author: PARIENTE, J. LEWIS, J.,

text:
    N.S.H., etc., Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent.
    No. SC02-261.
    Supreme Court of Florida.
    April 3, 2003.

      Ryan Thomas Truskoski, Orlando, FL, for Petitioner.
    Charles D. Peters, Orlando, FL, for Respondent.
   PARIENTE, J.

We have for review N.S.H. v. Department of Children & Family Services, 803 So.2d 877 (Fla. 5th DCA 2002), a decision of the Fifth District Court of Appeal on the following question, which the court certified to be of great public importance and which we have rephrased:

ARE THE ANDERS PROCEDURES APPLICABLE TO CRIMINAL CASES TO BE FOLLOWED IN CASES INVOLVING TERMINATION OF PARENTAL RIGHTS?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We conclude that Anders procedures do not apply to termination of parental rights cases and, therefore, answer the rephrased certified question in the negative.

The Anders Framework

In 1967, the United States Supreme Court decided Anders and held that counsel appointed to represent an indigent criminal defendant could not withdraw from representation during the appeal by merely advising the appellate court in a letter that the appeal had no merit. See 386 U.S. at 744, 87 S.Ct. 1396. The An-ders case was part of “a continuing line of cases [that had] reached [the United States Supreme] Court concerning discrimination against the indigent [criminal] defendant on ... first appeal.” Id. at 741, 87 S.Ct. 1396. In order to protect the indigent criminal defendant’s right to appellate counsel established in Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the Supreme Court set forth a procedure to be used in those cases where appointed counsel determines an appeal to be “wholly frivolous”:

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.
That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Anders, 386 U.S. at 744, 87 S.Ct. 1396 (emphasis supplied).

In 1971, this Court adopted the precise procedure set forth in the original Supreme Court opinion in Anders for criminal appeals in this state. See State v. Wooden, 246 So.2d 755, 757-58 (Fla.1971), abrogated on other grounds, State v. District Court of Appeal, 569 So.2d 439, 442 (Fla.1990); see also In re Anders Briefs, 581 So.2d 149 (Fla.1991). The Supreme Court has since clarified that the procedure set forth in Anders is “merely one method of satisfying the requirements of the Constitution for indigent criminal appeals.” Smith v. Robbins, 528 U.S. 259, 276, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

Although this Court has not yet reevaluated its current Anders procedures in light of Smith, this Court recently extended the use of the Anders procedure to appeals of involuntary civil commitment to a mental health facility where an individual’s physical liberty is at stake. See Pullen v. State, 802 So.2d 1113, 1120 (Fla.2001). The issue now before us is whether this Court should mandate Anders procedures in termination of parental rights appeals, which would require the appellate court to conduct an independent review of the record in cases where appointed counsel has concluded that an appeal would be frivolous.

Analysis

In this case, the Fifth District granted the appointed attorney’s motion to withdraw from representation of a parent in a termination of parental rights case, after that attorney determined in good faith that there were no valid issues to appeal and that any appeal would be frivolous. See N.S.H., 803 So.2d at 878-79. However, in light of this Court’s opinion in Pullen, the Fifth District certified the question to this Court as to whether the Anders procedures should be followed in termination of parental rights proceedings.

Before our decision in Pullen, those district courts of appeal addressing the issue had concluded that the Anders procedure for criminal appeals was not applicable to termination of parental rights cases. In Ostrum v. Department of Health & Rehabilitative Services, 663 So.2d 1359 (Fla. 4th DCA 1995), the Fourth District held that “the full panoply of Anders procedures” is unnecessary in the appellate review of these cases. 663 So.2d at 1361. The Fourth District also found that the need to resolve issues involving the legal status of children quickly and to refrain from unduly burdening the caseload of the appellate courts weighed against imposition of the more time consuming Anders procedures. See id. The Second, Third, and Fifth Districts have likewise declined to extend An-ders to termination of parental rights cases. See In re K.W., 779 So.2d 292, 294 (Fla. 2d DCA 1998); In re J.A. 693 So.2d 723, 724 (Fla. 5th DCA 1997); Jimenez v. Dep’t of Health & Rehabilitative Servs., 669 So.2d 340, 341 (Fla. 3d DCA 1996). We agree with the district courts of appeal that Anders procedures should not be mandated in termination of parental rights cases.

The Anders decision addressed the specific issue of the indigent criminal defendant’s right to a meaningful first appeal. See 386 U.S. at 741-42, 87 S.Ct. 1396. N.S.H. has cited no research, and we are unaware of any research, that indicates that the same concerns in criminal appeals that led to the Anders decision are present today, more than thirty years later, in termination of parental rights proceedings so as to mandate comparable appellate oversight.

As stated above, the Anders procedures adopted in this state require that counsel set forth in a brief “anything in the record that might arguably support the appeal.” Wooden, 246 So.2d at 758 (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396). These procedures then require “the court ... after a full examination of all the proceedings, to decide whether the case is wholly frivolous.” Id. at 758, 87 S.Ct. 1396 (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396). Absent the compelling concerns expressed by the United States Supreme Court in Anders, we cannot justify thrusting appellate courts into a position that represents a departure from the court’s traditional role as a neutral decision maker. As the Fourth District aptly observed:

Anders represents a radical departure from the traditional role of appellate judges as neutral decision makers without bias or prejudice for or against any party. Instead, it turns them into advocates for the party whose counsel seeks to withdraw. Whatever may be the rationale for requiring that departure from neutrality in criminal cases, we are quite unwilling to allow it in purely civil matters.

Ostrum, 663 So.2d at 1361; see also In re Anders Briefs, 581 So.2d at 151 (stating that once a motion to withdraw is filed and the defendant is given the opportunity to file a pro se brief, “[t]he appellate court ... assumes the responsibility of conducting a full and independent review of the record”).

Although we do not minimize the significant interests at stake in parental rights termination proceedings, the essential difference between termination proceedings and both criminal proceedings and civil commitment proceedings is that termination proceedings do not involve the risk of loss of physical liberty. Further, there are two interests that must be weighed in a termination proceeding: that of the parent and that of the child. The Fourth District recognized both of these distinguishing factors in Ostrum when it noted that termination of parental rights “cases are not criminal in nature. They are civil proceedings which happen to affect the substantial interests of the parents and children involved.” 663 So.2d at 1361.

In addition, the records in termination of parental rights cases are often extensive and extremely fact-based. This contrasts with the typical case in a criminal Anders appeal and with this Court’s observation in Pullen as to the civil commitment proceeding at issue in that case:

The State noted in both its brief and at oral argument that civil commitment hearings under the Baker Act are “usually brief and factually straightforward” and “[v]ery rarely is the person’s mental illness contested.” Instead, the State contends, “the most common points on appeal” assert that evidence as to the person’s likelihood to harm himself or others does not meet the clear and convincing standard. Thus, we do not agree with the State’s contention that the independent appellate court review which is part of the Anders-type procedure will cause an undue burden to the court or result in unnecessary delay.

Pullen, 802 So.2d at 1120. Requiring appellate courts to review extensive fact-based records in termination of parental rights cases to determine whether there are any meritorious issues to appeal would add to both the burden placed on the appellate courts and the delay in bringing the termination of parental rights proceeding to conclusion without a concomitant showing of need to protect the constitutional rights of parents.

Although we recognize that “mere speed of operation and speed for the purpose of expediency,” concurring in result op. at 20, do not outweigh other important values of our system of justice, such as a fair opportunity for an indigent parent to pursue a meaningful appeal of an order terminating parental rights, we do not believe that extending Anders procedures to termination of parental rights appeals serves those higher values. Further, considering the three-factor test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), we conclude that there is no due process violation in failing to require that the Anders procedure be followed in appeals from termination of parental rights proceedings. Cf. M.W. v. Davis, 756 So.2d 90, 97 (Fla.2000) (“[T]he extent of procedural due process protections varies with the character of the interest and nature of the proceeding involved.”) (quoting In re D.B., 385 So.2d 83, 89 (Fla.1980)). Accordingly, we decline to extend the Anders procedure to termination of parental rights proceedings. We conclude that the procedure is not constitutionally mandated and any potential benefits from the Anders procedure in the context of termination of parental rights proceedings are outweighed by the delay in the disposition of the case and the consequent potential detriment to the child from any additional delay in finalizing the permanent placement of the child.

We next address what procedure should be followed when appointed counsel seeks to withdraw from representation of an indigent parent in a termination of parental rights appeal. The Fourth District adopted the following procedure:

It will be enough for appellate counsel to file a motion seeking leave to withdraw as counsel for the parent whose rights have been terminated.... [WJhere appellate counsel seeks leave to withdraw, we can then give the party a period of time in which to argue the case without an attorney. If the party then fails to file a brief within the time period granted for that purpose, we will conclude that the party no longer wishes to prosecute the appeal and dismiss for failure to prosecute. If the party has filed a brief, we will review the brief and if it fails to present a preliminary basis for reversal we will summarily affirm under rule 9.315. When we find that the party’s brief presents a preliminary basis for reversal, the case will then proceed as any ordinary appeal.

Ostrum, 663 So.2d at 1361. The procedure enunciated by the Fourth District in Ostrum does not explicitly state that appellate counsel’s motion to withdraw must contain a certification that he or she has conducted a conscientious review of the record and could find no meritorious grounds on which to base an appeal. However, we interpreted Ostrum as including this requirement in our decision in Pullen, see 802 So.2d at 1114, and this requirement is consistent with the Fifth District’s decision in N.S.H.:

[W]e shall adhere to the Ostrum procedure which requires service of a motion to withdraw on the client, certification in that motion to this court that counsel in good faith has discovered no valid error below, and an opportunity for the client to file a brief on his or her own behalf, or through subsequently retained counsel.

N.S.H., 803 So.2d at 879. Accordingly, we approve the procedures set forth in Ost-rum and N.S.H. As to the certification required, we specifically hold that where appellate counsel seeks leave to withdraw from representation of an indigent parent in a termination of parental rights case, the motion to withdraw shall be served on the client and contain a certification that after a conscientious review of the record the attorney has determined in good faith that there are no meritorious grounds on which to base an appeal. The parent shall then be provided the opportunity to file a brief on his or her own behalf.

Based on the foregoing, we answer the certified question in the negative and approve the decision of the Fifth District Court of Appeal.

It is so ordered.

ANSTEAD, C.J., WELLS and QUINCE, JJ., and SHAW, Senior Justice, concur.

LEWIS, J., concurs in result only with an opinion.

HARDING, Senior Justice, dissents.

LEWIS, J.,

concurring in result only.

This Court has recognized a constitutionally protected interest in the context of juvenile dependency proceedings, and the important fundamental nature of the interest at risk when permanent termination of parental rights might result. We have held that the fundamental interest at stake requires procedural safeguards and the appointment of counsel for indigents under due process considerations commensurate with those granted criminal defendants and individuals subject to civil commitment. See Pullen v. State, 802 So.2d 1113 (Fla.2001); In re D.B., 385 So.2d 83 (Fla.1980); see also J.B. v. Florida Dep’t of Children & Family Servs., 768 So.2d 1060 (Fla.2000). While the right to counsel may flow from, and have its origins in, the Sixth Amendment in the criminal context and concepts of due process under the United States and Florida Constitutions in the dependency arena, the goal to be achieved is the participation of counsel acting as competent counsel. Although it may be argued that the Sixth Amendment right to counsel may be somewhat distinguished from the right to counsel in dependency proceedings flowing from due process considerations, in that the extent of protections may vary with the character of the interest and nature of the proceeding involved, the underlying substantive constitutional requirement of substantial equality and fair process can only be realized when counsel is performing as an active advocate. This Court made no distinctions when it announced the governmental obligation to provide counsel when constitutionally required to do so in the dependency context. See D.B., 385 So.2d at 90-91.

The concept at issue in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), was a concern with the extent of the duty of court-appointed appellate counsel, and the result was not dictated simply by the source of the appointment. The Anders Court reasoned:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of ami-cus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability.

Id. at 744, 87 S.Ct. 1396 (footnote omitted). The power of Anders, which should be no less controlling here, counsels that:

This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are able to afford the retention of private counsel.

Id. at 745, 87 S.Ct. 1396. I do not agree with the majority that the alleged putative administrative burden of Anders-type procedures in the direct appeal of permanent parental rights terminations is so onerous that it must trump fundamental due process constitutional rights. If the rights and interests are identified as deserving the same constitutional protection with the right to appointed counsel, it is the procedure that should be analyzed, not the process denied. I conclude that principles of constitutional consistency should mandate the granting of Anders-type protections in permanent parental rights termination appeals, and would so hold in the instant case. The evil to be addressed is the lack of equality in the process.

The United States Supreme Court has made it clear many times that the “interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). This interest, which emanates from the fundamental right to privacy, is “among associational rights [the U.S. Supreme] Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (citation and internal quotation marks omitted); see also Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). We have echoed the pronouncements of the U.S. Supreme Court when deciding cases which concern the fundamental rights of parents with regard to their children. See, e.g., J.B. v. Florida Dep’t of Children & Family Servs., 768 So.2d 1060, 1065 (Fla.2000); Von Eiff v. Azicri, 720 So.2d 510, 513 (Fla.1998); In re E.H., 609 So.2d 1289, 1290 (Fla.1992); Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 570 (Fla.1991). Indeed, this Court has noted that Florida’s “constitutional right to privacy is much broader in scope, embraces more privacy interests, and extends more protection to those interests than its federal counterpart.” Von Eiff, 720 So.2d at 514.

By its very nature, a legal proceeding in which the state seeks to terminate the parental rights of one of its citizens is a direct governmental interference with the fundamental right to be involved with the life of one’s child. Thus, the liberty, privacy, and due process interests protected by the United States and Florida constitutions are implicated at every stage during the termination process. Indeed, the state action at issue in the instant case could, and often does, have the ultimate effect of completely severing the constitutionally protected relationship between a parent and child.

Because the interest at stake in parental rights termination proceedings is a fundamental one, heightened procedural safeguards are necessary to ensure that the essential right is not abridged. The Supreme Court has stated, “The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss.’ ” Santosky v. Kramer, 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (quoting Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). Because parental rights termination proceedings “seek not merely to infringe [upon the] fundamental liberty interest, but to end it ... few forms of state action are both so severe and so irreversible.” Id. at 759, 102 S.Ct. 1388; see also Y.H. v. F.L.H., 784 So.2d 565, 569 (Fla. 1st DCA 2001) (noting that after termination, the parent “stands as a stranger ... and the fact that he is the child’s biological father is now legally irrelevant”) (quoting Stefanos v. Rivera-Berrios, 673 So.2d 12, 14 (Fla.1996)). Therefore, in my view there is no reason not to afford available procedural protections to safeguard against the rendering of mistaken final judgments.

The Supreme Court has noted that “numerous factors combine to magnify the risk of erroneous factfinding” in termination proceedings. Santosky, 455 U.S. at 762, 102 S.Ct. 1388. Additionally, the Supreme Court has stated:

Permanent neglect proceedings employ imprecise substantive standards that leave determinations usually open to the subjective values of the judge. In appraising the nature and quality of a complex series of encounters among the agency, parents, and the child, the court possesses unusual discretion to under-weigh probative facts that might favor the parent.
... Given the weight of the private interests at stake, the societal cost of even occasional error is sizable.

Id. at 762-6, 102 S.Ct. 1388 (citations omitted); see also Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 30, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). It is plain that parental rights termination proceedings require an extremely subjective evaluation of a very complex relationship between multiple entities and interests. In fact, at the time termination proceedings are commenced, the proceedings involve — at a minimum' — the judiciary, the parent or parents, the child, and a custodial government agency. Each of these participants may have significantly divergent interests, none of which can always be evaluated objectively.

Moreover, I cannot close my eyes to the fact that the circumstances at issue in termination proceedings could be impacted by insidious bias. The United States Supreme Court has noted: Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups, such proceedings are often vulnerable to judgments based on cultural or class bias. See Santosky, 455 U.S. at 763, 102 S.Ct. 1388. Thus, imposition of the Anders-type procedural safeguards would serve to prevent possible discrimination, purposeful or otherwise.

Under the decisions of the United States Supreme Court, as well as those of this Court, it is undeniable that an essential fundamental liberty interest is at stake in parental rights termination proceedings. In my view, principles of constitutional consistency require that this Court protect the fundamental interest in raising one’s children in a fashion coordinate with the procedural safeguards applicable when a citizen’s physical liberty is at stake. Because indigent defendants subject to imprisonment and civil commitment benefit from Anders-style review on appeal, so too should parents who cannot afford to hire an appellate attorney to pursue an appeal of the termination of their relationship with their child have Anders-type protections. If the interests of these groups of persons are such as to require appointed counsel at the trial level, the same processes should be applicable at the appellate level to provide Anders-type protection even if we do not impose identical Anders proceedings.

To effect the adequate protection of certain indigent litigants’ rights, the federal and Florida courts have long held that those who cannot afford a trial attorney must receive the services of one through court appointment. Currently, when the state endeavors to incarcerate an indigent because of an alleged violation of the criminal laws, seeks to have an indigent civilly committed under the provisions of Florida’s Baker Act, or requests that a court terminate the parental rights of an indigent person, that litigant is entitled to the services of court-appointed counsel. At present, however, the protections of An-ders-style review at the appellate level only attach in the criminal and civil commitment scenarios. I would act today to rectify this inconsistency, and grant An-ders-type procedural protections to indigent parents pursuing an appeal of an adverse result at trial as those appealing criminal convictions and civil commitment orders. Because the law demands no less, I conclude that the result reached by the majority is both illogical and inconsistent.

While the appellee raises the specter of children endlessly awaiting ultimate disposition as to their custody, Florida statutory law and procedural rules safeguard against any excessive delay caused by Anders-type protections in the district courts. Section 39.815(1) of the Florida Statutes mandates that district courts of appeal give “an appeal from an order terminating parental rights priority in docketing” and requires a decision to be rendered “on the appeal as expeditiously as possible.” § 39.815(1), Fla. Stat. (2001). See also Fla. R.App. P. 9.146(g) (“The court shall give priority to appeals [in juvenile dependency and termination of parental rights cases] under this rule.”). Additionally, the district courts themselves have strong policies which ensure the rapid resolution of parental rights termination proceedings. Thus, the extant statutory framework ensures that application of Anders-type protections to parental rights termination appeals would not prolong these actions any longer than is necessary to protect the fundamental liberties of all the parties involved. While I understand that the majority may not wish to impose full Anders proceedings in this context, a result with which I have no fundamental opposition, we should at least institute Anders-type protections formulated and crafted for this type of proceeding to ensure fundamental justice.

Finally, I am guided by the principle that

the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy....

Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (footnote omitted). At some point, we must thoroughly recognize that there are higher values in a system which professes to do justice and care for its children than mere speed of operation and speed for the purpose of expediency. Indeed, the federal and Florida constitutions mandate that the courts protect the fundamental interests of the people regardless of the possibility of slight delays in final adjudication. If it is the Anders process itself that should be reconsidered, then so be it, and I would agree. However, the inconsistency of application causes me to respectfully concur in result only because we fail to afford any Anders-type protections whatsoever which, in my view, could be easily crafted and formulated for fundamental fairness yet not require a full Anders proceeding as it presently exists.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The question as phrased by the Fifth District stated:
      IN TERMINATION OF PARENTAL RIGHTS CASES, IF AN ATTORNEY APPOINTED TO REPRESENT AN INDIGENT • PARENT BELOW IN GOOD FAITH DETERMINES THAT THERE IS NO VALID ISSUE ON APPEAL, SHOULD THAT ATTORNEY BE PERMITTED TO WITHDRAW PURSUANT TO OSTRUM [V. DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, 663 So.2d 1359 (Fla. 4TH DCA 1995) ], OR BE REQUIRED TO FILE AN ANDERS TYPE BRIEF?

        N.S.H., 803 So.2d at 879.

      . See Pennsylvania v. Finley, 481 U.S. 551, 554, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“The holding in Anders was based on the [criminal defendant's] underlying constitutional right to appointed counsel established in Douglas

      . In addition, because the two parents are often represented by different lawyers in cases where both parents' rights are terminated, it is entirely possible that the interest of one parent may conflict with that of the other parent.

      . The standard of appellate review of these fact-based issues is abuse of discretion, which is essentially a "reasonableness” test. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). "Discretion ... is abused when the judicial action is arbitrary, fanciful, or unreasonable,” and "[i]f reasonable [people] could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Id.

      .As Judge Warner of the Fourth District Court of Appeal has explained, in many An-ders cases "the defendant has pled to the charge or has been convicted in a relatively short trial.... The issues in such cases involve either the voluntariness of the plea or the sentence. Typically the record is very limited. Judicial review of the record is not time-consuming_” Martha C. Warner, Anders in the Fifty States: Some Appellants’ Equal Protection Is More Equal Than Others’, 23 Fla. St. U.L.Rev. 625, 655 (1996).

      . Eldridge sets forth a three-factor test to determine whether the Due Process Clause of the Fourteenth Amendment mandates additional procedures. It instructs that we look to (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation through the procedures used and probable value of substitute procedures; and (3) the Government’s interest, including the fiscal and administrative burden of substitute procedures. See 424 U.S. at 335, 96 S.Ct. 893.

      . See, e.g., In re C.G., 609 So.2d 631, 632 (Fla. 2d DCA 1992) ("Even before the legislature mandated expedited appeals in parental [rights] termination cases ... it was the policy of this court to expedite such appeals.”); see also C.S. v. S.H., 671 So.2d 260 (Fla. 4th DCA 1996).


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    Ned SCHUSTER and Suzanne Schuster, Appellants, v. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., a corporation, Appellee.
    No. 4D01-4523.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Rehearing Denied May 16, 2003.
    Jeffrey M. Liggio and Jene P. Williams of Liggio, Benrubi & Williams, P.A., West Palm Beach, and Richard A. Barnett of Richard A. Barnett, P.A., Hollywood, for appellants.
    Nancy W. Gregoire and W. Edward McIntyre of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellee.
   STEVENSON, J.

The instant appeal arises from a dispute between the Schusters and^lue Cross and Blue Shield of Florida, Inc. (BCBSF) under a health insurance policy. Following a bench trial, the trial court entered final judgment in favor of the insurer, finding that the insureds simply could not prevail as they had assigned their right to benefits to the health care providers and, consequently, had sustained no damages. We affirm.

In 1997, Suzanne Schuster was diagnosed with a “stomach paralysis condition.” Following her diagnosis, Suzanne underwent numerous surgical procedures and, ultimately, her stomach was removed and she received a multi-visceral transplant of the stomach, small .bowel, and pancreas. Suzanne and her husband, Ned, are insured under a health insurance policy issued by BCBSF. In June of 2000, the Schusters sued BCBSF, alleging that it had breached the insurance contract by delaying and denying payment of Suzanne’s medical bills. The Schusters alleged as damages unpaid medical expenses, impairment of their credit, mental distress, and out-of-pocket expenses. At the time the litigation was commenced, the disputed claims numbered in the hundreds. Thereafter, the Schusters narrowed their claims and alleged that twenty-seven claims had not been timely processed and paid by BCBSF. The twenty-seven claims totaled approximately $51,000 and involved seven health care providers, the St. Lucie Fire District, Gastroenterology Consultants (Drs. Baskin and Kumar), Shands Hospital, Housecall Home Health, House-call Infusion Services, Martin Memorial Hospital, and Lab Corp.

Before the trial could get underway, but after the Schusters filed suit, BCBSF paid all of the disputed, outstanding claims. The Schusters then filed a motion seeking the entry of judgment in their favor on the issue of BCBSF’s liability, arguing that the payment of the disputed claims was the “functional equivalent” of a confession of judgment. The Schusters deferred seeking a ruling on their motion, however, and the case proceeded to trial.

At the very outset of the bench trial, counsel for the Schusters acknowledged that all of the outstanding claims had been paid, but asserted that BCBSF had nonetheless breached the insurance contract because it failed to pay the claims within the time limits prescribed by the insurance contract and Florida statute. It was the Schusters’ position that while BCBSF pointed to inaccurate provider numbers and missing authorization codes to support the delay in payment, these were simply not matters that excused BCBSF’s obligation to meet the time frames set forth by contract and statute. For its part, from opening statements, BCBSF took the position that it had not breached the contract by failure to make timely payment and, even if it had, the Schusters still could not prevail in their suit because they had sustained no damages. In his opening statement, counsel for BCBSF pointed out that the Schusters had assigned their right to benefits to the health care providers for each of the disputed claims; that, as consequence of such assignment, the claims were submitted by the providers to BCBSF; that payment went directly from BCBSF to the providers; and that there would be no evidence that the Schusters had been required to pay any out-of-pocket expenses.

Between opening statements and closing arguments, some eight witnesses testified. Seven of those witnesses were either BCBSF employees or representatives of one of the seven health care providers involved in the disputed claims. The testimony of these witnesses centered around how claims are processed by BCBSF, what kind of information a health care provider is required to submit, and the submission of the various claims by the providers. The eighth witness was Ned Schuster. Schuster confirmed that he and his wife had assigned them right to benefits to the providers for each of the twenty-seven claims at issue.

By the time of closing arguments, counsel for the Schusters conceded that the Schusters’ damages “for the purposes of this case are going to be the statutory interest or the contractual interest on the 627.613.” BCBSF continued to insist that the Schusters could not prevail because damages was an element of a cause of action for breach of contract and the Schusters had not sustained any damages. As for any interest that was owed as the result of untimely payment, BCBSF’s counsel argued that such interest would be owed to the provider — not the Schusters.

In his final judgment, the judge expressed doubt over whether BCBSF’s billing procedures complied with the provisions set forth in the insurance contract and Florida statute. Despite these concerns, the judge agreed that in light of the assignment of the claims to the providers, the Schusters could not prevail. Specifically, the judge found that:

It appears to this Court that the Schusters voluntarily took it upon themselves to pursue the payments owed by Blue Cross to the health care providers pursuant to the various provider agreements in this case.... The various health care providers, whose claims are at issue in this case, may have had valid causes of action against Blue Cross for failure to pay legitimate bills incurred by their insured in a reasonable and timely manner. However, none of the health care providers brought suit against Blue Cross and that is not the issue before the Court. Any interest on damages owed in this case would be owed to the health care providers and not the Schusters. Where the Schusters assigned their contract rights to the health care providers at issue in this case, they assigned away their right to bring this cause of action for breach of contract against Blue Cross and for any resulting damages. The Schusters were not the real parties in interest in this case.

The Schusters have appealed the trial court’s decision, raising a number of issues. We find that none of the arguments advanced requires reversal of the judgment and write to specifically address three issues raised by the Schusters: (1) the assignment of benefits to the health care providers and the impact of such assignment on their ability to prevail in this suit, (2) the interest owed for any untimely payment as an element of damages owed to the Schusters, and (3) the claim that BCBSF’s payment of the disputed, outstanding claims following the filing of suit was tantamount to a confession of judgment, requiring reversal of the judgment in favor of the insurer.

The Assignments

Under Florida law, an insured may assign his right to benefits under a contract of insurance. See, e.g., Miami Children’s Hosp., Inc. v. Malakoff, 765 F.Supp. 718 (S.D.Fla.1991)(holding that, under ERISA, an insured may assign his rights to benefits to the medical provider); Hartford Ins. Co. of Southeast v. St. Mary’s Hosp., Inc., 771 So.2d 1210, 1212 (Fla. 4th DCA 2000)(“Courts have recognized that medical service providers can assert claims for PIP benefits against insurers when an insured has assigned them the right to the benefits.”). The effect of such an assignment is to place the insured’s cause of action for such benefits in the provider. See Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So.2d 469 (Fla. 5th DCA 2001). “[0]nly the insured or the medical provider ‘owns’ the cause of action against the insurer at any one time.” Id. at 470.

The Schusters do not take issue with any of the above-stated legal principles. Rather, they assert that any argument that they lacked standing to bring the claims against BCBSF as a consequence of the assignments was waived when BCBSF failed to raise lack of standing as an affirmative defense in its answer to the complaint. There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver. See Krivanek v. Take Back Tampa Political Comm., 625 So.2d 840, 842 (Fla.1993). Based upon our review of the record, however, we find that, in this case, the issue was tried by consent. See Fla. R. Civ. P. 1.190(b); Book v. City of Winter Park, 718 So.2d 945, 946-47 (Fla. 5th DCA 1998)(applying the concept of trial by consent to affirmative defenses).

From the very outset of these proceedings, BCBSF took the position that the Schusters did not have a stake in these claims. The transcript reveals that there was no dispute that the Schusters had assigned their right to benefits and, as a consequence, it was the providers who filed the claims and to whom payment by BCBSF was made. Ned Schuster himself confirmed that each of the twenty-seven claims at issue had been assigned to the relevant provider. Moreover, documentation regarding the Schusters’ assignment of benefits to Martin Memorial Hospital and to Housecall was actually introduced into evidence. The language of the Martin Memorial and Housecall assignments authorized BCBSF to make payment directly to the providers, but stated that the insured would remain financially responsible for any amounts not paid. According to Schuster, each of the assignments in the twenty-seven claims at issue worked in this way. In Oglesby v. State Farm Mutual Automobile Insurance Co., 781 So.2d 469 (Fla. 5th DCA 2001), the Fifth District held that language similar to that included in the Martin Memorial and Housecall assignments, and that described by Mr. Schuster, was an unqualified assignment and served to eliminate the insured’s standing to bring a claim against the insurer. While Oglesby admittedly involved the assignment of PIP benefits to a medical provider, we see no reason to reach a different conclusion where the benefits arise under a health insurance policy.

Damages

Next, the Schusters maintain that even when the assignments of benefits to the providers are taken into account, the judge was incorrect in finding that they did not sustain any damage as the result of untimely payment by BCBSF. Clearly, both the insurance contract and section 627.613, Florida Statutes, require the insurer to pay interest on overdue payments. According to the Schusters, irrespective of the assignment, the interest is owed to them — not the providers. The Schusters argue that since neither the contract nor the statute states to whom the interest is to be paid and since the bills were not paid until they took action, “[i]t stands to reason that the Schusters are at least as entitled to the interest on the unpaid bills as the providers would be since the providers would not have received the unpaid bills at all if not for the lawsuit ... brought by the Schusters.” We simply cannot agree. Interest, by definition, is “[t]he compensation fixed by agreement or allowed by law for the use or detention of money, or for the loss of money by one who is entitled to its use .... ” Black’s Law DICTIONARY 816 (7th ed.1999). Here, it was the providers' — not the Schusters— who lost the use of their money for a time. Cf. Riera v. Finlay Med. Ctrs. HMO Corp., 543 So.2d 372, 373 (Fla. 3d DCA 1989).

Confession of Judgment

Finally, the Schusters assert that they were entitled to judgment in their favor because BCBSF’s payment of the outstanding claims after the commencement of litigation was tantamount to a confession of judgment. First of all, the trial judge never made a determination that payment was not timely made, and the timeliness of payment was the main issue at trial. Further, in view of the assignments, at best, the Schusters succeeded only in forcing BCBSF to fulfill obligations in which the Schusters no longer had an interest. Accordingly, we find that BCBSF’s payment of the claims in this case did not amount to a confession of judgment to the Schusters’ lawsuit.

AFFIRMED.

SHAHOOD and HAZOURI, JJ., concur.


author: STONE, J.

text:
    Barbara DOURADO, individually and as Personal Representative of the Estate of Moses Dourado, Appellants/cross-appellees, v. FORD MOTOR COMPANY, a foreign corporation, Appellee/cross-appellant.
    No. 4D01-4344.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Rehearing Denied May 19, 2003.

      Luis Stabinski of Stabinski & Funt, P.A., Miami, and Pamela Beckham of Beckham & Beckham, P.A., North Miami Beach, for appellants/cross-appellees.
    Wendy F. Lumish and Jeffrey A. Cohen of Carlton Fields, P.A., Miami, for appel-lee/cross-appellant.
   STONE, J.

In this wrongful death action, Barbara Dourado, individually and as personal representative of her husband’s estate, appeals a judgment entered against Ford Motor Company for the design of a defective seat belt that contributed to the death of her husband. Although she prevailed against Ford at trial, she appeals the award of damages, advancing three separate arguments. We affirm.

Dourado first argues that D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla.2001), should apply retroactively, even though Dourado’s case was pending on appeal at the time the decision was filed by the supreme court. While we agree that D Amaño has retroactive effect, we cannot apply it to the instant case because Doura-do did not preserve the issue for appeal. Under the standard set out in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), Dourado’s failure to object to the application of comparative negligence with requisite specificity precludes our review of the issue she raises for the first time in this appeal. See also Smith v. State, 598 So.2d 1063, 1066 (Fla.1992)(“To benefit from the change in law, the defendant must have timely objected at trial if an objection was required to preserve the issue for appellate review.”); St. Louis & S.F.R. Co. v. Wilson, 338 So.2d 192 (Fla.1976); CNA Ins. v. Minton, 334 So.2d 257 (Fla.1976).

As to Dourado’s claim that the trial court erred in failing to admit certain medical bills, we also affirm. The Wrongful Death Act, sections 768.21(5) and (6)(b), Florida Statutes, does not authorize the admission of evidence of medical expenses not charged against the estate or paid by or on behalf of the decedent as proof of economic loss. We note that the First District, in Horton v. Channing, 698 So.2d 865 (Fla. 1st DCA 1997), considered a similar set of facts involving a wrongful death action. There, the First District held that it was error to admit evidence of medical expenses in excess of those expenses chargeable against the decedent’s estate by Blue Cross. Id. at 869. Here, it is undisputed that no claim was being made by the hospital in excess of sums payable by the decedent’s insurance. Thus, the court properly excluded evidence of economic loss in excess of the sums paid or owed to the hospital.

We also find no abuse of discretion in the trial court’s rejecting Dourado’s motion for additur. The damage award at issue was not “so inadequate as to shock the conscience of the court.” Aurbach v. Gallina, 721 So.2d 756, 758 (Fla. 4th DCA 1998)(noting that trial court may not sit as seventh juror, substituting its findings with those of the jury).

Accordingly, we affirm all points raised in this appeal.

GROSS, J., and STERN, KENNETH, Associate Judge, concur.


author: BROWNING, J.

text:
    INTERIM SERVICES AND SPECIALTY RISK SERVICES, Appellants, v. Susan LEVY, Appellee.
    No. 1D02-0681.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Rehearing Denied April 17, 2003.

      George W. Boring, III of Langston, Hess, Bolton, Znosko, Helm & Allen, P.A., Maitland, for Appellants.
    Erick B. Grindal of Pemsler & Grindal, P.A., Coral Gables, for Appellee.
   BROWNING, J.

Appellant seeks review of an order of the Judge of Compensation Claims (JCC) awarding temporary partial disability (TPD) benefits to the claimant for her compensable injury. We affirm in part, reverse in part, and remand for further proceedings.

The claimant was injured at work in 1997 but continued to work until August 1998, when she moved to North Carolina. Her job search in North Carolina, which included inquiry with a branch of her former employer, did not result in employment. The claimant filed a petition for benefits that resulted in an award of TPD for the 104 weeks following August 1998 evaluation and treatment by both a neurologist and psychiatrist, penalties and interest on all indemnity, and a denial of impairment and supplemental benefits as premature.

To the extent that Appellant alleges that the claimant was not entitled to benefits from August 1998 forward because she had reached maximum medical improvement (MMI) on September 4,1997, we hold that there was competent substantial evidence in the record to support the JCC’s finding that the claimant had not yet reached MMI. Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003) (en banc). However, we reverse in part the JCC’s order for another reason.

A claimant must show a causal connection between his or her injury and a subsequent wage loss before an award of temporary wage loss benefits is appropriate, and Appellant alleges that the claimant failed to meet this requirement. To determine whether an injury and a subsequent wage loss are causally connected, a JCC is to consider the totality of the circumstances. E.g., Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 684 (Fla. 1st DCA 1997). An unsuccessful job search such as the claimant’s can be a factor in considering the totality of the circumstances as to the causal connection between the injury and wage loss. Barfield v. Universal Forest Prods., 813 So.2d 285 (Fla. 1st DCA 2002). However, the performance of a job search does not itself establish a causal relationship. Thompson v. City of Jacksonville, 654 So.2d 1178, 1180 (Fla. 1st DCA 1995). Generally, to establish such a causal relationship, a claimant can show that his or her capabilities preclude adequate performance of his or her prior job. Id.; Nickolls v. Univ. of Fla., 606 So.2d 410, 413 (Fla. 1st DCA 1992); Burger King v. Nicholas, 580 So.2d 656, 658 (Fla. 1st DCA 1991). Here, there has been no such showing.

In Betancourt, this Court held that the claimant’s work restrictions that prohibited heavy lifting supported an award of benefits where there was also evidence that the claimant’s job entailed lifting computers weighing 70 pounds. Betancourt, 693 So.2d at 684. In the instant case, the work restriction accepted by the JCC required the claimant to avoid sitting for more than two hours at a time, avoid standing or walking for more than one hour at a time, avoid carrying or lifting more than 20 pounds, and avoid crouching, bending, stooping, crawling, or climbing. However, there is no evidence that the claimant’s job, which included both desk work and “a fair amount of walking during the day,” would have required her to do tasks outside the scope of her restricted abilities. In fact, the evidence is clear that the claimant voluntarily terminated her employment for personal reasons after satisfactorily performing her job duties for 13 months following her injury. Therefore, there is no competent substantial evidence that the claimant’s physical capabilities precluded adequate performance of her old job, and the JCC reversibly erred by awarding TPD benefits to claimant.

Accordingly, we REVERSE the JCC’s award of TPD benefits to the claimant for the 104 weeks following August 1998, AFFIRM the other aspects of the order, and REMAND for further proceedings.

DAVIS and POLSTON, JJ., concur.


author: FLETCHER, Judge.

text:
    YACHT CLUB SOUTHEASTERN, INC., Appellant, v. SUNSET HARBOUR NORTH CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D01-2843.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Rehearing, Rehearing En Banc and Certification Denied May 7, 2003.

      Greenberg Traurig and Alan T. Dimond and Elliot H. Scherker and Elliot B. Kula, Miami, for appellant.
    Siegfried, Rivera, Lerner, De La Torre & Sobel and James Harrington; H. Hugh McConnell, Coral Gables, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   FLETCHER, Judge.

Yacht Club Southeastern, Inc. [developer] appeals an order imposing a sanction against it for its communication with members of Sunset Harbour North Condominium Association, Inc. [Sunset Association] concerning matters arising during mediation. We reverse.

Sunset Association, in its capacity as representative of the owners of units at Sunset Harbour North Condominium, sued the developer for purported construction defects. As part of the litigation the parties participated in a court-ordered mediation but failed to reach an agreement. Subsequently the developer wrote a six page letter to all individual unit owners, purportedly to inform them of the status of the legal proceedings. The letter included the amount of a settlement offer made by the developer, which amount had been rejected by the Sunset Association during mediation.

Relying on section 44.102(3), Florida Statutes (2001), the Sunset Association moved for sanctions, complaining of disclosure by the developer of confidential mediation information. Section 44.102(3), Florida Statutes (2001), reads in pertinent part:

“Each party involved in a court-ordered mediation proceeding has a privilege to refuse to disclose, and to prevent any person present at the proceeding from disclosing, communications made during such proceeding.”

The trial court granted the Sunset Association’s motion. The court order on the motion gave the developer the option of having its pleadings stricken or paying a $25,000 sanction. The developer elected the latter, then filed this appeal.

The developer argues that its letter was a permitted communication between parties as the individual unit owners (the members of the association) are the real parties in interest, the lawsuit having been filed on their behalf by the Sunset Association. As the real parties in interest the unit owners are entitled to know about the issues in dispute and the mediation efforts.

The Sunset Association argues that while it is true that the individual unit owners are “technically” the real parties in interest, the individual unit owners are not named parties with whom the developer may negotiate. Only the Sunset Association as the class representative can control the litigation, negotiate with the opposing party, and decide any settlement terms.

We agree with the developer that the imposition of sanctions against it is inappropriate. Section 44.102(3) grants a privilege to “each party involved in a mediation proceeding” to refuse to disclose, and to prevent other persons who were present at the mediation proceeding from disclosing communications made during such proceeding. There is nothing in the statute that precludes parties from disclosing such communications to other parties, whether they were present at the mediation proceeding or absent therefrom.

Section 718.111(3), Florida Statutes (2001) authorizes condominium associations to institute and resolve various lawsuits on behalf of all unit owners. Under this statutory section unit owners are the real parties in interest, having a stake in the outcome, whether named as a party or not. Likewise Rule 1.221, Florida Rules of Civil Procedure, establishes the procedure for a condominium association to bring an action “in its name on behalf of all unit owners.” Under the rule the unit owners are the real parties in interest.

As a result it is clear that it was not a violation of section 44.102(3) for the developer to have disclosed mutually privileged mediation communications to the co-holders of the privilege, the real parties in interest, i.e., the unit owners. As a result we reverse the trial court’s order imposing sanctions on the developer.

      . Section 718.111 (3) makes it clear that a unit owner may opt out of such litigation and bring her/his own lawsuit. The record here reflects no option-out.


author: GRIFFIN, J.

text:
    Roosevelt GLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3555.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Rehearing Denied April 28, 2003.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tammy L. Jaques, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

The defendant below, Roosevelt Glover [“Glover”], was charged by information with possession of cocaine with intent to sell or deliver. He filed a motion to suppress any statements he made to law enforcement, any observations made by law enforcement regarding him, any information or objects obtained by law enforcement from him, and the eighteen pieces of cocaine found on him. Subsequent to a hearing on the motion to suppress, the motion was denied by the trial court. Glover pled nolo contendere and was adjudicated guilty by the trial court. He now appeals the final order of judgment and sentence, contending that the trial court erred in denying his motion to suppress. We affirm.

Officer Chris Myers [“Myers”], a thirteen-year veteran and Uniform Drug Unit member of the Orlando Police Department, testified at the hearing on the motion to suppress. Myers stated that he has over 250 hours of formal training in drug enforcement and has made between 1000 and 2000 narcotics-related arrests. Myers was assigned to the Drug Unit and was patrolling for illegal drug activity on June 28, 2001, in an unmarked vehicle, when he observed Glover from about ten to fifteen yards away about to place an unidentified object into the hand of an unknown female. When Glover saw him, he immediately drew his hand back and put the object in his mouth instead of in the hand of the female. The female then began to walk away. Myers did not observe any money changing hands, but his suspicions were aroused as a result of his training and experience with drug enforcement. Myers noted that it is very common for drug dealers to place drugs in their mouth at the sight of police, and he recognized Glover as a known drug dealer. Myers also noted that the place he observed Glover was an open field where drug dealers were known to congregate. He had personally arrested dozens of people for drug violations in that same location. Myers said that he approached Glover while another officer contacted the female. The other officer informed Myers that he found a crack pipe in the female’s possession, so Myers asked Glover what had transpired between him and the female. Glover told Myers he was merely talking to the female and denied giving her anything or putting anything in his mouth.

Based on what Myers had observed, he testified he believed Glover was lying and that he had been engaged in a drug transaction. He proceeded to conduct a pat-down search of Glover. Myers did not ask Glover for permission to search him. Myers testified that during the search he discovered “a round hard object in the pocket of [Glover’s] briefs which was not part of the human body,” which, based on his experience, he knew to be cocaine. Myers asked Glover to remove the object. When he refused, Myers handcuffed Glover and removed the object, a piece of plastic wrap which contained eighteen pieces of crack cocaine. Myers arrested Glover.

On direct examination, Myers was asked why he searched Glover. Myers replied:

When I initially saw the defendant, he was engaged in what I believed to be based on my experience and training and knowledge of him in this area in the sale of crack cocaine or delivery of crack cocaine, upon seeing the police he put this object which was small enough and consistent with the size of a piece of crack cocaine in his mouth which is what drug dealers commonly do. They either throw it down or put it in his [sic] mouth. He liked to put it in his mouth. The person who was standing next to [Glover], who I believed to be the buyer, immediately walked away and threw down the crack pipe and then when I confronted [Glover] with what I saw, he denied it all. He didn’t tell me I was eating a piece of candy. He didn’t come up with any kind of story about what he had in his hand or put in his mouth. He just said that it didn’t happen. That led me to believe that it wasn’t a piece of candy, it wasn’t a legitimate object, and if he was selling this illegal substance, he probably had more on him.

Based on Myers’ and Smith’s testimony, the trial court concluded Myers had probable cause to conduct a warrantless arrest and search of Glover, and denied the motion to suppress.

As with almost all suppression cases, there are authorities on either side of the issue arising out of similar facts. The trial court referred to several such cases in its order denying Glover’s motion to suppress. The first is Knox v. State, 689 So.2d 1224 (Fla. 5th DCA 1997), in which this court affirmed the trial court’s denial of Knox’s motion to suppress. In Knox, law enforcement officers observed Knox for two hours. Over the course of that time, they witnessed him engage in several transactions with several different vehicles. He was seen passing something which the officers could not see to occupants inside each vehicle, and upon the vehicles driving away, the officers witnessed Knox with cash in his hands. However, the court concluded “from the totality of the circumstances that the officers’ observation of Knox’s conduct during the two-hour surveillance established sufficient probable cause for an experienced narcotics officer to believe that Knox was engaged in criminal conduct that justified a search for illegal drugs.” Id. at 1225.

Also cited in the trial court’s order is Williams v. State, 717 So.2d 1109 (Fla. 5th DCA 1998), where this court again affirmed a trial court’s denial of a motion to suppress, based on the following facts:

An experienced narcotics officer had under observation a specific location known from previous arrests to be a site of frequent drug sales. From his vantage point, he observed appellant, a person known to the officer as one who hangs out on the streets and has been subject to various arrests, after looking around to assure himself that no one was watching, reach into his buttocks area under his pants and produce something from which he extracted something small which he handed to two persons who had approached him in exchange for something that the officer could not identify ... Based on this observation, appellant was searched and cocaine was found.

Williams, 717 So.2d at 1109. We said it was clear that a commercial exchange had taken place, thus giving the officer probable cause to search for drugs under the totality of the circumstances.

The trial court also relied on Elliott v. State, 597 So.2d 916 (Fla. 4th DCA 1992). In Elliott, the order denying the motion to suppress was affirmed. A law enforcement officer was passing through an area known for cocaine trafficking when he observed Elliot exchange something with a passenger in a vehicle. Based on this observation, the officer believed a drug transaction had occurred, even though he did not actually see the contents of what was exchanged. He further witnessed Elliot placing a plastic baggie, which the officer knew to be a commonly used package for cocaine, in his pocket. The officer was a seventeen-year veteran who had been involved in hundreds of drug investigations, and he also recognized Elliot as a man he had seized cocaine from just two weeks earlier. Id. at 916-917. The court explained:

[GJiven the experience of the officer at the very location in question and with the recent experience with the appellant in question, what he observed we think established a course of conduct which was substantially more likely than not to be criminal activity rather than an innocent event. Certainly the officer had no doubt that he was witnessing a drug transaction. In view of all the evidence the trial court was correct in concluding that there was probable cause to arrest and search the appellant.

Id. at 918.

Finally, State v. Caicedo, 622 So.2d 149 (Fla. 3d DCA 1993), was cited by the trial court in the order denying the motion to suppress. There, the law enforcement officer witnessed Caicedo make an exchange with another individual. He placed the item given to him in his mouth. The officer noted that both men were known to him from prior arrests involving drug activity. Caicedo’s mouth was searched and cocaine was discovered. Id. at 150. The officer testified at the hearing on the motion that it was common for drug buyers to place crack cocaine in their mouths immediately following a purchase. The court found that the totality of these circumstances justified the arrest and search of Caicedo. Id.

Glover relies on Coney v. State, 820 So.2d 1012 (Fla. 2d DCA 2002). In that case, law enforcement officers observed Coney in an area known for drug activity and arrests, where he exchanged an object with an individual for money. The officers pursued Coney, and upon approaching him saw that he had an object in his mouth. They ordered him to spit out the object, and a bag of marijuana was discovered. Coney, 820 So.2d at 1013. The court found that although the officers did have reasonable suspicion to detain, they did not have probable cause to search Coney’s mouth because “they did not see what was in Coney’s hand ... they did not see what was in Coney’s mouth ... and they did not see Coney involved in more than one transaction.” Id. at 1014.

Glover also relies on Burnette v. State, 658 So.2d 1170 (Fla. 2d DCA 1995). There, the court held that the hand-to-hand transaction along with the officer’s narcotics experience, the area being known for drug activity, the extended period of surveillance, the fact that many arrests had been made there in the past, and the exchange involving a known dealer gave rise to reasonable suspicion of illegal activity such that the officer was justified in detaining Burnette. However, the court held the totality of the circumstances described fell short of probable cause to search and arrest. Burnette, 658 So.2d at 1171.

We agree with the trial court that the particular facts of this case, in their totality, do justify the search of Glover.

AFFIRMED.

ORFINGER and TORPY, JJ., concur.


author: GROSS, J.

text:
    William MARKHAM, as Broward County Property Appraiser, Appellant, v. PPI, INC., d/b/a Pompano Park Racing, Appellee.
    No. 4D01-4722.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.
    Rehearing Denied May 19, 2003.

      J. Christopher Woolsey, Gaylord A. Wood, Jr., and B. Jordan Stuart of Law Offices of Wood & Stuart, P.A., Fort Laud-erdale, for appellant.
    Daniel S. Rosenbaum, Marvin P. Pastel, II, Joan Nesta Burnett, and Alan B. Kos-low of Becker & Poliakoff, P.A., Fort Lauderdale, for appellee.
   GROSS, J.

The narrow issue in this appeal is whether land used for the boarding and training of horses constitutes a “bona fide agricultural purpose” within the meaning of section 193.461, Florida Statutes (2001). We hold that it does and affirm.

PPI owns 180 acres of property in Pompano Beach, Florida. Seventy-five acres are devoted to the boarding and training of horses; forty acres contain a main racing track, '90% used for training and 10% for live racing; and the remaining sixty-five acres comprise the grandstand area and parking lot.

In addition to boarding and training on the property, another use of the property was to develop and mature some of the horses. PPI offered an affidavit from its general manager stating that an average two or three-year-old horse boarded on the property can gain over 300 pounds in the course of one season. Also, over 35% of the boarded horses were one to two years old when they arrived on the property, which is the most dramatic growth period and stage for horses. The average stay for a horse on the property was from eight to ten months.

In 2000, PPI applied for an agricultural classification for the year 2000, for approximately 115 acres representing the boarding/training area and the racing track. Markham denied the request, concluding that the boarding and training of horses was not an agricultural use since it did not lead to the production of an agricultural product.

PPI appealed the decision to the Bro-ward County Special Master, who recommended that PPI be granted the agricultural classification. The Broward County Value Adjustment Board denied the agricultural classification, and PPI then filed suit in the circuit court. Both parties moved for summary judgment, and the trial court ruled in favor of PPI. The trial court concluded that the boarding and training of horses is a bona fide commercial agricultural use of the land. Markham timely appealed.

To successfully move for summary judgment, the moving party must conclusively demonstrate to the trial court that no genuine issue of material fact exists between the parties, and that the moving party is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). “The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party.” Holl, 191 So.2d at 43. Since the correctness of summary judgment is a question of law, the granting of such by the trial court is reviewed de novo by this court. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Section 193.461 states in pertinent part:

(1) The property appraiser shall, on an annual basis, classify for assessment purposes all lands within the county as either agricultural or nonagrieultural.
(3)(b) Subject to the restrictions set out in this section, only lands which are used primarily for bona fide agricultural purposes shall be classified agricultural. “Bona fide agricultural purposes” means good faith commercial agricultural use of the land....
(5) For the purposes of this section, “agricultural purposes” includes, but is not limited to, horticulture; floriculture; viticulture; forestry; dairy; livestock; poultry; bee; pisciculture, when the land is used principally for the production of tropical fish; aquaculture; sod farming; and all forms of farm products and farm production.

(Emphasis added).

PPI argues that horses fit within the statutory category of “livestock.” The statute does not explicitly define the term. To decide this case we must construe the term “livestock” as it is used in section 193.461(5).

The meaning behind the legislature’s use of the term “livestock” must be determined primarily from the language of the statute. See Fla. Convalescent Ctrs. v. Somberg, 840 So.2d 998, 1000 (Fla.2003). “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Id. (citations omitted).

“Livestock” is a word with a “clear and definite” meaning: “the horses, cattle, sheep and other useful animals kept or raised on a farm or ranch.” The RaNdom House Dictionary of the English Language 839 (1967). Another definition is “[djomestic animals, such as cattle, or horses, raised for ... profit, esp. on a farm.” Amerioan Heritage College Dictionary 794 (3d.l993); Webster’s II New Riverside University Dictionary 699 (1984). The boarding, training, and development of horses on the property here at issue fits within the common meaning of livestock.

Because we find no ambiguity in the term “livestock,” it is not proper to resort to principles of statutory construction to ascertain legislative intent. See Somberg, 840 So.2d at 1000. We are aware of the rule that “[w]hile doubtful language in taxing statutes should be resolved in favor of the taxpayer, the reverse is applicable in the construction of exceptions and exemptions from taxation.” Robbins v. Yusem, 559 So.2d 1185, 1187-88 (Fla. 3d DCA 1990) (quoting United States Gypsum Co. v. Green, 110 So.2d 409, 413 (Fla.1959)), disapproved of on other grounds, Schultz v. Love PGI Partners, L.P., 731 So.2d 1270 (Fla.1999) (emphasis added); see also St. Petersburg Kennel Club, Inc. v. Smith, 662 So.2d 1270, 1271 (Fla. 2d DCA 1995) (finding that a court must strictly construe agricultural classification statute against taxpayer since it results in a more favorable tax assessment). However, the rule is inapplicable to construe language of a statute that is not doubtful.

Our interpretation of the term “livestock” is consistent with the role of the “exemption in the statutory structure.” See In re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987). The purpose of the exemption is to encourage agricultural use of land by lessening the burden of taxation. The legislature has placed a value on agricultural use. Boarding, training, and developing horses is a use of property consistent with the purpose of the statute.

Our decision is also consistent with Aitken v. Markham, 595 So.2d 159 (Fla. 4th DCA 1992). There, we held that where the primary use of land is breeding horses for profit, the landowner qualified for an agricultural classification under section 193.461. Comparing the actual use of the land in Aitken to the use in this case, we find no meaningful distinction that would support a different result here.

Recently, the third district decided a similar case. Robbins v. Racetrack Training Center, Inc., 833 So.2d 306 (Fla. 3d DCA 2003), presents the same general fact situation as this case; it involves a property owner that boarded and trained thoroughbred racing horses adjacent to Calder Race Course. The property owner obtained an agricultural classification of its property to receive favorable tax treatment. The third district affirmed the trial court’s grant of summary judgment to the property owner, holding that the boarding and training of racing horses was for a bona fide agricultural purpose within the meaning of section 193.461(3)(b).

We agree with the third district’s conclusion that the phrase “all forms of farm products and farm production” contained in section 193.461(5) “is not meant to be a limiting phrase but rather a catch-all” and that the term “livestock” should be given its plain meaning. Robbins, 833 So.2d at 309.

The property appraiser argues that the correct application of the exemption is to apply it only to farm activities that create an agricultural product. However, to reach that result, we would have to aggressively manipulate the plain meaning of the term “livestock” by the application of rules of interpretation. It is for the legislature to shape exemptions from taxation, not for a court to depart from plain meaning to write tax policy.

AFFIRMED.

STONE, J. and STERN, KENNETH D., Associate Judge, concur.

      . PPI dropped its request seeking an agricultural classification for the forty acres comprised of its main racing track.


author: MONACO, J.

text:
    Alvin DEAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1528.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.
    Rehearing Denied May 6, 2003.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Alvin Dean, was indicted for the first-degree murder of Herman “Poppy” Bellot, and for an aggravated assault on a third party. He was tried by a jury and found guilty of the lesser included offense of third-degree murder, and of aggravated assault. The jury made a specific finding that Dean possessed and discharged a firearm in causing the death of Mr. Bellot, and that he possessed a firearm during the commission of the aggravated assault. He was sentenced to prison for a term of life as an habitual felony offender for the homicide, and ten years concurrently for the aggravated assault.

While Dean raises a number of issues for our consideration, only one merits discussion. According to the testimony, Poppy Bellot and his nephew, Kenel Bellot, were wholesale drug dealers who sold crack cocaine to street-level dealers. Dean was a customer of the Bellots. Dean testified that the victim accused him of stealing some drugs, produced a handgun, and struck Dean in the face with the gun, leaving no apparent marks. A struggle ensued during which the gun went off killing Mr. Bellot. Dean stated that he then took the gun and ran out of the apartment.

Kenel Bellot testified that he heard a scuffle in his uncle’s apartment and heard a gunshot. His uncle ran from the apartment, called his nephew by name, and said, “This guy shot me.” Dean was standing in the yard with a gun in his hand and, after being confronted by Kenel Bellot, pointed a gun at him. After Kenel Bellot took cover, Dean ran off.

Dean’s entire defense was that he shot and killed the victim in self defense. According to Dean, the victim was known as a drug dealer in the community and had a reputation for violence. To support that part of its position concerning the victim’s reputation, the defense called as a witness, Robert Gross, a customer of the Bellots. He testified that he had seen weapons at the victim’s apartment, including a hand gun and shotgun. He further stated that the victim always kept a weapon close by.

In rebuttal, the State recalled Gross, who then told the jury that he never knew the victim to be a violent person. Mr. Gross characterized the victim as kind and rather meek.

The State concluded its rebuttal by calling Detective Eld, the officer assigned to investigate the shooting, who testified over objection by the defense as follows:

Q. Okay. Did you talk to a number of people during the investigation to what had happened there?
A. Yes.
Q Okay. And did you, while you were talking to people — do a lot of these people know Poppy?
A. Yes.
Q Did you ever hear anyone say anything about him being violent?
A. No, not at all.

On cross-examination, the detective admitted that he never asked specifically if the victim was violent. He asked only if those he talked to knew any reason why anyone would want to hurt him.

Dean asserts that the allowance by the trial court of Detective Eld’s testimony was error. He argues that it was improper to allow this testimony to go to the jury because the witness was not a part of the same community as the person whose reputation was at issue.

The admissibility of character evidence is governed by section 90.404, Florida Statutes (2002). Generally, evidence of the character of a victim is inadmissible. See Hayes v. State, 581 So.2d 121, 126 (Fla.), cert. denied, 502 U.S. 972, 112 S.Ct. 450, 116 L.Ed.2d 468 (1991); Ruland v. State, 614 So.2d 537 (Fla. 3d DCA 1993); Charles W. Ehrhardt, Florida Evidence § 404.6 (2002 ed.). Subsection (1)(b) of that statute, however, allows character evidence to be introduced to prove the conduct of the victim when that conduct is a material issue. The most common circumstance in which victim conduct is relevant is when self defense is relied upon by the defendant. Ehrhardt, supra, § 404.6. Thus, the victim’s violent character may be admissible to demonstrate that at the time of the crime the victim acted in conformity with his character. See Pino v. Koelber, 389 So.2d 1191 (Fla. 2d DCA 1980).

Section 90.404(l)(b)(2), authorizes the introduction by the prosecution of the reputation of the peacefulness of a victim in a homicide case to rebut evidence that the victim was the aggressor. In the present ease the defendant made the victim’s alleged violent character an issue, and the State was clearly permitted to offer rebuttal evidence reflecting his peaceful nature.

Traditionally, character is proved by evidence of the individual’s reputation in the community for the character trait involved. Ehrhardt, supra, § 405.1. As Professor Ehrhardt points out:

Character is distinct from reputation; reputation is evidence of character. When many people in the community discuss and compare an issue, it is felt that the resulting community opinion is trustworthy. Since reputation is the product of what is generally discussed in the community, the witness’s personal experiences and observations are excluded.

Ehrhardt, supra, § 405.1.

There are a number of problems apparent in Detective Eld’s testimony. First, there is no evidence that he is a member of the relevant community such that he would have the requisite knowledge of the community opinion regarding Mr. Bellot’s reputation for violence. If the State wished to prove the victim’s reputation for peacefulness, then it should have called Mr. Bellot’s neighbors or other qualified persons within the community. Stripling v. State, 349 So.2d 187, 192 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978). Second, the State failed to lay the foundation that Detective Eld was aware of the victim’s reputation in the community. See Hoffman v. State, 708 So.2d 962, 966 (Fla. 5th DCA 1998). Here, the detective based his testimony on the fact that no one told him that Mr. Bellot was violent, even though he never asked. Finally, it is generally inappropriate for one who is a detective and who gains his knowledge of a person’s reputation solely through his official position to be allowed to testify in this respect. See Parker v. State, 458 So.2d 750, 753-54 (Fla.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985); Garcia v. Konckier, 771 So.2d 550 (Fla. 3d DCA 2000); Young v. State, 598 So.2d 163 (Fla. 3d DCA 1992); Wolack v. State, 464 So.2d 587 (Fla. 4th DCA 1985), pet. for rev. denied, 476 So.2d 676 (Fla.1985); Stripling; see also State v. Johnson, 540 So.2d 842 (Fla. 4th DCA 1988).

Although the admission of the reputation testimony of the detective was erroneous, we have concluded that it had no effect on the jury verdict, and for that reason, the error is harmless. For an error to be deemed harmless, the reviewing court must review the entire record and determine that there was no reasonable possibility that the error contributed to the conviction. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The transcript of the trial and the items admitted into evidence convince us that this was the case. The record reveals that the evidence of Dean’s guilt was strong, the specific reputation testimony of Detective Eld was an insignificant part of the trial, and the defense cross examination of the detective with respect to the basis for his testimony was effective.

AFFIRMED.

SAWAYA and PLEUS, JJ., concur.


author: THOMPSON, C.J.

text:
    Shawn MELAHN, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3081.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.
    Rehearing Denied May 1, 2003.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Shawn Melahn appeals his conviction for accessory after the fact to burglary of a structure. We reverse.

Melahn was charged with accessory after the fact to burglarizing a pet shop from which his roommate stole a Panther Chameleon. Melahn testified that on the night of the burglary, his roommate woke him up and asked for a ride to the roommate’s girlfriend’s residence. Melahn agreed to taking his roommate, but according to Me-lahn’s testimony, he slept in the passenger seat while his roommate drove. He testified that he did not wake up until his roommate began driving erratically, which would have been after the burglary. When the roommate began driving erratically, Melahn shut off the ignition to the car. Immediately thereafter, the roommate exited the car and ran. Melahn and the roommate were apprehended at separate locations. When police questioned Melahn about the chameleon, he said that he did not know what the officer was talking about, and that he did not know who had been in the car with him. There was direct evidence which, if believed, put Me-lahn in the driver’s seat of the car after the burglary, and there was .circumstantial evidence negating that testimony.

The trial court denied Melahn’s motion for a judgment of acquittal, which was based in part on the argument that Me-lahn did not commit a crime merely by denying knowledge of the incident and refusing to answer questions. Later, the state argued to the jury that Melahn should be found guilty of being an accessory if the jury believed he was the driver of the car, or if the jury believed that Melahn aided the roommate in avoiding detection, arrest, trial or punishment by refusing to tell the police who was with him or what occurred at the store.

The crime of accessory after the fact requires some overt action by the defendant. See Bowen v. State, 791 So.2d 44, 52 (Fla. 2d DCA 2001) (citing Roberts v. State, 318 So.2d 166 (Fla. 2d DCA 1975)). Certain falsehoods told to an officer seeking information, which go beyond merely disavowing knowledge or refusing to cooperate with an investigation, may support a conviction for accessory after the fact. Id. at 53 (citing State v. Taylor, 283 So.2d 882 (Fla. 4th DCA 1973)). In the instant case, Melahn’s conduct upon being questioned by police cannot support a conviction for accessory after the fact because he merely refused to cooperate, and he told no alleged falsehoods beyond disavowing knowledge.

The state argues that the conviction can be sustained on the theory that Melahn assisted the roommate by driving the car. While it may bé true that the evidence was sufficient under this theory, the conviction cannot stand. Here, the jury returned a general verdict, so it cannot be determined upon which theory the jury relied. Because one of the theories is legally unsupportable, and it cannot be determined upon which theory the jury relied, the verdict must be set aside. See Valentine v. State, 688 So.2d 313, 317 (Fla.1996); Compare Steverson v. State, 787 So.2d 165, 167 (Fla. 2d DCA 2001).

REVERSED.

SAWAYA, J., concurs.

ORFINGER, J., concurs in result only, without opinion.


author: PER CURIAM.

text:
    Taronn Kenard BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3069.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Certification Denied May 7, 2003.

      Bennett H. Brummer, Public Defender, and Roy A Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before COPE, LEVY and SHEVIN, JJ.
   PER CURIAM.

Teronn Kenard Brown appeals his conviction and sentence for second degree murder. We affirm.

Defendant-appellant Brown argues that the evidence was legally insufficient to convict him. We conclude that the motion for judgment of acquittal was properly denied, and affirm the conviction on authority of Orme v. State, 677 So.2d 258 (Fla.1996), and Owen v. State, 432 So.2d 579 (Fla. 2d DCA 1983).

The defendant argues that there is a sentencing error. The trial court sentenced the defendant to life imprisonment as a habitual felony offender, with a mandatory minimum term of life imprisonment under the ten-twenty-life law.

The defendant argues that a mandatory minimum term of life is not an authorized sentence under the ten-twenty-life statute. The statute provides, in part, that any person who is convicted of an enumerated felony (which includes murder) “and during the course of the commission of the felony such person discharged a ‘firearm’ ... and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” § 775.087(2)(a)3., Fla. Stat. (1999) (emphasis added).

The defendant argues that under the quoted language, the court may impose a life sentence, but not a mandatory minimum sentence of life. We disagree.

When the ten-twenty-life statute is read as a whole, the statute expressly characterizes these sentences as mandatory minimum terms of imprisonment. Id. § 775.087(2)(c). Further, one of the whereas clauses that was part of the ten-twenty-life Act stated, “it is the intent of the Legislature that criminals who use guns to commit violent crimes be vigorous prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act....” Ch. 99-12, at 537, Laws of Fla. (emphasis added). It follows that it was permissible for the trial court to impose a sentence of life imprisonment with a mandatory minimum sentence of life.

Affirmed.

      . The crime date was March 30, 2000.

      . Since there is no parole from a life sentence, see Lewis v. State, 625 So.2d 102, 103 (Fla. 1st DCA 1993), it makes no practical difference at the present time whether the life sentence is accompanied by a mandatory minimum sentence of life.
      If in the future, however, the legislature should decide to change the law to allow parole or some form of , conditional release on a life sentence, then the mandatory minimum term of life imprisonment would presumably operate to preclude any such release.


author: POLEN, C.J.

text:
    Robert DOWNEY, Appellant, v. Margherita DOWNEY, Appellee.
    No. 4D01-4565.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Rehearing Denied May 19, 2003.
    Ronald K. Lantz, West Palm Beach, for appellant.
    Margherita Downey, Boynton Beach, pro se.
   POLEN, C.J.

This appeal arises from the post final judgment entry of a Qualified Domestic Relations Order. We now reverse that order and remand for proceedings consistent with this opinion.

A final judgment of dissolution was entered between the parties on December 11, 2000. That final judgment was appealed by the wife and affirmed by this court on August 29, 2001. Downey v. Downey, 793 So.2d 961 (Fla. 4th DCA 2001).

The subject of this appeal is the Qualified Domestic Relations order (“QDRO”) that was entered subsequent to the original appeal. The QDRO divided the husband’s pension fifty-fifty as a marital asset. We conclude that this was an error, and reverse the entry of that order.

The parties were married for approximately sixteen years. The husband had earned a pension reflecting over 39 years of service. On or about October 24, 2001, the lower court entered a QDRO awarding the wife 50% of the husband’s total pension. In Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the Florida Supreme Court held that “in order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion. Where a trial judge fails to apply the correct legal rule, as when he refuses to terminate periodic alimony upon remarriage of the receiving spouse, the action is erroneous as a matter of law.” In the case at bar the trial court failed to apply the correct legal rule, that is, the proper division of a pension a part of which is non-marital, and the result is erroneous as a matter of law.

The Florida Supreme Court has specifically held that “a retirement pension must be viewed as a marital asset in order to achieve an equitable distribution of property.” Bogard v. Bogard 490 So.2d 43 (Fla.1986). However, only the marital portion of the pension may be equitably distributed. Blythe v. Blythe, 592 So.2d 353 (Fla. 4th DCA 1992)(“It was error for the court not to have allocated to the husband that portion of the pension fund that accrued to him before the couple’s marriage”) (citing Gerbas v. Gerbas, 564 So.2d 648 (Fla. 4th DCA 1990)); Blase v. Blase, 704 So.2d 741 (Fla. 4th DCA 1998) (holding that husband was entitled to his premarital share of his 401k plan.).

We find unpersuasive the wife’s argument that the husband should be precluded from raising this argument as it is inconsistent with arguments raised in earlier proceedings in front of this court. Although the husband has previously supported the court’s distribution of property, the QDRO was not entered until after the previous appeals were decided. Thus, the earliest time the husband could have noticed the inequitable distribution of his pension and challenged the QDRO was after the QDRO was entered, which is what took place. As a result, we now hold that the trial court erred as a matter of law in awarding to the wife any portion of the husband’s pension earned prior to the marriage.

GUNTHER and HAZOURI, JJ„ concur.