text:
    Congressman Robert WEXLER, Appellant, v. Theresa LEPORE, Supervisor of Elections for Palm Beach County, Florida, and Glenda E. Hood, Secretary of State, Appellees.
    No. 4D04-918.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2004.

      Jeffrey M. Liggio of Liggio, Benrubi & Williams, P.A., West Palm Beach, for appellant.

      Bernard Lebedeker of Burman, Critton, Luttier & Coleman, West Palm Beach, for appellee Theresa Lepore.
    Charles J. Crist, Jr., Attorney General, and George Waas, Special Counsel, Tallahassee, for appellee Glenda E. Hood.
    Gregory J. Shibley, North Palm Beach, and Randall C. Marshall, ACLU Foundation of Florida, Inc., Miami, for Amicus Curiae, American Civil Liberties Union of Florida, Inc.
   PER CURIAM.

Congressman Robert Wexler appeals the dismissal of his complaint seeking declaratory and injunctive relief. The Congressman filed suit against Palm Beach County Supervisor of Elections Theresa Lepore and Secretary of State Glenda E. Hood, as a candidate for re-election and a registered voter in Palm Beach County. While we conclude Congressman Wexler did have standing, we nevertheless affirm the dismissal of the complaint.

Facts

The complaint alleged the following. The defendants share a statutory duty to ensure that each Palm Beach County citizen’s vote is accurately recorded and reported, including any recount. Section 102.166(1) and (2), Florida Statutes (2008), specifically require a manual recount. The touchscreen voting equipment currently in use in Palm Beach County fails to provide the statutorily-required manual recount. As a registered voter and candidate for reelection in November 2004, Congressman Wexler was in doubt as to his rights in the event a recount was required. He requested the court declare that the defendants failed to comply with their statutory duty to approve and recommend a system in compliance with Florida law.

As to his claim for injunctive relief, Congressman Wexler alleged the acts and omissions of the defendants posed an immediate threat to the rights of voters and political candidates and there was no adequate remedy at law. He requested the court require the defendants to immediately take the necessary steps to correct the statutory non-compliance prior to the next election.

In dismissing the complaint with prejudice, the trial court held Congressman Wexler lacked standing to bring the suit. The court further held he failed to state a cause of action for injunctive relief and that any attempt to amend the complaint would be futile. The court found Secretary Hood’s motion to change venue to Leon County was moot.

Florida’s Statutory Voting System Framework

Following the 2000 elections, the Florida Legislature enacted “The Electronic Voting Systems Act,” which authorized the use of electronic and electromechanical voting systems. See §§ 101.5602, 101.5603 Fla. Stat. (2003). Sections 101.5605 and 101.5606, Florida Statutes (2003), set forth the requirements for approval of electronic or electromechanical systems.

The Department of State is responsible for adopting rules establishing minimum standards for hardware and software for electronic voting systems and reviewing such rules each odd-numbered year. See § 101.015(1) & (5), Fla. Stat. (2003). It has the authority to approve or disapprove any voting system. See §§ 101.015 & 101.5605, Fla. Stat. (2003). The Board of County Commissioners, after consultation with the Supervisor of Elections, may approve, purchase or procure the use of, an approved voting system. See § 101.5604, Fla. Stat. (2003).

Florida’s recount procedures are governed by sections 102.141 and 102.166, Florida Statutes (2003), which contain procedures for recounts in two instances. The first instance occurs when the margin of victory is one-half of a percent or less. In this instance, a machine recount occurs. See § 102.141(6), Fla. Stat. (2003).

The legislature purposely distinguished the method for machine recounts in jurisdictions using electronic systems and those using paper ballots. In counties with paper ballot systems, the recount consists of putting each ballot through the automatic tabulating equipment and determining whether the returns correctly reflect the votes east. See § 102.141(6)(a), Fla. Stat. (2003). For counties using electronic systems, the recount consists of examining the counters on the precinct tabulators to ensure the total returns on the tabulators equal the overall election return. See § 102.141(6)(b), Fla. Stat. (2003).

The second instance in which a recount occurs is when the margin of victory is one-quarter of a percent or less. See § 102.166, Fla. Stat. (2003). In that instance, the board responsible for certifying the results of the vote shall order a manual recount of the overvotes and' undervotes cast in the entire geographic jurisdiction of such office or ballot measure. See § 102.166(1), Fla. Stat. (2003). When conducting the manual recount, a vote cast for a candidate or ballot measure shall be counted if there is a clear indication on the ballot that the voter has made a definite choice. See § 102.166(5)(a), Fla. Stat. (2003). The Department of State is tasked with adopting specific rules for each certified voting system prescribing what constitutes a “clear indication on the ballot that the voter has made a definite choice.” See § 102.166(5)(b), Fla. Stat. (2003).

Pursuant to the mandate of section 102.166(5)(b), the Department of State issued Rule No. 1S-2.031 (amended April 13, 2004), pertaining to recount procedures. Rule 1S-2.031(7), Florida Administrative Code, provides that:

When a manual recount is ordered and touchscreen ballots are used, no manual recount of undervotes or overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast an overvote and since a review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5), F.S. In this case, the results of the machine recount conducted pursuant to (5)(c) shall be the official totals for the touchscreen ballots.

Two types of electronic voting systems are certified for use in Florida, the optical scan and the touchscreen. Palm Beach County utilizes the touchscreen system. With a touchscreen system, a voter does not mark a paper ballot, but instead makes selections on a computer screen. The system gives the voter the opportunity to review the selections and it is only after the voter indicates approval that the selections are recorded in the machine’s electronic memory. See Wexler v. Lepore, 319 F.Supp.2d 1354 (S.D.Fla.2004).

These are the facts. The issues involve standing, the sufficiency of the Congressman’s claims for declaratory and injunctive relief, and venue.

Standing

Whether a party has standing to bring an action is a question of law to be reviewed de novo. See Alachua County v. Scharps, 855 So.2d 195, 198 (Fla. 1st DCA 2003). In conducting the review, this court accepts the allegations in the complaint as true. See Hospice of Palm Beach County, Inc. v. State, Agency for Healthcare Admin., 876 So.2d 4 (Fla. 1st DCA 2004). The party must allege that he has suffered or will suffer a special injury. See Scharps, 855 So.2d at 198. Thus, the court must determine whether the plaintiff has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. See id.

Both Secretary Hood and Supervisor Lepore argue that because Congressman Wexler faces no opposition in the upcoming election, he has been effectively re-elected, and has no standing as a candidate. We reject that argument. We hold that Congressman Wexler has standing to bring this action in his capacity as a candidate seeking re-election.

His lack of opposition does not alter the fact that he is, and likely will be, a candidate for re-election to public office. He has an interest in the problem or controversy concerning the current manual recount process. It is a problem which is capable of repetition, yet may evade review. See Holly v. Auld, 450 So.2d 217, 218 (Fla.1984) (mootness does not destroy an appellate court’s jurisdiction when questions raised are of great public importance or are likely to recur); see also Kelley v. Rice, 800 So.2d 247, 250 (Fla. 2d DCA 2001) (mootness does not destroy a court’s jurisdiction if the question raised is of great public importance or if the error is capable of repetition yet evading review). Because we find standing on this basis, we decline to address the remaining standing issues.

Declaratory Relief

The trial court dismissed the complaint on the basis of standing; it did not expressly determine whether Congressman Wexler stated a cause of action for declaratory relief. The court, however, indicated any attempt to amend the complaint to raise a cognizable constitutional claim would be futile. In essence, the court implied a failure to state a cause of action for declaratory relief. As the election rapidly approaches, the issue of failure to state a cause of action must be addressed.

In essence, Congressman Wexler alleged section 102.166, Florida Statutes (2003), mandates a manual recount and the touchscreen system cannot comply with this mandate. This places Secretary Hood in violation of her statutorily-imposed duty to approve a system in compliance with the law. It also places Supervisor Lepore in violation of her statutorily-imposed duty to recommend a system in compliance with the law. We disagree.

With regard to a recount, section 102.141(6)(a) and (b), Florida Statutes (2003), makes an express distinction between voting systems which use paper ballots and those that do not. In counties that do not use paper ballots, the counters of the precinct tabulators are presumed correct. See § 102.141(6)(b), Fla. Stat. (2003). In stark contrast, in counties that use paper ballots, the canvassing board, in the event of a recount, shall put each ballot through automatic tabulating equipment and determine whether the returns eor-rectly reflect the votes cast. If a ballot is physically damaged so that it cannot be properly counted, there is a procedure in place to take corrective measures to repeat the count. See § 102.141(6)(a), Fla. Stat. (2003).

Despite this difference, section 102.166, which applies when the margin of victory is one quarter of a percent or less, continues to mandate manual recounts of over-votes and undervotes. See § 102.166(1) & (2), Fla. Stat. (2003). This subsection does not make a distinction for recounts when a paperless voting system is in use. However, within that same subsection is a provision for the promulgation of rules concerning recount procedures.

The Legislature delegated authority to the Secretary of State to adopt rules for the certification of each electronic voting system. See § 101.015(1), Fla. Stat. (2003). The Department is further charged to adopt rules for each voting system which it certifies regarding what constitutes a “clear indication” of voter choice, see § 102.166(5)(b), and “detailed rules prescribing additional recount procedures for each certified voting system which shall be uniform to the extent practicable.” See § 102.166(6)(d), Fla. Stat. (2003). Pursuant to that authority the Secretary has now adopted rules which do not require a manual recount on certified touchscreen systems. The rule does not require a recount of overvotes, because the system does not permit them. As to un-dervotes, where a voter has not cast a recognized vote in a particular race or ballot measure, the rule requires no manual recount “since a review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5), F.S.” Fla. Admin. Code R. 1S-2.031.

The Congressman requested a declaratory judgment that the Secretary and Supervisor of Elections were in violation of their statutory duties. The Secretary’s duty was to adopt regulations pursuant to the statutes regarding voting methods, including approval of voting systems, and recounting votes. The Secretary has now done that. Whether these rules and regulations constitute an invalid exercise of delegated legislative authority is first subject to administrative challenge. See § 120.56, Fla. Stat. (2003). The adoption of the rules has rendered the Congressman’s request for a declaratory judgment moot. He must now challenge the adopted rules.

Injunctive Relief

The trial court also held Congressman Wexler failed to state a cause of action for injunctive relief. The court held that under sections 101.5603(2) and (8) and 102.141(6)(b), the statutory scheme did not require a voter-verified paper ballot; therefore, Congressman Wexler did not have a clear legal right to an injunction ordering the creation of such ballots. Further, the court held relief should be sought in the legislative or executive branches of government.

To state a cause of action for injunctive relief, the moving party is required to prove the following: “(1) he will suffer irreparable harm unless the status quo is maintained; (2) he has no adequate remedy at law; (3) he has a clear legal right to the relief granted; and (4) a temporary injunction will serve the public interest.” See generally Duryea v. Slater, 677 So.2d 79, 81 (Fla. 2d DCA 1996). The movant must also establish a substantial likelihood of success on the merits. See In re Guardianship of Schiavo, 792 So.2d 551, 562 (Fla. 2d DCA 2001).

The court correctly held Congressman Wexler failed to show he had a clear legal right to the injunction. In fact, when the statutes are read as a whole, they demonstrate the Congressman has no legal right to an injunction. There is, therefore, little likelihood of success on the merits.

Congressman Wexler also failed to allege a “palpable violation” sufficient to seek redress in a court of equity. In Joughin v. Parks, 107 Fla. 833, 143 So. 145 (1932), the Florida Supreme Court held that:

An injunction will not issue for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held, because the holding and conduct of an election during its progress is a political matter with which courts of equity have nothing to do.

Id. at 145. Only where, prior to an election, a palpable violation of the registration or election laws is about to take place, is an injunction an appropriate remedy. See id.

The rule is well-settled that equity will neither determine questions involving rights that are purely political nor will it undertake the protections of such rights by the writ of injunction. See Joughin v. Parks, 107 Fla. 833, 147 So. 273, 273 (1933). Since neither defendant has violated any statutorily-mandated duty, there is no palpable threat at issue.

Conclusion

We recognize the right to vote is fundamental. However, there is no guarantee of a perfect voting system. See Weber v. Shelley, 347 F.3d 1101, 1105 (9th Cir.2003). States are entitled to broad leeway in enacting reasonable, even-handed legislation to ensure that elections are carried out in a fair and orderly manner. See id.

As in Weber, we cannot say the use of a paperless voting system severely restricts the right to vote in the State of Florida. “No balloting system is perfect. Traditional paper ballots, as became evident during the 2000 presidential election, are prone to overvotes, undervotes, ‘hanging chads,’ and other mechanical and human errors that may thwart voter intent. See generally Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000).” Id. at 1106.

By enacting the Electronic Voting Rights Act, the Legislature allowed for the certification of a touchscreen voting system. See §§ 101.015 & 101.5606, Fla. Stat. (2003). In this case, the touchscreen system utilized in Palm Beach County is a system certified for use by the Secretary of State. The Secretary performed her statutory duty. In the same fashion, Election Supervisor Lepore recommended a certified system to the Palm Beach County Board of County Commissioners. “So long as their choice is reasonable and neutral, it is free from judicial second-guessing.” Weber, 347 F.3d at 1107.

AFFIRMED.

WARNER, SHAHOOD and MAY, JJ., concur.

      . Congressman Wexler also named the Palm Beach County Board of County Commissioners as a defendant, but dismissed it voluntarily-

      . See Wexler v. Lepore, 319 F.Supp.2d 1354 (S.D.Fla.2004).

      . It should be noted that the rule had not been amended when Congressman Wexler filed his complaint.

      . Because the trial court dismissed the complaint with prejudice, it determined the venue issue to be moot. We agree.

      . The court understands that a challenge to the administrative rule is pending.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert JOHNSON, Appellant, v. TERRY HUNT CONSTRUCTION COMPANY and Superior, etc., Appellees.
    No. 1D04-0454.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.

      Richard A. Kupfer, Esq. of Richard A. Kupfer, P.A., West Palm Beach, for Appellant.
    Mary E. Cruickshank, Esq. and Erika L. Brenneman, Esq. of DuBois & Cruick-shank, P.A., Tallahassee, for Appellees.
   PER CURIAM.

Claimant, Robert Johnson, seeks review of the Judge of Compensation Claims’ Order Denying Sworn Motion to Vacate Order Dated November 13, 2002, wherein the JCC found that he lacked jurisdiction to vacate his previous order, which had become final by operation of section 440.25, Florida Statutes. We reverse, determining that, in these circumstances, the JCC did have jurisdiction to vacate and reenter the order.

Claimant suffered a compensable work injury for which he was seeking additional attendant care benefits. The JCC entered a Final Order denying claimant’s petition for benefits on November 13, 2002, and according to the Certificate of Service, the order was sent by mail to claimant and his counsel. However, the address listed for claimant’s attorney was not her correct address. According to claimant’s attorney’s Sworn Motion to Vacate Order Dated November 13, 2002, claimant’s counsel learned that a final order had been entered when she appeared before the JCC in an unrelated hearing. The JCC then faxed counsel a copy of the order on December 22, 2003. At that time, claimant’s opportunity to file a timely notice of appeal had already passed. The JCC subsequently entered an Order Denying Sworn Motion to Vacate Order Dated November 13, 2002, finding that the address listed on the certificate of service was accidentally generated by the JCC’s computer system and was not counsel’s current office address. However, the JCC concluded that, as an administrative body possessing quasi-judicial power and not a court, he had “no statutory or procedural authority to vacate and/or amend orders which became final by operation of section 440.25, Florida Statutes.” Claimant timely filed a notice of appeal. This appeal followed.

In Millinger v. Broward County Mental Health Division and Risk Management, 672 So.2d 24, 27 (Fla.1996), the supreme court noted:

[Substantial rights are involved in workers’ compensation claims which are protected by due process guarantees under our state constitution. We envision that there could be a set of egregious circumstances which occur that prevent a litigant from timely filing an appeal that could be remedied by the JCC or an appellate court. For instance, a due process violation could occur if the JCC’s order was entered but never actually provided to the litigants, and the thirty-day period to file a timely appeal then passed.

See also Taylor v. Dep’t of Prof'l Regulation, Bd. of Med. Exam’rs, 520 So.2d 557, 560 (Fla.1988) (holding that “an administrative tribunal, exercising quasi-judicial powers, enjoys the inherent authority to correct its own orders which contain clerical errors and errors arising from mistake or inadvertence”) (citations omitted). The JCC is correct that, generally, “a JCC’s authority to vacate and amend orders is expressly limited to those orders ‘which are not yet final by operation of section 440.25.’ ” See Millinger, 672 So.2d at 27 n. 2. However, the supreme court in Mil-linger specifically contemplated the exceptional circumstances which would require a remedy from the JCC or the appellate court. An example of the exception Mil-linger contemplated occurred in the case of W.T. Holding, Inc. v. State, Agency for Health Care Administration, 682 So.2d 1224, 1225 (Fla. 4th DCA 1996). There, the Fourth District concluded that, although “agency reissuance of a final order may not be used to breathe life into an appeal where the notice of appeal is untimely due to the appellant’s negligence,” where the time to appeal had expired before the appellant had received notice that the agency had entered a final order, the administrative agency did have authority to reissue a final order, “despite the lack of a specific grant of such authority in chapter 120.” Id. (citing Millinger, 672 So.2d at 27). The cause was then, remanded for an evidentiary hearing on the issue of whether the appellant had received a copy of the final order or had other notice of entry of the final order. W.T. Holding, 682 So.2d at 1226.

Likewise, although the powers of administrative tribunals are limited regarding their ability “to rehear or reconsider an order in the absence of a specific authorization by statute or rule,” an administrative tribunal has “inherent” power to correct its own errors in its orders. See Taylor, 520 So.2d at 560 (citations omitted). The E/C’s argument that Taylor is distinguishable on the grounds that no error was made in the instant case is not persuasive in light of section 440.25(4)(e), Florida Statutes (1997), which provides:

The order making an award or rejecting the claim, referred to in this chapter as a “compensation order,” shall set forth the findings of ultimate facts and the mandate; and the order need not include any other reason or justification for such mandate. The compensation order shall be filed in the Office of the Judges of Compensation Claims at Tallahassee. A copy of such compensation order shall be sent by mail to the parties and attorneys of record at the last known address of each, with the date of mailing noted thereon.

(emphasis added). Here, there was a clear statutory requirement that the order be sent to both appellant and his attorney of record, and in the order denying appellant’s requested relief, the JCC admitted that an agency error had caused the mistake. Cf. Golfview Nursing Home v. State, Agency for Health Care Admin., 859 So.2d 581, 584 (Fla. 1st DCA 2003) (noting that once the appellant informed the appel-lee that it was represented by counsel, the appellee should have provided copies of all legal documents concerning the administrative complaint to the appellant’s attorney); Resort Sales Int’l, Inc. v. Fla. Dep’t of Bus. and Prof'l Regulation, 795 So.2d 1040, 1042 (Fla. 1st DCA 2001) (“Section 120.569(1) states that service may be made either on the regulated party or on the party’s attorney. It would be proper to serve an order or notice on an attorney if the administrative complaint has been filed and served, and if the attorney has appeared in the case.”).

For the same reason discussed above, the E/C’s reliance on Ford v. Public Employees Relations Commission, 717 So.2d 149, 150 (Fla. 5th DCA 1998), is misplaced because that argument does not take into account the requirement of section 440.25(4)(e) that the order be sent to a claimant’s attorney of record. Also, in relying on Ford, the E/C disregard the holding of Taylor that quasi-judicial bodies have the power to correct their own clerical errors and mistakes. Furthermore, “[a] party who fails to receive a timely notice of the entry of an administrative order[,] thereby losing the opportunity to file a timely appeal, should not be without a remedy.” Ford, 717 So.2d at 150. Thus, the E/C’s argument that the order should not be reentered because claimant received a timely copy of it, although his counsel did not, is unavailing in light of the statutory requirement that the order be sent to claimant’s attorney and the fact that it was a state action which deprived claimant of the ability to file a timely notice of appeal. See Gundlah v. Moore, 831 So.2d 780, 781 (Fla. 4th DCA 2002) (holding that the appropriate remedy when state action deprives a party of the ability to file a timely notice of appeal is to allow the appellant “to pursue relief in the lower tribunal by motion seeking to set aside the original order and requesting that a new appealable order be entered.”) (citations omitted).

Accordingly, the JCC erred in finding that he lacked jurisdiction to vacate and reenter the order. See § 440.25(4)(e), Fla. Stat; Millinger, 672 So.2d at 27; Taylor, 520 So.2d at 560; W.T. Holding, 682 So.2d at 1225; cf. Golfview Nursing Home, 859 So.2d at 584 (reversing a final order because AHCA’s failure to provide a copy of its notice of intent to the appellant’s attorney caused the fairness of the proceedings or correctness of the action to be impaired, and noting that several pertinent sections of chapter 120 require that orders affecting the substantial rights of a party must be mailed to the party or its attorney of record, unless the right to have notice given to a party’s attorney is waived); Resort Sales Int’l, 795 So.2d at 1042. We, therefore, REVERSE and REMAND for further proceedings.

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

      . "Procedures with respect to appeals from orders of judges of compensation claims shall be governed by rules adopted by the Supreme Court. Such an order shall become final 30 days after mailing of copies of such order to the parties, unless appealed pursuant to such rules.” § 440.25(5)(a), Fla. Stat. (1997).


author: ERVIN, J.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. NASSAU PARTNERS, LTD., Appellee.
    No. 1D03-2506.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    Pamela S. Leslie, General Counsel, and Gregory G. Costas, Assistant General Counsel, Department of Transportation, Tallahassee, for Appellant.
    William S. Graessle of William S. Graes-sle & Associates, P.A., Jacksonville, for Appellee.
   ON MOTION FOR REHEARING

[Original opinion at 29 Fla. L. Weekly D1330]

ERVIN, J.

We withdraw our previous opinion issued June 3, 2004, and substitute the following. Appellant, the Department of Transportation (DOT), appeals from two orders awarding fees and costs to the landowner, appellee Nassau Partners, Ltd., in an eminent domain proceeding. We affirm the first two issues relating to Nassau’s entitlement to fees and costs, but reverse and remand the order granting its motion to tax reasonable costs as to parcels 209/805, with directions to the lower court to make explicit findings justifying the awards therein entered, as required by section 78.091(5), Florida Statutes (2001).

Following the entry of a stipulated final judgment, the landowner filed two motions, one to tax the reasonable costs of expert witnesses in defense of the proceeding as to parcels 209/805, and one to tax supplemental costs and attorney fees associated with the expenses of the hearing pertaining to the prior motion. One hearing was held as to both motions. In regard to the second motion, DOT disputed its responsibility to pay attorney fees and expert witness fees incurred in litigating the motion for costs, on the ground that the owner had no contractual obligation to pay its experts for their efforts, because section 73.091 required the condemning authority to pay, and thus the owner had no legal interest in the amount of fees. See, e.g., Dep’t of Transp. v. Robbins & Robbins, Inc., 700 So.2d 782 (Fla. 5th DCA 1997) (holding that DOT was not obligated to bear the costs involved in proving the amount of attorney’s fee, because the con-demnee has no interest in the amount of the fee, which inures solely to the attorney). We disagree.

Initially, we observe that the issue of an owner’s entitlement to fees in an eminent domain proceeding is reviewed by a de novo standard. See Univ. of Fla., Bd. of Trustees v. Sanal, 837 So.2d 512 (Fla. 1st DCA 2003); Thomas v. Perkins, 723 So.2d 293 (Fla. 3d DCA 1998). Attorney’s fees incurred in litigating entitlement to recover costs are authorized by section 73.092(2), because a post-judgment costs hearing is included within “other supplemental proceedings” contemplated by that provision. Amoco Oil Co. v. Dep’t of Transp., 765 So.2d 111 (Fla. 1st DCA 2000). Although we agree with DOT that the language in Amoco relating to the consideration of such claims at a supplemental hearing was not essential to the holding in the case and was consequently dictum, we find nothing in the court’s interpretation at variance with the statutory provisions. We also note that the Second District has expressly followed Amoco in Enterprising Professional Investment Corp. v. Department of Transportation, 29 Fla. L. Weekly D555 (Fla. 2d DCA Mar.5, 2004) (holding that a post-trial proceeding to recover attorney’s fees and costs under section 73.091(1) is a “supplemental proceeding” under section 73.092(2)). Moreover, it is clear from the transcript of the hearing that DOT was in fact disputing the owners’ entitlement to the expert witness fees here at issue, rather than the amounts. Accordingly, these expenses were recoverable as costs. See Seminole County v. Chandrinos, 816 So.2d 1241 (Fla. 5th DCA 2002); Dep’t of Transp. v. Patel, 768 So.2d 1173 (Fla. 2d DCA 2000).

We do agree with DOT that the lower court erred by failing to make the findings required by section 73.091(5), when it entered the order granting the motion to tax reasonable costs as to parcels 209/805. Section 73.091(5) specifically states: “The court shall make specific findings that justify each sum awarded as an expert witness fee.” (Emphasis added.) What “specific findings” means is an issue of first impression.

In the above order, the court listed only the total amount awarded each expert. In contrast, in the Order Taxing Supplemental Attorney’s Fees And Costs, the court listed the hours, rate, and total fee owed to each expert. DOT does not challenge the sufficiency of the findings in the latter order, and it appears from subsections (2), (3), and (4) of section 73.091 that these are the findings necessary for an award of expert witness fees. The case must therefore be remanded as to the awards entered in the order granting expert witness fees as reasonable costs as to parcels 209/805 for the purpose of reciting the findings required by the statute. The orders are otherwise affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, C.J., and VAN NORTWICK, J., CONCUR.

      . Subsection (2) provides that "[i]n assessing attorney's fees incurred in defeating an order of taking ... or other supplemental proceedings, when not otherwise provided for, the court shall consider” certain enumerated factors.


text:
    Janice B. HELTON, Appellant, v. BRISTOL-MYERS SQUIBB CO. and Aig Claim Services, Appellees.
    No. 1D03-2766.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    Richard Manno, Esquire, Orlando; Bill McCabe, Esquire, Longwood, for Appellant.
    Brian B. Bolton, Esquire, Brian T. Han-ley, Esquire and Sal A. Richardson, Esquire, Maitland, for Appellees.
   PER CURIAM.

The Judge of Compensation Claims denied the claimant’s request for a change in treating physicians. The JCC found that the claimant’s current work duties require her to drive for prolonged periods of time all over northern Florida, and ruled that “these intervening work activities” provide a basis to conclude that the “accident [supporting the original claim] can no longer be said to be the major contributing cause for the claimant’s symptomatology.” We affirm because there is competent substantial evidence to support the JCC’s ruling, and we reject the claimant’s remaining arguments without comment.

AFFIRMED.

WEBSTER, VAN NORTWICK and POLSTON, JJ., concur.


text:
    TALLAHASSEE MEMORIAL HEALTHCARE, INC., Appellant, v. Nicodemo MACRI and Joni M. Macri, as Personal Representatives of the estate of Jena Macri, deceased, Appellees.
    No. 1D03-2985.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.

      Cynthia S. Tunnicliff, Michael J. Thomas, Kory J. Ickler of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellant.
    Donald M. Hinkle of Hinkle & Foran, Tallahassee, for Appellees.
   PER CURIAM.

The evidence presented by appellees in this case supports the arbitrators’ award of future economic damages. See Andrews v. Reynolds Mem’l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).

AFFIRMED.

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


text:
    DeWayne McNAIR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0885.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    DeWayne McNair, pro se, petitioner.
    Charlie Crist, Attorney General, and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking belated appeal is granted. Petitioner shall be allowed a belated appeal of the order denying the defendant’s motion for postconviction relief and order denying rehearing in Alachua County Circuit Court case number 1995-CF-4534-CFC. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

BENTON, BROWNING and POLSTON, JJ., concur.


text:
    Elonzell W. SUGGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1074.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Linda Horton Dodson and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion as untimely. However, because the motion was filed within two years of his conviction and sentence becoming final, the motion was timely. See Gust v. State, 535 So.2d 642, 643 (Fla. 1st DCA 1988). Thus, the trial court had jurisdiction to consider the appellant’s motion on its merits and the trial court therefore erred in denying it as untimely.

We accordingly reverse the order and remand with directions to consider the petitioner’s motion on its merits.

REVERSED and REMANDED.

DAVIS, LEWIS and POLSTON, JJ„ concur.


text:
    Elvis THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1431.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    Elvis Thomas, pro se, petitioner.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Elvis Thomas is hereby afforded a belated appeal from the February 10, 2003, order of the Circuit Court in and for Duval County which denied his motion for postconviction relief in case number 96-10986-CF-A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    James D. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1775.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    James D. Smith, pro se, petitioner.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioner’s appeal in case number 1D02-2419 from an order denying a motion for postconviction relief was dismissed for failure to file an amended notice of appeal with a certificate of service showing service on the Attorney General. In the present petition, petitioner argues that he filed the amended notice of appeal within the time allowed by this court. However, this court did not receive the amended notice of appeal until after the appeal had been dismissed. In response to an order to show cause, the state concedes that petitioner’s appeal should not have been dismissed because petitioner alleged that he handed the required amended notice of appeal to prison officials within the permitted time frame. Therefore, we grant the instant petition and reinstate the appeal in case number 1D02-2419.

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


text:
    Randall L. ROLLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1863.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    Randall L. Rolle, pro se, petitioner.
    Charlie Crist, Attorney General; Edward C. Hill, Jr., Senior Assistant Attorney General; and Sheron Wells, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking belated appeal is granted. Petitioner shall be allowed a belated appeal of the February 12, 2004, judgment and sentence in Leon County Circuit Court case number 2002-4016-AF3. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BENTON, BROWNING and POLSTON, JJ., concur.


text:
    Robert N. MOSES, D.C., Petitioner, v. FLORIDA DEPARTMENT OF HEALTH, Respondent.
    No. 1D04-1876.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.

      Clyde W. Galloway, Jr., of Volpe, Baja-lia, Wickes, Rogerson & Galloway, Tallahassee, for petitioner.
    Charlie Crist, Attorney General, and Lee Ann Gustafson, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Dr. Robert N. Moses petitions this court for review of an action of the Department of Health which suspended his license to practice chiropractic medicine on an emergency basis. This emergency suspension order (ESO) purports to be authorized by section 456.074(4), Florida Statutes (2003), which permits the department to so act when a health care practitioner defaults on student loans, notice is given, and the matter is not corrected:

(4) Upon receipt of information that a Florida-licensed health care practitioner has defaulted on a student loan issued or guaranteed by the state or the Federal Government, the department shall notify the licensee by certified mail that he or she shall be subject to immediate suspension of license unless, within 45 days after the date of mailing, the licensee provides proof that new payment terms have been agreed upon by all parties to the loan. The department shall issue an emergency order suspending the license of any licensee who, after 45 days following the date of mailing from the department, has failed to provide such proof. Production of such proof shall not prohibit the department from proceeding with disciplinary action against the licensee pursuant to s. 456.073.

However, the only notice given to Dr. Moses was a “Pre-Notice Advisory” issued on December 20, 2002, which stated, among other things, that “[tjhis advisory is to notify you that in the future, you may receive a notice from the Department that your Florida license may be subject to immediate suspension unless you provide proof that new payment terms have been agreed upon by all parties to the loan.” This same “advisory” went on to recite that “the Florida Department of Health will be checking the DHHS list again in the near future in order to determine whether further action by the Department will be required. Your efforts to resolve this matter with the DHHS may result in the removal of your name from the DHHS list and prevent further action by the Department of Health against your professional license.”

The December 20, 2002, correspondence can only be regarded as a precursor to the actual notice required by statute which the department must issue before taking action under section 456.074(4), Florida Statutes. We are therefore compelled to agree with petitioner that the ESO is fatally defective in this respect. We also cannot conclude, independent of the legislature’s determination in section 456.074(4), that Dr. Moses’ failure to repay his student loans constitutes an “immediate serious danger to the public health, safety, or welfare.” See section 120.60(6), Florida Statutes (2003).

The petition is granted and the ESO is hereby quashed. This disposition is, of course, without prejudice to the department’s authority to file an administrative complaint against Dr. Moses and proceed in accordance with the non-emergency procedures set forth in chapter 120, Florida Statutes.

PETITION GRANTED.

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


author: ALTENBERND, Chief Judge.

text:
    Elpido A. AYALA, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-324.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.
    Elpido A. Ayala, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Elpido A. Ayala has filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(c) raising claims of ineffective assistance of appellate counsel. We deny the petition.

In the early morning hours of February 26, 2000, Mr. Ayala had a fight with Raul Yanez. At the time, they were living in the same apartment in Immokalee, Florida. Both men were intoxicated, and Mr. Yanez told an offensive joke. The joke generated an argument, and eventually Mr. Yanez apparently struck Mr. Ayala. One thing led to another and within a few minutes, Mr. Ayala plunged a large knife into Mr. Yanez’s chest. Mr. Yanez died in the parking lot of the apartment complex.

The State charged Mr. Ayala with one count of second-degree murder. The information alleged in part that Mr. Ayala “did unlawfully, by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, kill and murder [the victim] ... by stabbing the victim with a knife.” The information did not allege that the imminently dangerous act was either a voluntary act or an act of culpable negligence.

At trial, the State focused on the charged offense of second-degree murder. Mr. Ayala’s counsel primarily argued self-defense. When the parties and the trial court prepared jury instructions and verdict forms for this case, the State requested that, as the next lesser offense to second-degree murder, the trial court read to the jury the standard manslaughter instruction, which includes an instruction on both voluntary manslaughter and manslaughter by culpable negligence. See Fla. Std. Jury Instr. (Crim.) 7.7. This was a logical request because the schedule of lesser-included offenses in the standard jury instructions lists manslaughter as a category one lesser-included offense. See Fla. Std. Jury Instr. (Crim.) 7.4. Mr. Ayala’s counsel did not object to this request. Likewise, the parties agreed to a verdict form that gave the jury the option of finding Mr. Ayala guilty “of the lesser-included offense of manslaughter.” The form did not distinguish between voluntary manslaughter and manslaughter by culpable negligence.

During closing arguments, neither the State nor Mr. Ayala’s counsel relied to any extent upon the instructions that were about to be given on lesser-included offenses. Nevertheless, the jury returned a verdict convicting Mr. Ayala of the lesser-included offense of manslaughter. The trial court entered judgment on the verdict and imposed a downward departure sentence of 78 months’ incarceration.

On appeal, Mr. Ayala’s counsel filed a well-written brief that raised two issues on appeal. The brief did not raise any issue concerning these jury instructions or the verdict form. This court affirmed without written opinion. Ayala v. State, 834 So.2d 163 (Fla. 2d DCA 2002) (table decision).

Mr. Ayala has filed a timely petition alleging ineffective assistance of appellate counsel. He argues that his appellate counsel should have raised as error the trial court’s “merging of the voluntary and involuntary manslaughter instructions,” which he claims was fundamental error under Looney v. State, 756 So.2d 239 (Fla. 2d DCA 2000).

In Looney, this court reviewed a case in which manslaughter was the charged offense. The information alleged manslaughter by act and did not allege manslaughter by culpable negligence. Looney, 756 So.2d at 240. The trial court modified the standard instructions so that the jury received the standard instructions for manslaughter by act and also the definition of culpable negligence. Id. This court held that it was fundamental error to instruct the jury on a variety of manslaughter that had not been included within the information. Id.

Relying on Looney, this court initially granted Mr. Ayala relief in a reported opinion. Ayala v. State, 28 Fla. L. Weekly D2283 (Fla. 2d DCA Oct.3, 2003). We granted rehearing upon realizing that we had overlooked the supreme court’s opinion in Ray v. State, 403 So.2d 956 (Fla.1981). Accordingly, we withdrew that opinion. Ayala v. State, 2003 WL 22259691 (Fla. 2d DCA Nov.14, 2003).

In Ray, the supreme court held

that it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.

Ray, 403 So.2d at 961 (footnote omitted). This court followed Ray in Thomas v. State, 820 So.2d 382 (Fla. 2d DCA 2002), a case that is similar in many respects to Mr. Ayala’s case. In Thomas, we affirmed a conviction for driving under the influence (DUI) with serious bodily injury, even though this offense was not a permissive lesser-included offense of DUI manslaughter as charged in the information. Thomas, 820 So.2d at 384-85. Nevertheless, the offense of DUI with serious bodily injury was lesser in degree and penalty and the defendant had not objected to the instructions. Admittedly, this court has not always consistently followed Ray, but we recently receded from those cases that conflicted with Ray, and reaffirmed the principles announced in Ray. See Chambers v. State, No. 2D03-1716, 880 So.2d 696, 2004 WL 895856 (Fla. 2d DCA Apr.28, 2004).

In Mr. Ayala’s case, the instructions provided on manslaughter by act and manslaughter by culpable negligence were standard instructions that had not been modified as they were in Looney. Mr. Ayala did not object to these instructions. Either form of manslaughter was lesser in degree and penalty than the main charge of second-degree murder. Thus, Looney is not applicable in this case, and Ray controls.

Accordingly, we conclude that Mr. Ayala’s appellate counsel was not ineffective when counsel chose not to brief an issue as fundamental error when there was controlling precedent from the supreme court that would have prohibited this court from granting any relief to Mr. Ayala.

Denied.

NORTHCUTT and KELLY, JJ., Concur.

      . The author of this opinion wrote a concurrence in the original opinion. That concurrence contains a discussion of Looney and Taylor v. State, 444 So.2d 931 (Fla.1983), which is the product of a confused mind. It should not be relied upon except to confirm my fallibility.

      . Second-degree murder is a first-degree felony. § 782.04(2), Fla. Stat. (2000). Manslaughter, whether by act, procurement, or culpable negligence, is a second-degree felony. § 782.07(1), Fla. Stat. (2000).


author: CASANUEVA, Judge.

text:
    John C. KUTTAS, Appellant, v. Anne R. RITTER f/k/a Anne R. Kuttas, Appellee.
    No. 2D03-202.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.

      John Kuttas, Hartsdale, NY, for Appellant John C. Kuttas.
    Jeanne L. Coleman of Law Office of Jeanne L. Coleman, Tampa, for Appellee.
   CASANUEVA, Judge.

This unique case involves a modification of the child support aspects of a final judgment of dissolution of marriage. Both children concerned, two teenage boys, are affected by autism, one severely and the other mildly, as well as other behavioral and learning problems. The final judgment of dissolution provided for shared parental responsibility, with Ms. Ritter as the primary residential parent and Mr. Kuttas permitted liberal visitation. When Mr. Kuttas moved from Florida to Maryland without notifying Ms. Ritter in advance, Ms. Ritter filed a motion to modify child support on the ground that Mr. Kut-tas was no longer able to exercise visitation with the boys approximately every other weekend. The consequence of that move was that Ms. Ritter received no regular relief from taking care of these difficult children, and she moved the court to modify the child support award by departing upward from the guidelines based upon the children’s special needs. Mr. Kuttas contested the need for increased support and counterpetitioned for modification of the visitation aspects of the final judgment, requesting that he be allowed visitation for all of the summer months. After numerous motions and hearings, the trial court entered a final judgment modifying both child support and visitation; furthermore, the court ordered that Ms. Ritter was entitled to attorney’s fees associated with Mr. Kuttas’s failure to comply with an order on motion for contempt and for other bad faith conduct during the litigation. We affirm in part, reverse in part, and remand.

Substantial Change in Circumstances

Section 61.18(l)(a), Florida Statutes (2001), provides that a court has the authority to modify child support orders “when there is a substantial change in the circumstances of the parties.” See also Overbey v. Overbey, 698 So.2d 811, 813 (Fla.1997). Mr. Kuttas contends that the court erred in finding a substantial change in circumstances based simply on his move to Maryland and his concomitant inability to exercise weekend visitation, asserting that there is no correlation between visitation and child support. See Bassett v. Saunders, 835 So.2d 1198, 1200 (Fla. 1st DCA 2002) (citing section 61.13(4)(b), Fla. Stat. (2000), for the proposition that “visitation rights and the obligation for child support are unrelated”).

In another vein, Mr. Kuttas also argues that modification was inappropriate because his basic statutory guideline obligation after the move to Maryland was changed in an insignificant amount. As stated in the March 2001 order, Mr. Kut-tas’s basic statutory support obligation was $1040; following the final hearing, his basic obligation (if calculated correctly) increased only $53 to $1093.87 per month, a difference of only five percent. Furthermore, the March 2001 order provided: “Should the Former Wife incur child care costs, the Former Wife shall present proof of the child care expense and the Former Husband shall reimburse her within 14 days of receipt of the accounting.” Thus, Mr. Kuttas claims that there had been no substantial change in circumstances, in that the financial ramifications of his new employment were not substantial and a mechanism was in place by which Ms. Ritter would be compensated for child care costs.

Mr. Kuttas’s argument is without merit, however, not only because section 61.13(4)(b) speaks to a circumstance not present here — a noncustodial parent’s withholding of child support based on the custodial parent’s refusal to honor the noncustodial parent’s visitation — but also because this case presents a unique situation. After Mr. Kuttas moved to Maryland, Ms. Ritter sought for the first time an upward deviation from the child support guidelines based upon the children’s “[s]peeial needs, such as costs that may be associated with the disability of a child.” § 61.30(11)(a)(8), Fla. Stat. (2001). Both parents agreed that their children were disabled within the meaning of section 743.07(2), Florida Statutes (2001), and would require support beyond the age of majority. See Hanley v. Hanley, 734 So.2d 529, 530 (Fla. 4th DCA 1999) (affirming the requirement that the father continue to pay one-half of the private school tuition beyond the child’s eighteenth birthday because the trial court explicitly stated that the child’s special needs justified the expense). We agree with the trial court’s finding that the children’s special needs, which had not been a basis for a prior deviation from the guidelines, together with the impact of Mr. Kuttas’s relocation to Maryland, constituted a substantial change of circumstances justifying Ms. Ritter’s need for additional child support. We emphasize, however, that Mr. Kuttas’s voluntary relocation to Maryland would not constitute a substantial change in circumstances absent the other circumstances unique to this case.

Findings Related to Respite* Care

Although it was appropriate for the court to modify child support in an amount exceeding the child support guidelines based on the children’s special needs, there was no clear evidence in the record to support the conclusion that Mr. Kuttas’s additional obligation should be set at $526.52 per month. Although not spelled out in the order, it is clear from the hearings leading up to the entry of the final judgment that the court calculated Ms. Ritter’s additional need based on twenty-four hours of respite care for each of her children per month, at eighteen dollars per hour. From a total cost of $864 per month, the court required the husband to pay 60.94 percent, his percentage of the statutory obligation.

Without question, the record reveals that both of these parents love their children and want to spend time with them. But the testimony of both parents at the final hearing clearly demonstrates the difficulties inherent in parenting not one but two children with some degree of autism, aggression, learning and speech difficulties, and obsessive or compulsive behaviors.

Because of the severity of his mental and physical challenges, the older son, George, receives government-funded services, which include respite care for twelve to fifteen hours a week. On a regular basis, George, who was seventeen at the time of the final hearing, is taken out with other challenged teenagers for group activities and social events for a couple of hours on weekday afternoons and for four or five hours on Saturdays. Jacob, who was then fourteen, functions at a much higher level, and the parents anticipate that he will some day be self-supporting. Unlike George, he does not qualify for government-funded services. Furthermore, both parents testified that each boy tends to do somewhat better, exhibiting less aggression and acting out, when the other is not around.

Ms. Ritter testified that she could secure respite care for George at a cost of eighteen dollars per hour, but she specifically stated that she did not know how much it would cost for both boys to receive care simultaneously. There was no evidence concerning the availability or cost of respite care for Jacob, or, frankly, much evidence of his specific need for it. Therefore, the court’s method of doubling the hourly cost to arrive at a figure was arbitrary. See Rowland v. Rowland, 868 So.2d 608 (Fla. 2d DCA 2004) (holding that the record did not support an award of additional support based on the child’s special needs because the child had not been attending a learning center in the months before the trial and the mother was awaiting additional information that would evaluate the extent of the child’s needs). Furthermore, a representative from the agency providing services to George testified that their agency does not provide overnight respite care under any circumstances on the theory that it is the parents’ function to provide basic care for the children. It is clear, however, from a post-final hearing transcript, that the trial court’s decision to provide additional support based on twenty-four hours of care did not necessarily assume or require that Ms. Ritter would use it only for twenty-four consecutive hours each month. Therefore, we cannot say that the court abused its discretion in finding a need for twenty-four hours- of respite care per month for George.

Because there was no evidence of cost as to Jacob’s respite care, however, we hold that the court erred in setting the additional support based upon a finding of a need for twenty-four hours of respite care for each child per month, at a cost of eighteen dollars per hour for each child. Furthermore, the trial court went on to find that Ms. Ritter “may use that support as she sees fit,” without specifically requiring that the funds be dedicated to respite care. The problem with this part of the order is that, although Ms. Ritter testified that it was expensive to have the children at home because of their tendency to be destructive and to eat large quantities of food, the trial court never specifically found that the need to deviate upward from the child support guidelines was based on anything other than the children’s need for respite care. Cf. Cifrian v. Cifrian, 715 So.2d 1068, 1071 (Fla. 4th DCA 1998) (reversing the trial court’s failure to deviate from the support guidelines because the record contained “ample evidence showing that the parties have incurred additional expenses in the past in meeting the needs of their handicapped daughter”). To the extent the order is based upon anything other than the children’s need for daytime respite services, it is unsupported by competent, substantial evidence. See Stock v. Stock, 693 So.2d 1080, 1083 (Fla. 2d DCA 1997) (holding that the presence of a child’s special need does not, in itself, satisfy the requirement that the court make specific findings; rather, the court must assess the situation in light of all other circumstances and explain why the guideline amount would be unjust or inappropriate).

We also hold that the court abused its discretion by declaring the increase in child support retroactive to the date of the filing of the petition for modification. Section 61.14(l)(a) states that “the court may modify an order of support ... by increasing ... the support ... retroactively to the date of the filing of the action or supplemental action for modification as equity requires, giving due regard to the changed circumstances or the financial ability of the parties or the child” (emphasis supplied). In this case there was no evidence that Ms. Ritter had used respite care or had even attempted to do so prior to the final hearing. Although we recognize that respite care for special needs children is not the same as babysitting or other kinds of child care, the financial considerations are similar. In Miles v. Champlin, 805 So.2d 1085, 1086 (Fla. 1st DCA 2002), the First District affirmed an order reducing child support payable to the mother, which was retroactive to the date of the father’s petition, because “it was uncontroverted that the children had not'incurred day care expenses for at least two years before the petition was filed.” Without evidence that Ms. Ritter had incurred charges for respite care prior to the final hearing, it was inequitable to require the husband to pay for seventeen months of increased support between the time of the filing of the petition and the final hearing.

Modified Visitation Scheme

We have discerned no error in the trial court’s modification of visitation so that Mr. Kuttas is entitled to visitation during all of the boys’ summer break from school, with the exception of the week following their dismissal from school for the summer and the week prior to their return to school in the fall. Furthermore, the trial court’s scheme for reduction of Mr. Kut-tas’s basic child support during the two summer months and the abatement of the additional support award comports with the intent of section 61.30(ll)(g).

Attorney’s Fees for Litigation of Contempt and Father’s Bad Faith

The original final judgment of dissolution was entered in 1993. The parties then filed a number of motions and stipulations concerning child support or visitation, resulting in modifications to the final judgment in 1996, 1998, and March 2001. Ms. Ritter’s petition in this case was filed in May 2001, and Mr. Kuttas’s counterpetition shortly thereafter. In July 2001, the matter was referred for family mediation, but Mr. Kuttas objected to the “stipulation” resulting from the mediation on the ground that his attorney had signed it without his authority. In a subsequent hearing, Mr. Kuttas’s attorney verified that he had acted without first securing his client’s consent. Nevertheless, Mr. Kut-tas’s conduct in objecting to the stipulation formed the basis on which Ms. Ritter alleged that she was entitled to an award of attorney’s fees for bad faith.

Meanwhile, before the final hearing, the court, on Ms. Ritter’s motion, entered an order compelling Mr. Kuttas, a lieutenant colonel in the Army Reserve, to provide Ms. Ritter with his telephone numbers, including his home phone number, and details of his military assignments, such as his unit number and its location, the name of his commanding officer, and any other information that would allow her to communicate with Mr. Kuttas in the event that there was an emergency or a need for him to help make decisions concerning the autistic children. Because Mr. Kuttas provided his cell phone number and the name of the commander of the company to which he was attached, rather than his home phone number and the name of the two-star general to whom he reported, Ms. Ritter moved to hold him in contempt for violating the order. The court did so at the final hearing and awarded Ms. Rit-ter attorney’s fees for litigation of that motion in an amount to be determined. However, the court denied Ms. Ritter’s motion for fees under chapter 61 for litigation of the motion to modify child support.

Mr. Kuttas now challenges Ms. Ritter’s entitlement to attorney’s fees for contempt and bad faith. The trial court, however, reserved jurisdiction to determine the amount of fees. An order determining entitlement to fees without setting an amount is a nonfinal, nonappealable order. See Argento v. Argento, 842 So.2d 182 (Fla. 2d DCA 2003); McIlveen v. McIlveen, 644 So.2d 612 (Fla. 2d DCA 1994). We would observe, however, that we have some reservations about both orders.

As to the contempt, we recognize that Mr. Kuttas technically violated the order compelling him to provide certain information. However, it is undisputed that Ms. Ritter suffered no harm from this violation. When she needed to reach him in an emergency, she called his cell phone, which he answered. They also apparently communicated somewhat frequently by e-mail. This court would never sanction the deliberate violation of a court order, but when the trial court ultimately assesses fees for contempt, it would be appropriate for it to consider those factors — the technical violation and the lack of harm — in mitigation. In Gauthier v. Gauthier, 768 So.2d 1119, 1120 (Fla. 2d DCA 2000), this court, emphasizing the equitable nature of proceedings under chapter 61, quoted the following pertinent observations of the Florida Supreme Court in Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997):

Under [chapter 61], the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.

As to the bad faith allegation, it is not entirely clear that the court has yet even decided that Ms. Ritter is entitled to fees on that basis. Paragraph 20 of the order states that the court “will entertain the Former Wife’s request for attorneys’ fees and costs associated with her allegations of the Former Husband’s bad faith conduct during the pendency of this litigation, at a subsequent hearing.” Should the trial court ultimately determine that there has been bad faith, it must do so based on specific findings. Furthermore, because Mr. Kuttas’s attorney has admitted that he signed the stipulation without any authority from his client, the trial court should also identify the degree of culpability, if any, attributable to the attorney or to Mr. Kuttas. Commenting on the inherent authority of a court to assess attorney’s fees against an attorney for bad faith conduct, the Florida Supreme Court observed the following in Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002):

[T]he trial court’s exercise of the inherent authority to assess attorneys’ fees against an attorney must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees. Thus, a finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings.

Only then would it be appropriate for the court to assess fees, if any, against Mr. Kuttas and/or his attorney.

Conclusion

We reverse the order modifying the final judgment of dissolution of marriage in the following respects: (1) Mr. Kuttas’s basic statutory child support obligation is $1093.87 per month. The court must recalculate any other amounts that derive directly from the basic support obligation. (2) The finding that the husband is to contribute an additional $526.52 per month to Ms. Ritter for the special needs and respite care of the children, which Ms. Ritter may use as she sees fit, is reversed. On remand, the trial court shall make a specific determination as to each child’s need for and the cost of respite care. If the court includes an additional amount for other special needs of the children, it must provide an evidentiary basis for doing so. (3) The provision that the increase in child support shall be retroactive to the date of filing, April 26, 2001, is stricken, as is the calculation of arrearage stemming from that finding. In all other respects, the order is affirmed.

Affirmed in part; reversed in part; and remanded.

FULMER and NORTHCUTT, JJ., Concur.

      . We have discovered only one case from this or any other jurisdiction with somewhat similar facts. In Hamilton v. Hamilton, 107 Ohio App.3d 132, 667 N.E.2d 1256, 1258 (1995), the mother sought a deviation from the child support guidelines based upon the father’s failure to exercise regular visitation with their severely handicapped daughter. Because the mother had little free time for herself and thus was "assuming both temporal and financial obligations for the handicapped child,” id. at 1258, she requested that the father be ordered to exercise regular visitation or pay an increased amount of child support so that she could secure respite care. Observing that child support and visitation are independent, the appellate court reversed the trial court's order forcing the father to exercise his visitation but affirmed the decision to modify the support award based on the need for respite care.


author: SILBERMAN, Judge.

text:
    In the Interest of D.D., R.D., Q.H., T.S., and M.W., children. M.D., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-1498.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.
    J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.
    No appearance for Appellee.
   SILBERMAN, Judge.

M.D., the Mother, appeals the order terminating her parental rights to the following four of her five children: D.D., born December 26, 2000; R.D., born July 24, 1999; M.W., born November 15,1995; and T.S., born September 15, 1989. Because some of the trial court’s findings are not supported by any evidence and others are not supported by clear and convincing evidence, we reverse the order terminating the Mother’s parental rights and remand for further proceedings.

The Department of Children and Family Services (the Department) filed a petition seeking to terminate the Mother’s rights pursuant to section 39.806(l)(c) and (e), Florida Statutes (2002). Following an evi-dentiary hearing, the trial court entered an order terminating the Mother’s parental rights pursuant to section 39.806(l)(e), which states that “[a] petition for termination of parental rights may also be filed when a child has been adjudicated dependent, a case plan has been filed with the court, and the child continues to be abused, neglected, or abandoned by the parents.” The trial court also found, based on the eleven factors contained in section 39.810, that termination was in the manifest best interests of the children. The trial court did not address termination under section 39.806(l)(c).

The Mother contends that reversal of the termination order is required because the trial court failed to make the necessary findings to support termination and because several of the trial court’s findings are not supported by clear and convincing evidence. Although the trial court specifically referred to termination under section 39.806(l)(e), the Mother argues that the evidence and the trial court’s findings are insufficient to support termination under either section 39.806(l)(c) or (e). The Department affirmatively elected not to file a brief in response.

To support the termination of parental rights, the Department must prove by clear and convincing evidence one of the grounds for termination contained in section 39.806 and that termination is in the manifest best interests of the child pursuant to section 39.810. V.W. v. Dep’t of Children & Family Servs. (In re L.B.W.), 863 So.2d 480 (Fla. 2d DCA 2004); T.M. v. Dep’t of Children & Families (In re K.M.), 788 So.2d 306 (Fla. 2d DCA 2001); see also § 39.809(1) (requiring that each of the elements necessary for termination be established by clear and convincing evidence). Additionally, the court must determine that termination “is the least restrictive means of protecting the child from serious harm.” V.W., 863 So.2d at 483 (quoting Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991)).

Although the termination. order tracks many of the allegations contained in the Department’s petition, several of the trial court’s findings are not supported by clear and convincing evidence. For example, the trial court found that the Mother “gave the children non-prescribed medication in order for them to sleep.” The Department’s petition included that allegation, but the Department failed to present any evidence to support it. Additionally, even though the teenage daughter, T.S., made that allegation to the Department, she did not testify at trial, the Department never verified the allegation, and the Mother denied the allegation at trial. Thus, no evidence supported this finding.

The trial court further found that the Mother “has an anger management problem which limits her ability to properly parent her children,” citing to an incident in 1999 which occurred before the Mother successfully completed an anger management program. Even though the record contains some evidence to support this finding, it also contains substantial evidence establishing that the Mother successfully completed her anger management classes, that she is “low risk” for violence and has stress coping abilities, and that she is intelligent and has no psychiatric problems. Based on our review of the record, we conclude that the trial court did not have clear and convincing evidence before it to support its finding.

The trial court also found that the Mother “failed to substantially comply with her Case Plan.” Although the petition for termination included this allegation, the testimony of Department witnesses at the termination hearing established that the Mother had completed her case plan. Thus, the evidence contradicts the trial court’s finding.

The trial court then found that the Mother “has failed to benefit from the completion of any tasks” required under the case plan. Although a Department counselor testified that the Mother completed the tasks in her case plan, he stated that he did not feel the Mother benefited from them. He based this belief on the fact that the children had been removed from the Mother in May 2002. However, our examination of the record reflects that some of the allegations that led to the removal of the children in May 2002 were not verified by the Department and the other allegations did not provide clear and convincing evidence supporting the trial court’s finding that the Mother did not benefit from the case plan tasks.

Next, the trial court made findings, pursuant to section 89.810, that termination of the Mother’s parental rights was in the manifest best interests of the children. We agree with the Mother’s contention that the trial court did not have clear and convincing evidence to support four of the eleven findings concerning manifest best interests.

Those four findings are as follows: (1) “[t]he biological parents do not have the ability or disposition to provide the necessary food, clothing, medical care, or other material needs of the children,” see § 39.810(2); (2) “[t]he biological parents do not have the capacity to care for the children and the children’s safety, well[-]being and physical, mental and emotional health would be endangered if the children were returned to the custody of the biological parents,” see § 39.810(3); (3) the children’s “present and future mental and physical health needs require care by the childrens’ [sic] custodian, which the biological parents are not able to provide,” see § 39.810(4); and (4) “[t]here are limited emotional ties between the children and the biological mother,” see § 39.810(5).

The trial court’s findings did not specifically state how the Mother failed to have the ability, disposition, or capacity to care for the children, and based on our review of the record we conclude that the trial court did not have clear and convincing evidence to support these findings. See K.R. v. Dep’t of Children & Family Servs. (In re C.V.T.), 843 So.2d 366, 368 (Fla. 2d DCA 2003) (reversing and remanding for further proceedings when termination order contained vague findings regarding neglect and inability to provide for the child when the record was unclear as to what evidence the trial court relied upon to make the findings). We are particularly troubled by the finding that the Mother had “limited emotional ties” with her children. To the contrary, Department witnesses, including a therapist for M.W., a foster parent for M.W., and the guardian ad litem, testified to the strong bond between the Mother and the boys.

Because the trial court’s findings described above are not supported by clear and convincing evidence, we reverse the termination of the Mother’s parental rights to D.D., R.D., T.S., and M.W. and remand for further proceedings. On remand, the trial court shall determine whether the children’s current situation justifies termination, based on clear and convincing evidence, or whether the Department should provide a case plan with a goal of reunification. See J.T. v. Dep’t of Children & Family Servs. (In re T.B.), 819 So.2d 270, 273 (Fla. 2d DCA 2002).

Reversed and remanded.

FULMER and COVINGTON, JJ., Concur.

      . We can only speculate whether the Department's decision not to file a brief reflects its belief that (1) the case is a clear affirmance, or (2) the case clearly warranted reversal, but it chose not to file a brief at all rather than to concede error. In either case, the Department’s failure to file a brief does not assist this court in its determination of whether reversible error occurred.


author: CANADY, Judge.

text:
    Kristie JIMENEZ, Appellant, v. Iris Evette SIMON, Harry Scott, Lynda Smith, Eddie Smith, and Hannah Lewis, Appellees.
    No. 2D02-5835.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.
    Alan M. Medof, North Miami Beach, for Appellant.
    Sidney M. Crawford of Sidney M. Crawford, P.A., Lakeland, for Appellee Iris Everett Simon.
    Charles E. McKeon and Lorieann M. Haas of Law Offices of Charles E. McKeon, P.A., Tampa, for Appellees Lynda Smith and Eddie Smith.
    No Appearance for Appellee Harry Scott.
   CANADY, Judge.

Kristie Jimenez, the plaintiff in a personal injury action, appeals the dismissal with prejudice of her suit. The trial court imposed the dismissal as a sanction for discovery violations. Because we conclude that the discovery violations were solely the result of the neglect of counsel for Jimenez, we reverse the dismissal of Jimenez’s claims.

I. BACKGROUND

Jimenez filed an action against the ap-pellees seeking damages for injuries allegedly sustained as the result of an automobile accident. The dismissal of Jimenez’s claims arose from motions for sanctions filed by appellee Iris Evette Simon and appellees Eddie and Lynda Smith. These motions were based on Jimenez’s failure to attend a compulsory medical examination scheduled for September 3, 2002. Jimenez’s failure to attend the September 3 examination followed a series of other admitted discovery violations, including Jimenez’s failure to attend a medical examination scheduled for August 14, 2002.

On August 27, 2002, the trial court had imposed a sanction in the amount of $350 for Jimenez’s failure to attend the earlier scheduled examination. Jimenez’s counsel was then given multiple reminders of the examination scheduled for September 3, but Jimenez nonetheless failed to attend. Prior to Jimenez’s failure to attend the medical examinations scheduled for August 14 and September 3, Jimenez had for an extended period of time failed to comply with orders of the trial court granting motions to compel with respect to interrogatories and requests for production of documents. In addition, the trial court had imposed sanctions for Jimenez’s failure to attend mediation as ordered by the court.

In their motions, the appellees relied primarily on Jimenez’s failure to attend the September 3 examination; the appel-lees also cited the history of prior violations. The trial court’s order granting the motion to dismiss was based primarily on Jimenez’s failure to attend the September 3 examination but also recited the entire history of violations.

The record contains no evidence that Jimenez’s failure to attend the medical examination scheduled for September 3 was the result of anything other than the failure of counsel for Jimenez to inform her of the scheduled examination. Similarly, there is nothing in the record showing that the earlier violations were attributable to anything other than the failures of Jimenez’s counsel. In the trial court proceedings and on appeal, Alan M. Medof, counsel for Jimenez, has taken full responsibility for Jimenez’s failure to attend the September 3 examination, as well as for the earlier violations. There is nothing in the record to rebut counsel’s assumption of responsibility.

II. ISSUE ON APPEAL

Jimenez argues that her failure to attend the scheduled medical examinations as well as the other rule violations were wholly the fault of Jimenez’s counsel and, therefore, were not a proper basis for the imposition of the most severe sanction of dismissal. The appellees contend that the record establishes a pattern of disregard for the discovery rules and court orders and that such conduct — even if it is not attributable to the personal misconduct of Jimenez — -justified the dismissal of Jimenez’s claims. Thus, the question we must answer here is whether the sanction of dismissal for discovery violations is appropriate where those violations are solely the result of counsel’s dereliction.

III. ANALYSIS

Florida Rule of Civil Procedure 1.420(b) provides, in pertinent part: “Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.” The dismissal of an action pursuant to this provision is subject to review under the abuse of discretion standard. See Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) (holding, in case where trial court entered default judgment against defendant for failure to comply with discovery order, that abuse of discretion “test should apply to the discretionary power of the trial court to grant sanctions”); Carr v. Reese, 788 So.2d 1067, 1070 (Fla. 2d DCA 2001) (“We recognize that a trial court’s decision imposing sanctions for discovery violations must be affirmed unless the trial court abused its discretion in imposing the sanction at issue.”).

In Elder v. Norton, 711 So.2d 586, 587 (Fla. 2d DCA 1998), we held that it is not within the scope of a trial court’s discretion to impose the sanction of dismissal on a defendant for discovery violations when the defendant bears no direct personal responsibility for those violations. In Elder, we reversed the trial court’s order dismissing the plaintiffs medical malpractice action as a sanction for a series of discovery violations. Although there was an acknowledged “four[-]year history of non-compliant conduct on the part of [the plaintiffs] attorney!,]” we concluded that “[t]he trial court abused its discretion in dismissing [the plaintiffs] claim absent evidence indicating [the plaintiff] assumed an active role in abusing the discovery process.” Id. We held that in cases where there is “no evidence of misconduct on the part of’ the litigant “[t]he sanction of dismissal is all too drastic and severe” and that in such cases “[t]he trial attorney, rather than his or her client, must be the object of sanctions.” Id.

We relied in Elder on Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), where the supreme court adopted a “set of factors” for “determining whether dismissal with prejudice is warranted” for failure to comply with the rules of civil procedure. Among the six factors enumerated in Ko-zel was “whether the client was personally involved in the act of disobedience.” Id. In Kozel, dismissal was imposed for counsel’s failure to file an amended complaint until more than five months after the due date. The court stated that, “the [trial] court’s decision to dismiss the case based solely on the attorney’s neglect unduly punishes the litigant and espouses a policy, that this court does not wish to promote.” Id. It reversed the dismissal and remanded to the trial court for consideration under the newly adopted six-factor test. Our decision in Elder was based on the understanding that the factor in Kozel relating to the client’s personal involvement in the failure to comply is effectively to be read as a requirement that the client must personally be involved in the failure to comply in order for the sanction of dismissal to be imposed. See also Schlitt v. Currier, 763 So.2d 491, 492-93 (Fla. 4th DCA 2000); Cole v. Bayley Prods., Inc., 661 So.2d 1299, 1300 (Fla. 4th DCA 1995).

Under Elder, the absence of a showing in the record that the client had some direct personal responsibility for the discovery violations requires that the dismissal of the client’s claims be reversed. See also Rose v. Fiedler, 855 So.2d 122, 127 (Fla. 4th DCA 2003) (“[H]aving found no evidence of client knowledge or involvement in the attorney misconduct, we reverse the dismissal and remand so that the trial court may consider appropriate sanctions.”); King v. Macaleer, 774 So.2d 68, 69 (Fla. 2d DCA 2000) (reversing dismissal of complaint imposed for violation of discovery orders and relying on “principle that ‘[a party] should not be made to suffer the loss of viable claims due to [its] attorney’s malfeasance where there is no evidence in the record to indicate that [the party] personally engaged in misconduct’ ” (quoting Walicki v. Waste Mgmt., Inc., 703 So.2d 1095, 1096 (Fla. 2d DCA 1997))); cf. Schlitt, 763 So.2d at 493 (reversing order striking pleadings for discovery violations and remanding for “an evidentiary hearing on the question of [the defendant’s] notice or knowledge of his attorney’s conduct and, if knowledge is found, for a finding as to whether the actions were willful and deliberate”).

IV. CONCLUSION

Since there was “no evidence of misconduct on the part of’ Jimenez, we conclude that the “sanction of dismissal is all too drastic and severe.” Elder, 711 So.2d at 587. The dismissal of Jimenez’s action therefore is reversed, and the trial court is directed to consider sanctions other than dismissal and to proceed with the consideration of Jimenez’s claims.

Reversed and remanded for further proceedings.

VILLANTI, J., and SEXTON, SUSAN, Associate Judge, Concur.

      . See Fla. R. Civ. P. 1.360.

      . We also note that rule 1.380(b)(2) provides that "[i]f a party ... fails to obey an order to provide or permit discoveiy, including an order made under ... rule 1.360, the court may make ... [a]n order ... dismissing the action.” In the instant case, the trial court had not entered an order requiring that Jimenez attend the scheduled medical examination on September 3.

      . The factors adopted by the supreme court were in large part derived from Judge Alten-bernd’s dissent in Kozel v. Ostendorf, 603 So.2d 602, 605 (Fla. 2d DCA 1992).


text:
    STATE of Florida, Petitioner, v. David C. BUDINA, Respondent.
    No. 2D04-1284.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.

      Earl Moreland, State Attorney, Sarasota, and Brian A. Iten, Assistant State Attorney, Bradenton, for Petitioner.
    Gregory S. Hagopian of Gregory S. Ha-gopian, P.A., Bradenton, for Respondent.
   PER CURIAM.

On the State of Florida’s petition for writ of certiorari arising from a criminal prosecution, we are required to address the trial court’s refusal to comply with one of this court’s prior orders. Our prior order quashed the trial court’s order denying the State’s motion to continue the jury trial of David C. Budina that had been scheduled for March 29, 2004. On remand, the trial court entered a second order denying the State’s motion to continue the trial. Because our prior order became the law of the case, the trial court was foreclosed from revisiting the issue of whether the State was entitled to a continuance of the March 29 trial date. For this reason, we grant the State’s second petition for writ of certiorari and once again quash the trial court’s order.

The pertinent events began in the trial court on March 16, 2004, when the State filed a motion to continue Mr. Budina’s jury trial that was then scheduled to commence on March 29, 2004. In its motion, the State asserted that on March 11, 2004, it had received Budina’s Second Reciprocal Discovery Response in which Mr. Budina listed two witnesses from Broward County, one witness from Orange County, one witness from New Jersey, and one witness whose whereabouts were identified as “address unknown.” On March 16, 2004, the trial court entered an order that denied the State’s motion. On March 23, 2004, the State filed an Emergency Petition for Writ of Common Law Certiorari and a Motion to Stay Proceedings with this court. Mr. Budina subsequently filed a response stating that he had no objection to the entry of an order granting the State’s petition. On March 25, 2004, this court issued an order granting the petition for writ of certiorari, quashing the trial court’s March 16 order, denying the motion to stay as moot, and remanding the case for further proceedings. Since the trial was scheduled to begin on March 29, this court sent copies of the order by facsimile transmission to the trial court and to counsel for the State and Mr. Budi-na. On the morning of March 26, 2004, a Friday, the trial court conducted a hearing to re-schedule Mr. Budina’s trial. The prosecutor proposed a June trial date. Defense counsel suggested a date in July as “safer” but did not object to a June date. The trial court responded that trial was set for March 29, the original trial date. After the prosecutor pointed out that this court had quashed the trial court’s order denying a continuance of the trial that had previously been scheduled to begin on March 29, the following occurred:

THE COURT: They quashed the order. They remanded it for further proceedings. I’m ' conducting further proceedings. They didn’t stay the proceedings. They didn’t reverse .it and remand it and tell me to continue the case. They just remanded it for further proceedings. These are the further proceedings.
MR. ITEN [the prosecutor]: Your Honor, the State submits that the Court should have granted or found that the trial court departed from the essential requirements of the law in denying the motion. If anything, we have now additional witnesses that were listed since the Court denied the motion last.
THE COURT: Well, maybe the [District [Court of Appeal] didn’t have the benefit of my reasoning the last time, because I don’t know what was said to them.
MR. ITEN: I’ll show the Court.
THE COURT: This time I have a written order that I’ll send to them. So this can go up there.
And I have put in here, “Should this order be appealed to the Second District Court of Appeal and that court feels the lower court has departed from the essential requirements of law or abused its discretion, then perhaps that court will offer guidance as to how long the case should be delayed.”
So that’s the final paragraph in there. So I’ll get some direction from the Second District should they decide that the case should not go to trial next week.

The trial court rescheduled Mr. Budina’s trial for March 29 despite being advised by defense counsel that he had released his trial witnesses in reliance on our prior order. At the conclusion of the hearing, the trial court entered a written order denying the motions for continuance filed by the State and the defense. The final paragraph of the order contained the particular language referenced by the trial court during the course of the hearing.

Later that day, the State filed with this court its Second Emergency Petition for Writ of Common Law Certiorari and Motion to Stay Proceedings. On the afternoon of March 26, 2004, this court granted the motion to stay pending our further order.

The unusual circumstances of this case compel us to address the trial court’s noncompliance with this court’s prior order. In our prior unpublished order, this court granted the State’s petition for a writ of certiorari on the merits. This court was not required to decide on the merits the issue raised in the petition, but we exercised our discretion to do so. Our decision on the merits necessarily meant that we found that the State met its “heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm.” State v. Pettis, 520 So.2d 250, 252 (Fla.1988) (quoting committee note to Florida Rule of Appellate Procedure 9.130). Because the order that was quashed met the certiorari standard, the trial court should have been aware — without further explanation — that its denial of the State’s motion for continuance was a clear departure from the essential requirements of law that resulted in harm to the State that could not be remedied in a later appeal.

Nevertheless, after consideration of our prior order and to the evident surprise of counsel for both parties, the trial court entered the order under review that had the same effect as the prior quashed order. The only difference between the quashed order and the order under review was the addition of the trial court’s “reasoning” concerning why a continuance of the impending trial was unwarranted.

Initially, we note that the trial court’s remarks at the hearing reflect confusion concerning both the effect of an order granting a petition for certiorari and the function of a stay pending review. This court does not “reverse and remand” in an order granting a petition. Instead, we “quash and remand,” which is what our order of March 25, 2004, did. See ABG Real Estate Dev. Co. of Fla., Inc. v. St. Johns County, 608 So.2d 59, 64 (Fla. 5th DCA 1992) (noting that a court’s certiorari review power is limited to quashing the order reviewed). The trial court also observed that this court did not “stay the proceedings.” This court cannot stay action in the trial court except pending review in this court. Because our order of March 25, 2004, was a disposition, this court could not stay the proceedings.

More to the point, upon the entry of this court’s prior order, our decision quashing the trial court’s order that denied the State’s motion for continuance became the law of the case. “Under the law of the case doctrine, all questions of law decided by an appellate court become the law of the case and, except in extraordinary circumstances, must be followed in subsequent proceedings in both the trial court and the appellate court.” Tiede v. Satterfield, 870 So.2d 225, 227-28 (Fla. 2d DCA 2004) (citing Brunner Enters., Inc. v. Dep’t of Revenue, 452 So.2d 550 (Fla.1984)). Thus our prior order foreclosed the trial court from revisiting the issue of whether the State was entitled to a continuance of the trial scheduled to begin on March 29, 2004. The trial court had no authority to enter another order reinstating the March 29 trial date either as a stratagem designed to compel this court to reconsider the issue or for any other reason. In short, the trial court was obligated to obey our prior order. We remind the trial court that just as it has a right to expect that attorneys and parties before it will respect its orders until reversed or vacated, this court is entitled to the same deference from the trial court. See State v. Lantz, 440 So.2d 446, 450 (Fla. 3d DCA 1983).

The petition for writ of certiorari is again granted. The trial court order of March 26, 2004, is quashed. This case is remanded for further proceedings, during which the trial court is directed to employ its reasoned discretion in setting a trial date that will allow the State to conduct appropriate discovery to prepare for trial.

Petition for writ of certiorari granted; order of March 26, 2004, quashed; and remanded for further proceedings.

DAVIS, COVINGTON, and WALLACE, JJ., Concur.


text:
    Jose Luis RANGEL-PARDO, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3758.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.
   CANADY, Judge.

Jose Luis Rangel-Pardo challenges the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Rangel-Pardo raised three grounds for relief. Because he makes a facially sufficient claim alleging ineffective assistance of counsel for failure to investigate and to interview a potential witness, we reverse and remand on ground one. We affirm on grounds two and three without comment.

In Robinson v. State, 659 So.2d 444, 445 (Fla. 2d DCA 1995), this court held that a facially sufficient motion alleging ineffective assistance of counsel for failure to investigate and to interview a potential witness should set forth the following: “(1) the identity of the prospective witness; (2) the substance of the witness’ testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial.” In his motion, Rangel-Pardo alleged that counsel failed to investigate Ms. Summer, the roommate of Ms. Jane Cook, a witness for the State. Ran-gel-Pardo further alleged that counsel knew or should have known that Ms. Summer could give testimony relevant to his defense. Ms. Jane Cook testified that Ms. Summer was also a witness to the incident. Rangel-Pardo alleged that Ms. Summer actually witnessed more of the incident than Ms. Cook and that Ms. Summer would have testified that one of the victims “came at” one of the defendants with a broken bottle, that another of the victims attacked one of the defendants with a baseball bat, and that a gun was fired from the house next door by a third man. Ran-gel-Pardo alleged that he was prejudiced by the omission of this evidence because his defense at trial was self-defense and this testimony would have assisted his defense.

In its order denying his motion, the trial court found that Rangel-Pardo was merely speculating that counsel was aware of Ms. Summers prior to trial and also speculating as to what her testimony would have been. The trial court supports its conclusion that Rangel-Pardo’s allegations were facially insufficient by a citation to the statement in Bruno v. State, 807 So.2d 55, 67 (Fla.2001), that “[m]ere speculation regarding possible error is not enough to satisfy Strickland.” Bruno, however, does not support the trial court’s conclusion. Bruno’s statement concerning “mere speculation” is an assessment of particular evidence adduced at an eviden-tiary hearing. There is nothing in Bruno suggesting that a motion seeking postcon-viction relief for trial counsel’s ineffective assistance in failing to investigate a prospective witness must set forth the specific basis for the movant’s knowledge of the allegations made in the motion. Nor does Robinson set forth such a requirement. Cf. Highsmith v. State, 617 So.2d 825, 826 (Fla. 1st DCA 1993) (“Our research has disclosed no authority for the state’s assertion that ... the defendant must provide specific details concerning the source of the [prospective] witness’s information and the reasons the witness would testify in the manner specified.”).

Rangel-Pardo’s claim on this ground is facially sufficient under Robinson. We therefore reverse the order of the trial court on ground one and remand for an evidentiary hearing.

Affirmed in part; reversed and remanded in part.

ALTENBERND, C.J., and FULMER, J., Concur.

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