author: SHARP, W., J.

text:
    Robert ROMAHN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-3858.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Rehearing Denied March 25, 2003.
    Robert Romahn, Lowell, pro se.
    No Appearance for Respondent.
   SHARP, W., J.

Romahn seeks certiorari review of the trial court’s order which denied the second ground of his petition for writ of habeas corpus which was directed to that court. We elect to treat this proceeding as a direct appeal. See M.W. v. Department of Children & Families, 769 So.2d 513 (Fla. 1st DCA 2000); Fla. R.App. P. 9.040(c). We affirm.

Romahn argues he received an improper upward departure sentence and had the guidelines been followed, he would now be entitled to immediate release. The imposition of an improper upward departure sentence under the guidelines is a ground which could or should have been raised on direct appeal. Thus it is proeedurally barred from being raised in a petition for writ of habeas corpus. See Hunter v. State, 817 So.2d 786 (Fla.2002).

In addition, Romahn raised this claim in a prior motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). This court affirmed the trial court’s summary denial of that motion. His attempt here to reargue that same issue is successive and improper. To the extent Romahn is now alleging he received an illegal sentence for the purpose of rule 3.800(a), his pleadings fail to make sufficient allegations to demonstrate that possibility. A sentence which exceeds the maximum guidelines sentence is something entirely different than a sentence beyond the statutory maximum.

AFFIRMED.

THOMPSON, CJ., and GRIFFIN, J., concur.

      . Romahn does not contest the court's ruling with regard to the remaining two grounds of the underlying habeas petition.

      . Appeal No. 5D00-3771.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Eldred SALTERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2414.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.
    Rehearing Denied March 20, 2003.
   SILBERMAN, Judge.

Eldred Salters appeals the trial court’s denial of his motion seeking resentencing pursuant to Florida Rule of Criminal Procedure 3.800(a). In an earlier appeal, this court reversed the trial court’s summary denial of Salters’ motion and held that “unless his original sentence was the result of a negotiated plea, he must be sentenced pursuant to the sentencing guidelines.” Salters v. State, 805 So.2d 1004, 1004 (Fla. 2d DCA 2001). We affirm because Salters’ sentence was imposed pursuant to a negotiated plea.

In 1996, following discussions with the trial court as to the sentence that would be imposed, Salters pleaded guilty to charges for delivery and possession of cocaine. He acknowledged that the plea was in his best interests, and he and his attorney signed the plea form and presented it to the trial court at the sentencing hearing. The trial court accepted the plea and imposed the agreed upon sentence: a suspended term of ten years’ imprisonment as a habitual felony offender and two years’ community control followed by two years’ probation. The State objected to the sentence as a downward departure.

After Salters violated the terms of his supervision, he received the previously suspended sentence of ten years’ imprisonment as a habitual felony offender. Sal-ters then sought relief from the sentence. After the trial court summarily denied relief, Salters appealed and this court reversed. Id. On remand, the trial court concluded that Salters’ sentence was the result of a negotiated plea with the court, and it again denied relief.

Salters argues that because the State did not agree to the favorable sentence that he received in exchange for his guilty plea, he is entitled to be resentenced within the sentencing guidelines and not as a habitual offender. We disagree.

This court has previously stated that a sentence of probation or community control with a designation as a habitual felony offender was a legal sentence if the sentence was the result of a negotiated plea. See Pankhurst v. State, 796 So.2d 618, 619 n. 1 (Fla. 2d DCA 2001); Hampton v. State, 803 So.2d 813, 815 (Fla. 2d DCA 2001). The record supports the trial court’s conclusion that the guilty plea was negotiated and given in exchange for the agreed upon sentence. Salters accepted the benefits of the negotiated plea by obtaining the sentence of community control and probation instead of a prison sentence as a habitual offender.

The fact that the plea was accepted over the State’s objection and as a result of Salters’ discussions and agreement with the trial court does not render the sentence illegal. As the supreme court concluded in State v. Warner, 762 So.2d 507, 513-14 (Fla.2000), judicial participation in the plea bargaining process is permissible. In Warner, the court approved the decision of the Fourth District Court of Appeal and noted the holding that

a sentence is not per se invalid where the trial court, over the State’s objection, advises a defendant regarding what sentence would be imposed pursuant to a plea of guilty, and accepts the defendant’s subsequent guilty plea.

Warner, 762 So.2d at 508-09. The supreme court recognized that the Fourth and Fifth District Courts of Appeal were in conflict concerning this issue, and it approved the holding in State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), and disapproved State v. Gitto, 731 So.2d 686 (Fla. 5th DCA 1998). Warner, 762 So.2d at 515.

Here, Salters and his attorney negotiated the plea and tendered it after an agreement was reached with the trial court concerning the sentence to be imposed. Salters wanted the benefits of the sentence that was offered in order to have “another chance to live a straight and narrow life.” The trial court accepted the plea being in Salters’ best interests, acknowledged that Salters could “probably be rehabilitated,” noted Salters’ efforts at rehabilitation, and sentenced Salters to the agreed upon sentence. We conclude that the habitual felony offender sentence imposed pursuant to Salters’ agreement with the trial court is legal and that the trial court properly denied Salters’ motion for relief.

Affirmed.

DAVIS and COVINGTON, JJ., Concur.


author: FLETCHER, Judge. SCHWARTZ, Chief Judge

text:
    Angelo PALOUMBIS, Appellant, v. CITY OF MIAMI BEACH, a municipal corporation, Appellee.
    No. 3D02-809.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Rehearing and Rehearing En Banc Denied March 26, 2003.
    Nevel & Greenfield and David H. Nevel, Miami Beach, for appellant.
    Murray H. Dubbin, City Attorney and Kelli V. Cohen, Senior Assistant City Attorney, for appellee.
    Before SCHWARTZ, C.J., and FLETCHER and RAMIREZ, JJ.
   FLETCHER, Judge.

Angelo Paloumbis seeks review of a decision of the appellate division of the Miami-Dade County circuit court quashing a decision of the City of Miami Beach Personnel Board. We grant certiorari.

Paloumbis was a classified employee of the City of Miami Beach working in the City’s code enforcement department. He was employed at the same time by a nightclub, which moonlighting led to termination of his employment by the City purportedly for violating Section 3(d)(1), City Personnel Rule I, which provides:

“EMPLOYMENT RESTRICTIONS:
1. No person who holds a position in the Classified Service of the City shall engage in any other employment or pursue any other gainful occupation than that involved in his/her City duties except as such other" work shall be formally approved by the Appointing Officer under whom he/she serves and by the City Manager. Any person may be appointed to more than one part-time position in the service of City provided that the working hours and [sic] do not conflict.”

[R.5]

Paloumbis appealed his employment termination to the Personnel Board, whose ultimate duty it is to uphold or deny employment appeals.

During Paloumbis’ appeal hearing before the Personnel Board the unrefuted testimony reflected that he was employed by the nightclub while also employed by the City. It further reflected that he had not received approval from his appointing officer and the City Manager for his employment at the nightclub.

Notwithstanding these clear-cut facts the City’s Personnel Board found in Pal-oumbis’ favor. The hearing transcript [at R. 138-48] indicates that the Board reached this result by construing Section 3(d)(1), Personnel Rule I, as requiring the City, in enforcing the rule, to demonstrate an actual conflict of interest between the City employment and the outside employment. The Board construed the rule not to have been violated without such an actual conflict.

The City then sought in the circuit court certiorari review of the Board’s reinstatement of Paloumbis as a City employee. The court agreed with the City, rejected the Personnel Board’s interpretation of Section 3(d)(1), Personnel Rule I, and quashed the Board’s decision (thus upholding the employment discharge of Paloumbis). In granting the City’s petition the circuit court held that the Personnel Board “is limited to determining the ‘truth or untruth’ of a charge against an employee .... ” [R.84], The Personnel Board, according to the circuit court and the City, is thus simply a fact-finding body unable to construe the rules it enforces and mandated to accept the City’s interpretation of those rules.

Such is not the case, however. Of necessity it is the Personnel Board’s task to apply, thus interpret, the rules and to do so in a rational fashion. Its administrative interpretation is entitled to judicial deference as long as it is within the range of possible permissible interpretations. Humhosco, Inc. v. Department of Health & Rehabilitative Servs., 476 So.2d 258 (Fla. 1st DCA 1985). It is arguable— due deference being given — that the language of Section 3(d)(1), Personnel Rule I, lends itself to several interpretations, including the Personnel Board’s interpretation that the rule applies only where there is an actual employee conflict of interest.

As a result, we grant the petition and quash the circuit court’s decision. The cause is remanded to the circuit court for a determination as to whether there is sufficient substantial competent evidence before the Personnel Board to uphold that Board’s decision that there is no actual conflict of interest in Paloumbis’ double employment.

RAMIREZ, J., concurs.

SCHWARTZ, Chief Judge

(specially concurring).

I agree with the result and with the opinion of the court so far as it goes. I would include, however, in the directions for reconsideration on remand the additional question of whether the evidence supports a permissible interpretation of the rule requiring appropriate notice to the employee of the City’s disapproval of his second employment so that, as has apparently occurred in the case of every other Miami Beach employee, he may be afforded the opportunity of leaving the second job, rather than, like Paloumbis, being fired from his City employment.

      . We treat his appeal as a petition for writ of certiorari. See Rule 9.190, Fla. R.App. P.; Anoll v. Pomerance, 363 So.2d 329 (Fla.1978).

      . The City of Miami Beach Personnel Board was originally established by Ch. 18696, Laws of Florida (1937). It is a quasi-judicial body with the authority to review personnel actions, including the termination of employment. See Anoll v. Pomerance, supra note 1.

      . Violation of the rule is an adequate ground for removal. Section 4, City Personnel Rule ' I.[R.6],

      . Section 3(1), City Personnel Rule XI reads in pertinent part:
      "A majority vote of those members present shall be required to deny an appeal. In the event of a tied vote, the appeal shall be upheld.”
      [R.12]

      . See Anoll v. Pomerance, 363 So.2d at 331 ("[T]he judgment of the Board is contingent on the showing made at the hearing.”)

      . Deference is particularly given where the Board is acting in its field of expertise. See Humhosco, Inc. v. Department of Health & Rehabilitative Servs., 476 So.2d 258 (Fla. 1st DCA 1985).

      . See City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982).

      . This does not preclude the City’s legislative body from amending the Rules should it dislike the Personnel Board’s interpretation thereof.

      . Even though we have determined that the circuit court departed from the essential requirements of the law by ignoring competent substantial evidence which supports the decision of the Personnel Board, I fully understand that Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270 (Fla.2001) and Florida Power & Light Co. v. City of Dania, 761 So.2d 1089, 1093 (Fla.2000), require that the circuit court now make that same determination itself. Were it not for these decisions, which I believe require the same kind of purposeless legal churning so rightly decried by the Supreme Court in State v. Rucker, 613 So.2d 460 (Fla.1993); see Mizell v. State, 716 So.2d 829 (Fla. 3d DCA 1998), I believe it would be appropriate to remand simply for outright denial of the City’s petition for certiorari without further consideration. See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 849, 854 (Fla.2001)(Pariente, J., dissenting).

      .In an appropriate case in which, unlike the present one, it may be necessary to reach the issue, I would seriously consider the possibility that, just as the state may not appeal from a jury verdict and judgment of acquittal even if the evidence uncontradictedly demonstrates guilt, a municipality may not, under any circumstances, appeal from a Personnel Board's finding of no violation, as occurred in this case. Despite its promise at oral argument, the City has been able to cite not a single case or authority in the long history of these ubiquitous disciplinary boards in which such an appeal has been recognized.


author: PER CURIAM.

text:
    SYSTEM ONE WORLD COMMUNICATIONS, INC., a Panama Corporation, Appellant, v. DON GROUP, INC., a Florida Corporation, Appellee.
    No. 3D02-2843.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Rehearing Denied March 26, 2003.
    De La Pena & Associates and Leoncio E. De la Pena D. and John Michael Hugh-son, for appellant.
    Gustavo J. Lamelas, for appellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. Major Appliances, Inc. v. Mount Vernon Fire Insurance Company, 462 So.2d 561 (Fla. 3d DCA 1985).


author: LEVY, Judge.

text:
    The HYATT CORPORATION, Appellant, v. PALM BEACH NATIONAL BANK, et al., Appellees.
    No. 3D02-1276.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Demahy Labrador & Drake and Kenneth R. Drake, Miami, for appellant.
    Proenza, Roberts & Hurst and Thomas L. Hurst, Miami; Lauri Waldman Ross, Miami, for Palm Beach National Bank.

      Rones & Navarro and Victor K. Rones, North Miami Beach, for J & D Financial Corporation.
    Before LEVY, SHEVIN, and RAMIREZ, JJ.
   LEVY, Judge.

Appellant/defendant the Hyatt Corporation appeals the lower court’s Summary Final Judgment in favor of appellee/plain-tiff Palm Beach National Bank. Plaintiff/Cross-Appellant, J & D Financial Corporation also appeals the Summary Final Judgment. We affirm.

J & D Financial Corporation is a factoring company. Skyscraper Building Maintenance, LLC, had a contract with Hyatt to perform maintenance work for various Hyatt hotels in South Florida. Skyscraper entered into a factoring agreement with J & D. As part of the factoring agreement, J & D requested Hyatt to make checks payable for maintenance services to Skyscraper and J & D. Of the many checks issued by Hyatt to Skyscraper and J & D, two were negotiated by the bank but endorsed only by Skyscraper. They were made payable as follows:

1. Check No. 1-78671 for $22,531 payable to:
J & D Financial Corp.
Skyscraper Building Maint
P.O. Box 610250
North Miami, Florida 33261-0250
2. Check No. 1-75723 for $21,107 payable to:
Skyscraper Building Maint
J & D Financial Corp.
P.O. Box 610250
North Miami, Florida 33261-0250

Only one of the payees, Skyscraper, endorsed these two checks. The bank cashed the checks. According to J & D, it did not receive the benefit of these two payments.

J & D filed a complaint against Skyscraper and its principals on the guarantee, Hyatt and the bank. J & D sought damages against Skyscraper under the factoring agreement and separately against Hyatt and the bank for negotiation of the two checks. Hyatt answered and raised the bank’s “fault” as an affirmative defense. The bank answered and raised Section 673.1101(4), Florida Statutes (1993) as an affirmative defense. The bank, Hyatt and J & D then moved for summary judgment on the issue of whether the bank properly negotiated the checks. It was uncontested that the bank had a duty to negotiate the checks only on proper endorsement, and if it did not, it would be liable.

The bank argued that the checks were payable to J & D and Skyscraper alternatively, and thus the bank could properly negotiate the checks based upon the endorsement of either of the two payees. The bank further argued that the checks were drafted ambiguously as to whether they were payable alternatively or jointly, and thus under Section 673.1101(4), Florida Statutes, the checks would be construed as a matter of law to be payable alternatively.

Hyatt’s position was that the checks were not ambiguous, were payable jointly and not alternatively, and thus under Section 673.1101, the checks could only be negotiated by endorsement of both of the payees. J & D similarly argued that the checks were payable jointly. The trial court granted Summary Judgment in favor of the bank, finding that Section 673.1101(4) precluded the bank’s liability. Hyatt appealed. J & D filed a cross-appeal.

The issue on appeal is whether or not a check payable to

J & D Financial Corporation
Skyscraper Building Maintenance

(stacked payees) is payable jointly to both payees requiring the endorsement of both, or whether it is ambiguous regarding whether the check was drafted payable alternatively, so that the bank could negotiate the check when it was endorsed by only one of the two payees.

In 1990, Article 3 of the UCC was revised, and the language of UCC Section 3-116 was added to UCC section 3-110 and became subsection (d). Revised UCC Section 3 — 110(d), which added language to follow former 3-116(a) and (b), states, “If an instrument payable to two or more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively.” The net effect of the amendment was to change the presumption. What was unambiguous before is now ambiguous.

Turning to our jurisdiction, Florida has adopted the statutory revision to UCC 3-110, with its enactment of Section 673.1101, Florida Statutes (1992). Section 673.1101(4) now provides the following:

(4) If an instrument is payable to two or more persons alternatively, it is payable to any of them and may be negotiated, discharged, or enforced by any or all of them in possession of the instrument. If an instrument is payable to two or more persons not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only by all of them. If an instrument payable to two or more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively.

§ 673.1101(4), Fla. Stat.

The issue under review has not reached Florida’s appellate courts. However, two trial courts in Florida have addressed this issue in Bijlani v. Nationsbank of Florida, N.A., 25 UCC Rep. Serv.2d (CBC) 1165, 1995 WL 264180 (Fla.Cir.Ct.1996) and City First Mortgage Corp. v. Florida Residential Property & Casualty Joint Underwriting Ass’n., 37 UCC Rep. Serv.2d (CBC) 126, 1998 WL 1095082 (Fla. Miami-Dade County Ct.1998). We find the reasoning in both cases to be persuasive.

In Bijlani, the appellee paid a check which did not have Bijlani’s endorsement. The check was made payable to

Bay Village Inc. Michael
Bijlani & Ron Delo & Assoc
5411 Grenada Blvd
Coral Gables, FL 33133

The trial court granted the bank’s motion for summary judgment, stating that “The multiple payee designation on the check is ambiguous as to whether it is payable to ‘Bay Village Inc.’ ‘Michael Bijla-ni ...’ jointly or alternatively.” Holding that the bank was not liable, the trial court noted that the predecessor statute “provided that if an ambiguity existed as to whether multiple payees were intended as joint or alternative payees, they were deemed joint payees,” while the amended statute applicable to this case “reverses the prior rule.” Id. at 1166.

In City First Mortgage Corp. v. Florida Residential Property & Casualty Joint Underwriting Ass’n., 37 UCC Rep. Serv.2d (CBC) 126, 1998 WL 1095082 (Fla. Miami-Dade County Ct.1998), a Florida County Court reached the same conclusion. In City First Mortgage Corp., the bank paid a check which did not have City First Mortgage Corp.’s endorsement. The check was made payable to

BORIS LA ROSA ODALYS LA ROSA CITY FIRST MTG. CORP. ISAOA ATIMA

The county court granted First Union’s Motion to Dismiss Complaint, stating that the Complaint failed to state a cause of action against the bank. The court found that,

On its face, the Check is payable to two or more persons and, as a matter of law, the payee designation on the Check is ambiguous as to whether it is payable to the persons alternatively.

Id. at 127. The court cited to § 673.1101(4), Fla. Stat.

Although Florida appellate courts have not yet considered the issue at hand, other courts in the country have. See Dimmitt & Owens Financial, Inc. v. USA Glass & Metal, Inc., 1998 WL 852862 (N.D.Ill.1998)(the listing of names on the check did not contain the word “or” or “and”, thus the complete absence of any indication as to whether the check was intended to be payable alternatively or jointly, the court found that the check was ambiguous as to whether it was made payable to either payee alternatively and held the check could be paid to either payee individually); Harder v. First Capital Bank, 332 Ill.App.3d 740, 266 Ill.Dec. 770, 775 N.E.2d 610 (2002)(checks listing multiple payees without grammatical connectors except between names of two payees were ambiguous as to whether checks were payable jointly or in the alternative, and thus were payable in the alternative with endorsement of any payee listed singly or with endorsement of both payees that were listed together); Meng v. Maywood Proviso State Bank, 301 Ill.App.3d 128, 234 Ill.Dec. 92, 702 N.E.2d 258 (1998) (cashier’s check which the named payee specially indorsed to make payable to two new payees was ambiguous where it did not include any language or markings, such as the word “and” or the word “or,” regarding whether the check was payable alternatively or jointly; thus, the check was payable alternatively); Allied Capital Partners, L.P. v. Bank One, Texas, N.A., 68 S.W.3d 51 (Tx.Ct.App.2001)(checks which listed two payees that were not connected by “and” or “or” were ambiguous as to whether they were payable to two payees jointly or alternatively, and thus bank complied with statute in treating ambiguous payees as alternate payees, and cashing checks on endorsement of only one payee).

For example, a case which has addressed this particular issue with almost identical facts to those before us is Allied Capital Partners, L.P. v. Bank One, Texas, N.A., 68 S.W.3d 51 (Tx.Ct.App.2001). In Allied, the checks were made payable to:

Complete Design
Allied Capital Partners, LLP.
2340 E. Trinity Mills St. 300
Carrollton, Texas 75006

The debtor endorsed the checks and deposited them into a corporate bank account. The factor then sued the bank for conversion for payment on the debtor’s endorsement.

On appeal from the adverse summary judgment, the factor cited pre-revision law. The Texas appellate court affirmed the summary judgment, stating:

While it does appear that former section 3.116 would have required the checks in this case to be payable to and negotiable only by all of the payees listed, this is no longer the case ...

Allied Capital Partners, L.P. v. Bank One, 68 S.W.3d at 54. Under these facts, the court found that the check was unambiguous.

We conclude that based on the 1990 amendment to the Uniform Commercial Code, when a check lists two payees without the use of the word “and” or “or”, the nature of the payee is ambiguous as to whether they are alternative payees or joint payees. Therefore, the UCC amendment prevails and they are to be treated as alternative payees, thus requiring only one of the payees’ signatures. Consequently, the bank could negotiate the check when it was endorsed by only one of the two payees, thereby escaping liability.

The standard of review when reviewing the entry of summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). As the parties correctly point out, this is a case of first impression in Florida appellate courts. Section 3-116 of the 1952 UCC version provided that:

An instrument payable to the order of two or more persons
(a) if in the alternative is payable to any one of them and may be negotiated, discharged or enforced by any of them who has possession of it;
(b) if not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.

U.C.C. § 3-116 (1952). Under this version of the UCC, it was presumed that an instrument made payable to two payees was payable jointly. See Allied Capital Partners, L.P. v. Bank One Texas, N.A., 68 S.W.3d 51, 55 (Tex.Ct.App.2001). Florida adopted this provision of the UCC in Section 673.116, Florida Statutes (1969).

Hyatt’s position, in sum, is that if a stacked payee designation was considered unambiguous and payable jointly before the amendment of the applicable statute, that same payee designation is unambiguous after the amendment of the statute. However, based on the foregoing case law, we find this position untenable because it ignores the shift in presumption brought about by the UCC revision. With the statutory presumption removed, the same stacked payee designation that was unambiguous and payable jointly pre-1992 is now ambiguous and payable in the alternative. Thus, we hold that the trial court was correct in granting the Summary Final Judgment.

Affirmed.


author: HARRIS, C., Senior Judge.

text:
    STATE of Florida, Appellant, v. Anthony J. FERREIRA, Appellee.
    No. 5D02-2396.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    Rehearing Denied March 27, 2003.

      Charlie J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   HARRIS, C., Senior Judge.

In this “much ado about nothing” case, the State appeals contending the court erred in correcting its previous sentence which made an habitual offender sentence run consecutively with a sentence imposed for another conviction arising out of one criminal incident. In this case, Ferreira was sentenced on a first degree murder conviction to life in prison without parole. He was also sentenced on an attempted armed robbery conviction as an habitual offender to a consecutive thirty year prison term. Our supreme court held in Hale v. State, 630 So.2d 521 (Fla.1993), that sentences for multiple crimes committed during a single incident which are enhanced through classifying the defendant as an habitual offender may not be increased further by imposing consecutive sentences.

The State urges that Hale should not apply because Ferreira was classified as an habitual offender on only one of the convictions, attempted armed robbery. However, it seems axiomatic that whether the first degree murder sentence runs consecutive to the armed robbery sentence or whether the armed robbery sentence runs consecutive to the first degree murder sentence, the overall sentence has been enhanced twice because of the classification as an habitual offender. We agree with the trial court that Hale applies and affirm.

AFFIRMED.

PALMER, J., concurs.

PETERSON, J., concurs in result only.


author: PER CURIAM. HARRIS, C. Senior Judge,

text:
    Nancy K. ALEXANDER, etc. et. al, Appellant, v. A.B. ANKS, INC., Appellee.
    No. 5D02-1567.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    Rehearing Denied March 27, 2003.
    John V. Baum, Maitland, for Appellants.
    Bruce A. Stucker, Windemere, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

PALMER, J., and COBB, W., Senior Judge, concur.

HARRIS, C., Senior Judge, dissents, with opinion.

HARRIS, C. Senior Judge,

dissenting.

Alexander leased commercial space in an office building from A.B. Anks, Inc. Shortly after talcing possession in July 2000, Alexander became aware that rodents audibly roamed the crawl space above her unit. Alexander notified Anks by letter dated September 1, 2000, complaining of the rodents, as well as other problems, and requested that the matter be addressed. After months of no relief during which rodents died in the crawl space or duct work, and flies were attracted to their dripping bodily fluids, Alexander’s attorney wrote to Anks on January 4 and reaffirmed his client’s previous letter and demanded that action be taken “within seven days from the receipt of this letter” or the lease would be terminated as of January 31, 2001. Finally, on January 18th, when no action had been taken, Alexander’s attorney again wrote Anks and advised them that a “rodent or some other animal has apparently expired in the roof immediately over my client’s offices, and blood from the remains of whatever animal may have died began dripping from the interior ceiling onto my client’s furnishings.” The Attorney then advised Anks that the lease was terminated as of January 31, 2001. Alexander moved out of the premises.

Anks sued Alexander for abandoning the lease. Alexander defended on the basis that Anks’ breach of the lease by failing to resolve the rodent problem justified her termination. She counterclaimed for moving expenses and for damages resulting from the higher rental which she now was required to pay. For the purpose of its summary judgment hearing and this appeal, Anks admits that it breached the lease by failing to resolve the rodent problem but moved for summary judgment on the sole basis that Alexander failed to meet the 20 day notice requirement of section 83.201, Fla. Stat. (2000), before terminating the lease. The trial court granted summary judgment against Alexander for approximately $30,000 on that basis. I would reverse.

Section 83.201 permits the tenant, if the landlord is in default of the lease by failing to perform repairs or maintenance as required by the lease, to give the landlord 20 days written notice to cure the default and to withhold rental payments for the next pay period and yet remain in possession. If the landlord fails to make the repairs within that period, then the tenant is permitted to vacate the premises and keep the withheld rental, and terminate the lease. But this is only one of the tenant’s remedies for a landlord’s breach of the lease. Section 83.201 provides specifically that it is cumulative and that the tenant has available all other remedies.

In this case, Alexander chose to exercise another remedy. Instead of asserting her section 83.201 right to coerce the landlord’s compliance with its obligations by remaining in possession while withholding rental, she elected instead to rely on the traditional remedy for breach of lease, termination. Section 83.201 is merely an additional remedy by which the tenant can exert pressure on the landlord to meet its contractual obligation to make necessary repairs by staying in possession and not paying rental until the repairs are made; it was not intended to shield a defaulting landlord from the risk of termination of its lease because of its continuing, wilful default. The majority position will permit a landlord to constantly default on its repair obligations and yet prevent termination by merely making the repairs after notice is given and at the last moment. This can’t be the law.

      . The lease provides a remedy only if the tenant breaches and says nothing about the landlord breaching. However, the only notice requirement contained in this default provision is 10 days. Here, the landlord was given over 20 days notice of this conditional termination and yet took no action.

      . Again, the landlord was given nearly two weeks notice of the termination.

      .Even though termination is permitted if the tenant chooses this remedy, there is no indication that the legislature intended to prohibit termination unconnected with coercing repairs by withholding rent. It may be, as it was in this case, that the tenant will choose to simply discontinue a relationship with a defaulting landlord who shows a wilful and continuing disregard for its commitments.


author: DAVIS, Judge.

text:
    Joseph HEATH, Petitioner, v. STATE of Florida, Respondent. Jose Balderas, Petitioner, v. State of Florida, Respondent. Chad Reese, Petitioner, v. State of Florida, Respondent. Alonzo Lamar Elliott, Petitioner, v. State of Florida, Respondent.
    Nos. 2D02-2666, 2D02-2899, 2D02-3121, 2D02-3125.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.
    Rehearing Denied March 20, 2003.

      James Marion Moorman, Public Defender, Bartow, and Clark E. Green, Assistant Public Defender, Bartow, for Petitioners.
    Charlie Crist, Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

In these consolidated cases, the four petitioners have asked this court to issue a writ of certiorari which concludes that the circuit court order approving the Tenth Judicial Circuit’s use of “snapouts” amounted to a violation of a clearly established principle of law resulting in a miscarriage of justice. We deny the petitions for writ of certiorari.

Each petitioner below had been adjudicated guilty by the county court pursuant to a document called a “memorandum of sentence,” or as it is otherwise known, a “snapout.” Due to the “mischief’ that these snapouts can cause on review, this court has expressed concern over their use. See Richardson v. State, 761 So.2d 1232 (Fla. 2d DCA 2000); Peterson v. State, 730 So.2d 830, 831 (Fla. 2d DCA 1999); Grantham v. State, 735 So.2d 525 (Fla. 2d DCA 1999). Based on this case-law, the petitioners appealed their adjudications to the circuit court challenging the county court’s use of the memoranda of sentence. The circuit court affirmed, stating, “the memorandum of sentence ... is an adequate record of the sentence.” Petitioners now ask this court to determine that the circuit court’s ruling warrants cer-tiorari review.

This is a “second-tier” certiorari proceeding because the circuit court entered the orders we are now asked to review while acting in its appellate capacity. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995). Our inquiry in such cases is limited to whether the circuit court afforded the petitioners procedural due process and whether it applied the correct law. Ivey, 774 So.2d at 682; Haines City, 658 So.2d at 525. Because our concern is with the seriousness of the error, not the mere existence of error, we will grant certiorari only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. Ivey, 774 So.2d at 682.

Based on our review of the above cited cases issued by this court on the subject of memoranda of sentence/snap-outs, we conclude that the petitioners have failed to demonstrate a violation of law that is of sufficient magnitude as to require the granting of certiorari. The law that is to be applied to the use of memo-randa of sentences/snapouts was established in this district by Peterson v. State, 730 So.2d 830, 831 (Fla. 2d DCA 1999), where we expressed our reservations about the use of snapouts, but stopped short of prohibiting their use:

Our record contains no sentence on a form comparable to any form in Florida Rule of Criminal Procedure 3.986. When this court ordered that the record be supplemented with the sentence so we could determine whether probation was imposed, we were informed by the Clerk of the Tenth Judicial Circuit that written sentences are only prepared in that circuit for sentences of state imprisonment. When a sentence imposes only probation or a term in the county jail, apparently this circuit is relying exclusively upon the ‘Memo of Sentence,’ also called a ‘snapout.’ This procedure makes it difficult for the appellate court to determine the sentence and to review the conditions of probation.

We concluded Peterson by noting that “the procedure they apparently are utilizing on a regular basis may not always create an adequate record for review.” Id. While we clearly expressed our concerns over the use of snapouts in Peterson, we did not expressly prohibit their use. See also Richardson, 761 So.2d at 1233. Given Peterson’s language, we cannot say that the circuit court’s order, finding that a snapout was an adequate record of the sentence, applied the incorrect law. The court applied the law that this district has established. Neither can we say, in view of Peterson, that the circuit court’s order violated an established principle of law resulting in a miscarriage of justice. Since there is no dispute here as to whether the petitioners were afforded procedural due process of law, we need not address that prong of the test. We accordingly deny the petitions for writ of certiorari in all cases.

FULMER and COVINGTON, JJ., Concur.


author: SHAHOOD, J.

text:
    NME PROPERTIES, INC., Appellant, v. Florence RUDICH, as Personal Representative of the Estate of Ida Revitz, deceased, Appellee.
    No. 4D00-4490.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Rehearing Denied April 9, 2003.
    Susan M. Seigle of Ruden, McClosky, Smith, Schuster & Russell, P.A., West Palm Beach, for appellant.

      Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Dan Cytryn of the Law Offices of Dan Cytryn, P.A., Tamarac, for appel-lee.
   SHAHOOD, J.

We affirm the punitive damage award against NME Properties, Inc., d/b/a Menorah House, following the death of Ida Re-vitz, a Menorah House resident, based on vicarious liability. Likewise, we also affirm all other issues raised on appeal and cross-appeal, but write to address the non-delegable duty of a nursing home licensee to provide adequate care to its residents, even though the nursing home was operated by an independent contractor.

Facts

Appellee, Florence Rudich, as Personal Representative of the Estate of Ida Revitz, Deceased, filed a six-count second amended complaint against appellant, NME Properties, Inc. d/b/a Menorah House, and others, including Dr. Aaron, following the death of Revitz. Rudich alleged in count I, a violation of Chapter 400, Florida Statutes (The Florida Nursing Home Residents’ Rights Act), not resulting in death; count II, a violation of Chapter 400, Florida Statutes, resulting in death; count III, negligence; count IV, medical negligence against Menorah House; count V, wrongful death; and count VI, medical negligence against Dr. Aaron. In addition, appellee was permitted to include a prayer for punitive damages.

NME Properties, Inc. (NME), a Delaware corporation, was licensed by the State of Florida to operate a nursing home, and owned and operated Menorah House, located in Boca Raton, Florida. Revitz was a resident of Menorah House from July 1992 until January 1995, when she was discharged to North Broward Medical Center and subsequently to Hospice where she died in February 1995. The death certificate listed the primary cause of death to be acute bronchopneumo-nia secondary to decubitus ulcers.

At the time of her admission in July 1992, Revitz was in the middle phase of Parkinson’s Disease, incontinent of bowel and bladder, had moderate to severe dementia, memory problems and limited mobility. She was totally dependent on Menorah House personnel for mobility, toilet needs, and bathing.

Menorah House had written policies and procedures on the care and monitoring of decubitus ulcers, which included record keeping requirements regarding treatment and status of the ulcer as well as notifying a physician and the Director of Nursing. The treatment nurse, who performed treatments and dressing changes for the residents, was responsible for filling out pressure ulcer reports and documenting residents’ decubitus ulcers; those reports were not contained in the residents’ charts. Menorah House’s Director of Nursing testified that it was the nursing home’s responsibility and its staff to provide the residents with the appropriate observation, assessment, nursing diagnosis, planning, intervention and evaluation of care. She agreed that if decubitus ulcers were not treated, they would worsen.

After suffering an 11-pound weight loss and a brief admission to the hospital where tests suggested colon cancer, Revitz was readmitted to Menorah House on October 17,1994. At that time, Revitz did not have any decubitus ulcers or pressure sores on her body.

Records indicate that from December 16 through December 26, 1994, Revitz was not bathed or showered, even though the same was required on a daily basis. On December 24, Desitin was applied to Re-vitz’s right hip and buttocks and was to be applied on a daily basis until the area was healed. Such treatment is commonly used for redness commonly associated with incontinent residents. On December 29, Re-vitz acquired a Stage Two decubitus ulcer on her coccyx, approximately two centimeters in size. A Ferris Polymer gel-filled pad was applied to Revitz’s right hip; however, no physician’s order was entered for such treatment. Although a Stage Two decubitus ulcer required that a doctor be notified, a doctor was not notified of the ulcer until January 9, 1995. No treatment was provided for the decubitus ulcer at the time it was discovered. Revitz’s chart did not contain any updates on the status of the decubitus ulcer on Revitz’s coccyx or hip. A January 2, 1995 pressure ulcer report stated that the decubitus ulcer on Revitz’s coccyx was acquired on December 29, 1994, however, the nurses’ notes made no mention of it until January 9, 1995. The treatment nurse did not obtain a separate order for treatment of the coccyx ulcer, but claimed that she must have used the order written for the right hip. By January 9, the nurses’ notes described the decubitus ulcer as a Stage Four ulcer, % x 5 centimeters in size, foul-smelling, with black edges. A pressure ulcer report of that same date reflected a 3 centimeter, Stage Three ulcer. At that time, Dr. Aaron was contacted and he prescribed a cleansing treatment for the coccyx and hip. This was the first record of any treatment for the decubitus ulcer on the hip. A decu-bitus ulcer on Revitz’s left hip was first noted in a pressure ulcer report on January 16. By that time, the ulcers had not improved and saline as a cleaner was prescribed. By January 24, the coccyx decu-bitus ulcer was 8x4 centimeters and the left hip decubitus ulcer was 4 centimeters. Rudich was not notified of her mother’s ulcers until January 24 when Revitz was discharged from Menorah House and taken to the hospital. Once at the hospital, Dr. Aaron recommended a plastic surgeon regarding the ulcers or a Hospice consult. Revitz was discharged to Hospice where she later died on February 4,1995.

Dr. Vinger, appellee’s expert, testified that Revitz required daily skin examinations and that the absence of any documentation from January 2 to January 9 and the failure to contact the attending physician was a violation of both state and federal standards. He opined that Revitz needed to be turned and repositioned and to be given appropriate pressure relief in order to prevent the development of the coccyx decubitus ulcer. In January 1995, there was no documentation that Revitz had been turned and repositioned for thirty of seventy shifts, nor was there evidence that she had been changed regularly, despite her incontinent condition. During the time in which Revitz had Stage Three and Stage Four ulcers, Dr. Aaron was never notified by the staff that on several occasions, Revitz did not ingest the antibiotic prescribed by him. Further, no pain medication for her decubitus ulcers was administered. In addition to these glaring errors, charting entries indicated that Revitz, with her advanced stage of decubitus ulcers, was showered on January 21 and was bathed on January 27; Revitz had been admitted to the hospital on January 24.

The jury returned a verdict finding both Menorah House (80%) and Dr. Aaron (20%) negligent, but that such negligence did not result in her death. The jury assessed damages in the amount of $9,920.00 in medical expenses, $150,000 for pain and suffering, and a punitive damage award against NME in the amount of $800,000.

Summary Judgment Motion

Post-trial, NME moved to set aside the verdict for punitive damages arguing that the trial court erred in denying its motion for summary judgment on the punitive damage claim. In its motion for summary judgment, NME claimed that under a management agreement with First Healthcare Corporation (First Healthcare), an independent contractor, NME had no responsibility for hiring, firing, and daily management functions, and therefore, could not be liable for punitive damages arising from the conduct of First Healthcare’s employees. While NME conceded liability for compensatory damages for the acts and or omission of the nurses and nurses’ aides, it disputed the imposition of punitive damages.

In support of its motion, NME relied upon Timothy Pullen, Vice President of Tenet Healthcare, the parent corporation for NME. Pullen, through deposition, testified that NME owned the assets of Menorah House, and that NME, then known as Hillhaven, Inc., entered into a management agreement with First Healthcare in 1990 to provide management services to Menorah House. Pullen claimed that during the relevant periods from October 1994 through January 1995, none of the parent companies, National Medical Enterprises, Inc., NME Property Corporation or NME Property Holding Co., hired or fired employees of Menorah House, paid wages and salaries, or exerted any control over the conduct of the employees at Menorah House. Rather, First Healthcare managed those functions.

NME argued that punitive damages should not be imposed vicariously against a licensee who operates a nursing home through an independent contractor. This, NME claims, would extend the holding of Mercury Motors Express v. Smith, 393 So.2d 545 (Fla.1981), which held that before an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on his part since punitive damages are imposed only as a punishment of the defendant and as a deterrent to others. See id. at 549. Following a hearing, the trial court denied appellant’s motion for summary judgment.

Analysis

We affirm the trial court’s denial of the motion for summary judgment and hold that NME is liable for punitive damages based upon vicarious liability. At all times material hereto, NME admitted that it was a licensee as defined by the Florida Administrative Code and was licensed by the State of Florida to operate a nursing home and owned and operated a nursing home under the name of Menorah House. NME cannot escape its contractual liability by delegating performance under a contract to an independent contractor. The contracting party remains hable for the negligent performance of the contract whether it be performed for him by his employee or an independent contractor. See Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 59 (Fla. 4th DCA), review denied, 422 So.2d 842 (Fla.1982).

Nursing home healthcare is controlled by extensive statutes and regulations in this state. See Ch. 400, Fla. Stat. (1995). Florida Administrative Code Rule 59A4-103(4)(a) provides that “[t]he licensee of each nursing home shall have full legal authority and responsibility for the operation of the facility.” Such duty is a non-delegable duty such that NME cannot avoid liability by hiring an independent contractor to perform certain tasks. Section 400.23(1), Florida Statutes (1995), provides a cause of action against any licensee responsible for the violation of a resident’s rights, including the failure to provide a resident with appropriate observations, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff. See also § 400.23(3), Fla. Stat. (1995). Said cause of action provides for recovery of actual or punitive damages.

Generally, when an activity can be performed only pursuant to a license or franchise granted by a governmental entity, the licensee or franchisee remains responsible for the performance of the activity — no matter who actually performs it. See Hamid v. Metro Limo, Inc., 619 So.2d 321, 322 (Fla. 3d DCA 1993).

In Irving, an action was brought involving the liability of a hospital for the alleged negligent diagnosis and treatment by an emergency room physician that resulted in serious injury. The critical issue at hand was whether the emergency room physician was an employee of the hospital or an independent contractor. The plaintiff requested that certain instructions be given to the jury, arguing that even if the physician was an independent contractor, the hospital could not avoid liability by delegating performance. In so holding, the court applied the Restatement of Torts, which states:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

Irving, 415 So.2d at 61 (quoting Mduba v. Benedictine Hosp., 52 A.D.2d 450, 384 N.Y.S.2d 527, 529 (1976)(quoting Restatement, 2d, Torts, § 429, Comment b)).

In Schropp v. Crown Eurocars, Inc., 654 So.2d 1158, 1159 (Fla.1995), the court set forth the two methods by which a corporation may be held liable for punitive damages:

A review of the case law in Florida reveals two methods have been established by which a corporation may be held liable for punitive damages: (1) vicarious liability based on the willful and malicious actions of an employee with a finding of independent negligent conduct by the corporation; or (2) direct liability based on the willful and malicious actions of managing agents of the corporation.

Under the vicarious liability theory, the court noted that “it is not necessary for the plaintiff to establish that the corporate employer acted with the same heightened culpability as the employee to allow punitive damages. It is sufficient if the plaintiff establishes ordinary negligence on the part of the corporate employer.” Id. at 1160; see also Beverly Enters.-Fla., Inc. v. Spilman, 661 So.2d 867, 873 (Fla. 5th DCA 1995), review denied, 668 So.2d 602 (Fla.1996)(vicarious liability required willful and wanton misconduct on the part of the employee and some fault on the part of the employer, not necessarily willful or wanton misconduct which foreseeably contributed to the plaintiffs injury). As to the second method, the acts of the managing agent itself must be willful and malicious to warrant the imposition of punitive damages on the corporation.

In applying the above rationale to the nursing home setting, the California Supreme Court in California Ass’n of Health Facilities v. Department of Health Services, 16 Cal.4th 284, 65 Cal.Rptr.2d 872, 940 P.2d 323 (1997), held that the licensee of a nursing home could not avoid vicarious liability for the conduct of its employees/independent contractors who engaged in the operation of the facility. The court held that the “rule of nondelegable duties of licensees” was akin to the rule of respon-deat superior in tort law and that the licensee, if he elects to operate his business through employees, must be responsible to the licensing authority for their conduct in the exercise of his license. See id. at 330. By virtue of the ownership of a license such owner has a responsibility to see to it that the license is not used in violation of law. See id. The court went on to hold that if a licensee were not liable for the actions of his independent contractor, effective regulation would be impossible. See id. The licensee could contract away the daily operations of the business to independent contractors and become immune to disciplinary action by the licensing authority. See id. The principle that a licensee will be held liable for the acts of its agents is one that has been applied whether the agent is an independent contractor or an employee. See id.

In this case, despite NME’s assertions to the contrary, the management agreement entered into between First Healthcare and Hillhaven, Inc., now NME, does not insulate NME from liability for First Healthcare’s' negligence. Because NME had a nondelegable duty to provide the proper care to its nursing home patients, First Healthcare became its managing agent for this purpose.

We reject NME’s argument that it could not be considered the employer of the nurses and nurses’ aides unless Rudich presented evidence that it interfered with the delivery of care to the extent it assumed detailed direction of that care. Clearly, the management agreement provided NME with a certain degree of control over all decisions made by First Healthcare regarding the nursing home. The agreement does not establish, as a matter of law, that the nurses and nurses’ aides at Menorah House were independent contractors for whose tortious conduct NME could not be liable. The management agreement specifically states that NME owns the property upon which Menorah House is located and owns the license to operate and “has the sole right to operate the same.” It further provides that First Healthcare as manager shall provide management, consulting, and advisory services to NME in connection with the operation of the facility. First Healthcare’s recruitment, selection, employment, training, promotion, and termination of all facility personnel and the establishment of all employee performance standards is “subject to Owner’s review and approval.” Likewise all operational polices and procedures necessary to establish and maintain the standard of patient care appropriate for the facility developed by First Healthcare was also “subject to the Owner’s prior written approval.”

Here, the evidence suggests that First Healthcare’s own administrators were negligent in supervising the staff, including permitting the facility to be short on staff during holiday periods (when the ulcers on Revitz developed). There was also a pattern of record keeping irregularities which resulted in records being inaccurate or non-existent. That is sufficient to support vicarious liability for punitive damages when combined with the willful conduct of the nursing employees.

Briefly, we note on cross-appeal that under Beverly Enterprises-Florida v. Knowles, 766 So.2d 335 (Fla. 4th DCA 2000)(en banc), review granted, 789 So.2d 346 (Fla.2001), the trial court was required to direct a verdict on count I, a violation of Revitz’s statutory rights under section 400.23, not resulting in death. Knowles held that the personal representative of a deceased nursing home resident may bring action against the nursing home for violation of Patient’s Bill of Rights only when the deprivation or infringement of the resident’s rights caused the patient’s death. See id. at 337. Based on Knowles, we affirm the trial court’s entry of directed verdict on count I.

AFFIRMED.

STONE and WARNER, JJ., concur.

STONE, J., did not participate in oral argument, but has had the opportunity to review the entire proceedings.

      . This claim was settled prior to trial, but Dr. Aaron's name was included on the verdict form as a "Fabre” defendant.

      . Decubitus ulcers are a breakdown of the skin caused by excess or constant pressure being applied to the skin and underlying tissue in the area of a bony prominence. This constant pressure decreases the blood supply to the tissues causing them to die and become necrotic. There are four stages of decubitus ulcers: stage one, a redness on the surface of the skin that does not blanch with pressure; stage two, further damage to the skin appearing as an abrasion or blister; stage three, a hole in the skin exposing the underlying tissue or fat; and stage four, a hole in the skin developing into necrotic or dead tissue and fat, exposing bones, muscles and other structural tissue.

      . At that time, NME was owned by NME Property Holding, Inc. and NME Properties Corp., which was a wholly-owned subsidiary of National Medical Enterprises, Inc. National Medical Enterprises, Inc. later become Tenet Healthcare.

      . The purpose of this part is to provide for the development, establishment, and enforcement of basic standards for: (1) The health, care, and treatment of persons in nursing homes and related health care facilities; and (2) The maintenance and operation of such institutions that will ensure safe, adequate, and appropriate care, treatment, and health of persons in such facilities. § 400.11, Fla. Stat. (1995).


text:
    Thomas B. JOHNSTON, et al., Appellants, v. William MEREDITH, et al., Appellees.
    No. 3D02-2655.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Clarification Denied March 26, 2003.
    Wilson, Elser, Moskowitz, Edelman & Dicker and Ricardo J. Cata, Miami, and Ariana Fajardo, Miami Springs, for appellants.
    Stewart Tilghman Fox & Bianchi and James B. Tilghman, Jr., Miami, for appel-lees.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Thomas B. Johnston, as the District Grandmaster and member of Kappa Sigma Fraternity, Kappa Sigma Fraternity, and Epsilon Beta Chapter of Kappa Sigma Fraternity appeal from a trial court Order denying their Motion to Quash Service of Process. We reverse.

William Meredith, as Personal Representative of the Estate of Chad Meredith, filed a wrongful death lawsuit against the Appellants and three of the late Chad Meredith’s fraternity brothers. Service of process was effected on the three fraternity brothers individually and as members of Epsilon Beta and Kappa Sigma, and on Thomas Johnston as the District Grand Master and a member of Kappa Sigma. Appellants Johnston, Kappa Sigma, and Beta Epsilon filed a Motion to Quash Service of Process, contending that service of process on Johnston was insufficient to obtain jurisdiction over Kappa Sigma and Epsilon Beta because Kappa Sigma and Epsilon Beta were voluntary, unincorporated associations which could only be sued by serving all of their members. The trial court denied the motion. This appeal follows.

It is undisputed that Kappa Sigma and Epsilon Beta are voluntary, unincorporated associations. Thus, the trial court erred in denying the Motion to Quash Service of Process because such an association must sue or be sued in the names of the individuals composing it rather than its firm name. See Asociacion De Perjudicados Por Inversiones Efectuadas En U.S.A. v. Citibank, F.S.B., 770 So.2d 1267, 1269 n. 3 (Fla. 3d DCA 2000). Accordingly, we reverse and remand with directions to the trial court to grant the motion.

Unlike some other jurisdictions that permit an unincorporated association to sue or be sued in its own name, Florida does not have such an enabling statute. The question regarding whether these associations should be amenable to suit in Florida is within the province of the legislature, not the judiciary.

Reversed and remanded with directions.

      . For example, in Virginia, "[a]ll unincorporated associations or orders may sue and be sued under the name by which they are commonly known and called, or under which they do business, and judgments and executions against any such association or order shall bind its real and personal property in like manner as if it were incorporated.” Va.Code § 8.01-15.


author: KLEIN, J.

text:
    Ralph LEVIN and Estelle Levin, Appellants, v. PALM COAST BUILDERS AND CONSTRUCTION, INC., a Florida corporation, Appellee.
    No. 4D01-4662.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Rehearing Denied April 10, 2003.

      Keith T. Grumer and Maidenly Sotuyo-Macaluso of Grumer & Levin, P.A., Fort Lauderdale, for appellants.
    Thomas D. DeCarlo of Cameron, Davis & Gonzalez, P.A., West Palm Beach, for appellee.
   KLEIN, J.

Palm Coast, which built a home for the Levins, filed a mechanic’s lien alleging it had not been fully paid. Palm Coast partially recovered damages, but the court found the lien fraudulent. We affirm.

The trial court found that the lien filed by Palm Coast was fraudulent because it included nonlienable items such as pool upkeep charges, lawn maintenance charges, homeowner’s association fees and utility charges. Palm Coast contends that because its building contract required it to pay for these items it could properly include them in its lien.

Our lien law defines “improvement” as something that is done for the “permanent benefit” of the land. § 713.01(14), Florida Statutes (2001). Although planting landscaping would constitute an improvement, maintaining it does not, for purposes of qualifying the labor for a lien. Legault v. Suncoast Lawn Serv., Inc., 486 So.2d 72 (Fla. 4th DCA 1986). We find no error in the trial court’s conclusion that the above items were not lienable, or the finding that the lien was fraudulent. Whether this was willful exaggeration under section 713.31(2)(a) was an issue of fact. As the trial court noted; these items were not lienable “by any stretch of the imagination.” Stevens v. Site Developers, Inc., 584 So.2d 1064 (Fla. 5th DCA 1991).

The Levins contend that the trial court was required as a matter of law to award them punitive damages after finding the lien to be fraudulent, relying on section 713.31 (2)(c) which states that a “lienor who files a fraudulent lien shall be liable to the owner or the defrauded party in damages, which shall include ... punitive damages in an amount not exceeding the difference between the amount claimed by the lienor to be due or to become due and the amount actually due or to become due.”

Palm Coast responds that at no time did the Levins claim punitive damages in either the pleadings or the pretrial stipulation, nor did they comply with section 768.72, Florida Statutes, which provide the procedure for asserting punitive damage claims. We agree with Palm Coast that the Levins did have to seek punitive damages in the pleadings and comply with section 768.72 which requires a plaintiff to provide a reasonable evidentiary basis for a punitive damage claim before including it in a complaint. Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995).

We have considered the other issues raised on appeal and cross-appeal and find them to be without merit. Affirmed.

STEVENSON, J., and BAILEY, JENNIFER D., Associate Judge, concur.


text:
    M.N., the Mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D02-1019.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Rehearing Denied April 11, 2003.
    Eugene S. Garrett, Boca Raton, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children & Families.
    Eddie E. Stephens, III, of Christiansen & Jacknin, West Palm Beach, for appellee R.N., the Father.
   PER CURIAM.

In this dependency case, M.N., the mother, appeals the trial court’s February 7, 2002 order, denying her motion to change placement from the father, R.N. M.N. also seeks review of the trial court’s order entered September 26, 2000, denying her motion for continuance. We have carefully reviewed the record and find no error in the trial court’s denial of M.N.’s motion for change of custody.

We also note that M.N.’s appeal of the September 26, 2000 order was untimely. The trial court’s order dated May 13, 1999, which adjudicated the children dependent and ordered the family to attend treatment services, was the final order on appeal. Thus, that order could not be appealed via the February 7, 2002 order. See A.G. v. Dep’t of Children & Family Servs., 731 So.2d 1260 (Fla.1999); G.L.S. v. Dep’t of Children & Families, 724 So.2d 1181 (Fla.1998); O’Brien v. Juvenile & Domestic Relations Court of Dade County, 161 So.2d 220 (Fla. 3d DCA 1964).

AFFIRMED.

KLEIN, STEVENSON, JJ., and BAILEY, JENNIFER D., Associate Judge, concur.


text:
    Armando PEREZ, Appellant, v. Gloria PEREZ, Appellee.
    No. 3D01-1661.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Jacqueline M. Valdespino, Coral Gables, for appellant.
    Jose L. Lago, for appellee.
    Before COPE, GREEN and RAMIREZ, JJ.
   PER CURIAM.

The final judgment of dissolution of marriage is affirmed. The trial court’s rulings regarding the primary residence of the child of the marriage were within its discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); § 61.13(2), (3), Florida Statutes (2002). The appellant complains that a visitation schedule has not yet been established by the parties, but the final judgment reserves jurisdiction for the court to resolve that issue if the parties are unable to reach agreement.

Affirmed.


author: GRIFFIN, J. SHARP, W., J.,

text:
    STATE of Florida, Appellant, v. Jeffrey R. FAULK, Appellee.
    No. 5D02-565.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.
    Rehearing Denied March 27, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellee.
   GRIFFIN, J.

The State of Florida appeals a downward departure sentence. We reverse.

On August 25, 2001, Jeffrey R. Faulk [“Faulk”] was seen placing an automobile battery from the service bay of a U-Haul dealership in the trunk of his vehicle. When confronted by a U-Haul employee, Faulk allegedly attempted to run away and struggled with the employee. However, he waited for police to arrive. He was arrested and ultimately charged by information with robbery with subsequent force and misdemeanor trespass in a structure.

At a hearing which took place on January 30, 2002, the record suggests that plea discussions involving the trial judge took place off the record. When the parties went on the record, the trial judge characterized these discussions as follows:

Mr. Faulk, the court made an offer to your attorney to resolve this case.

Faulk’s guidelines scoresheet showed a minimum permissible sentence of 40.65 months in the Department of Corrections. The “offer” was to impose a downward departure sentence for the robbery of five years suspended, upon the successful completion of two years of community control, followed by three years probation, in exchange for a plea. The judge then said:

Well, you want to reject the offer at this time or you want to accept the offer?
You reject the offer it’s not going to be made again. I’m not going to make the offer again. You would go to trial. Those are potentially the sentence [sic] you could receive. I haven’t heard the evidence of yet but you could receive up to fifteen years in state prison.

(Emphasis added).

Faulk indicated some initial reluctance to accept the court’s offer, explaining he was working two jobs and was worried he would not be able to comply with the requirements of community control. The court reiterated that Faulk could do substantial prison time if he failed to accept the court’s offer for a plea and noted that he could apply to have the community control converted to probation after one year if he had no violation.

Faulk ultimately accepted the court’s offer and pled nolo contendere to both robbery and trespass, with the understanding that he would receive five years in the Department of Corrections for the robbery, suspended upon the successful completion of two years of community control, followed by two years of probation. He was sentenced to time served (twenty-two days) for the misdemeanor trespass.

Upon the acceptance of this plea and the imposition of this sentence, the prosecutor objected that the sentence constituted a downward departure without valid reasons. The prosecutor explained that:

This is his at lest [sic] eighth guilty conviction. As I noted earlier to the court in Mr. Martinko’s presence, he does not qualify as for any kind of sentencing enhancement. He’s not habitual felony offender prison releasee reoffen-der, however, per scoresheet he should be on the bus to DOC for this offense. And so we’re objecting to him not receiving at least forty point six five months in the Department of Corrections. Appears to be no legal basis for downward departure from what I seen [sic] any of the facts of the case.

The following reasons for a downward departure were then offered by the court: THE COURT:

Okay. We would find as a reason of mitigation offense was committed in an unsophisticated manner, isolated incident. He’s not had any problems for almost six years. And also noted, I guess, it was a car battery that was the subject matter of this in dispute between the two individuals and would be a basis for the downward departure from the court’s position.
Okay, Mr. Faulk, you’re all set.
DEFENSE COUNSEL:
Thank you, sir.
THE PROSECUTOR:
For the record I don’t believe — I understand it was a car battery involved probably worth a hundred dollars. As far as I know there’s no dispute between the two individuals other than the fact defendant had stolen this item from a business and they wanted to get their property back.

A written judgment and sentence was entered by the court, but no written departure order was ever entered.

The State first complains that Faulk’s sentences must be reversed because they were the product of a plea negotiation initiated by the court. This would be per se reversible error. In State v. Chaves-Mendez, 809 So.2d 910 (Fla. 5th DCA 2002), which involved the same trial judge, this court held:

The trial court’s initiation of plea negotiations with the defendant was per se reversible error. As the Supreme Court cautioned in State v. Warner, 762 So.2d 507, 513 (Fla.2000), “the trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of a party.”

Id. at 910 (Emphasis added).

Faulk attempts to avoid the Chaves-Mendez decision by arguing that the transcript of the plea negotiation appears to be incomplete, and it is possible that one of the parties had requested the court’s participation. We continue to exhort the judges and counsel that all plea discussions must be on the record. This does not always happen and, in a proper case, could affect the outcome of an appeal. In this case, however, the record is clear enough that it was the court who made the plea offer. Accordingly, we vacate the sentence and remand for further proceedings. On remand, Faulk may withdraw his plea. Chaves-Mendez, 809 So.2d 910.

REVERSED and REMANDED.

ORFINGER, J., concurs.

SHARP, W., J., concurs specially, with opinion.

SHARP, W., J.,

concurring specially.

I agree the sentence in this ease must be reversed because the sentencing judge was improperly involved in the plea bargain with the defendant, which resulted in the downward departure sentence. Under these circumstances, I think we should refrain from prejudging the validity of the departure reasons given in this case. On remand if Faulk, the defendant in this case, so chooses, he should be permitted to withdraw his guilty plea since his plea was based on the plea negotiation we now find was improper. State v. Chaves-Mendez, 809 So.2d 910 (Fla. 5th DCA 2002); State v. Abrams, 706 So.2d 908 (Fla. 2d DCA 1998); State v. Johnson, 696 So.2d 1328 (Fla. 3d DCA 1997).

Under the current Criminal Punishment Code, which applies to this case, the sentencing judge must supply reasons for departing downward in all cases. See § 921.00265(1) and (2), Fla. Stat. The Code lists a “legitimate, uncoerced plea bargain” as one of the possible mitigating circumstances under which a downward departure may be justified, although in the past no written reasons have been required for a departure based on a negotiated plea agreement. Collins v. State, 766 So.2d 1009, 1010 n. 2 (Fla.2000); Maddox v. State, 760 So.2d 89, 107 (Fla.2000); State v. Williams, 667 So.2d 191 (Fla.1996). Of course, this principle is inapplicable where, as here, the state was not a party to the plea agreement between the court and the defendant. Chaves-Mendez, 809 So.2d at 911 (Sawaya, J., concurring); State v. Jones, 579 So.2d 884 (Fla. 2d DCA 1991).

The requirement of valid reasons for a downward departure is in stark contrast to upward departures for which reasons need not be given at all. For crimes committed after October 1998, there is no longer an upward departure limitation or requirement of written reasons or right of a defendant to appeal so long as the sentence is within the statutory maximum. See Maddox, 760 So.2d at 106 n. 14; Willingham v. State, 781 So.2d 512 (Fla. 5th DCA 2001). I simply note the difference, which may be a trap for the unwary, because in this situation equal remedies are not provided for the defense and the state. The scales of justice have now tipped in favor of the state.

      . We note that even if reversal on this ground were not appropriate, the reason given for the downward departure is not supported by the present record.

      . § 921.002, et seq., Fla. Stat.

      . § 921.0026(2)(a), Fla. Stat.


author: GRIFFIN, J.

text:
    Ramon ALVEREZ, et al., Petitioners, v. STATE of Florida, Respondents.
    No. 5D01-3560.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.
    Rehearing Denied March 26, 2003.

      James B. Gibson, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Petitioners.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert E. Bodnar, Jr., Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

We are presented with a petition from twelve individuals who assert, under the authority of Melvin v. State, 804 So.2d 460 (Fla. 2d DCA 2001), their entitlement to immediate release because neither the original petition for commitment under the Jimmy Ryce Act nor the supporting documents was sworn.

The State’s response to the petitions raises several issues. Jurisdiction is questioned, Melvin is criticized, and in all cases, the petitions and reports have been amended to add verifications designed to comply with Melvin.

When the Melvin decision was initially issued, we were dubious that the generally described due process concerns relied upon by the Melvin court compelled verification of these petitions as a matter of constitutional law. The statutory scheme clearly does not require verification. The petition for commitment filed by the state attorney is mainly designed to recite the criminal history of the inmate and the findings of the multi-disciplinary team of health care professionals designated to evaluate the inmate. The statute carefully delineates the professionals who serve on the team, the evaluative process to be followed and the nature of the written assessment and recommendation. Our review of these reports confirms that they mainly consist of professional opinions. That such a civil commitment proceeding could be commenced under the statute by a signed, but unsworn pleading of an assistant state attorney based upon signed, but unsworn, expert opinions of experts, followed by an available probable cause hearing within five days of a request, and a prompt full hearing, did not present to us an obvious defect of constitutional dimension.

More recently, the Fourth District Court of Appeal weighed in on this issue in Kephart v. Kearney, 826 So.2d 517 (Fla. 4th DCA 2002). Agreeing with the Second District that proof of some “rehable individual’s personal knowledge” was required, the Fourth District rejected the second District’s suggestion that the state attorney could attest to the facts in order to satisfy due process. The Fourth District concluded that at least one of the mental health professionals who had evaluated the detainee would have to execute an affidavit or appear live to testify before the judge. The dissonance between the views of these two courts concerning what is constitutionally required has, if anything, heightened rather than eliminated our doubt that the statutory scheme is constitutionally flawed.

Nevertheless, the petitioners in these cases have presented an argument based on the Florida Constitution which was reflected in the Fourth District’s Kephart opinion. The Kephart court held that sworn proof is required based on both the Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution. Article I, section 12 of the Florida Constitution provides: “No warrant shall be issued except upon probable cause, supported by affidavit....” Obviously, in order for this provision to require a petition to be sworn, the petition must be construed to be an application for a warrant. Section 894.915 makes no mention of a “warrant.” Section 394.915(1) provides:

If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person’s incarcerative sentence expires.

Is such an order in a civil case a “warrant”? We have been unable to find much to elucidate this point either directly or by analogy, but we note that in these cases before us, upon making the probable cause determination, the judges of the Seventh Circuit typically issued what they denominated a “warrant” for the inmate’s detention under the Act.

Because both of the district courts that have considered this issue have concluded that something must be sworn to in order to commence a Jimmy Ryce commitment proceeding, because the requirement of a document signed under penalty of perjury does not appear to represent an undue burden for the state, and because we conclude that it would be best if this issue were resolved in a uniform manner, we elect to align ourselves with the Second and Fourth District Courts in requiring sworn proof in support of a petition for commitment. Given the language of article I, section 12, we prefer the Fourth District’s approach, that the evaluation of at least one of the health care professionals, on whose report the court’s “probable cause” decision-making will be based, should be either in affidavit form or verified.

We also agree with the Fourth District that the state should have a reasonable opportunity to correct this defect in any petition. We have seen nothing to suggest either that the petitions or the assessments and recommendations of the health care professionals on the multi-dis-ciplinary teams have been unreliable because of the absence of an oath. We therefore view this as a formal defect that must be corrected but not one that has caused any actual prejudice to inmates whose rights are protected by the requirement of a verified petition. We are, however, concerned that the seven working days allowed by the Fourth District may not be adequate, so we will allow the state to apply to the trial court for more time in any case where justice requires. See Hawker v. Greer, 801 So.2d 168 (Fla. 4th DCA 2001). In all of the cases before us, the petitions and the reports of the multidisciplinary teams have been amended to add an oath after the issuance of the Melvin decision and the amendments appear to us adequate to cure the formal defects. We accordingly deny the petitions.

PETITIONS DENIED.

THOMPSON, C.J., and PALMER, J., concur.

      . §§ 394.910-.931, Fla. Stat. (2001).

      . We have experienced significant delay in considering these petitions on the merits because counsel for petitioners made the decision not to include in the record on appeal the statutorily required reports of the members of the multi-disciplinaiy team of mental health professionals on which the commitment decisions were based. This decision was based on privacy concerns. Upon our inquiry, petitioners’ counsel were able to say only that the clerks of court had asserted that these documents were confidential, but counsel were unable to identify any public records exemption for these documents. Even at this late date, not all clerks have yet transmitted these documents, but we have concluded the record is sufficient for us to decide the issues presented.

      .Each alternatively requested writ (habeas corpus, prohibition, certiorari) presents jurisdictional difficulties in some or all of these cases. For one thing, none of the twelve is detained in this district, making habeas corpus problematical. As for prohibition, several have had orders of detainment entered while others, as of the filing date, had not had their motions to dismiss heard. We recognize the argument against certiorari review of orders denying dismissal, but we conclude that either certiorari or prohibition provides a basis for review. Given our ruling, it appears jurisdiction in any given case will not be an issue.

      . State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000).

      . The Fourth Amendment to the United States Constitution requires a warrant be based "upon probable cause, supported by oath or affirmation.”

      . It does not appear, for example, that a motion for a writ of bodily attachment in a civil ease must be sworn.