author: FLETCHER, Judge.

text:
    GENERAL R.A.C., INC., Appellant, v. COLDWELL BANKER RESIDENTIAL REAL ESTATE, INC., Appellee.
    No. 3D04-358.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Arnaldo Velez, Coral Gables, for appellant.
    Mitchell E. Cook and Nathaniel A. Klits-berg (Weston), for appellee.
    Before COPE, FLETCHER and RAMIREZ, JJ.
   FLETCHER, Judge.

General R.A.C., Inc. [General] appeals the trial court’s denial of its motion for final judgment in a garnishment action against Coldwell Banker. We affirm for several reasons.

General holds a judgment against Isaac Elbaz and Virginia Dienemann [sellers], who listed their homestead property for sale, agreeing to pay a 6% commission if a buyer was found. When Coldwell brought its clients to the sale as buyers, it was agreed that Coldwell would serve as escrow agent for the buyers’ $10,000 deposit on the transaction. It was further agreed that Coldwell would share the 6% commission with the sellers’ broker.

General, as judgment creditor of the sellers, served a writ of garnishment upon Coldwell, which answered, acknowledging possession of the deposit money but denying possession of any money owed to the judgment debtor-sellers. The real estate transaction closed on June 20, 2002, at which time Coldwell retained the $10,000 deposit, for which General sought entry of a final judgment. The trial court denied General’s motion, ruling that the deposit held in escrow was not a debt to or property of the judgment debtor-sellers therefore Coldwell was entitled to retain the deposit in payment of its commission on the transaction.

The issue before us is whether the deposit held in escrow by Coldwell in connection with the sale of the property is subject to garnishment. In Estate of Bain v. Bibolini, 737 So.2d 1238 (Fla. 3d DCA 1999), rev. denied, 751 So.2d 1250 (Fla.2000), this court held that “funds held in an escrow account maintained by the seller’s attorney for partial payment of a real estate commission were equitably owned by the broker to whom the commission was due, [and] ... were ... not subject to garnishment by a judgment creditor of the seller.”

General argues, however, that amendments made to section 77.01 and section 77.06(1), Florida Statutes (2002) effectively overruled the decision in Bain. We conclude that the amendments are not relevant to the situation herein. Section 77.01 states, in pertinent part, that a judgment creditor “has a right to a writ of garnishment ... to subject any debt due to defendant by a third person or any debt not evidenced by a negotiable instrument that will become due absolutely through the passage of time only to the defendant.” [e.s.] General argues that the judgment debtor-sellers were absolutely entitled to half the deposit amount according to the terms of the contract in a case of default, and, therefore, the deposit was subject to garnishment. With this we disagree as the funds would not absolutely have become due to the judgment debtor-sellers merely by the passage of time.

Further, in real estate sales transactions the buyers’ deposit is part of the proceeds from which, at time of closing, deductions are made for seller’s expenses, including a broker’s commission, if any. The $10,000 deposit, as part of the proceeds from the sale of the homestead, did not lose its homestead protection, thus is not reachable by General.

We therefore affirm the trial court’s order.

      . As homestead property it is exempt from forced sale. Art. X, § 4, Fla. Const. The proceeds of a voluntary sale of homestead property are also exempt under certain circumstances. See the discussion at 28A Fla. Jur.2d Homestead § 26 (1998).

      . The proceeds remaining in the sellers' possession may lose their homestead protection if not used to purchase a new homestead in a reasonable lime. See Orange Brevard Plumbing & Heating Co. v. LaCroix, 137 So.2d 201 (Fla.1962).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Myron FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-741.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Rehearing Denied July 22, 2004.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Sr. Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

After a jury trial, Myron Franklin was convicted of robbery with a firearm, aggravated fleeing and eluding, and grand theft of a motor vehicle.

Central to the convictions were two statements Franklin gave in the hospital. The Miranda, warnings given in this case were deficient in the same way that the warnings were deficient in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004) and West v. State, 872 So.2d 614, 2004 WL 1335766 (Fla. 4th DCA June 16, 2004), also decided today.

At the suppression hearing, the defense offered ninety rights forms obtained from federal and state law enforcement agencies. Eighty-nine of the ninety forms properly indicated that the suspect could consult with a lawyer during questioning. Only the form utilized in this case omitted that portion of the Miranda warning.

As this court held in West and Roberts, United States Supreme Court cases have established that the omitted portion of the Miranda warning is crucial. For example, in Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989), the Supreme Court specified that “[r]eviewing courts ... need not examine Miranda warnings as if construing a will or defining the terms of an easement.” Id. at 203, 109 S.Ct. 2875. However, the Court noted: “Miranda does not require that attorneys be producible on call, but only that the suspect be informed ... that he has a right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one.” Id. at 204, 109 S.Ct. 2875 (emphasis added).

Furthermore, the error in this case was not harmless. Harmless error exists where the state can prove beyond a reasonable doubt that the error did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986); Sims v. State, 839 So.2d 807, 811 (Fla. 4th DCA 2003). “Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” DiGuilio, 491 So.2d at 1135.

Here, Franklin’s two statements filled in gaps in the state’s case. We cannot say beyond a reasonable doubt that they did not contribute to the verdict.

Reversed and remanded for a new trial.

GUNTHER, POLEN and GROSS, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: TAYLOR, J.

text:
    Stephen G. DAVIS, Stephen G. Davis, Jr. and Beth-Anne Davis, Appellants, v. Raymond REX, Jr., as Trustee of the Virginia F. Davis Irrevocable Trust dated March 4, 1986, Richard A. Popp, as Personal Representative of the Estate of Scott F. Davis, Pittsburg State University Foundation, Inc. and WPBT Communications Foundation, Inc., Appellees.
    No. 4D03-2488.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.

      James G. Pressly, Jr. of Pressly & Pressly, West Palm Beach, for appellants.
    James A. Herb of Herb & Mednick, P.A., Boca Raton, for Appellee-Richard A. Popp, Stephanie L. Carman and Carol A. Licko of Hogan & Hartson, L.L.P., Miami, for Appellee-WPBT Communications Foundation, Inc.
    Vanessa A. Reynolds of Conrad & Scherer, LLP, Fort Lauderdale for Appel-lee-Pittsburg State University Foundation, Inc.
   TAYLOR, J.

Appellants, the son and grandchildren of the decedent, Virginia F. Davis, appeal a summary judgment which construed a trust instrument contrary to their interests and ruled against reformation of the trust. We reverse and remand because material issues of fact remain as to whether reformation is appropriate. Further, we offer guidance as to construction of the trust should the trial court determine on remand that reformation is not warranted.

The record shows that before the decedent created her March 4, 1986 irrevocable trust, she met jointly with the attorney who handled her estate planning, Robert A. Huth, Jr., and her financial advisor, John Ferrera. During that meeting, Huth explained that if one of her two sons died without issue, his interest in the trust would go to the surviving son. Huth claims to have a specific recollection of a conversation with Davis before she executed the trust, wherein they discussed this very point. Both men offered affidavits that it was Davis’s intent that if one son died without issue, his share would pass to the survivor so as to “preserve her assets for her bloodline.”

However, the trust was drafted by Huth, as follows:

7. Upon the death of the survivor of the Grantor and the Grantor’s spouse, WILLIAM L. DAVIS, the remaining principal and undistributed income, of this trust shall be distributed equally to the Grantor’s children, SCOTT F. DAVIS, and STEPHEN G. DAVIS, in the following manner:
(a) One-third as soon as is practicable after the death of the survivor of the Grantor and the Grantor’s spouse;
(b) One-third five years after the distribution described in paragraph 7(a) above;
(c) One-third five years after the distribution described in paragraph 7(b) above;
In the event either of the Grantor’s children have died prior to a time that a distribution of any or all of their share of the Grantor’s trust estate has been made to them, that share shall be distributed to the then living issue of said deceased child, in equal shares, share and share alike per stirpes ... (emphasis added).

The above trust language assumes that the sons 'will have issue and makes no provision for a son dying without issue. Attorney Huth concedes that this was a drafting error.

Virginia Davis died on November 2, 2000, her husband having predeceased her. Shortly thereafter, the first distributions of one-third of their shares was made to the two sons, Stephen and Scott. Scott Davis died on November 19, 2002, without issue, before the second distribution could be made. This created the question of who would receive the second two payments due in 2005 and 2010. Scott left his estate to charity, specifically to appellees, Pittsburg State University Foundation, Inc. and the WPBT Communications Foundation, Inc.

The trustee filed a declaratory action, asserting his doubt as to whether the remaining two installments should be paid to Scott’s estate or to Scott’s surviving brother, Stephen, or his children (if Stephen died before the payment date). Appellants, Stephen Davis and his children, filed an answer asserting that the trust should be construed in Stephen’s favor, and affirmatively stating as a defense, “alternatively, to the extent the Court construes the Trust as written to provide that the Estate of Scott F. Davis receives the undistributed portion, the Trust should be reformed to reflect the true intent of the Grantor.” In addition, appellants filed cross-petitions requesting, inter alia, the court to exercise its equitable authority to reform the Trust pursuant to Florida’s common law and section 737.4031, Florida Statutes.

Appellees answered, asserting that the proper construction of the trust was to require distribution of the final two installments to Scott’s estate and denying that the trust should be reformed. The parties filed cross-motions for summary judgment.

The trial court issued a written order entering summary judgment on behalf of Scott’s estate. It found that the trust was not ambiguous, that Scott’s interest was vested, and that there was no effective gift-over divesting his interest. The court rejected reformation, distinguishing our decision in In re Estate of Robinson, 720 So.2d 540 (Fla. 4th DCA 1998), because “the instant case involves an irrevocable, as opposed to revocable, Trust” and because there was no showing of mistake to support such a reformation.

Summary judgment is permitted only where there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The standard of review is thus de novo. Id.; Spears v. Albertson’s, Inc., 848 So.2d 1176, 1177 (Fla. 1st DCA 2003).

In Robinson, a case of first impression in Florida, we held that a trust with testamentary aspects may be reformed after the death of the settlor for a unilateral drafting mistake so long as reformation is not contrary to the interest of the settlor. 720 So.2d at 543.

The trial court attempted to distinguish Robinson on the ground that it involved a revocable trust, whereas the Davis trust was irrevocable. However, this distinction makes no difference. In fact, as appellants point out, the Robinson trust was also irrevocable at the time of the reformation, given the death of the settlor. We further note that Robinson attached no significance to the fact that the case concerned a revocable trust.

The trial court’s alternative ground for not following Robinson was that this case “does not contain the initial threshold showing of mistake required.” Given the summary judgment record developed in this case, we disagree. Two witnesses, including the drafter of the trust, testified on deposition that a drafting mistake had been made. While the draftsman was somewhat equivocal as to whether what he had written conveyed the gift over to the surviving son in this case, he was very clear that if he did not convey it (clearly he did not, as the trial court found in the balance of its order), then that failure was an omission on his part as draftsman. Under Robinson, the draftsman’s admission was more than sufficient to avoid summary judgment.

The fifth district has adopted the reasoning and holding in Robinson. In Schroeder v. Gebhart, 825 So.2d 442, 445 (Fla. 5th DCA 2002), the court explained:

Allowing a court to reform an inter vivos trust after the death of the settlor is consistent with general equitable principles well-established in Florida and other states. It has long been held that equity will reform an agreement so as to conform to the intent of the parties, when an agreement, which due to a mistake of the drafter, violates or fails to carry out the intention of the parties. Relief is given where, through a mistake of the scrivener, the instrument contains an error or fails to properly define the terms agreed to by the parties.

Id.

Significantly, the fifth district did not mention whether the trust at issue in Schroeder was revocable or irrevocable at inception. Also significant is the testimony of the draftsman, quoted at length in Schroeder, which is very similar to the testimony of the draftsman in this case.

Appellees have suggested that because Robinson was not decided until after the trust was created, that this common law reformation authority does not apply. But, as Schroeder makes clear, Robinson simply applied long-standing common law principles of reformation. Moreover, the trust in Robinson was clearly written prior to that decision, too, yet that did not preclude its application there.

In their briefs, the parties have waged a pitched battle over whether appellants are estopped to deny that summary judgment is appropriate, given their cross-motion for summary judgment. The general rule is that a cross-motion for summary judgment does not estop a party from claiming that a genuine issue of material fact exists. See e.g, Floyd v. Homes Beautiful Constr., 710 So.2d 177, 179, n. 1 (Fla. 1st DCA 1998). The exception to this general rule does create an estoppel where the movant for summary judgment has taken a very specific position that there is no issue of fact as to a particular issue. Id.; see also Bruns v. Bruns, 682 So.2d 1159 (Fla. 4th DCA 1996). Appellants have taken a consistent position that the facts overwhelmingly support their contention that a drafting mistake was made. Thus, any purported estoppel either does not exist or is immaterial to the position taken on this appeal.

We now turn to the question of how the trust language should be construed if, on remand, the trial court does not find reformation to be justified. In this case, the trial court ruled that the only reasonable construction was that Scott’s interest vested on his mother’s death and that the failure of the attempted gift over meant that his estate would be the beneficiary.

The interpretation of a written instrument presents a question of law which is reviewed de novo. See e.g., Limehouse v. Smith, 797 So.2d 15, 17 (Fla. 4th DCA 2001); Gilman Yacht Sales, Inc. v. FMB Invs., Inc., 766 So.2d 294 (Fla. 4th DCA 2000). Looked at literally, the trust language makes the entitlement to each installment contingent upon each son surviving to the date of distribution, which would mean that installments two and three were not vested at the time of Scott’s death. See Travis v. Ashton, 156 Fla. 529, 23 So.2d 725, 726 (1945)(“[I]f the element of futurity is annexed to the substance of the gift, rather than the enjoyment of it, vesting is suspended and the gift is contingent.”); Story v. First Na’l Bank & Trust Co., 115 Fla. 436, 156 So. 101, 105 (1934)(“[E]state is contingent if, in order for it to become a present estate, the fulfillment of some condition precedent other than the determination of the preceding freehold estates is necessary.”); Sorrels v. McNally, 89 Fla. 457, 105 So. 106, 110 (1925)(stating that devise upon attaining certain age is prima facie contingent unless the income from the estate accrues to individual in the meantime). While the law does favor early vesting as a matter of presumption, it is the intent of the testator as expressed in the instrument which controls. See Story, 156 So. at 106-07; Sorrels, 105 So. at 110; In re Estate of Martin, 110 So.2d 421, 423 (Fla. 2d DCA 1959).

The problem here is that the contingent beneficiaries described in the trust instrument (i.e, Scott’s issue) do not exist. Appellants claim that this creates an ambiguity, which can then be resolved in their favor by resort to extrinsic evidence of intent. In support of this position, appellants rely primarily on Wilson v. First Florida Bank, 498 So.2d 1289 (Fla. 2d DCA 1986). There, the testator had set up a fund to provide scholarships to a university, but had not designated the source of the funds. The court looked at this as an ambiguity, which it resolved by concluding that the testator had intended his residuary estate to fund the scholarships. Wilson is itself very close to a reformation case, but still seems far less of an “interpretative reach” than is being advocated by appellants in this point. Appellants essentially request that we make up out of whole cloth a gift-over provision, based solely on extrinsic evidence. Even with the aid of extrinsic evidence, this seems to go beyond what the court should be permitted to do in the guise of “construction.”

Instead, we believe that, absent reformation, the controlling case law, which neither party has advanced, is as stated below:

If the designation of beneficiaries is deemed too indefinite for enforcement of the provisions of a trust, the usual result is that the trust is void and “the designated trustee holds the corpus under a resulting trust in favor of the estate of the settlor.” ... Where it is compatible with the settlor’s intent, it may be possible to sever the uncertain provision from an accompanying enforceable one, “so that the remaining provision, and the trust as a whole, may be preserved.”

McLemore v. McLemore, 675 So.2d 202, 205 (Fla. 1st DCA 1996)(citing Kunce v. Robinson, 469 So.2d 874, 877 (Fla. 3d DCA 1985)).

In Kunce, the court stated that the provision there, which permitted the trustee to make distributions to such “others as the Trustee in his discretion may deem appropriate,” did not identify any particular entity, person or class which could enforce the trust. “It must therefore be deemed void for indefiniteness.” 469 So.2d at 877. However, because the set-tlor’s primary intent was apparently to benefit the other named beneficiaries, the court severed this provision rather than invalidate the trust altogether.

This seems the correct result in this case if reformation fails. Scott died without issue, so there is nobody to enforce the terms of that half of the trust. That gift should be held void and held by the trustee on a resulting trust for the settlor’s estate. Of course, there is no reason to invalidate Stephen’s half of the trust, which can be severed and enforced. We reiterate that this interpretation may be mooted should appellants establish their entitlement to reformation.

For the reasons stated above, we reverse the summary judgment and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

FARMER, C.J., concurs specially in result only.

SHAHOOD, J., concurs.

      . Appellee has argued that the deposition testimony of both witnesses was not properly considered because not filed more than 20 days before the summary judgment hearing. However, even assuming that the rule on the filing of affidavits prior to summary judgment hearings applies with equal force to depositions, the depositions here were served on May 20, 2003, a full 7 days prior to the May 27, 2003 summary judgment hearing (R. 575). Affidavits in opposition to summary judgment may be served by mail 5 days prior to the scheduled hearing. See Fla. R. Civ. Pro. 1.510(c). Thus, they are timely.


author: KLEIN, J. GROSS, J.,

text:
    Nneka WEST, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2027.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Rehearing Denied July 30, 2004.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of first degree murder and contends that the trial court should have suppressed her confession because her Miranda warnings were inadequate. We reverse.

In March, 2001, appellant was arrested, and after being read what purported to be a Miranda warning, admitted her involvement in a plan which resulted in the victim being murdered. At a hearing on her motion to suppress, a detective testified that he read appellant her rights from a standard Broward County Sheriffs Office Miranda form. He did not inform appellant that she was entitled to have counsel present during questioning or that she could stop the interrogation at any time during questioning. The detective explained:

I told her, you have the right to remain silent, that anything that you say can be used against you in a court of law. You have the right to talk to a lawyer and have a lawyer present before any questioning and if you cannot afford a lawyer, one will be appointed to represent you or for any questions if you wish. And I asked her, do you understand the rights that we just read and that is where she initialed, yes.
Q. That word yes, sir, is that your handwriting or Ms. West’s handwriting?
A. No, that’s Nneka’s, that’s Ms. West’s handwriting.
Q. After that at the end of the rights waiver it says, I see where it says Nneka West. Who put Nneka West’s name in?
A. Ms. West.
Q. Could you make out what it says after that?
A. It says, I, the person you’re meeting with, and Ms. West had printed her name, have read this statement of my rights or had it read to me and I understand what my rights are. With theses [sic] rights in mind, I am willing to answer questions without a lawyer present. This waiver of rights is signed of my own free will without any threats or promises having been made to me.

As to the first ground of appellant’s motion to suppress, that she was not advised of her right to have an attorney present during questioning, Miranda v. Arizona, 384 U.S. 436, 471-72, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held:

[A]n individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. ... [emphasis supplied].

With specific reference to the failure to advise a defendant of the right to have a lawyer present during interrogation, the Miranda court further stated:

As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Id. at 471, 86 S.Ct. 1602.

There is authority supporting the view that a Miranda warning which fails to advise of the right to counsel during interrogation makes a confession inadmissible as a matter of law. United States v. Bland, 908 F.2d 471 (9th Cir.1990); United States v. Oliver, 505 F.2d 301 (7th Cir.1974); Chambers v. United States, 391 F.2d 455 (5th Cir.1968). See also, Thomp son v. State, 595 So.2d 16, 17 (Fla.1992) (appears to hold that the failure to advise defendant that if he could not afford an attorney the state would provide one at no cost rendered confession inadmissible as a matter of law).

In Miranda, with reference to a situation in which no warning was given, the Court stated:

The Fifth Amendment privilege is so fundamental to our system ... and the expedient of giving an adequate warning ... so simple, [that] we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.

Id. at 468.

At the hearing on the motion to suppress, in which the state had the burden of proving by a preponderance of the evidence that appellant waived her rights, Ramirez v. State, 739 So.2d 568 (Fla.1999), the evidence centered on whether appellant was of sufficient intelligence to waive her rights. Appellant, who had never before been arrested, scored sixty-one on an IQ test, indicating that she was mildly retarded. Whether she had the intellectual capacity to intelligently waive her rights was disputed by experts. Without addressing the facial inadequacy of the warning, the trial court denied the motion to suppress, finding that under the totality of the circumstances appellant understood her rights and knowingly and intelligently waived them.

The problem with the trial court’s finding is that it overlooks that appellant was not informed that she was entitled to have counsel present during interrogation or that she could stop the interrogation at any time. Nor did the state produce evidence that appellant knew this and knowingly waived these rights. Her confession should accordingly have been suppressed.

We therefore reverse for a new trial.

WARNER, J., concurs.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

My reading of the case law is that the law is flexible in the form that Miranda warnings are given, but rigid as to their required content.

It is unusual that a problem concerning the content of Miranda warnings has arisen in this day and age. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was decided thirty-eight years ago. A recent Westlaw search revealed that Miranda has been cited 42,-046 times. Declining the invitation to overrule Miranda, the United States Supreme Court wrote that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

Most law enforcement agencies comply with Miranda without incident, since Miranda has not proved to be a roadblock to effective law enforcement. A recent article concludes that “[t]here is no good evidence that Miranda has substantially depressed confession rates or imposed significant costs on the American criminal justice system.” George C. Thomas III & Richard A. Leo, The Effects of Miranda v. Arizona: “Embedded” in Our National Culture? 29 CRIME & Just. 203 (2002).

The consensus of the first generation (1966-73) of empirical scholarship on the effect of Miranda, “was that the Miranda rules had only a marginal effect on the ability of the police to elicit confessions and on the ability of prosecutors to win convictions, despite the fact that some detectives continued to perceive a substantial Miranda impact.” Id. at 238.

Beginning in 1996, the second generation of Miranda studies “have generated considerable interpretive disagreement, debate, and commentary.” Id. at 239. Thomas and Leo observed that

there appears to be relatively little dispute among second-generation researchers on several aspects of Miranda’s real-world effects. First, police appear to issue and document Miranda warnings in virtually all cases. Second, police appear to have successfully “adapted” to the Miranda requirements. In practice, this means that police have developed strategies that are intended to induce Miranda waivers. Third, police appear to elicit waivers from suspects in 78-96 percent of their interrogations, though suspects with criminal records appear disproportionately likely to invoke their rights and terminate interrogation. Fourth, in some jurisdictions police are systematically trained to violate Miranda by questioning “outside Miranda” — that is, by continuing to question suspects who have invoked the right to counsel or the right to remain silent. Finally, some researchers have argued that Miranda eradicated the last vestiges of third-degree interrogation present in the mid-1960s, increased the level of professionalism among interrogators, and raised public awareness of constitutional rights.

Id. at 244-45 (internal citations omitted). The article concludes that “what the first-generation researchers suggested of their era may be true of ours: Miranda’s impact in practice may be virtually negligible.” Id. at 245.

The requirement of Miranda for the warning at issue in this case is not open to the wiggle room of creative interpretation.

As Judge Klein writes in the majority opinion, Miranda explicitly holds that as “an absolute prerequisite to interrogation,” a suspect in custody “must be dearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” 384 U.S. at 471, 86 S.Ct. 1602 (emphasis added). Similar to the warning on the right to remain silent, the Supreme Court chose the requirement of a specific warning on the right to counsel as a “clearcut fact,” to avoid “[assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, [which] can never be more than speculation.” Id. at 468-69, 471-72, 86 S.Ct. 1602.

In California v. Prysock, 453 U.S. 355, 360, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981), the Supreme Court held that the Miranda warnings need not be a “talismanic incantation” from the case, so long as the rights are adequately conveyed. The Court noted that it had “never indicated that the ‘rigidity’ of Miranda extends to the precise formulation of the warnings given a criminal defendant.” Id at 359, 101 S.Ct. 2806. The Court emphasized that the police had “fully conveyed” to the defendant “his rights as required by Miranda.” Id. at 361, 101 S.Ct. 2806. The Court observed that Prysock did not involve the right at issue in this case. Id. (“This is not a case in which the defendant was not informed of his right to the presence of an attorney during questioning.... ”).

Most federal courts of appeals “have recognized the importance of informing suspects that they have the right to have a lawyer present prior to and during interrogation.” Brown v. Crosby, 249 F.Supp.2d 1285, 1306 (S.D.Fla.2003) (cases cited); see also United States v. Noti, 731 F.2d 610, 614-15 (9th Cir.1984); Martin J. McMahon, Annotation, Necessity that Miranda Warnings Include Express Reference to Right to Have Attorney Present During Interrogation, 77 A.L.R. Fed. 123, 131-35 (1986).

A few courts have held that when omitted from Miranda warnings, the right to a lawyer “during interrogation” may be inferred. See People v. Valdivia, 180 Cal.App.3d 657, 226 Cal.Rptr. 144, 148 (1986); State v. Butzin, 404 N.W.2d 819, 825 (Minn.Ct.App.1987). These cases appear to contravene Miranda’s language that the right be explicitly given and that “[n]o amount of circumstantial evidence that a person may have been aware of this right will suffice to stand in its stead.” Miranda, 384 U.S. at 471-72, 86 S.Ct. 1602.

Nothing in any Supreme Court opinion suggests that it has relaxed the rigidity of Miranda regarding the content of the required warnings. At least three justices have expressed their concern about a Miranda warning identical to the one in this case, also arising from Broward County. In a statement accompanying a denial of a petition for writ of certiorari, Justice Breyer wrote:

Although this Court has declined to demand “rigidity in the form of the required warnings,” California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) (per curiam), the warnings given here say nothing about the lawyer’s presence during interrogation. For that reason, they apparently leave out an essential Miranda element. 384 U.S., at 470, 86 S.Ct. 1602.
Because this Court may deny certiorari for many reasons, our denial expresses no view about the merits of petitioner’s claim. And because the police apparently read the warnings from a standard-issue card, I write to make this point explicit. That is to say, if the problem purportedly present here proves to be a recurring one, I believe that it may well warrant this Court’s attention.

Bridgers v. Texas, 532 U.S. 1034, 121 S.Ct. 1995, 149 L.Ed.2d 779 (2001).


author: POLEN, J.

text:
    Keith KOPPELMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2506.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from a final order finding Keith Koppelman guilty of possession of marijuana, possession of cocaine, and possession of paraphernalia. As discussed in detail below, we find that the trial court erred in denying Koppelman’s motion to suppress. We therefore reverse the order of the trial court and instruct that on remand the trial court proceed in accordance with this opinion.

On May 16, 2002, around 8:30 p.m., Deputy William Luther was responding to a dispatch. En route to the dispatch location, Luther saw a black pick-up truck sitting stationary in an unpaved roadway with its lights on. It was a dirt road. There was no curb on either side of the road and there were no other cars. There were no “no parking” signs. Koppelman testified that his vehicle was parked half on the grass, half on the road. Luther testified that the vehicle was in the middle of the roadway. Luther frequently gets calls in reference to juvenile parties, noise disturbances and vandalism in the rural area where he saw the vehicle.

Luther approached the vehicle. Although Luther could not recall if his overhead lights were on, Koppelman testified, and the trial court specifically found, that they were. Koppelman filed a motion to suppress arguing that he was illegally seized. The trial court denied the motion and found that the stop was proper because Koppelman was illegally parked.

Koppelman contends the trial court erred in denying his motion to suppress. We agree. “A trial judge’s ruling on a motion to suppress is clothed with a presumption of correctness, and the ruling should not be disturbed on appeal absent an abuse of discretion.” Lock v. State, 799 So.2d 384, 385 (Fla. 4th DCA 2001) (internal citations omitted). In addition, this court must accept the trial court’s findings of fact, so long as those findings are supported by the record. Underwood v. State, 801 So.2d 200 (Fla. 4th DCA 2001).

The state first responds by pointing out that the issue was not properly preserved. Although Koppelman challenged the admissibility of his statements, the marijuana, the cocaine, and the paraphernalia in his motion to suppress, he did not object when the marijuana and the paraphernalia were entered into evidence at trial. As this court has previously noted, this failure to object resulted in the issue not being properly preserved for appellate review. See Roban v. State, 384 So.2d 683, 685 (Fla. 4th DCA 1980) (“Failure to renew an objection at trial contemporaneously with admission of the contested evidence constitutes a waiver of the right to appellate review of an alleged error.”). However, a proper objection was made, and overruled, when the state entered the cocaine into evidence. As a result, the suppression of the marijuana and the paraphernalia is not properly before this court, but the suppression of the cocaine is.

The Florida Supreme Court explained that there are three levels of police-citizen encounters in Popple v. State, 626 So.2d 185 (Fla.1993).

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.

Id. at 186.

In Popple, the court recognized there is no “litmus-paper test” for distinguishing a consensual encounter from a seizure. However, the court clarified that a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries. The person may not be detained without a well-founded and artic-ulable suspicion of criminal activity. Id. at 187-88. A citizen encounter becomes an investigatory stop once an officer shows authority in a manner that restrains the defendant’s freedom of movement such that a reasonable person would feel compelled to comply. Parsons v. State, 825 So.2d 406 (Fla. 2d DCA 2002).

Courts have routinely held that an officer’s use of emergency lights “evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave.” Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002); see also Errickson v. State, 855 So.2d 700 (Fla. 4th DCA 2003); Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999).

In Popple, the court explained:

a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.

626 So.2d at 186 (citing § 901.151, Fla. Stat. (1991)); Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).

In denying Koppelman’s motion to suppress, the trial court relied on Mendez v. State, 678 So.2d 388 (Fla. 4th DCA 1996). In Mendez, the officer saw the defendant, at 6:44 in the morning, stopped in the middle of three lanes of traffic. It was clear to the officer that the vehicle the defendant was in had mechanical problems. The officer pulled alongside the defendant to inquire and noticed that the defendant appeared intoxicated. He also appeared very nervous. The officer exited his vehicle and approached the defendant when he saw the defendant make a furtive movement. The officer had the defendant step out of vehicle. He staggered upon exiting the vehicle. Id. at 389.

In Mendez, this court concluded that the defendant could be legally detained for a traffic violation “because his minivan was a disabled vehicle obstructing traffic.” Id. at 390. As a result the officer was authorized to order him to exit the vehicle.

The case sub judice is readily distinguishable from Mendez. There was no traffic on the roadway when Deputy Luther approached Koppelman’s vehicle. Further, Koppelman’s vehicle was running and had the lights on. Thus, there was no indication that the vehicle was clearly disabled as was Mendez’s vehicle.

In Underwood, this court reversed a trial court’s denial of a motion to suppress. An officer approached the defendant’s car stopped in the middle of a “very narrow” two-lane street. The deputy noticed the person in the vehicle talking to a pedestrian. There were no other vehicles on the roadway. The officer had to slow down, but not stop. As he approached the vehicle, the pedestrian walked away and the vehicle proceeded to drive forward. The officer turned his blue lights on and initiated a stop. The officer testified that his purpose for stopping the vehicle was to issue a ticket for obstructing the roadway, under section 316.2045(1), Florida Statutes. 801 So.2d at 201.

The trial court found the officer had probable cause to believe the defendant violated the obstruction of traffic statute. This court disagreed. Section 316.2045, “Obstruction of public streets, highways, and roads,” provides the following:

It is unlawful for any person or persons willfully to obstruct the free, convenient and normal use of any public street, highway, or road by impeding, hindering, stifling, retarding, or restraining traffic or passage thereon, by standing or approaching motor vehicles thereon, or by endangering the safe movement of vehicles or pedestrians traveling thereon....

Id. This court opined that there was no willful obstruction of traffic as the statute required. As a result, there was no probable cause for the stop and the motion to suppress ought to have been granted.

Underwood is instructive. In the case at bar there was testimony from Deputy Luther that Koppelman’s vehicle was parked in the roadway. Koppelman testified that the vehicle was parked on the side of the roadway, half on the grass. Both witnesses agreed that there were no curbs and the roadway was an unpaved road. When Luther was asked what his initial concern was upon seeing the vehicle he responded as follows:

My first concern was I didn’t know, I I didn’t know what to, what he was doing. I didn’t know if it was juvenile, underage drinking. I didn’t know if it was someone, illegal, dumping, which is another concern we’ve had in that area. I didn’t know I didn’t know what exactly the reason was for him sitting there.

The state attorney then asked “Okay. Was he legally parked? Was there a parking spot on that roadway?” Luther responded: “No. There was not.” Luther later explained that he waited “at least thirty, forty-five seconds, maybe a minute,” before he pulled up behind Koppelman’s stationary vehicle. During cross-examination, defense counsel asked if Luther had taken any measurements to see how far Koppelman’s vehicle was from the curb. Luther’s response was that there was no curb, so he did not. Defense counsel also asked if Luther had any reason to believe Koppelman was committing a crime when he stopped Koppelman. Luther said he did not know. When pushed for a reason as to why he thought Koppelman was committing a crime, Luther explained that he has had similar incidences where juveniles had been inside vehicles doing illegal activity in that area.

In Underwood, the fact the vehicle was stopped in the roadway was not sufficient to warrant the stop. The case at bar is indistinguishable. Here, as Luther conceded, when he first saw Koppelman’s vehicle he did not know why it was there. He further admitted that he thought it was suspicious based on his previous experience of other incidents in the area.

Interestingly, although not cited by either party, section 316.195, Florida Statutes, provides as follows: “Except as otherwise provided in this section, every vehicle stopped or parked upon a two-way roadway shall be so stopped or parked with the right-hand wheels parallel to and within 12 inches of the right-hand curb or edge of the roadway.” § 316.195, Fla. Stat.

This statute, as well as Underwood, implies that stopping or parking along a two-way roadway is not illegal per se. Further, Luther conceded that he did not know how far Koppelman’s vehicle was from the side of the road and both parties testified that there were no curbs. Although the trial court concluded that Kop-pelman was illegally parked, the court did not make any factual findings on where Koppelman’s vehicle was in the roadway. This key fact was contested. Nor did the trial court, or the state, offer any authority for the conclusion that the vehicle was parked illegally.

Koppelman could not have been lawfully detained absent a well-founded and articu-lable suspicion of criminal activity. Luther’s mere suspicion, based on previous incidents of unlawful activity, was insufficient to warrant the seizure. Popple, 626 So.2d at 186. The order denying the motion to suppress stated that the vehicle could have blocked traffic and could have created a danger to other vehicles. However, the record indicates it did not. Underwood teaches that the potential to block or interfere with traffic is insufficient to justify the stop. As a result, based on the totality of the circumstances, Underwood, and this record, we find that Luther did not have a well-founded and articulable suspicion of criminal activity. As a result, the trial court improperly denied the motion to suppress and we reverse the order of the trial court. As clarified above, on remand the suppression applies only to the cocaine, as the suppression of the other seized items was not properly before this court.

REVERSED and REMANDED.

KLEIN and GROSS, JJ„ concur.


text:
    Ollie BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1072.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Ollie Bryant, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ollie Bryant appealed the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Bryant claimed he was placed on probation as a youthful offender and, after a determination that he had violated probation, was sentenced in excess of the Youthful Offender Act. § 958.14, Fla. Stat. (1997). Because the record did not refute Bryant’s claim, we reversed and remanded the case for further consideration. Bryant v. State, 859 So.2d 1269 (Fla. 4th DCA 2003).

On remand, the trial court again denied Bryant’s motion attaching portions of the record which demonstrate that Bryant’s violation of probation was a substantive violation. Because the violation was substantive, the court could impose a sentence up to the maximum for the offenses. § 958.14, Fla. Stat. (1997) (providing that a violator of youthful offender probation whose violation is substantive must be credited with time served and shall not be sentenced in excess of the maximum permitted for that crime); Smiley v. State, 781 So.2d 458 (Fla. 2d DCA 2001).

The record attached by the trial court reveals that in case numbers 99-8246, 99-11054, and 99-11055, Bryant received sentences of 193.25 months, a little more than sixteen years in prison, for second degree felony burglary charges. The maximum sentence provided by law for a second degree felony is fifteen years. § 775.082(3)(c), Fla. Stat. (1997). Bryant was also given 193.25 months in prison on count two, grand theft, in case number 99-11054. Bryant received this same sentence in case number 99-11128 for attempted burglary. Both grand theft and attempted burglary as charged in these cases are third degree felonies punishable by a maximum of five years in prison. § 775.082(3)(d).

The sentences in these cases exceed the maximum provided by law, violating the express provision of section 958.14 of the Youthful Offender Act. The sentences are illegal.

We reject the state’s argument that section 921.001(5), Florida Statutes (1997), may permit the sentences in this case. This section provides that, under the sentencing guidelines, if á recommended sentence exceeds the maximum sentence, then the guidelines sentence must be imposed absent a departure. See Mays v. State, 717 So.2d 515, 516 (Fla.1998). The state’s argument is contrary to the rule of statutory construction that, when two statutes are in conflict, the specific statute controls over the general statute. State v. J.M., 824 So.2d 105, 112 (Fla.2002).

Here, the Youthful Offender Act specifically provides for the maximum sentence applicable following a substantive violation of youthful offender probation. The general provisions of the sentencing guidelines do not override the specific provisions of the Act.

We do not address the claim, improperly raised by Bryant for the first time in this appeal, that he successfully completed boot camp and may not be sentenced in excess of 364 days. See Mason v. State, 864 So.2d 1225, 1227 (Fla. 1st DCA 2004). Bryant must first raise this issue in the trial court.

The trial court erred in denying the motion to correct illegal sentence. We reverse and remand for resentencing consistent with this opinion.

FARMER, C.J., KLEIN and HAZOURI, JJ., concur.


text:
    YACHTING PROMOTIONS, INC., Appellant, v. BROWARD YACHTS, INC., d/b/a Broward Marine, Appellee.
    No. 4D03-3328.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.

      John H. Pelzer and Jacqueline F. Howe of Ruden, MeClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.
    John M. Mullin of Duke, Mullin & Galloway, P.A., Fort Lauderdale, for appellee.
   POLEN, J.

This appeal arises from a final order denying Yachting Promotions’ motion to recover damages for a wrongful injunction, motion for fees and costs, and motion for appellate fees and costs as untimely. For the reasons discussed below, we reverse the order of the trial court.

The underlying facts of this case, previously addressed by this court in Yachting Promotions, Inc. v. Broward Yachts, Inc., 782 So.2d 937 (Fla. 4th DCA 2001), involve Yachting Promotions’ claims to an allocation of show space at a 2001 boat show taking place in Dade County. Subsequent actions, involving these parties and prior boat shows, were brought in Broward County. This court, on appeal of a non-final order, reversed the trial court’s order granting a mandatory temporary injunction in favor of Broward Yachts based on the Dade court having jurisdiction. This court’s opinion was issued on March 28, 2001.

On April 5, 2001, Yachting Promotions filed a motion for appellate attorneys’ fees, and a motion for clarification on the timeliness of the motion for fees, in this court. On May 3, 2001, this court denied the motion for fees without prejudice to allow Yachting Promotions to file the motion for fees vwth the trial court. On May 25, 2001, this court issued its mandate.

On June 1, 2001, Yachting Promotions filed a motion for attorneys’ fees with the trial court. The motion was amended on April 1, 2002, to include a claim for trial level attorneys’ fees. Prior to the amendment of the fee motion, Yachting Promotions also filed a motion for judgment on the pleadings.

On April 8, 2002, Yachting Promotions filed a motion to recover damages for a wrongful injunction. All of Yachting Promotions’ motions were noticed for hearing. Prior to the trial court’s having entered an order setting the motions for non-jury trial, Broward Yachts filed a motion for voluntary dismissal.

On November 4, 2002, the trial court granted the voluntary dismissal. The order specifically retained jurisdiction to determine the outcome of Yachting Promotions’ various motions. On July 28, 2003, the trial court entered an order denying the motion for damages and motions for fees. The trial court determined that the date this court issued its mandate was the determinative date for calculating the timeliness of the motions. As a result, the court held that the motions were not timely. The trial court also found that the original motion for fees was deficient for failing to attach affidavits. The affidavits eventually filed were not filed in a timely fashion. All of Yachting Promotions’ motions were denied.

Initially, Yachting Promotions contends the trial court erred as a matter of law in finding that the motions were untimely. We agree. Florida Rule of Civil Procedure 1.525 became effective January 1 2001, and provides that “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” Fla. R. Civ. P. 1.525.

In the case at bar, the trial court used the date of this court’s mandate as the starting point of the thirty-day time limit for Yachting Promotions to file its motion. This court issued its mandate on May 25, 2001.

On June 1, 2001, Yachting Promotions filed a motion for appellate attorneys’ fees with the trial court. The motion was not amended until April 1, 2002, to include a claim for trial level attorneys’ fees. Prior to the amendment of the fee motion, Yachting Promotions also filed a motion for judgment on the pleadings. On April 8, 2002, Yachting Promotions filed a motion to recover damages for a wrongful injunction. All of these motions, other than the initial filing on June 1st, were made more than thirty days after the mandate issued. In the initial opinion, this court held that the trial court did not have jurisdiction over this matter because it was previously pending in another jurisdiction. Yachting Promotions, Inc., 782 So.2d at 937.

In the case sub judice, the trial court concluded that Yachting Promotions did not file its motion for damages for a wrongful injunction within a reasonable time of the issuance of the mandate. Further, the court held that Yachting Promotions’ filing of a motion seeking trial level fees, along with the affidavit for its previously filed motion seeking appellate fees, ten months after the mandate issued was untimely. The trial court relied on Bal Bay Realty, Ltd., v. Pepsomers Corp., 833 So.2d 320 (Fla. 4th DCA 2003).

In Bal Bay, the motions were not governed by newly enacted Florida Rule of Civil Procedure 1.525. In finding that the motions in that case were unreasonably late, this court held that “a determination of whether a post-judgment motion for attorney’s fees has been made in a reasonable time must be made based upon ‘all the facts and circumstances of a particular case.’ ” Id. at 321 (quoting Shipley v. Belleair Group, Inc., 759 So.2d 28 (Fla. 2d DCA 2000)). In Bal Bay, this court held that motions for fees filed fourteen and twenty-one months after the final judgment, and eight months after the issuance of a mandate from this court, were unreasonable. Id.

Yachting Promotions accurately distinguishes the ease at bar from Bal Bay. In this case, the motions are not post-judgment motions. Further, the mandate referenced in Bal Bay was a mandate issued on a final appeal. In the case at bar, the mandate is on an interlocutory appeal. Most importantly, although not argued by Yachting Promotions on appeal, Florida Rule of Civil Procedure 1.525 did not govern Bal Bay, but does govern in this case. See Fla. R. Civ. P. 1.525.

The rule is extremely clear, in order to be timely, the motion had to be filed “within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” Fla. R. Civ. P. 1.525 (emphasis added). “Rule 1.525 was created to establish a bright-line rule to resolve the uncertainty surrounding the timing of these posttrial motions.” Diaz v. Bowen, 832 So.2d 200, 201 (Fla. 2d DCA 2002).

There can be no bright line if trial courts are permitted to elect a starting point for the thirty-day clock to begin to run. Although the mandate arguably ended this case, its effect was to reverse a temporary injunction. No judgment was entered. As a result, the thirty days Yachting Promotions had to file its motions, under the plain and unambiguous language of the rule, had not started to run.

Yachting Promotions cites to Graef v. Dames & Moore Group, Inc., 857 So.2d 257 (Fla. 2d DCA 2003), as an example of where the entry of a an order on summary judgment was considered sufficiently final for purposes of calculating the time for which the party had to file its post-trial motions. However, in Graef, the court specifically recognized that the case was hot governed by Florida Rule of Civil Procedure 1.525. Rather, the Graef opinion utilized the same reasonableness test used in Bal Bay. In fact, the Graef opinion specifically commented that “[bjecause the bright line of rule 1.525 does not apply to this case, our inquiry does not end by simply counting the days between the date of final judgment and the motion for attorney’s fees.” Id. at 259. Had the rule applicable to the case at bar been applicable in Graef, the second district was well aware that it would have been governed by the time between the date the final judgment was entered and the motion was filed.

In sum, because this case is governed by Florida Rule of Civil Procedure 1.525, and the rule is clear as to when a motion must be filed, the trial court erred as a matter of law by using the date of this court’s mandate as the benchmark from which to calculate the time. As a result, we now reverse the order of the trial court, and remand for further proceedings consistent with this opinion.

REVERSED.

KLEIN and GROSS, JJ., concur.


author: RAMIREZ, J.

text:
    Luis E. CHAVEZ, et al., Appellants, v. DON L. LEASING FLORIDA, L.L.C., Appellee.
    No. 3D03-43.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.

      Ginsberg & Schwartz; and Robert C. Gross, Miami, for appellant.
    Thornton, Davis Fein, and Holly S. Harvey, Miami, for appellee.
    Before GODERICH, SHEVIN, and RAMIREZ, JJ.
   RAMIREZ, J.

This is an appeal from an adverse summary final judgment entered in a personal injury case. The vehicle that appellee, Don L. Leasing Florida L.L.C., owned and leased to a third party was involved in an accident with the appellants, Luis E. Chavez and Martin Chavez. The appellants sued Don Leasing under a theory of vicarious liability in which Don Leasing argued that the lessees had breached the lease agreement and had thereby converted or stolen the vehicle at the time of the accident. The trial court granted summary judgment in Don Leasing’s favor which now argues that there are no disputed issues of material fact. We disagree and conclude that the facts, when viewed in the light most favorable to the nonmoving party, do not establish that the lessees were guilty of conversion or theft of the vehicle, and we, therefore, reverse.

Don Leasing relies heavily on Hertz Corp. v. Jackson, 617 So.2d 1051 (Fla.1993), which reiterated established precedent that “no vicarious liability is imposed on the owner of a vehicle for the negligence of a driver when a vehicle has been obtained without the owner’s consent.” Id. at 1053 (citations omitted). The Florida Supreme Court further explained that:

liability should be determined on the basis of whether there has, in fact, been a conversion or theft of the vehicle prior to the negligence at issue. We hold that once a vehicle has been the subject of a theft or conversion, the owner’s initial consent has been vitiated and the vehicle is no longer on public highways “by authority of’ the owner.

Id. The issue thus revolves around whether the lessees had converted or stolen the vehicle at the time of the accident. A comparison of the facts in the Hertz case with our case makes it clear that summary judgment was improvidently granted.

In the Hertz case, a woman used a fake name and stolen credit card to enter into a two-day rental agreement with Hertz. Hertz promptly sent certified letters in which Hertz demanded the return of the automobile, but the letters were returned as undeliverable. Id. at 1052. Within days, Hertz reported the vehicle as stolen to the police. Id. Eleven days after the Hertz vehicle was reported stolen, the vehicle, operated by an alleged participant in the fraud, was involved in an accident. Id.

In our case, Don Leasing entered into a five year lease and accepted an advance of the first and last payments from the lessee. Within three months, the lessee fell behind in his payments and, when contacted, claimed not to have leased the car. A few weeks later, Don Leasing’s representative learned that the car had been given to the lessee’s son. Thereafter, two more payments were made and accepted.

Contemporaneously with these payment problems, Don Leasing also learned that the insurance on the car had lapsed. In response to letters Don Leasing sent to the lessee, the lessee’s son provided proof of insurance. Don Leasing did not cancel the lease after these breaches. Subsequently, however, the insurance was can-celled because the check used to obtain it had bounced.

On April 18, 2001, without any formal notification to the lessee, Don Leasing decided to repossess the car through a private investigator. Don Leasing made no attempt to contact the lessee. The car was never reported stolen to the police. On May 5, 2001, the car was involved in the accident in which Martin Chavez was injured.

We again quote from Hertz as follows: “[T]he question of whether a vehicle has been the subject of a conversion or theft is a factual one that ordinarily is answered based on the distinct circumstances of each individual case.” Id. at 1054. We cannot agree that the facts of this case support a finding of conversion or theft as a matter of law. We find another Florida Supreme Court case instructive. In Stupak v. Winter Park Leasing, Inc., 585 So.2d 283 (Fla.1991), also involving a long-term lease agreement, the vehicle was involved in an accident one day after the vehicle was to have been returned under the terms of the rental agreement. Unlike our case, the rental agreement provided that failure to return the vehicle by the due date would be considered “theft by conversion.” Id. at 284. The plaintiff, however, was allowed to show that the rental company did not treat late returns as thefts or conversions for at least the first twenty-four hours after the expiration of the rental term. Id. The Florida Supreme Court thus concluded that there was a genuine issue a material fact to be tried as to whether there had been a conversion or theft of the vehicle. Id. Likewise, in our case, the course of conduct by Don Leasing of overlooking breaches in the lease agreement, and the way it treated similar breaches with other customers, create an issue of fact regarding whether there had been a conversion or theft of the vehicle.

We therefore reverse and remand.


text:
    COURTLAND GROUP, INC., Appellant, v. PHILLIPS GOLD & COMPANY LLP and Joseph Barbaro, Appellees.
    Nos. 3D03-1455, 3D03-1034.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Greenberg Traurig, and Elliot H. Scherker, and Alan T. Dimond, and Julissa Rodriguez, Miami, for appellant.
    Wilson, Elser, Moskowitz, Edelman & Dicker, and James M. Kaplan, Miami, and Elise D. Weakley, for appellees.

      Before SHEYIN, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

Courtland Group, Inc. appeals from an adverse final judgment on its claims for negligent representation and accounting malpractice against appellee Phillips Gold & Company LLP, and from a cost judgment entered against it and Joseph Bár-baro. Although this case took years of litigation regarding events that occurred decades ago and involves multiple individuals and corporations, the issue on appeal is primarily the propriety of the defense expert’s testimony. Finding no abuse of discretion in the trial court’s rulings, we affirm.

Neal A. Hochberg testified at trial as Courtland’s accounting expert and fraud examiner. He researched the value of Courtland’s contractual relationship with HMG and he analyzed the compensation of Lee Gray, an individual whose services to Courtland for a ten year period is at the heart of the parties’ litigation. Hochberg calculated Courtland’s damages at $1,481,968.00.

Vincent Love was Phillips Gold’s expert witness. He testified that Courtland had incurred no damages. Love testified that the benefit or “quantum meruit” Courtland received from Gray’s services would reduce the amount of Courtland’s damages. He also testified that the renewability of Courtland’s contract with HMG had a very significant impact on the outcome of Courtland’s expert’s analysis because the “contract would be worth zero ... it was at the end of the year, the end of the contract.” The jury found in Courtland’s favor on its claims for negligent representation and accounting malpractice, but found that Courtland was not damaged as a result of Phillips Gold’s negligence.

We agree with Phillips Gold that the trial court did not abuse its discretion in allowing its expert to explain his opinion that Courtland sustained no damages as a result of Phillips Gold’s negligence. There were two components to Courtland’s damages: (1) the value of a contract that expired at the end of every year, but had been renewed for twenty-five years; and (2) the compensation paid for ten years to a key executive of Courtland, accused of fraud by Courtland, who allegedly would have been fired immediately had the fraud been reported by Phillips Gold. In effect, Love opined that the contract between Courtland and HMG was basically worthless at the time of its expiration. He also felt that the key executive had rendered valuable services to Courtland for ten years which ought to be set off against any claim for compensation paid.

In La Villarena, Inc. v. Acosta, 597 So.2d 336, 339 (Fla. 3d DCA 1992), we stated that opinion evidence must be helpful to the trier of fact before it is admitted. To be helpful to the trier of fact, expert testimony must concern a subject which is beyond the common understanding of the average person. Id. at 339. Courtland complains that the testimony did not concern a subject which was beyond the common understanding of the jurors. We do not see how a jury can properly evaluate the damages in this complicated litigation and conclude that the defense expert could properly testify as to no damages, just as Courtland’s expert testified that it suffered almost $1.5 million in damages.

We also affirm the cost judgment and need not reach the issues raised on cross-appeal.

Affirmed.


text:
    Alfredo J. FLORES, et al., Appellant, v. Rachel E. GREEN, Appellee.
    No. 3D03-37.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Richard C. Bagdasarian (Boca Raton), for appellant.
    Marie G. Estime-Thompson, for appel-lee.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Alfredo Flores and Capital Insurance Agency appeal from the trial court’s Order denying their Motion for Remittitur, and the Final Judgment awarding $20,000 for medical expenses to the plaintiff, Rachel Green (“Ms.Green”). We reverse.

Rachel Green obtained supplemental cancer insurance from Alfredo Flores via Capital Insurance Agency during her open enrollment period. At the time, she was covered under a supplemental cancer insurance with Colonial Life & Accident Insurance Company (“Colonial Life”). After consulting with Flores and a Colonial Life representative, Ms. Green cancelled her Colonial Life coverage, believing that the cancellation would not take effect until the end of the insurance year. It is undisputed that Ms. Green’s pay stub reflected a “post-tax” supplemental policy. Ms. Green testified that she was assured by Flores and Nelson Fabel, a Colonial Life representative, that the Colonial Life policy would remain in effect until January 1st, 1998.

Approximately one month after cancel-ling the Colonial Life policy, Ms. Green was diagnosed with cancer. Ms. Green testified that she called Colonial Life when she returned home and was advised that her policy was cancelled effective October, 1997. Nevertheless, Ms. Green filed an application for payment of benefits under the Colonial Life policy and was denied benefits.

As a result, Ms. Green filed a three count Complaint against Flores, Capital Insurance Agency, and Colonial Life. Specifically, Ms. Green brought a Negligent Misrepresentation claim against Flores, alleging that Flores made a false statement regarding the coverage period of Ms. Green’s cancer policy; a Negligent Misrepresentation claim against Capital Insurance for the acts of its agent, Flores; and a claim for Wrongful Cancellation of Insurance Policy against Colonial Life, alleging that she was told her policy would remain in effect through the end of 1997. Ms. Green sought damages for payment of medical bills, attorney fees and costs.

Ms. Green subsequently settled with Colonial Life for $1,000. Flores and Capital Insurance served Ms. Green with a formal Offer of Judgment/Proposal for Settlement in the amount of $5,000. Ms. Green did not accept the offer and the matter proceeded to trial. Flores and Capital Insurance filed a Motion in Limine to restrict the presentation of any evidence relating to pain and suffering, mental anguish, and unpaid medical bills. Flores and Capital Insurance argued that any state of mind claim was barred by Florida’s Impact Rule; and that Green did not plead Fraudulent Misrepresentation or Punitive Damages. Flores and Capital Insurance argued that Green’s damages were limited to the policy benefits that would have been provided by the Colonial Life policy. The trial court denied the Motion in Limine and the matter proceeded to trial.

At trial, Flores and Capital Insurance renewed the Motion in Limine after Green’s counsel questioned Green about her mental anguish and distress. The trial court allowed the testimony, reasoning that she could set aside any award for mental anguish. Flores and Capital Insurance renewed the Motion again after Ms. Green’s counsel introduced evidence of the medical bills. Flores and Capital Insurance argued that introduction of the medical bills would confuse the purpose of the supplemental policy, to wit, that Ms. Green’s HMO covers the bills and the Colonial Life policy was only a supplemental insurance policy. The court allowed the bills into evidence, explaining to counsel that she could later enter a Directed Verdict.

The jury subsequently returned its verdict in favor of Ms. Green, and awarded her $20,000 for medical expenses and $105,000 for pain and suffering. The jury also found that Ms. Green herself was 15% negligent. Flores and Capital Insurance filed a Motion for Judgment Notwithstanding the Verdict, for New Trial, or for Remittitur. As it had previously ruled during trial, the trial court struck the $105,000 pain and suffering award, finding that it was contrary to Florida law, and that no claim to support was pled or demanded in the Complaint. With respect to the $20,000 award for medical expenses, Flores and Capital Insurance argued that the award should be reduced to $3,480, which is the maximum benefits that Ms. Green was entitled to during the period for which she would have been covered by Colonial, from October of 1997 (when she was diagnosed) through December of 1997 (the end of the policy period). The court denied the remittitur. On rehearing, re-mittitur was denied again. Final Judgment was entered for Green in the amount of $16,000 — the $20,000 verdict amount, less 15% for her own negligence, less $1,000 to set off Colonials settlement. We agree with Flores and Capital Insurance.

Generally, an insurance agent’s liability for negligence leading to the cancellation of an insurance policy cannot exceed the amount of the insurance obtained. See Thal v. Shiman, 524 So.2d 1156, 1157 (Fla. 3d DCA 1988); Cat ‘N Fiddle, Inc. v. Century Ins. Co., 200 So.2d 208 (Fla. 3d DCA 1967) vacated on other grounds, 213 So.2d 701 (Fla.1968). In the instant case, Ms. Green brought suit for Negligent Misrepresentation against Flores and Capital Insurance, and her damages are a result of the cancellation of a supplemental insurance policy. Consequently, her recovery is limited to the policy limits of the Colonial Life policy. Accordingly, we conclude that the trial court erred in denying Flores and Capital Insurance’s Motion for Remittitur, and remand the matter for calculation of the Colonial policy limits.

Reversed and remanded with directions.

      . The distinction between a "post-tax” policy and a "pre-tax” policy was explained at trial. If an employee with a "post-tax” policy elects to cancel the policy, the cancellation is effective immediately upon notification to the insurer. On the other hand, if an employee with a "pre-tax” policy elects to cancel, the cancellation does not take effect, and coverage continues, until the end of the existing policy period.


text:
    Antonio A. PRIETO, Appellant, v. FLORIDA DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATIONS, Appellee.
    No. 3D03-919.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Donald S. Rose, Miami, for appellant.
    Christopher J. DeCosta, for appellee.
    Before COPE, FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

Antonio A. Prieto appeals a suspension order entered by the Florida Department of Business and Professional Regulation. We affirm.

Respondent-appellant Prieto is a state-certified residential real estate appraiser regulated under chapter 475, Florida Statutes. After an administrative hearing, he was found to have violated subsections 475.624(14) and (15), Florida Statutes (1995). The Florida Real Estate Appraisal Board adopted the recommended order of the Administrative Law Judge. The Board imposed a $3,000 fine, suspended Prieto’s license for five years, and imposed the requirement that Prieto complete a continuing education course prior to reinstatement.

On this appeal, Prieto contends that predecessor counsel who represented him at the administrative hearing was ineffective. He requests relief from the suspension order on the theory that he received ineffective assistance of trial counsel.

We reject Prieto’s claim. We think the Florida Supreme Court’s rejection of a similar claim in the context of dependency proceedings is dispositive here. See S.B. v. Department of Children and Families, 851 So.2d 689 (Fla.2003). The S.B. court said, “The constitutional right to counsel is not implicated in this case. Because there is no constitutional right to counsel under the circumstances of this case, we likewise find that there is no right to collaterally challenge the effectiveness of counsel.” Id. at 693-94.

Prieto argues that we recognized such a claim in Diaz de la Portilla v. Florida Elections Commission, 857 So.2d 913 (Fla. 3d DCA 2003) review denied, No. SC03-2112, 872 So.2d 898, SC03-2113, 872 So.2d 899 (Fla. April 1, 2004). That case did not involve the issue now before us.

Affirmed.


text:
    Rickey Edward FILLMORE, a/k/a Johnny Leslie Simmons, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3892.
    District Court of Appeal of Florida, Fifth District.
    June 18, 2004.
    Rickey Edward Fillmore, a/k/a Johnny Leslie, pro se.
    No Appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

The defendant Rickey Edward Fillmore, a/k/a Johnny Leslie Simmons, entered into a knowing, voluntary plea to Grand Theft. He received a legal, five-year sentence. Fillmore/Simmons appealed the denial of his Motion To Vacate, Set Aside or Correct Sentence. Notwithstanding the fact that his case was only a 2001 case, it was his 13th action in this court. Fillmore/Simmons admitted that the postcon-vietion motion was not his first such motion, but gave various excuses why it should not be procedurally barred. None of the reasons he gave qualify as valid reasons under Rule 3.850.

Since Fillmore/Simmons has been “filing documents faster than this court can dispose of them,” Rooney v. State, 699 So.2d 1027, 1028 (Fla. 5th DCA 1997), and since we found Fillmore/Simmons arguments to be without merit, we affirmed the lower court and issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999) (court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond). Finding no merit in his response, we find that his successive challenges to his judgment and sentence constitute an abuse of the judicial system. See, e.g., Baker v. State, 878 So.2d 1236, 2004 WL 439879 (Fla. Mar.11, 2004) (limit on successive claims is necessary to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice); Young v. State, 852 So.2d 368, 369 (Fla. 5th DCA 2003) (“As it has for others, the number thirteen has proven to be unlucky for [defendant].”); Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (re-raising arguments “heard, considered, and rejected ... is an abuse of process”).

This abuse of the judicial system is affecting the federal system too. For example, in United States v. Robinson, 251 F.3d 594 (7th Cir.2001), the federal court remarked:

[Defendant] is an incessant repetitive filer of frivolous motions attacking his conviction and sentence. In the original appeal, though he was represented by counsel, he filed five motions for leave to file a supplemental pro se brief, and we remarked, in the course of upholding his conviction, the tardy and repetitive character of these motions.
* * * ❖
[Waving to file, read, and return a frivolous motion is almost as great a burden on the court’s staff as the preparation of a ruling. There is no legal objection to the imposition of sanctions for frivolous filings in a criminal case, United States v. Cooper, 170 F.3d 691, 692 (7th Cir.1999); see also In re Becraft, 885 F.2d 547, 550 (9th Cir.1989) (per curiam), though such imposition is rare. Not having warned Robinson that he was risking sanctions by filing his repetitive motions, we shall not impose them now; but let this opinion be a warning to him (and others similarly situated) that he will be courting sanctions, monetary and otherwise (see Alexander [v. United States, 121 F.3d 312 (7th Cir.1997) ]), if he continues in his current course of frivolous motion practice.

(emphasis added). See also United States v. Moussaoui, No. 01-455-A (E.D.Va. Nov. 5, 2003) (court has broad discretion regarding its “inherent power to impose order, respect, decorum, silence and compliance with lawful mandates”).

Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve judicial resources, we prohibit Fillmore/Simmons from filing any additional pro se appeals, pleadings, motions and petitions relating to his convictions and sentence in the underlying case. Any further pleadings filed in this court relating to his convictions and sentence must be reviewed and signed by an attorney, licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Filhnore/Simmons seeking relief in St. Johns County, Seventh Judicial Circuit Court No. CF-01-1655.

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

      . Defendant also has a large number of other aliases: Edward Burton; Jermaine Burton; Thomas Kilpatrick Burton; Barry Cox; George Fuller; Barry Guy; Jerry Hunter; Dennis Miller; Emmanuel Lewis Newman; Abdur Rahman Numan; Emmanuel Rupert Numan; Edward Lee Owens; Walter Leo Parks; Jermaine Simmons; Johnie Lesley Simmons; Johnnie Simmons; Johnny L. Simmons; Ricky Simmons; Dennis Mitchell Simms; Dennis Sims; Lee Ira Stafford; Dennis White; and Dennis Williams.

      . Previous cases were: Nos. 02-1924; 02-1981; 02-2527; 02-2601; 02-2942; 03-2403; 03-2783; 03-2025; 03-3162; OS-3756; 03-2765; and 03-3792.


author: WEBSTER, J.

text:
    NAACP, INC., through its Florida Conference of Branches of NAACP; Mattie Garvin, on her own behalf and as mother of Keith Garvin; and Keith Garvin, Appellants/Cross-Appellees, v. FLORIDA BOARD OF REGENTS and State Board of Education, Appellees/Cross-Appellants.
    No. 1D00-3138.
    District Court of Appeal of Florida, First District.
    June 18, 2004.

      Daniel H. Thompson and Melanie Ann Hines of Berger Singerman, Tallahassee; Mitchell W. Berger, of Berger Singerman, Fort Lauderdale, for Appellants/Cross-Appellees.
    Daniel Woodring, General Counsel; Nathan A. Adams, IV, Deputy General Counsel; Jason K Fudge, Assistant General Counsel, Tallahassee, for Appellees/Cross-Appellants.
   WEBSTER, J.

This is the second time this dispute has been before us. The first time, we held that appellants/cross-appellees lacked standing to prosecute this administrative rule challenge and, accordingly, dismissed on that basis. NAACP, Inc. v. Florida Bd. of Regents, 822 So.2d 1 (Fla. 1st DCA 2002). However, we also certified to the supreme court a question that we believed to be of great public importance. Id. at 14 (on rehearing). A majority of the supreme court concluded that appellants did, in fact, have standing, and remanded to us for further proceedings. NAACP, Inc. v. Florida Bd. of Regents, 863 So.2d 294 (Fla.2003). Three justices dissented, stating that they would remand to us “for consideration of the issue of whether this case [had become] moot” in light of significant intervening changes in the entities responsible for operating the state university system. Id. at 301 (Wells, J., dissenting). Although the majority reached the merits, they stated in a footnote that their decision was not to be construed as precluding consideration of the mootness issue on remand. Id. at 295 n. 1. Following remand to us, because it appeared that the case had become moot, we issued an order directing appellants to show cause why it had not. Having now carefully considered the briefs filed by the parties, we conclude that the case is moot and, accordingly, dismiss the appeal and cross-appeal for that reason.

Appellants challenge a number of rule amendments adopted by the Florida Board of Regents in February 2000. Their principal contention has been (and remains) that the rules constitute “an invalid exercise of delegated legislative authority” (as that term is defined in the Florida Administrative Procedure Act) because there is no specific statutory authority authorizing the Board of Regents to prohibit consideration of factors that a university might deem relevant in the admissions process, such as race, national origin, or gender. See Southwest Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594 (Fla. 1st DCA 2000) (explaining the test to be applied to determine whether agency rulemaking constitutes “an invalid exercise of delegated legislative authority” as that term is defined in section 120.52(8), Florida Statutes (1999)). Because we concluded that appellants lacked standing to prosecute the rule challenge, we dismissed without addressing the merits of their argument.

When appellants commenced their rule challenge, the Board of Regents was a legislatively created “body corporate,” given responsibility by the legislature for adopting rules pursuant to the Florida Administrative Procedure Act applicable to the entire State University System “to implement provisions of law conferring duties on [that System]”; and for “planning for the future needs of the State University System; planning the programmatic, financial, and physical development of the system; reviewing and evaluating the instructional, research, and service programs at the universities; coordinating program development among the universities; and monitoring the fiscal performance of the universities.” §§ 240.205, 240.209(1), Fla. Stat. (1999). Although its composition has changed, the State Board of Education was (and remains) a constitutionally created “body corporate,” “hav[ing] such supervision of the system of free public education as is provided by law.” Art. IX, § 2, Fla. Const. When the rule challenge was commenced, the State Board of Education was legislatively charged with “general supervision and control over the Board of Regents.” § 240.203(2), Fla. Stat. (1999).

The Board of Regents was legislatively abolished as of July 1, 2001, and its powers transferred to a new entity known as the “Florida Board of Education.” §§ 229.003(5)(a) & (b), 229.004(l)(a), Fla. Stat. (2001). In 2002, the legislature adopted a law abolishing the Florida Board of Education effective as of January 7, 2003, vesting that entity’s powers in the State Board of Education. Ch.2002-387, §§ 19-21, 1058, 1065, at 3172-80, 4152-53, Laws of Fla.

However, in November 2002, Florida voters approved an amendment to article IX of the Florida Constitution which provides:

SECTION 7. State University System.—
(a) PURPOSES. In order to achieve excellence through teaching students, advancing research and providing public service for the benefit of Florida’s citizens, their communities and economies, the people hereby establish a system of governance for the state university system of Florida.
(b) STATE UNIVERSITY SYSTEM. There shall be a single state university system comprised of all public universities. A board of trustees shall administer each public university and a board of governors shall govern the state university system.
(c) LOCAL BOARDS OF TRUSTEES. Each local constituent university shall be administered by a board of trustees consisting of thirteen members dedicated to the purposes of the state university system. The board of governors shall establish the powers and duties of the boards of trustees. Each board of trustees shall consist of six citizen members appointed by the governor and five citizen members appointed by the board of governors. The appointed members shall be confirmed by the senate and serve staggered terms of five years as provided by law. The chair of the faculty senate, or the equivalent, and the president of the student body of the university shall also be members.
(d) STATEWIDE BOARD OF GOVERNORS. The board of governors shall be a body corporate consisting of seventeen members. The board shall operate, regulate, control, and be fully responsible for the management of the whole university system. These responsibilities shall include, but not be limited to, defining the distinctive mission of each constituent university and its articulation with free public schools and community colleges, ensuring the well-planned coordination and operation of the system, and avoiding wasteful duplication of facilities or programs. The board’s management shall be subject to the powers of the legislature to appropriate for the expenditure of funds, and the board shall account for such expenditures as provided by law. The governor shall appoint to the board fourteen citizens dedicated to the purposes of the state university system. The appointed members shall be confirmed by the senate and serve staggered terms of seven years as provided by law. The commissioner of education, the chair of the advisory council of faculty senates, or the equivalent, and the president of the Florida student association, or the equivalent, shall also be members of the board.

(Emphasis added.) The Board of Governors created by this amendment came into existence on January 7, 2003. Art. XI, § 5(d), Fla. Const. On that date, the Board of Governors met for the first time, and adopted all of the rules challenged by appellants.

Appellees contend that appellants’ rule challenge is now moot because the challenged rules have been adopted by the Board of Governors, exercising its power pursuant to article IX, section 7, of the Florida Constitution, and, therefore, are not subject to challenge under the Florida Administrative Procedure Act. We agree.

Article IX, section 7(d), states that the Board of Governors “shall operate, regulate, control, and be fully responsible for the management of the whole university system.” Appellees argue that such a broad grant of authority clearly includes control over admissions policies which are essential to the management and operation of the university system. We conclude that such a construction is consistent with the provision’s explicit language and the intent of the framers and voters. See Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm’n, 838 So.2d 492, 501 (Fla.2003) (holding that interpretation of a constitutional provision begins with examination of the provision’s explicit language, and that a court must endeavor to construe the provision in a manner consistent with the intent of the framers and voters).

Appellees argue, further, that, with the exception of two sentences regarding the terms of members appointed to the local boards of trustees and the Board of Governors, article IX, section 7, appears to be “self-executing insofar as it bestows specific powers on the Board of Governors that may be exercised without statutory assistance.” “The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment.” Gray v. Bryant, 125 So.2d 846, 851 (Fla.1960). There is a presumption that constitutional provisions are intended to. be self-executing “because in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.” Id. Based on these principles, we conclude that article IX, section 7, is self-executing by its own terms insofar as it empowers the Board of Governors to “operate, regulate, control, and be fully responsible for the management of the whole university system.” The plain language of the provision clearly contemplates that the Board of Governors’ exercise of its powers is subject only to the legislature’s authority to appropriate funds, to confirm the Board’s appointed members, and to set members’ staggered terms.

In short, the Board of Governors’ power to adopt rules regarding university admissions flows directly from the Florida Constitution. This distinguishes the Board of Governors from the Florida Board of Regents, which was created, empowered, and eventually abolished by the Florida Legislature. §§ 240.205 & 240.209, Fla. Stat. (1979); §§ 229.003(6)(a) & 240.209, Fla. Stat. (2000); § 229.003(5)(a), Fla. Stat. (2001). This also distinguishes the Board of Governors from the State Board of Education which, under article IX, section 2, of the Florida Constitution, has “such supervision of the system of free public education as is provided by law.” Because the Board of Governors’ constitutional authority to promulgate the challenged rules is not dependent on any delegation from the Florida Legislature, those rules cannot be challenged under the Administrative Procedure Act. See In re Advisory Opinion of the Governor, 334 So.2d 561, 562 (Fla.1976) (stating that the Administrative Procedure Act does not apply to powers of the governor “ ‘derived’ solely from the Constitution,” as opposed to “legislative enactment”); Phillips v. Board of Pardons, 487 So.2d 1154, 1155 (Fla. 1st DCA 1986) (stating that, because “the power of sentence commutation is clearly of constitutional origin!,] • • • the exercise thereof is not subject to the Administrative Procedures [sic] Act”). Cf. Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm’n, 838 So.2d 492, 501 (Fla.2003) (indicating that, to determine whether the legislature can require a constitutionally created entity to comply with the Administrative Procedure Act, a court must first determine the extent of the power granted to the entity by the constitution).

Appellants maintain that such an interpretation of the Board of Governors’ rule-making authority under article IX, section 7, “would require this Court to find that the authority of the Legislature and the authority of the constitutionally created, legislatively empowered State Board of Education has been eviscerated by the newly created Board of Governors.” As appellees correctly point out, this is simply not true. Article IX, section 7, clearly contemplates a significant role in the management of the state university system for the legislature, through its power over appropriations. Moreover, although authority over the university system has been transferred by article IX, section 7, to the Board of Governors, the authority of the State Board of Education under article IX, section 2, has not been “eviscerated” insofar as the State Board of Education remains responsible for K-12 and community college education. To the extent that statutes remain on the books bestowing authority on the State Board of Education (or individual university boards of trustees) in matters relating to the management of the state university system, we agree with appellees that those statutes have been implicitly repealed by the subsequent adoption of article IX, section 7. See Florida Pub. Employees Council 79, AFSCME, AFL-CIO v. Pub. Employees Relations Comm’n, 871 So.2d 270, 271 (Fla. 1st DCA 2004) (Webster, J., concurring in part and dissenting in part).

Appellants claim that, even if the State Board of Education no longer has rulemaking authority over the state university system, their rule challenge is not moot because the State Board’s rules relating to the state university system have not been repealed by the State Board and can still be found in the Florida Administrative Code as rules of the Board of Regents. Moreover, appellants assert that there are indications that the State Board is continuing to implement these rules. Even if this is true, appellants’ claim is still moot. “A case becomes moot, for purposes of appeal, where, by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief.” Montgomery v. Dep’t of Health and Rehab. Servs., 468 So.2d 1014, 1016 (Fla. 1st DCA 1985). The adoption of article IX, section 7, of the Florida Constitution and the Board of Governors’ subsequent adoption of the challenged rules have made it impossible for this court to grant effectual relief to appellants. If appellants were allowed to proceed with their challenge to the State Board’s rules and were successful, the fact remains that the same rules have been adopted by the Board of Governors and would remain in effect.

Because the intervening adoption of article IX, section 7, of the Florida Constitution and the Board of Governors’ adoption of the challenged rules pursuant to the authority granted to it by that amendment have made it impossible for this court to grant effectual relief to appellants, the appeal and cross-appeal are dismissed as moot.

BROWNING and POLSTON, JJ., CONCUR.


author: PETERSON, J.

text:
    Scotty MERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-686.
    District Court of Appeal of Florida, Fifth District.
    June 18, 2004.

      Scotty Merson, Avon Park, .pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PETERSON, J.

Scotty Merson appeals the summary denial of his Florida Rules of Criminal Procedure 3.853 motion for DNA testing. Mer-son was convicted in 1991 for the sexual battery of a child less than twelve years of age and burglary of a dwelling with a battery. Those convictions were affirmed in Merson v. State, 590 So.2d 428 (Fla. 5th DCA 1991).

The 3.853 motion alleges that a standard sexual assault kit was used to collect evidence from the victim and although the collected evidence, in the form of vaginal swabs, scrapings and clothing, were subjected to DNA tests in 1991, the technology used at that time was still in its infancy and required larger samples than were available. He claims that current mitochondrial DNA technology is available to determine whether any residual saliva exists on the vaginal swabs and that the tests would show that his DNA does not match the sample.

The trial court found that any physical evidence that may have contained DNA evidence had been destroyed and denied the motion on that ground. The record does not support the trial court’s finding. The record contains a “Disposition of Property” form listing five items that appear to be receipt numbers. The form does not describe the property that was listed in the receipts. The record also contains two receipts, the numbers of which match two of the numbers on the “Disposition of Property” form. Those receipts describe the property that was received for destruction, but do not include the vaginal swab sought by Merson.

One must conclude that two possibilities exist with respect to the vaginal swab. Either that swab was listed on one of the remaining three receipts, or it was not listed and may still be in the possession of law enforcement authorities. Otherwise, the conclusion that the swab has been destroyed is not supported by the record.

Because the only ground stated by the trial court in denying the rule 3.853 motion was that evidence had been destroyed, we must vacate the denial and remand for further proceedings to determine:

(1) whether any of the remaining three receipts can be found, and if found, whether they list any items that would provide pertinent DNA samples; or
(2) if the receipts or other proof of destruction cannot be found, conduct an evidentiary hearing; or
(3) determine whether Merson’s motion is insufficient on other grounds.

ORDER VACATED; REMANDED.

ORFINGER and TORPY, JJ., concur.