cir.1994).

Finding no error, we affirm appellant’s conviction.

FARMER, C.J., and GUNTHER, J., concur.


text:
    STATE ex rel. Eugene FRAZIER, Jr. v. STATE of Louisiana.
    No. 2003-KH-0242.
    Supreme Court of Louisiana.
    Feb. 6, 2004.
   In re Frazier, Eugene, Jr.; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div. B, Nos. 49586; to the Court of Appeal, Third Circuit, No. KH 02-00455.

PER CURIAM.

Writ granted in part; otherwise denied; case remanded to the court of appeal. Though “[rjesentencing alone does not restart” the prescriptive period for filing for post-conviction relief once a conviction and sentence have both become final, State ex rel. Rushing v. Whitley, 93-2722 (La.11/13/95), 662 So.2d 464, the prescriptive period does not initially begin to run until “the judgment of conviction and sentence shall have become final under the provisions of Article 914 or 922 ...” La.C.Cr.P. art. 930.8(A); State ex rel. Wilson v. State, 01-1464 (La.3/15/02), 812 So.2d 622. Because relator’s “conviction and sentence” did not become final until this Court denied "writs in November, 2001, La.C.Cr.P. art. 922(D), his application for post-conviction relief of March, 2002, was timely filed.