author: NORTHCUTT, Judge. CASANUEVA, Judge, ALTENBERND, Judge,

text:
    Cedric T. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2430.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    Rehearing Denied March 7, 2003.
   NORTHCUTT, Judge.

The issue here is whether the legislature, when reenacting the criminal punishments contained in chapter 99-188, Laws of Florida, after it was stricken on constitutional single subject grounds, could require the reenacted punishments to be applied retroactively to the effective date of the earlier law. We hold that it could not.

Cedric Green was adjudicated guilty of violating section 893.135(l)(b)(l)(a), Florida Statutes (1999), by trafficking in more than 28 but less than 200 grams of cocaine. He committed this crime in April 2000. In September 2000, the circuit court sentenced him to 42.9 months’ imprisonment, including the three-year minimum mandatory term required under the statute. After Green was sentenced, this court issued Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), declaring chapter 99-188 unconstitutional because it violated the single subject requirement. Section 9 of that chapter had amended section 893.135 to add the minimum mandatory prison term imposed on Green.

The single subject rule provides, in pertinent part, that “[e]very law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” Art. Ill, § 6, Fla. Const. Generally, single subject defects are cured prospectively by the legislature’s customary biennial reenactment of the offending laws. See Salters v. State, 758 So.2d 667, 671 (Fla.2000). But in 2001 the legislature did not pass a biennial reenactment of the 1999 statutes. See Taylor, 818 So.2d at 550 n. 4. Rather, in 2002 it responded to Taylor by enacting chapters 02-208, 02-209, 02-210, 02-211, and 02-212, Laws of Florida, which separately reenacted the sundry provisions of chapter 99-188. See, e.g., Martinez v. Scanlan, 582 So.2d 1167, 1172 (Fla.1991) (noting that the legislature can cure a single subject violation by separating the disparate provisions into distinct bills and individually reenacting them into law). Significantly, each of these new chapters stated that its provisions “shall be applied retroactively to July 1, 1999, or as soon thereafter as the Constitution of the State of Florida and the Constitution of the United States may permit.” Chs. 02-208, § 2 at 1426; 02-209, § 3 at 1429; 02-210, § 3 at 1442; 02-211, § 3 at 1452; 02-212, § 4 at 1499, Laws of Fla. Our research suggests that this was the first time the legislature has undertaken a retroactive reenactment of criminal laws after they were found unconstitutional because of a single subject rule violation.

Against this backdrop, on May 1, 2002, Green filed a motion pursuant to Florida Rule of Criminal Procedure 3.850, asserting that because Taylor had stricken the law that mandated a minimum sentence for his crime, and because he committed the crime during the window period for challenges on that basis, he should be resentenced under the 1997 statutes. Green’s argument was amply supported by precedent. Traditionally, when a defendant has been sentenced under a statute that is declared unconstitutional on single subject grounds, he is entitled to be resen-tenced under the valid law in effect on the date of his offense. See Heggs v. State, 759 So.2d 620, 630-31 (Fla.2000). In Green’s case, however, the circuit court noted that the legislature had cured the single subject rule violation by reenacting the various provisions of chapter 99-188 retroactively to July 1, 1999. Accordingly, the circuit court held that Green was not entitled to relief.

Since the circuit court issued its order, other courts have ruled likewise. The Fifth District, in Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), and Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002) (on grant of rehearing), has held that the curative provisions of chapter 02-210 apply retroactively. The Fourth District, too, appears to hold this view. In two cases decided without opinions, it has cited Hersey. Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002); Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002).

We disagree with those decisions. We hold that chapter 02-212 cannot be applied retroactively, for to do so would violate the Ex Post Facto Clauses of the United States and the Florida Constitutions. U.S. Const, art. 1, § 10; art. I, § 10, Fla. Const. Therefore, we reverse Green’s sentence, and we remand with directions to resentence him pursuant to section 893.135(l)(b)(l)(a), Florida Statutes (1997).

For a law to run afoul of the ex post facto prohibition, two elements must coincide: “first, the law ‘must be retrospective, that is, it must apply to events occurring before its enactment’ and second, ‘it must disadvantage the offender affected by it.’” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). It is beyond argument that the retroactivity portion of chapter 02-212 is retrospective. The act also disadvantages Green. But for the retroactivity provision of chapter 02-212, Green would be entitled to resentencing under the valid law in effect on the date of his offense. See Heggs, 759 So.2d at 630-31. By virtue of this court’s decision in Taylor, the valid law in effect on the date of Green’s crime was section 893.135(l)(b)(l)(a), Florida Statutes (1997). That statute did not prescribe a three-year minimum mandatory prison term for his offense. Thus, Green is disadvantaged by the minimum mandatory term for his crime included in chapter 02-212.

Our analysis does not end there, however. As mentioned, the Fifth District has upheld the retroactivity provision against an ex post facto challenge. That court discerned that its ruling was supported by Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), in which the Supreme Court held that applying the 1972 Florida death penalty statute to crimes committed before its enactment did not violate the Ex Post Facto Clause. Carlson, 27 Fla. L. Weekly at D2162-63, — So.2d at -. But we are persuaded that the Dobbert reasoning does not apply here.

Dobbert had its genesis in June 1972, when the Supreme Court struck down the Georgia death penalty statute as violative of the Eighth and Fourteenth Amendments to the United States Constitution. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In July 1972, the Florida Supreme Court held that Florida’s 1971 death penalty statute was inconsistent with Furman. Donaldson v. Sack, 265 So.2d 499 (Fla.1972). Late in 1972, the Florida Legislature enacted a new death penalty statute. Ch. 72-724, Laws of Fla. Dobbert, 432 U.S. at 288, 97 S.Ct. 2290.

Dobbert committed two murders between December 1971 and April 1972, while the 1971 death penalty statute was in effect. He was tried, convicted, and sentenced to death for these crimes sometime after the effective date of the 1972 statute. Id. at 289, 97 S.Ct. 2290. Dobbert raised several ex post facto challenges to his sentence. Pertinent for our purposes is his claim that because the 1971 statute had been declared unconstitutional in Donaldson, no death penalty statute existed at the time of his crimes, and therefore he could not be sentenced to death. The Supreme Court found that the Ex Post Facto Clause did not bar the retroactive application of the 1972 death penalty statute to Dob-bert’s crimes for two reasons. First, the Court noted that the changes in the death penalty statute between the time of the murder and the time of the trial were procedural and “on the whole ameliorative,” and hence there was no ex post facto violation. Id. at 293-94, 97 S.Ct. 2290. Second, the Court observed that the existence of the earlier statute at the time of the murder served as an “operative fact” to warn Dobbert of the penalty Florida would seek to impose on him if he were convicted of first-degree murder. This, the Court wrote, was sufficient compliance with the ex post facto provision of the Constitution, notwithstanding the subsequent invalidation of the statute. Id. at 298, 97 S.Ct. 2290.

The Fifth District founded its decision in Carlson on this second, “operative fact,” theory, thus holding that the Florida legislature’s enactment of chapter 02-210 applied retroactively to cure a portion of section 893.135(l)(a)(l) that had been declared unconstitutional in Taylor. “The fact that the State ultimately corrected the defect in the legislation to require exactly that which it had invalidly required earlier and then mandated a retroactive application of the amendment does not, according to Dobbert, violate the ex post facto provision of the United States Constitution.” 27 Fla. L. Weekly at D2162-63, — So.2d at -.

In our view, that overbroad characterization of Dobbert actually illustrates a critical distinction between the issue in Dobbert and the one before us: Dobbert did not address the effect of defective legislation. Rather, its observations about the effect of Florida’s 1971 death penalty law were in the context of a validly enacted statute that contained unconstitutional provisions. In contrast to Florida’s 1971 death penalty statute, chapter 99-188 was not validly enacted. Florida law draws a distinction between laws that are unconstitutional because they were illegally enacted, as in Taylor, and ones that were validly enacted but later found to be unconstitutional, like the death penalty statute in Dobbert. The former are void, while the latter are merely voidable. See B.H. v. State, 645 So.2d 987, 995 (Fla.1994).

When the enactment of a law fails to comport with constitutional procedural mandates, the law is illegally enacted and is thus void ab initio, as opposed to being merely voidable. B.H., 645 So.2d at 995; see also McCormick v. Bounetheau, 139 Fla. 461, 190 So. 882, 883-84 (1939) (stating that a statute is void ab initio if it violates a constitutional prohibition). One of those mandates is the single subject rule, set forth at article III, section 6. As the Heggs court stated, a law enacted in violation of the single subject rule is “void in its entirety.” 759 So.2d at 630.

This distinction between a void law and one that is merely voidable is important to the Dobbert analysis. The Dobbert “operative fact” reasoning is grounded on the notion that the existence of the unconstitutional statute provided notice to the defendant of the penalties that the State would seek to impose upon conviction. ‘Whether or not the old statute would in the future, withstand constitutional attack, it clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers.” Dobbert, 432 U.S. at 297, 97 S.Ct. 2290. The 1971 Florida death penalty statute was voidable, not void. That is, the legislature properly enacted the law, but it was later found unconstitutional. Cf. B.H., 645 So.2d at 995 (stating the statute challenged there involved a portion of an enactment that was merely voidable for violation of the non-delegation and vagueness doctrines). And, as in B.H., only a portion of the 1971 death penalty statute at issue in Dobbert was declared unconstitutional. Donaldson, 265 So.2d at 502 (stating the,portion of section 775.082(1) that permitted sentence of life imprisonment for a capital crime remained in effect).

A voidable statute — one that is validly enacted but achieves an unconstitutional result — might indeed provide notice to a defendant. But we cannot fathom how an unconstitutionally enacted law, which therefore “never ha[d] any actual effect,” could serve as an “operative fact” under the Dobbert analysis. See B.H., 645 So.2d at 995; Loxahatchee River Envtl. Control Dist. v. Sch. Bd. of Palm Beach County, 515 So.2d 217, 219 (Fla.1987) (explaining that a statute held unconstitutional on single subject grounds is invalid until such time as it is reenacted and cannot be considered with reference to what has occurred before that reenactment); McCormick, 190 So. at 883-884; City of Winter Haven v. A.M. Klemm & Son, 132 Fla. 334, 181 So. 153 (1938); Messer v. Jackson, 126 Fla. 678, 171 So. 660 (1936).

This is especially so when the law has been enacted in violation of the single subject requirement. That constitutional provision addresses the most basic prerequisite to the exercise of legislative power, i.e., that a law may be enacted only if it is approved by a majority of legislators. See Art. Ill, § 7, Fla. Const. The single subject rale prevents the subversion of that requirement through “logrolling.” State v. Thompson, 750 So.2d 643 (Fla.1999); State v. Johnson, 616 So.2d 1 (Fla.1993); State v. Lee, 356 So.2d 276 (Fla.1978); Taylor, 818 So.2d at 546. When a law violates the single subject clause, it cannot be assumed that a majority of the legislators assented to it. See Colonial Inv. Co. v. Nolan, 100 Fla. 1349, 131 So. 178, 179 (1930). Indeed, the assumption must be to the contrary. As the Florida Supreme Court observed in Heggs, when the legislature passes a bill in violation of the single subject rale,

“[i]t is assumed, without inquiring into the particular facts, that the unrelated subjects were combined in one bill in order to convert several minorities into a majority. The one-subject rale declares that this perversion of majority rule will not be tolerated. The entire act is suspect and so it must all fall.”

759 So.2d at 630 (quoting Millard H. Ruud, No Law Shall Embrace More Than One Subject, 42 Minn. L.Rev. 389, 399 (1958)). If, as Heggs held, it is assumed that an act passed in violation of the single subject rule did not truly represent the will of a majority of legislators, certainly such an act does not put anyone on notice of “the degree of punishment which the legislature wished to impose” for a crime. See Dobbert, 432 U.S. at 297, 97 S.Ct. 2290. We note that an Illinois court has come to the same conclusion. In re F.G., 318 Ill.App.3d 709, 252 Ill.Dec. 607, 743 N.E.2d 181 (2000) (holding that when law violating the Illinois single subject rule was void ab initio, it was not an “operative fact” under Dobbert).

We recognize that our discussion of the efficacy of a law passed in violation of the single subject rule may be at philosophical odds with the majority opinion in Martinez v. Scanlan, 582 So.2d 1167 (Fla.1991). In that case, the Florida Supreme Court unanimously held that chapter 90-201, Laws of Florida, a revision of the workers’ compensation laws, was unconstitutional on single subject grounds. But the justices split 4-3 on the question of whether the court could strike the law only as of the date of its decision rather than as of the date the law had been enacted. The majority determined that, based on equitable considerations, the court could make a prospective ruling that a statute was unconstitutional. In so doing, the majority drew a distinction between a law that is unconstitutional due to its form and one that violates a limitation on legislative power, and it apparently assigned single subject violations to the former category. Martinez, 582 So.2d at 1174.

To be sure, the majority decision in Martinez stirred some controversy among the justices. See 582 So.2d at 1176 (Barkett, J., concurring in part and dissenting in part). It also caused some trepidation at the district court of appeal level. See Garcia v. Carmar Structural, Inc./Feisco, 605 So.2d 1288, 1290 (Fla. 1st DCA 1992) (observing that “[i]n principle, we find ourselves in agreement with the dissent in Martinez v. Scanlan”). Obviously, we, too, balk at the proposition that the failure of a law to adhere to the constitutionally prescribed form does not implicate constitutional restrictions on the exercise of legislative power. Established law preceding Martinez was to the contrary. See Mes- ser, 171 So. at 662 (holding that bill which passed the senate with one title and the house with another “did not become a law”)- And, as demonstrated by the Heggs court’s observations about the single subject rule, that prescribed “form” is inextricably connected to the most basic limitation on legislative power, such that its violation creates an assumption that the act was approved by an aggregation of minorities rather than by a true majority. Heggs, 769 So.2d at 630. It is significant, then, that the Martinez majority drew its “form vs. power” proposition from a case, McCormick, 190 So. at 883-884, that did not involve a single subject rule violation.

Be that as it may, Martinez might support an argument, at least by implication, that a statute declared unconstitutional for a single subject violation may not be void ab initio, and may have some lingering effect. For this reason, it is important to note two reasons why Martinez has no bearing on the issue before us. First, by its terms, the Martinez decision does not apply to criminal cases. The majority prefaced its discussion of the “form” and “power” distinction with this qualification: “Clearly, a penal statute declared unconstitutional is inoperative from the time of its enactment, not only and simply from the time of the court’s decision.” 582 So.2d at 1174 (citing Russo v. State, 270 So.2d 428 (Fla. 4th DCA 1972)). Therefore, although the “form” and “power” distinction might have some currency when determining whether equitable circumstances justify making a prospective declaration that a civil statute is unconstitutional, Martinez itself seems to foreclose that possibility in the realm of penal laws.

Second, even in the context of the workers’ compensation case before it, the Martinez court did not rule on the issue presented here. Before Martinez was decided, the legislature was alerted to the possibility that chapter 90-201 violated the single subject rule. Therefore, in 1991 it cured the single subject violation by separately reenacting the various provisions of the 1990 law. When doing so, the legislators attempted to give the reenacted provision retroactive effect to the date chapter 90-201 became effective. The Martinez court expressly declined to decide whether such a retroactive reenactment was constitutionally permissible. Id. at 1175.

Therefore, while we acknowledge some inconsistency with the theory espoused by the Martinez majority, that decision does not impede our adherence to the view that chapter 99-188 was void ab initio. As such, it did not exist for any purpose, and specifically was not an “operative fact” as contemplated in Dobbert.

Aside from all of the foregoing, even if Dobbert could be read to permit the retroactive application of chapter 02-212, we still do not believe that Green himself could be sentenced under the version of section 893.135 enacted in that chapter because it did not exist on the date of Green’s sentencing. Consider: Dobbert committed his crimes before the enactment of the 1972 death penalty statute, but he was sentenced for the crimes after the effective date of the law. In the Supreme Court he argued that it violated the Equal Protection Clause to treat him differently from the prisoners sentenced to death under the 1971 statute prior to Furman, all of whom had their sentences commuted to life imprisonment. See Donaldson, 265 So.2d at 502. In rejecting this claim, the Dobbert court stated “[h]e was neither tried nor sentenced prior to Furman, as were they, and the only effect of the former statute was to provide sufficient warning of the gravity Florida attached to first-degree murder so as to make the application of this new statute to him consistent with the Ex Post Facto Clause of the United States Constitution.” 432 U.S. at 301, 97 S.Ct. 2290 (emphasis supplied).

Note that Dobbert did not hold that the 1972 statute retroactively “revived” the 1971 statute. In fact, the previously quoted language implies the opposite: the only effect of the 1971 statute was to provide notice. Here, Green was sentenced before the effective date of chapter 02-212. If the effect of the unconstitutional 1999 statute was only notice, Green could not be sentenced under it. He also could not be sentenced under the version of section 893.135 enacted in chapter 02-212 because it was not in effect on the date of his sentencing in 2000. In other words, if Dobbert saves the retroactivity clause in chapter 02-212 from the ex post facto prohibition, which we do not believe it does, it can only do so for those sentenced after that law came into existence on April 29, 2002.

For all the reasons stated, Dobbert is inapplicable to this case. The Ex Post Facto Clauses of the Florida and the United States Constitutions prohibit the retroactive application of chapter 02-212, Laws of Fla. See Miller, 482 U.S. at 430, 107 S.Ct. 2446. Because the chapter’s retroac-tivity provision states that it is to be applied as of July 1, 1999, “or as soon thereafter as the Constitution of the State of Florida and the Constitution of the United States may permit!,]” as a technical matter our decision does not require us to hold the provision unconstitutional. Rather, we hold that under the Florida and federal constitutions chapter 02-212 may be applied no earlier than its April 29, 2002 effective date. We certify that this decision conflicts with the Fifth District’s decisions in Carlson, 27 Fla. L. Weekly at D2162, — So.2d at -, and Hersey, 831 So.2d at 679. See also Lecom v. State, 832 So.2d 818, 819 (Fla. 5th DCA 2002); Jones v. State, 27 Fla. L. Weekly D2377, — So.2d -, 2002 WL 31431541 (Fla. 5th DCA Nov.1, 2002).

We reverse the circuit court’s order denying Green’s rule 3.850 motion and remand with directions to resentence him under section 893.135(l)(b)(l)(a), Florida Statutes (1997).

CASANUEVA, J., Concurs specially.

ALTENBERND, J., Concurs specially.

CASANUEVA, Judge,

Concurring.

I fully concur with the majority holding that chapter 02-212 cannot be applied retroactively for to do so would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

To prohibit legislative Acts “contrary to the first principles of the social compact and to every principle of sound legislation,” the Framers included provisions they considered to be “perhaps greater securities to liberty and republicanism than any [the Constitution] contains.” The provisions declare: “No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.... ” U.S. Const., Art. I, § 10.

Carmell v. Texas, 529 U.S. 513, 520-21, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (footnotes omitted). I now turn to that sound principle prohibiting ex post facto laws.

In Calder v. Bull, 3 U.S. (3 Dali.) 386, 390, 1 L.Ed. 648 (1798), Justice Chase, writing for the Court, stated that “ex post facto law” was a technical term derived from the English common law and was well known to the Framers of our national Constitution. Justice Chase cataloged four meanings or applications of the technical term, the third of which is at issue here: “Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Id. at 391. To fall within this prohibition, two elements must be present: “[FJirst, the law ‘must be retrospective, that is, it must apply to events occurring before its enactment,’ and second, ‘it must disadvantage the offender affected by it.’ ” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)).

Like the majority, I conclude that both elements are present in this case, and I find support for this conclusion in the reasoning of Miller. There, the Court addressed the retroactive application of Florida’s sentencing guideline scheme. The Court not only concluded that the retroactive use of the guidelines at Miller’s sentencing was unconstitutional but it also rejected an application of Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), and found that “Dobbert provides scant support for such a pinched construction of the ex post facto prohibition.” Miller, 482 U.S. at 431, 107 S.Ct. 2446. Instead, the Miller Court concluded that

the revised guidelines directly and adversely affect the sentence petitioner receives. Thus, this is not a case where we can conclude, as we did in Dobbert, that “[t]he crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish guilt, all remain unaffected by the subsequent statute.”

Id. at 435,107 S.Ct. 2446 (quoting Dobbert, 432 U.S. at 294, 97 S.Ct. 2290).

Because the rationale of Miller, Weaver, and Calder compel the conclusion that chapter 02-212 renders Mr. Green’s punishment for an offense committed before its enactment more onerous in violation of the Ex Post Facto Clause of the United States Constitution, I join the majority’s holding.

ALTENBERND, Judge,

Concurring.

I fully concur in both Judge Northcutt’s well-reasoned and thorough opinion for this court and in Judge Casanueva’s additional observations. If a single subject violation by the legislature renders an enactment void, and the supreme court so held in Heggs, 759 So.2d 620, then I cannot conclude that a reenactment of such a criminal statute may be retroactive.

I do not believe that the analysis of a single subject violation and that of a title violation should be clumped together. The notion that a statute is inoperable if its title is inadequate and that the public is entitled to an additional period of time to discover the statute, i.e., until the next biennial reenactment, seems to me to be a good policy. On the other hand, declaring that a single subject violation is always an act of logrolling that renders the enactment void for lack of a majority is, at best, a fiction that appellate courts rely upon because they lack the ability to engage in fact-finding. The notion that an enactment that is void for logrolling can somehow become valid by virtue of the biennial reenactment, which is itself the ultimate example of logrolling, escapes my personal logic.

If the trial courts had been permitted to examine the legislative history behind the enactment of the statutes involved in Heggs and Taylor, I am convinced that they would have concluded beyond a reasonable doubt that the criminal sections of those enactments, which were adequately identified in the title, were fully and unquestionably supported by a majority of legislators. Instead of two unpopular bills being combined to create a single bill with a majority, both of these enactments involved a primary bill that was overwhelmingly popular upon which lesser bills were added like ticks on the back of a rhinoceros. If the supreme court had not rejected the tool of severability in Heggs, the ticks could have been removed from the relevant legislation involved in Heggs and in Taylor. The constitution would have been adequately preserved, and we would have saved the huge judicial expense associated with the resentencing of thousands of prisoners. I believe that the judiciary’s experience with Heggs should cause the supreme court to reexamine the wisdom of a general rule prohibiting severability.

      . The window period for asserting challenges based on the unconstitutionality of chapter 99-188 opened on July 1, 1999, see Taylor v. State, 818 So.2d 544, 550 (Fla. 2d DCA 2002), and closed on April 29, 2002, the effective date of chapters 02-208 through 02-212, Laws of Florida.

      . It appears this should be , chapter 02-212, Laws of Florida.

      .Although all of the mentioned 2002 reenactments contained the same retroactivity provision, our attention must focus on chapter 02-212 because it includes section 893.135(l)(b)(l)(a), the statute under which Green was sentenced. Ch. 02-212, § 1 at 1455, Laws of Fla.

      . It is not clear from the opinion in Carlson v. State, 27 Fla. L. Weekly D2162, - So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), exactly when Carlson's crime was committed or when he was sentenced.

      .In fact, the court in McCormick v. Bounetheau, 139 Fla. 461, 190 So. 882, 883-84 (1939), merely summarized a theory stated in City of Winter Haven v. A.M. Klemm & Son, 132 Fla. 334, 181 So. 153, 165-66 (1938):
      The enactment is void ab initio if it violates a command or prohibition express or implied of the Constitution, while if deficient because of form as distinguished from power there may be a de facto jurisdiction to protect organic rights created “before the illegality of enactment is adjudged.”
      Although Klemm did involve a statute declared unconstitutional on single subject grounds, that case is, at best, confusing. We doubt whether it has any applicability beyond its specific facts, which concern the jurisdiction and powers of a municipality to tax landowners. Moreover, Klemm muddies the waters by remarking, on the one hand, that the single subject rule is a matter of form, but later stating that "[the single subject provision of the Florida] Constitution, is mandatory in its provisions; and a legislative enactment which violates this section is invalid ab ini-tio.” 181 So. at 165, 168.

      . All of the cases discussed in Martinez v. Scanlan, 582 So.2d 1167, 1174-75 (Fla.1991), in support of the majority's conclusion that the decision could be applied prospectively were civil cases, and most addressed property rights or taxation.

      . By declining to address that question, the court avoided confronting the serious policy issues that were posed by the legislature’s attempt to cure the single subject violation retroactively. We believe approving that practice would eviscerate the single subject rule. At best, the practice would cause uncertainty in the law; any decision that invalidates a statute on single subject grounds would leave the parties in limbo, unable to discern — or predict — what law governs their rights.

      . We may also be in conflict with the Fourth District’s decisions in Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002); and Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002).


source: Caselaw Access Project

author: DANAHY, PAUL W„ Senior Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Tammy CATT, Appellee.
    No. 2D02-1749.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    Rehearing Denied March 20, 2003.

      Charlie Crist, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellant.
    Angela D. Flaherty of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones & Kro-tec, Sarasota, for Appellee.
   DANAHY, PAUL W„ Senior Judge.

The State appeals the trial court’s order granting Tammy Catt’s motion to suppress the results of a blood draw taken pursuant to section 316.1933, Florida Statutes (2001). Because the trial court’s finding that the police did not have probable cause to believe that serious injury had resulted from the accident is not supported by competent, substantial evidence, we reverse and remand for further proceedings.

After Catt was involved in an automobile accident, the State charged her with driving under the influence causing serious injury, driving under the influence causing property damage, and child neglect. From the limited record available to us, it appears that Catt was driving in Braden-ton when she hit the back of a truck that was pulling a boat. The force of the impact caused the passenger door of Catt’s vehicle to open, and Catt’s toddler daughter was ejected from the vehicle, apparently because she was not in a car seat. The child hit the pavement and rolled to the side of the roadway.

Police officers and emergency medical technicians (EMTs) responded to the scene. After the EMTs had evaluated the child, they decided that she should be airlifted to Bayfront Hospital in St. Peters-burg to determine the extent of her injuries. The EMTs expressed concerns about possible serious head or internal injuries. After the child was airlifted from the scene, the police ordered blood to be drawn from Catt pursuant to section 316.1933.

The State filed DUI charges against Catt after it received the results of the blood draw. Catt moved to suppress the results on the grounds that the officers at the scene did not have the necessary probable cause to order the blood draw. After a full hearing, the trial court granted Catt’s motion and suppressed the results of the blood draw. The State then brought this appeal.

Section 316.1933(1), which provides for compelled blood draws under certain circumstances, states in pertinent part:

[I]f a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, such person shall submit, upon the request of a law enforcement officer, to a test of the person’s blood for the purpose of determining the alcoholic content thereof.... The term “serious bodily injury” means an injury to any person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Thus, to order blood to be drawn pursuant to this statute, the officer must have probable cause to believe that the driver was under the influence of alcohol or drugs and that the driver had caused an accident resulting in “serious bodily injury.” State v. Cesaretti, 632 So.2d 1105, 1106 (Fla. 4th DCA 1994).

“Probable cause is a fluid concept that deals in probabilities, which include common sense conclusions by law enforcement officers.” Williams v. State, 731 So.2d 48, 50 (Fla. 2d DCA 1999) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Probable cause is not the same standard as beyond a reasonable doubt, and “the facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based.” Williams, 731 So.2d at 50 (quoting State v. Heape, 369 So.2d 386, 389 (Fla. 2d DCA 1979)). To establish probable cause, an officer may rely on information provided at the scene by other law enforcement officers and by emergency personnel. Gerlitz v. State, 725 So.2d 393, 395 (Fla. 4th DCA 1998); Carbone v. State, 564 So.2d 1253, 1254 (Fla. 4th DCA 1990).

In the case before us, the trial court found that the police had probable cause to believe that Catt was under the influence of alcoholic beverages. This finding is supported by the record. Officers Cramer and Campbell both testified that they smelled alcohol on Catt’s breath. This testimony was sufficient to support the trial court’s finding of probable cause on this issue. See State v. Brown, 725 So.2d 441 (Fla. 5th DCA 1999) (noting that “under the influence” in section 316.1933 means something more than having simply consumed an alcoholic beverage but something less than intoxicated and stating that the odor of alcohol on a driver’s breath is a critical factor in determining whether probable cause existed).

However, the trial court then found that the officers did not have probable cause to believe that “serious bodily injuries” had resulted from the accident. This finding is not supported by the record, and it is for this reason that we reverse.

Officer Cramer testified that when he arrived at the accident scene, he learned that a two- or three-year-old child had been ejected from the vehicle upon impact and had rolled in the roadway. An ambulance was already on the scene when Cramer arrived, and EMTs were treating the child. During the course of Cramer’s investigation, the EMTs told Cramer that they could not determine what internal injuries the child might have because the child was too young to communicate with them. Therefore, the EMTs had made the decision to airlift the child to a hospital in St. Petersburg for further treatment. Officer Campbell testified that the EMTs told him that they were airlifting the child due to possible serious internal injuries. Campbell testified that he, as a layman, had no way to know the extent of the child’s injuries other than what he was told by the EMTs. Officer Jones testified that he understood that the extent of the child’s injuries was not clear but that the EMTs were very concerned about the child.

This testimony was sufficient to establish that the officers had probable cause to believe that the accident had caused serious bodily injuries as defined by section 316.1933(1). The fact that the child had been ejected from the car and rolled on the road, combined with the fact that the EMTs had decided to airlift her to an out-of-county hospital, was sufficient to support a common sense conclusion that the child had suffered serious bodily injuries in the accident. Cf Gerlitz, 725 So.2d at 394 (holding that officers had probable cause to support a blood draw under section 316.1933(1) when they knew that a cyclist was hit by a car, thrown to the ground, and removed from the scene by ambulance and when emergency personnel told the officers that the cyclist’s injury was possibly severe); Cesaretti, 632 So.2d at 1106 (holding that the fact that an accident victim was screaming, holding her side, and having trouble breathing was sufficient to establish probable cause for purposes of section 316.1933(1)).

In making its findings at the close of the hearing, the trial court stated that it understood the testimony to be that the police officers believed that the child needed to be airlifted to determine the extent of her injuries. However, the testimony at the hearing was that the EMTs — not the police officers — believed that the child needed to be airlifted for further testing and treatment. The trial court’s finding that the police officers made the decision to have the child airlifted is not supported by any evidence in the record.

The trial court also faulted the State for not calling any of the EMTs to testify at the hearing. However, the issue at the hearing was not what the EMTs knew about the child’s condition. Rather, the question was what the police officers knew about the child’s condition and whether that knowledge was sufficient to give the officers probable cause to believe that the child had suffered serious bodily injuries. Therefore, the lack of direct testimony by the EMTs cannot form the basis for finding that the officers lacked probable cause.

Based on the testimony at the hearing about the facts available to the officers at the accident scene, the officers had probable cause to believe that the child had suffered serious injuries. The trial court’s finding to the contrary is not supported by the evidence. Thus, because the police had probable cause to believe that Catt was driving while under the influence and that serious bodily injuries had resulted, the blood draw pursuant to section 316.1933(1) was proper. Accordingly, the trial court erred in granting Catt’s motion to suppress the results of the blood draw.

Reversed and remanded for further proceedings.

NORTHCUTT and CASANUEVA, JJ., Concur.


author: PER CURIAM.

text:
    W. Robinson FRAZIER and Max T. Watson, Jr., as Successor Co-Trustees of the Martha S. Brechler Amended and Restated Revocable Trust Agreement dated February 18, 1999, Appellants, v. Robert A. BRECHLER and Vernon H. Catron, Jr., Carol Johnson, Janet Henry, Joy Wegand, Randal T. Brechler, John C. Brechler, Janis B. McGurrin And Barbara J. Brechler Smith, as Beneficiaries of the Trust, Appellees.
    No. 1D02-1643.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.
    Rehearing Denied March 14, 2003.
    John F. Callender, Jacksonville, for Appellants.
    Robert C. Gobelman, Jacksonville, for Appellees.
   PER CURIAM.

W. Robinson Frazier and Max T. Watson, Jr., as successor co-trustees of the Martha S. Brechler Amended and Restated Revocable Trust Agreement, appeal an order compelling them to pay $113,397.07 to Robert A. Brechler, the income beneficiary. Because we determine that the circuit court erred in granting the income beneficiary’s motion to compel, we reverse.

Martha S. Brechler executed her trust agreement on February 18, 1999. Upon her death on December 15, 2000, her surviving husband, Robert A. Brechler, became the income beneficiary of the trust. The vested remainder beneficiaries are the children and step-children of Mrs. Bre-chler.

Mr. Brechler contacted the trustees to request money from the trust. The trustees made payments to Mr. Brechler on January 5, 2001, February 1, 2001, and March 16, 2001. At those times, there was not enough income earned from the trust to pay the amounts from income. The trustees later accounted for these payments, and additional payments made on January 11 and July 25, 2001, as advances against income due over the course of the year.

On November 20, 2001, Mr. Brechler served a motion to compel the trustees to fulfill their fiduciary duty. He contended that as of October 31, 2001, the trust had a net income earned of $113,397.07. He further contended that the trustees had failed and refused to pay him this amount as required by the terms of the trust agreement.

Following a hearing, the circuit court found that at the times the early 2001 payments were made to Mr. Brechler, there was not enough income earned to pay the amounts from earned income, and that the trustees had exercised their authority to encroach on the principal for those payments. The court concluded that as of October 31, 2001, the net income earned amounted to $113,397.07, and that none of this amount had been paid to Mr. Brechler. Accordingly, the court directed the trustees to pay $113,397.07 to Mr. Bre-chler.

On appeal, the appellants argue that under the terms of the trust agreement they were empowered to allocate to income the payments that had been made to Mr.

Brechler in January, February, March and July 2001. They contend that, in doing so, they were fulfilling their fiduciary duty to protect the interests of the remainder beneficiaries. They further contend that, therefore, the circuit court erred in determining that payments to the income beneficiary made in advance of the fiduciary accounting of net income as received in early 2001 constituted principal encroachments for the income beneficiary’s health, maintenance, and support. We agree.

The trust agreement provides in pertinent part that:

9. Trustee’s Powers. In addition to such power as may be provided by law, the Trustee is fully authorized and empowered, subject to the provisions of Paragraphs 5(c)(5) and 10 hereof, with respect to any and all property, real or personal, which may at any time be held in trust hereunder, whether as principal or income, in the Trustee’s sole discretion without applying to any court for permission so to do or for instructions in regard thereto, as follows:
(o) To determine the allocation of receipts and disbursements between principal and income; provided, such allocation is not inconsistent with the beneficial enjoyment of trust property accorded to a life tenant under the general principles of the law of trusts....

The trustees had the discretion to determine that the payments made to the beneficiary would be allocated as a disbursement from income. Therefore, the trial judge erred as a matter of law in determining that none of the net income earned had been paid to Mr. Brechler, and that the payments came from principal. In addition, there was sufficient evidence for the payments to be characterized as coming from income.

REVERSED.

WEBSTER, VAN NORTWICK and PADOVANO, JJ., CONCUR.


text:
    Frank P. GARELLI, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3962.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2003.
    Rehearing Denied March 10, 2003.
    Frank P. Garelli, Lowell, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See McCloud v. State, 803 So.2d 821, 827 (Fla. 5th DCA 2001).

SHARP, W„ and PETERSON, JJ. and COBB, W., Senior Judge, concur.


author: POLEN, C.J. TAYLOR, J.,

text:
    Georgann D. HEWITT, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-4072.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied March 18, 2003.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, C.J.

Hewitt filed this appeal challenging the trial court’s denial of her motion to recuse himself post-trial. We find that such denial was in error and hereby reverse the trial court’s denial of Hewitt’s motion to mitigate and motion for new trial and remand so that a new judge may be appointed to hear those motions.

Once convicted of failing to pay sales tax, Hewitt obtained new counsel who filed a verified motion to recuse the trial judge from hearing further motions. In her motion, Hewitt alleged that the judge, while in private practice, once represented her husband in a divorce case against Hewitt seven years earlier. She further alleged that her husband was the owner of the business which failed to pay the tax, which was the subject of the current proceedings.

The trial court found that the motion was not timely made and denied the motion. The judge commented that he did not recall ever representing Hewitt’s husband. Subsequently, the court heard testimony on Hewitt’s motions to mitigate and for a new trial and denied both.

Pursuant to Florida Rules of Judicial Administration 2.160(f), “If any motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.” In addition, this court has previously noted that the basic tenet for disqualification is the appearance of justice. “This tenet must be followed even if the record is lacking of any actual bias or prejudice on the judge’s part.” Bethesda Memorial Hospital, Inc. v. Cassone, 807 So.2d 142, 143 (Fla. 4th DCA 2002).

We conclude that by commenting that he did not recall ever representing Hewitt’s husband, the trial judge failed to follow the directive of rule 2.160(f) and further gave the appearance of taking an adversarial position at the hearing and diluting the appearance of justice. As a result, we conclude that the orders entered after this misconduct must be reversed and that the case be remanded so that a new judge may be assigned to hear the motions.

FARMER, J., concurs.

TAYLOR, J., dissents with opinion.

TAYLOR, J.,

dissenting.

I respectfully dissent. The trial judge denied the motion for disqualification due to its untimeliness. In my opinion, the judge’s gratuitous comment that he did not recall ever representing appellant’s husband was just a brief observation on his lapse of memory; it was not an attempt to refute or pass on the truth of the motion’s allegations or adjudicate the question of disqualification. Accordingly, I would affirm the orders entered below.


text:
    Karla SHAH, Appellant, v. Maria-Elena B. HARDING, Appellee.
    No. 3D02-1598.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Clarification Denied March 12, 2003.
    Billbrough & Marks, and G. Bart Billb-rough, Miami, for appellant.
    Buchbinder & Elegant, and Harris J. Buchbinder, Miami, for appellee.
    Before GERSTEN, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Appellant, Karla Shah (“Shah”), seeks a new trial based upon the trial court’s denial of her motion to recuse the trial judge. We reverse because the trial judge failed to follow the proper procedure in consideration of a recusal motion.

Appellee, Maria-Elena Harding (“Harding”), sued Shah for breach of a loan repayment agreement. Several months later, the trial court told the parties to appear in the trial judge’s chambers at 10:30 a.m. for a hearing on pending pre-trial motions and for trial. The morning of the hearing, Shah’s counsel called the judge’s chambers and stated that Shah was running late. The judicial assistant advised Shah’s counsel to get to the courthouse as soon as possible, because Harding’s counsel was already present. Shah’s counsel was further informed that it was uncertain what motions would be heard, and unclear what time proceedings would commence.

Shah and her counsel arrived at chambers approximately forty minutes late. Harding and her counsel were not present at that time. The trial court advised Shah that it entered a final default judgment as to liability only.

Within an hour, the trial court called the parties to appear back in chambers for another hearing that same day at 2:00 p.m. Harding’s counsel appeared in chambers for this hearing, while Shah’s counsel attended telephonically. Although Harding’s counsel did not utter a word, the trial judge stated that Harding’s counsel “asked me to set aside the default.” At Harding’s counsel’s request, the trial judge set trial for the following morning, even though Shah’s counsel stated the case was not yet ready, there was a pending motion for continuance, and there was outstanding discovery which had not yet been produced.

Based upon these events, Shah prepared a motion to recuse the trial judge, alleging an ex parte conversation had taken place, and that Shah doubted the trial judge’s impartiality. Shah filed the motion the following morning, which was the morning of trial. Shah informed the court a motion to recuse was being prepared and did not show up for the 9:45 a.m. trial.

When neither Shah nor her attorney appeared, the trial judge announced: “I did receive a call from [Shah’s attorney’s] office saying he’s preparing a motion for recusal, but in and of itself, that doesn’t mean anything. He is not here. His client isn’t here. No motion is here.” Thereafter, the trial judge ordered Harding’s counsel to present his opening statement.

Nine minutes later, the trial judge interrupted the opening statement and stated, “Just for the record, it is now 11:16. I have a motion for recusal. I’m not going to look at it right now. I still don’t have [Shah’s counsel or Shah] here. Let’s proceed.”

Harding’s counsel then presented her case to the trial judge. Shortly thereafter, the trial court ruled for Harding. Next, the trial judge turned his attention to the motion for recusal and stated, “Let the record reflect I looked at counsel’s motion for recusal, and I find it insufficient as a matter of law.” The trial judge then denied the motion for recusal.

When a recusal motion is presented to a trial court, the trial judge is required to immediately rule on the motion pursuant to Section 38.10, Florida Statutes (2002), and the Florida Rules of Judicial Administration, Rule 2.160. See Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000); see also Florida Bar re Amendment to Fla. Rules of Judicial Admin., 609 So.2d 465 (1992)(refusing to adopt committee recommendation which would allow ruling on a disqualification motion to be deferred). As noted in Fuster-Escalona v. Wisotsky, 781 So.2d at 1065: “When a trial court fails to act in accord with the statute and procedural rule on a motion to disqualify, an appellate court will vacate a trial court judgment that flows from that error.”

Here, the trial judge’s failure to rule on Shah’s recusal motion until after deciding the merits of the case constituted error. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990); Fla. R. Jud. Admin. 2.160(f). Therefore, because the trial court failed to follow the rules concerning recusal, the final judgment must be reversed.

Reversed and remanded for a new trial.


author: FARMER, J.

text:
    FEDERAL AUTO INSURANCE, INC., and Howard Vogel, Appellants, v. BUSINESS ACQUISITIONS BROKERAGE, INC., Appellee.
    No. 4D01-4160.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied March 18, 2008.
    Orrin R. Beilly of the Law Offices of Orrin R. Beilly, West Palm Beach, for appellants.
    Jack J. Aiello and Rachel Sivilli of Gun-ster, Yoakley & Stewart, P.A., West Palm Beach, for appellee.
   FARMER, J.

We affirm on all issues on the main appeal relating to an award of attorney’s fees by the court following an arbitration award in favor of the Broker. As to the cross appeal, we reverse.

Although the trial court awarded the successful Broker its attorney’s fees for the arbitration itself and also for the proceedings in court resulting in a confirmation of the arbitration award, the court denied any additional fees to Broker for the proceedings in execution on the resulting money judgment against the losing parties in the arbitration. We conclude that Broker has established its right to such fees on two grounds.

The contractual attorney's fees provision is broad enough to encompass fees for execution on the judgment. The contract specifies that the prevailing party in the arbitration shall be entitled to “all reasonable attorney’s fees and costs.” [e.s.] This contractual language evidences a clear purpose to entitle the prevailing party to all — not merely some — of its fees. See Sholkoff v. Boca Raton Comty. Hosp., 693 So.2d 1114, 1118 (Fla. 4th DCA 1997) (if an agreement for one party to pay another party’s attorney’s fees is to be enforced, it must unambiguously state that intention and clearly identify the matter in which the attorney’s fees are recoverable). If the losing party persists in requiring the expenditure of attorney’s time even after the court has entered judgment on the arbitration award, there is no apparent reason to us why the broad scope of this fee provision should not be invoked here as well.

Even if the contractual language were somehow insufficient, Broker also established a statutory basis for fees. Section 57.115 states that:

“[t]he court may award against a judgment debtor reasonable costs and attorney’s fees incurred thereafter by a judgment creditor in connection with execution on a judgment.”

§ 57.115(1), Fla. Stat. (2000). We conclude that Broker timely asserted this statute.

We further find that the record supports the trial court’s conclusion that appellants had reasonable notice of the Broker’s claim for fees in spite of the failure to file a “pleading” formally seeking such fees. See Caufield v. Cantele, 27 Fla. L. Weekly S1046, 837 So.2d 371(Fla. 2002) (specific statutory or contractual basis of claim for attorney’s fees need not be specifically pleaded; failure to plead basis for such claim will not result in waiver of claim); Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991) (‘Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.”). Indeed, two months before the motion for fees was filed, appellants agreed to an order specifying Broker’s entitlement to costs for execution which expressly reserved jurisdiction to resolve the issue of attorney’s fees incurred in execution of the judgment, and stated that the order in no way limited Broker’s right to seek such fees.

Accordingly, we reverse for the trial court to award reasonable fees incurred in effectuating execution on the judgment, as well as reasonable fees incurred by Broker on this appeal.

STEVENSON and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    Heather McVICKER, an infant under the age of 14, by her parent and natural guardian, Holly WILSON, and Holly Wilson, individually, Appellants, v. Karl KOLB d/b/a Florida Action Water Sports and Fred & Jean Allegretti Foundation, Inc., d/b/a Blowing Rocks Marina, Appellees.
    No. 4D02-526.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied March 21, 2003.

      John G. Crabtree of John G. Crabtree, P.A., Key Biscayne, and Alexander L. Kaplan of Alexander L. Kaplan, P.A., Naples, for appellants Heather McVicker and Holly Wilson.
    James N. Hurley of Fowler White Burnett P.A., Miami, for appellees Fred & Jean Allegretti Foundation, Inc., d/b/a Blowing Rocks Marina.
   KLEIN, J.

Karl Kolb owned a business which rented JetSMs from a dock owned by Blowing Rocks Marina. Kolb, who leased a shack and dock space from the marina, negligently rented a JetSki to the underage plaintiff, who injured herself. The trial court dismissed her complaint against the marina lessor, and we affirm.

Plaintiff was injured when her JetSki collided with a vessel anchored several hundred feet from the shore. She alleged that Kolb violated section 327.39(6)(a), Florida Statutes (2001) which makes it unlawful to authorize a person under the age of fourteen to operate a personal water craft. She also alleged violations of section 327.54 in that Kolb failed to provide instruction on the operation of the vessel and failed to have the required insurance. The theory alleged against the marina owner is that it was liable because it knew or should have known that Kolb was committing crimes by violating these statutes.

Plaintiff relies on the theory of Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980), in which this court held that a landowner has a duty to protect invitees from violent criminal acts of third persons, if the landowner has actual or constructive knowledge of such a danger.

Defendant, on the other hand, cites cases in which it has been held that a lessor is not liable for the negligent operation of a lessee’s business. Wimbush v. Gaddis, 713 So.2d 1107 (Fla. 4th DCA 1998); Bovis v. 7-Eleven, Inc., 505 So.2d 661 (Fla. 5th DCA 1987).

We conclude that the Relyea line of cases relied on by plaintiff are distinguishable because in those cases the defendants were in direct control of the premises, while in the present case the defendant lessor does not control the day to day operation of the lessee’s business. Although we are sympathetic to the plight of the plaintiff, because the negligent lessee is apparently judgment proof, she has provided us with no authority which would support holding the lessor liable.

We therefore affirm.

STEVENSON and TAYLOR, JJ., concur.


author: STONE, J.

text:
    Mary WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2344.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied March 19, 2003.

      Mitchell J. Beers and Barbara J. Schef-fer of Mitchell J. Beers, P.A., Palm Beach Gardens, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Richard Yaluntas, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Wheeler challenges her perjury conviction on grounds that the trial court abused its discretion in its application of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), by failing to re-appoint counsel. We affirm.

When Wheeler arrived at the first docket call, she indicated that her intention was to try to obtain a dismissal without hiring an attorney. The court informed her that she could either hire an attorney, apply for an appointed attorney, or seek self-representation. At Wheeler’s request, the court appointed a public defender to represent her.

Following a number of continuances and a series of public defenders, Wheeler became upset, as indicated in a letter to her appointed counsel. Wheeler wrote, “I do not know when your due date is for your baby, but if for some reason you can not be at my trial, I DO NOT WANT IT CONTINUED FOR ANY REASON-OTHER THAN WHAT THE JUDGE SAID ABOUT MOTHER NATURE.... If you have your baby, I will represent myself! I really mean this.” When the public defender went on maternity leave, Wheeler’s case was transferred to another public defender.

At the next docket hearing, the court told Wheeler it had been advised that she wished to represent herself. The court then conducted a Faretta hearing utilizing the inquiries set forth in the model colloquy for trial judges, Amendment to Florida Rule of Criminal Procedure S.111(d)(2)-(3), 719 So.2d 873 (Fla.1998).

The model format, which the court faithfully followed, includes advice and questions a judge should ask when conducting a Faretta hearing. The court advised Wheeler of the many advantages of representation by an attorney and warned that it is almost always unwise to waive the right to counsel. The court also told Wheeler the maximum sentence she was facing was five years in prison and a $5,000 fine. Upon inquiry, the court learned that Wheeler was literate, had a twelfth grade education, and had taken an anti-depressant and some headache medicine which she assured the court had no affect on her ability to understand the proceeding. She had been treated for depression but no other mental illness, had not been threatened or coerced in making her decision, and had no physical problem which would hinder her self-representation. In open court, Wheeler signed a waiver of her right to counsel.

Despite the long colloquy by the judge, the prosecutor was concerned that Wheeler might simply be asking to represent herself because she believed it would facilitate a speedier trial. The court informed her that it was unable to promise that the trial would actually start and end on a specific date. Having said this, the court again asked whether Wheeler wanted to represent herself. She re-affirmed her desire to waive her right to counsel but allowed the court to appoint a public defender as standby counsel.

Some time later, Wheeler was picked up on a bench warrant for failing to appear at a docket call. At the next hearing, Wheeler asked for additional assistance from stand-by counsel. The court tried to determine whether she was requesting it to appoint new counsel or simply wanted her standby counsel to help her prepare for trial. The court advised that it would appoint an attorney but could not guarantee that she or he would be the same attorney who was acting as her “standby” counsel. Wheeler again decided to represent herself at trial with the assistance of standby counsel and was subsequently convicted.

In asserting a Faretta violation, Wheeler contends that the court should have reappointed counsel to represent her. She argues that: (1) she only waived counsel because she thought it would speed up the trial; (2) the court failed to fully address her health problems; and (3) she did, in fact, re-assert a request for appointed counsel that the court ignored. We reject these arguments, as it is evident that the trial court’s Faretta inquiry was sufficient to elicit the information necessary for a determination that Wheeler’s waiver of counsel was voluntary.

The Sixth Amendment of the U.S. Constitution guarantees the right of self-representation. Faretta, 422 U.S. at 821, 95 S.Ct. 2525; see also Art. I, § 16, Fla. Const. In Faretta, the United States Supreme Court held that the defendant’s unequivocal request to represent himself should have been granted where the record affirmatively showed he was “literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” Id. at 835, 95 S.Ct. 2525. Thus, “a criminal defendant who is competent to choose self-representation may not be denied that choice, even though the decision for self-representation will most certainly result in incompetent trial counsel.” Eggleston v. State, 812 So.2d 524, 525 (Fla. 2d DCA 2002). There are no “magic words” in a Faretta inquiry. Rather, we look to the defendant’s general understanding of her rights as codified in rule 3.111(d), Florida Rules of Criminal Procedure.

As to Wheeler’s first point, we recognize that a defendant’s motives for requesting to proceed pro se may be relevant to whether the defendant’s waiver was made knowingly and intelligently. See U.S. v. Stubbs, 281 F.3d 109, 117 (3d Cir.2002)(holding that, although defendant unequivocally invoked right to waive counsel, reversal required where record indicated he did so only because of his mistaken belief he could use closing argument in lieu of testifying at trial). However, here, while WHieeler may have waived counsel out of frustration, she was competent to make the decision to proceed without an attorney in her case.

Furthermore, Wheeler was not necessarily mistaken in believing that she could move the proceedings along more quickly if she were to represent herself. Indeed, the court repeatedly told her that it could not guarantee when her trial would take place or which attorney would be appointed to represent her. Yet, Wheeler would only be satisfied with an attorney of her choosing who would take her ease immediately and that, absent those conditions, she desired to represent herself. On these facts, we conclude that Wheeler’s waiver of counsel was voluntary.

There is also no evidence that Wheeler’s health problems detracted from her ability to understand the right she was waiving or her competence to make the decision. Wheeler cites this court’s decision in Kleinfeld v. State, 568 So.2d 937 (Fla. 4th DCA 1990), to support her argument that the court should have conducted a hearing to determine the severity of her health problems. In Kleinfeld, however, the issue was whether a trial court could use the defendant’s poor health as reason to revoke her right to self-representation. Id. at 939. We specifically avoided making a determination that a defendant’s health problems mandate the denial of her request to waive counsel and proceed pro se. Id. Instead, we held that, once granted, a court could not revoke a defendant’s right to self-representation because of health problems without first holding an eviden-tiary hearing to determine whether those problems constituted such “unusual circumstances” as to warrant the deprivation of this constitutional right. Id.

Here, Wheeler was not deprived of a constitutional right as was the defendant in Kleinfeld. Rather, Wheeler’s request to exercise her right to waive counsel was granted after the court determined that she was making this choice “with [her] eyes open.” See Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Moreover, Wheeler, herself, assured the trial court that she had no health problems which would compromise her ability to intelligently waive her right to counsel. We conclude that the record supports the finding that such a waiver was knowingly, voluntarily, and intelligently made.

Wheeler also asserts that the court failed to recognize that at the hearing on her failure to appear, she retracted her waiver of counsel. She claims the following colloquy supports her position:

THE COURT: All right. What do you want to do today? You’re requesting additional legal assistance. All I can tell you is what I already told you. You have the right to have a lawyer. If you can’t afford one, I’ll appoint one. If you want to hire your own lawyer, you can hire whoever you wish.
THE DEFENDANT: Appoint somebody, I guess.
THE COURT: If — listen, if I appoint one to represent you, you don’t have a right to have a specific attorney appointed—
THE DEFENDANT: That’s fine.
THE COURT: But I’ll appoint one to represent you if you wish. I just need to know what you want to do, Miss Wheeler. If you want to represent yourself, that’s fine, too. Then you’re gonna — you have the obligation to make sure that you keep up with your court dates and file whatever pleadings you need to file.
THE DEFENDANT: Right.
THE COURT: As I’ve warned you before. So what do you want to do?
THE DEFENDANT: I don’t know. If you appoint someone, do you know who it’s going to be yet?
THE COURT: I have no idea.
THE DEFENDANT: Just let me keep going like I’m going. I’ll get Frank to help me.
THE COURT: Okay.
THE DEFENDANT: Or I’ll call Mitch Beers, one of the two, I’ll do something. I’ll—
THE COURT: All right.
THE DEFENDANT: Do it.

Wheeler argues that the court should have appointed an attorney when she said “[tjhat’s fine” in response to the court’s offer to appoint an attorney. However, having the best vantage point to assess the situation, the trial court correctly determined that Wheeler did not understand the court’s statement. This is evident from her response. After expressing complete understanding of the fact that she did not have the right to a specific attorney, Wheeler asked, “if you appoint someone, do you know who it’s going to be yet?”

Once the trial court was satisfied that Wheeler’s decision to represent herself was knowing and voluntary, it was constitutionally required to allow her to represent herself at trial. See Faretta, 422 U.S. at 836, 95 S.Ct. 2525. Further, “[o]nce a defendant exercises [her] constitutional right to defend [herself] and proceed pro se, [she] does not have the absolute right to thereafter withdraw [her] request for self representation and receive substitute counsel.” U.S. v. Merchant, 992 F.2d 1091, 1095 (10th Cir. 1993); see also State v. DeWeese, 117 Wash.2d 369, 816 P.2d 1, 4 (1991)(“After a defendant’s valid Faretta waiver of counsel ... the trial court is not obliged to appoint, or reappoint counsel on the demand of the defendant. The matter is wholly within the trial court’s discretion.”).

The state properly draws our attention to the problem, noted by the Ninth Circuit Court of Appeals in Meeks v. Craven, 482 F.2d 465, 467 (9th Cir.1973), that, after waiving the right to counsel, the convicted defendant may “mount a collateral attack upon his trial or plea, claiming either that he did not understand what he was doing or that the court should have forced counsel upon him.... We can find no constitutional rationale for placing trial courts in a position to be whipsawed by defendants clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error no matter which way the trial court rules.’’ Id. at 468 (emphasis added).

Here, Wheeler’s equivocal comments made after the Faretta hearing do not entitle her to place the court in a position of committing error no matter which way the trial court rules. See id. The state notes that if the trial court appointed counsel based upon Wheeler’s equivocal comments (which she rescinded upon further inquiry by the trial court), then she would surely argue that the trial court improperly infringed upon her right to self-representation. Such “heads I win, tails you lose” tactics have previously been rejected by this court. See Thomas v. State, 406 So.2d 538, 539 (Fla. 4th DGA 1981).

As we interpret this record, and notwithstanding her one comment “appoint somebody, I guess,” the trial court did not abuse its discretion in allowing Wheeler to represent herself. See Holland v. State, 773 So.2d 1065,1069 (Fla.2000)(standard of review is abuse of discretion). In fact, the Second District’s recent decision in Eggle-ston suggests that the trial court might have abused its discretion if it had appointed counsel. 812 So.2d at 525. In any event, even if she had requested counsel after electing to proceed pro se, which she did not, she no longer possessed an absolute right to withdraw her request for self-representation and receive substitute counsel. See Merchant, 992 F.2d at 1095; DeWeese, 816 P.2d at 4. Thus, we affirm Wheeler’s conviction.

WARNER and GROSS, JJ., concur.

      . Whether Wheeler’s letter to her public defender was an unequivocal request to waive her right to counsel is of no consequence. The court conducted a thorough inquiry before allowing Wheeler to proceed without counsel.


author: VAN NORTWICK, J. KAHN, J.,

text:
    FIRST UNION NATIONAL BANK, Appellant, v. Helen J. TURNEY, Appellee.
    No. 1D01-1120.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2003.
    Rehearing Denied March 19, 2003.

      Virginia B. Townes and Stacey L. Cole of Akerman, Senterfitt & Eidson, P.A., Orlando, for Appellant.
    Thomas S. Edwards of Peek, Cobb, Edwards & Ashton, P.A., Jacksonville, and James L. Ford, Sr., Atlanta, Georgia, for Appellee.
   VAN NORTWICK, J.

First Union National Bank (First Union) appeals a final judgment awarding attorney’s fees to Helen J. Turney, appellee. Mrs. Turney, as beneficiary of her late husband’s trust, brought the underlying action against First Union, in its capacity as trustee of the Turney trust, based upon allegations that First Union had breached its fiduciary duty during the life of the trust. Mrs. Turney recovered a substantial jury verdict which was affirmed by this court. See First Union Nat'l Bank v. Turney, 824 So.2d 172 (Fla. 1st DCA 2001)(Turney I), rev. denied, 828 So.2d 385 (Fla.2002). Also, the trial court ordered First Union to pay Mrs. Turney’s attorney’s fees and costs pursuant to section 737.627, Florida Statutes (1993). First Union asserts that the award of fees under section 737.627 was erroneous because appellee’s cause of action for breach of fiduciary duty accrued prior to the effective date of the statute and, based upon the authority of Florida Patient’s Compensation Fund v. Scherer, 558 So.2d 411 (Fla.1990), the fee statute cannot be retroactively applied. Because we find that certain of the acts constituting a breach of fiduciary continued beyond the October 1, 1993, effective date of the statute, we conclude that the trial court did not err in applying this fee statute, and we affirm.

Because this case involves the threshold resolution of the legal issue of whether section 737.627 can be applied in the instant cáse, we review that portion of the trial court’s order under a de novo standard of review. See Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787 (Fla. 2d DCA 2000). Once the attorney’s fee statute is determined to be applicable, however, any issue relating to whether the award under the statute is appropriate is reviewed under an abuse of discretion standard. See Nalls v. Millender, 721 So.2d 426, 427 (Fla. 4th DCA 1998)(holding that abuse of discretion standard applies to review of order granting fees under section 737.627).

Section 737.627, Florida Statutes (1993), provides, in pertinent part, that “[i]n all actions challenging the proper exercise of a trustee’s powers, the court shall award taxable costs as in chancery actions, including attorney’s fees.” First Union argues that, because section 787.627 was enacted with an effective date of October 1, 1993, see chapter 93-257, § 18 at 2512, Laws of Florida, and Mrs. Turney’s cause of action accrued several years prior to 1993 when the acts constituting a breach of fiduciary duty occurred, the trial court erred in applying section 737.627 as the basis for an award of fees. The trial court rejected First Union’s argument, ruling that “Plaintiffs entitlement to fees vested upon the Plaintiffs becoming the prevailing party” and that “[t]he date of enactment of § 737.627, Fla. Stat., is of no consequence, as it was enacted prior to the jury’s determination which resulted in the prevailing party in this suit being determined.”

We agree with First Union that the trial court erred in basing its application of the fee statute on the fact that the date on which Mrs. Turney was determined to be the prevailing party occurred after the effective date of section 737.627. In Scherer, the plaintiff suffered damages by an act of medical malpractice which occurred in 1979 and discovered her injuries some time after September 1, 1980. The Supreme Court held that the attorney’s fees provision of section 768.56, Florida Statutes (1981), which had become effective on July 1, 1980,, could not be applied because “a cause of action for medical malpractice accrues for purposes of applying section 768.56 when the malpractice incident causing the injury and giving rise to the liability occurs,” not upon discovery of the injury. Scherer, 558 So.2d at 414. For the purposes of the statute of limitations, the delayed discovery doctrine applies to postpone accrual of a cause of action until the act or injury is discovered by the plaintiff, see Hearndon v. Graham, 767 So.2d 1179 (Fla.2000). Nevertheless, the Supreme Court reasoned in Scherer that to apply a fee statute to a tort that occurred before the statute’s effective date violates the ' constitutional prohibitions against ex post facto laws. Scherer, 558 So.2d at 414. In that context, Scherer held that the damages, including an award of attorney’s fees, for which the defendant may be held hable cannot constitutionally be enlarged after the date of the malpractice. Id. As a result, under Scherer, the date of the accrual of a cause of action may differ, depending on whether one is seeking to apply the statute of limitations or an attorney’s fee statute.

Although the reason stated by the trial court to support its award of attorney’s fees was erroneous, “if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.” Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999). “[T]here must have been support for the alternate theory or principle of law in the record before the trial court.” Robertson v. State, 829 So.2d 901 (Fla.2002). This principle, sometimes referred to as the “tipsy coachman” rule, see Home Depot U.S.A. Co., Inc. v. Taylor, 676 So.2d 479, 480 (Fla. 5th DCA 1996), arises from the presumption of correctness with which the judgment of the trial court is clothed. See Cohen v. Mohawk, Inc., 137 So.2d 222, 225 (Fla.1962). We find that the record here supports affirmance on a theory different than that adopted by the trial court.

Under the rule of Scherer, it is the date of the acts that constituted a breach or breaches of fiduciary duty, and not the date of the determination of the prevailing party, which must be used in deciding whether section 737.627 can be applicable. Because it is apparent from the jury’s answers to the interrogatories in the verdict form below and from this court’s earlier opinion in Turney I that First Union’s tortious acts continued beyond the October 1, 1993 effective date of section 737.627, we hold that the award of fees did not constitute a retroactive application of the statute and Scherer does not apply.

As discussed in Turney I, among the acts constituting breaches of fiduciary by First Union were the bank’s conflicts of interest in a transaction with Port Sanibel, Ltd., the bank’s deliberate withholding of information from Mrs. Turney concerning the facts constituting its breach of fiduciary duty, and the bank’s attempt to obtain a general release from Mrs. Turney without providing her with the relevant and material information necessary to make an informed decision. See Turney I. “A fiduciary’s deliberate withholding of material information the fiduciary has a duty to disclose constitutes fraudulent concealment.” Turney I, 824 So.2d at 190; see also Nardone v. Reynolds, 333 So.2d 25, 39 (Fla.1976), receded from on other grounds, Hearndon v. Graham, 767 So.2d at 1184-85. From the facts discussed in Turney I, it is apparent that First Union continued its concealment of relevant and material facts at least through 1993, as it unsuccessfully sought to obtain the general release from Mrs. Turney. See Turney I, 824 So.2d at 179-181. For example, in late September and early October 1993, First Union continued to communicate with two separate law firms relating to, among other things, First Union’s possible liability either to the beneficiaries or to a successor trustee of the Turney trust arising out of the bank’s conflict of interest. Id. at ISO-181. At the same time, as Mrs. Turney and her son-in-law both testified at trial, First Union never advised Mrs. Turney or other beneficiaries that it had any conflict of interest during its administration of the trusts. Id. at 181. Further, according to the testimony of outside counsel to First Union who negotiated with the beneficiaries of the Turney trust on behalf of the bank, the bank offered to lend money to the trust, but only if the beneficiaries agreed to release all prior claims against the bank. Id. First Union’s in-house counsel acknowledged that the bank did not, as far as she knew, ever inform Mrs. Turney of any conflict or of the nature of any claim that she might be giving up by executing the release First Union sought. Id.

Our conclusion that the breaches of fiduciary duty continued beyond October 1993 is also supported by the jury’s answers to the verdict interrogatories. In those answers, the jury found that, prior to October 24, 1995, First Union had not provided Mrs. Turney an accounting or other statement fully disclosing the facts underlying the bank’s breach of fiduciary duty. Further, Turney I observes that “[t]he bank never disclosed the breaches of fiduciary duty upon which Mrs. Turney ultimately sued.” Id. at 188, n. 13.

Thus, we find that, although the initial tortious acts involving the bank’s conflicts of interest may have been undertaken during a period covering 1982 through 1984, the bank’s fraudulent concealment continued well after October 1, 1993, the effective date of section 737.627. As appellee correctly argues, unlike Scherer, where the tortious act was completed prior to the effective date of the fee statute, here, the tortious acts continued after the fee statute’s effective date. As a result, the rule in Scherer does not preclude an award of attorney’s fees under section 737.627 in the present case.

Section 737.627 provides that “[i]n all actions challenging the proper exercise of a trustee’s powers, the court shall award taxable costs as in chancery actions, including attorney’s fees.” An action seeking to recover for a bank trustee’s breach of fiduciary duty is an “action” under section 737.627. See First Union Nat’l Bank v. Jones, 768 So.2d 1213, 1215 (Fla. 4th DCA 2000); and Republic Nat’l Bank v. Araujo, 697 So.2d 164, 166 (Fla. 3d DCA 1997). Further, “[t]he well settled ‘rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party.’” Estate of Brock, 695 So.2d 714, 716 (Fla. 1st DCA 1996)(quoting Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984)). In view of the substantial jury verdict here, there is no abuse of discretion in the award of the attorney’s fee. See Nalls v. Millender, 721 So.2d at 427.

AFFIRMED.

LEWIS, J., concurs and KAHN, J., dissents with written opinion.

KAHN, J.,

dissenting.

I dissent from the majority opinion because this court has no authority to affirm the award of attorney’s fees to appellee.

Appellee correctly argues that the delayed discovery doctrine applies to postpone accrual of a cause of action until the act or injury is discovered by the plaintiff. See Hearndon v. Graham, 767 So.2d 1179 (Fla.2000). Indeed, this court has already held that the delayed discovery doctrine applies in this case. See First Union Nat’l Bank v. Turney, 824 So.2d 172, 190 (Fla. 1st DCA 2002) (Turney I) (“[Mrs. Turney’s] causes of action did not accrue until she became aware of facts that would have put a reasonable person on notice.”). Ap-pellee maintains that the rule of accrual that applies to postpone or toll the running of the statute of limitations should also apply in this case where statutory attorney’s fees are at stake. The Florida Supreme Court has, however, indicated otherwise.

Our decision should be guided by Florida Patient’s Compensation Fund v. Scherer, 558 So.2d 411 (Fla.1990). In Scherer, the plaintiff suffered, in 1979, an injury due to medical malpractice. The plaintiff discovered her injury sometime after September 30, 1980, and filed suit September 20, 1982. As the majority notes, Scherer was successful at trial, and the trial court awarded attorney’s fees pursuant to section 768.56, Florida Statutes (1981), a statute that had become effective July 1, 1980. The supreme court reversed, finding that “a cause of action for medical malpractice accrues for purposes of applying section 768.56 when the malpractice incident causing the injury and giving rise to the liability occurs,” not upon discovery of the injury. Id. at 414. Accordingly, the accrual of a cause of action may differ, depending on whether one is seeking to apply the statute of limitations, or a recently enacted attorney’s fee statute.

The right to recover attorney’s fees, as well as the burden to pay such fees, is substantive in nature. See L. Ross, Inc. v. R.W. Roberts Constr. Co., 481 So.2d 484 (Fla.1986); see also Young v. Altenhaus, 472 So.2d 1152, 1154 (Fla.1985) (“[A] statutory requirement for the non-prevailing party to pay attorney fees constitutes ‘a new obligation or duty,’ and is therefore substantive in nature.”). “Substantive rights cannot be adversely affected by the enactment of legislation once those rights have vested.” Williams Coll. v. Bourne, 670 So.2d 1118, 1120 (Fla. 5th DCA 1996). The Florida Supreme Court in Scherer made clear that due process considerations preclude retroactive application of a law creating a new substantive right to attorney’s fees. See Scherer, 558 So.2d at 414. For the reasons expressed by the court in Scherer, the delayed discovery doctrine does not apply to application of a newly enacted attorney’s fee statute. The basis for such a rule is due process. A defendant’s liability cannot be increased after the defendant has committed the tortious acts for which the defendant is ultimately found responsible.

Nothing in the trial court’s order awarding attorney’s fees suggests that tortious acts occurred after the effective date of the attorney’s fee statute. Also, nothing in this court’s earlier opinion will support an argument that tortious acts causing additional damages occurred after the effective date of the statute. As the majority acknowledges, the trial court’s determination that entitlement to fees vested upon plaintiff becoming the prevailing party is an incorrect statement of the law. See Scherer, 558 So.2d at 414. Under the due process considerations enunciated by Scherer, First Union cannot be held responsible for attorney’s fees based upon a statutory enactment that became effective after its tor-tious acts.

The majority would apply the “tipsy coachman” rule as support for affirming the award of attorney’s fees. Op. at 777-78. The majority contends that our Tur-ney I decision establishes, “First Union continued its concealment of relevant material facts at least through 1993, as it unsuccessfully sought to obtain the general release from Mrs. Turney.” Op. at 778. The problem with this predicate, a predicate completely necessary for the majority’s conclusion, is that our discussion in Turney I relates to an evidentiary dispute concerning admissibility of certain documents in evidence over First Union’s objection that these documents fell within the attorney-client privilege. See Turney I, 824 So.2d at 174. The context of the facts relevant to the determination of that evi-dentiary dispute in Turney I is simply different in kind from the present attorney’s fee dispute. Respectfully, I do not believe that the majority has satisfied the threshold requirement for the “tipsy coachman” doctrine — “the record before the trial court must support the alternative theory or principle of law.” State Farm Fire & Casualty Co. v. Levine, 837 So.2d 363 (Fla.2002).

Beyond the case law cited in this dissenting opinion, I must point out that both this court and the Florida Supreme Court have denied motions for attorney’s fees filed by Turney in this matter and relying upon the identical theory now adopted by the majority. See First Union National Bank v. Turney, Case No. SC02-197, 828 So.2d 385 (Fla. Sept.30, 2002) (unpublished order denying Turney’s motion for attorney’s fees after Turney succeeded in convincing the supreme court to decline to accept jurisdiction); First Union National Bank v. Turney, Case No. 1D00-2803 (Fla. 1st DCA Jan. 17, 2002) (unpublished order denying appellate attorney’s fees and citing Scherer). I find it particularly significant that in the supreme court matter, Turney filed a motion for appellate attorney’s fees relying upon section 737.627 and specifically alleging “the bad acts ... found by the jury were committed, in part, after said statute was enacted.” See Turney, Case No. SC02-197, 828 So.2d 385 (Appellee Turney’s Motion for Attorney’s Fees filed February 26, 2002). Now that the supreme court has rejected Turney’s argument, I am at a loss to understand how the majority feels it is empowered to accept this argument. I would reverse the order awarding appellee attorney’s fees.

      . Indeed, this court has already held that the delayed discovery doctrine applies in this case. See Turney I, 824 So.2d at 188, n. 13 ("[Mrs. Turney's] causes of action did not accrue until she became aware of facts that would have put a reasonable person on notice.”).