author: FLETCHER, Judge.

text:
    NATIONAL HOME COMMUNITIES, L.L.C. and NHC-FL 13, L.P., Appellants/Cross Appellees, v. FRIENDS OF SUNSHINE KEY, INC., et al., Appellees/Cross Appellants.
    No. 3D02-3225.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied June 4, 2004.

      William E. Andersen and Lynn E. Wagner and L. Eric Ebbert (Key West), for appellants/cross appellees.
    Feldman Koenig & Highsmith and Timothy J. Koenig (Key West); V. McFadyen; William A. Friedlander, Tallahassee, for appellees/cross appellants.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   FLETCHER, Judge.

National Home Communities, L.L.C. and NHC-FL, L.P. appeal a declaratory judgment entered in favor of Friends of Sunshine Key, Inc. and numerous individual plaintiffs which determined occupancy rights at a recreational vehicle park. For the reasons set forth herein, we reverse.

National Home Communities, L.L.C., manages Sunshine Key, a recreational vehicle park in Monroe County, on behalf of the landowner, NHC-FL 13, L.P. (Both entities will be referred to collectively as National Home.) Plaintiffs below are Friends of Sunshine Key, Inc., a not for profit company, and numerous individual occupants of RV sites at the park (collectively referred to hereinafter as Unit Owners). A majority of the Unit Owners originally entered into written agreements with the prior owner of Sunshine Key who operated the park between 1988 and 1998. In 1998, National Home acquired Sunshine Key, assuming the prior owner’s obligations under the occupancy agreements. Generally, the agreements provide for the Unit Owners to pay an initial site location premium entitling them to select a certain location within the park where they can place their RV. After installation, the Unit Owners were entitled to occupy the site for a certain term, which term could be renewed, although the agreements did not specify how often. The Unit Owner’s right to renew was conditioned upon said owner abiding by all applicable regulations and paying an annual occupancy fee. Through the years; the Unit Owners tied down their RVs and added permanent improvements, such as concrete slabs, screened porches, Florida rooms, sheds and tiki huts. The Unit Owners would normally renew their agreements annually maintaining their RVs on the site year-round.

Beginning approximately in 1993, the Code Enforcement Board of Monroe County began citing Sunshine Key for code violations. Included in the list of violations were the unauthorized erection of permanent improvements on the RV sites, and the failure to restrict occupancy to road-ready recreational vehicles. Notwithstanding these citations, the prior owner of Sunshine Key, and National Home, at least for the first few years after it acquired Sunshine Key, continued accepting annual renewal payments and signing renewal documents.

In 2001, National Home commenced plans to redevelop Sunshine Key. The County, however, would not approve the redevelopment plans until the outstanding code violations were resolved. As a result National Home sent letters to all the Unit Owners advising them of the code violations and giving them 30 days to bring their sites into compliance. Unit Owners who did not comply with this request subsequently received a final letter informing them that their occupancy agreements had been cancelled and that they were required to vacate the premises.

The Unit Owners instituted the present action seeking declaratory relief as to their occupancy rights, and National Home counterclaimed for eviction. The Unit Owners claimed inter alia that under the parties’ agreement they were entitled to perpetual occupancy subject only to payment of annual occupancy fees and compliance with park regulations. Additionally, they contended that National Home waived any right it may have had to compel compliance with the Monroe Code by its assumption of the prior owner’s obligations and prior renewals of the occupancy agreements notwithstanding National Home’s actual knowledge of the existing code violations. Finding that it agreed with the Unit Owners on both the perpetuity and waiver issue, the trial court entered final judgment in favor of the Unit Owners.

On appeal, National Home challenges the trial court’s conclusions on both of these issues, contending that the agreements did not grant the Unit Owners the right to perpetual renewals, and that in any event, the Unit Owners were in default under their agreements by failing to abide by the provisions of the Monroe County Code, thus entitling National Home to terminate the agreements. National Home claims that the Unit Owners violated the portions of the occupancy agreement which require the Unit Owners to observe and comply with all county and local governmental and municipal laws, statutes, ordinances, rules, regulations, codes, decrees, and zoning regulations. Because their recreational vehicles violated Monroe County Code provisions requiring that recreational vehicles be road ready and subject to tenancies not to exceed six months in duration, Monroe County Code §§ 9.5-4(R-6), 9.5-244, and 9.5-317(b)(9), the Unit Owners were in default of their agreement. On the issue of waiver, National Home argues that neither the defense of estoppel nor waiver is available to the Unit Owners because the parties’ agreements contain an anti-waiver clause.

Leases in perpetuity are universally disfavored, thus the courts are loath to construe a right to renewal as perpetual, and will not do so unless the language of the agreement clearly and unambiguously compels them to do so. Generally, the courts have construed such covenants as providing for one renewal only. See Sisco v. Rotenberg, 104 So.2d 365 (Fla.1958); Schroeder v. Johnson, 696 So.2d 498 (Fla. 5th DCA 1997); Sheradsky v. Basadre, 452 So.2d 599 (Fla. 3d DCA 1984), rev. denied, 461 So.2d 113 (Fla.1985); Hutson v. Knabb, 212 So.2d 362 (Fla. 1st DCA 1968). In Sheradsky v. Basadre, this court was asked to construe as perpetual an agreement which stated that the “lease shall automatically renew under the same terms and conditions” set forth for the rental period, unless either party gave written notice within 60 days of the expiration date of their intent not to renew. 452 So.2d at 601. This court concluded that such language did not sufficiently establish an intent to grant such a right.

In the instant case, the trial court found a right to perpetual renewals. However, our review of the relevant paragraphs reveals only the annual renewal statement and various provisions setting forth the manner in which such renewals are to be effectuated. Other than the fact that the agreements herein set forth' in more detail the manner in which renewals were to be handled, we find nothing to distinguish the language employed in these agreements from that construed in Sheradsky on the issue of perpetuity. There is no provision in the subject agreements evidencing a clear and explicit right to perpetual renewals.

The result reached by the trial court also cannot be upheld on the theory of waiver or estoppel. The parties’ agreement contains an anti-waiver clause which states, in pertinent part:

“No provision of this Agreement shall be deemed waived by .either party unless same is expressly waived in a writing signed by the waiving party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either party of any provision of this Agreement shall be deemed a waiver of such provision with respect to any subsequent matter relating to such provision.... Acceptance of a payment upon the Occupancy Fee by SUNSHINE KEY shall not constitute a waiver of any breach or Default by the RV Owner of any term or provision of this Agreement.”

(Site Occupancy Agreement ¶ 22). Florida courts have consistently enforced these types of clauses. See, e.g., Rybovich Boat Works, Inc. v. Atkins, 587 So.2d 519 (Fla. 4th DCA 1991), rev. denied, 599 So.2d 654 (Fla.1992); Gergora v. Flynn, 486 So.2d 5 (Fla. 3d DCA), rev. denied, 500 So.2d 544 (Fla.1986); Raimondi v. I.T. Chips, Inc., 480 So.2d 240 (Fla. 4th DCA 1985); Eskridge v. Macklevy, Inc., 468 So.2d 337 (Fla. 1st DCA), rev. denied, 478 So.2d 54 (Fla.1985); Philpot v. Bouchelle, 411 So.2d 1341 (Fla. 1st DCA 1982). As stated in Rybovich Boat Works, Inc. v. Atkins, the “defenses of waiver and estoppel [are] defeated as a matter of law by the [anti-waiver] provisions of the contract itself.” 587 So.2d at .522. The trial court erred in finding that either waiver or estoppel prevented National Home from terminating the occupancy agreements based on the previous failure to enforce compliance with the Monroe County Code.

The judgment below is reversed and remanded for further proceedings consistent herewith.

      . Some unit owners purchased their RVs directly from the prior owner while others acquired theirs from third parties and had them moved to their site.


source: Caselaw Access Project

author: WELLS, J.

license: Public Domain

text:
    James WARD, Appellant, v. Connie WARD, Charles O. and Linda K. Hysell, Appellees.
    No. 3D03-956.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied June 9, 2004.

      Martyn W.D. Verster, for appellant.
    Richard G. Dunberg, for appellees.
    Before GODERICH, GREEN, and WELLS, JJ.
   WELLS, J.

James Ward appeals from a final judgment of dissolution of marriage, wherein the trial court denied his requests to modify a previous final judgment giving permanent custody of his minor child to Charles and Linda Hysell, the maternal grandparents, and to permit unsupervised visitation. For the following reasons, we reverse.

James and Connie Ward are the parents of a child born on November 5, 1992. In July 1998, as a consequence of marital strife and the impact it was having on their child, the Wards took their daughter to live with her maternal grandparents, the Hysells. Approximately one month later, and at the Hysells’ suggestion, the Wards and the Hysells executed a custody agreement giving the Hysells “formal, legal care, custody and control of the minor child.” Within a few months of this agreement, the Hysells, under the aegis of Florida Statutes section 61.13(7), and relying on the custody agreement, secured a judgment awarding them custody.

Six months after the custody judgment was entered, the mother petitioned for dissolution of marriage and alleged that she was “a fit and proper person to have primary parental responsibility [and that it] would be in the child’s best interest if the child’s primary residence were” with her. She accompanied her petition with a custody affidavit showing that her parents had custody of the child pursuant to a verified child custody agreement. The father answered and counter-petitioned claiming that the custody agreement with the wife’s parents was void; that he was fit to have custody; and, relying on Richardson v. Richardson, 734 So.2d 1063 (Fla. 1st DCA 1999), which declared section 61.13(7) unconstitutional, that the grandparents did not rightfully enjoy custody.

The father also filed a motion in the grandparents’ custody proceeding seeking to vacate the custody judgment. That motion was denied, and the father appealed.

While the appeal from the, order denying the father’s motion to vacate the custody judgment was pending, the Florida Supreme Court affirmed the First District’s decision in Richardson holding section 61.13(7) unconstitutional. See Richardson v. Richardson, 766 So.2d 1036 (Fla.2000). This Court subsequently affirmed the order denying the father’s motion to vacate without prejudice for the father to again raise issues relating to the grandparents’ custody in the dissolution proceeding. Ward v. Hysell, 777 So.2d 1206 (Fla. 3d DCA 2001).

Thereafter, the father joined the grandparents in the dissolution action and amended his answer and counter-petition to request both nullification of the custody agreement' and modification of custody. He also sought unsupervised visitation.

On March 6, 2003, the trial court entered a final judgment of dissolution of marriage (the judgment considered herein). That judgment rejected the father’s requests to nullify the custody agreement with the maternal grandparents and for unsupervised visitation. It also, without explication, denied the father’s request to modify custody. On appeal from that judgment, the father claims that the trial court erred in denying his modification request because the record is devoid of evidence showing that he is unfit and that a change in custody would be detrimental to his child. We agree and reverse.

The grandparents argue here that the judgment must be affirmed because the father failed to demonstrate below a substantial change in circumstances and that it would be in this child’s best interest to change the custody order. This undoubtedly is the test applied in proceedings modifying custody judgments between parents. See Perez v. Perez, 767 So.2d 513, 516 (Fla. 3d DCA 2000)(observing that in a modification proceeding between two parents, “[a] parent seeking to modify a prior custody award bears the extraordinary burden of demonstrating a substantial change in circumstances since the entry of the initial custody decree and that the child’s best interest or welfare will be promoted by the change”). It was also the test applied in proceedings modifying custody judgments between grandparents and a parent before Richardson. See Carpenter v. Berge, 686 So.2d 759, 760 (Fla. 5th DCA 1997)(pre-Richardson grandparent custody case finding that “modification of permanent child custody may be ordered only upon showing of a substantial change in circumstances since entry of the original order and that the welfare of the child would be promoted by a modification of custody”); Turner v. Walvick, 666 So.2d 971, 972 (Fla. 5th DCA 1996)(pre-Richard-son case noting that a judgment awarding primary residential care of a child to the grandmother could only be modified where the non-custodial parent establishes both a substantial change in circumstances and that the child’s best interest will be served by the change in custody). It is not, however, the test that applies after Richardson in grandparent/parent custody proceedings.

Post-Richardson, a parent seeking to modify an order awarding custody to a grandparent need only show that he or she is fit and that a custody change will not be detrimental to the child:

When a custody dispute is between two parents, where both are fit and have equal rights to custody, the test involves only the determination of the best interests of the child. When the custody dispute is between a natural parent and a third party, however, the test must include consideration of the right of a natural parent ‘to enjoy the custody, fellowship and companionship of his offspring .... This is a rule older than the common law itself.’ ... [I]n such a circumstance [sic], custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child.

Richardson, 766 So.2d at 1039 (quoting In re Guardianship of D.A. McW, 460 So.2d 368, 369-70 (Fla.1984)).

In Davis v. Weinbaum, 843 So.2d 290 (Fla. 5th DCA 2003), the Fifth District Court of Appeal applied this test to affirm an order modifying custody from grandparents- to a parent. There, as here, the grandparents enjoyed custody pursuant to a court approved agreement. Relying on Richardson, the Fifth District held that the test to be applied where a parent seeks to modify such a third party custody award is whether the parent is fit and whether a change in custody will be detrimental to the child:

The grandparents argue that Richardson does not apply in the instant case because their rights accrue not from section 61.13(7), but from the trial court’s order giving them custody. Richardson was a modification proceeding, as in the instant case, but Richardson involved an initial attempt by the grandparents to take custody from the parent. In the instant case the grandparents had custody pursuant to a prior court order, and they claim that they are “custodial parents.” We cannot agree that the difference between the instant case and Richardson is dispositive, nor can we agree that, in the absence of an adoption order, the grandparents are “custodial parents.” Although Richardson is distinguished from the instant case, Richardson reaffirmed [State ex rel. Sparks v.] Reeves[, 97 So.2d 18 (Fla.1957)] and D.A. McW., in which the supreme court stated that custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child.

Davis, 843 So.2d at 293-94 (citation omitted).

This conclusion is consistent with well-established legal principles:

The Florida laws give to parents the right to part with the custody of children by apprenticeship, adoption, and guardianship. The existence of these statutes, and the several specific requirements essential to the validity of such abandonment, seems to indicate that by these methods only can a parent relieve himself of his obligation to support, educate, maintain, and nurture his minor children, and his correlative right to their custody.

State v. Bollinger, 88 Fla. 123, 101 So. 282, 283-84 (1924) (citations omitted).

Here, there is no evidence that the father waived his parental rights in the custody agreement; that his parental rights were terminated; or that this child was the subject of either a guardianship or an adoption. Thus, the only issues for determination below were whether the father was a fit parent and whether it would have been detrimental to this child to change custody.

There appears to be no disagreement that the father was fit. However, neither the record nor the final judgment indicates that detriment was properly considered or litigated below. Accordingly, that portion of the final judgment of dissolution of marriage denying the father’s request to modify the prior custody judgment is reversed and remanded to permit all parties to introduce evidence regarding detriment— particularly, whether a change in custody is likely to produce mental, physical, or emotional harm of a lasting nature. See Bateman v. Johnson, 818 So.2d 569, 571 (Fla. 2d DCA 2002)(“Detriment is defined as ‘more than the normal trauma caused to a child by uprooting him from familiar surroundings such as often occurs by reason'of divorce, death of a parent or adoption. It contemplates a longer term adverse effect that transcends the normal adjustment period in such cases.’ To deny a parent custody of his child based on a finding of detriment, the change in custody would have to be ‘likely to produce mental, physical, or emotional harm of a lasting nature’ ”) (citations omitted)(emphasis added).

We are mindful that this child is thriving in her current home with the maternal grandparents and that our decision may disrupt the stability of that environment. However, it is the responsibility of the courts to enforce the law and to protect acknowledged constitutional rights. It is up to this child’s parents and her grandparents to demonstrate their concern by working together to assure her well-being no matter where it is ultimately determined that she should live.

Reversed and remanded with instructions.

      . This agreement was prepared by the grandparents' attorney. Both the father and the mother, who were unrepresented by counsel, testified below that the agreement was only temporaiy. The father additionally claimed that the purpose of this agreement was to permit his daughter to attend school in the grandparents’ school district.

      . Section 61.13(7), Fla. Stat. (1998) provided:
      In any case where the child is actually residing with a grandparent in a stable relationship, whether the court has awarded custody to the grandparent or not, the court may recognize the grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child.

      . The grandparents' also make a jurisdictional argument which is without merit. Florida Statutes section 61.13(2)(c) permits an action to be brought either in the circuit court where an original custody award was entered — here, the 11th Judicial Circuit — "or” in the circuit court of the county where either parent and the child reside — here again, the 11th Judicial Circuit.

      . The final hearing in this action was held almost a month before Davis was released. Davis was, nonetheless, binding on the trial court since it was released two weeks before entry of the final judgment. See University of Miami v. M.A., 793 So.2d 999, 1000 (Fla. 3d DCA 2001)(noting that trial courts are obligated to follow decisions from the other district courts of appeal where neither the Florida Supreme Court nor this court has spoken on an issue).

      . To this end, the father should be accorded an opportunity to select a qualified mental health professional (preferably a licensed child psychologist), who should be accorded unfettered access to this child, and this child’s medical, psychological, school and other records, for the following purposes: (1) evaluating the child to determine whether any real, lasting harm will occur should she be transitioned to her father's (or her mother’s) custody; (2) making recommendations for such a custodial transition; and (3) if custody is not restored to the father, facilitating expeditious unsupervised visitation with her father.


author: FLETCHER, Judge. SHEPHERD, Judge

text:
    MIAMI-DADE COUNTY, Appellant, v. Eliodoro HOYOS and Aleida Hoyos, Appellees.
    Nos. 3D03-1402, 3D03-601.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied June 4, 2004.
    Robert A. Ginsburg, County Attorney, and Eric K. Gressman, Assistant County Attorney, for appellant.
    Robert Rubenstein, Miami, and Anthony J. Soto, for appellees.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   FLETCHER, Judge.

Miami-Dade County appeals from an adverse judgment in an action for negligence, claiming failure to prove actual or constructive knowledge of the dangerous condition. We affirm.

On December 17, 1997, while walking in an alley frequently traveled by pedestrians behind the back entrance to a bank, Elio-doro Hoyos tripped and fell when his foot was caught by the edge of a manhole cover. At trial, Hoyos presented evidence that there was a defective ring in the manhole cover which caused it to protrude 7/16" from the ground, that the cover was discolored and rusted, and that the County was the only entity responsible for installation and maintenance of the manhole cover. According to the county’s witness, the inner seal of the manhole cover had been repaired in 1995, and was found to be in need of repair in 1999. County records showed no other accidents occurring in the area prior to Hoyos’ accident in 1997. The county claims the plaintiff failed to prove the county had actual or constructive knowledge of the dangerous condition.

In a claim for negligence against a local government for failure to keep its streets and walkways in a reasonably safe condition, a plaintiff must show that the local government knew, or had a reasonable cause to know, of the defective condition a sufficient length of time so that it could have been repaired. See e.g., Castano v. City of Miami, 840 So.2d 412 (Fla. 3d DCA 2003); Grier v. Metropolitan Dade County, 660 So.2d 273 (Fla. 3d DCA 1995). Generally, the issue of constructive notice is best left to a jury when there is evidence presented in support of the existence of such notice. Lisanti v. City of Port Richey, 787 So.2d 36 (Fla. 2d DCA 2001). We find the plaintiffs evidence herein sufficient to warrant submission of the issue to the jury. Accordingly, we affirm the judgment entered below.

GERSTEN, J., concurs.

SHEPHERD, Judge

(dissenting).

I respectfully dissent.

The operative facts in this case are that Miami-Dade County repaired the manhole in question in 1995 and that the Plaintiff tripped and fell on December 17, 1997. The County had no actual notice of the condition prior to the accident. The later repair of the manhole shown in the County records is irrelevant to the issue of notice. Nor was it possible to attribute a length of time to the existence of the condition, from which an inference of constructive notice may perhaps have been drawn.

Where, as here, the record is devoid of any evidence of actual or constructive knowledge of the defect, the County cannot be found liable. San Miguel v. City of Miami, 760 So.2d 979 (Fla. 3d DCA 2000). A municipality is not an insurer of pedestrians traveling on its streets or sidewalks. Grier v. Metropolitan Dade County, 660 So.2d 273, 275 (Fla. 3d DCA 1995). I see no jury issue on the facts of this case and would therefore reverse the judgment rendered in favor of the Plaintiff/Appellee, with directions that judgment be entered for DefendanVAppellant Miami-Dade County.


author: PER CURIAM.

text:
    PICASSO TOWER, INC., Appellant, v. DAIRENE INTERNATIONAL, a Nevada corporation, and Edwin Golstein, Appellees.
    No. 3D03-312.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied June 9, 2004.

      Murphy & O’Brien and William E. Murphy and Joseph R. Littman, for appellant.
    Edwin Golstein, in proper person. No appearance for appellee Dairene International, a Nevada corporation.
    Before COPE, GODERICH and GREEN, JJ.
   PER CURIAM.

Picasso Tower, Inc. appeals a final judgment awarding damages on an injunction bond. We affirm.

I.

Landlord Picasso Tower, Inc. rented office space to tenant Dairene International, a Nevada corporation. Appellee Edwin Golstein personally guaranteed the lease.

The tenant fell behind in the rent and the landlord obtained a final judgment of eviction in circuit court. Thereafter the landlord and tenant entered into a settlement agreement by which the tenant remained in the office space and the landlord did not enforce the eviction judgment.

The tenant again fell behind in the rent. In September 2000 the tenant advised the landlord that it would move out at the end of the month.

In the landlord-tenant case, the landlord filed an emergency motion for temporary injunction. In an effort to enforce its landlord’s lien for unpaid rent, the landlord requested a temporary injunction to prohibit the tenant from moving its office furnishings and equipment out of the office space.

The circuit court granted a temporary injunction ex parte. The landlord posted a $25,000 bond.

On December 2 and 3, 2000 the circuit court conducted a hearing on the tenant’s motion to dissolve the temporary injunction. The court dissolved the injunction. The court found that there had been no jurisdiction to enter the temporary injunction in the landlord-tenant case, because the landlord-tenant case had already gone to final judgment and there had been no reservation of jurisdiction for further proceedings.

Thereafter the tenant moved for an award of damages against the injunction bond. See Fla. R. Civ. P. 1.610. The trial court awarded damages and the landlord has appealed.

II.

The landlord argues that the tenant is not entitled to any damages against the injunction bond. The landlord reasons that the dismissal for want of jurisdiction was necessarily a dismissal without prejudice to refile in an appropriate forum. The landlord points out that it could have obtained the same injunctive relief by filing a distress for rent. See §§ 83.11 — .19, Fla. Stat. (2000). The landlord argues that since the dissolution of the injunction was not a ruling on the merits, it follows that injunction damages cannot be awarded.

We reject the landlord’s argument on authority of Roger Dean Chevrolet, Inc. v. Painters, Decorators & Paperhangers of America, 155 So.2d 422 (Fla. 2d DCA 1963). There, as here, the circuit court dissolved a temporary injunction on the ground that the court lacked jurisdiction. The Second District concluded that in such circumstances damages should be awarded against the injunction bond.

We find the Second District’s reasoning persuasive. The court said:

We are aware of the general rule that the right of the defendant in an injunction suit to recover costs and damages for the wrongful issuance of the temporary injunction does not accrue until there is a final determination that said injunction was wrongfully issued. However, there is a corollary rule to the effeet that the dissolution of a temporary injunction, if tantamount to a determination that the injunction was wrongfully issued, will entitle the defendant to recover for damages resulting from its issuance. ... We are of the view that the lower court’s dissolution of the temporary injunction, on the ground that it lacked jurisdiction over the cause, was tantamount to a determination that the temporary injunction was wrongfully issued.
In Littleton v. Burgess, 1907, 16 Wyo. 58, 91 P. 832, 16 L.R.A., N.S., 49, a temporary injunction had been issued enjoining a prosecuting attorney from prosecuting a crime. After the said injunction was declared unlawful, for lack of jurisdiction, the prosecuting attorney brought an action on the injunction bond. In affirming a judgment rendered in favor of the prosecuting attorney, the Supreme Court of Wyoming said:
‘ * * * In the case before us, the plaintiffs in error forced the defendant in error into court to determine at least a question of jurisdiction — a question which was a judicial one, and which he could not determine himself — and to ignore the writ might have resulted in great wrong to him. No obligation rested upon him to ignore the writ, even though it was issued without jurisdiction. * * * His right to defend either upon the merits or upon jurisdictional grounds accrued to him upon the service of the writ, and by no sophistry of reasoning could he be barred of that right. The rights having so accrued, he had the right to be represented by counsel. If the attorney’s fees were incurred to procure the dissolution of the injunction, then by the great weight of authority the defendant in error was damaged to that extent.

155 So.2d at 425 (citations omitted; italics in original; boldface added).

As in the Roger Dean case, the temporary injunction in the present landlord-tenant dispute was entered without jurisdiction. The tenant was entitled to move for its dissolution and an award of damages against the injunction bond. Such damages consist of attorney’s fees expended to procure dissolution of the injunction plus other damages flowing from the injunction’s wrongful issuance.

We have carefully considered the landlord’s arguments against the amounts awarded, but conclude that the damage amounts are supported by the evidence and within the trial court’s discretion.

Affirmed.

      . There had been an initial hearing one business day after entry of the injunction but the hearing was postponed to allow the tenant to obtain counsel.

      . The final judgment in the landlord-tenant case contained a reservation of jurisdiction for the award of attorney’s fees, but no broader reservation of jurisdiction for other post-judgment proceedings.


text:
    LIMECO, INC., a Florida corporation, Herbert T. Yamamura, and Anna R. Yamamura, joint and severally, Appellants, v. LPP MORTGAGE LTD., f/k/a Loan Participant Partners, Ltd., Appellee.
    No. 3D03-2051.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied June 9, 2004.
    Liebler, Gonzalez & Portuondo, and J. Randolph Liebler, for appellants.
    Haley, Sinagra, Paul & Toland, and Dora F. Kaufman, and Loretta S. Bangor (Fort Lauderdale), for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See 15 U.S.C.A. § 634(b)(2)(2000), Perez v. Rivero, 534 So.2d 914 (Fla. 3d DCA 1988).


author: NORTHCUTT, Judge.

text:
    STATE of Florida, Appellant, v. Malcolm BAKER, Appellee.
    No. 2D03-1797.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.
    Rehearing Denied June 3, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellee.
   NORTHCUTT, Judge.

Pursuant to a deal reached with the circuit court, Malcolm Baker received a habitual offender sentence of sixty-four months in prison after pleading guilty to two counts of aggravated battery and one count of third-degree grand theft. The State appeals, arguing that the court erred in refusing to consider whether Baker qualified for sentencing as a prison releas-ee reoffender. We agree and reverse.

During an unrecorded bench conference, the circuit court apparently offered to sentence Baker to sixty-four months in prison as a habitual offender in exchange for a guilty plea. Back on the record, Baker indicated his desire to accept the court’s offer, at which point the prosecutor informed the court for the first time that Baker also qualified as a prison releasee reoffender (PRR). The prosecutor had in hand separate notices of the State’s intent to seek habitual offender sentencing and PRR sentencing. Baker’s habitual offender status apparently had been discussed during the unrecorded bench conference, but his PRR status had not. Understandably frustrated, the court refused to allow the prosecutor to file the PRR notice, stating that it was untimely, and refused to consider sentencing Baker as a PRR. As a PRR, Baker would face a mandatory minimum sentence of fifteen years in prison for the aggravated battery convictions. See § 775.082(9)(a)(3)(c), Fla. Stat. (2001).

The court was mistaken in its belief that the PRR notice was untimely, because the notice was offered before Baker’s plea had been accepted. See Fla. R.Crim. P. 3.172 (stating that court must satisfy itself of voluntary nature and factual basis before accepting plea). Florida Rule of Criminal Procedure 3.171(b)(2)(A) places an affirmative obligation on the prosecuting attorney to “apprise the trial judge of all material facts known to the attorney regarding the offense and the defendant’s background prior to acceptance of a plea by the trial judge[.]” Florida Rule of Criminal Procedure 3.720 states that as soon as practicable after the determination of guilt, a sentencing hearing shall be set where the “court will entertain submissions and evidence by the parties that are relevant to the sentence.” See Rollinson v. State, 743 So.2d 585, 590 (Fla. 4th DCA 1999) (citing rule 3.720 in rejecting a procedural due process challenge to PRR sentencing), approved, 778 So.2d 971 (Fla.2001).

Imposing a PRR sentence is mandatory once the State proves that the defendant qualifies. See State v. Cotton, 769 So.2d 345 (Fla.2000). Thus it has been held that the court cannot offer a plea bargain for a guidelines sentence if the State is seeking a PRR sentence. State v. Davis, 834 So.2d 898 (Fla. 3d DCA 2002), review denied, 845 So.2d 888 (Fla.2003) (table decision). Although the State did not proffer the evidence that would support Baker’s PRR classification, the court did not allow the State to even file the PRR notice. “It is well settled that the law does not require a useless or futile act.” Davis, 834 So.2d at 898 n. 1 (excusing State’s failure to present evidence of defendant’s PRR qualifications when trial court had already ruled that State waived PRR sentencing by earlier offer for guidelines sentence). Accordingly, we reverse. On remand, Baker must be given an opportunity to withdraw his plea.

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.


author: MAY, J.

text:
    GULFSTREAM PARK RACING ASSOCIATION, INC. a Florida corporation for the use and benefit of TIG SPECIALTY INSURANCE SOLUTIONS, Appellants, v. Burk KESSINGER, Jr., Appellee.
    No. 4D03-1139.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Rehearing Denied June 25, 2004.

      Richard A. Ivers and Andrew T. Lavin of Navon, Kopelman & Lavin, P.A., Fort Lauderdale, for appellants.
    Paul H. Field of Lane, Reese, Aulick, Summers & Field, P.A., Coral Gables, for appellee.
   MAY, J.

A simple subrogation claim evolved into a confusion of issues and resulted in a directed verdict and consequent judgment for the defendant. The plaintiff, Gulf-stream Park Racing Association, appeals the final judgment and argues that the trial court erred in directing a verdict for the defendant Kessinger. We agree. Accordingly, we reverse and remand the case for reinstatement of the jury verdict.

On December 14, 1996, Claire Parisel, an exercise rider, was injured while walking a racehorse back from the track. She and her husband sued Gulfstream for negligence. Gulfstream filed a third-party complaint against the horse trainer, Kessinger, for contribution and contractual indemnity, which it later voluntarily dismissed. The jury found Gulfstream negligent and apportioned 70% against it and 30% against Kessinger. Gulf-stream’s insurer paid $500,000 in satisfaction of the judgment.

Gulfstream then filed the present action against Kessinger for contractual indemnity based on a “stall agreement” between Gulfstream and Kessinger. The relevant provisions of the stall agreement provided:

6(B)(1) [Kessinger] hereby agrees to indemnify, hold harmless and defend Gulfstream ... from any claims, losses, liabilities or demands whatsoever, including claims for medical and hospital bills, resulting from or arising directly or indirectly from the acts or omissions of [Kessinger] ... from or out of or in connection with [Kessinger’s] activities at Gulfstream Park....
6(B)(2)(C) ... The maintenance by Gulfstream of insurance relating to any claims otherwise released and/or indemnified against hereby shall not affect the terms or interpretation of this application ....

Kessinger filed a motion for summary judgment and argued that because Gulf-stream’s insurer had paid the judgment, it had sustained no actual loss or damage and was therefore not entitled to indemnification. He also argued that the stall agreement was invalid and unenforceable. The trial court denied the motion.

As a result of the arguments made at the hearing, however, Gulfstream amended the style of its complaint to reflect that it was suing for the use and benefit of its insurer, TIG. It did not amend the allegations to expressly state a subrogation claim. It continued to rely on the theory of contractual indemnification.

At trial, Gulfstream introduced a check showing that TIG paid $500,000 in satisfaction of the Parisel judgment. During cross examination of the TIG’s representative by Kessinger’s attorney, the following exchange took place.

Q. Okay. And then the next column; What does Subro mean?
A. I am not familiar with that.
Q. Is that short for subrogation?
A. Yes.
Q. Okay. And no is checked; there’s an X for that question?
A. Right.

Kessinger moved for directed verdict and among other things argued that because TIG had checked “no” on the settlement check, it had waived its right to subrogation. The trial court reserved ruling and sent the case to the jury on the issues of negligence and apportionment between Gulfstream and Kessinger. The jury found Gulfstream was not exclusively negligent for Parisel’s injury, and apportioned the negligence equally between Gulfstream and Kessinger.

Post trial, the trial court granted Kes-singer’s motion for directed verdict. After deciding that the subrogation issue had been tried by consent, the court specifically found that

Gulfstream, having been fully indemnified by the insurer has no individual right of action against Kessinger, but could only proceed in its representative capacity. However, it is equally clear that the insurer, being the only real party in interest, has not pursued this action, but rather has waived its rights to subrogation by its conduct. Therefore Gulfstream cannot maintain this action for the “use and benefit of’ the insurance company. As such, no viable claim against Kessinger for indemnifieation has been established, and he is entitled to judgment as a matter of law.

Waiver is a factual issue to be determined by the finder of fact, in this case, the jury. Popular Bank of Fla. v. R.C. Asesores Financieros, C.A., 797 So.2d 614 (Fla. 3d DCA 2001). Yet, the issue was not submitted to the jury. Instead, the trial court assumed the role of seventh juror and made the factual finding. We hold that it erred in doing so and in granting the motion for directed verdict.

The power to direct a verdict should be cautiously exercised, and a motion for a directed verdict should never be granted unless the evidence is such that under no view which the jury might lawfully take of the evidence favorable to the adverse party could a verdict for the latter party be sustained.

Edwards v. Orkin Exterminating Co., 718 So.2d 881, 883 (Fla. 3d DCA 1998) (emphasis added) (quoting Burch v. Strange, 126 So.2d 898, 901 (Fla. 1st DCA 1961)). Under this standard, the evidence failed to support a directed verdict for Kessinger.

The only testimony on the issue of waiver came from an insurance agent who indicated that “subro” was short for subrogation. And, the check that was introduced contained a check mark in the “no” column next to “subro.” However, there was no explanation on what that meant. In short, the evidence was not such that under no view of the evidence could a verdict be rendered in favor of the adverse party. Kessinger simply did not establish a knowing, intelligent and voluntary waiver of TIG’s right to subrogation. Thus, Kes-singer’s motion for directed verdict should have been denied.

When reviewing an order granting a motion for directed verdict, the court must view the evidence in the light most favorable to the non-moving party. Ortlieb v. Butts, 849 So.2d 1165 (Fla. 4th DCA 2003); Collins v. Sch. Bd. of Broward County, 471 So.2d 560 (Fla. 4th DCA 1985). We have done so and conclude that the order granting a directed verdict and the resulting judgment must be reversed. The case is remanded for reinstatement of the jury verdict and proceedings consistent with this opinion.

STEVENSON and SHAHOOD, JJ., concur.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).

      . In fact, Gulfstream consistently sought to keep the issue of insurance from tainting any jury determination on liability. It filed a motion in limine to prevent reference to TIG as its insurer. It even postponed admitting the insurance policy into evidence until after the initial close of the evidence.

      . The pleadings in this case no doubt contributed to the confusion of issues. The only reference to subrogation came in Gulf-stream’s last minute amendment in the style of the case. Nevertheless, the trial court found that the issues of subrogation and waiver had been tried by consent. Kessinger did not appeal that decision.


text:
    Royce M. REED, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-526.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Rehearing Denied June 4, 2004.
    Royce M. Reed, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Royce Reed appeals the denial of his motion for post-conviction DNA testing pursuant to section 925.11(l)(a), Florida Statutes (2002), and Florida Rule of Criminal Procedure 3.853. We affirm the trial court’s denial because “[a] defendant who enters a plea of guilty or nolo contendere may not seek postconviction DNA testing based on the language of the statute.” Smith v. State, 854 So.2d 684, 685 (Fla. 2d DCA 2003)(citing Stewart v. State, 840 So.2d 438 (Fla. 5th DCA 2003)).

Affirmed.


author: STRINGER, Judge.

text:
    Clarence W. DOWNS, Petitioner, v. James CROSBY, Jr., Secretary, Florida Department of Corrections, Respondent.
    No. 2D03-4364.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
    Rehearing Denied June 8, 2004.

      Clarence W. Downs, pro se.
    Wendy Benner-Leon, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   STRINGER, Judge.

Clarence W. Downs seeks certiorari review of the circuit court’s order denying Downs’ petition for writ of mandamus/ha-beas corpus. Downs argues that the circuit court failed to apply the correct law in determining that the Department of Corrections (“the Department”) properly denied his petition for provisional credits.

Because the circuit court erroneously relied on the amended version of the applicable statute concerning provisional credits, we grant the petition.

Certiorari review of a trial court’s order denying petition for writ of mandamus or habeas corpus is a “second tier” certiorari review when the petition is sought to appeal an administrative order. Mabrey v. Fla. Parole Comm’n, 858 So.2d 1176, 1181 (Fla. 2d DCA 2003) (habeas corpus); Sheley v. Fla. Parole Comm’n, 703 So.2d 1202, 1206 (Fla. 1st DCA 1997) (mandamus), approved, 720 So.2d 216 (Fla.1998). On second tier certiorari review, this court is limited to determining whether the circuit court afforded the petitioner procedural due process and applied the correct law. Mabrey, 858 So.2d at 1181 (citing Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003)).

In this case, Downs sought provisional credits on two guidelines sentences he received in April 1992. The Department denied Downs’ request, finding that a subsequent habitual felony offender sentence rendered Downs ineligible for provisional credits on his guidelines sentences under section 944.277(l)(g), Florida Statutes (1991). The circuit court denied Downs’ petition for writ of mandamus/habeas corpus and held that the Department properly denied Downs’ claim for provisional credits under section 944.277(l)(g).

Downs argues that the circuit court failed to apply the correct law in determining that he was not entitled to provisional credits on his guidelines sentences. Downs claims that he is entitled to those credits under section 944.277(l)(g), Florida Statutes (1991), as interpreted in Dugger v. Anderson, 593 So.2d 1134 (Fla. 1st DCA 1992), and McBride v. State, 601 So.2d 1335 (Fla. 2d DCA 1992).

Section 944.277(l)(g), Florida Statutes (1991), excludes from eligibility to receive provisional credits an inmate who “[i]s sentenced or has previously been sentenced, under s. 775.084, [habitual offender statute] or has been sentenced at any time in another jurisdiction as a habitual offender.” In Anderson, the First District held that a defendant who has been sentenced as a habitual felony offender is entitled to provisional credits for any guidelines sentences rendered prior to the habitual felony offender sentence under section 944.277(l)(g). 593 So.2d at 1134. Thus, the Anderson court interpreted section 944.277(l)(g) as imposing “a temporal requirement with regard to the habitual offender exception.” Id. This court followed the Anderson court’s interpretation of section 944.277(l)(g) to interpret an administrative code rule containing the exact same language in regard to control release eligibility in McBride. 601 So.2d 1335.

In response to the First District’s decision in Anderson, the legislature amended section 944.277(l)(g) to provide that provisional credits may not be awarded to any inmate who:

[i]s sentenced, or has previously been sentenced, or has been sentenced at any time under s. 775.084, or has been sentenced at any time in another jurisdiction as a habitual offender.

§ 944.277(l)(g), Fla. Stat. (1993); Ch. 92-310, § 12, at 2967, Laws of Fla. Thus, the legislature has made clear that it did not intend for inmates who are sentenced as habitual felony offenders after they receive guidelines sentences to receive provisional credits. See McBride v. Moore, 780 So.2d 221, 222 (Fla. 1st DCA 2001); Mamone v. Dean, 619 So.2d 36, 36 (Fla. 5th DCA 1993). This amendment has been applied retroactively, and the First and Fifth Districts have held that its retroactive application does not violate the Ex Post Facto Clause. Id. The McBride court held that the amendment impliedly overruled its decision in Anderson, so that Anderson would be “of no benefit” to the defendant. McBride, 780 So.2d at 222. The circuit court’s decision in this case is likewise based on the amendment to section 944.277(l)(g) and, thus, presupposes that the amendment impliedly overruled Anderson.

Generally, a court may look to a statutory amendment to determine the intent of the prior version of that statute if the amendment “is enacted soon after controversies as to the interpretation of the original act arise.” Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985). However, the amendment may not be considered to impliedly overrule case law interpreting the statute if the retroactive application of the amendment violates the Ex Post Facto Clause. State v. Smith, 547 So.2d 613, 616 (Fla.1989); State v. Miranda, 793 So.2d 1042, 1044 (Fla. 3d DCA 2001). In evaluating whether a statute violates the Ex Post Facto Clause, the courts must consider (1) whether the law is retrospective, or whether it applies to events that occurred prior to its enactment, and (2) whether it disadvantages the petitioner. Green v. State, 839 So.2d 748, 750 (Fla. 2d DCA), review granted, Franklin v. State, 854 So.2d 659 (Fla.2003).

In Smith, the Florida Supreme Court held that the retroactive application of the legislature’s amendment of a statute to clarify the statute’s intent in response to Carawan v. State, 515 So.2d 161 (Fla.1987), would violate the Ex Post Facto Clause. 547 So.2d at 616. The court held:

First, it is a function of the judiciary to declare what the law is. Although legislative amendment of a statute may change the law so that prior judicial decisions are no longer controlling, it does not follow that court decisions interpreting a statute are rendered inapplicable by a subsequent amendment to the statute. Instead, the nature and effect of the court decisions and the statutory amendment must be examined to determine what law may be applicable after the amendment. Secondly, it is firmly established law that the statutes in effect at the time of the commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed. Finally, the amended statute, if given retroactive effect as urged by the state, would result in additional punishment for appellant, thus running afoul of the ex post facto clauses of the state and federal constitutions.

547 So.2d at 616 (quoting Heath v. State, 532 So.2d 9, 10 (Fla. 1st DCA 1988)) (citations omitted). Thus, the court held that the interpretation of the statute in Cara-wan controlled for defendants whose crimes were controlled by the prior version of the statute.

In Miranda, the Third District held that the retroactive application of an amendment to section 775.082(9)(a)(l), Florida Statutes, violated the Ex Post Facto Clause. 793 So.2d at 1044. Section 775.082(9)(a)(l) was amended by the legislature in response to the supreme court’s decision in State v. Huggins, 802 So.2d 276 (Fla.2001), which interpreted section 775.082(9)(a)(l) to exclude convictions for burglary of an unoccupied dwelling from its sentencing scheme. The amended statute provided for sentencing under section 775.082(9)(a)(l) for burglary of an unoccupied dwelling. Because the retroactive effect of the statute would have been to require enhanced sentencing under section 775.082(9)(a)(l) for the defendant, the court found that a retroactive application of the amended statute would violate the Ex Post Facto Clause. 793 So.2d at 1044; see also State v. Eldredge, 801 So.2d 965, 967 (Fla. 4th DCA 2001) (refusing to apply section 775.082(9)(a)(l) retroactively), review denied, 823 So.2d 126 (Fla.2002).

In this case, the circuit court’s holding that the Department appropriately denied Downs’ petition for provisional credits is based upon the retroactive application of section 944.277(l)(g), Florida Statutes (1993). The Department relies on the First District’s decision in McBride and the Fifth District’s decision in Mamone to support its conclusion that the retroactive application of the statute does not violate the Ex Post Facto Clause. See McBride, 780 So.2d 221; Mamone, 619 So.2d 36. Downs argues that these decisions are not good law because they relied on the Florida Supreme Court’s decision in Dugger v. Rodrick, 584 So.2d 2 (Fla.1991), which has been overruled in Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). In Rodrick, the Florida Supreme Court held that the retroactive application of section 944.277 did not violate the Ex Post Facto Clause because it was procedural and not substantive in nature. 584 So.2d at 2. The court based its conclusion that the statute was procedural on the fact that it dealt with provisional credits based on overcrowding, which is “not directed toward the traditional purposes of punishment.” Id. at 4.

In Lynce, the Supreme Court held that a statute that cancelled provisional credits based on overcrowding was subject to ex post facto analysis, 519 U.S. at 449, 117 S.Ct. 891, thus impliedly overruling Rodrick. See Winkler v. Moore, 831 So.2d 63 (Fla.2002) (recognizing implied overruling). Both McBride and Mamone rely on the Rodrick court’s impliedly overruled holding in determining that section 944.277(l)(g) is not subject to ex post facto analysis.

Thus, in order to determine whether the amended version of section 944.277(l)(g) applies, we must apply an ex post facto analysis to the retroactive application of section 944.277(l)(g), Florida Statutes (1993). In this case, section 944.277(l)(g), Florida Statutes (1993), is retrospective because it would apply to crimes that occurred prior to its enactment. Additionally, application of this version of section 944.277(l)(g) would disadvantage Downs by precluding him from receiving up to 822 days of provisional credits on his guidelines sentences and thus requiring a longer term of incarceration. Therefore, the circuit court’s retroactive application of the amendment to section 944.277(l)(g) violated the Ex Post Facto Clause and was an application of the incorrect law.

We grant Downs’ petition for writ of certiorari and quash the circuit court’s order with directions for the court to consider Downs’ petition in accordance with section 944.277(l)(g), Florida Statutes (1991), as interpreted by Dugger v. Anderson, 593 So.2d 1134 (Fla. 1st DCA1992).

Petition granted; order quashed.

NORTHCUTT and KELLY, JJ., Concur.

      . See Winkler v. Moore, 831 So.2d 63, 75 (Fla.2002) (holding that inmates who committed their offenses between September 1, 1990, and June 16, 1993, and are otherwise qualified to receive provisional credits under section 944.277, are entitled to 822 days of provisional credits).


text:
    PARKING COMPANY OF AMERICA, INC., Appellant, v. MIAMI-DADE COUNTY, et al., Appellees.
    No. 3D03-2835.
    District Court of Appeal of Florida, Third District.
    April 28, 2004.
    Rehearing Denied June 4, 2004.

      Joseph Cartolano, for appellant.
    Robert A. Ginsburg, Miami-Dade County Attorney and Thomas Goldstein, Assistant County Attorney, for appellee, Miami-Dade County.
    Before SCHWARTZ, C.J., SHEVIN and WELLS, JJ.
   PER CURIAM.

Affirmed. See Palm Beach County v. Cove Club Investors Ltd,., 734 So.2d 379 (Fla.1999); Div. of Admin. v. Ely, 351 So.2d 66 (Fla. 3d DCA 1977); N. Dade Water Co. v. Florida State Tpk. Auth., 114 So.2d 458 (Fla. 3d DCA 1959); Alternative Networking, Inc. v. Solid Waste Auth. of Palm Beach County, 758 So.2d 1209 (Fla. 4th DCA 2000).


text:
    David LYNCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1277.
    District Court of Appeal of Florida, First District.
    April 29, 2004.
    David Lynch, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PETITION DENIED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    Edward LANG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1361.
    District Court of Appeal of Florida, First District.
    April 29, 2004.
    Edward Lang, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PETITION DENIED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    David A. DEAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0920.
    District Court of Appeal of Florida, First District.
    May 4, 2004.
    C. Dennis Roberts, Public Defender, and David M. Valin, Assistant Public Defender, Live Oak, for petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of certiorari is dismissed as moot.

PETITION DISMISSED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    Jonathan GLOVER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2680.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Rehearing Denied June 4, 2004.
    Jonathan Glover, in proper person.
    Charles J. Crist, Jr., Attorney General and Steven R. Berger, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and FLETCHER, JJ.
   PER CURIAM.

We grant the petition for Writ of Habe-as Corpus for a belated appeal and conclude that the trial court did not abuse its discretion when it declined to award the appellant credit for time served in a non-Florida jail on unrelated charges. See Kronz v. State, 462 So.2d 450, 452 (Fla.1985); McRae v. State, 820 So.2d 1048, 1049 (Fla. 2d DCA 2002) (en banc); Hopping v. State, 650 So.2d 1087, 1088 (Fla. 3d DCA 1995). Accordingly, we affirm the order under review.

Affirmed.


author: KLEIN, J.

text:
    Montejo Gaspar MONTEJO, as Guardian of the person of Luis Alberto Jimenez, Appellant, v. MARTIN MEMORIAL MEDICAL CENTER, INC., Appellee.
    No. 4D03-2638.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Rehearing Denied June 29, 2004.

      JoNel Newman of Florida Legal Services, Inc., Miami and Michael R. Banks of Michael R. Banks, P.A., Stuart, for appellant.
    George F. Bovie, III and Jennifer L. Williamson of Crary, Buchanan, Bowdish, Bovie, Beres, Elder & Thomas Chartered, Stuart, for appellee.
   KLEIN, J.

Luis Alberto Jimenez was an undocumented alien working in Florida when he was severely injured in an accident, necessitating the appointment of a guardian. Martin Memorial Medical Center, the hospital in which Jimenez was being treated, intervened in the guardianship proceedings to seek court approval to discharge Jimenez and transport him to a hospital in his home country, Guatemala. We reverse an order granting the hospital’s requested relief.

Jimenez, who was thirty-one, suffered traumatic brain damage and severe physical injuries in a February, 2000 accident, while he was a passenger in a car. He was admitted to the hospital immediately after the accident and remained there until June, 2000, when the hospital transferred him to a nursing home. The court found Jimenez totally incapacitated and appointed his cousin’s husband to be guardian of his person and property. In January, 2001, Jimenez was readmitted on an emergency basis to the hospital where he remained at the time of these proceedings. He currently has a personal injury suit pending in Florida.

In November, 2001, the guardian filed a guardianship plan stating that Jimenez would, for the next twelve months, need twenty-four hour nursing care at a hospital or skilled nursing facility. The hospital filed a petition for judicial review which alleged that the guardian was not acting in the ward’s best interest. The hospital asserted, among other things, that it had applied for financial assistance for long-term care for Jimenez to no avail because, as an undocumented alien, he is not eligible for Medicaid or any other type of public assistance. The hospital sought to discharge Jimenez so that he could be transferred to a hospital in Guatemala, where his family resided. The court, following an evidentiary hearing, authorized the hospital to transport Jimenez to Guatemala, and the guardian appeals that order.

The guardian argues that the hospital was not an “interested party” under the statute governing participating in guardianship proceedings, section 744.3715(1). The hospital responds that it was interested because the hospital bills for Jimenez exceeded $1 million dollars and, except for about $80,000, which had been paid by Medicaid for emergency care, there were no funds available to pay for his care. We conclude that the hospital is “affected by the outcome” of the proceeding, section 731.201(21), Florida Statutes (2002), and is therefore interested.

We next address the hospital’s argument that the appeal is moot, which is based on the following sequence of events. On June 27, 2003, the trial court entered the order authorizing the hospital to transport Jimenez to Guatemala, and the guardian moved for rehearing which was denied on July 9. The guardian filed a notice of appeal on July 9, along with a motion in the trial court for a stay pending appeal. The next day the hospital, at 7:30 A.M., flew Jimenez to Guatemala, before the court could rule on the stay.

The hospital argues that the appeal is moot because, now that Jimenez is in Guatemala, whether he can return is preempted by federal immigration law. That argument, however, only weakens the hospital’s position on a different issue, which is whether the trial court had subject matter jurisdiction to authorize the hospital to transport Jimenez to Guatemala in the first place, because federal immigration law preempts deportation. Torros v. State, 415 So.2d 908 (Fla. 2d DCA 1982) (Florida judge could not order illegal alien to be deported to Cuba if he violates probation because of preemption of federal law). Johns v. Dep’t of Justice, 653 F.2d 884 (5th Cir.1981). In addition, the mootness argument is only possible because the hospital put Jimenez on a plane early in the morning on the day after the order became final, before the court could rule on the pending motion for stay. Finally, even if this case were moot, we are persuaded that it presents an important issue which is likely to recur. Holly v. Auld, 450 So.2d 217 (Fla.1984).

The guardian argues that there was no substantial competent evidence to support the discharge from the hospital. As a Medicare provider, the hospital was required to comply with federal discharge requirements contained in 42 U.S.C. section 1395X(ee) and 42 C.F.R. section 482.43. Under 42 C.F.R. section 482.43(d), the patient can be transferred by a hospital only to an “appropriate facility” where the patient would receive post-hospital care. Such a facility is defined as one which can meet the patient’s medical needs. 42 C.F.R. § 482.21(b)(2). 59 Fed. Reg. 64149.

Similarly, the hospital’s own discharge policies and procedures require that the discharge plan identify the next appropriate level of care required by the patient, identify by name and address the receiving facility, provide the name of the supervising medical doctor who will take responsibility for the patient’s care at the receiving facility, and confirm that the doctor -will provide the patient with the identified appropriate level of care.

The hospital convened a discharge planning committee for Jimenez, and it determined that the next level of care he needed was traumatic brain injury rehabilitation. There are facilities in Florida which would have qualified; however, they would not accept Jimenez because he is indigent and does not qualify for Medicaid.

Some of the significant findings of the trial court, which were necessary in order for the hospital to be able to discharge Jimenez, were that Jimenez had reached a “therapeutic plateau,” that remaining at the hospital would not improve his condition, and that this hospital, “as an acute care facility, cannot provide for the long-term therapy needs” of Jimenez. Based on those findings the court concluded that the guardian was not acting in Jimenez’s best interest by allowing him to remain in the hospital.

At the evidentiary hearing the hospital attempted to satisfy the federal discharge requirements, as well as the hospital’s own discharge requirements, by offering into evidence a letter from the Vice Minister of Public Health in Guatemala, Dr. Julio Molina, which stated:

[T]he system of the Rehabilitation and Orthopedic Hospital “Dr. Edwin Harold von Ahn,” is ready to give the necessary care to Mister Luis Alberto Jimenez, 28 years of age [sic] and originally from the City of Antigua Guatemala, Sacatepe-quez [sic] and will do so as soon as he arrives to this county. We will evaluate and transfer him to the most appropriate facility for the treatment of his condition. The medical treatment to be available will be without any cost to Mister Jimenez.

The guardian objected to this letter as hearsay, but the trial court overruled the objection and admitted the letter into evidence. As it turned out, this letter was the only thing on which the court could rely to make the necessary finding that appropriate medical care, traumatic brain injury rehabilitation, would be available in Guatemala.

This letter was not admissible in evidence under any exception to the hearsay rule that we know of, and indeed the hospital has not even responded to the argument that it was precluded by the hearsay rule. Even if the letter had been admissible, it was not nearly specific enough to satisfy either the federal regulations or the hospital’s discharge procedures.

The only admissible evidence as to whether appropriate care would be available in Guatemala was the testimony of Dr. Miguel Graces, an expert on the Guatemalan public health care system. He testified that there are no public healthcare facilities providing traumatic brain injury rehabilitation in Guatemala.

We therefore reverse because (1) there was no competent substantial evidence to support Jimenez’s discharge from the hospital, and (2) the trial court lacked subject matter jurisdiction to authorize the transportation (deportation) of Jimenez to Guatemala. Fla. Auto. Dealers Indus. Ben. Trust v. Small, 592 So.2d 1179 (Fla. 1st DCA 1992) (preemption determines subject matter jurisdiction). Reversed.

STONE and TAYLOR, JJ., concur.

      . Health Law Reporter (BNA), No. 29, Vol. 12 at 1130 (July 17, 2003), (“Hospital industry officials said the case illustrates a major problem faced by Florida providers”); Chardy, "Uninsured Patient Sent Home to Gua-témala,” Miami Herald, July 11, 2003, at 1A (quoting Jackson Memorial Hospital and Florida Hospital Association spokespersons about importance of the precedent established by this case).


author: PER CURIAM. KLEIN, J.,

text:
    Zachary RICHARDSON, Donald Radcliff, David Sass, Robert Steiler Ronald Shindler, Marc Steinberg and Alan Sklar, Petitioners, v. Stephen GYVES, Richard Francis, James Spero, Bonnie Dalton, Fruins Pharmacy, John Hicks, Pat Patterson, Roger Porter, James Taylor and Robert Oman, on behalf of themselves and all others similarly situated, Respondents.
    No. 4D03-4913.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Rehearing Denied June 23, 2004.
    Matthew Triggs and Mary F. April of Proskauer Rose, LLP, Boca Raton, for petitioner Zachary Richardson.
    Jonathan B. Butler of Steel, Hector & Davis, LLP, West Palm Beach, and Lewis F. Murphy of Steel, Hector & Davis, LLP, Miami for petitioners Donald Radcliff, David Sass, Robert Steiler, Ronald Shin-dler, Marc Steinberg, and Alan Sklar.
    Robert D. Critton, Jr., and Rita Budnyk of Burman, Critton, Luttier & Coleman, West Palm Beach, for respondents.
   PER CURIAM.

The issue presented by this petition for certiorari is whether, before a class action is certified, discovery on the merits of the claim, which is not relevant to the issue of class certification, should be permitted. While the petitioner’s suggested sequence of discovery makes good sense, we do not reach the merits of the issue because the petitioner has faded to demonstrate irreparable harm. In re Estate of Sauey v. Sauey, 869 So.2d 664 (Fla. 4th DCA 2004); see also Martin-Johnson, Inc., v. Savage, 509 So.2d 1097, 1098 (Fla.1987) (“[C]om-mon law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.”). But see Policastro v. Stelk, 780 So.2d 989 (Fla. 5th DCA 2001).

The petition is therefore dismissed.

WARNER and MAY, JJ., concur.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

If it were not for the fact that this court has consistently required irreparable injury before granting certiorari review, I would grant the petition and hold, as two of our sister courts have done, that until a class is certified in a class action case, discovery should be limited to the issue of class certification.

The primary reason I am writing is to remind the trial courts in this district that, in the absence of any authority from this court, and there is none here, they are bound to follow the decisions of our sister courts. Pardo v. State, 596 So.2d 665 (Fla.1992). One of those decisions is Policastro v. Stelk, 780 So.2d 989 (Fla. 5th DCA 2001), in which the court granted certiorari and, relying on federal cases and treatises, quashed an order allowing discovery on the merits before class certification.

Florida Rule of Civil Procedure 1.220, our class action rule, is based on Federal Rule of Civil Procedure 23. Fla. R. Civ. P. 1.220 (Committee Notes to 1980 Amendment). When Florida rules of procedure are patterned after federal rules, Florida has a longstanding tradition of relying on federal case law. Savage v. Rowell Distrib. Corp., 95 So.2d 415 (Fla.1957); Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d 467 (Fla. 4th DCA 1969); Smith v. S. Baptist Hosp. of Fla., Inc., 564 So.2d 1115 (Fla. 1st DCA 1990). Policastro relied on federal case law which limits discovery under these circumstances.

Prior to Policastro, the third district granted certiorari and quashed orders allowing discovery in class actions until the court determined that the individual plaintiff had standing to serve as representative of the class. Baptist Hosp. v. DeMario, 683 So.2d 641 (Fla. 3d DCA 1996); Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So.2d 1004 (Fla. 3DCA 1997).

Plaintiffs/respondents have cited no Florida or federal authority which would support allowing discovery on the merits. The closest case they could apparently find is Blair v. Source One Mortgage Services Corp., 1997 WL 79289 (E.D.La.1997); however, that case stands for the proposition that discovery on the merits may be proper prior to class certification, if the discovery relates to both the merits and certification of the class. The Blair court recognized, however, that merits discovery should normally wait until class certification.

In this case the trial court should have followed Policastro, DeMario and Taran, but, because there is no irreparable injury, I agree that the petition must be dismissed.


text:
    Arthur McNEIL and Evelyn McNeil, his wife, Appellants, v. The HERTZ CORPORATION and Fred Lipsius, Appellees.
    No. 4D03-298.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Rehearing Denied June 29, 2004.
    James C. Blecke of Deutsch & Blum-berg, P.A., Miami, for appellants.
    David F. Cooney and Warren B. Kwav-nick of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for appellee The Hertz Corporation.
   PER CURIAM.

Affirmed. See Sontay v. Avis Rentr-A-Car Systems, Inc., 872 So.2d 316 (Fla. 4th DCA 2004); Budget Rentr-A-Car Systems, Inc. v. Bennett, 847 So.2d 579 (Fla. 3d DCA 2003); and Enterprise Leasing Co. v. Hughes, 833 So.2d 832 (Fla. 1st DCA 2002).

POLEN, MAY, JJ., and BERNSTEIN, SCOTT M., Associate Judge, concur.


author: ORFINGER, J.

text:
    Christopher LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-998.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Rehearing Denied June 9, 2004.
    Christopher Lewis, Sneads, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Christopher Lewis appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Lewis alleges that the three-year minimum mandatory sentence imposed following his conviction for trafficking in cocaine in an amount greater than 28 grams, is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), which declared Chapter 99-188, Laws of Florida, unconstitutional. Although in Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), this Court previously held that the constitutional defect in Chapter 99-188 was retroactively cured based on the Legislature’s enactment of Chapters 02-208 through 02-212, Laws of Florida, we recently receded from that position in Jones v. State, 872 So.2d 938 (Fla. 5th DCA 2004).

Nonetheless, as the trial court correctly observed, Lewis committed the charged offense on May 9, 2003. In Taylor, the court held that Chapters 02-208 through 02-212, Laws of Florida, which reenacted the provisions of Chapter 99-188, cured the single subject rule as of April 12, 2002. See also Wright v. State, 869 So.2d 24 (Fla. 2d DCA 2004); Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). No court has held that Chapters 02-208 through 02-212 violated the single subject rule. To the contrary, the courts have only held that the corrected laws cannot be applied retroactively. As Lewis committed his offense more than a year after the effective date of the corrective legislation, there is no issue of retroactive application. Accordingly, the trial court’s order denying Lewis’s motion to correct an illegal sentence is affirmed.

AFFIRMED.

SHARP, W., and PETERSON, JJ., concur.


author: SHARP, W., J.

text:
    Linda Colvard DORIAN, etc., et al., Petitioners, v. Stefan DAVIS, et al., Respondents.
    Nos. 5D03-3486, 5D03-3522.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Rehearing Denied June 16, 2004.

      Thomas B. Drage, Jr., County Attorney and Joel D. Prinsell, Senior Assistant County Attorney, Orlando, for Petitioner Orange County.
    Thomas P. Callan, G. Robertson Dilg and Alison M. Yurko, of Thomas P. Callan, P.A., Orlando, for Petitioner Linda Col-vard Dorian.
    Eric B. Marks and Virginia B. Townes of Akerman Senterfitt, Orlando, for Respondents Stefan Davis, etc., et al.
   SHARP, W., J.

Dorian (a resident of a nearby neighborhood and a representative of a Homeowners Association), together with other associations, individuals and businesses, and the Orange County Board of County Commissioners, seek “second tier” cer-tiorari review of a final order rendered by a three-judge panel of the circuit court, in a zoning case. The decision overturned the County’s denial of Respondents’ (Stefan Davis and Davis & Sons Construction Company) Development Plan to construct multi-family residential units on a parcel of undeveloped land located in Knights Krossing, in Orange County, Florida. We grant the writ.

Knights Krossing is located across Ala-faya Trail from the University of Central Florida and caters to students attending UCF and Valencia Community College. It is the only multi-family residential development in the Quadrangle, an approved Planned Development (Development of Regional Impact). Respondents are the original developers of the first three multifamily residential phases of Knights Krossing. In their Development Plan at issue, they propose to develop Phase 4, an additional multi-family residential project, on the parcel involved in this lawsuit.

This is the second time this matter has come before this court. In Orange County v. Quadrangle Development Co., 780 So.2d 994 (Fla. 5th DCA 2001), this court determined that the circuit court had applied the correct law in deciding there was no competent substantial evidence to support the County’s denial of Respondent’s Development Plan for this parcel, on the grounds that the development created “an emergency situation which affected the public health, safety and welfare.” 780 So.2d at 996. However, this court concluded that the circuit court should not have issued a writ of mandamus requiring the County to approve the Development Plan.

Following that decision, on June 5, 2001, the County held a second full public hearing on Dorian’s appeal from the Development Review Committee’s approval of the Development Plan. Additional evidence and testimony was presented. Once again, the Board denied the Development Plan for three reasons:

1. It determined that it would count each separately leased bedroom in each unit in the prior three phases as a multifamily dwelling unit, even though the bedrooms are not attached to separate kitchens, thereby resulting in having the proposed Development Plan exceed the overall multi-family number of units approved for the Quadrangle’s existing DRI Development Order and Land Use Plan. This method of counting multi-family units was in contrast to the County’s pri- or policy, which was to count only the number of kitchens to determine the number of multi-family dwelling units. This formula had been used in the prior proceedings.

2. It determined that the levels of crime and nuisance in the existing multifamily phases is excessive and creates a public health and safety issue. In addition, it determined the volume of calls for service in the three prior phases creates a demand on the sheriffs office which decreases the efficiency and availability of those resources to the public at large. It concluded the construction of the proposed Development Plan would aggravate those pre-existing conditions.

3. It determined that the proposed Development Plan, if built, would negatively impact the quality of life for area residents because of the nature of the activity in the project and its density.

On review, the circuit court determined that the County’s second and third reasons for disapproving the Development Plan were supported by substantial and competent evidence. However, because the circuit court agreed with Respondents that the first reason was invalid, it granted their petition for writ of certiorari and quashed the County’s disapproval of the Development Plan.

In general, a local government’s quasi-judicial decision, such as Orange County’s in this case, should be upheld if there is any competent, substantial evidence in the record to support it. See Eckler v. Orange County, 763 So.2d 545 (Fla. 5th DCA 2000) (determination upheld even though only one of the three reasons given for termination were supported by the record); Hernando County Board of Commissioners v. S.A. Williams Corp., 630 So.2d 1155 (Fla. 5th DCA 1993), rev. denied, 639 So.2d 981 (Fla.1994) (in zoning case circuit court should determine only whether or not competent substantial evidence supported the Board’s decision); Orange County v. Lust, 602 So.2d 568, 570 (Fla. 5th DCA) (en banc), rev. denied, 613 So.2d 6 (Fla.1992) (in rezoning case, the circuit court’s role is to search the record to see if any substantial, competent evidence supports the Board’s decision).

In a second-tier certiorari review, the district appellate court is out of the business of determining whether or not substantial, competent evidence exists to support the County’s zoning decision. Since the circuit court made that determination as to reasons two and three, that is the end of the matter. The fact that the first reason given for disapproving the Development Plan may have violated the law of the case doctrine or Respondents’ due process rights does not change the fact that there were two other valid reasons, and that they were supported by competent, substantial evidence. Whether or not the circuit court failed to evaluate this evidence or evaluated it out of context without considering the “legally probative value thereof’ are matters which, under the current state of the law, this court is prohibited from considering. Haines City Community Development v. Heggs, 658 So.2d 523 (Fla.1995).

We also reject Respondents’ argument that the “law of the case” doctrine requires a contrary result in this case. The appellate decision in the prior proceeding established, as a matter of law, that there was no substantial competent evidence to support the County’s determination that completion of the Development Plan would create a public safety emergency. In the second proceeding, the County considered additional new evidence and based its decision to disapprove the Development Plan on different grounds. The law of the case doctrine is narrower than the doctrine of res judicata in that it bars consideration only of those legal issues actually considered and decided in the former appeal. See Fla. Dept. of Transp. v. Juliano, 801 So.2d 101 (Fla.2001).

Petition for Writ of Certiorari GRANTED. Decision Under Review QUASHED.

SAWAYA, C.J., and GRIFFIN, J., concur.

      . In an order dated November 13, 2003, this court consolidated the petitions filed by each of the petitioners in 5D03-3486 and 5D03-3522.

      . Florida Power & Light v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000).

      . Broward County v. G.B.V. International, Ltd. 787 So.2d 838, 843 (Fla.2001).

      . See Parker Family Trust I v. Jacksonville, 804 So.2d 493 (Fla.2d DCA 2001).


text:
    KEYBANK NATIONAL ASSOCIATION, Appellant, v. INTERNATIONAL FINANCE BANK, Appellee.
    No. 3D02-2010.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.

      Holland & Knight and Lucinda A. Hof-mann and Barbara Erich Locke, Miami, for appellant.
    Heller & Chames; Jay M. Levy, Miami, for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   FLETCHER, Judge.

Keybank National Association appeals a summary final judgment entered against it and in favor of International Finance Bank [IFB] on claims of misrepresentation and gross negligence in an action on dishonored checks. We reverse and remand for trial.

In August of 1998, COFO Financial Group, a Canadian currency exchange company, opened a checking account at IFB. According to its in-house policy, IFB automatically imposed an extended 10-day hold on checks deposited to the account. Almost immediately COFO began over-nighting checks for deposit to the IFB officer (Ana Uribe) who had opened the account at IFB for COFO. These checks were made payable to COFO from COFO’s accounts at two New York banks, at first, Fleet Bank, then Keybank. The checks ranged in amount from $100,000 and $500,000.

There then began a series of events which led to IFB’s loss of millions of dollars. Uribe became unusually involved with COFO’s account, speaking to COFO personnel every morning to confirm that she had received COFO’s checks and deposited them, and to confirm the account’s balances. This was not normal IFB practice.

On August 19, 1998 — days after COFO opened its account — Uribe filled out a service request form to change the hold from “extended” (10 days) to “normal” (5 and 2 days). Uribe did not have the authority to change holds herself, thus obtained the authorization from superiors. However, the only person who could actually change the hold code in the system was IFB’s systems administrator, Luis Guillen.

According to Guillen, Uribe called him on August 24, 1998, and implored him to change the hold code to no holds, which would remove the hold situation from normality. Guillen asked her to send over the paperwork authorizing such a change. Without waiting for the paperwork, Guillen removed the holds the same day as Uribe’s call. He never received the paperwork. Because the holds were removed COFO gained immediate access to any funds it (purportedly) deposited by checks COFO wrote to itself. Normal IFB safeguards were eliminated.

In the meantime COFO was depositing bad checks. IFB dishonored some, honored others. After IFB threatened to dishonor all checks, Uribe made arrangements for COFO to wire $1,500,000. This proved to be of no use. COFO shortly declared bankruptcy, leaving IFB holding an empty $4,000,000.00 bag.

During this frantic activity, Keybank was advising IFB of the lack of COFO funds at Keybank by returning checks unpaid. However, the returned checks were erroneously stamped “uncollected funds”, not “insufficient funds.” IFB convinced the trial court (and argues here) that had the checks been properly stamped IFB would have been alerted to the true situation surrounding COFO’s banking activity. As it was, IFB argues, it was misled into believing that the “uncollected funds” would soon appear and make the problem go away. Keybank argued unsuccessfully to the trial court (and argues here) that IFB’s abnormal method of handling COFO’s account was the cause of IFB’s loss.

We have condensed the situation, omitting many contentions because, through the excellent and instructive briefings, as well as the highly professional oral arguments, it is clear that the case needs to be tried, not resolved on summary judgment. It will be up to the jury to resolve various factual issues, including the responsibility (or responsibilities) for the losses and the extent of the responsibility. Keybank’s pleadings include the potentially viable affirmative defense of comparative negligence.

We therefore reverse the summary final judgment and remand the cause for trial.

      . And thus IFB had little experience with COFO.

      . Uribe was fired; Guillen resigned.


text:
    Michael James PERKO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1135.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Rehearing Denied June 25, 2004.
    Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf and Myra Fried, Assistant Attorneys General, West Palm Beach, for appellee.
   PER CURIAM.

Perko was convicted of possession of cocaine and possession of drug paraphernalia. He entered a no contest plea, reserving the right to appeal the denial of a motion to suppress.

In the course of a consensual encounter, a sheriffs deputy obtained Perko’s consent to conduct a search of his person after obtaining, but before returning, his driver’s license while another deputy conducted a warrant check. Under these circumstances, consent was obtained after Perko had been effectively seized. Therefore, the search was unlawful and the fruits thereof must be suppressed. Baez v. State, 814 So.2d 1149, 1153 (Fla. 4th DCA), rev. granted, 835 So.2d 269 (Fla.2002); Barna v. State, 636 So.2d 571, 572 (Fla. 4th DCA 1994). His conviction and sentence are, therefore, reversed on the authority of Barna and Baez.

We note conflict with Golphin v. State, 838 So.2d 705 (Fla. 5th DCA 2003), in which the Fifth District certified conflict with Baez.

As to the other issue raised on appeal, we find no reversible error or abuse of discretion. We remand for further proceedings.

STONE and TAYLOR, JJ., concur.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

In this case the officer, while retaining appellant’s identification, asked him if he had any weapons or other illegal items on him, to which appellant responded “no.” The officer then said “do you mind if I check your property,” to which appellant responded “go ahead,” and the officer found the crack pipe.

Our sister court, which upheld a search under these circumstances, did so under the assumption that a person can “withdraw his consent at any time by, for example, asking that his license be immediately returned.” Golphin v. State, 838 So.2d 705, 707 (Fla. 5th DCA 2003). This, of course, presupposes that the person knows the law of search and seizure. I, for one, despite my law school education, had no idea there was such a thing as a consensual encounter until I became a judge. Because police officers are, in our society, charged with maintaining order and enforcing the law, it would never have occurred to me that I could insist on the return of my license before the officer was finished with it. Nor would it occur to any other person unversed in search and seizure law.

As Professor LaFave has written “[i]t is nothing more than fiction to say that all of these subjects have consented to the confrontation.” Wayne R. LaFave, Search and Seizure — A Treatise on the Fourth Amendment § 9.3(a), at 95-96 (3d ed.1996).

In addition to the cases we relied on in Baez, appellant has cited several recent cases from other states in which the courts have refused to go along with this charade. Salt Lake City v. Ray, 998 P.2d 274 (Utah Ct.App.2000); Piggott v. Commonwealth, 34 Va.App. 45, 537 S.E.2d 618 (2000). As the court observed in State v. Daniel, 12 S.W.3d 420, 427 (Tenn.2000):

Without his identification, Daniel was effectively immobilized. Abandoning one’s identification is simply not a practical or realistic option for a reasonable person in modern society. [Florida v.] Royer, 460 U.S. [491]at 501-02, 103 S.Ct. [1319]at 1326 [75 L.Ed.2d 229 (1983)]; United States v. Jordan, 294 U.S.App.D.C. 227, 958 F.2d 1085, 1087 (D.C.Cir.1992). Contrary to the State’s assertion, when an officer retains a person’s identification for the purpose of running a computer check for outstanding warrants, no reasonable person would believe that he or she could simply terminate the encounter by asking the officer to return the identification. Accordingly, we hold that a seizure within the meaning of the Fourth Amendment and Article I, section 7 occurred when Officer Wright retained Daniel’s identification to run a computer warrants check.

I thus agree that the evidence from the search in this case must be suppressed.


author: DAVIS, Judge.

text:
    Nick MOLFETTO, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3397.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.
    Rehearing Denied June 15, 2004.
   DAVIS, Judge.

Nick Molfetto appeals the summary denial of his motion to correct illegal sentence and amended motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800, and his motion for transcript. In his motions, Molfetto challenges his sentence as illegal and raises several additional claims for relief. We affirm, without discussion, the trial court’s order as to all but one of Molfetto’s claims.

Molfetto was adjudicated guilty and received an enhanced sentence as a violent career criminal (VCC). In his motion, Molfetto claims his sentence is illegal because he does not have the requisite felonies to be sentenced as a VCC. Specifically, he claims that he does not qualify to be sentenced as a VCC pursuant to section 775.084(4)(c), Florida Statutes (1999), because the record does not show that he was convicted of aggravated assault in New York.

The trial court concluded that Molfetto met the criteria required to be sentenced as a VCC whose primary offense was a second-degree felony because he was properly found to have three prior qualifying convictions. See § 775.084. After reviewing the transcripts, the trial court concluded that the documents submitted by the State at the sentencing hearing to prove Molfetto had the requisite felony convictions were sufficient to support his designation as a VCC.

Although the trial court attached those portions of the record it relied on to support the denial of Molfetto’s claim, it is not apparent from the face of the record that Molfetto was actually convicted of three prior convictions as needed to properly sentence him as a VCC. The attached portions of the record show that Molfetto was charged with aggravated assault but do not show that he was convicted.

Molfetto’s sentence is subject to challenge under rule 3.800(a) because the requisite predicate felonies necessary to qualify him as a VCC do not exist on the face of the record. See Mack v. State, 828 So.2d 746 (Fla.2002); Bover v. State, 797 So.2d 1246 (Fla.2001). Therefore, we reverse the order of the trial court as to Molfetto’s claim that the requisite predicate felonies necessary to sentence him as a VCC do not exist on the face of the record and remand for a determination as to whether Molfetto has the three prior felony convictions needed to be properly sentenced as a VCC. At the time his sentence was imposed, Molfetto did not raise an objection on the basis that he lacked the requisite prior felony convictions necessary to be sentenced as a VCC. Therefore, on remand, the State should be given the opportunity “to present record evidence that other prior convictions existed” to support his sentence as a VCC. See Bover 797 So.2d at 1251. If Molfetto does not have the necessary prior convictions, he is entitled to be resentenced according to the sentencing guidelines; otherwise, the trial court should attach copies of his prior convictions or other portions of the record that conclusively show Molfetto was qualified to be sentenced as a VCC. See Botelho v. State, 691 So.2d 648 (Fla. 2d DCA 1997).

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

KELLY and VILLANTI, JJ., concur.

      . The documents from New York attached to the trial court’s order are docket sheets that do not identify, by title, the offense with which Molfetto was charged. The trial court's reliance on the criminal history sheet prepared by the Tampa Police Department and the entry on that report, citing a New York conviction for aggravated assault, is misplaced. From a review of the New York statutes that correspond to those listed on the attached New York documents, it appears that Molfetto was charged with aggravated assault in New York. However, the documents do not show that Molfetto was actually convicted of the charges. Additionally, Molfetto attached to his petition a document that purports to show that the aggravated assault charge was reduced to resisting arrest.


text:
    Victor FRANCO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2291.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Rehearing Denied June 24, 2004.
    Victor Franco, Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Victor Franco appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post conviction relief. Franco alleged numerous claims of ineffective assistance of counsel. The state expressed “grave doubts” in the response below regarding the timeliness of the motion. Fla. R.Crim. P. 3.850(b).

We also seriously question the timeliness of the motion. Even assuming that the motion was timely, however, summary denial was proper as the claims are either legally insufficient or conclusively refuted by the record. McLin v. State, 827 So.2d 948, 954 (Fla.2002).

POLEN, STEVENSON and MAY, JJ„ concur.


text:
    Pablo GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2681.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Rehearing Denied June 9, 2004.
    Charles G. White, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

The defendant, Pablo Gomez, appeals from the denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

At the evidentiary hearing, the defendant argued that he turned down the State’s plea offer as a result of trial counsel’s ineffective assistance. A review of the transcript of the evidentiary hearing shows that the defendant failed to satisfy the test for establishing a claim for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)(“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.”); Hoffman v. State, 827 So.2d 1046, 1048-49 (Fla. 5th DCA 2002)(holding that in claim by defendant that counsel’s ineffective assistance caused him to turn down State’s plea offer, “defendant must prove 1) that his counsel failed to communicate or misinformed him about a plea offer, 2) that he would have accepted the plea offer had he been correctly advised, and 3) that his acceptance of the plea offer would have resulted in a lesser sentence”). As such, the trial court’s order denying the 3.850 motion is affirmed.

Affirmed.