author: COPE, J.

text:
    Roger C. BENSON and Patricia Hardy-Smith, individually and as Co-Personal Representatives of the Estate of Noah Benjamin Benson, a minor, Appellants, v. NORWEGIAN CRUISE LINE LIMITED, and Carla Von Benecke, M.D., Appellees.
    No. 3D01-1845.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      Colson Hicks Eidson and Marc Cooper and Maureen E. Lefebvre, Coral Gables, for appellants.
    Mase & Gassenheimer and Beverly D. Eisenstadt and Jeffrey E. Foreman, for appellees.
    Before COPE, GERSTEN and FLETCHER, JJ.
   On Motion for Rehearing and Certification

COPE, J.

On consideration of the appellees’ motion for rehearing, rehearing en banc, and certification, the court withdraws its opinion dated January 15, 2003 and substitutes the following opinion:

The plaintiffs in this case brought a lawsuit alleging medical malpractice aboard a cruise ship, at a time when the ship was 11.7 nautical miles east of the Florida shore. The question presented is whether the medical malpractice incident occurred within Florida’s territorial waters. We conclude that the answer is yes.

I.

The decedent, Noah Benson, was a thirteen-year-old passenger on the M/S Leeward, a cruise ship owned by defendant-appellee Norwegian Cruise Line Limited (“NCL”). Noah was traveling with his mother, plaintiff-appellant Patricia Hardy-Smith, as well as another family member. The cruise route was from Miami to Key West and return.

While on board, Noah ate shellfish and had an allergic reaction. Due to swelling in the windpipe he could not breathe.

Medical treatment was sought from the ship’s doctor, appellee Carla Von Benecke. She attempted to insert a breathing tube several times. Noah died before intubation could be successfully completed.

The mother and Roger C. Benson, the natural father, brought a wrongful death action against NCL and Dr. Von Benecke, claiming medical malpractice. Dr. Von Benecke moved to dismiss for lack of personal jurisdiction. Dr. Von Benecke is a South African national who was employed on the NCL cruise ship as a contract employee.

The plaintiffs opposed Dr. Von Be-necke’s motion to dismiss, arguing that the claimed incident of medical malpractice occurred while the ship was within Florida’s territorial waters as defined by article II, section 1, of the Florida Constitution. The trial court concluded that the ship was outside of Florida’s territorial waters at the relevant times and granted the motion to dismiss as to Dr. Von Benecke. The plaintiffs have appealed.

II.

Dr. Von Benecke is not a resident of Florida. However, under Florida’s long arm statute, a Florida court may exercise personal jurisdiction over a nonresident where (insofar as pertinent here) the cause of action arises from the defendant’s “[cjommitting a tortious act within this state.” § 48.193(1)(b), Fla. Stat. (1997). Thus if the medical treatment giving rise to the present case occurred within Florida’s territorial boundaries, this is sufficient to establish long arm jurisdiction over Dr. Von Benecke. Godfrey v. Neumann, 373 So.2d 920 (Fla.1979).

We turn then to a consideration of Florida’s boundaries. These are set forth in article II, section 1, of the 1968 Florida Constitution.

The eastern part of the boundary between Florida and Georgia is the St. Marys River. Where that river enters the Atlantic Ocean, the Florida boundary proceeds “due east to the edge of the Gulf Stream or a distance of three geographic miles whichever is the greater distance; thence in a southerly direction along the edge of the Gulf Stream or along a line three geographic miles from the Atlantic coastline ... whichever is greater, to and through the Straits of Florida....” Fla. Const. Art. II, § 1 (1968) (emphasis added).

According to the expert evidence in this case, the cruise ship was at all relevant times within this boundary. The ship was located 11.7 nautical miles east of Florida’s coastline. The ship had not yet reached the edge of the Gulf Stream, which was 14 nautical miles east of the relevant portion of Florida’s coastline on the day in question. Thus, based on the boundary as stated in the Florida Constitution, the claimed incident of medical malpractice occurred within Florida’s territorial boundaries.

III.

Dr. Von Benecke argues that under the federal Submerged Lands Act, Florida is not allowed to claim an Atlantic territorial sea greater than three nautical miles. That is not so.

The Submerged Lands Act was adopted in order to resolve a controversy between the states and the federal government regarding ownership of the ocean bed and the natural resources contained therein. See United States v. States of Louisiana, Texas, Mississippi, Alabama and Florida, 363 U.S. 1, 4-36, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960) (hereafter “United States v. Louisiana”). For that purpose, the Act provided in general terms for a three-mile seaward boundary for coastal states wherein the states would own and control the sea bed and its resources. 43 U.S.C. §§ 1311, 1312. The present case does not involve any claim of ownership of the ocean bed or the resources contained therein.

As we view the matter, the Submerged Lands Act does not prevent Florida from asserting a territorial sea beyond three miles in the Atlantic, and exercising police powers thereon. See Carnasion v. Paul, 53 So.2d 304 (Fla.1951); see also Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal.4th 557, 59 Cal.Rptr.2d 186, 927 P.2d 296 (1996). The conduct at issue here occurred on the ocean’s surface, not on the ocean bottom.

Dr. Von Benecke contends that under international law it is impermissible for Florida to claim a territorial sea in excess of twelve miles. She points out that the United Nations Convention on the Law of the Sea states, in part, “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” Id. Part II, § 2, Art. 3. The parties agree that the United States is not a signatory to the Convention, but Dr. Von Benecke points to the existence of the Convention as being evidence of international law on the point. We need not address that argument here. The claimed incident of malpractice occurred when the cruise ship was less than twelve nautical miles offshore.

Dr. Von Benecke argues that our decision is contrary to the Death on the High Seas Act, 46 U.S.C.A. app. § 761-67. That argument is incorrect. The Death on the High Seas Act does not purport to define the territorial boundaries of the various states.

Dr. Von Benecke argues that it is impermissible to establish a territorial sea boundary as being the western edge of the Gulf Stream, because the Gulf Stream moves, thus creating a variable boundary. That is not a proper ground for objection here. The Florida Constitution already establishes the boundary as the edge of the Gulf Stream, and the wisdom of that decision was for the drafters of the Constitution and the electorate in ratifying it. The boundary must be respected unless overridden by controlling federal law or treaty.

IV.

Dr. Von Benecke asserts that the plaintiffs’ position in this case is inconsistent with Darbie v. State, 711 So.2d 1280 (Fla. 3d DCA 1998), but that is not so. The Darbie decision construed a different Florida constitutional provision, article X, section 16, which contains its own boundary definition for enforcing the ban on marine net fishing. Darbie has no application here.

Dr. Von Benecke argues that under Elmlund v. Mottershead, 750 So.2d 736 (Fla. 3d DCA 2000), Florida’s territorial limit has been set at three miles. That is not so. In Elmlund the opinion states that the alleged medical malpractice occurred on the high seas, but the opinion does not address Article II, Section 1 or the location of Florida’s territorial sea.

Dr. Von Benecke points out that in Florida Marine Towing, Inc. v. United National Ins. Co., 686 So.2d 711 (Fla. 3d DCA 1997), this court stated that “[t]he water seaward of the coastline and out to the three-mile limit is the marginal or territorial sea of Florida.” Id. at 714. The actual issue in that case, however, was the definition of “inland waters” for purposes of an insurance policy and we ruled that “[t]he marginal or territorial sea is not ‘inland waters.’ ” Id. The interpretation of Article II, Section 1, was not raised or decided in that case. “[N]o decision is authority on any question not raised and considered, although it may be involved in the facts of the case.” State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6 (1930); Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 304 (Fla. 4th DCA 1995); City of Miami v. Stegemann, 158 So.2d 583, 584 (Fla. 3d DCA 1963).

Dr. Von Benecke argues that the decision in New Sea Escape Cruises, Ltd. v. Florida Dept. of Revenue, 823 So.2d 161 (Fla. 4th DCA 2002), rev. granted, 845 So.2d 889 (Fla.2003), establishes three miles as the limit of Florida’s territorial sea in the Atlantic Ocean. See id. at 163 (referring to “the three-mile limit”). She also cites Butterworth v. Tropic Casino Cruises, Inc., 796 So.2d 1283 (Fla. 5th DCA 2001), which likewise refers to “the three-mile boundary of the State of Florida.” Id. at 1284. Again, neither of these cases decided the point now before us. In neither case was the effect of Article II, Section 1, of the Florida Constitution addressed.

For the stated reasons, we reverse the judgment dismissing Dr. Von Benecke from the lawsuit, and remand for further proceedings.

Reversed and remanded.

      . The lawsuit remains pending in the trial court with respect to NCL.

      . The date of death was February 27, 1998. See Fibreboard Corp. v. Kerness, 625 So.2d 457, 459 (Fla.1993) ("The statute in effect at the time of the acts subjecting one to long-arm jurisdiction is the applicable one.”)

      . The plaintiffs mistakenly state that this boundary definition originated with the Florida Constitution of 1868. The plaintiffs’ error is traceable to a misquote in an unpublished federal decision, in which the court inadvertently described the just-quoted language as being found in the Florida Constitution of 1868, rather than 1968. See Shultz v. Florida Keys Dive Center, Inc., No. 97-10047-Civ., Order on Defendants’ Motions for Summary Judgment, at 33-34 (S.D.Fla. July 24, 1998).
      Florida’s constitutional descriptions of the eastern boundary have varied in each constitution from 1868 to the present. See Fla. Const. Art. I (1868); Fla. Const. Art. I (1885); Id. (as amended 1962); Fla. Const. Art. II, § 1 (1968).

      .The plaintiffs offer an alternative analysis which we need not reach. The plaintiffs point out that the final sentence of Article II, Section 1 provides, "The State of Florida shall also include any additional territory within the United States adjacent to the Peninsula of Florida lying south of the St. Marys River, east of the Perdido River, and south of the States of Alabama and Georgia.”
      The United States has adopted a territorial sea of twelve nautical miles. Proclamation No. 5928, 54 Fed.Reg. 777 (Dec. 27, 1988). The plaintiffs assert that under this part of the Florida constitutional provision, Florida has a twelve-mile territorial sea, coterminous with the twelve nautical miles described in Proclamation No. 5928.

      . The Act provided a procedure for a state to claim a greater boundary "if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress." Id. § 1312. In United States v. Louisiana, Florida successfully established a historic boundary within the Gulf of Mexico of three marine leagues, and thus became entitled under the Act to ownership of that submerged land. 363 U.S. at 121-29, 80 S.Ct. 961.

        . Speaking just for himself, the writer of this opinion suggests that in an appropriate case, this court should recede from its decision in Elmlund v. Mottershead, 750 So.2d 736 (Fla. 3d DCA 2000). In that case, a medical malpractice claim was asserted against a ship's physician who was employed on a cruise liner based in Miami. The alleged incident of malpractice occurred on the high seas. Because the alleged incident of malpractice occurred outside of Florida’s territorial waters, the Elmlund court concluded that the doctor could not be deemed to have been doing business in Florida. Id.; see also Rana v. Flynn, 823 So.2d 302 (Fla. 3d DCA 2002).
      The Elmlund panel took much too narrow a view. Where a Florida-based company is in the business of selling cruises which depart from Florida, sail into international waters, and return to Florida, plainly the company is engaged in business in Florida, The same analysis holds true for a ship's physician who, under a contract of employment, sails on such a ship. See § 48.193(1)(a), Fla. Stat. See generally Tidewater Marine, 59 Cal.Rptr.2d 186, 927 P.2d at 300-01.
      Because of Elmlund, it has been necessary for the parties in the present case to devote considerable time and resources to establishing the exact location of the ship, so as to determine whether the alleged tort occurred within Florida’s boundaries. Such an inquiry should not be necessary, because entering into an employment agreement to serve as the ship’s doctor on a cruise liner operating out of Miami clearly amounts to engaging in business in Florida for purposes of the long arm statute.

      . In light of this opinion, the motion for rehearing and certification of a question of great public importance is denied.


source: Caselaw Access Project

author: PER CURIAM. SHAHOOD, J.,

license: Public Domain

text:
    Dr. Edwin RUSKIN and Clarice Ruskin, Appellants, v. Charles F. RYAN, as the Personal Representative of the Estate of Linda W. Ryan, Appellee.
    No. 4D02-2122.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Rehearing Denied Dec. 8, 2003.
    Betsy E. Gallagher and Dorothy C. Venable of Cole, Scott and Kissane, P.A., Tampa, and Peter A. Sachs of Jones Foster Johnston & Stubbs, West Palm Beach, for appellants.
    John M. Quaranta of Tew Cardenas Rebak Kellogg Lehman DeMaria Tague Raymond & Levine, L.L.P., Miami, for appellee.
   PER CURIAM.

Linda Ryan (Ryan), a securities broker, prevailed in a suit brought against her by appellants, Dr. Edwin Ruskin and Clarice Ruskin (the Ruskins), to recover $100,000 that they invested and lost due to an illegal Ponzi scheme run by Omni Capital Group, Ltd. (Omni). The Ruskins’ suit for fraud, breach of contract, breach of fiduciary duty, negligence, sale of an unregistered security, and negligent supervision went to arbitration before the National Association of Securities Dealers, and resulted in dismissal of all allegations against Ryan and an assessment of fees in the amount of $6,600 against the Ruskins.

Ryan subsequently filed suit against the Ruskins and their attorney, Charles Franken (Franken), alleging malicious prosecution, conspiracy to maliciously prosecute, solicitation of perjury, and perjury. Ryan’s claims against Franken were dismissed pursuant to a settlement agreement. Her claims against the Rus-kins proceeded to a jury trial, which resulted in a verdict in favor of Ryan on all counts, and an award of $750,000 in compensatory damages. Following the denial of motions for directed verdict and new trial, the trial court entered final judgment in accordance with the verdict. This appeal follows.

We have considered the Ruskins’ arguments that the trial court erred in denying their motions for directed verdict on various counts, and find them to be without merit. Thus, we affirm the jury’s substantive findings of liability. On the issue of damages, however, we hold that the jury’s verdict is not supported by competent substantial evidence and reverse and remand for a new trial on damages only.

The evidence showed that Ryan hired attorneys to represent her in fourteen lawsuits stemming from these investments, including the Ruskins’ suit, an SEC investigation, and a class action suit. Her attorney testified at trial that the total amount of fees incurred by Ryan for his representation of her in all fourteen suits was $360,000. No evidence, however, was presented to show that all of these fees were incurred as a result of the suit filed by the Ruskins against Ryan.

Similarly, Ryan’s husband and personal representative, Charles Ryan (Charles), testified that Ryan lost income in the amount of $1,264,000 as a result of the Ruskins’ suit. In arriving at this figure, Charles determined how much Ryan would have made had she continued to work at Prudential Securities through 1992, and then ascertained the difference between that amount and the amount she actually earned each year until her death in 1998. Although there was evidence that Ryan was fired from Prudential Securities for her involvement with Omni, there was no evidence that she lost her job as a result of the Ruskins’ suit as opposed to the ensuing SEC investigation or the suits brought by other investors. In addition, although Ryan began working with Dean Witter soon after her employment with Prudential was terminated and apparently earned a lower income than she had previously, there was no evidence that the Ruskins’ suit caused Ryan to have a diminished earning capacity.

As the Third District stated in MMH Venture v. Masterpiece Products, Inc., 559 So.2d 314 (Fla. 3d DCA1990):

Despite the weight which our judicial system generally ascribes to a jury verdict,
“[w]e are mindful ... that an appellate court should override a jury verdict when ‘there is no competent substantial evidence which sustains the jury’s verdict or, stated in another form, when the verdict is against the manifest weight of the evidence.’ A district court of appeal cannot affirm a verdict which rests ‘on a mere probability or guess,’ or a verdict which ‘has no rational predicate in the evidence.’ ”

Id. at 816 (quoting Rakita v. Rose, 547 So.2d 154, 157 (Fla. 3d DCA 1989) (citations omitted)). The instant case is one in which there is no competent substantial evidence to support the amount of the damages awarded.

Accordingly, we affirm the liability verdict in favor of Ryan, but reverse the damages award. Because there was no interrogatory verdict, we are unable to determine the extent of the compensatory damages erroneously awarded, but the record is clear that, absent the unsupported damages, the award could not have reached $750,000. We therefore remand for a new trial on damages.

AFFIRMED in part; REVERSED in part and REMANDED.

POLEN and STEVENSON, JJ., concur. SHAHOOD, J., dissents with opinion.

SHAHOOD, J.,

dissenting.

I would affirm the final judgment entered in accordance with the jury’s verdict in all respects. There was sufficient and adequate testimony to enable the jury to return the verdict it did in the amount rendered. The trial court properly allowed the jury, in its fact-finding capacity, to weigh the evidence presented and render its verdict. I would not disturb the jury’s finding. See, e.g., Uniroyal Tire Co. v. Trujillo, 711 So.2d 606, 609 (Fla. 3d DCA 1998) (a verdict is against the manifest weight of the evidence only when it is clear, obvious, and indisputable that the jury was wrong).

      . During the pendency of this lawsuit, Ryan died. The personal representative of her estate was substituted as plaintiff.


author: PER CURIAM.

text:
    Cheryl GIBBAR, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3203.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2003.
    Cheryl Gibbar, Bronson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (holding that a trial court’s ruling on a 3.850 motion will not be disturbed if it is supported by competent, substantial evidence); see also Dudek v. State, 783 So.2d 331 (Fla. 5th DCA 2001) (holding that it was contemplated at the time of the plea that appellant would be sentenced to 85 months in prison and reducing his sentence to conform to the 1994 guidelines was all that appellant was entitled to at his Heggs resentencing).

THOMPSON, PLEUS and TORPY, JJ„ concur.


text:
    Florin Richard DANKERT a/k/a Richard Leonard Dankert a/k/a Richard Florin Dankert, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2215.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.
    Cedric P. Hay of Beil & Hay, P.A., Hudson, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Florin Richard Dankert challenges his convictions and sentences for two counts of handling and fondling a child under sixteen. Because the prosecution of these charges was barred by the statute of limitations, we reverse and remand for discharge.

On April 16, 1997, the State filed an information charging Dankert with two counts of handling and fondling a child under sixteen in violation of section 800.04(1), Florida Statutes (1997), a second-degree felony. The information alleged that the offenses occurred between December 1, 1996, and January 16, 1997; however, during discovery it became apparent that the offenses actually occurred sometime between January 1 and November 13, 1993. The State subsequently filed a statement of particulars confirming that the alleged offenses occurred before November 13, 1993, and it stipulated in various proceedings that the latest possible date on which the offenses could have occurred was November 13,1993.

In response to these amended dates, Dankert filed a verified motion to dismiss the information, contending that his prosecution on these charges was barred by the three-year statute of limitations found in section 775.15(2)(b), Florida Statutes (1993). At the hearing on Dankert’s motion, Richard Bitting, a child abuse investigator with the Florida Department of Children and Family Services (formerly the Florida Department of Health and Rehabilitative Services or HRS), testified that on November 13, 1993, HRS received a report that Dankert was sexually molesting children in his care. Bitting, accompanied by a Pasco County sheriffs deputy, proceeded to Dankert’s home, where they found Dankert babysitting a two-year-old child. Bitting contacted the child’s mother, who subsequently arrived at Dankert’s home with her two older children. While at Dankert’s home, Bitting interviewed both older children, including the alleged victim in this case, six-year-old A.C. During that interview, A.C. denied that Dan-kert had engaged in any sexual misconduct with her. Bitting completed a report and submitted it to the State Attorney’s Office for Pasco County. Dankert also presented evidence that he had no contact with A.C. after November 13, 1993. The State took no further action on these charges until 1997.

Based on this testimony, Dankert argued that the prosecution of these charges was barred by the statute of limitations because the information was filed more than three years after the latest possible date on which the offenses could have occurred. In response, the State argued that the tolling provision of section 775.15(7), Florida Statutes (1993), applied and that the November 13, 1993, report was insufficient to trigger the statute of limitations because there was no evidence at that time to corroborate the allegations. The trial court denied the motion to dismiss, finding that the November 13, 1993, report to HRS was legally insufficient because the statute of limitations was tolled under section 775.15(7) until there was “some substantiated report that would give the State Attorney, at least if not probable cause, at least reasonable ground to suspect that something was going on and they ought to investigate further.”

Dankert was subsequently convicted of the charges following a jury trial and sentenced to ten years in prison on each count. In this appeal, he raises numerous errors that occurred during trial and at sentencing, including challenging the denial of Ms motion to dismiss. Because that issue is dispositive, we need not address Dankert’s remaining arguments.

Under section 775.15(2)(b), a prosecution for a second-degree felony must be commenced within three years after it is committed. In this case, the offenses occurred no later than November 13, 1993, and the information was filed on April 16, 1997. Clearly, the State did not commence its prosecution against Dankert within three years after the offenses were committed. Therefore, unless some exception or tolling provision applies, this prosecution was barred by the statute of limitations.

The State contends that the tolling provision of section 775.15(7) allows for this prosecution to go forward. Section 775.15(7) states:

If the victim of a violation of s. 794.011, s. 794.05, s. 800.04, or s. 826.04 is under the age of 16, the applicable period of limitation, if any, does not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such allegation to the state attorney for the judicial circuit in which the alleged violation occurred.

Here, the record firmly establishes that the alleged violation was reported to HRS and to law enforcement in November 1993 and that HRS promptly reported the results of its investigation to the State Attorney. Thus, under the plain language of section 775.15(7), the statute began to run in November 1993 with the report to HRS.

As it did in the trial court, the State contends that the November 13, 1993, report was insufficient to trigger the statute for two reasons, neither of which has merit. First, the State argues that the report was insufficient because HRS did not uncover any information that would corroborate the allegations. In essence, the State contends that the report did not provide it with any reasonable grounds to suspect that further investigation was needed. However, the plain language of the statute does not require that the reported violation be corroborated or that the report provide reasonable grounds to suspect that further investigation was needed. Rather, the statute simply requires that the alleged violation be reported to law enforcement or to another governmental agency and that the agency report the alleged violation to the state attorney. This court is powerless to engraft additional requirements onto an unambiguous statute.

Second, the State argues that no “violation” was reported in 1993 because the report was only an allegation. However, section 775.15(7) clearly states that law enforcement or the government agency must report “such allegation ” to the state attorney for the judicial district “in which the alleged violation occurred.” (Emphasis added.) Therefore, the statute clearly contemplates that reports of alleged violations are sufficient to trigger the running of the statute.

The traditional purpose of statutes of limitation is to require the assertion of claims within a specified period after notice of the possible violation of legal rights. Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). They also serve to “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Totura & Co. v. Williams, 754 So.2d 671, 681 (Fla.2000) (quoting Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 88 L.Ed. 788 (1944)). Tolling provisions generally prevent the statute of limitations from running until the party whose legal rights were violated has or should have notice of the violation. See Proctor v. Schomberg, 63 So.2d 68, 70 (Fla.1953) (noting that tolling provisions prevent the statute of limitations from expiring before discovery, or a reasonable opportunity of discovery, by the party whose legal rights were violated).

Here, it is clear that the State had notice of A.C.’s molestation by Dankert in November 1993, and all of the requirements of section 775.15(7) were satisfied at that time. Therefore, the statute of limitations began to run on November 13, 1993, and expired on November 13, 1996. Accordingly, the State’s prosecution of Dan-kert commenced in April 1997 was barred by the statute of limitations, and the trial court should have granted Dankert’s motion to dismiss.

We share the State’s dismay in the result of this decision, which is to release a man convicted by a jury of sexually abusing a child. However, when this court is called upon to apply a statute, it must be guided by the language of the statute itself rather than by the popularity of the result of the statute’s proper application to the facts. Here, we cannot rewrite the clear provisions of section 775.15(7) to require corroboration of a reported offense, nor may we ignore the statutory language that allows an alleged violation to trigger the running of the statute of limitations. Any such requirement must be added by the legislature, not by this court.

Reversed and remanded for discharge.

SALCINES, STRINGER, and VILLANTI, JJ., Concur.


author: COVINGTON, Judge. ALTENBERND, Chief Judge,

text:
    STATE of Florida, Petitioner, v. Eddie A. VEILLEUX, Respondent.
    Nos. 2D02-3226, 2D02-3256.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.

      Bernie McCabe, State Attorney and William H. Burgess, III, Assistant State Attorney, Clearwater, and Charles J. Crist, Jr., Attorney General, Tallahassee and Katherine V. Blanco, Assistant Attorney General, Tampa, for Petitioner.
    Bob Dillinger, Public Defender and Joy K. Goodyear, Assistant Public Defender, Clearwater, for Respondent.
   COVINGTON, Judge.

The State petitions this court to issue a writ of certiorari and quash the trial court’s interlocutory pretrial order granting Eddie A. Veilleux’s motion in limine. Because the trial court did not depart from the essential requirements of the law, we deny the State’s petition.

BACKGROUND

On February 16, 2002, police stopped Mr. Veilleux for driving a vehicle that had been reported stolen. The State alleges that Mr. Veilleux told officers his name was “Mark Lee White” and that he had a valid New Hampshire driver’s license. The State also submits that Mr. Veilleux signed traffic citations for reckless driving and driving without a valid driver’s license using the name “Mark Lee White.” The police discovered Mr. Veilleux’s true identity when they heard a passenger refer to him by a nickname.

The State charged Mr. Veilleux with forgery pursuant to section 831.01, Florida Statutes (2002). He filed a motion in limine to exclude the forged traffic citations based on section 316.650(9), Florida Statutes (2002), and Dixon v. State, 812 So.2d 595 (Fla. 1st DCA 2002). Section 316.650(9) provides that traffic citations “shall not be admissible evidence in any trial.” The First District in Dixon specifically held that section 316.650(9) prohibits trial courts from admitting traffic citations as evidence in trials for forgery of the citations. Id. In granting Mr. Veilleux’s motion in limine, the trial court stated, “[T]he law is such that I am bound to follow the Dixon case.” Dixon is the lone district court case directly on point and is factually indistinguishable from this case.

In Dixon, the defendant gave the police officer who stopped him a false name. Id. at 595-96. In addition, he signed a traffic citation using the false name. Id. at 596. When his true identity was discovered, the defendant’ in Dixon was charged with forgery as well as driving without a valid driver’s license. Id. Dixon filed a motion in limine to prohibit the State from introducing the traffic citation as evidence. Id. The trial court denied his motion, finding that the legislature could not have intended the exclusion of a traffic citation when the execution of the citation is the basis of the offense at trial. Id. The First District reversed, observing that section 316.650(9) contains no exceptions to its clear and unambiguous prohibition against admitting a traffic citation as evidence in any trial. Dixon, 812 So.2d at 596. The court stated:

It is a well-established principle of statutory interpretation that an unambiguous statute is not subject to judicial construction, no matter how wise it may seem to alter the plain language of the statute. State v. Jett, 626 So.2d 691, 693 (Fla.1993). “Moreover, '[e]ven where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.’ ” St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982) (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918)).

Id.

The Dixon court pointed out that while courts may interpret a statute in a way that contradicts the statute’s plain language where there is “diseernable legislative intent” to support such an interpretation, see Vildibill v. Johnson, 492 So.2d 1047, 1049 (Fla.1986), the court in Dixon had no basis to discern a legislative intent to make an exception to section S16.650(9)’s unambiguous language. Dixon, 812 So.2d at 596. Accordingly, the First District held that, “in view of the absolute mandatory terms of section 816.650(9),” the trial court erred when it denied the defendant’s motion in limine in his forgery trial. Id. at 596.

Like the First District in Dixon, we have no basis in this case to discern a legislative intent to make an exception to section 316.650(9)’s unambiguous language. The First District concluded it is the legislature’s exclusive province to amend section 316.650(9) if it did not intend the result the statute’s plain language mandates. We agree. As Chief Justice Berger stated in Tennessee Valley Authority v. Hill, 437 U.S. 153, 193, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (quoting Hill v. TVA, 549 F.2d 1064, 1069 (6th Cir.1977)):

Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto.... [I]n our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with “common sense and the public weal.” Our Constitution vests such responsibilities in the political branches.

“If the statute is clear’ and unambiguous ‘that is the end of the matter, for the court ... must give effect to the unambiguously expressed intent of Congress.’ ” Bd. of Governors v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986) (quoting Chevron, U.SA., Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

We acknowledge that, as the Dixon court observed, applying the plain and ordinary meaning of the words of section 316.650(9) to these facts “will make convictions for forgery of a traffic citation more difficult....” 812 So.2d at 596. As the trial court here noted, however, the State can bring in evidence from the officer who issued the citation and witnessed the false signature, as well as other evidence of the defendant’s identity and intent.

THE LIMITED STANDARD OF REVIEW ON CERTIORARI

Even if we disagreed with the First District’s holding in Dixon, the limited standard of review on certiorari would preclude us from granting relief in this case. An interlocutory pretrial order in a criminal case excluding evidence is subject to certiorari review only when the order departs from the essential requirements of the law and plenary appeal cannot provide an adequate remedy. Trepal v. State, 754 So.2d 702, 705 (Fla.2000); State v. Pettis, 520 So.2d 250, 252-53 (Fla.1988); State v. Busciglio, 426 So.2d 1233, 1233 (Fla. 2d DCA 1983). The State also must demonstrate that the trial court’s departure resulted in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000).

“Existing case law establishes that the departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error.... ” Id. A court’s misapplication of the correct law or “erroneous interpretation of [a] law” does not rise to the necessary level. Id. at 682, 684. The court in Ivey stated: “[A] decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari.” Id. at 682 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995) (additional citations omitted)). Rather, certiorari review limits the proper inquiry to “whether the circuit court afforded procedural due process and whether it applied the correct law.” Id.

Here, the trial court applied the correct law, Dixon, which Florida law required it to follow. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (holding that in absence of interdistrict conflict, district court decisions bind all Florida trial courts); Bane v. Bane, 750 So.2d 77, 78 (Fla. 2d DCA 1999) (holding trial court committed clear error in ruling contrary to district court decision that was directly on point but with which it disagreed); Anderson v. Anderson, 746 So.2d 525, 526 (Fla. 2d DCA 1999).

The dissent would hold that we may grant certiorari based on the statute’s violation of the clearly established constitutional principle of law that only the supreme court can promulgate procedural rules and on the argument that section 316.650(9) is a procedural rule that has not been approved by the supreme court. See art. V, § 2(a), Fla. Const.; Allstate v. Kaklamanos, 843 So.2d 885 (Fla.2003) (holding “ ‘clearly established law’ for certiorari purposes can derive from a variety of legal sources,” including, among others, constitutional law). A statutory provision is procedural if it “encompass[es] the course, form, manner, means, method, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. ‘Practice and procedure’ may be described as the machinery of the judicial process as opposed to the product thereof.... It is the method of conducting litigation involving rights and corresponding defenses.” Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 732 (Fla.1991).

When the “legislatively imposed ‘procedure’ is interfering with and intruding upon the procedures and processes of this Court and conflicts with this Court’s own rule regulating the procedure,” a violation of the constitutional limitation on the legislature’s enactment of procedural law occurs. Jackson v. Fla. Dep’t of Corr., 790 So.2d 381, 385 (Fla.2000). See also Haven Fed. Sav. & Loan, 579 So.2d at 732; Sch. Bd. of Broward County v. Surette, 281 So.2d 481, 483 (Fla.1973).

Citing Jackson, 790 So.2d at 385, a plurality of the supreme court in Looney v. State, 803 So.2d 656 (Fla.2001), concluded a procedural statutory provision did not usurp its constitutional rulemaking authority. Id. at 676. The statute challenged in Looney was section 921.141(7) (Supp.1996), allowing admission of victim impact evidence. Id. at 675. The Looney opinion reasoned the statute should be upheld because the supreme court previously “had promulgated no rule or procedure governing the admissibility of victim impact evidence.” Id. at 676. Similarly in this case, the supreme court has promulgated no rule or procedure governing the admissibility of traffic citations as evidence. Thus, we cannot say this provision is unconstitutional or that the trial court’s decision violates clearly established law, even under Kaklamanos.

Accordingly, we deny the petition for writ of certiorari.

We certify to the supreme court the following question which we determine to be of great public importance:

WHEN THE SOLE ISSUE IN A CRIMINAL PROSECUTION IS THE PLACEMENT OF A FORGED SIGNATURE ON A TRAFFIC CITATION, MAY THE STATE INTRODUCE THE CITATION BEARING THE SIGNATURE INTO EVIDENCE TO PROVE THE FORGERY, NOTWITHSTANDING THE LANGUAGE OF SECTION 316.650(9), FLORIDA STATUTES (2002)?

SALCINES, J., Concurs.

ALTENBERND, C.J., Dissents with opinion.

ALTENBERND, Chief Judge,

Dissenting.

The State seeks certiorari review of the trial court’s order granting a motion in limine and precluding the State from introducing into evidence an official document in Eddie A. Veilleux’s trial on the charge of forgery. The official document is a traffic citation that Mr. Veilleux allegedly signed with the signature of “Mark Lee White.” Although I understand the majority’s reluctance to use certiorari for this purpose, I would grant the petition and permit the State to introduce the signature on this official document. I would announce express conflict with the First District’s decision in Dixon v. State, 812 So.2d 595 (Fla. 1st DCA 2002). Finally, I would hold that section 316.650(9), Florida Statutes (2002), should not be followed as a procedural rule of evidence until such time as the supreme court adopts this rule of evidence.

The State charged Mr. Veilleux with forgery of a public record pursuant to section 831.01, Florida Statutes (2002). He allegedly signed a traffic citation on February 16, 2002, using the name, “Mark Lee White,” instead of his actual name. After the State filed the information, Mr. Veilleux sought a motion in limine to prevent the introduction of the allegedly forged signature into evidence on the ground that section 316.650(9) precluded the introduction of a traffic citation into evidence and that the relevant signature was on a traffic citation. His motion was directly supported by the First District’s majority decision in Dixon, 812 So.2d 595 (holding trial court was prohibited by statute from admitting traffic citation on which defendant allegedly forged signature). The trial court concluded that it was bound by the Dixon decision and ruled that the traffic citation containing the alleged forgery could not be introduced into evidence. The State then filed this petition for writ of certiorari.

Section 316.650(9) was first enacted in 1963 as part of a law creating a uniform traffic ticket. See ch. 63-14, § 2, Laws of Fla. It states in its entirety: “Such citation shall not be admissible evidence in any trial.” The First District in Dixon essentially ruled that this statute is clear and unambiguous and prevents any portion of the physical document constituting a uniform traffic citation from being introduced in evidence under any circumstance. Dixon, 812 So.2d at 596. The State primarily argues that the majority decision in Dixon places an unnecessarily expansive interpretation upon section 316.650(9). It encourages this court to adopt reasoning similar to that of the dissent written by Judge Polston on Dixon.

I.

I agree with the State that the First District used an unnecessarily expansive interpretation of section 316.650(9). Although the First District claimed that it was simply reading a clear and unambiguous statute, it obviously interpreted the phrase “such citation” to mean the entire physical document including all signatures and other denotations on that document. I do not understand why the driver’s signature is clearly and unambiguously a portion of “such citation.” In the context of the initial enactment, section 316.650(9) was enacted to make certain that uniform traffic citations would not become admissible as business records and that traffic officers would still be required to attend traffic court. This assured that charged drivers could confront the State’s primary witness against them in traffic court. Nothing about this statute suggests that it was created because the legislature intended to bar prosecutions for forgery in this context.

The rule barring the judiciary from interpreting or construing a clear and unambiguous statute was not created as a method for the judiciary to make the legislature look foolish. It was created to assure that the judiciary gave proper respect to the legislature’s power to enact law and establish policy. This rule reflects the separate power of the legislature. See State v. Brigham, 694 So.2d 793, 797 (Fla. 2d DCA 1997). If the legislature clearly and unambiguously enacts a rule promoting a policy with which the judiciary disagrees, absent constitutional infirmities, the judiciary must follow the legislative directive.

Language tends to be an imprecise tool. Sadly, a clear and unambiguous sentence in the English language is the exception rather than the rule. When several lawyers are involved in the drafting process, unambiguous clarity becomes an even rarer event. If subjected to the rigors of linguistic analysis by philosophers, virtually any sentence contains ambiguity. See generally Ludwig Wittgenstein, Preliminary Studies for Philosophical Investigation, generally known as The Blue and Brown Books (N.Y. Harper Press 1958). Especially when a sentence or a phrase is examined without thought to its surrounding context, it may appear at first glance more clear than it actually is.

Thus, the courts should hesitate to announce that a statute is clear and unambiguous when the result creates a judicial rule that the legislature never foresaw, never intended to create, and will most likely overrule with a new statute in a future session. See Martin v. St. Paul Fire & Marine Ins. Co., 670 So.2d 997 (Fla. 2d DCA 1996). This is why Learned Hand did not wish to make a “fortress” out of the dictionary. See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.1945). It is also why we do not use a “literal” interpretation of a statute if it leads to an absurd result. See Parker v. State, 406 So.2d 1089 (Fla.1981). We do not give proper respect to the legislature when we use its words to reach an illogical outcome, unsupported by any feasible public policy, using the justification that the outcome is driven by a statute’s clear and unambiguous words. The judiciary should only reluctantly reach such an outcome when no reasonable interpretation of the relevant statute exists to achieve a logical outcome and the only way to achieve a correct rule of law is to compel the legislature to enact a new one.

If we change the facts a little in this case, it is easier to demonstrate that a literal interpretation of the phrase “such citation” requires absurd outcomes. Hypothetically, if Mr. Veilleux had been charged with first-degree murder and he wished to introduce a traffic citation as alibi evidence to establish that he was receiving a traffic ticket in another county at the time of the murder, it is inconceivable to me that a court could constitutionally prohibit him from introducing this document as evidence. Yet, if read literally, this statute would prevent anyone from introducing the traffic citation in any court proceeding.

“Such citation” can reasonably be interpreted to mean the written information placed on the document to explain the charges and to describe the alleged traffic offense. The citation is not the piece of paper, but its factual, hearsay content. Whether the officer writes this information on a uniform citation form or a scrap of paper, I agree that this written content should be inadmissible if the statute is a valid rule of evidence. On the other hand, portions of the document not describing the traffic offense can be viewed separate from the “citation.” Thus, in my hypothetical, I would hold that Mr. Veilleux could introduce the document, excluding the charges and the description of the charges, to establish where he was at the date and time of an alleged murder.

Likewise, I believe the State should be able to introduce the document without its content in order to prove a prima facie case of forgery. Without the content, it can be identified by the police officer as a public record document that Mr. Veilleux was required to sign with his true legal name in the presence of the officer. The officer can identify the signature placed on this official document by Mr. Veilleux. The content of the document and the fact that it is a traffic citation should be irrelevant to the charge of forgery; in fact, it could be omitted from the trial. Mr. Veilleux might open the door for testimony about the content of the document by denying that the document was a public record document, but we do not need to reach that issue at this time.

II.

Although I believe this court could issue the petition for writ of certiorari based upon the State’s argument, implicit within its argument is an even stronger reason to grant certiorari relief in this case. Section 316.650(9), at least in this context, is purely a procedural rule of evidence. Only the supreme court can create a procedural rule of evidence. See art. V, § 2(a), Fla. Const.; see also In re Florida Evidence Code, 372 So.2d 1369 (Fla.1979), clarified by In re Evidence Code, 372 So.2d 1369 (Fla.1979). Section 316.650(9) does not define a crime or establish any substantive law. Particularly as interpreted in Dixon, it creates a procedural rule requiring the trial court to exclude relevant evidence, critical to a criminal prosecution, which would otherwise be inadmissible under chapter 90, Florida Statutes (2002), under these circumstances.

Although it is sometimes difficult to determine whether a statute creates a rule of procedure as compared to a substantive right, this statute applied in a forgery-prosecution is purely a procedural rule of evidence. Cf. In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972) (characterizing difficult area of substance and procedure as twilight zone); State v. Garcia, 229 So.2d 236 (Fla.1969) (noting difficulty determining whether rule relates to matter that is substantive or procedural); see also Glendening v. State, 536 So.2d 212, 214-15 (Fla.1988) (explaining difficulty in discerning substantive rights that change ultimate facts necessary to establish guilt, versus procedural rules that simply govern how certain evidence is admitted in ex post facto analysis); State v. Dionne, 814 So.2d 1087 (Fla. 5th DCA 2002) (same). I can find no record that the supreme court has ever adopted this statute as a rule of procedure. See, e.g., In re Florida Evidence Code, 675 So.2d 584 (Fla.1996); In re Florida Evidence Code, 638 So.2d 920 (Fla.1993); In re Amendment of Florida Evidence Code, 497 So.2d 239 (Fla.1986). As a result, I do not believe that a trial court is bound to obey this statute as a procedural rule of evidence until such time as the supreme court adopts it. Because the supreme court retains the authority to regulate court procedure, neither this district court nor the First District has the authority to create a new procedural rule of evidence. See art. 5, § 2(a), Fla. Const.

III.

I understand that certiorari is a common law remedy that should be applied sparingly to correct only irreparable legal errors that result in a miscarriage of justice. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995); Stilson v. Allstate Ins. Co., 692 So.2d 979 (Fla. 2d DCA 1997). The discussion in Ivey might suggest that we have no power to correct this error. Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000). I admit that to the extent the trial court followed the only available precedent, it did not depart from the established law.

Recently, however, the supreme court has suggested that we may use certiorari review to correct a somewhat more expansive list of errors. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003) (stating, “[t]hus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review”). Id. at 890, 897. Even though supported by a majority decision from the First District, an interpretation of a statute that purports to create a rule of evidence excluding relevant evidence for no logical reason, when the rule has not been adopted by the supreme court as required by the Florida Constitution, would appear to be a circumstance where certiorari relief should be available.

The fact that this is a criminal case and the issue is one that will limit critical evidence at trial also affects the analysis. Double jeopardy will prevent the State from seeking review of this issue when the trial court acquits Mr. Veilleux for its failure to prove a forgery. Thus, there can be little dispute that the error in this case is irreparable on direct appeal. It will be difficult for other districts to obtain direct appeals of cases in which they would have the opportunity to conflict with the First District’s decision in this procedural context. I believe that a district court decision that creates a rule of evidence in this context is a miscarriage of justice that entitles this court to act. See State v. Pettis, 520 So.2d 250 (Fla.1988).

Accordingly, I would grant this petition for writ of certiorari.

      . "Florida courts have recognized that signing another person’s name to a traffic citation constitutes a forgery.” Dixon, 812 So.2d at 596 (citing Rushing v. State, 684 So.2d 856 (Fla. 5th DCA 1996)).

      . The elements of forgery of a traffic citation pursuant to section 831.01 are: (1) the defendant signed someone else's name on a traffic citation (2) with intent to injure or defraud any person. See Rushing v. State, 684 So.2d 856 (Fla. 5th DCA 1996).

      . It is notable that in Kaklamanos, no appellate case controlled the issue and bound the trial court. See 843 So.2d at 890. The supreme court held the intent of the personal injury protection (PIP) statute was "clearly established law” upon which certiorari review could be granted. Id.

      . This is a case in which I would narrow the scope of the statute, not expand it. It has long been recognized that a court has more power to limit the application of a statute than to expand it. A court is less likely to interfere with the legislature’s role in establishing public policy when it guards against statutory overbreadth. See generally William D. Popkin, Materials on Legislation: Political Language and the Political Process at 32 (2d ed.1997).


author: WARNER, J.

text:
    PARAGON HEALTH SERVICES, INC., as Assignee of Global Quality Services, Inc., Appellant, v. CENTRAL PALM BEACH COMMUNITY MENTAL HEALTH CENTER, INC., d/b/a Central Palm Beach CMHC, Coastal Community Mental Health Center, Inc., d/b/a Coastal CMHC, Albert D. Lopez, Eduardo Godoy, Carlos M. Herrera, Caridad D. Lopez and Marta Dalmau Godoy, Appellees.
    No. 4D02-3633.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Steven J. Gutter of Kahn & Gutter, Plantation, for appellant.

      Wilfredo A. Rodriguez of Holland & Knight LLP, Miami, for appellees.
   WARNER, J.

Paragon, an assignee of judgment creditor Global Quality Services, Inc., appeals the trial court’s summary judgment entered against it on its claim of fraudulent transfers. It claims that debtor corporations, Central Palm Beach Community Mental Health Center, Inc. (“Central”), and Coastal Community Mental Health Center, Inc. (“Coastal”) made constructively fraudulent transfers of monies to appel-lees, their officers and directors, and their wives, in violation of chapter 726, the Uniform Fraudulent Transfer Act. The court entered summary judgment finding that the affidavits and depositions conclusively showed that the debtors were not insolvent. Although we conclude that the record showed material issues of fact as to solvency, we conclude that those claims raised pursuant to section 726.106(2), Florida Statutes (2001), regarding transfers to insiders for antecedent debt, are all barred by the applicable statute of limitations. However, we conclude that those claims concerning profit distributions/compensation raised under section 726.106(1) are not barred by the applicable statute of limitations and have not been addressed in the motions or affidavits filed. We therefore affirm in part and reverse in part.

Global recovered a judgment in 2000 against Coastal and Central for contract damages resulting from the provision of consulting services to the two debtor corporations. On June 23, 2000, Paragon, as assignee of Global, filed a third-party complaint against appellees, Albert Lopez, Eduardo Godoy, Carlos Herrera, and the wives of Lopez and Godoy, seeking to avoid transfers of monies to them as fraudulent transfers. That complaint was amended several times, ending with the fourth amended complaint.

There are two versions of the fourth amended complaint in the record. However, both contain essentially the same allegations, the second iteration of the complaint being broken down into two counts. They both allege two different types of transfers between the corporations and the appellees. The first concerns transfers totaling $15,000 from Coastal and $43,000 from Central to each appellee director during 1997, 1998, and 1999, which are described as repayments of antecedent debts. The second are transfers between 1997 and 2000, which are described as profit distributions to the directors for compensation. Paragon alleges these transfers were not compensation and are presumed fraudulent because Global, as judgment debtor, did not receive reasonably equivalent value for the transfers. The amount of these transfers is not stated. As to both transactions, Paragon alleges that Global was a creditor within the meaning of the Fraudulent Transfer Act at the time of the transfers and that Central and Coastal were insolvent at the time. The complaint also joined the wives of two of the directors, because the transferred funds were placed into joint accounts with the wives. The court granted leave to amend to file the fourth amended complaint, and the appellees answered it, addressing all of the allegations, including those regarding appellees’ receipt of compensation.

Before the fourth amended complaint was filed, appellees moved for summary judgment on the third amended complaint, simply stating that the allegations of the complaint were unsupported. After Paragon filed its motion to amend the third amended complaint, attaching a copy of the fourth amended complaint, it too moved for summary judgment. It alleged that a total of eight transfers from Central and Coastal to the appellees, which were designated as loan repayments of antecedent debts, were fraudulent transfers under section 726.106(2). It also claimed that because the funds were deposited into joint accounts, the wives were considered insiders as well. Because of these transfers, the motion alleged that “all third party defendants are liable up to the amounts transferred to them” plus interest. Various copies of the parties’ depositions were filed, together with affidavits in support or defense of the cross motions. The cross motions were heard in October 2001. Thereafter, appellees filed a supplemental motion for summary judgment alleging that all of the claims raised by Paragon were based on section 726.106(2) and barred by the statute of limitations contained in section 726.110(3), Florida Statutes (2001). Paragon responded through a letter to the court discussing the statute of limitations.

The court ultimately granted appellees’ motion for summary judgment and denied Paragon’s motion, concluding that the evidence was undisputed that only two of the five elements required for a fraudulent transfer under section 726.106(2) were met. Paragon filed motions for reconsideration and clarification, both of which were denied, and summary judgment was thereupon entered, resulting in this appeal.

I. Section 726.106(2) transfers are extinguished by the limitations in section 726.110(3).

While we conclude that there is evidence in the record which creates a disputed issue of material fact with regard to the required elements of a fraudulent transfer under section 726.106(2), we nevertheless affirm because the applicable statute of limitations has extinguished the cause of action. Section 726.106(2) provides that:

A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.

The Fraudulent Transfer Act contains its own statute of limitations which “extinguishes” a cause of action under the.act, unless an action is commenced:

(1) Under s. 726.105(l)(a), within 4 years after the transfer was made or the obligation was incurred, or, if later, within 1 year after the transfer or obligation was or could reasonably have been discovered by the claimant;
(2) Under s. 726.105(l)(b) or s. 726.106(1), within 4 years after the transfer was made or the obligation was incurred; or
(3) Under s. 726.106(2), within 1 year after the transfer was made or the obligation was incurred.

§ 726.110, Fla. Stat. (2001).

While section 726.110(1) contains a savings provision if the creditor fails to discover the existence of a preferential transfer within the four-year period, for actions based on section 726.105(l)(a) involving actual fraud, there is no such “discovery” provision under section 726.110(3) for transfers to insiders under the constructive fraud provision -of section 726.106(2), the section relied upon by Paragon. Where the legislature has included a specific provision in one part of a statute and omitted it in another part, we must conclude that it knows how to say what it means, and its failure to do so is intentional. See Kraft Gen. Foods, Inc. v. Rosenblum, 635 So.2d 106, 109 (Fla. 4th DCA 1994); Farancz v. St. Mary’s Hosp., Inc., 585 So.2d 1151 (Fla. 4th DCA 1991); see also Rakusin, Florida Creditors Rights Manual, Vol. 2, at 259 (2001) (Florida Statutes section 726.110(3) does not provide a savings provision if the creditor fails to discover the preferential transfer, as does section 726.110(1)). Here, the legislature specifically provided a savings clause in section 726.110(1) and omitted it in section 726.110(3). The statute is clear and unambiguous and extinguishes the cause of action under section 726.106(2) one year after the date of the transfer.

The last of the transfers identified by Paragon as repayment of antecedent debt occurred in February 1999. As the third party complaint against the appellees was not filed until June 23, 2000, all of the transfers occurred more than one year prior to the filing of the complaint. Therefore, the cause of action under section 726.106(2) is extinguished.

Paragon cites to Segal v. Rhumbline International, Inc., 688 So.2d 397 (Fla. 4th DCA 1997), for the proposition that this court has held that the one-year period runs from discovery of the transfer. In Segal, we were discussing the limitation contained in section 726.110(1), not 726.110(3), because we referred to the Segals as having “four years from the filing of the UCC statement or one year from discovery of the fraudulent transfer in which to bring suit.” Moreover, we were clearly discussing “badges of fraud” which are requirements of a fraudulent transfer under section 726.105. Thus, Segal is distinguishable.

II. Section 726.106(1) transfers were not part of issues raised at summary judgment.

Paragon also argues that the court failed to consider its allegations of preferential profit distributions under section 726.106(1), which has a four-year limitation under section 726.110(2). Regardless of which fourth amended complaint we rely on, each had an allegation that the appel-lees received payments designated as compensation when they were in fact profit distributions for which Coastal and Central did not receive reasonably equivalent value and were made at a time when the corporate debtors were insolvent. Neither motion for summary judgment mentions these allegations. The court’s findings did not address these claims. After the court granted appellee’s motion for summary judgment, Paragon moved for clarification, stating that only the count on insider transfers was at issue in the summary judgment proceedings and not the provisions regarding the improper compensation. The court denied the motion for clarification and granted final summary judgment.

It is apparent that the claims of improper profit distributions/compensation were not addressed in either motion or by the court in its final judgment. On appeal, appellees rely on the fact that the two-count fourth amended complaint was not before the court. They do not address the fact that the same allegations were contained in the fourth amended complaint that they answered and specifically denied the allegations regarding profit distribution/compensation.

To support affirmance, appellees also rely on the fact that the court found that the evidence was undisputed that the debt- or corporations were not insolvent within the meaning of the statute. However, as we stated in the beginning of our analysis, there was conflicting evidence in the record on the issue of insolvency.

The Uniform Fraudulent Transfer Action defines insolvency as follows: “A debtor is insolvent if the sum of the debt- or’s debts is greater than all of the debt- or’s assets at a fair valuation.” § 726.103(1), Fla. Stat. (2001). This is referred to as the “balance sheet” test. See, e.g., In re McElroy, 228 B.R. 791, 794 (M.D.Fla.1999) (interpreting similar definition of insolvency under Bankruptcy Act to be “balance sheet” test). Because creditors can often find little direct evidence of a debtor’s assets and liabilities, the Act also contains a presumption of insolvency where the debtor generally fails to pay his or her debts as they become due. See § 726.103(2); First Fed. Sav. & Loan Ass’n of Galion, Ohio. v. Napoleon, 428 Mass. 371, 701 N.E.2d 350, 354 (1998) (noting that although inability to meet obligations does not conclusively establish insolvency, courts have found this to be reliable indicator of insolvency where there is little direct evidence of debtor’s assets and liabilities). This has sometimes been referred to as “equitable insolvency.” See Cellar Lumber Co. v. Holley, 9 Ohio App.2d 288, 224 N.E.2d 360, 363 (1967).

For a transferee to prevail on a motion for summary judgment in a fraudulent transfer action on the ground that the debtor was not insolvent at the time of the transfers sought to be avoided, the transferee must show that there is no issue of material fact as to the debtor’s solvency. Here, whether we look to the “balance sheet test” or the presumption of insolvency, the evidence is disputed on both. While appellee Godoy filed an affidavit stating that Coastal and Central’s assets exceeded their liabilities and that they were paying all “legitimate debts” on time, the deposition testimony paints a different picture. In appellee Herrera’s deposition he admitted that even the company providing staffing for Central and Coastal was not paid on a timely basis. Sometimes those payments were three to four months in arrears. He stated, “We paid our bills to the best extent possible,” (emphasis added), and he admitted that at the time the companies ceased doing business, they were in considerable debt, including owing the staffing company about one million dollars, as well as debts to other creditors. The evidence is in conflict as to whether the company was substantially in debt and failing to pay its debts as they came due. Thus, the appellees failed to negate the presumption of insolvency of section 726.103(2). The deposition testimony also presents an issue of fact as to whether their assets exceeded their liabilities. See § 726.103(1). As there is a disputed issue of material fact on the issue of insolvency, the record does not support appellee’s alternate ground for affirming on the profit distribution/compensation issue. We therefore reverse.

Finally, the appellee wives claimed that they should not be liable for the transfers, which now are limited to the profit distribution/compensation claim under section 726.106(1), simply because the funds were transferred to a bank account which they held jointly with their husbands. Section 726.109(2), Florida Statutes (2001), provides:

[T]o the extent a transfer is voidable in an action by a creditor ..., the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (3), or the amount necessary to satisfy the creditor’s claim.... The judgment may be entered against:
(a) The first transferee of the asset or the person for whose benefit the transfer was made; or
(b) Any subsequent transferee other than a good faith transferee who took for value or from any subsequent transferee.

Because they are joint owners of the bank account with their husbands, and the compensation/profit distributions were deposited into those accounts, the wives can be classified as subsequent transferees. As there is no evidence in the record regarding the use of the joint bank account, there remains an issue of material fact as to whether they received any benefit from the transaction to establish liability for the amounts transferred.

The appellees cite to Yusem v. South Florida Water Management District, 770 So.2d 746 (Fla. 4th DCA 2000), for the proposition that depositing money into joint bank accounts is insufficient to hold a wife liable as a subsequent transferee. In Yusem, we held that the wife could not be liable where funds were transferred into the account on one day and transferred out the next day to an offshore account in which the wife had no interest. The wife did not know of the transfers, nor did it appear that she benefited from the transaction. Here there are no comparable facts. When and how long the funds remained in the joint account and what they were used for is simply absent from this record.

For the foregoing reasons, we affirm the final summary judgment insofar as it disposes of claims under section 726.106(2). We reverse and remand for further proceedings regarding the claim asserted under section 726.106(1) for improper compensation/profit distributions, and we reverse the summary judgment granted in favor of the appellee wives.

GUNTHER and MAY, JJ., concur.

      . Interestingly, the wife of Mr. Herrera was the principal of Global at the time all of these transactions were made. She subsequently divorced him, maintained these suits, and became a receiver for Coastal and Central when they went out of business.


author: GROSS, J.

text:
    Susan HEMBD, Appellant, v. James J. DAURIA, Trustee, Appellee.
    No. 4D03-199.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.

      Richard J. Burton of Richard J. Burton & Associates, P.A., North Miami Beach, for appellant.
    Neil Leavitt, Hollywood, for appellee.
   GROSS, J.

The primary issue in this appeal is whether the trial court erred in denying appellant, Susan Hembd’s, rule 1.540(b)(3) motion to set aside a final deficiency judgment for fraud, without holding an eviden-tiary hearing. We affirm because appellant’s motion failed to state the purported fraud with sufficient particularity to require an evidentiary hearing.

Appellee, James Dauria, obtained a final judgment of foreclosure on a condominium unit owned by Hembd. The trial court determined that Hembd owed $85,333.82 to Dauria.

On July 31, 2002, Dauria moved for the entry of a deficiency judgment, seeking the difference between $85,333.82 and the value of the property on the date of the foreclosure sale, November 5, 2001. In support of the motion, Dauria filed a report from a real estate appraiser indicating that the value of the property on November 5 was $73,000.00. The appraiser signed the report on January 8, 2002.

The trial court entered a deficiency judgment for $13,156.28 on September 18, 2002.

On December 4, 2002, Hembd moved to set aside the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(3), which allows a court to relieve a party from a final judgment because of “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” The basis of the alleged fraud was that the January 8, 2002 appraisal, along with the appraiser’s affidavit filed in support of the motion for deficiency judgment, did not disclose that Dauria had closed a sale on the premises on January 2, 2002 for $86,000.

Dauria argued that he sold the property for more than the appraisal because the property was improved at his expense between the November 5, 2001 appraisal and the January 2, 2002 sale.

After a brief hearing on a uniform motion calendar, the trial court denied the rule 1.540(b)(3) motion.

Where a litigant seeks to inject the issue of fraud into a lawsuit, Florida law requires that it be pled with precision, not just flung into the case willy-nilly. In Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994), we explained that a rule 1.540(b)(3) motion seeking relief from a judgment requires that the purported fraud be stated with specificity:

Florida Rule of Civil Procedure 1.120(b) requires that the circumstances constituting fraud “be stated with such particularity as the circumstances may permit.” This means that a rule 1.540(b)(3) motion must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions. To entitle a movant to an evidentiary hearing, a rule 1.540(b)(3) motion must specify the fraud. In addition to specifying the fraud, the motion should explain why the fraud, if it exists, would entitle the mov-ant to have the judgment set aside.
.... If a motion on its face does not set forth a basis for relief, then an eviden-tiary hearing is unnecessary. The time and expense of needless litigation are avoided and the policy of preserving the finality of judgments is enhanced.

(Citations omitted). Only if Hembd’s motion and supporting affidavit set forth “facially sufficient grounds” for relief would she be entitled to a hearing on her rule 1.540(b)(3) motion. See Davenport v. Dimitrijevic, 857 So.2d 957, 961 (Fla. 4th DCA 2003); World Inv. Corp. v. Breen, 684 So.2d 221, 222 (Fla. 4th DCA 1996); see also Seal v. Brown, 801 So.2d 993, 994-95 (Fla. 1st DCA 2001); Estate of Willis v. Gaffney, 677 So.2d 949, 951 (Fla. 2d DCA 1996).

Hembd failed to state the alleged fraud with sufficient particularity to require an evidentiary hearing on the motion. An important basis for the November 5 appraisal was the condition of the property. The report noted: “Unit is in poor condition. All rooms carpeted except for kitchen, laundry & 1 bath, vinyl tile. The carpets were soiled & walls are in need of new paint. Evidence of severe roof leak/water damage from second floor. A new owner may consider upgrading the unit to a more modern appeal.” The report gave most weight to an October 2001 sale of a comparable unit in similarly poor condition.

Significantly, Hembd’s motion did not allege that the unit was sold on January 2 in substantially the same condition as it was two months earlier. The receipt of a higher sales price two months after the foreclosure sale does not necessarily indicate that the property was worth the same amount on November 5. It is not unusual for an owner to expend money on a property after taking it back in foreclosure. The price disparity alone does not give rise to the inescapable conclusion that Dauria fraudulently misled the court. To obtain a hearing on her rule 1.540(b)(3) motion, the law required Hembd to demonstrate a pri-ma facie case of fraud, not just nibble at the edges of the concept.

We deny Dauria’s motion for attorney’s fees, because it fails to comply with the requirement of Florida Rule of Appellate Procedure 9.400(b) that a motion for attorney’s fees on appeal “shall state the grounds on which recovery is sought.” The Florida Supreme Court has taken a strict approach to the pleading requirement of rule 9.400(b):

We interpret this language to require that a party seeking attorney’s fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. It is simply insufficient for parties to only refer to rule 9.400 or to rely on another court’s order in support of a motion for attorney’s fees for services rendered in an appellate court.

United Servs. Auto. Ass’n v. Phillips, 775 So.2d 921, 922 (Fla.2000) (emphasis added). Dauria’s motion makes no reference to any contractual, statutory, or other substantive basis for an award of fees on appeal.

The pleading rule for attorney’s fees on appeal is different from that at the trial level. In Caufield v. Cantele, 837 So.2d 371 (Fla.2002), with regard to the pleading requirements for fees in the trial court, the supreme court held “that the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.” Id. at 378. Instead, the court ruled that a party did not have to make a “specific pleading of the statutory or contractual basis of a claim for attorney’s fees” and that “merely pleading a claim for attorney’s fees is sufficient to notify the opposing party and allow it to consider the claim in a decision on whether to proceed.” Id. at 377-78 (discussing Stockman v. Downs, 573 So.2d 835 (Fla.1991)).

This lesser pleading requirement of Canfield has no bearing on an appellate fees request, where rule 9.400(b) explicitly requires that the motion must state the grounds upon which recovery is sought.

AFFIRMED.

FARMER, C.J., and TAYLOR, J., concur.


text:
    Barry L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-991.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Barry L. Smith, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of relief under Florida Rule of Criminal Procedure 3.850, without prejudice to appellant’s raising claim numbers seven through nine in a timely, proper petition for habeas corpus based on ineffective assistance of appellate counsel.

POLEN, KLEIN and SHAHOOD, JJ., concur.


text:
    John RANDALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4053.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    John Randall, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s right to file a properly pled, verified and timely motion for postconviction relief raising this claim of entitlement to additional credit, pursuant to Florida Rule of Criminal Procedure 3.850. See Johnson v. State, 830 So.2d 194 (Fla. 4th DCA 2002); Phillips v. State, 816 So.2d 1154 (Fla. 4th DCA 2002).

GUNTHER, STEVENSON and TAYLOR, JJ., concur.


text:
    Iyad H. SHEHADEH, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3843.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Iyad H. Shehadeh, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Jones v. State, 787 So.2d 35 (Fla. 2d DCA 2001); Norman v. State, 739 So.2d 1258 (Fla. 1st DCA 1999).

WARNER, GROSS and MAY, JJ., concur.


text:
    B.M.C., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-341.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); State v. Wilson, 725 So.2d 1143 (Fla. 2d DCA 1998).

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


text:
    Mack GRINER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1060.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2003.

      James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Ralph Edward WARE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1728.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2003.
    Ralph E. Ware, Lowell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003).

THOMPSON, PLEUS and ORFINGER, JJ., concur.


text:
    Jimmie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1979.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

PETERSON, THOMPSON and ORFINGER, JJ., concur.


author: SAWAYA, C.J.

text:
    Calvin D. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-943.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.
    Calvin D. Collins, Jesup, GA, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

Calvin Collins, an inmate in a Georgia correctional facility, is a prolific filer of inappropriate motions for postconviction relief. His most recent of these is a pro se Petition for Writ of Habeas Corpus, which the trial court denied. Having reviewed the briefs and the record, we affirm the order denying Collins’ petition for the reasons hereinafter expressed.

After he pled guilty to possession of cocaine in February 1996, Collins was sentenced to five years’ probation. He made no direct appeal. The first of his postcon-viction motions reviewed by this court was an untimely rule 3.850 motion that had been denied by the trial court. After this court affirmed the denial of the first motion, Collins, undeterred, filed a Motion to Arrest Judgment pursuant to rule 3.610, which was dismissed as improper and untimely. Collins subsequently filed a Petition for Writ of Error Coram Nobis, the denial of which was per curiam affirmed by this court. Thereafter, Collins filed the petition that we now review, ostensibly reasserting that his trial counsel was ineffective and that his plea was involuntarily entered.

The State contends that because Collins is incarcerated in Georgia, the trial court had no alternative but to deny the petition. Habeas corpus proceedings are intended to test the legality of the petitioner’s detention and to secure his or her release if it is determined that the detention is illegal. Sneed v. Mayo, 66 So.2d 865, 869 (Fla.1953); Smith v. Kearney, 802 So.2d 387 (Fla. 4th DCA 2001); see also Cole v. State, 714 So.2d 479, 492 (Fla. 2d DCA 1998). To fulfill the intended purpose of habeas corpus proceedings, the courts have held that “[i]f a prisoner files a habeas corpus petition in circuit court, the petition must be filed in the circuit court of the county in which the prisoner is detained.” Alachua Reg’l Juvenile Det. Ctr. v. T.O., 684 So.2d 814, 816 (Fla.1996) (citing § 79.09, Fla. Stat. (1995); Ruiter v. Wainwright, 249 So.2d 67 (Fla. 2d DCA 1971)). “Moreover, the proper respondent in a habeas corpus petition is the party that has actual custody and is in a position to physically produce the petitioner.” T.O., 684 So.2d at 816 (citations omitted). Hence, the general rule is that the circuit court where the defendant is incarcerated has jurisdiction to grant a writ of habeas corpus. T.O.; Perkins v. State, 766 So.2d 1173, 1175 (Fla. 5th DCA 2000) (“Although a petition for habeas corpus must be filed with the clerk of the court in the county where the defendant is detained, the requirement was met in this case.”) (citations omitted); Torres v. State, 700 So.2d 1247 (Fla. 5th DCA 1997).

There is, however, an exception to this general rule. When a petitioner attacks the validity of the conviction by raising issues relating to the trial or to the propriety of a plea, jurisdiction in habeas proceedings lies with the trial court that imposed the sentence and rendered the judgment of conviction. See Sheriff v. Moore, 781 So.2d 1146 (Fla. 1st DCA 2001); Frederick v. State, 714 So.2d 1043, 1043 (Fla. 4th DCA) (“Habeas petitions directed to trial issues must be brought in the circuit court for the county where the trial occurred.”), review denied, 728 So.2d 201 (Fla.1998); McLeroy v. State, 704 So.2d 151 (Fla. 5th DCA 1997); Leichtman v. Singletary, 674 So.2d 889 (Fla. 4th DCA 1996); see also McLevy v. State, 787 So.2d 194 (Fla. 1st DCA 2001). The instant case comes within this exception. Because Collins takes issue with the voluntariness of his plea and the effectiveness of his trial counsel, the trial court did have jurisdiction to hear the petition. McLeroy, 704 So.2d at 152 (“[Petitions for writ of habe-as corpus which allege ineffective assistance of counsel are properly filed in the court where the original sentence was imposed.”).

Having determined that the trial court did have jurisdiction to hear Collins’ petition, well established general principles lead us to conclude that the order denying Collins’ petition must be affirmed. Claims that a plea was involuntary or that trial counsel rendered ineffective assistance are issues that may now more appropriately be raised in a motion under Florida Rule of Criminal Procedure 3.850. Prior to adoption of this rule, habeas corpus was the primary procedural device to challenge the validity of a sentence or judgment of conviction. Adoption of the rule superseded habeas corpus as the method to collaterally attack a sentence or judgment of conviction. Leichtman; see also Wright v. State, 857 So.2d 861, 874 (Fla.2003) (“Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postconviction proceedings.”). Rule 3.850(h) specifically provides:

An application for writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court that sentenced the applicant or that the court has denied the applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of the applicant’s detention.

Therefore, claims cognizable under rule 3.850, such as ineffective assistance of trial counsel and the involuntariness of a plea, are generally not appropriate for habeas corpus proceedings. Thompson v. State, 759 So.2d 650, 668 n. 13 (Fla.2000); Breedlove v. Singletary, 595 So.2d 8 (Fla.1992); Green v. State, 727 So.2d 349 (Fla. 5th DCA 1999); King v. State, 695 So.2d 1299 (Fla. 4th DCA 1997); Leichtman; Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981) (“[T]he remedy of habeas corpus is not available as a substitute for post-conviction relief under Rule 3.850 Fla. R.Crim. P.”); see also Williams v. State, 840 So.2d 439 (Fla. 5th DCA 2003); Carter v. State, 824 So.2d 1043 (Fla. 3d DCA 2002); Bryant v. State, 780 So.2d 978 (Fla. 5th DCA), review denied, 791 So.2d 1095 (Fla.2001). Collins has not alleged that based on the claims raised in his petition, a motion under rule 3.850 would be inadequate to test the legality of his detention.

The courts generally agree that habeas corpus proceedings may not be used to provide the petitioner with an additional appeal regarding issues or claims that could have been or were raised on appeal or in a rule 3.850 motion. Hunter v. State, 817 So.2d 786 (Fla.2002); Hildwin v. Dugger, 654 So.2d 107 (Fla.), cert. denied, 516 U.S. 965, 116 S.Ct. 420, 133 L.Ed.2d 337 (1995); Breedlove; Suarez v. Dugger, 527 So.2d 190 (Fla.1988); Dennis v. State, 769 So.2d 511 (Fla. 5th DCA 2000); Pinder v. State, 779 So.2d 309 (Fla. 2d DCA 1999), review denied, 762 So.2d 917 (Fla.2000). Moreover, a petition for writ of habeas corpus may not be used to circumvent the time limitations for filing an appropriate motion for postconviction relief. Carter; Bryant; Green; Shavers v. State, 723 So.2d 371 (Fla. 4th DCA 1998), review denied, 744 So.2d 456 (Fla.1999), and cert. denied, 528 U.S. 1172, 120 S.Ct. 1198, 145 L.Ed.2d 1102 (2000).

Here, Collins pled guilty, was sentenced, and chose not to avail himself of his right to appeal. Collins also had the right and opportunity for postconviction relief under rule 3.850 following his conviction, but he failed to timely file an appropriate motion under the rule. Collins has instead, beginning with the untimely rule 3.850 motion, presented a string of improper motions in an unrelenting attempt to improperly collaterally attack his conviction and sentence. Because the issues Collins has raised in his petition are issues that he had every chance to raise in a timely postcon-viction relief motion, and because he is outside of the two-year window of rule 3.850, Collins is now foreclosed from relief. Carter.

AFFIRMED.

PALMER and TORPY, JJ., concur.

      . We note, parenthetically, that the proper disposition of a petition filed in a court without jurisdiction to hear it is dismissal rather than denial on the merits as the State seems to suggest.

      . The courts typically applied the provisions of the last clause of rule 3.850(h) to instances where the petitioner properly alleged the basis for a belated appeal. See Williams v. State, 777 So.2d 947 (Fla.2000); Steele v. Kehoe, 747 So.2d 931 (Fla.1999). Pursuant to Williams and Steele, rules 3.850(b) and (g) have been amended to include provisions for belated appeals. Collins is not alleging here any basis for a belated appeal.

      . Because Collins entered a guilty plea, the matters that Collins could have raised in a direct appeal were limited by Florida Rule of Appellate Procedure 9.140(b)(2). A claim that a plea was involuntary, if properly preserved by a motion to withdraw the plea, is, however, one of the matters that may be raised by direct appeal even though a guilty plea was entered. Fla. R.App. P. 9.140(b)(2)(A)(ii)c. Nevertheless, Collins did not pursue this avenue of relief.

      . Collins has not alleged the limited exceptions to the two-year time limit under rule 3.850(b).


author: ERVIN, J.

text:
    CEM ENTERPRISES, INC., d/b/a Sunshine Painting, and United Self Insured Services, Appellants, v. Paul THOMPSON, Appellee.
    No. 1D02-2172.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2003.

      Thomas A. Moore, Kevin S. Murphy, and Michael L. Peterson of Moore, Peterson & Zeitler, P.A., Orlando, for Appellants.
    Mark N. Tipton and Daniel L. Hightower of Daniel L. Hightower, P.A., Ocala, for Appellee.
   ERVIN, J.

The employer and its servicing agent (E/SA), CEM Enterprises, Inc., d/b/a Sunshine Painting, and United Self Insured Services, assert legal error in the award of a handicap-accessible, full-size van to claimant, Paul Thompson. Nevertheless, this court’s standard of review is whether there is competent, substantial evidence (CSE) to support the finding that the van is medically necessary. Because there is CSE in the form of Dr. Creamer’s and Dr. Horn’s testimony, as well as that of those who evaluated claimant’s current vehicle, we affirm the award.

Having determined that the van is medically necessary, the judge of compensation claims properly denied the E/SA’s request for an offset or credit based on the value of claimant’s current vehicle. As explained in Applegate Drywall Co. v. Patrick, 559 So.2d 736 (Fla. 1st DCA 1990), the award of medically necessary medical apparatus under section 440.13(2)(a), Florida Statutes (2000), is not apportionable. This is not a case such as Temps & Co. Services v. Cremeens, 597 So.2d 394 (Fla. 1st DCA 1992), where only an automatic transmission and power steering are medically necessary. Rather, the entire van is medically required.

As for the issues claimant raised on cross-appeal, we likewise affirm. Although claimant’s wife, who provides the attendant care, is a licensed practical nurse, and she received additional training to help her care for claimant, there is record support for the JCC’s finding that only nonprofessional attendant care is medically required; therefore, the limitations set forth in section 440.13(2)(b) apply.

AFFIRMED.

ALLEN and LEWIS, JJ., concur.


text:
    John Bradley LINSSENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3564.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2003.

      John Bradley Linssens, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See § 925.11(1)(a), Fla. Stat. See also Stewart v. State, 840 So.2d 438 (Fla. 5th DCA), rev. denied, 848 So.2d 1155 (Fla.2003).

SHARP, W., THOMPSON and PLEUS, JJ., concur.


text:
    Dietrich Denis FREENEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1621.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2003.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Jose NOGUERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1338.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    Michael HILTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-809.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2003.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Douglas M. JACKSON, Sr., Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, James V. Crosby, Jr., Secretary, Respondents.
    No. 1D03-4303.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.
    Douglas M. Jackson, Sr., pro se, petitioner.
    No appearance for respondents.
   PER CURIAM.

DENIED. See Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.


text:
    Douglas Rex BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4084.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.
    Douglas Rex Brown, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Having considered the appellant’s response to this court’s order dated September 26, 2003, we dismiss this appeal as premature. The appellant may file a timely notice of appeal after the trial court has rendered a final order on his 3.800(a) motion. The appellant’s motion to relinquish jurisdiction, filed on October 8, 2008, is denied. See Maxwell v. Nugget Oil, Inc., 744 So.2d 1203 (Fla. 1st DCA 1999).

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.


text:
    John M. FERENC, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D03-2502.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Louis A. Vargas, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s “Motion for Clarification,” which the Court treats as a response to its order of September 22, 2003, this Court has determined that it lacks jurisdiction to review either the order denying rehearing or the order denying indigency status, entered by the lower tribunal on May 27, 2003, and May 14, 2003, respectively. See Fla.R.App. P. 9.130(a)(4); see also Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000). Accordingly, the appeal is hereby dismissed.

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.