author: NORTHCUTT, Judge.

text:
    B.S., a child, and D.L.S., Appellants, v. STATE of Florida, Appellee.
    No. 2D01-1842.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 2003.

      Bruce G. Howie of Piper, Ludin, Howie & Werner, P.A., St. Petersburg, for Appellants.
    Charles J. Crist, Jr., Attorney General, Tallahassee, C. Suzanne Bechard and Helene S. Parnés, Assistant Attorneys General, Tampa, for Appellee.

      . Judge Danahy has been substituted for Judge Parker, who was on the original panel in this case.

   NORTHCUTT, Judge.

Under section 985.215(6), Florida Statutes (2000), the circuit court must require the parents or guardian of a child who is detained during delinquency proceedings to pay fees to the State for the cost of the child’s subsistence. B.S., a minor, and his mother, D.L.S., challenge the constitutionality of this statute. They maintain that it violates equal protection when it results in exonerated juveniles being treated differently than exonerated adults. They also contend the statute violates substantive due process insofar as it requires payment of subsistence costs for a child’s detention at home. We agree with both assertions.

Subject to some exceptions not germane here, the disputed portion of the statute provides in pertinent part:

When any child is placed into secure, nonsecure, or home detention care or into other placement pursuant to a court order following a detention hearing, the court shall order the natural or adoptive parents of such child, including the natural father of such child born out of wedlock who has acknowledged his paternity in writing before the court, or the guardian of such child’s estate ... to pay to the Department of Juvenile Justice fees in an amount of $20 per day related to the cost of the care, support, and maintenance of the child, as established by the Department of Juvenile Justice, unless the court makes a finding on the record that the parent or guardian of the child is indigent.

§ 985.215(6), Fla. Stat. (2000).

As used in the juvenile delinquency chapter, “home detention” is defined as “temporary custody of the child while the child is released to the custody of the parent, guardian or custodian in a physically nonrestrietive environment under the supervision of the Department of Juvenile Justice staff pending adjudication, disposition, or placement.” § 985.03(18)(c), Fla. Stat. (2000).

In this case, B.S. was taken into police custody on November 5, 2000 and remained there until the next morning, when the circuit court ordered home detention and released him to his parents’ custody. On November 30, 2000, the court ordered the parents to pay $20 per day for the cost of B.S.’s care through that date. Subsequently the State filed a “no petition” in the case. D.L.S. then filed a pro se motion to rescind the costs order. She argued that she should not be required to pay because the State had decided not to prosecute the case and because B.S.’s detention was in her home. Noting the mandatory language of section 985.215(6), the court denied the motion.

At the outset, the State contends that B.S. and D.L.S. did not raise the validity of the statute in the circuit court and therefore failed to preserve the constitutional issues for appeal. We disagree. We have reviewed D.L.S.’s pro se motion and her argument in the circuit court and conclude that they adequately asserted the constitutional challenges. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (noting that the allegations of a pro se litigant are held to less stringent standards than the formal pleadings drafted by lawyers).

I. EQUAL PROTECTION

The heart of an equal protection argument is that the State has adopted a classification that affects two or more similarly situated groups in an unequal fashion. B.S. and D.L.S. claim that the State treats accused juvenile offenders differently from accused adult offenders with respect to the payment of subsistence costs. Under section 951.033(2), Florida Statutes (2000), adult prisoners must pay for their subsistence costs. But section 939.06, Florida Statutes (2000), provides that, if an adult criminal defendant is acquitted or discharged, he is not liable for court costs, fees of a ministerial government office, or subsistence costs. See also Williams v. Ergle, 698 So.2d 1294, 1297 (Fla. 5th DCA 1997). For these purposes, the State’s entry of nolle prosequi amounts to a discharge. Clark v. State, 570 So.2d 408, 410 (Fla. 2d DCA 1990). In contrast, section 985.215(6) mandates payment of a daily fee to the Department of Juvenile Justice for the “cost, care, support, and maintenance” of an accused child who has been placed in detention, but it does not relieve a parent or guardian from paying the fee if the child is acquitted of the charged delinquent act or the State decides not to proceed against him.

When considering whether a statute runs afoul of equal protection, we must first determine what level of scrutiny to apply: “(1) ‘ordinary’ scrutiny; (2) ‘mid-level’ scrutiny; or (3) ‘strict’ scrutiny.” N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 28 Fla. L. Weekly S549, 552, — So.2d -, -, 2003 WL 21546546 (Fla. July 10, 2003) (citations omitted). Ordinary scrutiny applies to most legislation; mid-level scrutiny applies to certain types of speech and some suspect classifications; strict scrutiny applies when the legislation affects a fundamental right or a suspect class. Id. at S563 n. 14-16, -. We conclude that ordinary scrutiny is appropriate in this case because ho fundamental right is asserted and youth is not a suspect classification. D.P. v. State, 705 So.2d 593, 597 (Fla. 3d DCA 1997).

Under ordinary scrutiny, a legislative act is presumed constitutional. State v. Bussey, 463 So.2d 1141, 1144 (Fla.1985). To withstand such scrutiny, the law must “bear some rational relationship to legitimate state purposes.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Statutory classifications that treat one group differently than others must appear to be based on a rational distinction having a reasonable relation to a legitimate state objective. Fla. High Sch. Activities Ass’n v. Thomas ex rel. Thomas, 434 So.2d 306, 308 (Fla.1983).

In some circumstances the State may treat juvenile offenders differently than adult offenders. These differences are justified because the objectives of the juvenile justice system differ from those of the criminal justice system. In the case of adult offenders, the State’s primary objective is to punish them for their crimes. But for juvenile offenders, its goal is to

ensure the protection of society, by providing for a comprehensive standardized assessment of the child’s needs so that the most appropriate control, discipline, punishment, and treatment can be administered consistent with the seriousness of the act committed, the community’s long-term need for public safety, the prior record of the child, and the specific rehabilitation needs of the child....

§ 985.01(c); see also P.W.G. v. State, 682 So.2d 1203, 1207-08 (Fla. 1st DCA 1996), approved, 702 So.2d 488 (Fla.1997); In re J.P., 405 So.2d 497, 498 (Fla. 4th DCA 1981). Thus, for example, a statute imposing a five-day detention period on a juvenile who commits an offense using a firearm does not violate equal protection, even when no like penalty is imposed on an adult offender because the statute is rationally related to the legislature’s purpose of preventing the juvenile’s escalation into the adult criminal justice system. T.M. v. State, 689 So.2d 443, 445 (Fla. 3d DCA 1997).

Although we recognize that the criminal and juvenile justice systems have different correctional objectives, the issue here is not the disparate treatment of offenders. Rather, the issue is whether the State has a legitimate objective that justifies discriminating between adults and children when they have not been prosecuted for an offense or have been found not to have committed one.

We previously have held that the legislative purpose behind section 939.06 is to protect a criminal defendant from paying costs when he is innocent or when the State fails to vigorously prosecute him. State v. Crawford, 378 So.2d 822, 823 (Fla. 2d DCA 1979); see also Fuller v. Oregon, 417 U.S. 40, 49-50, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974) (noting the policy behind a similar Oregon enactment that freed an- exonerated defendant from liability for costs: the statute attempts to achieve fairness for a defendant whose trial ends without conviction because that person “has been seriously imposed upon by society without any conclusive demonstration that he is criminally culpable”). We can conceive of no reason why this policy or purpose is not equally applicable to a juvenile. See Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966) (holding that a New Jersey statute imposing a duty to reimburse county for cost of transcript in case of an unsuccessful appeal only on indigent defendants who were imprisoned and not imposing the cost on defendants who received a suspended sentence, were placed on probation, or who were sentenced only to pay a fine, violated equal protection). To the extent that section 985.215(6) requires the payment of fees for the “cost of the care, support, and maintenance” of a child who has been acquitted of the charged offense or whom the State has determined not to prosecute, it violates equal protection and is unconstitutional.

II. SUBSTANTIVE DUE PROCESS

“To comply with the constitutional guarantee of due process, a state statute must bear a reasonable relationship to a permissible legislative objective. Further, the statute must not be discriminatory, arbitrary, or oppressive.” Lite v. State, 617 So.2d 1058, 1059-60 (Fla.1993) (internal citations omitted); see also Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371, 1372 (Fla.1998); Joseph v. Henderson, 834 So.2d 373, 375 (Fla. 2d DCA 2003). As in an equal protection, inquiry, we must first determine the level of scrutiny to apply in this substantive due process challenge. We have some concern that D.L.S.’s fundamental right to parent is affected by this statute. But we need not analyze the statute under strict scrutiny because we conclude that, as applied to home detention, section 985.215(6) bears no rational relationship to a permissible legislative objective, and it is arbitrary and oppressive.

The State contends the costs imposed under the statute are appropriate because an accused juvenile offender is under supervision regardless of whether he is housed at a detention center or at home. We reject this argument because section 985.215(6) does not address costs of supervision; the fees imposed pursuant to the statute are for subsistence, i.e., for “the costs of care, support and maintenance of the child.”

Even so, we do discern a permissible purpose underlying section 985.215(6): - to alleviate the financial burden borne by the State when a child is detained and to place that burden on the parents or guardian of the child rather than the citizens of Florida. Cf. § 951.033(1) (stating legislative intent behind imposing costs on adult offenders “is an urgent need to alleviate the increasing financial burden on the state and its local subdivisions caused by the expenses of incarcerating convicted offenders”); Ilkanic, 705 So.2d at 1372 (noting the same intent behind a predecessor statute to section 953.033(1)); Joseph, 834 So.2d at 376 (stating that purpose of inmate per diem fee was to reimburse the government for the costs expended in incarceration).

Consistent with that purpose, we have no quarrel with requiring a parent to pay the State for her child’s subsistence if the child is detained at State expense. But when the child is detained at home, the State incurs no expense for the child’s subsistence. In such circumstances, requiring payment of subsistence costs to the State bears no rational relationship to the legislative purpose of easing the State’s financial burden associated with caring for detained children because the State has suffered no burden. See Joseph, 834 So.2d at 376 (finding a substantive due process violation where the sheriff charged a $20 fee for prisoners returned to custody from the Department of Corrections on a writ a prosequendum, but did not charge the fee to inmates returned on writs ad testificandum; holding that the distinction drawn between the two writs did not bear a fair and substantial relation to the object of the statute).

Moreover, the statute is arbitrary and oppressive. It requires a parent who cares for her child in her own home to pay the State the same sum for “costs of care, support and maintenance” as a parent whose child is being cared for at government expense. Whereas the latter parent is paying the mandated fee to, in effect, reimburse the State for assuming her support responsibilities during her child’s detention, the former parent must pay the fee and support her child. As a result, the parent of a child placed in home detention must expend more, perhaps as much as twice more, for the child’s subsistence than the parent of a child detained in state custody. Accordingly, we hold that section 985.216(6) is unconstitutional to the extent that it requires the parents or guardian of a child who is found innocent or who is not prosecuted to pay for the “cost of care, support and maintenance” of the child. The statute is also unconstitutional insofar as it requires payment of those costs for a child who is detained at home. We reverse and remand with directions to vacate the order requiring D.L.S. to pay these costs.

FULMER, J., and DANAHY, PAUL W., Senior Judge, Concur.

      . The legislature amended some provisions of section 985.215(6), Florida Statutes (2000), after the appeal was filed. Ch.2001-125, § 20, Laws of Fla. Although the act was not filed with the Secretary of State until May 31, 2001, by its terms it became effective upon becoming a law and operated retroactively to July 1, 2000. Id. In any event, the portions of the statute analyzed in this opinion are the same in both the 2000 and the 2001 enactment.

      . B.S. and D.L.S. have standing to appeal this order. § 985.234(1), Fla. Stat. (2000). We also note that after this appeal was filed, the Department of Juvenile Justice changed the balance owed for B.S.'s care to zero. But the issues raised here are not moot because the order requiring the parents to pay the costs of care remains in effect and is enforceable.

      . Of course, as earlier discussed, the State may not impose these costs at all if the juvenile has been acquitted or the State has dropped the prosecution.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Lorraine M. Kanavas SHUCK, Appellant, v. BANK OF AMERICA, N.A., as Personal Representative of the Estate of David L. Shuck, deceased, and as Successor Trustee of the David L. Shuck Revocable Living Trust, u/a/d November 3, 1993, Appellee.
    No. 2D02-5410.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2003.

      Wm. Fletcher Belcher of Law Offices of Wm. Fletcher Belcher, St. Petersburg; James A. Byrne, St. Petersburg; and W. Russell Snyder of Snyder & Merritt, Venice, for Appellant.
    W. Nelon Kirkland of Harrison, Hen-drickson & Kirkland, P.A., Bradenton, for Appellee.
   WALLACE, Judge.

Lorraine M. Kanavas Shuck (“the widow”) appeals the trial court’s order dis: missing with prejudice her claim against Bank of America, N.A. (“the Bank”), in its capacity as successor trustee of her husband’s revocable trust. The widow’s claim against the Bank in its capacity as successor trustee was premature because her right to maintain the claim was contingent on events that may or may not occur in the future. Therefore, we affirm the dismissal but reverse the entry with prejudice.

The pertinent facts, as alleged in the widow’s first amended complaint, are easily summarized. The widow is the surviving spouse of David L. Shuck (“the decedent”). The Bank is both the personal representative of the decedent’s estate and the successor trustee of the decedent’s revocable trust. On April 23, 2001, the widow and the decedent executed a prenuptial agreement which provided, in pertinent part, as follows:

The parties agree that the husband shall execute by will or trust provision or by primary beneficiary designation or by addition of the wife as joint holder for the purpose of providing that FIFTY PER CENT (50%) of assets and property, whether real and/or personal wherever located, at husband’s death, to the wife, if she is living. The husband shall provide evidence of such execution as requested by the wife.

The parties were married later that day after executing the prenuptial agreement. The decedent died approximately three weeks later. As of the date of his death, the decedent had failed to take the action necessary to make the widow the beneficiary of fifty percent of his assets and property.

An estate was opened for the decedent in Manatee County, Florida, and the Bank was appointed as personal representative of the estate. The widow timely filed a statement of claim in the estate. The Bank objected to the claim, and the widow filed an independent action to enforce the claim. The first count of the widow’s first amended complaint was an action for damages for breach of the prenuptial agreement brought against the Bank in its capacity as personal representative of the estate. The second count sought specific performance of the prenuptial agreement against the Bank in its capacities both as personal representative and as successor trustee of the decedent’s revocable trust.

The Bank filed an answer to the first count of the widow’s first amended complaint raising various affirmative defenses. The Bank also moved to dismiss the second count with prejudice on the ground that the widow did not have an enforceable claim as one of the decedent’s creditors. The trial court granted the motion in part by dismissing the second count with prejudice as to the Bank in its capacity as successor trustee of the decedent’s revocable trust. The trial court’s order allowed the widow to proceed with her claims in both the first and second counts against the Bank in its capacity as personal representative. Thus we are here concerned only with the issue of the Bank’s potential liability as successor trustee of the decedent’s revocable trust.

At the time of the decedent’s death in May 2001, the pertinent statute, section 733.707(3), Florida Statutes (2000), read:

Any portion of a trust with respect to which a decedent who is the grantor has at the decedent’s death a right of revocation, as defined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration of the decedent’s estate and enforceable claims of the decedent’s creditors to the extent the decedent’s estate is insufficient to pay them as provided in s. 733.607(2).

As the widow has conceded, the trial court’s order correctly dismissed her claim against the Bank in its capacity as successor trustee. However, the widow argues that the trial court erred in dismissing with prejudice her claim against the Bank in its capacity as successor trustee “without in some manner qualifying or limiting that prejudice so as to permit [the widow] to seek relief under § 733.707(3), Fla. Stat. (2000), for such ‘enforceable claims’ as she may now have or hereafter acquire.” A dismissal with prejudice, the widow argues, overlooks the fact that if a judgment is ultimately entered in favor of the widow on her claim against the Bank in its capacity as personal representative, the widow’s claim will then ripen into an “enforceable claim” for which the decedent’s revocable trust may be liable under the statute. In that eventuality, the widow is understandably concerned that she would be confronted with the argument that the trust is not liable for the ripened “enforceable claim” because of the doctrine of res judicata or other preclusive effect of the earlier dismissal with prejudice.

The Bank argued in the trial court and argues on this appeal that the widow is not a creditor of the decedent because the widow’s claim did not exist at the time of the decedent’s death and thus did not vest against the decedent during his lifetime. In support of its position, the Bank cites Sharps v. Sharps, 219 So.2d 735 (Fla. 3d DCA 1969). However, Sharps is clearly distinguishable. The prenuptial agreement under consideration in Sharps obligated the husband to leave his wife the sum of $150,000 if she survived him as his widow. The trial court in Sharps ruled that the surviving spouse was not a creditor of her husband’s estate. The appellate court affirmed the trial court’s finding on the basis that the husband had in fact left his surviving spouse $250,000, which greatly exceeded his contractual obligation. Id. at 737. In Sharps, the surviving spouse was not a creditor of her deceased husband’s estate because he had fully performed his obligations under the prenuptial agreement. In this case, unlike Sharps, the widow alleges that the decedent died without performing the obligations he had assumed under the prenuptial agreement.

We disagree with the Bank’s argument that the widow, on the facts alleged in the first amended complaint, could never have an “enforceable claim” as a creditor of the decedent’s estate. In Gridley v. Galego, 698 So.2d 273, 275 (Fla. 2d DCA 1997), we said:

In Florida, an antenuptial agreement is •a valid contract and is enforceable against the estate. If a decedent breaches a contract to make a will, the right being enforced is a contract right. See Lindeburg v. Lindeburg, 162 So.2d 1, 3 (Fla. 3d DCA), cert. denied, 166 So.2d 754 (Fla.1964) (A husband can be required to answer personally through his estate for his breach of contract of a property settlement agreement).

See also Spohr v. Berryman, 589 So.2d 225 (Fla.1991). ’

Thus the widow’s claim, if established, would be enforceable against the estate of the decedent. Under those circumstances, if and when they occur, both parties appear to assume that the widow may then have an “enforceable claim” that she could enforce directly against the revocable trust to the extent that the decedent’s estate may be insufficient to pay claims and expenses of administration .pursuant to section 733.707(3). The accuracy of this assumption is not material to the disposition of this appeal and our instructions on remand. Therefore, we will make the same assumption for the purposes of this opinion.

All elements of a cause of action must exist and be complete before an action may properly be commenced. See, e.g., Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 610 (Fla. 4th DCA 1975); Hasam Realty Corp. v. Dade County, 178 So.2d 747, 748 (Fla. 3d DCA 1965). The trial court’s order dismissed the widow’s amended complaint with prejudice because it was prematurely filed. The dismissal with prejudice of a prematurely filed claim does not bar a subsequent action once the claim has ripened. In the case of Smith v. St. Vil, 714 So.2d 603 (Fla. 4th DCA 1998), the Fourth District said:

[I]t is not the inclusion of the words “with prejudice” which determines whether a dismissal is res judicata, but rather whether the order actually was an adjudication on the merits.

Id. at 605 (citing N. Shore Realty Corp. v. Gallaher, 99 So.2d 255 (Fla. 3d DCA 1957)). The dismissal on the pleadings of a prematurely filed claim does not constitute an adjudication on the merits. Therefore, the doctrine of res judicata does not bar a second action on the claim. See Malunney v. Pearlstein, 539 So.2d 493, 495 (Fla. 2d DCA 1989).

The appropriate disposition of prematurely filed actions varies depending upon the circumstances that give rise to the premature element of the claim. For example, an action filed before the expiration of a statutory waiting period is deemed premature. The premature element of an action filed before the expiration of an applicable statutory waiting period is cured once the waiting period has expired. In cases where the premature element of an action is curable simply by the passage of time, Florida courts have generally disapproved dismissal of the action. Instead, the favored disposition is abatement of the action until the cause matures. See Thomas v. Suwannee County, 734 So.2d 492, 497 (Fla. 1st DCA 1999) (holding that an action challenging a zoning special exception filed prior to the required expiration of thirty days from filing a complaint with the county should have been abated instead of dismissed with prejudice); Interlatin Supply, Inc. v. S & M Farm Supply, Inc., 654 So.2d 254, 255 (Fla. 3d DCA 1995) (finding that an action for defective seed filed prior to filing the required complaint with the Florida Department of Agriculture should have been abated instead of dismissed without prejudice); Angrand v. Fox, 552 So.2d 1113, 1115 (Fla. 3d DCA 1989) (holding that medical malpractice action filed prior to the expiration of the statutory ninety-day screening and investigation period should have been abated instead of dismissed with prejudice).

However, in other premature actions, the mere passage of time is not sufficient to cure the premature element of the action. An action may be premature because one of its essential elements is contingent upon the occurrence of an event that may or may not occur. See Jost v. Lakeland Reg’l Med. Ctr., Inc., 844 So.2d 656 (Fla. 2d DCA 2003) (noting that a claim for spoliation of evidence would not ripen until the underlying medical malpractice case had been resolved); Brocato v. Health Options, Inc., 811 So.2d 827 (Fla. 2d DCA 2002) (holding that claims for fraud and misrepresentation against one defendant would not ripen until the contractually based claims against other defendants failed). In such cases, where the mere passage of time will not cure the premature element of the claim, abatement is not an appropriate disposition, and a dismissal is required.

When abatement of a prematurely filed action is not appropriate, we think the better course is for the trial court to dismiss the action without prejudice instead of with prejudice. This practice is in accord with the recent decisions of this court and other district courts of appeal. See Jost, 844 So.2d at 658; Brocato, 811 So.2d at 829; Baker v. Tenet Healthsystem Hosps., Inc., 780 So.2d 170, 171-72 (Fla. 2d DCA 2001); Wright v. Life Ins. Co. of Ga., 762 So.2d 992, 993 (Fla. 4th DCA 2000); Liberty Mut. Ins. Co. v. Farm, Inc., 754 So.2d 865, 866 (Fla. 3d DCA 2000); Dimick-Russell v. Frankel, 734 So.2d 486 (Fla. 5th DCA 1999). The dismissal without prejudice of a prematurely filed action eliminates confusion about the effect of the trial court’s order and helps avoid unnecessary appeals. See Smith v. St. Vil, 714 So.2d 603, 605 (Fla. 4th DCA 1998).

In this case, the widow’s claim against the decedent’s revocable trust is contingent upon her establishing an enforceable claim against the decedent’s estate. The outcome of the widow’s action against the estate is uncertain. The mere passage of time will not cure the premature element of the widow’s claim against the trust. Therefore, abatement is not an appropriate disposition of the premature action, and a dismissal without prejudice is required. A dismissal without prejudice will make clear that the widow’s ability to seek relief against the decedent’s revocable trust under section 733.707 for such enforceable claims against the decedent’s estate as she may now have or hereafter acquire will not be precluded by the effect of a prior dismissal. Therefore, we affirm the trial court’s order dismissing count two of the widow’s amended complaint against the Bank in its capacity as successor trustee of the decedent’s revocable trust, but we remand for the entry of an order providing that such dismissal is without prejudice.

Affirmed in part, reversed in part, and remanded with directions.

CASANUEVA and CANADY, JJ„ concur.

      . Although the issue is not now ripe for adjudication, there is reason to doubt that section 733.707(3), Florida Statutes (2000), authorized a decedent’s creditor to maintain a direct action against the trustee of a revocable trust for an "enforceable claim” that depended on the liability of the grantor apart from remedies available to the creditor against the personal representative of the estate. Although dicta in Estate of Read v. A.D.K. Properties, 766 So.2d 393, 395 (Fla. 2d DCA 2000), and Tobin v. Damian, 723 So.2d 396, 397 (Fla. 4th DCA 1999), may suggest that such a direct action was available, each case’s construction of the term "enforceable claims” in reference to a revocable trust’s liability pursuant to section 733.707(3) must be read in conjunction with section 733.607(2). Section 733.607(2) entitled the personal representative to payment from a trust described in section 733.707(3) if the estate assets were insufficient to pay the expenses of administration and enforceable claims of the decedent’s creditors. The trust's liability under section 733.707(3) to pay the expenses of administration and enforceable claims of the decedent's creditors in the event of an insufficiency of estate assets was established by express reference to section 733.607(2). These two interrelated sections, together with other procedures available to a decedent’s creditor to establish and enforce a claim against a decedent’s estate, do not provide for a direct action by a decedent’s creditor against a revocable trust after the claim has matured into an "enforceable claim.'’-’ Nevertheless, in the absence of an express bar to such direct actions that would be applicable to the widow’s potential claim, we are not now prepared to conclude that the widow's hypothetical future action against the Bank in its capacity as successor trustee could never proceed, regardless of the circumstances as they may appear then.
      We also note that in 2001, the Florida Legislature enacted an express bar to creditors' direct actions against a revocable trust based on the liability of the decedent. This legislation could apply retroactively to the widow in a future direct action against the Bank in its capacity as successor trustee depending upon when her rights are deemed to have vested and whether her rights are deemed to be substantive or procedural. Specifically, the legislature enacted section 737.3061(1), Florida Statutes (2002), effective January 1, 2002, which prohibits a creditor from filing or continuing, after the death of the grantor, a direct action against a revocable trust, the trustee, or a beneficiary of the trust based upon a claim "that is dependent on the individual liability of the grantor.” The statute directs that such claims instead be presented and enforced against the grantor's estate. Ch.2001-226, § 189, at 2088, § 195, at 2090, Laws of Fla. Section 731.155, Florida Statutes (2002), provides that the "substantive rights of all persons that have vested prior to January 1, 2002, shall be determined as provided” in former provisions of the Florida Probate Code. Section 731.155 provides further, with exceptions not here pertinent, that the “procedures for the enforcement of substantive rights which have vested prior to January 1, 2002, shall be as provided in this act.”
      The trial court did not address whether the widow could ever have a right to proceed directly against the Bank in its capacity as trustee under the law as it existed before enactment of section 737.3061, or what effect, if any, section 737.3061 would have on that right, if it exists. In addition, the parties have not argued these questions before this court. These issues are not presently before us, and their resolution is not necessary to our disposition of this appeal. Accordingly, we expressly do not reach these issues.

      . The dismissal of a prematurely filed action after trial is on the merits and should be made with prejudice. Under these circumstances, the doctrine of res judicata will bar a subsequent action. See Hardcastle v. Mohr, 483 So.2d 874, 875 (Fla. 2d DCA 1986).

      . The widow would almost certainly not have taken this appeal if the trial court had made its dismissal of the widow's premature action without prejudice instead of with prejudice.


author: SILBERMAN, Judge.

text:
    Luis A. TORRES, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Southern Wine & Spirits of America, Inc., Appellees.
    No. 2D02-5574.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2003.
    Luis A. Torres, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee Unemployment Appeals Commission.
    Charles F. Henley, Jr. and J.C. Miller of Haynsworth, Baldwin, Johnson & Greaves, LLC, Jacksonville, for Appellee Southern Wine & Spirits of America, Inc.
   SILBERMAN, Judge.

Luis A. Torres was denied unemployment compensation benefits based on the referee’s finding that he was terminated as a result of misconduct connected with work. The Unemployment Appeals Commission (UAC) upheld the referee’s decision. Torres challenges the UAC’s order and argues that his actions did not amount to misconduct that would support the denial of benefits. We agree and reverse.

The referee’s findings of fact are not in dispute. Southern Wine & Spirits employed Torres ás a delivery driver. On January 8, 2002, Torres was making deliveries when he was given another stop that was not on his route. When Torres arrived at that stop, the customer was not present and Torres would have had to wait two-and-one-half to three hours to make the delivery. Torres became angry because this was not his regular customer, and he notified the assistant driver manager that he was not going to wait. The assistant driver manager told Torres that if he chose not to wait he should turn in his badge and other items belonging to the employer. Torres then waited for the customer and delivered the products. However, when Torres returned to the employer’s facility, the employer terminated him.

In his conclusions of law, the referee determined that the employer terminated Torres for misconduct within the meaning of the unemployment statute. The referee reasoned that Torres had previously “received warnings for not following procedure and not obtaining authorization before returning products.” He added that Torres demonstrated a deliberate disregard of the employer’s policies and, by initially refusing to wait, he showed that he would continue to disregard the employer’s directions.

An employee terminated for misconduct connected with his or her work is not entitled to unemployment compensation benefits. § 443.101(l)(a), Fla. Stat. (2000). Section 443.036(29), Florida Statutes (2000), defines “misconduct” as including, but not limited to:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an-intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer..

An employee’s outright refusal to perform an employer’s valid and reasonable work order amounts to misconduct within the meaning of section 443.036(29). See, e.g., Fort Myers Pump & Supply, Inc. v. Fla. Dep’t of Labor & Employment Sec., Div. of Employment Sec., 373 So.2d 429, 431 (Fla. 2d DCA 1979) (concluding that the employee was not entitled to benefits because her conduct was willful and in direct contravention of the employer’s instructions, the instructions were not shown to be unreasonable, and the employee’s insubordination was repeated); Sabolia v. Unemployment Appeals Comm’n, 747 So.2d 452, 452 (Fla. 4th DCA 1999) (stating that the willful and intentional refusal to follow the superior’s valid and reasonable work order was sufficient to warrant disqualification for benefits).

On the other hand, a denial of benefits is not warranted if the employee’s actions “were not in willful or wanton disregard” of the employer’s interest or the “actions were not careless or negligent of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard” of the employer’s interest or the employee’s duties and obligations to the employer. Smith v. Unemployment Appeals Comm’n, 831 So.2d 249, 250 (Fla. 2d DCA 2002). Moreover, if the employee complies with the employer’s work order or if the acts of insubordination were provoked by the employer, benefits should not be denied. See Scott v. Cent. Fla. Tower Corp., 646 So.2d 842, 843 (Fla. 2d DCA 1994).

Here, the referee specifically found that Torres made the delivery as directed by his superior. While Torres may have been angry, the referee did not find that Torres was insubordinate. Additionally, the factual findings of the referee do not support a conclusion that Torres acted in a manner demonstrating willful or intentional and substantial disregard of the employer’s interest or of his own duties and obligations to the employer. Instead, Torres was given the choice to make the delivery or be fired, and he made the delivery.

Because the facts relied on by the referee and the UAC do not support the conclusion that Torres engaged in misconduct that warranted the denial of unemployment compensation benefits, we reverse and remand with instructions that Torres be provided with unemployment benefits to the extent that he otherwise qualifies for them.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.


author: FULMER, Judge.

text:
    Richard BARTHEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1728.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2003.
   FULMER, Judge.

Richard Barthel appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion the trial court’s order as to Barthel’s first three claims, but we reverse and remand as to his last claim.

Barthel entered a negotiated plea of guilty to ten heroin-related offenses. The trial court sentenced him to concurrent sentences of ten years in prison on all ten counts and imposed a three-year minimum mandatory sentence on six of the ten counts. In his motion, Barthel claimed that the three-year minimum mandatory sentences are illegal based on this court’s opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002) (holding chapter 99-188, Laws of Florida, which required minimum mandatory prison sentences for certain drug offenses, unconstitutional in violation of the single-subject rule). He further alleged that his counsel was ineffective for failing to object to the imposition of the illegal minimum mandatory terms and asked that his conviction and sentence be vacated.

The trial court concluded that Barthel’s counsel was not ineffective for failing to challenge the minimum mandatory terms because the legislature had retroactively reenacted the amendments held unconstitutional in Taylor, thus curing the single-subject violation. However, prior to the trial court’s denial of Barthel’s motion for postconviction relief, this court held the legislature’s retroactive reenactment of the provisions of chapter 99-188 to be invalid. Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). Thus, even though the trial court may have been correct in its determination that trial counsel was not ineffective, Barthel’s minimum mandatory sentences are illegal and the trial court erred by denying relief. An illegal sentence cannot be imposed pursuant to a negotiated plea and an illegal sentence is subject to correction at any time, including collaterally. See Bruno v. State, 837 So.2d 521 (Fla. 1st DCA 2003).

Barthel is not entitled to automatic resentencing, however, because his sentences were the result of a negotiated plea in which the State agreed to reduce the original charges. On remand, the State must be given the option to either agree to a resentencing in accordance with Taylor or withdraw from the plea agreement and proceed to trial on the original charges. Bruno, 837 So.2d at 523.

As we did in Green, we certify conflict with Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d —, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002), and Jones v. State, 27 Fla. L. Weekly D2377, — So.2d -, 2002 WL 31431541 (Fla. 5th DCA Nov.1, 2002), and we note possible conflict with Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002), and Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002). We also certify conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, No. SC03-413, 854 So.2d 659 (Fla.2003), which held that chapter 99-188 does not violate the single-subject rule.

Affirmed in part, reversed in part, and remanded with directions.

ALTENBERND, C.J., and NORTHCUTT, J., Concur.


author: COVINGTON, Judge.

text:
    Nathaniel Jerome OTTESEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5628.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2003.
   COVINGTON, Judge.

Nathaniel Jerome Ottesen appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Ottesen raised thirteen claims of ineffective assistance of trial counsel. We affirm five claims without discussion. We affirm on the sixth claim and write to certify conflict. As to the remaining seven claims, we reverse and remand for further proceedings.

Ottesen alleged that his trial counsel was ineffective for failing to request a limiting jury instruction on the use of Ot-tesen’s prior convictions. He claimed that his counsel should have requested that the jury be instructed that it could not consider Ottesen’s prior convictions as substantive evidence of guilt. He also claimed that his counsel was ineffective for failing to rehabilitate him on direct examination by eliciting the fact that Ottesen pleaded guilty in his prior convictions. Ottesen argued that this information would have rehabilitated his credibility, thus affecting the outcome of the trial.

The trial court denied this claim on the basis that Ottesen waived his right to challenge the jury instructions by failing to object at trial. A challenge to a jury instruction is properly raised on appeal, but when defense counsel has failed to preserve the right to appeal the issue, a defendant may challenge his counsel’s performance through a motion for postconvietion relief filed pursuant to rule 3.850. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995); Bouchard v. State, 847 So.2d 598, 599 (Fla. 2d DCA 2003). Therefore, Ottesen properly raised this claim in his rule 3.850 motion, and the trial court erred in denying it without holding an evidentia-ry hearing or attaching portions of the record which conclusively refute it. See Gadson v. State, 773 So.2d 1183 (Fla. 2d DCA 2000).

Ottesen further alleged that his counsel was ineffective for failing to object when the trial court failed to swear in the prospective jurors prior to voir dire. However, Ottesen failed to satisfy the deficiency prong of an ineffective assistance of counsel claim because he did not allege that the oath was never administered. See Davis v. State, 848 So.2d 418 (Fla. 2d DCA 2003); Lott v. State, 826 So.2d 457 (Fla. 1st DCA 2002), review denied, No. SC02-2426, 845 So.2d 891 (Fla. May 6, 2003) (table decision). In addition, Ottesen did not demonstrate how he was prejudiced by his counsel’s failure to object. Therefore, he has not satisfied the prejudice prong of an ineffective assistance of counsel claim. See Davis, 848 So.2d at 419-20. We affirm the trial court’s order on this claim, and we certify conflict with Fernandez v. State, 814 So.2d 459 (Fla. 4th DCA 2001), as to this issue, as we did in Davis. 848 So.2d at 420.

Ottesen also raises six claims in his motion that the trial court failed to address in its order of denial. Therefore, we reverse and remand for the trial court to consider the merits of the claims pursuant to the procedure set forth in rulé 3.850.

Affirmed in part, reversed in part, and remanded.

STRINGER and CANADY, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    Lena M. NIEMI, individually, and Lena M. Niemi And Michele D. Mata, as Co-Personal Representatives of the Estate of Peter V. Niemi, Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to The American Tobacco Company, a foreign corporation; and R.J. Reynolds Tobacco Corporation, a foreign corporation, Appellees.
    No. 2D03-2600.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2003.

      Howard M. Acosta of the Law Offices of Howard M. Acosta, St. Petersburg; Bruce H. Denson and Kent G. Whittemore of Whittemore, Denson, P.A., St. Petersburg; and Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa, for Appellants.
    Benjamin H. Hill, III; Troy A. Fuhr-man; Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa; and Stephanie E. Parker and John F. Yarber of Jones Day, Atlanta, GA, for Appellee R.J. Reynolds Tobacco Company.
    William A. Gillen, Jr., of Gray, Harris, Tampa, for Appellee Brown & Williamson Tobacco Corporation.
   ALTENBERND, Chief Judge.

This appellate proceeding involves a very unusual procedural problem. Although it is arguable that the order on appeal is a final order, we conclude that certiorari review provides the simplest solution.

Peter V. Niemi and his wife, Lena M. Niemi, filed a lawsuit against Brown and Williamson Tobacco Corporation and R.J. Reynolds Tobacco Company alleging that Mr. Niemi had sustained bodily injuries as a result of smoking cigarettes manufactured and distributed by the defendants. Mrs. Niemi sought consortium damages. On October 27, 2002, while the case was pending prior to trial, Mr. Niemi died. The cause of his death is not established in the record.

In January 2003, Lena M. Niemi and Michele D. Mata filed a motion in the circuit court alleging that they had been appointed co-personal representatives of Mr. Niemi’s estate and asking the court to substitute them as plaintiffs in the action in place of Mr. Niemi. The trial court denied this motion, apparently concluding that the action had automatically abated at the time of Mr. Niemi’s death. The trial court did not dismiss the action, which may still be pending on Mrs. Niemi’s consortium claim. Compare Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989) (holding consortium claim survives husband’s death), with ACandS, Inc. v. Redd, 703 So.2d 492 (Fla. 3d DCA 1997) (holding consortium claim is derivative and, like spouse’s claim, abates with spouse’s death).

Lena M. Niemi and “Peter V. Niemi” filed a timely notice of appeal from this ruling. The defendants moved to dismiss the appeal, arguing that no final order had yet been entered dismissing Mr. Niemi’s action or the consortium claim and that Mr. Niemi was dead and thus not able to appeal the order denying the motion to substitute parties. This 'court asked the parties to address whether mandamus might be an appropriate method to review the trial court’s order.

As a threshold matter, Peter V. Niemi cannot be a party to this appellate proceeding because he is dead. Florida Rule of Appellate Procedure 9.360(c) permits this court to substitute parties when necessary. Accordingly, we have substituted Lena M. Niemi and Michele D. Mata, as co-personal representatives of the estate of Peter V. Niemi, as the proper parties to this appeal.

Next, we conclude that the transition from life to death for a personal injury action is not as simple as the defendants wish it to be. It is true that under the common law, actions for personal wrongs and personal injuries die with the person. See Taylor, 555 So.2d at 878. However, section 46.021, Florida Statutes (2002), has long overridden the common law. Section 46.021 states: “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.”

Death creates a complexity' for pending personal injury actions because section 768.20, Florida Statutes (2002), provides that “[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” Thus, when death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section 46.021.

“Abatement” is a common-law term with various definitions. It is often used to signify that an action has been extinguished or ended. See generally 1 Am. Jur.2d Abatement, Survival and Revival § 1 (1994). We will not attempt a precise definition of “abate” for purposes of section 768.20. As a matter of legal theory, “abatement” may bring a pending action to an end or extinguish it, but this theoretical event does not automatically terminate a lawsuit, which is represented by a physical file in the courthouse. A pending lawsuit does not simply self-destruct like the secret message on a rerun of “Mission Impossible.” In some fashion, it must be dismissed by court order. Moreover, pursuant to section 768.20, a personal injury action only “abates” if it is first determined that the personal injury resulted in the plaintiffs death. Such a determination may be established by the pleadings or by the finder of fact. No such determination has been made by the circuit court in this case.

It is not uncommon for a plaintiff in a lawsuit to be uncertain whether the alleged personal injury resulted in death. For example, an older person who suffers an injury in a nursing home may die several years later under circumstances that do not clearly establish whether the initial injury resulted in the death. When this issue is unresolved, the law permits a plaintiff to allege alternative theories. See Smith v. Lusk, 356 So.2d 1309 (Fla. 2d DCA 1978); Poole v. Tallahassee Mem’l Hosp., Med. Ctr., Inc., 520 So.2d 627 (Fla. 1st DCA 1988).

In this case, Mr. Niemi died during the pendency of his lawsuit. As a result, the pleadings do not currently claim that his death was either the result of his personal injury or the result of some independent cause. Thus, the pleadings do not permit the personal injury action to be abated under section 768.20, and the action cannot be dismissed in light of section 46.021. This is not a case in which the plaintiffs ignored a suggestion of death and failed to timely move for substitution of parties, thus requiring the dismissal of the personal injury action. See Taylor, 555 So.2d at 879. The only way to resolve whether this action should be abated is to permit Mr. Niemi’s co-personal representatives to appear in the action and to permit them to amend the pleadings. Unless the parties agree upon a cause of death, it is possible that the co-personal representatives will be required to plead both a personal injury action and an alternative wrongful death action.

Although we are confident that we have jurisdiction in this matter, the precise jurisdictional vehicle for use in this case is subject to some debate. It could be argued that the order denying the motion to substitute parties was a final order as to the co-personal representatives, although the notice of appeal was not filed by them. Moreover, the defendants take the position that the trial court has not entered a final order but that Mr. Niemi is dead and can take no action within the lawsuit.

We were at first inclined to believe that this appeal should be treated as a petition for writ of mandamus. Because Florida Rule of Civil Procedure 1.260(a) states that a court “may” order a substitution of parties when a party dies, we hesitate to transform this “may” into a ministerial act for purposes of mandamus.

We conclude that certiorari review provides the simplest remedy in this proceeding. See generally Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987) (stating nonfinal order is reviewable by petition for writ of certiorari when it departs from essential requirements of law and causes material injury throughout remainder of proceedings, effectively leaving no adequate remedy on appeal). The trial court departed from the essential requirements of the law when it denied this motion. As things stand, the ruling may never be reviewable on direct appeal because the co-personal representatives were not permitted to become parties and would not have the power to file an appeal at a later time. Without the substitution of parties, the trial court would never be able to resolve this action by correctly applying sections 768.20 and 46.021 because there would never be a party who could proceed or against whom a dismissal could be entered. Accordingly, we treat this proceeding as a petition for writ of certiorari, grant the petition, and instruct the trial court to grant the motion to substitute parties.

Petition for writ of certiorari granted.

CASANUEVA and KELLY, JJ., Concur.


author: CANADY, Judge.

text:
    WAKSMAN ENTERPRISES, INC., a Florida corporation, Appellant, v. OREGON PROPERTIES, INC., a Florida corporation, and Hill, Ward & Henderson, P.A., a Florida corporation, Appellees.
    No. 2D02-2461.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2003.

      Joel D. Eaton of Podhurst, Orseck, Jo-sefsberg, Eaton, Meadow, Olin & Perwin,-P.A., Miami, and Gibbons, Cohn, Neuman, Bello, Segall & Allen, P.A., Tampa, for Appellant.
    Roy J. Ford, Jr., Lynn C. Hearn, and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Appellee Oregon Properties, Inc.
   CANADY, Judge.

Waksman Enterprises, Inc. (seller) contracted to sell certain real property to Oregon Properties, Inc. (buyer or purchaser). In connection with the contract, Oregon paid Waksman certain funds as deposits. When the transaction failed to close, Waksman sought a declaratory judgment that it was entitled to retain the deposits. Waksman now appeals the trial court’s judgment requiring that all the funds paid as deposits be refunded to Oregon. Because we conclude that under the terms of the contract Oregon wa,s only entitled to be refunded a portion of the deposit monies, we affirm in part and reverse in part.

I. BACKGROUND

The parties entered into a contract in May 2000 for the sale and purchase of a commercial real estate parcel in Tampa. Oregon was simultaneously attempting to acquire the 25,500 square foot parcel from Waksman and three other parcels adjoining it, with the intention of erecting a 14,600 square foot Walgreen’s store on the site. Each of the four parcels had a different owner.

A. Contract Provisions

The contract for sale and purchase between Waksman and Oregon provided for a purchase price of $450,000. The contract provided for three categories of deposits: (1) the “Deposit” of $10,000 payable upon execution of the contract; (2) the “Additional Deposit” of $20,000 payable at the conclusion of a ninety-day inspection period after the execution of the contract; and (3) deposits of $10,000 each payable for each of three optional thirty-day extensions of the closing date. The contract also contained provisions relating to governmental approvals, as well as specific conditions to the buyer’s obligations.

In order to explain the merits of the arguments raised by the parties concerning the proper interpretation of the contractual provisions relating to the deposit monies, we set forth the pertinent provisions in their entirety. Other than the provision calling for the initial $10,000 “Deposit,” the pertinent provisions appear in a contemporaneous addendum (identified as exhibit A) to the form contract executed by the parties.

Paragraph 1 (“Inspection Period”) of the addendum provides:

(b) In the event the Purchaser determines, in its sole discretion, that the Property is unsuitable for its needs and gives written notice of same during the [90-day] Inspection Period, then this Agreement shall become null and void. The Deposit and accrued interest shall be returned to Purchaser within five business days. In the event Purchaser elects not to terminate this Agreement within the Inspection Period, then this Agreement shall remain in full force and effect and the transaction shall continue to Closing (as defined below) and the Purchaser shall make an additional $20,000.00 deposit (“the Additional Deposit”) and the Deposit and the Additional Deposit shall be non[ jrefundable to Purchaser.

Paragraph 2 (“Closing Date ”) of the addendum provides for a closing date “within Two Hundred Forty (240) days after the expiration of the [90-day] inspection period or within 10 days of receipt of all applicable building permits whichever occurs first.” It places this express obligation on Oregon: “Buyer must apply for and use its best efforts to obtain all necessary building permits during this 240[-]day period.” Paragraph 2 also contains a provision for the payment of deposit monies for the extension of the closing date:

Purchaser may elect to extend the closing date for three (3) periods not to exceed Thirty (30) days each, provided that Purchaser deposits Ten Thousand Dollars ($10,000.00) for each Thirty (30) days extension at or before the time
each such extension goes into effect. Each deposit is non[ ]refundable to Purchaser and shall apply to the Purchase Price at closing.

Paragraph 5 (“Conditions to Purchaser’s Obligations”) of the addendum provides in pertinent part:

The obligation of Purchaser hereunder to consummate the Closing contemplated hereby is subject to the satisfaction, as of the Closing, of each of the following conditions (any of which may be waived in whole or part in writing by Purchaser at or prior to Closing):
(b) Compliance by Seller. Seller shall have performed, observed[,] and complied with all of the covenants, agreements^] and conditions required by this Agreement to be performed, observed[,] and complied with by Seller prior to or as of the Closing.
(d) Building permit. Buyer shall have procured the necessary building permit for the construction of a 14,600 square foot Walgreens.

Paragraph 6 (“Broker ”) is followed by an unnumbered paragraph, which constitutes the concluding provision of the addendum:

In the event the conditions set forth above have not been satisfied, Purchaser shall have the right to terminate this Agreement by delivering to Seller a notice in writing of its desire to terminate this Agreement. In such event the Escrow Agent shall return to Purchaser the Deposit and Additional Deposit plus any accrued interest. •

B. The Deposit Dispute

Oregon terminated the contract with Waksman in June 2001, when its option to purchase one of the adjoining parcels expired. Thereafter, Oregon opposed Waksman’s attempt to collect $50,000 in deposits Oregon had placed in escrow pursuant to the terms of the contract. The $50,000 consisted of the initial $10,000 Deposit, the $20,000 Additional Deposit, and two $10,000 deposits made for extensions of the closing date. Waksman filed the declaratory judgment action against Oregon in August 2001, seeking a declaration as to its entitlement to “the entire $50,000.00 non[ jrefundable deposit, plus interest.” Waksman’s complaint alleged that “[b]e-cause Oregon terminated the contract after the expiration of the inspection period, Waksman [was] entitled to the entire ... deposit,” which became nonrefundable pursuant to the express terms of the contract.

Oregon answered the complaint and asserted various affirmative defenses. Oregon denied Waksman’s entitlement to any of the funds and asserted a right to the return of all the deposit monies. As its third affirmative defense, Oregon claimed that, because it “was unable to procure the necessary building permit, [it] was acting within its rights under the Contract when it exercised its right to terminate.”

Oregon then filed a motion for summary judgment, asserting that there existed no genuine material factual issues and that it was entitled to a summary judgment as a matter of law, because the contract as written required a refund to it of the entire $50,000. Oregon filed the affidavit and supplemental affidavit of the vice president of Oregon, Jeffrey Surrency, in support of its motion. Surrency attested, among other things, that Oregon was entitled to a full refund of all deposits in escrow because the condition set forth in addendum paragraph 5(d) was left unsatisfied when “Oregon determined that it would not be able to obtain a building permit for the project it contemplated.” In his supplemental affidavit, Surrency detailed all of the lengthy and expensive steps Oregon took in its effort to secure a building permit. Surrency stated the specific factual basis for Oregon’s inability to obtain a building permit:

[O]f the four (4) parcels needed to be combined by Oregon to be able to construct a 14,600 feet [sic] Walgreen’s, Oregon was not able to obtain an extension of the sales contract for one (1) of these four (4) parcels. Without all four (4) parcels, it would be impossible to obtain the building permit mentioned in [addendum] Paragraph 5.

Waksman filed the affidavit of its president, Albert Waksman, in opposition to Oregon’s summary judgment motion. Mr. Waksman attested that paragraph one of the addendum expressly provided that Oregon’s initial $10,000 “Deposit and the Additional [$20,000] Deposit shall be non[ Ire-fundable to the Purchaser” in the event the purchaser pursued the contract beyond the initial ninety-day inspection period, as was the case here. He further asserted that the two subsequent $10,000 deposits that Oregon paid, respectively, for two thirty-day extensions of the closing were designated “non[ ]refundable” by paragraph 2 of the addendum. Mr. Waksman stated that his company would not have entered into the contract and taken its property off the market for over a year had it not been agreed that the subject deposits would be nonrefundable. However, Mr. Waksman’s affidavit acknowledged

[t]hat in order to complete the project contemplated by the contract between Waksman and Oregon, Oregon had to purchase additional property adjoining the property which it had contracted to purchase from Waksman. Oregon’s contract with the adjoining property owner expired before it could complete the process of obtaining the necessary building permit, and Oregon was not able to negotiate a contract extension with the adjoining property owner.

A hearing was held on Oregon’s summary judgment motion on February 18, 2002. At that hearing, the parties and the trial court agreed that the provision in the contract appearing at the end of the addendum contradicted the two preceding provisions that expressly declared the subject deposits “non[ jrefundable,” thus creating an ambiguity. The trial court directed Waksman to submit its own summary judgment motion and directed both parties to submit memoranda indicating whether the ambiguity was patent or latent. The parties and the trial court acknowledged that if the ambiguity was patent the trial court would have to resolve the ambiguity and thus discern the parties’ intent by looking exclusively within the four corners of the contract. A trial would be unnecessary in that event, and a summary judgment would ultimately issue for one of the parties. Conversely, it was understood that a latent ambiguity would preclude the entry of a summary judgment because it would then be necessary for the trial court to consider extrinsic evidence presented by the parties as to whether Oregon’s deposits were intended to be nonrefundable.

The parties thereafter submitted their respective memoranda, and Waksman filed its motion for summary judgment. Both Oregon and Waksman agreed that the ambiguity was patent and that its resolution would be based on a review limited by the four corners of the contract. Each party, of course, asserted a contract interpretation that was favorable to it. Both parties also addressed the issue of whether Oregon used its best efforts to obtain a building permit.

Oregon’s memorandum included a litany of factual assertions to demonstrate that it did everything it could to obtain a building permit. The same or similar facts were attested to in Surrency’s supplemental affidavit. Oregon’s memorandum also asserted that Oregon terminated the contract only when it determined that it would be “impossible” to obtain the required building permit. It was conceded that an application for the building permit had never been submitted by Oregon. Waksman, on the other hand, asserted that it was entitled to a summary judgment on the basis that Oregon breached the contract by failing to apply for and use its best efforts to obtain a building permit. Waksman did not, however, adduce any facts to dispute or refute Oregon’s factual assertions concerning the impossibility of obtaining the building permit.

In March 2002, the trial court entered a nonfinal order granting Oregon’s motion for summary judgment. The trial court found that the facts of the instant case were similar to those involved in Arthur Rutenberg Corp. v. Pasin, 506 So.2d 33 (Fla. 4th DCA 1987), and ruled that, “in the absence of clear language in the contract allowing [Waksman] to retain the deposit,” Oregon was entitled to a full refund. The order also cited cases enunciating the proposition that “the law abhors a forfeiture.” After denying Waksman’s subsequent motion for rehearing — which for the first time asserted that at the very least Oregon’s payments for two closing extensions should have been deemed nonrefundable — the trial court entered a final judgment for Oregon and directed the escrow agent, also a party to the suit, to disburse the disputed funds to Oregon.

II. ANALYSIS

A. The Meaning of the Deposit Provisions

We begin our analysis of the merits of the arguments advanced by the parties with the issue of whether the contract was in fact ambiguous. Although we acknowledge that the contract could have been drafted in a more artful manner, we conclude that the disputed provisions are not ambiguous. Insofar as the provisions of the contract pertinent to the deposit dispute are concerned, there was neither a patent nor a latent ambiguity. Accordingly, our interpretation of the provisions of the contract will be based on the fundamental rule of construction: “Contract language must be given its plain meaning.” Interfirst Fed. Sav. Bank v. Burke, 672 So.2d 90, 92 (Fla. 2d DCA 1996). We are also guided by the “rule of construction requiring courts to read provisions of a contract harmoniously in order to give effect to all portions thereof.” City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000) (citing Sugar Cane Growers Coop, of Fla., Inc. v. Pinnock, 735 So.2d 530, 535 (Fla. 4th DCA 1999)).

It is not difficult to reconcile the nonrefundable language in addendum paragraph 1(b) and addendum paragraph 2 with the refund provision in the language at the end of the addendum. The refund language called for the return to Oregon of “the Deposit and Additional Deposit plus any accrued interest,” if Oregon terminated the contract because “the conditions set forth above” — that is, the conditions in addendum paragraph 5 “have not been satisfied.” In short, once the inspection period was over the deposits all were nonrefundable if Oregon failed to close, except to the limited extent that “the Deposit and Additional Deposit” would be returned to Oregon if Oregon terminated the contract because the conditions set forth in paragraph 5 of the addendum were not satisfied. The language at the end of the addendum re-fleets a specific and limited exception to the general provision that deposits are nonrefundable if the buyer fails to close. The parties to the contract thus expressed their understanding that both the initial $10,000 Deposit and the Additional Deposit of $20,000, which was payable at the conclusion of the inspection period, would be refunded if the conditions of addendum paragraph 5 — including the building permit requirement — were not satisfied.

The reference in the refund provision to “the Deposit and Additional Deposit” cannot properly be understood as applying to the closing extension deposits provided for in addendum paragraph 2. In the addendum, “the Deposit” and “the Additional Deposit” are defined terms. The Deposit is the' initial $10,000 deposit paid upon execution of the contract. The Additional Deposit is the $20,000 payment due at the conclusion of the inspection period if Oregon decided to proceed with the transaction. It is only those two elements of the deposit monies that are subject to refund if the purchaser terminates the contract because one of the conditions of paragraph 5 is not satisfied.

The closing extension deposits provided for in addendum paragraph 2 are a different matter. There is no provision of the contract that provides for their refund to the buyer when the buyer has terminated the contract due to the 'nonsatisfaction of a condition of addendum paragraph 5. The closing extension deposits are clearly something separate and distinct from “the Deposit” and “the Additional Deposit.” The refund provision of the addendum does not make a general reference to “deposits.” It cannot reasonably be understood to encompass the closing extension deposits. The plain language of the contract dictates our conclusion on this point. We also note, however, that there is nothing at all unusual about a seller agreeing to return earnest money deposits if certain conditions are unsatisfied while insisting that sums paid for extensions of the agreed date for closing will not be refundable due to the nonsatisfaction of those same conditions. It is entirely reasonable for a seller to exact from the buyer a payment — which the buyer cannot recover except as a credit at closing — to compensate the seller for keeping the seller’s property off the market for a period of time that extends beyond the time for closing initially contemplated and agreed to by the parties.

The trial court and Oregon both rely on the decision in Arthur Rutenberg to support the conclusion that the contract in the instant case provided for the refund of all the deposit monies paid by Oregon if Oregon terminated the contract due to the nonsatisfaction of the conditions of addendum paragraph 5. Their reliance is partially justified and partially unjustified.

In Arthur Rutenberg, the Fourth District addressed the interpretation of a real estate contract containing provisions which provided for the following: (1) an initial nonrefundable deposit; (2) an additional deposit payable twenty days after execution of the contract; and (3) a financing contingency specifying that “ ‘all deposits shall be returned to the buyer’ ” if financing was not obtained by the buyer. 506 So.2d at 34. When the financing contingency was not satisfied, a dispute arose over the deposit monies. Notwithstanding the financing contingency provision for the return of “all deposits,” the trial court ruled that the initial deposit should be forfeited based on its designation in the contract as nonrefundable. The trial court based its decision on the rule of construction that “specific directions in the contract take precedence over the general.” Id. On appeal, the Fourth District rejected the reasoning of the trial court and held that it is “reasonable to conclude that the [initial deposit] would be returned to the buyer if the financing contingency failed for reasons beyond his control.” Id. at 35. The trial court had the rule right, but the application wrong. It is more reasonable to view the refund provision in the financing contingency not as a general provision but as a specific direction that controls over the general designation of the initial deposit as nonrefundable.

The decision of the Fourth District in Arthur Rutenberg is quite cogent. And it does provide partial support for the decision of the trial court in the instant case. The trial court’s determination with respect to the initial Deposit and the Additional Deposit is supported by the Arthur Rutenberg court’s holding that a contract provision expressly providing for the refund of deposit monies upon the nonsatis-faction of a condition for closing takes precedence over a designation of deposit monies as nonrefundable. But the decision of the trial court in the instant case with respect to the closing extension deposits is not similarly supported. In Arthur Rutenberg, the contract called for the return of “all deposits” if the financing contingency was not satisfied. Id. at 34. In the instant case, as we have already discussed, such comprehensive language is absent.

The trial court’s invocation of the principle that “the law abhors a forfeiture” is inapposite. That principle cannot properly be used to justify an interpretation of a contract that ignores the plain meaning of the text of the contract. The parties to a real estate contract may enter an enforceable agreement that deposits paid by the buyer will be forfeited to the seller under specified circumstances. Indeed, such deposit forfeiture provisions are standard and customary in real estate contracts. See Decker v. Strom & Strom Realtors, Inc., 695 So.2d 803, 803 (Fla. 2d DCA 1997) (affirming trial court order requiring buyers to forfeit their deposit in a residential real estate transaction where buyers breached contract by “refusing] to close when they learned that the mortgage payments would be higher than they had anticipated”). It is true that there are circumstances where “a party entitled to a forfeiture may be estopped from asserting that right, if the result would be unconscionable.” Torres v. K-Site 500 Assocs., 632 So.2d 110, 112 (Fla. 3d DCA 1994) (citations omitted). It is also true that a deposit forfeiture provision may constitute an unenforceable penalty in certain circumstances. See Lefemine v. Baron, 573 So.2d 326, 329 (Fla.1991) (holding that deposit forfeiture was an unenforceable penalty where contract granted seller option “either to choose liquidated damages [i.e., the deposit] or to sue for actual damages [thereby] indicating] an intent to penalize the defaulting buyer and negating] the intent to liquidate damages in the event of a breach”); Hyman v. Cohen, 73 So.2d 393, 401 (Fla.1954) (holding that forfeiture provision will be enforceable only where damages are not “readily ascertainable” and forfeiture amount is not “grossly disproportionate” to potential damages). Here, however, Oregon has relied upon its argument concerning the proper interpretation of the provisions of the contract. It has contended not that the deposit forfeiture provisions of the contract are unconscionable or otherwise unenforceable, but that they are not applicable in the factual circumstances presented by this case.

B. Waksman’s Right to the Closing • Extension Deposits

Based on our interpretation of the express provisions of the contract, we conclude that, even if Oregon established that it had properly terminated the contract due to the nonsatisfaction of the conditions of addendum paragraph 5, Oregon nonetheless had no contractual right to the return of the two $10,000 closing extension deposits paid to Waksman pursuant to addendum paragraph 2. There was simply no basis in the contract for the trial court’s determination that Oregon was entitled to the return of the $20,000 sum paid for the two extensions. Waksman therefore has the contractual right to retain the $20,000, and the trial court erred in awarding that sum to Oregon.

Although this specific point was not raised by Waksman before the trial court until Waksman asserted it in its motion for rehearing, Oregon has conceded that the point was properly presented to the trial court by the motion for rehearing and thus preserved for appellate review. See Anderson v. Aamco Transmissions of Brevard, Inc., 265 So.2d 5 (Fla.1972) (holding that in summary judgment proceeding trial court must consider matters raised for the first time in motion for rehearing by party against whom summary judgment has been entered).

C. Oregon’s Right to the Initial Deposit and the Additional Deposit

The right of the respective parties to the Deposit and the Additional Deposit turns on whether Oregon had the right to terminate the contract due to the nonsatisfaction of the conditions of addendum paragraph 5. The summary judgment in favor of Oregon can be upheld on this point only if there are no disputed issues of fact that are material to Oregon’s claim that it had the right to terminate the contract under addendum paragraph 5. See, e.g., Richardson v. Wal-Mark Contracting Group, 814 So.2d 534, 535 (Fla. 2d DCA 2002) (stating that “[t]he party moving for summary judgment has the burden of showing the nonexistence of genuine issue of material fact”) (citation omitted); Lively v. CSX Transp., Inc., 557 So.2d 210, 211 (Fla. 2d DCA 1990) (stating that “[t]he test for summary judgment is whether there exists any genuine issue of material fact”) (citation omitted). In particular, we must determine whether there is any disputed issue of material fact concerning Oregon’s right to terminate the contract due to the nonsatisfaction of the building permit condition set forth in addendum paragraph 5(d). We conclude, on the basis of the record before the trial court, that the undisputed facts establish that the building permit condition was not satisfied and Oregon was therefore entitled to terminate the contract.

On appeal, Waksman points to the obligation imposed on Oregon under addendum paragraph 2 to “apply for and use its best efforts to obtain all necessary building permits.” According to Waksman, the undisputed fact that Oregon did not make application for a building permit for the construction of the 14,600 square foot structure contemplated by the contract prevents Oregon from relying on the non-satisfaction of the building permit condition as a basis for the return of the Deposit and the Additional Deposit. Waksman also urges that Oregon had an obligation under the contract to use its best efforts to consummate the other purchases which were necessary to assemble the parcels required for the construction of the contemplated structure and that Oregon did not meet that obligation.

It is, of course, true that Oregon did not apply for a building permit as required by addendum paragraph 2. But the undisputed facts in the record establish that the filing of such an application for a building permit would have been a futile act. Indeed, Mr. Waksman’s own affidavit supported the conclusion that Oregon “could [not] complete the process of obtaining the necessary building permits.” The futility of applying for a budding permit arose from Oregon’s inability to obtain a necessary extension of its option on one of the other parcels necessary for the construction of the contemplated structure. Once again, Mr. Waksman’s affidavit admitted that “Oregon was not able to negotiate a contract extension with the adjoining property owner.” Waksman adduced no facts to show either (a) that the failure of the related transaction was the consequence of some act or omission by Oregon that constituted the breach of an obligation owed by Oregon to Waksman or (b) that the filing of a building permit application would not have been an exercise in futility, given the failure of the related transaction.

Waksman’s claim for the retention of the initial Deposit and the Additional Deposit thus hangs entirely on its argument that Oregon had the obligation under addendum paragraph 2 to undertake the undisputedly futile act of applying for a building permit. The failure to undertake this futile act, according to Waksman, negated Oregon’s right under addendum paragraph 5 to terminate the contract for the nonsatisfaction of the building permit condition. But the law does not require that a party to a contract take action that would clearly be futile. See Blackmon v. Hill, 427 So.2d 228, 230 (Fla. 3d DCA 1983) (stating that “the exercise of reasonable diligence [does not] require the undertaking of an effort which clearly would be futile”) (citing Gray v. Sawyer, 247 S.W.2d 496 (Ky.Ct.App.1952)); see also Arbor Adver. Corp. v. Grammatico, 530 So.2d 364, 365 (Fla. 2d DCA 1988) (holding that, where permit was denied, party to lease made a good faith effort to obtain required permit notwithstanding his failure to appeal the initial denial because there was “a basis for [him] to believe that an appeal would have been futile”). Oregon’s failure to undertake the undeniably futile act of applying for a building permit thus does not defeat Oregon’s right to terminate the contract pursuant to addendum paragraph 5.

Oregon has a contractual right to retain the $30,000 sum paid for the initial Deposit and the Additional Deposit. The trial court was thus correct in entering summary judgment for Oregon on the issue of the initial Deposit and the Additional Deposit.

III. CONCLUSION

Based on the plain language of the contract and the undisputed facts adduced on the motions for summary judgment, Waksman has the right to retain $20,000 of the deposit monies (plus accrued interest thereon) and Oregon has the right to the refund of $30,000 of the deposit monies (plus accrued interest thereon). On remand, the trial court is directed to enter judgment accordingly.

Affirmed in part, reversed in part, and remanded for entry of judgment consistent with this opinion.

NORTHCUTT and STRINGER, JJ„ concur.

      . We note that the contract does contain another provision- — -which is not relevant to the present case — providing the buyer with the right to “elect to receive the return of Buyer's deposit(s)” in the event the seller "neglects or refuses to perform this Contract.” We acknowledge that the interaction of that provision of the contract with addendum paragraph 5(b) and the refund provision at the end of the addendum presents a more chai-lenging question than the question presented by this case.


text:
    Peter BARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5257.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2003.
    Rehearing Denied Dec. 8, 2003.

      Peter Barrett, pro se.
    James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow (dismissed after briefing), for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Peter Barrett appeals his conviction for first-degree murder and asserts that the trial court erred in holding that section 775.051, Florida Statutes (2001), is constitutional. Barrett claims that section 775.051, which eliminates voluntary intoxication as a defense to criminal charges, is unconstitutional because it violates his right of procedural due process under the Florida Constitution. He argues that the statute improperly excludes a class of relevant evidence and lessens the State’s burden to prove his guilt beyond a reasonable doubt. We affirm but write to address Barrett’s constitutional challenge. Barrett also raises several other issues, and we affirm those without discussion.

Section 775.051 provides that:

Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance as described in chapter 893 is not a defense to any offense proscribed by law. Evidence of a defendant’s voluntary intoxication is not admissible to show that the defendant lacked the specific intent to commit an offense and is not admissible to show that the defendant was insane at the time of the offense, except when the consumption, injection, or use of a controlled substance under chapter 893 was pursuant to a lawful prescription issued to the defendant by a practitioner as defined in s. 893.02.

In considering the statute’s constitutionality, we are bound “to resolve all doubts as to the validity of [the] statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with the legislative intent.” State v. Stalder, 630 So.2d 1072, 1076 (Fla.1994) (alteration in original) (quoting State v. Elder, 382 So.2d 687, 690 (Fla.1980)).

The trial court allowed Barrett to present evidence of his intoxication, but, pursuant to section 775.051, it did not allow him to argue or to present expert testimony that his intoxication prevented him from forming the requisite mental intent to commit first-degree murder. Also, the trial court instructed the jury that voluntary intoxication is not a defense to premeditated murder and could not be considered when determining whether Barrett acted with premeditation.

In a recent decision, the Fourth District Court of Appeal held that section 775.051 does not violate federal or Florida due process guarantees. Cuc v. State, 834 So.2d 378 (Fla. 4th DCA), review denied, 847 So.2d 975 (Fla.2003). The court relied on the United States Supreme Court’s decision in Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), which held that a similar Montana statute does not violate federal due process principles. Cue, 834 So.2d at 378.

In Egelhoff, the Supreme Court reviewed section 45-2-203 of the Montana Code Annotated, noting that it “provides, in relevant part, that voluntary intoxication ‘may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense.’ ” Egelhoff, 518 U.S. at 39-40, 116 S.Ct. 2013. Egelhoff had been charged with “ ‘purposely’ or ‘knowingly’ causing the death of another human being.” Id. at 40, 116 S.Ct. 2013 (citation omitted). Egelhoff claimed that due to his extreme intoxication, he was physically unable to commit the murders. Id. at 41, 116 S.Ct. 2013. At trial, he was permitted to present evidence that he was intoxicated, but the jury was instructed, pursuant to section 45-2-203, “that it could not consider [Egelhoffs] ‘intoxicated condition ... in determining the existence of a mental state which is an element of the offense.’ ” Id. at 41, 116 S.Ct. 2013.

The Supreme Court, in a plurality opinion, stated that the cornerstone of the Montana Supreme Court’s reversal of Egelhoffs convictions was that section 45-2-203 violated his right of due process because “the Due Process Clause guarantees a defendant the right to present and have considered by the jury ‘all relevant evidence to rebut the State’s evidence on all elements of the offense charged.’ ” Id. at 41-42, 116 S.Ct. 2013 (quoting State v. Egelhoff, 272 Mont. 114, 900 P.2d 260, 266 (1995)). The Supreme Court rejected the Montana Supreme Court’s premise and noted that various evidentia-ry rules exclude relevant evidence. Id. at 42, 116 S.Ct. 2013. The Court stated that in order to demonstrate a due process violation, Egelhoff had “to establish that a defendant’s right to have a jury consider evidence of his voluntary intoxication in determining whether he possesses the requisite mental state is a ‘fundamental principal of justice.’ ” Id. at 43, 116 S.Ct. 2013.

After reviewing the historical development of the law concerning the intoxication defense, the Court concluded that a defendant does not have a fundamental right to have a jury consider evidence of voluntary intoxication in relation to his or her mens rea. Id. at 51, 116 S.Ct. 2013. The Court rejected the argument that section 45-2-203 was unconstitutional because it lessened the State’s burden of proof. Id. at 55, 116 S.Ct. 2013. While the exclusion of evidence might make it easier for the State to prove mens rea, such an effect is not unconstitutional because it does not violate a fundamental principle of fairness. Id. at 55, 116 S.Ct. 2013.

Justice Ginsburg concurred with the decision in Egelhoff but presented a different analysis. She considered whether Montana’s statute operated as a rule of evidence or was a substantive change in the law as to the mens rea element of the offense. Id. at 57-60, 116 S.Ct. 2013. Justice Ginsburg reasoned that if the statute were evidentiary in nature and excluded an entire class of relevant evidence which tended to disprove the existence of the requisite mental intent, then the statute would violate due process. Id. at 57, 116 S.Ct. 2013. However, if the statute operated as a substantive change in Montana’s law that defined the mens rea requirement for the crime, it would not offend due process principles because the states are given wide latitude in defining the elements of crimes. Id. at 57-58, 116 S.Ct. 2013. Justice Ginsburg concluded that the Montana statute worked a substantive change in the mens rea requirement and, thus, did not violate federal due process. Id. at 58-60, 116 S.Ct. 2013.

Here, Barrett acknowledges that the Florida statute is similar to the Montana statute that was addressed in Egelhoff. However, he asserts that the Florida Constitution provides broader due process protections than the Federal Constitution, requiring the conclusion that section 775.051 violates the Florida Constitution.

The due process language used in the Florida and United States Constitutions is virtually identical. Article I, section 9 of the Florida Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o persons shall be ... deprived of life, liberty, or property, without due process of law.” Section 1 of the Fourteenth Amendment to the United States Constitution provides, in pertinent part, that no state shall “deprive any person of life, liberty, or property, without due process of law.”

Barrett argues that State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), and Haliburton v. State, 514 So.2d 1088 (Fla.1987), demonstrate that the Florida Constitution provides greater due process protection than does the United States Constitution. Griffin involved an analysis of a defendant’s right to a speedy trial under the Sixth Amendment to the United States Constitution and noted that the Florida Supreme Court had adopted a rule of procedure that established specific time periods under Florida’s constitutional speedy trial provision. Id. at 695. The Griffin court then stated, without citation to any authority, that “Florida due process standards in many instances exceed federal standards as defined by the United States Supreme Court.” Id. at 696. That statement appears to be obiter dictum and was not necessary to or a part of the court’s holding.

In Haliburton, the court determined that certain police conduct violated the due process provision of the Florida Constitution. However, the court did not hold or suggest that the basis for the decision was that the due process provision of the Florida Constitution is to be construed more broadly than the Due Process Clause of the United States Constitution.

Additionally, in considering whether section 775.051 is a substantive change to the mens rea element of criminal conduct or is simply a rule of evidence, we note that the Florida Supreme Court has stated that “substantive law is that which declares what acts are crimes and prescribes the punishment therefor, while procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.” State v. Garcia, 229 So.2d 236, 238 (Fla.1969). However, the distinction between what is substantive and procedural law is not always simple or certain. See Caple v. Tuttle’s Design-Build, Inc., 753 So.2d 49, 53 (Fla.2000); Garcia, 229 So.2d at 238.

Substantively, section 775.051 addresses the mens rea element of criminal offenses by stating that voluntary intoxication is not a defense to criminal conduct and cannot be used to show that the defendant lacked the specific intent to commit a crime. This is consistent with the State’s interest in making persons who voluntarily become intoxicated responsible for their behavior. See Egelhoff, 518 U.S. at 49-50, 116 S.Ct. 2013. However, the statute also addresses procedural matters by excluding, at trial, evidence of voluntary intoxication.

Although section 775.051 has both substantive and procedural elements, this does not render the statute constitutionally infirm when the procedural provisions “are intimately related to the definition of those substantive rights.” See Caple, 753 So.2d at 54. As was the case with the Montana statute under Justice Ginsburg’s analysis, section 775.051 effects a substantive change in the definition of mens rea, and it is not simply an evidentiary rule. See Egelhoff, 518 U.S. at 57-60, 116 S.Ct. 2013.

In summary, we reject Barrett’s due process argument and affirm his conviction and sentence for the following reasons: (1) the due process language contained in the United States and Florida Constitutions is comparable, and there is no basis to conclude that the Florida Constitution provides greater protections to Barrett than does the United States Constitution in relation to the elimination of voluntary intoxication as a defense to a criminal offense; and (2) the due process analysis in Egelhoff applies equally under the Florida and United States Constitutions.

Affirmed.

WHATLEY and CASANUEVA, JJ., Concur.

      . In State v. Egelhoff, 272 Mont. 114, 900 P.2d 260, 264 (1995), the Montana Supreme Court quoted section 45-2-203, as follows:
      "A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state which is an element of the offense unless the defendant proves that he did not know that it was an intoxicating substance when he consumed, smoked, sniffed, injected, or otherwise ingested the substance causing the condition.”

      . Justice Scalia wrote the plurality opinion and was joined by Chief Justice Rehnquist and Justices Kennedy and Thomas. Justice Ginsburg concurred in the judgment but for different reasons than those expressed in the plurality opinion. Justices O'Connor, Stevens, Souter, and Breyer dissented.

      . We note that the Florida Legislature was aware of the Supreme Court’s decision in Egelhoff when it enacted section 775.051. See Fla. H.R. Comm. on Crime & Pun., CS for HB 421 & 485 (1999) Staff Analysis 3 (Mar. 3, 1999) (available at http://www.Asenate.gov/data/session/1999/House/bills/analysis/ pdfHB0421Sl.CP.pdf).