author: PER CURIAM. PLEUS, J.,

text:
    ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellant, v. Coy A. KOONTZ, Jr., etc., Appellee.
    No. 5D02-4066.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2003.

      William H. Congdon, Palatka, for appellant.
    Michael D. Jones of Michael D. Jones, P.A., Winter Springs, for appellee.
   PER CURIAM.

This is a case claiming inverse condemnation of property by the St. Johns River Water Management District. The trial court entered judgment for the land owner, finding the acts and conduct of the District amounted to an unreasonable exercise of its police power. The District appealed. We dismiss this appeal for lack of jurisdiction. Although the order entered below was labeled a “Final Judgment,” it was not a final order. A final order is one which does not contemplate further judicial labor. McGurn v. Scott, 596 So.2d 1042 (Fla.1992). The instant order expressly contemplated further judicial labor when it remanded the matter to St. Johns Water Management District for further action pursuant to subsection 373.617(3), Florida Statutes. That subsection states:

If the court determines the decision reviewed is an unreasonable exercise of the state’s police power constituting a taking without just compensation, the court shall remand the matter to the agency which shall, within a reasonable time:
(a) Agree to issue the permit;
(b) Agree to pay appropriate monetary damages; however, in determining the amount of compensation to be paid, consideration shall be given by the court to any enhancement to the value of the land attributable to governmental action; or
(c)Agree to modify its decision to avoid an unreasonable exercise of police power.

After the agency chooses one of these alternatives, the statute expressly requires further judicial labor, as follows:

(4) The agency shall submit a statement of its agreed-upon action to the court in the form of a proposed order. If the action is a reasonable exercise of police power, the court shall enter its final order approving the proposed order. If the agency fails to submit a proposed order within a reasonable time not to exceed 90 days which specifies an action that is a reasonable exercise of police power, the court may order the agency to perform any of the alternatives specified in subsection (3).

§ 373.617(4), Fla. Stat. Accordingly, we dismiss the appeal.

APPEAL DISMISSED.

THOMPSON and ORFINGER, JJ„ concur.

PLEUS, J., concurs, and concurs specially, with opinion.

PLEUS, J.,

concurring specially.

I concur that we do not have jurisdiction and must dismiss this appeal. I write only to describe the extortionate actions of St. Johns Water Management District (St. Johns) in this case as shown in the trial below. I hope that upon remand to the District, it will agree to a reasonable option for the property owner. I also hope that the District will stop the extortionate demands on property owners which this case demonstrates.

This is the second time this dispute has been before this court. Koontz v. St. Johns River Water Management District, 720 So.2d 560 (Fla. 5th DCA 1998). In Koontz I, Koontz claimed that legislation which created the Econlackhatchee River Hydrologic Basin was an unconstitutional delegation of authority. He lost that fight, but in the alternative, Koontz claimed a regulatory taking. The trial court held the issue was not ripe for decision. We reversed on the ripeness issue and remanded for trial. On remand, the case proceeded to trial on the issue of a taking.

The evidence adduced at trial shows that Coy Koontz originally owned over 15 acres of land near the intersection of Highway 50 and the East-West Expressway. Due to intense development in this area, Koontz’s property has been significantly altered from its original state. The Department of Transportation previously condemned a portion of the property to accommodate the widening of Highway 50, leaving Koontz with 14.9 acres. The remaining land contains a 60 foot wide drainage ditch to accommodate highway runoff and is also bisected by a 100 foot wide power fine easement running parallel to and about 300 feet south of Highway 50. See attached sketch.

Koontz proposed to develop 3.7 acres closest to Highway 50, back to and including the power line easement. In order to develop his property, he sought a management and storage of surface waters permit to dredge three and one quarter acres of wetlands. A staffer from St. Johns agreed to recommend approval if Koontz would deed the remaining portion of his property into a conservation area and perform off-site mitigation by either replacing culverts four and one-half miles southeast of his property or plug certain drainage canals on other property some seven miles away. Alternatively, St. Johns demanded that Koontz reduce his development to one acre and turn the remaining 14 acres into a deed-restricted conservation area. Koontz agreed to deed his excess property into conservation status but refused St. Johns’ demands for offsite mitigation or reduction of his development from three and seven-tehths acres to one acre. Consequently, St. Johns denied his permit applications.

Koontz called three experts to testify regarding the need for additional mitigation. William Fogle was an engineer hired by Koontz to obtain the permits. Based on an environmental survey, Fogle concluded that the area Koontz wanted to develop was a “relatively insignificant wetland system with ... little wildlife value,” while the area Koontz was willing to give up was a “fairly significant wetlands system.” Thus, Fogle believed Koontz’s proposed mitigation was sufficient to offset any negative impacts to wildlife caused by the development.

Koontz also hired environmental consultant William Dennis to perform an environmental audit of the property in 2001. Dennis testified that Koontz’s property had been impacted by surrounding roads, a drainage ditch, a power line easement and urbanization. Based on the already impacted condition of the property, Dennis believed Koontz’ proposed development would cause “minimal” impact on wildlife. Consequently, Dennis opined that Koontz’s proposed onsite mitigation was reasonable and St. Johns’ demand for additional mitigation was unnecessary.

Koontz hired ecologist Jeffrey Churchill after the permit denials to evaluate his property and determine whether offsite mitigation was necessary. He found that the proposed development area was already impacted by a drainage ditch and a power line easement. On the other hand, Koontz’s proposed conservation area consisted of high quality wetlands. Churchill believed the onsite mitigation was sufficient to offset any impact to the development site and that offsite mitigation was unnecessary and “very excessive.” The offsite mitigation would not serve any substantial purpose. Based on the minimal amount of wildlife existing in the proposed development area, Churchill did not believe the project was contrary to the public interest.

Elizabeth Johnson, supervising regulatory scientist for St. Johns, reviewed the original permit application in 1994 and performed an onsite assessment. Although she did not observe any fish or wildlife onsite, she incredibly concluded that the proposed development would adversely affect físh and wildlife. Johnson conceded there were no fish on the property and conceded that she did not perform a wildlife survey on the property. Nevertheless, she maintained the property had significant habitat value. Johnson did not agree with Koontz’s environmental study, which concluded that the proposed development site’s habitat value had been “significantly altered and degraded” due to drainage of surface and subsurface water into the drainage ditch and severance of the property from other wetlands by existing roadways and utility line easements. On the contrary, Johnson decided that offsite mitigation would be required in addition to Koontz’s proposed onsite mitigation. When asked by Koontz’s attorney how performing offsite mitigation five or six miles away benefitted impacted wildlife on Koontz’s property, Johnson responded that “five or six miles is not a long way for a bird to fly.”

St. Johns’ demands for additional mitigation did not further any legitimate state interest. Koontz relied on three United State Supreme Court cases: Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), Nollan v. California, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987); and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). In Agins, the Supreme Court held that the application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests or denies an owner economically viable use of his land.

In Nollan, the Supreme Court reaffirmed the Agins standard, holding that a decision of the California Coastal Commission to condition the granting of a rebuilding permit on the grant of a public easement across the landowners property did not substantially advance a legitimate state interest. Elaborating on the “substantially advances a legitimate state interest” prong of Agins, the Supreme Court found that the building restriction lacked an “essential nexus” to advancing a legitimate state interest and instead constituted “out-and-out plan of extortion.” 483 U.S. at 837, 107 S.Ct. 3141.

In Dolan, the Supreme Court again struck down a building permit requiring the landowner to deed a strip of her land to the city for a public bicycle path. In doing so, the Court broadened the “essential nexus” test used in Nollan, stating that the city had to prove two elements: (1) that an “ ‘essential nexus’ exists between a legitimate state interest and the permit condition” exacted by the government; and (2) whether the degree of the exactions demanded by the government are “roughly proportional” to the projected impact of the proposed development.

In the instant case, the trial court correctly applied Dolan, finding that St. Johns failed to prove that conditioning the permits upon performing offsite mitigation had an essential nexus to a legitimate state interest or was roughly proportional to advancing that interest.

Koontz argued at trial that either of the alternatives proposed by St. Johns requires Koontz to dedicate a large portion of his land into a conservation easement pursuant to section 704.06, Florida Statutes (1993). This statute would allow St. Johns, or any other authorized government agency, charitable organization or trust, to “enter the land in a reasonable manner and at reasonable times to assure compliance” with the terms of the easement. § 704.06(4), Fla. Stat. (1993). Thus, St. Johns’ demands required Koontz to give up an important stick in his bundle of property rights, which is the right to exclude others from his property. Nolían, 483 U.S. at 832, 107 S.Ct. 3141. St. Johns’ argument that the final orders do not require a conservation easement, that onsite preservation could be accomplished with a simple deed restriction rather than a conservation easement, are disingenuous. The final orders require Koontz to preserve his land with a “conservation easement or deed restriction consistent with Section 704.06.” (Emphasis added). Section 704.06(2) states that conservation easements are “perpetual, undivided interests in property that may be created or stated in the form of a restriction, easement, covenant or condition in any deed....” Thus, whether expressed in the form of a deed restriction or easement, the final orders required the orders to be consistent with the statute, which provide for access onto the land by others.

I do not believe that Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54 (Fla.1994), City of Pompano Beach v. Yardarm Restaurant, Inc., 641 So.2d 1377 (Fla. 4th DCA 1994), rev. denied, 651 So.2d 1197 (Fla.), cert. denied, 515 U.S. 1144, 115 S.Ct. 2583, 132 L.Ed.2d 832 (1995), Dept. of Transp. v. Weisenfeld, 617 So.2d 1071 (Fla. 5th DCA 1993), or any other Florida case, limits takings claims solely to cases where a landowner is deprived of substantially all economically beneficial or productive use of his land. Such a narrow reading of takings law would run afoul of the Fifth Amendment’s takings clause, as applied to the states through the Fourteenth Amendment. As the Florida Supreme Court noted in Traylor v. State, 596 So.2d 957 (Fla.1992):

Under our federalist system of government, states may place more rigorous restraints on government intrusion than the federal charter imposes; they may not, however, place more restrictions on the fundamental rights of their citizens than the federal Constitution permits .... In any given state, the federal Constitution thus represents the floor for basic freedoms; the state constitution, the ceiling.

Id. at 961-962 (citations omitted). While Traylor dealt with the right to counsel, the court’s discussion of federalist principles applies to other constitutionally-protected basic freedoms, including the right to prevent the government from taking private property without just compensation. In other words, Florida courts, as the trial court did in this case, cannot permit more government interference in the takings area than is permitted under the Fifth Amendment. With this in mind, if Agins provides two methods for proving a taking, Florida courts cannot say there is only one method for proving a taking.

I also believe the trial court was correct to apply Agins, Nollan and Dolan. I also conclude that its findings are supported by competent substantial evidence. St. Johns failed to prove its requirement of offsite mitigation had any “essential nexus” to the proposed development or was “roughly proportional” to the development’s impact. Koontz’s experts testified that the offsite mitigation was unnecessary, excessive and did not relate to any legitimate state interest. When asked to explain the nexus between the offsite mitigation demand and the proposed development, the best that St. Johns’ expert could says was “five or six miles is not a long way for a bird to fly.” Instead of having any essential nexus to protecting fish and wildlife potentially impacted by Koontz’s development, I conclude, as Justice Scalia did in Nollan, that St. Johns’ demands for offsite mitigation were nothing more than an “out-and-out plan of extortion.”

      . We also note that the order was not an appealable non-final order. See Osceola County v. Best Diversified, Inc., 830 So.2d 139 (Fla. 5th DCA 2002).

      . Coy Koontz died after Koontz I was decided and his son, Coy Koontz, Jr., as personal representative of his father’s estate, became the plaintiff.


source: Caselaw Access Project

author: BROWNING, J.

license: Public Domain

text:
    Jenise CARNEY, Appellant, v. Roderick CARNEY, Appellee.
    No. 1D02-1903.

      District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Ron Weaver, Tallahassee, for Appellant.
    Samuel H. Lewis, Tallahassee, for Ap-pellee.
   BROWNING, J.

The former wife appeals a final judgment dissolving her 6-year marriage to the appellee/former husband. The appellant’s first and second issues on appeal relate, respectively, to the sufficiency of the evidence establishing Leon County Circuit Court jurisdiction over the parties and the subject matter, and to the trial court’s alleged reliance on an unsigned and (perhaps) false financial affidavit submitted by the appellee. The third issue challenges the appellant’s inability to present her case after she failed to appear at the dissolution final hearing, after receiving adequate notice of the date and time. We affirm the final judgment of dissolution of marriage on the authority of Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

It is unclear whether a court reporter was at the dissolution final hearing. No transcript of the hearing appears in the record on appeal, and the appellant has not filed a statement of the evidence. See Fla. R.App. P. 9.200(b)(4). The trial court’s finding that it had jurisdiction over the parties and the subject matter, and its distribution of the parties’ marital assets and liabilities, come to this court clothed with the presumption of correctness. Lafaille v. Lafaille, 837 So.2d 601, 604 (Fla. 1st DCA 2003). As the appellant, Former Wife has the burden to prepare and transmit a record, under Rule 9.200(e), sufficient to demonstrate that the trial court reversibly erred. Id.; Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983). Without a transcript of the dissolution trial or a statement of the evidence, we cannot meaningfully review the lower tribunal’s rulings challenged by the appellant. See Lafaille, 837 So.2d at 604; Damkohler v. Damkohler, 336 So.2d 1243 (Fla. 4th DCA 1976). Thus, we are “limited to a consideration of any fundamental error which appears on the face of the order.” Id. at 1243; Lafaille, 837 So.2d at 604. Finding no such fundamental error on the face of the record, we AFFIRM the final judgment of dissolution of marriage.

BARFIELD and WEBSTER, JJ. concur.


author: PLEUS, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Jeffery HARTER, Respondent.
    No. 5D03-3030.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    Ralph J. McMurphy, Wildwood, for Petitioner Department of Children and Families.
    Elizabeth Osmond, Brooksville, for Respondent.
   PLEUS, J.

The Department of Children and Families seeks certiorari review of a circuit court order entered in a commitment proceeding following a criminal prosecution. Respondent, Jeffery Harter, was found not guilty by reason of insanity and was involuntarily committed to the Department. The circuit court subsequently entered an order finding that Harter continued to meet the criteria for involuntary commitment. The court also found that Harter was in need of intensive treatment as a sexual offender and directed the Department to provide immediate treatment. The Department challenges this order and maintains that Harter has been placed in a secure forensic facility which is not equipped to provide sexual offender therapy. The Department contends that the circuit court bypassed the procedures of the Jimmy Ryce Act, and has ordered sexual offender treatment before Harter is released from his involuntary commitment for insanity. To comply with the court’s order, the Department would be required to either transfer qualified staff from its civil Jimmy Ryce facility to the facility where Harter has been placed, or transfer Harter to the civil Jimmy Ryce facility before the trial court has determined whether Harter can be released from his present commitment.

Although the Department was not a party to the criminal case or commitment proceeding, it has standing to seek certio-rari review of the circuit court order because it is affected by the order and no other remedy is available. The Department claims that the court exceeded its authority in directing it, as Harter’s legal custodian, to provide a specific treatment. Cf Department of Children and Families v. W.M.J., 849 So.2d 1147 (Fla. 5th DCA 2003); Department of Children and Families v. M.C., 847 So.2d 598 (Fla. 5th DCA 2003); Department of Children and Families v. E.M.S., 841 So.2d 621 (Fla. 5th DCA 2003).

Section 916.15(2), Florida Statutes (2002), states in pertinent part:

Every defendant acquitted of criminal charges by reason of insanity and found to meet the criteria for involuntary commitment may be committed and treated in accordance with the provisions of this section and the applicable Florida Rules of Criminal Procedure. The Department shall admit a defendant so adjudicated to an appropriate facility or program for treatment and shall retain and treat such defendant.

This statute gives the Department, not the committing court, authority to place and treat a defendant committed to its custody. See also Fla. R.Crim. P. 3.218(a). The court determines whether the defendant should be involuntarily committed, and retains jurisdiction to determine whether a committed defendant should continue to be hospitalized or released from commitment. See §§ 916.15(1) and 916.16(1), Fla. Stat. (2002); Fla. R.Crim. P. 3.217(b) and 3.218(b). The court, however, may not direct that a defendant be placed in a particular facility or receive a specialized treatment.

In Department of Children and Families v. Morrison, 727 So.2d 404 (Fla. 3d DCA), rev. denied, 741 So.2d 1136 (Fla.1999), a juvenile was charged as an adult with first degree murder, found incompetent to proceed to trial, and committed to the Department. The trial court in its commitment order directed that defendant be placed in a secure facility where there is no contact between juveniles and adult patients. The Third District Court of Appeal quashed the commitment order, holding that the trial court in committing the defendant could not direct the placement of defendant in a specific type of facility or issue instructions on the manner of treatment. Likewise, in the instant case, the trial court lacks authority to direct the Department to provide sexual offender treatment as part of Harter’s continuing commitment for insanity. We therefore grant the petition for writ of certiorari, and quash the order under review.

PETITION GRANTED; ORDER QUASHED.

SHARP, W., and GRIFFIN, JJ., concur.

      . See § 394.910, et seq., Fla. Stat. (2002).

      . In the above-cited juvenile cases, this court by certiorari reviewed orders in which children charged with delinquent acts equivalent to misdemeanors and found to be incompetent were committed to the Department of Children and Families with the goal of restoring their competency to proceed. A statute expressly prohibits juveniles so charged from being committed to the Department for restoration of competency. See § 985.223(2), Fla. Stat. (2002). This court therefore quashed the orders under review.


author: PER CURIAM.

text:
    K.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2558.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2003.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

PETERSON, THOMPSON and MONACO, JJ., concur.


text:
    A.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2228.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W„ and MONACO, JJ., concur.


text:
    Elliot ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1815.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2003.

      James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

PETERSON, PALMER and MONACO, JJ., concur.


text:
    Willie ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1620.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2003.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and PALMER, JJ., concur.


text:
    Louis BRAYMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3306.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2003.
    Louis Brayman, Immokalee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Cherry v. State, 781 So.2d 1040 (Fla.2000).

GRIFFIN, THOMPSON and TORPY, JJ., concur.


text:
    Tyrone JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2867.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See § 90.804(2)(d), Fla. Stat. (2000).

THOMPSON, PLEUS and ORFINGER, JJ., concur.


text:
    Silvio Andres PADILLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1498.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and SHEPHERD, JJ.
   PER CURIAM.

Silvio Andres Padilla appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We remand for further proceedings.

The trial court denied the instant motion as being successive. We conclude that the court misapprehended the state of the record. It is true that defendant-appellant Padilla had filed a previous pro se motion entitled “Amendment Information Pro-Se (Motion).” Because this pro se motion was filed after conviction but prior to sentencing, it would be properly viewed either as a pro se motion for new trial or a premature motion for postconviction relief. See Daniels v. State, 712 So.2d 765 (Fla.1998). Thus, we respectfully disagree with the trial court’s conclusion that the instant motion was impermissibly successive. We therefore remand for further proceedings.

On remand, the defendant is entitled to an evidentiary hearing on his claim that the aunt of the victim, Urania Alvarado, was a witness whose testimony would have exculpated the defendant. The defendant claims that he was at all times within the sight of Ms. Alvarado who would testify that the incident of sexual battery on the minor victim did not take place. We express no view on the merits of this claim, but say only that the defendant is entitled to an evidentiary hearing on it.

The defense concedes that the double jeopardy claims are without merit and need not be considered on remand.

Regarding the defendant’s remaining claims, the trial court may again deny the motion summarily if the record conclusively refutes the defendant’s claims, or alternatively must conduct a hearing. See Lasprilla v. State, 857 So.2d 1011 (Fla. 3d DCA 2003).

Reversed and remanded for further proceedings consistent herewith.


text:
    Julio Jose JORGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1960.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.

      Gustavo J. Garcia-Montes, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and WELLS, JJ.
   On Rehearing Denied

PER CURIAM.

Julio Jose Jorge appeals his conviction for trafficking in cocaine, contending that the evidence was legally insufficient. We affirm.

Police officers conducted a consent search of an automobile owned and driven by defendant-appellant Jorge. No one else was in the car. Within arm’s reach was an opaque grocery bag. Inside the bag was a clear bag containing cocaine. The detective testified that there was a strong odor emanating from the bag which he knew from experience to be the smell of cocaine. After the defendant was taken into custody he made a spontaneous statement to the detective that there were three packages and he took one to help out his family.

The defendant points to testimony by one of the police officers indicating that at some point prior to the traffic stop, the defendant had been driving another vehicle, and another person had been driving the defendant’s vehicle. Thereafter, the drivers changed places, and the defendant returned to his own vehicle. The defendant argues that the contraband could have been left in his car by the other individual, and that the evidence was insufficient to establish the defendant’s knowledge of the presence of the contraband.

We reject the defendant’s argument and conclude that the evidence was legally sufficient. The evidence was that the contraband was within arm’s reach; there was a noticeable odor emanating from the bag; and the defendant made an inculpatory spontaneous statement at the police station. Plainly the ease was properly sent to the jury. See Lynch v. State, 293 So.2d 44, 45-46 (Fla.1974); Garcia v. State, 854 So.2d 758, 762-64 (Fla. 2d DCA 2003).

The defendant takes the view that only circumstantial evidence supported defendant’s knowledge that cocaine was in the bag, but that is not so. At a minimum the defendant’s inculpatory statement is direct, not circumstantial, evidence establishing guilty knowledge.

The defendant relies on Williams v. State, 724 So.2d 1214 (Fla. 4th DCA 1998), but that case is clearly not on point. The question there was possession of a firearm which was equally accessible to two, if not three, car passengers and no other evidence connected any occupant to the gun. That is not the situation here.

Affirmed.


text:
    Monette Klein O’GRADY, et al., Appellants, v. Irwin POTASH, Appellee.
    No. 3D03-113.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Payton & Carlson, Miami, and Amy Koltnow, for appellants.
    Billbrough & Marks and Geoffrey B. Marks, Miami, for appellee.
    Before FLETCHER, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

On remand from O’Grady v. Potash, 824 So.2d 904 (Fla. 3d DCA 2002), rev. denied, 842 So.2d 845 (Fla.2003), the trial court found third party defendant, Monette Klein O’Grady, entitled to an award of attorney’s fees and costs in her favor under Section 57.105(1), Florida Statutes (1999). Without an evidentiary hearing to determine its applicability, however, the trial court went on to exclude counsel for third party plaintiff, Irwin Potash, from liability for such fees and costs under the “good faith” exception. § 57.105(1), Fla. Stat. (1999)(“However, the losing party’s attorney is not personally responsible if he or she acted in good faith, based on the representations of his or her client_”). We reverse that portion of the order excluding counsel for Potash from liability, and remand for an evidentiary hearing where counsel for Potash may present evidence, if any, that he acted in good faith based on the representations of his client.

Reversed and remanded.


text:
    PALATKA HOUSING AUTHORITY, Appellant, v. Barbara PERRY, Appellee.
    No. 5D03-1.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2003.
    David B. Shelton, J. Scott Kirk, and Thomas J. Slogar, of Rumberger, Kirk & Caldwell, Orlando, for Appellant.
    William H. Ogle, of Mayfield & Ogle, P.A., Ormond Beach and Edna L. Caruso and Dirán V. Seropian, of Caruso & Burlington, P.A., West Palm Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Sayih v. Perlmutter, 561 So.2d 309 (Fla. 3d DCA 1990).

SHARP, W., MONACO, JJ., and SMITH, M.T., Associate Judge, concur.


text:
    Kirk A. CANO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1573.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2003.
    James B. Gibson, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Kirk A. Cano, Gainesville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagen, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W„ and ORFINGER, JJ., concur.


author: WHATLEY, Judge.

text:
    Darrell D. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1248.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
    James Marion Moorman, Public Defender, and Maura J. Kiefer, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

We affirm Darrell D. Scott’s convictions and sentences but remand for correction of the judgment to reflect that Scott was convicted of armed robbery with a firearm under count I, not solicitation of armed robbery with a firearm.

Affirmed and remanded with directions.

SALCINES and CANADY, JJ., Concur.


text:
    The STATE of Florida, Appellant, v. Jose Adriano ORTIZ, Appellee.
    No. 3D02-2493.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2003.

      Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for Appellant.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for Appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

The State of Florida appeals from a trial court order dismissing a felony information against Jose Adriano Ortiz. We reverse the order of dismissal. See Fla. R.Crim. P. 3.191(b).

Reversed.


text:
    Michael H. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1821.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm Michael H. Miller’s conviction of sexual battery on a child under the age of twelve. We also affirm the trial court’s order declaring Miller to be a sexual predator. See Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003), review granted, No. 03-1321, 859 So.2d 514, 2003 WL 22884299 (Nov. 19, 2003); see also Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003). In doing so, we certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003) (holding Florida Sexual Predator’s Act, section 775.21, Florida Statutes (2000), to be unconstitutional as violating procedural due process).

AFFIRMED.

SAWAYA, C.J., PLEUS and ORFINGER, JJ., concur.


text:
    Bjarne F. NIELSEN, Appellant, v. Pavlo JOANNOU, Appellee.
    No. 5D03-654.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    Geoffrey B. Dobson, St. Augustine, for Appellant.
    No Appearance for Appellee.
   PLEUS, J.

This case involves specific performance of a contract to convey real property. Nielsen appeals a final summary judgment granting specific performance to the buyer, Joannou. He argues that the lower court erred in entering a final judgment while an interlocutory appeal in the same case was pending in this court. He also argues that the court erred in failing to add an indispensable party to the action. Joannou confessed error and did not file an answer brief.

Because we conclude that the lower court erred in entering a summary final judgment which violates Florida Rule of Appellate Procedure 9.130(f), we reverse and remand. The court below further erred in entering the final judgment without first joining an indispensable party. See Nielsen v. Joannou, 835 So.2d 1219 (Fla. 5th DCA 2003).

REVERSED and REMANDED.

PALMER and TORPY, JJ., concur.


author: GRIFFIN, J.

text:
    Morris THWEATT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-500.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    James Russo, Public Defender, and Blaise Trettis, Assistant Public Defender, Melbourne, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Morris Thweatt, appeals his sentence and judgment for robbery with a weapon. On appeal, appellant raises two issues. First, appellant challenges the legal sufficiency of Administrative Order 02-26 and argues that the county court judge did not have jurisdiction to preside over his felony trial and violation of probation hearing. Second, appellant maintains that the trial court erred in finding that he was guilty of violating his probation.

After review of the record, we conclude that we do not have jurisdiction to consider the first issue. In Wild v. Dozier, 672 So.2d 16 (Fla.1996), the supreme court held that district courts of appeal do not have jurisdiction to review administrative orders of judicial assignments. The supreme court explained:

Because of the vital role temporary judicial assignments play in the administration of our court system, this Court must have exclusive jurisdiction to review such assignments under its article V, section 2(a) authority to oversee the administrative supervision of all courts.

Wild, 672 So.2d at 18; Physicians Healthcare Plans, Inc. v. Pfeifler, 846 So.2d 1129, 1133 (Fla.2003).

Appellant’s arguments attempt to limit the holding of Wild to situations where the challenge to judicial assignments is brought by extraordinary writ in the supreme court. The supreme court’s holding in Wild, however, supports a broader reading than appellant suggests. Appellant’s argument, in effect, attacks the holding in Wild and requests that we adopt a position in opposition to clear supreme court precedent. “Where an issue has been decided in the Supreme Court of the state, the lower courts are bound to adhere to the Court’s ruling when considering similar issues.... ” State v. Dwyer, 332 So.2d 333, 335 (Fla.1976).

Considering appellant’s second issue, we find his arguments to be totally without merit and affirm.

DISMISSED in part; AFFIRMED in part.

SHARP, W., and MONACO, JJ., concur.


author: STEVENSON, J.

text:
    ROBERT C. MALT & CO., Appellant, v. CARPET WORLD DISTRIBUTORS, INC., Dick’s Carpet World Distributors, Inc., Richard Susco a/k/a Richard M. Susco, Barbara Susco a/k/a Barbara G. Susco, and Gerald A. Martin, Appellees.
    No. 4D02-3811.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.

      Richard S. Tolbert, West Palm Beach, for appellant.
    Richard R. Chaves of Boose Casey Cik-lin Lubitz Martens McBane & O’Connell, West Palm Beach, for appellee Gerald A. Martin.
   STEVENSON, J.

Robert C. Malt & Co. appeals the trial court’s order foreclosing a charging lien and disbursing monies that had been placed in the court registry. We reverse, finding that the trial court erred in disbursing the funds interpled into the court registry prior to the termination of the underlying action and a showing that the funds were generated for the client through the efforts of the foreclosing attorney’s services.

Malt & Co., as lessor, and Carpet World Distributors, as lessee, entered into a commercial lease agreement wherein Malt & Co. agreed to build and Carpet World agreed to lease, or possibly purchase, certain real property. Richard Suseo agreed to personally guarantee any shortfall in Carpet World’s net worth. The parties agreed that Carpet World would pay into escrow the sum of $50,000, to be held by Gerald A. Martin, Esq., the attorney for Carpet World.

Both Carpet World and Malt & Co. agree that Carpet World paid only $30,000 into Martin’s trust account pursuant to the parties agreement. Thereafter, Carpet World, through its attorney, sent notice to Malt & Co. purporting to rescind and cancel the commercial lease agreement, addendum, and escrow payment schedule. Malt & Co. filed a complaint against Carpet World, Susco and others, alleging that they breached the lease agreement. The complaint alleged that the parties’ agreement contemplated that the $50,000 in escrow would not be returned but, instead, applied towards either the purchase price, if the option to purchase was exercised, or consecutive monthly payments.

Because of the competing claims to the escrow funds, Martin, through his counsel, Boose Casey Ciklin Lubitz Martens McBane & O’Connell (Boose Casey), filed a motion to interplead the funds. Martin alleged that the funds deposited were not for the payment of legal services and that he had no interest in them. The trial court granted the motion and deposited the funds in the court’s registry.

Boose Casey later filed a notice of charging lien, alleging that it was retained to render legal services on behalf of Martin, Susco and Carpet World and had advanced costs based on the representation. Prior to the termination of the action, the trial court granted Boose Casey’s request to withdraw as counsel for Susco and Carpet World. Two weeks later, Boose Casey filed a motion to foreclose the charging lien and to disburse the funds in the court’s registry for the attorney’s fees incurred by Carpet World and Susco. The trial court granted the motion to foreclose, finding that Boose Casey had met all the requirements to impose a charging lien, that Boose Casey’s charging lien had priority over Malt & Co.’s claim to the monies in the court’s registry, and that Malt & Co. had no standing to challenge the charging lien.

First, we disagree with the trial court’s determination that Malt & Co. had no standing to contest the foreclosure of the charging lien. “The concept of standing has been defined in a broad sense as having a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.” Jamlynn Invs. Corp. v. San Marco Residences of Marco Condo. Ass’n, 544 So.2d 1080, 1082 (Fla. 2d DCA 1989). Here, the record establishes that Malt & Co. had a “sufficient stake” in the registry funds to establish standing. The parties agree that Carpet World’s $30,000 was deposited into Martin’s trust account pursuant to the contractual agreement. If it is later proven that all conditions precedent under the agreement for entitlement to the funds have been met, as Malt & Co. purports, then the money in the court registry will belong to it. This is enough to establish standing. See Martin Props., Inc. v. Fla. Indus. Inv. Corp., 833 So.2d 825 (Fla. 4th DCA 2002)(finding that the successful bidder at a foreclosure sale had standing to challenge the validity of the owner’s assignment of equitable right of redemption to a third party because if the assignment of equity was not valid, then the bidder would own the property).

We also conclude that the trial court’s finding that Boose Casey met all the requirements for the imposition of a charging lien was error. There is a fundamental difference between the perfection of a charging lien and the imposition of the lien on certain proceeds or property after it has been perfected. See Brown v. Vermont Mut. Ins. Co., 614 So.2d 574 (Fla. 1st DCA 1993). To impose a charging lien, a party must meet the requirements set forth in Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384-85 (Fla.1983), including the requirement that the parties had an understanding that payment of legal fees depends on recovery in the case or that payment will come from the recovery. See also Philip J. Padovano, 5 Fla. Prac., Civil Practice § 6.7 (2002 ed.)(stating that a charging lien may not be imposed unless the services actually resulted in a recovery of money or other property; otherwise, there would be no fund or property against which to impose the lien.). A charging lien cannot be imposed merely because the attorney provided legal services. See Correa v. Christensen, 780 So.2d 220 (Fla. 5th DCA 2001); Rocklin v. Cunningham, 739 So.2d 1215 (Fla. 4th DCA 1999); Cole v. Kehoe, 710 So.2d 705, 706 (Fla. 4th DCA 1998).

Boose Casey sought to impose a charging lien, not against the proceeds of any judgment or recovery, but on the court registry funds, which are the subject of ongoing litigation between Malt & Co, Carpet World, Susco and others. The monies were deposited into the court registry because there exist competing claims as to who owns the money, an issue yet to be determined. Because the charging lien was not attached to a judgment, settlement or some other tangible fruits of the attorney’s service, we find that the trial court erred as a matter of law in disbursing the funds.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

STONE and WARNER, JJ., concur.

      . There was an additional $5,000 paid to Martin’s trust account, which the parties seem to agree was not paid pursuant to the parties’ agreement.


text:
    Lorraine WALUKIEWICZ, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-415.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Lorraine Walukiewicz, Altamonte Springs, Pro Se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Lorraine Walukiewicz appeals a final order of the Unemployment Appeals Commission affirming a decision of an unemployment appeals referee that Ms. Wa-lukiewicz was disqualified from receiving unemployment benefits because she was discharged for misconduct connected with her work. We affirm.

The standard of review of an administrative agency’s adjudicative findings is whether the findings are supported by competent, substantial record evidence. If they are so supported, the findings may not be disturbed on appeal. See, Brown v. Unemployment Appeals Commission, 633 So.2d 36 (Fla. 5th DCA), review denied, 642 So.2d 1362 (Fla.1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995). Upon careful review of the record we conclude that the findings are supported by sufficient evidence. We cannot substitute our judgment for that of the referee.

AFFIRMED.

SHARP, W., MONACO, and TORPY, JJ., concur.


text:
    Joseph GLENN, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2666.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Joseph Glenn, Sr., Daytona Beach, Pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The appellant, Joseph Glenn, Sr., challenges the constitutionality of section 775.21, Florida Statutes (2000), on both procedural and substantive due process grounds. We conclude that the statute is not violative of due process for the reasons articulated by the First District Court of Appeal in Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2003), by the Fourth District Court of Appeal in Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003), and by the Second District Court of Appeal in Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), review granted, 859 So.2d 514 (Fla.2003). See also Kelly v. State, 795 So.2d 135 (Fla. 5th DCA 2001), review denied, 851 So.2d 729 (Fla.2003).

AFFIRMED.

SAWAYA, C.J., GRIFFIN and MONACO, JJ., concur.


text:
    Dantrell Deon RILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-3808.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Dantrell Deon Riley, Sneads, pro se.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is facially insufficient because it was not made under oath. See Fla. RApp. P. 9.141(c)(3)(F). Therefore, the petition is denied without prejudice for the petitioner to refile a proper sworn petition. See Ezell v. State, 778 So.2d 1071 (Fla. 5th DCA 2001); Harris v. State, 769 So.2d 529 (Fla. 5th DCA 2000); Hall v. State, 746 So.2d 544 (Fla. 5th DCA 1999).

Petition DENIED without PREJUDICE.

THOMPSON, PALMER, and ORFINGER, JJ., concur.


author: PALMER, J.

text:
    Kevin SKRIVER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-201.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Kevin Skriver appeals his judgment and sentence which were entered by the trial court after a jury found Skriver guilty of committing the crime of aggravated battery upon a pregnant person in violation of section 784.045(l)(b) of the Florida Statutes (2001). The State commendably and properly concedes that Skriver’s judgment and sentence must be reversed and this matter remanded for a new trial because the trial court reversibly erred in denying Mr. Skriver’s timely request for a jury instruction on the necessarily lesser included offense of battery. See Fla. Std. Jury Instr. (Crim.) Aggravated Battery. Accordingly, we reverse Mr. Skriver’s judgment and sentence and remand this matter to the trial court for a new trial. See Rodriguez v. State, 789 So.2d 513 (Fla. 5th DCA 2001)(holding that trial court’s failure to give requested jury instruction on necessarily lesser included offense of battery is reversible error).

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.


text:
    Roxanne R. CARLYLE, Appellant, v. TERRENCE CARLYLE, Appellee.
    No. 5D03-716.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Candace A. Hawthorne of Hawthorne Law Firm, P.A., Tavares, for Appellant.
    Bruce A. Saylor of Sellar, Sewell, Russ, Saylor & Johnson, P.A., Leesburg, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979) (holding that in appellate proceedings, where no transcript is provided, a trial court’s decision has the presumption of correctness, and the burden is on the appellant to demonstrate error).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    SURREY PLACE OF OCALA etc., et al., Petitioners, v. Gladys GOODWIN, etc., Respondent.
    No. 5D03-3353.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Anthony J. Russo, Anthony J. Fernandez, of Butler Pappas, Weihmuller, Katz, Craig, LLP, Tampa, for Petitioner.
    Brian L. Thompson, of Wilkes & McPIugh, P.A., Tampa, for Respondent.
   GRIFFIN, J.

Petitioners, Surrey Place of Ocala Partnership, L.B. Properties, Inc., J.L.D. Partnership and William P. Crain [“Surrey Place”], have petitioned this court for a writ of certiorari to quash an order of the trial court permitting the respondent to state a claim for punitive damages in the suit below arising out of a claim of injury to a resident of an assisted living facility operated by Surrey Place. Surrey Place contends that the trial court erred in failing to conduct a hearing prior to entry of its order granting the respondent’s motion for leave to amend its complaint to add the punitive damage claim.

The motion giving rise to the order on review consisted of some twenty-five pages of analysis and argument along with a series of depositions, exhibits and other record materials. It was also accompanied by the affidavit of a registered nurse. Some thirty days after it was filed, Surrey Place filed a detailed and thorough response of approximately the same length, provided an affidavit of a physician and filed numerous medical records in an effort to undermine the respondent’s punitive damage proffer.

Under section 768.72, Florida Statutes, the trial judge was charged with determining that there was a reasonable evidentia-ry basis to recover punitive damages. On September 11, 2003, the trial court entered its order granting the motion. In it, the court identified the aforementioned filings of the parties and indicated that its decision to grant the motion is “[biased upon a review of the file and the respective documents filed by each party.” The judge also observed that a hearing on the motion, even if permissible, was not mandated by statute.

Based on the foregoing, we find no merit to the petitioner’s claim that the trial court failed to follow the procedural requirements of Section 768.72 or has failed to afford Surrey Place procedural due process. See Solis v. Calvo, 689 So.2d 366, 368 (Fla. 3d DCA 1997); Strasser v. Yalamanchi 677 So. So.2d 22 (Fla. 4th DCA 1996).

PETITION DENIED.

THOMPSON and TORPY, JJ., concur.


text:
    Henry Lincoln SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3947.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Henry Lincoln Smith, Orlando, pro se.
    No Appearance for Appellee.
   PLEUS, J.

Henry Lincoln Smith has appealed the denial of his rule 3.850 motion without prejudice. The trial court found that defendant’s motion was facially insufficient. The motion states that it was sworn and subscribed by an Orange County Corrections officer pursuant to section 117.10, Florida Statutes, which authorizes correctional officers to administer oaths. In this case there is no statement that the facts in the motion are true and correct. Therefore, the trial court’s order must be affirmed. See, e.g., Katwaroo v. State, 837 So.2d 612 (Fla. 5th DCA 2003).

This court’s records also establish that the defendant is appealing the revocation of probation entered on July 9, 2003. This is also the subject of his rule 3.850 motion. Although the appeal was dismissed on October 22, 2003, for lack of any order of insolvency, it was reinstated on November 3, 2003. (Case No. 5D03-2896). The trial court therefore lacked jurisdiction to rule on the motion during the pendency of Smith’s direct appeal. See Daniels v. State, 712 So.2d 765 (Fla.1998); Hall v. State, 697 So.2d 237 (Fla. 5th DCA 1997).

In Daniels, the supreme court held that a ruling on the merits of a rule 3.850 motion when a direct appeal is pending is a nullity and therefore the appellate court should dismiss an appeal of such an order, rather than affirming. See also, Walk v. State, 707 So.2d 933 (Fla. 5th DCA 1998). However, in this case the trial court did not rule on the merits, but dismissed without prejudice. Our affirmance of the trial court is without prejudice to the defendant filing a proper motion with a sufficient oath after the mandate in Case No. 5D03-2896 has been rendered.

AFFIRMED WITHOUT PREJUDICE.

PETERSON and THOMPSON, JJ„ concur.


author: MONACO, J.

text:
    Omar S. WITT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3507.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Omar S. Witt, Blountstown, Pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Omar Sharif Witt, appeals the summary denial of his rule 3.850 motion based on the trial court’s determination that the motion was not timely filed. We conclude, however, that the motion was timely, and that Mr. Witt is entitled to a substantive consideration of his motion.

When Mr. Witt appealed his conviction of a number of felony offenses, this court issued a written opinion affirming the judgment and sentence. See Witt v. State, 780 So.2d 946 (Fla. 5th DCA), review denied, 799 So.2d 220 (Fla.2001). The trial court observed that the mandate that issued from this court was dated April 21, 2001, and that Mr. Witt did not file his rule 3.850 motion until July 21, 2003. The lower court, noting that more than two years had passed, denied the motion for failure to file within the limitation period articulated in rule 3.850(b). It appears, however, that Mr. Witt timely sought review of our decision in the Supreme Court, and that review was not denied by the high court until October 23, 2001. Nevertheless, the trial court declined to consider Mr. Witt’s motion on the merits.

Motions pursuant to rule 3.850 must be filed within two years “after the judgment and sentence become final in a noncapital case.” Fla.R.Crim.P. 3.850(b). If the movant appeals the judgment and sentence, they become final upon issuance of a mandate by a district court of appeal. See Beaty v. State, 701 So.2d 856 (Fla.1997). If, however, the Supreme Court has jurisdiction to review the decision of the district court of appeal, and if the movant seeks further review before that body, then finality is not reached until proceedings are concluded in the Supreme Court. See Perkins v. State, 845 So.2d 273 (Fla. 2d DCA 2003); cf., Huff v. State, 569 So.2d 1247 (Fla.1990).

Accordingly, in Jenkins v. State, 821 So.2d 1271 (Fla. 5th DCA 2002), we held that it was error to dismiss a 3.850 motion as untimely when it was filed within two years of a determination by the Supreme Court not to review a case in which it could exercise jurisdiction. See also Cargle v. State, 800 So.2d 698 (Fla. 1st DCA 2001). Compare Beaty (when a direct appeal is affirmed per curiam without opinion, the Supreme Court lacks jurisdiction to review, and a rule 3.850 motion must, therefore, be filed within two years of the mandate of the district court of appeal). It appears, therefore, that Mr. Witt’s 3.850 motion was timely, and that he is entitled to a substantive review of the motion. The State agrees.

We, therefore, reverse the dismissal and remand for consideration of the motion on the merits.

REVERSED and REMANDED.

ORFINGER and TORPY, JJ., concur.


text:
    Albert H. LAWHON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3826.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Albert H. Lawhon, Sanderson, pro se.

      No Appearance for Appellee.
   PER CURIAM.

We affirm the defendant’s sentence on the authority of Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). Accord Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002). We certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

AFFIRMED; CONFLICT CERTIFIED.

PETERSON, PLEUS and MONACO, JJ., concur.


author: CANADY, Judge.

text:
    DEPARTMENT OF REVENUE, Appellant, v. VAL-PAK DIRECT MARKETING SYSTEMS, INC., a Delaware corporation authorized to do business in Florida, Appellee.
    No. 2D02-2596.
    District Court of Appeal of Florida, Second District.
    June 27, 2003.
    Rehearing Denied Jan. 6, 2004.

      Charles J. Crist, Jr., Attorney General, and J. Clifton Cox, Assistant Attorney General, Tallahassee, for Appellant.
    Cass D. Vickers of Vickers Madsen & Goldman, LLP, Tallahassee, for Appellee.
   CANADY, Judge.

Val-Pak Direct Marketing Systems, Inc. (VPDMS), sued the Florida Department of Revenue (the Department), pursuant to section 72.011, Florida Statutes (2000), seeking a refund of sales taxes paid on printed advertising materials distributed by mail. VPDMS’s refund claim was based on its contention that the sales on which the taxes had been paid were covered by a sales tax exemption for certain advertising publications contained in section 212.08(7)(w), Florida Statutes (2000). VPDMS and the Department filed cross-motions for summary judgment. The trial court agreed that the sales in question were entitled to the statutory exemption, granted VPDMS’s motion for summary judgment, denied the Department’s motion for summary judgment, and entered final judgment in favor of VPDMS. The Department now appeals the decision of the trial court. Because we conclude that materials printed and distributed by VPDMS are not publications covered by the exemption in section 212.08(7)(w), we reverse the decision of the court below.

VPDMS is, as its name implies, involved in the business of direct mail marketing. VPDMS prints, collates, and mails in its “trademark blue envelopes” an assortment of separate items including fliers, order forms, coupons, business reply cards, and other similar, printed materials consisting exclusively of advertising. The package of printed advertising materials prepared and disseminated by VPDMS is referred to as Val-Pak. VPDMS operates through a franchise system in which its franchisees obtain orders from local businesses who wish to have their advertising materials printed and inserted in Val-Pak. The sales taxes for which VPDMS seeks a refund were remitted by VPDMS to the Department after being collected from VPDMS’s franchisees. VPDMS obtained assignments from its franchisees to pursue the refund claim on their behalf. VPDMS sought a refund of taxes paid for the period from September 1, 1994, through June 30, 1999, in the amount of $1,594,798.24. The Department determined that the actual amount of taxes paid during the pertinent period was $1,281,109.45 and denied any refund on the ground that the exemption claimed by VPDMS was not applicable.

The exemption for certain advertising publications found in section 212.08(7)(w) was first adopted in 1990. Ch. 90-132, § 93, at 491, Laws of Flá. Although certain amendments -to subsection (7)(w) have been made, ch. 96-320, §, 15, at 1526, Laws of Fla., the text of the portion of subsection .(7)(w) containing the exemption for advertising, publications has remained unchanged since its , adoption in 1990. Section 212.08(7)(w) provides:

Certain newspaper, ■ magazine, and. newsletter subscriptions, shoppers, and community newspapers. — Likewise exempt are newspaper, magazine, and newsletter subscriptions in which the product is delivered to the customer by mail. Also exempt are free, circulated publications that are published on a regular basis, the content of which is primarily advertising, and that are distributed through the mail, home delivery, or newsstands.

The first sentence after the heading of subsection (7)(w) applies to paid subscriptions to publications and is not relevant to VPDMS’s claim. The basis for VPDMS’s claim of exemption is in the following sentence, which provides an exemption from the sales tax for materials that satisfy all of five discrete requirements. For any item to be exempt under section 212.08(7)(w) it must be:

1. “free”;
2. a “circulated publicationO”;
3. “published on a regular basis”;
4. composed of “primarily advertising”; and
5. “distributed through the mail, home delivery, or newstands.”

There is no dispute that Val-Pak meets requirements 1, 4, and 5, but there is a vigorous dispute between VPDMS and the Department regarding whether Val-Pak meets requirements 2 (circulated publication) and 3 (published on a regular basis). Because we conclude that a proper understanding of requirement 2 resolves the issue on appeal, we will not address whether Val-Pak meets requirement 3.

The trial court’s decision that Val-Pak was entitled to the exemption was based on its conclusion that the content of Val-Pak was similar to the content of an exempt, newspaper-like publication or shopper known as the Th/rifty Nickel, which contained primarily or exclusively advertising. The court determined that the Thrifty Nickel was “materially indistinguishable from Val-Pak” and that there was no basis “for inferring a legislative intent” to exempt advertising materials such as the Thrifty Nickel, while denying exemption to advertising materials such as Val-Pak.

A final order granting a motion for summary judgment is subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Here the dispositive legal issue is whether the trial court correctly interpreted the scope of the statutory exemption from taxation. In determining whether the trial court erred in its interpretation of section 212.08(7)(w), we look to the commonly understood meaning of the words of the statutory text. Bryan v. Butterworth, 692 So.2d 878, 880 (Fla.1997) (citing Shevin v. Byron,- Harless, Schaffer, Reid & Assocs., 379 So.2d 633, 640 (Fla.1980), for conclusion that statutorily undefined term is to be given meaning “consistent with the most common understanding of the term”); Bryant v. State, 712 So.2d 781, 783 (Fla. 2d DCA 1998) (concluding that statutorily undefined term is to be interpreted in accordance with its “ordinary meaning or common understanding”).

The merit of the refund claim made by VPDMS depends on the meaning of the word publication. VPDMS’s claim that the term publication is synonymous with printed materials lacks merit because the common understanding of publication does not encompass items like the printed materials contained in Val-Pak.

The word publication — like most, if not all words — has a range of meanings. In some contexts, publication is a noun denoting the action of disseminating information. A salient example of this sort of usage of publication in a legal context is the use of the word to describe the act by which a defamatory statement is communicated. See Shafran v. Parrish, 787 So.2d 177, 179 (Fla. 2d DCA 2001) (stating that “publication requires that the allegedly defamatory statement be communicated to one other than the person defamed”). Section 212.08(7)(w), however, does not use publication to denote or describe an action. In the context of the statute, which exempts the sale of certain tangible items from the sales tax, the word publication can only be understood as a concrete noun — that is, a noun denoting a tangible item.

When used as a concrete noun, publication is commonly understood to mean “a published work,” Webster’s Third New International Dictionary 1836 (1993) (emphasis supplied), or “an issue of printed material offered for sale or distribution,” The American Heritage Dictionary of the English Language 1464 (3d ed.1992) (emphasis supplied). As these definitions indicate, publication is a word commonly used to describe newspapers, -magazines, and books. Contrary to the argument advanced by VPDMS, publication is not commonly understood as synonymous with printed materials. A publication may consist of printed material, but not all printed material constitutes a publication. A publication is presented in an identifiable form as a work or an issue. A published work or an issue of a publication necessarily has a unitary physical quality like the unitary physical quality of a newspaper, magazine, or book. Although it need not be bound together, a publication is identifiable- as a discrete physical item, such as a newspaper, magazine, or book.. An assortment of separate printed advertisements on separate pieces of paper inserted in an envelope cannot properly be described as a work or an issue and therefore is not a publication.

The trial court improperly relied on the similarity of the content of the shopper or newspaper-like publication known as the Thrifty Nickel and the content of Val-Pak in reaching its conclusion that Val-Pak is exempt from the sales tax. The fact that the- Thrifty Nickel and Val-Pak are both made up of advertising is not sufficient to establish that they are both entitled to the same treatment under the exemption. Subsection (7)(w) does require that items eligible for exemption be composed of “primarily advertising.” -But subsection (7)(w) goes beyond the content requirement— “primarily advertising” — and imposes a format requirement — “circulated publications.” And the format of Val-Pak does not meet the latter requirement. The differential treatment of the Thrifty Nickel and Val-Pak is not based — as the trial court suggests would be , necessary — -on “inferring a legislative intent.” On the contrary, the plain language of the statute requires that the Thrifty Nickel and Val-Pak be treated differently because they have different formats. The Thrifty Nickel is in the format of a publication; Val-Pak is not in the format of a publication.

Having concluded that the commonly understood meaning of publication is clear and that the operative statutory text is therefore unambiguous, we need proceed no further with our analysis. See Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002) (stating that “[tjhere is no need to resort to other rules of statutory construction when the language of the statute is unambiguous and conveys a clear and ordinary meaning”). But even if we were to concede that publication might also have a broader meaning — namely, a meaning synonymous with printed materials — two factors strongly militate against the more expansive reading of the term urged by VPDMS. First, tax exemptions are to be narrowly construed. Second, the pertinent words of the heading of subsection (7)(w) — “shoppers and community newspapers” — point to a narrow construction.

Doubtful language in a statutory provision granting a tax exemption is to be construed against the taxpayer. Sebring Airport Auth. v. McIntyre, 642 So.2d 1072, 1073 (Fla.1994); United States Gypsum Co. v. Green, 110 So.2d 409, 413 (Fla.1959). This is the converse of the rule that ambiguous statutory provisions imposing taxes are construed in favor of the taxpayer and against the taxing authority. Green, 110 So.2d 409; Dep’t of Revenue v. GTE Mobilnet of Tampa, Inc., 727 So.2d 1125, 1128 (Fla. 2d DCA 1999). These rules of construction do not require an unreasonably narrow reading of the text. They simply provide guidelines for interpreting terms or provisions that can reasonably be understood to have more than one meaning. If a reasonable reading of the provision can lead to both a narrower and a broader application of that provision, the rule of strict construction requires that the court adopt the narrower application. Cf. Premier Ins. Co. v. Adams, 632 So.2d 1054, 1057 (Fla. 5th DCA 1994) (noting that when an insurance policy is “ambiguous or fairly susceptible to two reasonable interpretations” the policy will be “construed strictly against the insurer”). Thus, even if publication could reasonably be understood to mean “printed materials,” that broad meaning of the term would be rejected under the strict construction canon in favor of the narrower meaning of the term and the more restrictive application of the exemption from taxation.

Our understanding of the meaning of publication is also supported by the language of the heading for section 212.08(7)(w), which consists of two distinct parts describing the items exempted by the subsection. The first part of the heading refers to “[c]ertain newspaper, magazine and newsletter subscriptions” and describes the items exempted by the first sentence of the text of subsection (.7)(w). The second part of the heading refers to “[c]ertain ... shoppersQ and community newspapers,” and describes the items exempted by the second sentence of the text of subsection (7)(w) — the portion of the subsection relevant to VPDMS’s claim. A shopper is defined as “a locally distributed newspaper of retail advertisements.” Random House Unabridged Dictionary 1769 (2d ed.1993). Both community newspaper and shopper are commonly understood to have meanings that would not encompass an envelope filled with separate pieces of printed advertising materials. The format of community newspapers and shoppers is entirely different from the format of Val-Pak.

VPDMS argues that the heading of subsection (7)(w) should not be used as a guide to interpreting the scope of the exemption. In support of its position, VPDMS relies on the decision in State v. Bradford, 787 So.2d 811 (Fla.2001), where the supreme court addressed an argument that a ¡fraudulent intent element should be read into a statutory provision. The statute in question prohibited the solicitation of insurance claims under certain circumstances, and the defendant asserted that a fraudulent intent element should be read into the prohibition because it appeared in a chapter of the statutes entitled “Fraudulent Practices” and in a section entitled “False and Fraudulent Insurance Claims.” The supreme court responded to this argument by citing State v. Bussey, 463 So.2d 1141, 1143 (Fla.1985):

The arrangement and classification of laws for purposes of codification in the Florida Statutes is an administrative function of the Joint Legislative Management Committee of the Florida Legislature. § 11.242, Fla. Stat.' (1983). The classification of a law or a part of a law in a particular title or chapter of Florida Statutes is not determinative on the issue of legislative intent, though it may be persuasive in certain circumstances. Where there is a question, established principles of statutory construction must be utilized.

Bradford, 787 So.2d at 819 (emphasis supplied). The supreme court went on in Bradford to hold that a fraudulent intent element should not be read into the statutory prohibition. Cf. Fajardo v. State, 805 So.2d 961, 963 (Fla. 2d DCA 2001) (recognizing that the “title of a legislative enactment"and;Tess frequently, the title within the codified statutes may be helpful in construing an ambiguous statute”).

The reference by the supreme court in Bradford and Bussey to the “arrangement and classification of laws for purposes of codification in the-Florida Statutes” is inapplicable in this case. The Division of Statutory Revision does establish certain chapter and section headings as part of the continuous revision system. § 11.242, Fla. Stat. (2002). Here the heading to section 212.08(7)(w), however, was not added in the statutory revision process; it was a part of the session law text originally adopted by the legislature. Ch. 90-132,. § 93, at 491; ch. 96-320, § 15, at 1526. Moreover, the heading to subsection (7)(w) is not a broad description of a variety of provisions as is almost always the case with the title of a chapter and frequently the ease with the heading of a lengthy section containing numerous subsections. Instead, the heading of subsection (7)(w) is the legislature’s detailed description of a relatively simple statutory subsection. As such, it can be viewed not simply as an aid to be used in construing the operative text, but as itself a part of the text that is to be construed. And it reinforces the conclusion — based on .the commonly understood meaning of publication — that Val-Pak is not a publication.

Since Val-Pak is not a publication under section 212.08(7)(w), the order of the trial court granting VPDMS’s motion for summary judgment and denying the Department’s motion for summary judgment is reversed and the case is remanded with instructions that the trial court enter summary judgment in favor of the Department.

Reversed and remanded with instructions.

STRINGER and SILBERMAN, JJ., Concur.


author: WELLS, Judge. LEVY, Judge

text:
    ALLIED ROOFING INDUSTRIES, INC., Appellant, v. Denilo VENEGAS, et al., Appellees.
    No. 3D02-2802.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.
    Rehearing and Rehearing En Banc Denied Jan. 20, 2004.

      David Harris Singer, Miami, and Maureen O’Donnell, for appellant.
    Charlton Stoner, Miami, for appellees.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   WELLS, Judge.

Allied Roofing Industries, Inc. appeals from an order of dismissal with prejudice. For the following reásons, we reverse.

In January 2002, Allied brought suit against Denilo and Sandra Venegas to foreclose a construction lien for labor and materials allegedly provided from August through the end of November 2000 to improve the Venegases’ home. The Vene-gases moved to dismiss the complaint claiming that Allied was a dissolved corporation that could' neither conduct business nor bring suit to foreclose a lien. The Venegases requestéd that the foreclosure action be dismissed “until such time as the Plaintiff dissolved corporation has complied with the statutory requirements for reinstatement....”

Although counsel .for the Venegases failed to appear at the hearing on their motion to dismiss, counsel for Allied appeared and asked the court to deny the motion because Allied was winding down its affairs and collecting its assets. The motion was denied.

The Venegases subsequently moved for reconsideration, claiming that Allied was not in the process of winding down its affairs, but was instead still actively engaging in business. The Venegases again asked that the foreclosure action be dismissed “until such time as the Plaintiff dissolved corporation has complied with the statutory requirements for corporate reinstatement and- is in fact reinstated.... ” The Venegases also asked the trial court to sanction Allied by dismissing the action because Allied’s “misrepresentation” regarding its corporate status related to a “factual matter that is central to the claimed rights at issue.... ” Allied sought to abate hearing on the motion pending expedited reinstatement of its corporate status.

On May 1, 2002, Allied’s corporate status was reinstated retroactive to September 22, 2000, the date on which it was administratively dissolved for failure to file annual reports. Despite Allied’s reinstatement, on July 17, 2002, the trial court vacated its earlier order denying the Vene-gases’ motion to dismiss and dismissed the foreclosure action with prejudice nunc pro tunc to March 21, 2002, the date of the first dismissal order. The grounds for the dismissal were two-fold: first, because Allied was a dissolved corporation at the time of the original hearing on the Vene-gases’ motion to dismiss, and second, because but for Allied’s misrepresentation that it was merely winding down, the court would have dismissed the action at that time. The court also discharged Allied’s lien and vacated its lis pendens. Allied timely appealed. We reverse.

Section 607.1622 of the Florida Statutes (2003) requires corporations to file annual reports with, and to pay fees and taxes to, the Department of State. Failure to do so deprives a corporation of the right to “maintain or defend any action in any court of this staté until such report is filed and all fees and taxes due ” are paid. § 607.1622(8), Fla. Stat. (2003)(emphasis added). Failure to file annual reports and to pay fees and taxes also subjects a corporation to administrative dissolution, as happened to Allied here. Id.

Under current Florida law, administratively dissolved corporations continue their corporate existence after dissolution, but may not carry on any business except that necessary to notify claimants and to wind up and liquidate business by collecting assets, disposing of properties, discharging liabilities and taking related actions, including bringing or defending legal proceedings associated with winding up or liquidation. See §§ 607.1421(3); 607.1405(1), Fla. Stat. (2003); Nat'l Judgment Recovery Agency, Inc. v. Harris, 826 So.2d 1034 (Fla. 4th DCA 2002); Cygnet Homes, Inc. v. Kaleny Ltd. of Florida, Inc., 681 So.2d 826 (Fla. 5th DCA 1996); see also K & M Shipping, Inc. v. Penel, 834 So.2d 876 (Fla. 3d DCA 2002). However, a corporation administratively dissolved for technical reasons may reinstate itself by filing a satisfactory current annual report. Such reinstatement “relates back to and takes effect as of the effective date of the administrative dissolution,” and treats the corporation as though it had never been dissolved. § 607.1422(2)-(3), Fla. Stat. (2003); Cosmopolitan Distribs., Inc. v. Lehnert, 470 So.2d 738, 739 (Fla. 3d DCA 1985) (“[t]he effect of section [607.1422, previously section 607.271(5) ], allowing'reinstatement at any time of a corporation which has been involuntarily dissolved for certain technical reasons, is to treat the corporation as though it has never been dissolved”).

The trial court could not, therefore, have dismissed Allied’s action on July 17, 2002. By that time, Allied had been reinstated nunc pro tunc to September 2000 and was entitled to maintain this action as though it had never been dissolved. Nor should the trial court have dismissed the action nunc pro tunc to the date of the first hearing (at a time at which Allied had not yet been reinstated).

The sanctions authorized for failing to file an annual report — involuntary dissolution and the inability to carry on any business, including bringing or defending a lawsuit, other than that necessary to wind up its affairs under sections 607.1420 and 607.1421 — are intended to benefit the State, not third parties outside the corporation/State relationship. Hence, the Venegases, “who are strangers to the dealings between plaintiff and the State, should not be allowed to take advantage of the plaintiffs default ... to escape their own obligations to the plaintiff....” Lehnert, 470 So.2d at 739-40, quoting J.B. Wolfe, Inc. v. Salkind, 3 N.J. 312, 70 A.2d 72, 76 (1949).

Where, as here, a corporation has failed to reinstate itself by the time of a hearing on a dispositive motion, consideration of that motion should be deferred to permit compliance:

A distinct but analogous inquiry is what ought to occur when the corporation itself lacks the legal capacity to properly bring suit. The answer to this latter inquiry is that in general, corporations lacking the ability to bring suit, due to a temporary impediment, have been given leave to remove the impediment. See Town of Davie v. Hartline, 199 So.2d 280 (Fla.1967) (where a corporate plaintiff paid its delinquent taxes during the pendency of the suit, but before final disposition of the suit, there was no occasion to dismiss); Industrial National Mortgage Company v. Blake, 406 So.2d 103 (Fla. 3d DCA 1981) (in suit brought by a corporation to contest tax assessments, corporate plaintiff which failed to file old reports and taxes given leave to do so and would be dismissed only if the errant corporation failed to file its over due reports and pay its back taxes within a reasonable amount of time); Ambassador Insurance Company v. Highlands General Hospital, 383 So.2d 254 (Fla. 2d DCA 1980) (corporation doing business in Florida which was not registered with the Department of State granted leave to qualify with the Department rather than being dismissed out of court); Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So.2d 1321 (Fla. 4th DCA), cert. denied, 362 So.2d 1051 (Fla. 1978) (corporation given leave to comply with fictitious name statute, but action eventually dismissed since corporation took too long to comply with statute). Thus, in cases where the entity, rather than the representative of the entity, lacks capacity to bring suit, Florida courts have not dismissed the corporation’s pleadings and treated them as a nullity, but have granted the corporation leave to remove pending impediments. ...

Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So.2d 247, 251 n. 8 (Fla. 3d DCA 1985) (emphasis added); see also Machado v. Foreign Trade, Inc., 478 So.2d 405, 409 (Fla. 3d DCA 1985) (holding that a trial court correctly refused to dismiss an action where administratively dissolved plaintiff corporation was reinstated before entry of final judgment), disapproved on other grounds, Cheek v. McGowan Elec. Supply Co., 511 So.2d 977 (Fla.1987); but see Irwin v. Gilson Realty Co., 117 Fla. 394, 158 So. 77, 78 (1934), criticized in, McNayr v. Cranbrook Invest., Inc., 158 So.2d 129, 130-31 (Fla.1963)(under former version of Florida corporations statutes, finding that the trial court had the power to dismiss any suit filed by an administratively dissolved corporation “as soon as the suit was filed”).

Whenever possible, cases should be determined on their merits, not on irrelevant technicalities. See, e.g., Puga v. Suave Shoe Corp., 417 So.2d 678, 679 (Fla. 3d DCA 1981) (en banc); see also Venero v. Balbuena, 652 So.2d 1271, 1272 (Fla. 3d DCA 1995) (“Florida policy dictates a preference that cases be decided on their merits”). - Here, Allied’s representations that it was entitled to maintain this foreclosure action because - it was in the process of winding up — as opposed to needing a short enlargement of time to reinstate itself— had nothing to do with Allied’s claim. Moreover, the Venegases clearly were not prejudiced either by Allied’s involuntary dissolution or by any delay associated with its reinstatement. Under these circumstances, Allied should not be deprived of the opportunity to be heard on the merits.

While Allied’s representations, even if intentionally inaccurate, are not condoned, the fact remains that had the trial court been accurately advised of Allied’s true status as of the March 21, 2002 hearing, the trial court should not have dismissed the complaint, but should have accorded Allied sufficient time in which to reinstate. In light of the principle that justice prefers decisions based on the merits, the sanction of dismissal for misinforming the court of Allied’s status is too extreme. See Garden-Aire Village Sea Haven, Inc. v. Decker, 433 So.2d 676, 678 (Fla. 4th DCA 1983) (“[a] sanction must be commensurate with the violation”). Accordingly, the order granting rehearing and dismissing this action with prejudice is reversed.

RAMIREZ, J., concurs.

LEVY, Judge

(dissenting).

I respectfully dissent.

It should be noted that the trial court did not dismiss the action nunc pro tunc to March 21, 2002 because of, as the majority suggests, an irrelevant technicality. Rather, the trial court dismissed the action because Allied, to be polite, falsely represented its corporate status for the purpose of keeping the action alive. As succinctly stated by the trial court in page two of its Order, “[Allied’s] factual misrepresentation to the Court was willful and ... the Court’s reliance upon it was central to the Court’s March 21, 2002 Order upon the rights at issue raised by the Defendants’ Motion to Dismiss ...” (emphasis added). It is true that Allied’s misrepresentation, according to the majority, “had nothing to do with [its] claim”. More importantly, however, it is also true that Allied’s misrepresentation had everything to do with, and was specifically made for the purpose of defeating, the Defendants’ Motion to Dismiss. For the foregoing reasons, I would affirm the Order under review. See, e.g., Hanono v. Murphy, 723 So.2d 892, 895 ,(Fla. 3d DCA 1998) (“a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends”).

      . This permits a reinstated corporation to bring suit on causes of action either existing at the time of its dissolution or accruing thereafter. Levine v. Levine, 734 So.2d 1191, 1197 (Fla. 2d DCA 1999).

        . This general rule is especially apropos here because the one year statutory period for filing a foreclosure action on Allied’s lien had ran and dismissal would effectively be with prejudice, forever barring a lien foreclosure action. See § 713.22(1), Fla. Stat. (2003).


author: SILBERMAN, Judge.

text:
    Shlomit GALPERIN, Appellant, v. Boris GALPERIN, Appellee.
    No. 2D02-3353.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.

      Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Elizabeth G. Mansfield of Carnal & Mansfield, P.A., St. Petersburg, for Appel-lee.
   SILBERMAN, Judge.

Shlomit Galperin, the Former Wife, appeals the trial court’s order increasing her child support obligation. First, she argues that the trial court erred by including as part of her income the alimony that she receives from Boris Galperin, the Former Husband. We find no error as to this issue and affirm without comment. Second, she argues that the trial court erred by making the upward modification of her child support obligation retroactive to the date that she filed a petition seeking modification of her obligation. We agree because the obligation should have been retroactive to the date that the Former Husband filed his petition for an increase in support, not the earlier date on which the Former Wife sought a reduction in her support obligation.

The Former Husband and the Former Wife were divorced in 1994. The trial court awarded shared parental responsibility of the parties’ minor children with their primary physical residence to be with the Former Husband, and it ordered the Former Wife to pay child support in the amount of $82 per month to the Former Husband.

On August 3, 2001, the Former Wife filed a petition to reduce her child support payments for various reasons, including that the oldest child had reached the age of majority. On February 25, 2002, the Former Husband filed a petition for an increase in the Former Wife’s child support obligation, alleging that the Former Wife was working and that the needs of the minor child had increased.

Following an evidentiary hearing, the trial court found that there had been a substantial change in circumstances as to the needs of the minor child and the parties’ earning capacities. The trial court calculated the Former Wife’s child support obligation pursuant to the guidelines to be $489.51 per month, an increase from her prior obligation of $82 per month. The trial court awarded the upward modification retroactive to “August 1, 2001 when [the Former Wife] filed her Petition for Modification of Support.” This created an arrearage in the amount of $4075.10, which the trial court ordered the Former Wife to pay at the rate of $97.90 per month.

The Former Wife correctly argues that a trial court may not make a child support modification retroactive to a date prior to the filing of the petition seeking that modification. See Wertheim, v. Wertheim, 667 So.2d 331, 332 (Fla. 1st DCA 1995); see also Snyder v. Linville, 659 So.2d 1373 (Fla. 2d DCA 1995). This is true even if the trial court had jurisdiction over the matter prior to the filing of the petition. See McDowell v. McDowell, 770 So.2d 1289, 1289 (Fla. 1st DCA 2000). The rationale behind this rule is that it is the filing of the petition that places the obligated party on notice of a potential increase in his or her support obligation. See Garrett v. Garrett, 707 So.2d 382, 383 (Fla. 5th DCA 1998).

Although the trial court eliminated the Former Wife’s obligation with respect to the child who had reached the age of majority, it granted the Former Husband’s request for an upward modification of support for the minor child. The latter relief was first contemplated in the Former Husband’s petition; thus, the trial court should have made the upward modification retroactive to the date of filing of the Former Husband’s petition.

Accordingly, we reverse the trial court’s order to the extent that it makes the upward modification of child support retroactive to the filing date of the Former Wife’s petition, and we remand with instructions that the upward modification be made retroactive to the filing date of the Former Husband’s petition. Because of the date change, the trial court must also recalculate the amount of the Former Wife’s ar-rearage.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and DAVIS, JJ., concur.

      . The record reflects that the Former Wife actually filed her petition on August 3, 2001. However, because the trial court should have made the modification retroactive to February 25, 2002, the date of filing of the Former Husband’s petition, the error does not affect the outcome of this appeal.


text:
    William H. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1516.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
    Stephen K Johnson of Stephen K. Johnson, P.A., Gainesville, for Appellant.
   CANADY, Judge.

William H. Johnson challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and his petition for writ of habeas corpus. We affirm without comment the denial of his rule 3.850 motion. Because Johnson makes a facially sufficient claim that his attorney agreed to file a postconviction motion on his behalf but failed to do so in a timely manner, we reverse the trial court’s denial of the petition for writ of habeas corpus and remand for an evidentiary hearing.

A prisoner’s claim that his attorney agreed to file a postconviction motion on his behalf but failed to do so in a timely manner should be presented to the trial court in a petition for writ of habeas corpus. Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999). In his petition, Johnson claimed that he asked his attorney to prepare a rule 3.850 motion and the attorney had agreed but failed to do so in a timely manner. This is a facially sufficient claim under Steele. The court in Steele stated: “[D]ue process entitles a prisoner to a hearing on a claim that he or she missed the deadline to file a rule 3.850 motion because his or her attorney had agreed to file the motion but failed to do so in a timely manner.” Id. at 934.

Because Johnson makes a facially sufficient claim under Steele, we reverse the denial of the petition for writ of habeas corpus and remand for the trial court to hold an evidentiary hearing. If Johnson is successful at this hearing, he is then authorized to belatedly file a rule 3.850 motion challenging his conviction or sentence. Steele, 747 So.2d at 934.

Affirmed in part, reversed in part, and remanded.

WHATLEY and WALLACE, JJ., concur.


author: DAVIS, Judge.

text:
    T.A., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2233.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 2003.
    Dennis J. Rehak, Fort Myers, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

In this juvenile delinquency appeal, T.A. challenges the trial court order entered pursuant to section 985.23(3)(c), Florida Statutes (2001), committing him to a high-risk residential program. We reverse.

T.A. entered a plea to a charge of robbery by sudden snatching. The charge arose from an incident in which either T.A. or his friend knocked money and a wallet out of the hand of a patron standing in line at a movie théater. - One of the two boys picked up the money and the wallet, and both ran away. Movie patrons and police officers chased and captured T.A. and his friend. During the chase, T.A. swam across a canal and refused to stop' when' ordered to do so by a law enforcement officer.

T.A. entered a negotiated plea to robbery by sudden snatching. The plea agreement provided that the State would not object to probation if the Department of Juvenile Justice (DJJ) recommended it. In the predisposition report and at the hearing, DJJ recommended that T.A. be placed on probation. However, the trial court committed T.A. to a secure high-risk program until age nineteen.

The court gave the following oral reasons.for not following DJJ’s recommendation: (1) Because T.A. had the benefit of probation in 1999, and T.A. was then before the court with a very serious third-degree felony, it would be in T.A.’s best interest to receive the structure and benefits of a commitment program; (2) T.A. was not in school; (3) T.A. was not working on a GED; (4) there was a substantial likelihood T.A. would reoffend without the benefit of a commitment program; and (5) the way the robbery was carried out was particularly egregious. The court gave the following written reasons for departing from DJJ’s recommendation: (1) the substantial likelihood of T.A. reoffending without the benefits of a commitment program; (2) the safety of the community; (3) the fact that T.A. was not attending school and did not work; and (4) the aggressiveness of the offense.

While the court is at liberty to disregard DJJ’s recommendations, it may not do so merely because it disagrees with that recommendation. AG. v. State, 737 So.2d 1244 (Fla. 5th DCA 1999). Rather, if the court chooses to override DJJ’s recommendation, it must provide reasons that are supported by a preponderance of the evidence. Id. We conclude that, in view of the findings contained in the predisposition report and the evidence revealed at the delinquency hearing, the trial 'court’s findings are not supported by competent, substantial evidence. We, accordingly, reverse.

The predisposition report reflected the following: (1) T.A. lived in a good neighborhood; (2) the emotional climate in the home was good; (3) T.A. had a good relationship with his father; (4) T.A. openly communicated with his father; (5) his father believed he could control T.A.; (6) T.A. reportedly exhibited good behavior in the home; (7) T.A. had a curfew that he kept; (8) T.A. did his chores; (9) T.A. denied involvement with gangs; (10) T.A. had a good relationship with his friends; and (11) none of T.A.’s friends were dealing in or using illegal substances. In addition, evidence was presented at the hearing that, although T.A. was not in school, he was working with his father in the construction business. Furthermore, although the trial court was concerned with the “aggressiveness of the offense,” our review of the evidence does not reveal whether it was T.A. or his friend who in fact knocked the movie patron to the ground.

In view of these circumstances, together with T.A.’s minimal prior record, we must conclude that the trial court’s reasons for overriding DJJ’s recommendation and committing T.A. to a more restrictive commitment are not supported by competent, substantial evidence. We reverse and remand for further proceedings.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ„ Concur.

      . Trial counsel for T.A. did not object to the disposition as being contrary to the' plea agreement nor has T.A. filed a motion to withdraw plea. Accordingly, we do not address whether the disposition is consistent with the negotiated plea agreement.