author: WELLS, Judge. COPE, J.

text:
    BROOKWOOD EXTENDED CARE CENTER OF HOMESTEAD, LLP, d/b/a Brookwood Gardens Convalescent Center, Appellant, v. AGENCY FOR HEALTHCARE ADMINISTRATION, Appellee.
    No. 3D02-3060.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.

      Powell & Mack and Theodore E. Mack, Tallahassee, for appellant.
    Gregory J. Philo, Tallahassee, for appel-lee.

      Before COPE, SHEVIN, and WELLS, JJ.
   WELLS, Judge.

Brookwood Extended Care Center of Homestead, LLP, d/b/a Brookwood Convalescent Center appeals from a final order denying its request for an administrative hearing. We reverse.

A. AHCA’s Survey

On April 12, 2002, the Agency for Health Care Administration (“AHCA”), the state agency responsible for licensing and regulating nursing homes, conducted its annual regulatory survey inspection of Brook-wood, a licensed nursing home. Following that survey, AHCA issued a detailed forty-eight page Statement of Deficiencies (a Form 2567-L), detailing fact-based instances of psychological abuse; lack of supervision and interventions to prevent wandering and aggressive behaviors; failure to investigate allegations of abuse, neglect and mistreatment; failure to ensure residents’ dignity and sense of individuality; failure to provide appropriate and effective activities to meet the needs of cognitively impaired residents; failure to maintain a clean environment; failure to keep the noise level tolerable; failure to individualize care plans for bladder and bowel management and to address aggressive, violent, and transitory behavior; failure to provide adequate nursing staff to prevent some residents from physically and psychologically abusing other residents; failure to ensure sanitary procedures to prevent food-borne illnesses; and failure to use administrative resources effectively to ensure appropriate and adequate interventions to prevent some residents from abusing others.

Based on observations and interviews with residents at Brookwood during the survey, AHCA determined that conditions at Brookwood presented a threat to the health, safety and welfare of the residents and imposed an immediate moratorium on new admissions to the facility. AHCA also filed a three count administrative complaint against Brookwood alleging that based on the annual survey, observations, interviews and record review, the facility failed (1) “to ensure that there was sufficient staff to provide nursing and related services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident” as required by law; (2) “to assess appropriate interventions and implement procedures to protect residents from occurrences of neglect and lack of supervision of residents with wandering and aggressive behaviors who have access to all areas of the facility”; and (3) “to use its resources effectively and efficiently to deter 17 wandering residents identified by the facility from going into other resident rooms uninvited and to prevent 10 facility identified abusive residents from physically and mentally abusing other residents.” The complaint, which detailed many of the facts stated in the Form 2567-L Statement of Deficiencies, sought assessment of a $6,000 survey fee, issuance of a conditional license, and imposition of a $75,000 administrative fine. The complaint expressly advised Brook-wood of its right to request an administrative hearing under sections 120.569 and 120.57 of the Florida Statutes and attached an explanation of rights.

B. Brookwood’s Petition for Administrative Review

In response to AHCA’s thirty-seven page complaint and forty-eight page Statement of Deficiencies, Brookwood filed a two-and-one-half page Petition for Formal Administrative Hearing to which copies of AHCA’s survey, the Statement of Deficiencies, moratorium order, and complaint were attached. That petition, in pertinent part, generally denied “each and every factual allegation set forth in the Statement of Deficiencies, the Order of Immediate Moratorium and the Administrative Complaint,” and alleged “that the ultimate facts will show that at all times pertinent to the licensure survey [Brookwood] was in compliance with all aplicable [sic] laws and regulations.”

In response to this Petition, AHCA issued an order to show cause to Brookwood advising that no administrative hearing could be granted from the Order of Immediate Moratorium, and because the Statement of Deficiencies Form 2567-L did not constitute agency action, it would not support administrative review. Brookwood was advised that its request for formal hearing relating to the Administrative Complaint failed to satisfy the requirements of Rule 28-106.201(2) of the Florida Administrative Code, which requires that formal hearing requests contain a “statement of all disputed issues of material fact” and a “concise statement of the ultimate facts ... including the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action.”

Rather than amending its petition to satisfy the requirements of Rule 28-106.201, Brookwood took issue with AHCA’s demand that Brookwood detail which facts were in dispute and that Brookwood identify the facts that it contended warranted reversal or modification of ACHA’s proposed action. Brookwood’s counsel wrote to the agency:

Finally, these form orders to show cause started appearing under one of your predecessors. I had hoped that they were gone with her demise. As is obvious from this letter, I have a problem with the way the current AHCA administration is trying to thwart the administrative hearing process. The requirements of Rule 28-106.201, F.A.C. are meant to allow the agency to identify the agency action being challenged. It is not a discovery process or a means of limiting the issues being challenged. When an agency issues a complaint, it is the party setting out the facts. When I file my petition on a complaint, I merely have to state that I deny those facts. There is no reason for me to restate every fact already listed in the complaint. It is ridiculous for the agency to argue that it does not know what facts are at issue when the agency is the one who set out the facts in its complaint.
At the point in time that I file a petition, there has been no discovery, so I cannot state that certain facts are not in dispute. Once the matter is at DOAH and discovery and pretrial discussions have taken place, the issues not in dispute are weeded out. That is the purpose of the administrative hearing process. When I know that there are only certain issues that my client disputes, I identify those in the petition. But when we are disputing the entire agency action that is based on all of the underlying facts stated in the complaint, I have the right to dispute all of the facts and state concisely that I dispute all of the facts alleged. By doing so, I have identified all of the specific facts (as set forth in the complaint) that warrant reversal. Please also note that contrary to what your attachment says, there is no requirement in the rule that I provide a statement of the facts as my client “perceives them to be”.

In response to this letter, AHCA amended its order to show cause to eliminate any confusion over whether Brookwood had timely petitioned for administrative relief and again advised Brookwood that it had to comply with the requirements of Rule 28-106.201(2) or its petition would be dismissed. Brookwood responded by filing a petition virtually identical to its first bare-bones petition and prefaced it with the statement that:

Brookwood is only filing this amended petition because AHCA has threatened to deny its request for a hearing alleging that its petition was not legally sufficient. AHCA is attempting to deny Brookwood’s right to a hearing based on legal pleading technicalities. AHCA knows what facts and law are at issue because AHCA stated the relevant facts and law in its order of moratorium and complaint in this matter which were attached to Brookwood’s petition. The purpose of setting forth facts and law in a petition is to put the agency on notice of the matter in dispute. The purpose of a petition is not to limit the facts that Brookwood wishes to challenge at hearing or to force Brookwood to set forth its position before it has had a chance to implement discovery. AHCA issued the petition, AHCA knows what the facts are. The only possible reason for AHCA to question Brookwood’s petition is to deny Brookwood a hearing on matters that AHCA knows that it cannot defend at hearing.

On October 11, 2002, Brookwood’s petition for administrative hearing was denied; it was ordered to pay $81,000 (the $75,000 fine and $6,000 in costs) to AHCA. Brook-wood appeals. For the following reasons, we reverse.

C. Under the One Dismissal Rule, Brookwood May (and Must) Still Amend

Brookwood claims that its denial of all of the facts alleged in the administrative complaint and moratorium order and its statement that all of the facts detailed in these documents were “untrue and warranted reversal,” combined with its attachment and incorporation of these documents to its petition for administrative hearing, constitute substantial compliance with the requirements of subparagraph 120.54(5)(b)4 of the Florida Statutes and Rule 28-106.201(2) of the Florida Administrative Code. See Accardi v. Dep’t of Envtl. Protection, 824 So.2d 992, 996 (Fla. 4th DCA 2002). They do not.

Section 120.54, Florida Statutes (2003), provides in pertinent part:

(5) Uniform rules.—
(a)l. By July 1, 1997, the Administration Commission shall adopt one or more sets of uniform rules of procedure.... The uniform rules shall establish procedures that comply with the requirements of this chapter....
* * *
(b) The uniform rules of procedure adopted by the commission pursuant to this subsection shall include, but are not limited to:
4. Uniform rules of procedure for the filing of petitions for administrative hearings pursuant to s. 120.569 or s. 120.57. Such rules shall require the petition to include:
a. The identification of the petitioner.
b. A statement of when and how the petitioner received notice of the agency’s action or proposed action.
c. An explanation of how the petitioner’s substantial interests are or will be affected by the action or proposed action.
d. A statement of all material facts disputed by the petitioner or a statement that there are no disputed facts.
e. A statement of the ultimate facts alleged, including a statement of the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action.
f. A statement of the specific rales or statutes that the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes.
g. A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the proposed action.

(Emphasis added).

Relatedly, section 120.569, Florida Statutes (2003) provides:

(c)Unless otherwise provided by law, a petition or request for hearing shall include those items required by the uniform rules adopted pursuant to s. 120.54(5) (b)4. Upon the receipt of a petition or request for hearing, the agency shall carefully review the petition to determine if it contains all of the required information. A petition shall be dismissed if it is not in substantial compliance with these requirements or it has been untimely filed....

(Emphasis added).

Likewise, Rule 28-106.201 of the Florida Administrative Code, outlining “Initiation of Proceedings” provides:

(2) All petitions filed under these rules shall contain:
(a)The name and address of each agency affected and each agency’s file or identification number, if known;
(b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial interests will be affected by the agency determination;
(c) A statement of when and how the petitioner received notice of the agency decision;
(d) A statement of all disputed issues of material fact. If there are none, the petition must so indicate;
(e) A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action;
(f) A statement of the specific rales or statutes the petitioner contends require reversal or modification of the agency’s proposed action; and
(g) A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the agency’s proposed action.

(Emphasis added).

Fla. Admin. Code R. 28-106.201 (“Initiation of Proceedings”); see Fla. Admin. Code R. 59-1.018 (AHCA providing: “The Uniform Rules of Procedure are adopted”).

AHCA relies on the above stated rules and statutory provisions as supporting its decision. Brookwood’s counsel answers with a recalcitrant insistence that in previous years the unrefined denials such as the one he asserted below sufficed to secure hearings on agency actions. The simple answer to this is that the rales have changed. In 1998, the Florida Legislature amended section 120.54 to add subpara-graph (5)(b)4. See ch. 98-200, § 3, at 1830-31, Laws of Fla. Section 120.569, was likewise amended at that time to reflect the mandatory nature of section 120.54. The agency thereafter amended its rules. The amended statute and rules are crystal clear. In a proceeding governed by Rule 28-106.201, the burden is now on the person or entity petitioning for an administrative hearing to state the ultimate facts, to identify the facts that are in dispute, and to allege the facts that warrant, in the petitioner’s opinion, reversal. See also eh. 03-94, § 2, Laws of Fla. (enacted after the final order in the instant case and further amending section 120.54(5)(b) 4 to expressly “require the petition to include” a statement of disputed facts and the ultimate facts warranting reversal) (emphasis added). General denials and non-specific allegations of compliance will no longer suffice.

Brookwood’s suggestion that rather than dismissing its petition, AHCA should have passed it on to DOAH to permit DOAH to rule on the sufficiency of its petition is also behind the times. As observed in The Florida Bar, Florida Administrative Practice § 4.7, at 4-11 (6th ed.2001):

Although more latitude previously had been given, see, e.g., Anthony Abraham Chevrolet Co. v. Collection Chevrolet Co., 533 So.2d 821 (Fla. 1st DCA 1988), 1998 revisions to the APA now require agencies to review petitions for compliance with these requirements before forwarding them to DOAH. F.S. 120.569(2)(c)-(2)(d).... Before the 1998 revisions, agencies commonly would refer deficient petitions to DOAH and address defects through motions to the administrative law judge. This procedure no longer is allowed.

AHCA properly refused to pass Brook-wood’s deficient petition on to DOAH.

In addition to its claim that the specificity at issue had never been required in the past, is Brookwood’s final salvo that the discovery necessary to draft a petition for a hearing with the specificity required in the uniform rules and Rule 28-106.201(2), has not yet occurred at the early stage of the proceedings — within 21 days of receipt of written notice of the agency’s decision— when the petition is required, thus making the task impossible and illogical. See Fla. Admin. Code R. 28-106.111(2).

The response to this point is two fold. First, a time extension is generally available to permit the investigation necessary to draft a petition. See Fla. Admin. Code R. 28-106.111(3)(“[a]n agency may, for good cause shown, grant an extension of time for filing an initial pleading”); Fla. Admin. Code R. 28-106.204(5)(“[m]otions for extension of time shall be filed prior to the expiration of the deadline sought to be extended and shall state good cause for the request”). And statements made at this point of entry into the proceedings generally will not bar subsequent amendment of the petition. See Fla. Admin. Code R. 28-106.202.

Second, as conceded by counsel, there will in most instances be at least some factual determinations undisputed by the petitioner seeking a hearing. Just as the agency is obligated to give citizenry “fair notice” of the charges being faced, see Totura v. Department of State, 553 So.2d 272, 273 (Fla. 1st DCA 1989), it is fair to narrow the factual matters in dispute and alert the agency to the undisputed aspects of the charges at issue. Considering the costs associated with any agency action, an effort to tailor those expenses while still providing a full and fair opportunity to be heard, cannot be faulted. Thus, we find application of the rule both logical and entirely capable of being accomplished.

In sum, AHCA properly found Brook-wood’s hearing request to be legally insufficient. Brookwood’s initial hearing request amounted to no more than a con-clusory statement disputing every fact and legal conclusion no matter how perfunctory. Its amended request did little more than reiterate its earlier response. While a petitioner’s efforts to comply with the above stated statutory requirements should be viewed for substantial compliance so as to allow the opportunity for a hearing and resolution of the matter on its merits, the agency in this case was faced with no more than a Petitioner’s insistent refusal to follow the above stated statutory provisions. See McIntyre v. Seminole County Sch. Bd., 779 So.2d 639 (Fla. 5th DCA 2001)(where only item employee failed to include in hearing request was how he became aware of School Board’s action, the deficiency would not be deemed dispositive, and employee’s letter was sufficient to meet the minimum requirements listed in section 120.54(5)(b) 4 for a hearing request).

Despite Brookwood’s noneompliance, we conclude that the facility should be accorded the opportunity to conform its petition to the “uniform rules.” Section 120.569 authorizes such action, as it instructs “[dismissal of a petition shall, at least once, be without prejudice to petitioner’s filing a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured.” (Emphasis added). Rule 28-106.201 similarly provides that dismissal of a petition for non-compliance with the rule shall “at least once, be without prejudice to petitioner’s filing a timely amended petition curing the defect.” Fla. Admin. Code R. 28-106.201 (“Initiation of Proceedings”); see Fla. Admin. Code R. 59-1.018 (AHCA providing: “The Uniform Rules of Procedure are adopted”).

Here, the action was dismissed only once, that being after issuance of the second (the amended) order to show cause and the amended response. Brookwood is, therefore, still entitled to one more chance to comply with the rules. Taking Brook-wood’s counsel at his word, the petition’s insufficiencies were the result of counsel’s past experience as to the showing necessary to secure a hearing, rather than any effort to thwart, violate, or evade the law.

Accordingly the order under review is reversed and the matter is remanded for Brookwood to file a petition for hearing in compliance with subparagraph 120.54(5)(b)4, Rule 28-106.201, and the statements made herein.

SHEVIN, J., concurs.

COPE, J.

(specially concurring).

I agree on the ultimate result, but write separately to address the responsibilities of agencies in considering requests for a formal hearing, and to suggest that the Legislature needs to amend the statute.

I.

Without realizing it was doing so, the Legislature has created a system that is hazardous to those who want to request an administrative hearing.

In the present case, the Agency for Health Care Administration (“AHCA”) filed an administrative complaint against Brookwood Extended Care Center in which it sought to impose an administrative fine of $81,000.

Under the current version of the Administrative Procedure Act (“APA”), Brook-wood’s request for a formal hearing was processed by AHCA — the very agency which desired to impose the administrative fine.

AHCA replied to the request for hearing by sending Brookwood a form saying the request for an administrative hearing was not good enough. AHCA did this even though Brookwood asserted that it disputed every fact set forth in the administrative complaint.

Brookwood filed an amended petition for administrative hearing.

AHCA decided that the amended petition did not contain sufficient particularity as required by paragraph 120.569(2)(c), Florida Statutes (2002). AHCA denied the petition for administrative hearing and entered a final order assessing a fine of $81,000 against Brookwood.

There is an inherent conflict of interest in this system. The administrative agency which wishes to assess the administrative penalty is the same agency which is allowed to deny a hearing outright, simply on the basis of deficiencies — real or imagined — in the petition for administrative hearing.

AHCA advised us at oral argument that the agency clerk takes paragraph 120.569(2)(c), Florida Statutes (2002) to be a legislative mandate to dismiss petitions for hearing which do not comply with the statute. I have no quarrel with the idea that the statutes must be obeyed, but if the agency which is assessing the administrative fine is also the agency determining the right to a hearing, then the agency’s power to deny a hearing must be carefully circumscribed.

II.

It goes without saying that the due process clause of the Federal and Florida Constitutions applies in administrative hearings. See, e.g., Cherry Communications, Inc. v. Deason, 652 So.2d 803, 804 (Fla.1995); United Ins. Co. v. State Dept. of Ins., 793 So.2d 1182, 1183 (Fla. 1st DCA 2001). Litigants are entitled to fair notice and an opportunity to be heard before a fine or other administrative penalty is imposed upon them.

Because of due process considerations, if there is any doubt about the sufficiency of the petition, the doubt must be resolved in favor of granting the administrative hearing.

This also follows from the wording of the statute itself. The statute allows dismissal only if the petition “is not in substantial compliance with these requirements .... ” § 120.569(2)(c), Fla. Stat. (emphasis added); see also id. § 120.569(2)(d). The statute requires the agency to look at the substance of the petition. Substantial compliance, not perfect compliance, is all that is required. Nitpicking and hypertechnical reading of petitions are not allowed.

Measured against a substantial compliance standard, the Brookwood petition for administrative hearing was, in my view, legally sufficient. While I agree with the majority that a general denial is not appropriate in proceedings of this type, the substance of the dispute is clear. The propriety of the administrative fine is going to hinge on factual determinations and factual inferences regarding the conditions at Brookwood at the time of the inspection.

The next problem in this case is what I must characterize as a double standard employed by AHCA. AHCA’s reason for rejecting the petition for hearing was its conclusion that the petition for hearing was insufficiently particularized. However, AHCA itself failed to give the litigant any particularity in rejecting the petition.

After Brookwood requested the administrative hearing, it received a form on which AHCA had checked the following item:

The request for hearing was legally insufficient.
Please note: If this item is checked, the Agency recognizes that you requested a formal hearing pursuant to the provisions of Section 120.569 and 120.57(1), Florida Statutes. Your request, however, did not meet the requirements of Rule 28-106.201(2), Florida Administrative Code, as required by law and as noted on the Election of Rights form that you returned to the Agency. Since your request for hearing did not conform to the Rule, the Agency is required by law to deny it. See Section 120.569(2)(c), Florida Statutes.
You have time, however, to amend your request for hearing if it was received on time. Please ensure that the amended request includes the information required by Rule 28-106.201(2), Florida Administrative Code, and that the Agency Clerk receives the amended request on or before fifteen (15) days of the date on which the Agency Clerk signed this Order to Show Cause.

R. 108.

Attached to this form was a document which listed nine items which must be included in a request for a formal hearing. AHCA did not identify which item or items it had found to be insufficient. The agency also attached the text of Rule 28-106.201. Again, AHCA did not identify which item or items it deemed insufficient.

Litigants should not have to guess at their peril what is wrong with the petition for administrative hearing. If the agency thinks the petition is not sufficiently particularized, then the agency must likewise identify the deficiency with reasonable particularity.

III.

In my view, the Legislature should revisit Section 120.569, Florida Statutes, in light of the due process concerns outlined above. Further, it seems advisable to amend the statute with regard to administrative action that is initiated by the filing of an administrative complaint.

The administrative complaint in this case is thirty-six pages long, with fifty pages of attachments, setting forth the facts said to support the imposition of the $81,000 fine. At oral argument AHCA acknowledged, and I agree, that it would be sufficient for the defendant to submit a document which set forth those paragraphs of the administrative complaint which were admitted, denied, or as to which the defendant is without knowledge. The approach would, in other words, be similar to that which is followed under Florida Rule of Civil Procedure 1.110(c). To my way of thinking, such an approach would simplify the procedure for those agency actions which are initiated by administrative complaint.

The problem with the present version of section 120.569 is that it is a one-size-fits-all mechanism. The statute appears designed primarily for the situation in which an agency takes an action, such as a denial of a license, by writing the applicant a letter briefly setting forth the grounds for the denial. In that situation, if the applicant requests an administrative hearing, it is logical to require the applicant to file a petition for administrative hearing which spells out the nature of the dispute so as to allow a determination whether material facts are at issue which would require a referral to the Division of Administrative Hearings.

Where the agency proceeding is initiated by an administrative complaint, the situation is quite different. Where there is an administrative complaint, the agency has already identified the material facts which are said to support the disciplinary action. It does not serve any useful purpose to ask the litigant to draft another statement of the disputed issues of fact; it should be sufficient to identify only those portions of the administrative complaint which the defendant intends in good faith to dispute.

We were advised at oral argument that in general, if a litigant simply repeats all of the allegations of the administrative complaint in the petition for administrative hearing as disputed issues of fact, then AHCA will grant the petition and forward the case to the Division of Administrative Hearings. It is a waste of time and paper to have the identical factual matters stated twice: initially in the administrative complaint and then repeated in the petition for administrative hearing.

IV.

The courts and administrative officers should safeguard the constitutionally protected right to a fair hearing in the administrative process. The statute requires substantial compliance, not strict compliance, in submitting a petition for an administrative hearing. All doubt should be resolved in favor of granting an administrative hearing. A detailed reiteration of the facts contained in an administrative complaint is unnecessary; there only needs to be a brief specification of the facts which are controverted in good faith.

Statutory modification may well be warranted, especially as relates to administrative proceedings which are initiated by an administrative complaint.

      . This last comment came in response to ACHA’s paraphrasing of the Administrative Code’s requirements as obligating a petitioner to "list ... the facts in dispute” and to state the facts as the petitioner "perceives them to be.”

      . It should be noted that neither party to this appeal has suggested that this proceeding is governed by any rule other than 28-106.201.

      . Brookwood's reliance on Scott v. Department of State, 828 So.2d 1091(Fla. 2d DCA 2002), to support its contention that it substantially complied with applicable administrative rules is misplaced. Scott involved the revocation of a license governed by Rule 28-107.004 which provides for administrative review of orders that "suspend, revoke, annul, or withdraw a license,” and expressly states that "[t]he agency complaint shall be the petition [for administrative hearing].... ” The administrative complaint in this case did not seek to suspend, revoke, annul or withdraw Brookwood's license. Thus, Rule 28-106.201, as both parties confirm, rather than Rule 28-107.004, applies.

      . Although not raised as an issue in this case, I am hard pressed to see how the agency can deny a hearing outright. The point of paragraphs 120.569(2)(c) and (d) is to determine whether to refer the petition to the Division of Administrative Hearings. If there are no disputed issues of material fact, then it would appear that the litigant must nonetheless be given an informal hearing under subsection 120.57(2), Florida Statutes.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Orestes DESOTO, Appellant, v. HIALEAH POLICE PENSION FUND BOARD OF TRUSTEES, Appellee.
    No. 3D03-63.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2003.

      Slesnick & Casey and James Casey, Miami, for appellant.
    Klausner & Kaufman and Adam P. Lev-inson and Robert Klausner (Plantation), for appellee.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   PER CURIAM.

This is an appeal of an administrative decision of the Hialeah Police Pension Fund Board of Trustees which ordered the forfeiture of the pension benefits of Orestes DeSoto under section 112.3173(2)(e)(6), Florida Statutes (2001). For the reasons which follow, we affirm.

DeSoto was employed by the Hialeah Police Department as a police sergeant. For reasons unrelated to this appeal, on September 23, 1999, Sergeant DeSoto was demoted to police officer and suspended for six months without pay effective September 28, 1999 through March 27, 2000. On October 26, 2001, a federal grand jury indicted DeSoto on several charges, including conspiracy to possess and distribute cocaine, to commit robbery, and to carry a firearm during a crime of violence, in addition to the commission of three robberies. Although the conspiracy charges listed dates that spanned a one and a half year period, the indictment indicated the substantive offenses occurred during appellant’s six month suspension. At a pretrial hearing, DeSoto pled guilty to all counts charged in the indictment, admitting the facts underlying the charges as stated by the prosecutor. Soon thereafter the Pension Fund Board of Trustees commenced proceedings to forfeit DeSoto’s retirement benefits under section 112.3173(2)(e)(6), Florida Statutes (2001).

On appeal, DeSoto contends that the board erred in determining that his benefits were subject to forfeiture under section 112.3173(2)(e)(6) because the crimes of which he was convicted occurred while he was on suspension and thus could not be related to his duties as a police officer. In coming to its conclusion that the crimes were related to DeSoto’s police duties, the board relied on DeSoto’s admissions during his guilty plea. The evidence summarized in the final order detailed DeSoto’s involvement in each of the charged crimes. DeSoto helped plan the robbery of a 7-11 store on January 13, 2000, went into the store prior to the robbery to verify the manager’s presence, and provided the mace used during the robbery. With regard to the February 5, 2000 robbery of a restaurant owner, DeSoto informed his accomplices that this individual was a drug dealer, provided surveillance prior to the robbery, contacted a police officer accomplice to notify him that the victim was leaving work so that the officer could conduct a traffic stop, and provided the handcuffs used to restrain the victim. DeSoto also suggested the target of the third robbery which occurred on February 15, 2000. He knew the owner of this bakery left work with large sums of cash. Again, when the victim left the business, DeSoto called his accomplices who followed her home where they robbed her. DeSoto also avoided capture while waiting to rob a trailer on February 19, 2000 by identifying himself as a police officer. Finally, sometime in late January or early February, 2001, DeSoto was recorded agreeing to the protection of a shipment of drugs. He advised his accomplices how to package the drugs to avoid detection and agreed to provide cover so that the cocaine could be successfully delivered.

We agree with the trial court that this evidence was sufficient to meet the statutory requirement of a nexus between the crimes charged against the public officer and his or her duties and/or position. As the board noted, the conspiracies involved in the planning of the robberies and the agreement to protect the drug shipment occurred outside the period of DeSoto’s suspension. Additionally, DeSoto clearly violated his duty as a public officer to safeguard the public faith in his office. Although suspended for a period of time, DeSoto remained a public servant. We, therefore, affirm the board’s conclusion that DeSoto’s conviction warranted the forfeiture of his pension rights.

Affirmed.

      . Section 112.3173(2)(e)(6), Florida Statutes (2001), states:
      “The committing of any felony by a public officer or employee, who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties or position of his or her public office or employment position.”


author: RAMIREZ, J.

text:
    STRATEGIC RESOURCES GROUP, INC., Appellant, v. KNIGHT-RIDDER, INC., etc., Appellee.
    No. 3D02-2184.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.

      Robert Cooper, for Appellant.
    Adorno & Yoss, and Jack R. Reiter, and Stephanie G. Kolman, Miami, for Appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Strategic Resources Group, Inc. appeals a final order granting appellee Knighb-Ridder, Inc.’s, d/b/a The Miami Herald Publishing Company, motion for summary judgment and denying its own motion for summary judgment. Because we conclude that KnighU-Ridder substantially performed its obligations under the parties’ advertising contract, we affirm.

In 1992, Knight-Ridder entered into an advertisement contract with Brighton Homes Development. The contract incorporated rate cards into the agreement. Section 4 of the incorporated rate cards, entitled “General Rate Policy, Advertising Terms and Conditions,” provided that Brighton agreed to “designate the width in columns and exact depth in inches [of the advertisement to be published]” and Knight-Ridder “agreed to publish and bill the ad for the exact space published.” Section 4 of the rate card, in the subsection titled “Herald’s Rights Regarding Copy,” also established KhighWRidder’s reservation of the right to “revise, alter or reject any advertisement for any reason but no change in advertising copy will be made without [the customer’s] prior consent.” Furthermore, under the subsection entitled “Liability of Publisher,” Knight-Ridder disclaimed liability for any “general, special or consequential damages” resulting from publishing errors. This subsection also stated that KnighNRidder would only give full credit when “the error completely destroyed] the effectiveness of the ad, and partial credit when the effectiveness of the ad [was] only reduced.” The advertisement contract contained identical language. No one has asserted or proved that the effectiveness of the advertisement was reduced or destroyed.

In 1998, Strategic and Brighton entered into a Newspaper Advertising Billing Verification Services Agreement. Under this service agreement, Brighton assigned its rights to Strategic, and Strategic agreed to review the advertisements and the contract to determine if Brighton had been overcharged. In late 1998, Brighton complained for the first time to Knight-Ridder about overcharges.

Strategic filed a one count complaint against the Miami Herald and Knight-Ridder. It claimed $75,000 in overcharges between 1994 and 1996 and $8,681.97 in 1997. Knight-Ridder raised various affirmative defenses including waiver, estoppel and substantial performance. Knight — Rid-der admitted having reduced all black and white page images between the relevant time period of this lawsuit, 1994 through 1997. The trial court found that it was standard practice in the newspaper publishing industry to reduce image size on a page. The images in the Miami Herald were all reduced to meet press/production requirements to ensure that a quality newspaper was printed. The percentage of reduction was approximately 3.83%, a reduction that was only noticeable if measured with a ruler.

Knight-Ridder continues to reduce the black and white page images and Brighton continues to pay the same price for the advertisements it claims is an overcharge. Brighton justifies its continued payments by arguing that the Miami Herald is the only major newspaper in town and that, as a home developer, it needs to advertise in the newspaper. Brighton, however, does not complain about overcharges incurred after it discovered the image size reduction.

This is a clear case for the application of the doctrine of substantial performance. “Substantial performance is performance ‘nearly equivalent to what was bargained for.’ ” Pullam v. Hercules Inc., 711 So.2d 72, 75 (Fla. 1st DCA 1998).

Substantial performance is that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor’s right to recover whatever damages may have been occasioned him by the promisee’s failure to render full performance.

Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971). For six years, Knight-Ridder ran the advertisements without any complaint from Brighton. Brighton never requested tear sheets or advertising proofs before publication, nor did it measure the advertisements after publication. The size reduction was not easily discernible, even in a side-by-side comparison. Brighton thus received the benefit of its bargain. Even after discovering the reduction, it continued its business relationship with Knight-Ridder, using the same advertisements under the same terms and conditions.

Strategic makes two arguments as to why the doctrine of substantial performance is not applicable. First, it asserts that the doctrine does not apply to the payment of money, citing to Rose v. Ditto, 804 So.2d 351, 353 (Fla. 4th DCA 2001) (“There is almost always no such thing as ‘substantial performance’ of payment between commercial parties when the duty is simply the general one to pay.”) and Enriquillo Export & Import, Inc. v. M.B.R. Indus., Inc., 733 So.2d 1124, 1127 (Fla. 4th DCA 1999). This argument incorrectly places the focus of the parties’ transaction upon Brighton’s obligation to compensate Knight-Ridder. The focus instead is on Knight-Ridder’s responsibility to print a newspaper advertisement that substantially complies with what Brighton bargained for.

Second, Strategic argues that pursuant to National Constructors, Inc. v. Ellenberg, 681 So.2d 791, 793 (Fla. 3d DCA 1996), the doctrine is inapplicable where the breach of contract was willful or intentional. “In the context of contracts for construction, the doctrine of substantial performance is applicable only where the contractor has not willfully or materially breached the terms of his contract or has not intentionally failed to comply with the specifications.” Id. at 793. While Knight-Ridder intentionally reduced the size of the advertisements, it did not intentionally breach the contract. It relied on contractual language which authorized it “to revise, alter or reject any advertisement.” We agree that, although the better business practice would have been to notify its customers of the size reduction, a reduction to which Brighton obviously would have consented, we conclude that the trial court correctly granted summary judgment.

The trial court’s thoughtful and detailed fourteen page order also found that Brighton had waived any defect in KnightARid-der’s performance. Although we find the trial court’s reasoning persuasive, we need not reach this ground given our conclusion that Knight-Ridder substantially performed its contractual obligations.

Affirmed.


text:
    John D. MOSCHETTO, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s).
    No. 3D03-1100.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2003.
   Upon the Court’s own motion, it is ordered that the above styled appeal is hereby dismissed. See Moore v. Moore, 764 So.2d 676 (Fla. 1st DCA 2000).

GREEN, FLETCHER and WELLS, JJ., concur.


text:
    Cheryl BRANTLEY, as Administrator of South Florida Evaluation and Treatment Center (SFETC), and Jerry Regier, as Secretary of the Department of Children and Families, Petitioners, v. Miguel RUBIO, Barry Wax, Katherine Fernandez Rundle, State Attorney for the 11th Judicial Circuit, Respondents.
    No. 3D03-1349.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Rehearing Denied Oct. 15, 2003.

      Mary C. Doyle, Coral Gables, for petitioners.
    Carin Kahgan, Assistant State Attorney, and Law Offices of Schwartz & Wax and Barry M. Wax, Miami for respondents.
    Before COPE, GREEN, and RAMIREZ, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

This Court previously denied petitioner Florida Department of Children and Family Services’ Emergency Motion for Stay Pending Review and their Petition for Writ of Prohibition seeking to vacate a trial court order committing respondent Miguel Rubio to the custody of the Department. Upon consideration of petitioner’s motion for rehearing, the motion is denied.

Three experts examined Rubio in order to determine his competency to stand trial. Dr. Lloyd Miller determined that Rubio was probably mentally competent to participate in legal proceedings, but due to his worsening depressive condition, Rubio may be considered to be mentally incompetent and qualify for placement in a mental hospital for treatment. Dr. Sonia Ruiz determined that Rubio was competent to stand trial, but should be hospitalized for psychiatric care and treatment. Dr. Jane Ansley determined that Rubio was not competent and met the criteria for involuntary inpatient psychiatric hospitalization, but could be restored to competency with appropriate treatment.

The trial court found that Rubio was competent to stand trial, but his continued competence depended on an appropriate course of treatment which Rubio could not receive in jail. Accordingly, the trial court remanded Rubio into the custody of the Department so that his competency could be assured at the time of trial. The trial court based its order on Florida Rule of Criminal Procedure 3.212(c)(2) and chapter 916, Florida Statutes (2003).

Rule 3.212(c) states that, “[i]f the court finds ... that the defendant is competent to proceed but that the defendant’s competence depends on the continuation of appropriate treatment for a mental illness or mental retardation, the court shall consider issues relating to treatment necessary to restore or maintain the defendant’s competence to proceed.” Rule 3.212(c)(2) allows the court to order the defendant transferred from current detention to another facility for treatment. The trial court made the requisite findings that no less restrictive treatment alternatives existed or were adequate for Rubio.

Chapter 916 regulates the involuntary commitment of a defendant who has been adjudicated incompetent or one who has been found not guilty by reason of insanity. In State v. Garcia, 711 So.2d 1342, 1343 (Fla. 3d DCA 1998), this Court held that once a formerly incompetent defendant was adjudicated competent, he can no longer be held in a forensic facility because he no longer meets the statutory criteria for a forensic client. The Garcia court did not address the case of a defendant whose competence depends on treatment at a forensic facility.

Rubio has not been declared competent unconditionally; he remains competent only because he receives treatment. To order him removed from the Department’s custody will likely initiate a merry-go-round of competency hearings, which will indefinitely postpone Rubio’s trial.

The trial court, therefore, did not exceed its authority because rule 3.212 allows the trial court to order the necessary treatment for a defendant whose competence depends on that treatment.


text:
    Wilbur SINGLETARY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-163.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for Appellant.
    Robert A. Butterworth, Attorney General, and Jason Helfant, Assistant Attorney General (Fort Lauderdale), for Appellee.
    Before GERSTEN and FLETCHER, JJ., and NESBITT, Senior Judge.
   CONFESSION OF ERROR

PER CURIAM.

Wilbur Singletary (“defendant”) appeals the trial court’s judgment and sentence. We reverse.

The defendant accepted a negotiated plea on an unrelated case, lower court case number, F01-28369, agreeing to a deferred sentence of five years that would be mitigated to 364 days upon his surrender from a furlough. The trial court stated that upon his surrender, the defendant would also be sentenced concurrently on the instant case, F01-33410. However, the State had not yet filed the information on the present case.

The defendant did not show up to surrender from his furlough because he had been arrested on a third case. The State filed the information in the instant case and the trial court issued an alias capias for his arrest. The court also entered a commitment order on case number F01-28369. When the defendant subsequently appeared in court, the trial court sentenced him to five years on case number F01-28369, and denied his motion to mitigate the sentence. The State then offered the defendant a concurrent five year sentence on the present case. The defendant turned down the offer and requested a trial.

A year later, the trial court sentenced the defendant in absentia to a five year prison term. The sentencing order was entered on November 22, 2002. The judgment and sentence were never pronounced in court and the transcript from November 22, 2002 does not reflect a plea colloquy or sentencing hearing.

The State correctly concedes a defendant can not be sentenced in absentia for a felony unless he voluntarily absented himself from the hearing. See Zuluaga v. State, 793 So.2d 60 (Fla. 4th DCA 2001)(re-mand required to determine if defendant voluntarily absented himself from hearing where he was sentenced in absentia); Leone v. State, 643 So.2d 1198 (Fla. 5th DCA 1994)(rule that defendant charged with a misdemeanor may be tried in absen-tia does not apply to defendant charged with a felony).

Accordingly, we reverse and remand for a hearing to determine whether the defendant knowingly, intelligently and voluntarily agreed to waive his presence and enter a plea in absentia. If the court concludes that the defendant did not voluntarily enter into this plea, the defendant should be given the opportunity to withdraw his plea.

Reversed and remanded with instructions.


text:
    Laercy MACEO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3242.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and FLETCHER and SHEVIN, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Laercy Maceo appeals from a trial court order designating him as a sexual predator pursuant to Section 775.21, Florida Statutes (2002). After a careful review of the record, and in accordance with the state’s proper confession of error, we reverse.

Maceo was convicted of the life felony of armed kidnapping, in violation of section 787.01, Florida Statutes (1997). The victim, however, was not a minor and therefore Maceo does not qualify for classification as a sexual predator as provided by section 775.21(4)(a)l.a., Florida Statutes (2002) based on a violation of section 787.01, Florida Statutes. The two counts of sexual battery with which Maceo was also charged and convicted were second-degree felonies. The information setting forth these charges specifically tracked the language of section 794.011(5) and defined sexual battery without the use of physical force or force likely to cause serious personal injury, and contained no allegation of use of a weapon. These do not meet the requirements of the sexual predator statute which requires that violations must be capital, life, or first degree felonies to qualify Maceo as a sexual predator. The state also points out that Maceo did not qualify for designation as a sexual predator under section 775.21(4)(a)l.b, Florida Statutes as he had not previously been convicted of, plead nolo or guilty to, or found to have committed any of the enumerated prior offenses which would qualify him for classification as a sexual predator. The trial court has erroneously designated Maceo as a sexual predator and that order must be reversed.

Reversed and remanded for proceedings consistent herewith.

      . The Order finding the defendant a sexual predator was rendered November 13, 2002.


author: GODERICH, Judge.

text:
    Samuel SAMUELOV, Appellant, v. CARNIVAL CRUISE LINES, INC., Appellee.
    No. 3D03-215.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Rehearing Denied March 19, 2004.

      Lander & Hall and Joseph Hall; Steven M. Goldsmith, Boca Raton, for appellant.
    Wilson, Eisner, Moskowitz, Edelman & Dicker and Ricardo J. Cata, Miami, Ariana Fajardo, Miami Springs and Suzanne Brown-Vasquez, for appellee.
    Before COPE, GODERICH and SHEVIN, JJ.
   GODERICH, Judge.

The plaintiff, Samuel Samuelov, appeals from an adverse final judgment. We affirm, in part, and reverse, in part.

Samuel Samuelov was a passenger on the Imagination, a cruise ship that was owned and operated by Carnival Cruise Lines, Inc. [Carnival]. Samuelov and his companion purchased tickets for an optional shore excursion to the Mayan ruins in Tulum, Mexico. The Imagination’s original itinerary had a scheduled “operational stop” at the port of Calica to disembark passengers going on this shore excursion. On the day of the excursion, in accordance with a revised itinerary, the Imagination made an “operational stop” in Playa del Carmen, Mexico, for the sole purpose of disembarking passengers going on the Tu-lum tour. The Imagination anchored in the harbor alongside a tender allegedly owned and operated by Tursimo Aviomar. The 322 passengers who were taking the Tulum tour, including Samuelov, disembarked the Imagination and, with the help of the Imagination crew, crossed the gangplank to the tender.

The tender’s lower deck was enclosed from the elements, but the upper deck was exposed. Samuelov was unable to find a place to sit on the lower deck, so he climbed the stairs to the upper deck. When Samuelov reached the upper deck, he realized that it was windy and raining. Because there were numerous passengers directly behind him, Samuelov could not return to the lower deck. Samuelov crossed from the top of the stairway to the railing. He held the railing as he looked for a dry seat. Finding no place to sit, he let go of the railing and walked across the deck looking for a dry location to stand. As he walked across the deck, he slipped and fell, and broke his hip.

Samuelov brought suit against Carnival for negligence alleging that Carnival had breached its duty of care by allowing a dangerous condition to exist on the tender and by failing to warn him of such condition. Carnival answered and asserted several affirmative defenses.

Carnival moved for summary judgment on the grounds that it could not be held liable for the negligence of an independent contractor, that liability had been disclaimed in the cruise ticket, and that Sa-melov’s injuries were as a result of his failure to use due care. The trial court denied the motion.

Samuelov moved for partial summary judgment arguing that Carnival had a non-delegable duty to provide him with safe transportation, under adequate supervision, to and from the dock, Laivlor v. Incres Nassau Steamship Line, Inc., 161 F.Supp. 764 (D.Mass.1958); Johnson v. Home Lines, Inc., 48 Misc.2d 1090, 266 N.Y.S.2d 582, 583-84 (Civ.Ct.1965), and that the disclaimer which Carnival relied upon was ineffective to disclaim its own negligence. Carlisle v. Ulysses Line, Ltd., 475 So.2d 248 (Fla. 3d DCA 1985). The trial court found that Samuelov was injured on a “tender” and that Carnival had a non-delegable duty to provide him with safe transportation under adequate supervision between the cruise ship and the shore. Accordingly, the trial court entered partial summary judgment in favor of Samuelov.

The parties proceeded to trial. At the conclusion of Samuelov’s testimony, Carnival moved for a directed verdict. The trial court granted the motion for directed verdict and entered final judgment in favor of Carnival reasoning that the condition on the tender that caused Samuelov’s injury was “open and obvious.” Samuelov’s appeal, and Carnival’s cross-appeal, follow.

On cross-appeal, Carnival contends that the trial court erred by granting Samue-lov’s motion for partial summary judgment. More specifically, Carnival argues that, in accordance with its disclaimer of liability, it had no duty to Samuelov while he was on a shore excursion that was operated by an independent contractor. Henderson v. Carnival Corp., 125 F.Supp.2d 1375, 1377 (Fla.S.D.2000); Dubret v. Holland America Line Westours, Inc., 25 F.Supp.2d 1151, 1153 (Wash.W.D. 1998). Although we agree that Carnival accurately states the law, we disagree that it has application to this case.

The law is well settled that “[a] carrier that contracts to take a passenger on a cruise stopping at a designated foreign port has a duty if the vessel anchors in that harbor to provide him with safe transportation, under adequate supervision, to and from the dock.” Lawlor, 161 F.Supp. at 767. Because “a passenger cruise ship entices people aboard with the promise of stopovers in exotic ports, the ship owner must see to those passengers’ safe embarking and disembarking in each such port.” Isham v. Pacific Far East Line, Inc., 476 F.2d 835, 836 (9th Cir. 1973). In Johnson v. Home Lines, Inc., 48 Misc.2d 1090, 266 N.Y.S.2d 582, 583-84 (Civ.Ct.1965), a passenger on a cruise to Nassau was injured on the tender that took him from the cruise ship to Nassau. The tender was owned by the government of Nassau and operated under an agreement with the cruise line. The Johnson court relied on Lawlor and held that the cruise line had a duty to provide the passenger with safe transportation, under adequate supervision, to and from the ship to shore, that this duty was not delegable, and that the portion of the exculpatory clause that attempted to immunize the cruise line from any responsibility whatsoever during the passenger’s transportation on the tender was void as against public policy. Johnson, 266 N.Y.S.2d at 584.

In the instant case, we agree with the trial court’s determination that the transportation provided to Samuelov between the Imagination and Playa del Carmen was a “tender” and that Carnival had a non-delegable duty to provide Samuelov with safe transportation, under adequate supervision, to and from the ship to shore.

Carnival argues that the boat that provided Samuelov’s transportation to shore was not a “tender” and that the boat ride was part of the shore excursion to Tulum. Carnival relies on Henderson v. Carnival Corporation, 125 F.Supp.2d 1375, 1377 (S.D.Fla.2000), where the court determined that passengers who were injured on the return trip of a catamaran excursion operated by an independent contractor were not on a tender such that Carnival owed them a duty of care. We find that Henderson is factually distinguishable from the case before us in that the essence of the excursion in Henderson was the catamaran ride itself and not a land tour as is this case. For these reasons, the trial court properly entered partial summary judgment in favor of Samuelov.

With regard to the main appeal, Samue-lov contends that the trial court erred by granting a directed verdict on the basis that the condition that caused his injury was open and obvious. We agree.

“A property owner is not absolved of responsibility where the owner has reason to believe that others will encounter the dangerous condition regardless of the open and obvious nature of the condition.” Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552, 555 (Fla. 3d DCA 2000). The fact that passengers would have to cross the wet, slippery exposed upper deck of the tender should have been reasonably anticipated by Carnival. Therefore, the trial court erred by directing a verdict and should have allowed the case to proceed to a jury verdict. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Affirmed, in part; reversed, in part, and remanded.


text:
    D. A., Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1594.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Rehearing Denied April 28, 2004.

      Karl E. Hall, Jr., Miami, for Appellant
    D. A., in proper person.
    Calianne P. Lantz; Hillary S. Kambour, for Appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See M.E. v. Florida Dep’t of Children & Family Servs., 728 So.2d 367 (Fla. 3d DCA 1999).


text:
    Donald Frank SHIREY, Jr., Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 1D03-4686.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Rehearing Denied Feb. 2, 2004.
    Donald Frank Shirey, Jr., pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the court’s order of November 4, 2003, the appeal is hereby dismissed as untimely.

BARFIELD, ALLEN and DAVIS, JJ., concur.


text:
    Carlos MARIN, Appellant, v. DEALER NETWORK ASSOCIATION, INC., a New Jersey corporation; Dab-O-Matic Corp., a foreign corporation; and Mark Walmesley, Appellees.
    No. 3D02-2797.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2004.
    Rehearing En Banc Denied April 28, 2004.
    Hicks & Kneale, and Mark Hicks, and James Wyman, and Gary Magnarini, Miami, for appellant.
    Akerman Senterfitt, and Michael Fertig, and Nina K. Brown, and Jennifer Cohen Glasser, Miami, for appellee, Dealer Network Association.
    Walton Lantaff Schroeder & Carson, and Robert L. Teitler and Michael R. Jenks, Miami, for appellee, Dab-O-Matic.
    George Hartz Lundeen Fulmer John-stone King & Stevens, and Esther E. Gali-cia, Fort Lauderdale, for appellee, Mark Walmesley.

      Before SCHWARTZ, C.J., and GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

We find no genuine issue of material fact and affirm the trial court’s order granting summary judgment. See Fla. R. Civ. P. 1.510(c). Affirmed.


author: PER CURIAM. COPE, J.,

text:
    C.E.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3142.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2004.
    Rehearing Denied April 28, 2004.
    Bennett H. Brummer, Public Defender and Billie Jan Goldstein, for appellant.
    Charles J. Crist, Jr., Attorney General and Fredericka Sands, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Affirmed. See A.A. v. State, 461 So.2d 165 (Fla. 3d DCA 1984).

COPE, J.,

dissenting.

The State did not make out a proper case under A.A. v. State, 461 So.2d 165 (Fla. 3d DCA 1984). I would reverse on authority of L.R. v. State, 557 So.2d 121 (Fla. 3d DCA 1990), and Weaver v. State, 543 So.2d 443 (Fla. 3d DCA 1989); see also State v. Pennington, 534 So.2d 393, 395-96 (Fla.1988).


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    The STATE of Florida, Appellant, v. Jimmy BURNETT, Appellee.
    No. 3D02-2990.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Rehearing and Rehearing En Banc Denied April 28, 2004.

      Charles J. Crist, Jr., Attorney General and Consuelo Maingot, Assistant Attorney General, for appellant.
    John H. Lipinski, Hollywood, for appel-lee.
    Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ.
   PER CURIAM.

The State of Florida appeals an order discharging the appellee/defendant pursuant to the speedy trial rule. At issue in this case is whether the dismissal of criminal charges against the defendant was warranted under the speedy trial rule, where the State was dilatory in furnishing certain discovery materials to the defense. Under the facts of this case, we conclude that the dismissal was not warranted. Accordingly, we reverse.

Jimmy Burnett was arrested September 13, 2001 and charged on October 3, 2001 with attempted second degree murder with a firearm and unlawful use of a firearm. At his arraignment on October 4th, the State provided the defense a list of police officers (with their badge numbers) who might be called as witnesses. The very next day, the State provided the defense with additional discovery, including a copy of Burnett’s stenographic statement and a copy of a memorandum of one of the detectives.

The State sought and received two trial continuances on December 6, 2001 and again on January 30, 2002 on grounds that the victim was still recovering from his injuries. In the interim, on December 12, 2002, the defense moved to compel the production of police reports. The defense also informed the court that the speedy trial time was set to expire on March 7, 2002, but that it could be ready, if provided with the police reports. The trial court granted the motion and ordered the State to provide the police reports within ten days.

In response, on February 27, 2002, the State provided another witness contact list, which primarily contained the names of civilian witnesses. At a hearing the next day, the defense argued that the State had not complied with the court’s order that it provide the police reports, and as a result, the defense was unable to take depositions in the case. The court again ordered the State to provide the defense with the police reports or advise the court why it was unable to do so at a hearing rescheduled for March 12, 2002. Prior to the hearing, defense counsel filed its notices to take the depositions of several police officers on March 21, 2002 and the State provided the defense with two fire rescue reports, the Miranda warning form and the consent to search form.

On March 11, 2002, the defense filed a Notice of Expiration of Speedy Trial Time, which triggered the “recapture period,” requiring a hearing within five days and a trial within ten days of the hearing, or not later than March 26, 2002. Fla. R.Crim. P. 3.191. The next day, at the scheduled March 12, 2002 hearing, the State turned over the police reports and listed four new witnesses. The defense attempted to subpoena the State’s witnesses during the recapture window period. Many of the witnesses failed to appear.

On March 18, 2002, the trial court held a hearing on the Notice of Expiration of Speedy Trial Time. At this hearing, the defense moved for a - trial continuance chargeable to the State because the State had been dilatory in providing the police reports and as a result, it was unable to complete the depositions prior to the scheduled trial date. The court granted the motion and charged the continuance to the State, noting that the case was in the fifth day of the recapture window and was set for trial before a back-up judge on March 25, 2002, with a sounding hearing on March 22, 2002. At the sounding hearing, the defense announced that, although it had completed a number of depositions, it needed a further continuance to finish deposing the remaining witnesses. The defense sought to again charge this continuance to the State. The court initially opined that the continuance should be charged to the defense because counsel had made a tactical decision to delay commencement of the depositions until after it received the police reports. However, the court deferred ruling to permit the backup trial judge to entertain the motion at the commencement of trial.

The parties appeared for trial and the defense informed the court that it was not ready due to its inability to complete depositions and/or the failure of some of the witnesses to appear as scheduled. Thereafter, it requested a continuance chargeable to the State for its failure to timely furnish the police reports. The court was also informed that the next day, or March 26, 2002, was the fifteenth and final day of the recapture period. The record reflects that the trial court granted a continuance and charged it to the defense.

The following day, the defense filed its motion for discharge, which was handed to the State in open court on April 1, 2002. The State requested and received a two-week extension within which to file its response to the motion. On May 2, 2002, the trial court entered its order discharging Burnett from prosecution on grounds that the State failed to timely provide discovery and/or failed to bring Burnett to trial within the recapture period. This appeal followed.

The purpose of the speedy trial rule is “to promote the efficient operation of the court system and to act as a stimulus to prosecutors to bring defendants to trial as soon as practicable, thus minimizing the hardships placed upon accused persons awaiting trial.” Lewis v. State, 357 So.2d 725, 727 (Fla.1978). The rule dictates that a defendant, charged with a felony, be brought to trial within 175 days of arrest. If not, the defendant may file a Notice of Expiration of Speedy Trial Time. Pursuant to the rule, the court must hold a hearing within five days and, if appropriate, order that the defendant be brought to trial within ten days. If the defendant is not brought to trial within that time, through no fault of his own, he is forever discharged from the crime. The fifteen-day period after the initial 175 days, during which the State has its last chance to bring the defendant to trial, is known as the “recapture period,” or the “recapture window.”

The initial 175-day speedy trial period expired in this case on March 7, 2002, and Burnett filed a notice of expiration on March 11, 2002. Absent a defense continuance, the last date on which the trial could have timely commenced would have been March 26, 2002. Burnett, due to his own motion for a continuance, was not brought to trial by March 26, 2002. This continuance, however, was charged to the defense. Thus, it was the defense that was “unavailable” for trial as defined in Rule 3.191(k), and the strict time constraint of the speedy trial rule were effectively waived. See Rosenwasser v. Smith, 308 So.2d 600, 602 (Fla. 3d DCA 1975).

Burnett nevertheless argues that based upon the State’s delay in providing the police reports and our pronouncements in State v. DelGaudio, 445 So.2d 605 (Fla. 3d DCA 1984) and Vega v. State, 778 So.2d 505 (Fla. 3d DCA 2001) that a defendant should not have to choose between the right to a speedy trial and the right to discovery within sufficient time to adequately prepare for trial, that his last request for continuance should have been charged to the State. We disagree.

First of all, in DelGaudio, we held that the dismissal of criminal charges was not an appropriate sanction for the State’s delay in furnishing essential discovery material to the defense where the delay had not affected the defendant’s ultimate ability to defend against the charges. 445 So.2d 609, 611. We noted that “[t]he key question in a situation in which a discovery violation is alleged is whether or not the defendant was significantly prejudiced by the State’s failure to produce the requested evidence.... ” Id. at 609. Where the State furnishes sufficient discovery, which permits the defendant to use the information in preparation of his defense, before trial, there is no longer any prejudice from the previous delay. Id. at 610. On the other hand, “[w]here material discovery is furnished at a time which will not enable the defendant to make use of it in the preparation of his defense before the expiration of the speedy trial time limits, the court may properly continue the case to a date beyond those limits, charge the continuance to the State, and thereafter grant the defendant’s motion for discharge based on the speedy trial rule violation.” Id. at 611. It is in this latter instance that we declared that a defendant would not be forced to choose between his right to have discovery and an adequate time to utilize it in preparing for trial and his right to a speedy trial. Id. Thus, in Vega, where the State did not provide the defense with any discovery until the day of trial, we held that the trial court erred in failing to charge the defense’s request for a continuance to the State and in thereafter failing to grant the defense motion for discharge. 778 So.2d at 506, 507.

Under the facts of this case, we do not find that the defense was irreparably prejudiced in its trial preparation when it received the requested police reports at least twelve days prior to the expiration of the recapture period. Although the State certainly should have supplied these reports sooner, we note that the defense was timely furnished with the names of the State’s civilian and police witnesses. These depositions could (and should) have been commenced well in advance of the recapture period. If it turned out later that there were material discrepancies between the police reports and the deposition testimony, the defense counsel could have sought to impeach those witnesses at trial.

The delay in commencing any depositions until receipt of the police reports was a tactical decision made by defense counsel. In making such a decision, it assumed the risk of scheduling problems with the witnesses for deposition purposes immediately prior to trial. When the defense was unable to complete all of its depositions prior to the last day of the recapture period, the continuance was properly chargeable to the defense the right to a speedy trial was waived. Thus, the defendant was not entitled to a discharge from the charges.

Accordingly, we reverse the order of discharge and remand for further proceedings.

GREEN and WELLS, JJ., concur.

SCHWARTZ, Chief Judge

(specially concurring).

I base my vote for reversal upon the simple “rule that a successful defense motion for continuance waives the right to discharge under the speedy trial rule.” State v. Guzman, 697 So.2d 1263, 1264 (Fla. 3d DCA 1997). See Moore v. State, 697 So.2d 569 (Fla. 3d DCA 1997); Guzman, 697 So.2d at 1263.

      . The rule provides in pertinent part:
      (p) Remedy for Failure to Try Defendant within the Specified Time.
      (1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision ©.
      (2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled "Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.
      (3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10 day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.
      Fla. R.Crim. P. 3.191(p).
      (j) Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that:
      (1) a time extension has been ordered under subdivision (i) and that extension has not expired;
      (2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;
      (3) the accused was unavailable for trial under subdivision (k); or
      (4) the demand referred to in subdivision (g) is invalid.
      If the court finds that discharge is not appropriate for reasons under subdivisions 0(2), (3), or (4), the pending motion for discharge shall be denied, provided, however, that trial shall be scheduled and commence within 90 days of a written or recorded order of denial.
      Fla. R.Crim. P. 3.1910.

      . The Speedy Trial Rule derives from article I, section 16(a), of the Florida Constitution, which provides that, "[i]n all criminal prosecutions the accused ... shall have the right ... to have a speedy and public trial.... ” The rule provides, in pertinent part:
      (a) Speedy Trial without Demand. Except as otherwise provided by this rule ... every person charged with a crime by indictment or information shall be brought to trial ... within 175 days if the crime charged is a felony. If trial is not commenced within [this] time period[ ], the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p). The time periods established by this subdivision shall commence when the person is taken into custody....
      Fla. R.Crim. P. 3.191(a).

      . See note 1, supra.

      . This subdivision states, in pertinent part:
      A person is unavailable for trial if the person or the persons counsel fails to attend a proceeding at which either’s presence is required by these rules, or the person or counsel is not ready for trial on the date trial is scheduled.
      Fla. R.Crim. P. 3.191(k).


text:
    Alexi Antonio VELAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1192.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Richard L. Polin, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and GREEN and SHEPHERD, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Upon the State’s proper confession of error that Velazquez’s restitution should be reduced from $ 1,860 to $1,828 to conform to the terms of Velazquez’s plea agreement, we remand with instructions to reduce restitution accordingly. See Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998) (“A plea agreement is a contract and the rules of contract law apply to plea agreements.”); State v. Frazier, 697 So.2d 944, 945 (Fla. 3d DCA 1997) (“[T]he state, above all parties, must keep its word.”). We otherwise affirm the order revoking and modifying the terms of Velazquez’s probation.

Affirmed in part, remanded with instructions.


text:
    Olga Urizar SERRANO, as Personal Representative of the Estate of Miguel Serrano and Olga Urizar Serrano, individually, Appellants, v. PHILIP MORRIS INCORPORATED (Philip Morris U.S.A.); R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation, Individually and as Successor of the American Tobacco Company; Lorillard Tobacco Company; Lorillard, Inc. Liggett Group, Inc. f/k/a Liggett & Myers Tobacco Co.; Brooke Group, Ltd., a/k/a Brooke Group Holding, Inc. and Liggett Vector Brands, Inc., Appellees.
    No. 3D03-1122.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Coffey & Wright and Kendall Coffey and Mark A. Journey, Miami, for appellants.
    Carlton Fields and Douglas J. Chum-bley, Miami, for appellees.
    Before SCHWARTZ, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

Upon the agreement of the parties, the order below is vacated and the cause remanded for further proceedings consistent with Liggett Group, Inc. v. Engle, 853 So.2d 434 (Fla. 3d DCA 2003).


author: BARKDULL, Senior Judge.

text:
    ROBOBAR, INC., Robobar Limited, and Roboserve, Inc., Appellants, v. HILTON INTERNATIONAL CO., Appellee.
    No. 3D03-1641.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Rehearing Denied April 28, 2004.

      Armstrong & Mejer, P.A., and Timothy J. Armstrong, Coral Gables, for appellants.
    William L. Petros, Miami, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge.
   BARKDULL, Senior Judge.

We find from the record that the trial court committed no reversible error in the entry of the summary judgments and directed verdict under review.

The contract sued upon was drafted by appellant, Robobar Limited, and it was appropriate for the trial court to construe, as a matter of law, the contract’s expiration date. See Khosrow Maleki, P.A., v. M.A. Hajianpour M.D., P.A., 771 So.2d 628, 631 (Fla. 4th DCA 2000)(“The interpretation of a contract is a question of law”); Murry v. Zynyx Marketing Communications, Inc., 774 So.2d 714, 715 (Fla. 3d DCA 2000) (“It is axiomatic that the clear and unambiguous words of a contract are the best evidence of the intent of the parties”). As Robobar failed to demonstrate a breach during the term of the contract, the trial court’s directed verdict on the breach of contract claim was correct.

The directed verdict on the tortious interference count was also appropriate as any comments relating thereto were made by an interested party in a business relationship and, therefore, would not be actionable. See Genet Co. v. Annheuser-Busch, Inc., 498 So.2d 683 (Fla. 3d DCA 1986).

Finally, as to the count for defamation, no evidence was introduced to establish that the complained of remark was false or that any damage was suffered. See Razner v. Wellington Reg’l Med. Ctr., Inc., 837 So.2d 437, 442 (Fla. 4th DCA 2002); Valencia v. Citibank Int’l, 728 So.2d 330, 330 (Fla. 3d DCA 1999).

Therefore, the summary judgments under review and the final judgment based on the directed verdict are affirmed.

Affirmed.


text:
    David PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1549.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    David Perez, in proper person.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

David Perez appeals from the trial court’s order denying his motion pursuant to Florida Rule of Criminal Procedure 3.800(a), to apply credit for time served in prison to his new period of incarceration after revocation of community control. The state concedes that the motion should have been granted in part and our review of the record supports that conclusion. We therefore vacate the trial court’s order and remand the cause with directions to grant Perez credit for all time served in prison and in county jail prior to being sentenced to his current period of incarceration.

Vacated and remanded with directions.

      . Credit should be granted for the time Perez spent in prison, and not for the time he spent under house arrest. See Fernandez v. State, 627 So.2d 1 (Fla. 3d DCA 1993), rev. denied, 639 So.2d 977 (Fla. 1994).

      . The state has indicated that it will obtain from the Department of Corrections verification of the actual time Perez spent in prison so that the proper credit will be applied.


text:
    Jorge PASCUAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3B03-2911.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Jorge Pascual, in proper person.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Pursuant to the State’s proper confession of error, we reverse the trial court’s order and remand with directions for entry of a corrected sentencing order.

Reversed and remanded.


author: COPE, J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. TOTAL REHAB & MEDICAL CENTER, as assignee of Ovil Gaspard, Respondent. United Automobile Insurance Company, Petitioner, v. Care First Medical Center, Inc., as assignee of Janice Isaza, Respondent. United Automobile Insurance Company, Petitioner, v. Open MRI & Diagnostic Imaging, Inc., as assignee of Martha Castillo, Respondent.
    Nos. 3D03-2126, 3D03-2447, 3D03-2580.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.

      Stuart B. Yanofsky; Mark A. Gatica; Lawrence Root, for petitioner.
    Christian Carrazana, for respondent Total Rehab & Medical Center; John H. Ruiz, Miami, for respondent Care First Medical Center, Inc.; Rodier & Rodier and Brian M. Rodier, Hallandale, for respondent Open MRI & Diagnostic Imaging, Inc.
    Before SCHWARTZ, C.J., and COPE, LEVY, GERSTEN, GODERICH, GREEN FLETCHER, SHEVIN, RAMIREZ, WELLS, and SHEPHERD, JJ.
   On Hearing En Bane

COPE, J.

In these consolidated petitions for writ of certiorari, United Automobile Insurance Company seeks reinstatement of three appeals which were dismissed by the appellate division of the circuit court. Because there had been no fair warning that dismissal could result from failure to file the appellant’s initial brief by the deadline, we conclude that the petitions are well taken and grant them.

I.

Each of the cases now before us originated as a county court action against United Automobile Insurance Company (United Auto) to recover personal injury protection (PIP) benefits. In each case, judgment was entered against United Auto, and United Auto filed an appeal to the circuit court, appellate division. In each case, the appellate division granted extensions of time for United Auto to file its initial brief.

In United Automobile Insurance Co. v. Total Rehab & Medical Center, No. 3D03-2126, the circuit court granted United Auto a fourth extension of time, with the appellant’s initial brief to be due May 26, 2003. The order did not contain any warning that no further extensions of time would be allowed. United Auto filed the brief on May 28, 2003, two days late. The following day the appellate division dismissed the appeal.

In United Automobile Insurance Co. v. Care First Medical Center, No. 3D03-2447, the circuit court granted a second motion for extension of time, with the appellant’s initial brief to be due July 7, 2003. The order did not contain any warning that no further extensions of time would be allowed. On August 7, United Auto moved for a further extension of time. On August 8, the circuit court denied the motion without comment, and United Auto states that it received the order August 13. On August 14, the appellate division on its own motion dismissed the appeal.

In United Automobile Insurance Co. v. Open MRI & Diagnostic Imaging Center, No. 3D03-2580, the circuit court granted a second extension of time to July 23, 2003. The order did not contain any warning that no further extensions of time would be allowed. On July 23, United Auto moved for a further extension. On July 28, plaintiff-appellee Open MRI & Diagnostic Imaging filed an objection and motion to dismiss the appeal. On July 29, the circuit court denied the extension of time without comment. On August 4, United Auto requested reconsideration, and on August 7 filed the initial brief along with a motion to accept the brief as timely filed. On August 28, the appellate division dismissed the appeal.

From each of the dismissal orders, United Auto has filed a petition for writ of certiorari in this court. Two members of the court suggested that the petitions be considered en bane. See Fla. RApp. P. 9.331(c)(Hearings En Banc). The court has granted hearing en banc (without oral argument) and now grants the petitions.

III.

The principles applicable here are well-established. First, Florida has longstanding public policy in favor of deciding controversies on the merits. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849, 853 (Fla.1962); Apolaro v. Falcon, 566 So.2d 815, 816 (Fla. 3d DCA 1990). “Dismissal is regarded as an extreme sanction and for that reason is normally reserved for the most flagrant violations of the appellate rules.” Philip J. Padovano, Florida Appellate Practice § 16.8 at 240 (2004 ed.) (footnote omitted); see also id. § 6.7.

Second, the appellate rules allow extensions of time for most steps in the appellate process, including extensions of time for filing briefs. Fla. R.App. P. 9.300. Successive extensions of time are permissible unless the court has issued an order indicating that no further extensions will be allowed, or the equivalent.

Third, considerations of fairness dictate that if a failure to file the brief by the deadline may subject the appeal to dismissal, there must fair warning of that fact in advance.

Based on the foregoing, the great weight of Florida authority holds that the failure to file an initial brief by the deadline is not sufficient cause to justify dismissal of the appeal, unless there has been fair warning, in advance, that this consequence may flow from a late filing. See Mirage Pools, Inc. v. Dewitt, 757 So.2d at 1280; Irvin v. Williams, 736 So.2d 705 (Fla. 1st DCA 1999); Leonard v. First Union Nat’l Bank, 685 So.2d 98 (Fla. 3d DCA 1997); Hastings v. State, 640 So.2d 115 (Fla. 2d DCA 1994); Craig v. Preston, 593 So.2d 578 (Fla. 3d DCA 1992); Krebs v. State, 588 So.2d 38 (Fla. 5th DCA 1991); Moose v. State, 519 So.2d 61 (Fla. 2d DCA 1988); Kerr McGee Chemical Corp. v. Lipford, 395 So.2d 249 (Fla. 1st DCA 1981); cf. McClain v. Florida Power & Light Co., 523 So.2d 1245 (Fla. 1st DCA 1988) (persistent violations and failure to respond to court orders; appeal dismissed); Swicegood v. Florida Dept. of Transp., 394 So.2d 1111 (Fla. 1st DCA 1981) (brief overdue for two and one half months; inadequate response to court order). But see Famiglio v. Accredited Prof'l Servs., Inc., 592 So.2d 257 (Fla. 2d DCA 1991) (denying certiorari relief; facts not stated). If dismissal of the appeal is not justified but sanctionable conduct has occurred, then sanctions may be imposed. See Philip J. Padovano, Florida Appellate Practice § 16.8, at 241-42; Hastings, 640 So.2d at 117; Krebs, 588 So.2d at 39; Moose, 519 So.2d at 62-63.

Because these cases originated in the county court and proceeded to appeal in the circuit court’s appellate division, the scope of our certiorari review is quite restricted. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889-90 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). This court’s inquiry “is limited to whether the circuit court afforded procedural due process and whether it applied the correct law.” Ivey, 774 So.2d at 682 (citations omitted). “[T]he district court should examine the seriousness of the error and use its discretion to correct an error only when there has been a violation of [a] clearly established principle of law resulting in a miscarriage of justice.” Id. (citations and internal quotation marks omitted). The Ivey decision suggests that in granting certiorari we should address the certiorari standards, see id. at 683, and accordingly we do so here.

We conclude that there has been a departure from the essential requirements of law, as the law in this area is well-established. The result in the cases now before us is a dismissal for procedural default without fair warning. This amounts to a miscarriage of justice within the meaning of the certiorari cases. Further, prior district court of appeal decisions have found the issue now before us to be appropriate for certiorari review. See Mirage Pools, 757 So.2d at 1280-81; Irvin, 736 So.2d at 705; Leonard, 685 So.2d at 98; Hastings, 640 So.2d at 116; Craig, 593 So.2d at 578.

We recognize that the appellate division has considerable discretion in the control and management of its own docket, and rightly so. In the present cases, however, the certiorari standards have been satisfied. As the three appeals should not have been dismissed, we quash the dismissal orders now before us.

Certiorari granted.

      . There had been an earlier such order extending the time to May 16, 2003 (containing the language "or face dismissal”) but by a later-dated order (which did not carry the "or face dismissal” terminology) the time was extended to May 26.

      . Several earlier petitions challenging appellate division dismissal orders were denied without opinion. United Auto. Ins. Co. v. Abdon Medical Group Service, No. 3D03-2448, 861 So.2d 41 cert. denied (Fla. 3d DCA Nov. 11, 2003); United Auto. Ins. Co. v. West Gables Open MRI Services, No. 3D03-2199, 856 So.2d 1008 cert. denied (Fla. 3d DCA Oct. 3, 2003); United Auto. Ins. Co. v. Dynamic Medical Services, No. 3D03-2184, 856 So.2d 1007 cert. denied (Fla. 3d DCA Oct. 1, 2003); United Auto. Ins. Co. v. West Gables Open MRI Services, No. 3D03-2544, 855 So.2d 67 cert. denied (Fla. 3d DCA Sept. 26, 2003); United Auto. Ins. Co. v. Abiomed Professional Group, No. 3D03-2289, 856 So.2d 1007 cert. denied (Fla. 3d DCA Sept. 11, 2003); United Auto. Ins. Co. v. Stat Technologies, Inc., No. 3D03-2198, 856 So.2d 1008 cert. denied (Fla. 3d DCA Oct. 3, 2003).

      . For example, where the court becomes aware that the initial brief has not been filed, but there was no previous “no further extensions” order, it is customary to enter an order giving the party ten days to file the initial brief with a warning that failure to comply may result in dismissal of the appeal. The Fourth District has explained that the ten-day notice corresponds to the ten-day period referenced in Florida Rule of Appellate Procedure 9.410, which addresses sanctions which may be imposed in an appellate proceeding. Mirage Pools, Inc. v. Dewitt, 757 So.2d 1280 (Fla. 4th DCA 2000).