text:
    R.A.M. OF SOUTH FLORIDA, INC., and George Miquel, Appellants, v. WCI COMMUNITIES, INC., Appellee.
    No. 2D03-284.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.

      Sharon Kung and David J. Valdini of Valdini & Palmer, P.A., Fort Lauderdale, for Appellants.
    Kelley Geraghty Price of Cummings & Lockwood, LLC, Naples, for Appellee.
   CANADY, Judge.

R.A.M. of South Florida, Inc., a subcontractor, appeals the trial court’s ruling that its contract action and lien claim against the appellee, WCI Communities, Inc., are based on an unenforceable contract. Because we conclude that R.A.M.’s claims were properly barred by a statutory provision prohibiting the enforcement of illegal construction contracts, we affirm the decision of the trial court.

At the outset, we note that the illegality and unenforceability of the construction contract-which contained an arbitration provision-was an issue to be decided by the trial court rather than by the arbitrator. See § 682.03(1), Fla. Stat. (2000); Riverwalk Apts., L.P. v. RTM Gen. Contractors, Inc., 779 So.2d 537, 538 (Fla. 2d DCA 2000) (“A party who alleges and offers colorable evidence that a contract containing an arbitration clause is illegal cannot be compelled to arbitrate the threshold issue of the existence of the agreement to arbitrate; only a court can make that determination.”); see also Island House Developers, Inc. v. Amac Constx., Inc., 686 So.2d 1377 (Fla. 1st DCA 1997).

I. BACKGROUND

A. Facts of the Case

On May 10, 2000, WCI and R.A.M. executed a standard form contract for construction work in which R.A.M. agreed to perform concrete and masonry work for WCI’s “Bay Club at the Colony” project, a club facility located in the Pelican Landing subdivision in Fort Myers. George Miqu-el, R.A.M.’s president, signed the contract on behalf of R.A.M. At the time the contract was signed, neither R.A.M. nor Miqu-el were licensed to perform the construction work required under the contract.

R.A.M. began its work in late May of 2000. During the course of construction, a dispute arose between R.A.M. and WCI regarding the quality and timeliness of the work being performed by R.A.M. As a result of this dispute, WCI refused to pay certain sums due under the contract. In response to WCI’s nonpayment, on January 28, 2001, R.A.M. recorded a claim of lien against the real property on which the work was done. In January of 2001, R.A.M. ceased all work on the project.

Subsequently, R.A.M. filed a cross-claim against WCI in litigation which had been initiated by a third party against both R.A.M. and WCI. This cross-claim sought to enforce the claim of lien and also sought damages for breach of contract and unjust enrichment. WCI responded to the cross-claim by invoking a clause in the contract between R.A.M. and WCI that required binding arbitration of disputes arising out of the contract.

During arbitration, WCI became aware that R.A.M. and Miquel were not licensed contractors. Following this discovery, WCI filed an action seeking a declaratory judgment that the contract between WCI and R.A.M. was illegal and unenforceable and a judgment discharging R.A.M.’s lien. WCI also filed a motion to stay the arbitration pending a judicial determination of the enforceability of the contract.

The trial court held a hearing on the motion to stay the arbitration. At the hearing, the parties agreed that the material facts relating to the enforceability of the contract were undisputed. Specifically, the parties agreed that R.A.M. and Miquel were not licensed to perform the construction when the work was performed. However, both parties also agreed that R.A.M. and Miquel did become licensed on October 25, 2002, more than two years after the construction work began and more than a year and a half after it was terminated. It was also agreed that the legal issue of the enforceability of the contract was ripe to be decided.

The trial court granted WCI’s motion to stay the arbitration, ruled that the contract between R.A.M. and WCI was illegal and unenforceable pursuant to section 489.128, Florida Statutes (2000), and discharged R.A.M.’s lien on WCI’s property. R.A.M. now appeals those rulings.

B. The Statutory Framework

This case turns on whether R.A.M.’s claims were properly barred by the provisions of section 489.128:

As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part [i.e., part I, chapter 489] shall be unenforceable in law or in equity.

An earlier version of this statute, which was in force in May of 2000 when the contract between R.A.M. and WCI was executed and work on the construction project began, contained an additional provision allowing a contractor to cure the contractor’s unlicensed status. Under this earlier version of the statute, when such a cure was effected by a contractor the otherwise unenforceable contract would become enforceable. This earlier version of the statute' — codified in the 1999 Florida Statutes — was identical to the version in the 2000 Florida Statutes, except that it contained an additional sentence at the end of the section: “However, in the event the contractor obtains or reinstates his or her license, the provisions of this section shall no longer apply.” § 489.128, Fla. Stat. (1999). This cure provision present in the 1999 statute was repealed by the legislature effective July 1, 2000. See ch. 00-372, § 35, at 4338 (repealing cure provision), § 48, at 4344 (providing effective date of July 1, 2000), Laws of Fla.

The provisions of section 489.128 concerning the enforcement of contractual rights under construction contracts performed or entered into by unlicensed contractors should be viewed in the context of section 489.127(l)(f), Florida Statutes (1999), which makes it a crime for any person to “[ejngage in the business or act in the capacity of a contractor ... without being duly registered or certified as having a certificate of authority.”

II. ISSUE ON APPEAL

The dispositive issue on appeal is whether R.A.M. was entitled to cure its unlicensed status pursuant to section 489.128, Florida Statutes (1999), when the cure provision of the statute was no longer in force. R.A.M. contends it was entitled to obtain the benefit of the provisions of the statute in force when it entered the construction contract with WCI. R.A.M. argues that the 2000 version of the statute cannot be applied to remove R.A.M.’s vested right granted by the 1999 version of the statute to cure its unlicensed status. In support of its position, R.A.M. relies on Palms v. Magil Construction, Inc., 785 So.2d 597, 598 (Fla. 3d DCA), review denied, 805 So.2d 811 (Fla.2001), which held that “the 2000 amendment” to section 489.128 “does not operate retroactively,” and thus would not be applied to a suit that was pending when the 2000 version of the statute became effective.

WCI argues that the enforcement of the 2000 version of the statute properly foreclosed the ability of R.A.M. to cure its unlicensed status after the effective date of the 2000 amendment. WCI contends that the 2000 amendment to the statute is a remedial measure and that application of that amendment does not abrogate or impair any vested right of R.A.M.

III. ANALYSIS

A. Legal Principles Governing the Analysis of Retroactivity Issues

Determining proper limitations on the temporal reach of statutes is a recurring problem in the law. The threshold question is whether the proposed application of the statute to a particular case constitutes a retroactive application. Where the contemplated application is judged to be retroactive, the court must determine whether there is a sufficient basis in the relevant statute to justify the retroactive application. If the statute is construed as being properly given retroactive effect, it must finally be determined if such application is inconsistent with any constitutional limitation.

Deciding whether the application of a statute is retroactive involves “a process of judgment concerning the nature and extent of the change in the law [effected by the statute] and the degree of connection between the operation of the new rule and a relevant past event.” Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In making judgments concerning retroactivity, “familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.” Id. “ ‘A statute does not operate “retrospectively” merely because it is applied in a case arising from conduct antedating the statute’s enactment.... Rather, the court must ask whether the new [statutory] provision attaches new legal consequences to events completed before its enactment.’ ” Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999) (quoting Landgraf, 511 U.S. at 269-70, 114 S.Ct. 1483).

In Landgraf 511 U.S. at 268-69, 114 S.Ct. 1483, the Supreme Court noted the difficulty that sometimes arises in determining whether a statute is retroactive, and went on to discuss the “influential definition” of the retroactivity articulated by Justice Story 190 years ago:

[Deciding when a statute operates “retroactively” is not always a simple or mechanical task. Sitting on Circuit, Justice Story offered an influential definition in Society for Propagation of the Gospel v. Wheeler, 22 F.Cas. 756 (No. 13,156) (CCNH 1814), a case construing a provision of the New Hampshire- Constitution that broadly prohibits “retrospective” laws both criminal and civil. Justice Story first rejected the notion that the provision bars only explicitly retroactive legislation, i.e., “statutes ... enacted to take effect from a time anterior to their passage.” Id., at 767. Such a construction, he concluded, would be “utterly subversive of all the objects” of the prohibition. Ibid. Instead, the ban on retrospective legislation embraced “all statutes which, though operating only from their passage, affect vested rights and past transactions.” Ibid. “Upon principle,” Justice Story elaborated,
“every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective .... ” Ibid, (citing Calder v. Bull, 3 [U.S.] Dall. 386, 1 L.Ed. 648 (1798), and Dash v. Van Kleeck, 7 Johns. *477 (N.Y.1811)).
Though the formulas have varied, similar functional conceptions of legislative “retroactivity” have found voice in this Court’s decisions and elsewhere.

(Footnote omitted.) As Justice Story’s definition has been employed by the courts, the concept of vested rights has played a central role in the analysis of retroactivity issues.

Where the retroactive application of a statute is at issue, the task of interpreting the statute is guided by the rule of statutory construction which establishes a presumption against the retroactive application of substantive law — as distinct from procedural or remedial law-in the absence of a clear expression of legislative intent that the statute be given retroactive effect. See Landgraf 511 U.S. at 270, 272, 114 S.Ct. 1483 (“Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent. ... Because it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroac-tivity will generally coincide with legislative and public expectations.”); Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996) (“This Court will not divine an intent that a new law be applied to disturb existing contractual rights or duties when there is no express indication that such is the legislature’s intent.”); State Farm Mut. Auto. Ins. Co. v. LaForet, 658 So.2d 55, 61 (Fla.1995) (“The general rule [of statutory construction] is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.”); Airrow Air, Inc. v. Walsh, 645 So.2d 422, 425 (Fla.1994) (“The presumption against retroactive application of a law that affects substantive rights, liabilities, or duties is a well[-]established rule of statutory construction.”); State ex rel. Riverside Bank v. Green, 101 So.2d 805, 807 (Fla.1958) (“We have recognized the presumption that a legislative act operates prospectively unless the intent that it operate retrospectively is clearly expressed.”). Although the presumption against retroac-tivity generally does not apply to remedial legislation, “if a statute accomplishes a remedial purpose by creating new substantive rights or imposing new legal burdens, the presumption against retroactivity would still apply.” Chase Fed. Hous. Corp., 737 So.2d at 500 n. 9.

Retroactive application of a civil statute ordinarily transgresses constitutional limitations on legislative power “if the statute impairs vested rights, creates new obligations, or imposes new penalties.” LaForet, 658 So.2d at 61 (holding that statute expanding damages recoverable in statutory bad faith action against insurer could not constitutionally be applied to causes of action accruing prior to enactment of statute). The invalidation of retroactive civil legislation which “impairs vested rights, creates new obligations[,] or imposes new penalties” ordinarily is based on the conclusion that the legislation violates due process. Id.; see also Chase Fed. Hous. Corp., 737 So.2d at 503 (“Generally, due process considerations prevent the State from retroactively abolishing vested rights.”) (citations omitted). Where contract rights are involved, the invalidation of the retroactive application of civil legislation may be based on the conclusion that the legislation impairs the obligation of contract. See Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978) (holding that obligation of insurance contract providing for the stacking of uninsured motorist coverage was impaired by application of statute prohibiting such stacking to contract entered before effective date of statute); Yamaha Parts Distrib., Inc. v. Ehrman, 316 So.2d 557 (Fla. 1975) (holding that retroactive application of statute requiring ninety days’ notice for termination of franchise agreements would unconstitutionally impair the obligation of contract if applied to contracts entered before the effective date of statute).

B. Application of the Law to R.AM.’s Claims

Here, R.A.M. claims that application of the 2000 version of section 489.128 impairs R.A.M.’s vested right to cure its unlicensed status. R.A.M’s argument is predicated on the assumption that the trial court retroactively applied the 2000 version of the statute to preclude R.A.M.’s cure of its unlicensed status. We conclude that the trial court’s application of the 2000 version of section 489.128 was not a retroactive application of law.

R.A.M. was on “fair notice” that the statutory provision for curing its unlicensed and unlawful status was a matter of legislative grace that could be withdrawn by subsequent legislative action. R.A.M. could have no “settled expectation” or claim of “reasonable reliance” based on the cure provision until R.A.M. had taken the steps necessary to be legally licensed. Landgraf, 511 U.S. at 270, 114 S.Ct. 1483. Since “ ‘[a] statute does not operate “retrospectively” merely because it is applied in a case arising from conduct antedating the statute’s enactment,’ ” Chase Fed. Hous. Corp., 737 So.2d at 499 (quoting Landgraf, 511 U.S. at 269-70), the fact that the relationship-and the dispute-between R.A.M. and WCI arose from circumstances occurring prior to the effective date of the 2000 statute is not sufficient to establish that the trial court’s application of the statute was retroactive. Given the nature of the unexercised right to cure under the 1999 version of the statute, the “ ‘new provision’ ” of the 2000 statute repealing the cure provision of the 1999 statute did not “ ‘attach new legal consequences to events completed before its enactment.’ ” Id. R.A.M.’s failure to exercise its right to cure under the 1999 statute means that there was no relevant “event[ ] completed before” the effective date of the 2000 statute. Landgraf, 511 U.S. at 270, 114 S.Ct. 1483. In other words, there was no “relevant past event” occurring before the effective date of the 2000 statute that has a sufficient “degree of connection” with the “operation of the new rule” to justify the conclusion that the application of the 2000 statute has a retroactive effect. Id. In sum, the right R.A.M. had under the 1999 version of section 489.128 was not a vested right.

“A vested right has been defined as ‘an immediate, fixed right of present or future enjoyment’ and also as ‘an immediate right of present enjoyment, or a present, fixed right of future enjoyment.’ ” City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513, 514-15 (1935) (quoting Pearsall v. Great N. Ry., 161 U.S. 646, 16 S.Ct. 705, 40 L.Ed. 838 (1896)); see also Romine v. Fla. Birth Related Neurological Injury Comp. Ass’n, 842 So.2d 148, 154 (Fla. 5th DCA 2003); In re Will of Martell, 457 So.2d 1064, 1067 (Fla. 2d DCA 1984); Div. of Workers’ Comp., Bureau of Crimes Comp. v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982). “ ‘[T]o be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand[ ]....’ ” Brevda, 420 So.2d at 891 (quoting Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex.Civ.App.1975)). Vested rights are distinguished not only from expectant rights but also from contingent rights.

“[Rjights are vested, in contradistinction to being expectant or contingent. They are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons, as a present interest. They are expectant when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting.”

Pearsall, 161 U.S. at 673, 16 S.Ct. 705 (quoting Cooley, Constitutional Law).

R.A.M.’s right to enforce the contract based on the cure of its unlicensed status was not an “immediate, fixed right.” On the contrary, it was merely an expectant and contingent right. Until R.A.M. obtained its license, it could have no cause of action on the contract. And it would never have a cause of action if for any reason it were unable to be licensed. So long as R.A.M. failed to take the steps necessary to cure its unlicensed status, its right to enforce the contract based on the cure of that unlicensed status remained a merely expectant and contingent right. R.A.M. had nothing more than a hope that the opportunity to cure its unlicensed status would remain available-a “ ‘mere expectation based on an anticipation of the continuance of an existing law.’ ” Brevda, 420 So.2d at 891 (quoting Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280 (Tex.Civ.App. 1975)). Some other event — namely, the enactment of the 2000 statute repealing the cure provision — prevented the vesting of R.A.M.’s contingent right to enforce the contract. Once the 2000 statute became effective, the opportunity previously afforded to R.A.M. to cure its unlicensed status was properly cut off.

Our analysis of the vested rights issue here is parallel to the Fifth District’s analysis in Promontory Enterprises, Inc. v. Southern Engineering & Contracting, Inc., 864 So.2d 479, 485 (Fla. 5th DCA 2004), where the court concluded that there was no “vested right in the statutory cure provision.” In reaching the conclusion that the statutory cure provision had not created a vested right, the Promontory Enterprises court focused on the status of the underlying agreement: “Regardless whether a contract entered into by an unlicensed contractor is unenforceable, illegal, or both, such a contract cannot give the contractor a vested right that may be impaired by retroactive application of section 489.128, Florida Statutes (2003).” Id. The court stated that the “possibility to make the contract enforceable ... [did] not create vested rights because possibilities are not immediate and fixed rights of present or future enjoyment.” Id. The cure provision of the statute thus did “not create a legal or equitable title to the present or future enforcement of a demand .... Once [the cure provision] was abrogated, the possibility for cure [was] completely lost.” Id.

R.A.M.’s claim is easily distinguishable from the types of claims that have been held to involve vested rights. The unvested nature of R.A.M.’s right to cure stands in contrast with the vested rights that have been protected from infringement by the application of statutes passed subsequent to the vesting of rights. Under the case law, once a cause of action has accrued, the right to pursue that cause of action is generally considered a vested right. When a cause of action has accrued, a statute that becomes effective subsequently may not be applied to eliminate or curtail the cause of action. See Forbes Pioneer Boat Line v. Bd. of Comm’rs, 258 U.S. 338, 339, 42 S.Ct. 325, 66 L.Ed. 647 (1922) (holding that “legislature [could not] take away from a private party a right to recover money that is due when the [legislative] act is passed”); Rupp v. Bryant, 417 So.2d 658, 666 (Fla. 1982) (holding that “due process considerations” precluded retroactive application of amendments to tort immunity statute where such application would abolish vested right to recover from persons who were not immune from liability when tort claim arose). A fortiori, it is impermissible for a statute to be applied to prevent the enforcement of a judgment that was obtained before the effective date of the statute. See City of Sanford, 163 So. 513 (holding that vested right under judgment levy could not be abrogated by subsequently enacted statute); Dep’t of Transp. v. Knowles, 402 So.2d 1155 (Fla.1981) (holding that statute granting state employees immunity from tort liability for negligent acts in the course of their employment could not constitutionally be applied to defeat judgment against employee that was obtained prior to effective date of statute).

We do not conclude that there are no circumstances in which a vested right could come into existence pursuant to the cure provision of the 1999 version of section 489.128. A vested right would be created if an unlicensed contractor cured its unlicensed status pursuant to the statutory cure provision while that provision was still in force. The circumstances of the instant case thus are distinguishable from those cases in which a contractor cured its unlicensed status prior to the effective date of the 2000 amendment to section 489.128. See Mivan (Fla.), Inc. v. Metric Constructors, Inc., 857 So.2d 901 (Fla. 5th DCA 2003); Michnal v. Palm Coast Dev., Inc., 842 So.2d 927 (Fla. 4th DCA 2003). In such cases where a contractor’s unlicensed status was cured before the effective date of the 2000 statute, the right of the contractor to enforce the contract based on the contractor’s completed action pursuant to the cure provision of the statute is a vested right that could not be abrogated by the subsequently effective amendment to section 489.128.

The decision of the Third District in Magil Construction, 785 So.2d 597, appears to involve facts similar to those of the instant case and an analysis of the retroactivity issue at odds with our holding here. In Magil Construction, while suit was pending, the 2000 amendment to section 489.128 became effective. The court noted that the contractor had “applied for licensure prior to executing the construction contract [in April 1997],” but that “[o]wing to a processing error, or insufficient filing fee, no license was issued.” Id. at 597. The Magil Construction opinion also recites: “The owner argues that since the contractor never cured its unlicensed status, it is now prohibited from doing so.” Id. The court did not expressly state when — if ever — the contractor’s unlicensed status was cured, although it might be inferred from the court’s reference to the owner’s argument that the unlicensed status remained uncured at least until after the 2000 statute became effective. The court stated that “assum[ing] that the amended statute precludes a contractor from curing its unlicensed status ... the effect of the amendment is to remove the contractor’s previously existing right to cure.” Id. at 598. The court concluded, “Since this is a substantive change in the law, the 2000 amendment does not operate retroactively.” Id. (citations omitted).

In Magil Construction, although the right to cure is characterized as a substantive right, there is no discussion of how application of the 2000 version of the statute “ ‘attached] new legal consequences to events completed before its enactment[,]’ ” Chase Fed. Hous. Corp., 737 So.2d at 499 (quoting Landgraf, 511 U.S. at 269), or of the distinction between vested rights and contingent or expectant rights. To the extent that Magil Construction is understood to hold that it is a retroactive application of law to apply the 2000 version of section 489.128 to preclude action to cure a contractor’s unlicensed status after the effective date of the 2000 statute, we recognize that Magil Construction is inconsistent with our holding in this case.

IV. CONCLUSION

R.A.M. had no vested right to cure its unlicensed status after the statutory cure provision had been repealed. Since the trial court correctly concluded that R.A.M.’s claims against WCI are barred, the judgment of the trial court is affirmed.

Affirmed.

COVINGTON and VILLANTI, JJ., Concur.

      . We recognize that the Eleventh Circuit has concluded that both the Federal Arbitration Act and the Florida Arbitration Code allow an arbitrator, rather than a court, to decide whether a contract is unenforceable under section 489.128 once a determination has been made by a court that the dispute falls within the scope of a valid agreement to arbitrate. See John B. Goodman L.P. v. THF Constr., Inc., 321 F.3d 1094 (11th Cir.2003); see also Rewards Hotel Mgmt. Co. v. Elite Gen. Contractors, Inc., 860 So.2d 1011 (Fla. 3d DCA 2003) (holding that the Federal Arbitration Act permits an arbitrator to decide whether a contract is unenforceable under section 489.128 and suggesting in dicta agreement with Goodman that applying the Florida Arbitration Code would have the same result).

      . The 2000 version of section 489.128 was in force from July 1, 2000, through June 25, 2003. In response to questions concerning the interpretation of the various versions of section 489.128 and related statutory provisions, the legislature in 2003 while this appeal was pending — adopted legislation with certain provisions intended to “clarify existing law.” Ch. 03-257, § 8, at 1294, Laws of Fla. The 2003 version of section 489.128 provides, in pertinent part: "(1) As a matter of public policy, contracts entered into on or after October 1, 1990[,] by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.” Id. § 1, at 1290. The 2003 version of the law contains no cure provision like the cure provision in the 1999 version of the statute. The 2003 legislation— which became effective on June 25, 2003— explicitly provides that its provisions affecting section 489.128 "are intended to be remedial in nature and to clarify existing law,” and that those provisions "shall apply retroactively to all actions ... initiated on or after, or pending as of, the effective date of this act.” Id. § 8, at 1294. The changes made by the 2003 statute are not pertinent to the questions at issue in this appeal.

      . We note that when contract rights are involved a claim that a statute is impermissibly being given retroactive effect often is based on the constitutional prohibition on impairment of the obligation of contract. See U.S. Const. art. I, § 10; art. I, § 10, Fla. Const. In order for this constitutional restriction to come into play, there must be a lawful contract. "It must be made to appear that a lawful contract is in existence which is the subject of impairment.” Mahood v. Bessemer Props., Inc., 154 Fla. 710, 18 So.2d 775, 779 (1944) (rejecting contracts clause challenge to statute cutting off certain stale claims against real property); see also Santa Rosa County v. Gulf Power Co., 635 So.2d 96, 102 (Fla. 1st DCA 1994) (holding that grant of franchises by counties was “ultra vires and of no effect” and that subsequent imposition of impact fee did not impair obligation of contract). In the instant case, it is undisputed that there was no lawful contract. The contract was not merely unenforceable; it was also illegal. See § 489.12(1)(f); see also Local No. 234 of United Ass'n of Journeymen v. Henley & Beckwith, Inc., 66 So.2d 818, 823 (Fla.1953) ("The cases are legion that a contract against public policy may not be made the basis of any action either in law or equity.... Agreements in violation of public policy are void because they have no legal sanction and establish no legitimate bond between the parties.”); Stewart v. Steams & Culver Lumber Co., 56 Fla. 570, 48 So. 19, 25 (1908) ("Contracts or agreements that violate the principles of public policy designed for the public welfare are illegal[ ] and will not in general be enforced by the courts....”). Here there was no obligation of contract to impair. There only was the potential for transformation of the illegal and unenforceable agreement into a lawful and enforceable obligation under the statutory provision permitting a contractor to cure its unlicensed status. R.A.M. thus could not cross the threshold necessary to claim that application of the 2000 version of section 489.128 worked an impairment of the obligation of contract.

      . We note that the holding in Promontory Enterprises that the contract was not unenforceable under section 489.128 turned on the retroactive application of the particular provisions of the 2003 version of section 489.128 concerning what constituted unlicensed status. See § 489.128(l)(b). Those provisions of the 2003 statute are not at issue in the instant case.

      . Just as the right to enforce a judgment or to pursue an accrued cause of action may not be cut off by subsequent legislation, so the benefit of the extinguishment of a claim under a statute of limitations is considered a vested right. See Estate of Smith v. Scmggs, 685 So.2d 1206, 1210 (Fla.1996) ("Once a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived [by subsequent legislation] because a constitutionally protected property right to be free of the claim has vested in the defendant.”).


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    William HAMMESFAHR, M.D., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 2D03-1109.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.

      Max R. Price, Solms & Price, P.A., Miami, for Appellant.
    Pamela H. Page, Department of Health, Tallahassee, for Appellee.
   STRINGER, Judge.

Dr. William Hammesfahr seeks review of a final order of the Board of Medicine (“the Board”) disciplining him for financial exploitation of a patient in violation of section 458.331(l)(n), Florida Statutes (2002). Because the Board’s determination is not supported by clear and convincing evidence, we reverse.

This case arose when the Department of Health (“the Department”) filed two administrative complaints charging Dr. Ham-mesfahr with a total of three violations in connection with his practice of alternative medicine in the treatment of strokes. Dr. Hammesfahr treats stroke patients using vasodilators, which dilate the blood vessels to the brain after a stroke, increasing blood supply to the affected area and, according to Dr. Hammesfahr, reversing many debilitating effects of strokes. The Department accused Dr. Hammesfahr of performing medical treatment below the standard of care, engaging in false advertising concerning his treatment of strokes, and exploiting a patient for financial gain.

The Administrative Law Judge (“the ALJ”) conducted a hearing on the complaints and found no violation of the first two charges, performing below the standard of care and false advertising. Based on testimony from four expert witnesses on behalf of the Department, the ALJ concluded that Dr. Hammesfahr’s unconventional stroke treatment is not within the generally accepted standard of care. Nonetheless, the ALJ found that Dr. Ham-mesfahr’s practice of alternative medicine in the treatment of strokes did not constitute grounds for discipline because the Department did not present clear and convincing evidence that it is harmful to his patients, that the patients did not make an informed decision to obtain the treatment, or that Dr. Hammesfahr used fraud or deception to convince the patients they would improve with the treatment. Based on evidence presented by Dr. Hammesfahr that several of his patients had actually improved after treatment, the ALJ also concluded that Dr. Hammesfahr had not engaged in false advertising concerning his treatment of strokes.

On the third charge, the ALJ recommended discipline for a violation of section 458.331(l)(n), which prohibits “[e]xereising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party, which shall include, but not be limited to, the promoting or selling of services, goods, appliances, or drugs.” The ALJ found that Dr. Hammesfahr violated section 458.331(l)(n) by charging a patient $3000 for services that she did not receive.

The Board adopted the recommended order of the ALJ in its entirety and imposed a $2000 fine and six months of probation with conditions of supervision. It is from this order that Dr. Hammesfahr appeals. We review the Board’s determination for clear and convincing evidence. See Hasbun v. Dep’t of Health, 701 So.2d 1235, 1236 (Fla. 3d DCA 1997).

The patient in this case made an appointment with Dr. Hammesfahr, reviewed Dr. Hammesfahr’s treatment programs, and enrolled in a three-day program for $3000. On the first day of treatment, she had a consultation with Dr. Hammesfahr, and a staff member took her blood pressure and directed the patient to monitor her blood pressure thereafter. On the second day, the patient received a tran-scranial Doppler, a carotid artery ultrasound, and an electrocardiogram. Dr. Hammesfahr also met with the patient, observed her gait, and told her he would work with her physicians.

On day three, the patient was supposed to receive a physical therapy evaluation and a neuropsychological evaluation. After the evaluations, Dr. Hammesfahr would determine the proper course of treatment and consult with the patient’s physicians for their aid in administering that treatment. The patient discontinued the program before she could obtain the physical therapy or neuropsychological evaluation and returned home. Dr. Ham-mesfahr subsequently contacted the patient’s physicians, but they refused to administer the vasodilators. The $3000 the patient paid Dr. Hammesfahr included charges for the physical therapy and neu-ropsychological evaluations.

After considering this evidence, the Board found that Dr. Hammesfahr charged the patient for a $3000 treatment program but that the patient received the services outlined in a $2000 treatment program. Based on this finding, the Board determined that Dr. Hammesfahr “did exploit [the patient] for financial gain by charging her for services that she did not receive.”

The record contains competent, substantial evidence to support the Board’s finding that the patient enrolled in a $3000 treatment program but only received a $2000 treatment program. However, the record does not contain clear and convincing evidence to support the Board’s conclusion that the overcharge was the result of exploitation for financial gain under section 458.331(l)(n). There is no evidence in the record that the overcharge was intentional. The overcharge could have been an administrative mistake by Dr. Hammesfahr’s office or simply the result of the patient’s early termination of the program. Either scenario does not support the trial court’s finding of a violation of section 458.331(l)(n). At best, the facts in this case provide a basis for a civil contract dispute between the parties.

We reverse the final order of the Board disciplining Dr. Hammesfahr for financial exploitation of a patient in violation of section 458.331(l)(n).

ALTENBERND, C.J., and VILLANTI, J., Concur.


author: SILBERMAN, Judge.

text:
    Frank T. POTTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2536.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.

      Frank T. Potts, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Frank Potts, pro se, appeals the trial court’s order denying his petition for writ of mandamus. The State concedes that the trial court erred, and we reverse and remand for the trial court to grant the petition, in part. We reject, without comment, Potts’ claim for accumulated court costs and attorney’s fees.

Potts filed a petition for writ of mandamus in the circuit court seeking to compel his appointed counsel, Byron Hileman, to turn over original documents contained in Hileman’s case file at no cost to Potts. Hileman had been appointed to represent Potts in a post-conviction proceeding. Attached to the petition was a copy of a letter from Potts to Hileman listing some of the documents that Potts had requested. The trial court denied the petition on the basis that Potts was not entitled to his attorney’s original trial records.

In a motion for rehearing, Potts clarified that he was seeking the case file pertaining to a post-conviction evidentiary hearing held on August 30, 2002, not his original trial records. Potts stated that he specifically requested lab test results, personal paperwork collected by Hileman’s investigator, other communications made on Potts’ behalf from an individual to Hile-man, a transcript of the hearing of August 30, 2002, and other documents in the file concerning the evidentiary hearing. The trial court denied the motion for rehearing, stating that Potts was seeking Hileman’s notes from the case file and that the notes were work product and not subject to release to Potts.

On appeal, the State concedes that this court should direct the trial court to grant the petition for writ of mandamus to the extent that Potts seeks documents belonging to him or obtained at public expense. The State contends that the petition should be denied to the extent that it requests free copies of other documents in Hileman’s file. We agree.

Files prepared and maintained by an attorney for the purpose of representing a client are the attorney’s personal property. See Long v. Dillinger, 701 So.2d 1168, 1169 (Fla.1997). However, transcripts that were prepared at public expense on behalf of an indigent defendant must be provided to the defendant without charge for copying. Thompson v. Unterberger, 577 So.2d 684, 685-86 (Fla. 2d DCA 1991); Colon v. Irwin, 732 So.2d 428, 429 (Fla. 5th DCA 1999). Similarly, a defendant is entitled to the return of personal property that he or she provided to counsel. See Thompson, 577 So.2d at 686. “Mandamus is the appropriate remedy since it is used to compel an official to perform lawful duties. A court-appointed lawyer is an ‘official.’ ” Pearce v. Sheffey, 647 So.2d 333, 333 (Fla. 2d DCA 1994). Thus, Potts is entitled to relief regarding his personal property and transcripts prepared on his behalf at public expense. Apart from such items, Hileman cannot be required to provide other documents that are in the case file to Potts without adequate compensation. See Thompson, 577 So.2d at 686; see also Sanford v. Black, 782 So.2d 548, 549 n. 2 (Fla. 5th DCA 2001) (noting that the client must compensate his specially-appointed public defender for a copy of a lab report that was the attorney’s work product).

We also find no merit in Potts’ argument that the Public Records Act, chapter 119, Florida Statutes (2002), entitles him to free copies of all records generated in his case. In Woodson v. Durocher, 588 So.2d 644 (Fla. 5th DCA 1991), the Fifth District recognized that mandamus is not the appropriate remedy when the public defender does not have a mandatory duty to provide free copies of the attorney’s file to the client under the Public Records Act. Even though Potts is entitled to certain items, as discussed above, the Public Records Act does not give him an unfettered right to all records relating to his case, free of charge. In fact, the Public Records Act provides for a fee to obtain copies of documents. Woodson, 588 So.2d at 644; see also § 119.07(1)(a), Fla. Stat. (2002); Smith v. State, 696 So.2d 814, 816 (Fla. 2d DCA 1997) (recognizing that applicable defenses, such as nonpayment, may be raised when prisoners seek mandamus relief to compel disclosure of public records under chapter 119).

Accordingly, we reverse the trial court’s order denying the petition for writ of mandamus. On remand, the trial court shall grant the petition to the extent that the petition requests documents belonging to Potts or transcripts or other record documents obtained on Potts’ behalf at public expense. The trial court shall deny the petition to the extent that it requests free copies of other documents contained in attorney Hileman’s file that constitute Hi-leman’s property or work product.

Reversed and remanded.

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


text:
    Kimball E. REESE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3338.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
   SILBERMAN, Judge.

Kimball E. Reese challenges the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record attachments did not refute ground one of Reese’s claim, we reverse as to that ground. We affirm without comment as to the other eight grounds that Reese raised.

In ground one of his motion, Reese claimed that he informed trial counsel that he had been intoxicated at the time of the offenses and that his codefendants coerced him by threatening to rob and assault his sister if he refused to assist in committing the crimes. Reese asserted that counsel was ineffective because counsel failed to advise him that voluntary intoxication and duress or coercion were valid defenses to the specific intent crimes that were charged. He stated that had he known that these defenses were available to show his lack of the requisite intent, he would not have entered his no contest plea. The trial court entered an order denying the claim, stating that it was conclusively refuted by the record. The trial court referred to a transcript from a motion to suppress hearing and attached the transcript to its order.

Concerning voluntary intoxication, Reese was charged with multiple counts of burglary, grand theft, petit theft, and dealing in stolen property. The crimes were committed, and he was charged, in 1998. At that time, voluntary intoxication was a defense to specific intent crimes. See Straitwell v. State, 884 So.2d 918, 920 n. 1 (Fla. 2d DCA 2003) (noting that as of October 1, 1999, voluntary intoxication was eliminated as a defense in Florida); see also § 775.051, Fla. Stat. (1999). Burglary, grand theft, and petit theft are specific intent crimes. See Rudolf v. State, 851 So.2d 839, 843 (Fla. 2d DCA 2003); Straitwell, 834 So.2d at 920. Dealing or trafficking in stolen property is not a specific intent crime. See Glenn v. State, 753 So.2d 669, 671 (Fla. 2d DCA 2000).

The transcript of the motion to suppress hearing contains evidence and legal arguments addressing whether Reese’s statements to the police were involuntary and subject to suppression because Reese was allegedly under the influence of crack cocaine at the time that the statements were made. The trial court found that the transcript refuted Reese’s post-conviction claim that counsel had not advised him of the possible voluntary intoxication defense because counsel had asserted voluntary intoxication as a basis for suppression.

In reviewing the transcript, it is evident that although Reese’s counsel argued voluntary intoxication in support of the motion to suppress, the transcript does not address whether counsel informed Reese or discussed with him that voluntary intoxication could also be used as a trial defense against many of the charged offenses. As a result, we disagree with the trial court’s conclusion that the transcript refutes the claim.

Turning to the claim relating to a potential defense based on duress or coercion, that defense exists when there is evidence

tending to show that the defendant committed the crime against his will because of circumstances which either constituted a real, imminent and impending danger to himself or to some loved one, or from which circumstances shown in evidence the defendant had reasonable grounds to believe that such danger was real, imminent and impending, and did so believe at the time the crime was committed, and therefore committed the crime because of such belief.

Stevens v. State, 397 So.2d 324, 325 (Fla. 5th DCA 1981). In denying relief, the trial court did not specifically discuss duress or coercion, although it again referred to the ■suppression hearing transcript as conclusively refuting Reese’s claim. Nothing in the transcript refers to duress or coercion; thus, it does not refute Reese’s claim.

Because the record attachments did not refute ground one of Reese’s post-conviction motion concerning the potential defenses of voluntary intoxication and duress or coercion, we reverse. On remand, the trial court may again summarily deny relief if it can attach portions of the record that conclusively refute the claim. To the extent that the claim is not conclusively refuted by the record, the trial court must conduct an evidentiary hearing on the claim. We affirm the denial of relief as to all other grounds asserted in Reese’s motion.

Affirmed in part, reversed in part, and remanded.

STRINGER and KELLY, JJ., Concur.


author: VILLANTI, Judge.

text:
    Charles Kenneth MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4304.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
   VILLANTI, Judge.

Charles Kenneth Murphy appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm three of Murphy’s claims without discussion, but we reverse and remand for further proceedings on his fourth claim.

On October 12, 2001, a jury convicted Murphy of grand theft, and the trial court' sentenced him as a habitual felony offender (HFO) to forty-eight months in prison. In his motion, Murphy alleged that before trial, the State offered a sentence of three years’ probation in exchange for his plea. Murphy alleged that his trial counsel was ineffective during the plea negotiation because he failed to advise Murphy that he could face HFO penalties if he rejected the offer.

Defense counsel can be ineffective in failing to properly advise the defendant of a plea offer. Eristma v. State, 766 So.2d 1095 (Fla. 2d DCA 2000). A defendant is inherently prejudiced by his inability, due to his counsel’s neglect, to make an informed decision whether to plea bargain. Cottle v. State, 733 So.2d 963 (Fla.1999). When the alleged ineffectiveness concerns the rejection of a plea offer, the defendant must prove: “(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State’s plea offer would have resulted in a lesser sentence.” Id. at 967.

Here, Murphy alleged that his counsel neglected to inform him of the HFO penalties he could face if he rejected the plea offer and proceeded to trial. He also claimed that he would have accepted the plea offer had he been properly advised of these penalties and that acceptance of the offer would have resulted in a lesser sentence of three years’ probation with no HFO penalties. Therefore, Murphy alleged a facially sufficient claim of ineffective assistance of counsel. See id. Accordingly, we reverse and remand for the trial court to hold an evidentiary hearing on this claim.

Affirmed in part; reversed in part; and remanded.

STRINGER and KELLY, JJ., Concur.


text:
    Anthony HOUSE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3869.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
   VILLANTI, Judge.

Anthony House, Jr., challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, House raised four grounds for relief. Because the trial court failed to address the claim raised in ground four, we reverse and remand on this ground. We affirm grounds one, two and three without comment.

In his motion, House alleged that his trial counsel misadvised him that he would be sentenced, as a youthful offender, to four years in prison and two years of probation. House was actually sentenced to ten years in prison. In its order denying the motion, the trial court mentioned that House raised this issue, but the trial court then failed to address it.

We therefore reverse and remand for further proceedings. If the trial court again summarily denies House’s motion, it shall attach those portions of the record which refute his claim.

Affirmed in part; reversed and remanded in part.

STRINGER and KELLY, JJ., Concur.


author: COVINGTON, Judge.

text:
    Freddie E. BASS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3779.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
   COVINGTON, Judge.

Freddie E. Bass appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for correction of sentence.

According to Bass, he entered into a plea agreement with the State whereby he pleaded guilty to robbery, possession of cocaine, possession of drug paraphernalia, and obstructing an officer without violence. On June 25, 2000, the trial court sentenced Bass to twelve years in prison as a habitual felony offender on the robbery count and five years in prison on the possession of cocaine count. On the remaining two counts, the trial court sentenced Bass to time served.

In the instant motion, Bass alleged that on May 8, 2001, he filed a motion to correct illegal sentence because his written sentence on the robbery count reflected a four-year probationary portion to follow the twelve years in prison, and the probationary portion was not orally pronounced at the June 25, 2000, sentencing hearing. In response to the May 8, 2001, motion, the trial court conducted a hearing on September 24, 2001, and resentenced Bass to twelve years in prison followed by two years’ probation. In the instant motion, Bass claimed that his counsel for the September 24, 2001, hearing was ineffective for allowing him to be sentenced to twelve years in prison followed by two years’ probation. Bass argued that the purpose of the September 24, 2001, hearing was to simply correct his written sentence to reflect the June 25, 2000, oral pronouncement of sentence.

Although he framed his claim as one of ineffective assistance of counsel, Bass more properly alleged a claim of illegal sentence. See Brinson v. State, 851 So.2d 815 (Fla. 2d DCA 2003). If Bass was orally sentenced to twelve years in prison without any probation on June 25, 2000, but his written sentence reflected a sentence of twelve years in prison followed by four years’ probation, he was entitled to have his written sentence corrected to comport with the oral pronouncement. See Ashley v. State, 850 So.2d 1265 (Fla. 2003); Hunter v. State, 846 So.2d 1227 (Fla. 2d DCA 2003). The trial court was not authorized, however, to bring Bass back to court to resentence him to a more onerous sentence than that orally imposed on June 25, 2000, because such a resen-tencing violated Bass’s constitutional right against double jeopardy. See Ashley, 850 So.2d at 1267. Accordingly, we reverse and remand for the trial court to- resen-tence Bass to twelve years in prison on the robbery count as orally imposed by the trial court on June 25, 2000.

Reversed and remanded.

STRINGER and KELLY, JJ., Concur.


author: FULMER, Judge.

text:
    E.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-0444.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

E.H. was found guilty of burglary of a dwelling and grand theft of the third degree. He challenges the sufficiency of the evidence for the grand theft charge, arguing that the State failed to prove the value of the stolen property. In D.H. v. State, 864 So.2d 588 (Fla. 2d DCA 2004), we recently addressed the same issue in an appeal brought by a codefendant, and we agreed that the testimony was insufficient to meet the State’s burden of proof. Therefore, in accordance with our prior opinion in D.H., we reverse and remand for the trial court to reduce the grand theft to petit theft.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Wesley GONZALEZ, a/k/a Michael D. Gonzalez, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2573.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    Wesley Gonzalez, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   THREADGILL, EDWARD F., Senior Judge.

Wesley Gonzalez appeals from the trial court’s order denying his motion for an injunction to prevent the State from obtaining a blood sample from him for DNA analysis under section 943.325, Florida Statutes (2002). We find no merit to his argument that the statute is unconstitutional. See L.S. v. State, 805 So.2d 1004 (Fla. 1st DCA 2001), review denied, 821 So.2d 297 (Fla.2002). However, we agree, and the State concedes, that the felony Gonzalez committed, conspiracy to commit sexual battery, is not presently one of the felonies enumerated in section 943.325 requiring Gonzalez to submit to DNA testing.

Accordingly, we reverse the trial court’s order denying the motion for an injunction. On remand, the trial court shall enter a temporary injunction or a stay restraining the State from requiring Gonzalez to submit a blood specimen.

Reversed and remanded.

DAVIS and SILBERMAN, JJ., Concur.


author: WHATLEY, Judge.

text:
    William D. BAYER and Angela E. Turra, husband and wife, Appellants, v. GLOBAL RENAISSANCE ARTS, INC., a Florida dissolved corporation, and Richard R. Riverin, individually, Appellees.
    No. 2D03-3838.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    Richard M. Treiser of Treiser, Collins & Vernon, Naples, for Appellants.
    Ann T. Frank of Ann T. Frank, P.A., Naples, for Appellees.
   WHATLEY, Judge.

We reverse the supplemental final judgment awarding the Appellants attorney’s fees because it fails to set forth findings explaining how the trial court arrived at the amount of fees it awarded the Appellants as required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). See Guardianship of Halpert v. Rosenbloom, 698 So.2d 938 (Fla. 4th DCA 1997) (noting that Rowe findings are mandatory). The Appellants’ failure to include a transcript of the fee hearing in the record on appeal does not preclude this court’s review of the supplemental final judgment because the error is apparent from the face of said judgment. Id. at 939 (citing Giltex Corp. v. Diehl, 583 So.2d 734 (Fla. 1st DCA 1991)).

Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

COVINGTON and KELLY, JJ., Concur.


text:
    James TODORA, Sarasota County Property Appraiser, Appellant, v. VENICE GOLF ASSOCIATION, INC., Appellee.
    No. 2D02-4895.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    Michele Santi and John C. Dent, Jr. of Dent & Cook, Sarasota, for Appellant.
    E.G. Boone, Jeffery A. Boone, and John S. Koda of Boone, Boone, Boone, Hines & Koda, P.A., Venice, for Appellee.
   WHATLEY, Judge.

James Todora, as Sarasota County-Property Appraiser, appeals the judgment awarding costs to Venice Golf Association, Inc. after the trial court entered judgment in favor of the Association in its action challenging its tax assessments for two years. The Property Appraiser appealed the underlying judgment in favor of the Association, and this court reversed, holding that the Association was not the proper party to challenge the assessments. James Todora v. Venice Golf Ass’n, Inc., 847 So.2d 577 (Fla. 2d DCA), review denied, 860 So.2d 980 (Fla.2003). Because the judgment upon which the cost judgment is predicated has been reversed, the cost judgment cannot stand. Standard Guar. Ins. Co. v. Geeting, 355 So.2d 819 (Fla. 2d DCA 1978); Fraser-Watson v. Maxim Healthcare Servs., 849 So.2d 1201 (Fla. 4th DCA 2003).

Reversed.

NORTHCUTT and STRINGER, JJ., concur.


author: CANADY, Judge.

text:
    OFFICE OF FIRE CODE OFFICIAL OF COLLIER COUNTY FIRE CONTROL AND RESCUE DISTRICTS, Appellant, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES and District School Board of Collier County, Appellees.
    No. 2D03-1869.
    District Court of Appeal of Florida, Second District.
    March 31, 2004.

      Melville G. Brinson, III, Smoot Adams Edwards Doragh & Brinson, P.A., Fort Myers, for Appellant.
    Gabriel Mazzeo, Tallahassee, for Appel-lee Department of Financial Services.
    Jon D. Fishbane and Ashley D. Lupo of Roetzel & Andress, Naples, for Appellee District School Board of Collier County.
   CANADY, Judge.

The Office of the Fire Code Official of Collier County (FCO) appeals an order of the Department of Financial Services (DFS) dismissing a petition for declaratory statement concerning firesafety inspection requirements for new educational facilities. Because the DFS erred in concluding that it has no jurisdiction with respect to fire-safety inspection requirements for new educational facilities, we reverse the order dismissing the petition for declaratory statement.

I. BACKGROUND

This case turns on the proper interpretation of several statutory provisions in chapter 633 (Fire Prevention and Control) and chapter 1013 (Educational Facilities), Florida Statutes (2003), relating to firesaf-ety standards for educational facilities. The DFS determined that the “proper agenc[ies] to render a declaratory statement on new construction of educational and ancillary plants and facilities are the local [school] boards or the Department of Education.” The District School Board of Collier County supports the DFS’s position. The FCO argues that the statutes should be understood as giving the DFS jurisdiction over firesafety requirements for new educational facilities. The parties all agree that the DFS has jurisdiction with respect to firesafety requirements for existing educational facilities. The dispute relates solely to authority regarding new educational facilities. In brief, the FCO relies on the pertinent provisions of chapter 633 (Fire Prevention and Control), while the DFS relies on certain provisions of chapter 1013 (Educational Facilities). The DFS’s position that it has no regulatory authority with respect to inspections of new educational facilities is reflected in rules it has adopted governing firesafety inspections for educational facilities. See Fla. Admin. Code R. 69A-58.004(2)(d) (providing that rules for inspection of educational facilities “[a]re not applicable to new construction or new buildings”) (formerly 4A-58.004(2)(d)).

II. ANALYSIS

Various provisions of chapter 633 are pertinent to the issue before us. We conclude that these provisions support the FCO’s argument and are dispositive. At the outset we note that under chapter 633 the responsibilities of the State Fire Marshal are carried out through the DFS. “The head of the [DFS] is the Chief Financial Officer.” § 20.121(1), Fla. Stat. (2003). The Chief Financial Officer is designated as the State Fire Marshal, § 633.01, and the Division of State Fire Marshal is a part of the DFS, § 20.121(2)(b). The State Fire Marshal thus acts through the DFS, and the DFS has the authority to adopt the Florida Fire Prevention Code. § 633.01(1).

Section 633.01(6), (7) provides:

(6) Only the State Fire Marshal may issue, and, when requested in writing by any substantially affected person or a local enforcing agency, the State Fire Marshall shall issue declaratory statements pursuant to s. 120.565 relating to the Florida Fire Prevention Code and the Life Safety Code.
(7) The State Fire Marshal shall adopt and administer rules prescribing standards for the safety and health of occupants of educational and ancillary facilities pursuant to ss. 633.022, 1013.12, 1013.37, and 1013.371. In addition, in any county that does not employ or appoint a local fire official, the State Fire Marshal shall assume the duties of the local fire official with respect to fire-safety inspections of educational property required under s. 1013.12(2)(b), and the State Fire Marshal may take necessary corrective action as authorized under s. 1013.12(5).

(Emphasis added).

Section 633.022 provides in pertinent part:

(1) The [DFS] shall establish uniform firesafety standards that apply to:
(b) All new, existing, and proposed ... public schools ... of which standards the State Fire Marshal is the final administrative interpreting authority.

(Emphasis added).

The cited provisions of chapter 633 make clear beyond any doubt the authority of the DFS with respect to firesafety standards for new public school facilities. They not only expressly provide for the adoption of such standards by the State Fire Marshal and the DFS but also expressly grant the State Fire Marshal the specific authority to issue declaratory statements relating to the State Fire Code and final administrative interpreting authority regarding the firesafety standards that apply to new public schools. The language of the statutory text is direct and unambiguous. On the issue before us, it is subject to only one reasonable interpretation.

None of the provisions of chapter 1013 relied on by the appellees are inconsistent with the relevant provisions of chapter 633. Indeed, the pertinent provisions of chapter 1013 reinforce the conclusion that the DFS has jurisdiction with respect to firesafety standards for new educational facilities. The appellees -argue that the “more specific” provisions of chapter ,1013 relating to firesafety take precedence over the general provisions of chapter 633 and that those provisions of chapter 1013 have implicitly repealed the authority granted by chapter 633 to the DFS with respect to firesafety for new educational facilities. These arguments find no support in the text of chapter 1013. Although chapter 1013 clearly places responsibilities related to compliance with firesafety standards for new educational facilities on the Department of Education and local school boards, it recognizes the regulatory authority of the DFS to establish the applicable standards.

Section 1013.37 provides in pertinent part:

(1) UNIFORM BUILDING CODE. — ... It is also the responsibility of the [Department [of Education] to develop, as a part of the uniform building code, standards relating to:
(c) The safety of occupants of educational and ancillary plants as provided in s. 1013.12, except that the firesafety criteria shall be established by the State Fire Marshal in cooperation with the Florida Building Commission and the department and such firesafety requirements must be incorporated into the Florida Fire Prevention Code.
(2) APPROVAL.—
(a) Before a contract has been let for the construction, the department, the district school board, ... or its authorized review agent must approve the phase III construction documents. ■ A district school board ... may reuse prototype plans on another site, provided the facilities list and phase III construction documents have been updated for the new site and for compliance with the Florida Building Code and the Florida Fire Prevention Code and any laws relating to firesafety ... which are in effect at the time a construction contract is to be awarded.
(b) In reviewing plans for approval, the department, the district school board, ... or its review agent as authorized in s. 1013.38, shall take into consideration:
17. Conformity with the Florida Fire Prevention Code.

(Emphasis added).

Section 1013.371 provides, in pertinent part:

(2) ENFORCEMENT BY BOARD.— It is the responsibility of each board to ensure that all plans and educational and ancillary plants meet the standards of the Florida Building Code and the Florida Fire Prevention Code and to provide for the enforcement of these codes in the areas of its jurisdiction.... Plans or facilities that fail to meet the standards of the Florida Building Code or the Florida Fire Prevention Code may not be approved....
(3) ENFORCEMENT BY DEPARTMENT. — As a further means of ensuring that all educational and ancillary facilities constructed or materially altered or added to conform to the Florida Building Code standards or Florida Fire Prevention Code standards, each board that undertakes the construction, renovation, remodeling, purchasing, or lease-purchase of any educational plant or ancillary facility, the cost of which exceeds $200,000, may submit plans to the [Department [of Education] for approval.

(Emphasis added).

Section 1013.38 provides in pertinent part:

(1) Boards shall ensure that all new construction, renovation, remodeling, day labor, and maintenance projects conform to the appropriate sections of the Florida Building Code, Florida Fire Prevention Code, or, where applicable as authorized in other sections of law, other building codes, and life safety codes.
(2) Boards may provide compliance as follows:
(a) Boards or consortia may individually or cooperatively provide review services under the insurance risk management oversight through the use of board employees or consortia employees, registered pursuant to chapter 471, chapter 481, or part XII of chapter 468.
(b) Boards may elect to review construction documents using their own employees registered pursuant to chapter 471, chapter 481, or part XII of chapter 468.
(c) Boards may submit phase III construction documents for review to the department.
(d) Boards or consortia may contract for plan review services directly with engineers and architects registered pursuant to chapter 471 or chapter 481.

(Emphasis added).

These provisions of chapter 1013 can only reasonably be understood as requiring that in planning for the construction of new educational facilities the Department of Education and the district school boards follow the firesafety standards established by the DFS in the Florida Fire Prevention Code. The references to “enforcement” by the Department of Education and the district school boards do not establish that the regulatory authority of the DFS has been displaced or superceded. On the contrary, the Department of Education and the district school boards are expressly directed to conform their building construction plans to the standards developed pursuant to the regulatory authority of the DFS. The fact that the Department of Education and the district school boards are required to ensure that the construction plans for new educational facilities meet the applicable firesafety requirements does not mean that the regulatory authority with respect to those standards has been vested in them. Section 1013.37(l)(c), relating to the construction of educational facilities, specifically acknowledges that the “firesafety criteria” related to the “safety of occupants of educational and ancillary plants” are to “be established by the State Fire Marshal in cooperation with the Florida Building Commission and the [Department of Education,” and “must be incorporated into the Florida Fire Prevention Code.” (Emphasis added).

Chapter 633 unambiguously grants the DFS authority to establish firesafety standards for new educational facilities. Chapter 1013 acknowledges that authority of the DFS and requires the Department of Education and district school boards to develop construction plans for new educational facilities that comply with the fire-safety standards established by the DFS. There is no inconsistency between chapter 633 and chapter 1013. The statutory provisions consistently reflect the eminently sensible policy judgment that the regulatory authority for determining firesafety standards for new educational facilities should be the same as the authority for determining such standards for existing educational facilities. It would indeed be anomalous to divide the standard-setting authority for new facilities from the standard-setting authority for existing facilities. Under such a scheme, a new facility could be determined to be safe under the standards of the Department of Education, while an identical existing facility was determined to be unsafe under the standards of the DFS. And a facility that was determined to be safe as new construction by the Department of Education could shortly thereafter and with no degradation in the facility be determined to be unsafe by the DFS. The relevant statutory texts make clear that the legislature has not chosen to establish such an anomalous arrangement of regulatory authority for firesafety standards.

We recognize that “an administrative agency is afforded wide discretion in the interpretation of a statute which it is given the power and duty to administer,” and that an agency’s interpretation of such a statute “will not be overturned on appeal unless it is clearly erroneous.” Republic Media, Inc. v. Dep’t of Transp., 714 So.2d 1203, 1205 (Fla. 5th DCA 1998). This deferential standard of review requires that we uphold an agency’s statutory interpretation if it “is within the range of possible and reasonable” interpretations. Id.; see also Fla. Dep’t of Educ. v. Cooper, 858 So.2d 394 (Fla. 1st DCA 2003). It does not require that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency. D.T. v. Harter, 844 So.2d 717 (Fla. 2d DCA 2003). Here, as the foregoing analysis demonstrates, the DFS’s interpretation of the pertinent statutory provisions is clearly erroneous.

III. CONCLUSION

The order dismissing the petition for declaratory statement therefore is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

ALTENBERND, C.J., and COVINGTON, J., Concur.


author: DANAHY, PAUL W., Senior Judge.

text:
    Anthony Adrian STUART, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D00-4685, 2D01-1412.
    District Court of Appeal of Florida, Second District.
    March 31, 2004.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   DANAHY, PAUL W., Senior Judge.

In these consolidated appeals, Anthony Stuart appeals new sentences the trial court imposed in five separate cases after Stuart successfully appealed his initial sentences and successfully sought postconviction relief from the sentences pursuant to Florida Rule of Criminal Procedure 3.800(a). Stuart’s case is a procedural morass because he filed his motion to correct illegal sentences pursuant to rule 3.800(a) when his direct appeal was pending. This occurred before the Florida Supreme Court amended Florida Rule of Appellate Procedure 9.600(d) to prohibit this practice. This case clearly confirms the wisdom of that amendment.

Based upon a thorough review of the record and the briefs on appeal, we reverse all of the sentences imposed on August 29, 2002. On remand, we direct the trial court to reinstate the sentences of time served imposed on September 27, 2000, in case numbers 97-2501 and 97010310, and the various sentences imposed on March 9, 2001, in case numbers 97-17927, 97-18205, and 97-20100.

We note that the March 9, 2001, sentence in case number 97-17927 contains a scrivener’s error in that it states the sentence is for 21.9375 months. The transcript of this sentencing proceeding clearly reflects the court’s oral pronouncement of a sentence of 21.9375 years. The court may correct this scrivener’s error on remand. See Boggs v. Wainwright, 223 So.2d 316 (Fla.1969); Serrano v. State, 708 So.2d 1031 (Fla. 2d DCA 1998).

We affirm the trial court’s order dismissing Stuart’s motion to withdraw his pleas for lack of jurisdiction. The order properly noted it was without prejudice to Stuart’s right to file a new motion once his appeals were resolved.

SALCINES AND KELLY, JJ„ Concur.

      . Stuart has three prior appeals related to the present consolidated appeals. See Stuart v. State, 771 So.2d 1192 (Fla. 2d DCA 2000); Stuart v. State, 765 So.2d 224 (Fla. 2d DCA 2000); and Stuart v. State, 763 So.2d 319 (Fla.2000).


text:
    Armando ZUNIGA, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1385.
    District Court of Appeal of Florida, Second District.
    March 31, 2004.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Armando Zuniga appeals his conviction for aggravated battery with a deadly weapon. We reverse and remand for a new trial because the trial court committed fundamental error in instructing the jury on Zuniga’s self-defense claim.

Zuniga argues that the trial court erred in giving the following instruction:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Armando Zuniga is charged if the injury to Jose Carmona resulted in the justifiable use of force likely to cause death or great bodily harm.
The use of force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to the defendant while resisting:
1. Any attempt to commit 'aggravated battery upon the defendant, or persons are [sic] justified in using force likely to cause death or great bodily harm if they reasonably believe such force is necessary to prevent:
1. Imminent death or great bodily harm to themselves or another, or
2. The imminent commission of aggravated battery against themselves or another.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. The defendant was attempting to commit, or committing or escaping after the commission of an aggravated battery ....

Zuniga’s argument is supported by 'the Fourth District’s opinions in Giles v. State, 831 So.2d 1268 (Fla. 4th DCA 2002), and Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). In Giles, the court reversed an aggravated battery conviction for a new trial where the jury was instructed: “The use of force not likely to cause death or great bodily harm is not justifiable if you find that the defendant was attempting to commit, committing or escaping after the commission of an aggravated battery.” 831 So.2d at 1265. The court explained that the instruction “is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.” Id. Because Giles committed only one act, the alleged aggravated battery, the instruction was “circular and confusing to the jury such that it basically negated Giles’ defense.” Id. at 1265-66. In Giles, the erroneous instruction was objected to by the defense at trial. However, in Rich, where the same issue was not raised at trial, the Fourth District held that the erroneous instruction was fundamental error and reversed an aggravated battery conviction based on Giles.

We agree with the Fourth District’s analysis in Giles. Although Zuniga did not raise this issue at trial, we conclude that the erroneous instruction was fundamental error in this case. The only disputed issue at trial was whether Zuniga acted in self-defense. In Reed v. State, 837 So.2d 366 (Fla.2002), the court addressed whether an erroneous instruction defining an element of an offense was fundamental error and held that the issue turned on whether the element was disputed at trial. The self-defense instruction can be likened to an element of the offense for its importance to the defendant. See Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945) (reversing for a new trial based on an erroneous self-defense instruction). Therefore, applying Reed, because the erroneous instruction was relevant to the disputed issue at trial, we conclude that the error was fundamental.

Due to our reversal, we need not reach Zuniga’s other issue alleging error in the instruction given on a defendant’s duty to retreat when attacked in his own home.

Reversed and remanded for a new trial.

ALTENBERND, C.J., and CASANUEVA, J., concur.


author: WARNER, J.

text:
    Kevin JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3207.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Rehearing Denied May 11, 2004.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant was convicted and sentenced for robbery with a deadly weapon, the deadly weapon being a BB gun having the appearance of a .9 millimeter hand gun. He complains that the court erred in denying his motion for judgment of acquittal on that portion of the verdict finding him guilty of being armed with a deadly weapon because the BB gun was destroyed by the state prior to trial and, thus, was not presented to the jury. The state offered no other proof to show the BB gun was likely to inflict death or great bodily harm. On the controlling authority of Dale v. State, 703 So.2d 1045 (Fla.1997), we agree with appellant and reverse his conviction.

While victim Joyce Snelten was in a rental car parking lot, a man walked up behind her, held a gun about an inch from her temple, and told her to drop her purse, before leaving in an old red vehicle. According to the victim, the gun was “frightening” and “shiny black” with a rectangular barrel. She acknowledged that she did not know what kind of a gun it was. After the gunman ripped her purse from her arm, she crouched by the side of a rental car in fear of being shot.

Officer Hatfield responded to a 911 call, and he spoke to the victim. She described the suspect, weapon, and vehicle. Another officer saw a vehicle that matched the description, watched it pull over, and saw appellant, who fit the description of the suspect, get out. The officer detained appellant until Officer Hatfield arrived with the victim who identified appellant as the man who robbed her. Officer Hatfield found a BB gun in a cooler in the front passenger’s seat of appellant’s car. At first he thought it was a real gun, but soon realized it was a BB gun. The evidence technician who processed all of the evidence also at first thought the BB gun was a real gun. Inside the cooler in which the BB gun was found were pellets for the gun. No one testified that the BB gun was actually loaded with pellets when found by the detectives.

Unfortunately, sometime prior to trial the gun was mistakenly destroyed by the state. At trial, after the presentation of its witnesses, the state introduced a photograph of the BB gun. It did not introduce any evidence about its operation. Appellant moved for judgment of acquittal on the ground that the state failed to demonstrate that the BB gun was a deadly weapon.

In his defense, appellant testified and denied any involvement. He said that the BB gun found in his car was a cheap spring model which “couldn’t hurt a fly.” He did not recall whether it was loaded at the time of the incident. After testifying, appellant renewed his motion for judgment of acquittal, which was also denied. The trial court found that the question of whether a BB gun is a deadly weapon was a question for the jury, and the jury found appellant guilty of robbery with a deadly weapon.

A motion for judgment of acquittal is reviewed under a de novo standard of review. See Mohansingh v. State, 824 So.2d 1053, 1054 (Fla. 5th DCA 2002).

In Dale, the supreme court considered “whether the ‘deadliness’ of a BB gun is properly a jury question, or whether a BB gun is so innocuous that it is always a non-deadly weapon as a matter of law.” 703 So.2d at 1047. The court said,

We agree with the district courts and hold that whether a BB or pellet gun is a deadly weapon — i.e., whether it is “likely to produce death or great bodily injury” — is a factual question to be answered by the jury in each case. The jury’s finding will be sustained on review if supported by competent substantial evidence.
In the present case, the jury had a sufficient basis for concluding that Dale’s weapon was deadly. Of key importance is the fact that the jury had an opportunity to view the weapon firsthand. Further, Officer Stone testified concerning the circumstances under which the gun was found and the condition it was in when found, and Investigator Corder showed the jury in detail how the gun operated. The fact that the gun was recovered without BBs, pellets, or gas cartridge is not dispositive. Competent substantial evidence supports the jury’s finding.

Id. (emphasis added) (footnote and citation omitted). Relying on Dale, we conclude that the state did not present the type of evidence necessary to sustain a jury finding that this BB gun was a deadly weapon. The jury did not have an opportunity to view the weapon or the ammunition because the state destroyed it. No one testified or showed the jury how the BB gun operated. In short, there was no evidence from which a jury could determine whether this particular BB gun was likely to produce great bodily harm or even that it was operable. The jury could not properly rely on a picture alone to determine the deadliness of the gun. In fact, the only evidence of the BB gun’s capacity to inflict injury was the appellant’s testimony that the gun “couldn’t hurt a fly.”

Because the state failed to produce evidence of the deadliness of the BB gun, the jury’s finding that the BB gun was a deadly weapon was not supported by any evidence. The conviction for robbery with a deadly weapon must be reversed and the case remanded for entry of a conviction for robbery and resentencing accordingly.

STONE and STEVENSON, JJ., concur.


author: TAYLOR, J.

text:
    STATE of Florida, Appellant, v. Clifford BURKHART, Appellee.
    No. 4D03-751.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Rehearing Denied May 4, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Michael R. Dutko of Bogenschultz & Dutko, P.A., Fort Lauderdale for appellee.
   TAYLOR, J.

The sole question posed by this appeal is whether escape from a Jimmy Ryce facility is subject to the mandatory minimum penalties of the “10/20/Life” statute, section 775.087 (1999). The state appeals from the trial court’s failure to impose a ten-year minimum term of imprisonment following appellee’s no contest plea to escape from a Jimmy Ryce facility while possessing a firearm. We reverse and remand for re-sentencing.

The facts are undisputed. Stephen Whitsett was involuntarily civilly committed to a Jimmy Ryce Act facility for sexual predators. Whitsett contacted Clifford Burkhart from the facility and convinced Burkhart to break him out. Burkhart rented a helicopter and flew it into the facility, but as the helicopter started to lift off with the two men it crashed. Both Whitsett and Burkhart fled on foot. Investigators found an empty holster in the crashed helicopter.

The next day Whitsett and Burkhart were captured at gunpoint in a canal, in an encounter which required the officer to fire two warning shots. The two men admitted dropping two pistols in the canal. Two 9 mm pistols and three magazines were found in the canal, fully loaded with 30 rounds of ammunition.

The amended information charged Burk-hart as a principal with Escape While in Lawful Custody under Florida Statutes, section 394.927, and Grand Theft of the helicopter.

The state argued that Burkhart should be sentenced to a minimum term of ten years under the 10/20/Life statute, based on his possession of a firearm during the escape. The trial court rejected this argument, reasoning that if the legislature had intended to include escape from a Jimmy Ryce facility in the 10/20/Life statute, it would have done so expressly. After the court declined to impose the ten-year mandatory minimum, Burkhart entered a plea of nolo contendere and was sentenced to four years imprisonment, followed by ten years probation. This appeal followed.

Judicial interpretation of a Florida statute is purely a legal question and, as such, is subject to de novo review. Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998).

Section 775.085, Florida Statutes, known as the “10/20/Life” statute, took effect July 1, 1999. It provides in pertinent part that any person convicted of an enumerated felony, who, during the commission of the offense, possessed a firearm, “shall be sentenced to a minimum term of imprisonment of 10 years.” Among the enumerated felonies is “[e]scape.” Fla. Stat. § 775.087(2)(a)l i.

In Nelson v. State, 811 So.2d 761, 763 (Fla. 4th DCA 2002), we summarized the legislative purpose of this statute, as follows:

In Chapter 99-12, Laws of Florida (1999), the session law creating section 775.087(2), the legislature noted that Florida ranks as one of the most violent states in the nation and that “criminals who use guns during the commission of violent crimes pose an increased danger to the lives, health, and safety of Florida’s citizens.” The legislature went on to state that the intent of the enactment of section 775.087 was to ensure that offenders who use guns to commit violent crimes would receive longer mandatory prison terms than provided in the then-current law, “effectively incapacitating] the offender, preventing] future crimes, and reducing] violent crime rates.” Id.

In this appeal we must determine whether the legislature, in listing “escape” as a violent crime triggering the ten-year minimum sentence for possession of a firearm, intended to include escape from a Jimmy Ryce facility in that enumerated offense category.

Florida’s primary escape statute, Fla. Stat. section 944.40, makes it a felony of the second degree for a prisoner to escape or attempt to escape from any penal institution. However, sexually violent predators detained under the Jimmy Ryce Act are not prisoners and Jimmy Ryce facilities are not correctional facilities, but, rather, are considered long-term treatment facilities. See Gamer v. State, 839 So.2d 924, 926 (Fla. 4th DCA 2003).

To cover escapes or attempted escapes from such facilities, the legislature created a special escape statute within Chapter 394. Section 394.927, Florida Statutes, effective January 1, 1999, provides in pertinent part:

(1) A person who is held in lawful custody pursuant to a judicial finding of probable cause under s. 394.915 or pursuant to a commitment as a sexually violent predator under s. 394.916 and who escapes or attempts to escape while in such custody commits a felony of the second degree....

Burkhart was charged with escape under section 394.927. In determining whether a violation of this particular escape statute is an “escape” within the meaning of the 10/20/Life statute, we look to canons of statutory construction. “One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the legislature.” Seagrave v. State, 802 So.2d 281, 286 (Fla.2001)(quoting Green v. State, 604 So.2d 471, 473 (Fla.1992)). “Escape” is a commonly understood term that means to “break loose from confinement.” The American Heritage Dictionary Second College Edition 464 (1982). The plain and ordinary meaning of the term “escape” would clearly encompass the defendant’s conduct in this case.

Another rule of statutory construction is that courts read statutes in pari materia, harmonizing them and giving effect to each. State v. Waldron, 885 So.2d 1217, 1218 (Fla. 5th DCA 2003); State v. Negrin, 306 So.2d 606, 607 (Fla. 1st DCA 1975). The state calls our attention to the contrasting language of the habitual offender statute, section 775.084(1)(d), Florida Statutes, which defines a “violent career criminal” as having committed three offenses from a list of offenses, which includes “[ejscape, as described in s. 944.40.” The state aptly argues that if the legislature had intended to limit escapes to escapes from prison for purposes of the 10/20/Life statute, it would have added the words “as described in s.944.40” to the general term “escape,” as it did in the habitual offender statute. The legislature’s failure to so limit “escape” suggests that the legislature intended the term to have a broader meaning.

We also find it significant that escape from a Jimmy Ryce facility was already a crime before the substantial amendments creating the 10/20/Life provisions were adopted in 1999. Had the legislature intended to exclude escapes from Jimmy Ryce facilities, it would have been a simple matter for it to have done so at that time.

While ambiguity in a statute must ordinarily be resolved in favor of a criminal defendant, this construction should not be so strict as to “emasculate the statute and defeat the obvious intention of the legislature.” State v. Nunez, 368 So.2d 422, 423-24 (Fla. 3d DCA 1979); see also Nobles v. State, 769 So.2d 1063, 1066 (Fla. 1st DCA 2000). We can find no indication that the legislature was less concerned with the use of a firearm in an escape from a Jimmy Ryce facility than with the use of a firearm in an escape from a prison.

Because the language used is facially broad enough to encompass an escape from a Jimmy Ryce facility and the legislative purpose is fully implicated by such an escape, we hold that the term “escape” used in the 10/20/Life statute extends to escapes from such facilities.

Accordingly, we reverse the sentence imposed and remand for re-sentencing.

REVERSED and REMANDED.

FARMER, C.J., and GUNTHER J., concur.


author: PER CURIAM.

text:
    Hysim CALDWELL, Petitioner, v. James CROSBY, Secretary, Florida Department of Corrections, Respondent.
    No. 1D04-0665.
    District Court of Appeal of Florida, First District.
    April 7, 2004.
    Hysim Caldwell, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied as proeedurally barred. See Den- hart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    Ricky Lamar LEWIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0800.
    District Court of Appeal of Florida, First District.
    April 7, 2004.
    Ricky Lamar Lewis, pro se, petitioner.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney Genei"al, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied as procedurally barred. See Denhart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    Victor SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4162.
    District Court of Appeal of Florida, First District.
    April 7, 2004.
    Victor Smith, pro se, petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Based on the findings and recommendations of the special master, the petition for belated appeal is denied.

PETITION DENIED.

BARFIELD, BROWNING and LEWIS, JJ., concur.