author: CANADY, Judge. NORTHCUTT, J.,

text:
    In re COMMITMENT: John R. CARTWRIGHT. John R. Cartwright, Appellant, v. State of Florida, Appellee.
    No. 2D00-4663.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2004.
    Rehearing Denied March 26, 2004.

      Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jennifer R. Haymes and Marilyn Muir Beccue, Assistant Attorneys General, Tampa, for Appellee.
   CANADY, Judge.

John R. Cartwright appeals an order civilly committing him for treatment as a sexually violent predator under the statute commonly known as the Jimmy Ryce Act, part V of chapter 394, Florida Statutes (2000). Because we conclude that Cartwright has raised no meritorious issues, we affirm the commitment order.

Cartwright raises certain meritless issues related to the conduct of his trial and the implementation of the Ryce Act. Cartwright also argues that the statutory framework for the involuntary civil commitment of sexually violent predators set forth in the Ryce Act violates various provisions of the Florida and United States Constitutions. Cartwright’s challenge to the constitutionality of the statute is, however, largely foreclosed by the decisions in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (upholding Kansas statute providing for the involuntary commitment of sexually violent predators against substantive due process, double jeopardy, and ex post facto challenges), and Westerheide v. State, 831 So.2d 93 (Fla.2002) (upholding Ryce Act against double jeopardy, ex post facto, due process, and equal protection challenges).

We specifically address three of the issues raised by Cartwright: (1) the claim that his commitment violates his contractual rights with the State under his previous plea agreement; (2) the claim that the provision of the Ryce Act permitting the admission of hearsay evidence is unconstitutional on various grounds; and (3) the claim that the instructions given by the trial court were inadequate.

I. PLEA AGREEMENT RIGHTS

Cartwright argues that the plea agreement he entered with the State— which resulted in his adjudication for multiple counts of attempted capital sexual battery — precluded the State from subsequently seeking his commitment under the Ryce Act. Cartwright contends that the State was contractually bound to release him from custody at the end of the incarceration portion of the sentence imposed on him pursuant to his plea agreement and that his commitment under the Ryce Act constitutes a violation of the plea agreement. Cartwright also argues that such a violation of the plea agreement was also a violation of the due process clauses of the Florida and United States Constitutions.

These claims are unwarranted. In Murray v. Regier, 872 So.2d 217, 219-20, 2002 WL 31728885 (Fla. Dec. 5, 2002), the supreme court rejected a similar claim that the civil commitment of the defendant there had “[violated] his constitutional right to due process.” The court specifically concluded that “any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment under the Jimmy Ryce Act.” Id. at 224. Accordingly, any rights Cartwright might have under his plea agreement pertain only to the criminal sanctions against him. Any such rights are totally irrelevant to the subsequent separate civil proceedings against him under the Ryce Act. This is true whether Cartwright presents his claim as one based on his due process rights or on his contract rights. See Collie v. State, 710 So.2d 1000 (Fla. 2d DCA 1998); State v. McFarland, 28 Fla. L. Weekly D2298, — So.2d -, 2003 WL 22259634 (Fla. 1st DCA Oct.3, 2003); Marsh v. State, 849 So.2d 1178 (Fla. 3d DCA 2003); Sandillo v. State, 842 So.2d 1018 (Fla. 5th DCA 2003); Sublett v. State, 842 So.2d 314 (Fla. 5th DCA 2003); Satz v. Runion, 838 So.2d 689 (Fla. 4th DCA 2003).

II. HEARSAY EVIDENCE

Hearsay evidence related to Cartwright’s prior attempted capital sexual battery offenses was admitted by the trial court over Cartwright’s objection. The provision of the Ryce Act permitting the admission of hearsay evidence is found in section 394.9155(5), Florida Statutes (2000), which provides:

Hearsay evidence, including reports of a member of the multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in proceedings under this part unless the court finds that such evidence is not reliable. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this part.

Cartwright argues that this statutory provision is unconstitutional because it violates the due process and equal protection clauses of the Florida and United States Constitutions, as well as the provision of the Florida Constitution vesting the supreme court with the authority to adopt procedural rules.

In Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003), this court recently addressed similar claims concerning the constitutionality of section 394.9155(5) and held that the provision is not unconstitutional. The court concluded that the defendant in that case had “not demonstrated the existence of any constitutional infirmity arising from section 394.9155(5)” and that “the protections afforded by the statute and the role of the trial court to exclude unreliable hearsay evidence suffice to meet constitutional requirements.” Id. at 713. In reaching this conclusion regarding the merits of the “due process, equal protection[,] and separation of powers grounds,” id., urged for the unconstitutionality of section 394.9155(5), this court relied on the reasoning of the California Supreme Court in People v. Otto, 26 Cal.4th 200, 109 Cal. Rptr.2d 327, 26 P.3d 1061 (2001), which held that the admission of hearsay evidence in an involuntary civil commitment proceeding did not violate the defendant’s due process rights.

We will specifically address two aspects of the challenge made by Cartwright to the constitutionality of section 394.9155(5). First, we will briefly discuss Cartwright’s reliance on Conner v. State, 748 So.2d 950, 960 (Fla.1999), which held that the statutory hearsay exception in section 90.803(24), Florida Statutes (1995), for out-of-court statements made by an elderly person describing acts of abuse and violence against the declarant was “facially violative of the defendant’s constitutional right to confrontation.” Second, we will turn to Cartwright’s argument that section 394.9155(5) impermissibly invades the authority vested by article V, section 2(a), Florida Constitution, in the Florida Supreme Court to “adopt rules for the practice and procedure in all courts.”

A. CONSTITUTIONAL RIGHT TO CONFRONTATION

Conner dealt with whether out-of-court statements would be admissible in a criminal prosecution. 748 So.2d at 954. The court’s analysis in Conner focused on whether the challenged statutory provision for the admission of out-of-court statements violated the Confrontation Clause of the Sixth Amendment of the United States Constitution and the parallel provision in article I, section 16(a) of the Florida Constitution. The Confrontation Clauses of both the United States and Florida Constitutions are expressly limited to “criminal prosecutions.” Conner is thus wholly in-apposite to a civil commitment proceeding such as the one at issue here. But see Jenkins v. State, 803 So.2d 783, 785 (Fla. 5th DCA 2001) (“Obviously [section 394.9155(5)] must be construed in light of the Fourteenth Amendment right of confrontation.”).

B. THE SUPREME COURT’S RULE-MAKING AUTHORITY

The second aspect of Cartwright’s attack on the constitutionality of section 394.9155(5) presents a more complex issue. In support of his claim that the challenged provision is a matter of procedure and thus adopted by the legislature in violation of article V, section 2, of the Florida Constitution, Cartwright relies on the holding in Glendening v. State, 536 So.2d 212 (Fla. 1988), that a statute permitting the admission of out-of-court statements made by child sexual abuse victims was a procedural measure which could be applied to an offense that occurred prior to the effective date of the statute without violating the Ex Post Facto Clause. Cartwright also argues that “[n]o provision of the Florida Constitution, Florida Statute, or Florida decisional law allows the legislature to enact any law relating to practice and procedure.”

In response, the State contends that the challenged statutory provision allowing the admission of otherwise inadmissible hearsay is “substantive in nature, not procedural, and ... is therefore within the legislative domain.” The State relies on the decision in Booker v. State, 397 So.2d 910, 918 (Fla.1981), which held that the statutory provision permitting the consideration of otherwise inadmissible hearsay evidence in capital sentencing proceedings did not violate article V, section 2(a).

We conclude that Glendening’s holding that a statutory provision was procedural for purposes of analysis under the Ex Post Facto Clause is inapposite to the issue raised by Cartwright and that the holding in Booker supports the conclusion that section 394.9155(5) does not violate the provision of article V, section 2(a), that “[t]he supreme court shall adopt rules for the practice and procedure in all courts.” We also conclude that the challenged statutory provision should be upheld because it is “intimately related to” and “intertwined with” the substantive provisions of the Ryce Act. Caple v. Tuttle’s Design-Build, Inc., 753 So.2d 49, 54 (Fla.2000). Finally, we conclude that Florida Rule of Civil Procedure 1.010, which authorizes legislative definition of “procedure” in “special statutory proceedings” — such as those instituted under the Ryce Act — further undercuts Cartwright’s argument that the legislature exceeded the proper bounds of its authority in adopting section 394.9155(5).

1. Survey of the Case Law Interpreting Article V, Section 2(a)

We begin our analysis of Cartwright’s claim under article V, section 2(a), with an acknowledgment that the parameters under that constitutional provision of the supreme court’s authority and the concomitant limitations on the authority of the legislature have not been precisely defined. Generally, the case law interpreting article V, section 2(a), has quite reasonably focused on the distinction between procedure and substance and has upheld legislative measures which were determined to be substantive in nature. See, e.g., Benyard v. Wainwright, 322 So.2d 473 (Fla.1975) (holding that statute prescribing circumstances under which sentences could be served consecutively was substantive measure which prevailed over inconsistent rule of court). But, as we will discuss below, there are also circumstances where a legislative provision which would be deemed procedural if viewed in isolation will nonetheless be upheld against a challenge under article V, section 2(a) because of the connection between that provision and substantive provisions adopted by the legislature. See Caple, 753 So.2d at 54; Fla. R. Civ. P. 1.010.

In Haven Federal Savings & Loan Ass’n v. Kirian, 579 So.2d 730, 732 (Fla.1991), the supreme court described the differences between substantive and procedural measures:

Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer. It includes those rules and principles which fix and declare the primary rights of individuals with respect towards their persons and property. On the other hand, practice and procedure “encompass the course, form, manner, means, method, mode, order, process[,] or steps by which a party enforces substantive rights or obtains redress for their invasion. ‘Practice and procedure’ may be described as the machinery of the judicial process as opposed to the product thereof.” It is the method of conducting litigation involving rights and corresponding defenses.

(Citations omitted). Although the definitions of substance and procedure provided by the court afford some guidance, they fall short of setting forth a standard that can mechanically be applied to separate the procedural from the substantive. The definition of procedure set forth by the court might be understood as pointing to the conclusion that matters of evidence— such as the admission of hearsay evidence — would ordinarily be considered procedural and not substantive. But, as we will discuss below, that conclusion would not be consistent with other pronouncements made by the supreme court on the issue.

The fact that a statutory provision could appropriately be labeled “procedural” does not necessarily mean that it violates article V, section 2(a). The court has refused to invalidate procedural provisions that are “intimately related to” or “intertwined with” substantive statutory provisions. Caple, 753 So.2d at 54. In Caple, the court rejected a challenge under article V, section 2(a), to a statute permitting mortgagees in certain mortgage foreclosure proceedings to obtain a prejudgment order requiring the mortgagor to pay interest. The court concluded that the challenged statute “creates substantive rights and any procedural provisions contained therein are intimately related to the definition of those substantive rights.” The court observed that it had “consistently rejected constitutional challenges where the procedural provisions were intertwined with substantive rights.” Id. (citing Smith v. Dep’t of Ins., 507 So.2d 1080, 1092 n. 10 (Fla.1987) (holding that procedural sections of statute that were directly related to the substantive statutory scheme did not violate article II, section 3, the Separation of Powers Clause of the Florida Constitution)).

The supreme court has addressed the issue of whether rules of evidence are substantive or procedural by stating that they may fall on either side of the divide. Subsequent to the legislature’s initial adoption of the Florida Evidence Code in 1976, the supreme court approved and adopted the statutory code as rules, pursuant to its authority under article V, section 2(a), “to the extent that [the code provisions] are procedural.” In re Fla. Evidence Code, 372 So.2d 1369, 1369 (Fla.1979). In taking this action the court observed: “Rules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the legislature. In other instances, evidentiary rules may be procedural and the responsibility of this [cjourt.” Id.

The supreme court has similarly approved and adopted various amendments made to the Evidence Code by the legislature. See In re Amendments to the Fla. Evidence Code, 825 So.2d 339 (Fla.2002); In re Fla. Evidence Code, 638 So.2d 920, 920 (Fla.1993) (“The Florida Evidence Code enacted by the Legislature is both substantive and procedural.”); In re Amendment of Fla. Evidence Code, 497 So.2d 239 (Fla.1986); In re Amendment of Fla. Evidence Code, 404 So.2d 743 (Fla. 1981). The court has also specifically declined to approve and adopt an amendment made by the legislature to the Evidence Code. The court withheld its approval from section 90.803(22), Florida Statutes (2000), which allows for the admission of former testimony even when the declarant is available as a witness. In re Amendments to the Fla. Evidence Code, 782 So.2d 339 (Fla.2000). Those opposed to the adoption of the amendment were concerned that, among other things, “the amendment violate[d] a defendant’s constitutional right to confront adverse witnesses.” In explaining its decision, the court stated:

We agree that this Court should not adopt [section 90.803(22)] to the extent it may be procedural. However, we decline to address the substantive/procedural issue until such time as the issue comes before the Court in a true “case or controversy,” because to do otherwise would effectively pass on the constitutionality of the legislation itself.

Id. at 341.

In State v. Abreu, 837 So.2d 400 (Fla. 2003), the court was presented with a case or controversy involving a challenge to the constitutionality of section 90.803(22), Florida Statutes (1999). The court held “that section 90.803(22) violates the Confrontation Clause of the Sixth Amendment in criminal proceedings to the extent that it allows the prosecutor to use at trial a witness’s testimony from a previous judicial proceeding without a showing by the prosecutor that the witness is unavailable.” Id. at 406. The court was not called on to address whether the statutory provision was a procedural measure which the legislature adopted in derogation of the court’s authority under article V, section 2(a). But cf. Grabau v. Dep’t of Health, Bd. of Psychology, 816 So.2d 701, 709 (Fla. 1st DCA 2002) (holding section 90.803(22) to be unconstitutional on various grounds, in-eluding “as an infringement on the authority conferred on the Florida Supreme Court by article V, section 2(a)”).

The supreme court has stated that a particular provision of the Evidence Code is a procedural measure. In State v. Page, 449 So.2d 813, 815 (Fla.1984), the court said, “Subsection 90.610(1), dealing with the use of prior convictions for the purpose of impeachment, clearly falls within the realm of ‘procedure.’ ” Subsection 90.610(1) had previously been approved and adopted by the court as a rule of evidence to the extent the statutory provision was procedural. In Page, the issue was not whether the statute was unconstitutional but how the statute should be interpreted. The Page court relied on its characterization of the statute as procedural to support its conclusion that the legislature’s intent was “irrelevant” to the interpretation of the statute, and that “pursuant to article V of the constitution it is [the court’s] sole responsibility to determine which crimes involve ‘dishonesty or false statement’ for the purpose of impeachment.” The Page court did not provide any guidance concerning the basis on which it had chosen to characterize section 90.610(1) as procedural rather than substantive. See also State v. McFadden, 772 So.2d 1209, 1213 (Fla.2000) (relying on Page’s characterization of section 90.610(1) as procedural to support conclusion that it is the “[cjourt’s responsibility to determine what constitutes a prior ‘conviction’ for purposes of impeachment under section 90.610(1)”).

In Booker, the supreme court specifically addressed the issue of the admission of hearsay evidence in capital sentencing proceedings under a provision of the Florida statute governing such proceedings. The Booker court, relying on Dobbert v. State, 375 So.2d 1069 (Fla.1979), rejected the challenge under article V, section 2(a), to the provision in section 921.141, Florida Statutes (1977), permitting the admission of hearsay evidence. Booker, 397 So.2d at 918. In Dobbert, 375 So.2d at 1072, the court had held that a similar challenge under article V, section 2(a), was “without merit.” See also Burns v. State, 699 So.2d 646, 653 (Fla.1997) (“We have ... repeatedly upheld section 921.141 against claims that the capital sentencing statute improperly regulates practice and procedure.”). Neither Booker nor Dobbert contains a discussion of the basis upon which the court reached its decision.

The foregoing limited survey of the case law makes clear that “[t]he distinction between substantive and procedural law is neither simple nor certain.” Caple, 753 So.2d at 53. The absence of a clear line of demarcation between substance and procedure is vividly illustrated by the supreme court’s pronouncement that a particular statutory provision — under challenge for invading the province of the court’s rule-making authority — was at once substantive and procedural: “The prohibition of the statute is surely procedural, just as it is substantive.” Sch. Bd. v. Price, 362 So.2d 1337, 1339 (Fla.1978) (holding that statute prohibiting mention of insurance coverage in action against sovereignly immune defendant did not invade the supreme court’s rule-making authority).

The complexity and uncertainty surrounding the substance/procedure distinction arises in part from the circumstance that the distinction is applied in different contexts in different ways. “Except at the extremes, the terms ‘substance’ and ‘procedure’ precisely describe very little except a dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is drawn.” Sun Oil Co. v. Wortman, 486 U.S. 717, 726, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988); see also In re Fla. Rules of Crim. R, 272 So.2d 65, 66 (Fla.1972) (Adkins, J., concurring) (“The entire area of substance and procedure may be described as a ‘twilight zone[,]’ and a statute or rule will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made.”). Accordingly, a measure which is substantive for one purpose, may be procedural for another. For example, a statute may be deemed procedural for purposes of Ex-Post-Facto-Clause analysis, while the same statute is deemed substantive for purposes of analysis under article V, section 2(a).

Such was the case in State v. Maxwell, 647 So.2d 871 (Fla. 4th DCA 1995). The decision of the Maxwell court was based on both Booker — on which the State relies in the instant case — and Glendening — on which Cartwright relies. In Maxwell, the trial court had determined that section 921.141(7), Florida Statutes, which permits victim impact evidence in capital sentencing proceedings, was unconstitutional on several grounds, including for violating the prohibition on ex post facto laws and as a violation of the separation of powers. The Fourth District reversed the trial court’s holding that the statute was unconstitutional. First — relying on the supreme court’s decision in Booker — the Maxwell court concluded that the challenged statute did not “infringe[ ] on the supreme court’s exclusive right to regulate procedure.” Maxwell, 647 So.2d at 872. Second — relying on Glendening — the Maxwell court concluded that the statute was properly applied to a crime that occurred before the statute became effective. In rejecting the ex post facto challenge to the statute, the court specifically held that the adoption of the statute was “not unlike a change in procedure such as that upheld in Glenden-ing.” Maxwell, 647 So.2d at 872-78. The Fourth District’s decision was subsequently affirmed in a brief opinion by the supreme court. Maxwell v. State, 657 So.2d 1157 (Fla.1995).

2. Application of Booker and Dobbert

We conclude that Cartwright’s reliance on Glendening is unwarranted and that the State’s reliance on Booker is justified. Maxwell demonstrates beyond any doubt that Cartwright’s reliance on Glendening is misplaced. Glendening’s characterization of the statutory exception for child abuse victims’ hearsay as procedural for purposes of Ex-PosWFaeto-Clause analysis cannot properly be extended beyond that context. Glendening thus sheds no light on whether the hearsay provision in section 394.9155(5) violates article V, section 2(a).

The State correctly cites Booker as the supreme court decision in which the court’s holding deals directly with circumstances most closely analogous to the circumstances of the instant case. In an area of the law fraught with much uncertainty, Booker and Dobbert afford the best guidance available in the cases decided by the supreme court. In Dobbert and Booker the supreme court specifically held that a legislative provision authorizing the admission of hearsay did not violate article V, section 2(a). And there are no cases in which the supreme court has held that a statute authorizing the admission of hearsay evidence was unconstitutional under article V, section 2(a). Under Booker and Dobbert, we conclude that Cartwright’s argument that section 394.9155(5) violates article V, section 2(a), must be rejected. Just as the legislative authorization of the consideration of hearsay testimony in capital sentencing proceedings does not violate article V, section 2(a), so the legislative authorization of the consideration of hearsay testimony in Ryce Act proceedings does not violate that constitutional provision.

3. Application of Caple

Under the Ryce Act, consideration of the facts related to the defendant’s prior criminal adjudications for sexual offenses without the necessity of a full retrial of those prior cases is essential to the statutory scheme. The admission of reliable hearsay evidence under section 394.9155(5) thus falls within the scope of the principle articulated in Caple. The Ryce Act grants the state a substantive right to have sexually violent predators civilly committed for treatment. The statutory provision for the admission of hearsay is directly and closely tied to the definition of the state’s substantive right to secure the commitment of sexually violent predators. Invalidation of the legislative provision permitting the consideration of reliable hearsay evidence in Ryce Act proceedings would fundamentally alter the nature of those proceedings and disrupt the substantive statutory scheme established by the legislature for the civil commitment of sexually violent predators. Because section 394.9155(5) is “intimately related to” and “intertwined with” the admittedly substantive provisions of the Ryce Act, it withstands scrutiny under article V, section 2(a). Caple, 753 So.2d at 54; see also Smith, 507 So.2d at 1092.

4. Application of Rule 1.010

The constitutionality of section 394.9155(5) is further supported by the supreme court’s delegation to the legislature — pursuant to rule 1.010 — of authority to prescribe matters of procedure in “special statutory proceedings.” Rule 1.010 provides, in pertinent part, “The form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary.” (Emphasis added). See also Hayden v. Beese, 596 So.2d 1207, 1208 (Fla. 4th DCA 1992) (upholding constitutionality of rule 1.010 against claim that the rule unconstitutionally delegates judicial power). Rule 1.010 appears to be based on considerations similar to those expressed by the supreme court in Caple. Procedural provisions in special statutory proceedings will ordinarily be “intimately related to” or “intertwined with,” Caple, 753 So.2d at 54, the substantive provisions enacted by the legislature.

Proceedings under the Ryce Act are special statutory proceedings. The Ryce Act contains a detailed scheme in which the legislature has made special provisions for adjudicating the status of sexually violent predators. Although there is no specific definition of “special statutory proceedings,” it would be unreasonable to understand that term as excluding the Ryce Act from its scope. Cf. Gonzalez v. Badcock’s Home Furnishings Ctr., 343 So.2d 7 (Fla.1977) (upholding replevin statute as a special statutory proceeding under rule 1.010 against challenge under article V, section 2(a)).

Rule 1.010 provides a delegation of authority to the legislature over matters of procedure in special statutory proceedings unless the Florida Rules of Civil Procedure “specifically provide to the contrary.” There is nothing in the Florida Rules of Civil Procedure or any other rule of court that “specifically provide[s]” anything “to the contrary” of the provisions of the Ryce Act.

If the supreme court has adopted a rule that specifically governs a special statutory proceeding with respect to a procedural matter, any conflicting statutory provision must yield to the court-adopted rule. But the adoption by the supreme court of the provisions of the code of evidence as rules of court to the extent that those provisions are procedural does not supplant all statutory provisions relating to the admission of evidence in special statutory proceedings. The supreme court’s adoption of the provisions of the code of evidence — including its provisions relating to hearsay — does not constitute a specific provision as to the contrary of the statutory provisions governing the admission of evidence in special statutory proceedings. Thus, even if we were to conclude that section 394.9155(5) is “procedural,” rule 1.010 would require that we follow the “procedure ... prescribed by the statute[ ] governing the proceeding.”

III. JURY INSTRUCTIONS

Cartwright also argues that instructions given by the trial court to the jury were inadequate because they did not comply with the standard for the involuntary civil commitment of sexually violent predators established by the Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). In Crane, the Court held that substantive due process requires that in such commitment proceedings “there must be proof of serious difficulty in controlling behavior.” Id. at 413, 122 S.Ct. 867.

At his trial, Cartwright requested that the jury be instructed that he could be involuntarily committed only if his mental abnormality or personality disorder “results in a volitional impairment rendering [Cartwright] dangerous beyond his control and makes it impossible for [Cartwright] to control his dangerous behavior.” The trial court rejected Cartwright’s request and instead gave an instruction that made reference to the requirement of a finding that Cartwright’s mental abnormality or personality disorder made him “likely to engage in acts of sexual violence, if not confined in a secure facility for long-term control, care, and treatment.”

This court has addressed a similar challenge to the adequacy of jury instructions in both Lee and Hale v. State, 834 So.2d 254 (Fla. 2d DCA 2002). In both cases, we relied on the decision of the supreme court in Westerheide in reaching the conclusion that the failure to give an instruction specifically requiring a finding of serious difficulty in controlling behavior was not reversible error. The court in Westerheide affirmed the commitment order on appeal despite the failure of the trial court there to give such a “serious difficulty in controlling behavior” instruction. 831 So.2d at 107. The defendant in Westerheide argued that the failure to give such an instruction was fundamental error. In Westerheide, there was no majority opinion of the court. The plurality opinion, joined in by three justices, however, did specifically conclude that an instruction similar to the instruction given in the instant case was sufficient. The Wester-heide plurality reasoned that Crane “requires [not] a specific jury instruction but rather that there must be proof of ‘serious difficulty in controlling behavior’ in order to civilly commit an individual as a sexually violent predator.” Westerheide, 831 So.2d at 107. The plurality further concluded that the instruction given at Westerheide’s trial conveyed the same meaning as “serious difficulty in controlling behavior.” Justice Quince concurred in the result reached by the plurality but did not join in the plurality opinion. In her special concurrence, she criticized the overall framework of the Ryce Act but made no specific comments regarding the adequacy of the jury instruction.

In light of the perceived uncertainty regarding the precedential effect of the decision in Westerheide and the significant interests at issue, this court in Lee — while affirming the commitment order — certified a question of great public importance to the Florida Supreme Court. We follow Lee and rely on the reasoning of the plurality in Westerheide in rejecting Cartwright’s challenge to the sufficiency of the jury instructions. We also follow Lee in certifying the following question to the Florida Supreme Court as one of great public importance.

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

IV. CONCLUSION

For the reasons set forth above, the order committing Cartwright as a sexually violent predator under the Ryce Act is affirmed.

Affirmed; question certified.

STRINGER, J., concurs.

NORTHCUTT, J., concurs specially.

NORTHCUTT, J.,

Specially concurring.

I write separately only to emphasize that in Westerheide v. State, 831 So.2d 93 (Fla.2002), the supreme court did not decide the jury instruction issue addressed in Part III of Judge Canady’s opinion in this case. The result reached by Judge Canady is dictated by Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003), and Hale v. State, 834 So.2d 254 (Fla. 2d DCA 2002), and I likewise am constrained to concur in it. In my view, however, the jury instructions in this case were inadequate for the reasons expressed in Justice Pariente’s plurality “dissent” in Westerheide.

      . As will be further discussed in this opinion, in Westerheide there was no majority opinion. Westerheide has nonetheless been cited by this court and other district courts as deciding the constitutional challenges involved in the case. See Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003); Williams v. State, 841 So.2d 531 (Fla. 2d DCA 2003); Hale v. State, 834 So.2d 254 (Fla. 2d DCA 2002); McQueen v. State, 848 So.2d 1220 (Fla. 1st DCA 2003); Jackson v. State, 833 So.2d 243 (Fla. 4th DCA 2002). We also note that in State v. Goode, 830 So.2d 817, 819 n. 1 (Fla.2002), the supreme court stated: "We have upheld the constitutionality of the [Ryce Act] as to various challenges in Westerheide [].” This statement in Goode appears in an opinion joined by a majority of the members of the court — including all the justices who did not join the plurality opinion in Westerheide.

      . We note that a motion for rehearing is now pending in Murray and that the supreme court has stayed proceedings in Murray pending disposition of the appeals to the supreme court of the decisions in Harris v. State, 27 Fla. L. Weekly D946, - So.2d -, 2002 WL 731699 (Fla. 1st DCA Apr.26, 2002), review granted, 854 So.2d 660 (Fla.2003); and Gentes v. State, 828 So.2d 1051 (Fla. 1st DCA 2002), review granted sub nom. State v. Harris, 854 So.2d 660 (Fla.2003). In Harris and Gentes, which were both decided prior to the issuance of the decision in Murray, the First District held that a plea agreement for prison time followed by probation bars subsequent proceedings under the Ryce Act and certified questions of great public importance concerning the impact of a plea agreement on Ryce Act proceedings.

      . The supreme court has addressed the substantive/procedural distinction under article V, section 2(a) in a variety of contexts. See, e.g., Jackson v. Fla. Dep't of Corr., 790 So.2d 381, 385-86 (Fla.2000) (holding that "legislatively imposed 'procedure' ” requiring inmates seeking leave to proceed as indigents to file copies of prior complaint and judgments "is interfering with and intruding upon the procedures and processes of this [c]ourt and conflicts with this [cjourt's own rule,” and is thus "a usurpation of our exclusive rule[-]making authority”); Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So.2d 730, 732 (Fla.1991) (holding unconstitutional statutory provision requiring severance of counterclaims in mortgage foreclosure actions and stating that "[wjhere this [c]ourt promulgates rules relating to the practice and procedure of all courts and a statute provides a contrary practice or procedure, the statute is unconstitutional to the extent of the conflict”); Van-Bibber v. Hartford Accident & Indem. Ins. Co., 439 So.2d 880 (Fla.1983) (holding that statute barring suits against insurer until judgment against insured had been obtained was substantive and did not unconstitutionally invade court’s rule-making authority); Markert v. Johnston, 367 So.2d 1003, 1005 (Fla.1978) (concluding that "plain language” of statute prohibiting joinder of insurers "provides rather clearly that the joinder of insurers is merely a procedural step in the conduct of a motor vehicle tort lawsuit,” and that statute therefore invaded the rule-making authority of the court).

      . Article II, section 3, provides that ''[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Article V, section 2(a), defines a specific power of the judicial branch that is subject to the general separation of powers provision in article II, section 3. If a particular statutory provision is consistent with article II, section 3, it would necessarily also be consistent with article V, section 2(a).


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Larhonda COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4507.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2004.
    James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

We find no merit in Larhonda Cooper’s challenge to her numerous convictions arising out of her theft and use of another’s credit card. However, we and the State agree with Cooper’s contention that this case must be remanded with directions for the trial court to enter amended probation and sentencing orders consistent with its order of January 29, 2003, granting Cooper’s motion to correct illegal sentence.

Affirmed but remanded with directions.

DAVIS, and VILLANTI, JJ., Concur.


author: VILLANTI, Judge.

text:
    Enrique LEBRON a/k/a Ricky Sosa, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D02-5589, 2D02-5590.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2004.
   VILLANTI, Judge.

Enrique Lebrón, a/k/a Ricky Sosa, appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). While we affirm the denial of the claims raised in Lebroris motion, we note that there is apparently a lingering discrepancy in the Department of Corrections’ records concerning the judgments under which Le-brón is incarcerated. The record shows that Lebron’s probation was revoked and he was sentenced to twelve years in prison in case number 91-10877 only. Therefore, to the extent that the Department of Corrections’ records show that Lebrón is also currently incarcerated for the charges in case number 91-10505, those records are incorrect. We note that the trial court ordered the State to issue new commitment papers to ensure that this discrepancy was corrected; however, no such papers appear in our record. On remand, the State must ensure that this has been accomplished.

In addition, this court’s review of the record has revealed a patent illegality in Lebroris sentence that requires correction. When Lebrón was sentenced on the revocation of probation in case number 91-10877, he was awarded 344 days of jail credit. One month later, the trial court sua sponte “amended” the judgment and sentence and issued a clerk’s certificate showing only 96 days of jail credit. However, this court has repeatedly held that a trial court may not rescind jail credit previously awarded even if the initial award was improper. See, e.g., Platt v. State, 827 So.2d 1064 (Fla. 2d DCA 2002); Bailey v. State, 777 So.2d 995 (Fla. 2d DCA 2000); Linton v. State, 702 So.2d 236 (Fla. 2d DCA 1997). Accordingly, we remand this case to the trial court for it to correct the judgment and sentence and the clerk’s certificate to reflect the 344 days of jail credit initially awarded.

Affirmed, but remanded for correction of jail credits.

SALCINES and KELLY, JJ., Concur.

      . Lebrón raised this issue in the trial court by way of a "motion to clarify award of jail credits.” The trial court granted this motion and issued an order stating that the 96 days of jail credit were correct. Lebrón did not appeal from this order. If we do not address this error, Lebrón could file a renewed motion to correct illegal sentence in the trial court, which would not be deemed successive. See State v. McBride, 848 So.2d 287 (Fla.2003). However, because Lebrón would be entitled to release in January 2004 if his jail credits are corrected, we address this patent illegality in this opinion.


author: PER CURIAM.

text:
    Mark MELLAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1610.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2004.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

In this cause appellant’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the State has responded agreeing that there is no meritorious ground to support this appeal but noting a minor sentencing error. In re Appellate Court Response to Anders Briefs, 581 So.2d 149 (Fla.1991). We affirm the convictions and sentences imposed but remand to the trial court for correction of the minor sentencing error on the written sentence for count two. The written sentence for count two should read that it is for count three. Originally the trial court imposed a sentence of time served for count two, a misdemeanor, when appellant was first put on community control for counts one and three, both of which were third-degree felonies.

CASANUEVA, CANADY, and WALLACE, JJ., Concur.


author: FULMER, Judge.

text:
    Terry L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3420.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2004.
   FULMER, Judge.

Terry L. Williams appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Williams raised three claims in his motion, none of which have merit and only one of which warrants discussion.

In his motion, Williams claims that his sentence is illegal because the trial court should not have sentenced him as both a prison releasee reoffender and a habitual felony offender for the same crime. Williams entered a negotiated plea of guilty to robbery and felonious possession of a concealed weapon. Both counts arose from the same criminal episode. In exchange for a reduction of the robbery charge to a simple first-degree felony, he agreed to a thirty-year minimum mandatory sentence as a prison releasee reoffender on the robbery count and a consecutive ten-year habitual felony offender sentence on the concealed weapon count.

The trial court concluded that Williams’ sentence was not illegal because, contrary to Williams’ assertion, he was not sentenced as a prison releasee reoffender and a habitual felony offender on the same count. We agree that it is permissible to sentence one defendant as both a habitual felony offender and as a prison releasee reoffender on separate counts. See Tolbert v. State, 827 So.2d 278 (Fla. 2d DCA 2002); Bright v. State, 760 So.2d 287 (Fla. 5th DCA 2000).

Accordingly, we affirm the trial court’s denial of Williams’ motion.

SALCINES and KELLY, JJ„ Concur.


text:
    Max Ray GOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3756.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2004.
   PER CURIAM.

Max Golden appeals the trial court’s dismissal of his pro se motion for copies of transcripts to be provided by the clerk of the circuit court free of charge and the denial of his pro se motion to accredit jail time. We affirm the dismissal of the motion for transcripts. However, we reverse the denial of the motion to accredit jail time and remand for the trial court to strike the motion as unauthorized since Golden’s direct appeal of his judgment and sentence is still pending in this court.

Beyond the record provided for a direct appeal, Golden is not entitled to free transcripts to assist in the preparation of either a postconviction motion or a petition for extraordinary relief. Goggins v. Pinellas Co., Cir. Ct. of Sixth Jud. Cir., 685 So.2d 1334, 1335 (Fla. 2d DCA 1996). As the trial court pointed out in its dismissal order, the transcripts requested are a part of the record for his direct appeal. Golden is not entitled to anything more.

A motion to credit jail time is normally a motion authorized by Florida Rule of Criminal Procedure 3.800(a). Hines v. State, 842 So.2d 999, 1000 (Fla. 2d DCA 2003). However, rule 3.800(a) prohibits the filing of such a motion during the pendency of a direct appeal. See Day v. State, 770 So.2d 1262 (Fla. 1st DCA 2000) (holding that effective January 13, 2000, a party may not file a rule 3.800(a) motion during the pendency of a direct appeal).

Since Golden filed his motion during the pendency of the direct appeal of his judgment and sentence, Golden’s motion was unauthorized. Therefore, the order of the trial court denying the motion must be reversed and, on remand, the motion should be stricken as unauthorized. However, once this court decides Golden’s direct appeal and issues a mandate, if Golden seeks further relief, he may file a rule 3.800(a) motion raising the same issue.

Affirmed in part, reversed in part, and remanded.

WHATLEY, STRINGER, and SILBERMAN, JJ., Concur.


author: CANADY, Judge.

text:
    In re COMMITMENT: Stephen Edward ALLEN. Stephen Edward Allen, Appellant, v. State of Florida, Appellee.
    No. 2D02-1810.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2004.
    James Marion Moorman, Public Defender, Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Janet A. McDonald, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

Stephen Edward Allen challenges his commitment as a sexually violent predator pursuant to the Jimmy Ryce Act, part V of chapter 394, Florida Statutes (2001). Because we conclude that none of the issues raised by Allen has merit, we affirm his commitment.

Allen raises certain issues regarding the conduct of the commitment proceeding which are without merit. On those issues, we affirm without further comment. We comment only on an issue raised by Allen concerning the adequacy of the jury instructions.

Allen challenges the trial court’s refusal to give his special requested jury instruction, which would have required the jury to make a specific finding that he had serious difficulty controlling his sexually violent behavior before determining that he should be involuntarily committed as a sexually violent predator. The trial court instead gave an instruction that made reference to a finding that Allen’s mental abnormality or personality disorder made him “likely to engage in acts of sexual violence, if not confined in a secure facility for long-term control, care, and treatment.” Allen argues that the instruction given is inadequate under Kansas v. Crane, 534 U.S. 407, 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), which held that substantive due process requires that “there must be proof of serious difficulty in controlling behavior” in proceedings for the involuntary civil commitment of sexually violent predators.

We have previously addressed a similar challenge to the adequacy of jury instructions in Cartwright v. State, 870 So.2d 152, 2004 WL 86180 (Fla. 2d DCA Jan. 21, 2004); Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003); and Hale v. State, 834 So.2d 254 (Fla. 2d DCA 2002). In those cases we relied on the decision of the supreme court in Westerheide v. State, 831 So.2d 93 (Fla.2002), which affirmed a commitment under the Ryce Act where an instruction was given similar to the instruction at issue here. We specifically followed the reasoning of the plurality opinion in West-erheide on the jury instruction issue.

The Westerheide plurality reasoned that Crane “requires [not] a specific jury instruction but rather that there must be proof of ‘serious difficulty in controlling behavior’ in order to civilly commit an individual as a sexually violent predator.” Westerheide, 831 So.2d at 107. The plurality further concluded that the instruction given at Westerheide’s trial conveyed the same meaning as “serious difficulty in controlling behavior.”

Cartwright, 870 So.2d at 163.

Due to the lack of a majority opinion in Westerheide and the resulting perceived uncertainty concerning the precedential effect of Westerheide on the jury instruction issue, in both Cartwright and Lee — while rejecting the challenge to the jury instruction — we certified a question of great public importance. As in Hale, Lee, and Cartwright, for the reasons expressed by the plurality in Westerheide, we reject Allen’s challenge to the sufficiency of the jury instruction. We follow Lee and Cartwright in certifying the following question to the Florida Supreme Court as one of great public importance:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

Affirmed; question certified.

CASANUEVA and KELLY, JJ., Concur.


author: ALLEN, J.

text:
    AMERICA ONLINE, INC., Appellant, v. Robert PASIEKA, on behalf of himself and all others similarly situated, Appellee.
    No. 1D03-2290.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.
    Rehearing Denied March 31, 2004.
    Edward M. Waller, Jr. and Hala San-dridge of Fowler White Boggs Banker P.A., Tampa, and Everett Johnson, Jr. and Michael J. Golden of Latham & Watkins, Washington, DC, for Appellant.
    Christa L. Collins, Mark S. Fistos, and Amy K. Guinan of James, Hoyer, Newcomer & Smiljanich, P.A., Tallahassee, for Ap-pellee.
   ALLEN, J.

The appellant, America Online, challenges an order by which its motion to dismiss a class action lawsuit was denied. In seeking dismissal, the appellant maintained that a forum selection clause in its Member Agreement contract requires that this lawsuit be brought in Virginia. However, the court properly declined to give such effect to this provision in the circumstances here, which include claims under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and the Florida Free Gift Advertising Law (FFGAL).

This class action lawsuit was filed by the appellee on behalf of consumers who subscribed to the appellant’s online services. The complaint contains allegations detailing the appellee’s difficulty in cancelling such services, and the appellant’s continued billing for the services after cancellation. In addition, the complaint describes methods employed by the appellant with regard to subscription efforts and customer retention procedures, with particular allegations as to deceptive and unfair acts or practices. Claims were made in two counts, one under the FDUTPA at section 501.204, Florida Statutes, and the other under the FFGAL at section 817.415, Florida Statutes, with the appellee seeking damages as well as declaratory and injunc-tive relief.

The appellant moved to dismiss the action for improper venue, relying on a clause in the Member Agreement which provided for exclusive jurisdiction in the courts of Virginia as to “any claim or dispute with AOL or relating in any way to ... membership or ... use of AOL.... ” In denying the motion and declining to give effect to this clause, the trial court deemed the decision in Management Computer Controls v. Charles Perry Const., 743 So.2d 627 (Fla. 1st DCA 1999), to be controlling authority. Like the present case, Management Computer involved a forum selection clause in a contractual agreement, which provided that any legal action arising out of the agreement could only be maintained in another state. Management Computer . also involved a FDUTPA claim (together with various other claims), and this court ruled that the FDUTPA claim was not subject to the forum selection clause, as that would undermine the effectiveness and purpose of the statute.

Management Computer was followed in Contractor’s Management Systems of NH v. Acree Air Conditioning, 799 So.2d 320 (Fla. 2d DCA 2001), which likewise refused to apply a forum selection clause to a FDUTPA claim. But in World Vacation Travel, S.A, de C.V. v. Brooker, 799 So.2d 410 (Fla. 3d DCA 2001), rev. denied, 821 So.2d 292 (Fla.2002), the third district distinguished Management Computer as a case involving a FDUTPA claim which did not arise out of the parties’ contract, and which was severable from the other claims. Management Computer was also distinguished on this basis in SAI Ins. Agency v. Applied Systems, 858 So.2d 401 (Fla. 1st DCA 2003), with both World Vacation and SAI giving effect to a forum selection clause in connection with FDUTPA claims. Like the present case, the clause in SAI provided for exclusive jurisdiction in another state for any claim between the parties. But SAI did not involve a class action, or the unavailability of the Florida remedy in another state. And while the SAI opinion explains that Management Computer did not establish an absolute rule against enforcing forum selection clauses in connection with FDUTPA claims, SAI does not abrogate the policy concerns recognized in Management Computer which militate against enforcement of the clause here.

Various other courts have declined to enforce this same forum selection clause in these circumstances, involving class action lawsuits under consumer protection statutes. Such courts have refused to give effect to the clause where a similar action and comparable remedy could not be pursued in the foreign state. See, e.g., Miles v. America Online, 202 F.R.D. 297 (M.D.Fla.2001); America Online v. Superior Court, 90 Cal.App.4th 1, 108 Cal.Rptr.2d 699 (2001). The California court in America Online noted that the Virginia statutes did not permit a comparable remedy to that which might be obtained in California. And the court placed even greater significance on the fact that Virginia did not permit such a claim to be pursued as a class action. The federal court in Miles also focused on this circumstance in declining to enforce the forum selection clause. These cases emphasize the necessity of allowing such actions to proceed without compelling them to be brought in Virginia, given the small monetary amounts typically involved. As the court noted in Miles, while permitting a FDUTPA class action to remain in Florida, most of the individual plaintiffs likely would not pursue their claims in Virginia. And as indicated in Management Computer, the FDUTPA does not exist solely for the benefit of the individual parties, and is instead designed to afford a broader protection to the citizens of Florida.

As in Management Computer, the purpose and effectiveness of the FDUTPA would be seriously undermined if the claims here were required to be brought in Virginia. Similar concerns pertain with regard to the FFGAL, which likewise appears to be designed for the general protection of this state’s citizens from deceptive and unfair trade practices. The trial court thus correctly found Management Computer to be controlling authority and properly denied the appellant’s motion to dismiss. The appealed order is therefore affirmed.

BARFIELD and DAVIS, JJ., concur.


author: STRINGER, Judge.

text:
    Albert A. BERREBBI, Appellant, v. Dominique CLARKE f/k/a Dominique Berrebbi, Appellee.
    No. 2D03-2236.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 2004.
    Rehearing Denied March 18, 2004.
    Allison M. Perry of Law Offices of Allison M. Perry, P.A., Tampa, for Appellant.
    Wesley Pardue of Knox & Givens, P.A., Tampa, for Appellee.
   STRINGER, Judge.

Albert Berrebbi (the Father) seeks review of the final order granting the petition for relocation filed by Dominique Clarke (the Mother). The parties divorced in June 2000, and the Mother filed the petition on October 17, 2001, to relocate the parties’ seven-year-old child from Tampa, Florida, to Coral Springs, Florida. Because the trial court’s findings are not supported by substantial competent evidence, we reverse.

In ruling on a petition for relocation, section 61.13(2)(d), Florida Statutes (1997), provides that the court must consider the following factors:

1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.
2. The extent to which visitation rights have been allowed and exercised.
3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.
5. Whether the cost of transportation is financially affordable by one or both parties.
6. Whether the move is in the best interests of the child.

The statute further directs that “[n]o presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent.” § 61.13(2)(d).

After thorough review of the record, we find the facts do not provide substantial competent evidence to support a finding that relocation is in the best interests of the child. See § 61.13(2)(d)(6); Flint v. Fortson, 744 So.2d 1217, 1218-19 (Fla. 4th DCA 1999). The Mother’s stated ground for relocation was “for purposes of better economic opportunities for herself and her husband.” The substitute visitation schedule significantly alters the Father’s visitation from three and one-half days of visitation every week to one weekend per month plus spring break, five weeks of summer vacation, Thanksgiving, and half of the Christmas holiday.

The evidence adduced at the hearing showed that the child was in a good school and doing well, and the trial court found the move would not improve either her school or home life. The evidence further showed that the child’s counselor thought relocation would not be in the child’s best interests. The counselor testified that the child and the Father have a very close relationship and that she was concerned about the impact it would have on the child to be separated from the Father. Additionally, the Mother testified that the child began having problems sleeping when she learned of the possible relocation. There was no evidence presented to counter the counselor’s testimony, nor was there any evidence presented that the relocation would be good for the child. Any evidence regarding the benefits of relocation related to the Mother and her new husband.

Section 61.13(2)(d), however, directs the court to consider the best interests of the child, not just the petitioning parent. Because all evidence regarding the impact relocation would have on the child supports a denial of the petition, we cannot say there is substantial competent evidence to support a finding that this move is in the best interests of the child. Accordingly, the trial court abused its discretion in granting the petition for relocation, and we reverse.

Additionally, we note as a matter of clarification that the order granting relocation appears to be based in part on an incorrect legal standard. Section 61.13(2)(d) overrules a presumption previously adopted by the Mize v. Mize, 621 So.2d 417 (Fla.1993), and Russenberger v. Russenberger, 669 So.2d 1044 (Fla.1996), line of cases that a request for relocation should be favored when the request is made in good faith. Borchard v. Borchard, 730 So.2d 748 (Fla. 2d DCA 1999); Flint, 744 So.2d 1217. Instead, the statute imposes a fact-specific framework that allows the trial court to base a relocation decision “on what is best for the child, even though a result may not be best for the primary residential parent seeking to relocate.” Flint, 744 So.2d at 1218. The trial court’s analysis of the Mother’s petition for relocation appears to rely on the statutorily superseded rule of law favoring a good-faith request to relocate. This is error.

Reversed.

WALLACE, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    STATE of Florida, Petitioner, v. Robert BOOP, Respondent.
    No. 1D03-2691.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2004.
    Charles J. Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, Attorneys for Petitioner.
    Richard H. Smith and Gary M. Ketchum of Stephen S. Dobson, III, P.A., Tallahassee, Attorneys for Respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

BOOTH, PADOVANO and BROWNING, JJ., concur.


text:
    Petties OSCEOLA, Sr., Appellant, v. In re The ESTATE OF Mary T. OSCEOLA, Appellee.
    No. 3D03-1435.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Rehearing and Rehearing Denied April 16, 2004.

      Woodward, Pires & Lombardo and Steven V. Blount, Naples, for appellant.
    Bambi G. Blum, Miami, for appellee.
    Before COPE, GODERICH and SHEPHERD, JJ.
   PER CURIAM.

The decedent’s husband, Petties Osceola, Sr., appeals from an order of dismissal for lack of subject matter jurisdiction. We reverse.

On remand after appeal to this Court in Osceola v. Osceola, 744 So.2d 1251 (Fla. 3d DCA 1999), the circuit court reopened the administration of the decedent’s estate. The decedent’s adult children filed a motion to dismiss for lack of subject matter jurisdiction alleging that although the subject property belongs to the State of Florida, it is property upon which the Indians have been granted a license to “use, occupy and enjoy ... as tribal lands.” Therefore, they argue that tribal custom should apply. In support thereof, the adult children attached an undated memorandum from the Commissioner of Seminole Indian Affairs to the Board of Commissioners of State Institutions proposing:

A year-round license privilege to Seminole Indians residing in Florida to (a) hunt and fish, (b) take frogs for consumption as food or for sale, (c) take and use native materials for tribal uses, fabrication into artifacts, utensils, handicrafts and/or souvenirs for sale, (d) use, occupy and enjoy the committed areas as tribal lands, consistent with all limitations set forth, not in conflict with laws of the United States and the State of Florida.

The adult children also attached copies of agendas and minutes from several meetings of the Board of Commissioners of State Institutions. The adult children argued that the memorandum, coupled with the minutes of meetings of the Board of State Institutions, created a license agreement that not only granted the Seminole Indians the right to use the subject property but also divested the circuit court of any jurisdiction over the present probate litigation. Alternatively, they requested application of tribal custom to the administration of the estate.

On May 5, 2003, the circuit court granted the adult children’s motion to dismiss with prejudice finding that it lacked subject matter jurisdiction:

[T]his Court concludes that the property in question is located upon Indian lands, which ... is located within the area to which a “License” has been issued by the state of Florida which allows the Miccosukees to apply their laws, customs, and traditions over this area in which Mary T. Osceola’s property stands.

The decedent’s husband appeals contending that the circuit court erred by concluding that the memorandum, together with the agendas and minutes of the Board of Commissioners of State Institutions meetings, constituted a license agreement. Alternatively, the decedent’s husband argues that even if a license was created, said license is subject to the laws of the State of Florida and cannot abrogate the circuit court’s jurisdiction over the administration of the property in question. Without determining the validity of the purported license agreement, we agree.

Article V, Section 20 of the Florida Constitution and section 26.012(2)(b), Florida Statutes (2003), provide that circuit courts shall have “exclusive original jurisdiction” over “proceedings relating to the settlement of estates of decedents.... ” We find that the language of the purported license itself does nothing to divest the circuit court of this jurisdiction. To the contrary, the limiting language contained in the purported license seeks to preserve the State’s jurisdiction over this property and only allows the Indians to “use, occupy and enjoy the committed areas as tribal lands, consistent with all limitations set forth, not in conflict with laws of the United States and the State of Florida.” (emphasis added.)

For these reasons, we reverse the order dismissing the cause for lack of subject matter jurisdiction and remand for further proceedings.


text:
    Augustine Daniel CHERY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2074.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Rehearing and Rehearing En Banc Denied April 16, 2004.
    Augustine D. Chery, in proper person.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   PER CURIAM.

Affirmed. State v. Hollinger, 581 So.2d 153, 154 (Fla.1991).


text:
    SOUTHWEST REGIONAL CANCER CENTER TALLAHASSEE, INC., a Florida corporation, Petitioner, v. J. Spencer THOMPSON, M.D. and Paul J. Schilling, M.D., Respondents.
    No. 1D04-0412.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2004.
    Joseph E. Brooks of Smith, Brooks & Masterson, P.L., Tallahassee, for petitioner.
    No appearance for respondents.
   PER CURIAM.

Because petitioner has failed to demonstrate that the challenged discovery order will cause irreparable harm as to which an appeal following entry of a final judgment will not provide an adequate remedy, the petition seeking a writ of certiorari is denied. See, e.g., Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5th DCA 1997).

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    In re COMMITMENT OF Daniel PARKYN. Daniel Parkyn, Appellant, v. State of Florida, Appellee.
    No. 2D01-1989.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2004.
    Rehearing Denied April 2, 2004.
    Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Daniel Parkyn appeals an order of commitment as a sexually violent predator pursuant to the statute commonly known as the Jimmy Ryce Act, sections 394.910-.931, Florida Statutes (1999). The majority of the issues raised by Parkyn have been recently addressed and rejected by this court in Cartwright v. State (In re Commitment of Cartwright), 870 So.2d 152, 2004 WL 86180 (Fla. 2d DCA Jan.21, 2004). We affirm all remaining issues without comment.

As we did in Cartwright, we certify the following question to the Florida Supreme Court as one of great public importance.

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

Affirmed; question certified.

COVINGTON and KELLY, JJ., Concur.


author: KELLY, Judge.

text:
    Philippe H. MORANSAIS, Appellant, v. Lennon D. JORDAN and J. Larry Sauls, Appellees.
    No. 2D03-2033.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2004.
    Rehearing Denied March 26, 2004.

      Donald E. Fucik of Law Office of Boh-dan Neswlacheny, Fort Lauderdale, for Appellant.
    Christine A. Donoghue of Gray Robinson, P.A., Tampa, and Mark N. Miller of Gray Robinson, P.A., Lakeland, for Appel-lees.
   KELLY, Judge.

Philippe H. Moransais appeals the trial court order dismissing his professional malpractice action against engineers Lennon D. Jordan and J. Larry Sauls (the defendants) for failure to prosecute. We affirm the dismissal, but certify a question to the Supreme Court of Florida.

On January 13, 2003, the defendants filed a motion to dismiss this action citing Florida Rule of Civil Procedure 1.420(e). Rule 1.420(e) provides that all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of one year shall be dismissed unless good cause is shown in writing. In the year preceding the filing of the defendants’ motion, the record activity consisted of a motion by Moransais’ counsel to withdraw, an order granting that motion, and a notice of appearance by Moransais’ new attorney. The trial court concluded that this record activity was not sufficient to prevent dismissal and that Moransais had failed to demonstrate good cause for the lack of activity.

The dispositive issue in this case is whether pleadings, notices, or orders pertaining to the withdrawal of counsel constitute record activity for the purposes of rule 1.420(e). The trial court reasoned that this activity was not sufficient to avoid dismissal because it was passive activity not calculated to advance the case to judgment. Moransais argues that the trial court’s conclusion is erroneous because rule 1.420(e) does not place any qualifications on the type of activity that must appear in the record. However, regardless of the lack of qualifying language in the rule, the supreme court has repeatedly declared that the “record activity” required by rule 1.420(e) must be more than a mere passive effort to keep the case on the docket; the activity must constitute an affirmative act calculated to hasten the suit to judgment. Toney v. Freeman, 600 So.2d 1099 (Fla.1992); E. Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972); Gulf Appliance Distribs., Inc. v. Long, 53 So.2d 706 (Fla.1951). Courts that have considered the question presented in this case have uniformly concluded that notices, pleadings, or orders related to the withdrawal or substitution of counsel are passive in nature and not calculated to advance the cause. See E. Elevator, Inc., 263 So.2d at 219-20; Gulf Appliance Distribs., Inc., 53 So.2d at 707; Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So.2d 1098 (Fla. 4th DCA 1998); Nesbitt v. Cmty. Health of S. Dade, Inc., 566 So.2d 1 (Fla. 3d DCA 1989); Berenyi v. Halifax Hosp. Med. Ctr., 498 So.2d 655 (Fla. 5th DCA 1986); cf. Wilson v. Salamon, 864 So.2d 1122 (Fla. 2d DCA 2003) (holding that an order allowing a foreign attorney to appear as co-counsel pursuant to Florida Rule of Judicial Administration 2.061 does not constitute record activity for the purposes of rule 1.420(e)). Accordingly, the trial court correctly found that Moran-sais’ action was subject to dismissal for failure to prosecute.

Once the trial court determined that the action was subject to dismissal for lack of prosecution, the burden shifted to Moransais to show good cause why the action should not be dismissed. See Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991). We find no abuse of discretion in the trial court’s decision that Moransais failed to make such a showing. Accordingly, we affirm the trial court’s order dismissing this case.

Although the existing case law requires an affirmance in this case, we note that the argument Moransais makes raises the same concern that this court expressed in Wilson. Accordingly, for the reason expressed in Wilson, we likewise certify the following question as one of great public importance:

AFTER THE DECISION IN METROPOLITAN DADE COUNTY v. HALL, 784 So.2d 1087 (Fla.2001), ARE TRIAL COURT ORDERS THAT ARE ENTERED AND FILED TO RESOLVE MOTIONS THAT HAVE BEEN PROPERLY FILED IN GOOD FAITH UNDER THE RULES OF PROCEDURE AUTOMATICALLY TREATED AS ACTIVITY, OR MUST THE TRIAL COURT CONTINUE TO ASSESS ITS OWN ORDERS TO DETERMINE WHETHER THEY ARE PASSIVE ENTRIES IN THE COURT RECORD?

864 So.2d at 1124.

Affirmed; question certified.

NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: KLEIN, J.

text:
    Lillian Susanne WRIGHT, Appellant/Cross-Appellee, v. David E. LEWIS, Appellee/Cross-Appellant.
    No. 4D01-3319.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellant.
    Green, Smith & Associates, P.A., Miami, and Paula Revene of Paula Revene, P.A., Fort Lauderdale, for appellee.
   ON MOTION TO ENFORCE MANDATE

KLEIN, J.

In our prior decision in this case, we concluded that Florida had no personal jurisdiction over the father, a resident of California, to enforce a California dissolution judgment. Wright v. Lewis, 849 So.2d 379 (Fla. 4th DCA 2003). Prior to our reversal the father, who had not prevailed in the trial court, had paid attorney’s fees and costs. Following our reversal, he filed a motion asking the trial court to require Lillian Wright, the maternal grandmother who brought the lawsuit, as well as her lawyer, to return the money the father had paid. The trial court concluded it had no jurisdiction to grant relief.

This court has the inherent power to order compliance with its mandates and to issue a judgment which the trial court should have issued pursuant to the mandate. Posner v. Posner, 257 So.2d 530 (Fla.1972). This is an appropriate situation for enforcing our mandate. Abraham v. Abraham, 730 So.2d 746 (Fla. 3d DCA 1999). We grant the motion.

The father moved for relief under Florida Rule of Civil Procedure 1.540(b), which authorizes the trial court to relieve a party from a void order or judgment. The trial court determined that, because the father was not submitting himself to personal jurisdiction, he could not seek the affirmative relief of restitution. This motion, however, was not a plea for affirmative relief which waives the movant’s challenge to personal jurisdiction, but rather a defensive motion seeking to avoid a judgment. Babcock v. Whatmore, 707 So.2d 702 (Fla.1998).

As we noted earlier, the father sought restitution from both the grandmother, a party, and her counsel. As to the grandmother, he is entitled to restitution for any amounts paid her as costs or attorney’s fees, which she did not pass on to her counsel, as a matter of law. Sundie v. Haren, 253 So.2d 857, 858 (Fla.1971) (“A party against whom an erroneous judgment has been made is entitled upon reversal to have his property restored to him by his adversary.”). Restitution from counsel, however, is a different matter.

In Wall v. Johnson, 80 So.2d 362 (Fla.1955), the party seeking restitution had been found by the trial court to have been the father in a paternity proceeding, but subsequently obtained a reversal by the Florida Supreme Court based on the statute of limitations. He then sought a refund of attorney’s fees paid to counsel for the mother, and our supreme court quoted the general rule to be as follows:

The rule governing restitution in cases like this is well stated in 5 Am.Jur., Attorneys at Law, Section 147 (Cumulative Supplement 1954, page 41), as follows:
‘The general rule is that even though the attorney retains as payment for his services, or for some other debt owing by his client, under an agreement with the latter, part of all of the proceeds of a judgment recovered by the client which is subsequently reversed, he is not obliged to make restitution to the judgment debtor provided he acted in good faith in prosecuting the action in which the judgment was recovered. But if the judgment was void, or if the attorney knew it was obtained by fraud or he otherwise did not act in good faith in retaining the money, he is liable to make restitution.’

Id. at 363. In Wall our supreme court denied restitution of attorney’s fees because it found the equities to be against the father, concluding:

If ever a court was warranted in leaving a plaintiff where it found him to ‘stew in his own juice,’ this is it.

Wall, 80 So.2d at 364.

The father argues that the orders compelling him to pay attorney’s fees, which we reversed, were void, and under Wall the trial court was required to grant restitution. A void judgment, however, is a judgment which is subject to collateral attack. In re Estate of Kant, 272 So.2d 153 (Fla.1972). A judgment based on an erroneous order determining jurisdiction, as in this case, is not void, but rather voidable. Baron v. Baron, 454 So.2d 86 (Fla. 4th DCA 1984); Dusesoi v. Dusesoi, 498 So.2d 1348 (Fla. 2d DCA 1986); Archbold Health Servs., Inc. v. Future Tech Bus. Sys., 659 So.2d 1204 (Fla. 3d DCA 1995).

Because of our supreme court’s emphasis on the equities in Wall, we conclude that restitution against counsel, under the circumstances in this case, is a discretionary decision for the trial court depending on the facts. This would be consistent with Martin v. Lenahan, 658 So.2d 119 (Fla. 4th DCA 1995), in which a physician and insurance company were seeking restitution after they had settled a malpractice case based on a fraudulent claim advanced by the plaintiffs. We concluded that, as to the portion of the settlement paid to the plaintiffs counsel, restitution would be denied, noting that counsel had been totally innocent of any fraud. We emphasized that the parties seeking restitution from the plaintiffs individually had elected to settle for less than half of what they had paid, and had done so without plaintiffs’ counsel having participated in those negotiations. We affirmed a finding of fact that under these circumstances the parties seeking restitution, not counsel, should have to bear the loss.

Holland v. McGill, 107 Fla. 444, 145 So. 210 (1932), cited by the grandmother, is distinguishable, because in that case the lawyer against whom restitution was sought did not have the funds. He had merely withdrawn his client’s funds from the registry of the court and turned the funds over to his clients.

Because the trial court erroneously concluded that the father was barred from seeking relief as a matter of law, we grant the motion to enforce mandate for the trial court to decide the restitution issue as to counsel on the merits. The father is entitled to restitution from the grandmother for money paid to her as attorney’s fees and costs, which she did not pass on to her counsel.

Motion granted.

GROSS and TAYLOR, JJ., concur.

      . Although we do not consider it necessarily relevant, we note that the father paid these amounts under the threat of incarceration for contempt, because the automatic stay provision of Florida Appellate Rule 9.310(b)(1) for money judgments does not apply in family law cases. Garcia v. Garcia, 743 So.2d 1225 (Fla. 4th DCA 1999).

      . One other case bears mentioning, Abraham v. Abraham, 730 So.2d 746 (Fla. 3d DCA 1999), which we cited above as authority for enforcing the mandate under these circumstances. In Abraham the husband was seeking restitution for temporary attorney’s fees paid to counsel for the wife, where the order requiring the payment of fees had been reversed. As in this case, the trial court denied the motion for restitution, but the third, district reversed, granting the husband’s motion to enforce the mandate. Judge Cope dissented, citing Wall and Martin. The Florida Supreme Court initially accepted review, but then concluded in a four to three decision that jurisdiction had been improvidently granted. Abraham v. Abraham, 775 So.2d 937 (Fla.2000).


text:
    Ira M. AMAZON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4440.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2004.
    Rehearing Denied March 24, 2004.
   PER CURIAM.

Affirmed. See Amazon v. State, 487 So.2d 8 (Fla.1986); State v. Enmund, 476 So.2d 165 (Fla.1985); Wright v. State, 864 So.2d 1153 (Fla. 2d DCA 2003) (en banc); Cook v. State, 816 So.2d 773 (Fla. 2d DCA 2002); Mobley v. State, 590 So.2d 1022 (Fla. 2d DCA 1991). As this court did in Wright, we certify direct conflict with: Kirtsey v. State, 855 So.2d 177 (Fla. 1st DCA 2003); Hernandez v. State, 825 So.2d 513 (Fla. 4th DCA 2002); Bingham v. State, 813 So.2d 1021 (Fla. 1st DCA 2002); Thames v. State, 769 So.2d 448 (Fla. 1st DCA 2000); Hampton v. State, 764 So.2d 829 (Fla. 1st DCA 2000); and Macias v. State, 614 So.2d 1216 (Fla. 3d DCA 1993).

Affirmed; conflict certified.

NORTHCUTT, CASANUEVA, and SALCINES, JJ., Concur.


author: PER CURIAM. COPE, J.

text:
    Luis M. ESTOPINAN, Appellant, v. Consuelo A. ESTOPINAN, Appellee.
    No. 3D03-1150.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Rehearing or Reconsideration Denied April 7, 2004.
    Harvey D. Rogers, Miami, for appellant.
    Rebeca C. Almeida, for appellee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

With the exception of the award of $11,337.52 in lump sum alimony, which the parties agree was erroneously entered because of a mathematical mistake and must be deleted, no abuse of discretion has been demonstrated in the final judgment of dissolution on appeal, and it is therefore otherwise affirmed.

Affirmed as modified.

SCHWARTZ, C.J., and WELLS, J., concur.

COPE, J.

(concurring in part and dissenting in part).

I respectfully dissent on two issues.

I.

The trial court should not have allowed the former wife to withdraw from her stipulation that the value of the marital home was $102,500 as of 2000, and allow her to present expert testimony that the value of the marital home was $94,000 as of 1999 when the valuation date for the former husband’s pension plan (value $281,167) and deferred compensation ($27,229) was set as of the date of the final hearing in 2002. This skewed the equitable distribution in the former wife’s favor as she received the marital home in the equitable distribution. The result was to unfairly reduce the amount of offsetting assets the former husband received.

It is revealing that the wife requested an appraisal as of 1999, not 2000. If there was anything wrong with the stipulated value of $102,500 as of 2000 (or the court-established value of $105,000 as of 2000), then the wife would have asked her appraiser to value the property as of 2000. The trial court should reinstate the previously stipulated value of $102,500 for the marital home.

Since this would increase the wife’s assets by $8,500 it would then be a matter for the court’s discretion how to readjust the equitable distribution to the husband. One solution would be to reduce the wife’s share of the husband’s pension by $4,250.

II.

The majority opinion deletes $11,337 in lump sum alimony which was awarded to the wife. I acknowledge that this is being done because of a concession by the wife’s counsel at oral argument.

However, when counsel conceded the point she referred to this amount as a “wash.” That suggests to me that counsel did not fully understand the question she was being asked. As a result of the majority’s ruling, there is no longer a “wash.” The wife will now owe the husband $11,337. Perhaps the wife meant to agree to this, but I doubt it.

The root of the problem is the majority’s misperception that the $11,337 in lump sum is some sort of mathematical mistake. There is no mistake.

The background is this. The husband is a police detective. The wife works, but has a significantly lower income than the husband. The trial court ordered the husband to pay alimony and child support to the wife.

The trial court equitably distributed the parties’ assets. The wife received a greater share of the marital assets. The judgment shows that a payment of $11,337 is required from the wife to the husband to equalize the equitable distribution.

The trial court recognized that the wife has no cash assets with which to pay the husband $11,337, and no realistic borrowing power. In view of this practical problem, the trial court’s solution was to award lump sum alimony of $11,337 from the husband to the wife. This created a “wash” and eliminated any possibility that the wife would be required to come up with $11,337 to pay the husband.

The trial court recognized that a justification would be needed for this unequal equitable distribution. In the judgment, the court gave two reasons. First, the court said that the wife’s earning power is lower than the husband’s. Second, the court said, “As a result, in part, of the Husband’s failure to pay all support ordered during the parties’ separation the Wife has incurred substantial debt.” Final judgment ¶ 45 i. The testimony indicated that the wife incurred over $13,000 of debt during the course of the proceedings.

Regarding the first reason, unequal earning power, it appears that the award of lump sum alimony cannot be justified on this basis. See Gil v. Mendelson, 793 So.2d 1061 (Fla. 3d DCA 2001). The court already made an adjustment for lower earning power by awarding permanent periodic alimony and child support.

The second stated reason, compensation for unpaid support, cannot be sustained on the facts of this case. That is so because elsewhere in the judgment the trial court ordered the husband to pay $100 per month toward the arrears until arrears are paid in full. Since the husband must repay the arrearage, the same arrearage cannot be used as a setoff for the unequal equitable distribution.

Since both of the reasons stated in support of the lump sum alimony award are faulty, I concur that the lump sum alimony award should be vacated.

The next question is what remedy to impose. “A trial court’s decisions in a dissolution proceeding should be considered interrelated and part of an overall scheme.” Reynolds v. Reynolds, 615 So.2d 243, 244 (Fla. 3d DCA 1993); see also Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980); Hamlet v. Hamlet, 583 So.2d 654, 657 (Fla.1991). In Reynolds this court reversed the trial court’s valuation of a pension plan and then remanded for further proceedings to revalue the assets and adjust the distribution of assets and liabilities. 615 So.2d at 244.

In this case the trial court was at considerable pains to be sure that the wife did not have to come up with $11,337 to pay the husband at this time. She has no realistic way to do so. It is illogical to require the wife to pay the husband a large sum of money at the very same time the husband is paying the wife alimony and child support.

We should send the matter back to the trial court to determine how to shift $11,337 from the wife’s assets to the husband’s assets. One way to do this would be to reduce the wife’s share, and increase the husband’s share, of the husband’s pension by $11,337.

III.

With the above-stated exceptions, I concur in affirming the judgment.

      . At the 2002 final hearing, the husband testified that in his opinion the marital home was then worth $135,000. While as an owner the husband is entitled to give his opinion on value, it is within the trial court’s discretion to reject it. I do not quarrel with the trial court's decision to do so. But the trial court should have set the value at $102,500 at least.


text:
    Suzanne CHURCH, Appellant, v. Donald HANFT, M.D., and Donald Hanft, M.D., P.A., Appellees.
    No. 3D03-1792.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Rehearing Denied April 16, 2004.
    Craig Z. Sherar, Coconut Grove, and Patricia M. Arias, for appellant.
    Fowler White Burnett and Ronald G. Neiwirth, Miami, for appellees.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Suzanne Church appeals from an order vacating a show cause order directing Charles Schwab & Company, Inc. to disburse benefits from an Individual Retirement Account.

We affirm that portion of the order that relieves Charles Schwab of any obligation to show cause why it should not disburse retirement benefits to Church, a judgment creditor. See § 222.21(2)(a), Fla. Stat. (2003)(“any money ... payable” to a participant from a qualified retirement plan is “exempt from all claims of creditors of the ... participant”). However, we reverse the remainder of the order relating to the status of the retirement benefits after they have left Charles Schwab’s hands as premature.

Affirmed in part, reversed in part.


author: DAVIS, Judge.

text:
    Franklin CURTIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2330.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2004.
    Rehearing Denied March 23, 2004.
   DAVIS, Judge.

Franklin Curtis challenges the order denying his petition for writ of habeas corpus. While habeas corpus is not the proper vehicle to address the claims raised by Curtis, they are cognizable in a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. It is apparent from the trial court’s analysis that it treated Curtis’ claims as if they were raised in a postconviction motion. Accordingly, finding no error, we affirm without discussion.

Affirmed.

FULMER and SILBERMAN, JJ., Concur.


text:
    James Anthony HOWARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-5468.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.
    James Anthony Howard, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

KAHN, BENTON and VAN NORTWICK, JJ., concur.


author: POLEN, J.

text:
    Julian David GAINES, Appellant, v. Matthew Julian GAINES, a Minor, by Mother and Next Friend, Pamela Sue Gaskin, Appellee.
    No. 4D02-4621.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    B.J. Cummins, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Toni C. Bernstein and William H. Branch, Assistant Attorneys General, Tallahassee, for appellee.
   POLEN, J.

This appeal arises from a final order denying the father’s (Gaines) defense of laches and requiring him to pay child support arrearages in the amount of $16,247.27. We find the equitable defense of laches to be applicable and therefore reverse the trial court’s order for the reasons that follow.

In 1985, Pamela Sue Gaskin gave birth to Matthew Gaines. The mother did not want Gaines to participate in Matthew’s rearing. In fact, Gaines had to seek a judicial determination of paternity, after the mother denied that he was the father. In 1988, the parents entered into a written agreement providing that Gaines would not seek visitation in exchange for the mother releasing him of the obligation to pay child support. Gaines contends this agreement was entirely the mother’s idea. After this agreement was signed, the parties entered into a formal Stipulated Final Judgment of Paternity, which provided for Gaines to pay $120.00 per month in child support. Gaines was under the impression, allegedly due to the mother, that the agreement between the parties was going to take precedence over the Stipulated Final Judgment.

In apparent compliance with the parties’ agreement, the mother did not seek to enforce the order granting her child support for almost eleven years. Nor did she ever attempt to even contact Gaines, due to her alleged but unsubstantiated claim of intimidation. Likewise, Gaines claims that in reliance on their agreement, he never sought visitation with Matthew. Gaines did not participate whatsoever in Matthew’s upbringing, and therefore has no inkling of a relationship with him. Furthermore, Gaines did not keep in contact with Matthew or the mother, and claims to have been unaware of their whereabouts. As both parents appeared to be acting in compliance with their agreement, Gaines claims that he had no reason to believe the mother would interpose a claim for support.

In December of 1998, after ten years and nine months had passed without any attempt to enforce the child support order, the mother filed a petition to modify the Stipulated Final Judgment of Paternity and a Motion for Contempt demanding retroactive child support payments. Gaines argued the affirmative defense of laches. After a few hearings in which the trial court reserved ruling, a final hearing was held and the trial court ultimately determined that Gaines had failed to meet his burden of proving laches. Gaines was ordered to pay $16,247.27 in child support arrearages.

Gaines argues that the defense of laches is applicable and should bar the mother from enforcing the child support order. To establish the affirmative defense of laches, a defendant must prove:

(1) conduct on the part of the defendant giving rise to the situation of which complaint is made; (2) failure of the plaintiff, having had knowledge or notice of the defendant’s conduct, to assert [her] rights by suit; (3) lack of knowledge on the part of the defendant that plaintiff will assert the right on which [s]he bases [her] suit; and (4) injury or prejudice to the defendant in event relief is accorded to the plaintiff.

Greene v. Bursey, 733 So.2d 1111, n. 4 (Fla. 4th DCA 1999) (citing Van Meter v. Kelsey, 91 So.2d 327, 330-31 (Fla.1956)). The first three elements of the defense of laches are clearly met. It is the fourth element, requiring injury or prejudice, which we feel merits further discussion.

“In the context of child support arrearage cases, the defense of laches is only applied in extraordinary circumstances where the facts clearly show extreme prejudice.” Ticktin v. Kearin, 807 So.2d 659, 663 (Fla. 3d DCA 2001). “Legal prejudice results when there is a loss or injury to a person who relies on another person’s voluntary failure to exercise a legal right. This is primarily a question of equity and depends on the unique circumstances of each individual case.” Pyne, 650 So.2d at 1076. Gaines contends that he has been prejudiced because he has no relationship with Matthew, has incurred unrelated debts in reliance on the agreement, and he is now ordered to pay a lump sum of $16,247.27 in child support arrear-ages without making any prior financial arrangements and without the ability to maintain gainful employment due to a relatively recent disability.

In Davis v. Department of Revenue on Behalf of Davis, 689 So.2d 433, 435 (Fla. 5th DCA 1997), it was held that being denied the opportunity despite one’s efforts to share in the upbringing of one’s child is a legal prejudice. It is not entirely correct to say that Gaines was denied that opportunity, since he voluntarily chose to forgo it, pursuant to the agreement. Nonetheless, the opportunity to raise his child is forever lost. The fifth district provided the following perspective on whether such a claim constitutes legal prejudice when it stated:

[bjoth parties are at fault for failing to fulfill their obligations as parents, but the lost child support did not deprive the children of any of life’s necessities. It will not affect their current welfare. In contrast, the lost visitation deprived the former husband and the children of a father-[child] relationship. The opportunity to form that relationship is lost forever and cannot be repaid. For this reason the former husband suffered legal prejudice.

Pyne, 650 So.2d at 1076.

In light of circumstances as they exist at present, we hold that Gaines’ lost opportunity is sufficient to constitute a legal prejudice. Moreover, albeit to a lesser extent, Gaines is also prejudiced having incurred unrelated debts in reliance on the mother’s inaction. See Robinson v. State Dep’t of Health & Rehabilitative Servs., 473 So.2d 228 (Fla. 5th DCA 1985), dismissed, 478 So.2d 53 (Fla.1985)(holding that one consideration in upholding laches defense was that: “[n]ow, he faces an accumulated debt of $17,793.21. He could have paid the child support in small increments, but ten years accumulation has grown into an intolerable lump sum.”); Davis, 689 So.2d at 435. Consequently, we hereby reverse the order of the trial court, and remand for further proceedings consistent with this opinion.

REVERSED.

KLEIN and HAZOURI, JJ., concur.