author: ERVIN, J. BENTON, J., POLSTON, J. ERVIN, J. POLSTON, J.,

text:
    Morris HARRIS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D00-3775, 1D00-4749.
    District Court of Appeal of Florida, First District.
    April 26, 2002.
    Opinions on Denial of Rehearing Oct. 4, 2002.

      Nancy A. Daniels, Public Defender, Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General, Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   ERVIN, J.

These consolidated appeals raise various issues resulting from appellant’s involuntary civil commitment as a sexually violent predator pursuant to the Jimmy Ryce Act (sections 394.910-931, Florida Statutes (1999)). Case number 00-3775 is an appeal from a final order of involuntary commitment, and case number 00-4749 is an appeal from a post-judgment order denying appellant’s motion to enforce. Because we reverse and remand on an issue which is common to both appeals, urging that the lower court erred in denying appellant’s motion to enforce his plea agreement, we do not address the remaining points raised in these consolidated cases.

In the appeal from the order denying the motion to enforce the plea agreement and sentence, Harris claims the state breached the agreement after he had served practically all of the agreed-upon sentence, by filing a petition requesting that he be declared a sexually violent predator and civilly committed. Because we agree that the lower court erred in refusing to enforce the plea agreement, which was binding on both parties, we reverse the order of denial and remand the case for proceedings consistent with this opinion.

The plea agreement that Harris and the state entered into in 1995 provided that he would be sentenced to a term of 15 years’ imprisonment for the offense of committing a lewd and lascivious act on a child under the age of 16 years, and, at the conclusion of seven years’ incarceration, the remainder of the sentence would be suspended and he would be placed on probation with the special condition that he complete a sex offender treatment program. He alleged that the state violated the contract in that on May 27, 1999, four days before his tentative release date from prison, it filed a petition seeking his civil commitment under the Ryce Act. The lower court denied the motion to enforce, ruling that the state had not reneged on its earlier promises because at the time of the agreement in 1995, the Ryce Act had not yet been enacted into law; the civil commitment was an unforeseen, collateral consequence of the crime; and because the court found appellant was serving probation while awaiting trial in the civil proceeding. Shortly after the entry of this order, the case proceeded to nonjury trial, and after presentation of the evidence, the judge found by clear and convincing evidence that appellant was a sexually violent predator requiring civil commitment. Harris thereafter filed his appeal from the order denying enforcement of the plea agreement and the order civilly committing him.

Florida courts have routinely held that a defendant who was not informed that he was subject to civil commitment under the Ryce Act is not entitled to withdraw a guilty or nolo contendere plea to a charged offense on the ground that the plea was not knowingly and voluntarily entered, because such commitment is deemed a collateral, not a direct consequence, of the plea. See, e.g., Nelson v. State, 780 So.2d 294 (Fla. 1st DCA 2001); Donovan v. State, 773 So.2d 1264 (Fla. 5th DCA 2000); Pearman v. State, 764 So.2d 739 (Fla. 4th DCA 2000); Oce v. State, 742 So.2d 464 (Fla. 3d DCA 1999), cause dismissed, 763 So.2d 1044 (Fla.2000); LaMonica v. State, 732 So.2d 1175 (Fla. 4th DCA 1999); Burkett v. State, 731 So.2d 695 (Fla. 2d DCA 1998); Collie v. State, 710 So.2d 1000 (Fla. 2d DCA 1998); Benitez v. State, 667 So.2d 476 (Fla. 3d DCA 1996). The case at bar, however, does not involve the issue of the voluntariness of Harris’s plea. Rather, appellant asserts that the state breached the plea agreement, thereby requiring either that the agreement be specifically enforced, or that he be allowed to withdraw his plea and proceed to trial.

A case which is perhaps the most factually similar to that at bar is Acosta v. State, 784 So.2d 1137 (Fla. 3d DCA 2000), involving the Third District’s per curiam denial of Acosta’s petition for writ of cer-tiorari. As did Harris below, Acosta filed a motion for enforcement of the plea agreement, complaining that the state had reneged on its contractual obligation. The trial court denied the motion for the reason that commitment under the Ryce Act is civil rather than criminal. Acosta then sought certiorari review of the order. Although the majority’s reasoning for its denial in Acosta is not set out, Judge Ramirez, in his concurring opinion, explained that Acosta argued that the state had violated the plea agreement by bringing a civil action against him, and Acosta had relied upon a case which involved a civil forfeiture proceeding. Judge Ramirez pointed out that the case Acosta cited was distinguishable, because the forfeiture provision was a significant factor in the defendant’s plea agreement, while the Jimmy Ryce Act was not even enacted until years after Acosta’s plea, and, therefore, could not have been within the parties’ contemplation when they agreed on the terms of the plea.

In that the Third District did not explain its rationale, other than in Judge Ramirez’s concurring opinion, the Acosta decision cannot be considered even persuasive authority. Moreover, the fact that neither of the parties in the case at bar contemplated the subsequent passage of the Ryce Act at the time the agreement was struck in 1995, does not relieve the state of its obligation to comply with the terms of its contract, as Judge Ramirez suggests.

We likewise find Murray v. Kearney, 770 So.2d 273 (Fla. 4th DCA 2000) (on reh’g), review granted, 791 So.2d 1100 (Fla.2001), is distinguishable because it is in a substantially different procedural position than the present case. In Murray, the defendant sought specific performance of the plea agreement before the trial court after his civil commitment as a sexually violent predator. When the motion was denied, he filed a petition for writ of habeas corpus in the Fourth District Court of Appeal. In denying the petition, the court noted at the outset that its “habeas jurisdiction is limited to determining whether the challenged order was entered without jurisdiction or is illegal.” Id. at 274. The court observed that the civil commitment was legal because the trial court clearly had jurisdiction to entertain civil commitment proceedings under the Ryce Act, and it noted that Harris had “raised no argument that his confinement violates the requirements of the act under which his confinement was obtained.” Id. at 275 (footnote omitted).

Unlike Harris, the petitioner in Murray did not raise the issue before the trial court of whether the state had violated its plea agreement; instead, he argued that the commitment was illegal, because it violated the plea agreement. Nevertheless, the court specifically noted that even if the state violated the plea agreement by bringing a civil commitment action against Murray, such facts still would not make the civil commitment order illegal, because Murray qualified as a sexually violent predator under the Ryce Act. Id. In contrast to Murray, Harris raised the issue that the state violated the plea agreement in the Ryce Act proceeding and the criminal proceeding, and is directly appealing the court’s rulings in both proceedings. Because he timely raised this issue before the trial court, he is entitled to review of the question whether civil commitment violates the terms of the plea agreement, which was not decided in Murray.

Insofar as the issue of whether the state can be regarded as breaching its agreement, we consider it immaterial that one’s confinement under the Ryce Act has been held a collateral, rather than a direct consequence, of a defendant’s plea. Harris bargained for and was led to believe that in exchange for his agreement to surrender certain rights, most notably, that of trial by jury, he would receive a fifteen-year sentence, and, after service of seven years, the remaining portion of the sentence would be suspended and served on probation, during which time he would receive treatment as a sex offender. By pursuing civil commitment under the Ryce Act, the state has breached the plea agreement in regard to the terms of the sentence.

In our judgment, this is a classic case for the application of the doctrine of equitable estoppel, the elements of which are (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. See Dep’t of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981); Mandarin Paint & Flooring, Inc. v. Potura Coatings of Jacksonville, Inc., 744 So.2d 482, 485 (Fla. 1st DCA 1999). Elements one and two of the doctrine are easily satisfied in that the state clearly represented to Harris the sentence he would receive in exchange for his plea, and he relied on the representation.

As to the third element, we consider that the state subsequently changed its position in a manner detrimental to Harris by filing the civil commitment action against him. Although a court of equity will not demand that a contract be specifically enforced against a party who, due to future circumstances, is unable to comply with the agreement, compare Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729 (1932), we note that the legislature’s later passage of the Ryce Act did not render the state’s future compliance with the agreement impossible. The state attorney was given the discretion whether to file a civil commitment action against Harris. Section 394.914, Florida Statutes (1999), provides: “Following receipt of the written assessment and recommendation from the multidisciplinary team, the state attorney, in accordance with s. 394.913, may file a petition with the circuit court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation.” (Emphasis added.) As a result, the state attorney was clearly under no compulsion to file a petition to seek civil commitment against Harris. In so acting, it violated its own solemn agreement that appellant serve no more than a split sentence of incarceration and probation.

Nothing less than specific performance of the contract can accord Harris justice. As the United States Supreme Court noted in Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971):

This phase of the process of criminal justice [the plea proceeding], and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Justice Douglas specially concurred, making the following observations:

Where the “plea bargain” is not kept by the prosecutor, the sentence must be vacated and the state court will decide in light of the circumstances of each case whether due process requires (a) that there be specific performance of the plea bargain or (b) that the defendant be given the option to go to trial on the original charges. One alternative may do justice in one case, and the other in a different case. In choosing a remedy, however, a court ought to accord a defendant’s preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor’s breach of a plea bargain are those of the defendant, not of the State.

Id. at 267, 92 S.Ct. 495.

Santobello involved the violation of a plea agreement wherein the prosecutor agreed that he would make no recommendation to the trial court as to a particular sentence. A different prosecutor later breached the agreement by recommending the maximum sentence. The Supreme Court, by assuming jurisdiction over the case, considered the breach a violation of the defendant’s Sixth Amendment right to trial by jury, or the “ ‘right not to plead guilty.’ ” Id. (Marshall, J., concurring and dissenting) (citation omitted).

Florida’s appellate courts have followed the recommendations of Justice Douglas in Santobello; some cases permitting, under the particular circumstances, withdrawal of the plea, and others, specific performance. In Hunt v. State, 613 So.2d 893, 898 (Fla.1992), the court commented, relying on Santobello, that if the state breaches the terms of a plea agreement, a defendant is entitled to either specific performance of the agreement or withdrawal of the plea. The court continued that it considered specific performance necessary in the case before it in order to do justice. Id. Accord Eulo v. State, 786 So.2d 43 (Fla. 4th DCA 2001); Espinosa v. State, 688 So.2d 1016 (Fla. 3d DCA 1997); Buffa v. State, 641 So.2d 474 (Fla. 3d DCA 1994); Spencer v. State, 623 So.2d 1211 (Fla. 4th DCA 1993).

In the case at bar, specific performance of the plea agreement is the only effective means of carrying out the agreement. Permitting Harris the option of withdrawing his plea after serving nearly the entire incarcerative portion of his sentence is obviously an unjust remedy, and one, moreover, which he does not seek.

In our opinion, the state breached its plea agreement to allow Harris the privilege of seeking treatment as a sexual offender during the probationary period of his sentence by seeking civil commitment shortly before he had completed the incar-cerative portion of his sentence. Because, however, the issue we decide appears to bfe one of first impression, and other courts have reached a different result on somewhat analogous facts, we certify to the Florida Supreme Court the following question to be of great public importance:

MAY THE STATE INITIATE DISCRETIONARY CIVIL COMMITMENT PROCEEDINGS UNDER THE RYCE ACT (PART V OF CHAPTER 394, FLORIDA STATUTES) WHERE, BY SEEKING CIVIL COMMITMENT, THE STATE WOULD VIOLATE THE TERMS OF A PLEA AGREEMENT PREVIOUSLY ENTERED INTO WITH THE DEFENDANT?

The post-judgment order denying appellant’s motion to enforce the plea agreement and sentence in case number 00-4749 is REVERSED and REMANDED with directions that the court specifically enforce the parties’ plea agreement. Based upon this disposition, the final civil commitment order in case number 00-3775 is also REVERSED and REMANDED for proceedings consistent with this' decision.

BENTON, J., concurs with opinion. POLSTON, J., dissents with opinion.

BENTON, J.,

concurring.

The sovereign State of Florida should be held to its lawful agreements. “Men naturally trust in their government, and ought to do so, and they ought not to suffer for it.” Menges v. Dentler, 33 Pa. 495, 500 (1859).

Our Government [state no less than federal] should not by pieayunish haggling over the scope of its promise, permit one of its arms to do that which, by any fair construction, the Government [of Florida] has given its word that no arm will do.

Heckler v. Cmty. Health Servs., 467 U.S. 51, 61 n. 13, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984) (quoting St. Regis Paper Co. v. United States, 368 U.S. 208, 229, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961) (Black, J., dissenting, joined by Whittaker and Stewart, JJ0).

The Legislature has not said otherwise. What is now codified as sections 394.913 and 394.9135, Florida Statutes (2001), does make assessment of certain convicts mandatory as their periods of incarceration (would otherwise) come to an end. After this mandatory assessment, however, the decision whether to file a petition alleging that somebody is a “sexually violent predator” subject to indefinite internment thereafter lies wholly within the discretion of the state attorney. See § 394.914, Fla. Stat. (2001) (“[T]he state attorney ... may file a petition with the circuit court alleging that the person is a sexually violent predator-”) (emphasis supplied).

Only after the plea bargain had been struck and sentence had been pronounced in the present case, moreover, did the “Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators’ Treatment and Care Act,” Ch. 98-64 § 1, at 446, Laws of Fla. (codified as §§ 916.31.49, Fla. Stat. (Supp.1998)), take effect, on January 1, 1999. See Ch. 98-64, § 24, at 455, Laws of Fla. Since amended, these provisions are now located in Part V, Chapter 394 of the Florida Statutes, entitled “Involuntary Civil Commitment of Sexually Violent Predators,” See Ch. 99-222, § 1, at 1373, Laws of Fla. (codified as §§ 394.910-.931, Fla. Stat. (1999)). Nothing in the statutory scheme precludes the state attorney’s keeping his office’s word by honoring a preexisting plea bargain.

The sentence to which Morris Harris and the state attorney’s office agreed required him to spend seven years in prison, followed by eight more years in prison, unless he successfully completed eight years on probation with conditions including “no unsupervised contact with minor children” and “sex offender counseling.” See § 948.03(4), Fla. Stat. (Supp.1994). Probation was part of the bargain, even though facts giving reason to believe any probationary condition had been breached would have justified immediate arrest.

The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. See Restatement (Second) of Agency § 272. See also American Bar Association, Project on Standards for Criminal Justice, Discovery and Procedure Before Trial § 2.1(d).

Giglio v. U.S., 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). By executing the plea agreement at issue here, the prosecutor bound the State of Florida itself, as well as the state attorney, to honor the agreed-upon disposition, so long as the trial judge approved. In exchange for this promise, Morris Harris waived his right to trial (and the whole panoply of rights under the Florida and federal constitutions that entails), when he entered a plea of nolo contendere. Evincing judicial approval of this disposition and the underlying agreement, the trial judge accepted the plea and pronounced the sentence the parties had agreed upon.

The State is bound. Alluding to and expanding upon Justice Holmes’ original pronouncement that “[m]en must turn square corners when they deal with the Government,” Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 65 L.Ed. 188 (1920), the seven-member majority in Heckler, 467 U.S. at 61 n. 13, 104 S.Ct. 2218 adopted language from Justice Black’s dissent in St. Regis Paper Co.:

It is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their government.

See also United States v. Winstar Corp., 518 U.S. 839, 886 n. 31, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996) (plurality opinion) (Souter, J., joined by Stevens, Breyer and O’Connor, JJ.); Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 387-388, 68 S.Ct. 1, 92 L.Ed. 10 (1947) (Jackson, J., dissenting) (“It is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street.”).

Plea bargains serve many purposes. The prosecutor may have had good reason to believe that Morris Harris would have been acquitted at trial if the State had not induced his plea by promising limited incarceration. Surely it is possible that the prosecutor, defense counsel and Morris Harris all thought that “sex offender probation” offered the best chance for his rehabilitation and the public’s safety alike. As far as this record reveals, the supervision and counseling he would have received while on probation (if the State had not dishonored the plea agreement) would have led to an eventual assessment by the multidisciplinary team rendering him ineligible for lifelong incarceration as a “sexually violent predator.”

Commentators report: “At the current time, the most accepted forms of treatment are cognitive behavior therapies within a relapse prevention model, with at times adjunctive use of certain psyeho-pharmacologic[al] approaches.” Judith V. Becker & William D. Murphy, What We Know and Do Not Know About Assessing and Treating Sex Offenders, 4 Psychol. Pub. Pol’y & L. 116, 128 (1998) (citations omitted). “This model also focuses not only on the offender developing internal self-management strategies, but also on the development of external management strategies such as supervision by parole or probation officers, family members', or other designated people in the community.” Id. According to another commentator, the “availability of treatment for sex offenders ... serving probationary periods is crucial to preventing further crimes.” Jean-Peters Baker, Challenging Traditional Notions of Managing Sex Offenders: Prognosis Is Lifetime Management, 66 UMKC L.Rev. 629, 673 (1998). The same source states: “Even though the motivation for treatment is mandatory and forced by the criminal justice system this is not found to be a roadblock for effectively treating offenders.” Id. at 671-72.

Whatever Morris Harris’s motivations were, he was entitled to the benefit of his bargain. See Minor v. United States, 396 U.S. 87, 99, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969) (Douglas, J., dissenting) (“When the present all-powerful, all-pervasive Government moves to curtail the liberty of the person, it too should turn square corners.”); Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir.1970) (“To say to these appellants, ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government”); see also Giglio, 405 U.S. at 154-155, 92 S.Ct. 763.

I join Judge Ervin’s opinion without reservation, including the certification of this important and probably recurring question, so that our supreme court will have an opportunity to address it.

POLSTON, J.

dissenting.

Appellant Morris Harris was found to be a sexually violent predator pursuant to what is commonly known as the Jimmy Ryce Act. See §§ 394.910-394.931, Fla. Stat. (1999)(entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Appellant was committed to the custody of the Department of Children and Family Services for control, care, and treatment until such time as his mental abnormality or personality disorder has so changed that it is safe for him to be at large.

Section 394.912(10) defines “sexually violent predator” as any person who:

(a) Has been convicted of a sexually violent offense; and
(b) Suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.

A “sexually violent offense” is defined to include a lewd, lascivious, or indecent assault or act upon or in the presence of a child in violation of section 800.04. See § 394.912(9)(e), Fla. Stat. (1999).

I. Convictions of Sexually Violent Offense

Appellant was convicted of two sexually violent offenses. Either of these convictions standing alone would satisfy the requirement of section 394.912(10)(a). The majority is reversing Appellant’s commitment under the Jimmy Ryce Act because of a plea agreement in Case No. 95-315, the second of his two convictions.

A. 92-765 CFA

The victim in this case, a shy and soft-spoken 14 year-old girl at the time of the offense, described to the Child Protection Team what the Appellant did:

Mr. Harris is a friend of her mother and initially he called the house looking for her [mother]. The next time, he called again for her mother, but then said he was coming over and wanted to give her something. Mr. Harris went to her grandmother’s next door first and at about 6:00 p.m. came to her house. He entered the house and sat on the long couch next to [her]. She recalled she wore a “pull-over shirt and a skirt.” She was sitting forward on the couch and Mr. Harris reached up her shirt, unfastened her bra and touched her breasts. [The victim] told him to stop and he replied, “Why, you a virgin?” He then put his hand “down in my skirt” and touched her vagina outside her panties. [The victim’s] cousin [ ] came over to use the telephone and Mr. Harris got up, leaving shortly afterwards. On one occasion, Mr. Harris called [the victim] and she hung up on him. He called back and stated, “Bitch, don’t you hang up on me. Don’t you know I’ll shoot you if you ever hang up on me again.?”
[The victim] reported that “two Friday’s ago,” Mr. Harris arrived at approximately 7:00 p.m. accompanied by a “lady” who remained in the white meat truck while he came in the house. [The victim] described the lady as having short hair and dark skin; Mr. Harris told her it was someone he worked with. Mr. Harris “put me in my Momma’s room and pulled my clothes off.” She recalled that she wore black shorts and a multi-colored shirt; he wore blue shorts and a yellow shirt. [The victim] further stated, “He took his private out .... pulled his pants down half way and put it in me.” She made him take it out by telling him she did not want to get pregnant. Mr. Harris then told her, “I want to do it doggy style.” [The victim] refused. She instructed him to leave, then her brother [ ] arrived. [Her brother] asked Mr. Harris for a cigarette; Mr. Harris left shortly thereafter. [The victim] stated that on the Sunday following this incident, Mr. Harris “said he’d hurt me if I told anyone.”

Appellant pled nolo contendere and was adjudicated guilty of one count of an attempted sexual act with a child under 16 years old in violation of section 800.04(3).

B. 95-315 CFA

Appellant repeatedly sexually abused his girlfriend’s granddaughter when she was 6 to 8 years old. She told the Child Protection Team that Appellant “slammed me down on the bed, he took off his clothes, he took off my clothes, and he stuck his penis in my private.” The victim told Appellant to stop, and he said that he couldn’t stop. She described the Appellant as “hunching” her like grownups do in bed, and described various other incidents with a variety of sexual acts attempted and performed. Appellant threatened to whip her if she told anyone of these incidents.

Appellant was charged with one count of sexual battery on a child under 12, and with one count of lewd, lascivious, or indecent assault on a child under 16 years of age in violation of section 800.04(1). In accordance with his plea agreement, Appellant was adjudicated guilty of the lewd and lascivious charge, and the State nolle prossed the sexual battery charge. The plea agreement also specified that Appellant would be sentenced to a term of 15 years’ imprisonment with a suspended sentence at the end of 7 years, at which time he would be placed on probation with the special condition that he complete a sex offender treatment program.

Appellant satisfied the requirement for a sexually violent offense pursuant to section 394.912(10)(a) with convictions from these two cases. The conviction from Case No. 92-765, standing alone without the issue of enforcing the plea agreement in Case No. 95-315, is sufficient to satisfy section 394.912(10)(a).

II. Mental Abnormality or Personality Disorder

The State presented unrebutted expert testimony by Ted Shaw, Ph.D., that Appellant could be diagnosed with “Paraphelia NOS and Personality Disorder NOS.” Dr. Shaw considered Appellant to be “a significant risk to the community.” The State also presented unrebutted expert testimony by Alan J. Waldman, M.D., that Appellant has Pedophilia, Sexually Attractive to Females, Nonexclusive Type:

I opine with reasonable medical certainty that Morris Harris is a Sexually Violent Predator as defined by the Jimmy Ryce Act [citation omitted]. Mr. Harris has continued inappropriate sexual drives that include early adolescent females and has displayed pedophilic attraction and behavior of a preplanned variety. There is no indication that he has reformed or learned anything about the control, or the abnormality of his drives. For the reasons stated, he is an unacceptable risk to reoffend. I recommend the Civil Commitment of Morris Harris under the Jimmy Ryce Act for treatment of his Pedophilia and Polysub-stance abuse and dependence.

Therefore, the trial court properly found, pursuant to section 394.912(10)(b), that Appellant suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.

III. Motion to Enforce Plea Agreement and Sentence

Appellant raises various legal arguments on appeal, but because the majority reversed on the trial court’s denial of Appellant’s Motion to Enforce Plea Agreement and Sentence, the other issues are not reached. I respectfully dissent.

Appellant argues that he should be released after 7 years of prison and placed on probation in accordance with the terms of his plea agreement in Case No. 95-315 CFA. The trial court properly ruled that Appellant’s criminal plea agreement has not been violated because the Jimmy Ryce Act is a civil commitment rather than a criminal action, and the civil commitment is a collateral consequence of the prior crime. Moreover, compliance with the Jimmy Ryce Act is not a violation of the plea agreement because the Act was unknown to the parties at the time the plea agreement was entered. The trial court also ruled that Appellant’s probation term began at the end of his 7-year prison term, notwithstanding his civil commitment.

Appellant’s commitment pursuant to the Jimmy Ryce Act is civil rather than criminal. The Florida Legislature expressly stated its intent that the Act be considered civil in nature, and Florida courts have construed it in that manner. See § 394.910, Fla. Stat. (1999); see, e.g., Westerheide v. State, 767 So.2d 637, 644-46 (Fla. 5th DCA 2000)(upholding constitutionality of the Act, citing Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)), review granted, 786 So.2d 1192 (Fla.2001). Therefore, Appellant’s plea agreement in Case No. 95-315 is in a criminal proceeding separate from the civil commitment under the Act. Because these are separate events, the plea agreement has not been breached by the civil commitment.

As the trial court reasoned, just as a defendant could be subject to a Baker Act commitment although scheduled for probation pursuant to a plea agreement, in the same manner Appellant is affected by a separate proceeding that is a different event. See Murray v. Kearney, 770 So.2d 273 (Fla. 4th DCA 2000), review granted, 791 So.2d 1100 (Fla.2001).

In Murray, the Petitioner moved for specific performance of the plea agreement, asking that he be released from his commitment under the Jimmy Ryce Act to serve his agreed probation. The court ruled:

Petitioner challenges the order of commitment as illegal, because he claims that the commitment violates his plea agreement which would have permitted him to be released into the community for probation and completion of a sex offender treatment program. However, the commitment order was not entered in the criminal proceeding, in which the court may consider whether the state violated the plea agreement. Instead, the Department of Children and Families instituted a new civil commitment proceeding, based upon clinical evaluations of petitioner’s present state.
Although we recognize that the petitioner views his continued confinement as part of his incarceration from his plea, the law does not make this legal joinder any more than it would if the petitioner were committed under the Baker Act after his incarceration had been completed and while he was on probation. Moreover, the trial judge considered that petitioner’s probation continued while he was committed under the Involuntary Civil Commitment for Sexually Violent Predators Act. Therefore, the trial judge was well aware that he was dealing with two separate proceedings.

Murray, 770 So.2d at 274-75. The trial court in this case was also well aware that he was dealing with two separate proceedings and properly denied the motion to enforce the plea agreement.

Similarly, the court in Collie v. State, 710 So.2d 1000 (Fla. 2d DCA 1998), held that Collie’s designation as a sexual predator under the Florida Sexual Predator’s Act did not violate his plea agreement. Collie argued that the designation as a sexual predator breached his agreement because it imposed punishment beyond what was contractually agreed to. 710 So.2d at 1008. Noting that the sexual predator designation was a collateral consequence of the guilty plea, the court held that Collie’s plea agreement was not violated by his subsequent designation. Id. The court further supported its ruling that there was no breach of contract on the basis that the sexual predator designation is not a form of punishment, and concluded that “the Act should apply regardless of whether the offender was convicted after trial or through a plea bargain.” Id.

As in Collie, Appellant’s commitment under the Jimmy Ryce Act is a collateral consequence of his plea agreement, and commitment under the Act is not a form of punishment. Therefore, Appellant’s plea agreement was not breached by the State.

Moreover, the trial court properly noted that the State did not breach the plea agreement by committing Appellant under the Jimmy Ryce Act because the Act did not exist at the time the agreement was made. In Acosta v. State, 784 So.2d 1137, 1138 (Fla. 3d DCA 2000) (Ramirez, J., concurring), Acosta filed a motion to enforce his plea agreement that was denied by the trial court on the basis that his commitment pursuant to the Jimmy Ryce Act was a civil action rather than a criminal action. Judge Ramirez noted that Acosta’s plea agreement was made prior to the Jimmy Ryce Act, therefore the parties could not have contemplated or negotiated his post-incarceration civil commitment, and Acosta “cannot rely on a contingency that neither party contemplated at the time of execution of their agreement.” Id.

The trial court further noted that Appellant cited Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) and other cases, in support of his motion to enforce the plea agreement, that involved “situations in which the government had knowledge of certain circumstances at the time of the plea, agreed to a plea, and later reneged on the agreement.” I agree with the trial court that the facts do not support such an argument in this case, and that Santobello, cited by the majority, does not apply.

Appellant’s argument for equitable es-toppel should also be rejected for the same reasons described above. The plea agreement in the criminal proceeding is a separate event from the civil commitment that was not contemplated by the parties. Therefore, Appellant could not have relied on any representations by the State to his detriment regarding civil commitment, and the State has not changed its position from the plea agreement.

Accordingly, I would affirm the trial court’s denial of Appellant’s Motion to Enforce Plea Agreement and Sentence.

ON MOTIONS FOR REHEARING AND REHEARING EN ■ BANC

ERVIN, J.

At the oral argument in this case, counsel for the state represented that appellant is “not on probation” while civilly committed, and that if and when he successfully completes treatment and is released, he will begin serving the probationary portion of his split sentence. We noted the concession that appellant is not on probation in footnote 4 of the original opinion.

In its motion for rehearing and rehearing en banc, the state now argues that its concession “was ill-advised and in error.” The motion states that the Department of Corrections’ (DOC’s) Internet website shows that appellant is currently on active probation, as illustrated by the offender search printout attached to the motion. Counsel argues that the trial court’s finding that appellant is actually serving probation while committed under the Jimmy Ryce Act was correct, and the court’s conclusion that the state breached the plea agreement to allow appellant to serve probation after incarceration is an incorrect statement of the law. The state asserts that appellant is, in fact, receiving sexual offender treatment during the probationary period of his sentence and that it has honored the plea agreement.

We do not agree with the state’s belated argument that appellant is currently on active probation while confined under the Ryce Act to the custody of the Department of Children and Family Services (DCFS). Appellant’s sentence provided that he would be placed on probation “under supervision of the Department of Corrections.” Section 948.001(5), Florida Statutes (1995), defines probation as “a form of community supervision requiring specified contacts with parole and probation officers and other terms and conditions as provided in s. 948.03.” Subsection 948.03(4), Florida Statutes (1995), permits out-patient treatment for sex offenders, but appellant clearly is not receiving “out-patient treatment.” Subsection 948.03(7) does permit residential treatment, and section 948.01(8), Florida Statutes (1995), refers to probationary residential treatment under the jurisdiction of DOC or the Department of Health and Rehabilitative Services (now the DCFS), but neither appellant’s sentence nor the order setting forth the original terms and conditions of probation imposed residential sex-offender treatment with the DCFS as a condition of his probation.

We further note that the Ryce Act specifically states that those committed thereunder shall be “committed to the custody of the Department of Children and Family Services for control, care, and treatment[J” § 394.917(2), Fla. Stat. (1999). Thus, under the statutory definition of probation and its long-established meaning, as understood by layman and lawyer alike, including the assistant attorney general during oral argument in the present case, it cannot be said that appellant is on active probation while committed under the Ryce Act to the custody and control of the DCFS.

Even if it could be said that appellant is currently on active probation while in the custody of DCFS, this would raise a double jeopardy issue, because of the change in probationary conditions his internment represents. As explained in Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994), the double jeopardy provisions of the United States and Florida Constitutions protect individuals from multiple punishments arising from enhancement of the conditions of probation, absent proof of grounds for revocation. Here, the order establishing the terms and conditions of probation provided for sex-offender treatment, but not for residential sex-offender treatment. Thus, if appellant were considered to be on active probation while committed to the care and custody of DCFS, the terms of his probation have been improperly enhanced from nonresidential to residential sex-offender treatment without a violation of probation. Id. See also Schutte v. State, 824 So.2d 308 (Fla. 1st DCA 2002) (reversing amended probation order entered more than 60 days after the initial probation order, because the amended order imposed additional statutorily mandated conditions for sex offenders).

We deny the motions for rehearing and rehearing en banc on the above issue for the reasons stated. We deny the motions on the remaining points, because they are not matters this court has overlooked or misapprehended.

This court certifies these additional questions to the Florida Supreme Court as matters of great public importance:

IS A PLEA AGREEMENT FOR PRISON TIME FOLLOWED BY PROBATION VIOLATED WHEN THE STATE LATER INITIATES DISCRETIONARY CIVIL COMMITMENT PROCEEDINGS UNDER THE JIMMY RYCE ACT (PART V OF CHAPTER 394, FLORIDA STATUTES)?

IN THE CIRCUMSTANCES DESCRIBED IN THE FIRST QUESTION, IS THE STATE BARRED BY EQUITABLE ESTOPPEL FROM SEEKING CIVIL COMMITMENT?

BENTON, J., CONCURS; POLSTON, J., DISSENTS WITH OPINION.

POLSTON, J.,

dissenting.

As indicated in the court’s earlier opinion, the trial court found that appellant was serving probation. Appellant raised no issue on appeal concerning this ruling by the trial court. Therefore any issue regarding whether appellant is currently serving probation was waived and is not before the court. See McDonald v. Pickens, 544 So.2d 261, 264 (Fla. 1st DCA 1989)(ruling that an argument not included in appellant’s brief is not cognizable on appeal); Pagan v. State, 830 So.2d 792, 810-11 (Fla.2002)(ruling that arguments of error before the reviewing court must be made with specificity or they will be deemed waived); Florida Emergency Physicians-Kang and Associates, M.D., P.A. v. Parker, 800 So.2d 631, 636 (Fla. 5th DCA 2001)(stating that the reviewing court does not address issues not clearly set out in the issues on appeal).

Because appellant did not challenge the trial court’s ruling that appellant was serving probation, appellee was understandably not prepared at oral argument to address appellant’s probation status or whether appellant could legally serve probation while committed under the Jimmy Ryce Act. The State’s motion for rehearing indicates that to the extent the court considered its oral argument as a concession on appellant’s probation status, the concession was in error, and advised the court that appellant is currently on active probation. The majority states that it does not agree “with the state’s belated argument that appellant is currently on active probation,” and concludes that appellant is not on probation. The appellant, not the State, had the burden of timely raising this issue but failed to do so and thereby waived it. I cannot reach the merits of the majority’s conclusion that appellant is not on probation because it was determined notwithstanding the lack of briefing on this issue by the parties and without record support.

The double jeopardy issue raised by the court was not argued by appellant and is wrong. See Kansas v. Hendricks, 521 U.S. 346, 369, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)(rejecting double jeopardy argument because the Kansas Sexually Violent Predator Act does not establish criminal proceedings and is not.punitive).

I respectfully dissent.

      . This is appellant’s second appearance before this court in case number 00-3775. In Harris v. State, 766 So.2d 1239 (Fla. 1st DCA 2000), Harris sought common law certiorari review of an order denying his motion to dismiss the state’s petition to commit him as a sexually violent predator on the ground, among other things, that the proceedings violated the terms of his prior plea agreement. The court denied the petition without prejudice to Harris’s right to raise (he issue in an appeal from the final commitment order, which has now been entered.

      . This offense is a second-degree felony, a violation of section 800.04(1), Florida Statutes (1995).

      . The Act became effective as of January 1, 1999. See Ch. 98-64, § 24, at 455, Laws of Fla.

      . Because the state essentially conceded during oral argument that the last finding was incorrect, in that it acknowledges that appellant's probationary term will not commence until appellant is released from confinement as a sexually violent predator, we will not further address this finding in our opinion.

      . For the same reason, a number of out-of-state cases relied upon by the state for affir-mance are similarly distinguishable. See Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779 (Ct.App.1999); In re Hay, 263 Kan. 822, 953 P.2d 666 (1998); In re Ashman, 608 N.W.2d 853 (Minn.2000); State v. Zanelli, 212 Wis.2d 358, 569 N.W.2d 301 (Ct.App.1997).

      . The Fourth District has stated that "[t]he determination of whether a consequence of a plea is direct or collateral 'turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" Pearman v. State, 764 So.2d 739, 741 (Fla. 4th DCA 2000) (quoting Zambuto v. State, 413 So.2d 461 (Fla. 4th DCA 1982)).

      . See In re Bailey, 317 Ill.App.3d 1072, 251 Ill.Dec. 575, 740 N.E.2d 1146, 1153 (2000); In re Kunshier, 521 N.W.2d 880, 885-86 (Minn.Ct.App.1994); In re Blodgett, 490 N.W.2d 638, 647 (Minn.Ct.App.1992); In re Detention of Campbell, 139 Wash.2d 341, 986 P.2d 771, 780-81 (1999) (en banc), cert. denied, 531 U.S. 1125, 121 S.Ct. 880, 148 L.Ed.2d 789 (2001).

      . Only "one arm” is involved in the present case, the state attorney's office. The very governmental entity that entered into the written agreement that induced the defendant to accept incarceration for seven years has reneged on that part of the same agreement that would allow him to be admitted to probation now that the seven years have elapsed. The state attorney's office filed a petition which has the effect of rendering the plea agreement nugatory, and augurs a day when the government’s solemn word signifies nothing.

      . The amendments took effect on May 26, 1999. See Ch. 99-222, § 29, at 1389, Laws of Fla.

      . I do not understand the State to have conceded anything contrary during oral argument as the majority states. Appellant raises no issue on appeal regarding this ruling.

      . See Pearman v. State, 764 So.2d 739, 741 (Fla. 4th DCA 2000)(collecting cases; “We agree with the state that the effects of the Jimmy Ryce Act on appellant are collateral consequences of the plea.”); Watrous v. State, 793 So.2d 6, 10 (Fla. 2d DCA 2001)(conclud-ing that commitment under the Jimmy Ryce Act is a collateral consequence of the plea; collecting cases from other state and federal courts reaching the same conclusion regarding similar statutes allowing for the civil commitment of sexual predators).

      . See Westerheide, 767 So.2d at 645-48 (holding that the Jimmy Ryce Act does not violate the constitutional prohibitions against ex post facto laws, citing Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)).

      . We disagree with Judge Polston’s conclusion that appellant did not raise the issue of whether he was on probation while civilly committed. Appellant argued in Case No. 1D00-4749 that the state’s filing of a petition for civil commitment under the Jimmy Ryce Act violated the terms of the plea agreement, wherein the state agreed to a split sentence consisting of seven years of incarceration followed by eight years of probation. He clearly argued below in support of his motion to enforce the plea agreement that civil commitment is not probation, i.e., a form of community supervision, and that argument is subsumed in his argument on appeal wherein he states that the plea agreement provided that he would be on probation after incarceration and that civil commitment breached that plea agreement. To adopt Judge Polston's position, one must overlook or ignore the statutory definition of probation.


source: Caselaw Access Project

author: FLETCHER, Judge.

license: Public Domain

text:
    Ileana MORALES, Appellant/Cross-Appellee, v. Gilda ROSENBERG, Appellee/Cross-Appellant.
    No. 3D03-41.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing and Rehearing En Banc Denied Aug. 11, 2004.

      Linda L. Carroll, Miami, for appellant/cross-appellee.
    Timothy H. Crutchfield, Miami, for ap-pellee/cross-appellant.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   FLETCHER, Judge.

Ileana Morales [Morales] seeks to reverse the trial court’s final judgment awarding both trial and appellate level attorney’s fees and costs to Gilda Rosenberg [Rosenberg]. We reverse the trial court’s order awarding Rosenberg attorney’s fees, but only as to the trial level costs and fees. We affirm the trial court’s order as it applies to the determination and award of appellate costs and fees dating from the lower court’s Final Judgment rendered on June 10,1999.

The parties have been before this court several times. A recap of the facts is necessary, however, to enlighten the following opinion. In 1998, Morales filed a Petition of Dissolution of Gilly Vending, Inc., a corporation in which she and Rosenberg owned equal shares. Rosenberg filed a Notice of Election to Purchase Shares. After the parties failed to reach an agreement on the value of Morales’ shares, it became the trial court’s duty to value those shares. Instead, the court referred the evidentiary hearings concerning valuation to the special master it had appointed to deal with discovery disputes. Although Rosenberg’s counsel had previously consented to the special master overseeing discovery, he objected to the special master determining the value of Morales’ shares. The hearings took place, and a final judgment determining fair value of Gilly Vending was rendered on June 10, 1999, over Rosenberg’s continued objections. Prior to entry of judgment, Rosenberg’s counsel made an ore tenus request for attorneys fees pursuant to 57.105, Florida Statutes, which the trial court denied.

Rosenberg appealed, requesting trial fees and fees paid to the special master, pursuant to section 57.105, and appellate level fees pursuant to Florida Rules of Appellate Procedure 9.410. The District Court of Appeal affirmed denial of Rosenberg’s ore terms motion for sanctions under section 57.105 but reversed the final judgment, concluding that the trial court had erred as a matter of law when it referred the valuation matter to the special master without Rosenberg’s consent. Rosenberg v. Morales, 804 So.2d 622 (Fla. 3d DCA 2002)(Case No. 00-2021). By separate order the district court granted Rosenberg’s motion for fees and costs and remanded to the trial court to fix the amount [Order I, February 6, 2002],

After the mandate issued, Morales sought to maintain the supersedeas bond. Rosenberg opposed the motion, and the trial court ultimately ordered the bond released, but stayed the order pending appellate review. Morales appealed and moved to extend the stay. Rosenberg opposed the motion, and included a request to assess sanctions against Morales pursuant to section 57.105, Florida Statutes, and Fla. R.App. P. 9.410. This court denied the motion to extend the stay, and Morales voluntarily dismissed the appeal. Morales v. Rosenberg, 825 So.2d 397 (Fla. 3d DCA 2002)(Table). This court then ordered Morales to respond to Rosenberg’s motion to assess 57.105 fees and sanctions. Morales responded, and Rosenberg replied with an amended request to assess sanctions jointly and severally against Morales and her counsel pursuant to Florida Rule of Appellate Procedure 9.410 solely, and not pursuant to section 57.105, Florida Statutes. This court granted the amended motion to assess fees and sanctions [Order II, August 28, 2002].

The record facts leading up to the district court’s issuance of Orders I and II reveals that section 57.105 sanctions were not available [Order I] and that the request for section 57.105 sanctions was withdrawn [Order II], The only issue left for this court to consider was Rosenberg’s request for sanctions and fees pursuant to Florida Rule of Appellate Procedure 9.410. Although this court has broad authority under rule 9.410 to determine sanctions, the scope of its authority under that rule is limited solely to appellate matters. See Fla. R.App. P. 9.010. The appellate court’s response to Rosenberg’s motions was in direct response to, and constrained by, the relief sought, which was assessment of costs and fees under rule 9.410, i.e., appellate costs and fees. Hence, this court in rendering Orders I and II granting Rosenberg’s motions for attorney’s fees and costs pursuant to rule 9.410 could not have been referring to trial level costs and fees, and the trial court was incorrect to so broadly apply the orders to include them.

We thus reverse the.|inal judgment only as to the award of Rosenberg’s trial level costs and fees dating from the erroneous June 10,1999 final judgment.

Affirmed in part, reversed in part; the appellee’s cross appeal is denied.

      . Rosenberg withdrew her motion to assess sanctions under 57.105 because of changes in the notice requirement of that statute.

      . Rule 9.010 defines the scope of the Florida Rules of Appellate Procedure, and states that "[T]hese rules ... shall govern all proceedings ... in the supreme court, the district courts of appeal, and the circuit courts in the exercise of the jurisdiction prescribed by rule 9.030(c)....”


author: SHEPHERD, J. COPE, J.

text:
    ACTION LABOR OF FLORIDA, INC., Appellant v. LIBERTY MUTUAL INSURANCE CO., et al., Appellees.
    No. 3D03-1408.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing and Rehearing En Banc Denied Aug. 11, 2004.
    Frederick L. Kretschmer, Jr., and Daniel G. Tadrowski, Moss, Henderson, Blan-ton, Lanier, Kretschmer & Murphy, Vero Beach, for appellant.
    Bruce Charles King, Maria Charles McGuinness and Allison Oasis Kahn, Miami, Carlton Fields, for appellees.
    Before COPE, GODERICH and SHEPHERD, JJ.
   SHEPHERD, J.

Action Labor of Florida appeals from a final summary judgment in favor of Liberty Mutual Insurance Company. We affirm.

In September, 1998, Philips South Beach, LLC (“Philips”), entered into a construction contract with Mursten Construction Group, Inc. (“Mursten”), as general contractor for the Shore Club Hotel. Liberty Mutual Insurance Company (“Liberty”) issued a payment bond pursuant to §-713.23, Fla. Stat. (1998), on behalf of Mursten and for the benefit of Philips. In July, 1999, Mursten entered into an agreement with Action Labor of Florida, Inc. (“Action Labor”), a temporary help firm, to provide laborers for the hotel project. Pursuant to this agreement, Action Labor provided laborers as needed from July of 1999 through August of 2001.

In December, 2001, Action Labor filed suit against Mursten and Liberty, claiming $94,165.65 was due and owing under the agreement. Liberty moved for summary judgment, arguing that Action Labor was not a proper claimant pursuant to the 1998 version of Chapter 713. The trial court agreed and entered an order granting Liberty’s motion for summary judgment. For the following reasons, we affirm.

§ 713.06(1), Fla. Stat. (1998), provides:

A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, has a lien on the real property-improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract and for any unpaid finance charges due under the lienor’s contract.

“No person may have a lien under this section except those lienors specified in it, as their designations are defined in § 713.01.” § 713.06(1), Fla. Stat. (1998). Therefore, in order to have a lien under the 1998 version of Chapter 713, a plaintiff must meet the definition of materialman, laborer, subcontractor, or sub-subcontractor as defined in § 713.01. Both parties agree that under these facts, the determining factor is whether a temporary help firm falls within the definition of subcontractor.

§ 713.01(26), Fla. Stat. (1998), defines subcontractor as:

a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor’s contract....

§ 443.101(10)(a)(l), Florida Statutes (1997), defines a temporary help firm as:

a firm that hires its own employees and assigns them to clients to support or supplement the client’s workforce in work situations such as employee absences, temporary skill shortages, seasonal workloads, and special assignments and projects. The term also includes a firm created by an entity licensed under § 125.012(6), which hires employees assigned by a union for the purpose of supplementing or supporting the workforce of the temporary help firm’s clients.

Under these definitions, the term subcontractor does not include a temporary help firm. A temporary help firm is one that assigns its own employees to support or supplement a client’s workforce. Conversely, a subcontractor is contractually obligated to perform a specific part of the contractor’s contract. Thus, a subcontractor might be retained by a contractor to perform specific aspects of a job, such as the structural, electrical, mechanical, or roofing work, while a temporary help firm merely provides additional laborers who are then utilized by a contractor or subcontractor to perform their work on a job. Although this result might seem counterin-tuitive, “the Mechanic’s Lien Law, which is in derogation of the common law, is to be strictly construed.” Fleitas v. Julson, Inc., 580 So.2d 636, 637 (Fla. 3d DCA 1991) (citing Home Electric of Dade County, Inc. v. Gonas, 547 So.2d 109 (Fla.1989)); Hardrives Company v. Tri-County Concrete Products, Inc., 489 So.2d 1211 (Fla. 4th DCA 1986); Sprinkler Fitters v. F.I.T.R. Corporation, 461 So.2d 144 (Fla. 3d DCA 1984); Partin v. Konsler Steel Company, 336 So.2d 684 (Fla. 4th DCA 1976), rev’d on other grounds, Konsler Steel Company v. Partin, 356 So.2d 264 (Fla.1978). See also, § 713.37, Fla. Stat. (1998) (Construction Lien Law, Chapter 713, Part I “shall not be subject to a rule of liberal construction in favor of any person to whom it applies”).

In 2001, the legislature addressed this situation and amended the definition of subcontractor under § 713.01 to include “a temporary help firm as defined in § 443.101.” § 713.01(27), Fla.Stat. (2001). However, this case is controlled by the 1998 version, rather than the 2001 version of Chapter 713.

Accordingly, the order granting final summary judgment in favor of Liberty Mutual Insurance Company is affirmed.

GODERICH, J., concurs.

COPE, J.

(dissenting).

In 1998 the owner entered into a construction contract with the general contractor to build a hotel. The insurer issued a payment bond.

The general contractor entered into an agreement with Action Labor of Florida, Inc., a temporary help firm, to provide laborers for the hotel project. Action Labor’s laborers worked on the project from 1999 through 2001.

Action Labor brought suit against the general contractor, the insurer, and the owner alleging that it was owed $94,165.65 for the labor it had provided. The insurer’s liability arises, if at all, under the Construction Lien Law. See ch. 713, part I, Fla. Stat. (1997).

The question is whether Action Labor qualifies as a subcontractor for purposes of the Construction Lien Law. At the time of contracting, the definition of subcontractor was:

(26) “Subcontractor” means a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor’s contract, including the removal of solid waste from the real property.

§ 713.01(26), Fla. Stat. (Supp.1998) (emphasis added).

In this case Action Labor entered into a contract with the general contractor to supply laborers to the general contractor. The laborers performed part of the contractor’s work under the general contract.

Under the statute, a subcontractor is one who enters into a contract with the contractor (in this case the general contractor) for the performance of any part of that contract. Thus, Action Labor qualifies as a subcontractor under the statute. Earlier cases reaching this conclusion are Runyon Enters., Inc. v. S.T. Wicole Const. Corp. of Florida, Inc., 677 So.2d 909, 910-11 (Fla. 4th DCA 1996), and Hey Kiley Man, Inc. v. Azalea Gardens Apartments, 333 So.2d 48, 49-51 (Fla. 2d DCA 1976). The summary judgment should be reversed.

      . Appellant places primary reliance on Hey Kiley Man, Inc. v. Azalea Gardens Apartments, 333 So.2d 48 (Fla. 2d DCA 1976) for its argument that it is a proper mechanics lien claimant. Appellant's reliance is misplaced. The issue in Hey Kiley Man, Inc. was not the scope of the mechanics lien law, as is the case here, but rather whether the Florida Mechanics Lien Law afforded protection to “a subcontractor several times removed from privity with an owner” under the law as it then existed. Hey Kiley Man, Inc. at 49 (emphasis added).

      . Philips South Beach, LLC.

      . Mursten Construction Group, Inc.

      . Liberty Mutual Insurance Co.


author: PER CURIAM.

text:
    COMPANIA DE SEGUROS CONDOR, S.A., Appellant, v. COPENHAGEN REINSURANCE COMPANY (U.K.) LTD, et al., Appellees.
    No. 3D03-2655.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing and Rehearing En Banc Denied Aug. 11, 2004.

      Horr, Novak & Skipp, P.A., and Patrick E. Novak, and Stephanie H. Wylie, Miami, for appellant.
    Fertig and Gramling, and Darlene M. Lidondici (Fort Lauderdale); Meckler Bul-ger & Tilson, and Michael S. Loeffler and Charlotte S. Kormendy, for appellees.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

We reverse determining the trial court lacked personal jurisdiction over the case. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989); Ganiko v. Ganiko, 826 So.2d 391 (Fla. 1st DCA 2002); Christus St. Joseph’s Health Sys. v. Witt Biomedical Corp., 805 So.2d 1050 (Fla. 5th DCA 2002); Bruzzone Roldos v. Americargo Lines, Inc., 698 So.2d 1368 (Fla. 3d DCA 1997).

Reversed and remanded.


text:
    Daniel MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2298.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing and Rehearing En Banc Denied Aug. 11, 2004.
    Daniel Morgan, in proper person.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, LEVY and GREEN, JJ.
   PER CURIAM.

Daniel Morgan appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

I.

Defendant-appellant Morgan was convicted of federal criminal charges in 2001. In his Rule 3.850 motion he asserts that his federal sentence was enhanced on account of three prior Florida convictions entered in Miami-Dade County circuit court case numbers 94-48779 (“the 1994 case”), 95-11143 (“the 1995 case”), and 97-29490 (“the 1997 case”).

In the 1994 and 1995 cases the defendant alleges that he received affirmative misadvice of his trial counsel. The defendant alleges that his trial counsel told him that if he entered a plea in those cases, the charges would be expunged and the convictions would not be used in the future for any other prosecutions. The defendant contends that this was affirmative misad-vice regarding the future sentence enhancing consequences if he committed a new crime.

The trial court correctly denied relief on this point. This court has held that as a matter of public policy, “[a] defendant is not entitled to relief where he has been given affirmative misadvice regarding the possible sentence-enhancing consequences of a plea in the event that the defendant commits a new crime in the future.” Scott v. State, 813 So.2d 1025, 1026 (Fla. 3d DCA 2002) (citations omitted).

We acknowledge that there is a division of authority on this issue within the Florida district courts of appeal, and that at present, the Fourth District holds that relief is available on this type of postconviction claim. See id. at 1027 (citing Smith v. State, 784 So.2d 460 (Fla. 4th DCA 2000)). Ordinarily this court certifies conflict with the Fourth District in cases that present the issue now before us. Id.

Under the specific facts of this case, however, certification of conflict is not necessary because even under the Fourth District rule, the defendant would not be entitled to relief. That is so because the issue of future enhancement was addressed in his 1997 plea colloquy. In 1997 the defendant entered into a plea bargain whereby he pled guilty to the 1997 case and entered a plea of admission to violation of probation in the 1994 and 1995 cases. The trial judge told the defendant:

THE COURT: You will be adjudicated, which means you will be convicted of all those felonies. So I can tell you down the road, be careful because later on they can try to sentence you as an H.O. So be careful of that; okay?
THE DEFENDANT: Yes, sir.

TR. Nov. 14,1997, at 4. Thus, assuming for purposes of discussion that the defendant received affirmative misadvice of counsel with respect to the 1994 and 1995 cases, he received correct advice from the court in 1997 and the current motion on this point is time-barred.

The defendant’s remaining claims are time-barred and do not amount to newly-discovered evidence.

Affirmed.

       Habitual offender.


author: HAWKES, J.

text:
    J. Antonio ALDRETE, M.D., Appellant, v. DEPARTMENT OF HEALTH BOARD OF MEDICINE, Appellee.
    No. 1D02-4457.
    District Court of Appeal of Florida, First District.
    April 19, 2004.
    Rehearing Denied Aug. 13, 2004.

      John Beranek; Ausley & McMullen, Tallahassee, for Appellant.
    Jennifer E. Fulks & Pamela Page; Dept, of Health, Tallahassee, for Appellee.
   HAWKES, J.

The Department of Health brought a three count administrative complaint against Dr. Antonio Aldrete for events that occurred in the treatment of his patient, J.S. The administrative law judge found Dr. Aldrete violated section 458.331(l)(t), Florida Statutes (1999), count I of the complaint, by failing to practice medicine with the level of care, skill and treatment acceptable for a reasonably prudent physician under similar circumstances. The Board of Medicine adopted this finding. The sanctions imposed on Dr. Aldrete include suspension of his medical license for one year, a $5,000.00 fine, and costs in the amount of $25,427.37.

On appeal, Dr. Aldrete raises five claims of error: (1) no competent, substantial evidence supported the finding that he failed to provide J.S. with the standard of care she was owed; (2) he was found guilty of an uncharged offense; (3) his penalty was increased based on an excluded document related to his medical licensing problems in Ohio; (4) the costs imposed impermissi-bly included attorney fees; and (5) the penalty was too harsh when compared to penalties the Board imposed in cases that, in Dr. Aldrete’s opinion, were more egregious.

We affirm the finding that Dr. Aldrete violated the standard of care as alleged in count I. The Department offered expert testimony that the approximately six hours Dr. Aldrete waited before calling EMS was excessively long. During this period, J.S.’ heart rate vacillated between 39 and 153 beats per minute. Such testimony provided competent, substantial evidence to support this finding, even though Dr. Aldrete presented testimony of three doctors who opined the six hours lapse before calling EMS met the level of care, skill and treatment acceptable by a reasonably prudent physician. The credibility of witnesses and weighing of evidence is left to the ALJ. See Gross v. Dep’t of Health, 819 So.2d 997 (Fla. 5th DCA 2002).

Dr. Aldrete next alleges he was found to have violated the standard of care by leaving J.S. in the care of an unqualified nurse, an uncharged offense. We agree this offense was not charged in the complaint and Dr. Aldrete can not be disciplined on this ground. See Ghani v. Dep’t of Health, 714 So.2d 1113 (Fla. 1st DCA 1998); Maddox v. Dep’t of Prof'l Reg., 592 So.2d 717 (Fla. 1st DCA 1992). Since we do not know whether this offense impacted the sanctions imposed by the Board, we remand. On remand, this offense cannot affect the discipline imposed.

Dr. Aldrete next argues his difficulties with his Ohio medical license adversely impacted the discipline the Board imposed. At the hearing, the Board expressly stated it would not consider the Ohio document when determining an appropriate penalty. Dr. Aldrete’s argument assumes the Board would have imposed a lesser penalty but for the Ohio document. We do not accept the premise that the Board indicated it would not enhance the penalty as a consequence of this document, and then did so, despite its earlier statement. However, on remand the Board may not enhance Dr. Aldrete’s penalty based on the Ohio document.

Next, Dr. Aldrete argues section 455.624(4), Florida Statutes (1999), which permits recovery of “costs relating to investigation and prosecution,” cannot include attorney’s fees. The cost recovery provision of this statute, which contains the phrase “relating to” is clearly more inclusive than language found in other statutes that allow recovery for “costs of’ a successful litigation. However, because Florida has distinguished between “costs” and “fees,” we agree the language does not permit recovery of attorney’s fees. See In re Hapner, 737 So.2d 1075, 1077 (Fla.1999); Amendments to the Fla. Rules of Judicial Admin., 780 So.2d 819, 821 (Fla.2000). Here, it appears attorney’s fees were included in the costs assessed against Dr. Aldrete. On remand, the Board must exclude attorney’s fees when assessing costs.

Finally, Dr. Aldrete argues his penalty is excessive when compared to penalties imposed by the Board in more egregious cases. Penalty imposition is a complex task requiring the ALJ, in making a recommendation, and the Board, in choosing a penalty, to weigh numerous factors. Ultimately, the decision rests within the Board’s sound discretion. See Marrero v. Dep’t of Prof'l Reg., 622 So.2d 1109 (Fla. 1st DCA 1993); Lusskin v. Dep’t of Health, 866 So.2d 733 (Fla. 4th DCA, 2004). We cannot say on appeal that Dr. Aldrete’s penalty was excessive based on the allegation that others, in Dr. Aldrete’s opinion, received more favorable treatment.

We affirm in part, reverse in part, and remand. On remand the Board should discipline Dr. Aldrete without consideration of the uncharged offense or the Ohio document. By this reversal, we do not rule out the Board’s ability, upon proper consideration, to impose the same or similar discipline as before.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

BARFIELD and KAHN, JJ., concur.


author: SHEPHERD, J.

text:
    Sergio Luiz Vergani CARDOSO, Appellant, v. FPB BANK, etc., Appellee.
    No. 3D03-3049.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Rehearing and Rehearing En Banc Denied Aug. 11, 2004.

      Benitez & Associates and Leo Benitez, for appellant.
    Fine & Licitra, LLP, and Edward A. Licitra and Alan S. Fine, Miami, for appel-lee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

We review a non-final order which, relying on the forum non conveniens doctrine, denied Sergio Luis Vergani Cardoso’s (“Cardoso”) motion to dismiss a complaint for collection of a debt guaranteed by him. We affirm.

On or about November 7, 2001, Cardoso, a resident of Miami-Dade County, executed a personal guarantee on a loan made to Stella Barros Turismo, Ltd. (“Stella Bar-ros”) by the plaintiff, FPB Bank (“FPB Bank” or “FPB”) in Brazil. Cardoso is a former shareholder and employee of Stella Barros. Cardoso signed and executed the personal guarantee in Miami-Dade County, where he had been living for some eighteen months. The only two payments made on the loan since its inception were sent to an FPB Bank affiliate in Miami.

A trial court presented with a motion to dismiss on the basis of forum non conveniens engages a four-step analysis, originally set forth in Pain v. United Technologies Corp., 637 F.2d 775 (D.C.Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981), and adopted by the Florida Supreme Court in Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86 (FIa.1996):

(1) As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case.
(2) Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice.
(3) If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum.
(4) If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

Kinney, 674 So.2d at 90.

Cardoso claims that he is excused from satisfying the Kinney requirements because a forum selection clause in the loan documents confines the suit solely to either Antigua, West Indies, where the bank is headquartered, or Sao Paulo, Brazil, where the loan transaction was negotiated and consummated in all respects except for Cardoso’s signature. Cardoso relies on the following language found in the loan documents:

Any legal action or proceeding against Borrower and/or Guarantor with respect to this Agreement, the Note, the Loan and the Guarantee hereunder may be brought in the courts of Antigua, and/or in the Courts of the city of Sao Paulo, state of Sao Paulo, Federative Republic of Brazil, at the sole option of the Lender, and the Borrower and the Guarantor hereby accept and irrevocably submit to the jurisdiction of such courts for the purpose of any such action or proceeding. The Borrower and the Guarantor hereby irrevocably consent to the service of process upon them in such proceedings by mailing copies thereof by registered mail to their address as specified or in any other manner permitted by law. Failure of the Borrower and/or the Guarantor to receive service of process in any such proceeding shall not affect the validity of such service or any judgment based thereon.

(Emphasis added.)

In this posture, Cardoso misreads the loan documents and misapplies Florida law to clauses of this type. Nowhere do the loan documents state that the Bank must proceed in either Antigua or Sao Paulo. An ordinary and customary reading of the clause in question leads to the inescapable conclusion that the forum selection clause on which Cardoso seeks to rely is permissive, not mandatory. A permissive forum selection clause suggests the parties’ consent to a lawsuit in the location(s) mentioned therein, but does not preclude litigation in other locations. See Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273, 274-75 (Fla.1987); Celebrity Cruises, Inc. v. Hitosis, 785 So.2d 521, 522 (Fla. 3d DCA 2000).

Having determined that Cardoso cannot avail himself of the forum selection clause in the loan documents to obtain a dismissal of FPB’s suit on the basis of forum non conveniens, we analyze the Kinney factors as they relate to this case, and likewise conclude that the trial court was correct in denying Cardoso’s motion. We observe at the outset, as has one of our sister courts, “that this case involves the exceptional situation in which the defendant ][has] been sued in [his] own home forum and [has] objected that [his] home forum is inconvenient.” Sanwa Bank, Ltd. v. Kato, 734 So.2d 557, 561 (Fla. 5th DCA 1999). A forum non conveniens argument coming from a party sued where he resides is both “puzzling” and “strange.” Id. (citing Lony v. E.I. DuPont de Nemours & Co., 935 F.2d 604, 608 (3d Cir.1991)). In addition, Cardoso neither filed nor succinctly articulated his defenses to the guarantee claim prior to the hearing on his motion to dismiss. It is therefore hardly surprising that his affidavit in support of his motion was both general and concluso-ry in nature, alleging, for example, that FPB Bank is not from Florida and does not conduct any business in Florida; that all of the documentary evidence is located in Brazil, and is mostly in Portuguese; that the loan transaction was consummated in Brazil and the like, but failing to identify any factual circumstance or even a single witness in Brazil with evidentiary value to Mr. Cardoso’s defense of the claim.

It is axiomatic that Cardoso, as the movant below, has the burden of persuasion of each prong of the forum non conve-niens analysis. Woods v. Nova Companies Belize Ltd., 739 So.2d 617, 621 (Fla. 4th DCA 1999), rev. denied, 766 So.2d 222 (Fla.2000); Carenza v. Sun Intern. Hotels, Ltd., 699 So.2d 830, 832 (Fla. 4th DCA 1997). Moreover, this Court will not disturb the trial court’s decision on a motion to dismiss on the ground of forum non conveniens absent abuse of discretion. Fla. R. Civ. P. 1.061(a); Bacardi v. Lindzon, 728 So.2d 309, 312 (Fla. 3d DCA 1999); Ira Mex, Inc. v. Southeastern Interior Constr., Inc., 777 So.2d 1107, 1108 (Fla. 4th DCA 2001).

As to the first prong of the Kinney test, the trial court concluded that Cardoso did not meet his burden of persuasion that Brazil was both an available and adequate forum for resolution of this dispute. Although not the only way to satisfy this prong, a movant may submit testimony or an affidavit from a legal expert who either practices in the proposed alternate forum or who is otherwise familiar with the forum as an expert in that jurisdiction’s law. E.g. Ciba-Geigy Ltd., BASF A.G. v. Fish Peddler, Inc., 691 So.2d 1111, 1120-21 (Fla. 4th DCA 1997). Cardoso did neither here, and thus we are unable to say that the trial court abused its discretion in finding that Cardoso failed to meet his obligation under this prong.

Although the trial court could have stopped there, it also concluded that Car-doso failed to meet prong two of the Kinney test. In Kinney, the Florida Supreme Court, hearkening to the federal precedent from which Kinney itself emanates, stated that “[i]mportant considerations [in examining prong two] are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Kinney, 674 So.2d at 89. The generalized affidavit filed by Cardoso in this matter falls far short of the quality and quantity of proof necessary to meet the “private interests” prong of Kinney. See Kinney, 674 So.2d at 91 (private interests presuppose demonstrable level of adequate access to evidence, enforceability of judgments, presence of witnesses, and practicalities in the proposed favored forum). We therefore likewise conclude that the trial court did not abuse its discretion in denying Cardo-so’s motion on this ground.

For the foregoing reasons, we affirm the decision of the trial court.

      . Cardoso makes much of the apparent fact that the transaction guaranteed by him was a renewal of one or more previous loans or a line of credit between the lender and borrower. We consider this to be irrelevant for our purposes.

      . We similarly dispose of Cardoso’s eleventh hour reliance at the evidentiary hearing on a purported additional forum selection clause in what the Bank's counsel conceded was a "separate but related” obligation. The clause clearly states that it applies only to "any issue arising from this agreement” referring to the belatedly submitted agreement.


text:
    The CENTURY SURETY COMPANY, Appellant, v. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 3D03-2336.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Rehearing and Rehearing En Banc Denied Aug. 11, 2004.
    Hicks & Rneale, and James H. Wyman, for appellant.
    Rocke, McLean & Sbar, and Jodi L. Corrigan, and Robert Rocke, for appellee.
    Before SHEVIN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984)(res judicata bars any action where the action raises matters that were previously litigated and determined in a prior action). See also ICC Chem. Corp. v. Freeman, 640 So.2d 92, 93 (Fla. 3d DCA 1994)(“Res judicata applies to all matters actually raised and determined, as well as to all other matters which could properly have been raised and determined in the prior action, whether they were or not”).


text:
    Yileymi SUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2941.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Rehearing and Rehearing En Banc Denied Aug. 11, 2004.

      Paul Morris, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Yileymi Suarez appeals her judgment of conviction and sentence on the grounds that the trial court improperly excluded essential defense testimony on hearsay grounds and that this error was not harmless. We affirm because the relevant testimony was properly excluded at trial, and any error in the exclusion of the evidence was harmless.

Suarez was convicted and sentenced following jury trial based on a tragic vehicular collision that led the State of Florida to charge Suarez with two counts of vehicular homicide for which she is now to serve a thirty-year term of imprisonment. The evidence at trial established that on January ■ 7, 2001 at 3:00 a.m., Suarez’s Ford Expedition collided with a Honda Accord at an intersection in Miami Dade County and that the collision resulted in the death of the Honda’s driver and passenger. The trial testimony included two eye-witnesses that recalled having seen Suarez speeding toward the intersection just prior to the collision and making no attempt to stop at the light that was red for Suarez’s vehicle.

At the heart of Suarez’s grounds for reversal in this appeal lies the defense’s proffered statements of witness Janina Goenaga who had been with the Honda’s driver and passenger minutes prior to the subject collision. Goenaga had heard the passenger tell the driver that the passenger wanted to make it home before 3:00 a.m. because of a curfew restriction, to which the driver responded “alright, let’s go home then.”

Suarez argued at trial that the proffered statements of both the Honda’s driver and passenger about the 3:00 a.m. curfew were not offered for their truth and were admissible under the state of mind exception to the hearsay rule. Suarez argued that the proffered statements could have established before the jury that the driver and passenger were pressed to meet the passenger’s curfew, and thus the Honda’s driver may have run the red light located at the intersection where the collision occurred. Suarez now contends that the proffered statements of the passenger and driver were admissible as non-hearsay because they were not offered for their truth, or in the alternative, that the statements were admissible under the state of mind exception to the hearsay rule.

We first note that whether the statements of the passenger and driver were admissible as non-hearsay is an issue that defense counsel did not raise at trial. He instead argued that the statements were admissible under the state of mind exception to the hearsay rule to establish the state of mind of both the Honda’s driver and passenger. Suarez thus essentially argued that the statements constituted admissible hearsay.

Although the passenger’s statement that she had a 3:00 a.m. curfew was not offered for the truth of the matter asserted and was instead offered to show that the passenger and driver were in a hurry, the proffered statements were inadmissible under the state of mind exception to the hearsay rule because the passenger and driver’s state of mind were not at issue. The proffered statements were thus properly excluded.

The Florida evidence code provides numerous exceptions to the hearsay rule, one of which is the state of mind exception. The state of mind exception found in section 90.803(3)(a), Florida Statutes (2001), provides as follows:

(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.
(b) However, this subsection does not make admissible:
1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will.
2. A statement made under circumstances that indicate its lack of trustworthiness.

This state of mind exception applies only to the declarant’s state of mind, not to someone else’s state of mind. See Van Zant v. State, 372 So.2d 502, 504 (Fla. 1st DCA 1979); Webb v. State, 336 So.2d 416 (Fla. 2d DCA 1976). The state of mind exception is also inapplicable to situations where the declarant’s state of mind is not at issue. See Usher v. State of Florida, 642 So.2d 29, 31 (Fla. 2nd DCA 1994).

When we look at the passenger’s statement about the 3:00 a.m. curfew, the statement does not prove or explain any subsequent act of conduct of the passenger nor is the passenger’s state of mind at all an issue in this case. Even if the passenger’s state of mind were at issue, the statement cannot serve to describe the state of mind of the driver at the time of the collision. When we look at the driver’s statement “alright, let’s go home then,” the statement is not at all indicative of the driver’s state of mind when the collision occurred because the statement does not necessarily show any commitment of the driver to satisfy the passenger’s curfew. The driver’s statement also does not prove or explain any subsequent act of conduct of the driver or that the driver ran the red light on the night of the collision to satisfy the passenger’s curfew. The driver’s state of mind, like the passenger’s state of mind, is not an issue in the case.

Any error in the exclusion of the relevant testimony was nonetheless harmless in light of all of the reliable evidence introduced at trial. We therefore find no abuse of discretion in the trial court’s ruling, see Ray v. State, 755 So.2d 604, 610 (Fla.2000), and affirm.


text:
    Fermin TORRES, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D03-3336.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Rehearing Dismissed Aug. 11, 2004.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for respondent.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Fermin Torres has filed a timely petition in this court alleging ineffective assistance of appellate counsel. See Fla. R.App. P. 9.141(c). The State has properly conceded that the petition has merit. We therefore remand for a new sentencing hearing.

Defendant-petitioner Torres was convicted of second degree murder with a firearm, and unlawful possession of a firearm while committing a felony. The offense date was April 17, 1998. The defendant was sentenced to life in prison on second degree murder, and sentence was suspended on the firearm charge.

The defendant argues that under the applicable sentencing guidelines score-sheet, life imprisonment was above the guidelines for the defendant’s crime, absent a departure. In the defendant’s case, the life sentence was pronounced but no departure reasons were stated.

Based on the defendant’s crime date, the 1997 version of the sentencing guidelines is applicable. Under those guidelines, “If the total sentence points are equal to or greater than 363, the court may sentence the offender to life imprisonment.” Id. § 921.0014(2). Under the scoresheet, the defendant’s score was 361.4 points. Thus, the guidelines range for the defendant did not include the life sentence.

We surmise that by the time the defendant was tried in 2001, the 1998 criminal punishment code had gone into effect. See §§ 921.002-.00265, Fla. Stat. (Supp. 1998). Under that version of the guidelines, the guidelines score provides a sentencing floor, but the court can impose any sentence up to the legal maximum. In this case the court sentenced the defendant to the legal maximum. Apparently the parties and the court assumed that the 1998 version of the guidelines was applicable to the defendant’s case, but it was not. Since this error should have been detected and addressed by the defendant’s appellate counsel, see generally Fla. R.Crím. P. 3.800(b), we conclude that the defendant’s claim is well taken and he is entitled to relief.

We therefore reverse the defendant’s sentencing order and remand for resen-tencing. Since the trial court was not aware that it was imposing a departure sentence in the defendant’s case, the trial court may consider a departure sentence if there are grounds to do so. See State v. Betancourt, 552 So.2d 1107 (Fla.1989).

We reject the defendant’s claim of scoring error on the sentencing guidelines scoresheet. The defendant maintains that his conviction for second degree murder was enhanced from a first degree felony punishable by life imprisonment, see § 782.04(2), Fla. Stat. (1997), to a life felony on account of the use of a firearm. See id. § 775.087(l)(a). On that premise, he argues that his separate conviction for possession of a firearm while committing a felony must be vacated. See Cleveland v. State, 587 So.2d 1145 (Fla.1991); Grene v. State, 702 So.2d 510, 511 (Fla. 3d DCA 1997) (en banc).

The defendant’s premise, however, is incorrect. Both on the judgment and in the trial court’s oral pronouncement, the offense of second degree murder was classified as a first degree felony punishable by life imprisonment, and was not enhanced to a life felony. Thus a separate conviction for possession of a firearm while committing a felony was permissible.

Petition granted; remanded for a new sentencing hearing.


text:
    Fred B. FLEMING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1911.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.

      Fred B. Fleming, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DISMISSED. Logan v. State, 846 So.2d 472 (Fla.2003).

WOLF, C.J., KAHN and LEWIS, JJ., concur.


text:
    Benjamin F. MONTGOMERY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D04-2886.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    Benjamin F. Montgomery, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

Benjamin F. Montgomery seeks a belated appeal from an order of the Circuit Court for Leon County which denied his petition for writ of mandamus. According to petitioner, he was not aware that the circuit court had issued the order until after the time for appealing had passed.

Petitioner has sought the wrong remedy. Accordingly, we deny the petition without prejudice to his right to seek relief in the circuit court. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

PETITION DENIED.

WOLF, C.J., KAHN and LEWIS, JJ., concur.


text:
    Nelson PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2097.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See K.E.A v. State, 802 So.2d 410 (Fla. 3d DCA 2001).


text:
    Willie ROLLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2116.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Affirmed. See De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995).


text:
    R.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2464.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E., Hantman, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

R.T. appeals a determination that he committed the offense of burglary, after which the trial court withheld adjudication. We conclude that the evidence was legally sufficient. See Diaz v. State, 845 So.2d 336 (Fla. 3d DCA 2003); Lopez v. State, 811 So.2d 839 (Fla. 3d DCA 2002); C.C. v. State, 823 So.2d 263 (Fla. 3d DCA 2002); State v. Dawson, 681 So.2d 1206, 1207 n. 1 (Fla. 3d DCA 1996); see also § 810.07(1), Fla. Stat. (2003).

Affirmed.


author: RAMIREZ, J.

text:
    Joseph C. STEPHEN, Appellant, v. Susan A. STEPHEN, etc., Appellees.
    No. 3D03-2220.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Hall, David and Joseph, and Adam S. Hall, Miami, for appellants.
    Susan A. Stephen, in proper person.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

Joseph C. Stephen appeals the trial court’s entry of final judgment in his dissolution of marriage proceeding in which the court awarded permanent alimony. We reverse because the trial court lacked authority to award permanent alimony.

The parties married on October 17, 1991 and separated on or about January 14, 2001. On January 25, 2001, the Wife filed a Petition for Dissolution of Marriage. At the January 28, 2003 trial, the Wife sought the marital home free of all encumbrances, back-alimony payments, and conveyance of the marital home to her. The trial court entered final judgment on February 18, 2003, and dissolved the parties’ marriage. Because the Wife had not requested an award of permanent alimony at the hearing, the trial court did not award permanent alimony, nor did it reserve jurisdiction to award such alimony.

On July 7, 2003, the court conducted a status conference to determine the distribution of the proceeds of the parties’ marital home. In its July 22, 2003 order, the court distributed the funds from the sale of the marital home and granted other relief which has not been challenged. The court also modified the Husband’s temporary alimony downward to $250.00 per month from September 1, 2001 through the entry of the final judgment, and thereafter in the amount of $250.00 per month as permanent alimony with arrears through July 31, 2003 in the amount of $5,750.00, effective August 1, 2003 and until the Wife’s remarriage or death.

Because the final judgment did not provide for any award of alimony nor reserve jurisdiction for that purpose, no jurisdiction exists to subsequently entertain a petition for alimony. Richards v. Richards, 569 So.2d 935 (Fla. 1st DCA 1990); Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980); Poe v. Poe, 263 So.2d 644 (Fla. 3d DCA 1972). We thus reverse the award of permanent alimony.

Reversed and remanded.


text:
    Elier DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-928.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.

      Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson and Douglas J. Glaid, Assistant Attorneys General (Fort Lauder-dale), for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and BARKDULL, Thomas H., JR., Senior Judge.
   PER CURIAM.

Affirmed without prejudice to the defendant’s right to file an appropriate motion pursuant to Fla. R.Crim. P. 3.850.